This is what bmaz and hcgorman @ 12 are referencing:

Two Guantanamo detainees, Fahmi Al-Assani and Suleiman Al-Nahdi, have moved the D.C. Circuit to dismiss their habeas appeals (Al-Assani’s motion is here, Al-Nahdi’s is here). Both men lost their district court habeas cases in decisions by Judge Gladys Kessler; the Al Assani decision is here, the Al-Nahdi decision is here. Both men appealed, and today, both men have given up their appeals as lost causes.

Their lawyer, Richard Murphy, explained in an email,

Judge Kessler denied our clients’ habeas petitions and we appealed to the D.C. Circuit, but then stayed the appeals pending the outcome of several [other Guantanamo habeas] cases in which [Supreme Court] cert petitions had been filed. Once cert [review] was denied [by the Supreme Court] in all of the relevant cases coming out of the D.C. Circuit it became clear that the appeals were futile. Under the detention standard that has been developed by the D.C. Circuit (which the Supreme Court has refused to review), it is clear that the courts provide no hope for the men remaining at Guantanamo.

This development strikes me as a big deal–albeit a quiet one that won’t get a lot of press attention. […] – Benjamin Wittes, June 2, 2011

That grim assessment of the current posture of Guantanamo habeas petitions, which, for years, have been pending before federal judges serving in the Judicial Branch of the United States Government, was further illuminated and reinforced by this June 8, 2011 Benjamin Wittes post:

Habeas lawyer David Remes sent in the following comments on recent developments in D.C. Circuit case law. He emphasizes that he has been counsel in several of the cases discussed below and that the following represents his own opinion only:

I agree with my colleague Richard Murphy (here) that for Guantánamo detainees, seeking habeas relief has proven to be an exercise in futility. The D.C. Circuit appears to be dead-set against letting them prevail. It has not affirmed a grant in any habeas case, and it has remanded any denial that it did not affirm.

Moreover, the Supreme Court, having declared in Boumediene that detainees have a constitutional right to seek habeas relief, appears to have washed its hands of the matter. It denied review in every case brought to it by detainees this Term, including one, Kiyemba III, which eliminated the habeas remedy itself.

The D.C. Circuit has decided twelve habeas appeals on the merits. In four, the detainee prevailed in the district court; in eight, the government prevailed. The D.C. Circuit erased all four detainee wins. It reversed two outright (Adahi, Uthman) and remanded the other two (Salahi, Hatim). By contrast, the court affirmed six of the eight government wins (al-Bihani, Awad, Barhoumi, al Odah, Esmail, Madhwani), remanding the other two (Bensayah, Warafi).

In two critical non-merits cases, the D.C. Circuit held in Kiyemba I and III that the district court cannot compel the government to release a detainee found to be unlawfully held; and in Kiyemba II, the court effectively barred the district court from enjoining the release of a detainee to a country where he fears he will be tortured. Because the Supreme Court denied review in both cases, only Congress can overrule them. Unless Congress removes from the Executive the discretion to decide whether to release a prevailing detainee, I don’t see what practical difference legislation making substantive or procedural improvements in Guantánamo habeas litigation can make.

* * *

The D.C. Circuit’s methodology is even more revealing. When a detainee prevails in district court, the D.C. Circuit fashions, if necessary, a rule that rationalizes reversal or remand. When a detainee loses in district court, the D.C. Circuit sometimes uses the appeal as an occasion to tilt the law even further against detainees.

For example, in al-Bihani (who lost in district court), Judge Brown appeared to accept the government’s contention that any guesthouse where an alleged al Qaeda member stayed is an “al Qaeda guesthouse,” and that any detainee who stayed at an “al-Qaeda guesthouse” is, ipso facto, a member or supporter of al-Qaeda. She implicitly excluded the possibility that a guesthouse can be used by al-Qaeda members and still be a public guesthouse.

In al-Adahi (who won in district court), Judge Randolph created the “conditional probability” test. Under this test, as Lyle Denniston distilled it (here), “each assertion is to be considered, not for what it says by itself, but how it might make the next assertion seem more solid, and so on, so that the overall weight adds up to enough to support detention.” Citing Judge Silberman’s concurrence in Esmail, Steve Vladeck has suggested (here) that the test, in effect, reduces the “preponderance” standard to a “some evidence” standard.

Or consider Uthman (who won in district court). In earlier cases, including al-Adahi, the D.C. Circuit criticized district court judges for taking an “unduly atomized” approach to the evidence when ruling for detainees, and instructed them to consider “all of the evidence” as a whole. Judge Kennedy did precisely that in granting Uthman’s petition. On appeal, however, Judge Kavanaugh cherry-picked the government’s evidence and tossed aside Uthman’s, reversing the district court and finding Uthman lawfully held.

In Mahdwani (who lost in district court), Judge Henderson treated as “strong evidence” of culpability the fact that a detainee gave an exculpatory account of events that the district court does not credit. This conclusion isn’t logical or fair. There could be any number of reasons a detainee offered an exculpability account. Ironically, a detainee who says nothing is better off than a detainee who offers an account of the facts that the district court doesn’t credit.

***

Two factors appear to animate the D.C. Circuit’s apparent determination to rule against detainees. The first, exemplified by Judges Randolph and Silberman, is unabashed hostility to Boumediene. They have made quite clear that that they think Boumediene was wrongly decided, and Judge Randolph, in particular, takes every opportunity to undermine it. […]

– David Remes, 6/8/11

[Subsequent to this summary by Remes, the D.C. Circuit (i.e, a three-member appellate panel of Silberman, Kavanaugh and Rogers) handed down, on June 10th, its thirteenth Guantanamo habeas merits decision, in Almerfedi – reversing, of course, a writ of habeas corpus that had been granted – i.e., that had nominally ordered the release of the prisoner Almerfedi, because he had been unlawfully detained without proof that he was an armed conflict “enemy combatant” – by a district court trial judge. -pow wow]

What was that fancy rhetoric, again, that Supreme Court Justice Stephen Breyer was recently heard delivering outside the Court? Oh, right – from the emptywheel-linked Morris Davis commentary “Torture: Finding Our Moral Compass”:

Justice Stephen Breyer spoke on the theme of justice and accountability at the 2011 Day of Remembrance at the U.S. Holocaust Memorial Museum. He said, “we need only look around today’s world to understand that rights, rules, the obligations that the law sets forth; all of them are no more powerful than the human will to enforce them.“

How can you “call the balls and strikes,” Chief Justice Roberts & Company, when you refuse to work the game?

[David Remes, as emptywheel highlights and Charlie Savage indicates in the linked article, is the detainee lawyer (as opposed to “defense” lawyer, in this habeas corpus case) who forced the government’s hand, to the extent described by Candace @ 5, on the verboten WikiLeaked Guantanamo documents. Despite, to date, no help – as I noted (with a lot of other detail) in emptywheel’s April thread – from Judge Paul Friedman, who, since April, has uncomplainingly granted government requests for three consecutive extensions of time for the filing of its response (originally ordered due on May 11, in the “ordinary course” of the rules, but not submitted until yesterday, June 10) to the “emergency” motion that Remes had filed with Judge Friedman on behalf of his Guantanamo habeas client on April 27.]