Supreme Court Re-Lists Khadr v. Obama, a Petition Involving Judicial Deference to Executive Branch Predictive Judgments

One GTMO-related case—Khadr v. Obama (No. 10-751) remains pending before the Supreme Court at the certiorari stage, and it has just been re-listed for the first time (Kiyemba, in which the Court just denied cert., was re-listed multiple times).  Khadr presents two questions, which I paraphrase below:

1. Bearing in mind both Munaf and Boumediene, should a district judge to give binding deference to the executive branch’s determination that a particular person would not likely be tortured if transferred from GTMO to a particular country, or would such deference violate the Suspension Clause or the Due Process Clause? 2. May a judge in a habeas proceeding use Article 3 of the Convention Against Torture (“No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”) as a rule of decision, in light of language in 8 U.S.C. §1252(a)(4) suggesting that Article 3 claims may not be asserted other than in the context of appeals from final orders of removal under the immigration laws?  And if not, is this prohibition a violation of the Suspension Clause or the equal protection norm?

I’ve written about these issues--or at least issues related to them--on two occasions, and thought it might be worthwhile to recap the key points from those earlier papers. First, Leaving Guantanamo: The Law of International Detainee Transfers, 40 Rich. L. Rev. 657 (2006), examines the partial statutory execution of CAT Article 3, including the extent to which a judge properly could second guess the executive branch’s determination that a transfer would comply with Article 3 in light of a diplomatic assurance of proper treatment.  That paper also examines the IHRL-IHL interface in the GTMO transfer context, as well as arguments akin to Article 3 made directly under the heading of Fifth Amendment due process considerations (pursuant to the state-created danger doctrine). On the question of deference to executive branch judgments that a transfer can be conducted consistent with CAT Article 3, I concluded:

Unless and until Congress elects to become involved in this area,195 the contours of such review are not likely to please either the detainees or the government. On one hand, habeas review of CAT issues in more conventional contexts, such as removal, already involves considerable deference to Executive branch deci-sionmakers, and when the same issue arises in the GTMO trans-fer context—involving much more sensitive issues of foreign policy and diplomacy—the case for deference is stronger. On the other hand, individualized review would be meaningless if a court did not take into account the particulars of the assur-ances provided with respect to individual detainees. Generalized descriptions of the diplomatic assurance process as a whole, such as that provided by Ambassador Prosper in connection with the first wave of GTMO transfer litigation, provide little if any basis for determining whether the non-refoulement standard has been in connection with ongoing habeas litigation on behalf of the Chi-nese and Uzbek Uighur detainees mentioned above, the district judge has required the government, in the person of Ambassador Prosper, to provide in camera briefings regarding the specific de-tails of diplomatic negotiations regarding the prospect of a transfer.197 Meaningful review of a GTMO Article 3 determination, even if highly deferential, would seem to require something akin to this individualized inquiry.

A few years later I returned to the topic in National Security Fact Deference, 95 Virginia Law Review 1361 (2009).  Or, rather, I returned to the abstract question of deference to executive branch fact-finding, without actually re-examining CAT Article 3 questions in particular.  The paper amounts to a deep and relatively-critical dive into the various arguments that have been marshaled in favor of judicial deference to various kinds of factual judgments made by executive branch actors in circumstances relating to national security—including predictive judgments, such as whether a person will be tortured if transferred to another country.  For what it is worth, here are the takeaways (with one observation of particular relevance in italics:

• Comparative institutional accuracy arguments can favor the executive branch, but judges cannot assume that this is so simply because a factual dispute has national security connotations. • Comparative accuracy can be a function of superior access to information or expertise, but in any event deference is not appropriate on this ground absent a showing that the decision actually exploited such advantages in a reliable manner. • Judges should not be too quick to assume that executive agencies hold an advantage over the judiciary with respect to information access; the possibility that information can be passed through to the judge, combined with the potential for new information to emerge in the adversarial process, renders this inquiry unmanageable in many if not most instances. • Special expertise is more likely to matter in the context of predictive judgments—which at times shade into opinion or policy judgment—than in the context of retrospective factfinding. • Cognitive biases are significant concerns for any factfinding process, but it is unclear that judges are in a position to detect their presence. In any event, predicating deference on a showing that the executive reliably employed epistemic advantages may guard indirectly against such concerns, via the third party accountability effect. • Weighted accuracy concerns driven by the magnitude of the litigants’ interests (the government’s national security concerns, for example, or a private person’s fundamental rights) are likely to be a wash in this setting, in which case it makes more sense to prioritize core accuracy and other prudential concerns. • Efficiency concerns relating to speed, agenda control, and resource consumption ordinarily should have no impact on the fact deference question, however important they may be in other contexts. • Prudential concerns regarding the collateral consequences of non-deferential review, including the risk of disrupting military operations or exposing classified in-formation, are legitimate concerns, but they are better addressed through procedural devices such as the state secrets privilege. • The fact that a national security related claim is justiciable does not mean that institutional self-preservation concerns drop out of the picture; fact deference provides a tempting—and not very transparent—opportunity for a judge to accommodate such prudential concerns. • Democratic accountability concerns are weak with respect to retrospective factfinding, but they can be strong with respect to predictive judgments—particularly where the latter involves elements of opinion or policy judgment. • Legitimacy concerns, understood as claims of formal al-location of authority to the executive branch, do no independent work in this context; on close inspection legitimacy arguments collapse into one or another of the functional and prudential concerns described above.

Enough for now.  For those who want to dig deeper into the arguments in Khadr, SCOTUSblog provides links to the relevant documents:

• Opinion below (D.C. Circuit)
• Petition for certiorari  
• Brief in opposition  
• Petitioner’s reply