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Thursday, October 21, 2010

Judge Randolph Comes Clean: Boumediene Was Wrongly Decided

In a speech titled "The Guantanamo Mess" delivered yesterday at the Heritage Foundation, D.C. Circuit Judge A. Raymond Randolph launched a quite pointed (if wholly unsurprising, given his own jurisprudence) attack on the Supreme Court's 2008 decision in Boumediene v. Bush, which held that non-citizens detained at Guantanamo are protected by the Constitution's Suspension Clause. (Reversing, it should be noted, a D.C. Circuit opinion written by Randolph.)  Although the theme of Judge Randolph's remarks went to Boumediene's negative consequences in the D.C. courts, he spent a fair amount of time in the speech attacking the opinion itself, especially the extent to which it distinguished the Supreme Court's 1950 decision in Johnson v. Eisentrager.

The speech itself is worth watching. But I wanted to post about it to share two distinct observations, one of which goes to the merits of Judge Randolph's argument, and the other of which goes to the forum in which he presented them.

On the merits, as I've previously argued, we have an alarming tendency today to overread Eisentrager. Yes, there are lots of statements by Justice Jackson suggesting that non-citizens detained outside the United States are not generally shielded by the Constitution (statements Randolph quotes at length in his speech), but all the Court actually held was that those petitioners--who had been tried and convicted by a U.S. military commission--were not entitled to pursue habeas relief. Indeed, Jackson devoted a substantial chunk of his opinion (Parts III and IV, which are virtually never mentioned by those who criticize Boumediene) to rejecting the petitioners' principal claim on the merits, i.e., that the commission acted without jurisdiction [in 1950, this was the only claim cognizable in a habeas petition attacking the judgment of a military court]. If the petitioners were bound to lose simply by virtue of being non-citizens detained outside the territorial United States, over half of Jackson's opinion was totally irrelevant and unnecessary. Thus, as I've suggested before, whatever Boumediene's merits, I think it is clear that the Court was not bound to "follow" Eisentrager, since the petitioners in the later case had not been convicted by a U.S. military commission acting within its jurisdiction.

As to the forum for Randolph's remarks, a colleague of mine asked me if I thought it was inappropriate for a sitting circuit judge, whose docket includes a number of related cases, to speak out so publicly on this topic. Quite to the contrary, I think it's far more appropriate for Judge Randolph to air his hostility to Boumediene in speeches than in the forum in which it has thus far appeared, i.e., his opinions on the merits in the post-Boumediene Guantanamo cases. If one reads the D.C. Circuit's opinions in Kiyemba I and Al-Adahi, both of which were penned by Randolph (and the former of which was vacated by the Supreme Court), one can see some of the same unbridled opposition to the Guantanamo litigation in general, and to Boumediene, in particular, that comes through in his speech. Don't get me wrong--I'm not suggesting that sitting judges should decline to object to Supreme Court precedents; indeed, I think that such criticism is one of their noblest and most important obligations. But objections usually come in the context of detailed opinions calling for the Court to revisit the issue, or in "special" concurrences suggesting that, though settled law compels that particular result, the author believes that the settled law is wrong. Rather than state such views directly, Judge Randolph has taken to adopting rather narrow readings of the Supreme Court's decisions in Rasul, Hamdan, Boumediene, and Kiyemba I (each of which, it should be noted, reversed a Randolph opinion), and in some cases, ignoring them altogether.

Consider as just one example the original panel opinion in Kiymeba I, in which, after Boumediene, Judge Randolph held that the federal courts cannot order the release of Guantanamo detainees into the United States. In the same opinion, Randolph held that the detainees do not have due process rights, citing Eisentrager (among other cases), and not Boumediene. [Ironically, later in the opinion he castigates Judge Rogers for failing to recognize existing Supreme Court precedent.] Boumediene didn't address the due process issue, of course, but it certainly did articulate a new framework within which to evaluate that question, a framework that Judge Randolph nowhere adverts to.

To be sure, readers may disagree with me about Boumediene being rightly decided, or even about Boumediene being decided on a clean slate. But Judge Randolph has given the Supreme Court every opportunity to revisit its rulings in the Guantanamo cases, and it in turn has reversed him every single time. Isn't there a difference between lower-court judges objecting once (and publicly) versus repeatedly writing opinions that all-but suggest that Supreme Court precedent doesn't exist?

