The US Supreme Court refused on Monday to take up three cases examining whether the federal appeals court in Washington, D.C., has struck the proper balance while deciding whether terror suspects held at Guantánamo Bay are being lawfully detained or must be released.
The action, announced without comment, is a victory for government lawyers and the Obama administration, which has aggressively sought to limit the rights and protections available to Guantánamo detainees.
At the same time, the high-court action is a major setback for many detainees at Guantánamo and the small army of volunteer lawyers who have worked for years to expand the rights and protections of detainees.
In 2008, the Supreme Court established for the first time in a case called Boumediene v. Bush that Guantánamo detainees enjoy a constitutional right to challenge the legality of their detention by filing habeas corpus petitions in federal court. But the justices left it to the lower courts to establish which legal standards and procedures should apply in such cases.
The three rejected appeals – Al-Bihani v. Obama (10-7814), Al Odah v. US (10-439), and Awad v. Obama (10-736) – are among the first cases to emerge from the federal appeals court. They offered the Supreme Court justices an opportunity to assess whether the lower courts have struck the proper balance.
Fifty-nine decisions have been issued by federal judges in habeas corpus cases filed by Guantánamo detainees. The judges ordered 38 detainees released and denied release for 21.
The Washington appeals court has issued decisions in 10 of those cases. In four decisions, the appeals court reversed orders that the detainee be set free. In four others, it upheld rulings that the prisoner continue to be detained. In two, the court sent the case back to the federal judge for reconsideration of an issue.
Overall, the appeals court has yet to issue a ruling upholding the release of a Guantánamo detainee.
In the process, the appeals court has issued a series of binding, precedent-setting decisions that lawyers for the detainees say stack the deck against Guantánamo prisoners – many of whom could spend the rest of their lives at the terror prison camp without being charged with a crime or afforded a chance to defend themselves in a trial.
In a string of decisions, the US Court of Appeals for the District of Columbia Circuit has:
• Established that the president has broad authority to detain terror suspects at Guantánamo – authority that is not limited by international law of war principles, including the Geneva Conventions.
• Expanded the potential pool of overseas detainees by ruling that the government is authorized to imprison not only individuals who participated in the 9/11 terror attacks or who harbored such persons, but also anyone who helped those who harbored persons involved in the 9/11 attacks.
• Embraced a permissive standard of evidence in Guantánamo cases, allowing the government to rely on hearsay evidence that normally would be excluded from a federal trial.
• Allowed a permissive standard of proof in Guantánamo cases, establishing that the government need only prove its case for continued detention of a detainee by a preponderance of evidence, the lowest standard available.
Lawyers for the three detainees at issue filed appeals asking the Supreme Court to reverse the appeals court and establish more-robust protections in detainee cases.
They said higher standards are justified in part because many detainees have been held for nearly a decade without a trial and face the prospect of remaining in US custody for the rest of their lives.
The Obama administration, like the Bush administration before it, supports the standards and procedures established by the appeals court. “The lower courts have properly performed the task that this court assigned them in Boumediene v. Bush,” wrote Deputy Solicitor General Edwin Kneedler in his brief urging the court to dismiss the appeals.
“Nothing in the Constitution or any other source of law requires the application of different standards or procedures,” he said.
The stories of each of the three detainees share common elements, but each story features important differences as well.
A cook for Taliban backers
Ghaleb Nassar al-Bihani is a Yemeni national who was captured in Afghanistan by the Northern Alliance and turned over to US forces in early 2002. He was a cook for the 55th Arab Brigade, a paramilitary force of volunteers who went to Afghanistan to help the Taliban government fight the Northern Alliance.
Mr. Bihani’s lawyers say he was issued a firearm, but that he never used it. They argue that he did not take up arms against the United States, played no role in the 9/11 attacks, and did not harbor or assist those who did. Instead, they say, he was present in Afghanistan to help the Taliban, not Al Qaeda.
Now that the conflict between the Taliban and the US is over, they say, he should be released from Guantánamo. They add that the US government has provided no evidence that Bihani poses a threat to US security.
In rejecting Bihani’s petition, the appeals court said that anyone assisting the Taliban was also, by extension, assisting Al Qaeda and could be detained as a terror suspect at Guantánamo indefinitely.
Yemeni national in Afghan hospital
The second detainee, Adham Mohammed Ali Awad, is a Yemeni national who traveled to Afghanistan in September 2001. The government maintains that he traveled there to obtain weapons training at an Al Qaeda camp and join the fight against US forces. Mr. Awad’s lawyers say he went to Afghanistan to visit another Muslim country for a few months before returning home.
In November of that year, Awad was seriously wounded during an air raid near Kandahar. He was taken to a civilian hospital where his right leg was amputated.
A month later, while Awad was still recovering, a group of Al Qaeda fighters took over a wing of the hospital. Opposing US and Afghan forces surrounded the wing and laid siege.
One of the Al Qaeda fighters was captured during the siege. During interrogation, he provided the names of eight individuals in the hospital wing, including the name Abu Waqqas. He told his interrogators that Abu Waqqas had lost his right leg.
Four of the names provided by the fighter were listed on a document that US forces had allegedly recovered from an Al Qaeda training camp. This list included the name “Abu Waqas.”
Eventually, the Al Qaeda fighters surrendered Awad to the opposing forces because he needed additional medical attention.
After being treated, he was transferred to Guantánamo as a suspected enemy combatant.
In his habeas petition, Awad’s lawyers argued that he was never a member of Al Qaeda. They said he was a civilian who was gravely wounded and ended up in the same hospital wing as the Al Qaeda fighters.
His lawyers challenged the use of hearsay intelligence and interrogation reports and the low standard of proof. The courts ruled against Awad, finding “more likely than not” that he knew the Al Qaeda fighters in the hospital and joined them during the siege.
Teacher captured at Pakistan border
The third detainee, Fawzi Khalid al-Odah, traveled to Afghanistan in August 2001 from Kuwait. He was a teacher and says he went to Afghanistan to perform charity work for two weeks before the start of the new school year in Kuwait.
The US government says he went to Afghanistan to join the forces of Al Qaeda and the Taliban. He was captured trying to cross the border into Pakistan in November or December 2001 with a large group of men, many of whom were armed. Mr. Odah was carrying an AK-47 assault rifle at the time.
He was turned over to US forces and transferred to Guantánamo in early 2002.
Odah says he spent his time in Afghanistan teaching, not fighting. The government says he admitted attending a training camp and that he was part of a group of 150 men in the Tora Bora region during the fighting there.
In addition, according to the government, Odah’s passport, which was left with an acquaintance in Afghanistan, was later recovered at an Al Qaeda safehouse in Karachi, Pakistan.
A federal judge dismissed Odah’s petition for release, finding it was more likely than not he had become part of the forces of the Taliban and Al Qaeda. The appeals court upheld the decision.