UPDATE: Boumediene and judicial powers
on Sep 22, 2008 at 4:43 pm
UPDATE: Readers may note that the following contains materials from an earlier post on Monday, titled “Narrow reading of Boumediene.” The following is a complete rewrite to take account of other significant developments on Monday.
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The Justice Department, three days before a crucial hearing in the D.C. Circuit Court on a sequel to the Supreme Court’s June 12 decision in Boumediene v. Bush. told the Circuit Court Monday that “it appears the district courts are now going to bar any transfer of a Guantanamo detainee.” In view of that, the letter said, the Circuit Court should rule expeditiously — perhaps with an order even before preparing an opinion.
The letter was filed in the combined cases that begin with Kiyemba v. Bush (Circuit docket 05-5487), scheduled for a 40-minute hearing on Thursday morning. That is one of a series of pending cases in which the Justice Department is arguing that District judges hearing habeas challenges authorized by the Supreme Court in Boumediene have no authority to bar the transfer of prisoners out of Guantanamo Bay to other countries. It argues that Congress took away all such power, if courts ever had it, in 2006. It also argues that any such order intrudes on the constitutional power of the President to control the ocnduct of detainee affairs.
What prompted the Department’s letter Monday was an order issued by Senior District Judge Thomas F. Hogan at a date that is blacked out in a case that is blacked out, blocking the government from transferring a Guantanamo prisoner — deleted — to another country — also deleted. (The Department letter, with the Hogan order attached, can be found here.)
Judge Hogan’s order, the Department’s letter said, “provides a very tangible example of how, under such orders [barring transfer], all bilateral arrangements regarding the transfer of detainees are made contingent upon court approval.” The prospect that no such transfers will be allowed while the transfer authority issue is under review in the courts, the Department said, “counsels in favor of this Court’s expeditious resolution of the current appeals. We believe that in this context, if possible, this Court should resolve the key issues as soon as possible after oral argument and, if necessary, issue an order disposing of the issues prior to a full opinion.”
The Hogan order at issue was one of three by him that emerged on Monday. In two others, as part of his role in overseeing some 200 Guantanamo Bay detainee cases, the judge ruled that the courts have no authority to hear challenges to the conditions of confinement at the Naval prison on the island of Cuba. Those orders relied on the same act of Congress in 2006 that the Department cited in its Circuit Court letter contending that District judges may not bar detainee transfers.
In those two orders, Judge Hogan gave a narrow interpretation of the Supreme Court’s Boumediene ruling.  Hogan found that the Military Commissions Act of 2006 had taken away all authority of federal courts to examine “transfer, treatment, trial, or conditions of confinement” of any captive found by the government to be an “enemy combatant.” The Supreme Court did not nullify that provision in Boumediene, Hogan wrote, so the courts “have no jurisdiction” over detainees’ pleas over the conditions of their imprisonment at Guantanamo. One of the detainees sought access for his lawyers to his medical records and sought a blanket and mattress in his cell at Guantanamo; the other detainee sought uncensored copies of records and staff reports regarding his medical problems — he has had seizures.
If Judge Hogan’s rulings withstand appeals, they would wipe out many of the claims that detainees have made since Boumediene — challenges to transfers, to transfers without first notifying detainees’ lawyers, to a lack of access to medical care and to their lawyers, to torture or abuse or to other living conditions in the various camps at Guantanamo. The orders can be found here and here.
What Boumediene did, according to Judge Hogan, was only to give detainees a constitutional right to challenge their detention, as such, in federal habeas petitions. Although the Court had said at one point in its opinion that it was nullifying the entire provision that Congress had adopted to curb detainees’ challenges, it actually struck down only the limit on filing a habeas claim, without more, the judge concluded.
“Cognizant of the long-standing rule of severability,” the judge wrote, “this Court holds that section 7(a)(2) remains valid and strips it of jurisdiction to hear a detainee’s claims that  ‘relat[e]’ to any aspect of the detention, transfer, treatment, trial, or conditions of confinement.” Citing a 1987 Supreme Court ruling in another case, Hogan noted that the Court had said that courts must refrain from striking down more of a law than is necessary.
The rulings came in the cases of Latif v. Gates (District Court docket 04-1254), involving Adnan Farhan Abdul Latif, and Husayn v. Gates (08-1360), involving Muhammad Husayn.
The difference between Judge Hogan’s orders in those cases and in the unidentified detainee’s case that the Justice Department complained to the Circuit Court about is that he relied, in the conditions of confinement case, on the withdrawal of the Court’s jurisdiction under the MCA, while in the transfer case he relied on the All Writs Act and on a Circuit Court ruling last March in the case of an Algerian detainee, Ahmed Belbacha. The Belbacha ruling (Circuit docket 07-5258) said that, despite Congress’ action in the MCA, District judges have power under the All Writs Act to at least temporarily bar transfers while they hear challenges to detention in habeas cases. Judge Hogan indicated in the unnamed detainee transfer case that he was bound by the Belbacha decision.
For reasons that are not clear, the Department did not ask the Circuit Court to reconsider en banc the Belbacha ruling, and did not seek to appeal it to the Supreme Court. However, it has since filed a new appeal to the Circuit Court in that very case (Circuit docket 08-5350), challenging another judge’s June 13 order — the day after Boumediene was decided — temporarily barring a transfer of Belbacha to Algeria, where he fears torture.
