Why I Don't Like Ben's Critique of the "Scorecard" By David Remes Posted 9/20/10

Transcription

1 Why I Don't Like Ben's Critique of the "Scorecard" By David Remes Posted 9/20/10 Ben argues (here, here, and here) that the scorecard of Guantánamo habeas case wins and losses conveys a "skewed impression" of what's going on in the cases. Steve Vladeck takes issue with Ben's critique. Like Steve, I m critical of Ben s critique. (Disclosure: I represent 17 Guantánamo detainees in the habeas litigation.) The summary below says everything needed to understand my position, and you re welcome to stop there. The body of the post, which appears on the jump page, is VERY lengthy and includes detailed support. I ve organized it in sections, as I would a brief, for the reader s ease. I hope it will serve as a resource for all. SUMMARY Of the 54 habeas petitions the district court judges have reviewed, they ve granted 37 (70 percent) and denied 17 (30 percent). Ben suggests that the government s record is so dismal because in a substantial number of cases, the government cannot meet the standards the courts have decided in retrospect should apply. But these are not judge-made standards. The detainability standard is the government's own standard. The burden of proof - predominance of the evidence - is the government's chosen burden. The discovery rules and rules of evidence favor the government. Yes, the D.C. Circuit s decisions are more consequential than the district court s. But I think most who follow these matters perceive the D.C. Circuit as simply making it easier for the government to win. How it s doing that is not a matter of great interest. Keep in mind that the government says its detainability standard is limited to Guantánamo habeas cases. Ben tries to shrink the number of detainee wins by arguing that the 5 grants in Boumediene should be counted as a single detainee win because they were a single case for docketing purposes, and Judge Leon disposed of their cases in one decision. This is of no moment. I filed a single complaint on behalf of 13 Yemenis. All share the same docket number (D.D.C. No ). Other omnibus petitions were also filed. No one would claim the results in these cases can be aggregated. And Judge Leon heard the cases back-to-back, which may help explain why he disposed of their cases in one decision.

2 Ben argues that that the 17 Uighur grants should also be treated as a single detainee win. He asserts that the Uighurs are just different from other detainees because the government has been trying to get rid of them for many years, and [t]he Uighur problem, at its core, is a diplomatic and political problem, not a legal one. But the fact that the government has been trying to transfer the Uighurs has nothing to do with the legality of their detention, and every transfer at its core, is a diplomatic and political problem. Ben himself says says that detainee releases have often been largely a function of detainee nationality and U.S. diplomacy with their home countries. Ben s underlying concern seems to be that the habeas ratio casts the detainees in too favorable a light. The habeas ratio, however, currently runs only slightly ahead of the ratio of the men the Guantánamo Review Task Force approved for transfer and the men the Task Force did not approve. The Task Force approved 156 out of 240 men for transfer (65 percent to 35 percent). And the 156 number is likely quite conservative given that all decisions had to be unanimous, and the agencies involved were surely biased against false positives. (Unfortunately, the Task Force s conservatism resulted in many, many false negatives.) I assume Ben would agree that the Task Force approvals offer a more accurate picture of the current detainee population than the habeas ratio, which is retrospective. The debate about the scorecard is not really a debate about the scorecard. It s a debate about the Guantánamo narrative. The higher the habeas ratio of detainee wins to losses, the less legitimate the Guantánamo project seems in retrospect. The higher the ratio of government wins to losses, the more legitimate the project seems in retrospect. But the legitimacy of the Guantánamo project doesn t rise or fall with the habeas ratio. The project is universally condemned, from A to Z. A ratio more favorable to the government won t provide firm support for policy proposals, because the ratio is, and will be understood as, the product of the D.C. Circuit s recalibration. Finally, Ben argues that the habeas ratio ignores the habeas cases that detainees never filed, or withdrew. These phantom cases, Ben argues, amount to government wins because the government can continue to detain the men without legal difficulty. If we count as a government win the government s ability to detain men without legal difficulty, we ve truly lost our bearings. (CONTINUED) 2

