By Mike Dorf
On Tuesday, the DC Circuit denied en banc review in Abdah v. Obama. An earlier ruling (in Kiyemba v. Obama) had held that a Gitmo detainee has no right to notice that he is about to be transferred to a place--such as Bagram Airbase in Afghanistan--where it may be impossible to obtain habeas relief because the Congressional judgment to provide for no statutory jurisdiction is valid under the Suspension Clause. In a dissent from the denial of en banc review, Judge Griffith (joined by Judges Rogers and Tatel) argued that detainees do in fact have such a right to notice of the impending transfer. Judge Griffith reasons in two key steps: 1) Boumediene v. Bush recognizes a right of detainees to all of the protections of habeas circa 1789; and 2) under English common law as received by the colonies circa 1789, the writ included the right to notice of, and thus an opportunity to protest against, such a transfer.
Indeed, in a nice piece of legal jujitsu, Judge Griffith relies on Justice Scalia's dissent in Boumediene: Scalia wrote then that the writ should not run to Gitmo because at common law the right against being gaoled beyond the courts' jurisdiction was protected by the right to be protected against being sent to such a place in the first instance, and not by a right to habeas outside the realm. Justice Scalia's ultimate conclusion in Boumediene was rejected by the majority: Boumediene establishes that Gitmo is like Virginia so far as the Suspension Clause is concerned. But because Justice Scalia would say that habeas protects detainees in Virginia against transfer beyond the writ's purview, taking the result in Boumediene as given, a proposed transfer from Gitmo to someplace beyond the writ's cognizance entitles the detainee to challenge the transfer (and the underlying custody) in a federal court, even under the Scali view. Or at least so say the DC Circuit dissenters.
Given the premises, I think there is much to what Judge Griffith says--and were his view to become the law, that would protect detainees currently at Gitmo against having their habeas rights stripped away by the government's simply shipping them somewhere beyond the scope of the writ. But Judge Griffith does not say, nor has the Supreme Court yet said, whether the writ runs to Bagram. The Obama Administration has said it does not, angering many people who thought it would opt for a more substantial change of course from the Bush Administration. Thus, even if Judge Griffith's view were accepted by a majority of the Supreme Court, that would not prevent an Administration decision to hold detainees apprehended overseas at Bagram or some other place beyond the reach of the writ in the first place--unless the Court were to extend Boumediene to such places.
For my money, there is a very difficult policy problem here. On the one hand, it is simply not practical for the government to afford access to habeas or its equivalent for every person detained during wartime, at least where the war leads to the capture of thousands of detainees. On the other hand, there is something profoundly troubling about the executive branch of the government being able to decide to evade judicial review of its detention decisions by choosing where to hold detainees. A satisfactory solution--or compromise policy--should not create incentives for the government to hold detainees close to an active theater of war simply as a means of evading judicial review. Yet that is the position taken by the Obama Administration: habeas runs to Gitmo but not Bagram, even when the decision to house a prisoner in one locale or the other is being made entirely with an eye towards the consequences for judicial review of detention decisions.
It is not obvious to me that the site of custody (as opposed to the site where a person first was taken captive by the U.S. or its allies) should be relevant to the determination of whether there is a constitutional right to habeas in any given case--although I suppose that there are at least historical grounds for thinking that it should be. If so, I would count it a step forward for the doctrine for the courts to ask why someone is being held in a particular site. If the government cannot advance legitimate, non-litigation-related reasons for a particular site, then it might be suitable to hold that the writ runs to that site.