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...