Posted by Steve Vladeck on October 21, 2010 at 03:49 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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Getting back to the speech, as I think about it I am less and less convinced that Randolph has a plausible historical argument. He cites a reasonably authoritative contemporary source to say that the Writ did not extend beyond the King's domain. The problem with that is the definition of what is and is not equivalent to the "King's Domain" is a question that changes with time and must be translated from 18th Century Britain to the modern US. There is no contemporary definition of the term. The Supreme Court's decision that the Writ extends to any location where US courts routinely issue other types of orders (subpoenas, orders of protection, injunctions, etc.) seems plausible, and the DC Circuit has always issued such orders to Gitmo.

The common law Writ is what it was in 1789 and can only be extended by legislation. However, concepts of national sovereignty and effective control do change over time, because they are relevant to thousands of other issues unrelated to common law habeas, and if the jurisdiction of the Writ depends these external questions, then it changes even when the Writ itself doesn't.

There are two questions that sometimes get confused. The first is the jurisdiction of the court to issue the Writ, which was clearly introduced into the case by the wording of the DTA and MCA and was addressed by the Court in Boumediene. The second question are a set of threshold issues as to when a court having jurisdiction to issue the Writ should decline to do out of hand. Munaf says that one threshold issue is that the court should decline to review a detention when it lacks the power to release the detainee. Eisentrager (at least the dicta) suggests that detention of an admitted enemy alien (civilian or combatant) overseas during war is self evidently legal and need not be justified or explained. Neither applies to any of the Gitmo cases currently before the DC Circuit.

Let me modify my previous concession. Eisentrager is about detention. It is about detention in prison after conviction by a military commission rather than detention by the military without trial as a prisoner of war. What is interesting is that this distinction would be meaningless if the only question were jurisdiction of the Writ, since without jurisdiction you cannot inquire about the reason for detention. Only once you get past jurisdiction do the threshold questions and then the merits of the case become relevant.

Posted by: Howard Gilbert | Oct 24, 2010 2:18:45 PM

Just curious: How does one come to a conclusion that an entire tradition is "philosophically bankrupt?" At the very least this presumes a thorough and deep familiarity with the tradition in question (extremely rare, even today) and fairly objective or at least nontendentious criteria with which to make such a comparative and extavagant judgment.


I don't believe we can assess the truth of any philosophical or religious worldview qua worldview, in part, for the reason Ninian Smart provides us:

"Who can say that Christianity is false because it is supposedly not rational? What if it be rational to expect worldviews to proceed substantially form symbolic sources? What if it is rational to expect revelation from the Beyond if God is ever to address the world that she, having created other than herself, is hidden behind? And if it is not irrational to believe in God, why not the Qur’an, why not Islam? Can the Christian prove her revelation or the Muslim his, over against the other? So [perhaps] it is not rational to think there are clear rational answers to the question of the truth of worldviews." (From Smart's Religion and the Western Mind, 1987, pp. 12-13)

The philosopher Hilary Putnam makes a different but related point this way: "'Is our own way of life right or wrong?' is a silly question, although it isn’t silly to ask if this or that particular feature of our way of life is right or wrong, and 'Is our view of the world right or wrong?' is a silly question, although it isn’t silly to ask if this or that particular belief is right or wrong." In any case, and in many respects, sensitive, empathetic, reflective, and critical global worldview description and analysis is in its infancy, and thus it seems highly unlikely anyone is (at least today) sufficiently well-versed in all the planet's religious and philosophical worldviews to engage in such an enterprise. For we are only now beginning to appreciate the unique logic and forms of rationality found in non-Western worldviews. And we are still in the process of formulating the possible candidates for acceptable cross-cultural and comparative criteria for the analysis and evaluation of worldviews, especially if we grant that the assumptions and methods of modern Western philosophy are not necessarily privileged in such an enterprise, and in fact remain open to learning (about contemporary philosophy's own myths and presuppositions, for example) from this cross-cultural encounter. Another way to put this would be to concede that Western philosophy (or science for that matter) does not possess an a priori monopoly on, or privileged possession of, the truth in any absolute sense. This is not equivalent to denying we can or should strive to make rational and ethical assessments of particular beliefs or practices within worldviews (cf. Martha C. Nussbaum's Sex and Social Justice, 1999, or think of Gandhi's critique of Hinduism and his belief that no religion should countenance in theory or practice the violation of fundamental ethical values and precepts), for we do and should. And this is all the more urgent if we happen to believe religions are first and foremost about "ways of life" and personal conduct, rather than dogmas, doctrine, or orthodoxy (i.e., more a question of orthopraxis). Smart himself argues, and I think persuasively, that it is through the comparative analysis of worldviews that we will generate the normative conceptual resources and categories for worldview evaluation, if only because the process itself will serve to “detribalize Westerners,” that is, enable us to overcome our dispositional tendency to “treat our tradition normatively, either explicitly or secretly.”

