Tuesday, December 15, 2009
A Quick Thought on Thomson, Padilla, and Ex parte Endo
With today's news that some large percentage of the individuals still detained at Guantanamo are going to be relocated to a federal prison in Thomson, Illinois comes the obvious (if geeky) jurisdictional question: Does this mean that all of the habeas petitions in these cases currently pending before the D.C. district court will have to be be transferred to the U.S. District Court for the Northern District of Illinois (and then, presumably, the Seventh Circuit)? [See 28 U.S.C. 93(a)(2) -- Thomson is in Carroll County.] If so, that's an awful lot of heavy lifting and wasted effort, given how much time and energy the D.D.C. judges have devoted to these cases in the past eighteen months.
The answer, I think, is no, even in light of the Supreme Court's 2004 decision in Rumsfeld v. Padilla. There, the Court held that a habeas petitioner must name his "immediate custodian" as the respondent, and that the district court must have personal jurisdiction over _that_ official in order to have jurisdiction over the petition. [The rule doesn't apply in cases in which no district court has personal jurisdiction over the immediate custodian, which is how the Guantanamo cases ended up in D.D.C. in the first place.]
So, it seems clear that, were a Thomson detainee to file a new habeas petition, it would have to be filed in the Northern District of Illinois. But what about pending petitions? The Court in Ex parte Endo (the companion case to Korematsu) held that transfer outside the district cannot defeat jurisdiction so long as the district continues to have jurisdiction so long as _someone_ "in whose custody [the petitioner is] remains within the district." As Chief Justice Rehnquist more succinctly described in Padilla, "Endo
stands for the important but limited proposition that when the
Government moves a habeas petitioner after she properly files a
petition naming her immediate custodian, the District Court retains
jurisdiction and may direct the writ to any respondent within its
jurisdiction who has legal authority to effectuate the prisoner's
All this means that the pending cases can--and will--remain in D.D.C. But it also suggests that there is no barrier to a detainee filing a new petition (perhaps raising a conditions of confinement claim) in a jurisdiction that might be more receptive to the argument that the petitioner has some modicum of constitutional rights (an argument rejected by the D.C. Circuit in Kiyemba I), especially once the petitioner is physically present within the United States.
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