Today, at their weekly conference, the Court will again be presented with the opportunity to take up a series of cases regarding detainees at Guantanamo, and a related terrorism case. Other than Obama's fist pumping regarding recent victories in the war on terror- despite this Administration denying reality and dropping the "war" moniker- we do not hear too much about terrorism. With the economy dominating political debate, the fact remains that there are some real crazies still out there hell bent on attacking the United States in the name of "jihad" and Allah. We should give a daily thanks to the unnamed and unseen intelligence officers around the world going about their dangerous mission of keeping us safe.
Argue as one may about the policies of Bush regarding the war on terrorism, given the fact there has not been an attack on American soil since 9/11/01 is testimony to the efficacy of those policies. Further proof is that the Obama Administration has largely accepted and, in some cases, expanded on those policies. This is in direct contradiction to Obama's many statements on the campaign trail in 2008. At least in this area, if not domestic policy, the reality of the situation and the threat trumps campaign rhetoric.
In its landmark decision in Boumediene v. Bush, the Supreme Court stated that enemy combatants held at Guantanamo had a right to their day in court using a habeas petition. District Courts would decide whether the person could be held based upon the evidence against them. In several cases, the District Courts, using American criminal law procedures and guidelines regarding criminals, have found that the government did not meet some minimal threshold of proof. Singular facts are not enough; they must consider the totality of the evidence. As a result, they have ordered the release of the prisoners only to have those decisions overturned by the DC Circuit of Appeals, the appeals court that hears these cases. In almost all these cases, the DC Circuit has over-ruled the District Courts and allowed detention of these people.
Part of the problem originates in Boumediene itself. There, the Court failed to establish clear standards of review for either the District Courts or the appeals courts. In these cases now before the Court, petitioners are basically asking the Court to explain what was meant by "meaningful habeas rights." It is one thing to open the courts to these alleged and likely terrorists, but once you do, given the nature of the allegations and the source of the evidence, what standards and procedures and rules bring the level of the habeas proceeding to the level of "meaningful?"
In fact, most of these cases beg the Supreme Court to spell out what the standards of evidence should be. Each case has particulars that differ from the others, but there are common threads and this standards question is one example. The Uthman and Al-Bihani cases- two Yemini nationals captured abroad- directly beg the Court to spell out the standard of proof one way or the other. In both cases, based upon the particulars of the evidence and the totality of the evidence, the District Court ruled that the government failed to meet its threshold of proof. These cases are a little more technical than the others in that they question their detention under the Authorization for Force immediately after 9/11/01. Their argument is that they were not enemy combatants and not members of Al-Queda. One had the misfortune of being in the Tora Bora area...along with other known Taliban fighters fleeing into Pakistan. The other claims he was in an Al-Queda training camp but on his way to Chechnya.
Probably the best case, and if the Supreme Court takes any it would likely be this one, is the Latif case. In fact, the other cases were held up until this one was litigated and has now caught up to the others. Like the evidence against the other petitioners, much of it relies on intelligence reports and second hand infromation obtained against the defendants. Although the District Court may have access to the actual intelligence reports, using the normal criminal rules of evidence criteria, they concluded that the intelligence reports themselves are suspect. However, the appeals courts have granted great deference to these reports and the statements of other Guantanamo prisoners regarding these petitioners. Latif argues that if the habeas petition is to have "meaning," the accuracy of those reports- not a grant of deference- should be fair game. Additionally, even if a District Court found in the government's favor and ordered continued detention, he should be allowed to confront his accusers in court. Furthermore, like the other cases along with the Almerfedi case, they argue that DC Circuit Court of Appeals is abusing its appellate powers and becoming a trier of fact which is reserved to District Courts.
The Almerfedi case is interesting in that he was originally captured by Iranian authorities suspected of being an American spy. He was turned over to authorities in Afghanistan as part of a prisoner swap and ended up in Guantanamo. From suspected American spy to Guantanamo detainee.
Finally, the Al-Kandari case addresses these intelligence reports and statements by other detainees against him as being akin to hearsay evidence and must not be admitted as evidence against him. Specifically, he is asking whether de facto hearsay evidence should be admitted and if not, did the DC Court stray from the rules of civil procedure? As an analogy, the Court recently concluded that as regards American criminal law, when DNA evidence is admitted, the accused has a right to confront the lab technicians who conducted the tests. Here, Al-Kandari is stating he has a right to confront the raw intelligence sources in the reports lest it amount to hearsay.
In effect, the Supreme Court opened a can of worms when it decided Boumediene v. Bush. Cognizant of the fact that indefinite detention without charges offends American traditions and sensibilities, they carved out a decision without any guidance to lower courts. However, the grant of the habeas is to determine whether the government has grounds to hold a person. In some ways, it is akin to a grand jury where the rules are somewhat different than those of a criminal trial. Given the stakes here- the possible release of dangerous people who intend to harm Americans- there should be a grant of deference to the government. Perhaps, this is the point the DC Circuit Court is trying to get across to the District Courts.
This also points out the unintended consequences of Boumediene and granting habeas rights to suspected terrorists. The complexity of these cases should also serve as warning to the Holder Justice Department and any future attempt to try these people in civilian courts. From recent reports, even before a military tribunal, they created a circus atmosphere. One can only imagine what would happen in a civilian court.
The other case concerns Jose Padilla, an American citizen, who is suing government officials for promulgation of the terrorist detainee policies. Specifically, he is stating that a host of constitutional rights touching on practically every amendment in the Bill of Rights were violated by these policies. As such, he is stating what is called a Bivens claim against Donald Rumsfeld and others. However, the lower courts have concluded that government officials are entitled to qualified immunity. Personally, it is very doubtful the Court will take this case if for no other reason than being frivolous.
It should be noted in Obama's favor that his Administration is arguing that the Court take none of these appeals. They argue that the law as concerns detainees held at Guantanamo is evolving and, if not, these cases represent no issues that should concern the Supreme Court. If the Court decides to take any of the cases, the most likely vehicle would be the Latif case since it is the most encompassing case that would effect the others. If Roberts and company wanted to address the issue with some guidance- even if it does not favor these petitioners- they will take the case. Given the fact they usually defer to the government's view, the chances are less than 50/50. A refusal would simply maintain the status quo. If that status quo is erring on the side of caution thanks to the DC Court of Appeals, then the correct decision was made because the stakes otherwise are too high.