3 DISCUSSION Any grant-to-denial ratio is a function of several variables, including (1) the detainability standard against which the lawfulness of a detention is measured, (2) the government's burden of justifying a detention under that standard, (3) the rules of evidence, and (4) the government's discovery obligations. The looser the standard and lighter the burdens on the government, the easier it is to justify detentions. The converse is also true. The Bush administration well understood the importance of the detainability standard, first urging a well-defined, cabined standard, and later replacing it with an infinitely elastic one. In Hamdi v. Rumsfeld, the government urged the Supreme Court to apply, and the Court applied, the following detainability standard: [The government] has made clear * * * that, for purposes of this case, the "enemy combatant" that it is seeking to detain is an individual who [1] was part of or supporting forces hostile to the United States or coalition partners" in Afghanistan, and [2] "engaged in an armed conflict against the United States" there. [Emphasis added.] Note that this standard requires that, to be detainable, an individual must meet both of two conditions. When in Hamdi and Rasul v. Bush the Supreme Court made clear that the government would actually have to defend in court its detention of the men at Guantanamo, the government lost no time replacing its Hamdi detainability standard with one that allowed the government to defend virtually any detention: I [T]he term "enemy combatant" shall mean an individual who was part of or supporting Taliban or Al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces. Gone was the condition that an individual "engaged in an armed conflict against the United States." Under the new standard, 3

4 "supporting Taliban or Al Qaeda forces, or associated forces" was enough to keep an individual locked up for life, capacious enough to encompass Judge Joyce Green's hypothetical little old lady in Switzerland, who haplessly sent a check to an orphanage in Afghanistan and, unbeknownst to her, some of her donation was passed to al-qaeda terrorists. In a March 2009 court filing, the Obama administration announced what it called a "refined" version of the second Bush standard: The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces. [Emphasis added.] In announcing this standard, the government stated, This position is limited to the authority upon which the Government is relying to detain the persons now being held at Guantanamo Bay. This position is limited to the authority upon which the Government is relying to detain the persons now being held at Guantanamo Bay. The government also pointed out that one of President Obama s executive orders established a Special Task Force on Detainee Disposition, whose mission is: to conduct a comprehensive review of the lawful options available to the Federal Government with respect to the apprehension, detention, trial, transfer, release, or other disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations, and to identify such options as are consistent with the national security and foreign policy interests of the United States and the interests of justice. This Task Force issued in July 2009 an inconclusive interim report, discussed in a fine post by Deborah Pearlstein, and has not been heard from since. 4

5 Some observers assumed that, in adding the qualifying words substantially and "directly," the Obama administration meant to tighten the detainability standard, but the government contends in court that every man detainable under the Bush standard is detainable under the Obama standard. The qualifiers, though, have led district court judges to grant some petitions they otherwise might have denied. Ben writes that the scorecard "can only be said to offer hard evidence that in a substantial number of cases, the government cannot meet the standards the courts have decided in retrospect should apply." It s unfair to blame the courts for the government s losses. The standard is the government's own standard. The burden of proof - predominance of the evidence - is the government's chosen burden. The discovery rules and rules of evidence favor the government. The D.C. Circuit has registered its view that the district court judges have interpreted the detainability standard too narrowly and may be imposing on the government too heavy a burden of justification. The court has affirmed 4 of the 5 habeas denials it has reviewed vacating the fifth, Bensayah, and remanding it to the district court so the government can try again. The court reversed Al-Adahi, the only habeas grant it has reviewed so far. No crystal ball is needed to see, as Ben puts it, that the government has every reason for confidence in its chances at the court of appeals. Indeed, some judges on the D.C. Circuit are giving the government more than it asks for. (Steve Vladeck has an excellent post on "the Ongoing Clash Between the D.C. District Court and the D.C. Circuit" in the Guantánamo habeas cases.) In Al-Bihani, a panel stated that the government's detention power is not limited in any way by international law "a view that even the Obama Administration indicated it did not share," as Lyle Denniston noted at SCOTUSblog, The government disavowed that position again in a later filing, as Lyle also noted. (In a brief opinion concurring with the denial of en banc review in the case, as Lyle noted, seven of the nine active judges of the court dismissed the panel's statement as dicta.) And in Al-Adahi, the subject of yet another fine post by Lyle, a panel suggested that the predominance of the evidence standard, which the Bush and Obama administrations had advocated, might itself be too strict. Meanwhile, in Kiyemba I and Kiyemba III, the D.C. Circuit, at the government s behest, rendered habeas grants virtually meaningless by 5

