Does the public care about the 40 remaining inmates with no obvious end to their imprisonment?
There are times when there's little choice but to resort to the banal: that a society is judged by how it treats the lowliest. So forty of those seized and rendered to Guantanamo following the 9/11/2001 attacks remain there. They may have done horrible things. How would one know? But based on Al Hela v. Trump, a recent decision by Judge Randolph of the D.C. Circuit we will never know. The men will die there untried, their guilt unproven. Randolph was joined by two conservatives: the young Neomi Rao and the about to retire Thomas Griffith. Rao is the more aggressive, as Linda Greenhouse describes in her newest piece for the Times. - GWC
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.
***
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.
***
No comments:
Post a Comment