SCOTUS Refuses to Review Gitmo Prisoner Petition

On April 2, the U.S. Supreme Court, in a split decision, declined to hear appeals from 45 detainees at America's Guantanamo Bay prison camp in Cuba. Their lawyers had hoped to challenge the constitutionality of a new law in the ongoing saga of the men who have been imprisoned there without charges for more than five years. The law strips federal judges of the authority to hear challenges to the open-ended confinement of foreign citizens held as enemy combatants.

The court's action lets stand a ruling by a lower court that upheld a section of the Military Commissions Act passed by Congress in 2006. Usually, the Supreme Court makes no comment when it turns down an appeal. But in this case, the court issued two separate opinions accompanying the one-sentence order denying the two petitions. One represented the view of three justices who felt that the Court should hear the men's cases; the other said the detainees lawyers could go back to a lower court to exhaust all their remedies before the Supreme Court would rule on the matter.

Between The Lines' Melinda Tuhus spoke with Beth Gilson, an attorney working as co-counsel with the Center for Constitutional Rights, which is overseeing all the Guantanamo cases. She is representing two Muslim men from the Uighur ethnic group in China, who are still being held, despite the release of other Uighurs arrested under the same circumstances after U.S. officials determined they were not enemy combatants. Gilson explains the relevant history of the Guantanamo prisoners, and what this latest Supreme Court decision might mean for the detainees' efforts to be granted a fair trial.

BETH GILSON: Following the passage of the Military Commissions Act, the cases that were languishing in the Court of Appeals, the Lakhdar Boumediene and Khaled A.F. al Odah cases which basically had reflected a split of the two judges, one judge said these men had the right to bring habeas, the other judge said that they didntwell those cases were languishing in the D.C. Court of Appeals, and after the Military Commissions Act was passed, the D.C. Court of Appeals asked the lawyers to please brief the issue of where these cases stood following passage of the Military Commissions Act. Finally, a decision came out in early spring of this year in which the District Court of Appeals held that these men had no rights under the MCA to bring habeas cases, and all 400 or so cases were to be dismissed. But they did not send down an order dismissing them; that was just their holding. What happens is, after they make a ruling in such a case. they would issue a mandate to the district courts dismissing the cases. The

BETWEEN THE LINES: Just remind our listeners about the earlier Supreme Court decision in favor of the detainees.

BETH GILSON: The Supreme Court held in the Shafiq Rasul case that these men had the right to bring habeas cases. So hundreds of habeas corpus cases were filed on behalf of men, sometimes John Doe habeas petitions nobody knew their names, the government refused to release their names, and little by little the names came out. Those cases started happening after 2004 when the Rasul decision came down. And when those cases hit the district court the D.C. district the judges had an opportunity to rule on motions to dismiss that were filed by the Dept. of Justice. The two judges who were hearing these cases split; one judge, Joyce Hens Green, did not grant the motion to dismiss and said these men had a right to bring a habeas case; the other judge, Judge Richard Leon, held that the men did not have a right and dismissed the cases in his court. Those cases both went up on appeal together, as consolidated. Those are the Boumediene and al Odah appeals. And those languished for years, until after the MCA was pas

BETWEEN THE LINES: So, Beth Gilson, what did the D.C. Circuit Court say?

BETH GILSON: The D.C. Circuit Court, which now had before it these two conflicting decisions, the Circuit Court said to the lawyers, brief the issue of how the MCA affects these pending cases. Meanwhile, they should have ruled on them years earlier; habeas is supposed to be a swift process, and these men have been in prison going on six years.

BETWEEN THE LINES: So whats the significance of this latest Supreme Court decision?

BETH GILSON: The Circuit Court denied the appeals, saying the MCA trumped the right to habeas corpus. These went up on appeal; the Supreme Court has to grant certification to any case it plans to hear. The Supreme Court denied certification: Three of the justices would have allowed certification, and two of the justices, John Paul Stevens and Anthony M. Kennedy, wrote a decision saying, We are not going to grant certification at this time, but these men can go back and exhaust their remedies, meaning they can bring cases under the Detainee Treatment Act which was passed in 2005, which says that the D.C. Circuit Court could review the combatant status review tribunals to see whether the military followed its own rules. Under the DTA, they can go back and say, Bring a new case to the D.C. Circuit Court, which has already held against them, and ask the D.C. Circuit Court to review the combatant status review tribunal that determined years ago that these men were enemy combatants?

BETWEEN THE LINES: How much of a setback is this? Do you think the detainees at Guantanamo can still have any hope of getting a fair day in court?

BETH GILSON: It is a setback, but certainly by giving them a chance to come again, to bring it back, they are giving them a second bite of the apple. So basically, this is just another chapter in the governments failure to provide a meaningful review for these men.

For more information, contact the Center for Constitutional Rights at (212) 614-6464 or visit their website at http://www.ccr-ny.org

Related links:

"Voices From Iraq 2007: Ebbing Hope in a Landscape of Loss," ABC News National Survey of Iraq, March 19, 2007

Melinda Tuhus is a producer of Between The Lines, which can be heard on more than 40 radio stations and in RealAudio and MP3 on our website at http://www.btlonline.org. This interview excerpt was featured on the award-winning, syndicated weekly radio newsmagazine, Between The Lines for the week ending April 27, 2007. This Between The Lines Q&A was compiled by Melinda Tuhus and Anna Manzo.

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