I actually don’t have much to say, now that it’s here, on the New York Times editorial on the detention case cert denials. It is almost exactly the editorial I predicted the Times would run (“the inevitable editorial bashing the justices for failing to rebuke the rogues in robes who have so craftily undone the justices’ handiwork”):
Judge David Tatel, dissenting in the case, argued that “it is hard to see what is left of the Supreme Court’s command” if the appeals court is allowed to repudiate Boumediene and “calls the game in the government’s favor.” The same can be said about that court’s handling of almost all other Guantánamo cases. In the 19 appeals it has decided, the court has never allowed a prisoner to prevail.
In Boumediene, Justice Kennedy noted that habeas review is less about prisoners’ rights than the judicial power to check undue use of executive power. In refusing to correct the appeals court’s misguided rulings, the justices fail to support important principles proclaimed in Boumediene and diminish their own authority.
My main thought is that the statement that “The same can be said about that court’s handling of almost all other Guantánamo cases” is surely wrong. In Latif, the appeals court split ideologically, adopted a new evidentiary presumption it had never deployed before, and refused to grant deference to a lower court’s fact-finding without holding that its facts were clearly erroneous. There is a big difference between that sort of aggressiveness and the sort of rulings the court issued before Latif–which were uniformly unanimous as to the outcome of cases on the merits and articulating of principles that (generally speaking) did not veer wildly from case to case. If we paint with as broad a brush as the Times does here, we would have to conclude that Judge Tatel–who, after all, participated in a number of these cases–is as guilty of undermining Boumediene as is the Latif majority he accuses in the passage the Times approvingly quotes. There’s much to disagree with in the D.C. Circuit’s habeas work, I’m sure, but it’s wrong to treat Latif as emblematic of the cases. It is, by any reasonably measure, an outlier.
On another note, I am not sure how the Times counts a 19-to-0 habeas win-loss record at the D.C. Circuit for the government, but that cannot be right either. It has been a while since I updated our habeas stats, but there’s at least one detainee win at the D.C. Circuit–even if we don’t count Parhat on grounds that it is not quite a habeas case but a DTA direct review case. That case is Bensayah, which reversed a denial of habeas and remanded the case to the district court for further proceedings. One might say, I suppose, that Bensayah should not count because it did not finally resolve the case in the petitioner’s favor but allowed a remand. But I somehow doubt that the Times‘s count of 19 government wins is excluding the cases–like, say, Salahi (a case Judge Tatel wrote, by the way) and Hatim–in which government wins at the D.C. Circuit produced remands, rather than final victories. There was a time when I criticized the detainee bar and the press for over-counting detainee wins in habeas cases. The Times here, in its zeal to indict the D.C. Circuit, may be doing the opposite–though I would have to know which cases make up the 19 in order to be sure.