By Stephen I. Vladeck, professor of law and associate dean for scholarship at American University Washington College of Law.
Near the end of her majority opinion in Latif v. Obama (the most recent decision by the D.C. Circuit in the Guantánamo habeas litigation), Judge Janice Rogers Brown offered the following observation:
As the dissenters warned and as the amount of ink spilled in this single case attests, [the Supreme Court’s] airy suppositions [in Boumediene v. Bush] have caused great difficulty for the Executive and the courts. . . . Boumediene fundamentally altered the calculus of war, guaranteeing that the benefit of intelligence that might be gained—even from high-value detainees—is outweighed by the systemic cost of defending detention decisions. While the court in Boumediene expressed sensitivity to such concerns, it did not find them “dispositive.” Boumediene’s logic is compelling: take no prisoners. Point taken.
For reasons that I elaborate upon below, Judge Brown’s disturbing lament provides an unfortunately appropriate epigraph to mark the tenth anniversary of the detention of non-citizens without trial at Guantánamo.
Let’s begin with Judge Brown’s suggestion that the “airy suppositions” in Boumediene “have caused great difficulty for the Executive and the courts.” Because the Boumediene Court left the details of habeas review to the lower courts, the only “airy supposition” to which she can be referring is the underlying requirement that the federal courts provide detainees at Guantánamo with a meaningful opportunity to contest the legality of their detention before a neutral decision-maker. Never mind that, according to the Boumediene majority, it is the Constitution itself that requires such an opportunity; as a pure policy matter, why shouldn’t we want the government to have to explain the basis for holding individuals for 10 years or longer without ordinary adjudications of their guilt (or, at the very least, of their ongoing dangerousness)?
The answers Judge Brown suggests are because such adjudications (1) interfere with the Executive Branch; and (2) “cause great difficulty” for the courts. To the former, that certainly isn’t the position of the Obama administration. Indeed, one could perhaps argue that judicial review bolsters such detention by lending a judicial imprimatur to detention in cases in which the government prevails in the courts. Whether or not that’s a convincing rejoinder, though, Judge Brown offers no explanation for how judicial review otherwise interferes with the Executive Branch in any way more burdensome than requiring it to provide minimal evidence satisfying a fairly broad detention standard (especially under the D.C. Circuit’s case law) behind closed doors. One need look no further than the Latif decision itself to see the pains to which the courts have gone to keep sensitive information out of the public record, and there are to date no documented examples of sensitive information being improperly disclosed in the context of the Guantánamo habeas litigation.