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Without dissent, the Supreme Court has turned down seven separate appeals by Guantanamo Bay prisoners, and refused to review an appeal by U.S. citizen Jose Padilla (who was detained in a Navy brig, not Gitmo, and whose suit against John Yoo was so frivolous that even the Ninth Circuit couldn’t abide it). This is another well-deserved setback for the absurd idea that enemy combatants should be treated like run-of-the-mill domestic criminals.
In 2008, the Court decided Boumediene v. Bush, which gave Guantanamo prisoners a legal right to challenge their continued captivity under the Constitution’s guarantee of habeas corpus. But the Court left it to the lower courts to sort out the details. More than a dozen District Court judges in Washington initially ruled in favor of detainees on habeas claims. But on appeal, the D.C. Circuit ruled against the detainee, or else ordered the District judge to reconsider. As Lyle Denniston reports at ScotusBlog, “The practical effect is that the D.C. Circuit Court now functions as the court of last resort for the 169 foreign nationals remaining at the U.S.-run military prison in Cuba.” Good thing too, since that court has developed rules for reviewing these cases that respect national security concerns.
It’s an odd result when the DC Circuit has to be the grown-up, cleaning up the mess from the Supreme Court’s ill-considered decision. Had the majority of the Justices thought through the implications of Boumediene, the Court would not have departed from the decades-old Johnson v. Eistentrager precedent in which the Court correctly foresaw the dangers of granting habeas rights to enemy combatants:
Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home.