Monday, June 13, 2011
Professor Stephen Vladeck (American University) has posted on SSRN a draft of his article, The D.C. Circuit After Boumediene, which is forthcoming in the Seton Hall Law Review. Here’s the abstract:
Over the past three years, significant attention has been paid to how the D.C. courts would implement the Supreme Court's mandate in Boumediene v. Bushthat the Guantanamo habeas cases go forward in the absence of any statutory authority, especially given the Court’s express delegation to the lower courts of the power to fashion procedural, evidentiary, and even substantive rules to govern the detainees’ claims. The result has been, by any account, a remarkably interesting and complex body of case law. But increasingly in recent months, these cases have also come to inform a heated debate over the relationship between the D.C. Circuit and Boumediene itself.
In particular, a number of scholars, civil liberties groups, and detainee lawyers (not to mention the editorial pages of various major newspapers) have accused the D.C. Circuit in general - and some of its judges in particular - of actively subverting Boumediene by adopting holdings and reaching results that have both the intent and the effect of vitiating the Supreme Court’s 2008 decision. In contrast, defenders of the work of the court of appeals have stressed both the extent to which Boumediene necessarily left these issues open to judicial resolution, and the near-unanimity of the D.C. Circuit in virtually all of the post-Boumediene cases - especially in its decisions on the “merits.” Indeed, even if some of the D.C. Circuit’s judges have been outspoken in their criticisms of the Supreme Court, the fact remains that few of the court’s post-Boumedieneopinions have elicited published dissents, and none have successfully been taken en banc. And with one equivocal exception, the Supreme Court has denied certiorari in every post-Boumediene Guantánamo case it has thus far been asked to hear.
In the following symposium essay, I aim to look more carefully at the parameters of this debate, and the charge that the D.C. Circuit has spent the better part of the past three years subverting Boumediene. The essay contrasts the analysis and holdings of the court of appeals in some of its key decisions with the Supreme Court’s instructions - such as they were - in Boumediene, Hamdi, and, to a lesser degree, Hamdan. As I hope to show (and as may well not seem surprising), the answer to this charge lies somewhere in the middle. Although there are no holdings to which one can point as “proof” that the D.C. Circuit has refused to take the Supreme Court seriously, the court’s analysis as to evidentiary issues and the burden of proof, in particular, reveals some judges who read the Supreme Court’s work in this field for as little as it’s worth - if not less. And in public speeches and concurrences, senior D.C. Circuit Judges A. Raymond Randolph and Laurence Silberman have gone even further, belittling the Supreme Court for what Randolph referred to as the “mess” they made, and what Silberman described as a “charade,” prompted by the Court’s “defiant - if only theoretical - assertion of judicial supremacy” in Boumediene.
At the same time, some of the court’s holdings in its more controversial decisions, especially those involving the transfer or release of the Uighurs, can be criticized, if at all, as failures of imagination or misreadings of Supreme Court precedent (as controlling issues that may still be open). Whatever one’s view of the merits of these outcomes, it seems unfair to claim that, in these contexts, the D.C. Circuit is subverting Supreme Court rules that simply don’t exist.
Ultimately, my thesis is that while it smacks of hyperbole to refer to the D.C. Circuit as being engaged in a collective effort to subvert Boumediene, it is equally unconvincing to assert that the entire court of appeals has faithfully administered the Supreme Court’s commands in these cases. Instead, the most troubling aspects of the D.C. Circuit's post-Boumediene jurisprudence can all be traced to some combination of four jurists. Whether the rest of the D.C. Circuit is reaching the correct results in other cases is beyond the ambit of this essay; for present purposes, this essay’s central conclusion is that, in their opinions and their rhetoric, these four judges are effectively fighting a rear-guard action while their colleagues coalesce around substantive and procedural rules that are materially consistent with what little guidance the Supreme Court has provided in these cases - and, as importantly, that have the general endorsement of virtually all of the district judges and the executive branch.