An academic analysis finds that the federal appeals court in Washington has effectively blunted a 2008 Supreme Court decision giving terrorist suspects held at the Guantanamo Bay naval brig the right to contest their confinement.


The study by Seton Hall University law professors says the U.S. Court of Appeals for the District of Columbia Circuit has largely blocked efforts by the detainees to win their freedom by ordering lower court judges to take a more accepting view of the government's evidence justifying their continued imprisonment.


The report says that since a key appeals court decision in 2010, only one of the dozen detainees whose cases were heard by federal trial court judges in Washington won a court order for his release. And that order was later overturned by appellate judges.


In the past two years, "a clear pattern has now emerged: Almost no detainees will prevail at the district court level, and if any do, the D.C. Circuit will likely reverse the decision to grant them relief," the report said.

Seton Hall Law Report Reveals Courts Deny GTMO Habeas Relief and Fail to Reject Government Allegations at Unusually High Rates Since Appeals Court Decision in 2010

Seton Hall University School of Law’s Center for Policy & Research has issued a report: “No Hearing Habeas: D.C. Circuit Restricts Meaningful Review.”

Within the context of the U.S. Supreme Court’s landmark 2008 decision in Boumediene v. Bush, which demanded a robust and “meaningful review” of the legality of the Guantanamo detainees’ detention, the report examines the stark differences of actual practice. The report finds that the promise of Boumediene has been effectively negated by decisions of the U.S. Court of Appeals for the District of Columbia Circuit, beginning in 2010 with Al-Adahi v. Obama.

Seton Hall Law Professor and Director of the Center for Policy and Research, Mark P. Denbeaux, stated, “Since Al-Adahi, judges are effectively robo-signing denials and rubber-stamping government allegations. The Supreme Court gaveth and the Appeals Court taketh away.”

The report finds and documents a marked difference between the first 34 habeas decisions (before Al-Adahi) and the last 12 (after Al-Adahi) in both the number of times that detainees win habeas petitions and the frequency in which the trial court has deferred to the government’s factual allegations rather than reject them.

by Scott Horton (Harper's)

One of the lasting challenges to America’s federal judiciary will be addressing American complicity in the tortures and disappearances of the past ten years. Two recent appeals-court decisions show us how judicial panels are tackling these issues: by shielding federal officials and their contractors from liability, and even by glorifying the fruits of their dark arts. In the process, legal prohibitions on torture are being destroyed through secrecy and legal sleight of hand, and our justice system is being distorted and undermined.

Last week, the Ninth Circuit reversed a district-court decision allowing a suit against torture-memo author John Yoo to go forward. The suit had been brought on behalf of José Padilla by his mother, who argued that Padilla was tortured while in U.S. custody as a result of Yoo’s advice—a claim that seems pretty much unassailable, and that had to be accepted as true for purposes of the preliminary rulings. In a decision that has left international-law scholars dumbstruck, the Ninth Circuit granted Yoo immunity, concluding that the law surrounding torture was so muddled when he dispensed his advice that he should be given the benefit of the doubt. The best authority the judges could muster for this outlandish perspective was a European Court of Human Rights decision from 1978, which found that a series of grim techniques used by Britain against Irish internees was not torture—rather it was “cruel, inhuman and degrading treatment.”

Hovering in the background of the Ninth Circuit’s opinion is a troubling fact: John Yoo had a co-author when he crafted his torture memoranda, Jay Bybee. And Bybee is now a judge on the Ninth Circuit. Had the court handed down any other ruling, it would have been exposing one of its own. The court’s twisted reasoning and distortions of legal precedent otherwise make very little sense. Indeed, the Ninth Circuit judges seemed to be uncomfortable with torture, issuing an opinion that was comparable to a surgical excision: do what is essential to shelter Yoo and Bybee, and not an iota more.

The D.C. Circuit, conversely, has developed a real hankering for torture. Exhibit A in its judicial immorality tale is the astonishing 2–1 decision handed down in October in the Latif case, in which two movement-conservative judges overruled a district court that had concluded that Latif—a thirty-six-year-old Yemeni who has spent the past ten years of his life in prison in Guantánamo without being charged and with only vague suspicions connecting him to terrorist groups—should be released because the record did not contain sufficient evidence to warrant a life sentence in the absence of charges. Judge Janice Rogers Brown, a George W. Bush appointee, wrote that the usual presumptions had to be reversed in cases involving Guantánamo detainees: the government’s secret conclusions had to be presumed correct unless they were contradicted by compelling evidence to the contrary. In Brown’s perspective, the analytical report on Latif prepared by CIA officers—who were under immense pressure to justify detentions even when the evidence plainly indicated very little to no basis for them, as Glenn Carle and other CIA case officers have openly acknowledged—was entitled to a “presumption of regularity.” Because key parts of this report were classified, it was not entirely accessible by the petitioner, denying him the ability to effectively rebut it.

"The government has accelerated plans to expand secret hearings into civil courts. Rather than moving to the preparatory white paper stage, a justice and security bill will be put through parliament this session.

The government has come under severe pressure from MI5 and MI6 to draw up a law imposing a system of secret courts ever since it was disclosed that the security and intelligence agencies had been involved in the brutal treatment, and knew of the torture, of UK residents and citizens detained by the CIA.

So-called closed material procedures would allow sensitive evidence to be given in court but not seen by all the participants. Defendants or claimants and their courtroom representatives would be barred from the closed part of the hearing, removing the adversarial nature of the justice system.

Ken Clarke, the justice secretary, has said the powers are needed to reassure other countries, particularly the US, that they can continue to share intelligence without fear of it being exposed in British courts."

Responding to the plans for 'secret justice' and closed courts set out in the Queen's Speech today, Reprieve's Executive Director, Clare Algar said:

“Closed courts will not strengthen oversight of the intelligence agencies – in fact, they will do precisely the opposite. They will put the Government above the law.

“The proposals for secret justice would massively skew courts in favour of ministers, and prevent the public from finding out the truth about serious wrongdoing.

“The reality is that these plans are designed to spare the intelligence agencies embarrassment. They are a recipe for unfair and unaccountable Government.”

Reprieve’s Legal Director, Cori Crider, said:

“If you think closed courts are a good idea, go talk to Khadidja al-Saadi, who Britain helped render to Gaddafi in 2004 when she was only twelve. This is a clear effort to cover up her case, the Belhadj case, and those like them – to stop the airing of the dirty laundry of the ‘War on Terror.’ The British public should not stand for it.”