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Wednesday, July 13, 2011

Proxy Detention and the Habeas Statute

Bobby's post from yesterday about the potential habeas petition arising out of the CIA's "proxy" detention of non-citizens in Somalia raises a host of interesting jurisdictional questions, some of which I've addressed previously.  For now, though, let me offer one slight quibble--not with the larger thesis of Bobby's post, but with one of the analytical threads contained therein:

Bobby assumes that whether Abu Ali (the 2004 D.D.C. decision sustaining jurisdiction in a proxy detention case) applies to non-citizens held outside the territorial United States turns on the scope of the Suspension Clause in light of Boumediene.  I'm not so sure that's true.  Congress in the Military Commissions Act of 2006 did not take away statutory habeas jurisdiction over all non-citizens held outside the United States, but rather only over petitions by "an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." (emphasis added).  In other words, the MCA only withdraws habeas jurisdiction over individuals who are formally detained by the United States under the auspices of the AUMF. Based on what we know about the Somalia detention operation, there seems to be at least an argument that this is not such a case...

Ultimately, for non-citizens who are detained outside the United States for other purposes (whatever they may be), the MCA simply doesn't apply, and instead the question is the same as that which the Court addressed in Rasul, i.e., whether the federal courts may exercise jurisdiction over a proper respondent.

Posted by Steve Vladeck on July 13, 2011 at 04:01 PM in Constitutional thoughts, Steve Vladeck | Permalink


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ironically, the third world country of Jamaica, just shot down attempt to detain before trial, as its supreme court declared the attempt unconstitutional. sounds like those folks have a clue.

Posted by: concerned citizen | Jul 16, 2011 8:30:49 AM

luv it when all the legal pontificators spew on subject of terrorist detention. before you will ever come even close to correcting the pretrial detention issues of terrorists, you first most find out why the bail reform act of 1966 and 1984 were never found unconstitutional. you can start here - if the right to bail is unfounded, then why was it expressed in writing in of all things - the bill of rights.

Posted by: concernedcitizen | Jul 14, 2011 7:45:54 PM

Having skimmed Abu Ali, I would suggest that it concentrates exclusively on the jurisdictional issues of "in custody" and "under color of authority" and extraterritorial reach. It finds no bar to the Writ from any of these issues, then orders the case to proceed to discovery.

Every reference in the decision to "remedy" is in the context of "the writ has stood as an indispensable safeguard of the freedom of citizens and a constant remedy" (that is, the writ is itself the remedy). When asked to issue any immediate orders, Judge Bates points out the problems of "political question" and foreign policy, but he seems to imagine that it is premature to determine if there is any path through that minefield until after a decision has been made on the merits.

He could not anticipate in 2004 that the Supreme Court would in 2008 in Munaf/Omar suggest that the absence of any possible remedy was a threshold question that should be considered before discovery or merits. "For all the reasons given above, petitioners state no claim in their habeas petitions for which relief can be granted, and those petitions should have been promptly dismissed." Therefore his decision in Abu Ali does not presciently address directly the issues that the future decision would raise.

I will admit that it possible that a court would order the CIA to have no further dealings with the Somali NSA with regard to this prisoner, which seems to be as much as you suggest could be done.

Posted by: Howard Gilbert | Jul 14, 2011 12:43:43 PM

Howard -- I'd encourage you to read Abu Ali, which explains exactly how habeas can provide a remedy in cases in which the petitioner claims his foreign detention is at the behest of the United States. Of course, if the foreign country continues to detain the petitioner once U.S. involvement has ceased, then there is nothing for the federal courts to do. But where either the habeas statute or Suspension Clause applies, it necessarily follows that federal courts have jurisdiction to order U.S. officials to cease participating in an individual's detention, whether or not that remedy produces the petitioner's release.

Posted by: Steve Vladeck | Jul 14, 2011 11:33:37 AM

In Habeas the court must have jurisdiction over the jailor. Rasul was being held by the US military. In Omar and Munaf, the Supreme Court held that the lower courts had jurisdiction over the US military administering Camp Cropper in Iraq, but the petition should have been dismissed because the court had no power to order the release of an Iraqi felon being held in Iraq for the Iraqi courts. In this case prisoners are not even being held in a prison guarded by US agents. They are in the basement of the Somali NSA. They are held by Somalia in Somalia. A theory that the CIA provided advice, or direction, or money might apply to a claim for damages, but it cannot create jurisdiction for Habeas against a foreign government agency operating in their own country. Nor can the courts even order the executive to request release from Somalia since that is a question of Foreign Policy outside the court jurisdiction.

You can use the word "proxy" all you want, but that does not create a theory of Habeas jurisdiction. The courts cannot order the executive to release a prisoner they are not holding no matter how complicit they may have been in his capture. No judge in the US can order the Somali government to do anything. At most a court could order the CIA to stop any participation in the detention, but even that is a stretch.

Posted by: Howard Gilbert | Jul 14, 2011 11:29:58 AM

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