6 prohibiting the district court judges from compelling the government to transfer or release prevailing habeas detainees. By making habeas a right without a remedy, the court's prohibition erases the practical distinction between grants and denials. Ben may be right that the D.C. Circuit will reverse more grants, but that won't mean the grants were undeserved. Any reversals will likely illustrate that outcomes depend on the standards applied, and that the D.C. Circuit is making it easier and easier for the government to win. As noted, the district court judges have granted the habeas petitions of 37 detainees and denied the petitions of 17. II A technical note for the obsessed, which would go in a footnote if we had footnotes: The judges granted 38 and denied 17. However, as discussed below, one grant, Al-Adahi was reversed on appeal, turning it into a denial, which reduced the 38 grants to 37, and increased the denials from 17 to 18. Then the court vacated a denial, Bensayah, making it neither a loss nor a win for either party, which reduced the denials from 18 back to 17. Ben argues that counting 37 grants as 37 detainee wins is misleading, because Judge Richard Urbina's 17 grants in the Uighur cases were effectively a single detainee win, as were Judge Leon's grants in 5 out of the 6 cases in Boumediene, involving Algerians captured in Bosnia. Treating the combined total of 22 grants as 2 detainee wins cuts the number of detainee wins from 37 to 17 - the same number as government wins. But I believe shrinking the 22 grants to 2 wins is unjustified. The Boumediene petitioners Ben tries to shrink the number of detainee wins in Boumediene by counting the 5 as a single detainee win. He argues, first, that the grants are a single win because they were a single case for docketing purposes. That s of no moment. It was not uncommon for counsel to file omnibus petitions, and to file them on behalf of detainees of a single nationality. I filed such a petition on behalf of 13 Yemenis in Abdah v. Bush, No Other examples include Anam v. Bush, No (14 Yemenis); Al Odah v. United States, No (12 Kuwaitis); Al Joudi v. Bush, No (4 Saudis); Khalid v. Bush, 6

7 No (4 Frenchmen). No one would claim the results in those cases can be aggregated. Ben also argues that the 5 grants in Boumediene cases should be treated as a single detainee win because Judge Leon disposed of the cases in a single opinion. (Ben doesn t seem to know what to do with the denial of Bensayah s petition, which doesn t jibe with the single opinion theory.) As noted, one reason may be that Judge Leon heard the six cases over a period of 6 days. One opinion is more economical than several, especially because the government had alleged that all 6 Algerians were planning to do the same thing travel to Afghanistan just as the government alleged that most of my Yemeni clients went to Afghanistan, listened to the same sheikhs, travelled the same roads, stayed at the same guesthouses, and trained at the same camps, etc. The question is not whether the government makes common allegations against different individuals, but whether the government can prove its allegations against each one as an individual. In Boumediene, the government used different evidence against each petitioner in the CSRTs and the district court and Judge Leon considered each man's facts separately. While the government alleged that all 6 were detainable, it also argued that, even if some were not detainable, others were. Judge Leon, in fact, ruled for 5 of the men, finding that the government failed to meet its burden of proof as to all of them, while ruling against the 6th. Further discussion of the evidence is impossible because it s classified. The Uighurs Ben doesn t argue that the Uighurs are all one case; he argues that the Uighurs themselves are just different from other detainees, and that their cases really defy comparison with others at Guantánamo. Ben s right not to treat the Uighurs cases as one big case. As the government put it one filing, "each petitioner is an individual," and the detainability decisions as to each individual "is unique." When eight of the Uighurs jointly filed a petition in the D.C. Circuit under the Detainee Treatment Act of 2005, the government successfully moved to have their cases proceed separately. Here s what the government said in opposing joint treatment of the cases: Here, by mixing several petitioner claims together, the petition often fails to address the record before the CSRT in a particular petitioner's case, instead addressing the record in other cases. See, e.g., Pet. Br. 133, 135, 139, 142 (addressing CSRT of 7

