The Quiet Death of Habeas Corpus

Pow Wow left a comment, in response to me and Candace Gorman, on Marcy’s Gitmo Lawyers Information Gulag post that warrants highlighting and further comment. For convenience, here it is in full:

This is what bmaz and hcgorman @ 12 are referencing:

Two Guantanamo detainees, Fahmi Al-Assani and Suleiman Al-Nahdi, have moved the D.C. Circuit to dismiss their habeas appeals (Al-Assani’s motion is here, Al-Nahdi’s is here). Both men lost their district court habeas cases in decisions by Judge Gladys Kessler; the Al Assani decision is here, the Al-Nahdi decision is here. Both men appealed, and today, both men have given up their appeals as lost causes.

Their lawyer, Richard Murphy, explained in an email,

Judge Kessler denied our clients’ habeas petitions and we appealed to the D.C. Circuit, but then stayed the appeals pending the outcome of several [other Guantanamo habeas] cases in which [Supreme Court] cert petitions had been filed. Once cert [review] was denied [by the Supreme Court] in all of the relevant cases coming out of the D.C. Circuit it became clear that the appeals were futile. Under the detention standard that has been developed by the D.C. Circuit (which the Supreme Court has refused to review), it is clear that the courts provide no hope for the men remaining at Guantanamo.

This development strikes me as a big deal–albeit a quiet one that won’t get a lot of press attention. […] – Benjamin Wittes, June 2, 2011

That grim assessment of the current posture of Guantanamo habeas petitions, which, for years, have been pending before federal judges serving in the Judicial Branch of the United States Government, was further illuminated and reinforced by this June 8, 2011 Benjamin Wittes post:

Habeas lawyer David Remes sent in the following comments on recent developments in D.C. Circuit case law. He emphasizes that he has been counsel in several of the cases discussed below and that the following represents his own opinion only:

I agree with my colleague Richard Murphy (here) that for Guantánamo detainees, seeking habeas relief has proven to be an exercise in futility. The D.C. Circuit appears to be dead-set against letting them prevail. It has not affirmed a grant in any habeas case, and it has remanded any denial that it did not affirm.

Moreover, the Supreme Court, having declared in Boumediene that detainees have a constitutional right to seek habeas relief, appears to have washed its hands of the matter. It denied review in every case brought to it by detainees this Term, including one, Kiyemba III, which eliminated the habeas remedy itself.

The D.C. Circuit has decided twelve habeas appeals on the merits. In four, the detainee prevailed in the district court; in eight, the government prevailed. The D.C. Circuit erased all four detainee wins. It reversed two outright (Adahi, Uthman) and remanded the other two (Salahi, Hatim). By contrast, the court affirmed six of the eight government wins (al-Bihani, Awad, Barhoumi, al Odah, Esmail, Madhwani), remanding the other two (Bensayah, Warafi).

In two critical non-merits cases, the D.C. Circuit held in Kiyemba I and III that the district court cannot compel the government to release a detainee found to be unlawfully held; and in Kiyemba II, the court effectively barred the district court from enjoining the release of a detainee to a country where he fears he will be tortured. Because the Supreme Court denied review in both cases, only Congress can overrule them. Unless Congress removes from the Executive the discretion to decide whether to release a prevailing detainee, I don’t see what practical difference legislation making substantive or procedural improvements in Guantánamo habeas litigation can make.

* * *

The D.C. Circuit’s methodology is even more revealing. When a detainee prevails in district court, the D.C. Circuit fashions, if necessary, a rule that rationalizes reversal or remand. When a detainee loses in district court, the D.C. Circuit sometimes uses the appeal as an occasion to tilt the law even further against detainees.

For example, in al-Bihani (who lost in district court), Judge Brown appeared to accept the government’s contention that any guesthouse where an alleged al Qaeda member stayed is an “al Qaeda guesthouse,” and that any detainee who stayed at an “al-Qaeda guesthouse” is, ipso facto, a member or supporter of al-Qaeda. She implicitly excluded the possibility that a guesthouse can be used by al-Qaeda members and still be a public guesthouse.

In al-Adahi (who won in district court), Judge Randolph created the “conditional probability” test. Under this test, as Lyle Denniston distilled it (here), “each assertion is to be considered, not for what it says by itself, but how it might make the next assertion seem more solid, and so on, so that the overall weight adds up to enough to support detention.” Citing Judge Silberman’s concurrence in Esmail, Steve Vladeck has suggested (here) that the test, in effect, reduces the “preponderance” standard to a “some evidence” standard.

Or consider Uthman (who won in district court). In earlier cases, including al-Adahi, the D.C. Circuit criticized district court judges for taking an “unduly atomized” approach to the evidence when ruling for detainees, and instructed them to consider “all of the evidence” as a whole. Judge Kennedy did precisely that in granting Uthman’s petition. On appeal, however, Judge Kavanaugh cherry-picked the government’s evidence and tossed aside Uthman’s, reversing the district court and finding Uthman lawfully held.

In Mahdwani (who lost in district court), Judge Henderson treated as “strong evidence” of culpability the fact that a detainee gave an exculpatory account of events that the district court does not credit. This conclusion isn’t logical or fair. There could be any number of reasons a detainee offered an exculpability account. Ironically, a detainee who says nothing is better off than a detainee who offers an account of the facts that the district court doesn’t credit.


