62. The Supreme Court and Guantánamo

22 years after it opened, and with 30 men still in custody there, a reflection on the Court's modest, then aggressive, then passive approach to the cases of non-citizens detained at Guantánamo

Jan 15, 2024

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday (including holidays like today), I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already):

On the Docket

The Court was busy last week, although there weren’t a ton of headlines. After a relatively mundane Order List on Monday and the first three days of January arguments, the Court on Friday added five more cases to its docket—the most significant of which is almost certainly a dispute over whether local governments can constitutionally prohibit public camping by those who lack “access to adequate temporary shelter.” Per my post from last week, it’s not yet clear whether any/all of the five granted cases will be argued this term or next. My best guess is that one or two might be squeezed onto April’s calendar, but the rest will be argued in October.

Perhaps the biggest news Friday was the lack of news from the Court in the escalating dispute between the federal government and Texas over Texas’s efforts to restrict the Border Patrol from removing razor wire along the U.S.-Mexico border in Eagle Pass. As I noted last week, the Fifth Circuit in December had issued a remarkable (and deeply problematic) injunction pending appeal purporting to bar the federal government from removing the razor wire except in exceptionally narrow circumstances. Matters ratcheted up on Thursday, with Texas officials taking over a local park in a way that, per a highly unusual overnight filing from the Solicitor General, effectively cut off the federal government‘s access to a stretch of the international border. Among other things, this move apparently prevented federal officials from rescuing a woman and her two children who drowned while trying to cross the Rio Grande (with at least some claiming that Texas officials not only blocked federal access, but refused to attempt any rescue of their own). Suffice it to say, this dispute is even more significant now than it was last week. And one has to imagine that the Court will try to resolve at least the federal government’s specific application with some dispatch.

The Court also received an emergency application last week from Michigan’s Independent Citizens Redistricting Commission, seeking to stay a three-judge district court’s ruling, in a lawsuit brought by Black Detroit residents, that 13 proposed state house and senate district maps were unconstitutional racial gerrymanders. According to CNN (although not yet reflected on the docket), Justice Kavanaugh has ordered the plaintiffs to respond by Wednesday.

Finally, we expect a regular Order List tomorrow (Tuesday) at 9:30 ET, with arguments Tuesday and Wednesday to round out the January calendar. But there’s no indication that any rulings in argued cases are expected this week, so the wait for the Court’s second ruling of the term continues.

The One First “Long Read”: The Court and GITMO

Lost in a busy news cycle last week was Thursday’s 22nd anniversary of the opening of the U.S. military detention facility at Guantánamo Bay, Cuba—where, even today, 30 men remain in custody (one who is serving a military commission sentence; 10 who face pending military commission proceedings; and 19 who are being held without any charges).

There’s a lot to say about how we got from January 11, 2002 to today—and how there are still 30 detainees at Guantánamo, with no reason to expect that number to go down significantly anytime soon. But I thought I’d use this particular anniversary to remind folks of the role the Supreme Court played in Guantánamo cases—at least for the first decade.

It’s an interesting historical story unto itself, but it also reflects a broader, deeper debate about the core purpose of the “Great Writ” of habeas corpus—whether it’s the protection of individual rights (in which case, the Guantánamo cases are not a happy story) or the preservation of a meaningful judicial role vis-a-vis the other institutions of government (in which case, the Court’s behavior seems both more successful and much easier to defend).

Tentative Assertions of Judicial Review: January 2002–June 2004

For a time, it looked like the Supreme Court might stay out of cases arising out of post-September 11 counterterrorism policies altogether. As I summarized in a 2009 article, the Court denied certiorari in over a dozen high-profile terrorism disputes that reached it in 2002 and 2003, including several that presented circuit splits or other issues that would ordinarily have been ripe for the justices’ consideration. And the Court even denied certiorari in the first Guantánamo case to reach it—Coalition of Clergy v. Bush—before surprising many observers by voting to grant certiorari to review the D.C. Circuit’s decision in Rasul, which had held that the federal courts categorically lacked habeas jurisdiction over Guantánamo. Even though that lower-court ruling created no circuit split (at least, until after cert. was granted), and even though the government adamantly opposed certiorari, the justices granted review in Rasul on November 10, 2003, and set it for argument on April 20, 2004.

At first, the Guantánamo habeas cases were focused almost exclusively on subject-matter jurisdiction—whether the federal courts had the power to even hear challenges by the detainees to their confinement. Those efforts culminated in Rasul v. Bush—which was decided on June 28, 2004 (the same day as the decisions in the U.S. citizen “enemy combatant” cases, Hamdi v. Rumsfeld and Rumsfeld v. Padilla).

Writing for a 6-3 majority, Justice Stevens held that the federal courts did indeed have statutory jurisdiction over habeas petitions from Guantánamo detainees–opening the door to a flood of litigation from the detainees (and putting significant pressure on the government to improve the conditions at the detention facility, to institute at least some review procedures—the Combatant Status Review Tribunals—and to release those detainees whose cases it could not defend even before those bodies). On the day Rasul was decided, 597 men were still detained at Guantánamo; one year later, that figure was down to 518; by the end of June 2006, that number was down to 448, and it was under 270 by June 2008. It’s hard to believe that the specter of meaningful judicial review, which the Bush administration had fought against tooth-and-nail up through the June 28 rulings, didn’t have something to do with the whittling down of the detainee population.

