Bad judgment on Guantanamo

Four years ago, the Supreme Court did its duty as a guardian of the Constitution by ruling that Congress couldn’t prevent inmates at Guantanamo Bay from filing petitions for habeas corpus, a venerable feature of Anglo-American law that allows prisoners to challenge their confinement in court. This week, the justices walked away from that responsibility by refusing to review lower court rulings that have narrowed the protections of its 2008 decision to the vanishing point.

In granting inmates a right to habeas in Boumediene vs. Bush, the court sternly corrected an overreaching executive and a compliant Congress. But on Monday it refused to engage in similar scrutiny of the U.S. Circuit Court of Appeals for the District of Columbia, which has adopted a scandalously cramped interpretation of Boumediene. Because the Obama administration has determined that more than 40 detainees are too dangerous to be tried even before military commissions, meaning that habeas is their only means of legal redress, the effect of the appeals court’s hard line is to undermine even that last resort.

Especially deserving of review was a petition by Adnan Latif, a Yemeni who was captured near the border between Afghanistan and Pakistan in December 2001. Latif said he had traveled to Pakistan to seek medical treatment; the U.S. government insisted that he was a fleeing Taliban fighter.

A federal district judge ruled in Latif’s favor, concluding that, because of possible transcription and other errors, a government report of an interview with him was “not sufficiently reliable to support a finding by a preponderance of the evidence that Latif was recruited by an Al Qaeda member or trained and fought with the Taliban.” Overturning that finding, the D.C. Circuit ruled that the government’s evidence was entitled to “a presumption of regularity” and that lower court judges should require that a detainee’s “self-serving account must be credible — not just plausible.” In her opinion, Circuit Judge Janice Rogers Brown (a former California Supreme Court justice) approvingly cited dissents in the Boumediene case and referred snidely to its impracticality and “airy suppositions.”


More than three years after President Obama promised to close Guantanamo, the facility remains in operation, with a population of 169 (down from nearly 800). Beginning in 2004, the Supreme Court has ordered Congress and the presidency to provide due process to inmates, Americans and foreigners alike, yet progress toward that objective has been sluggish and grudging. The result is justice deferred for inmates and a continued embarrassment for the United States.

Dissenting in the Latif case, Judge David Tatel described the decision as an “assault on Boumediene.” At the very least, the ruling called for a full-fledged review by the Supreme Court. Instead, the justices have abdicated their authority and devalued their own achievement.