Two factors appear to animate the D.C. Circuit’s apparent determination to rule against detainees. The first, exemplified by Judges Randolph and Silberman, is unabashed hostility to Boumediene. They have made quite clear that that they think Boumediene was wrongly decided, and Judge Randolph, in particular, takes every opportunity to undermine it. […]

– David Remes, 6/8/11

[Subsequent to this summary by Remes, the D.C. Circuit (i.e, a three-member appellate panel of Silberman, Kavanaugh and Rogers) handed down, on June 10th, its thirteenth Guantanamo habeas merits decision, in Almerfedireversing, of course, a writ of habeas corpus that had been grantedi.e., that had nominally ordered the release of the prisoner Almerfedi, because he had been unlawfully detained without proof that he was an armed conflict “enemy combatant” – by a district court trial judge. -pow wow]

What was that fancy rhetoric, again, that Supreme Court Justice Stephen Breyer was recently heard delivering outside the Court? Oh, right – from the emptywheel-linked Morris Davis commentary “Torture: Finding Our Moral Compass”:

Justice Stephen Breyer spoke on the theme of justice and accountability at the 2011 Day of Remembrance at the U.S. Holocaust Memorial Museum. He said, “we need only look around today’s world to understand that rights, rules, the obligations that the law sets forth; all of them are no more powerful than the human will to enforce them.

How can you “call the balls and strikes,” Chief Justice Roberts & Company, when you refuse to work the game?

[David Remes, as emptywheel highlights and Charlie Savage indicates in the linked article, is the detainee lawyer (as opposed to “defense” lawyer, in this habeas corpus case) who forced the government’s hand, to the extent described by Candace @ 5, on the verboten WikiLeaked Guantanamo documents. Despite, to date, no help – as I noted (with a lot of other detail) in emptywheel’s April thread – from Judge Paul Friedman, who, since April, has uncomplainingly granted government requests for three consecutive extensions of time for the filing of its response (originally ordered due on May 11, in the “ordinary course” of the rules, but not submitted until yesterday, June 10) to the “emergency” motion that Remes had filed with Judge Friedman on behalf of his Guantanamo habeas client on April 27.]

Yes. Quite unfortunately, that is exactly right. First, let me say thanks to Pow Wow who here, as is so often the case, has taken the time to not just share superb knowledge and understanding, but made the effort to cite and explain exactly what is going on in detail. This is especially cool after I have basically done a sardonic hit and run comment as I had in Marcy’s post.

To add on to Pow Wow’s explication a bit, let me add a couple of things. First off, the two substantive quotes from Ben Wittes are spot on. This, in and of itself, is notable in that Ben is, by no stretch of the imagination, any dirty fucking hippy liberal as the proprietor of this blog and I somewhat proudly admit to mostly being. Ben is pretty conservative and is a key member of the Brookings Institute. His blog partner at Lawfare is Jack Goldsmith. In short, he certainly is no weak kneed French torture apologist as they say. So when Wittes is saying those things in complete agreement with me, Pow Wow, Marcy and the general skurvy radicals known to frequent this establishment, well, it is pretty telling. And damning.

Secondly, Al-Assani and Al-Nahdi did not lose after exhausting all levels of putative remedy, they just quit because the effort at justice was useless and a waste of what human energy and force they had left. Their resistance was futile and not only they but, very notably, their attorneys, knew it. Even Martin Luther King had at least the dream that justice would overcome; detainees Al-Assani and Al-Nahdi did not even reasonably have that. As Habeas Corpus is pretty much not just the “Great Writ”, but indeed the linch pin and foundation on which every ounce and fiber of Anglo in general, and American in specific, rule of law is founded, this is simply a mind numbing and stunning thing.

Seriously. If human beings have no viable Habeas Corpus remedy in a country, then that country exists in an immoral void outside of any known understanding of the concept of “the rule of law”.

Third, I would like to highlight just exactly who has decreed this fundamental gutting of everything the United States of America is supposed to stand for, and was founded upon. It was not, as Pow Wow appropriately notes, the august robes of final judgment at the Supreme Court. No, the Supremes have indeed, like Pilates of modern justice, washed their hands of the critical murder. Notably, not even Anthony Kennedy, who authored Boumediene, voted in favor of accepting certiorari and defending his seminal, and critical, decision. But the Kiyemba III abdication was simply the crowning coup de grace. Instead, despite the early work on detainee litigation, and notably Habeas claims, which culminated in the groundbreaking, and somewhat refreshing, Boumediene decision penned by Tony Kennedy, the Supremes have abdicated their throne and left the law to the uniquely questionable discretion of the DC Circuit.

Did I mention just exactly who the judges at the DC Circuit, that have made the current sad and tragic law, is notable?? Look no further than Pow Wow’s comment. We have the smooth stylings of none other than Janice Rogers Brown, Lawrence Silberman and a chap who was actually an active part of the Bush/Cheney torture brigade prior to being elevated to the court, Brett Kavanagh. It would be impossible, even in the wildest Salvador Dali dream, to conjure up three judges more unsuitable for the task of deciding the viability, indeed existence, of Habeas Corpus in these circumstances.

And, make no mistake, what happens in the supposedly distinct and discreet realm of “detainee law” can, and absolutely will, eventually bleed into standard criminal law as we know it. Regular citizens do not want to believe that, and will poo poo the thought; lawyers that ply the halls of high grade criminal law not only think it, they know it for a fact in their bones. The Fourth Amendment, Due Process and Fundamental Fairness only travel in one direction, and it is not the enlightened, proper and just direction.

When our children ask in the future how the Great Writ of Habeas Corpus, the foundation of law, died, this is the time and this is the answer.

    • bmaz says:

      I was referring (as was Pow Wow) to Al-Bihani, on which Janice Rogers Brown wrote the majority opinion (and, curiously, joined in a concurring as well).

      • emptywheel says:

        Also, SCOTUS COULD eventually take another case and redo Boumediene w/an “I mean it.” But Kagan would have to recuse, leaving a split vote, even assuming Kennedy stayed w/rule of law.

        • bmaz says:

          Well, yeah, but Kiyemba III was pretty much as clean and critical a setup on a silver plate as you can hope for. And even Tony Kennedy stuck his head in the sand and hid.

          • emptywheel says:

            Was it? Or did it include the gimmick of freedom being treated as “whatever freedom Barack Obama deems to give you on a disappearing island somewhere”?

            • bmaz says:

              Heh, well I ain’t accepting that as legitimate framing. The prerogative of a cranky asshole and all you know….

  1. Mary says:

    Obama managed to kill something Bush had not – Hope.

