The D.C. Circuit strongly disfavors en banc review. For longstanding cultural reasons, the court avoids en bancs whenever possible. This is generally a good thing. En bancs can be ugly; they stress a court's collegiality. The Latif case, however, should probably overcome the court's allergy to en bancs. I don't know whether Latif's lawyers will ask the full court to rehear the matter. But consider this post, for whatever it's worth, my explanation as to why I would like to see them do so--and my amicus brief to the court in their favor if they do. Until Latif, the D.C.'s Circuit's work on the Guantanamo cases had been impressively unanimous. Yes, there have been disputes among the judges--over the role of international law in these adjudications and over what remedies are available to a habeas court that orders a detainee freed, for example. But one thing had seen no dispute--much less a dissent that separated the court's liberals from its conservatives. All of the judges that heard each case agreed as to whether any particular detainee was, or was not, properly held. That's right. The court had managed unanimity on the disposition (if not necessarily the reasoning) of every single detainee's merits case it had confronted. This unanimity gave an impressively institutional flavor to the court's work. While detainee lawyers sometimes tried to cast it as the product of a group of conservatives out to gut Boumediene, they stumbled over the presence on key opinions of judges like Merrick Garland and David Tatel. Latif ends that streak with a bang, not a whimper. The court has not only now handed down a case in which two of its conservatives have affirmed a detention while one of its liberals dissents, it has done so in a fashion--as I explained yesterday--that taunts those who believe in the Boumediene framework and all but dares the Supreme Court to grant cert. As one commenter on Lawfare's Facebook page crudely but not-inaccurately summarized the case the other day, "[Judge Janice Rogers Brown] basically told [Justice Anthony Kennedy]: deal with the mess you created, [expletive deleted]; CADC has been making it up as we go along, let's see some guidance, so man up and GRANT!" Such a grant is a real possibility here. And while there are those would welcome it, I am not one of them. In my view, at least, the last thing we need at this stage is for the justices to step in and upset the D.C. Circuit's apple cart. And the problem with Latif is that it puts the whole apple cart in front of the court--some of it directly, some of it indirectly. Who bears the burden of proof? It's in there. What assumptions should the court make about government hearsay evidence? It's in there. How should a habeas court treat inconsistencies between detainee statements? It's in there. How should it look at patterns of behavior and data that may be suggestive of enemy group membership? It's in there. It's all in there in a particularly unflattering light to a court whose work product, more broadly, has much to say for it. Indeed, the D.C. Circuit's answers to these questions come off completely differently when the court speaks with one voice, as it has in the past, than when it fractures, particularly along ideological lines. It would be most unfortunate if the body of the court's work in this area showed up at the Supreme Court postured by Latif.
The core of the problem is that Latif moves the court perceptibly along the spectrum of possible implementations of the Boumediene framework--and it does so having made plain its hostility to that framework. Boumediene, particularly if read in combination with Hamdi, can theoretically support a number of different visions of judicial review. The Supreme Court's failure to give any kind of guidance as to which it had in mind is part of what made the decision so reckless. At one end of the spectrum, one could read the decision as requiring a probing litigation--just short of criminal process but still characterized by a heavy government burden to establish the conduct that gives rise to detention authority and strict rules regarding what sort of evidence it can use. At the other end of the spectrum, one can imagine judicial review that looks more like review of agency action--concerned less with redoing the basic fact-finding than with verifying that reasonable procedures did not veer wildly off the rails and produce and indefensible outcome. One can square either of these visions with the vacillating and sketchy Supreme Court doctrine, and I'm not hostile to a less, rather than more, robust conception of what Boumediene meant by "meaningful" review. In fact, I favor it. And redirecting the lower court in that direction is one of the real virtues, in my view, of the appeals court's work to date. Indeed, the D.C. Circuit has until now--working as a court to a remarkable degree--found its collective way along this spectrum. Its work had a center of gravity and coherence, and it is exactly that center of gravity that Latif moves. That is, it moves the court markedly closer to the agency-review model--in which the court defers to the executive on fact-finding that isn't ridiculous--than it had been until this decision. Had it done so because the panel confronted a question the court had never faced before, that would not be inappropriate. But as Judge Tatel points out in his dissent, and as the majority concedes, the court has confronted intelligence reports before in Guantanamo cases and has had to make judgments about how the district court assessed their reliability. And the court in this instance sharply diverged from the practice it had set out in those earlier cases. Latif reads--with all the caveats I laid out yesterday about redactions--as an example of a situation in which a detainee cleared the bar the court had set, and two members of the court then raised the bar. The question, quite simply, is whether the other members of the D.C. Circuit want Latif to represent their court's work product at the Supreme Court. I don't know how to handicap cert petitions. I never gave the earlier Guantanamo cases much of a chance. But this one seems to me different. It gives rise to a colorable claim that the principle that reins in habeas merits cases at the D.C. Circuit is that the government wins, that lower court factual findings that facilitate that outcome will get great deference while those that do not will get none, and that presumptions that have never existed in the court before will come into being full-blown when needed. For whatever it's worth, I don't think that's where the majority of this court is. And it would be a real shame if the body of the court's work product ended up before the justices as a result of a case that even arguably cast it in that light. Counting five votes to en banc a case like this is difficult. But it would be a very healthy exercise for the D.C. Circuit judges to consider whether this opinion should be taken up undisturbed.