Primer on Boumediene‘s week of reckoning
on Nov 19, 2008 at 2:42 pm
Analysis
Five months and seven days after the Supreme Court’s path-breaking decision in Boumediene v. Bush — the most important so far of its four rulings on “war on terrorism” issues — a week that will test the scope and meaning of that ruling is about to open. It will involve all three levels of the federal judiciary, winding up next Tuesday in the Supreme Court.
But as judges in all of those courts and teams of lawyers wrestle earnestly with basic questions about government powers and Guantanamo Bay detainees’ rights, a certain air of unreality will hang over all of the proceedings. In 62 days, a new President will take over, having pledged to shut down Guantanamo altogether and to re-think the government’s entire policy of military detention and war crimes prosecution.
Judges and lawyers, however, have schedules to meet, and cannot wait to see what President-elect Barack Obama will do once in the White House. So, starting Thursday, and in sequence, a Circuit Court panel will hold a crucial hearing on civilian courts’ powers in reviewing military detention decisions; a District judge will decide the first of the contested Guantanamo habeas cases — a reprise of the very same Boumediene case that went to the Supreme Court and returned; a Circuit Court panel will hear government pleas to keep any detainees from being transferred to the U.S.; a District judge will try to sort out the links and conflicts between habeas, claims of torture and war crimes evidence, and the Supreme Court will get its first look at the first major sequel to Boumediene — a test of the President’s power to detain an individual who was lawfully in the U.S., was seized inside this country, and is now being held indefinitely and without charges in a military jail in South Carolina.
Each of those developments, in its own way, is a test of what the Supreme Court intended to happen when it ruled on June 12 that detainees have a constitutional right to bring habeas challenges to their confinement, while finding inadequate (but leaving intact) two other legal processes to weigh detention decisions by the military.
What follows below is a primer that simplifies and sorts out these developments, and shows how they mesh or clash.
Thursday at 9:30 a.m., U.S. Courthouse, Washington
Bismullah, et al., v. Gates, Circuit docket 06-1197.
A three-judge panel of the D.C. Circuit holds a 30-minute hearing on whether that Court has lost the authority to decide detainees’ challenges under the Detainee Treatment Act of 2005.  Under DTA, Congress wiped out courts’ authority to hear detainee challenges under the federal habeas law, and substituted a review process before the Circuit Court. In Boumediene, the Supreme Court found that the DTA alternative was not an adequate substitute for constitutional habeas, but left the DTA process intact even as it authorized new habeas challenges. The Justice Department has since argued that the Boumediene decision, in legal effect, scuttled the DTA process altogether, so that detainees may only pursue one form of challenge — through habeas.
Significance: For more than a year, the Justice Department has been attempting to overturn a Circuit panel’s initial decision in July 2007 in the Bismullah case — a decision that laid down the basic ground rules for DTA review of military detention decisions. The Department has protested that the decision went too far to impose duties on the Pentagon and intelligence agencies to produce information to the Circuit Court, causing severe burdens and threatening national security. That challenge has failed. Since the Supreme Court decided Boumediene, the Department has been attempting to end the DTA process altogether. This case amounts to a showdown over the fate of the DTA system. If the government challenge succeeds, habeas will be the only process left to detainees.
The Circuit panel includes Judges Douglas H. Ginsburg and Judith W. Rogers, who supported the initial Bismullah ruling and have favored fairly robust DTA review, and Karen LeCraft Henderson, who has been opposed to the Bismullah decision and has suggested that the DTA process is probably dead now.
Thursday at 10 a.m., U.S. Courthouse
Boumediene, et al., v. Bush, et al., District Court docket 04-1166.
U.S. District Judge Richard J. Leon, who has cases involving two dozen of some 200 detainees with habeas cases pending in District Court, is to announce orally his first ruling. It will be in the Boumediene case, involving six detainees. The issues: Has the government, using both public and secret information, justified continued confinement of those captives? If not, what remedy will the judge impose?