In hindsight, the 2004 decisions represented only relatively modest setbacks for the government. After all, the Bush administration won on the key detention authority question in Hamdi; avoided a loss in Padilla; and only lost on statutory jurisdiction (which Congress subsequently, albeit unconstitutionally, tried to repeal) in Rasul. But the real lesson from the June 28 trilogy was the Court’s unbridled assertion of judicial power—that these were disputes to be decided by the courts, first and foremost. Thus, it was the open effort of the Bush administration to exclude the courts that, in the end, may have helped to provoke their involvement. And once they were involved, the prospect of judicial review had a profound impact on the conduct of the executive—not necessarily in the substance of these judicial decisions, but in policy changes behind the scenes undertaken to avoid subsequent litigation. After all, if the government knows that its conduct will be subject to judicial oversight, it’s going to be a lot more careful and demanding about what it is doing. One can only imagine what would have happened if, in the June 28 trilogy, the Court had instead opted to remain on the sidelines.

More Aggressive Judicial Review: July 2004–June 2008

On April 28, 2004—the day of the oral arguments in Hamdi and Padilla—CBS News first published leaked photographs of U.S. torture of Iraqi detainees at Abu Ghraib. The specter of torture—and the leaking later that summer of controversial internal Justice Department memoranda appearing to defend its legality—may have helped to push the courts to be somewhat more aggressive in the aftermath of the June 28 trilogy.

But the real trigger for the Supreme Court’s second Guantánamo case was the effort by the Bush administration to stand up “military commissions” to prosecute at least some of the detainees—including Salim Hamdan, a Yemeni detainee who was the first charged defendant. (Note: I was part of the team of lawyers who represented Hamdan.) A D.C. district court in November 2004 held that the commissions were unlawful, only to have a D.C. Circuit panel reverse in the summer of 2005. But even though there was no split, and even though Hamdan’s trial hadn’t happened yet, the Court agreed to review the case in November 2005—and ruled, in June 2006, that the commissions were indeed unlawful.

Once again, the Court avoided major constitutional holdings. Each of the grounds on which Hamdan struck down the military commissions was statutory. But both Justice Stevens’s opinion (which was for a 5-3 majority on most issues, and a 4-3 plurality on the rest)1 and Justice Kennedy’s concurrence pushed back a bit more aggressively against some of the Bush administration’s arguments. For instance, an important footnote to the Stevens opinion appeared to pour cold water on the Bush administration’s efforts to argue that the Commander in Chief Clause overrode various acts of Congress that arguably constrained the President’s war powers. And the Court also held, unequivocally, that “Common Article 3” of the Geneva Conventions applied to the conflict between the United States and al Qaeda—repudiating the central theory on which the Bush administration’s approach to the detainee cases had been predicated (that there was a gray area of armed conflicts to which the ordinary rules did not apply). Once again, the Court was asserting its role, but it also started offering more specifics about what it thought the government could—and could not—do.

The Common Article 3 holding, for instance, appeared to precipitate the demise of “black sites,” with the Bush administration announcing their closure (and the transfer of black-site detainees) to Guantánamo later that summer. And although Congress responded to Hamdan by trying to provide the very statutory authorization for military commissions that the Court had found lacking, it also tried to prevent the Supreme Court from reviewing any more Guantánamo habeas petitions—stripping the jurisdiction of all federal courts in most Guantánamo cases in section 7 of the Military Commissions Act of 2006.

This last move finally provoked the Court’s most aggressive decision—the June 2008 ruling in Boumediene v. Bush. In Boumediene, a 5-4 majority held that the Suspension Clause of the Constitution “has full effect” at Guantánamo, and then held that the circumscribed administrative and appellate review provided by the Military Commissions Act failed to provide the type of meaningful review that the Suspension Clause required. For only the second time in its history, the Court struck down an act of Congress that purported to strip federal jurisdiction. Although Boumediene was hailed as a landmark for protecting the rights of detainees, it was, on its own terms, a landmark for protecting the role of the federal courts in deciding whether the detainees had rights (and whether those rights had been violated).

After Boumediene

With Boumediene finally settling the jurisdictional question, the Guantánamo cases finally turned toward the merits in the summer of 2008. The result was a remarkable body of procedural, evidentiary, and substantive law fashioned by federal courts over 60+ detainee cases. Two major themes emerged from the post-Boumediene cases. The first was significant and sustained hostility from a majority of the judges on the D.C. Circuit to the entire project of Guantánamo litigation, reflected in both the substance of the court of appeals’ decisions (which I categorized and criticized at length in a 2011 article) and the rhetoric of many of its judges. One, for instance, chastised the Court for its “defiant—if only theoretical—assertion of judicial supremacy” in Boumediene.2

