Gavel Grab

Boumediene v. Bush: Guantanamo Detainees Trapped in ‘Legal Limbo’

Four years after the Boumediene v. Bush decision, the U.S. Supreme Court has done nothing to protect the decision from being “gutted” by the D.C. Circuit Court, argues retired federal District Judge James Robertson. Lyle Denniston writes in SCOTUSblog that the Supreme Court has been unwilling to examine the fact that Guantanamo detainees have been left in “legal limbo.”

Former Judge James Robertson says that captives at Guantanamo are trapped in a situation that gives all the advantage to their captors, and the government. “If the government wants to keep them there, they will be,” he says.

Robertson argues that the problem lies with the “inability” of the liberal faction on the Supreme Court to convince Justice Anthony Kennedy to agree to oversee the actions of the Circuit Court. The Supreme court seems to have “washed its hands” of the issue, he says.

According to the blog, Boumediene was decided in 2008 by a 5-4 vote, which gave Guantanamo Bay detainees the right to seek release through habeas petitions in federal District Courts in Washington for the first time.

The Court left it to District Court judges to decide how to implement the ruling. District judges would rule in favor of the detainees in a majority of cases, only to have the decisions “reversed repeatedly by the Circuit Court.” Due to this fact, no Guantanamo prisoner has won outright release as a direct consequence of a District Court’s order.

The Supreme Court has proved unwilling to decide any detainee cases since Boumediene, writes Denniston. American University law professor Stephen I. Vladeck says this is because Justice Kennedy seems to “have lost interest” in how Boumediene would play out in the Circuit Court.

Vladeck also argues that “judicial review has served to legitimize Guantanamo and detention policy. That has not been so good for the detainees.”

Brian E. Foster, a volunteer lawyer who represented detainees, says that the situation at Guantanamo has been “very upside-down.” Foster criticized the Obama administration for agreeing to release one individual who had been convicted of a war crime, while hundreds of individuals who “have never been charged with any crime” remain captive.

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