Opinion | The Supreme Court is Giving George W. Bush the Last Laugh on Guantanamo
Later this month, just weeks after the 20th anniversary of 9/11, the federal court system will have to confront one of the most difficult legacies of those attacks: the status of prisoners at Guantanamo. The case is a big deal in part because, regardless of how it is resolved, it is likely to speak volumes about how the Supreme Court has changed in the past 20 years.
That change is bad news for those who care about fundamental constitutional rights.
In the initial years following 9/11, the Supreme Court reluctantly came to the defense of Guantanamo detainees. The court refused to turn a blind eye to the Bush administration’s egregious attempt to operate a prison beyond the law, a place where the executive could hold people indefinitely, without charge, without access to counsel, without the protection of the Geneva Conventions, and without access to civilian courts.
Instead, in a series of four blockbuster decisions, the Supreme Court intervened, permitting the government to operate Guantanamo but laying down limits on the detention and trial of suspected terrorists. Starting with its 2004 and 2006 decisions in Hamdi v. Rumsfeldand Hamdan v. Rumsfeld, the court rejected the idea that the executive branch could place Guantanamo detainees beyond the reach of the judiciary. And, in 2008, the court in Boumediene v. Bush recognized that Guantanamo detainees have constitutional rights, albeit limited ones related to habeas corpus, the fundamental right prohibiting detention without an opportunity to appear before a judge.
Together, these decisions rejected the Bush administration’s expansive conception of executive power. They rejected the insidious judicial philosophy of extreme national security deference made most famous by the court’s 1944 decision in Korematsu v. United States, which sanctioned the forced detention, relocation, and internment of Japanese Americans during World War II. And they rejected any attempt to turn the judiciary into a pawn of the executive branch.
At the time of these Guantanamo decisions, the court was refusing to hear many constitutional challenges to war on terror policies that significantly curtailed civil liberties at home under the theory that the judiciary should defer to the executive branch on questions of national security. But, even for the court, Guantanamo was too much, and the Supreme Court served as a check on executive power.
In the 20 years since 9/11, however, the judiciary has changed, a lot. Today, many of the legal architects of our post 9/11 approach now sit on – and in many cases control – the federal bench.
One case where we can see the influence of today’s more conservative judiciary when it comes to Guantanamo policy is Al-Hela v. Biden, which will be reheard by the en banc D.C. Circuit on Sept. 30. Al-Hela is a Yemeni tribal sheikh who was apprehended in Egypt in 2002 by American forces and who has been held at Guantanamo Bay for close to 17 years and still hasn’t seen all the factual evidence against him. His case raises the fundamental – and as of yet unanswered – question of whether Guantanamo detainees have due process rights under the Constitution’s Fifth Amendment. This question has huge practical implications, potentially opening up new avenues for detainees to challenge their detentions and force the government to adopt new procedures.
The case is an appeal from a 2020 panel decision written by Trump appointee Neomi Rao, who previously worked in the Bush administration’s White House Counsel’s Office. In that decision, Rao held that Al-Hela lacked any constitutional rights. In so doing, she completely disregarded the Supreme Court’s Boumediene precedent, pushing it aside as if it wasn’t worth the paper it was written on.
Let’s remember basic judicial practice here. As a lower court, Rao’s job is to follow Supreme Court precedent, not rewrite it. And yet, today’s hyper-conservative Roberts Court has shown such hostility to its own Guantanamo precedents that we should not be surprised that a lower court believed it could follow suit.
Of the current nine justices on the Supreme Court, only two – Justices Clarence Thomas and Stephen Breyer – were on the bench during that first Guantanamo case. The other justices that made up the Guantanamo majorities have left the bench, leaving in their wake a Court that is far more conservative and far less willing to protect against unfettered claims of executive power in the national security space.
This should not be a surprise. Our courts are now stocked with Bush appointees and their progeny, some of whom played leading roles designing and defending the Bush administration’s post 9/11 policies that not only permitted opening Guantanamo, but also sanctioned torture and spying on U.S. citizens.
