WASHINGTON — Guantanamo detainees have lost a series of court battles over the past 18 months as appellate judges in Washington have repeatedly sided with government lawyers and against suspected militants seeking to win their freedom.
The U.S. Court of Appeals has not affirmed a single decision ordering the release of a detainee, nor has it reversed any decision that favored government lawyers. The Justice Department even won a case last month in which it had little expectation of victory.
A 2008 Supreme Court ruling allowing those held at Guantanamo Bay to challenge their detention was followed by an initial round of district court rulings that ordered the release of dozens of suspected militants after the government's evidence was found wanting.
But the more-recent appeals court decisions, which have drawn little attention, have scuttled that trend as circuit judges have displayed more skepticism about the stories of detainees. That has meant an easing of pressure on the Obama administration to resettle or repatriate the men.
"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-Qaida adherent or an active supporter," Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia wrote in April.
The appeals court has not only reversed judgments against the government but also compelled the lower courts to assess evidence in a manner that is much more sympathetic to government arguments.
"The (District of Columbia) Circuit is much more deferential to the government than the district courts are, on average," said Benjamin Wittes, a senior fellow at the Brookings Institution, who has written extensively on detention issues. "And there is a tolerance for the idea that these judgments may end up being imperfect."
The cases often turn on whether prosecutors can prove that a "preponderance of evidence" shows that a detainee was "a part of or substantially supported" al-Qaida or the Taliban and was in the armed forces of those groups when captured.
That burden of proof is significantly lower than what is required in criminal courts, where evidence must be "beyond a reasonable doubt." But even so, prosecutors in the Guantanamo Bay detainee cases often failed the "preponderance of evidence" standard, according to U.S. district judges in Washington, where 38 detainees won cases.
Many more cases from among the 170 detainees remaining at Guantanamo Bay are in the pipeline, but now the government is winning.
In one case, Hussain Salem Mohammed Almerfedi, a Yemeni who was arrested in Iran and turned over to Afghan authorities and then to the United States, argued that he was an economic refugee who was attempting to get to Western Europe when he was picked up by the Iranians in late 2001.
In July 2010, U.S. District Judge Paul Friedman ruled that the evidence against him was too weak to justify his continued detention.
Within the U.S. government, there was some debate about whether it was worth appealing the Almerfedi decision. An interagency task force had cleared him for repatriation to Yemen or transfer to another country.
The government nonetheless took the case to the U.S. Court of Appeals.
The request was limited — the government sought to have the Almerfedi case sent back to the district court for reargument — but the appeals court went further, reversing the district court decision entirely. The appellate court said the writ of habeas corpus, the centuries-old legal doctrine that allows prisoners to challenge their confinements in court, should be denied to Almerfedi.
In January 2010, in its first review of a detainee case, the circuit court rejected the idea that international laws of war — which limit whom governments can confine during conflicts — applies to the detainees at Guantanamo Bay. That cleared the way for the government to hold captives if they were "part of" or supported al-Qaida and the Taliban regardless of the extent of their involvement in the conflict.
For defense lawyers, there is a mounting sense of futility.
The D.C. Circuit "appears to be dead-set against allowing detainees to prevail," said David Remes, one of Almerfedi's lawyers. "But as long as we have any arguments available to us, we have a duty to our clients to press them. We have to fight. This is the avenue our system provides us. And it's the only system we have."