Report: Appeals court chokes off Gitmo reviews

AP News

5/9/2012 5:40:08 PM - AP News

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.

So far, the Supreme Court has declined to reconsider its decision in Boumedienne v. Bush that established detainees' constitutional right to challenge their confinement. The case said courts should give detainees a "meaningful review" of their situations.

In late May, the high court could take up new appeals by seven detainees, some who have been held at the military prison in Cuba for more than 10 years. Among the appeals is one by Adnan Latif, whose release order was thrown out by the appeals court last year. Latif was captured near the Afghan-Pakistani border in late 2001.

Writing for the appeals court, Judge Janice Rogers Brown said the district judge in Latif's case did not give enough weight to government intelligence reports that Latif probably was seeking military training in an al-Qaida camp. Earlier, U.S. District Judge Henry Kennedy said the government had failed to show by a preponderance of the evidence that the Yemeni man was part of al-Qaida or an associated force.

The outcome in Latif's case was essentially foretold by a 2010 appeals court ruling in the case of another Yemeni detainee, Mohammed al-Adahi.

After U.S. District Judge Gladys Kessler said there was not "reliable evidence" to justify al-Adahi's continued detention, the appeals court said Kessler displayed insufficient skepticism about al-Adahi.

Before the al-Adahi decision, Guantanamo detainees in 34 cases had prevailed at the district court level 56 percent of the time, the report said. Latif was the only winner after al-Adahi's case was decided, and his victory was short-lived.

"The D.C. Circuit's message to the district courts was to stop scrutinizing the government's factual allegations so closely," the report said. "This message reached a new extreme in Latif, where the D.C. Circuit not only prevented district judges from closely evaluating the government's evidence but mandated that they give a presumption of accuracy to certain evidence (interrogation reports) submitted by the government, even though district courts had previously found that evidence unreliable."