COMMENT: One Case, Two Decisions: Khalid v. Bush, In re Guantanamo Detainee Cases, and the Neutral Decisionmaker Skip over navigation
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Copyright (c) 2006 Yale Law & Policy Review
Yale Law & Policy Review

COMMENT: One Case, Two Decisions: Khalid v. Bush, In re Guantanamo Detainee Cases, and the Neutral Decisionmaker

Winter, 2006

24 Yale L. & Pol'y Rev. 241


Daniel Freeman+


These statements lie at the core of two recent decisions by judges of the District Court for the District of Columbia. Each judge ruled on identical motions to dismiss, supported and opposed by identical briefs, deciding whether indefinite detention of alien enemy combatants at Guantanamo Bay was impermissible under a variety of legal theories ranging from executive overreach to customary international law. On January 19, 2005, Judge Richard Leon answered an unequivocal no, dismissing each of the petitioners claims. Less than two weeks later, Judge Joyce Hens Green denied the motion to dismiss, granting that the petitioners had cognizable rights under both the Fifth Amendment and the Geneva Conventions and that the current system of Combat Status Review Tribunals (CSRTs) was insufficient to vindicate those rights.

These cases thus provide a unique empirical demonstration of a core tenet of legal realism: the vacuity of the notion of judge as neutral decisionmaker. 3 In this era of ideological judicial appointments, these cases provide concrete evidence for efforts to temper the aggressive partisanship of the nomination process. After first looking at the unique procedural circumstances that put the same motion in front of two judges, this Comment explores how and why two jurists struck starkly different legal conclusions when presented the same arguments under the same binding precedents. A close analysis of each decision's structural and rhetorical framework provides clues to its author's normative preferences. With an absence of clear instruction from higher courts, this Comment describes how each judge manipulated ...
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