One Note on Suleiman

Raffaela is correct that there's nothing terribly surprising in the D.C. Circuit's Suleiman opinion, which was publicly released yesterday. In fact, the brief opinion--written by Judge Thomas Griffith for himself and Judges Merrick Garland and David Tatel--is notable chiefly for its routine tone in affirming a detention. Cases that were once ground-breaking--raising novel and difficult issues of what the foundational rules of detention would look like--can now be resolved in seven pages of judicial yawn. There is tendency among some observers to see the D.C. Circuit's development of the Guantanamo cases as reflecting a cabal of conservative judges bent on undermining Boumediene--and there are certainly a small number of cases in which some judges have worn hostility to Boumediene on the sleeves of their robes. But what's striking about Suleiman is the degree of consensus it reflects. Here are three judges, none of whom can reasonably be described as part of any right-wing cabal (indeed, one of whom was the dissenter in Latif), and this case is easy for them. A huge percentage of the development of D.C. Circuit law on detention over the past few years has been, to put it simply, institutional development in which all of the judges have participated and in which their philosophical divisions over Boumediene and other issues play no role. Indeed, that percentage is so large that a case like Suleiman is now a routine matter before any panel of the court.