    And there’s nothing more inane than Randolph’s “conditional probability” Numerology doctrine.

    Given where Obama has already driven us, the tired out Dem last minute strategy of pounding on holding your nose for Obama next election because of the lifetime appointments is pretty empty. Obama has stacked the Sup Ct with a pro-torture, pro-Exec powers appointment who couldn’t stand up to Scalia if all he was doing was blowing out the lights on a 2 yos cake and hasn’t made any effort to get decent nominees into place while he could, then has directed his DOJ to go out and make as much anti-constitutional case law as they can in that setting.

    Not a good man.

    Boumediene did always set the stage for the Marshall has made his decision, now let him enforce it treatment – so maybe the District Court judges have tired of having Obama routinely flout their rulings, even while DOJ lawyers lie their assess off in almost every setting, from GITMO filings to FOIA responses to arguments before the Sup Ct to Congressional representations – all with no check of any kind.

    The very least the judges could do would have been to discipline the lies.

    Time to drink.

  2. radiofreewill says:

    From the Habeas Wiki:

    “Habeas corpus (Latin meaning “you may have the body”[1] ) is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations. It has historically been an important legal instrument safeguarding individual freedom against arbitrary state action.”

    Were these prisoners being denied habeas petitions simply because Bush had designated them unlawful enemy combatants? Was that all it took to ‘legalize’ forever detention of persons regardless of their factual circumstances?

    • powwow says:

      Were these prisoners being denied habeas petitions simply because Bush had designated them unlawful enemy combatants? Was that all it took to ‘legalize’ forever detention of persons regardless of their factual circumstances?

      Essentially: yes, and yes.

      To date, no American court has had the guts to directly confront and decide the question of whether, under the authority of the 2001 AUMF, we were and are engaged in an “international” armed conflict (which, at least in the beginning, we almost certainly were, against the de facto Taliban government of Afghanistan), or in a “non-international” armed conflict, or both. The distinction is crucial – unless our government voluntarily adheres to the highest standards of conduct, which we have not done, despite our overwhelming military superiority – in terms of what portions of the Geneva Conventions (the “law of war”) apply to the conflict, and thus to the legal status and rights of captives taken during the conflict. So the detainee designations established by the Bush administration in 2001 and 2002 – all, importantly, justified under color of the law of war, despite the secretly-ordered, unlawful repudiation of the Geneva Conventions by President Bush – remain with us today, filling the vacuum that’s been left by the ongoing failure of those with a responsibility to act, to actually enforce the law.

      • bmaz says:

        And thus a prime reason we no longer ever actually formally declare war – it is, shall we say, inconvenient as to the more dastardly of the US Executive Branch Article II whims. And now, thanks to Mr. Constitutional Scholar Obama, we no longer even bother with such half assed niceties as an AUMF (See: War, Libya).

  3. tjbs says:

    Actions have consequences, this is also a direct result of the 2000 election where the supreme court overtook Congress’ role of sole arbiter of election disputes. We have alito and roberts as a direct result of that action.

    We let the overthrow of the Constitution stand without much of a whisper.
    What has followed and will follow is to be expected.

  4. Morris Davis says:

    There are two things that disappoint me most. First, regardless of anyone’s view of Bush and the motives for the actions of his administration, there is no question that Obama knows better, yet he deliberately chooses to embrace the Bush policies he condemned so strongly in the Senate and as a candidate. That’s not leadership. It’s not pragmatism. It’s just plan cowardice to refuse to stand up for what he knows is right because of the calculation of what it will cost him politically. Looking back (apparently forbidden in the Obama administration), when Obama came into office with Democrat majorities in the House and the Senate he squandered the opportunity to deliver on what he promised. That is a tragedy. Instead of 2008’s “hope and change” maybe the 2012 slogan will be “change? nope.” Second, the vast majority of the general public (and the Congress) could care less what happens to detainees. They bought the “you’re either with us or you’re with the terrorists” argument and the “worst of the worst” characterization, and they have little interest in revisiting those perceptions. I believe that makes it particularly important to keep these issues in their faces so they do not have the option to just forget and ignore what we have done. Maybe someday instead of sending a congressional delegation to Iraq to accuse them of ignoring their legal obligations (in an attack on Iranian exiles) we could examine what we ourselves have done. We should hold ourselves to the standards we expect of others (or at least what we say we expect when doing so is convenient for us … and with Libya it is convenient and with Bahrain it is inconvenient).

    • speakingupnow says:

      Maybe someday instead of sending a congressional delegation to Iraq to accuse them of ignoring their legal obligations (in an attack on Iranian exiles) we could examine what we ourselves have done. We should hold ourselves to the standards we expect of others (or at least what we say we expect when doing so is convenient for us … and with Libya it is convenient and with Bahrain it is inconvenient).

      Isn’t that why we have a bloated military with bases all over the world and troops on the ground…so that we can force people around the world to “do as we say and not as we do”?

    • powwow says:

      [T]here is no question that Obama knows better, yet he deliberately chooses to embrace the Bush policies he condemned so strongly in the Senate and as a candidate. That’s not leadership. It’s not pragmatism. It’s just plain cowardice to refuse to stand up for what he knows is right because of the calculation of what it will cost him politically.

      That’s the way I feel about Justice Stephen Breyer, among others – I know that Breyer knows better, so his failure, for example, to put any meaningful opposition on the record in response to the unbroken string of Supreme Court denials of cert. (only 4 votes are needed for Supreme Court review) on these D.C. Circuit Guantanamo habeas decisions, seems particularly egregious to me.

      Second, the vast majority of the general public (and the Congress) could care less what happens to detainees. They bought the “you’re either with us or you’re with the terrorists” argument and the “worst of the worst” characterization, and they have little interest in revisiting those perceptions. I believe that makes it particularly important to keep these issues in their faces so they do not have the option to just forget and ignore what we have done.

      I agree; and the more responsibility and power a person has, the more they should be forced to account for their failure to take action to resolve the problem.

