Analysis: Core of the habeas dispute

By Lyle Denniston
on Aug 2, 2008 at 7:18 am

Analysis

The second round of legal papers arguing how federal judges should probe Pentagon decisions to hold detainees at Guantanamo Bay strips the underlying dispute down to its core: what legal source governs that process? To the detainees, the federal habeas laws written by Congress control; to the government, only the Constitution remains to control them.

How federal judges resolve that issue — and three different judges are now taking on that initial task, and might well disagree over it — seems sure to shape the structure of the habeas review that the Supreme Court ordered for detainees in its ruling in June in Boumediene v. Bush.

The detainees’ view, if accepted, very likely would lead to a wider ranging inquiry, the government’s to a more narrowly confined review.  Indeed, those are precisely the conflicting objectives that the two sides were pursuing as they filed, late Friday night, their responses to each others’ proposals on the “procedural framework” for the habeas cases.  The detainees’ new brief is here, the government’s is here.

Senior U.S. District Judge Thomas F. Hogan may be the first to react. The briefs were filed in his Court as part of his work as the coordinating judge for the vast bulk of the more than 200 habeas challenges filed by Guantanamo prisoners.  But the same procedural issues that Hogan raised, leading to the briefs filed Friday night and those in the first round a week earlier, have also been posed by two judges who are handling their cases alone, without coordination. Judges Richard J. Leon and Emmet G. Sullivan have ordered briefings this month on the format to be followed in their cases.

 While there is a chance that the three judges could come to the same conclusions, they do not have to do so, and there is at least an equal if not greater chance of some variation, if not downright disagreement, among them — perhaps leading to new appeals to the D.C. Circuit Court and, perhaps, to the Supreme Court (if not early, then eventually).

When the three judges pore over the legal briefs, like those filed before Judge Hogan, they are likely to discover quickly that the specific disputes over process actually emerge from fundamental discord over what is at stake. 

 The detainees start from the premise that, having been held more than six years, their “liberty interests have grown” and habeas must tilt their way, through a more elaborate, probing approach.  The government begins with the argument that these habeas cases are occurring in “wartime,” involve attempts to probe into military decision-making, and run the risk, if allowed to become expansive, of interfering directly with the war effort.

On every point of procedural disagreement, each side begins with its fundamental conception of the interests that most need to be protected as habeas cases go forward: the detainees’ need to be protected from an erroneous decision to hold them,, the government’s need to be protected from an erroneous decision to release them. Process, each side contends, will determine how those primary needs are served, or frustrated.

And those seemingly irreconcilable approaches dictate how they view the governing law, and, in particular, how they interpret two Supreme Court decisions: the Boumediene ruling on June 12 and the Court’s first decision on detainees’ rights, the 2004 ruling in Hamdi v. Rumsfeld.

The governing law, to the detainees, is the basic federal habeas statute — codified at 28 U.S. Code 2241 — that dates back in American history to 1789 and in western history to Magna Carta in 1215.  That is the statutory right that Congress sought to strip from the detainees, most recently in the Military Commissions Act of 2006.  But that court-stripping provision, according to the detainees’ counsel, was struck down by the Supreme Court in Boumediene, so Section 2241 is back in control.

Boumediene, the argument proceeds, instructed the lower courts “that habeas remains a flexible, robust procedure designed to provide a meaningful inquiry into the lawfulness of detention by executive decree….The framework for adjudicating these cases is governed by the prevailing habeas corpus statute…These cases have always been, and remain, statutory habeas cases…”

The governing law, to the government, is the Constitution itself — whatever procedural rights the detainees retain as a constitutional matter.  The court-stripping provision of the MCA, according to this argument, was a move to repeal Section 2241 so far as it applied to detainees, so that law is no longer available to them.  The Boumediene decision conferred a constitutional right of habeas — it is that right, or none at all now, according to the government, and that right is pared down to accommodate the fact that “wartime detention decisions” are being tested.

The government locates the nature of that Due Process Clause right in the Court’s ruling four years ago in Hamdi — in particular, the four-Justice plurality opinion written by then-Justice Sandra Day O’Connor.  The plurality rejected a criminal trial-like procedure for detainees, the government contends, and mandated instead a “prudent and incremental” review by the courts.

The Hamdi mandate, the government adds, was bolstered by the Court’s comments in Boumediene that habeas review now need not imitate Section 2241 procedures. It argues: “The Supreme Court both in Hamdi, and Boumediene v. Bush…, called for a much more modest role for the courts in evaluating wartime detention decisions than that proposed by the [detainees].”

The detainees’ lawyers take a markedly different view of Hamdi.  The comments of the O’Connor plurality about what process was due, this side contends, was “clear dicta,” not necessary to the decision in that case.  They note that Justice David H. Souter, in supporting the outcome to help make a majority, did not adopt the plurality view of what procedures must be followed in detainee habeas cases.  “There is no rigid ‘Hamdi Framework’ that can be applied across the board to all ‘war on terror’ habeas cases,” the detainees contend.

Out of these core disagreements emerge the specific procedural steps each side says should now be followed.  The follow-up briefs filed Friday night simply add new arguments to shore up support for the procedures outlined in the opening briefs a week ago.  A post outlining in full those proposed procedures, and how they difer, can be read here.