David Remes Responds to My Habeas Numbers

In a post earlier this week, Ben challenged a claim in a recent New York Times editorial that, in the 19 Guantánamo habeas merits cases the D.C. Circuit has decided, it “has never allowed a prisoner to prevail.” (Disclosure: I’m co-counsel in six of the cases, and I’m the source of the 19 number.)

This is a dispute, I think, about what “prevailing” means. In my view, and presumably that of the Times, “prevailing” means that the D.C. Circuit’s decision led to the detainee’s transfer from Guantánamo, or at least to an order requiring the government to make best efforts to transfer him. By that measure, the D.C. Circuit has never allowed a detainee to prevail. Indeed, in the Kiyemba cases, the D.C. Circuit held that even if a detainee wins all the way through, the district court has no power to compel the government to transfer him.

Ben asserts that the correct number of government wins is 15. He says, first, that the Times missed a case (Bensayah), so that the total number of merits decisions is 20. More important, he says that the Times should not have counted as wins or losses the five cases that resulted in remands, on the ground that remands are not conclusive, and the losing party lives to fight another day. Subtracting the five remands from the 20 cases nets the government 15 wins. (For the record, the 19 tally included Bensayah and excluded Al-Bihani (Tofiq). In that case, Tofiq, appealing a habeas denial, asked the D.C. Circuit to affirm the denial summarily, so he could go to the Supreme Court without delay. Because the detainee invited the affirmance, I haven't counted the decision as a true government win. I'm fine with doing so.)

The 20 versus 15 issue is important because whether one thinks remands should be counted as wins or losses for a party is bound up with how one defines “prevailing.” All remands are not created equal. Remands are government wins because no matter which party lives to fight another day, a remand guarantees additional years of litigation, and therefore additional years of detention. The government wins by not losing; the detainee loses by not winning. The D.C. Circuit can reverse a denial and remand for further proceedings, secure in the knowledge that the detainee will still go nowhere. In any event, even excluding the remands, the government still has a perfect score—15-0.

Ben argues that the Times should have counted in the detainees’ win column the 17 Uighurs who won in the Parhat case, if only because I and others count their habeas grants as 17 detainee wins. This is apples and oranges, because Parhat was not a habeas case, as Ben acknowledges. It was a Detainee Treatment Act case, in which the Uighurs directly appealed adverse CSRT determinations to the D.C. Circuit. The D.C. Circuit invalidated those determinations on the ground that the government’s evidence could not be assessed for reliability. In invalidating those determinations, however, the D.C. Circuit gave the government the option of going back to the CSRT and trying again. The government thus lived to fight another day and so, by Ben’s reasoning, Parhat cases should not be counted as detainee wins.

Ben says that the “perfect score” count for the government is misleading because the detainees always appealed their denials, no matter the strength of their cases. Ben appears to think that their appeals were weak because, in his view, the denials were justified (right, Ben?), so the D.C. Circuit was bound to affirm them. Ben also says that the “perfect score” count is misleading because, in his view, the government “chose to appeal” grants only when it “thought it had a strong chance of prevailing,” so the D.C. Circuit was bound to reverse them. In Ben’s view, it seems, these appeals were easy government wins, and it’s misleading to include easy government wins in the government’s win column.

The problem is that Ben assumes his conclusions. Yes, most of the losing detainees did appeal their denials. (A few persevered in the district court as allowed by the Federal Rules.) And it’s also true that the government has appealed only some grants. But that imbalance doesn’t necessarily mean that the government’s appeals were stronger than detainees’ appeals. Indeed, the detainees had the wind at their backs in the district court. The government lost more habeas cases than it won. In a couple of early cases, the government even gave up. Case for case, the government’s appeals should have been harder to win than the detainees’ appeals. The government’s fortunes revived, however, when the D.C. Circuit got involved.

I disagree with Ben that the government “chose to appeal” grants only in cases where it “thought it had a strong chance of prevailing,” if by “prevailing” Ben means prevailing under existing law. The government's failure rate in the district court pointed in the opposite direction. I’d argue that the government appealed some, maybe even most grants not because it believed it had a strong case under existing law, but because it had good reason to anticipate that the D.C. Circuit would “move the goal posts,” in Judge Tatel’s phrase, if necessary to ensure that the government would win. In case after case, that’s exactly what happened. The problem is not that the government tried to move the law in its favor on appeal. The problem is that the deck was stacked in the government's favor in the D.C. Circuit.

Ben’s suggestion that the government discriminated between strong and weak cases is also undermined by its approach to the habeas cases in the district court. The government could not possibly have believed that every detention the CSRT approved was legally defensible. Yet, as far as I know, it defended every one with equal vigor. The government, we suspect, transferred some detainees to avoid losing, but not many.

In Ben’s view, the discussion of D.C. Circuit bias in detainee cases comes down to the six cases in which the district court granted the writ and the D.C. Circuit reversed. Ben agrees that the six cases “represent a pretty dramatic reorientation of the lower court on Guantanamo habeas matters,” but at the end of the day, in his view, the issue is not which way a decision went, but whether the decision was correct. Whether one considers a decision “correct,” however, depends on whether one approves the standard the court applies. But the D.C. Circuit doesn’t even have standard. It simply knows a member of al-Qaeda or the Taliban when it sees one, and in every appeal that it has decided conclusively, it has seen one. The government’s perfect record drives that point home.