We Have Seen the Enemy

By Benjamin Wittes
Wednesday, March 2, 2011, 5:17 PM

The meme has been floating about for some time: the D.C. Circuit--and, particularly, the evil Judge A. Raymond Randolph--is subverting habeas, fighting a rear-guard action against the rule of law, and turning Boumediene into an empty shell. Until yesterday's New York Times editorial on Kiyemba, the meme had been mostly the stuff of frustrated chatter in the habeas bar. But the Times has now distilled this version of reality in a very public setting. Normally, when I critique a Times editorial, it is over some misstatement of fact or law. This time, my problem is the big thesis. It is worth separating what true in this meme from what is fiction, what is fair, from what is not.

The Times editorial yesterday, entitled "A Right Without a Remedy," reads in relevant part:

Judge Raymond Randolph of the District of Columbia Circuit wrote the key Kiyemba opinion. The Uighurs’ brief says, “The constant in this case is the court of appeals’ refusal to apply, or even acknowledge,” the Boumediene ruling.

Judge Randolph also wrote the opinion for the District of Columbia Circuit that the Supreme Court overturned in Boumediene. In a speech called “The Guantanamo Mess” last fall, he said that the justices were wrong to do so and all but expressed contempt for the holding. As the basis for the speech’s title, he compared the justices who reached it to characters in “The Great Gatsby.” “They were careless people,” he read. “They smashed things up ... and let other people clean up the mess they had made.”

In Kiyemba and related cases, however, it is Judge Randolph and others on the District of Columbia Circuit who are making the mess. Respected lawyers say they are subverting the Supreme Court and American justice. Of 140 challenging their detentions in the face of this hostility, dozens who should have been freed will likely remain in prison.

The three key features of the meme are all here. Let's unpack them.

First is the allegation that the D.C. Circuit is subverting Boumediene--that it is refusing to apply clear law as articulated by the Justices. The Times editorial takes this point rather far, asserting that there "dozens" of people "who should have been freed" who will not be as a result of the appeals court's refusal to comply with the Supreme Court's edicts. In my view, at least, this argument is almost entirely lacking in merit and contains a fundamental misunderstanding of Boumediene. The Justices in Boumediene surely could have articulated legal standards for detention. Indeed, the Boumediene petitioners asked them to do so. They refused. The majority self-consciously--in an act of uncommon judicial irresponsibility--announced that habeas was available and announced as well that the Supreme Court would not say what the substantive or procedural law of habeas in this context looked like. Rather, the rules of habeas would be made by the district court in the first instance, with the D.C. Circuit as the address for initial appeals. As Judge Lamberth put it yesterday, "The majority opinion of the Supreme Court said we want these cases acted on expeditiously but we’re not going to give the district court any guidance; we’re sure they can figure it out.  Very helpful." That inevitably put big questions on the D.C. Circuit's plate, as district judges split on key issues. These are questions with a wide range of possible answers. And choosing answers along that spectrum that differ from the ones the Times might choose is not a subversion of Boumediene. It is, rather, the danger inherent when an empty vehicle has to be filled with some legal contents. 

Second, every morality tale needs a villain. And if we are inclined to see the Guantanamo story as a morality tale of unlawful detention as checked by the rule of law--which I am not--I suppose Judge Randolph is as good a villain as any. The Times is not wrong that he has written the key opinions the Supreme Court has reversed; as the paper notes, he has been harshly critical of the Supreme Court's habeas jurisprudence; and he has taken positions under Boumediene that make habeas a less robust, rather than a more robust, instrument. But all that said, it seems to me less than fair to blame Judge Randolph--or anyone on the lower courts--for "subverting the Supreme Court and American justice." These judges were handed an impossible task. And everyone knew who Judge Randolph and his colleagues were and what they believed. Nobody can seriously be surprised at there views now. Indeed, people like me were warning people like the New York Times editorial for years that if they resisted letting Congress write detention rules, they would be asking the D.C. Circuit to do it. If folks like the New York Times editorial page didn't want Judge Randolph to write the rules of habeas, why did they so emphatically oppose letting Congress give the guidance the Supreme Court had so demonstratively failed to give? If one insists that the D.C. Circuit should design our detention policy, knowing full well who sits on it, one doesn't then get to complain about the rules they write.

Third, it is wrong to overstate the role that Judge Randolph is playing on the D.C. Circuit. This is a collective project--a very collective project. Yes, there are a few cases that have produced divided opinions. But the remarkable thing about the D.C. Circuit's jurisprudence in the habeas cases in the main is how unified the court has been. These are hard cases that raise dozens of vexing questions. The judges have done a remarkable job in my view creating guidance for the lower courts and not fracturing. Notwithstanding a few flamboyant opinions and a few divisive issues, they have created an institutional body of work that represents the court as a whole. It is wrong to blame this body of work on Judge Randolph or any other of his colleagues as individuals. To the extent one dislikes it, it is a corporate project--and not one of the D.C. Circuit judges is dissenting from the court's developing case law as a body of work.