The New York Times’ Linda Greenhouse on Guantánamo: “Born in Fear and Sustained Through Political Cynicism and Public Indifference”

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I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

Two weeks ago, the 18 year-long struggle by lawyers, NGOs and all decent people to bring justice to the men held at Guantánamo reached a new low point in the court of appeals (the D.C. Circuit Court) in Washington, D.C., as I explained at the time in an article entitled, Trump-Appointed Appeals Court Judge Rules That Guantánamo Prisoners Don’t Have Due Process Rights.

The judge in question, Judge Neomi Rao, appointed by Donald Trump last year, is an enthusiastic supporter of the opposition, by various judges in the court, to the landmark Supreme Court case Boumediene v. Bush, decided in June 2008, which granted constitutionally guaranteed habeas corpus rights to the Guantánamo prisoners.

That ruling led to the only time in Guantánamo’s history when the law has successfully applied at the prison. From 2008 until 2010, 38 prisoners had their habeas corpus petitions granted by District Court judges, and the majority of those men were released.

In the appeals court, however, a group of judges opposed to the Boumediene decision worked assiduously to undermine it, so that five of those 38 decisions were reversed or vacated, and, more significantly, by the summer of 2010 habeas corpus had been rendered meaningless for the Guantánamo prisoners. No prisoner has had a habeas corpus petition granted since that time, and yet the Supreme Court, year after year, has also failed to respond to the fact that its position on detention in the “war on terror” had been usurped, mangled and effectively reversed by presumptuous judges in a lower court.

Sadly, it would be fair to observe that almost nobody cares about the fundamental lawlessness that underpins the imprisonment of the remaining 40 men at Guantánamo. In part, this is because the legal issues involved are not readily comprehensible to lay people, hinging, as they do, on questions of due process. But the lack of interest is also because of the black propaganda emanating from parts of the Republic Party and the right-wing media about Guantánamo, dating back many years, and, correspondingly, the general silence about Guantánamo from the so-called liberal mainstream media and from Democratic lawmakers.

A notable exception is New York Times columnist Linda Greenhouse, who has been writing about Guantánamo, in depth and perceptively, for many years. For her latest column, published the day before the 19th anniversary of the 9/11 attacks, Greenhouse turned her attention to this latest ruling and the tortured legal history that precedes it, in an article entitled, A Court Just Slammed the Guantánamo Gate Shut, which we’re posting below in the hope of reaching corners of the US electorate and the wider world that may have missed it in the Times.

To tell the story of why the legal struggles over Guantánamo are so significant, Greenhouse focuses on the malignant role played by Judge A. Raymond Randolph, who was on the panel that reviewed the case of Guantánamo prisoner Abdulsalam al-Hela in which Judge Rao wrote the majority opinion. Randolph has been with the court since 1990, and, as Greenhouse explains, “Early in the Guantánamo saga, he wrote three majority opinions for the appeals court denying the detainees access to federal court. The Supreme Court overturned all three. The third was the case that became Boumediene, and since that day, Judge Randolph has written or joined a remarkable series of opinions that have sapped the Supreme Court decision of much of its meaning.”

This is the judge who, in a 2010 speech to the Heritage Foundation, as Greenhouse notes, “shockingly compared the five justices in the Boumediene majority to F. Scott Fitzgerald’s characters in ‘The Great Gatsby,’ Tom and Daisy Buchanan, ‘careless people who smashed things up’ and who ‘let other people clean up the mess they made.’” As Greenhouse also observes, it is also worth noting that Trump’s dangerous and politically biased Attorney General William Barr “is fully on board in the war against Boumediene, referring to it in a speech to the Federalist Society last year as ‘the most blatant and consequential usurpation of executive power in our history,’” and thereby reviving the Unitary Executive Theory so beloved by Dick Cheney and Donald Rumsfeld, which holds that, particularly at a time of crisis, there should be no constraints of the president’s authority to do as he sees fit — which, in the case of the last 19 years, means rendition, torture and arbitrary lifelong imprisonment without charge or trial at Guantánamo.

How did this coup in the appeals court happen? Greenhouse explains that, although the Supreme Court, in Boumediene, held that “the prisoners’ access to federal court was not simply a statutory right but was grounded in the Constitution’s protection of the ‘privilege of the writ of habeas corpus,’” Justice Kennedy’s opinion left a major question unanswered: “Now that the Guantánamo prisoners could petition for habeas corpus, what rights could they actually assert in their challenges to their continued detention? What substantive rights did they possess?”

