I’ve written before (both here and more formally) about the post-Boumediene Guantanamo litigation in the D.C. Circuit, and the extent to which I’ve been at least somewhat unconvinced by the charge that the Court of Appeals has been engaged in a massive conspiracy to subvert the Supreme Court’s 2008 decision, recognizing that the Guantanamo detainees are entitled to pursue meaningful habeas relief in the federal courts.
That was until yesterday.
Now, and in a non-Guantanamo case, to boot, a divided panel of the D.C. Circuit has effectively held that Congress has the power to divest the federal courts of jurisdiction over a claim that an individual’s detention is unlawful. As I explain below the fold, the majority’s efforts to disitnguish Boumediene notwithstanding, yesterday’s decision in Omar v. McHugh creates a far more serious tension with that Supreme Court decision than anything the Court of Appeals has held thus far vis-a-vis Guantanamo, and in a manner that was completely unecessary to reach the same holding. Put simply, if the D.C. Circuit is right, then Boumediene is a pretty weak precedent, indeed.
First, the background. Omar is the decision on remand in one-half of the case that the Supreme Court decided on the same day as Boumediene, Munaf v. Geren. In Munaf, the Supreme Court held that the federal courts have jurisdiction to entertain habeas petitions brought by U.S. citizens detained in Iraq under the auspices of the “Multinational Force-Iraq,” who sought to block their transfer to Iraqi custody on the ground that they credibly feared torture or other forms of persecution if transferred. The Court then went on to reject the detainees’ claims on the merits, holding that, because the government averred that the detainees did not credibly fear mistreatment if transferred, and because the detainees had not offered evidence contraverting the government’s assertions, they had no entitlement to habeas relief. As Chief Justice Roberts noted in a key footnote, “We hold that these habeas petitions raise no claim for relief under the FARR Act and express no opinion on whether Munaf and Omar may be permitted to amend their respective pleadings to raise such a claim on remand.” (emphasis added).
On remand, Omar properly raised his claim under the “FARR” (Foreign Affairs Reform and Restructuring) Act, i.e., that his transfer to Iraqi custody would violate the principle of non-refoulment enmeshed within the U.N. Convention Against Torture and implemented in FARRA. But the district court held that jurisdiction was foreclosed by the REAL ID Act of 2005, part of which (8 U.S.C. § 1252(a)(4)) provides that,
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision … a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of any cause or claim under the United Nations Convention Against Torture.
Thus, the REAL ID Act effectively precludes FARRA-based habeas relief, and, as a result, any remedy for FARRA-based claims where the detainee is not subject to (or able to utilize) immigration removal proceedings. In so holding, the district court concluded that the D.C. Circuit had already resolved this question in Kiyemba II. And yet, even if this is true, Kiyemba II nowhere confronted or passed on the argument that, so construed, the REAL ID Act would violate the Suspension Clause.
That’s where yesterday’s decision comes in. Writing for himself and Judge Ginsburg, Judge Kavanaugh specifically concluded that the REAL ID Act does not violate the Suspension Clause, even though it cuts off a detainee’s access to any judicial remedy for allegedly unlawful detention. In particular, Kavanaugh’s opinion picks up the analytical thread underlying Justice Scalia’s dissent
Comments
Steve, you do a commendable job of framing the D.C. Circuit decision in the most favorable conceivable light. That being said, ignoring Boumediene for the Scalia Concurrence in St. Cyr is outrageous. At this point, I’m not sure how members of that Court are not – in each and every case – parsing the difference between the substantive constitutional right and the constitutionality of restrictions on the federal remedy. If there’s a federal right there, then there has to be a federal habeas remedy, or an adequate and effective means of testing detention that substitutes for it. Period. Not one Justice – not one – signed on to the Scalia-St.Cyr proposition when it was relitigated in Boumediene.
This is part of a growing post-Boumediene tendency to characterize the habeas remedy as the “lesser” of a “greater includes the lesser” syllogism where the habeas remedy is actually part of the right that congress creates and can revoke. Obviously, under Boumediene, you cannot frame the issue that way.
Posted by: kovarsky | Jun 22, 2011 10:22:58 AM