Whether Judicial Minimalism in the Habeas Litigation Matters

Ben notes that one major flaw of the “scorecard” approach to the GTMO habeas litigation is that it fails to convey to the casual reader any sense of the considerable success the government has had thus far at the level of the D.C. Circuit.  Further to that point, my good friend Steve Vladeck has a post up at ACSblog observing that

the past two years have witnessed two of the nation’s most respected courts, looking at the same facts and legal issues in the same cases, and seeing them completely differently.

That’s exactly right.  I would add that the district judges themselves have divided in similar fashion on some important issues.   But does the existence of either set of disagreements really matter?

Note that Steve concludes that one ought to read the 7-vote statement by Chief Judge Sentelle in the al-Bihani en banc denial as a strong signal

that the vast majority of active Court of Appeals judges agree that their job in these cases is to review the individual district court decisions on their own merits, rather than issuing supervisory, categorical rules in cases where the specifics make no difference.

I certainly agree that the statement signals a desire not to resolve in that case the specific question of how international law relates to the AUMF, as well as a more general desire to avoid using dicta to resolve important questions.  But however desirable minimalism in judicial decision making may be as a general proposition, it is important to ask whether it is wholly desirable in the GTMO habeas context—particularly insofar as it allows uncertainty to linger both for the litigants and for other government activities undertaken under color of the AUMF.
My own sense is that minimalism is fine if the disagreements that linger in the interim turn primarily on evidentiary disputes regarding fact-finding in these cases. But it is a different kettle of fish if you believe that there are baseline questions of law that are in dispute, especially if you think (as I do) that the substantive scope of the government’s detention authority remains clouded.  How one comes down on the descriptive question of which issues are in dispute amongst the judges, in short, goes far toward determining whether one is troubled by the pace with which the litigation is moving (and, for that matter, whether one is troubled by the lack of legislation on this topic).