It has become something of a convention in the copious journalism surrounding the Guantanamo habeas litigations to keep a win-loss scorecard. A typical example is this recent story by Miami Herald reporter Carol Rosenberg, who writes:
Judge John Bates’ ruling, his first on a Guantánamo habeas corpus petition, left the so-called government win-loss scorecard at 16-38 in the U.S. District Court in Washington, D.C.
That means that judges have ruled more than twice as often for the release of detainees at Guantánamo, rather than holding them.
But in this case Bates rejected Shawali Khan’s unlawful detention lawsuit in a one-page order released Friday afternoon. His opinion was not released but a court order said an unclassified version would be released “at a later date.” (link added)
There is nothing inaccurate about reporting a scorecard, though different media organizations and advocates use slightly different numbers and I haven’t bothered to check who is right. The reason is that particularly in its endless repetition, the scorecard conveys something of a skewed impression of what’s going on in these cases. To see why, let’s take apart the scorecard apart.
For starters, as Bobby notes here, the figure for government losses include 17 Uighurs, whose cases really defy comparison with others at Guantanamo. At a technical level, the government did not really contest the Uighurs’ habeas cases, having lost before the D.C. Circuit in the direct appeals of the detainees’ CSRTs. On a more fundamental level, the Uighurs are just different from other detainees. These are people the government has been trying to get rid of for many years and has publicly made clear it does not want to hold. Yes, the government defended their detentions as a legal matter (which was a big mistake in my view, by the way), but under both the last administration and this one, it has made clear that it means to let them go as soon as it can find a place to send them. The Uighur problem, at its core, is a diplomatic and political problem, not a legal one. And that makes it different from other cases.
The scorecard also includes a single case that covered six different detainees: The case involving the original Boumediene petitioners. The government lost that case with respect to five of the detainees (the case of the sixth is still kicking around). So in the scorecard, this goes down as five losses. But it’s all one decision. In other words, between the Uighurs and the Bosnian-Algerians, you can account for 22 of the government’s losses with only two cases. Putting these two cases aside, the government’s record is roughly even.
But using a .500 winning percentage would be deceptive too, for a few reasons that cut in both directions. For starters, the Uighurs and the Boumediene petitioners are not chopped liver. One shouldn’t simply discount them. They are cases. The government lost them. They surely count in some sense.
Second, in some of the cases where the government lost in the district court, it has every reason for confidence in its chances at the court of appeals. Some of the district court decisions are, to put it simply DOA at the COA–and no, I don’t care what panel hears them. Don’t believe me? Just wait.
Third, in an unknown (at least to me) but non-trivial number of cases, detainees have declined to bring habeas suits or have refused to authorize habeas attorneys to represent them. These habeas cases get dismissed without prejudice, meaning that the detainees can refile them later if they so choose. Because of this fact, and because they don’t represent dispositions on the mertis, they do not go down as government wins on the scorecard. At the same time, they each represent a situation in which the government can continue a given detention without legal difficulty. That’s not chopped liver either.
Finally, the scorecard ignores–or, rather, downplays–the most important government wins in these cases. These are not numerical but qualitative in nature; that is, it matters how the government wins and loses. While the press focuses on the raw numbers, the government is racking up a series of big wins in the D.C. Circuit that are cumulatively writing a lot of law very favorable to the government and very unfavorable to detainees. Each of these decisions is far more important than whether any given low- or mid-level fighter (or alleged fighter) goes free or stays locked up. Yet each of these wins counts as one point in the scorecard. That’s just silly.
I don’t think there’s a good way to do a simple scorecard. This is not baseball or, for that matter, criminal prosecution, where the rules are clear and both sides are merely playing to win. This is a multi-level game. At one level is a series of fact questions about a bunch of individuals. Yet to keep score only on that level is to ignore the much more important game being played one level up–the game of defining the rules of the lower-level game. There’s even a game being played a level above that one, game of defining the rules by which one then defines the rules of the lowest-level game.
An example of this highest-order game (one that is enormously salient to the D.C. Circuit judges) is the recent debate, already much discussed on this blog but only a little in the press, over whether judges should interpret the AUMF in light of the laws of war. What these judges are really arguing over is not whether Detainee X is lawfully held or even what the rules under which to decide that question are. They are arguing, rather, over the sources of law that properly inform the decision of what rules should decide that question. The scorecard utterly misses that point.