The meme has been floating about for some time: the D.C. Circuit–and, particularly, the evil Judge A. Raymond Randolph–is subverting habeas, fighting a rear-guard action against the rule of law, and turning Boumediene into an empty shell. Until yesterday’s New York Times editorial on Kiyemba, the meme had been mostly the stuff of frustrated chatter in the habeas bar. But the Times has now distilled this version of reality in a very public setting. Normally, when I critique a Times editorial, it is over some misstatement of fact or law. This time, my problem is the big thesis. It is worth separating what true in this meme from what is fiction, what is fair, from what is not.
The Times editorial yesterday, entitled “A Right Without a Remedy,” reads in relevant part:
Judge Raymond Randolph of the District of Columbia Circuit wrote the key Kiyemba opinion. The Uighurs’ brief says, “The constant in this case is the court of appeals’ refusal to apply, or even acknowledge,” the Boumediene ruling.