{"id":169184,"date":"2020-09-28T12:01:09","date_gmt":"2020-09-28T11:01:09","guid":{"rendered":"https:\/\/www.transcend.org\/tms\/?p=169184"},"modified":"2020-09-22T05:33:31","modified_gmt":"2020-09-22T04:33:31","slug":"a-court-just-slammed-the-guantanamo-gate-shut","status":"publish","type":"post","link":"https:\/\/www.transcend.org\/tms\/2020\/09\/a-court-just-slammed-the-guantanamo-gate-shut\/","title":{"rendered":"A Court Just Slammed the Guant\u00e1namo Gate Shut"},"content":{"rendered":"<blockquote>\n<p id=\"article-summary\" class=\"css-1smgwul e1wiw3jv0\"><em>Does the public care about the 40 remaining inmates with no obvious end to their imprisonment?<\/em><\/p>\n<\/blockquote>\n<div id=\"attachment_152683\" style=\"width: 710px\" class=\"wp-caption aligncenter\"><a href=\"https:\/\/www.transcend.org\/tms\/wp-content\/uploads\/2020\/01\/guantanamo-1.jpg\" ><img loading=\"lazy\" decoding=\"async\" aria-describedby=\"caption-attachment-152683\" class=\"wp-image-152683\" src=\"https:\/\/www.transcend.org\/tms\/wp-content\/uploads\/2020\/01\/guantanamo-1-1024x512.jpg\" alt=\"\" width=\"700\" height=\"350\" srcset=\"https:\/\/www.transcend.org\/tms\/wp-content\/uploads\/2020\/01\/guantanamo-1-1024x512.jpg 1024w, https:\/\/www.transcend.org\/tms\/wp-content\/uploads\/2020\/01\/guantanamo-1-300x150.jpg 300w, https:\/\/www.transcend.org\/tms\/wp-content\/uploads\/2020\/01\/guantanamo-1-768x384.jpg 768w, https:\/\/www.transcend.org\/tms\/wp-content\/uploads\/2020\/01\/guantanamo-1.jpg 1440w\" sizes=\"auto, (max-width: 700px) 100vw, 700px\" \/><\/a><p id=\"caption-attachment-152683\" class=\"wp-caption-text\">In this photo reviewed by U.S. military officials, the sun sets behind the closed Camp X-Ray detention facility on April 17, 2019, at the Guantanamo Bay Naval Base in Cuba. Photo: Alex Brandon\/AP<\/p><\/div>\n<section class=\"meteredContent css-1r7ky0e\">\n<div class=\"css-1fanzo5 StoryBodyCompanionColumn\">\n<div class=\"css-53u6y8\">\n<p class=\"css-158dogj evys1bk0\"><em>10 Sep 2020 &#8211; <\/em>It\u2019s more than 12 years since the Supreme Court cracked open the prison gates at Guant\u00e1namo 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.<\/p>\n<p class=\"css-158dogj evys1bk0\">The decision, <a href=\"https:\/\/www.oyez.org\/cases\/2007\/06-1195\" class=\"css-1g7m0tk\" title=\"\"  target=\"_blank\" rel=\"noopener noreferrer\">Boumediene v. Bush<\/a>, 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\u2019t enter and the \u201cworst of the worst\u201d could never leave.<\/p>\n<p class=\"css-158dogj evys1bk0\">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 Guant\u00e1namo 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 Guant\u00e1namo case for the past decade?<\/p>\n<p class=\"css-158dogj evys1bk0\">Here\u2019s the reason: The federal appeals court in Washington, D.C., has just slammed the Guant\u00e1namo gate shut.<\/p>\n<\/div>\n<aside class=\"css-ew4tgv\" aria-label=\"companion column\"><\/aside>\n<\/div>\n<div class=\"css-1fanzo5 StoryBodyCompanionColumn\">\n<div class=\"css-53u6y8\">\n<p class=\"css-158dogj evys1bk0\">Has anyone noticed? Guant\u00e1namo 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?<\/p>\n<p class=\"css-158dogj evys1bk0\">The decision, <a href=\"https:\/\/www.cadc.uscourts.gov\/internet\/opinions.nsf\/D0E6FA5B87B19006852585D2004F674C\/$file\/19-5079-1858799.pdf\" class=\"css-1g7m0tk\" title=\"\"  target=\"_blank\" rel=\"noopener noreferrer\">Al Hela v. Trump<\/a>, 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 Guant\u00e1namo longer and better than any journalist alive, <a target=\"_blank\" href=\"https:\/\/www.nytimes.com\/2020\/09\/02\/us\/politics\/guantanamo-detainees-due-process.html?searchResultPosition=2\" class=\"css-1g7m0tk\" title=\"\" >reported on it<\/a> for The Times. But in the public policy space it has been met with silence.<\/p>\n<p class=\"css-158dogj evys1bk0\">It\u2019s 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\u2019ve 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 \u201cwill almost certainly cause Americans to die.