First court action on new detainee dispute
U.S. District Judge Reggie B. Walton in Washington on Wednesday became the first federal judge to open a formal inquiry into the courts’ power to decide the existing cases challenging the detention of foreign nationals at Guantanamo Bay, Cuba. Judge Walton, acting in the case of Salim Gherebi (docket 04-1164), ordered lawyers to file briefs on whether the case should be dismissed under the new Detainee Treatment Act of 2005. The judge did not wait for the government to file a motion to dismiss, as it had told judges on Tuesday it would do next week. (This issue is discussed more fully in the post, just below. The blog thanks a number of attorneys for supplying copies of documents on this matter.)
Here is the text of Walton’s order:
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
SALIM GHEREBI, )
)
Petitioner, ))
v. ) Civil Action No: 04-1164 (RBW)
)
GEORGE WALKER BUSH, et al., ))
Respondents. )
_________________________________________ )
ORDER
On December 30, 2005, President Bush signed into law H.R. 2863, the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act of 2006 (“the Act”). Section 1005(e) of the Act, entitled Judicial Review of Detention of Enemy Combatants, provides that
(1) IN GENERAL- Section 2241 of title 28, United States Code, is amended by adding at the end the following:
`(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider–
`(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or
`(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who–
`(A) is currently in military custody; or
`(B) has been determined by the United States Court of Appeals for the
District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.’.
The Act raises serious questions concerning whether this Court retains jurisdiction to hear this case and all related matters. Accordingly, it is, this 4th day of January, 2006, hereby
ORDERED that the petitioner shall show cause by January 12, 2006, why this action should not be dismissed for lack of jurisdiction. It is further
ORDERED that the respondents shall file any response thereto by January 19, 2006, and the petitioner shall file a reply, if any, by January 24, 2006.
SO ORDERED.
REGGIE B. WALTON
United States District Judge
Meanwhile, Sen. Carl Levin, a Michigan Democrat and one of the two architects of the detainee litigation provisions in the Detainee Treatment Act (the “Graham-Levin Amendment”), disputed the Justice Department view that the Act requires dismissal of pending challenges by Guantanamo captives.
The text of a press release issued Wednesday by the senator follows.
Levin Statement on Administration Announcement It Will Seek Dismissal of Guantanamo Lawsuits
WASHINGTON – Sen. Carl Levin, D-Mich., issued the following statement in response to the Administration’s announcement that it will seek to dismiss existing lawsuits questioning the legality of the detention of hundreds of foreign nationals at Guantanamo Bay Cuba, based on their argument that the Graham-Levin amendment to this year’s defense authorization and appropriations acts applies retroactively to pending cases:
“The Administration is wrong,” Levin said. “Congress specifically considered and rejected language that would have applied the Graham-Levin amendment retroactively to pending cases.”
“Throughout the consideration of the Graham-Levin amendment, the White House repeatedly urged the inclusion of language that would have applied the amendment retroactively to pending cases. In each case, I objected to this language. As a result, no such language was included in the final version of the legislation. The Administration is now seeking to end-run the legislative process and achieve a result through the courts that it was unable to obtain in Congress. I hope and expect that the courts will reject this effort.”
Levin noted that at least three efforts were made to apply the amendment to pending cases:
· The original Graham amendment approved by the Senate contained language stating that the provision “shall apply to any [habeas] application or other action that is pending on or after the date of the enactment of this Act.” Levin objected to this language and, as a part of a Graham-Levin compromise, this language was removed from the bill.
· Before the bill passed the Senate, the White House made an effort to insert language stating that the provision “shall apply to any [habeas] application or other action that is pending on or after the date of the enactment of this Act, except that the Supreme Court of the United States shall have jurisdiction to determine the lawfulness of the removal, pursuant to such amendment, of its jurisdiction to hear any case in which certiorari has been granted as of such date”. Levin objected to this language and it was not included in the Senate-passed bill.
· During the conference, the House of Representatives proposed language stating that the provision “shall apply to any [habeas] application or other action that is pending on or after the date of enactment of this Act.” Levin objected to this language and it was not included in final version of the legislation.
