Detention: Law of: D.C. Circuit Development

A Reply for Ben...

By Steve Vladeck
Tuesday, June 12, 2012, 7:56 AM

Ben asks: "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've answered this question in more detail elsewhere (and am running out on another matter), but here's a quick list of D.C. Circuit conclusions that I think are at least largely inconsistent with Hamdi and Boumediene:

  1. Al-Bihani's holding that IHL is irrelevant to the scope of the AUMF.
  2. Al-Bihani's holding that individuals can be detained based on the MCA's definition of "unlawful enemy combatant," and therefore based solely on non-belligerent material support.
  3. Al-Bihani's holding that the evidentiary and procedural rules in Guantanamo habeas cases can be less than those that prevail in ordinary post-conviction habeas cases.
  4. Al-Adahi's endorsement of "conditional probability analysis," and its concomitant suggestion that preponderance of the evidence is too high a burden of proof to impose upon the government.
  5. Awad's holding (if memory serves) that vitiation is virtually impossible to prove (and that it doesn't matter if detainees are no longer a threat).
  6. Kiyemba I's holding that the federal courts are powerless to effectuate the release of Guantanamo detainees.
  7. Kiyemba II's holding that Munaf forecloses judicial second-guessing of Executive Branch assurances that detainees won't be transferred to torture (in fairness, this is a misreading of Munaf, not Hamdi or Boumediene).
  8. Latif -- for the reasons Ben identifies.
  9. Omar II's interpretation of the Suspension Clause.

Ben may well respond that none of the parts of Hamdi and Boumediene with which the above holdings are arguably inconsistent enunciated "specific requirements." But if the question is whether the D.C. Circuit has done its best to resolve these cases the way the Supreme Court's reasoning in Hamdi and Boumediene suggested they should be resolved (which is what I always understood to be the lower courts' mission), I think this list speaks for itself--and, indeed, is arguably incomplete.

Update: I should note two additional points that, in my initial haste, I failed to make overt: First, as I explained in some detail in my Seton Hall piece, the real opposition to Boumediene hasn't come from the entire D.C. Circuit, but rather from combinations of four judges--Judges Brown, Kavanaugh, Randolph, and Silberman.  To that end, three of the holdings I noted above (the IHL and material support holdings in al-Bihani and the criticism of preponderance in al-Adahi have either been jettisoned by the rest of the D.C. Circuit or overruled by Congress. Of course, given that there are only eight active judges on the court, nothing will go en banc without the support of either Chief Judge Sentelle or Judge Henderson, so there may come a point where, even as a vocal minority, these judges are at least effectively speaking for their colleagues. But one should not paint the entire court with the same broad brush. Second, with respect to Kiyemba I, I should have emphasized that the holding pertained to release into the United States; as we know, when it looked like the holding might in fact stand for a broader proposition, the Supreme Court intervened...