WASHINGTON -- The Supreme Court on Monday denied review in the cases of several Guantanamo Bay detainees, likely closing off for good the prospect of continued oversight of the executive branch's handling of the prison camp that had been held out in a landmark decision four years ago.
The cases came up from the U.S. Court of Appeals for the D.C. Circuit, whose judges at times have been openly contemptuous of the Supreme Court's June 2008 ruling in Boumediene v. Bush. The D.C. Circuit judges have refused to order the release of a single detainee brought to Guantanamo in the months and years following al Qaeda's Sept. 11, 2001, attacks in New York and Washington, D.C.
In one decision from April 2011, Judge Laurence Silberman, a prominent conservative on the D.C. Circuit, blasted the justices for their "defiant -- if only theoretical -- assertion of judicial supremacy" over the executive branch in Boumediene. In the latter case, Justice Anthony Kennedy, writing for himself and the court's four liberals, had guaranteed detainees access to the writ of habeas corpus to obtain "meaningful review of both the cause for detention and the Executive's power to detain."
"I doubt any of my colleagues will vote to grant a petition if he or she believes that it is somewhat likely that the petitioner is an al Qaeda adherent or an active supporter" unless the Supreme Court were to demand otherwise, Silberman wrote last year. That, he said, the Supreme Court is "unlikely to do -- taking a case might obligate it to assume direct responsibility for the consequences of Boumediene v. Bush."
Indeed, since the detainee cases began reaching the D.C. Circuit in 2010, the Supreme Court has consistently refused review -- perhaps because Justice Elena Kagan's previous involvement in the cases as solicitor general required her recusal, leaving open the chance of a 4-4 deadlock over whether the detainees deserved better treatment than the D.C. Circuit had been willing to provide.
Justice Kagan, however, did not recuse herself from Monday's denials. In one of those cases, Latif v. Obama, the D.C. Circuit had given the Supreme Court another dose of defiance by ridiculing "Boumediene's airy suppositions" of detainees' right to the writ of habeas corpus. So goaded and now fully staffed, the Supreme Court has nevertheless signaled its satisfaction with the D.C. Circuit's vanishingly narrow interpretation of Boumediene by refusing to answer, per Latif's petition to the justices, "whether the court of appeals' manifest unwillingness to allow Guantanamo detainees to prevail in their habeas corpus cases calls for the exercise of this Court's supervisory power."
The cases would have been the first time the issue of Guantanamo reached the high court since President Barack Obama took office. Obama had vowed to close the facility, but relented in the face of congressional opposition and a shift in priorities to passing health care reform. In March 2011, he ordered the resumption of military commissions at the prison.