The Supreme Court's denial of cert in Al Adahi is not in any sense a surprise. To the contrary, I would have been shocked if the justices had agreed to hear the case. It is, however, an important development worthy of note. The D.C. Circuit's opinion in Al Adahi was an extremely active decision--one that sought to redirect the district court's consideration of habeas matters on quite a few important points. Among other things, it:
- raised serious questions as to whether the government needs to prove a habeas case by a preponderance of the evidence or whether a lesser showing might suffice;
- insisted that lower courts not assess each piece of government evidence in isolation from one another but consider the "conditional probability" of each piece of evidence's contributing to the government's burden of proof in light of the other established facts;
- suggested that false exculpatory statements by detainees should be treated as evidence in favor of detention;
- suggested that a detainee's "voluntary decision to move to an al-Qaida guesthouse, a staging area for recruits heading for a military training camp, makes it more likely--indeed, very likely--that [he] was himself a recruit"; and
- treated the detainee's attendance at an Al Qaeda training camp as "to put it mildly--strong evidence that he was part of Al Qaida" and did not treat evidence that he left the camp as undermining that conclusion; in fact, the D.C. Circuit treated the detainee's training as conclusive on its own.
The Supreme Court's unwillingness to hear the case suggests a comfort level with letting the D.C. Circuit continue writing the rules of these habeas cases and a lack of interest in getting down and dirty with the nitty gritty of detention. If that lack of interest persists--as I suspect it will-the rules will continue to develop incrementally in undercovered cases like Al Adahi--cases that many in the press will ignore altogether or will consider as only one "point" on the so-called "scorecard" but which will actually define the lawful parameters of detention both at Guantanamo and. ultimatley, elsewhere. And let's be honest: he rules the D.C. Circuit will write, as Al Adahi shows, will be quite unfavorable to detainees. Will the human rights community continue to insist that "habeas works"--that the judiciary is the appropriate body to make detention policy--even when judges end up creating a detention system with rules this generous to the government?