an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The D.C. Circuit and Guantanamo: The Defiance Reaches New Heights
The D.C. Circuit's latest Guantanamo detainee habeas decision (Latif v. Obama) should resolve any doubts about whether the Supreme Court must intervene if it wants to preserve any vestige of its 2008 decision in Boumediene v. Bush. Ben Wittes at Lawfare has an excellent series of posts on the decision--the sixth in which the appeals court has reversed a district court habeas grant--and provides an extensive analysis that I will not repeat here. While Ben views Latif as a lamentable aberration from the D.C. Circuit's emerging body of (otherwise sound) post-Boumediene jurisprudence, I see it rather as the culmination of a series of D.C. Circuit decisions that have effectively gutted Boumediene by construing habeas in the narrowest of terms, reversing district judges who've sought to scrutinize the government's evidence, and denying judges any power to remedy unlawful detention. Either way, Latif presents the best opportunity yet for a cert grant of a habeas merits decision (in no small part because of a 45-page dissent by Judge Tatel, the first from any such decision). Here are four reasons why.
First, the decision virtually precludes meaningful district court fact-finding and tilts the balance decisively in favor of the government. In Latif, the D.C. Circuit, for the first time, ruled that government intelligence reports must be afforded a "presumption of regularity," a presumption accorded typically to state court fact-findings that arise out of a formal and public adversarial process in which parties' interests are safeguarded by attorneys and in which state court judges are bound to apply the law faithfully--the antithesis of an intelligence report based on a government official's interrogation of a prisoner without counsel and after years of extrajudicial detention. As a result, judges must now assume the accuracy of these reports--despite substantial evidence that the reports, including the one in Latif itself, are often unreliable--and detainees must rebut the presumption. While the presumption applies only to the accuracy of what the report describes (e.g., that the detainee, in fact, made the particular statement to the interrogator), and not to the underlying truth of the information itself, that distinction will make little difference in practice. As Judge Tatel noted in dissent, the ruling "comes perilously close to suggesting that whatever the government says must be treated as true."
Reasonable minds may differ about what Boumediene meant by a "meaningful opportunity" to challenge the government's evidence, and the Supreme Court did not provide much guidance on that point. But recall that Boumedieneinvalidated a statute that provided for judicial review of an administrative fact-finding procedure (the CSRT) that employed similar presumptions because of the high risk of error. Latif threatens the error-correction function of executive-detention habeas and constrains the district court's ability to evaluate the reliability of the government's evidence. Presuming the accuracy of mistake-prone government documents--prepared without any of the underlying protections that the Supreme Court deemed important in the executive detention habeas context--flies in face of Boumediene's call for a searching judicial inquiry.
Second, the decision demonstrates the futility of further percolation. The Supreme Court has made the D.C. Circuit the only circuit able to hear Guantanamo detainee habeas cases. The Court undoubtedly wanted to give the D.C. Circuit space to interpret Boumediene and develop the law around executive-detention habeas. But at this point, the contours of that law are clear, both in terms of the category of individuals who may be detained under the 2001 Authorization for Use of Military Force and the process to which they are entitled in determining whether they fall within that category. Additional D.C. Circuit decisions will not shed much, if any, additional light on these questions. And, given the circuit's narrow view of district court fact-finding powers, heightened deference to the government's evidence, and basic misconceptions about the purpose and meaning of executive-detention habeas, the conflict with Boumediene is clear.
Third, the political process will not obviate the need for Supreme Court review. Obama's plan to close the prison is in shambles: not only is there significant public opposition to closure but legislation precludes the transfer of Guantanamo detainees to the U.S. for any purpose and constricts the president's ability to transfer detainees to other countries. Additionally, the administration itself has committed to the indefinite detention of a significant number of Guantanamo detainees. The issue, in short, is not going away.
Finally, the Court's institutional legitimacy is at stake. In her opinion in Latif, Judge Brown remarks that Boumediene's "airy suppositions have caused great difficulty for the Executive and the courts." This is not the first time a D.C. Circuit judge has attacked the decision he/she is supposed to be faithfully applying or tried to goad the Supreme Court into granting cert. Judge Randolph has castigated the Supreme Court for creating a "mess" in Boumediene and maintained that the decision to grant detainees habeas rights was wrong. Judge Silberman has expressed similar views. As Latif shows, this disdain among a number of D.C. Circuit judges has helped lead to decisions that collectively eviscerate Boumediene and foster what Judge Tatel describes (at least in Latif) as a result-oriented jurisprudence in which the circuit's main purpose is to affirm habeas denials and reverse grants.