THE SUPREME COURT leveled an extraordinary amount of power into the government’s hands on Monday. Lyle Denniston of SCOTUSBLOG lays it out.
One day before the fourth anniversary of its most important ruling during the government’s “war on terrorism,” the Supreme Court confirmed emphatically on Monday that it is not now inclined to further second-guess the government’s detention policy. Without one noted dissent, the Court turned down seven separate appeals by Guantanamo Bay prisoners, and refused to review an appeal by U.S. citizen Jose Padilla — one of the best-known prisoners captured as a terrorism suspect, who was complaining of torture during his detention in a Navy brig.
[...] In a string of decisions, not one of which the Supreme Court has been willing to review, the D.C. Circuit fashioned its own legal rules for Guantanamo cases, including at least two review methods that strongly favored the government’s evidence. Along the way, three judges on the D.C. Circuit — Senior Judges A. Raymond Randolph and Laurence H. Silberman, and Circuit Judge Janice Rogers Brown — have publicly and sharply criticized the Boumediene decision. The Supreme Court, turning its judicial cheek, has never responded to any of those criticisms, other than to leave the D.C. Circuit with virtually sole control of continuing litigation by Guantanamo prisoners and their volunteer lawyers.
Perhaps the most significant of the Circuit Court 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. (The petition was Latif v. Obama, 11-1027).
Boumediene v. Bush, which gave detainees at Guantanamo legal rights, lies in ash on the Court’s back room floors.