\u201d<\/p>\n<p class=\"css-158dogj evys1bk0\">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 Guant\u00e1namo 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.<\/p>\n<p class=\"css-158dogj evys1bk0\">Last month\u2019s 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\u2019s characters in \u201cThe Great Gatsby,\u201d Tom and Daisy Buchanan, \u201ccareless people who smashed things up\u201d and who \u201clet other people clean up the mess they made.\u201d (And I\u2019ll 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 \u201cthe most blatant and consequential usurpation of executive power in our history.\u201d)<\/p>\n<\/div>\n<aside class=\"css-ew4tgv\" aria-label=\"companion column\">\n<div id=\"c-col-editors-picks\" class=\"css-j64t31\"><\/div>\n<\/aside>\n<\/div>\n<div class=\"css-1fanzo5 StoryBodyCompanionColumn\">\n<div class=\"css-53u6y8\">\n<p class=\"css-158dogj evys1bk0\">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 <a href=\"https:\/\/www.supremecourt.gov\/opinions\/15pdf\/15-274_new_e18f.pdf\" class=\"css-1g7m0tk\" title=\"\"  target=\"_blank\" rel=\"noopener noreferrer\">2016 Supreme Court decision<\/a> that struck down an identical law in Texas. The Supreme Court made properly short work of that defiance in its decision this summer in <a href=\"https:\/\/www.supremecourt.gov\/opinions\/19pdf\/18-1323_c07d.pdf\" class=\"css-1g7m0tk\" title=\"\"  target=\"_blank\" rel=\"noopener noreferrer\">June Medical Services v. Russo<\/a>.<\/p>\n<p class=\"css-158dogj evys1bk0\">The Guant\u00e1namo situation is more subtle and for that reason more interesting. In one of its first Guant\u00e1namo decisions, <a href=\"https:\/\/www.oyez.org\/cases\/2003\/03-334\" class=\"css-1g7m0tk\" title=\"\"  target=\"_blank\" rel=\"noopener noreferrer\">Rasul v. Bush<\/a> 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, <a href=\"https:\/\/supreme.justia.com\/cases\/federal\/us\/339\/763\/\" class=\"css-1g7m0tk\" title=\"\"  target=\"_blank\" rel=\"noopener noreferrer\">Johnson v. Eisentrager<\/a>, which held that federal courts lacked jurisdiction over cases brought by German prisoners of war being held overseas by the United States.<\/p>\n<p class=\"css-158dogj evys1bk0\">The Rasul decision was based on the court\u2019s interpretation of a jurisdictional statute. The Boumediene ruling went deeper, holding that the prisoners\u2019 access to federal court was not simply a statutory right but was grounded in the Constitution\u2019s protection of the \u201cprivilege of the writ of habeas corpus.\u201d Justice Kennedy\u2019s opinion left a major question unanswered, however: Now that the Guant\u00e1namo 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?<\/p>\n<p class=\"css-158dogj evys1bk0\">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 D.C. 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\u2019s designation as an enemy combatant was correct.<\/p>\n<p class=\"css-158dogj evys1bk0\">Decisions of that kind, based on factual evaluations of the prisoners\u2019 claims, made it unnecessary for the appeals court to decide the open question about how the Constitution itself might apply. The question lingered in the background of many of the cases. Last year, in <a href=\"https:\/\/www.leagle.com\/decision\/infco20190621102\" class=\"css-1g7m0tk\" title=\"\"  target=\"_blank\" rel=\"noopener noreferrer\">Qassim v. Trump<\/a>, a three-judge D.C. Circuit panel strongly suggested that a claim under the Constitution\u2019s due process guarantee would be upheld in the right case; the panel vacated and sent back the District Court\u2019s decision holding that a due process argument was categorically unavailable to a noncitizen held outside the country.