A judge blasts the Court
on Apr 8, 2011 at 11:02 am
A senior judge on the D.C. Circuit Court on Friday unleashed a verbal broadside against the Supreme Court for its 2008 decision granting some legal rights to Guantanamo Bay detainees, accusing it of “defiant assertion” of judicial supremacy, and of cowardly refusing to accept responsibility for the consequences of that ruling.  (The judge’s opinion is a part of the Circuit Court’s ruling in Esmail v. Obama, docket 10-5282.)
Senior Judge Laurence H. Silberman, one of the most conservative jurists in the federal system, offered his biting critique of the Court, and also targeted the Justice Department for a harsh rebuke, as the Circuit Court with his support denied a plea for release by another Guantanamo prisoner — the customary outcome in nearly all Guantanamo cases at the D.C. Circuit, no matter which judges are on the panels.
Silberman filed a concurring opinion as the Court ruled that Yasein Khasem Mohammad Esmail, a Yemeni national, could continue to be detained because the panel found that he was “more likely than not” a part of the Al-Qaeda terrorist network when he was captured in Afghanistan in December 2001.  The panel made no new law in the case, simply applying prior Circuit Court decisions to the evidence the government offered against Esmail.  (The unsigned opinion was issued by a panel composed of Circuit Judges David H. Tatel, a liberal, and two conservatives, Senior Judge Silberman and Circuit Judge Janice Rogers Brown.)
What stood out about the decision was the Silberman concurrence, a two-page opinion filled with complaints about the entire system for handling Guantanamo detainees in the wake of the Supreme Court’s June 2008 decision in Boumediene v. Bush — a decision for the first time giving Guantanamo detainees a constitutional right to go to a U.S. federal habeas court to challenge ongoing confinement.
After an opening paragraph suggesting that the decision to deny habeas to Esmail was easier than the other two judges on the panel had made it seem, the senior judge next discussed what he saw as the consequences of judicial decisions that might result in the release of a “bad person” from custody.
It was one thing, Silberman wrote, for a court to have to order the release of a “thoroughly bad” criminal because his conviction was flawed, but, “when we are dealing with detainees, candor obliges me to admit that one can not help but be conscious of the infinitely greater downside risk to our country, and its people, of an order releasing a detainee who is likely to return to terrorism.”
With a verbal blast at another federal judge, Seventh Circuit Judge Richard A. Posner of Chicago, Silberman added: “One does not have to be a ‘Posnerian’ — a believer that virtually all law and regulation should be judged in accordance with a cost/benefit analysis — to recognize this uncomfortable fact [about the threat from releasing a detainee].”
From there, Judge Silberman turned to the Justice Department, blasting it for feeling bound by even the lowest level of evidentiary proof for detention (“preponderance of the evidence”), commenting that that standard was “unnecessary and unrealistic” in detainee cases.
He said, in fact, that he doubted that “any of my colleagues” would vote to release any Guantanamo detainee even if it were only “somewhat likely” that the detainee believed in Al-Qaeda’s cause or provided support to it.
He then wrote: “Unless, of course, the Supreme Court were to adopt the preponderance of the evidence standard,” but he then said that was “unlikely” because “taking a case might obligate it to assume direct responsibility for the consequences of Boumediene v. Bush.”
Turning back to the Executive Branch, Silberman then suggested that it may turn out that the Justice Department would not release detainees who won release orders issued by the courts, “because no other country will accept them and they will not be released into the United States.” If that is the case, he then said, “the whole process leads to viritual advisory opinions.”
He concluded this way: Â ‘It becomes a charade prompted by the Supreme Court’s defiant — if only theoretical — assertion of judicial supremacy, see Boumediene,…sustained by posturing on the part of the Justice Department, and providing litigation exercise for the detainee bar.”
Judge Silberman became the second member of the D.C. Circuit to lambaste the Court for the Boumediene decision. Senior Circuit Judge A. Raymond Randolph, another conservative jurist on that Court, weeks ago made a public speech titled “The Guantanamo Mess,” and likened the Supreme Court to the characters in “The Great Gatsby,” creating messes for other people to clean up.
