76 | Towards the Closure of Guantanamo
a.
Challenges to the legality of detention
163. Since Boumediene, federal courts have heard more than one hundred habeas
petitions filed by Guantanamo detainees involving different categories of challenges.
Legality of detention is at the heart of most of those challenges. 189 Between October
2008 and July 2010 the D.C. District Court examined 38 habeas petitions brought by
Guantanamo detainees, and concluded that the Government had failed to establish
that the prisoners were involved with Al-Qaeda or the Taliban. A number of those
successful petitions, however, were reversed or vacated by the D.C. Circuit Court,
particularly since mid-2010 when the appeals court in Al-Adahi v. Obama
overturned a grant of habeas corpus and criticized the decision for “having tossed
aside the government’s evidence, one piece at a time.” 190
164. The decision in Al-Adahi v. Obama marked an important change in approach. A
report issued by Seton Hall University Law School’s Center for Policy and Research
examined the outcomes of habeas review for Guantanamo detainees before and
after the July 2010 grant reversal in Al-Adahi v. Obama. 191 It examined 46 of the 63
cases that resulted in opinions between November 2008 and October 2011 (it
excluded the Uighurs cases because the district court did not have to make factual
findings given that the government conceded their case). According to the findings
of the research, after Al-Adahi the practice of careful judicial fact-finding was
replaced by judicial deference to the Government’s allegations. The report points
out that before Al-Adahi detainees won 59% of the habeas petitions and courts
rejected the government’s factual allegations 40% of the time. However, after that
decision, detainees won 8% of the petitions and the courts rejected 14% of the
government’s factual allegations. The report concludes that “the shifting patterns of
lower court decisions could only be due to an appellate court’s radical revision of
the legal standards thought to govern habeas petitions.”
165. In January 2010, a D.C. Circuit panel held in Al-Bihani v. Obama that the procedural
protections afforded in habeas cases involving wartime detainees do not need to
mirror those provided to persons in the traditional criminal law context.
Accordingly, a lower procedural standard may exist as “national security interests
are at their zenith and the rights of the alien petitioner [are] at their nadir.” 192 In a
decision adopted on December 14, 2012, in Khairkhwa v. Obama the D.C. Circuit
Court held that the AUMF did not require the Government to show that the detainee
had engaged in hostilities or would pose a danger to the U.S. if released. Because
189
190
191
192
Congressional Research Service, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court,
February 3, 2010.
Al-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010).
Seton Hall University School of Law, Center for Policy & Research, No Hearing Habeas: D.C. Circuit Restricts
Meaningful
Review,
May
1,
2012.
Available
at:
http://law.shu.edu/ProgramsCenters/PublicIntGovServ/policyresearch/upload/hearing-habeas.pdf
Congressional Research Service, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court,
February 3, 2010, p. 47, citing In re Guantanamo Bay Detainee Litigation, No. 08-0442, 2008 WL 5245890,
Order, at *1 (D.D.C., December 16, 2008)(Hogan, J.).
Organization of American States | OAS
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