8 Hassan Anvar); Pet. Br. 48 (addressing CSRT of Akhtar Qassim); Pet. Br. 138 (culling allegations relating to various petitioners); Pet. Br. 119 n.12 (addressing CSRT procedural issues relating to detainees who are not petitioners); Pet. Br. 54, 122. In fact, each petitioner is an individual and the CSRT determination with respect to him is unique, as the petitioners concede. See Pet. Br. 138 ("some of the [factual] details vary[ ] for each of the eighteen" detained Uighurs). Accordingly, it is not necessary or appropriate for this Court to review material from outside of a petitioner's CSRT record in determining the "validity of [the] final decision of" the CSRT. DTA 1105(e)(2)(A). Thus, Parhat was the only Uighur in his DTA case. After the Supreme Court's Boumediene decision in June 2008, the Uighur habeas cases were consolidated administratively before Judge Urbina, including Parhat's. In July, still treating the cases as separate, the government asked for and was granted time to examine the impact of the Parhat ruling on each Uighur s case and advise the court which habeas cases it would contest. On the eve of the Kiyemba hearing in late September 2008, the government announced that it would not assert enemy combatant status as to any of the remaining habeas cases. (In his opinion granting the Uighurs' habeas petitions, Judge Urbina said wrote that the government conceded the cases were not materially different. However, the transcript of the pertinent hearing does not appear to support that conclusion.) Ben also tries to distinguish the Uighurs from other detainees on the ground that the government had been trying to transfer the Uighurs for many years and made clear publicly that it did not want to hold them. This has nothing to do with the detainability issue. Ben also writes, "The Uighur problem, at its core, is a diplomatic and political problem, not a legal one. And that makes it different from other cases." On the contrary, that makes the Uighur cases similar to the vast majority of other cases. Every detainee transfer is, at its core, a diplomatic and political problem, not a legal one. As the Guantanamo Review Task Force stated in its Final Report: "The President's Executive Order recognized that diplomatic efforts would be essential to review and appropriate disposition of individuals detained at Guantanamo." The facts bear this out, and I don't think Ben really disputes the point. 8

9 Eight Western countries - Australia, Canada, Denmark, France, Spain, Sweden, the UK, and the US - accounted for 23 detainees; 22 have been transferred. The outlier is the Canadian, Omar Khadr. He's being prosecuted in a military commission. Of seven Middle Eastern countries with whom the US has strong ties (excluding Saudi Arabia, counted below) Bahrain, Egypt, Iraq, Jordan, Kuwait, Qatar, UAE - 40 of 45 detainees have been transferred. The Task Force approved for transfer 37 or 38 detainees who could not be repatriated due to humane treatment or related concerns in their home countries. The Task Force stated that these detainees required resettlement in a third country, "a process that takes time and requires extensive diplomatic efforts." Four countries - Afghanistan, Saudi Arabia, Yemen, and Pakistan accounted for 543 of the 779 men who have passed through Guantanamo. All except Yemen are U.S. allies. Consider these numbers: 221 Afghans - 21 remain. 139 Saudis - 18 remain. 71 Pakistanis - 6 remain. 112 Yemenis 88 remain. The 88 Yemenis include 58 who have approved for transfer. (The original number was 59, but the government transferred my client Mohammed Mohammed Hassan Odaini.) President Obama has frozen their repatriation to Yemen for nothing if not diplomatic and political and security reasons. For the 58 approved Yemenis, the problem is not, at its core, * * *, a legal one. III I suspect the ratio troubles Ben, to some extent, because it paints the current detainee population in a more favorable light than he believes is deserved. But let's keep in mind that the Guantánamo Review Task Force approved for transfer 156 of the 240 men (65 percent) whose files it reviewed. I assume Ben would consider the Task Force ratio a more "accurate" reflection of the 9

