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Friday, June 13, 2008

Munaf's Mixed Bag: FARRA, the Rule of Non-Inquiry, and the Significance of Belbacha

So, I had been holding off writing about the "other" major Supreme Court decision yesterday in Munaf v. Geren, both because Boumediene understandably came first, and because there are layers of nuance to Munaf (even though it's unanimous) that aren't shared by the much longer, much more divided decision in the Guantanamo cases...

Ultimately, I think Munaf is a bit of a mixed bag. The jurisdictional analysis strikes me as somewhat superficial, though ultimately reaching the correct result. As I've explained elsewhere, I think it is difficult to distinguish Hirota on citizenship grounds (even though that's one of the Chief Justice's two bases for distinction); and I also think it's largely indistinguishable on the chain-of-command argument (unless one really thinks General MacArthur was not answerable to his superiors, an ironic conclusion given the classic charge against the IMTFE that it was more an American institution than a truly international one). But an amicus brief I co-authored set out the doctrinal argument for how Hirota might otherwise be sidestepped, and whether they relied upon it or not, the Court certainly seemed to reach the same conclusion.

The more interesting--and more complicated--part of Munaf has to do with the Court's odd decision(s) on the merits of the two cases, odd both because of its substance, which I'll discuss below the fold, and because the Court didn't even need to reach the merits--Omar came up on a preliminary injunction; Munaf came up from lower courts that dismissed for lack of jurisdiction without reaching the merits... But, reach the merits the majority did, and so the question is, what are we to make of its conclusion that neither petitioner has stated a viable claim?

The answer is trickier than it looks. Consider the cogent comments of Deborah Pearlstein:

The detainees' key claim was that they were likely to face torture if transferred to the Iraqis for prosecution. The court concludes that this claim is "of concern," but that it is primarily up to Congress and the executive to determine how to handle it. Since the State Department has determined here that the Iraqi detention facilities are good enough, the court decides it is in no position to challenge that determination

Souter, Ginsburg, and Breyer concur separately in an attempt to limit the scope of the decision—emphasizing that the court is reserving judgment on whether the outcome would be the same in the "extreme case in which the Executive has determined that a detainee [in U.S. custody] is likely to be tortured but decides to transfer him anyway." But given the briefing the court had before it in this case, including this amicus brief detailing all the reasons why torture was likely in this case, it's a little hard to imagine just what kind of exceptional circumstances they have in mind.

Deborah is right, of course, that the majority used fairly unconvincing language to explain why this is a matter "of concern," but nevertheless not one that is judicially cognizable (under what's usually referred to as the "rule of non-inquiry"). But there's another passage from the Chief Justice's opinion that I found striking. I won't quote it in full here (it's quite long), but it's the spillover passage on pages 25 and 26, along with all of footnote 6.

The gist of the Chief's point in this passage is that the petitioners might have a claim under the "FARR" (Foreign Affairs Reform and Restructuring) Act, but that they had failed to properly raise it below. (FARRA, enacted in 1998, implements the United States' obligations under the UN Convention Against Torture and Other Forms of Cruel, Inhuman, and Degrading Treatment, or "CAT".) [For a short discussion in the context of immigration law, see this old comment of mine, especially pp. 2009-10.] The Chief Justice's footnote raises the two major questions about whether the petitioners would have claims under FARRA, but the Court clearly reserves its answer thereto.

Which brings me to the D.C. Circuit's March decision in Belbacha v. Bush. The court remanded to the district court a FARRA claim by a Guantanamo detainee seeking to enjoin his transfer to Algeria on the ground that he credibly fears being tortured if transferred. Belbacha, then, is the merits issue that Munaf left undecided. Can an individual held as a non-immigration detainee use FARRA, and its implementation of Article 3 of CAT, to prevent his transfer either (a) to another country, as in Belbacha; or (b) from U.S. to Iraqi custody while in Iraq, as in Omar and Munaf?

The answer may ultimately be no (see, for example, this Fourth Circuit decision from last year, holding that FARRA isn't enforceable outside of the immigration context). It may ultimately be yes (which I think it is). The critical point for me, though, is that whatever the answer is, it does not follow from the Supreme Court's decision yesterday in Munaf.

Posted by Steve Vladeck on June 13, 2008 at 11:15 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink

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