An Alternative to the Scorecard

By Benjamin Wittes
Thursday, October 21, 2010, 4:31 PM

Brookings Legal Fellow Larkin Reynolds, who has been working with Bobby and me on a second edition of our monograph on "The Emerging Law of Detention," recently handed me a chart she had constructed that attempted to quantify numerically Guantanamo case outcomes in a fashion more evocative than the scorecard approach I have criticized. I thought the chart very illuminating and asked her to write it up in postable paragraphs. Here they are:

Readers of Lawfare have seen a great deal of debate about whether the “scorecard” offers a reasonable approach to describing the direction of the Guantanamo habeas cases. Leaving the normative implications of “keeping score” aside, it seems to me there may be a different way to approach the numerical representation of the cases that would better capture some of the intricacies and procedural quirks now fueling the debate. It takes a few paragraphs, but what follows may be of use.

Since the Supreme Court decided Boumediene, 21 petitioners have prevailed in their habeas cases in district court. This number includes five of the six Boumediene petitioners. If one includes the Uighur detainees, that bumps the “petitioner wins” score to 38. Whether one chooses to do this presents a definitional question. The outcomes relating to the continued detention of the 17 Uighurs, as Ben has explained, resulted not from merits dispositions of individual habeas petitions. Rather, the outcome for Huzaifa Parhat came when the D.C. Circuit, hearing the case on direct appeal from a CSRT in accordance with the DTA, ordered the government “to release or to transfer” him. For the other 16, executive decisions based on the Parhat precedent led to the government’s declining to further defend their detentions. While there was a habeas order entered, habeas was, for these detainees, not necessarily the determinative factor. For present purposes, it seems most accurate say that there are 21 non-Uighur habeas wins in the district court and, in addition, 17 Uighurs whose detention at Guantánamo the government after Parhat could not (in a legally prudent way)—and did not—defend.

Out of the 21 non-Uighur detainee wins in district court, the government did not appeal as to 12 of the petitioners (Nechla, Idir, Boudella, Boumediene, Lahmar, El Gharani, Ali Ahmed, Al Janko, Jawad, Al Mutairi, Al-Rabiah, Odaini). Of the nine losses the government did appeal, it won in Al Adahi, the one case that has so far proceeded to disposition on the merits. In that case, the D.C. Circuit reversed and remanded to the district court with instructions to deny the petition; however, the petitioners have since sought certiorari and so even this decision is not necessarily final. The other eight appeals (in the cases of Latif, Almerfedi, Salahi, Hatim, Uthman, Mingazov, Mohammed, Basardh) are pending at various stages at the D.C. Circuit.

Now consider the habeas denials at the district-court level. The government has prevailed in 19 of the petitioners’ cases (those of Obaydullah, Al Kandari, Toffiq Al Bihani, Khan, Sulayman, Esmail, Al Warafi, Khalifh, Al Alwi, Al Madhwani, Al Nahdi, Al Assani, Sliti, Ghaleb Al Bihani, Al Odah, Awad, Barhoumi, Al Hadi, and Bensayah), and petitioners have appealed all of these cases save two that they most certainly will (Obaydullah's case, which came down Tuesday, and Al Kandari's, in which the appeal deadline has not yet passed). In four of those—those of Al Bihani, Al Odah, Awad, and Barhoumithe detainees lost their appeals. So far, Al Odah has filed a cert. petition, and the other three can be expected to as well. Barhoumi, in addition, has filed a Rule 60(b)(2) motion in district court after learning of a set of documents the government did not produce at the merits stage, so that outcome is particularly tentative. And, in the one case in which the petitioner has prevailed at the D.C. Circuit, Bensayah, the result is also in limbo because the D.C. Circuit remanded to the district court with instructions to hear evidence on whether the detainee was “functionally part of” Al Qaeda; the parties have also been granted an extension of time in which to file a petition for rehearing. One appeal, that of Al Hadi, was even dismissed as moot pursuant to a joint motion of the parties. The remaining 11 appeals (those of Toffiq Al Bihani, Khan, Sulayman, Esmail, Al Warafi, Khalifh, Al Madhwani, Al Alwi, Al Nahdi, Al Assani, and Sliti) are pending at various stages at the D.C. Circuit.

Summarizing the above information into shorthand looks something like this:

  • Uighur cases in which detention was deemed or conceded unlawful: 17
  • Petitioners’ district-court wins pending at D.C. Circuit: 8
  • Petitioners’ district-court wins not appealed by the government: 12
  • Petitioners’ appellate-court wins resulting in a remand to district court, with remand still pending: 1
  • Petitioners’ merits wins at D.C. Circuit: 0
  • Government’s district-court wins pending at D.C. Circuit: 11
  • Government’s district-court wins that will likely be appealed: 2
  • Government’s merits wins at D.C. Circuit: 5
  • Government’s district-court wins where appeal dismissed as moot by D.C. Circuit: 1
  • Post-Boumediene merits decisions in which cert. has been granted or denied: 0

For various reasons, the cases that have proceeded to disposition may or may not be representative of the original Guantánamo population. We don’t know how many detainees the government transferred prior to review because it could not have won in court, nor do we know how many detainees against whom the government had strong cases but transferred anyway. The effect and direction of the sample bias likely works in both directions, and it is probably fair to infer that the former category is larger than the latter.

This exercise is necessarily reductionist, but less so than the existing scorecard. Above all, it should be read as effort to make a purely descriptive point: that the numerical picture of the Guantánamo detention cases thus far is, simply put, pretty complicated.

I find Larkin's approach here pretty compelling. It gets, in a way the scorecard does not, to the relative stability of some decisions and the relative instability of others.

So here's my inclination for those readers interested in following the numbers. If you can improve on the "Larkin Reynolds Alternative to the Scorecard Methodology," send me a note. If people shoot analytical holes in it, we will adjust it accordingly. When we have a reporting format we feels is rich enough to be useful, we will report the statistics in that format. In the interim, I will use her categories and update the numbers in response to every new opinion.