Steve’s post on Garcia and Munaf got me thinking about seepage. Remember this? It is the idea that seemingly fact-bound national security cases can announce rules of more general applicability – ones that could influence other corners of the law. It can be a boon or a bogeyman, depending on your vantage point.
I say “remember,” because we heard quite a lot about it during the seemingly long-in-the-past debate over a “national security court.” Proponents of such a court and opponents of federal terrorism trials sometimes cited seepage as a reason to wrest the prosecution of foreign terrorists from the federal system, and to park those cases in some other forum. The specific claim was that high-stakes prosecutions would exert considerable pressure on federal judges; when the legal issues were particularly complex and sharply contested, the argument went, pragmatic courts would always rule for the government, thus minimizing risks to the public while also leaving a wrongly-decided precedent on the books. But there hasn’t been much talk about seepage since that time, even though the data set – the universe of migratory national security decisions – has swelled. Federal courts continue to process scores of terrorism prosecutions, and the D.C. Circuit has handed down a small library of detention rulings. You would think the government would want to exploit those, in litigation outside the Guantanamo context.
Which brings us to Garcia. As Steve points out, the case exemplifies seepage – though of a different sort than imagined by, say, former Attorney General Michael Mukasey. In Garcia, a extradition-related habeas case, the Ninth Circuit adopts the approach of Kiyemba II, the Uighur case which relied on Munaf. The latter case’s evident misinterpretation by the courts in Kiyemba and Garcia might supply an additional reason for the Supreme Court to intervene. Whether that happens or not, Garcia prompts consideration of how much recent national security jurisprudence stands to influence other doctrines more generally – for better or worse.