Government: No “original” writ for detainees
on May 23, 2007 at 12:30 pm
Analysis
In the 18 months since Congress began its efforts to curb the legal rights of detainees held by the U.S. military, one legal question has hung over the court cases that have unfolded during that time. That question is whether Congress would (and could constitutionally) take away the Supreme Court’s independent power to hear a detainee’s appeal. This involves a kind of Supreme Court relief that is rarely given to one in captivity: issuing an “original” writ of habeas corpus. In deciding three major cases on the legal rights of detainees, the Court has not had occasion to review that power when the U.S. military is holding a suspect captured as a terrorism suspect. The issue has now been raised directly.
The Bush Administration has told the Supreme Court that it has lost its authority under a law dating back to 1789 to issue an “original” order providing any relief to detainees now held prisoner by the U.S.anywhere in the world. Asked by the Supreme Court for its views, the government has now taken its position, urging the Supreme Court to dismiss outright the pending appeal in In re Ali (06-1194). The government is relying on the court-stripping provisions of the Military Commissions Act of 2006 — a sweeping revision of habeas corpus law as it applies to foreign nationals in U.S. custody outside the U.S. Up to now, that law has never been directly invoked against the Supreme Court’s “original” habeas power.
The Ali case involves a Chinese national who is a member of a persecuted Muslim minority, who is identified in military documents as Hassan Anvar or as Mohammad Ali. He has been held at the U.S. military prison camp at Guantanamo Bay, Cuba, for five years and three months; no charges have been filed against him.
The government’s views — filed May 16 — are stated in the motion to dismiss that can be can be found here. Ali’s petition, partially censored by U.S. intelligence monitors, was originally filed Feb. 13; it can be found here. Defense lawyers are expected to file a reply later this week; the case has not been scheduled for Conference by the Court, according to the electronic docket.
The Court’s “original” habeas authority was granted by Congress in 1789 (now 28 U.S.C. 2241-a). It allows the Court to issue a habeas writ, without awaiting any action in a lower court. Although it is always referred to as “original” in character, and a petition for this relief does originate in the Supreme Court, it is technically part of the Court’s appellate jurisdiction not the Original jurisdiction spelled out in the Constitution. But it has a special legal dignity of its own, and attempts by Congress to revoke it are surrounded by constitutional questions — such as whether such an effort goes beyond Congress’ power to make “exceptions” to its grant to the Court of appellate power, whether a withdrawal would amount to a suspension of the habeas writ, and whether its revocation would amount to an invalid “bill of attainder.”
The Court has not been eager to address those constitutional issues. For example, in the 1996 decision in Felker v. Turpin, involving one of the Court’s most extensive modern discussions of the nature of the “original” writ, the Court interpreted the Antiterrorism and Effective Death Penalty Act of 1996 as not affecting its “original” authority and thus avoided a constitutional question. (The leading Supreme Court practice manual says that the Court has not granted an “original” habeas writ since 1925.)
The U.S. Solicitor General’s response in the Ali case does not mention any constitutional issues. It simply argues that Congress has stripped the Court of that “original” authority. “The MCA,” SG Paul D. Clement contends, “removes habeas jurisdiction over any claims challenging the detention of aliens, such as petitioner, detained as enemy combatantants at Guantanamo Bay.” Noting that the D.C. Circuit Court had upheld MCA’s court-stripping provision on Feb. 20, and that the Supreme Court “has declined multiple opportunities to review that holding,” Clement asserts that “there is no reason to treat this petition any diffeently simply because it is styled as an original petition for habeas corpus.”
Whether Congress did withdraw the Court’s habeas jurisdiction was not directly at issue in the D.C. Circuit Court ruling. But the MCA’s language is sweeping in scope, taking away habeas authority from any “court, justice, or judge,” and similarly denying jurisdiction in any “court, justice, or judge” to “hear or consider any other action” involving any detainee. And Congress did apply those provisions to 28 U.S.C. 2241, which includes the “original” writ authority.
Before Ali’s case, the Court had been offered an opportunity to examine its “original” power in the wake of Congress’ court-stripping efforts, in the case of Salim Ahmed Hamdan, a Guantanamo detainee. Hamdan’s lawyers did so in a companion appeal to their appeal that led to the Supreme Court’s 2006 decision blocking war crimes trials of Guantanamo detainees. Hamdan’s successful appeal (in Hamdan v. Rumsfeld, docket 06-184) led the Court, one day later, to denied Hamdan’s separate “original” plea (in docket 06-790); there was no need to hear that plea (to which the government had not responded) because the Court found it retained authority to decide Hamdan’s specific case.. It was after the Hamdan ruling that Congress passed the Military Commissions Act in its second effort to scuttle detainees’ habeas cases, buttressing and broadening the anti-habeas provisions of the Detainee Treatment Act of 2005.
The Ali case was filed in the Supreme Court one week before the D.C. Circuit had upheld the court-stripping provisions of the MCA. His lawyers, like many attorneys for detainees, had grown frustrated over the inaction in lower courts on their habeas challenges to their detention. Thus, Ali’s petition decries the “logjam” it contends had built up in lower courts. Ali thus had been unable to get any ruling challenging not only his detention, but also the two rounds of military reviews over his status; the first ended with a finding that he was not an “enemy combatant,” but, after higher Pentagon authorities ordered a new review, the second found him to meet that classification and thus required that he remain confined.
“The five years’ incarceration that Petitioner Ali and hundreds of other Guantanamo prisoners have been forced to suffer without a judicial hearing makes a mockery of habeas as ‘an effective and speedy instrument by which judicial inquiry may be had into the legality of the detention of a person,’ ” his petition contended. The lower courts, he said, had become “paralyzed” while the D.C. Circuit weighed the federal courts’ authority to hear Guantanamo prisoners’ challenge.
“This Court’s appellate jurisdiction,” the petition reads, “is sufficiently broad to remedy the injustice that has befallen Petitioner.” The challenge raises constitutional questions surrounding the withdrawal of federal courts’ habeas power — including attempting to scuttle the Court’s “original” power.
The U.S. Solicitor General, in the government response, contends that the Court should simply deny Ali’s petition because there is no longer any “logjam” in the lower courts, because the D.C. Circuit Court has upheld the MCA’s anti-habeas provision. And, on the merits of whether the Court should exercise its “original” habeas authority, SG Clement contends that Ali has not satisfied the Court’s Rule 20 restrictions on such writs.
Under Rule 20, Clement noted, such an “original” petition will be granted only if “adequate relief cannot be obtained in any other form or from any other court,” and must also “show that exceptional circumstances” justify the use of this discretionary power. “Neither showing has been made here,” he argued. Ali can pursue his challenge in the special new review processes Congress created in the D.C. Circuit as an alternative to habeas — and, the Soliicitor General said, Ali should be required to “exhaust” that opportunity before asking the Supreme Court for any relief.
Moreover, according to the Solicitor General, the claim of “exceptional circumstances” made by Ali is predicated on the claim of a “logjam” in lower courts, and that, if it existed, ended with the Circuit Court’s Feb. 20 ruling.
Finally, the government response argues that there are “pleading defects” in Alis’ challenge, and those provide an added reason for denying review.
