The D.C. Circuit and Guantánamo, Post-Filibuster Edition

I’ve written a lot (too much!) before about both the D.C. Circuit’s jurisprudence in post-Boumediene Guantánamo cases and the Supreme Court’s passivity in declining to review any of those decisions on the merits. The short version: The D.C. Circuit has adopted systematically pro-government positions (sometimes going further than even the government asked it to), and the Supreme Court repeatedly denied certiorari, a practice made significantly easier by the D.C. Circuit’s de facto exclusive jurisdiction over such cases (which prevents any potential circuit splits). Given today’s filibuster news–and the apparent likelihood that President Obama will now be able to fill all three of the open seats on that 11-judge court–it seemed worth a quick reflection on what this might mean for Guantánamo cases going forward. [Of the 11 active judgeships, four are currently held by Democratic appointees; four by Republican appointees.]

In two respects, the answer may well be “not much.” First, many of the more significant decisions in Guantánamo cases are now settled (if not codified) precedent, which, for any number of reasons, jurists who are unsympathetic might nevertheless be skeptical of revisiting. And second, those decisions themselves were not always the result of fractured party-line votes; some of the most important Guantánamo precedents have come in opinions joined by at least one of the three then-active judges appointed by Democratic presidents–Chief Judge Garland, Judge Rogers, or Judge Tatel. Indeed, even when the court did fracture (as in the January 2011 decision not to hear the Abdah case en banc), the vote was not strictly along party lines (there, then-Judge Garland was in the majority and Judge Griffith was in dissent)–and so might well come out the same way today.

Cutting in the other direction, the D.C. Circuit currently has before it a host of Guantánamo-related questions of first impression, whether in the context of the military commissions or the pending (and under-appreciated) challenges to force-feeding and new counsel access procedures for the current detainee population. Moreover, there is also the distinct possibility that the withdrawal of ground troops from Afghanistan at the end of next year could raise anew fundamental questions about the scope and duration of the government’s detention authority under the 2001 Authorization for the Use of Military Force (AUMF), all the more so if Congress undertakes reforms thereof. And this is all without regard to the other high-profile national security cases heading for the D.C. Circuit, including, inter alia, the damages suit filed on behalf of Anwar al-Awlaki.

Of course, there’s no guarantee that the (as many as four) judges appointed by President Obama will necessarily disagree with their colleagues on these questions–or that they’ll have majorities on the three-judge panels to which these cases are assigned. But the one thing that does seem clear is that all of them will likely have to look to their right to see at least three of the four active Republican-appointed judges–and that the Obama appointees are thus likely to be less sympathetic to the government in these cases than the D.C. Circuit has been to date. Simply put, today’s development is likely going to produce a future in which there will be more division on the D.C. Circuit. And while that division will have consequences across the entire field of the D.C. Circuit’s wide-ranging jurisdiction, in the Guantánamo context, such division will have one very specific implication: It will make it harder for the Supreme Court to continue to stay out of the myriad disputes that have arisen after and in light of Boumediene, since it will be less and less likely that the sole court of appeals that’s hearing these cases will be resolving them in one voice.

That is, unless we close Guantánamo… 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).