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Wednesday, September 08, 2010

Why the Scorecard Matters: A Response to Ben Wittes

Over at the new "Lawfare" blog, Ben Wittes has a post up outlining some objections to the media's increasingly common use of the Guantanamo "scorecard"--the unofficial tally of the 50-something post-Boumediene detainee habeas cases that have thus far been adjudicated on the merits.  (For one of the more easily accessible versions of the scorecard, see here.)

Ben's critique operates on several levels. For starters, he points out that the scorecard counts the same decision multiple times when it implicates more than one detainee (like the Uighur cases or Boumediene itself). Thus, it overcounts detainee "wins." (Of course, this depends on how one defines a "win.") Second, he notes that some of the detainee "wins" are only temporary, given the likelihood (in his view) that the D.C. Circuit will reverse on appeal. Third, he argues that the scorecard doesn't account for the number of cases in which detainees, for whatever reason, have chosen not to pursue habeas relief. And finally, as he observes, the figure the scorecard represents "ignores–or, rather, downplays–the most important government wins in these cases. These are not numerical but qualitative in nature; that is, it matters how the government wins and loses."

In my view, Ben's post has two distinct--but equally profound--flaws:

First, in putting so much emphasis on how the scorecard might over-state the detainee wins both numerically and qualitatively, he ignores several ways in which it under-represents them, as well. For example, the scorecard says nothing about cases in which detainees were released by the government prior to a judicial determination that they could no longer be held--the fate of an overwhelming majority of those held at Guantanamo, since we know that, at one point in time, upwards of 800 non-citizens were detained there (compared to the under 200 still in custody today). If anything, the fact that these decisions today are coming only after that process took place underscores how remarkable it is that so many of the detainees are prevailing on the merits in any event, regardless of how or why they are winning. Even Judge Leon, who wrote in 2005 that there was "no viable legal theory" on which a Guantanamo detainee might prevail, has ordered the release of a number of detainees.

Second, and more fundamentally, I fear that Ben's post fails to grasp why the scorecard matters. No one invokes the specific win-loss total (which, if I understand correctly, currently stands at 38-16) as proof of anything that a different ratio in the same ballpark wouldn't prove. That is to say, the actual numbers aren't the reason why the scorecard is such a big deal. The scorecard is important because it provides hard data for the proposition that the government lacks the authority to detain a more-than-insignificant number of Guantanamo detainees (including, for the record, all of the Uighurs). For those critics of the Supreme Court's decision in Boumediene and the litigation that both precipitated that decision and that has followed, the fact that the merits of these cases are so often favoring the detainees should prove the importance of the project, and the reason why habeas corpus jurisdiction matters. It's one thing to argue against judicial review when that review would make little difference--after all, how different would the ongoing debate over closing Guantanamo look if the government were winning in 80-90% of these cases? But where there is an unmistakable pattern identified by a bipartisan range of highly regarded judges, shouldn't that tell us something, regardless of the specific statistics used as evidence thereof?

Civil libertarians, human rights groups, and the detainees' lawyers themselves have maintained for years that many of the men still detained at Guantanamo are not there legally. What the scorecard shows, more than anything else, is that the judges of the U.S. District Court for the District of Columbia agree with that proposition more often than not. It's perfectly fine to argue, as Ben does, that the scorecard may not be precise. But that's hardly the point of it.

Posted by Steve Vladeck on September 8, 2010 at 07:50 AM in Blogging, Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink

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