Why We Detain the Innocent
Last September, I wrote about the singular case of seventeen ethnic Uighurs detained at Guantánamo Bay, notwithstanding the fact they posed no threat to the US. Last week, a federal court of appeals in DC said those men can be detained indefinitely without hope of judicial remedy.
That striking ruling has the practical effect of negating two Supreme Court opinions and rendering years of habeas corpus litigation an empty gesture. It also compounds the logistical problems of closing the prison, compromises US diplomatic efforts and reverses decades of positive development in constitutional law.
The Supreme Court should speedily reverse the DC court's ruling--if the Obama administration fails to do the right thing by releasing the Uighurs into the United States.
Even for a federal court system inured to the practice of executing criminal defendants if they file their claims late or in the wrong forum, Wednesday's opinion, Kiyemba v. Obama, is remarkable. To understand why requires some understanding of what precisely it said.
The Kiyemba plaintiffs' basic argument was simple: Seven years' illegal detention is enough. The Supreme Court has held twice, in 2004 and then in 2008, that the Guantánamo detainees can seek relief in the form of habeas corpus, the one judicial remedy embedded in the Constitution beyond the tinkering of transient majorities. Habeas without release is meaningless. And because the Uighurs would be tortured if sent back to their native China--a fact the government never contested--their only remedial avenue lay in the United States.
In a ruling by Senior Circuit Judge Raymond Randolph, the appeals court flicked those arguments away in two strikes. First, contending that the power to exclude aliens was "inherent in sovereignty," it said it could not interfere with the detentions. Second, and without any analysis, it said that neither the Due Process Clause nor any other law entitled the petitioners to judicial relief.
Rejecting "high-minded" appeals to the situation's manifest injustice, Judge Randolph washed his hands of the matter and left it to the diplomats struggling to find a country that will take the Uighurs.
The appeals court relied on a post–World War II case in which the Supreme Court had found prolonged detention of possible migrants at Ellis Island to be authorized by statute. It, however, wrongly transmuted these limited rulings about federal statutes into a far more sweeping conclusion of absolute constitutional power unchecked by judicial oversight.
By reaching back to these cases, the appeals court resurrected a long-interred idea of "plenary power," i.e., that Congress has untrammeled power in dealing with migrants at the border. As constitutional scholar Louis Henkin has written, this view is "a constitutional fossil, a remnant of a prerights jurisprudence that we have proudly rejected in other respects." This "plenary power" idea is hazardous not just for the Guantánamo detainees, but is poison for the treatment of immigrants at the border more generally.
Worse, the opinion simply blinks the Supreme Court's most recent pronouncements on Guantánamo. In 2008 alone, the Court held that the Constitution's guarantee of habeas corpus applies to the Cuban base. The Supreme Court further reversed a judgment from the same DC circuit holding that the Due Process Clause did not apply at Guantánamo.
Judge Randolph's sole response to these rulings was one line at the end of his opinion, to the effect that the Supreme Court's 2008 ruling had only been about the right to file a habeas petition.
But this is barely plausible. Language in the Supreme Court's 2008 opinion clearly suggests that the Constitution guarantees not just a remedial avenue so detainees' lawyers can practice their jurisdictional arguments, but also an effective avenue.
Moreover, as Justice Antonin Scalia has explained, the habeas guarantee is inexorably intertwined--indeed, is an implementation of--the Constitution's commitment to due process.
The appeals court's sweeping constitutional conclusions, in short, find no support in the most reliable recent precedent from the Supreme Court.
To the contrary, Judge Randolph's opinion suggests that the Supreme Court for four years has been engaged in a diverting farce in hearing cases from Guantánamo. No relief was ever possible. Those Justices, the appeals court now tells us, were just kidding around.
The harm here is not only to the law's fabric. The opinion has practical ramifications for US foreign policy. The government has been trying to resettle the Uighurs since 2004 without avail. This opinion signals that the US will not (and, in Judge Randolph's view, perhaps cannot) take even a minimal measure of responsibility for the mess it has created. It is grist for those who call the US hypocritical when it calls on other countries to accept former Guantánamo detainees.
The ruling thus confounds ongoing diplomatic efforts, even as it confirms the growing impression that the US has not really changed course from the Bush years' mistakes. In a timing of increasing global eclipse of US moral authority, this is a serious blow.
Perhaps the most attractive defense of Judge Randolph's opinion finds its footing in democratic legitimacy. President Obama's order indicating directing the Cuban base's closure created a mini-wave of NIMBY bills in Congress, all designed to fend off any Guantánamo detainees' being transferred to military prisons in the US. By emphasizing Congress's prerogatives, perhaps the appeals court was simply reconstructing what Congress would do if it attended to the facts of this case.
But even this superficially plausible justification for the judgment fails: This is not a case about what Congress wants; it is a case about what the Constitution requires by guaranteeing habeas corpus.
Moreover, in other ways Judge Randolph showed eagerness to cut short democratic debate.
In his first footnote, he purported to define the meaning of the term "enemy combatant," the still hotly contested legal basis for Bush-era detentions. His definition is not only flawed; it also remains subject to considerable political debate.
As bad, in another, entirely superfluous footnote Judge Randolph opined that the administration might not be able to let the Uighurs into the States, even if it wanted to. This issue had not been raised, even by the government. Rather, it was naked speculation, unmoored from legal analysis, that only invites fresh doubt and delay.
Deference to the political branches, in short, cannot justify Judge Randolph's opinion. Rather, it obscures the fact that the court here is engaged in a value judgment.
At a minimum, the constitutional law is unclear. A judge at least has to render his or her best judgment about various constitutional provisions and precedent--and justify the prolonged detention of innocent men being endorsed. Rather than face up to that, rather than acknowledge his own inevitable choice in the matter, Judge Randolph hides behind a scrim of "it's not my job."
There is another reason Judge Randolph's humility is unpersuasive. This is not the first time that Randolph has ruled that Guantánamo detainees are beyond the (legal) pale. It is the fifth.
He did so first in 2003--only to be reversed by the Supreme Court. He did so again in 2005, this time on military commissions--and was reversed again. Then in 2007, Judge Randolph had a third go--holding that the Constitution's habeas guarantee did not apply to Guantánamo--and was reversed a third time. Finally, in 2008, he joined an opinion by Judge Karen LeCraft Henderson (who joined him here in Kiyemba), holding that the Due Process Clause did not apply to Guantánamo; this ruling was vacated in December for reconsideration.
Judge Randolph's trail of error is more than evidence of mere inconsistency. It suggests an idée fixe about Guantánamo that trumps what the Supreme Court says, let alone what facts and the Constitution require.
One must hope that this remarkable disregard of the Supreme Court's authority spurs the Justices to act. The Court is, in my view, regrettably insensitive to the human suffering of individual litigants, too swept up perhaps in the grandeur of its own key place in the constitutional scheme. But this is the unusual case in which imperatives of humanity and the current of judicial jealousy converge.
I can only hope these streams do mingle and end up in release for the long-abused Uighurs who remain caged at Guantánamo Bay.