David Remes on Al Adahi Cert Denial

Habeas lawyer David Remes sent in the following thoughts about the Supreme Court's denial of certiorari in Al Adahi today--about which I commented here:

That the Court did not grant review is a disappointment to those of us who believe the D.C. Circuit is thwarting the promise of Boumediene by making it ever easier for the government to justify detentions and impossible for district court judges to compel the government to release even those detainees who win their habeas cases. But Ben places too much weight on the denial of certiorari. One can't argue with the proposition that if enough Justices thought the D.C. Circuit's decision warranted review, the Court would have granted review. But it doesn't follow that in denying review the Court was indicating comfort with the D.C. Circuit's decision. The Court doesn't view every case as an appropriate vehicle for deciding the questions presented, and the Court itself has admonished time and again that a denial of review signals nothing about the Court's views of the merits. The "habeas works" argument, I must add, is not a claim that the courts are reaching the right decisions, but a claim that they're acting as courts are supposed to act, and that legislative intervention is unjustified and institutionally inappropriate. I don't expect habeas counsel or the human rights community to revise their views on that score.

David is quite right that one should not place too much weight on any given cert denial, and that a cert denial is far from a comment on the merits of a lower court decision. My point is simply that the Supreme Court, while insisting that habeas be available, has shown no appetite for getting involved in the nitty gritty of the writing of the rules that will govern detention. While that might change, cert denials in cases like Al Adahi should concentrate the human rights mind and make people ask if they are truly prepared to live under the rules the D.C. Circuit is writing--which may well prove to be the final word on many subjects.