The Supreme Court denied cert today in Gul v. Obama, a case brought by former Guantanamo detainees complaining of the conditions of their release, and Abdah v. Obama, concerning the rights of Guantanamo detainees to advanced notice and an opportunity to challenge their transfer to countries where they say they will be mistreated. The detainees in both cases lost in the D.C. Circuit. Judge Griffith dissented from the denial of rehearing en banc in Abdah. He was joined by Judge Tatel and Judge Rogers.
Justice Kagan recused herself from the cert petition in Abdah. At SCOTUSblog, Lyle Dennison writes, “It now seems quite plain that the Court will not reopen the Guantanamo issue in any case unless all nine Justices could participate, indicating that it remains deeply divided on such cases. There is no purpose in granting a case only to have it end in an inconclusive 4-4 split.”
It is unclear how the Court’s denial of cert, unaccompanied by a dissent, indicates a deep division on the Court. The Court’s consistent refusal to hear a single Guantanamo case since Boumediene could just as easily indicate that the Court is generally satisfied with the lower courts’ development of the flexible, deferential habeas remedy the Court called for in Boumediene.
Justice Kagan has not had occasion to recuse herself in Latif v. Obama, in which the detainee challenges the D.C. Circuit’s application of the presumption of regularity to the Government’s evidence.