It was these ill-defined or undefined areas of Boumediene that the appeals court attacked, weaving “a tight web of rules favoring the government; for example, accepting gossamer chains of circumstantial evidence as sufficient proof that an inmate’s designation as an enemy combatant was correct.”

For the judges like Randolph who oppose Boumediene, they believe that the Supreme Court erred in its interpretation of the Second World War decision in Johnson v. Eisentrager, which, as Greenhouse describes it, “held that federal courts lacked jurisdiction over cases brought by German prisoners of war being held overseas by the United States.” Refuting Eisentrager was at the heart of Rasul v. Bush, the first Supreme Court case applying to the Guantánamo prisoners, in June 2004, establishing that the government could no longer get away with pretending that Guantánamo was Cuban, when every aspect of its operations was under US control.

In contrast, those backing Boumediene have sought to establish that the prisoners have due process rights that are being unfairly suppressed by those clinging to the Eisentrager ruling. Two recent rulings — in Qassim v. Trump last year, and Ali v. Trump this year — have led to judges, in two cases in which the majority opinion was written by Judge Patricia Millett, an Obama appointee, challenging rulings indicating that “a due process argument was categorically unavailable to a noncitizen held outside the country.” In the second of these, however, Judge Randolph was so incensed that “he refused to sign Judge Millett’s opinion, accusing her of ignoring what he insisted was clear Supreme Court precedent that made the due process guarantee unavailable to ‘a nonresident alien enemy detained by the United States outside of our sovereign territory.’”

As Greenhouse proceeds to explain, “to accept Judge Randolph’s opinion as an accurate account of the state of the law is to ignore the entire trajectory of the Supreme Court’s Guantánamo cases,” and yet, in the most recent case, Al Hela v. Trump, the compliant Judge Rao fully endorsed Randolph’s position, writing, in a footnote, what Greenhouse called “the astounding assertion” that “our court has adhered to Eisentrager’s holding that the Fifth Amendment’s Due Process Clause does not apply outside the territorial United States and therefore cannot be invoked by detainees at Guantánamo Bay.”

For “astounding assertion,” a more appropriate phrase would be “bare-faced lie.” Greenhouse notes that in a dissenting opinion, Judge Thomas B. Griffith, who has now retired, objected that “we have never made such a far-reaching statement about the Clause’s extraterritorial application,” but neither Rao nor Randolph cared, and nor too did most of the US media or the American people.

There will be a challenge to this ruling, of course, and maybe that will lead somewhere, but there appears, sadly, to be no cure for the general amnesia and indifference surrounding Guantánamo. As Greenhouse notes, in a poignant conclusion, “I’ve come to think of Guantánamo, born in fear and sustained through political cynicism and public indifference, as a mirror of ourselves during these opening decades of the current century, trapped no less than our 40 remaining ‘forever’ prisoners with no obvious end to their imprisonment.”

A Court Just Slammed the Guantánamo Gate Shut
By Linda Greenhouse, New York Times, Sept. 10, 2020

Does the public care about the 40 remaining inmates with no obvious end to their imprisonment?

It’s more than 12 years since the Supreme Court cracked open the prison gates at Guantánamo Bay, ruling that the prisoners held there, the living embodiments of the post-9/11 war on terror, had the constitutional right to petition the federal courts for release.

The decision, Boumediene v. Bush, was an unexpected affirmation that the rule of law had survived the shock of Sept. 11, 2001, against all odds and despite the effort by the administration of President George W. Bush to treat the U.S. naval base in southeastern Cuba as a black hole where law couldn’t enter and the “worst of the worst” could never leave.

Now another 9/11 anniversary is upon us, always an occasion to contemplate that day and where it has brought the country. But even so, why write about Guantánamo now, in the midst of a presidential campaign during which the island prison is never mentioned, with a new term about to begin at the Supreme Court, which has turned down every Guantánamo case for the past decade?

Here’s the reason: The federal appeals court in Washington, D.C., has just slammed the Guantánamo gate shut.

Has anyone noticed? Guantánamo once stirred public passions. Now that the inmate population is down to 40, from the nearly 800 who passed through the prison in its 18-year existence so far, do people still care?

The decision, Al Hela v. Trump, issued late last month by a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, did not go completely unnoticed; the indispensable Carol Rosenberg, who has covered Guantánamo longer and better than any journalist alive, reported on it for the Times. But in the public policy space it has been met with silence.

