More on the Scorecard

By Benjamin Wittes
Wednesday, September 8, 2010, 3:26 PM

Steve Vladeck makes a few important points in response to my post on the habeas scorecard. In defending the scorecard, he first notes that my list of problems with it is incomplete, since "the scorecard says nothing about cases in which detainees were released by the government prior to a judicial determination that they could no longer be held--the fate of an overwhelming majority of those held at Guantanamo." I quite agree. There are undoubtedly cases in which the government released people whose detentions it determined it could not defend, and these cases too skew the numbers.

That said, there are also a great many cases in which the government released people against whom it had strong cases--and these cases also skew the numbers. Detainee releases have taken place opportunistically, and have often been largely a function of detainee nationality and U.S. diplomacy with their home countries. The government, for example, repatriated the overwhelming bulk of the Saudis at Guantanamo--even those against whom it had strong cases. And it has kept the overwhelming majority of Yemenis, even those against whom it had shockingly weak cases. I agree with Vladeck that the release of the majority of detainees before merits decisions in their habeas cases greatly influences the scorecard, making it highly unrepresentative of the original Guantanamo population. And I suspect that his apparent intuition is correct that the scorecard would look worse for the government had all of the original detainee cases gone to disposition. That said, I suspect as well that the scorecard would look much better for the government had releases taken place chiefly based on the strength of the government's legal cases, rather than based on its assessment of detainee dangerousness and its own diplomatic opportunities.

Vladeck further argues that I misinterpret the importance of the scorecard. "The scorecard is important," he says, not because of its specific numbers but "because it provides hard data for the proposition that the government lacks the authority to detain a more-than-insignificant number of Guantanamo detainees." Guess what? I largely agree with him on this point too. The government has had far more trouble in these habeas cases than I expected it to, and the scorecard represents a crude kind of accounting of that reality.

Still, it is not quite right to say that the scorecard provides hard data showing that many of the Guantanamo detentions have been lawless. The standards the courts are applying to these cases are so different from the standards the military has ever applied to detentions prospectively, that the cases granting the writ often represent the imposition of new standards as much as anything else. The scorecard can only truly be said to offer hard evidence that in a substantial number of cases, the government cannot meet the standards the courts have decided in retrospect should apply.