The Gitmo Cases and a Frustrated Judge's Lament

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Betwixt and between, it's not easy being a federal appeals court judge. You don't get to make law like your superiors on the United States Supreme Court. And you don't get to hold trials like your subordinates on the federal trial bench. You are beholden both to ambiguous legal precedent from above and to the evidentiary record below. And not only do you have to deal with the predilections of your colleagues in your own circuit, you have to deal with the whims and caprices of the hundreds of other jurists in all the other federal circuits around the country as well. Sometimes, it all must get to be too much.

Take Laurence Silberman. Please. A senior judge on the U.S. Court of Appeals for the District of Columbia, the 75-year-old Reagan appointee vented publicly last week about the Supreme Court, the Justice Department, defense lawyers, and critics who think that his pal, United States Supreme Court Justice Clarence Thomas, has serious recusal issues over the Patient Protection and Affordable Care Act. The judge even gave a zetz to one of his high-profile contemporaries -- the 7th U.S. Circuit Court of Appeals' ubiquitous Richard A. Posner. Hey, why not? Life-tenure means never having to say you are sorry.

Perched far to the right, Judge Silberman is frustrated mostly with terror law as it relates to the Gitmo detainees. In his view, the Supreme Court has mistakenly allowed too many detainee challenges into court, the Obama Administration has cynically gone along even while it reserves the right to ignore the results of the appellate reviews, and too many court-appointed defense attorneys have brought too many dubious cases. At least that's what Judge Silberman wrote Friday in a concurring opinion in Esmail v. Obama, a case in which he and his fellow panelists dismissed an appeal from a detainee whose "story" the judge found to be "phonier than a $4 bill."

The judge wrote: 

Of course, if it turns out that regardless of our decisions the executive branch does not release winning petitioners because no other country will accept them and they will not be released into the United States,  then the whole process leads to virtual advisory opinions. It becomes a charade prompted by the Supreme Court's defiant - if only theoretical - assertion of judicial supremacy, sustained by posturing on the part of the Justice Department, and providing litigation exercise for the detainee bar (citations omitted by me).

The dramatic (and a little overstated) complaint is unique to judges of the D.C. Circuit, who (by design) bear the brunt of the detainee review cases. But it is not unique to the Circuit itself. In October, another senior-status judge appointed by a Republican president, 77-year-old D.C. Circuit Court Judge A. Raymond Randolph, also ripped the Supreme Court. Like Judge Silberman, Judge Randolph is ticked off by the Supreme Court's 2008 decision in Boumedienne v. Bush, an opinion which struck down the hapless Military Commissions Act and recognized the rights of detainees to have their cases reviewed by civilian courts (i.e. the D.C. Circuit).

Together, the two crankypants argue that the majority opinion in Boumedienne, a carefully-crafted judicial compromise by swing-voter Justice Anthony Kennedy, promised too much "due process" to the detainees and provided it without also providing enough practical guidance to lower court judges on how to dispense it. And what may have set Judge Silberman off last week in particular was Monday's action by the Supreme Court in which it refused to hear three separate appeals of detainee cases arising out of D.C. Circuit opinions. We can't be bothered to provide you with now with additional guidance, the Supremes effectively told the D.C. Circuit judges, you'll just do the best you can with what we've already given you.

There's nothing wrong with a good judge going rogue every once in a while, and you've got to give Judge Silberman credit, at least, for telling it like it is. Whatever else it has done, the Supreme Court has miserably failed over the past seven years to give the D.C. Circuit, the trial courts, the Congress, the nation, and the rest of the world much usuable instruction on how to "constitutionally" handle the Gitmo detainees. Instead, in each of the "Big Four" terror law decisions handed down by the Justices since the terror attacks of September 11, 2001, the High Court has preached the notion of "judicial restraint" and practiced its convenient prerogative to answer the toughest questions in the negative -- Thou Shalt Not! -- instead of in the affirmative -- Thou Shalt!

Think about it. In 2004, in the first challenge to President George W. Bush's terror law policies, the Court ruled 5-4 that the government could not indefinitely detain Yaser Esam Hamdi, a United States citizen, without giving him an opportunity to challenge his confinement before a neutral arbiter. But Justice Sandra Day O'Connor, in Hamdi v. Rumsfeldrefused under the premise of judicial modesty to tell the Bush Administration specifically what such an "opportunity" would have to look like in a court of law. She told the White House that the war on terror did not give it a "blank check" but then she failed to sign the check, either. Instead, she wrote:

Because we conclude that due process demands some system for a citizen detainee to refute his classification, the proposed "some evidence" standard is inadequate. Any process in which the Executive's factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short.
At the same time, the Court decided Rasul v. Bush, the first of three cases involving the rights of detainees to seek relief in court. Justice Stevens wrote the 6-3 ruling that first opened the courthouse doors for the Gitmo prisoners. Overturning the D.C. Circuit's ruling below, Justice Stevens wrote: "Whether and what further proceedings may become necessary after respondents make their response to the merits of petitioners' claims are matters that we need not address now. What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing."
   
Likewise, in 2006, in Hamdan v. Rumsfeld, the (sharply-divided) Court ruled that the military commission established for a detainee down at Gitmo violated the Geneva Convention and was not authorized by statute. Again overturning the D.C. Circuit, Justice John Paul Stevens wrote: "At a minimum, the Government must make a substantial showing that the crime for which it seeks to try a defendant by military commission is acknowledged to be an offense against the law of war. That burden is far from satisfied here." You folks in the other two branches are doing it all wrong, the Court's majority said in Hamdan, but we aren't going to tell you outright how to do it right.
 
Which brings us to 2008 and the final of the "Big Four" cases, the infamous Boumedienne, which purported to answer the question Justice Stevens had left hanging in Rasul and which again reversed the D.C. Circuit. This time, Justice Kennedy wrote: "... [T]he procedural protections afforded to the detainees in the CSRT (Combatant Status Review Tribunal) hearings are far more limited, and, we conclude, fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review." Of that review itself, the justice wrote:
 
The extent of the showing required of the Government in these cases is a matter to be determined. We need not explore it further at this stage. We do hold that when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner's release (emphasis added by me).
Relax, I'm not arguing that the Court should affirmatively and proactively proclaim what due process rules ought to apply to the detainees. I'm not contending that the Supreme Court should draft the language of statutes. In every facet of its work, the Court acts reflexively, and should, in proclaiming how the affirmative acts of the legislative and executive branches mesh (or do not mesh) with the law. When the justices gutted campaign finance reform in Citizens United, for example, they did not also at the same time propose a statutory scheme that would satisfy the Constitution and also meet the ends that McCain-Feingold was meant to meet.
 
The federal courts are great at telling you your house is on fire. They are not so great at telling you which hose to use to put it out. It has always been so. And that's okay with me. But surely it's not hard to see why Judge Silberman is so grumpy these days. When it comes to detainee rights, the Supreme Court has, indeed, made a "mess" that the judge and his D.C. Circuit colleagues have been forced to try to clean up. Worse, the justices announced last Monday that they don't plan on helping with the cleanup anytime soon. Being a justice means never having to say you are sorry, either.
 
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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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