    • hcgorman says:

      I moved Lamberth to recuse himself after that speech cited by OnionATL and the judge did ultimately recuse himself in my clients case….but not until the DOJ fessed up that one of the DOD attorneys assigned to my clients case had an exparte conversation with the Judge regarding their discovery obligations…
      If I get Silberman in my remaining clients panel I will move to recuse him as well for his statements in his concurring decision which I discussed and cite to on my blog here:
      This is where Silberman admitted that they were using a different standard in deciding the habeas petitions than even what the government said should be the standard….and while habeas counsel had been holding out for a higher standard than “preponderance” the circus court had secretly lowered the standard to the “whatever shit the government can pull together is enough” standard.
      As Moe Davis points out above we have to keep these issues in their faces and even though we know there will never be another winning guantanamo habeas case I will be in their face for the long run.
      By the way check out Moe’s excellent article here:

    • powwow says:

      If you want some insight into the thinking of judges on the d.c. circuit court with respect to guantanamo detainees, read this interview with three of those judges… […] The judges are Lamberth, Walton, and Urbina.

      Note, orion, that those three are actually part of the D.C. District trial court (as opposed to the higher D.C. Circuit appellate court) bench.

      Thus, those are some of the federal judges individually hearing the merits of the Guantanamo habeas corpus petitions at the lower district court level, post-Boumediene – and who, for the most part (Chief Judge Lamberth and Judge Leon perhaps excepted), were doing a pretty good job of it (particularly Reggie Walton, with his thorough April, 2009 Gherebi opinion), until the D.C. Circuit appellate panels started getting involved a year and a half ago.

      In other words, those are three of the judges whose lengthy Guantanamo habeas corpus merits decisions are now being selectively affirmed or reversed by the higher appellate court, as described by David Remes above, depending on what will result in the most disadvantageous outcome for the detainees.

      • bmaz says:

        Lamberth runs a little hot and cold inconsistent sometimes, but on the whole is certainly not among the worst out there. Different area, but Lamberth will forever get a measure of respect from me for the blistering ass kicking he gave the government in the Cobell litigation.

        • powwow says:

          Judge Lamberth also recently stood his ground against the Executive Branch (if only because his colleagues had already cleared the way for him) by striking from the government’s proposed Factual Return, in a Guantanamo habeas case, a significant quantity of interrogation statements made by the detainee at Bagram and Guantanamo, because Lamberth ruled that the statements were still tainted by uncontested earlier coercion (torture) of the detainee while imprisoned elsewhere (including in Jordan for two years).

      • orionATL says:

        thank you, powwow,

        for correcting my ignorance

        as well as for your thoughtful comments.

        i am pleased that some or all of the three i mentioned may have played a more positive role with respect to detainee habeas than the circuit court.

        i am not able, however, to view very positively a federal judge who declares he would be afraid to release a detainee for fear the detainee might be a future bomber.

        shall a man, and there are many such men enslaved in guantanamo, who was not and will never be a terrorist, remain enslaved for the rest of his life because a series of american federal judges were afraid of damaging their reputations? it is the job, the central professional requirement, of a judge that he insure that the law and the facts of a case are not abused and that fair decisions are rendered.

        if in the course of set of litigations, it becomes apparent that an individual is innocent of government charges, then he should be freed.

        for me the central unforgivable injustice done to the guantanamo detainees, and probably to a majority of those, is:

        1. they were not active terrorists.

        they were sold or given to the americans,

        or were captured by americans in the course of conducting war operations

        and enslaved in guantanamo.

        2. two american presidents, the american military and the american judiciary have allowed many of this major subset of detainees to remain enslaved in guantanamo for a decade

        for the specific purpose of preventing the american presidents and government from having to formally acknowledge that they were improperly imprisoned in the first place.

        we did these me a grave injustice in imprisoning them to begin with

        and now we do them the unforgivable further injustice of refusing to free them in order to hide our initial misconduct.

        the analogy is with a mugger who beats up a person and steals his wallet then decides he better shoot the person so he cannot be later identified.

  5. Jeff Kaye says:

    Seriously. If human beings have no viable Habeas Corpus remedy in a country, then that country exists in an immoral void outside of any known understanding of the concept of “the rule of law”.

    The destruction of the rule of law is a by-product of the quest after empire, itself embedded in a fruitless and destructive, if not desperate, seeking after immortality and omnipotence.

    Laws appear to be fragile things, tenuous, perhaps, in the mind of humanity, but all-too-easily cast aside as “quaint” when Power is at stake.

    Bravo to Candace and the other attorneys for “being in their face for the long run” (an approximate quote). And bmaz, you are quite right, this kind of campaign against rule of law and the attack on habeas will not be limited to some dozens of prisons held in the U.S. Guantanamo gulag, but is aimed against every man, woman and child in this country. The failure of both political parties to deal effectively with this, and in fact, their facilitation of such attacks marks them as for all intensive purposes, politically dead.

    As more ostensible “progressives” tie themselves to a whisp of hope about a non-existent wing of fighting, progressive Democrats, the Democratic Party is becomes thereby the biggest obstacle to achieving any kind of progressive change in this country, and not the road to such change in any way, shape, fashion or form.

    • Jeff Kaye says:

      Oh, and forgot to thank pow wow, who has been making these kinds of intensive critiques for some time now. Damn, I wish pow wow had a blog, or was hired by FDL.