<\/p>\n<p class=\"css-158dogj evys1bk0\">Judge Randolph was not on the panel in the Qassim case. But in May of this year, he was on the panel in another case, <a href=\"https:\/\/www.leagle.com\/decision\/infco20200515146\" class=\"css-1g7m0tk\" title=\"\"  target=\"_blank\" rel=\"noopener noreferrer\">Ali v. Trump<\/a>, in which the same judge who wrote the opinion in Qassim, Patricia Millett, again wrote for the majority. As in the Qassim case, her opinion held that the district court had been right to reject the inmate\u2019s habeas petition, but wrong to do so categorically. Judge Millett noted that while \u201ccircuit precedent has not yet comprehensively resolved\u201d the question, \u201cthe district court\u2019s decision that the Due Process Clause is categorically inapplicable to detainees at Guant\u00e1namo Bay was misplaced.\u201d<\/p>\n<p class=\"css-158dogj evys1bk0\">This modest opinion, reserving the hard question for another day, was nonetheless enough to set Judge Randolph off. Concurring only in the judgment, he refused to sign Judge Millett\u2019s opinion, accusing her of ignoring what he insisted was clear Supreme Court precedent that made the due process guarantee unavailable to \u201ca nonresident alien enemy detained by the United States outside of our sovereign territory.\u201d<\/p>\n<\/div>\n<aside class=\"css-ew4tgv\" aria-label=\"companion column\"><\/aside>\n<\/div>\n<div class=\"css-1fanzo5 StoryBodyCompanionColumn\">\n<div class=\"css-53u6y8\">\n<p class=\"css-158dogj evys1bk0\">The precedent Judge Randolph cited for this sweeping proposition was the old post-World War II Eisentrager case, the very case that the Supreme Court had rejected in 2004 when it treated Guant\u00e1namo as a functional part of the United States that came within the jurisdiction of the federal courts. I\u2019ll be polite: to accept Judge Randolph\u2019s opinion as an accurate account of the state of the law is to ignore the entire trajectory of the Supreme Court\u2019s Guant\u00e1namo cases.<\/p>\n<p class=\"css-158dogj evys1bk0\">That brings me to the most recent case, Al Hela. Judge Randolph got lucky when the panel was designated. Instead of serving with two of the appeals court\u2019s more liberal members, Judge Millett and Judge Judith Rogers, as in the Ali case, he was joined by two conservative colleagues, Judge Rao and Judge Thomas Griffith. All three agreed that the habeas petition filed by Abdulsalam Al Hela, a Yemeni tribal sheikh held at Guant\u00e1namo since 2004, was deficient for a variety of standard reasons.<\/p>\n<p class=\"css-158dogj evys1bk0\">Judge Griffith, who retired from the appeals court last week, argued in a separate opinion that there was no need to venture further into constitutional territory. But in her controlling opinion, Judge Rao said it was time to decide the due process issue because Mr. Al Hela claimed in his habeas petition that the government\u2019s reliance on anonymous hearsay in the intelligence reports it used to justify his continued detention violated his right to due process.<\/p>\n<p class=\"css-158dogj evys1bk0\">But no such right applied to him, Judge Rao wrote, concluding that \u201cwe reject Al Hela\u2019s due process claims on the threshold determination that, as an alien detained outside the sovereign territory of the United States, he may not invoke the protection of the Due Process Clause.\u201d A footnote to her opinion contained the astounding assertion that \u201cour court has adhered to Eisentrager\u2019s holding that the Fifth Amendment\u2019s Due Process Clause does not apply outside the territorial United States and therefore cannot be invoked by detainees at Guant\u00e1namo Bay.\u201d<\/p>\n<p class=\"css-158dogj evys1bk0\">Judge Griffith, in his separate opinion, properly objected: \u201cBut we have never made such a far-reaching statement about the Clause\u2019s extraterritorial application.\u201d The objection was fruitless. Judge Randolph had done his work and had the last word, at once cryptic and completely clear in a concurring opinion consisting of a single sentence: \u201cI agree with the court\u2019s decision not only for the reasons expressed in its opinion, but also for the additional reasons stated in my opinion concurring in the judgment in Ali v. Trump.