A new report by Seton Hall University School of Law examines how the Supreme Court decision in Boumediene v. Bush has been applied by lower courts. In Boumediene, the Court decided whether prisoners held at Guantánamo Bay, Cuba, are entitled to the right of habeas corpus as defined in Article I, section 9 of the US Constitution. Latin for “may you have the body,” habeas corpus is a legal action through which a prisoner can gain his or her liberty if the government is unable to provide sufficient cause or evidence. Even though Cuba has ultimate sovereignty over Guantánamo Bay, the Court held that the privilege of habeas corpus extends to prisoners held there because the United States exercises “de facto” sovereignty over the territory. The Court also held that the Detainee Treatment Act did not provide an adequate and effective substitute for habeas corpus because it applied a flawed fact-finding process. Rather, the judge “must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive’s power to detain.”
Titled “No Hearing Habeas: D.C. Circuit Restrict Meaninful Review,” the report examines the particular consequence of a 2010 decision by the DC Circuit called Al-Adahi v. Obama. Detainees won 56 percent of the 34 habeas petitions prior to Al-Adahi whereas they lost 92 percent of the 12 habeas petitions after Al-Adahi. The sole grant in Latif v. Obama was vacated and remanded by the DC Circuit. The reports explains that the DC Circuit’s message to lower courts has been to stop scrutinizing the government’s factual allegations so closely and even give a presumption of accuracy to certain evidence submitted by the government. In sum,
The effect of Al-Adahi on the habeas corpus litigation promised in Boumediene is clear. After Al-Adahi, the practice of careful judicial fact-finding was replaced by judicial deference to the government’s allegations. Now the government wins every petition.
Essentially, following Al-Adahi, habeas review has been rendered meaningless.