It’s my simple premise in this column that people should notice and should care, one reason being that the decision represents the culmination of judicial politics as raw as any I’ve ever observed. Conservative judges have hated the Boumediene decision from the moment in June 2008 when Justice Anthony Kennedy announced his opinion for a 5-to-4 majority, over a dissenting prediction by Justice Antonin Scalia that the decision “will almost certainly cause Americans to die.”

Justice Kennedy has retired and Justice Scalia has died, but Judge A. Raymond Randolph is still on the D.C. Circuit, where he has served since 1990. Early in the Guantánamo saga, he wrote three majority opinions for the appeals court denying the detainees access to federal court. The Supreme Court overturned all three. The third was the case that became Boumediene, and since that day, Judge Randolph has written or joined a remarkable series of opinions that have sapped the Supreme Court decision of much of its meaning.

Last month’s Al Hela decision, which he joined (the newest member of the panel, Judge Neomi Rao, appointed last year by President Trump, wrote the majority opinion), was the final blow. One might even call it a triumph for a judge who in a 2010 speech to the Heritage Foundation shockingly compared the five justices in the Boumediene majority to F. Scott Fitzgerald’s characters in “The Great Gatsby,” Tom and Daisy Buchanan, “careless people who smashed things up” and who “let other people clean up the mess they made.” (And I’ll note that Attorney General William Barr is fully on board in the war against Boumediene, referring to it in a speech to the Federalist Society last year as “the most blatant and consequential usurpation of executive power in our history.”)

How can a lower court render a Supreme Court decision a nullity? We saw a recent example in the bold refusal of the United States Court of Appeals for the Fifth Circuit to apply to an anti-abortion law in Louisiana despite a 2016 Supreme Court decision that struck down an identical law in Texas. The Supreme Court made properly short work of that defiance in its decision this summer in June Medical Services v. Russo.

The Guantánamo situation is more subtle and for that reason more interesting. In one of its first Guantánamo decisions, Rasul v. Bush in 2004, the Supreme Court overturned a decision by Judge Randolph and held that the naval base, although obviously located in a foreign country, was functionally part of the United States and for that reason was subject to the jurisdiction of the federal courts. The justices in that decision rejected the applicability of a post-World War II decision, Johnson v. Eisentrager, which held that federal courts lacked jurisdiction over cases brought by German prisoners of war being held overseas by the United States.

The Rasul decision was based on the court’s interpretation of a jurisdictional statute. The Boumediene ruling went deeper, holding that the prisoners’ access to federal court was not simply a statutory right but was grounded in the Constitution’s protection of the “privilege of the writ of habeas corpus.” Justice Kennedy’s opinion left a major question unanswered, however: Now that the Guantánamo prisoners could petition for habeas corpus, what rights could they actually assert in their challenges to their continued detention? What substantive rights did they possess?

In the immediate aftermath of Boumediene, dozens of prisoners filed habeas petitions, and federal district judges in Washington granted 38 of them, an impressive number given that the number had been zero not long before. The Obama administration, in office by then, released about half of the successful petitioners without a fight. But it successfully appealed other cases. The D.C. Circuit in fact has never affirmed a grant of habeas that the government contested. Case by case, in many with opinions by Judge Randolph, the appeals court wove around the prison camp a tight web of rules favoring the government; for example, accepting gossamer chains of circumstantial evidence as sufficient proof that an inmate’s designation as an enemy combatant was correct.

Decisions of that kind, based on factual evaluations of the prisoners’ claims, made it unnecessary for the appeals court to decide the open question about how the Constitution itself might apply. The question lingered in the background of many of the cases. Last year, in Qassim v. Trump, a three-judge D.C. Circuit panel strongly suggested that a claim under the Constitution’s due process guarantee would be upheld in the right case; the panel vacated and sent back the District Court’s decision holding that a due process argument was categorically unavailable to a noncitizen held outside the country.

Judge Randolph was not on the panel in the Qassim case. But in May of this year, he was on the panel in another case, Ali v. Trump, in which the same judge who wrote the opinion in Qassim, Patricia Millett, again wrote for the majority. As in the Qassim case, her opinion held that the district court had been right to reject the inmate’s habeas petition, but wrong to do so categorically. Judge Millett noted that while “circuit precedent has not yet comprehensively resolved” the question, “the district court’s decision that the Due Process Clause is categorically inapplicable to detainees at Guantánamo Bay was misplaced.”