Significance: Judge Leon has moved rapidly on his post-Boumediene habeas cases. Another District judge, Ricardo M. Urbina, on Oct. 7 ordered the release of 17 detainees into the U.S. — the first ruling on the merits in a new habeas case; in that case, however, the government no longer contended that the detainees were enemies justifying detention on that basis. Leon’s ruling thus will give the first glimpse in a contested case of whether constitutional habeas holds any promise for release of Guantanamo detainees, and whether the government’s case for detention is compelling, just sufficient, or wanting. It will not bind any other judge. The side losing the case is expected to appeal.  (Judge Leon’s 2005 ruling in the first Boumediene proceeding was that detainees were not entitled to any relief under the federal habeas statute; that was upheld by the D.C. Circuit, but overturned by the Supreme Court’s constitutional ruling.)
Monday at 9:30 a.m., U.S. Courthouse
Kiyemba v. Bush (lead case of six), Circuit docket 08-5424.
A three-judge panel holds a hearing to review Judge Urbina’s decision (District Court docket 05-1509) requiring that 17 Chinese Muslim Uighur detainees be released and brought to the U.S., to live at least temporarily. As noted above in the entry on Judge Leon’s planned ruling, the Urbina decision came in a case in which the Pentagon no longer seeks to detain the Uighurs as “enemy combatants.” But the government insists that no detainee may be brought into the U.S., and that the Uighurs can be held at Guantanamo until they can be resettled in some other country than their native China, where they would face abuse or torture. This Kiyemba case is separate from another Circuit Court case with the same title and involving some of the same detainees (Circuit docket 05-5487), testing judges’ authority to limit the government’s power to transfer detainees out of Guantanamo. That other case was heard Sept. 25, and a decision is awaited.
Significance: The decision in this case, together with the coming ruling by the Circuit Court in the other Kiyemba case, likely will go far toward settling the scope of federal judges’ powers to regulate the transfer of detainees now at Guantanamo. The Justice Department contends that Congress has taken away entirely the judges’ power to oversee transfers and conditions at Guantanamo, and that the Boumediene decision did not disturb that court-stripping move. It also argues that, in any event, no judge has the authority to order any detainee to be brought into the U.S.; entry to the U.S., for any reason, is strictly within the powers of the Executive Branch, it asserts. If the government wins, that would strictly curb the range of remedies available in habeas cases or in other challenges to conditions at Guantanamo.
The Circuit panel includes Senior Judge A. Raymond Randolph, who has been the most sympathetic Circuit judge to the claims of Executive power over Guantanamo and the detainees, Judge Henderson, who has been a favorable vote for the government in detainee cases, and Judge Rogers, who supports a strong oversight role for the courts.
Three different Circuit judges — Douglas H. Ginsburg, Thomas B. Griffith and Brett M. Kavanaugh — are on the panel that heard the other Kiyemba case in September It is unclear how, if at all, the two rulings can or will be coordinated.
Monday at 2:30 p.m., U.S. Courthouse
Habashi, et al., v. Bush, et al. (District Court docket 05-765).
U.S. District Judge Emmet G. Sullivan holds a hearing in a case involving an Ethiopian-born former British resident, Binyam Mohamed al Habashi, captured in Pakistan, who claims that the Central Intelligence Agency sent him to Morocco where he was tortured. His lawyers contend that the government’s evidence to support continued detention is based on confessions he made under torture. He allegedly confessed to being a part of a terrorist plot to detonate a radioactive bomb attack in the U.S.
The government, however, has dropped war crimes charges against him, and the Justice Department has said it will no longer rely on that allegation as a basis for his detention. That has prompted Judge Sullivan to order the government to release to Mohamed’s lawyers all documents that may help him in his challenge to his enemy designation. Monday’s hearing is on Mohamed’s specific demand for the judge to compel the government to go further with disclosures. The government contends that it has sufficient evidence to justify detention without anything Mohamed said during interrogation.
