A Tale of Two Writs

Yesterday’s New York Times editorial, “A Right without a Remedy,” finally shines a spotlight on what anyone familiar with the Guantanamo detainee habeas corpus litigation already knows: the steady erosion of the Supreme Court’s 2008 decision in Boumediene v. Bush, and the open disdain for that decision exhibited by several D.C. Circuit judges, most notably A. Raymond Randolph.

The upshot is that we now have two very different conceptions of habeas corpus at Guantanamo: one as a meaningful judicial check on executive power; the other as a legal proceeding in which the judiciary remains powerless to remedy unlawful executive action.

In Boumediene, the Supreme Court held that Congress’s effort to strip Guantanamo detainees of the right to habeas corpus violated the Constitution’s Suspension Clause and ordered the district courts to conduct prompt hearings into whether the petitioners were being lawfully held. Since then, district courts in Washington, D.C., have issued merits decisions in 59 habeas cases, finding no legal basis for the detention in 38 of them.

The D.C. Circuit, however, has taken increasingly narrow view of district court’s power to inquire into the government’s evidence, reversing or vacating and remanding habeas grants in three cases and affirming habeas denials in four of six cases (the other two denials were vacated and remanded). To date, the Circuit has not affirmed a district court grant of habeas nor outright reversed a district court denial.  Along the way, Randolph, along with Circuit Judge Janice Rogers Brown, have suggested that the government might satisfy its burden merely under a “some evidence” standard, as opposed to the higher, preponderance of the evidence standard the Department of Justice is advocating.

But it is Randolph’s evisceration of the judiciary’s remedial power that presents the most direct conflict with Boumediene. In Kiyemba v. Obama, Randolph held that district judges have no authority to order the release of a prisoner from Guantanamo even when there is no basis for the detention, no evidence he presents a danger to the U.S., and no other country to which he might go. Randolph thus reversed the district judge’s ruling ordering the release of the petitioners—seventeen Uighur refugees from China—into the United States when the government failed to justify their detention or resettle them elsewhere.

Randolph has minced no words in his contempt for Boumediene. In a speech last year, he compared the Boumediene justices to the characters in The Great Gatsby, “careless people, who smashed things up . . . and let other people clean up the mess they had made.”

Randolph previously wrote the lower court opinion in all three Supreme Court Guantanamo habeas decisions: Rasul v. Bush; Hamdan v. Rumsfeld; and Boumediene. The Court reversed him all three times.

In October 2009, the Supreme Court granted certiorari in Kiyemba. Prior to oral argument, however, the Obama administration secured offers of resettlement for all of the petitioners and resettled a number of them. The Court vacated the D.C. Circuit opinion and remanded to the appeals court to reconsider the case in light of these new developments. Three months later, Randolph reinstated his prior ruling that courts had no role to play in the release of detainees from Guantanamo.

The five remaining Kiyemba petitioners at Guantanamo are back again before the Court; their new certiorari petition is scheduled for conference on March 18. The posture of their cases—all have received offers of resettlement, although none has any such option today—makes certiorari difficult because it suggests that there is a viable alternative to their continued detention at Guantanamo, which was not the case when the D.C. Circuit first issued its opinion in Kiyemba. Additionally, those Justices who might otherwise be inclined to grant certiorari realize that Justice Kagan’s recusal eliminates a potential fifth vote needed for the petitioners to prevail on the merits.

Kiyemba, however, remains an affront to Boumediene regardless of what happens to the Uighurs because the holding is that it does not matter whether there is an available option: judges can never order release in any circumstance, and can do nothing other than accept the jailor’s representation that it is attempting a diplomatic solution.

Clearly Kiyemba was written not simply to control the Uighur cases but to control every habeas case, depriving district courts of any power to order or facilitate a judicial remedy. District court grants of habeas corpus thus read more like advisory opinions than judicial orders, imploring the government to use its best efforts to secure the petitioner’s release.  Additionally, detainees whom the government has administratively “cleared for release”–but whom it maintains are lawfully detained–cannot get habeas hearings because the district court can provide no remedy beyond urging diplomatic efforts.

The irony is that the D.C. Circuit has taken a landmark Supreme Court decision about constraining executive power and turned it on its head by restoring executive control over who leaves Guantanamo, and when. Sooner or later, the Court is bound to take notice.

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