A retired federal judge — one of about a dozen given the initial assignment to carry out the Supreme Court’s detainee rights decision in Boumediene v. Bush – on Tuesday criticized the Court for doing nothing to protect that decision from being “gutted” by the D.C. Circuit Court.  Former District Judge James Robertson, who began full retirement two years ago, spoke at a symposium in Washington on “the legacy” of the Boumediene decision, which had its fourth anniversary last month.

That decision, the ex-jurist said, “called for ‘meaningful review’” of the U.S. military’s reasons for holding prisoners at Guantanamo Bay in Cuba.  But, he contended, the Circuit Court “has taken the capital ‘M’ off of the word ‘meaningful’ and has taken the ‘full’ off the word, and deprived it of meaning.  To me, that means it’s gutted.”  And that, he contended, has come about because the Supreme Court has not been willing to examine the situation that leaves the Guantanamo detainees in legal limbo, perhaps for the rest of their lives.

As a result of D.C. Circuit rulings since Boumediene was decided, Robertson said, captives are “stuck in Guantanamo” under a legal regime that gives their captors every advantage, so that “if the government wants to keep them there, they will be there.   The Supreme Court should be looking into it, but this Supreme Court is not doing it.”   The problem, he said, lies with the apparent inability of the more liberal Justices to get Justice Anthony M. Kennedy — the Court’s swing voter — to agree to oversee what the Circuit Court has done.   The Circuit Court, he added, “has been hostile if not defiant” toward the Court’s Boumediene ruling (written by Justice Kennedy), but “the Supreme Court seems to have washed its hands of this.”

In the 2008 decision, the Court by a 5-4 vote gave detainees at Guantanamo Bay — for the first time — a constitutional right to go into federal District Courts in Washington to seek their release through habeas petitions.  The Court, however, left it to Judge Robertson and his colleagues in Washington to figure out how to implement that ruling.   In doing so, the District judges wound up ruling for the detainees in the overwhelming majority of cases, only to be reversed repeatedly by the Circuit Court.  As a result, no Guantanamo prisoner has ever won outright release as a direct consequence of a District Court’s habeas order, although the federal government has allowed scores of them to depart to places of its choosing and on its own timetable.

Judge Robertson, though, seemed somewhat optimistic about the long-term prospects for the Guantanamo captives.  He noted that there is no time limit on lawyers for detainees repeatedly seeking to file habeas challenges, as circumstances change — at least with the passage of time.  “Some court, some day,” he predicted, “is going to find that the government can’t hold these people for the rest of their lives.”

American University law professor Stephen I. Vladeck, a member of the same panel Tuesday, said the Supreme Court’s unwillingness to decide any detainee cases since Boumediene has been due to the fact that the Justices “in the middle of the Court” have not known whether Justice Kennedy would be “on their side.”   Asked why Kennedy seemed to have lost interest in monitoring how Boumediene played out in the Circuit Court, Vladeck said “the best answer” is that Kennedy had acted in that ruling only to assure that the federal courts had a role in the detention process, but “was less concerned” with what that role would look like in practice.   The issue that has arisen in Boumediene‘s aftermath, he added, “is about the use of judicial power, and not about whether the courts have power” at all.  Boumediene, he said, dealt only with the latter.

When historians look back on the past ten years, some 50 to 75 years from now, the professor said, they will find the role of the courts to have been “remarkable” in their willingness to assert power over government operations “in wartime.”   But, he added, the perception will also be that, so far as detention policy is concerned, “judicial review has served to legitimize Guantanamo and detention policy.  That has not been so good for the detainees.”

The third member of the panel, Washington lawyer Brian E. Foster, one of the scores of volunteer lawyers who represent Guantanamo prisoners, noted that the Supreme Court had said in 2004 — in its first detainee ruling during the “war on terrorism” — that the government did have the power to detain individuals engaged for “the duration” of armed hostilities, but had added that the assumption that it could do so might begin to “unravel” with the passage of time.  “It has been 11 years since that war started,” Foster added, “and that assumption would seem to have unraveled.”

The lawyer criticized the Obama Administration for having agreed to release from Guantanamo one individual who actually had been convicted of a war crime, and preparing soon to release another, but yet continuing to detain scores of individuals who have never been charged with any crime.  “It is a very upside-down situation,” Foster commented.

Posted in Cases in the Pipeline, Detainee Litigation

Recommended Citation: Lyle Denniston, Ex-judge: Boumediene is being “gutted”, SCOTUSblog (Jul. 17, 2012, 3:54 PM), http://www.scotusblog.com/2012/07/ex-judge-boumediene-is-being-gutted/