Yesterday’s New York Times editorial, “A Right without a Remedy,” finally shines a spotlight on what anyone familiar with the Guantanamo detainee habeas corpus litigation already knows: the steady erosion of the Supreme Court’s 2008 decision in Boumediene v. Bush, and the open disdain for that decision exhibited by several D.C. Circuit judges, most notably A. Raymond Randolph.
The upshot is that we now have two very different conceptions of habeas corpus at Guantanamo: one as a meaningful judicial check on executive power; the other as a legal proceeding in which the judiciary remains powerless to remedy unlawful executive action.
In Boumediene, the Supreme Court held that Congress’s effort to strip Guantanamo detainees of the right to habeas corpus violated the Constitution’s Suspension Clause and ordered the district courts to conduct prompt hearings into whether the petitioners were being lawfully held. Since then, district courts in Washington, D.C., have issued merits decisions in 59 habeas cases, finding no legal basis for the detention in 38 of them.
The D.C. Circuit, however, has taken increasingly narrow view of district court’s power to inquire into the government’s evidence, reversing or vacating and remanding habeas grants in three cases and affirming habeas denials in four of six cases (the other two denials were vacated and remanded). To date, the Circuit has not affirmed a district court grant of habeas nor outright reversed a district court denial. Along the way, Randolph, along with Circuit Judge Janice Rogers Brown, have suggested that the government might satisfy its burden merely under a “some evidence” standard, as opposed to the higher, preponderance of the evidence standard the Department of Justice is advocating.