Thoughts on S.3707, Part V: Comparison with Current D.C. Circuit Law

By Benjamin Wittes
Monday, September 6, 2010, 3:07 AM

As I discussed earlier, there is a common misapprehension in the debate over the Guantánamo habeas cases—and detention law more broadly—that equates legislative approaches to detention with harsher policy and treats common law adjudication as more favorable to detainees. The misapprehension is easy enough to understand historically. When Congress has involved itself in detention matters to date, it has largely sought to restrict federal court jurisdiction—and thus detainee capacity to challenge detentions. Yet the point is not inevitable at all. It is perfectly possible for legislation to produce more procedurally and substantively generous rules for detainees than serial judicial rulings, particularly when those rulings are emerging from a conservative court. A comparison of the major components of the evolving status quo and the Graham proposal is thus an interesting exercise. What it reveals is that detainees may fair better under Graham’s proposal in important respects than under the rules the D.C. Circuit has been producing to date—and can probably be expected to produce in the future. This is particularly true if advocates for detainees and members of the human rights community were to engage seriously over the subject, rather than simply denouncing the effort as the latest right-wing attempts to gut the writ.

So let’s compare some major points of Sen. Graham’s proposal with the comparable pronouncements from the D.C. Circuit. Some of these pronouncements are, for now, controlling precedent. Others are dicta but suggestive of the court’s thinking or, at least, of the thinking of some members of the court who sometimes get to write majority opinions. Remember too that en banc review is relatively rare in the D.C. Circuit as a general proposition. And consider as well that the sort of questions these cases present are not generally cert worthy. One could thus imagine the D.C. Circuit as the final word on a great many of the relevant issues for many years to come.

Concerning the definition of the detainable class, the two standards are broadly similar. The differences between them are largely differences of specificity and precision. The D.C. Circuit has said the following:

for this case, it is enough to recognize that any person subject to a military commission trial is also subject to detention, and that category of persons includes those who are part of forces associated with Al Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners.

By contrast, the Graham bill defines the detainable class as anyone who:

(A) has engaged in hostilities against the United States or its coalition partners;

(B)  has purposefully and materially supported hostilities against the United States or its coalition partners; or

(C)  was a member of, part of, or operated in a clandestine, covert, or military capacity on behalf of the Taliban, al Qaeda, or associated force.

The standards are far less similar concerning the burden of proof. The Graham proposal, as previously noted, codifies that the government bears the burden of proof by a preponderance of the evidence. By contrast, the D.C. Circuit has raised serious questions about this standard. In one recent case, a unanimous panel wrote baldly that “we doubt . . . that the Suspension Clause requires the use of the preponderance standard” and strongly suggested that the government’s burden was far lower. The D.C. Circuit has adopted the preponderance standard on an arguendo basis only in the absence of any government request for a lower standard. Its rulings have actively invited the government to challenge the standard and have clearly signaled a willingness to adopt a less demanding one.

Similarly, the D.C. Circuit has adopted a far harder-line approach than the Graham proposal suggests for issues like terrorist training and stays at enemy-linked guesthouses. In a footnote in one case, the D.C. Circuit suggested that “evidence supporting the military’s reasonable belief of either of those two facts with respect to a non-citizen seized abroad during the ongoing war on terror would seem to overwhelmingly, if not definitively, justify the government’s detention of such a non-citizen.” The court has repeated this sentiment since, suggesting that detainee appeals under current law where a lower court had found either training or a guesthouse stay would not fare well. By contrast, the Graham proposal makes no presumption with respect to guesthouse stays—let alone an overpowering one. And its presumption with respect to training is far milder than the D.C. Circuit’s. In the face of evidence of training, there would be a rebuttable presumption that the detainee meets the definition of the detainable class. In the absence of evidence of withdrawal, that presumption would carry the day, but the detainee would have the opportunity to rebut it.

On a more speculative note, I have already offered to bet Daphne Eviatar that the D.C. Circuit will show greater tolerance of evidence allegedly obtained through coercion than Sen. Graham’s proposal shows. Since the court has not confronted a case that presents this question yet, we’ll have to wait and see on that. For now, suffice it to say there exists today no controlling precedent in the district court mandating the exclusion of the material Senator Graham’s proposal would exclude.

There are, to be sure, a few areas--discovery appears to be one--where the Graham bill, at least as currently drafted, would be decidedly less favorable to detainees than the standards that have prevailed in the district court. There are also areas where current law is unsettled and the Graham bill takes a position at the harder-line end of the range of possibilities. For example, it is unclear at present whether there exist any geographic boundaries to the government's detention authority or what the temporal endpoint to that authority might be. The Graham bill would answer these questions by clarifying that the government is authorized to engage in detention "regardless of the place of capture [and] until the termination of hostilities." Some judges, I am sure, would hesitate to embrace these answers under current law. Yet as with the coerced evidence issue, it is difficult to compare current law to the Graham bill on these questions confidently, because current law has not yet come to rest in a stable place and nobody really knows what it will look like when it does. For whatever it's worth, I don't believe it will end up differing greatly from the standard Graham's bill reflects, though I acknowledge that habeas counsel would have a lot more latitude to argue for a circumscribed geographic and temporal authority under current law than they would under Graham's proposal.

In short, the bill would certainly limit in important respects the arguments available to detainees in the district court—precluding arguments that have prevailed on both substantive and procedural matters. But at the same time, Graham's bill is probably more generous to detainees on other major issues than the law they can expect to emerge from the court of appeals. The Graham proposal thus offers both the government and detainee advocates an interesting trade. It offers the government a certain degree of added certainty concerning its litigating environment and a certain confidence level that the law will not drift towards those principles at play in the district court most unfavorable to its interests. In exchange, the government would have to give up the possibility of achieving certain maximalist positions in the D.C. Circuit, positions that it might based on current law reasonably expect to garner. For detainees, the Graham proposal offers the mirror image trade. It offers certainty that the litigating environment will not degrade to the point that the government merely has to produce, say,  “some evidence” of a brief stay in a guesthouse in order to defend a detention. It would create a statutory baseline in which detainees have a fair opportunity to contest their status. And in exchange, it would deprive detainees of some of the more outlying arguments that have prevailed to date before some (though not all) of the district court judges.