Is simply being a part of Al Qaeda enough to justify detention at Guantanamo Bay, if the accused has not specifically engaged in armed action against the United States? The question is trying to make it to the United States Supreme Court next Term, with a petition was filed on May 11. And with Justice Kagan likely sitting this one out, the eight-Justice panel might sway in favor of the Obama Administration's lawyers yet again.
The case, Al-Bihani v. Obama, is coming from the D.C. Circuit Court, where the court previously ruled that membership in such terrorist organizations was sufficient to justify prolonged detention of an individual.
There were eight Gitmo cases before the U.S. Supreme Court this Term and six were denied review by the Court, reports SCOTUSblog. While in 2008, the Boumediene v. Bush case granted Guantanamo detainees the right to challenge their detention in District Court, the Obama Administration has been clinging to much the same view as the Bush Administration subsequently took post-Boumediene, successfully attempting to limit the habeas rights in court, says SCOTUSblog.
As with the other Gitmo cases, this one will be heard sans Justice Kagan, as she will recuse herself. Her recusals, which The Washington Post reports have been quite numerous this Term due to her prior role as solicitor general, might have a part to play in the denial of the petitions. As The Washington Post states, an eight-member court puts the party that won in the lower court at an advantage, as it needs only convince four justices of its case.
While the Guantanamo cases this Term present differing arguments, the attorneys in the Al-Bihani case are hammering down on the issue of whether the international laws of armed conflict apply in determining the scope of “one who may be indefinitely detained,” in light of the post-September 11th authority given to the White House by Congress. Essentially, they argue that Al-Bihani was never in arms against the United States and as such, should be treated as a civilian as opposed to an enemy combatant.
Chances that this case will be reviewed by the Supreme Court are yet to be determined — but if the Supreme Court’s stance on previous Gitmo cases is any indication, we can predict the same fate for Al-Bihani.
- Al-Bihani v. Obama (FindLaw)
- Petitioning and Opposing Certiorari in the U.S. Supreme Court (FindLaw)
- Court Cases: This Year in Counterterrorism (FindLaw)