Guantanamo: Litigation

New Seton Hall Study on Guantanamo Habeas Appeals

By Benjamin Wittes
Thursday, May 10, 2012, 9:51 AM

I only just noticed this new report by Mark Denbeaux, Jonathan Hafetz, and an extensive list of others at the Seton Hall University School of Law, entitled "No Hearing Habeas: D.C. Circuit Restricts Meaningful Review. I have not yet read the report, which is dated May 1, but will have comments as soon as I do. The executive summary reads:

It is an open secret that Boumediene v. Bush’s promise of robust review of the legality of the Guantanamo detainees’ detention has been effectively negated by decisions of the United States Court of Appeals for the District of Columbia Circuit, beginning with Al-Adahi v. Obama. This Report examines the outcomes of habeas review for Guantanamo detainees, the right to both habeas and “a meaningful review” of the evidence having been established in 2008 by the Supreme Court in Boumediene.

There is a marked difference between the first 34 habeas decisions and the last 12 in both the number of times that detainees win habeas and the frequency in which the trial court has deferred to the government’s factual allegations rather than reject them. The difference between these two groups of cases is that the first 34 were before and the remaining 12 were after the July 2010 grant reversal by the D.C. Circuit in Al-Adahi.

Detainees won 56% of the first 34 habeas petitions.

Detainees lost 92% of the last 12.

The sole grant post-Al-Adahi in Latif v. Obama has since been vacated and remanded by the D.C. Circuit.

The differences were not limited merely to winning and losing. Significantly, the two sets of cases were different in the deference that the district courts accorded government allegations. In the 34 earlier cases, courts rejected the government’s factual allegations 40% of the time. In the most recent 12 cases, however, the courts rejected only 14% of these allegations.

The effect of Al-Adahi on the habeas corpus litigation promised in Boumediene is clear. After Al-Adahi, the practice of careful judicial fact-finding was replaced by judicial deference to the government's allegations. Now the government wins every petition.

Given the fact-intensive nature of district court fact-finding, the shifting pattern of lower court decisions could only be due to an appellate court’s radical revision of the legal standards thought to govern habeas petitions, raising questions about whether the D.C. Circuit has in fact correctly applied Boumediene. This Report analyzes allegations that repeatedly appear in habeas cases to reveal the actual pattern of district court fact-finding.