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Supreme Court Declines Guantanamo Bay Cases: It's Been 4 Years Of Silence

The cases came up from the U.S. Court of Appeals for the D.C. Circuit, whose judges at times have been openly contemptuous of the Supreme Court’s June 2008 ruling in Boumediene v. Bush. The D.C. Circuit judges have refused to order the release of a single detainee brought to Guantanamo in the months and years following al Qaeda’s Sept. 11, 2001, attacks in New York and Washington, D.C.

In one decision from April 2011, Judge Laurence Silberman, a prominent conservative on the D.C. Circuit, blasted the justices for their “defiant — if only theoretical — assertion of judicial supremacy” over the executive branch in Boumediene. In the latter case, Justice Anthony Kennedy, writing for himself and the court’s four liberals, had guaranteed detainees access to the writ of habeas corpus to obtain “meaningful review of both the cause for detention and the Executive’s power to detain.”

“I doubt any of my colleagues will vote to grant a petition if he or she believes that it is somewhat likely that the petitioner is an al Qaeda adherent or an active supporter” unless the Supreme Court were to demand otherwise, Silberman wrote last year. That, he said, the Supreme Court is “unlikely to do — taking a case might obligate it to assume direct responsibility for the consequences of Boumediene v. Bush.”

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