Below is an excerpt edited out of papers a colleague filed in a court. I think it highly germane to the argument in favor of the injunction - which Hamdan's attorneys did not make, for reasons I don't know and cannot fathom - that judicial estoppel should be invoked to prevent the government from making the arguments it now makes. Substitute "government" for "defense" and "Hamdan" for "plaintiff" in my excerpt, and it works perfectly.
What, you non-lawyers ask, is this strange beast called "judicial estoppel"?
Well, for starters, "estoppel" is a word derived from old French which roughly means "bar" or "prevention against".
Judicial estoppel is a form of estoppel - an equitable remedy - in which the court finds a party has "successfully maintained" an argument and then, as a matter of fairness and equity, cannot be allowed to later argue the contrary when it would be unfair to the party against whom the argument is made. The caselaw tells us that "successfully maintained" means not that they won the argument, but that they made it to the court. The "successful maintenance" of an argument can be, but need not be, in the same lawsuit as when the judicial estoppel is applied.
A classic example of the doctrine's application is both funny and instructive. It involves a lawyer who, in divorcing his wife, claimed his interest in his law partnership was worth ... not a lot of money. Obviously, since a valuable partnership interest would mean he'd be paying his soon-to-be-former wife a large property settlement as part of his divorce, it was in his interest to minimize the value of his partnership interest. The divorce court let him do that, even though it disagreed with him and put a higher value on it. But, he "successfully maintained" the argument. A while after his divorce, his partners decided to jettison him and he sued, claiming they'd shorted him on his partnership interest while showing him the door. He was now arguing his partnership interest was quite valuable and he was entitled to more, more, more. "Judicial estoppel" was brought into play and the Court decided that, since he'd already successfully maintained the argument the partnership was worth less, less, and less, he was stuck with that position. He'd gotten his divorce and paid not a lot then, but got little from his partnership. IIRC, his now-ex-wife also came back and claimed, with some effect, that he'd deceived the divorce Court about the value of his partnership, Exhibit A in support being his complaint in the second suit, claiming a higher value for it.
The doctrine isn't meant to screw people over - rather, it's meant to prevent people from messing with the Courts and devising elaborate chicanes of bullsh*t to avoid ever coming to a final, adverse determination.
In my colleague's case, the plaintiff filed a motion (whose purpose is irrelevant here). My colleague's adversary then filed papers which in one sentence declined to oppose my motion and, in the next, opposed it. But without giving any legal argument for the latter. The best letters are often the ones you don't dare to send. Here's what my colleague had to say (and didn't file, for many good reasons):
This appears to be not much more than the defense wanting to eat its cake - of avoiding both (a) preparing and timely filing a properly drafted and prepared opposition to a pending motion and (b) committing itself to any particular line of argument until the plaintiff commits to a particular position - while having its cake - seeking to oppose the pending motion - too. We note that the gist of this and many other Courts' decisions on the principles of judicial estoppel are designed to prevent such conduct - "trying to have one's cake and eat it too", [multiple citations omitted] or "playing fast and loose with the judicial system". Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 258 (3d Cir. 1996)... The procedural device suggested in [some cases] as useful to avoid judicial estoppel, pleading in the alternative ..., is unavailable to the defense here. One cannot in one sentence not oppose a motion, and then in the next oppose the motion.
Such a position - the only logical conclusion which can be drawn from a letter such as defense counsel's - is neither fair to the Court and opposing counsel nor is it in service of "... secur[ing] the just, speedy and inexpensive determination of every action and proceeding." See Fed. R. Civ. P. 1.
It is unfair to the Court because it means the Court is precluded from knowing whether the defense actually intends to oppose the pending motion and, if so, on what grounds. The defense's position is further unfair to the Court because this lack of knowledge of the defense's position prevents the Court from making a decision based upon the facts and law and because making any decision on the motion necessarily exposes the Court to being surprised by whatever opposition the defense might throw up at any minute.
It is unfair to the plaintiff for several reasons. First, the defense's conduct is inherently dilatory. The plaintiff cannot reply in support of its motion with any certainty of meeting all the defense's points in opposition until the defense actually states what they are. Blithely stating a motion is "procedurally and substantively defective" [it wasn't] is not a lawyer's argument. It is a conclusion. The defense's not stating what the alleged procedural or substantive defects are - and why they are alleged to be defects - places the plaintiff in the position of guessing why the defense is objecting to the motion. Replying in support of the motion, then, places the plaintiff in the position of placing its speculation as to why the defendant objects before the Court. This, in effect, is the defendant trying to make the plaintiff do the defendant's work for it. We question whether such a lazy man's approach to lawyering is consistent with the ethical command that a lawyer be diligent. Similarly, if the plaintiff succeeds in guessing at why the defense is objecting and succeeds in refuting them, by not having placed its objections on the record the defense can go and look for a new reason. And, finally, if the Court allows the defense to make such meritless and conclusory statements in lieu of actual legal argument the Court is ceding control over its courtroom to the defense.
There's an old saying about something the Brits called the "Irish question" - once the people trying to solve it got close to the right answer, the Irish would secretly change the question. There's no small amount of that in the government's litigational tactics here.
In the Hamdan case (a more recent appeal), the government had said to the Supreme Court that Hamdan stood in exactly the same situation as Boumediene, and that the Supreme Court's decision in Boumediene would be binding on Hamdan, too. They argued that so as to keep the Supreme Court from taking Hamdan's case (on the second go-round). And, they succeeded in persuading the Supreme Court to not take Hamdan's case. In other words, they "successfully maintained" an argument.
But, when the Supreme Court said Boumediene was entitled to habeas relief which, applied to Hamdan, would definitely throw a monkey wrench into trying Hamdan before a kangaroo court in Guantanamo before the legality of his existing detention and the constitutionality of the kangaroo court was adjudicated, the government merely acted as though Boumediene did not exist.
Frankly, if anyone other than a government attorney had made such an argument, they'd likely have been sanctioned. Here's hoping the judge in the Hamdan case has enough courage to call the government's seeking to have its cake and eat it too, for the chicanery it is. I can think of few cases more glaringly calling out to have judicial estoppel applied than this one.
Grant the injunction against the Gitmo kangaroo court so Hamdan can get real habeas relief.
