Detention: Law of

A Question for Steve

By Benjamin Wittes
Tuesday, June 12, 2012, 6:53 AM

I almost wrote into my post earlier today that while I agreed with Steve's point that Boumediene remained consequential, I suspected he would not agree with the one I was making. I refrained, but it turned out I was right. Steve quickly responds that he "vehemently disagree[s]" and that "one has to read Boumediene with a particularly skewed eye to see some abstract idea of 'meaningful' review as the sole guidance provided by Justice Kennedy’s majority opinion." Steve writes:

Justice Kennedy’s opinion went out of its way to offer a host of reasons for why the CSRT/DTA review process was an inadequate substitute for habeas, including the inability to offer extrarecord exculpatory evidence; the lack of power to effectuate release; the various other logistical difficulties detainees faced in such proceedings; and so on. I dare say one should start there, rather than with a semantic debate over the word “meaningful,” to understand what the Suspension Clause requires (and whether the D.C. Circuit has watered-down those requirements). Moreover, as I’ve suggested before, one can’t only look to Boumediene; there’s also Hamdi, and its explanation of why “some evidence” is a woefully deficient evidentiary standard in long-term detention cases.

But this raises an interesting question I want to toss back at Steve. What are the specific "requirements" the Supreme Court laid out in Boumediene or Hamdi that the D.C. Circuit has refused to honor such that habeas review is not "meaningful" within the meaning of Boumediene? I can think of a few possible answers. Latif's presumption of regularity for intelligence reports might be seen as in tension with Boumediene's suggestion that the government has a burden in these cases. Steve mentions the Supreme Court's requirement of the availability of an order effectuating release; the D.C. Circuit has, of course, refused to order Uighurs released into the United States. But these are not examples of the D.C. Circuit's flouting the Supreme Court. They are each, rather, examples of the D.C. Circuit's taking a possible view of the law within the wide range of possibilities Boumediene theoretically can support. It seems to me that if one is going to accuse the D.C. Circuit of gutting Boumediene, one ought to start by identifying with some precision the precise substantive promise of the opinion that is not being honored.

I will let Steve's answer be the last word on this exchange.