10 current detainee population than the habeas ratio, which is retrospective. Even so, the habeas ratio and the Task Force ratio aren t far apart, and the habeas ratio isn t static. Moreover, I believe the 156-approved count is likely quite conservative, since, as the Task Force's Final Report notes, decisions had to be unanimous, and one can be sure the agencies involved were biased against false positives. Unfortunately, the Task Force review resulted in many, many false negatives. I've represented most my clients for going on six years. I've spent many hours with each one. In my seven visits to Yemen, I've spent time with their families and steeped myself in their culture and customs. I know these men as no government official could. All should have been approved for transfer. If you hesitate to take my word for it, persuade the Pentagon to allow journalists, human rights monitors, and members of Congress to meet the men. Even at this late date, habeas counsel are the only civilians the Pentagon allows to see the men, and we re subject to a gag order. Here's the nitty-gritty of the Task Force report, dated January 22, My numbers, other than those taken directly from the report, might be off by one or two, but they're essentially accurate. The Task Force reviewed the files of 240 men. It approved 156 for transfer; it did not approve the other 84. The 84 include 48 men slated for indefinite detention, and 36 slated for possible prosecution. Of the 240 men, 66 have been transferred, which explains the common reference, as of today, to 174 men still at Guantánamo. With 66 men having been transferred, 90 of the 156 men approved for transfer remain at Guantánamo. The 90 include 58 Yemenis exactly 65 percent of the remaining men. The 58 include a group of 28 Yemenis approved for transfer now (29 as of when the Task Force issued its report), and a group of 30 approved for transfer after the first group, depending on such external factors as the security situation in Yemen and the availability of an adequate rehabilitation program. Unfortunately, President Obama has frozen transfers to Yemen. Although the government transferred my client Odaini to Yemen in July, it made clear that he would be the rare exception. The situation for the other Yemenis is bleak. Obama is unlikely to resume transfers to Yemen until it s politically safe, and it s hard to see when it will ever be politically safe. Meanwhile, I and my fellow habeas counsel will 10

11 soldier on in the habeas cases on behalf of our clients, including the 48 designated for indefinite detention. IV The debate about the scorecard is not really about the scorecard. It's about the Guantánamo narrative, and what that narrative means for future detention policy. In 1984, O'Brien says, "Who controls the present, controls the past. Who controls the past, controls the future." The higher the ratio of grants to denials (the present), the less legitimate the Guantánamo project seems in retrospect (the past), and the less legitimate the project seems in retrospect (the past), the weaker the case for similar projects, or elements of such projects (e.g., indefinite detention), in the future. In a news story about Odaini's transfer, Bobby Chesney spoke frankly about the cumulative effect of habeas grants on "the narrative": The coverage of the Odaini case made them look ridiculous, Mr. Chesney said. Imagine [the government] experiencing some 50- plus individual defeats. By the time they are done, the narrative of the innocent detainee being blindly or stupidly detained by the administration would be so entrenched that there would be real strategic harm to the administration s case that there are people they actually need to and can justify keeping in military detention. Just so. On the other hand, "the narrative" Bobby describes doesn't rise or fall with the habeas ratio. It has other, near-universal support, including ranking military personnel, senior intelligence officers, and former counterterrorism officials. Joe Margulies compiled some of the most telling quotes in his Guantánamo and the Abuse of Presidential Power, at pp (Simon & Schuster, 2006). A March 2009 post by Colonel Lawrence B. Wilkerson, chief of staff to Secretary of State Colin Powell in the first Bush administration, is especially illuminating and, considering the source, worth setting out at some length: There are several dimensions to the debate over the U.S. prison facilities at Guantánamo Bay, Cuba that the media have largely missed and, thus, of which the American people are almost completely unaware. For that matter, few within the government who were not directly involved are aware either. 11

