I’m pleased to see that Ben largely agrees with my reaction to the Guantanamo cert. denials. But Ben goes on to rehash a point he has made before about the meaning of “meaningful” habeas review–and with which I rather vehemently disagree:
I cannot say that the system the D.C. Circuit has created, warts and all, is inconsistent with a district court’s conducting a meaningful review of the evidence—though it certainly requires a relatively deferential review both on the law and on the facts. The result is that I don’t think it’s a particular abdication on the part of the justices for them to see the circuit court’s work here as broadly within—rather than outside of—the ambit of what the high court demanded when it wrote Boumediene four years ago. We need not see the justices’s disinclination to interfere, in other words, as a betrayal.
In my own view, one has to read Boumediene with a particularly skewed eye to see some abstract idea of “meaningful” review as the sole guidance provided by Justice Kennedy’s majority opinion. To the contrary, Justice Kennedy’s opinion went out of its way to offer a host of reasons for why the CSRT/DTA review process was an inadequate substitute for habeas, including the inability to offer extrarecord exculpatory evidence; the lack of power to effectuate release; the various other logistical difficulties detainees faced in such proceedings; and so on. I dare say one should start there, rather than with a semantic debate over the word “meaningful,” to understand what the Suspension Clause requires (and whether the D.C. Circuit has watered-down those requirements). Moreover, as I’ve suggested before, one can’t only look to Boumediene; there’s also Hamdi, and its explanation of why “some evidence” is a woefully deficient evidentiary standard in long-term detention cases.
Just to be clear, Ben may well be right that the across-the-board denials of cert. “might simply reflect that the justices’ understanding of the word ‘meaningful’ is less fulsome both substantively and in procedural terms than are those of the many lawyers and commentators whose expectations they have now disappointed.” But based on what the Court wrote in Boumediene and Hamdi (regardless of what the Justices thought), I think there is a far stronger case to be made that the D.C. Circuit’s post-Boumediene jurisprudence has read those cases for as little as they are worth, if not less–and that the hostility of many of the court’s judges to the entire project has colored their willingness to take the Supreme Court seriously. That the Supreme Court has now apparently acquiesced is unfortunate, but it doesn’t retroactively deprive the language of Hamdi and Boumediene of the meaning that it quite clearly has…