      • powwow says:

        Thanks, Jeff. I want to thank you for your very impressive defense of Scott Horton’s award-winning examination in Harper’s of the three purported, simultaneous Guantanamo detainee suicides in 2006. I hope, in particular, that your valuable engagement with Dwight Sullivan here (combined with the invaluable insights of former Guantanamo military policeman William in that thread, whose understanding of Horton’s van-driving descriptions I shared), will end the specious use of “guano-crazy” that Sullivan’s been applying to an excellent piece of journalism, which is heavily based on eyewitness accounts by courageous members of the military. I myself labeled those suspicious suicides “apparent murders” in a 2010 diary praising Horton’s article, but, obviously, the real circumstances remain shrouded in secrecy. Due, in part, it should be noted, to the continued detention at Guantanamo today (despite approval for release in 2007) of the sole remaining British resident, English-speaker Shaker Aamer, who told his lawyer that he was viciously beaten by Navy Military Policemen on the same night, five years ago, that the three detainees died (June 9-June 10, 2006):

        [Aamer] reported to [his lawyer] that he was strapped to a chair, fully restrained at the head, arms and legs. The MPs inflicted so much pain, Mr. Aamer said he thought he was going to die. The MPs pressed on pressure points all over his body: his temples, just under his jawline, in the hollow beneath his ears. They choked him. They bent his nose repeatedly so hard to the side he thought it would break. They pinched his thighs and feet constantly. They gouged his eyes. They held his eyes open and shined a mag-lite in them for minutes on end, generating intense heat. They bent his fingers until he screamed. When he screamed, they cut off his airway, then put a mask on him so he could not cry out.

  6. Jeff Kaye says:

    For more on Kavanaugh, see this NY Times article.

    I guess Leahy and Durbin’s complaint went nowhere (big surprise, as they are classic “paper tigers”).

    I’d forgotten about the relationship between Kavanaugh and A. Kennedy. The latter has certainly taken a dive since Boumediene.

    O/T on FOIA, as an article I have coming out shows, it took an intelligence officer 5 years (!) to get a FOIA back on his own self-submitted documents to DoD’s IG. Now that’s access to information in a timely way!

  7. JohnLopresti says:

    I suppose there is a genetic predilection in my own background, toward reviewing the sweep of history when encountering obstacles such as those congress continued to mandate for the DC court in torture victim habeas cases begun in the WBush years, given, evidently, some of my ancestors* travails starting small businesses in several of the thirteen colonies before the Americans separated from parent Brits. Pertaining to which spectres, I would ask the reader to consider a few articles I saw recently addressing the matter with a centuries timescale perspective. There was a book published by Harvard U Press entitled **Habeas Corpus: From England to Empire. By Paul D. Halliday** which prof Vladeck of Washington Univ discussed in a 52pp review. Also, there is a U of Penn J of Intl Law article in prepublication form available at that archive, and treating the material witness policy underlying Ashcroft*s recent exoneration for an incident during the 9 years ago *roundups*; prof Heller has blogged in abbreviated form about the issue there; as a mouseover shows, the arguments extend to some controversial acts by a former president before the US declared war on Spain, and while the future pres still was leading an invasion of a frontier territory.

    I think the difficult part of the characterization of the underexaggerated demise of US habeas jurisprudence for the courts is the political component of the equation whereby congress even post 2009 has little impetus to afford a more standard form habeas adjudication to stateless protagonists. From a rudimentary, perhaps humane perspective, I think it time the current administration review its robotics war predictions, and bring into that process an international community interested in limiting such arms, as they, too, in a sense, have an innate statelessness and habeaslessness about them. I think the mid east spring is a popular consensual remedy in the making adressing these concerns; but the international community needs to be more upfront, soon, in seeking to reach a new status quo from the arms perspective. Sorry, this comment goes offtopic; yet, I think if congress continues to ignore what it has commissioned the DC courts to do in its name, worse, and more habeasless outcomes could be in the offing.

  8. powwow says:

    My gratitude, in turn, to bmaz for highlighting that comment, and for the additional important context. Well done, and thank you.

    I couldn’t have written the comment if not for the carefully-chosen words of protective-ordergagged detainee lawyers Richard Murphy and David Remes, which were made publicly available courtesy of Benjamin Wittes. Candace Gorman and Uighur attorney Sabin Willett are two more gagged detainee lawyers (from among a group that, at its peak, numbered in the hundreds) who deserve our thanks for speaking out, as best they can, from the muzzled darkness that hides the slow slog of their mostly-pro bono world. A world where American lawyers have been fighting in obscurity, for almost a decade now, to give each of the foreign prisoners of Guantanamo a meaningful day in court to challenge their untested, Executive Branch-assigned default status of armed conflict “enemy combatant.”

      • powwow says:

        Good for The Oregonian, and thanks for noting the contributions of another detainee lawyer, Steve Wax.

      • Mary says:

        Thanks for sharing that piece.

        @11 and @24 – not a good man; not a leader. But pretty good at amoral maneuvering for his own benefit. We got Kagan as a direct brake on any impetus to rein in the reign.

  9. orionATL says:

    here is a comment i posted some time back regarding one of judge lambeth’s comments in the pro publica article cited above:

    orionATL April 28th, 2011 at 9:44 am

    …at comment #34 in your 4/25 post on doj’s gag order on gitmo attorneys,

    we find out how some federal judges think (actually, lack acuity in thinking) about terror suspects appearing before them:

    …in susan white’s very brief article cited by harpie, there is this cite from a revealing discussion by three federal judges about terror detainees:

    here is the quote that floored me:

    [ The judges also say the risk in ordering a detainee to be released seems much greater than in past conflicts, because a return to the battlefield is not just a return to traditional frontlines but to possible attacks on civilians.

    “How confident can I be that if I make the wrong choice that he won’t be the one that blows up the Washington Monument or the Capitol?” Lamberth said… ]

    how could any judge say what lambeth said?

    if a person before my court is there for murder (but the gods know him innocent), should i, having listened to the contradictory evidence, sentence him to loss of freedom or life on the principle ground

    that he MIGHT go out and kill someone else?

    when he is not the murderer in the first place?

    personally, i think a judge who said what lambeth said should not be allowed to rule on terror suspects.

    (i guess this is why judges don’t grant interviews.)

    in my view, a fair and competent judge would never choose his own “worries” in preference to the facts and the law presented to him.

    doing so is the very definition of the rule of men, not of law.

