Detention & Guantanamo

Lyle Denniston on Guantanamo Cert Petitions

By Benjamin Wittes
Wednesday, March 14, 2012, 4:29 PM

Raffaela linked to this the other day, but I only now just got around to reading it. Lyle Denniston at SCOTUSblog has an interesting piece on the various cert petitions in Guantanamo cases now pending before the Supreme Court. While Lyle's working assumptions about these cases differ in some respects from my own, he does a nice job of grouping the cases according to the issues the petitions present:

Without knowing at this point when the eight new cases will be sent to the Justices for initial consideration, and assuming that at some point all will be ready, they can now be grouped by the issues they seek to raise.  . . .

1. Definition of government power to detain at Guantanamo

Al-Bihani v. Obama (10-1383) — seeks a basic definition of detention power, limited by the laws of war

Uthman v. Obama (11-413) — challenges detention for one who did not actually fight against U.S. or allied forces and provided no direct support to terrorists

Almerfedi v. Obama (11-683) — challenges detention authority if based on non-incriminating facts

Al-Madhwani v. Obama (11-7020) — challenges detention based on “guilt by association” with suspected terrorists, based on visits to guesthouses and training facilities

Al-Alwi v. Obama (11-7700) — challenges detention based on ties to the Taliban after hostilities had ended

2.  Circuit Court refusal to uphold any release order

Almerfedi (11-683) and Latif (11-1027)

3. Procedural rights of detainees in court

Uthman (11-413) violation of the habeas Suspension Clause if habeas review is not meaningful

Almerfedi (11-683) -- validity of requiring detainee to rebut government evidence found to be credible

Latif (11-1027) — challenges presumption of accuracy of U.S. intelligence reports, and challenges Circuit Court power to find facts on its own

Kandari v. U.S. (11-1054) — right to restrict government’s use of hearsay evidence

Al-Madhwani (11-7020) right to constitutional due process protection

Al-Alwi (11-7700) — inadequate time for attorney to prepare a defense

4. Government power to transfer out of Guantanamo over objection

Abdah v. Obama (11-421) — right of attorney to advance notice in order to challenge planned transfer to a nation where the detainee fears torture