The D.C. Circuit Vitiates the Suspension Clause (in a Non-Guantanamo Case, To Boot)

I've written before (both here and more formally) about the post-Boumediene Guantanamo litigation in the D.C. Circuit, and the extent to which I've been at least somewhat unconvinced by the charge that the Court of Appeals has been engaged in a massive conspiracy to subvert the Supreme Court's 2008 decision, recognizing that the Guantanamo detainees are entitled to pursue meaningful habeas relief in the federal courts. 

That was until yesterday.

Now, and in a non-Guantanamo case, to boot, a divided panel of the D.C. Circuit has effectively held that Congress has the power to divest the federal courts of jurisdiction over a claim that an individual's detention is unlawful. As I explain below the fold, the majority's efforts to disitnguish Boumediene notwithstanding, yesterday's decision in Omar v. McHugh creates a far more serious tension with that Supreme Court decision than anything the Court of Appeals has held thus far vis-a-vis Guantanamo, and in a manner that was completely unecessary to reach the same holding. Put simply, if the D.C. Circuit is right, then Boumediene is a pretty weak precedent, indeed.

First, the background. Omar is the decision on remand in one-half of the case that the Supreme Court decided on the same day as Boumediene, Munaf v. Geren. In Munaf, the Supreme Court held that the federal courts have jurisdiction to entertain habeas petitions brought by U.S. citizens detained in Iraq under the auspices of the "Multinational Force-Iraq," who sought to block their transfer to Iraqi custody on the ground that they credibly feared torture or other forms of persecution if transferred. The Court then went on to reject the detainees' claims on the merits, holding that, because the government averred that the detainees did not credibly fear mistreatment if transferred, and because the detainees had not offered evidence contraverting the government's assertions, they had no entitlement to habeas relief. As Chief Justice Roberts noted in a key footnote, "We hold that these habeas petitions raise no claim for relief under the FARR Act and express no opinion on whether Munaf and Omar may be permitted to amend their respective pleadings to raise such a claim on remand." (emphasis added).

On remand, Omar properly raised his claim under the "FARR" (Foreign Affairs Reform and Restructuring) Act, i.e., that his transfer to Iraqi custody would violate the principle of non-refoulment enmeshed within the U.N. Convention Against Torture and implemented in FARRA. But the district court held that jurisdiction was foreclosed by the REAL ID Act of 2005, part of which (8 U.S.C. § 1252(a)(4)) provides that,

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision ... a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of any cause or claim under the United Nations Convention Against Torture.

Thus, the REAL ID Act effectively precludes FARRA-based habeas relief, and, as a result, any remedy for FARRA-based claims where the detainee is not subject to (or able to utilize) immigration removal proceedings. In so holding, the district court concluded that the D.C. Circuit had already resolved this question in Kiyemba II. And yet, even if this is true, Kiyemba II nowhere confronted or passed on the argument that, so construed, the REAL ID Act would violate the Suspension Clause.

That's where yesterday's decision comes in. Writing for himself and Judge Ginsburg, Judge Kavanaugh specifically concluded that the REAL ID Act does not violate the Suspension Clause, even though it cuts off a detainee's access to any judicial remedy for allegedly unlawful detention. In particular, Kavanaugh's opinion picks up the analytical thread underlying Justice Scalia's dissent in INS v. St. Cyr, i.e., that Congress can take away habeas jurisdiction over claims for which Congress did not have to provide a forum in the first place. Thus, because Congress didn't have to enact FARRA, Congress could, by statute, remove the power of the federal courts over such claims. As Judge Kavanaugh wrote,

even if the REAL ID Act took away a statutory right that the FARR Act had previously granted, that scenario poses no constitutional problem. Congress does not amend the Constitution, or alter the scope of the constitutional writ of habeas corpus, whenever it amends a statutory right that might be available in a habeas case. Congress thus remains generally free to undo a statute that applies in habeas cases, just as it can undo other statutory rights that it has created.

This is both true and beside the point, because the REAL ID Act did not actually repeal FARRA. It simply takes away jurisdiction while leaving the underlying substantive law intact. So unless FARRA never created a right not to be transferred in violation of CAT in the first place (which would be an odd result for a statute specifically designed to implement CAT), this analysis conflates Congress's power over subconstitutional rights with Congress's power over federal jurisdiction. Yes, Congress could simply repeal FARRA, which would unquestionably deprive Omar of any claim for relief. But so long as FARRA remains on the books, Congress cannot take away federal habeas jurisdiction over such a claim without providing an adequate alternative remedy. That's Boumediene: The Suspension Clause, where it applies, protects a detainee's access to a federal court for a habeas remedy (or an adequate alternative) for any colorable claim that his detention is unlawful.

In his concurrence in the judgment, Judge Griffith (reprising parts of his dissent in Kiyemba II) totally gets this distinction, noting at the ouset that:

When an American citizen is in U.S. custody, the Constitution's guarantee of habeas corpus entitles him to assert any claim that his detention or transfer is unlawful. Because Congress may not deprive Omar of access to the courts without suspending the writ or repealing the statutory basis for his claim, neither of which it has done here, we must consider his argument on the merits.

Griffith nevertheless concurs, because he believes Omar loses on the merits--that FARRA wasn't meant to cover cases in which the detainee is already in the country his transfer to which he is seeking to block. [I'll save thoughts on that issue for another time.] The relevant point for present purposes is that, unless the majority disagrees with Griffith's analysis on the merits (and I have a hard time believing that they would), this would have been a far less controversial (or damaging) ground on which to affirm the district court. That is, narrower grounds were easily available... Instead, the majority went out of its way to hold that REAL ID doesn't violate the Suspension Clause, based on an understanding of the Suspension Clause rejected by the majority in Boumediene. 

More to the point, this decision, if left intact, will have teeth. The en banc Ninth Circuit is currently considering a similar issue in Trinidad y Garcia v. Benov, an extradition case. And there are dozens of immigration cases every year in which petitioners are not in a position to raise CAT claims in a petition for review, and therefore run into REAL ID's bar on  pursuing CAT relief in habeas petitions. But even beyond REAL ID, if Congress can take away habeas jurisdiction over any claim for relief founded on a statute or treaty, Boumediene is virtually a dead-letter. After all, none of the Guantanamo detainees have constitutional claims as their central argument against the legality of their detention, and in any event, habeas is about unlawful detention, not unconstitutional detention.