Boumediene V. Bush - Aftermath

Aftermath

On November 20, 2008, five Guantánamo detainees, including Boumediene, were ordered freed by Judge Richard J. Leon of Federal District Court in Washington. Judge Leon ordered the continued detention of a sixth, Belkacem Bensayah. In the decision, he wrote: "To allow enemy combatancy to rest on so thin a reed would be inconsistent with this court's obligation; the court must and will grant their petitions and order their release. This is a unique case. Few if any others will be factually like it. Nobody should be lulled into a false sense that all of the ... cases will look like this one."

On October 28, 2009, President Obama signed into law the Military Commissions Act of 2009, which amended the Military Commissions Act of 2006 and provided new rules for the handling of commission trials and commission defendants' rights.

In Boumediene v. Bush (2008) the Supreme Court had ruled for the first time that Guantánamo detainees were entitled to submit habeas corpus petitions directly to federal judges in Washington to determine whether the U.S. government had enough evidence to justify their continued open-ended detention without charge. The decision said in part:

“We do consider it uncontroversial … that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate he is being held.” The decision added: “The habeas court must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive’s power to detain.”

Following the Boumediene decision, federal judges began closely scrutinizing the quality of evidence offered by the government. Government lawyers started losing cases.

In 2010 the the federal appeals court began requiring federal judges to stop submitting the government’s evidence to such rigorous examination. The appeals court said judges must embrace a pro-government presumption that the Guantánamo evidence is reliable. Government lawyers had argued that such a presumption was justified because much of the evidence against the detainees was collected under battlefield conditions amid the “fog of war.” Specifically, the US appeals court required federal judges hearing Guantánamo cases to accord a special presumption of accuracy to US intelligence reports being used to justify continued detention.

This ruling by the appeals court generated criticism from attorneys representing detainees at Guantanamo as well as from within the appeals court. Lawyers said such a special presumption does not comply with the requirements set by the Supreme Court in its Boumediene decision.

“The court of appeals through its actions in this and other cases has created a regime in which Guantánamo habeas cases are becoming exercises in futility,” wrote the Washington lawyer S. William Livingston, in his brief on behalf of Adnan Farhan Abdul Latif. “The entire point of the habeas hearing is to force the government to justify its detention of people who have been neither charged nor convicted, not to allow it to skate by with presumption,” Livingston said.

The Appeals Court Judge David Tatel wrote a dissenting opinion in the Latif case. He said the appeals court’s requirement of a pro-government presumption in favor of US intelligence reports “comes perilously close to suggesting that whatever the government says must be treated as true.”

According to a study by legal scholars at Seton Hall University School of Law, between 2008 and July 2010, Guantánamo detainees won 56 percent of their habeas challenges. After July 2010, the win rate fell to 8 percent. That means that prior to July 2010, a federal judge agreed with 19 of 34 detainees claiming there was insufficient evidence to justify their open-ended detention at Guantánamo and ordered their release. After July 2010, a federal judge agreed with only 1 of 12 detainees. The change is attributed to rulings by the federal appeals court, which has taken up 19 of the Guantánamo habeas cases and reversed or remanded every case in which a federal judge ordered a detainee’s release.