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Thursday, June 23, 2011

Omar and the Suspension Clause, Part II

The more I re-read Judge Kavanaugh's majority opinion in Omar v. McHugh (holding that the REAL ID Act does not violate the Suspension Clause to the extent that it bars individuals not in removal proceedings from challenging their transfer to another country on the ground that they credibly fear torture or other forms of mistreatment there), the more baffled I am by the court's "historical" analysis of the Suspension Clause.

As I tried to explain yesterday, the majority's analysis rests on a faulty premise--i.e., that if Congress has the power to repeal the underlying basis for habeas relief (here, the Foreign Affairs Reform and Restructuring Act of 1998, or "FARRA"), it must have the "lesser" power to take away federal habeas jurisdiction to provide such relief (even as it leaves FARRA intact). This view, which recived strongest sanction in Justice Scalia's dissent in St. Cyr, just doesn't hold up to scrutiny (as such, and unsurprisingly, it wasn't invoked by either Scalia or Chief Justice Roberts in their separate dissents in Boumediene).

But back of Judge Kavanaugh's analytical misstep is a deeper (and more troubling) mischaracterization of the role that history (and precedent) should play in Suspension Clause analysis.

Consider this passage from the majority opinion:

In habeas cases, we seek guidance from history “addressing the specific question before us.” Here, the history is clear on the specific question before us. Historically, a would-be transferee such as Omar has possessed no right to judicial review of conditions the transferee might face in another country. As the Court said in Munaf: “Habeas corpus has been held not to be a valid means of inquiry into the treatment the relator is anticipated to receive in the requesting state.” Instead, as Munaf explained, history demonstrates that “it is for the political branches, not the Judiciary, to assess practices in foreign countries and to determine national policy in light of those assessments.”

First, although the quotation from Munaf is accurate, it doesn't bear the weight Judge Kavanaugh would place upon it. (If it did, the Supreme Court's decision would've been law-of-the-case, and all of this would've been moot). Instead, Munaf went out of its way to reserve the precise issue decided in Omar--whether a properly pleaded FARRA claim provided a basis for habeas relief not otherwise provided by the Due Process Clause or any other federal law. [See especially footnote 6 of Chief Justice Roberts' opinion and all of Justice Souter's concurrence.]

Second, and related, this reasoning is a perversion of what Boumediene meant when it said that "history" matters in understanding the Suspension Clause. It simply isn't the case that "a would-be transferee such as Omar has possessed no right to judicial review of conditions the transferee might face in another country." It's just that, prior to FARRA's implementation of the UN Convention Against Torture, nothing other than the Due Process Clause would have provided a constraint on the government's power to transfer/extradite/remove an individual who credibly feared mistreatment where he was being sent. In other words, Judge Kavanaugh assumes that, because there were no meritorious cases prior to FARRA, there must not have been a right to judicial review.

But this assumption fails both as matter of history and logic. Taking the history first, it is now well-established (by Paul Halliday, among others, as I've explained) that writs of habeas corpus could be (and often were) used to challenge potentially unlawful transfers in pre-revolutionary England. Thus, at the time of the Founding, it was an accepted part of habeas practice in England to use the writ to challenge transfers to potentially unlawful overseas custody. And so if the Suspension Clause protects, "at a minimum," the writ as it existed in 1789, it should protect that... This says nothing of whether the overseas custody actually is unlawful, but that's the whole point--it's a merits question, not jurisdictional.

And even if the history didn't bear this out (or didn't matter), the majority's logic still doesn't follow. Assuming arguendo that there was no right to judicial review before FARRA (on the ground that there was no basis for relief), it doesn't follow that there is therefore no right after FARRA (which now provides a basis for relief). This is why Omar is at once so important and so wrong: Prior cases (see, e.g., Johnson  v. Eisentrager) have erroneously conflated, or been read to conflate, the lack of a merits claim with the lack of habeas. But Omar is the first appellate opinion with which I am familiar in which a U.S. court has held that, where the Suspension Clause applies, it is not violated by an Act of Congress that takes away habeas jurisdiction and fails to provide any alternative remedy, even while leaving the underlying claim for substantive relief intact. Eisentrager never said as much. Munaf never said as much. Kiyemba II never said as much.

The short of it is that Omar calls into question any reading of the Suspension Clause as protecting any claim for relief not grounded expressly in the Constitution. That's a terrifying prospect, and it is just plain wrong.

Update: It's probably worth noting that the en banc Ninth Circuit case I mentioned yesterday that could raise a similar constitutional issue--Trinidad y Garcia v. Benov--is being argued later this morning in Pasadena...

Posted by Steve Vladeck on June 23, 2011 at 07:24 AM in Constitutional thoughts, Steve Vladeck | Permalink


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This is plausibly the worst case from which to draw conclusions. Shawqi Omar is an American citizen being held in the last section of Camp Cropper still administered by US soldiers. He is being held on Iraqi sovereign territory in what is now an Iraqi prison and has been convicted by Iraqi courts of crimes committed in Iraq. However, a long sequence of Habeas cases have prevented the US administrators from transferring him to Iraqi custody to begin serving his sentence.

The US courts can only order US officials to not, on their own initiative, transfer the prisoner. US courts could never have blocked Iraqi courts from issuing an order and dispatching officers to seize the prisoner who was being held, after all, in Iraq. However, the Iraqi courts have had better things to do and can certainly wait until the end of this year when Iraq takes over administrative duties for all prisoners, including Omar. So this case affects only the next 6 months and the only result is to delay the start of Omar's sentence and therefore extend the amount of time he will spend in prisons. However, things could change in six months, and the courts have found that delay can be a legitimate objective.

As the Supreme Court noted in Boumediene, there is a common law Habeas power protected by the Suspension clause and statutory Habeas. Statutory Habeas was the only kind of Habeas the courts ever used until Congress in the DTA and MCA stripped prisoners at GTMO of statutory Habeas leaving the DC Circut to determine what common law Habeas actually looks like.

If, as you claim, the history of common law Habeas shows pre-Revolutionary use to bar transfer of prisoners to unlawful imprisonment overseas, and if, as seems generally recognized, the 14th Amendment bars the torture of US citizens by the US government, then it follows that the US cannot transfer a citizen to a foreign government that will torture him. This becomes a constitutional matter appropriate for common law or statutory Habeas independent of anything that FARRA or REAL ID did to limit judicial review of FARRA and ACT claims to the removal proceedings of aliens. After all, since a US citizen cannot be subject to deportation proceedings by definition, the language in FARRA and REAL ID limiting ACT review to such proceedings necessarily implies that US citizens gain no protection from FARRA at all. That makes sense only if you assume that they have alternate protection from the constitution, and if statutory Habeas is barred by law then common law Habeas remains under Boumediene.

Omar still only gets 6 more months in US custody and the US courts cannot change that. So if he dies of a heart attack or stroke during those six months he will have lived his final days in US and not Iraqi custody. If he is not planning to kick the bucket, then all this litigation has delayed the inevitable and extended his imprisonment. This doesn't seem like it was a good legal strategy.

Posted by: Howard Gilbert | Jun 23, 2011 11:59:22 PM

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