12 The first of these is the utter incompetence of the battlefield vetting in Afghanistan during the early stages of the U.S. operations there. Simply stated, no meaningful attempt at discrimination was made in-country by competent officials, civilian or military, as to who we were transporting to Cuba for detention and interrogation. This was a factor of having too few troops in the combat zone, of the troops and civilians who were there having too few people trained and skilled in such vetting, and of the incredible pressure coming down from Secretary of Defense Donald Rumsfeld and others to "just get the bastards to the interrogators". It did not help that poor U.S. policies such as bounty-hunting, a weak understanding of cultural tendencies, and an utter disregard for the fundamentals of jurisprudence prevailed as well (no blame in the latter realm should accrue to combat soldiers as this it not their bailiwick anyway). The second dimension that is largely unreported is that several in the U.S. leadership became aware of this lack of proper vetting very early on and, thus, of the reality that many of the detainees were innocent of any substantial wrongdoing, had little intelligence value, and should be immediately released. But to have admitted this reality would have been a black mark on their leadership from virtually day one of the so-called Global War on Terror and these leaders already had black marks enough: the dead in a field in Pennsylvania, in the ashes of the Pentagon, and in the ruins of the World Trade Towers. They were not about to admit to their further errors at Guantánamo Bay. Better to claim that everyone there was a hardcore terrorist, was of enduring intelligence value, and would return to jihad if released. I am very sorry to say that I believe there were uniformed military who aided and abetted these falsehoods, even at the highest levels of our armed forces. The third basically unknown dimension is how hard Secretary of State Colin Powell and his deputy Richard Armitage labored to ameliorate the GITMO situation from almost day one. For example, Ambassador Pierre Prosper, the U.S. envoy for war crimes issues, was under a barrage of questions and directions 12

13 almost daily from Powell or Armitage to repatriate every detainee who could be repatriated. This was quite a few of them, including Uighurs from China and, incredulously, citizens of the United Kingdom ("incredulously" because few doubted the capacity of the UK to detain and manage terrorists). Standing resolutely in Ambassador Prosper's path was Secretary of Defense Rumsfeld who would have none of it. Rumsfeld was staunchly backed by the Vice President of the United States, Richard Cheney. Moreover, the fact that among the detainees was a 13 year-old boy and a man over 90, did not seem to faze either man, initially at least. The fourth unknown is the ad hoc intelligence philosophy that was developed to justify keeping many of these people, called the mosaic philosophy. Simply stated, this philosophy held that it did not matter if a detainee were [sic] innocent. Indeed, because he lived in Afghanistan and was captured on or near the battle area, he must know something of importance (this general philosophy, in an even cruder form, prevailed in Iraq as well, helping to produce the nightmare at Abu Ghraib). All that was necessary was to extract everything possible from him and others like him, assemble it all in a computer program, and then look for crossconnections and serendipitous incidentals--in short, to have sufficient information about a village, a region, or a group of individuals, that dots could be connected and terrorists or their plots could be identified. Thus, as many people as possible had to be kept in detention for as long as possible to allow this philosophy of intelligence gathering to work. The detainees' innocence was inconsequential. After all, they were ignorant peasants for the most part and mostly Muslim to boot. Another unknown, a part of the fabric of the foregoing four, was the sheer incompetence involved in cataloging and maintaining the pertinent factors surrounding the detainees that might be relevant in any eventual legal proceedings, whether in an established court system or even in a kangaroo court that pretended to at least a few of the essentials, such as evidence. Simply stated, even for those two dozen or so detainees who might well be hardcore terrorists, there was virtually no chain of custody, no disciplined handling of evidence, and no attention to 13

