Debating the Qualified Immunity Ruling in Hamad: Hafetz Responds and I Reply

Professor Jonathan Hafetz (Seton Hall) writes in with the following response to my critique of the qualified immunity ruling in Hamad v. Gates. My thoughts in reply appear at the bottom.   Jonathan writes:

Bobby makes a number of excellent points in his critique of the recent qualified immunity ruling by Washington State federal district judge Marsha Pechman in Hamad v. Gates, a civil action brought by a former Guantanamo detainee against former Defense Secretary Robert Gates.  But several additional points bear mentioning. Bobby criticizes the district judge for holding that Hamad had a clearly established right under the Constitution’s Due Process Clause during the five-and-one-half-years he was detained by the United States—from July 2002 to December 2007, including the four-plus years he was held at Guantanamo prior to his release.  As Bobby notes, the Supreme Court’s June 2004 decision in Rasul v. Bush is a thin reed on which to base a claim that the plaintiff had clearly established constitutional rights in 2004.  Notwithstanding Rasul’s suggestion in dicta (the famous footnote 15) that Guantanamo detainees’ did possess constitutional rights, Rasul was a statutory holding. But there are stronger arguments on which to rest a clearly established constitutional right to be free from arbitrary and unlawful detention.   In Boumediene v. Bush, the Supreme Court held not only that non-citizens at Guantanamo have a constitutional right to habeas corpus but also that they (and other non-citizens held outside the United States) could potentially invoke other constitutional protections.  The Court, to be sure, did not decide Boumediene until June 2008, after Hamad had been released.  But in rejecting the government’s contention that the Constitution’s reach stopped at the nation’s political borders (and hence did not extend to Guantanamo), the Court’s opinion made clear that it was reaffirming decades-long jurisprudence and not stating a new constitutional rule.  Thus framed, the question whether Hamad had a constitutional right to be free of the type of prolonged and arbitrary detention to which he claims he was subjected is closer than Bobby suggests. Further, in answering this question, a plaintiff need not point to a case on all fours or show that the very action at issue has precisely been held to be unlawful. Rather, a plaintiff must show only that given pre-existing law, the unlawfulness was apparent.  Viewed in this light, one might ask whether holding a detainee for two years after the government’s own administrative review board recommended him for release clearly constituted arbitrary detention under the Due Process Clause (as was the case with Hamad). Bobby is certainly right that the Hamad court erred in interpreting Boumediene as holding that Guantanamo detainees are protected by the Due Process Clause.  But it is worth noting that the D.C. Circuit’s approach to this question is also flawed.  In Kiyemba v. Obama, the D.C. Circuit concluded incorrectly and without analysis that Guantanamo detainees lack Due Process rights because they are non-citizens held outside the sovereign United States.  That statement—by Judge Raymond Randolph, an outspoken critic of Boumediene—was no unintentional error.  Rather, it was a deliberate attempt to undermine Boumediene’s instruction that the extraterritorial reach of constitutional rights turns on whether application of the right is “impracticable” or “anomalous” under the circumstances, and not exclusively on a person’s citizenship and location.  The flaws in Hamad affect one case (which was in any event dismissed for failure to allege the defendant’s personal involvement), but Judge Randolph’s error infects the D.C. Circuit’s consideration of every Guantanamo habeas petition, not to mention its review of pending constitutional challenges to military commission convictions. Which brings me to my final point: the distorting impact the D.C. Circuit is having on post-9/11 detention law by virtue of the fact that the D.C. courts have been made the sole forum for the Guantanamo habeas litigation.  While one must be careful not to infer too much from a single district court decision, Hamad suggests that this body of law might look different if other circuits had the opportunity to weigh in.  At a minimum, Hamad indicates a discomfort with prolonged detention without criminal trial that is absent from the D.C. Circuit’s jurisprudence.  Though hardly foreseeable at the time, the Court’s determination in Boumediene to make the D.C. courts the exclusive venue for Guantanamo habeas petitions surely ranks as among that decision’s most far-reaching consequences.

I appreciate Jonathan’s thoughtful comments.  For what it is worth, however, I adhere to my original views. The novelty of Boumediene - I'm not so sure that the majority opinion in Boumediene is best characterized as being framed as merely a validation of long-existing rules regarding the Constitution's reach, as opposed to resolving a fiercely contested question regarding the manner in which long-existing rules mapped on to the peculiar situation of Guantanamo.  But even if the former framing is the correct one, I don't think it appropriate to judge the clarity of the question circa 2002-2007 based on the manner in which Kennedy in 2008 decided to frame his decision.  The justices have ample reason to minimize the extent to which their opinions can be framed as novel, and to instead depict them as modest extensions or simple applications of well-settled rules.  I would put little weight on such characterizations, and would focus instead on the law on the books at the time of the defendant's actions. The relevance of Eisentrager - The inescapable bottom line, it seems to me, is that prior to Boumediene, the most on point Supreme Court decision with respect to the Fifth Amendment issue at least arguably was Eisentrager.   And of course let's not forget that the D.C. Circuit in February 2007 relied on Eisentrager to emphatically reject both Boumediene's Suspension Clause claim and his Fifth Amendment claim.  That decision famously got reversed a year and a half later, but I just can't see how one can say it should have been clear to Gates in 2007 that the law was the opposite of what the D.C. Circuit just claimed it to be. The separate question whether the 5th Am was violated by delay between the time of the ARB decision and Hamad's eventual release - In my original post I offered a number of reasons why the delay in his case might not be understood to be egregious, let alone as a Due Process violation.  Those reasons stand. Is the D.C. Circuit's influence pernicious? Noting that the GTMO habeas cases have unfolded solely within the D.C. Circuit’s jurisdiction, Jonathan argues that the Circuit's influence is pernicious and that the decision in Hamad demonstrates how different things could be were other circuits to play a role, including on such fundamental matters as whether non-criminal military detention is lawful at all.  I agree that Hamad suggests that things might well be different--but to me this is an endorsement rather than a critique of the D.C. Circuit’s centralized role.