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Friday, June 13, 2008

Jurisdiction, Merits, and the Detainee Cases

I have read Munaf, but not Boumediene in full, so for the moment I leave detailed commentary to others. I wanted to focus on a small aspect of the analysis in both cases: The Court finally seemed to separate the jurisdictional questions of whether a federal court can assert jurisdiction and consider a habeas petition from the substantive question of whether the petitioner is, in fact, in custody in violation of the Constitution and laws of the United States and is entitled to the relief sought (typically, release from custody).

This split is the essence of Munaf. The Court held that the district courts could assert jurisdiction (the basic, root power to hear, consider, and decide the issues in the case) over the petitions and decide whether or not to grant relief. It then decided that the petitions "do not state grounds upon which habeas relief can be granted" (slip at 15), clearly merits-based language. Similarly, as Marty has noted, Boumediene Court addressed only the issue of jurisdiction, concluding that Gitmo detainees could file and have the court consider habeas petitions, leaving for the lower courts to consider in the first instance what legal rights those detainees possess and whether they state a claim for relief.

Is this a big deal, since, at the end of the day, Munaf and Omar will be turned over to Iraqi authorities and possibly (likely?) tortured? Deborah Pearlstein thinks so and I would agree. The habeas debate has been another example of the inappropriate entanglement of jurisdiction and substantive merits, the separation of which has been an ongoing scholarly focus. Much of the debate and commentary about Gitmo and War-on-Terror detentions has failed to focus on the question of underlying constitutional and legal rights, focusing instead on the shorthand question of whether detainees are "entitled to habeas." But habeas simply is a form of jurisdictional grant, a power vested in the court to hear appropriate cases alleging detention in violation of the law and to grant appropriate relief in appropriate cases.

But habeas has no real content without the underlying substantive rights that protect individuals from detention. And habeas has no obvious limits without considering those underlying substantive rights. To say "detainees are not entitled to habeas" does not get us anywhere. The habeas power necessarily rests with a court (absent suspension) to hear cases of unlawful detention. Whether the writ (i.e., relief) should be granted depends only on whether the petitioner possesses an underlying substantive right that renders the detention unlawful.

Maybe this is formalism at work. And Steve may be right that it was odd, and perhaps unnecessary, for the Court to reach the merits as to either Munaf or Omar. But I am glad to see that, after these cases, the debate and commentary can focus on the appropriate question of legal rights and not on questions of jurisdiction.

Posted by Howard Wasserman on June 13, 2008 at 12:58 PM | Permalink


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But why is there no cause of action here?

It should be rather clear that everyone on his thread has been abstrcting from Munaf to broader principles and "the next case". I am not claiming that citizens lack habeas rights abroad, but thanks for playing.

Posted by: Oliphant | Jun 15, 2008 5:15:26 PM

Oliphant -- True. But why is there no cause of action here?

Posted by: Steve Vladeck | Jun 15, 2008 2:01:55 PM

it strikes me that statutes conflating the existence of a cause of action with the existence of jurisdiction only muddy the waters further...

Yes. But if there is jurisdiction and no cause of action, then, regardless of the language in your brief, you have a case about nothing. Not so silly, right?

Posted by: Oliphant | Jun 14, 2008 8:34:29 PM


I agree. And we already saw some of this in McCain's reaction to the case, railing about how the courts are going to be flooded with habeas claims about food and cable television. See also Rick's new post for similar hyperbole from Lindsay Graham.


Interesting take on it. I read the availability of relief as a merits issue rather than a threshold, but you may be right. But the basic point is that the focus is explicitly on these threshold questions, labeled as such.

Posted by: Howard Wasserman | Jun 14, 2008 1:18:36 PM

The key idea in Boumediene is that Habeas is a power of the court that the court uses to protect the rights of the individual, rather than an individual right in itself. The court is careful to distinguish the "privilege" of Habeas from, for example, the "right" of due process. Through Habeas, the court is given the power to inquire into the legality of the detention. A non-resident alien with no constitutional rights may yet have the privilege of Habeas to challenge his detention on statutory grounds.

