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D.C. Circuit 1, Guantanamo Bar 0?

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Monday, June 11, 2012 at 11:33 AM

As Wells already noted, the Supreme Court denied certiorari today without notation or dissent in all of the seven pending Guantanamo “merits” habeas cases (i.e., cases where the central issue goes to whether the government has proven its case to hold the detainee in question in military detention at Guantanamo). No doubt, the headline that will emerge from these denials is that the D.C. Circuit, despite the well-documented public opposition of at least some of its judges to the entire post-Boumediene habeas project, has “won,” since the denials leave intact a series of decisions by that court that articulate incredibly government-friendly procedural, substantive, and evidentiary rules. And I, for one, reacted to today’s news with a bit of sadness–not over the denials, which I had come to see as inevitable, but over the lack of any dissents. It’s an old chestnut that denials of certiorari have no precedential value, but they do have rhetorical value–value that I’m sure others will seize upon as vindication of the Court of Appeals’ decisions in Al-Bihani, Al-Adahi, Almerfedi, and Latif, among others.

But before folks seek to close the book on the Guantanamo habeas litigation, I wanted to make three quick observations: First, we’re not actually done. In addition to a couple of habeas cases still kicking around, the D.C. Circuit is just starting to gear up its military commission docket–and already seems more divided on those cases than it has been thus far on the merits of the habeas litigation. To be sure, the questions raised in Hamdan, al-Bahlul, and the other cases in the pipeline have little to do with the procedural or evidentiary rules in the habeas cases, but it’s not hard to see how some of the substantive issues (e.g., the substantive and temporal scope of the AUMF) might overlap.

Second, although I’m sure there will be those who use today’s news as proof that the Guantanamo habeas litigation was a fool’s errand, nothing could be further from the truth. One need look only at (1) the radical decline in the number of individuals being held at Guantanamo; (2) the not insignificant number of cases in which the government declined to appeal a loss on the merits in the district court (thereby depriving the D.C. Circuit of a chance to reverse); and (3) the positive (and negative) value of having judicially articulated norms of procedure, evidence, and substance going forward in order to understand the effect of these cases as compared to the pre-Boumediene status quo. I dare say that part of the reason for today’s cert. denials is because, in the eyes of the Justice who matters most (hint: shares his last name with the 35th President), the litigation has done exactly what the Court intended it to do. One may disagree with such a view of the goals of these cases (as I do–see below), but anyone who claims that they haven’t been tremendously important is selling something.

Third, and related: For as much as some will see today’s development as a huge loss for the so-called “Guantanamo bar,” I think the true defeat handed down by the Justices today was to their own long-term credibility. As I’ve suggested before, one of the only ways to understand the Supreme Court’s approach to terrorism cases over the past decade is to view the underlying project as one driven almost entirely by the quest for judicial self-preservation–a mindset in which “the merits don’t matter nearly as much as the protection of the ordinary functioning of the separation of powers (including the Supreme Court’s prerogative) more generally.” Whatever the (“passive”) virtues of such self-preservation, it has vices as well, especially to the extent that it signals that the Court’s only real interest in cases like Boumediene is its own jurisdiction, and not the plight of the Guantanamo detainees (or what the lower courts do with such jurisdiction). Ultimately, I fear that, while such jurisdiction-oriented decisionmaking appears to empower the courts in the short term, it may well lead to the formal and functional marginalization of individual rights in the long term by the judiciary–if not by the political branches and the public, as well.

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