Detention: Law of

Supreme Court Denies Cert. in Three More GTMO Cases

By Larkin Reynolds
Monday, April 4, 2011, 4:55 PM

The Supreme Court today denied three pending petitions for certiorari: Al Odah v. Obama (No. 10-439), Awad v. Obama (No. 10-736), and Al Bihani v. Obama (No. 10-7814). These denials mean that there are only two Guantanamo-related cert. petitions still pending at the Supreme Court this term.

Both Al Odah and Awad had asked the court to decide whether it is constitutionally permissible for courts that are reviewing habeas challenges brought by Guantanamo detainees to 1) permit hearsay evidence or 2) employ a preponderance-of-the-evidence standard of proof.

Al Bihani, by contrast, asked:

1) Whether the courts below correctly rejected petitioner’s argument that he must be released from military custody because the conflict in Afghanistan in which he was captured has ended[; and]

2) Whether the Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, permits the military detention of an individual who served in a combat unit that fought alongside the Taliban while it was harboring al-Qaida and fighting against the United States.

These denials mark the third, fourth, and fifth cert. denials the Supreme Court has issued this term. The other cert. denials were those in  Al Adahi (No. 10-487) and Ameziane v. Obama (10-447). Al Adahi asked the Supreme Court to consider whether the D.C. Circuit had altered the “clearly erroneous” standard of appellate review in its reversal of Judge Gladys Kessler’s district-court decision granting the writ of habeas corpus to Mohammed Al Adahi. We've previously covered the significance of the the Al Adahi denial here. Ameziane, denied March 21st, sought review of a D.C. Circuit decision that reversed a district court order involving "protected information" in a habeas case. The district court had deemed as "protected" information that the petitioner sought to disclose. Few details of Ameziane are public; the D.C. Circuit opinion is heavily redacted and the petition itself remains under seal.

As Lyle Denniston noted at SCOTUSblog, today the Court did not issue a decision on cert. in the Kiyemba v. Obama (No. 10-775) case today even though it was slated for review at last Friday's conference. With the Mohammed petition (10-746) awaiting disposition of the petitioner's motion for dismissal, today's developments effectively leave us with two GTMO cert. petitions awaiting resolution, down from what had been a total of eight:

  1. The Kiyemba III challenge (10-775), explained above and previously on LawfareKiyemba asks the Court to say that federal judges have the power to order release from confinement of an individual that a judge finds cannot longer be held legally.  The five Uighurs petitioners in the case are still at Guantanamo but have refused offers to be resettled in Palau or at least one other undisclosed country. 
  2. Khadr (10-751). This case asks the Court to rule that a detainee is entitled to judicial review if he contests an imminent transfer from Guantanamo—and it also seeks reversal of the D.C. Circuit’s order vacating a 30-day, pre-transfer notice requirement that Judge Hogan had imposed on the government in 2008. We also discussed Khadr here.

Also worth noting is that Justice Kagan is apparently not categorically recusing herself from considering GTMO petitions. She recused in Al Adahi, Ameziane, and Al Bihani, but did not recuse in Al Odah or Awad. She will almost certainly recuse in Kiyemba III, though it may be more difficult to predict what she will do in Khadr. This is good news for the habeas bar, which will almost certainly need her vote if it is to reverse the D.C. Circuit on any major GTMO matter.

And don't miss Bobby's discussion yesterday of the implications of these most recent denials.