Detention: Law of: Supreme Court Development

Marty Lederman on the Hussain Case at the Supreme Court

By Benjamin Wittes
Friday, March 28, 2014, 9:46 AM

Over at Just Security, Marty Lederman has an interesting piece about a Guantanamo case the Supreme Court has relisted three times for consideration at conference. He writes:

The Supreme Court has relisted for conference three times a pending Guantánamo habeas petition, Hussain v. Obama, No. 13-638.  The Court will consider the case for the fourth time at its conference this morning; it might rule on the petition forcertiorari as early as Monday.

The case hardly seems like the sort the Court would be inclined to consider on the merits.  The petitioner isn’t arguing that the court of appeals has adopted an improper legal standard for assessing habeas claims, let alone that there is a circuit split or any deviation from the Supreme Court’s own doctrine.  Instead, Hussain’s claim is that this case is emblematic of a practice of the U.S. Court of Appeals for the D.C. Circuit of notimplementing the proper legal standard in applying the law to the facts of particular Guantánamo habeas cases.

The issue, as Marty describes it, is that the petitioner claims to have left the Taliban and there really isn't a lot of evidence to the contrary:

Even if the courts below were correct that a preponderance of the evidence supported the conclusion that Hussain was part of Taliban forces as of September 11, 2001, has the government demonstrated it is more likely than not he remained part of those forces seven months later, based primarily on the fact that the only explanations Hussain offered for leaving Afghanistan were likely “false cover stories,” and without any affirmative explanation for why such movement to Pakistan is consistent with a likelihood that Hussain remained part of Taliban forces?

The Supreme Court does not often grant cert. on such case-specific, application-of-fact-to-law questions.  If I had to predict, therefore, I’d wager that the Court will eventually deny cert.  But it has relisted the case three times, which suggests that at least one Justice is troubled, and that we might expect a separate concurring or dissenting opinion, even if the Court does deny the petition.  In any event, it’s one GTMO habeas case to keep an eye on.

We have covered this case here (how it relates to ducks), here (on the cert petition), and here (on the D.C. Circuit opinion).