In some measure, of course, and particularly in the beginning, we unavoidably treat our own tradition(s) as normative in the comparative study of worldviews. (As Henry McDonald has argued, we 'see' or act and think on the basis of our own norms, rules and values, i.e., 'on the [normative] basis of our own concepts, because they are the logical space in which we move and without which we could see nothing at all.') Smart and others who have thought long and hard about the comparative examination of worldviews, being at the same time pioneers and trailblazers in this enterprise, believe that it will eventually allow if not encourage us to become more self-critical about our own worldviews, and that the result of such encounters and dialogues need not lead to either absolute relativism or radical scepticism.

So while we may be critical of specific worldview beliefs, practices, interests or themes (the latter in the sense perhaps of undue or misplaced emphasis), it is fruitless to make truth claims about worldviews as worldviews. With regard to this more modest critical endeavor, for example, we might assess the potential or capacity of a particular worldview to rationally, ethically, and creatively respond to various urgent issues and problems in our contemporary (and future) world: be it nationalism, uneven or unfettered technological development, public health and general welfare, various kinds of violence, ecological deterioration and devastation, the recognition of basic human rights, the commodification of values, global distributive justice, the awakening and exercise of functions and capacities thought essential for human flourishing or eudaimonia, and so forth and so on. This serves to remind us that, at bottom, our traditions and worldviews are the repositories of our normative conceptions of the good life, and only a clear and deep understanding of such conceptions will enable us to find the evaluative criteria essential to critically assessing ideologies and worldviews in the interests of our shared humanity or individual and collective flourishing.

On philosophy as such in Islam, please see sec. 6 on "Theology & Philosophy" in this bibliography: http://www.jurisdynamics.net/files/documents/IslamicStudiesBibliography.doc

Posted by: Patrick S. O'Donnell | Oct 24, 2010 12:11:16 PM

Mr. Gilbert,

Since you imply that I'm both "narrow minded" and "fascist," I felt entitled to a brief response. If it makes you feel any better, I couldn't care less about the religious sensibilities of Muslims as such, nor do I think that private citizens are obligated to censor their remarks on those grounds. But I do care about the legitimacy, both real and perceived, of the criminal justice system. In that regard, it is hardly narrow minded to question whether a federal judge ought to use provocative langage in a public speech that suggests a certain hostility toward a class of litigants that are likely to come before him in his official capacity. I doubt, for example, that Randolph meant his remark about the Koran as a compliment. That remains a genuine concern, even though I personally think that Islam is philosophically bankrupt. I trust that's sufficiently non-politically correct for your tastes.

Moreover, your claim that Randolph didn't draw a comparison between the Koran and Mein Kampf is simply false. He did so precisely by invoking Churchill's dictum. Equally importantly, it is disingenuous to suggest that Randolph meant the same thing that Churchill did. As any lawyer knows, dicta tends to take on a life of its own, especially when its taken out of context. But not to worry. I'm quite sure that hell will freeze over before Randolph recuses himself from any detainee case.

Posted by: anon | Oct 24, 2010 11:40:13 AM

"It doesn't have to meet any standards."

If so, then this is all an exercise in silliness. I agree that the Constitution didn't create habeas, but rather recognized what was available at common law at the time of the Founding. But it seems just as clear that the writ at the Founding was a flexible remedy routinely adapted by judges to ensure that they had a meaningful opportunity to review whether the jailer had authority to imprison the detainee. That the standards were fluid is something totally different from asserting that they just don't exist.

