One More Thought on the Definition of "Prevail"

Just a quick follow-up on my post of this morning. A correspondent points out to me that on David Remes's definition of "prevailing," Boumediene itself should be counted as a government win. After all, the Supreme Court in that case only remanded the matter, without actually granting habeas relief to the petitioners. That, of course, surprised nobody, and nobody thought to describe Boumediene as a victory for the government on grounds that it had lived to fight another day and hold the detainees at Guantanamo while it did so. Yet under Remes's definition--and the New York Times's--I think we would have to say that the petitioners did not prevail in Boumediene. The government did. And that would raise an interesting question: Could Boumediene be considered a betrayal of . . . Boumediene?