Guantanamo: Litigation

Thoughts on Al Alwi

By Benjamin Wittes
Saturday, July 23, 2011, 7:43 AM

I normally have a pretty good read on the D.C. Circuit in habeas cases. Not this time. Al Alwi, one of the decisions which Wells posted yesterday, took me rather by surprise.

To be true to what I wrote last month, I suppose I should declare that my Lawfare account was hacked and I never wrote the post in question--which predicted that Al Alwi would prevail on procedural grounds and win a remand. But the truth is that I was expecting a rather different outcome. More importantly, the court's opinion effectively completes a remarkable 18 months of reorientation of the district court on Guantanamo matters--one that will make it extraordinarily difficult for a detainee to prevail in a habeas case in the future. Depending on one's perspective, that may be a bad thing or it may be good thing. But it's certainly a big thing--and it's a very profound change. The inane "scorecard," which to delight of the habeas bar--and the press--showed for a long time an ever-widening ratio of detainee wins to government wins in habeas cases, has been dramatically lopsided in the other direction of late. And absent intervention by the Supreme Court, it will grow ever more so as district judges decide ever more cases under the D.C. Circuit's new case law. Al Alwi was, I suspected, the case that might cut the other direction a bit and prove that some set of facts might let some detainee prevail there. From a panel about as good as Al Alwi could have drawn from his point of view--Judges David Tatel, Merrick Garland, and Stephen Williams--he got exactly zero votes.

To be sure, I wasn't suggesting that Al Alwi should win on the merits. He had a loser of a merits case. But Al Alwi also had procedural objections to the way Judge Richard Leon handled his case--arguing that in Judge Leon's zeal to handle the case quickly, he cut corners to the detainee's detriment. And these seemed to me both in the briefs and at oral argument to have some force. They gained no traction, however, before the court, which allowed that one of Judge Leon's choices, in particular, was "hard to understand" but saw them all as either harmless or not abuses of discretion. The result will be, I suspect, a strange message to the lower court judges. Having emphasized over a series of cases that the judges need to lighten up on the government on substantive matters, the court now seems to be saying that if, conversely, judges race to an adverse judgement against a detainee, the appeals court will tolerate quite a lot. The case won't attract a lot of attention, and the specific issues in Al Alwi are not in and of themselves important, but the gestalt tone and message of the D.C. Circuit's case law is important.

And the result is a profoundly different legal environment than existed in the district court only quite recently. District judges used to feel obliged to supervise extended litigation in order then to apply rigorous legal standards to government evidence, which they often examined in granular detail and found wanting. Now the D.C. Circuit has insisted that the legal standards are far lower and that the evidence should be examined as a composite whole. And it has signed off on a very different balance between the competing values of speed and thoroughness than most of the district judges have applied. It's an environment in which a great many more detainees will lose--and much more quickly.