  10. WhatConstitution says:

    Anyone left who can review the facts and the rulings, and set this right? Doesn’t seem that way. The Supreme Court says these detainees are entitled to a “hearing”, so they get one … and, lo and behold, they all lose. Yeah, so they kind of “won” until the appellate judges tinkered with those results until they found a way to reverse them, and then the Court which initially imposed the ruling “guaranteeing” these people “Due Process” found an easy way out: deny certiorari because the Supreme Court doesn’t sit as a “court of error” and it would be too time-consuming for the Supreme Court to decide whether the “factual determinations” were fair or not.

    Accordingly, these detainees will remain detained indefinitely because, well, they got their opportunity for “due process” all the way to the Supreme Court. That’s the ticket. They just, you know, lost. They must be bahhhhd guys after all, as we all already knew because, well, our President told us so.

    One of the most unsettling experiences in the system of appellate justice is the gnawing feeling of “equitable rationalization”, the sense that an appellate court has decided early on who they want to win, and has then “reasoned backward” from that predeliction to build a result justifying that ultimate conclusion. And as Pow Wow’s explication lays it out, this certainly seems to be exactly what has been going on in the DC Circuit. I find that reprehensible and I wish I could articulate some existing legal remedy for it, but I’m not aware of it. It seems to be no more than base and unconscionable racism — the appellate panels struggling to reverse favorable trial court rulings against these detainees seem no different in approach than the cop pulling somebody over for DWB, the jurists who accepted “separate but equal” to perpetuate racial discrimination in the Plessy regime, or those who advised FDR to intern people of Japanese descent in California during WWII.

    The appellate panels here count on the expectation that they are essentially non-reviewable if they claim to base their decisions upon a “re-weighing of the evidence” and that, unless they too blatantly purport to adopt new “standards” which are contrary to some explicit aspect of the Supreme Court’s decision, they will evade reversal because the Supreme Court won’t accept review. So what are the options? Impeachment? Sure. And monkeys will fly ….

    Could the group of now-defeated detainees articulate a cognizable claim for habeas corpus predicated precisely upon the hide-the-ball “unknowability” of the “standards” to which they were going to find themselves held in these Boumediene-referenced proceedings? Could their counsel themselves articulate personal/class claims on a Bivens basis against these judges based upon essentially the same pattern of conduct designed and implemented for the purpose of depriving these detainees of a fair proceeding or due process based upon a motivation of obvious prejudice rather than dispassionate justice?

    What do you do when there is no justice after the Supreme Court rules that there should be? I vividly remember Professor Turley interviewed after Boumediene was decided, and acidly observing that the 5-4 majority decision that the Constitution applied “even in dangerous times” was in essence a bracing reminder that “even an idiot-proof system still has idiots.” Well, the post-Boumediene procedural debacle described here only demonstrates how prescient Professor Turley was — so, how can we address the kind of idiocy, meanness, prejudice and immorality reflected in the pattern of considered deprivation of due process rights reflected in these post-Boudemiene charades?

    • bmaz says:

      Kennedy actually wrote a pretty heroic opinion, under the circumstances, in Boumediene. But to now see him refuse to even accept cert when the essence and existence of his still relatively fresh precedent is under attack is, to say the least disquieting. Then, capping that off with his unbelievable dicta detour suggesting complete immunity for Executive Branch principals in his al-Kidd concurring opinion, it is a depressing picture painted of Tony Kennedy’s evolution in the wrong direction.

  11. hcgorman says:

    I’m for giving monkeys wings….
    Thank you for raising the question I ask myself almost every day. What do you do when there is no justice? When your profession is based on a system that no longer exists? I am not talking about winning and losing…in a justice system some will win and some will lose. That is ok. But this is not justice because no one wins.
    I don’t have the answer so I keep banging my head against the wall.
    I quess Mary has the answer… “Time to drink.”

    • bmaz says:

      I have been tilting at the chopping blades of the 4th Amendment killing windmill for approaching three decades; the battle is near lost down the rabbit hole at the bottom of the infamous “slippery slope”. As gut wrenching as that has been, and is, it still pales to the gutting of Habeas, because Habeas, in a way the 4th cannot even aspire to, is truly the essential fiber and root of law. Without Habeas, it cannot be said that “no man is above the law” because the men of the Executive Branch are indeed above the law, like the dreaded dictatorial kings we supposedly left behind starting with the Magna Carta. Too few seem to grasp this.

      • Kelly Canfield says:

        Aww, dammit bmaz.

        I’ve been griping about nihilism the last buncha weeks, but when someone whose experience and wisdom I respect, like you, says something like your #34, well, I just don’t know what to say.

        It’s to late for me to jump back in some anonymity closet, and I won’t, because that’s just not what I’m about anymore. And I won’t leave off of what I wish to accomplish. But my jaundice view just got a lot yellower than what it was before.

      • WhatConstitution says:

        So then, is there a vehicle for publicly exposing and redressing the inelegant Klannish “justice” systematically imposed upon those “detained” at Guantanamo? In a way that might actually attract the attention of people in America by being presented in a way that emphasizes the similarity of this railroading to other circumstances now recognized as “considered expedient and OK” at the time but only later seen for the injustice that they were? Granted, there isn’t a lot of traction out there for things like “justice” if the word “Terra” is within a country mile of it, but who has an idea that might get more people than read this blog to understand, just understand, what has happened to the detainees who have tried to take the United States of America up on the constitutional guarantee that everyone thinks the Supreme Court emphasized was the law of the land in Boudemiene? It seems worthy of some kind of official petition in the nature of challenging the very actions of the judicial officers charged with the responsibility of implementing that Supreme Court direction.

