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Goodbye to Gitmo—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on May 16, 2012.

Goodbye to Gitmo
By Linda Greenhouse ’78 MSL

Among the things we’ll learn by the time the Supreme Court recesses for the summer is whether the justices are finished with Guantánamo.
Of course, the court won’t post a sign declaring “No más Guantánamo.” The point is that the justices are scheduled in the coming days to consider whether to hear any of the half-dozen new appeals filed in recent months on behalf of detainees at the United States naval base in Cuba. One is an appeal of a framework-shifting appellate ruling that makes it nearly impossible to challenge the validity of the intelligence reports on which the government relies for most of the continuing detentions. If the Supreme Court turns all the cases down, as is quite likely and as the Obama administration is urging, the message will be the same: We’re through.

Whether that outcome should be a cause of regret is open to debate. It’s hard to imagine good law coming out of a renewal of the Supreme Court’s interest at this point. If the justices were troubled by the government’s use of hearsay evidence or the other procedural issues that detainees’ habeas corpus petitions have raised during the last few years, they would have intervened by now rather than regularly turning down earlier appeals.

The fate of the detainees, now numbering 169 and in some instances entering a second decade of confinement, was after all never the court’s principal interest. It was primarily a separation-of-powers concern that fueled the inter-branch drama of 2004 to 2008, during which a shrinking majority, over increasingly sharp dissents, pushed back against the Bush administration and Congress to assert the court’s own institutional authority.
And it is for institutional reasons that I hope the court feels a responsibility to get back into the game, despite my lack of confidence in the outcome. 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.

The single detainee who prevailed in the district court since 2010 is a Yemeni named Adnan Farhan Abdul Latif. He was picked up by the Pakistani police near the border of Pakistan and Afghanistan in late 2001 and sent to Guantánamo in early 2002.

Mr. Latif claims that he was not a fighter for Al Qaeda or the Taliban, but that he had left Yemen in search of medical care for a head wound suffered in a car accident. He had his medical records with him, and no weapon, when he was seized. The government bases its contrary view on a classified intelligence report compiled at the time of his capture. Federal District Judge Henry H. Kennedy Jr. found that the report was “not sufficiently reliable” to meet the government’s burden of proof. Judge Kennedy, a former federal prosecutor who has since retired from the bench, said the allegations in the report were uncorroborated and that Mr. Latif’s contrary account was at least plausible. Mr. Latif’s detention, Judge Kennedy said, “is not lawful.”

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.’ ”

To a startling degree, the conservative judges on the D.C. Circuit have been openly at war with the Boumediene decision. Judge Brown referred in her opinion to the “airy suppositions” of the Supreme Court’s majority. Judge A. Raymond Randolph, who wrote the opinion in the Al-Adahi case and in several other important government victories, in a 2010 speech to the Heritage Foundation, pointedly analogized the justices in the Boumediene majority to Tom and Daisy Buchanan in “The Great Gatsby”: “careless people, who smashed things up” and who “let other people clean up the mess they made.” (Judge Randolph wrote the appeals court ruling that the Supreme Court’s Boumediene decision overturned.) Judge Laurence H. Silberman, in a concurring opinion a year ago, described the Boumediene decision as “the Supreme Court’s defiant – if only theoretical – assertion of judicial supremacy.”

Only theoretical? I can’t remember such open and sustained rudeness toward the Supreme Court by a group of lower court judges. Eric M. Freedman, a law professor at Hofstra University and an expert on habeas corpus, wrote this month in “The Federal Lawyer,” with reference to the Southern federal judges who had to carry out school desegregation, that “if the judges of the Fourth and Fifth Circuits had behaved after Brown as many of the judges of the D.C. Circuit have behaved after Boumediene, school desegregation would have been delayed for agonizing additional decades.”

Maybe the justices, or a majority of them, think the D. C. Circuit is calling it right. Maybe the D.C. Circuit is right. That’s not the point. Rather, it seems to me that a court that had so much institutional pride just a few years ago ought to care enough now not to let itself be dissed by lower court judges who, in the system as I understand it, owe the Supreme Court obedience rather than on- and off-the-bench sniping. Let the Supreme Court take the reins back into its own hands and, as Chief Justice John Marshall famously promised, tell us what the law is.