For example, Justices Sandra Day O’Connor and Anthony Kennedy – both of whom were in the majority in each of the Guantanamo cases they heard while on the Court – were replaced by Samuel Alito, a Bush appointee, and Brett Kavanaugh, a former Bush White House and Justice Department staffer. The effects of these personnel changes are evident in recent decisions that have paved the wave for the court to potentially overturn its own Guantanamo precedents.
First, there is Trump v. Hawaii, the 2018 decision upholding former President Trump’s travel ban. Penned by Chief Justice John Roberts, a Bush appointee, the Court allowed the executive branch to categorically ban individuals from largely Muslim majority countries because their entry would allegedly be “detrimental to the national interest.” The majority disregarded or did not care about the clear evidence of racial animus and discriminatory intent motivating the travel ban. This decision was more characteristic of the Court’s thinking in Korematsu than it was of the Court’s previous Guantanamo jurisprudence where it openly questioned the intentions and discretion of the executive.
Then there is the Court’s more recent decision in DHS v. Thuraissigiam, holding that a noncitizen unlawfully present in the United States is not entitled to any due process protections, including the writ of habeas corpus, perhaps the most fundamental right in Western law. In a decision that should have started and ended with the Court’s analysis in Boumediene, Alito – who dissented in Boumediene – seized upon the opportunity to launch a full-frontal attack on Boumediene, on habeas corpus, and by extension the Court’s entire Guantanamo legacy.
And, in case you thought maybe it was an aberration or a mistake, only one week later, Kavanaugh, writing for the same majority in Agency for International Development v. Alliance for Open Society International, showed similar disregard for Boumediene.
With such unmistakable signs that the Supreme Court is abandoning its own Guantanamo legacy, Rao’s 2020 decision in Al-Hela really shouldn’t be a surprise.
Rao’s opinion was brash, not because it keeps Al-Hela in military prison, but because of how she did it. Over the years, the D.C. Circuit has heard several Guantanamo cases that raise the question of whether detainees have due process rights, including Ali v. Biden, which the Supreme Court declined to hear this past May. But in these cases, the circuit assumed, without deciding, that detainees do have due process rights, they just were not violated in that instance. These decisions certainly limited Boumediene, but they stopped short of disregarding it.
What makes the panel decision in Al-Hela so egregious is that Rao didn’t even give a nod to the assumption that detainees have due process rights. To the contrary, she launched her own assault against Boumediene and overstepped every rule of judicial restraint and stare decisis that courts are obligated to follow to conclude that detainees lack any constitutional protection.
Although the D.C. Circuit has already vacated Rao’s panel decision, what happens next is unclear and Supreme Court watchers will certainly be paying attention to the Sept. 30 hearing to see if there is any indication of which direction the circuit is headed. The circuit could take a narrow approach like it has in the past – assuming Al-Hela has due process rights but concluding that they weren’t violated in this instance. Or the circuit, which is one of only five that has a Democratic-majority, could hold DIRECTLY that Al-Hela has constitutional due process rights.
That holding would be celebrated as a civil rights victory. But such a victory would inevitably run up against the cold reality of the Roberts Court, with its conservative supermajority that has signaled that it is dead set on running away from the Court’s Guantanamo legacy. That means that the Roberts Court could overrule the D.C. Circuit and gut its own Guantanamo precedents.
Regardless of what happens with Al-Hela, the verdict is clear: the Supreme Court has fundamentally changed. And lower federal courts are following along. Today, we have a federal judiciary that is unwilling to question the executive’s motivations. A judiciary that is unwilling to defend its Guantanamo legacy. A judiciary that is stacked with judges and justices who embrace expansionist views of executive power and care little for fundamental civil liberties.
This judiciary – one that cares little for the value of precedent when it comes not only to Guantanamo but also to pressing domestic matters like voting rights and women’s health – is on the cusp of fundamentally reshaping national security jurisprudence for the worse.
