Remaining inmates

It’s more than 12 years since the Supreme Court cracked open the prison gates at Guantánamo Bay, ruling that the prisoners held there, the living embodiments of the post-9/11 war on terror, had the constitutional right to petition the federal courts for release.

The decision, Boumediene v Bush, was an unexpected affirmation that the rule of law had survived the shock of Sept 11, 2001, against all odds and despite the effort by the administration of President George W Bush to treat the U.S. naval base in southeastern Cuba as a black hole where law couldn’t enter and the “worst of the worst” could never leave.

Now another 9/11 anniversary is upon us, always an occasion to contemplate that day and where it has brought the country. But even so, why write about Guantánamo now, in the midst of a presidential campaign during which the island prison is never mentioned, with a new term about to begin at the Supreme Court, which has turned down every Guantánamo case for the past decade?

Here’s the reason: The federal appeals court in Washington, D.C., has just slammed the Guantánamo gate shut.

Has anyone noticed? Guantánamo once stirred public passions. Now that the inmate population is down to 40, from the nearly 800 who passed through the prison in its 18-year existence so far, do people still care?

The decision, Al Hela v Trump, issued late last month by a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, did not go completely unnoticed; the indispensable Carol Rosenberg, who has covered Guantánamo longer and better than any journalist alive, reported on it for The Times. But in the public policy space it has been met with silence.

It’s my simple premise in this column that people should notice and should care, one reason being that the decision represents the culmination of judicial politics as raw as any I’ve ever observed. Conservative judges have hated the Boumediene decision from the moment in June 2008 when Justice Anthony Kennedy announced his opinion for a 5-to-4 majority, over a dissenting prediction by Justice Antonin Scalia that the decision “will almost certainly cause Americans to die.”

Justice Kennedy has retired and Justice Scalia has died, but Judge A. Raymond Randolph is still on the D.C. Circuit, where he has served since 1990. Early in the Guantánamo saga, he wrote three majority opinions for the appeals court denying the detainees access to federal court. The Supreme Court overturned all three. The third was the case that became Boumediene, and since that day, Judge Randolph has written or joined a remarkable series of opinions that have sapped the Supreme Court decision of much of its meaning.

Last month’s Al Hela decision, which he joined (the newest member of the panel, Judge Neomi Rao, appointed last year by President Trump, wrote the majority opinion), was the final blow. One might even call it a triumph for a judge who in a 2010 speech to the Heritage Foundation shockingly compared the five justices in the Boumediene majority to F. Scott Fitzgerald’s characters in “The Great Gatsby,” Tom and Daisy Buchanan, “careless people who smashed things up” and who “let other people clean up the mess they made.” (And I’ll note that Attorney General William Barr is fully on board in the war against Boumediene, referring to it in a speech to the Federalist Society last year as “the most blatant and consequential usurpation of executive power in our history.”)

How can a lower court render a Supreme Court decision a nullity? We saw a recent example in the bold refusal of the United States Court of Appeals for the Fifth Circuit to apply to an anti-abortion law in Louisiana despite a 2016 Supreme Court decision that struck down an identical law in Texas. The Supreme Court made properly short work of that defiance in its decision this summer in June Medical Services v. Russo.

The Guantánamo situation is more subtle and for that reason more interesting. In one of its first Guantánamo decisions, Rasul v Bush in 2004, the Supreme Court overturned a decision by Judge Randolph and held that the naval base, although obviously located in a foreign country, was functionally part of the United States and for that reason was subject to the jurisdiction of the federal courts. The justices in that decision rejected the applicability of a post-World War II decision, Johnson v Eisentrager, which held that federal courts lacked jurisdiction over cases brought by German prisoners of war being held overseas by the United States.

The Rasul decision was based on the court’s interpretation of a jurisdictional statute. The Boumediene ruling went deeper, holding that the prisoners’ access to federal court was not simply a statutory right but was grounded in the Constitution’s protection of the “privilege of the writ of habeas corpus.” Justice Kennedy’s opinion left a major question unanswered, however: Now that the Guantánamo prisoners could petition for habeas corpus, what rights could they actually assert in their challenges to their continued detention? What substantive rights did they possess?

In the immediate aftermath of Boumediene, dozens of prisoners filed habeas petitions, and federal district judges in Washington granted 38 of them, an impressive number given that the number had been zero not long before. The Obama administration, in office by then, released about half of the successful petitioners without a fight. But it successfully appealed other cases. The DC Circuit in fact has never affirmed a grant of habeas that the government contested. Case by case, in many with opinions by Judge Randolph, the appeals court wove around the prison camp a tight web of rules favoring the government; for example, accepting gossamer chains of circumstantial evidence as sufficient proof that an inmate’s designation as an enemy combatant was correct.

Excerpted from: ‘A Court Just Slammed the Guantánamo Gate Shut’

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