How the D.C. Circuit Court shaped the war on terror
We have assumed, as we must, that the allegations made in the Government’s charge against Hamdan are true…But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.” So concluded Justice John Paul Stevens in the 2006 case Hamdan v. Rumsfeld. Legal commentators hailed the decision proscribing trial by military commissions at Guantanamo Bay, yet two years before in the E. Barrett Prettyman Courthouse, Judge James Robertson had reached a similar verdict. “It is now clear, by virtue of the Supreme Court’s decision in Hamdi [sic], that…unless and until the Military Commission’s rule…is amended, Hamdan’s trial before the Military Commission would be unlawful.” The similarity was more than coincidental. For the past seven years, Robertson’s tribunal, the D.C. District Court and its appellate counterpart, the U.S. Court of Appeals for the D.C. Circuit, have served as legal battlefronts in the war on terror. However, the courts’ turn in the legal spotlight has proved controversial and uncertain, and in the end the tenuous relationship between the district and appellate court forced Supreme intervention from One First Street. D.C.’s unitary influence over executive oversight may soon end, but its experience suggests that elevating one circuit to form wide doctrine can ultimately prove more inefficient than expedient.
The Second Highest Court in the Land
Though of the smallest geographic jurisdiction, the District of Columbia courts wield disproportionate power. They are the primary oversight for federal agencies, the most proximate to the federal government, and the junior varsity Supreme Court bench. Yet terror cases arrived relatively late to the capital. While a few were filed as early as 2002, it was not until 2004 that D.C. emerged as primus inter partes. In Rumsfeld v. Padilla, the Supreme Court imposed certain restrictions as to where detained prisoners could bring suit. As Harvard Law School professor Gerald Neuman explained to the HPR, “Padilla said habeas corpus cases should have limited jurisdiction. For Guantanamo cases, you have the choice to sue in the Fourth Circuit [where the Pentagon sits] or in D.C., but the Fourth Circuit has been conservative, so a combination of lawyers, courts, and congressional action explains the prominence of the D.C. Circuit.” As Neuman elaborated, all Guantanamo detainee cases since Padilla have been transferred and decided before D.C. District Court judges, then appealed to the Court of Appeals and from there to the Supreme Court.
Such uniform procedure has not yielded smooth outcomes; instead, the courts have issued significantly varied precedent. Early years of the war on terror saw many governmental victories at the district and circuit level. In 2004’s Hamdan v. Rumsfeld however, district court Judge Robertson found military commissions without prisoner of war hearings unconstitutional. The D.C. Circuit Court reversed Robertson, only to be itself reversed and remanded by the Supreme Court in 2006. Hamdan’s wake split the district court; Judge Richard Leon ruled that detainees could not appeal for writs of habeas corpus, while Judge Hens Green affirmed detainees’ rights to file suit. The appellate court agreed with Leon, but the Supreme Court’s Boumediene v. Bush decision in 2008 ultimately overruled the circuit.
Confusion all around
Experts emphasize that the pattern of split decision and reversal springs from several causes. First is the opacity of past jurisprudence. Charles Swift, lawyer for the plaintiff in Hamdan v. Rumsfeld, told the HPR that while differences existed between Leon and Green’s 2006 rulings, “The opinions are not night and day apart. The problem is the war on terror is unprecedented.” Most cases prior to Boumediene argued around the World War II case of Johnson v. Eisentrager, and according to Professor Neuman, the circuit court’s dogmatic approach exacerbated the uncertainty. “The problem is, the Supreme Court caselaw is unsettled, and the D.C. Circuit took a very rigid view of what those rulings meant.” Such opinions squeezed the district court judges’ power to draw acceptable opinions, and this muddled precedent often led to the D.C. and Supreme Courts answering different questions. Although Boumediene encompassed both Leon and Green’s cases, Neuman said, the “case appears to go out of its way to be broader and not Guantanamo specific. From that perspective, Judge Leon and Judge Green’s differences don’t matter.” Though the Supreme Court was able to resolve this divisive issue through its authority, the wide disparity between it and the appellate courts vastly exceeded ordinary parameters.
These divergent viewpoints may draw from a common source. Even though the cases in the circuit court are supposed to be drawn by random lot, all have ended up in front of Judge Randolph, the reputedly conservative judge who wrote the subsequently overturned majorities in Boumediene and Hamdan. The district court has then seen its own version of specialization; it has both “coordinated order enforcement…and sent the vast majority of the cases to Judge Hogan for coordination,” Susan Manning, partner at Bingham McCutchen told the HPR. Nonetheless, several judges on the district court insist on deciding the cases on their docket themselves.
Player no more
The implications of D.C.’s Guantanamo cases appear uncertain. At the time this article went to press, Judge Leon had just found five detentions unjustified. However much of the jurisprudence may soon prove moot. As Swift observed, “If President-elect Obama follows through on his promises to close Guantanamo, the question is, does the D.C. Circuit continue to play? If he moves detainees elsewhere, the D.C. Circuit will no longer be a player.” Such relegation may not devastate the law. “What the D.C. Circuit Court has been unwilling to do is deal with the law of war,” Swift stated. The problem was, the circuit deferred completely.” One ultimate consequence of the vacillation may thus be deference to another circuit. In that case, the Fourth Circuit may become the star of the litigation game.
Yet D.C. will not end up completely on the bench. Swift noted that “if Obama holds military commissions, ‘enemy combatants’ still have right to appeal the verdict to the circuit court. The Supreme Court is very comfortable with D.C. acting in its criminal capacity.” The courts will also continue to rule on other questions of governmental authority, perhaps unaffected by its Guantanamo experience. Swift cited Campbell v. Clinton in which Judge Randolph accepted the President’s broad commander-in-chief authority as a sign that partisan sentiments will not instigate a retrenchment of executive power. Yet with the international attention brought to the court by the detainee cases potentially shifting to other circuits, D.C. will in the end lose a bully pulpit. The road from 1600 Pennsylvania Avenue to One First Street may thus turn away from the E. Barrett Prettyman Courthouse.