Detention: Law of: Supreme Court Development

The Obaydullah Cert. Petition: One More Shot for the Supreme Court...

By Steve Vladeck
Friday, March 1, 2013, 5:22 PM

Amidst all the hubbub earlier this week, we neglected to note the filing of a new cert. petition in a Guantánamo habeas case--in Obaydullah v. Obama, filed in the Supreme Court on Tuesday. Our coverage of the D.C. Circuit's decision in Obaydullah is available here (and Wells noted the developments earlier this week in the related but distinct Rule 60(b) litigation).

It says all that needs to be said that the filing of a cert. petition in a Guantánamo habeas case has become a relatively non-noteworthy development. As we've discussed before, the Court has turned away over a dozen different appeals in such cases to date, leaving the impression that they're not at all interested in supervising the merits of the D.C. Circuit's jurisprudence in this field.

But Obaydullah presents the Justices with one more--clean--chance to reach some of the big picture issues these cases raise, including:

  1. Whether, in interpreting the AUMF consistently with the laws of war, courts must consider whether detainees continue to present a danger to the United States;
  2. Whether the D.C. Circuit erred in creation a presumption of accuracy for intelligence information in Latif; and
  3. Whether, under Boumediene, the government has to disclose to a detainee's counsel all information that is relevant and material (and potentially exculpatory) in order to provide the detainee with a "meaningful opportunity" to challenge his detention.

To be sure, the Court has had a chance to address each of these questions before, and has passed. But, if nothing else, here's one more opportunity for the Justices to not let the D.C. Circuit have the last word, especially as (1) it looks less and less likely that Guantánamo will ever be closed; and (2) we get further and further away from 9/11 and the AUMF.