Legal Commentary

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?