(CN) – The Supreme Court on Monday rejected petitions from three Guantanamo Bay detainees who say that they have been afforded only toothless attempts for habeas review of their cases. It deferred its answer on a fourth case.
The three rejected appeals stem from the detentions of Fawzi Khalid Abdullah Fahad Al Odah, Ghaleb Nassar Al-Bihani and Adham Mohammed Ali Awad, who each lost their appeals in the D.C. Circuit. In addition to ensuring that the detainees in question stay at Guantanamo, the mostly conservative D.C. Circuit judges have not ordered the release of any other detainee.
Al-Odah’s case asked whether the courts can use hearsay and a preponderance-of-evidence standard (rather than the clear-and-convincing standard) to support detention. Awad had claimed that he was not afforded a meaningful opportunity to challenge his detention. Al-Bihani questioned whether international law limits Obama’s authority to detain prisoners.
The justices had considered each of the cases in a private conference on Friday, along with a fourth case left untouched Monday. The fourth, Kiyemba v. Obama, concerns the detention of Chinese Muslims, known as Uighurs. Their petition asks whether federal judges have the authority to order a detainee’s release.
The government had said the five Uighurs can be released, but they have been at Guantanamo because it is unclear where to send them. If sent to China, they will likely be tortured for their avowed dissidence. More than 100 other countries have declined to take them.
In rejecting the three cases without any explanation on Monday, the justices have apparently deferred judgment to the D.C. Circuit. The justices have not decided a detainee case in nearly three years with the June 2008 opinions in Boumediene v. Bush, concerning a Guantanamo Bay detainee, and Munaf v. Geren, which is related to an inmate of the military operations zone in Iraq. Boumedine afforded detainees the basic right to seek habeas relief.
Notably, Justice Elena Kagan does not appear to have recused herself from consideration of two of the cases because of her prior work as U.S. Solicitor General. Some have speculated that the court was reluctant to review Guantanamo cases because without a ninth justice, a deadlocked eight-justice panel would not be able to set a precedent. Kagan did recuse herself from the Al-Bihani case without explanation.