Guantanamo: Litigation

Comments on the New Seton Hall Report

By Benjamin Wittes
Thursday, May 10, 2012, 12:10 PM

I have now read the new Seton Hall report to which I linked earlier and I have to say: I am perplexed.

The report's thesis, in a nutshell, seems to boil down to two propositions: that the D.C. Circuit's Al Adahi decision matters and that its impact has been bad. The first proposition is one that has been, in and of itself, so self-evident from the day the opinion came down that it hardly required a team of researchers to establish empirically. The second proposition is assumed, not demonstrated.

The report finds that "Before Al-Adahi, detainees were more likely than not to have their habeas petitions granted by the district court. Since Al-Adahi, district courts have decided twelve petitions, eleven of which were denied. Latif v. Obama, the sole grant, has since been reversed and remanded by the D.C. Circuit." This supposedly patterns supposedly documents "the reality that [Boumediene] review has been rendered meaningless" by the D.C. Circuit.

At a more granular level, the report looks at several specific allegations common to many habeas cases and finds that:

Analyzing the government’s most frequently made factual allegations, three patterns emerge [in] decisions before and after Al-Adahi that confirm the D.C. Circuit’s message has been heard loud and clear by the district judges. First, district judges have become less likely to reject a government allegation. Second, there is an overall rise in the frequency with which the court accepts the government’s allegations about the detainee. Finally, there is also a general increase in the district court’s propensity for remaining silent on the weight it assigns to a piece of evidence.

The point, as the authors argue, is that the D.C. Circuit has instructed the lower court to be more deferential to government evidence, that the lower court has complied, that detainees are therefore no longer winning, and that Boumediene has thus been eroded.

I have two observations:

First, if the point here is simply that the D.C. Circuit--starting in Al Bihani and particularly in Al Adahi--sought to reorient the approach of the lower court on a range of issues and that the lower court has changed its approach as a result, there is simply no doubt that this point is correct. It is clear from even the most casual reading of these cases. But it's hardly evidence of anything nefarious. Shifting gears for the lower courts is one of the central roles of the appellate courts. So there's nothing remarkable about the D.C. Circuit's undertaking this project--or the district court's being, as it should be, responsive to the higher court's intervention.

Second, the fact that detainees are no longer winning does not mean either that the D.C. Circuit is wrong or that it has gutted Boumediene. By starting with the assumption that the D.C. Circuit has rendered Boumediene "meaningless," the report seems to assume that a world in which detainees are more likely than not to prevail is a better one than a world in which very few will prevail. But why? The authors nowhere articulate--at least not in this document--what they think the right approach to analyzing these fact patterns would look like or explain why it should lead to more, rather than fewer, detainee wins. They never make a case that the D.C. Circuit's analysis in Al Adahi was wrong. And they never make a case either that the district court's approach is more faithful to Boumediene than is the appeals court's. They simply seem to assume that meaningful review and a certain deference to the government's evidence are incompatible and that more detainee victories thus implies greater fidelity to Boumediene.

"Meaningful" is not the most evocative word in the English language, and I can see the notion of "meaningful review" reasonably describing quite a range of judicial scrutiny. The word, however, is not a synonym for "probing" or "skeptical." And its opposite is not "deference" but meaninglessness. The D.C. Circuit is, among other things, a specialty in administrative law, where deference to the expert agency on factual matters is a strong norm. I don't know many D.C. Circuit judges, however, who see the review that is their daily bread and butter as "meaningless" because of that fact. And I don't think one can simply assume that a world in which detainees aren't winning is a world in which review is meaningless either. Maybe, just maybe, it's a world in which a lot of detainees are more likely than not--based on the available materials--"part of" enemy forces.