This modest opinion, reserving the hard question for another day, was nonetheless enough to set Judge Randolph off. Concurring only in the judgment, he refused to sign Judge Millett’s opinion, accusing her of ignoring what he insisted was clear Supreme Court precedent that made the due process guarantee unavailable to “a nonresident alien enemy detained by the United States outside of our sovereign territory.”

The precedent Judge Randolph cited for this sweeping proposition was the old post-World War II Eisentrager case, the very case that the Supreme Court had rejected in 2004 when it treated Guantánamo as a functional part of the United States that came within the jurisdiction of the federal courts. I’ll be polite: to accept Judge Randolph’s opinion as an accurate account of the state of the law is to ignore the entire trajectory of the Supreme Court’s Guantánamo cases.

That brings me to the most recent case, Al Hela. Judge Randolph got lucky when the panel was designated. Instead of serving with two of the appeals court’s more liberal members, Judge Millett and Judge Judith Rogers, as in the Ali case, he was joined by two conservative colleagues, Judge Rao and Judge Thomas Griffith. All three agreed that the habeas petition filed by Abdulsalam Al Hela, a Yemeni tribal sheikh held at Guantánamo since 2004, was deficient for a variety of standard reasons.

Judge Griffith, who retired from the appeals court last week, argued in a separate opinion that there was no need to venture further into constitutional territory. But in her controlling opinion, Judge Rao said it was time to decide the due process issue because Mr. Al Hela claimed in his habeas petition that the government’s reliance on anonymous hearsay in the intelligence reports it used to justify his continued detention violated his right to due process.

But no such right applied to him, Judge Rao wrote, concluding that “we reject Al Hela’s due process claims on the threshold determination that, as an alien detained outside the sovereign territory of the United States, he may not invoke the protection of the Due Process Clause.” A footnote to her opinion contained the astounding assertion that “our court has adhered to Eisentrager’s holding that the Fifth Amendment’s Due Process Clause does not apply outside the territorial United States and therefore cannot be invoked by detainees at Guantánamo Bay.”

Judge Griffith, in his separate opinion, properly objected: “But we have never made such a far-reaching statement about the Clause’s extraterritorial application.” The objection was fruitless. Judge Randolph had done his work and had the last word, at once cryptic and completely clear in a concurring opinion consisting of a single sentence: “I agree with the court’s decision not only for the reasons expressed in its opinion, but also for the additional reasons stated in my opinion concurring in the judgment in Ali v. Trump.”

What might happen next is anyone’s guess. It’s not out of the question for the full D.C. Circuit to reconsider the panel decision, as it did last week when it overturned a panel opinion in the Michael Flynn case, restoring the district judge’s discretion to decide whether to yield to the Trump administration’s demand to dismiss the prosecution of the president’s former national security adviser. It’s conceivable the Al Hela case could end up at the Supreme Court. I have trouble conjuring five votes there even to sustain the Boumediene precedent, let alone to carry it into due process territory.

While I’ve never been to Guantánamo, I have revisited it regularly during my years writing this column. Why care about Guantánamo at this late date? As the 9/11 anniversaries have accumulated and the shock of that day has been absorbed into our national narrative, I’ve come to think of Guantánamo, born in fear and sustained through political cynicism and public indifference, as a mirror of ourselves during these opening decades of the current century, trapped no less than our 40 remaining “forever” prisoners with no obvious end to their imprisonment. There have been a few redemptive moments in this story, and the Boumediene decision was one of them. If it’s now to be buried without even a decent funeral, we should at least take note.

* * * * *

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and see the latest photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here, or here for the US, or you can watch it online here, via the production company Spectacle, for £2.55), and for his photo project ‘The State of London’ he publishes a photo a day from eight years of bike rides around the 120 postcodes of the capital.

In 2017, Andy became very involved in housing issues. He is the narrator of the documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June 2017 that killed over 70 people, and he also set up ‘No Social Cleansing in Lewisham’ as a focal point for resistance to estate destruction and the loss of community space in his home borough in south east London. For two months, from August to October 2018, he was part of the occupation of the Old Tidemill Wildlife Garden in Deptford, to prevent its destruction — and that of 16 structurally sound council flats next door — by Lewisham Council and Peabody. Although the garden was violently evicted by bailiffs on October 29, 2018, and the trees were cut down on February 27, 2019, the resistance continues.

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Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.