Significance:  This case may lead to a major ruling on how far judges may go to facilitate the constitutional habeas process that the Supreme Court’s Boumediene decision provided for detainees. It is likely to produce a fundamental ruling on the scope of detainees’ rights to demand information from the government that may help them contest their ongoing confinement by the military. It also may set a  precedent on access to information to support claims of torture, arranged or tolerated by the U.S. government. The government contends that a 2004 Supreme Court decision (Hamdi v. Rumsfeld) limits the scope of court review of military detention decisions, and severely restricts the rights of “discovery” to aid detainees’ challenges. Mohamed’s lawyers have said that the government has come close to contempt of court by refusing to carry out its obligations to supply background information about this detainee.
Judge Sullivan, who has often demonstrated limited patience with government attorneys in cases before him, is considered one of the District judges most likely to rule in favor of broad detainees’ rights. He has become visibly upset in court over the government’s actions in the Mohamed case.
Tuesday morning, Supreme Court Building
Al-Marri v. Pucciarelli  (Supreme Court docket 08-368).
At its closed-door Conference to consider new cases it may want to decide, the Court will confront a core issue of presidential “wartime” power: the authority — or lack of it — to order the detention in the U.S. and prolonged captivity of an individual suspected of terrorism, but who is not charged with any crimes. The case involves a Qatari national, Ali Saleh Kahlah al-Marri, who was arrested in his home in Peoria, Ill., where he was a graduate student. He is the only detainee seized in the U.S. under presidential order and still in military captivity inside the country. His lawyers have asked the Supreme Court to rule that no federal law and no part of the Constitution allows the President to order such detentions. The Justice Department has urged the Court not to consider the case at this stage, but to allow it to return to District Court in South Carolina for a fuller examination of the government’s reasons for holding al-Marri.
There is now no doubt that al-Marri had a right in a habeas case to challenge his detention. He was legally in the U.S. at the time he was turned over to the military for detention, and the government did not contest his right to challenge — though it did so unsuccessfully — until he appealed. Thus, the key issue in Boumediene — did a habeas right remain — is not at issue. The appeal, however, is a major test of whether the Boumediene principle — substantial power in the U.S. courts to review military detention even to the point of second-guessing presidential actions amid what the government terms wartime — applies within the U.S. Boumediene, of course, involved foreign nationals held outside the U.S.
Significance: The outcome of the al-Marri case, if the Court steps in now or later, will settle a fundamental constitutional issue about presidential authority over terrorism suspects. Al-Marri’s appeal notes that the detention power claimed in his case is so unlimited that it would extend even to U.S. citizens, if the government decided to take them into captivity on terrorist suspicion (as it did in the famous case of Jose Padilla, who later was released from military custody and was tried and convicted in regular federal court).
The government defends the seizure and detention of al-Marri as valid under the post-9/11 Resolution (AUMF) authorizing a presidential response to the 2001 terrorist attacks, and under the President’s power as commander-in-chief. But the government prefers to have the al-Marri case first go through another habeas review in District Court.
The Supreme Court may announce its reaction to al-Marri’s appeal as early as Tuesday afternoon, following its Conference. It has no obligation to do so, however.
The key to a grant of review at this point apparently would be the reaction of Justice Anthony M. Kennedy. If he would prefer (as he initially did in the Boumediene case) to let the lower courts proceed further, he presumably would not vote in favor of review now. There probably are four votes to grant review among the Court’s moderate and liberal Justices, but they very likely would not press the issue if Kennedy balked.
Another unknown factor, of course, is how President-elect Obama’s administration would react, if the case is granted. If it wished to do so, it could simply inform the Court that it no longer supports the detention authority at issue, and that probably would be the end of the case — in effect, a “confession of error.” If review is granted, briefing in the case would still be going forward when Sen. Obama takes office.
NOTE TO READERS: The foregoing does not take into account the developments that may be occurring with war crimes prosecutions at Guantanamo Bay in coming weeks, even though those may be influenced in greater or lesser ways by the Court’s Boumediene decision.
Neither does the foregoing consider what may happen this week or next in a new move by the Justice Department to narrow sharply the scope of habeas review in the wake of Boumediene. That maneuver is discussed in this post. The outcome of that challenge could have a decisive influence on the shape of habeas review. How it will play out, however, cannot be known at this early point.
