Thursday, January 13, 2011

Habeas Fundamentals

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.


Hashim said...

I'm not so sure that Griffith's jiu jitsu works. I haven't gone back and read Scalia's dissent or the cases cited therein, but I'd be very surprised if the common-law notice rule applied to transfers *for release* in a foreign forum as opposed to transfers *for continued detention* beyond the scope of the writ. The latter was necessary to bar an end-run around the writ; the former wasn't necessary because release was itself the remedy in habeas and I highly doubt that there was a historical right to complain about the forum of release.

Of course, the GITMO detainees are now trying to invent such a right and, if they succeed, then the end-run concern applies: however, I highly doubt Scalia would agree w/ such a right and so the end-run concern would not apply.

Michael C. Dorf said...


I must not have been as clear as I ought to have been. I read Judge Griffith to be saying that there's a right to notice of a transfer for continued detention. That's clear (to me) from the DC Cir case which he proposes to re-examine--Kiyemba v. Obama. There, the Uighur detainees at Gitmo argued that they had a right to contest "their transfer to any country where they are likely to be subjected to further detention or to torture." (Torture is a form of detention of habeas purposes.) I agree that the common-law right cannot readily be extended to a complaint about transfer for release.

Hashim said...

I guess I'm still somewhat skeptical. I'd assumed the common-law notice right Scalia was citing covered (1) transfer to foreign forums where the detention was still by the *original sovereign.* I'd have been surprised if that notice right also extended to (2) transfer to foreign forums where the detention was instead by a *foreign sovereign,* or (3) transfer to foreign forums where either the original or foreign sovereign might engage in *torture after the original detention had ended* (indeed, I'd never even heard of the notion that torture was a form of detention that gave rise to habeas relief). But I'm not especially well versed in this historical practice, so my gut reaction might well be wrong.

Michael C. Dorf said...

Let's assume that you're right about the limitations of Justice Scalia's position on the common-law right regarding transfer. That might make his analysis immune to the jujitsu for a case like the Uighurs, but it would still work with respect to a transfer from Gitmo to Bagram under U.S. auspices the whole time, (with or without torture) which is the issue that I was mostly focusing on.

Sam Rickless said...

Hi Michael,

Perceptive and incisive as usual. I haven't looked into the legal details here, but I'd like to comment briefly on the policy issue and its moral underpinnings. You suggest at the end of your post that a compromise position according to which the government would be able to move a prisoner out of the reach of HC if it could provide a legitimate, non-litigation-related reason for doing so. I suspect that this won't work. The practical problem is that government lawyers are very clever. One would think that they could come up with (i.e., fabricate) all sorts of "legitimate" reasons to move a prisoner. And if the concept of legitimacy at issue here were even a close cousin of the concept of legitimacy at issue in the application of the rational basis test, then one would think that the rule would present very little of an obstacle to the removal of prisoners for what would really be litigation-related reasons. To avoid this problem, I would prefer a rule stating that the removal of prisoners from HC-covered areas to non-HC-covered areas will not be justified unless it is at the very least substantially related to an important government interest. Military-exigency-related exceptions could be made to the need for judicial approval ahead of removal. But removal in such circumstances would still need to be justified in court after the fact.

The point is that it shouldn't be either too easy or too difficult for the government to order removal of prisoners from HC-covered-areas to non-HC-covered areas. If it's too easy, then HC becomes meaningless. In those cases in which it were most needed, the HC rule would be useless. If it's too difficult, then wars could very well be lost. I think something like an intermediate scrutiny rule with exigency-related exceptions to the need for before-the-fact judicial scrutiny would do the trick.

Publius the Clown said...

Prof. Dorf, I haven't followed these cases that closely, but doesn't part of the argument concerning the eligibility of prisoners held at Bagram for habeas relief pertain to territorial jurisdiction? That is, Rasul v. Bush held that US federal courts have territorial jurisdiction over Guantanamo Bay because the US has "plenary and exclusive jurisdiction" there. Boumediene then held, as a separate matter, that prisoners held at Gitmo have habeas rights and that the procedures that the government was then offering them to challenge the legality of their detentions were therefore constitutionally inadequate.

So before we determine if and when detainees have habeas rights at Bagram, don't we first need to determine whether US federal courts have territorial jurisdiction over Bagram?

Michael C. Dorf said...

Publius: As I understand the modern framework for territorial jurisdiction in these cases, if the immediate custodian is outside of the jurisdiction of any district court (as would be true for Bagram and as is true for Gitmo), the petitioner is permitted to go up the chain of command to sue someone who is within a federal district court's jurisdiction (typically in Virginia or the District of Columbia). That is why so many of these cases name either the Sec'y of Defense or the President as the defendant. The "plenary and exclusive jurisdiction" point in Boumediene was relevant to whether Gitmo was the sort of place to which the constitutional right to habeas extended, not to whether there was personal jurisdiction over the defendant.