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Tuesday, July 19, 2011

The D.C. Circuit Amends Omar -- And Makes it Worse?!?

Last month, I wrote a pair of posts about the D.C. Circuit's June 21 opinion in Omar v. McHugh, which held, for the first time, that Congress has the power to completely divest the federal courts of jurisdiction over a potentially meritorious habeas petition in a case where the detainee was protected by the Suspension Clause. Suffice it to say, I was somewhat critical at the time of Judge Kavanaugh's reasoning for the majority.

In a rather curious move, the Omar panel has sua sponte amended the original opinion (here's the order; here's the new opinion). And while it's not at all clear what prompted these amendments (perhaps an effort on the majority's part to weaken the case for en banc review?), I think it's safe to say that the changes are far more than semantic. Below the fold, I try to explain both why the changes matter, and why, in my view, they make this opinion that much more indefensible.

First, here's the one paragraph that the majority added to its original opinion (it begins on page 20 of the new slip opinion; the emphasis is mine):

None of this means that the Executive Branch may detain or transfer Americans or individuals in U.S. territory at will, without any judicial review of the positive legal authority for the detention or transfer. In light of the Constitution's guarantee of habeas corpus, Congress cannot deny an American citizen or detainee in U.S. territory the ability to contest the positive legal authority (and in some situations, also the factual basis) for his detention or transfer unless Congress suspends the writ because of rebellion or invasion. See Boumediene v. Bush, 553 U.S. 723, 785–86 (2008). In the earlier iteration of this litigation, Omar raised the habeas argument that the Government lacks constitutional or statutory authority to transfer him to Iraqi authorities. The Supreme Court addressed Omar's argument and determined that the Executive Branch had the affirmative authority to transfer Omar. See Munaf v. Geren, 553 U.S. 674, 704 (2008). (For wartime military transfers, Article II and the relevant Authorization to Use Military Force generally give the Executive legal authority to transfer.) Here, we are addressing Omar's separate argument, not about the positive legal authority or factual basis for his transfer, but rather about conditions in the receiving country. The Supreme Court addressed that argument as well in Munaf, and it concluded that a right to judicial review of conditions in the receiving country has not traditionally been part of the habeas or due process inquiry with respect to transfers. See id. at 700–03. Therefore, Congress need not give transferees such as Omar a right to judicial review of conditions in the receiving country.

Although the above paragraph clearly reflects an attempt by the majority to dilute the impact of its original holding, it nevertheless suffers from three critical flaws, each of which Judge Griffith points out in his (amended) concurrence in the judgment: First, as I explained in more detail in one of my earlier posts, it just doesn't follow that the absence of prior examples of meritorious claims proves that there was no right to judicial review--it could just as easily mean, as it does here, that there was no statutory basis for relief in such cases prior to the enactment of the FARR Act. Thus, once more, the Omar majority conflates the jurisdiction of the federal courts with the detainee's entitlement to relief.

Second, it's just ridiculous to suggest, as the majority appears to here, that its analysis of Congress's power follows from Munaf. The Omar majority cites Munaf, but once again fails to consider its critical limiting passage (from the cited pages; emphasis again is mine; citations omitted):

Petitioners briefly argue that their claims of potential torture may not be readily dismissed on the basis of these principles because the FARR Act prohibits transfer when torture may result. Neither petitioner asserted a FARR Act claim in his petition for habeas, and the Act was not raised in any of the certiorari filings before this Court. Even in their merits brief in this Court, the habeas petitioners hardly discuss the issue. The Government treats the issue in kind. Under such circumstances we will not consider the question.

Third, and more fundamentally, rather than ameliorate the damage done by the original opinion, the amended opinion introduces a new, novel, and ultimately unconvincing distinction into habeas jurisprudence: the difference between the government's "positive legal authority" for detention/transfer and a statutory right forbidding detention/transfer. Thus, the majority suggests, Munaf affirmed the existence of the former, and Congress properly took away jurisdiction over the latter. 