14 the details that almost any court system would demand. Falling back on "sources and methods" and "intelligence secrets" became the Bush administration's modus operandi to camouflage this grievous failing. But their ultimate cover was that the struggle in which they were involved was war and in war those detained could be kept for the duration. And this war, by their own pronouncements, had no end. For political purposes, they knew it certainly had no end within their allotted four to eight years. Moreover, its not having an end, properly exploited, would help ensure their eight rather than four years in office. In addition, it has never come to my attention in any persuasive way--from classified information or otherwise--that any intelligence of significance was gained from any of the detainees at Guantánamo Bay other than from the handful of undisputed ring leaders and their companions, clearly no more than a dozen or two of the detainees. And even their alleged contribution of hard, actionable intelligence is intensely disputed in the relevant communities such as intelligence and law enforcement. This is perhaps the most astounding truth of all, carefully masked by men such as Donald Rumsfeld and Richard Cheney in their loud rhetoric--continuing even now in the case of Cheney--about future attacks thwarted, resurgent terrorists, the indisputable need for torture and harsh interrogation and for secret prisons and places such as GITMO. There was also the bureaucratic imperative. As Brig. Gen. Jay Hood, then Guantánamo's commander, told the Wall Street Journal in a January 2005 interview, "Nobody wants to be the one who signs the release papers." "There's no muscle in the system." There are several questions of moment that I believe are not getting the attention they merit. For example: Should the President close Guantánamo? Can he close Guantánamo? and what does "closing Guantánamo" mean? V Was President Obama's freeze on transfers to Yemen a political response to a political problem? Does the unstable situation in Yemen, 14

15 including an active Al Qaeda presence, justify freezing the transfer of the 58 Yemenis who have been approved for transfer? Should the courts be able to compel the government to release detainees who've prevailed in their habeas cases, such as the 5 remaining Uighurs, even if that means ordering their release into the United States? The D.C. Circuit said no in Kiyemba I and III. (For a discussion of the latest round in these cases, see Lyle excellent post on SCOTUSblog.) Was the court correct? Should the courts be able to prevent the government from transferring a detainee to a particular country, in the face of the government's representations that it's safe to transfer the detainee? The D.C. Circuit said no in Kiyemba II. (Lyle also has a post about a pending case that seeks to get the decision overturned.) (Disclosure: I'm co-counsel counsel in the case.) Was the court correct? Should the government continue to defend in court the detention of men it has approved for transfer? Does it make sense for government lawyers to be insisting in court that men approved for transfer are lawfully detained because of alleged Al Qaeda or Taliban ties, at the same time the State Department is trying to persuade other countries to take these men? (That's a rhetorical question.) Should individuals in the Bush administration who approved, condoned, or carried out torture be prosecuted, including individuals whose activities government lawyers told them were legal? Should a commission be created to investigate what happened, why it happened, and what can be done to ensure it never happens again? Should Obama tighten his executive order banning CIA prisons, secret or otherwise, while continuing to allow the Pentagon to maintain secret detention and interrogation facilities? Should Obama have acceded to CIA wishes to allow extraordinary renditions? Should Obama have approved the use of interrogation techniques described in Exhibit M to the Army Field Manual? VI Ben states as fact that in an unknown but "non-trivial" number of cases, detainees have chosen not to bring habeas cases, refused to authorize attorneys, or had their cases dismissed. (I don t know what Ben means by "non-trivial," or the basis for his assertion. I live and 15

16 breathe this litigation, I don't have the impression that there are many such cases.) Ben argues that such cases, which don't reach a merits disposition, are effectively government wins because the result is that the detainees remain detained as though they had lost their cases. I agree. That, however, doesn't make their detentions lawful or just. In my experience, in an overwhelming majority of cases, detainees do not press their habeas cases because they mistrust habeas lawyers, don't think they can get justice, believe that winning is meaningless because winning doesn't mean transfer, or are simply discouraged or in deep despair. I don't count these cases as government wins; I count them as human losses. ### 16