\u201d<\/p>\n<p class=\"css-158dogj evys1bk0\">What might happen next is anyone\u2019s guess. It\u2019s not out of the question for the full D.C. Circuit to reconsider the panel decision, as it did last week when it overturned a panel opinion in the Michael Flynn case, <a target=\"_blank\" href=\"https:\/\/www.nytimes.com\/2020\/08\/31\/us\/politics\/michael-flynn-appeals-court.html?searchResultPosition=3\" class=\"css-1g7m0tk\" title=\"\" >restoring the district judge\u2019s discretion<\/a> to decide whether to yield to the Trump administration\u2019s demand to dismiss the prosecution of the president\u2019s former national security adviser. It\u2019s conceivable the Al Hela case could end up at the Supreme Court. I have trouble conjuring five votes there even to sustain the Boumediene precedent, let alone to carry it into due process territory.<\/p>\n<p class=\"css-158dogj evys1bk0\">While I\u2019ve never been to Guant\u00e1namo, I have revisited it regularly during my years writing this column. Why care about Guant\u00e1namo at this late date? As the 9\/11 anniversaries have accumulated and the shock of that day has been absorbed into our national narrative, I\u2019ve come to think of Guant\u00e1namo, born in fear and sustained through political cynicism and public indifference, as a mirror of ourselves during these opening decades of the current century, trapped no less than our 40 remaining \u201cforever\u201d prisoners with no obvious end to their imprisonment. There have been a few redemptive moments in this story, and the Boumediene decision was one of them. If it\u2019s now to be buried without even a decent funeral, we should at least take note.<\/p>\n<p>__________________________________________<\/p>\n<\/div>\n<\/div>\n<\/section>\n<div class=\"bottom-of-article\">\n<div class=\"css-1jp38cr\">\n<div class=\"css-19hdyf3 e1e7j8ap0\">\n<div>\n<p style=\"padding-left: 40px;\"><em><a href=\"https:\/\/www.transcend.org\/tms\/wp-content\/uploads\/2020\/09\/linda-greenhouse.png\" ><img loading=\"lazy\" decoding=\"async\" class=\"alignleft wp-image-169185 size-full\" src=\"https:\/\/www.transcend.org\/tms\/wp-content\/uploads\/2020\/09\/linda-greenhouse-e1600747643572.png\" alt=\"\" width=\"100\" height=\"100\" \/><\/a>Linda Greenhouse, the winner of the 1998 Pulitzer Prize, writes on alternate Thursdays about the Supreme Court and the law. She reported on the Supreme Court for <\/em>The Times<em> from 1978 to 2008, and is the author of several books.<\/em><\/p>\n<p>&nbsp;<\/p>\n<p><a target=\"_blank\" href=\"https:\/\/www.nytimes.com\/2020\/09\/10\/opinion\/guantanamo-due-process.html?smid=nytcore-ios-share\" >Go to Original &#8211; nytimes.com<\/a><\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"<p>10 Sep 2020 &#8211; The federal appeals court in Washington, D.C., has just slammed the Guant\u00e1namo gate shut. Has anyone noticed? Guant\u00e1namo 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?<\/p>\n","protected":false},"author":4,"featured_media":152683,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[65],"tags":[1809,133,1810,1464,260,487,950,741,1808,91,86,112,1266,880,572,95,70,126,118,921],"class_list":["post-169184","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-anglo-america","tag-bruce-jessen","tag-cia","tag-enhanced-interrogation","tag-guantanamo","tag-history","tag-human-rights","tag-invasion","tag-iraq","tag-james-mitchell","tag-nato","tag-occupation","tag-pentagon","tag-rendition","tag-state-terrorism","tag-torture","tag-us-military","tag-usa","tag-violence","tag-war","tag-whistleblowing"],"_links":{"self":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/169184","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/comments?post=169184"}],"version-history":[{"count":0,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/169184\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/media\/152683"}],"wp:attachment":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/media?parent=169184"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/categories?post=169184"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/tags?post=169184"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}