The second theme to emerge was the Supreme Court’s lack of interest in reviewing any of those procedural, evidentiary, or substantive rulings. To this date, the justices have granted certiorari in only one Guantánamo detention case since Boumediene—in Kiyemba v. Obama, a case in which the D.C. Circuit had held that it lacked the power to order the government to release into the United States a group of Uighur detainees who had prevailed in their habeas petitions. (The Court also resolved a state secrets case involving a detainee, but without addressing any substantive feature of his detention.) Even in that case, though, the Court ultimately ducked once the government found other countries willing to take the Uighurs—that is, once the dispute no longer implicated such a fundamental question of judicial power.3

Meanwhile, the Court has refused to take any case raising detention questions on the merits—including the substantive standard for detention; the evidentiary burden on the government; the relevance vel non of international law; whether detainees are entitled to notice and a hearing prior to their transfer to a third-party country; and various other key procedural issues. In 2016, the Court turned away two major military commission appeals—one about whether the post-MCA commissions could constitutionally try offenses not recognized as international war crimes; and one about whether, as had been true in Hamdan, federal civilian courts could and should resolve those kinds of jurisdictional questions before the trial (a divided D.C. Circuit panel had said no). And the Court has refused to consider claims by former Guantánamo detainees that they were mistreated while detained, leaving intact a D.C. Circuit decision that held in the alternative that the defendants were entitled to qualified immunity and that the plaintiffs had failed to state a viable cause of action.

Taken together, these decisions have been widely read (including by judges on the D.C. Circuit) as reflecting an unwillingness on the justices’ part to do anything with respect to Guantánamo other than assert their jurisdiction. Even when lower-court judges went out of their way to stress that they were “disquieted by [their colleagues’] jurisprudence,” the Court stood idly by—with only solo opinions respecting two of those denials by Justice Breyer suggesting any contrary thoughts.

Some of the Court’s keenest observers, like the New York Times’ Linda Greenhouse, chalked these denials of certiorari up to “Gitmo fatigue.” My own view, for whatever it’s worth, is that the Court had done what the majority (or, at least, Justice Kennedy) had wanted it to do—it had ensured that the federal courts, in general, would have the final say in the Guantánamo cases. But the Court seemed content, at least so long as Justice Kennedy was the median vote, to let lower federal courts have that say. Habeas as an instrument of judicial power had been vindicated, even if the courts had done very little to resolve the scope of the detainees’ rights. (Among other things, this sets up an interesting contrast with the current Court’s hostility to even the power of federal habeas courts in post-conviction cases.)

***

The upside of all of this is that everyone now agrees that federal courts will have the last word on the legality of the Guantánamo detentions and, if they ever happen, convictions by the military commissions. But in January 2024, 22 years after the first detainees were sent to Guantánamo, those courts still have not resolved such basic questions as whether the detainees are protected by the Due Process Clause at all (see this fractured en banc D.C. Circuit ruling from last year), or whether the jurisdiction of the military commissions is limited to violations of the international laws of war. By asserting a robust judicial role without pushing for the resolution of these threshold questions, the Supreme Court ensured that Guantánamo would be subject to the rule of law in the abstract, but not to any particular set of substantive legal constraints. In that respect, the Court may bear at least some of the responsibility for the continuing limbo facing many—if not most—of the 30 detainees who are still there today.

SCOTUS Trivia: Why Always D.C.?

Although the Military Commissions Act gives the D.C. Circuit exclusive jurisdiction over appeals from the military commissions, no statute channels all of the detainee cases into the D.C. federal courts. Instead, the reason why every Guantánamo case has ended up in D.C. is because of an obscure but significant procedural ruling the Court handed down the day after it decided Rasul in 2004.

On June 29, 2004, the Court issued a “GVR” in a case called Bush v. Gherebi—in which the Ninth Circuit had held that federal courts in California could entertain habeas petitions from Guantánamo detainees. In Gherebi, the Court granted the government’s cert. petition, vacated the Ninth Circuit’s decision, and remanded for further consideration—not in light of Rasul, but in light of Padilla (where the Court had held that a detainee had filed in the wrong court).

The not-so-subtle message was that a majority of the justices didn’t think California was a proper venue for Guantánamo habeas petitions—even though nothing in Rasul suggested as much. The Ninth Circuit got the message—and transferred Gherebi to the D.C. district court. Ever since then, D.C. has been the de facto exclusive venue for Guantánamo cases—and all because of an unexplained GVR issued by the Supreme Court in 2004.

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Chief Justice Roberts was recused, as he had been on the three-judge D.C. Circuit panel that had rejected Hamdan’s appeal.

As my 2011 article notes, most of the aggressively narrow readings of Boumediene came from panels in which a combination of Judges Brown, Kavanaugh, Randolph, and Silberman formed a majority.

After the D.C. Circuit reaffirmed its original holding on remand, the case came back to the Supreme Court. This time, with the recently confirmed Justice Kagan recused, the justices denied certiorari. Justice Breyer (in a statement joined by Justices Kennedy, Ginsburg, and Sotomayor) explained that he voted to deny certiorari only because, “Under present circumstances, I see no Government-imposed obstacle to petitioners’ timely release and appropriate resettlement.”

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