Analysis

The Supreme Court, in moving in June to clarify the legal rights of Guantanamo Bay detainees, made this explicit comment in the main opinion in Boumediene v. Bush (06-1195): “The only law we identify as unconstitutional is MCA Sec. 7, 28 USCA 2241(e)(Supp. 2007).” The MCA is the Military Commissions Act of 2006, and Section 7(e) is the so-called “court-stripping” provision — Congress’s now partially failed effort to scuttle all habeas rights of the detainees.

 There are, however, two parts to Section 7(e). As lower court judges move to apply Boumediene, they are discovering what one judge on Thursday described as an “ambiguity” in that ruling.

This is no small matter.  Much of the Justice Department’s effort — in District Courts and in the D.C. Circuit Court — to limit the Guantanamo detainees’ legal challenges is based upon the second, not the first, part of Section 7(e). And the judge who has just spoken out on the subject, District Judge Ricardo M. Urbina, came close to concluding that that part of the law remains intact.

There is no doubt that the Court struck down the first part of the MCA section.  That sought to take away any right of detainees to file habeas challenges to their detention as “enemy combatants.”  The Court said the Constitution gives the detainees that right, so Congress had acted unconstitutionally in suspending that right.

The second part of Section 7 sought to take away from federal courts any power to consider “any other” claim by a detainee challenging “any aspect of the detention, transfer, treatment, or conditions of confinement” of “enemy combatants.”

As the habeas cases have unfolded in the wake of Boumediene, that provision is at issue in disputes over judges’ power to examine the actual conditions of prisoner life at Guantanamo, to limit the Pentagon’s power to transfer detainees out of the prison camp to places they do not want to go, perhaps even to require the Pentagon to release some cleared detainees to live inside the U.S., to order the Pentagon to give detainees’ lawyers more access to them and under better working conditions, or to compel the Pentagon to share more “protected” (that is, classified) information with detainees’ lawyers.

Judge Urbina was faced with one of these issues on Thursday: a plea by six Chinese Muslims, each of whom expects soon to be relieved of the designation of “enemy combatant,” to require the military to transfer them from a restrictive part of Guantanamo — Camp 6, referred to by prisoners as “the tomb above the ground” — to the more accommodating Camp 4.

In responding to that request by detainees, the Justice Department told Judge Urbina: “Under the recent decision in Boumediene, it is clear that the Supreme Court did not invalidate the MCA except to the extent that it precluded courts from exercising core habeas functions, i.e., challenging the legality of the detention itself.” Any other claims, it added, “indisputably fall outside the Boumediene holding.”

Judge Urbina, in a ruling (found here) in a group of cases with lead docket 05-1509, did not accept the argument that this was “indisputable.”  Citing the language in Boumediene about what the Court had said it had invalidated, the judge said that “it can be argued that the Supreme Court, in Boumediene, invalidated both (e)(1) and (e)(2).”

He went on, however, to quote other statements in the ruling, in which the Court used limiting language and in which it indicated that the actual scope of habeas rights that now existin must be decided “in the first instance” by District judges (like Urbina).

“Therefore,” Urbina concluded, “this court interprets Boumediene to invalidate” only the first part of Section 7.  He went on, though, to acknowledge that there might be “a colorable argument” that the second section, too, was unconstitutional.  But, with a note of resignation, the judge said that the lawyers for detainees “neglect to make this assertion in their briefs.”  Thus, he left open the Justice Department argument that Congress had taken away his Court’s jurisdiction to hear the camp transfer plea.

Urbina also expressed some discontent with the detainee lawyers’ “failure to articulate a specific constitutional right.”

In the end, using his discretion (which he presumably retained, since he did not find a lack of jurisdiction), the judge balanced the claims of the detainees to some relief from their “nearly seven years” of confinement without a trial with the government’s reliance on what he called “the ambiguity” in Boumediene, and the Pentagon’s need to keep control of security at the Guantanamo prison.  He refused to order the six prisoners moved out of Camp 6 to Camp 4.

Judge Urbina is one of 15 District judges in Washington who, sooner rather than later, will be deciding detainee habeas cases, including the kinds of claims that implicate Section 7(e)’s second part. In addition, the D.C. Circuit already has before it some of the same issues — particularly issues about conditions of confinement, and about transfers out of Guantanamo.

It is by no means clear that this array of judges will reach the same conclusions, thus raising the distinct possibility that the Supreme Court may have to say what it actually meant on June 12.

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