The Washington Post has an interesting editorial today largely in support of Senator Lindsey Graham's new habeas bill. Like me, the Post expresses sympathy for Graham's basic project, and objects to the probable cause standard for detention, instead of the preponderance-of-the-evidence standard Graham used last year. The editorial is notable for another reason: Its concise and accurate reflection of the change of fortune the government and habeas counsel have experienced over the last year as these cases have wound their way through the courts. It has become something of a meme in the press that the government loses a lot of the Guantanamo habeas cases. But as readers of Lawfare (and virtually no other publication) know, that's actually not true anymore. The Post editorial puts it this way:
In 2008, the Supreme Court ruled that detainees at the U.S. Naval Base in Guantanamo Bay, Cuba, had the right to challenge their detentions in federal court. The ruling was a victory for the rule of law, guaranteeing independent review of what had been the executive’s unchecked ability to hold suspects indefinitely.
But the broad pronouncement left many questions unanswered. The justices, for example, offered no specifics on how the lower courts should handle these cases. Congress and the White House have since failed to fill in the blanks. As a result, different judges on the U.S. District Court for the District of Columbia have often reached radically different conclusions on which standards to apply and which approaches to take on everything from the admissibility of evidence to the basis for determining whether a detainee was part of a terrorist organization.
Early on, this hodgepodge approach often benefited detainees, a significant number of whom prevailed in arguing that they should never have been picked up in the first place. Then the cases began to get a second look from the D.C. federal appeals court, which often reversed the lower court rulings and established standards more favorable to the government. The precipitous seesawing has not been pretty—but it has not been the fault of the judges, who were forced to make up the law as they went along because of a lack of leadership from the political branches.