I interviewed Daphne Eviatar for my radio show this week. Daphne is a former AINN colleague who is now an attorney with Human Rights First specializing in law and national security. We talked about the military commissions that have restarted at Gitmo and about what the courts have been doing with the issue over the years. She told me some things I did not know about recent court rulings, then sent me a link to a new article by Linda Greenhouse discussing some of the same things.
One of the things I asked her about was what happened to the Boumediene ruling, which held that Gitmo detainees have a right to a habeas corpus hearing in civilian court. Since that ruling, there have been dozens of such hearings and about 80% of them initially ruled against the government, the judges concluding that there wasn’t enough reliable evidence to justify holding the detainee. But the appeals court has, since then, consistently overturned those rulings and gutted the result in Boumediene without a peep from the Supreme Court. Greenhouse explains the trend:
The fourth anniversary of the court’s last Guantánamo decision, Boumediene v. Bush is less than a month away. That was the decision recognizing a constitutional right for detainees to go to federal court to challenge their continued confinement by means of petitions for a writ of habeas corpus. Access to the writ, Justice Anthony M. Kennedy wrote in the majority opinion, “must be effective” and federal judges “must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive’s power to detain.”
Since that day in June 2008, the justices have basically permitted the Guantánamo issue to be outsourced – not, of course, to another country, but to another court, a few blocks down Constitution Avenue: the United States Court of Appeals for the District of Columbia Circuit. There, the review of the government’s evidence has turned out to be anything but meaningful. The court has been something very close to a rubber stamp.
It didn’t look that way in the beginning. The federal district judges within the D.C. Circuit, across the ideological spectrum, were meticulous in their scrutiny of the cases assigned to them. The government won some and lost some. Seton Hall University Law School’s Center for Policy and Research, for years a leading resource in tracking Guantánamo legal issues, issued an analysis this month of the district court rulings on habeas corpus petitions since the Boumediene decision. There were 34 rulings during the first two years, with district judges granting habeas corpus in 19 while ruling for the government in 15.
The basic issue in all the Guantánamo cases is whether the government has shown by a “preponderance of the evidence” – a low standard of proof, meaning more likely than not – that a detainee was “part of” Al Qaeda or the Taliban, the category of individuals who may be detained under the Authorization of Use of Military Force. It is basically a factual inquiry, and the evidence is often circumstantial, turning on such elements as whether the detainee committed hostile acts before capture, stayed in Qaeda-related guesthouses and/or training camps, or traveled from his home to Afghanistan or Pakistan by a particular route.
From 2008 until mid-2010, federal district judges ruling in habeas corpus cases rejected the government’s factual evidence 40 percent of the time. Then things changed. In a case called Al-Adahi v. Obama, the Court of Appeals overturned a grant of habeas corpus and criticized that decision for “having tossed aside the government’s evidence, one piece at a time.” The appeals court ordered the district judges to apply a holistic approach to the evidence, one it called “conditional probability analysis.” The notion was that even if the government lacked proof of the various pieces of the puzzle, evidence that was merely suggestive in isolation could add up to an integrated whole, at least one sufficient to meet the government’s “preponderance” standard. In January of last year, the Supreme Court turned down an appeal of that ruling.
After the Al-Adahi ruling, as the Seton Hall report shows, the district judges immediately became considerably deferential toward the government’s evidence, rejecting factual allegations only 14 percent of the time. The district judges have denied 11 of the 12 habeas corpus petitions they have considered since then. In the one case in which a district judge ruled in the detainee’s favor, the appeals court overturned the decision. Over all, the appeals court has reversed or vacated every favorable decision that it has reviewed.
And here’s the big reason why. This is what Daphne told me that I’d never heard before:
A three-judge panel of the appeals court split 2-to-1 in overturning that ruling last October, and an appeal in Latif v. Obama is now the most important of the cases awaiting the Supreme Court’s action. The majority opinion by Judge Janice Rogers Brown announced a new, highly deferential standard toward the government’s factual allegations. Government records, including intelligence reports like the one submitted in the Latif case, she said, are entitled not only to the standard “presumption of authenticity” – that the report is what the government says it is – but additionally to a presumption of reliability – that its assertions are accurate, unless the detainee can somehow refute them.
This was a highly significant step that has the effect of shifting the burden of proof from the government to the prisoner – not only in the Guantánamo context but, foreseeably, in other document-dependent cases as well. Judge David S. Tatel objected in dissent that it was a step too far that “discards the unanimous, hard-earned wisdom of our district judges,” all of whom have held the government’s evidence up to scrutiny and have refused to adopt the presumption that the appeals court now requires.
“Not content with moving the goal posts, the court calls the game in the government’s favor,” Judge Tatel wrote. He said it was “hard to see what is left of the Supreme Court’s command in Boumediene that habeas review be ‘meaningful.’”
For all practical purposes, Boumediene is dead, and any hope of a genuine limitation on the executive branch’s power to detain anyone they want for as long as they want even if there’s no real evidence that the person did anything wrong. The Supreme Court has a chance to take up the Latif case, which they will decide in the next few days. Greenhouse thinks they’re going to deny cert and I suspect she’s right. Because it’s clear that the court simply washed its hands of the issue after Boumediene and are content to let the D.C. Circuit rewrite that ruling into oblivion.