Worried About Garland’s National Security Law Record? Don’t Be.

On the hopeful assumption the Senate will come to its senses and consider President Obama’s nomination of Merrick Garland to the U.S. Supreme Court on its merits, I wanted to respond to what appears to be some skepticism among progressives that Garland is indeed a good choice for the Court. The Huffington Post, for instance, published an article following the nomination headlined (ominously) that Garland once sided with the Bush Administration on Guantanamo. I was curious, so I decided to look up the cases.

Let’s start with the opinion the Huffington Post article features, Al Odah v. United States, which Garland did not write but joined, by a D.C. Circuit panel in 2003 holding the U.S. courts lacked jurisdiction to consider challenges to the legality of the detentions at Guantanamo Bay. (The Supreme Court famously overturned this decision the following year, holding that the jurisdiction of the federal courts indeed extended to the detentions at the U.S. naval base there.) The D.C. Circuit panel’s decision in Al Odah turned heavily on its reading of an on-point Supreme Court case from World War II, Johnson v. Eisentrager. There, the Supreme Court had held in a lengthy and multilayered opinion that German “enemy aliens” held by U.S. military forces abroad could not seek a writ of habeas corpus in U.S. courts. While recognizing that the Gitmo detainees petitioning the court in Al Odah were not as clearly “enemy aliens” as had been the petitioners in Eisentrager – they were not nationals of a country (like Afghanistan) with which the United States was at war – the D.C. Circuit panel nonetheless concluded that the Gitmo detainees were in important ways in essentially the same position as had been the Eisentrager detainees: “They too are aliens, they too were captured during military operations, they were in a foreign country when captured, they are now abroad, they are in the custody of the American military, and they have never had any presence in the United States.” In other words, Judge Sentelle concluded for the panel, Eisentrager unavoidably controlled.

Might the D.C. Circuit have reached a different decision? In principle, yes, as the Supreme Court eventually did. But it is too easy to forget the difference between the role of judges on the U.S. appeals courts – who are duty bound to uphold the decisions of the Supreme Court to the extent they understand them as controlling in the case before them – and justices on the Supreme Court, who carry no such obligation (beyond the ordinary, at times malleable strictures of stare decisis). In 2003, not only the Bush Administration but any number of mainstream legal experts on the left and right embraced the view, in light of Eisentrager (and related decisions), that there was no way the Supreme Court would grant certiorari to hear the case, much less rule in favor of the Guantanamo detainees. (See, e.g., here) At the time, the opinion Garland joined was a wholly unremarkable affirmation of what could then reasonably have seemed to be settled law (and was arguably the reason the Administration sought to house detainees at Guantanamo in the first place) – the protections of the U.S. Constitution do not extend to non-citizen enemies outside the territorial United States. It is one thing for a Supreme Court justice to conclude, as the Court ultimately did, that Eisentrager was more limited than appeared. It would have been quite another for an appellate judge to conclude as much. To me, the case thus says little about how Garland would approach questions of Guantanamo now, less about how he would approach it as a justice of Supreme Court, and nothing about Garland’s views of the wisdom (or not) of the Bush Administration’s policies at Guantanamo Bay.

What about Garland’s other Guantanamo cases? After all, he himself authored 4 different opinions on detainee status alone while on the D.C. Circuit: 2008’s Parhat v. Gates; 2011’s Khan v. Obama and Al Alwi v. Obama; and 2012’s Alsabri v. Obama. Well, in Parhat, Garland ruled in favor of the detainee – concluding that the evidence the government had introduced in its administrative hearing on the detainee’s status was insufficient to sustain its determination that he was an “enemy combatant.” (Separately the following year, Garland wrote a powerful dissent in Saleh v. Titan Corp., arguing that a civil a suit against American military contractors by victims of abuse at the Abu Ghraib prison in Iraq should be allowed to proceed. And he sided against the government in requiring the CIA to disclose whether it possessed any documents concerning drones used in targeted killings.)

By the time the remaining three Guantanamo detainee status cases got to Garland, another panel of the D.C. Circuit had held that the AUMF passed by Congress before the Afghanistan invasion in 2001 granted the President authority to detain individuals who are “part of forces associated with Al Qaeda or the Taliban.” The three cases Garland faced all involved detainee appeals from lower court decisions denying the detainees’ claims for a writ of habeas corpus on the ground that their detention was not justified under that now-settled rule. (The Gitmo detainees overall did quite well in front of the D.C. district court, winning their initial habeas cases 39-25, so the fact that all of these cases involved detainees who even the district court found detainable under existing law is not insignificant.) In all three cases, the detainees’ primary claims were that the facts were insufficiently reliable to justify their detention. Under longstanding D.C. Circuit rules, such district court decisions may only be overturned if the appeals court finds that the lower court has committed “clear error” in its findings of fact – a notoriously tough standard to meet. In Alsabri, the lower court’s findings were based almost entirely on Alsabri’s own admissions, which he never denied, and which were corroborated by other witnesses. The Al Alwi district court likewise reached its conclusion largely on the basis of Al Alwi’s own statements, the majority of which were likewise not disputed by the detainee.

Khan’s case is more complex. The government’s evidence that Khan was part of an associated force of Al Qaeda consisted primarily of the statements of various confidential informants, who described Khan’s involvement in radio controlled explosive devices. Khan disputed various parts of the government’s case, but key portions of the published version of Garland’s opinion in the case are redacted to protect classified information. Nonetheless, the district court had access to the classified record, and concluded on that basis that the informants’ reports had sufficient indicia of reliability – “firsthand knowledge… highly detailed descriptions,” corroborating photographic and physical evidence – to be credited. The appeals court, which also had access to the unredacted record, agreed. Or, more limited, the appeals court opinion of Judge Garland could not find that the district court had committed “clear error” in finding the evidence sufficiently reliable.

It is of course impossible to evaluate from an unclassified opinion how strong the available classified evidence was in Khan’s case. It is somewhat troubling that the Guantanamo Review Task Force established by President Obama had by then already recommended Khan be released, and indeed he was later transferred by the government to Afghanistan in December 2014. On the other hand, Garland was not asked to decide whether Khan’s detention was lawful in the first instance. He was asked to decide whether a distinguished judge of the lower federal court was manifestly wrong to conclude that it was. Given the standards Judge Garland had to apply, it, too, is an unremarkable appeals court conclusion. And for this reason among others, the wrong case on which to base any assessment of Garland’s likely tendencies as a justice on the Supreme Court.