Predicting a Detainee Win at the D.C. Circuit

In the wake of the Almerfedi decision, the question necessarily arises whether any detainee might plausibly expect to prevail in front of the D.C. Circuit. In the defense bar, disgusted, head-shaking despair is the order of the day. So I'm going to go out on limb--way, way, way out on a limb--and do the unthinkable: I'm going to predict a detainee win at the D.C. Circuit. The case of Moath Hamza Al Alwi (argument preview here, oral argument summary here) could come down any day--even, in principle, in a few minutes). I think Al Alwi has a good chance at getting Judge Richard Leon's decision denying him habeas tossed out on procedural grounds and of having his case remanded for a new hearing. While the case raises no important points of law, Al Alwi has some pretty compelling arguments that Judge Leon, in his generally laudable desire to rule expeditiously in habeas cases, cut corners in this case in a fashion that was prejudicial to the detainee. The panel that heard the case--consisting of Judges David Tatel, Merrick Garland, and Stephen Williams--was hard to read, but these are three of the D.C. Circuit judges most open to detainee claims. And the panel has had the case for a long time; oral arguments took place back in November. (One other detainee, Belkacem Bensayah, had his habeas denial vacated and remanded at the D.C. Circuit--but that was after the government changed course in argument and abandoned key aspects of the lower court decision.) My predictive judgment here may be colored by my sense of the right answer: I think that Al Alwi probably should prevail and get another chance to make his case. While I'm generally sympathetic to the D.C. Circuit's relaxation of the substantive detention standards imposed by the district court, it is important for detainees to have a reasonable opportunity procedurally to confront the government's evidence. And I came away from both the briefs and the argument unconvinced that Al Alwi did. My strong instinct in that all three of the judges are likely to feel the same way--my own instincts being so obviously reasonable. So there is my radical prediction. If I'm right, you heard it here first. If I'm wrong, I'll claim that my account was hacked and that I never wrote this post.