In other legal actions the threshold questions involve jurisdiction, standing, and controversy. In Habeas, some of these things can be assumed. The detention of the individual by executive agents falling within the power of the court is the first threshold question. Detention implies standing and provides a clear controversy. The person detained does not need to find standing elsewhere in a statutory grant or a constitutional right. Standing or jurisdiction cannot be removed by Congress absent a proper exercise of the Suspension power. However, since Habeas is a power of the court and not a right of the petitioner, there is a new threshold question that applies to power and not rights or law. Habeas does not apply when the court does not have a power to grant relief by ordering release.

Reading Munaf with the benefit of the historical and legal analysis provided in Boumediene, the court ruled that the first threshold was met (Munaf was held by a unit of the military under the exclusive command of the US government and therefore within the power of the court) but missed the second threshold question (Munaf was being held within the authority of the Central Criminal Court of Iraq and so a US court could not order his release). In this analysis the "merit" question of whether the detention of Munaf was legal or illegal under US law was not addressed.

Boumediene does not hold that the Constitution follows the flag, if by that you mean the Bill of Rights. It does hold that where the President has authority as Commander in Chief to issue orders, and the Congress has power to make regulations for the armed forces and concerning captures, then the Court also has the power to inquire through Habeas about the lawfulness of a detention. However, where a detention is not blocked by statue, whether the detainee then has any recourse to Fifth Amendment claims remains an unresolved question that the court has now remanded to the trial courts to determine. (Although the DC Circuit has ruled that they do not have such rights, and Boumediene did not explicitly overturn that part of the DC Circuit decision, so it may still be binding on the lower courts of that Circuit.)

Posted by: HowardGilbert | Jun 14, 2008 11:05:24 AM

Agreed. I was not necessarily trying to lay all the blame on the courts and none on Congress. The burden is on both to write and construe laws in a way that separates the two.

Posted by: Howard Wasserman | Jun 14, 2008 8:11:28 AM

Believe me, I don't disagree. I just wonder if this is a case where some of the fault for the confusion is Congress's, as opposed to the Court's... it strikes me that statutes conflating the existence of a cause of action with the existence of jurisdiction only muddy the waters further...

Posted by: Steve Vladeck | Jun 13, 2008 5:19:27 PM

Steve: You are absolutely right, but I keep hoping for some effort to define things as one or the other with some precision. And if these cases reflect a step towards the Court identifying those facts that should be jurisdictional and those that go to the right or relief sought, terrific. To use your example, I would want to call (and hope that courts would call) the "in custody" fact jurisdictional, going as it does to the identity of a proper petitioner. Now, once we have a person in custody, we can get to whether he has stated a claim for being in custody in violation of laws.

Again, formalism on parade. But I think some definitional precision is a good thing in law.

Posted by: Howard Wasserman | Jun 13, 2008 4:10:08 PM

Howard -- As you know, I agree with you. But I wonder if habeas is a special case, because the federal habeas statute merges the existence of a cause of action with jurisdiction (something that is otherwise very rare in federal question land). If a detainee does not allege that he is in custody in violation of federal law, he not only fails to state a claim, but he fails to satisfy 2241's jurisdictional prerequisites, doesn't he?

As for Oliphant, that's just silly. Unless you disagree with Kennedy about the kind of claims that cannot be brought before the D.C. Circuit on DTA review. And, much to my continued surprise, it was the government, not Justice Kennedy, who fought so bitterly to constrain the scope of DTA review in the D.C. Circuit...

Posted by: Steve Vladeck | Jun 13, 2008 2:56:01 PM

This post illustrates, I think, the accuracy of CJ Roberts' dissent. This has been a battle about nothing.

Posted by: Oliphant | Jun 13, 2008 2:02:34 PM

Excellent post, Howard. One note: the battle to cut off access to habeas relief across the board by resort to jurisdiction is another symptom of the rightwing's hostility to the courts. There are many on the right who believe that once you grant the courts jurisdiction, they are bound to muck things up. To those who view courts and litigation that skeptically, once you conclude that few individuals are likely to obtain relief on the merits, it makes sense from a cost-benefit analysis to come up with a jurisdictional reason to cut off access for everyone.

Posted by: Andrew Siegel | Jun 13, 2008 1:47:06 PM

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