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Mark P. Denbeaux
Professor of Law and Director of the Seton Hall Law Center for Policy & Research
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Cell: 201-214-6785
Email: mark.denbeaux@shu.edu

Michael J. Ricciardell, J.D.
Legal Media Officer
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Email: michael.ricciardelli@shu.edu

May 02, 2012

About Seton Hall Law

Seton Hall Law Report Reveals Courts Deny GTMO Habeas Relief and Fail to Reject Government Allegations at Unusually High Rates Since Appeals Court Decision in 2010

Law Professor Mark Denbeaux: ‘Since Al-Adahi, judges are effectively robo-signing habeas denials and rubber stamping government allegations.’

Seton Hall University School of Law’s Center for Policy & Research has issued a report: “No Hearing Habeas: D.C. Circuit Restricts Meaningful Review.”

Within the context of the U.S. Supreme Court’s landmark 2008 decision in Boumediene v. Bush, which demanded a robust and “meaningful review” of the legality of the Guantanamo detainees’ detention, the report examines the stark differences of actual practice. The report finds that the promise of Boumediene has been effectively negated by decisions of the U.S. Court of Appeals for the District of Columbia Circuit, beginning in 2010 with Al-Adahi v. Obama.

Seton Hall Law Professor and Director of the Center for Policy and Research, Mark P. Denbeaux, stated, “Since Al-Adahi, judges are effectively robo-signing denials and rubber-stamping government allegations. The Supreme Court gaveth and the Appeals Court taketh away.”

The report finds and documents a marked difference between the first 34 habeas decisions (before Al-Adahi) and the last 12 (after Al-Adahi) in both the number of times that detainees win habeas petitions and the frequency in which the trial court has deferred to the government’s factual allegations rather than reject them.

Detainees won 56% of the first 34 habeas petitions; detainees lost 92% of the last 12— and the sole detainee win after Al-Adahi has since been vacated and remanded by the D.C. Circuit.

The Report finds the differences were not limited merely to winning and losing. Significantly, the two sets of cases were markedly different in the deference that the district courts accorded government allegations. In the 34 earlier cases, courts rejected the government’s factual allegations 40% of the time. In the most recent 12 cases, however, the courts rejected only 14% of these allegations.

Seton Hall Law student and Report co-author Lauren Winchester noted, “Before Al-Adahi, a district court judge was nearly three times more likely to reject the government’s most frequent allegations.”

Professor Jonathan Hafetz, a director of the Center and report co-author, stated, “The effect of Al-Adahi on the habeas corpus litigation promised in Boumediene is clear. After Al-Adahi, the practice of careful judicial fact-finding was replaced by judicial deference to the government's allegations. The data shows that now the government consistently wins the cases and an overwhelming number of the factual disputes. The Supreme Court ordered ‘meaningful review,’ what we have now would seem to be largely perfunctory.”

Report co-author Sara Ben-David agreed, saying “Given the fact-intensive nature of district court fact-finding, the shifting pattern of lower court decisions could only be due to an appellate court’s radical revision of the legal standards thought to govern habeas petitions, raising serious questions about whether the D.C. Circuit has in fact correctly applied Boumediene.”

The Report analyzes allegations that appear in every habeas case to reveal the actual pattern of district court fact-finding. A detailed comparison of the actual allegations made by the government and the comparative patterns of rejection for four of the most frequent government allegations reveals the following:

  1. Allegations of Hostile Acts: In 23 of the 46 cases the government alleged that a detainee committed hostile acts. Prior to Al-Adahi district courts rejected the government’s allegations 8 of the 16 times a hostile act was alleged (50%); after Al-Adahi the district courts rejected the government’s allegation of a hostile act only 1 of the 7 times it was made (14%).
  2. Allegations of Staying at a “Guesthouse”: In 27 of the 46 cases the government alleged that a detainee stayed at a guesthouse. Prior to Al-Adahi, district courts rejected the government’s allegations 9 of the 21 times the guest house allegation was brought (43%); after Al-Adahi district courts did not reject the government’s guest house allegation once out of the 6 times it was brought (0%).
  3. Allegations of Training Camp Attendance: In 28 of the 46 cases the government alleged that a detainee attended a training camp. Prior to Al-Adahi, district courts rejected the government’s allegations 8 of the 21 times the training camp allegation was brought (38%); after Al-Adahi, district courts rejected the government’s training camp attendance allegation only 1 of the 7 times it was brought (14%).
  4. Allegations of Suspicious Travel: In 36 of the 46 cases the government alleged that a detainee traveled on a particular route that supported a connection with al Qaeda or the Taliban. Prior to Al-Adahi, district courts rejected the government’s travel route allegations 9 of the 27 times those allegations were made (33%); after Al-Adahi, district courts rejected the government’s travel route allegation 2 of the 9 times the allegation was brought (22%).

In total, prior to Al-Adahi the government made 85 allegations from the above four categories and district courts rejected those allegations 34 times (40%). After Adahi, the government made these allegations 29 times and district courts rejected them 4 times (13.7%). This data thus demonstrates that before Al-Adahi, a district court judge was nearly 3 times more likely to reject the government’s primary allegations than it was after Al-Adahi.

Seton Hall University School of Law, New Jersey’s only private law school, and a leading law school in the New York metropolitan area, is dedicated to preparing students for the practice of law through excellence in scholarship and teaching, with a strong focus on clinical education. No Hearing Habeas: D.C. Circuit Restricts Meaningful Review, is the Seton Hall Law Center for Policy & Research’s twenty-first Guantánamo Report. Center reports have been introduced into the Congressional Record by the Senate Armed Services Committee, the Senate Judiciary Committee, the House Armed Services Committee, and as part of a Resolution by the European Parliament. The Guantánamo reports have also been cited by media throughout the world. Rumsfeld Knew and all previous reports may be found at http://law.shu.edu and will be included in the Guantánamo Archives, a joint project between Seton Hall Law School and New York University to document, preserve, and make accessible the legal records and the human stories of the Guantánamo Bay Detention Camp.