« Religion Clause Issues in the Strangest Places | Main | What is the Opposite of "Parochial?" »

Friday, May 14, 2010

Judge Brown's Sleight-of-Hand in Al-Bihani--And Why It Matters...

It can be very difficult these days to follow all of the developments in the Guantanamo litigation, even for those of us who are fairly active in it.  Thus, I thought I'd take a minute to blog about the Government's very significant brief in response to the Petition for Rehearing En Banc in al-Bihani v. Obama, filed yesterday in the D.C. Circuit (and discussed by Lyle Denniston @ SCOTUSblog here).  [Full disclosure: I co-authored an amicus brief in support of rehearing en banc.]

The Government's brief is telling in two distinct respects.  First, as Lyle notes, the Government all-but concedes the principal ground on which al-Bihani is seeking rehearing en banc -- i.e., that the panel's sweeping holding that detention authority under the September 2001 Authorization for Use of Military Force (AUMF) is not informed (or constrained) by the laws of war is thoroughly inconsistent with the Supreme Court's analysis in Hamdi (and, to a lesser extent, Hamdan). 

But the second telling feature of the Government's brief, which is perhaps even more significant, is its full-bore defense of the al-Bihani panel's procedural discussion (which held, in effect, that Guantanamo detainees are entitled to exceedingly few procedural protections in their habeas cases notwithstanding Boumediene). In particular, at page 13 of their brief (page 17 of the PDF), the Government notes that "The panel simply recognized – correctly – that the habeas review mandated by Boumediene need not match the procedures that apply to habeas challenges to criminal convictions."

This statement is an entirely fair summary of what the al-Bihani majority actually held. But, like the panel opinion itself, it is an incredibly deceptive reading of Boumediene. Here's the relevant passage from al-Bihani, with citations omitted (and emphasis added):

Habeas review for Guantanamo detainees need not match the procedures developed by Congress and the courts specifically for habeas challenges to criminal convictions. Boumediene’s holding explicitly stated that habeas procedures for detainees "need not resemble a criminal trial." It instead invited ‘‘innovation’’ of habeas procedure by lower courts, granting leeway for ‘‘[c]ertain accommodations [to] be made to reduce the burden habeas corpus proceedings will place on the military.’’ Boumediene’s holding therefore places Al–Bihani’s procedural argument on shaky ground. The Suspension Clause protects only the fundamental character of habeas proceedings, and any argument equating that fundamental character with all the accoutrements of habeas for domestic criminal defendants is highly suspect.

Do you see the sleight-of-hand? In the quoted passage, Boumediene was referring to the procedural protections that attach to criminal trials themselves, not to "habeas challenges to criminal convictions." Indeed, the procedural protections that attach to post-conviction proceedings (especially non-capital cases) pale in comparison to those that the Constitution and various statutes require in criminal trials, especially these days. So, the al-Bihani majority conflated criminal trials with criminal (post-conviction) habeas, suggesting that, because Boumediene held that Guantanamo habeas petitions need not have the protections attendant to criminal trials, they also need not have the (far lesser) protections attendant to post-conviction habeas petitions.

More than that, though, a closer read of Boumediene suggests that the opposite should be true--i.e., that more process is due in the context of Guantanamo habeas than normal post-conviction habeas. Consider this (long) passage from Justice Kennedy's opinion:

[W]here relief is sought from a sentence that resulted from the judgment of a court of record, . . . considerable deference is owed to the court that ordered confinement. Likewise in those cases the prisoner should exhaust adequate alternative remedies before filing for the writ in federal court. Both aspects of federal habeas corpus review are justified because it can be assumed that, in the usual course, a court of record provides defendants with a fair, adversary proceeding. In cases involving state convictions this framework also respects federalism; and in federal cases it has added justification because the prisoner already has had a chance to seek review of his conviction in a federal forum through a direct appeal. 

The present cases fall outside these categories, however; for here the detention is by executive order. Where a person is detained by executive order, rather than, say, after being tried and convicted in a court, the need for collateral review is most pressing. A criminal conviction in the usual course occurs after a judicial hearing before a tribunal disinterested in the outcome and committed to procedures designed to ensure its own independence. These dynamics are not inherent in executive detention orders or executive review procedures. In this context the need for habeas corpus is more urgent. The intended duration of the detention and the reasons for it bear upon the precise scope of the inquiry. Habeas corpus proceedings need not resemble a criminal trial, even when the detention is by executive order. But the writ must be effective. The habeas court must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive’s power to detain.

