It’s not every day that a lower-court judge deigns to castigate the U.S. Supreme Court. Then again, Laurence H. Silberman isn’t your typical lower-court judge. The justices should take notice.
In two short pages, Judge Silberman, a senior judge on the U.S. Court of Appeals for the D.C. Circuit, delivers a stinging critique of the justices’ handiwork — or lack thereof — in cases involving detainees at the U.S. Naval Base at Guantanamo Bay, Cuba.
Judge Silberman, for example, takes the court to task for ruling in Boumediene v. Bush that detainees had a right to challenge their detentions in federal court but failing to articulate the standards by which these challenges should be judged. The lack of guidance has created confusion. The Justice Department believes it has to show by a preponderance of the evidence that the detention is lawful. Judge Silberman, in an April 8 concurrence in a detention case, joins several other colleagues who previously advanced the idea of a lower standard.
“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,” Judge Silberman writes. “I doubt any of my colleagues will vote to grant a petition [for release] if he or she believes that it is somewhat likely that the petitioner is an al Qaeda adherent or an active supporter. Unless, of course, the Supreme Court were to adopt the preponderance of the evidence standard (which it is unlikely to do — taking a case might obligate it to assume direct responsibility for the consequences of Boumediene v. Bush).”
We share Judge Silberman’s frustrations with the lack of guidance, although we disagree with his embrace of a lower standard. The government should be put to a higher test to justify indefinite detention, especially in cases involving unlawful enemy combatants captured far from any conventional battlefield.
Judge Silberman expresses understandable irritation with other aspects of the judicial process. He points to the cases of Chinese Uighurs who have been ordered released but who languish at Guantanamo. They cannot be returned to their native country for fear they will be abused, but Congress has barred them and other Guantanamo detainees from being brought into the country.
“Of course, if it turns out that regardless of our decisions the executive branch does not release winning petitioners,” Judge Silberman writes, “then the whole process . . . becomes a charade.” The justices could bring some clarity by agreeing to hear the Uighurs’ current appeal, which asks the court to determine whether federal judges have the authority to order their release into this country.