The U.S. Supreme Court apparently has lost interest in the difficult and important issues raised by the indefinite detention of prisoners at Guantánamo Bay, Cuba. On June 11, the Supreme Court denied review in seven cases posing unresolved questions presented by Guantánamo detainees seeking redress. There remain in Guantánamo 169 prisoners, some who have been there for more than 10 years without a trial, and they are left with no apparent legal recourse.
In 2004, in Rasul v. Bush, the Supreme Court held that Guantánamo detainees may file writs of habeas corpus in federal court. Four years later, in Boumediene v. Bush, the Supreme Court declared unconstitutional a federal law, the Military Commission Act, that barred Guantánamo detainees from having access to habeas corpus. Justice Anthony Kennedy, writing for the Court, stressed the importance of habeas corpus and of following the rule of law even in the context of fighting terrorism. But since then, the Court has refused to hear a single case brought by a Guantánamo detainee.
This is especially disturbing because the U.S. Court of Appeals for the D.C. Circuit has denied relief in every case and has effectively nullified the Court’s decision in Boumediene. Following the Supreme Court’s decision, federal district court judges in the District of Columbia granted relief to a number of Guantánamo detainees. But in each instance, a conservative panel of the D.C. Circuit reversed and then the Supreme Court denied review.
For example, in Kiyemba v. Obama, a federal district court ordered the release of five Chinese Muslim (Uighur) detainees who had been cleared for release from Guantánamo. But the D.C. Circuit reversed and held that a federal judge lacks the power to order the transfer of Guantánamo detainees to the United States. Subsequently, in the same case, the D.C. Circuit denied federal judges the power to regulate transfers of Guantánamo detainees to elsewhere in the world. What is the meaning of habeas corpus, which the Supreme Court so carefully preserved for Guantánamo detainees in Rasul and Boumediene, if the federal courts cannot order the release of prisoners? Yet the Supreme Court denied review.
In Latif v. Obama, the D.C. Circuit ruled that federal district judges must “presume” that government intelligence reports used to justify detention are reliable and accurate. Adnan Farhan Abdul Latif, a Yemeni man, was picked up near the border between Afghanistan and Pakistan in December 2001. The government has relied on an intelligence report prepared at the time to justify holding him ever since. The district court ordered his release, saying that the report was not sufficiently reliable to warrant keeping him imprisoned. But the D.C. Circuit, while acknowledging problems with the report, said that it was entitled to “a presumption of regularity.”
This likely will create an insurmountable obstacle for relief for many detainees. In dissent, D.C. Circuit Judge David Tatel said this would mean that the government would win virtually every case and that “it is hard to see what is left of the Supreme Court’s command in Boumediene.” On June 11, the Supreme Court denied certiorari.
Some of the conservative judges on the D.C. Circuit have been openly disdainful of the Supreme Court’s decisions in Rasul and Boumediene. Judge A. Raymond Randolph compared the justices in the majority in Boumediene to fictional characters in The Great Gatsby, “careless people” making messes for other people to clean up. In the Latif case, Judge Janice Rogers Brown said “Boumediene‘s airy suppositions have caused great difficulty for the executive and the courts.”
The open disdain and defiance for the Supreme Court by judges on a federal court of appeals — in their words and their decisions — is rare, if not unprecedented. Yet the Supreme Court has done nothing to enforce its earlier rulings and the result has been that the conservative judges on the D.C. Circuit have been able to deny any relief for Guantánamo detainees. It is inexplicable as to why the Court has made this choice and why not a single justice dissented from the denial of review in the seven Guantánamo cases on June 11.
Last year, it was thought that perhaps the Court was denying review because Justice Elena Kagan was recused and the likelihood of a 4-4 split made it better to wait for cases where she could participate. But there is no indication that she was recused from any of the seven cases on June 11. Nor can it be that the justices simply have too much else to do. The Court is far behind its usual pace in granting review in cases for next year.
At least the appearance is that the Court has simply lost interest in the Guantánamo detainees and the difficult legal issues raised by indefinite imprisonment of individuals without trials. Sadly, this seems to reflect the attitude of the Obama administration and the country. Upon taking office, President Obama promised to close Guantánamo within a year. In large part because of Congress blocking this, 3 1/2 years later nothing has changed.
During the Bush administration, liberals were outspoken in their criticism of the Guantánamo detention center, which had become a symbol of the government’s disobedience of international law and basic notions of human rights. But with a Democratic president, these critics’ voices have been muted. It seems that the country has simply gotten used to the idea that the government can hold these individuals indefinitely.
In February 2002, I argued the first habeas corpus case on behalf of Guantánamo detainees in federal district court. I could not possibly have imagined that more than 10 years later — a time longer than any war in American history — the government would still be holding these individuals as prisoners. When the Supreme Court finally ruled in Rasul v. Bush and Boumediene v. Bush that Guantánamo detainees had a right to seek habeas corpus relief in federal courts, I never could have imagined that this would be a pyrrhic victory and that the Court would allow the D.C. Circuit to nullify the availability of habeas corpus.
If a foreign nation had imprisoned 169 Americans without trial, some for more than 10 years, the reaction would be outrage. But how can the United States expect foreign nations to follow international law and adhere to the rule of law if it does not do so? It is time for outrage at the government and the courts for abandoning relief for the Guantánamo detainees, but unfortunately there is mostly just silence.
Erwin Chemerinsky is dean and distinguished professor of law at the University of California, Irvine School of Law.