This morning's D.C. Circuit decision in Ali v. Obama is not exactly a shocker, given the court's ever-solidifying body of jurisprudence on the scope of the government's power to detain non-citizen terrorism suspects at Guantánamo. In short, Judge Kavanaugh's opinion for a (mostly) unanimous panel affirms the district court's denial of habeas relief to Abdul Razak Ali.
But for the second time in less than six months, Judge Harry Edwards wrote separately to voice objections to the jurisprudence that compelled today's result. As he closed his three-page opinion concurring in the judgment,
The majority says that “it is not the Judiciary’s proper role to devise a novel detention standard that varies with the length of detention.” Respectfully, in my view, that is not the issue. The troubling question in these detainee cases is whether the law of the circuit has stretched the meaning of the AUMF and the NDAA so far beyond the terms of these statutory authorizations that habeas corpus proceedings like the one afforded Ali are functionally useless.
As readers know, I've dealt at length in the past with the implicit charge at the end of Judge Edwards' opinion--that the D.C. Circuit's post-Boumediene jurisprudence has denuded that decision, and the habeas review it requires, of most of its force. I won't regurgitate that analysis here. But I do think it's worth emphasizing that I think Judge Edwards has the wrong target in focusing on the scope of the AUMF:
Whatever one might say about the D.C. Circuit's analysis of the scope of the government's detention authority under the AUMF prior to the end of 2011, the whole point of section 1021 of the National Defense Authorization Act for FY2012 was to codify that understanding specifically as applied to the Guantánamo detainees--as the Second Circuit usefully explained in Hedges earlier this year. Thus, it seems like more than a bit of a stretch to complain about legal standards that, whatever their merits as a matter of judicial common law, are now hard-wired into positive statutory law.
If, instead, Judge Edwards' point is that the procedural rules the D.C. Circuit has articulated in these cases--including (inter alia) its adoption of the "preponderance" standard, its endorsement of "conditional probability analysis," and its fundamental inversion of the baseline principles governing such review--have made it far too easy for the government to satisfy the now-codified detention standard, I think he's on far firmer footing. This is especially so in a case such as Ali, where so much of the publicly disclosed evidence appears to be circumstantial. Reasonable people can certainly disagree about whether the D.C. Circuit has rendered habeas "functionally useless" in the Guantánamo cases; but insofar as it (as opposed to Congress) has done so, my own view is that it's in the procedural rules it has delineated in these cases far more than in its now-codified substantive interpretations of the AUMF.