Between October 2008 and July 2010, 38 out of the 52 prisoners at Guantanamo won their habeas corpus petitions as the judges concluded that the government had absolutely failed to meets its already ridiculously low standards for evidence for associating prisoners with al-Qaeda and the Taliban. These habeas corpus petitions were filed after the land-mark 2008 Supreme Court decision in Boumediene v Bush that denying prisoners at Guantanamo was unconstitutional and reminding the government that the prisoners had habeas corpus rights.

These cases forced the government to present evidence to a judge, and it was found wanting. They reminded us of the importance of habeas corpus to resist and challenge unjust incarceration and imprisonment. Judge Leon, aghast at the weak evidence revealed in these cases, commented that “To allow enemy combatancy to rest on so thin a reed would be inconsistent with the Court’s obligations…to protect [the prisoners’] from the risk of erroneous detention.” He further went on to appeal to the government that “seven years of waiting for our legal system to give them an answer to a question so important…is more than plenty.” In majority of the cases heard them, the government accepted the judgements and released and repatriated the 31 men who won their habeas corpus petitions were eventually released.

But these early successes, and the details they provided to us about the shoddy and suspect nature of US government evidence, were soon effectively shut. Starting in 2010, D.C. Circuit Court judges started to chip away at the judgements of Boumediene v Bush. The D.C. Circuit Court has been notoriously supportive the government’s ‘war on terror’ related legislation, going so far as to practically eliminate the need for the government to prove its evidence against prisoners as trustworthy and reliable. The District Court judges were told to lower the burden of proof required by the government and as a result habeas corpus petitions were consistently rejected. The Circuit Courts have consistently challenged the decisions of the lower District Courts, often ignoring their opinions and defending a draconian national security state mentality. In fact, in their most recent decisions, Circuit Courts have insisted on believing as evidence enough the most minimal association (including the ridiculous judgement that of wearing a Casio watch of the same make as those used to detonate IED devices!) with al-Qaeda or Taliban forces. They have taken all government evidence – regardless of whether obtained under torture, via bribes, or even from hearsay, as correct and not requiring rigorous evaluation. The Circuit Court judge Justice A. Raymond Randolph has been one of the severest critics of the earlier Supreme Court rulings and has had a powerful influence on the direction and influences of the D. C. Circuit Courts. This adoption of an extremist security state mentality was lamented by The New York Times in an editorial, where they argued that:

 In 2008, the Supreme Court ruled that Guantánamo Bay prisoners who are not American citizens have the right of habeas corpus, allowing them to challenge the legality of their detention in federal court and seek release.

The power of the ruling, however, has been eviscerated by the Court of Appeals for the District of Columbia Circuit. The appellate court’s wrongheaded rulings and analyses, which have been followed by federal district judges, have reduced to zero the number of habeas petitions granted in the past year and a half.

The editorial called for the Supreme Court to intervene and reject this disregard for its earlier decision. However, it failed to do so, and in fact, on June 11, 2012, the US Supreme Court itself turned down seven appeals submitted by prisoners at Guantanamo, providing no explanation for why it had done so. It basically accepted the topsy-turvy idea that the lower courts set the rules for the law in the country, accepting the security-state mentality of the lower Circuit Courts and failing to do, as The New York Times had appealed to the Supreme Court in a separate editorial, to ‘…remind the appellate court which one leads the federal judicial system and which has the solemn duty to follow.’

Four years after the land-mark judgement in Boumediene v Bush, the court was effectively shutting down any chance of prisoner cases getting a hearing, and lawyers representing the prisoners cases have basically given up this entire process. In the hands of the Circuit Courts, with the surrender of the Supreme Court, the 2008 Boumediene v Bush was ‘…no longer a remedy for the problem the Boumediene majority called ‘arbitrary and unlawful restraint”.

The 2004 and 2008 Supreme Court rulings have demonstrated the importance of habeas corpus and its role as the single most important check against executive power. The courts were the front line of resistance to torture, violent interrogations, suspect evidence, indefinite detentions and the use of military commissions and real limits were placed on the excesses of the government policies and treatment of prisoners. Perhaps it was for this reason that the lower courts were attacked by the Circuit Court judges. But the failure of the Supreme Court to uphold its own earlier decisions was the fatal blow to any hope for further such hearings.

Of the 11 habeas corpus petitions filed since 2010, all 11 were won by the government i.e the prisoners have lost each petition. And there is little hope in sight with an increasingly conservative Supreme Court that emerged after the departure of Justice Stevens who had been had been the Court’s leader in asserting a strong role for the Justices in overseeing how the law of detention had developed. In Obama’s Supreme Court, there is no judge ready to step into that role.

However, on June 18, 2013, Senior Circuit Judge Harry T. Edwards asked “the president and Congress to consider a different approach to the handling of legal cases of Guantánamo Bay prisoners.” He issues this statement while rejecting the appeal of Abdul al-Qader Ahmed Hussain, a Yememi, whose habeas corpus petition was rejected in 2011. Judge Edwards made these comments in an opinion in which he “reluctantly concurred” with the decision of his two fellow judges, to reject Hussain’s appeal because of the precedent established by the court. “However,” he wrote, “when I review a record like the one presented in this case, I am disquieted by our jurisprudence.” He added, “I think we have strained to make sense of the applicable law, apply the applicable standards of review, and adhere to the commands of the Supreme Court. The time has come for the President and Congress to give serious consideration to a different approach for the handling of the Guantánamo detainee cases.”

As the lawyer, and activist, Andy Worthington argued…this is an important call, and one that needs to be heeded by the Obama administration, and by lawmakers.