Posted by: Steve Vladeck | Oct 24, 2010 11:32:29 AM

You are right that Eisentrager is about commissions and not detention, but I believe that the text also makes it clear that it is about enemy aliens and not just aliens. It is only enemy aliens who in time of war, according to the language of the decision, have no access to our courts.

Common law habeas is a power of the Judge to inquire into the legality of a detention. The assumption is that a judge would not consider the Writ unless he intended to give the case a thorough hearing. However, common law habeas is a sua sponte power of the Kings Bench against the detaining authority. Obviously the detainee will be given an opportunity to contest the detention, but in its core this particular proceeding is not an adversarial process involving opposing parties. This means that the government might only have to present the judge with access to classified information. You might regard that as not providing a "meaningful opportunity to contest", but it is a plausible formulation of the rules of evidence, burden of proof, and limit on discovery that might be made given the logical formulation that the Court made in Boumediene of the historical common law habeas power.

If the judge does his job, then the habeas review will be meaningful even if it is distinctly different from any other criminal or civil procedure. It may not, however, meet your standards for fairness. That would be where legislation to extend the scope of the historical Writ comes into play. It remains true, however, that the historical Writ is whatever it was and is not subject to interpretation.

There is no constitutional Habeas. The Writ was not created by the Constitution, so it is not subject to interpretation in the way that judges interpret the Bill of Rights. The Writ is mentioned in the Suspension Clause, but it predates the Constitution and is whatever it was. It may be narrow or wide, just or insufficient, meaningful or meaningless. It doesn't have to meet any standards. This wasn't something created by the Supreme Court to satisfy your view of adequate review.

Posted by: Howard Gilbert | Oct 24, 2010 8:40:58 AM

Howard -- Re: Eisentrager, I just can't agree. The petitioners conceded that they were German. The question was not whether they could be detained; the question (and the heart of their claim on the merits) was whether the military commission that convicted them acted without jurisdiction. They were using habeas to collaterally attack their convictions, not to challenge detention without trial. And I think it says everything that Jackson decided for himself that the commission did in fact act within its jurisdiction.

As for Judge Randolph and Boumediene, you can't really mean what you say. If the lower courts post-Boumediene purported to entertain detainee habeas petitions, but ruled automatically for the government in every case no matter the facts, would you really argue that these decisions were faithful to Boumediene simply because they technically decided issues in a way that Boumediene left unresolved? The better argument, methinks, is that Boumediene left much--but not all--to the discretion of the lower courts. Presumably, the detainee is still entitled to a meaningful opportunity to contest the legality of his detention before a neutral decisionmaker, and to be released if the government cannot meet its burden. But did the Court in Boumediene go out of its way to extend the Suspension Clause to Guantanamo only to have that extension mean nothing, practically? Or is it just that Boumediene was wrong, and so even implausibly narrow readings of it are justifiable?

Posted by: Steve Vladeck | Oct 23, 2010 11:44:50 PM

I think we have an alarming tendency to under-read Eisentrager. The decision did not talk about "non-citizens detained outside the United States." It talked about "enemy aliens" detained outside the US. Nobody disagreed that the Eisentrager petitioners were all German nationals, and that at the time the US had just ended a war with Germany and was still occupying the country. In wartime and occupation, a country has special detention rights over the citizens of a country with which it is or was at war, and Eisentrager notes that the military detention in Germany of German citizens during or immediately after WWII is self-evidently an exercise of legal power not subject to habeas or other legal challenge in US courts.

While everyone agrees that the current Gitmo detainees are non-citizens held outside the US, the question of whether they are enemy aliens or just aliens is directly dependent on the questions raised by the habeas petitions. Since most of the detainees are citizens of Yemen or other countries with which the US is not at war, they are only enemy aliens if they are enemy combatants, which is specifically the classification challenged in the petitions.

Thus even the dicta in Eisentrager does not apply to the current cases, because an essential element of the Eisentrager analysis was that the petitioners were indisputably enemy aliens and in the current cases their "enemy" classification is directly challenged. However, once a DC Circuit District Court determines that a detainee is an enemy combatant, Eisentrager may preclude any further challenge on any other legal issues.

