Judge A. Raymond Randolph, in his speech the other day at the Heritage Foundation, addressed two intertwined but ultimately distinct issues: Whether the Supreme Court's Boumediene decision is historically and jurisprudentially sound, and the "mess" it has created in the lower courts. Judge Randolph devoted the body of his speech to the first question, giving an extended and fierce critique of the majority opinion--which, you'll recall, reversed a D.C. Circuit opinion he had written. I am not going to dwell on this point, though I think Judge Randolph's argument well worth the reader's attention. I have never studied carefully the scope of habeas at common law, and while I strongly suspect that Judge Randolph is correct, I also understand that the point is disputed, and I don't have a great deal to add to the discussion.
Judge Randolph's second argument, by contrast, is one that is close to my heart--and mind. Indeed, he made it with specific reference to Bobby and my work. At the outset of his speech, Judge Randolph declared:
The Boumediene ruling was unprecedented, not just in this country in modern times, but throughout the ancient history of habeas corpus jurisprudence. Boumediene ripped up centuries of settled law, and it left in its wake the title of my talk tonight: a legal mess. Ben Wittes and Robert Chesney, in a recent comprehensive study for the Brookings Institut[ion], wrote that “it is hard to overstate the importance of the lower court cases that are following in the wake of Boumediene.” And indeed it is. Since Boumediene, those . . . decisions have attracted very little attention, but the Guantanamo habeas cases march on—hundreds of them in our court and in the distrct court in Washington D.C. Law is being made. Precedents are being set. Judicial standards are being declared. Soldiers capturing combatants in the field may have to comply with judicially set evidentiary requirements. The questioning of prisoners may have to adhere to some sort of judicial norm. Exclusionary rules may be enforced. Evidence may have to be handled and preserved in a certain way approved by the court. The short of it is that in the peace and quiet of the federal courthouse not very far from here, federal judges are making law. And the law they are making is one that potentially affect the actions of our soldiers in the battlefields of the world, now and in the future. And all of this is being done in the name of the Constitution.
As Wittes and Chesney say, these habeas corpus cases are “the vehicle for an unprecedented wartime lawmaking exercise with broad implications for the future. The law established in these cases will in all likelihood govern not merely the Guantanamo detentions but any other detentions around the world over which American court acquire habeas jurisdiction. What’s more,” they continue, “to the extent that these cases establish substantive and procedural rules governing the application” of law, “they could end up impacting detentions far beyond those immediately supervised by the federal courts.”
Later, following his critique of Boumediene on historical grounds, Judge Randolph returned to this theme:
The open-ended nature of the second part of Boumediene is what led Wittes and Chesney to describe the court’s action as “a massive grant of legislative power” to our court and to the district court—an odd but accurate way of describing the judicial function that has been left to us as a result of Boumediene. The Boumediene court did say that habeas corpus proceedings should be meaningful. The statement comes out the blue in the opinion. It has no context. Meaningful as compared to what? Habeas corpus in 1789? Habeas corpus under modern statutes? Habeas for illegal aliens facing deportation? For convicted criminals? For criminal defendants awaiting trial? All of those have different standards, and the court doesn’t tell us which [to use].
Judge Randolph then proceeded to offer several examples of areas where the courts' standards are unclear. They are areas that will come as no surprise to readers of Lawfare or Bobby and my work at Brookings. What is the burden of proof, he asked--summarizing the discussion of the issue he wrote in Al Adahi? What sort of discovery obligations does the government have? What sort of evidence can it use? How should the courts treat claims of torture given that Al Qaeda instructs its recruits to lie and claim torture whether or not it has happened--and how long does the taint of coercion last if coercion is demonstrated? Is habeas really limited to Guantanamo or will it ultimately extend to Bagram and elsewhere? And who bears the burden of proving that a detainee quit the enemy, when there is no dispute that he joined? All of these questions have been left to the lower courts to figure out.
"What I've described," he concluded, "is unfortunately just a glimpse of the Guantanamo mess, and I barely scratched the surface. Where all this will lead and what effects it will have on future military conflicts is anyone's guess."
When Bobby and I and Rabea Benhalim earlier this year made the argument Judge Randolph quoted and examined some of the same issue areas within the habeas cases that he discussed in his talk, we were criticized for it--sometimes rather severely. We were overstating, our critics insisted, the turmoil in the courts over these questions. We were falsely describing the routine and traditional habeas function as "legislative." We were describing disagreement where judges were moving towards consensus.
It is therefore gratifying to see these arguments coming from the judges themselves. Many on the left will tend to dismiss Judge Randolph's argument on grounds that he is not merely a conservative and an open foe of habeas in this context--his speech is nothing but candid on that point--but that he has an axe to grind, being the author of more than one key Guantanamo opinion reversed by the Supreme Court. Indeed, Judge Randolph is something of a villain to the habeas bar.
But I think the instinct to dismiss his argument is a mistake. He is, after all, only the latest of long string of judges to speak publicly on the impossible situation they have been put in by a decision that gave them responsibility for cases freighted with competing national security and liberty interests yet gave them no guidance by any known principle. Several district court judges have spoken publicly about it. A panel of Judge Randolph's colleagues wrote openly about the need for congressional intervention. There is, to put it bluntly, a great deal of discomfort in the judiciary with the role the judges are playing--and that other actors are refusing to play. And that discomfort is not partisan or ideological but institutional.
Judges know when they are making law. While I am constrained in what I can report about what judges say on the subject in private conversations, I will describe what I have never heard in any of my conversations with judges who hear Guantanamo habeas cases: No judge has ever expressed a word of doubt that the courts are making up the rules as they go here. While that may be disputed on the outside, on the inside, it is so obvious that it requires no discussion.