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.
As to Judge Brown’s objection re: judicial interference, Latif itself is the first of the (roughly 20) habeas appeals to generate opinions from the D.C. Circuit on the merits exceeding 21 pages in the Federal Reporter. [By contrast, the D.C. Circuit’s opinion on the health care legislation -- which was handed down days before the Supreme Court granted certiorari to resolve the same issue in another case -- occupies 54 pages of the Federal Reporter, to say nothing of the 136 pages published in “F.3d” by the Eleventh Circuit on the same issues.] To be clear, one should not equate the length of the opinions a particular case generates with the amount of work it required. But if Judge Brown’s point is that these cases are a waste of the federal judiciary’s time, I’m sure we can all think of better examples that don’t have at their core an individual who has been detained (whether validly or not) without ordinary criminal process for upwards of a decade.
Judge Brown also suggested that “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.” Again, this assertion rests on troubling (and entirely unsubstantiated) assumptions, e.g., (1) that each of the detainees has intelligence value; (2) that the government has released detainees it believed to have intelligence value entirely because it feared the political, financial, or intelligence cost of defending its decision to detain them; and (3) that any high-value detainee has been released. Yes, judicial review of the Guantánamo detentions requires the government to engage in cost-benefit analysis. And in at least eleven distinct cases (affecting 31 detainees), the government has declined to appeal on the merits a district court’s decision granting habeas relief.
Nevertheless, Judge Brown ascribes a motive to the government’s abandonment of these appeals without any proof. And given how deferential she and her colleagues have been to the government’s position in these cases, particularly when it comes to protecting sensitive information from disclosure, it defies logic that the government would think that its odds of losing were greater in the D.C. Circuit than in the trial court in any of these cases. Taking Judge Brown’s reasoning to its logical conclusion, the fact that the inmate population at Guantánamo has declined from 779 to 171 over the past decade must represent the inappropriate cost-benefit analysis that judicial review has required, rather than, as is far more likely the case, long-overdue realizations by the federal government that many if not most of the Guantánamo detainees needn’t be detained any longer – or even that they shouldn’t have been detained without trial in the first place. That doesn’t mean there haven’t been false negatives; but for every alleged instance on a detainee participating in terrorist activity after their release from Guantánamo, there are dozens of stories like that told by Lakhdar Boumediene in this Sunday’s New York Times.
But the most alarming remark in Judge Brown’s closing is the observation that “Boumediene’s logic is compelling: take no prisoners.” It’s hard to know just what Judge Brown meant by this turn-of-phrase. Perhaps she means that, faced with a choice between detaining a terrorism suspect with judicial review or choosing more lethal forms of incapacitation, our military commanders in the field will be compelled by Boumediene to choose the latter, lest they face the potential costs of after-the-fact judicial review. Never mind that such conduct could very well be tantamount to a war crime, as defined, for example, by the Military Commissions Act – see 10 U.S.C. § 950t(b)(6); such rhetoric also assumes that military detention and judicial review are mutually exclusive, a point belied by the dozens of cases in which she and her colleagues have affirmed the district court’s denial (or reversed its grant) of habeas petitions arising out of Guantánamo.
All that said, “take no prisoners” may be a more appropriate mantra with which to mark the tenth anniversary than even Judge Brown intended. After all, Congress has imposed comprehensive restrictions on the use of appropriated funds to transfer detainees who have been cleared for release either into the United States or back to their home country in any case in which a prior detainee from that country has been accused of engaging in terrorist activity after their release. The D.C. Circuit has imposed legal obstacles all its own on the ability of detainees to effectuate their release once they have prevailed in a habeas petition. And the Obama administration, despite its campaign pledge to “close Guantánamo,” has seldom shown any inclination to expend political capital toward that end. So if what Judge Brown really meant is that this litigation has become an exercise in futility because we have contrived to make it impossible for us or almost any other country to take any of the dozens of men who have been cleared for release but remain at Guantánamo ten years in, then she may have – sadly – hit the nail on the head.
Take no prisoners, indeed.
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