I think Judge Griffith has it exactly right that "the difference [is] no more than 'empty semantics.'" Worse than that, it completely ignores the extent to which habeas, in requiring the government to show that it has legal authority to continue to detain the prisoner, necessarily encompasses claims both that the government lacks authority, and that whatever authority the government has is overridden by the prisoner's individual rights. Detention can be unlawful either because the government lacks the authority to detain (as in many of the Guantanamo cases), or because otherwise lawful detention is nevertheless in violation of the defendant's constitutional, statutory, or treaty-based rights. Even if one didn't think this were true as a matter of constitutional law, it's written right into the habeas statute in 28 U.S.C. § 2241(c)(3).

In short, then, if the majority's goal was to mitigate the damage of its original opinion, my own view is that they failed--and rather forcefully, at that. When Omar merely stood for the proposition that Congress, without suspending habeas, lawfully may divest the federal courts of jurisdiction over an existing substantive claim for relief simply because it could never have created that ground for relief in the first place, it was inconsistent with Boumediene and wrong in its own right. But now, standing for the distinct proposition that the Suspension Clause protects challenges to the government's "positive legal authority" for detention, but not claims founded on the individual rights of the prisoner, Omar isn't just wrong and/or inconsistent with precedent; it's utterly incoherent.

Posted by Steve Vladeck on July 19, 2011 at 11:34 AM in Blogging, Constitutional thoughts, Steve Vladeck | Permalink


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In Munaf/Omar, the Supreme Court said a lot more than you quote.

"Petitioners contend that these general principles are trumped in their cases because their transfer to Iraqi custody is likely to result in torture. This allegation was raised in Munaf’s petition for habeas, but not in Omar’s. Such allegations are of course a matter of serious concern, but in the present context that concern is to be addressed by the political branches, not the judiciary."
" This conclusion is reflected in the cases already cited. Even with respect to claims that detainees would be denied constitutional rights if transferred, we have recognized 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."
"The Judiciary is not suited to second-guess such determinations—determinations that would require federal courts to pass judgment on foreign justice systems and undermine the Government’s ability to speak with one voice in this area. In contrast, the political branches are well situated to consider sensitive foreign policy issues, such as whether there is a serious prospect of torture at the hands of an ally, and what to do about it if there is. As Judge Brown noted, “we need not assume the political branches are oblivious to these concerns. Indeed, the other branches possess significant diplomatic tools and leverage the judiciary lacks.”"

At the end the Court says that since the FARR issue was not seriously raised it would not be considered. However, the Supreme Court had already disposed of the Constitutional due process issues associated with allegations of possible mistreatment in Iraq, leaving only the question of whether there was a specific statutory prohibition created by FARR.

in FARR Congress in the clearest possible language said that it was not creating a Habeas right or issue. Then it passed a second law saying again that it was not creating any issue subject to judicial review outside the context of an immigration case. The question, then is whether when the Supreme Court says that this is a matter properly left to the political branches, and when Congress explicitly leaves this question to the Executive, is it possible to stop judges and lawyers from insisting that once Congress creates any issue in any other judicial context, they can use the Suspension Clause and insist a unilateral right to raise the question in a Habeas hearing. The majority thinks this is not true.

The dissent seems to be based on a non sequitur:

"Section 2242(a) of the FARR Act states that it is U.S. policy not to “expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture.” That gives Omar a colorable claim that it would be unlawful to transfer him to the Iraqi government, which might subject him to torture."

I certainly would distinguish between a statement "that it is U.S. policy" and a statement that something is "unlawful". You can argue that it is unlawful under the ACT treaty, but that is not the question here. The question here is whether FARR makes something unlawful when it does not say that. It is entirely reasonable that Congress in FARR left the implementation of U.S. policy (outside of immigration matters) to the Executive, especially when it is Foreign Policy.

If, as you claim, Congress cannot restrict the scope of a judicial review it creates, then you have to explain exactly what the Supreme Court was saying in all those paragraphs you did not quote in Munaf. Because then, by definition, there is nothing of this sort that is to be decided by the political branches even when they are best qualified to do it and the courts have no competence in the matter. It would not longer matter that the courts are incompetent, because you just wave the Suspension clause and they have an indisputable and undeniable power to make the final decision no matter what Congress or the Supreme Court may say in the matter.

Posted by: Howard Gilbert | Jul 20, 2011 7:42:22 PM

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