David Remes Critiques My Scorecard Critique

It isn't every day that someone sends me a 5,700 word critique of, well, my own work and asks me to publish it. But today, David Remes, who represents a number of Guantanamo clients, sent me a document entitled "Why I Don't Like Ben's Critique of the 'Scorecard'" and asked me to share it with readers. The document is far too long to include in a post, so I've simply uploaded it here. The introduction reads as follows:

Ben argues (here, here, and here) that the scorecard of Guantánamo habeas case wins and losses conveys a "skewed impression" of what's going on in the cases. Steve Vladeck takes issue with Ben's critique. Like Steve, I’m critical of Ben’s critique. (Disclosure: I represent 17 Guantánamo detainees in the habeas litigation.)
The summary below says everything needed to understand my position, and you’re welcome to stop there. The body of the post, which appears on the jump page, is VERY lengthy and includes detailed support. I’ve organized it in sections, as I would a brief, for the reader’s ease. I hope it will serve as a resource for all.
SUMMARY
Of the 54 habeas petitions the district court judges have reviewed, they’ve granted 37 (70 percent) and denied 17 (30 percent). Ben suggests that the government’s record is so dismal because “in a substantial number of cases, the government cannot meet the standards the courts have decided in retrospect should apply.” But these are not judge-made standards. The detainability standard is the government's own standard. The burden of proof - predominance of the evidence - is the government's chosen burden. The discovery rules and rules of evidence favor the government. Yes, the D.C. Circuit’s decisions are more consequential than the district court’s. But I think most who follow these matters perceive the D.C. Circuit as simply making it easier for the government to win. How it’s doing that is not a matter of great interest. Keep in mind that the government says its detainability standard is limited to Guantánamo habeas cases.
Ben tries to shrink the number of detainee wins by arguing that the 5 grants in Boumediene should be counted as a single detainee win because they were “a single case” for docketing purposes, and Judge Leon disposed of their cases in “one decision.” This is of no moment. I filed a single complaint on behalf of 13 Yemenis. All share the same docket number (D.D.C. No. 04-1254). Other omnibus petitions were also filed. No one would claim the results in these cases can be aggregated. And Judge Leon heard the cases back-to-back, which may help explain why he disposed of their cases in “one decision.”

Ben argues that that the 17 Uighur grants should also be treated as a single detainee win. He asserts that the Uighurs “are just different from other detainees” because “the government has been trying to get rid of them for many years,” and “[t]he Uighur problem, at its core, is a diplomatic and political problem, not a legal one.” But the fact that the government has been trying to transfer the Uighurs has nothing to do with the legality of their detention, and every transfer “at its core, is a diplomatic and political problem.” Ben himself says says that detainee releases “have often been largely a function of detainee nationality and U.S. diplomacy with their home countries.”
Ben’s underlying concern seems to be that the 37-17 habeas ratio casts the detainees in too favorable a light. The habeas ratio, however, currently runs only slightly ahead of the ratio of the men the Guantánamo Review Task Force approved for transfer and the men the Task Force did not approve. The Task Force approved 156 out of 240 men for transfer (65 percent to 35 percent). And the 156 number is likely quite conservative given that all decisions had to be unanimous, and the agencies involved were surely biased against false positives. (Unfortunately, the Task Force’s conservatism resulted in many, many false negatives.) I assume Ben would agree that the Task Force approvals offer a more “accurate” picture of the current detainee population than the habeas ratio, which is retrospective.
The debate about the scorecard is not really a debate about the scorecard. It’s a debate about the Guantánamo narrative. The higher the habeas ratio of detainee wins to losses, the less legitimate the Guantánamo project seems in retrospect. The higher the ratio of government wins to losses, the more legitimate the project seems in retrospect. But the legitimacy of the Guantánamo project doesn’t rise or fall with the habeas ratio. The project is universally condemned, from A to Z. A ratio more favorable to the government won’t provide firm support for policy proposals, because the ratio is, and will be understood as, the product of the D.C. Circuit’s recalibration.
Finally, Ben argues that the habeas ratio ignores the habeas cases that detainees never filed, or withdrew. These phantom cases, Ben argues,  amount to government wins because the government can continue to detain the men “without legal difficulty.” If we count as a government win the government’s ability to detain men “without legal difficulty,” we’ve truly lost our bearings.

There's a lot I could say in response to this document. I'll refrain for now (I haven't even read the whole thing yet), except on one big-picture point: As David's summary reflects, there is an underlying suggestion here that my beef with the scorecard is that it looks bad for the government and that I'm trying to ameliorate the picture. This is not true. As I made clear in my posts, I think some of the scorecard's deficiencies make matters look worse for the government, but some probably make matters look better than they would otherwise look. The core of my problem with the scorecard approach is not the direction of its distortions but the fact of them--combined with the fact that it elevates the numerical over the substantive and thus conveys a misleading impression of what is happening in detention adjudication. For what it's worth, I believe that the scorecard will look dramatically better for the government than it does now. I won't feel better about it at that point if I'm right.