Convictions: Slate's blog on legal issues

Habeas Petitions in the Local D.C. Courts?

In an interesting new article in the Green Bag, Stephen Vladeck offers a creative solution to what he (and Justice Scalia, in INS v. St. Cyr) refer to as the "one-way ratchet" of habeas corpus.

To summarize Vladeck's point in the briefest of terms: He observes that the fight over congressional tightening of statutory habeas relief is complicated by federal prisoners's inability to pursue the common law writ of habeas corpus in federal district court or state courts:

Taking Bollman at face value, the common-law writ of habeas corpus is a remedy that the Article III courts are constitutionally powerless to provide. Taking Tarble at face value, such a remedy is also one that state courts are constitutionally powerless to provide against federal officers.

Vladeck's solution: allow the local D.C. courts to entertain habeas petitions. They aren't Article III courts subject to Bollman, yet they aren't state courts subject to Tarble. To do so, he notes, would require the rescission of D.C. Code Section 16-1901(b), which prohibits the filing of petitions for writs of habeas corpus against federal officers in the local D.C. courts.

But is Section 16-1901(b) really the only roadblock? Unless I'm mistaken, Vladeck completely ignores the problem of assigning habes petition jurisdiction to an Article I tribunal. In Palmore v. United States (1973), the Supreme Court explained that the local D.C. courts were Article I courts, not Article III courts.  As the court recognized in Northern Pipeline Construction v. Marathon Pipe Line Co. (1982), Congress cannot assign to an Article I court jurisdiction over matters that are "inherently ... judicial." 

I am no expert in the nuances of this corner of the law, but my initial reaction is that habeas corpus proceedings are nothing if not "inherently judicial." As the court recognized in Rasul, habeas corpus is “a writ antecedent to statute … throwing its root deep into the genius of our common law.” Indeed, the Constitution's protection of the writ of habeas corpus against improper executive or legislative interference seems to make all the clearer the writ's roots in the courts, and not in legislative or executive tribunals.

Perhaps those more knowledgable on the point can correct me: Have federal habeas petitions ever been the province of executive or legislative tribunals?

Update (6/14/08):  Steve Vladeck let me know that the next draft of his paper (not yet published on SSRN) does does with the Article I courts issue.

The Guantanamo Cases—Suppose the Court Gives Congress Advice ...

More Hypocrisy at Guantanamo

A guest post from Jonathan Hafetz at the Brennan Center: 

Even as criticism of Guantánamo mounts, Guantánamo’s underlying hypocrisy endures. That hypocrisy manifested itself again last week in a little-noticed decision by Washington, D.C. District Judge John D. Bates. The decision involves Abdul Hamid Abdul Salam al-Ghizzawi, a Libyan citizen transferred to the base in 2002 after, he alleges, Afghan warlords sold him for bounty. Like the hundreds of other Guantánamo detainees held as “enemy combatants,” al-Ghizzawi has never received a hearing on his habeas corpus application. In a recent filing, he complained that the government was refusing to provide him with adequate medical care and had denied him treatment for a severe liver condition that was jeopardizing his health.

Judge Bates denied relief, finding the treatment al-Ghizzawi had received was adequate. But his reasoning highlights the fundamental injustice at the heart of Guantánamo: Bates suggested that al-Ghizzawi’s claim should be analyzed under the same legal standard applied to convicted prisoners under the Eighth Amendment, which prohibits “cruel and unusual punishment.” That requires a prisoner to establish that government officials were “deliberately indifferent” to his “serious medical needs”—in other words, that the officials “knowingly and unreasonably disregarded an objectively intolerable risk of harm to the prisoner’s health or safety.” Negligence does not suffice. This heightened standard is justified because convicted prisoners are being punished for crimes and cannot expect the same level of care as those living in the world outside. But that justification falls apart at Guantánamo, where hundreds of detainees, like al-Ghizzawi, have been jailed for years without even being charged with any wrongdoing, let alone convicted of any offense.

Bates’ opinion ignores the underlying injustice that pervades al-Ghizzawi’s case and Guantánamo generally: The United States has imprisoned him for more than five years without charge or a fair hearing. Worse, after the Defense Department’s status review tribunal initially found al-Ghizzawi was not an “enemy combatant,” the Defense Department ordered a “do-over.” (Where, lo and behold, the tribunal found al-Ghizzawi an “enemy combatant.”) So, if, al-Ghizzawi is distrustful of Guantánamo’s medical staff, as Bates noted, he has good reason: He knows the status review tribunals are a sham and the results rigged.  

Bates treated al-Ghizzawi like any other prisoner in any American jail who has been afforded his right to a trial under the U.S. Constitution. What Bates ignored, and what others too often forget, is that Guantánamo detainees have never had their day in court. 

Curious About Munaf

No answers to questions by Eric and Deborah, but more questions about Munaf: There's something curious about the United States' position in Munaf v. Geren, on which the Supreme Court will hear oral argument Tuesday morning.

Petitioning for a writ of habeas are Mohammad Munaf and Shawqi Ahmad Omar, both U.S. citizens who also hold citizenship in a second country and both of whom now are detained in Iraq. The U.S. brief filed in advance of oral argument cites as the "threshold jurisdictional question" in the case whether

United States courts lack jurisdiction to review the detention of individuals held broad pursuant to international authority, including individuals held by United States forces acting as part of a multinational force.

Interesting question, particularly given that the 1949 per curiam judgment in Hirota. There, as I discussed a while back, out of nine justices agreed denied habeas petitions challenging convictions issued by the International Military Tribunal for the Far East, the Tokyo-based counterpart to the Nuremberg trials. The court in Hirota deemed the IMTFE a "military tribunal" established by U.S. Gen. Douglas MacArthur "as the agent of the Allied Powers," so that "the courts of the United States have no power or authority to review, to affirm, set aside, or annul the judgments and sentences imposed." (p. 17)

But here's what is curious: In Munaf the U.S. government contends that U.S. troops that are detaining petitioners do not hold them "'in custody under or by color of the authority of the United States,' " as subsection (c)(1) of the federal habeas statute requires, for the reason that those troops are detaining petitioners "pursuant to international authority"; that is, the coalition known as Multi-National Force (MNF). (pp. 17-18)

The claim suggests a break in the U.S. chain of command—a cession of U.S. sovereignty—that's at odds both with the staunchly sovereigntist stance of this administration and with extrajudicial statements that administration officials have made. To cite just two examples, on June 5, 2004, Colin Powell, then the United States' Secretary of State, wrote in a letter to Lauro L. Baja Jr., then president of the U.N. Security Council: "[T]he MNF must continue to function under a framework that affords the force and its personnel the status that they need to accomplish their mission, and in which the contributing states have responsibility for exercising jurisdiction over their personnel. ... The existing framework governing these matters is sufficient for these purposes." Likewise, in a July 1, 2004, U.S. Department of Defense briefing, Brigadier General David Rodriguez, deputy director for operations, J-3, Joint Staff, said with regard to the MNF:

But in every case, all our allies have a chain of command that goes up to their national leaders, just like we do.

Though the clash in claims may not stop the government as a matter of law, I am curious to see, should it be noted in oral argument, whether the government reconciles the clash as a matter of persuasive advocacy.

(Cross-posted at IntLawGrrls blog.)