September 29, 2008

Boumediene and 28 USC 2241(e)(2)

Here is a government opposition to a motion in Husayn v. Bush for medical records, etc (D.D.C. 08-mc-442, dkt. no. 443; 08-cv-1360, dkt. no. 28):

See especially the argument at 2-8 that the courts have no jurisdiction to consider any detainee motion outside the scope of "core habeas", which was adopted by Judge Hogan in a recent opinion on a similar motion:

And here are some thoughts of mine as to why that argument is wrong...

1) An injunction is equitable relief, and to restrict such relief in advance of the particular facts of a given case is inherently inequitable.

2) The Suspension Clause grants Congress authority to suspend habeas, not to suspend the jurisdiction of the courts pursuant to Art. III § 2 in "all cases, in law and equity, [etc.]" The "original meaning" of equity is just as significant here as that of habeas, and distinct from the common law (law AND equity).

3) Congress might create a separate court to hear matters of equity similar to the English Court of Chancery, but that's never been the approach in the federal courts, and only a few states do so, notably Delaware. See Thomas O. Main, Traditional Equity and Contemporary Procedure, 78 Wash. L. Rev. 429 (2003), available at SSRN:

It was manifestly not the intent of the MCA to do that, and for its part, the government now argues that the D.C. Circuit DTA / MCA process is superfluous.

4) I take it that Justice Kennedy meant exactly what he said about both 28 USC § 2241(e)(1) **AND** (e)(2).
"We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U.S.C.A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court." Boumediene at 2.

"Indeed, common-law habeas corpus was, above all, an adaptable remedy. Its precise application and scope changed depending upon the circumstances. See 3 Blackstone *131 (describing habeas as "the great and efficacious writ, in all manner of illegal confinement"); see also Schlup v. Delo, 513 U.S. 298, 319 (1995) (Habeas "is, at its core, an equitable remedy"); Jones v. Cunningham, 371 U.S. 236, 243 (1963) (Habeas is not "a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose")." B. at 50-51.

5)(a) The standard of review going forward must provide "meaningful opportunity" while guarding against "real danger". It's trivial to note that some defendants are too dangerous to be granted bail for example, or that some adults are incompetent to act in an adult capacity for another; the courts adjudicate such matters all the time. Equally, the only process that would be meaningful to an innocent or a torture victim would be one that vindicates them against their accusers and tormentors.
"We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to "the erroneous application or interpretation" of relevant law. St. Cyr, 533 U.S., at 302. And the habeas court must have the power to order the conditional release of an individual unlawfully detained -- though release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted. [Ex parte Bollman, 4 Cranch 75, 136 (1807).]" B. at 50.

"The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security." B. at 68.

5)(b) Since "the status of these detainees is a matter of dispute", it cannot be the case that there is any basis for the court to assume in advance of the facts that any of the detainees are subject to ANY provision of 28 USC § 2241(e), especially when the Supreme court has already held that the whole of 2241(e) is unconstitutional without qualification and stated explicitly that "[t]hese and the other remaining questions are within the expertise and competence of the District Court to address in the first instance."

There was no need for the Supreme Court to consider the reach of the writ further because that is a task for the lower courts to address "consistent with this opinion."
"The [Suspension] Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account." B. at 15.

"[W]e conclude that at least three factors are relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ.

"Applying this framework, we note at the onset that the status of these detainees is a matter of dispute." B. at 36-37.

"We make no attempt to anticipate all of the evidentiary and access-to-counsel issues that will arise during the course of the detainees' habeas corpus proceedings. * * * These and the other remaining questions are within the expertise and competence of the District Court to address in the first instance." B. at 67-68.

"It bears repeating that our opinion does not address the content of the law that governs petitioners' detention. That is a matter yet to be determined. We hold that petitioners may invoke the fundamental procedural protections of habeas corpus. The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.

"The determination by the Court of Appeals that the Suspension Clause and its protections are inapplicable to petitioners was in error. The judgment of the Court of Appeals is reversed. The cases are remanded to the Court of Appeals with instructions that it remand the cases to the District Court for proceedings consistent with this opinion." B. at 69-70.

6) The detainees retain their ordinary civil capacities absent a valid court order to the contrary: they are not convicted criminals. The government has made much of their right to consent to counsel, and it's difficult to see where they wouldn't equally have the right to informed consent regarding medical care.

7) The imposition of legal penalties by legislative fiat is attainder.
"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

"No bill of attainder or ex post facto Law shall be passed."
Const. Art. I § 9, cl. 2-3.

8) It seems to me there are solid grounds to move the Supreme Court for an expedited clarification re 28 USC § 2241(e)(2) along these lines right now.

No comments: