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Reconnecting the Dots

3:14 PM, Mar 1, 2011 • By THOMAS JOSCELYN
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In an editorial published yesterday (“A Right Without a Remedy”), the New York Times complained that the D.C. Circuit Court “has dramatically restricted” the Supreme Court’s Boumediene ruling, which granted Guantanamo detainees the right to petition federal courts for their habeas corpus rights. The Times has long championed the idea that U.S. courts should determine whether Guantanamo detainees are properly held. But the Old Gray Lady is upset because the D.C. Circuit Court and Judge Raymond Randolph have overturned rulings issued by D.C. District Court judges.

Reconnecting the Dots

“Respected lawyers say they are subverting the Supreme Court and American justice,” the Times’s editors write.

The Times doesn’t name any “respected lawyers” who hold this position, but this is an argument that has been made repeatedly by the “Gitmo Bar” – that is, the Guantanamo detainees’ lawyers. Of course the detainees’ lawyers are upset with Judge Randolph and his Circuit Court colleagues. They’ve intervened in a haphazard process that clearly benefitted the detainees, oftentimes at the expense of reality.  

Instead of chastising Judge Randolph and his colleagues, then, we should be thanking them.

What the Times’s editors didn’t tell readers is that the Boumediene decision failed to provide a framework to guide D.C. district judges. Moreover, as Justice Antonin Scalia pointed out in his dissent of the Boumediene decision (which was decided narrowly by a vote of 5 to 4), the Supreme Court’s ruling effectively transferred decisions on “how to handle enemy prisoners in this war” to the branch of government “that knows least about the national security concerns that the subject entails.” This two-fold dynamic (no guidelines plus judicial inexperience) was bound to be problematic, as even the district judges (who asked Congress to intervene) have recognized.

And history has proven Scalia right. The first batch of habeas rulings was, by and large, inconsistent with America’s national security concerns. Over time, the habeas rulings have improved, but only because the D.C. Circuit Court has repeatedly issued much-needed clarifications.

Consider just a handful of examples.

In early 2010, a D.C. district judge ordered Mohamedou Slahi, a notorious al Qaeda recruiter who helped recruit three of the suicide hijacker pilots for 9/11, freed from Guantanamo. The U.S. government appealed and Slahi’s habeas corpus petition was sent back down to the D.C. District Court for further proceedings. The D.C. Circuit Court did not outright overturn the district court’s decision in this instance, but it could have.

Slahi’s defense centered on his claim that he renounced al Qaeda in the early 1990s and was not, therefore, still a member of bin Laden’s terror organization at the time of his detention. But D.C. District judge James Robertson’s ruling contained a lengthy timeline of evidence showing that Slahi continued to work with and assist various al Qaeda members long after he claimed to have renounced his al Qaeda membership. That is, Slahi’s claim is not at all consistent with the evidence heard and accepted by the district court. The district court now gets a second chance to get Slahi’s case right thanks to the D.C. Circuit Court.

In more than one ruling, district judges have likened al Qaeda and Taliban guesthouses to “youth hostels,” thereby dismissing the importance of a detainee’s stay at one or more such facilities. In granting Saeed Hatim’s habeas petition in late 2009, District judge Ricardo Urbina accepted the “youth hostel” analogy. Urbina’s decision was vacated by the D.C. Circuit Court last month. And in a separate habeas ruling released to the public on February 18, Urbina reversed himself, finding that these guesthouses are not at all like youth hostels.  

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