Posted by: Howard Gilbert | Oct 23, 2010 9:56:00 PM

In his speech, Judge Randolph says that a Supreme Court decision "commands compliance but not agreement". He then proceeds to disagree with the arguments that led to the Boumediene decision. However, the core finding of Boumediene, that Congress cannot legislatively remove jurisdiction for common law habeas from the courts without actually exercising its power under the Suspension Clause, is not challenged in his subsequent cases.

When you first mention the only post-Boumediene case, Kiyemba I, you correctly state that it was vacated (and remanded for further consideration in consequence of subsequent decisions). Then two subsequent times you incorrectly state that that decision by Randolph was "reversed". In fact, we are still waiting for the Court to make any post-Boumediene decisions.

Given that the Court explicitly declined to decide any procedural issues, but left them all to the lower courts, every subsequent decision by Randolph or any other court in the DC Circuit is in compliance with Boumediene until the Supreme Court rules otherwise.

If you believe that the Supreme Court really "did articulate a new framework within which to evaluate that [due process] question," I certainly cannot see the framework, and if it really is there somewhere it is something that is even less meaningful than dicta. Anyone can take a Supreme Court decision and project onto it their own view of what it means in spirit, but the lower courts are only bound by what the Court explicitly decides as to the law. Boumediene explicitly doesn't decide any of the issues currently in play and criticized in the Randolph speech.

Boumediene might be better read in combination with the Munaf and Omar cases decided by the Court on the same day. In those cases the Court found that there was statutory jurisdiction to hear the Habeas petition, but that the petition should have been immediately rejected because the case did not meet a threshold question (the court had no power to grant remedy). Thus its decision in Boumediene that the courts also had jurisdiction to entertain common law habeas, without reaching any further decisions on threshold issues, detainee rights, or proper procedures, may yet prove to be as meaningless as the Munaf jurisdiction. We won't know until the questions are settled authoritatively.

As to anon, Randolph did not compare Mein Kampf to the Koran, but quoted Winston Churchill who, in his book The Gathering Storm, referred to Mein Kampf saying "Here was the new Koran of faith and war: turgid, verbose, shapeless, but pregnant with its message." Now if you are a typical politically correct fascist you may imagine that this phrase is Islamophobic, until someone not as narrow minded points out that if you Google for the phrase "the bible of terrorism" you get 2,040,000 hits. Nobody would regard that metaphor as Christianophobic. We use the term "the bible of ...." all the time, but if you are Winston Churchill and are looking for a religious scripture that really triggered an immediate world war just like Mein Kampf triggered WWII, you would be hard pressed to argue that Koran was not a historically accurate choice. Of course Islam believes that it triggered a war of conquest on behalf of God, but the point remains that it was a message of "faith and war", and more importantly that the quote and wording belongs to Churchill, not Judge Randolph.

Posted by: Howard Gilbert | Oct 23, 2010 9:11:31 PM

I was at the speech and was disappointed Judge Randolph didn't entertain questions. If he had, I'd have asked him a couple, such as:

1. When does an appellate judge's overt hostility to a Supreme Court precendent (particularly one reversing his own opinion) reach a point at which its reasonable to conclude that he's lost all semblence of objectivity and should be recused from further GTMO cases?

2. Was it appropriate for a sitting Circuit judge to compare the Koran to Mein Kampf, as Randolph did in his speech, and again, when does that reach the point that recusal is appropriate, at least on an appearance standard?

3. Isn't Randolph's critique of Boumediene more than a little question begging? His primary argument is that the Supreme Court was wrong on historical grounds, as if the only question was an empirical one. But this arguably sneeks a normative assumption into the argument, namely that the orignal intention (or meaning, or whatever) controls. But since originalism has never been the sole criterion of constitutional interpretation in practice, doesn't that take a lot of the steam out of hsi critique.

Posted by: anon | Oct 22, 2010 9:03:29 PM

I should add that the other central theme of Judge Randolph's speech is that the Court in Boumediene misread Founding-era history. For more on why I think the Court did okay by that history, albeit missing some of the implications, see here.

Posted by: Steve Vladeck | Oct 21, 2010 4:18:25 PM

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