Detention: Law of: Supreme Court Development

Thoughts on the Cert Denials

By Benjamin Wittes
Tuesday, June 12, 2012, 4:42 AM

Being in a time zone very far from home, I am late to the discussion of the cert denials in the Guantanamo cases. I have only one thought to offer beyond what Steve said earlier--with which I almost entirely agree.

There will surely be a cascade of commentary now to the effect that the Supreme Court has acquiesced to the D.C. Circuit's gutting of Boumediene. That cascade has already begun. Lyle Denniston writes in SCOTUSblog that,

In a string of decisions, not one of which the Supreme Court has been willing to review, the D.C. Circuit fashioned its own legal rules for Guantanamo cases, including at least two review methods that strongly favored the government’s evidence. Along the way, three judges on the D.C. Circuit — Senior Judges A. Raymond Randolph and Laurence H. Silberman, and Circuit Judge Janice Rogers Brown — have publicly and sharply criticized the Boumediene decision.   The Supreme Court, turning its judicial cheek, has never responded to any of those criticisms, other than to leave the D.C. Circuit with virtually sole control of continuing litigation by Guantanamo prisoners and their volunteer lawyers.

I think this line of argument is wrong. For one thing, Steve is certainly correct that the Guantanamo litigation remains very consequential, despite the government's winning streak at the D.C. Circuit. A lot of detainees have been freed because of court orders the government did not appeal. More still have been freed in anticipation of habeas litigation the government did not feel confident defending. In more cases still, the government had to consider very seriously whether its evidence would or would not stand up in court, and thus had to think long and hard about the merits of detentions.

On the merits, moreover, the idea that the D.C. Circuit gutted Boumediene assumes that the Supreme Court's decision in that case had fixed, meaningful, defined content and that the D.C. Circuit judges denuded it of that content. I don't think this is really true. Boumediene required meaningful review of a detention. The term "meaningful" can cover a lot of ground, and I know that people in the defense bar and many liberals find it inconceivable that meaningful review  could encompass some of the procedural and substantive steps the appeals court has taken. Speaking personally, I would certainly have preferred a different outcome in Latif. But that said, I cannot say that the system the D.C. Circuit has created, warts and all, is inconsistent with a district court's conducting a meaningful review of the evidence--though it certainly requires a relatively deferential review both on the law and on the facts. The result is that I don't think it's a particular abdication on the part of the justices for them to see the circuit court's work here as broadly within--rather than outside of--the ambit of what the high court demanded when it wrote Boumediene four years ago. We need not see the justices's disinclination to interfere, in other words, as a betrayal. It might simply reflect that the justices' understanding of the word "meaningful" is less fulsome both substantively and in procedural terms than are those of the many lawyers and commentators whose expectations they have now disappointed.