Levin stated: “As I pointed out when we passed the bill, the provision says that it ‘shall take effect on the date of the enactment of this Act.’ The meaning of these words is clear: the provision is prospective in its application, and does not apply to pending cases. The Administration is just plain wrong when it says otherwise.”
Senator Levin is just plain wrong when he says “The Administration is just plain wrong….” The general rule is that statutes ousting jurisdiction apply to pending cases in the absence of express direction from Congress to the contrary. This rule has been applied in a host of cases from Reconstruction to last Tuesday. See Santos v. Guam (CA 9, Jan. 3, 2006).
An argument can be (and no doubt will be) made that this statute does not apply to pending cases because of legislative history, the doctrine of constitutional doubt, or other factors. I expect the argument will be weak, from what I have seen so far, but some court might accept it. For Senator Levin to suggest that the government is out of line for arguing that the usual rule applies, however, is over the top.
Comment by Kent Scheidegger — January 4, 2006 @ 7:37 pm
I appear to have messed up the link. Trying again.
Comment by Kent Scheidegger — January 4, 2006 @ 7:44 pm
Justice Scalia might not care, but other justices do seem to take into account some of the legislative process and intent Sen. Levin addresses here.
Given the facts Sen. Levin suggests, and the serious amount of debate and effort gone into the final version of the amendment, I’m unsure how “weak” his claim is. Levin might exaggerate Bush’s weakness here, but the comment seems to go to the other extreme.
Levin seems to be right on intent here. If we can just ignore this, the final result has an “Alice in Wonderland” feel to it that seems troubling to me.
Comment by Joe — January 4, 2006 @ 9:17 pm
The final outcome of the negotiation was that Congress made no statement either way on application to pending cases. While Senator Levin succeeded in getting express application language removed, he did not get express nonapplication language inserted. His position that the “take effect” language resolves that issue is not correct. Hence, the default rule applies under Landgraf. For jurisdictional changes, the default rule is that a new statute does apply to pending cases. This is settled law. See the Ninth Circuit’s recent decision in Santos v. Guam, linked in my second comment in this thread.
In negotiating statutory language, members of Congress should be able to depend on the courts following the rules of construction they have stated in past cases. There is nothing “Alice in Wonderland” about that. Quite the contrary.
Comment by Kent Scheidegger — January 5, 2006 @ 1:10 pm
A key phrase in the cited case seems to me to be: “Here, Congress has amended the distribution of appellate jurisdiction in the Territory of Guam without expressing an intent as to the effective date of its new statute.”
The “intent” argument is major here. If your statutory interpretation rule is so clear, it is unclear why the administration repeatedly tried to redundantly get it in, and failed each time. As noted, a pure textualist reading might lead to different results.
But, a page of recent history is worth something here. The matter was actually dealt with repeatedly in the drafting and the President’s interpretation rejected. The default rule per that case was in place because no intent suggested it should not be followed. Things are different here.
Senators have some reason to expect that phrasings they reject should not be after the fact said to be implied anyway. And, the “take effect” language should be read accordingly. Clearly, the President didn’t think the default rule was so clear.
He wants two bites of the apple. Bad pool. I’d add as an aside that constitutional doubt as to habeas stripping helps Levin’s case. Anyway, his case might not be strong enough, but I reaffirm my belief that it is not really “weak” at all.
Comment by Joe — January 5, 2006 @ 4:20 pm
The premise of Joe’s argument is that a member of Congress who agrees to delete language stating X thereby expresses an intent that the law should be the converse of X. Nope. The member only agrees that the statute will not say X, and the law will be what it would have been if that language had never been there in the first place. When we speak of legislative intent, it is important to remember that Congress has 535 intents, and that coming to agreement sometimes means agreeing not to specify a particular point either way. If Senator Levin really had the agreement of his colleagues that the statute would not apply to pending cases, he would have inserted language to that effect. The fact that he didn’t indicates that he couldn’t, and that is just as strong an indication as the fact that the earlier language was deleted. The only collective intent that can be discerned from this history is an intent to leave it to the default rule and then argue in court about what that is.
Comment by Kent Scheidegger — January 6, 2006 @ 2:14 pm