Will the Supreme Court Write Guantánamo’s Final Chapter?

One name missing from the appeals court’s lineup for the rehearing is that of Judge Raymond Randolph. For years, Judge Randolph has been the appeals court’s, if not the country’s, leading critic of the Supreme Court’s Guantánamo decisions, especially the 2008 decision in Boumediene v. Bush that gave the detainees a constitutional right of access to a federal court, enabling them to seek release by means of petitions for habeas corpus. In a speech to the Heritage Foundation in 2010, Judge Randolph compared the five justices in the Boumediene majority to the characters in “The Great Gatsby,” Tom and Daisy Buchanan, “careless people who smashed things up” and “let other people clean up the mess they made.”

Judge Randolph, who seemed to beat the law of averages on the number of randomly-assigned panels he ended up on in Guantánamo cases, assigned himself the clean up role. In a series of decisions, he did his best to make sure that even though the detainees could petition for habeas corpus, they would never actually get it. He sat on the al-Hela panel, and Judge Rao’s opinion echoed his own concurring opinion in a similar case just three months earlier.

But the 77-year-old Judge Randolph is off the roster for the rehearing in al-Hela, because he took senior status in 2008. Although many senior judges continue to carry a nearly full caseload, they may not sit on cases heard “en banc” by the full court. The argument in September will proceed without him.

The case in which Judge Randolph forcefully presented his argument against due process on Guantánamo, now titled Ali v. Biden, has already reached the Supreme Court in an appeal filed by the detainee, Abdul Razak Ali, in January. The justices are scheduled to consider whether to grant the petition later this month, but last week, Mr. Ali’s lawyers asked the justices to defer acting on the petition until the appeals court decides the al-Hela case. Clearly, the lawyers’ calculation is that a favorable opinion by the full United States Court of Appeals for the District of Columbia Circuit would put the issue in a better light.

In the 13 years since deciding the Boumediene case, during which the appeals court has whittled the landmark opinion down to a nub, the Supreme Court has been silent, turning down many cases without explanation or apparent dissent. It’s a safe bet that there are not five justices on the court today who would have joined the Boumediene majority. The only member of that majority still serving is Justice Stephen Breyer. Three of the four dissenters, all but Justice Antonin Scalia, who died in 2016 (Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito), are still there.

So there may be five or six justices today who think that Judge Randolph has been right all along and who would join an opinion saying that whatever unspecified right the court meant to recognize on behalf of the detainees in 2008, it did not include a right to due process. If so, the Supreme Court won’t write Guantánamo’s last chapter after all. Over to you, President Biden.

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