Judge Laurence Silberman's concurring opinion today in Esmail makes three points, each of them warranting comment. I have enormous regard for Judge Silberman, and I critique his opinion with caution. But I confess myself a little perplexed by it. The first of his points I am honestly not sure I understand. The second is interesting and challenging, and I disagree with it. The third rests, albeit conditionally, on a factual misstatement.
Judge Silberman starts with a point that was clearly important to him at oral argument but which the instant case does not raise: A detainee who never joined an enemy group but who "fought alongside of al Qaeda, the Taliban, or with associated forces" would, he argues, be detainable under the AUMF. The government, he notes, agreed with this point at oral argument. And under the D.C. Circuit's recent case law, which defines detainability based on a functional examination of the role the detainee plays in an enemy group, it seems right. That said, I'm not sure why it has great significance to Judge Silberman. There was no finding in this case that Esmail had never joined the enemy. Nor offhand can I think of a case in which a district court judge found that a detainee had never joined the enemy but did fight alongside it. Judge Silberman says that "[d]istrict courts, in that sort of case, need not strain to find a petitioner is 'part of al Qaeda.'" I'm not sure that any district court judge was actually straining with this problem, nor am I sure why this particular point has such salience as to warrant a separate opinion.
Judge Silberman's second point is clearer--though also not begged by a case in which the court regarded the government's evidence as very solid: He comes out squarely against the preponderance of the evidence standard in Guantanamo habeas cases. He does this in a particularly dramatic fashion, stating baldly that the cost-benefit analysis associated with releasing possible terrorists is different from that associated with releasing criminals and that there are thus "powerful reasons for the government to rely on our opinion in Al Adahi v. Obama" and seek a lower standard than the preponderance of the evidence. He goes so far as to predict that none of his colleagues "will vote to grant a petition if he or she believes that it is somewhat likely that the petitioner is an al Qaeda adherent or active supporter"--a highly unusual prospective judgment about how judges will behave in future cases. And he seems to embrace the "some evidence" standard as an alternative, at least insofar as he makes clear that he would release a detainee where the government couldn't muster some evidence.
The major significance of this passage, in my view, is that Judge Silberman is now the fourth sitting or senior judge on the D.C. Circuit to write or join an opinion publicly suggesting a standard below that of preponderance of the evidence. (Judges A. Raymond Randolph, Brett Kavanaugh, and Karen LeCraft Henderson had already done so in Al Adahi.) Whether or not he is right that no judge on his court would insist on the preponderance standard as a floor (I suspect he's wrong, but that's just a guess), his opinion does reflect a certain growing critical mass on the court for a lower standard--one that is worth keeping an eye on.
I think the judicial criticism of the government for not seeking a lower standard is unfortunate. I am not a particular fan of habeas as the optimal mechanism for judicial review of long-term detentions. But it seems to me hard to imagine, if judges are going to be hearing these cases, that the law would have them affirm a long-term detention despite a probability that the detainee before them is an innocent victim of mistaken identity merely because "some evidence" supported the detention. As a realistic matter, the government's decision to live with a preponderance standard is prudent. Judge Silberman says the Supreme Court is "unlikely" to impose the standard because "taking a case might obligate it to assume direct responsibility for the consequences of Boumediene"--and I share his contempt for the high court's unwillingness to clean up the mess it has made. I do not, however, share his confidence that the Supreme Court will not intervene if the D.C. Circuit started affirming detentions based on "some evidence." Rather, I think such a decision would be a cert magnet. So while his point has no small conceptual merit, I don't think the course he urges on the government would be wise, particularly since the government has been doing rather well under the preponderance standard.
Judge Silberman's final point represents a strange meeting of the minds with the political left and the detainee bar. Like habeas lawyers and academic critics of detention, he worries that "if it turns out that regardless of our decisions the executive branch does not release winning petitioners because no other country will accept them and they will not be released into the United States . . . then the whole process leads to virtual advisory opinions. It becomes a charade prompted by the Supreme Court's defiant--if only theoretical--assertion of judicial supremacy, sustained by posturing on the part of the Justice Department, and providing litigation exercise for the detainee bar." This sounds a lot like, say, Sabin Willett, who wrote recently that, “A fellow wins his case against the government and the remedy is for the court to say to the jailer, ‘please will you do something about it?’” It is animated, to be sure, by a different impulse, but it is the same worry.
The trouble is that Judge Silberman's point has a factual problem underlying it. As I explained in response to Willett's making the same argument, it hasn't "turned out" that the government does not release detainees following court orders to do so. There are no cases of detainees at Guantanamo who are being held following a final habeas victory, save those who have declined the resettlement offers the government has won for them. No, the Uighurs are not an exception. They are at Guantanamo because they prefered to stay there than to go to Palau. As the Supreme Court described their case,
By now . . . each of the detainees at issue in this case has received at least one offer of resettlement in another country. Most of the detainees have accepted an offer of resettlement; five detainees, however, have rejected two such offers and are still being held at Guantanamo Bay.
Silberman's point, and Willett's, certainly raises a valid theoretical concern. But it hasn't in fact been the case that people ordered released have stuck around in a fashion that has made court orders into advisory opinions.