In short, then, Boumediene contemplated more process for the Guantanamo detainees than typical post-conviction cases, not less. Thus, the baseline of the D.C. Circuit's analysis in al-Bihani is fundamentally flawed, in ways that could deeply prejudice current and future cases. What's worse, whether the panel's misreading of Boumediene was accidental or deliberate, the Government compounds the error by invoking it as a reason for denying rehearing en banc.

There are still hard questions in these cases about how much process is due. But al-Bihani badly misread Hamdi on the relevance vel non of the laws of war, and misread Boumediene even more fundamentally on the underlying baseline for assessing the appropriate procedural protections. It's baffling to me that the Government would (1) concede the former, but not the latter; and (2) still oppose rehearing en banc anyway.

Posted by Steve Vladeck on May 14, 2010 at 10:07 AM in Constitutional thoughts, Criminal Law, Current Affairs, Steve Vladeck | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Judge Brown's Sleight-of-Hand in Al-Bihani--And Why It Matters...:


why aren't you grading our exams?

Posted by: guy | May 15, 2010 1:46:27 PM

Hamdi and Padilla were US citizens held by the military at Charleston, SC. Padilla in the Second Circuit and Hamdi in the Fourth Circuit petitioned the court for habeas claiming that 18 USC 4001(a), which states that a US citizen may not be detained except pursuant to an act of Congress, requires an explicit law passed by Congress stating in so many words that US citizens may be detained in the current conflict. The government argued that the President has a constitutional authority under Article II to take the surrender of enemy soldiers and to hold them as prisoners of war. The Second Circuit found with Padilla that an explicit act of Congress was needed while the Fourth Circuit found against Hamdi that the President had an inherent power to hold prisoners of war. This set up a circuit split. The two cases were heard on the same day and decided on the same day. The merits of both cases were determined in the Hamdi decision (because the Padilla case was dismissed as improperly filed).

The Court found that the AUMF passed by Congress met the statutory requirement for "an act of Congress". When military force is authorized, taking prisoners is an inescapable consequence of the use of force. However, since Congress had not at that time passed any laws determining how prisoners would be treated, the question remained as to what was the legal framework for holding prisoners. If they accepted the President's claim that prisoners were detained based on an inherent Article II power, then there would be no basis for legal review of the detention. So the Court ruled instead that the basis for the President's inherent authority to detain prisoners derived from the Laws of War, the international common law of armed conflict. Like any other type of common law, this was subject to court review. In Hamdan, in particular, the court subsequently found that since Congress had still not passed any law concerning the detention of prisoners, and so that detention was still based on the authority provided to the military under the Laws of War, then that detention was also subject to the constraints provided by international law including (at minimum) those in Common Article 3 of the Geneva Conventions.

However, Congress then passed the DTA and MCA, providing authorization to take and hold prisoners of war and standards to determine who should be detained. Once Congress provided explicit statutory rules, then the original calculus of Hamdi and Hamdan became obsolete. Now detention was based on statutory law and not international common law.

In the context of the bizarre arguments made by Bihani, it seems more reasonable to interpret the DC Circuit comments as saying that once Congress and the President have exercised their Constitutional prerogative to translate US international obligations into clear statutory language, it is not appropriate for the courts to entertain "off the wall" interpretations of ambiguous international treaties in arguments that claim the statutes are inconsistent with the treaties. This suggests the reverse Charming Betsy rule: Ambiguous international law should not be construed to be inconsistent with clear language of domestic statute when there is an interpretation of international law that conforms to the statute.

As to the metaphysical question of whether Justice Kennedy's opinion suggests that the glass would be better if it were half full rather than half empty, this is an issue that would be better raised in some other case where it actually matters. Al-Bihani admits to being a soldier in the 055 Brigade of the Taliban army. That makes him an enemy combatant subject to detention as a prisoner of war for the duration of hostilities. This one fact is not disputed, and it is the only fact that you need to determine the question. Everything else is a matter of law which is pretty much the same no matter what procedures the DC Circuit adopts to evaluate evidence in the habeas cases. You can apply some more process, a lot more process, or an insane amount of process to the case, but once this single uncontested fact is established the outcome is certain.

Posted by: Howard Gilbert | May 14, 2010 8:38:27 PM

The comments to this entry are closed.