        • bmaz says:

          Well, yes and no. The message, and indeed logic and truth, is there and actually fairly simple to explain and convey. But you have to have effective messengers. Unfortunately, hoky online “petitions” and whatnot rarely accomplish very much. that is not to disparage that, something, anything, is better than nothing; and you never know where that gestation may eventually lead. But the simple fact is that until there are leaders willing to not just utter the words when they want your vote, but give them meaning once elected, it does not mean shit. Barack Obama, if you paid attention to who he was and what he really said, never was the FDR or RFK type of fundamental transformational progressive that so many wild eyed desperate Democrats convinced themselves he was. That said, he absolutely intentionally sold himself as someone who would at least bring a return to some semblance of transparency, rule of law, civil liberties and sanity. He has welched on the deal on every tangent. There actually was a mandate for the things Obama said to get elected; that messenger, had he followed through on just the basics, could have really created a different paradigm. Many such elected voices could; they just rarely, if ever, do. Until the populous as a whole not only demands that, but is willing to unelect their own people as punishment for failure, it will never change. The fundamental nature of the American republican democracy maintain; the people still have the power, they just have to have the collective will to do the uncomfortable hard work.

          • WhatConstitution says:

            Thanks for the thoughtful response. May I add that I wasn’t really suggesting “petition” in the sense of a hoky internet petition (I agree wholeheartedly with your sentiment about that), but more in the nature of “petition for the redress of grievances” concept as stated in the Bill of Rights. A new habeas petition? A Bivens construct? A straightforward suit for invoking the Declaratory Judgments Act to declare it an insufficient basis to rebalance the standard of proof in a habeas case because “these are dangerous times?”? A rider to the next Judiciary Appropriations Act?

            With all the erstwhile handwringing over governmental agents selling out the Constitution, what if somebody actually asked somebody like Obama, on camera, how it is that he considers assassinating a US citizen to be something he has the unilateral right to order? And if, as this set of circumstances suggest, the venerable Great Writ of habeas corpus is now effectively being written out of the Constitution (after having been written in to preserve nothing less than Magna Carta itself) by virtue of judicial conduct approaching outright collusion with the executive branch in order to circumvent even the policy direction of the Supreme Court itself, might somebody think it time to ask some of our leaders why they believe their oaths of office don’t prohibit that?

            It kind of troubles me that there are a lot of people willing to suggest our Constitutional system is being undermined or even overthrown, but while a lot of people are leaning (not acting, just listing, sort of) toward the suggestion that there’s nothing to be done but wait for the collapse or take up arms to cause it, there seems to be very little momentum to advocate recognition that the crux of the problem is that nobody seems willing to hold our leaders accountable for the most fundamental obligation they are sworn to uphold. Is that obligation “hoky”? Is it “hoky” to suggest that it is not?

            I get the impression that people don’t think the constitutional oath of office is important enough to consider realistically meaningful — that it’s a nice thought and all, but readily sacrificed in the name of pragmatism, expedience or, for god’s sake, re-election. But it’s not. None of the rest of the Constitution is worth much if those entrusted to implement it aren’t held to a standard of respecting it. And more than any other interpretation, the past ten years are a testament to what happens when that oath is ignored and nobody does anything to compel that it be respected.

            So now Habeas Corpus is on the slab. Anyone ready to say “enough”? The body is chilling, and we have to find a reprint of Pow Wow’s post here at Emptywheel to even get this news outside of, well, just how small a circle would that be? How can this circle be expanded? How can this be put in the face of “Powers that Be”? Maybe by putting in the context of how does this fit within the four corners of respecting and defending the Constitution of the United States?

            It’s late. Thanks.

            • bmaz says:

              Thank you to you as well. I wish I had better answers; your questions and thoughts are ones I have and struggle with pretty much daily. I think a lot of people who frequent here do as well. The best I got is Rule number one is don’t ever give up; rule number two is don’t ever forget rule number one.

  12. orionATL says:

    just for the record, i did not repeatedly use the word

    “enslaved” above for its rhetorical power.

    these men are functionally slaves and slavery is as illegal as torture.

    it won’t happen in this country but i await with hope the day it is raised in europe or asia.

    those at g’mo who were sold or give to americans or captured as war booty

    are every bit as much slaves as any african chained on the ghana coast and handed to an english slave trader.

  13. JThomason says:

    Nicely done piece and impressive comments. I wish I could take comfort in a notion of a certain resilience in these lost principles. Where is the voice of Jameson in this discussion? Surely there is a material relational instant giving rise to the claustrophobic jursiprudence stemming from the DC Circuit we see exposed and reviewed here.

    @18 touches on this, yet empire is not an historical novelty to the Eastern Mediterreanean notwithstanding any vernal delusion. As for the concern for the public expressed @11 this is by and large a media issue where the public is hopelessly bombarded by syndicated ficticious dramas lionizing the police state and the constant drone of corporately groomed reporters steeped in sensationalism. Idyllic America, where even the “Dauphin” might take a leisurely river float in the forgiving frontier wilderness sharing the natural respite with drunks and evangelists peopling the river’s edge, is lost in the energy of our conpsicuous grandiosity, pervasive artifice and over stimulation. Anyone know of any good fishing streams or naturist retreats? The gates of Guantanamo will still be locked come Bastille Day.

    Perhaps the hegemony of Constitutional Law is inversely proportional to the general availability of air conditioning, cheap booze and high definition media. I for one hope the corporately dictated mass produced food supply does not collapse. Can you hear me Major Tom?

  14. pdaly says:

    At the very least the loss of Habeas corpus protections should be part of every defense lawyer’s opening and closing statement in every American courtroom from this day forward. Their client cannot receive a fair trial without it.
    Every law student should ask their professors the meaning off law school now that Habeas corpus has been dispensed with.

    Why shouldn’t there should be consequences to judges dropping the ball and ordering Blind Justice to remove her blindfold?

  15. Mary says:

    To play devil’s advocate a bit – part of the post-Boumediene problem is what relief CAN the court give. I think when the opinion was issued, it was with the sense that a new administration would be coming in and that new administration could use Boumediene to give a new round of less tainted review and act responsibly to remedy as much as it could.

    That didn’t happen.

    So now the circle comes round again, and the question of WHAT the reviewing courts can do – as a real, working, solution as opposed to rhetoric – becomes a big issue.

