Today the Supreme Court issued cert. determinations in two of the several Guantanamo-related petitions that have been filed this term. The Court denied both petitions, declining to hear either Abdah v. Obama (11-421) (Justice Kagan recused) or Gul v. Obama (11-7827). As readers will recall, Abdah is one of the eight petitions filed this term by current Guantanamo detainees and seeks review of whether a detainee is entitled to challenge his transfer from Guantanamo to a foreign country. Gul is the petition filed by detainees who are no longer held at Guantanamo but who seek judicial remedy for harmful consequences they say they suffered after having been designated as enemy combatants and held at the facility.
We will likely have more to say on these, but for the time being the petitioners’ questions presented are below:
Whether, in a habeas corpus action, a Guantánamo detainee has a right to challenge his transfer to a foreign country on the ground that he is likely to be tortured there, and a court has the power to enjoin the transfer upon a proper showing by the detainee.
Where the petitioners established initial habeas jurisdiction, whether the burden of proof should be on the government, as the party asserting mootness, to establish the absence of direct or collateral consequences from the imprisonment and designation of Mr. Hamad and Mr. Gul as persons who are dangerous and detainable under the Authorization for the Use of Military Force.
Whether, if the petitioners must bear the burden of proving that their cases are not moot, they demonstrated the existence of sufficient remediable consequences, including conditions of transfer, statutory impairments, and non-civilian status, to allow their cases to go forward or, in the alternative, whether their cases should be remanded to the district court so that they may further develop facts specific to their cases.
Prior Lawfare coverage:
Lyle Denniston also posted word about these denials over at SCOTUSblog.