That's the question attorneys who represent Guantanamo detainees are asking after the Supreme Court on Monday refused to consider the appeals of seven prisoners, who petitioned the justices to review decisions in their habeas cases made by a conservative appeals court. The decision flies in the face of the court's 2008 landmark ruling in Boumediene v. Bush, which granted detainees a "meaningful opportunity" to challenge their detentions.
SCOTUSblog reported that the "practical effect" of the Supreme Court's decision, "is that the D.C. Circuit Court now functions as the court of last resort for the 169 foreign nationals remaining at the U.S.-run military prison in Cuba, and that court has a well-established practice of overturning or delaying any release order issued by a federal judge, when the government objects."
None of the justices dissented and the Supreme Court did not issue a statement explaining its decision.
Brent Mickum, an attorney who has spent nearly a decade working on the habeas cases of several Guantanamo detainees and currently represents the high-value prisoner, Abu Zubaydah, said, "For those of us who have been working in the trenches for years and years this is a really sad and disappointing day."
"All of our work has essentially been for naught," Mickum said. "This leaves open a glaring question, what is the next step? All of the habeas attorneys will be getting together for a major meeting to discuss that."
In an interview, Mark Denbeaux, the director of the Seton Hall Law Center for Policy and Research who has represented several Guantanamo detainees and is also a member of Zubaydah's legal team, said the Supreme Court's ruling in Boumediene, which celebrates its four-year anniversary today, is now as "legally effective as a law review article."
"That the federal district court now gets to decide if detainees can win their cases is hard to swallow and hard to teach law students in light of Boumediene," Denbeaux added.
Last month, Denbeaux and Seton Hall law students published a report, "No Hearing Habeas: D.C. Circuit Restricts Meaningful Review."
The report determined that the "promise of Boumediene has been effectively negated by decisions of the U.S. Court of Appeals for the District of Columbia Circuit, beginning in 2010 with Al-Adahi v. Obama."
"Detainees won 56% of the first 34 habeas petitions; detainees lost 92% of the last 12 - and the sole detainee win after Al-Adahi has since been vacated and remanded by the D.C. Circuit," according to the report.
Investigative blogger Marcy Wheeler reported Monday that the high court's decision "effectively killed habeas corpus" and essentially "blessed":
- Holding a person indefinitely for being in the wrong place at the wrong time - including a school, a road, and a guest house - where suspect people are.
- Holding a person indefinitely based on an admittedly error-ridden report the government wrote up itself.
- Holding a person indefinitely based on pattern analysis.
- Completely upending the role of District Court judges in the fact-finding process.
SCOTUSblog noted one of the circuit court's "most significant rulings that the Justices left intact on Monday was its decision in the case of Yemeni national Adnan Farhan Abdul Latif, which ordered District judges to 'presume' that government intelligence reports used to justify detention were reliable and accurate, unless a detainee could prove they are flawed."
"Latif's lawyers challenged that ruling as tipping the judicial scales much in the government's favor; indeed, the dissenting judge in that case, Circuit Judge David S. Tatel, said the effect would be that the government would win in every case," SCOTUSblog reported. "One of the questions that Latif's lawyers had asked the Justices to decide was this: Whether the court of appeals' manifest unwillingness to allow Guantanamo detainees to prevail in their habeas corpus cases calls for the exercise of this Court's supervisory power. By denying review, the Justices apparently concluded that there was no need to use that power in this, or any other new case. "
The six other Guantanamo cases the Supreme Court declined to review Monday, were: Al-Madhwani v. Obama, Al-Alwi v. Obama; Al-Bihani v. Obama; Uthman v. Obama; Almerfedi v. Obama, and Al-Kandari v. Obama.
At Mother Jones, Adam Serwer reported that the Obama administration "shares some of the blame for this result."
As a presidential candidate in 2008, then-Sen. Barack Obama praised the Boumediene decision. Earlier this year, his administration urged the Supreme Court not to take the Gitmo detainees' appeal, leaving in place legal standards that civil libertarians argue render Boumediene almost meaningless.
Gitmo detainees have now lost virtually every avenue - other than dying in detention - for leaving the detention camp.
The Supreme Court also declined on Monday to review a lawsuit filed by the American Civil Liberties Union (ACLU) on behalf of US citizen Jose Padilla, who said he was tortured while being held as an enemy combatant at a Navy brig in Charleston, South Carolina, between 2002 and 2006. Padilla was accused of planning to detonate a radioactive "dirty bomb" when he was arrested ten years ago in Chicago and later convicted on terrorism charges. He sued Bush administration officials, including former Secretary of Defense Donald Rumseld, claiming they violated his constitutional rights by implementing interrogation and detention policies that resulted in his torture. A US appeals court upheld a lower court decision and dismissed Padilla's lawsuit in January.
Ben Wizner, the ACLU's lead counsel on Padilla's case, said the Supreme Court's "refusal to consider" the lawsuit "leaves in place a blank check for government officials to commit any abuse in the name of national security, even the brutal torture of an American citizen in an American prison."