THE LAWYERLY ASSAULT ON U.S. ANTI-TERRORISM POLICY MOVES ON TO PLAN B

[Geee]

Powerline:

The Supreme Court apparently is exiting the terrorist detainee administration business. Yesterday, it declined to hear the appeals of seven Gitmo detainees on whose behalf habeas petitions were filed, and denied, by lower courts.

In Boumediene v. Bush, the Supreme Court held that detainees have the right to turn to the American judicial system for a “meaningful opportunity” to challenge their confinement. But a meaningful opportunity doesn’t necessarily translate into release, particularly since the government has released large numbers of detainees and now holds only those it considers the worst of the worst.

Consequently, according to Robert Barnes of the Washington Post, the detainee rights bar has been unable to convert Boumediene into a vehicle for successfully litigating many of these cases.

The detainee rights bar had high hopes for its latest case. It involved a Yemini national named Latif, who was captured in Pakistan a few months after 9/11. Unable to portray himself as a local shepherd, Latif claimed that he was in Pakistan seeking medical care. But government evidence showed that, whatever his original reason for being in Pakistan, he had received military training and joined the Taliban.

A district court judge found the government’s evidence “unreliable” and ordered that Latif be released. This was the only “win” for a detainee among recent cases.

But the Court of Appeals reversed. Judge Janice Rogers Brown found that, although the intelligence report has flaws, it is entitled to the “presumption of regularity” that generally applies to government work. Brown also took a well-deserved shot at Boumediene itself, writing that its “airy suppositions have caused great difficulty for the executive and the courts.”

Brilliantly put.