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Tuesday, September 21, 2010

The Habeas Scorecard Doesn't Matter--Except When It Does?

Lurking just behind the scenes in our ongoing debate over the Graham bill is a deeper conversation with regard to the importance and significance of habeas review in the Guantanamo detention cases.  This appeared to culminate two weeks ago with my and Ben's exchange over the so-called habeas "scorecard," and the meaningfulness (or not) of the percentage of post-Boumediene cases in which the detainees have prevailed on the merits. Ben, as you may recall, finds the scorecard largely useless (or at the very least misleading), since it may (in his view) overstate the nature of the success of the detainees in these cases, while underselling the government's key "wins." (My response is here; Ben's reply is here.)

Now, Ben has a new post up extolling the virtues of an article by Aziz Huq arguing that, empirically, habeas has been largely unsuccessful in these cases, at least in actually producing the release of the detainee.  After summarizing Aziz's findings, Ben asks rhetorically "How valuable is [habeas] really as a mechanism for freeing the innocent? Policy differences aside, Huq’s empirical answer seems to me profoundly correct." I don't disagree for a moment that habeas has directly forced the release of a detainee we otherwise would not have released in a distressingly small percentage of cases (indeed, Aziz's data is irrefutable).  But Ben's post (and, to a lesser degree, Aziz's article) misses two critical points, defects that are all the more surprising given's Ben's arguments in his earlier criticisms of the "scorecard."

First, and directly, the data necessarily do not take into account cases in which the government decided to release a detainee before risking a loss in subsequent habeas litigation. There is, as Ben conceded earlier, no way to quantify how many cases fall into this category, but it's virtually impossible to believe, based on the numbers of detainees we've released from Guantanamo over the years, that it's a null set. Habeas doesn't have to work directly to work--it can, and almost certainly does, affect policy by requiring the government to decide up front whether it's going to defend particular cases or not. (Indeed, this is one of the themes of my review of Ben's book--that the courts often influence policy indirectly, and so one can't just rely on the results in individual cases.)

Second, the data don't take into account the extent to which the executive branch (under both the current and past administrations) has fought tooth-and-nail to limit the powers of the federal courts to effectuate release in cases in which the detainee has prevailed.  And I think it is not an overstatement to say that the D.C. Circuit has been complicit in this regard, adopting decisions in Kiyemba I and Kiyemba II that heavily undermined the potential effectiveness of habeas--decisions I critique as being inconsistent with the original understanding of habeas in this forthcoming article. For those, like me, who find deep problems with these decisions, it is easy to see how habeas can--and should--do more in these cases.

Separate from these specific points, there's a deeper disconnect here: Step back for a moment and ask yourself where we would be today had the Supreme Court held in 2004 that the Guantanamo detainees were not entitled to pursue habeas relief, and things ended there. Would we really be "better off" from a policy standpoint? Is there any chance that we'd know as much as we now do about what has actually happened at Guantanamo (and to the detainees)? Would we have had any judicial review of the military commissions invalidated in Hamdan? Whatever the warts of the habeas process, do we really think it's had a marginal effect on the shape of U.S. detention policy? Folks may be troubled by the role habeas has played, but it strikes me as a silly argument (and one I thought Ben had already rejected in the context of our debate over the scorecard) that its effectiveness can be deduced from the specific cases in which it has directly produced a detainee's release.

Posted by Steve Vladeck on September 21, 2010 at 09:28 AM in Blogging, Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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Aziz makes point one in his article, at around pp. 422-429.

Posted by: BDG | Sep 21, 2010 5:11:33 PM

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