Not surprisingly, folks looking for interesting things to say about Chief Judge (and Supreme Court nominee) Merrick Garland’s jurisprudence during his 19-year tenure on the D.C. Circuit have quickly gravitated toward his role in Guantánamo cases, at least 16 of which he has heard as a member of a three-judge panel (along with the numerous petitions for en banc rehearing in cases in which he was not on the panel). At Opinio Juris, Deborah Pearlstein tells folks on the left who might be worried about Judge Garland’s record that, based on these cases (and my very favorite opinion of his — his dissent in Saleh v. Titan Corp., where the defendant was not the federal government), they shouldn’t be. But in yesterday’s New York Times, Charlie Savage uses a couple of the Guantánamo cases to tell a far more equivocal story about Judge Garland’s record — concluding that “As one wartime detention case after another has pitted state security powers against individual rights, he has often — though not always — deferred to the government.”
There is no doubt in my mind that Charlie has the better of this debate. I also have no doubt that this debate is missing a much more important point about the Supreme Court and the current lack of adequate judicial accountability for US national security policy, more generally.
If anything, Charlie’s piece dramatically undersells the pro-government consistency of Judge Garland’s Guantánamo record. Not only has he never ruled for a detainee on the merits in a Guantánamo habeas case (Parhat wasn’t habeas and Al Odah II was a narrow remand), but he (1) provided the dispositive fourth vote for the en banc majority in Al Bahlul I in holding that the defendant had forfeited his Ex Post Facto Clause challenge (relegating resolution of that claim to the highly deferential “plain error” standard); (2) has written separately in only one Guantánamo case — a concurrence in the denial of rehearing en banc in Bismullah that, simply put, was not on the merits; and (3) has said nothing even as he has been on panels that have, among other things, (a) categorically foreclosed jurisdiction over Guantánamo (as reversed by the Supreme Court in Rasul), (b) handed down sweepingly pro-government rulings in articulating the substantive and evidentiary standards to apply after Boumediene (not all of which, contra Deborah, had already been settled), and, most recently, (c) endorsed the deeply problematic Turner v. Safley standard as the proper metric through which to assess detainees’ challenges to the conditions of their confinement.
Moreover, Judge Garland was the one Democratic appointee not to dissent from the D.C. Circuit’s refusal in Abdah to rehear en banc its flawed opinion in Kiyemba II, which held that detainees had no right to notice or a hearing before being transferred to countries in which they might credibly fear torture or other forms of cruel, inhuman, or degrading treatment.
Of course, if the question is whether Judge Garland is likely to be more sympathetic to these kinds of claims than Justice Scalia, well, that question answers itself. With the idiosyncratic exception of his dissent in Hamdi, Justice Scalia’s views in national security cases were, well, as pro-government (or, at least, as anti-detainee) as they come. But if the question is whether Judge Garland is going to somehow reinvigorate the Supreme Court’s interest in Guantánamo, color me deeply, deeply skeptical.
But lest we get lost in the weeds, there is a larger point here that both Deborah’s and Charlie’s pieces miss: To me, the real question is not “just how pro-government is Judge Garland?”; rather, it is “what impact would Justice Garland have on national security cases before the Supreme Court?” To oversimplify a bunch of things I’ve said previously, the central problem with contemporary national security law is the inadequacy of judicial accountability mechanisms — the lower court decisions all-but foreclosing Bivens claims in national security cases; the overbroad application of qualified immunity doctrine; the troubling reinvigoration of the political question doctrine in suits challenging military conduct; the breadth of state secrets privilege; and so on. Put another way, the Guantánamo cases are a small (and sui generis) piece of the much larger pie of contemporary national security litigation, all the more so insofar as they at least typically reach the merits of the government’s underlying conduct.
So framed, let me offer two takeaways about a Garland justiceship that, to me, are far more significant than any attempt to simply score his Guantánamo jurisprudence: First, there is nothing in Judge Garland’s track record with respect to Guantánamo (or anything else, for that matter) that leads me to think that he’d be especially aggressive in trying to bolster judicial accountability mechanisms vis-a-vis Executive Branch national security policies. Justice Garland won’t lead the charge to resuscitate Bivens, overrule Pearson or Iqbal, limit Reynolds, scale back Humanitarian Law Project, and so on. Part of that is because of his centrism; part of that is because of his style.
Second, and as importantly, Justice Garland wouldn’t be the swing vote on many of these matters anyway. Yes, trading him for Scalia might well have made a difference in Iqbal (and maybe in Clapper v. Amnesty International). But the Court’s recent skepticism of Bivens hasn’t been 5-4; the central flaws in its qualified immunity jurisprudence don’t come from 5-4 rulings; the endorsement of the state secrets privilege hasn’t been narrowly divided; and, well, you get the idea. For those, like me, who think contemporary American jurisprudence provides far too many ways for the government to escape meaningful judicial oversight of national security and counterterrorism abuses, no single nominee is going to close those gaps by himself; the Court is too far gone, as a whole. Even a nominee more committed to improving judicial oversight of the government in this sphere would face a steeply uphill battle given all of the water under the various doctrinal bridges.
So if the story of Judge Garland’s record in this context is meant to provide further proof of just how moderate a nominee President Obama has submitted, then I’m with Charlie’s account over Deborah’s. But if the story is, as to me it should be, whether Justice Garland would meaningfully improve governmental accountability in the exercise of national security and counterterrorism policy, it seems clear to me that the answer is both that he wouldn’t, and, without more help, that he couldn’t.