The federal government’s policy of detaining terrorism suspects – often challenged in court and sometimes set back by historic Supreme Court rulings – no longer seems to be under a constitutional cloud.
In a series of orders that the Court issued Monday, the Justices opted to stay on the sidelines of the ongoing dispute over the detainees at Guantanamo Bay, Cuba, and refused – once again – to be drawn into any review of claims that detainees have been tortured while being held by the U.S. military.
Although the Court, four years ago today, had created a constitutional right for Guantanamo prisoners to go to court to challenge their continued captivity, the effect of that ruling in Boumediene v. Bush has been sharply cut back by the federal appeals court in Washington.
And, on Monday, the Justices refused without comment to hear any one of seven separate new appeals by Guantanamo detainees who had attempted unsuccessfully to gain their release under that decision. So far, the appeals court has refused to approve any release order issued by a judge.
For the second year in a row, the Court has declined to take on any new Guantanamo case that was a sequel to its Boumediene decision in 2008, so the fate of the 169 foreign nationals who remain there remains caught up in a sometimes tense struggle between the Obama Administration and Congress, but without the Court acting as a referee.
It now appears clear that those at Guantanamo will gain no new legal rights from the Court, and thus no added hope for release at any point unless the Pentagon and the State Department, on their own, decide to transfer any individual out of the prison facility.
So far, the Court has not yet been asked to review the system of military trials going on at Guantanamo, but those will raise different constitutional issues from those the Justices have been passing up over the legality of detention without a trial.
In the latest round of appeals by Guantanamo captives, a common claim was that the D.C. Circuit Court of Appeals – the only civilian federal appeals court with authority to decide any Guantanamo case – has not given the detainees a fair chance to gain actual release from confinement that for some has now gone beyond ten years.
They asked the Justices to use the Supreme Court’s “supervisory power” to give the prisoners some chance to get free.
The Court did not dispose of the new cases after first examining them, but once it had pondered the seven new cases closely, apparently found no basis for stepping in to modify the pattern at the appeals court. That did not mean that the Justices actually approve of what has occurred, but only that they were not prepared to spell out any alternative approach.
However, the Justices took very little time to dispose of the latest case brought to them about the question of torture at the hands of U.S. military captors. Without hesitation, they chose to bypass the appeal of Jose Padilla, a U.S. citizen who is the only captive so far to be designated an “enemy combatant” by direct order of the president (in his case, President George W. Bush).
Padilla was arrested by U.S, agents as he returned from overseas in May 2002, and was held for a time as a potential witness in an investigation of the terrorist attacks of September 11, 2001. But, on President Bush’s order, he was shifted to a Navy jail facility in Charleston, S.C., where he remained for nearly four years.
Ultimately, Padilla, joined by his mother, Estela Lebron, sued former Defense Secretary Donald H. Rumsfeld and several high-level Pentagon civilian officials and military officers, claiming that they ordered or supervised an extensive program of torture and harsh interrogation techniques while he was held in Charleston. (He was later prosecuted on terrorism-related charges, and is now serving a lengthy prison sentence – a conviction he will also soon seek to challenge before the Supreme Court, with little hope of success.)
In Padilla’s detention case, unrelated to Guantanamo (he was never held there), the Fourth Circuit Court of Appeals in Richmond issued a sweeping decision concluding that the federal courts simply have no power to give those who claim to be victims of torture a new right to sue military officials. Creating such a right to sue, it said, “is more appropriately for those who write the laws, rather than for those who interpret them.”
In denying a hearing to Padilla on Monday, the Supreme Court followed a pattern of non-involvement in any case involving the conditions of confinement of terrorism suspects.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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