    What the courts have seen, over and over, is the Obama admin digging in harder than the Bushies ever did to make sure that no detainee is allowed to “taint” the Exec branch or military with the open and obvious facts of torture and kidnapping and violation of the Geneva conventions that prohibit as a war crime the kinds of shipments that are at the heart of the GITMO and black site transfers.

    To allow a detainee’s “case” to be won isn’t – and hasn’t been for years and yers – a matter of granting habeas, but is rather a matter of admitting to war crimes. Anyone who is not an “enemy combatant” and yet was sent to GITMO, or to black sites, or a combination, is also a prima facie war crime case.

    So you have two elements that make Boumediene a difficult issue. The first is an Executive branch/DOJ that will blatantly refuse to follow District Court rulings with respect to the conduct of the habeas tials and production of information (and will lie to the court about their conduct as well) and ultimately the release of the detainees; and the next is that even the Sup Ct, faced with a Congress that won’t fund trials and an Exec branch that is unafraid of violating court orders and surrounding those vioaltions with obfuscations – even the Sup Ct has a lot to consider as far as what kind of a relief order it can grant and what does it do if that order is not obeyed?

    I don’t have any real hopes for anything positive anymore, but I think the discussion that focuses on ways the Sup Ct could act with some kind of enforcement power provides a more effective criticism of their ducks and dodges.

    The fact that no US gov lawyer, for all the prevarications, misstatements, cover ups, failures to comply, failures to produce, failures to engage in due diligence prior to reps to courts or productions, etc. – the fact that not one has been sanctioned or censured and that someone like Welch even gets new gigs – that’s bad. That’s worse than bad. And that is an area where the courts CAN do something. To be a gov lawyer and know that a court will put you in contempt and involve bar associations and bar you from practice before it would at least cleanse the record some. To know that you can’t attach the classification/state secrets/national security flag to your ass to cover up anything leaking out would at least provide some restraints on behavior.

    Because let’s face it – there’s almost no DOJ lawyer who is lieing to the courts and classifying the rhyming lines to Twinkle Twinkle Little Star because they think they HAVE to for national security.

    They are doing it for the same reason torturers torture – they can get away with it and it even acts as career grease.

    It’s not really, at it’s heart, about a court’s habeas power per se; it’s about a court’s power period.

    You have to find the places where the power is strongest and tie it to the habeas issues. Because the court’s practial power is weak for orders that would be doing things like requiring a guy under military detention (with a military that reports to the CIC and not to any courts, as they seem to be fond of mentioning at GITMO) outside of the US, a guy who Congress won’t allow into the country for a real trial, to be “released.” Where? How? That’s a mess. It’s a mess compounded by the fact that this guy, if he wins his habeas, also states a prima facie war crime case against many in the Exec and military for war crimes.

    So here’s one of the layers. It isn’t just that habeas means nothing if the courts refuse to exercise it; but also that habeas means nothing if Congress refuses to allow funding for a trial or to get a detainee damages or a safe place to be returned; it’s also that habeas means nothing when successive adminstations join forces to classify crimes within the Exec branch; it’s also that habeas means nothing when you have an Executive who won’t abide by court orders.

    We have allof those.

    So where does the court(s) have the most leverage and where can they exercise it best? IMO- with resepct to the lawyers.

    As long as Clement gets to fib to the S. Ct about his client not engaging in things like torture and then gets to keep going back before that court over and over, without ever having to account for what he did – (and on and on for all the many misreps, “losses” and destructions of evidence, etc.) – that’s when you really have no law and that’s where the court’s can’t hand wring and claim a lack of power. They absolutely can boot the butt of a gov lawyer who won’t abide by orders or ethics out of the courtroom and that’s their highest and best leverage. It’s what they need to use in the habeas cases and it will make them much more radioactive within the “me me me me me” DOJ.


    • bmaz says:

      That is all valid too. The bottom line is, if you are going to issue a decision like Boumediene, you need to do something – anything – to see that it has acual effect. There are any number of points, cases, modalities…whatever…where the Supreme Court could have done just that. But the have not and will not.

    • WhatConstitution says:

      I agree with the panoply of reasons for dismay, but I will note that perhaps the thing that teed me off on my tangent was bmaz’s observation about the very construction of an appellate panel doing the most damage here:

      “We have the smooth stylings of none other than Janice Rogers Brown, Lawrence Silberman and a chap who was actually an active part of the Bush/Cheney torture brigade prior to being elevated to the court, Brett Kavanagh. It would be impossible, even in the wildest Salvador Dali dream, to conjure up three judges more unsuitable for the task of deciding the viability, indeed existence, of Habeas Corpus in these circumstances.”

      Granted, the executive branch apparently got the legislative branch to put lapdogs of choice on the court of appeals. But might that itself constitute the kind of programmatic manipulation that ought to be subject to express and independent review as a policy of unfairness, and not be limited to the individual review of the individual detainee’s individual appeal from individually diverse hatchet jobs? Put it this way: anyone think a Wall Street banker would be denied habeas? But we live in “dangerous times”, don’t we? And Wall Street’s activities could be dangerous to the state of the US, right? The creation of specific, racially-and/or-status-applied differential standards of justice, which couldn’t have been predicted by Boumediene itself and couldn’t even be predicted on a case-by-case basis even in the individual habeas proceedings, is classically suspect. A review of the fundamental unfairness of these proceedings, based upon a unitary record presented to a trial court in support of a request to renew habeas hearings (there is no “double jeopardy” issue, correct, since — to put in in legal terms which only heighten the obvious unconscionability of the circumstances — “jeopardy” hasn’t even “attached” yet) might allow somebody to say that it really really sucks to let judges with these specific backgrounds rule on whether the fruits of their previous involvement are A-OK or not….

      Only if one reads Boumediene as contemplating unwinnable habeas proceedings should one accept the rulings setting up the results identified here. Not even the minority Justices would agree with that as a viable interpretation of the majority’s decision in the case.