The Guantanamo Quagmire
By Richard Brust
Oct 5, 2012, 04:02 pm CDT
Federal appeals Judge A. Raymond Randolph is an admirer of the 18th century English critic Samuel Johnson. But it was Nick Carraway, the narrator of F. Scott Fitzgerald’s The Great Gatsby, whom Randolph found himself quoting during a 2010 lecture at the Heritage Foundation.
“They were careless people. … They smashed up things … and let other people clean up the mess they had made.”
Randolph, senior judge on the U.S. Court of Appeals for the D.C. Circuit, was not speaking—as was the fictional Carraway—of the rich, “who are different than you and me.” Randolph was addressing the U.S. Supreme Court—specifically, the court’s landmark 2008 case Boumediene v. Bush, which held that detainees at the Guantanamo Bay detention center in Cuba are constitutionally entitled to pursue habeas corpus relief in the federal courts.
What the Supreme Court “smashed up” were statutes depriving federal appeals courts of the jurisdiction to hear such habeas cases, Randolph said. And where the high court dumped the “mess” was in the lap of the D.C. Circuit, leaving the appellate and district courts with the muddle of how to handle piles of petitions from Guantanamo inmates.
“Boumediene ripped up centuries of settled law,” Randolph wrote in a 2011 essay titled “The Guantanamo Mess” for the National Review Online. “The Guantanamo habeas cases march on, hundreds of them, case by case, in our court and in the district court.”
In the article, Randolph—who wrote the appellate decision that the Supreme Court reversed—described the predicament: “Consider one of the most basic issues: Who bears the burden of proof? Must the government show that it is properly holding the detainee? Or is it up to the detainee to show that he is being held improperly? Boumediene contains language that seems to support both positions. … Reading and rereading Boumediene will not give you an answer.”
Nor is Randolph the only D.C. Circuit judge with an opinion on what the Supreme Court can do with Boumediene.
In a blistering concurrence in 2011’s Esmail v. Obama, in which the appeals court denied another detainee’s habeas petition, Senior Judge Laurence H. Silberman doubted the circuit would release any inmate “who is likely to return to terrorism.” And if the executive branch won’t free detainees into the U.S. or another country, then “the whole process leads to virtual advisory opinions.”
“It becomes a charade,” Silberman wrote, “prompted by the Supreme Court’s defiant—if only theoretical—assertion of judicial supremacy, see Boumediene, … sustained by posturing on the part of the Justice Department, and providing litigation exercise for the detainee bar.”
Judge Janice Rogers Brown also chastised Boumediene in her 2011 opinion in Latif v. Obama, in which the appellate court remanded a habeas petition: “As the dissenters warned and as the amount of ink spilled in this single case attests, Boumediene’s airy suppositions have caused great difficulty for the executive and the courts.”
“Luckily,” Brown continued, “this is a shrinking category of cases. The ranks of Guantanamo detainees will not be replenished. Boumediene fundamentally altered the calculus of war, guaranteeing that the benefit of intelligence that might be gained—even from high-value detainees—is outweighed by the systemic cost of defending detention decisions. While the court in Boumediene expressed sensitivity to such concerns, it did not find them ‘dispositive.’ Boumediene’s logic is compelling: Take no prisoners. Point taken.”
Read more of "As DC Circuit Weighs the Future of Guantanamo Inmates, Some Say Judicial Review Can Harm Military" in this month's ABA Journal.
Browse the rest of the Patriots Debate series in the index included in the full article.