Balkinization: SG Brief in Opposition in <span style="font-style:italic;">Boumediene</span>

SG Brief in Opposition in Boumediene

Marty Lederman

The Solicitor General has filed his brief in opposition to the cert. petitions in Boumediene, the GTMO habeas actions (Nos. 06-1195, 06-1196). As I predicted (see here and here), the SG -- no doubt aware that the Court is likely to hold that the Constitution protects the detainees at GTMO -- has decided to focus the case on the much closer question, which is whether the D.C. Circuit review of CSRT determinations, prescribed in the DTA and MCA, is an "adequate substitute" for habeas, assuming that the detainees at GTMO do have constitutionally protected habeas rights.

In particular, the government argues that to the extent the Pentagon's CSRT procedures are statutorily or constitutionally inadequate, the D.C. Circuit could say so (and could presumably order the Pentagon to perform legally adequate reviews -- although the SG doesn't quite say that). The government also stresses that in the pending Bismullah and Parhat cases (to be argued in mid-May), the D.C. Circuit might even hold (over the government's own argument to the contrary) that the court of appeals can engage in "an exhaustive scope of review [of CSRT decisions], including wide-ranging discovery and fact-finding by the court of appeals."

The SG also argues that the Court should not entertain the petitions until next Term, after the D.C. Circuit has determined the nature of its review, and has actually implemented the review procedures in particular cases. Much more on the procedural and timing arguments from Lyle Denniston here.

Posted 7:59 PM by Marty Lederman [link]

Comments:

The Hamdan Court invited Congress to set up a formal review process and it has done so. The Government's brief is merely using the Court's own argument to advance its position.

# posted by

Bart DePalma : 8:22 PM

"Bart" DePalma:

The Hamdan Court invited Congress to set up a formal review process and it has done so....

No. They, at best, invited an adequate substitute. Whether the sham put together by the Dubya malamdinistration and their acolytes in Congress is inded sufficient is the question that Prof. Lederman opines they will address. There are still some that think that confessions and testimony elicited under torutre don't meet the smell test, and that lawyers provided by the prosecution are hardly adequate advacates for the defence (particularly given the history of Lt. COmmander Swift).

Cheers,

# posted by

Arne Langsetmo : 11:29 PM

It's rich that Dubya's solicitor general is arguing against the "ripeness" of this case. I think I'd add Dubya v. Gore to the list of authorities in the response brief for the proposition that courts can hear a case well in advance of any actual factual record being developed.

Cheers,

# posted by

Arne Langsetmo : 11:37 PM

Interesting that Clement is trying to tell the Supreme Court what Rasul meant. Wonder if that's gonna fly.... Generally it's a bad idea to tell the very justices that wrote an opinion what they said.

Cheers,

# posted by

Arne Langsetmo : 11:50 PM

Another thought:

Much is made of Eisentrager and other cases where the person in question had never been in U.S. "soveriegn" territory. But the MCA has not such exemption for such people; for its purposes it is sufficient that the person be an "alien". But what of aliens captured here and shipped to Guantanamo?

In addition, where lies the "sovereignty" of a person in a vessel on (or over) the high seas? AFAIK, the laws that apply to such vessels is that of the flag of the vessel. In this case, have the folks that have been transported to Guantanamo been in U.S. "sovereign" territory while en route?

Cheers,

# posted by

Arne Langsetmo : 11:57 PM

Tactically, as in so many other controversies, the administration lawyers are seeking to run out the clock.

It is interesting that other political developments may proceed in the meantime:

1) There likely will be legislative efforts, originating in House Appropriations, to require the closure of Guantanamo and transfer of prisoners to stateside military facilities during the next fiscal year.

2) If a Democrat or Republican John McCain should win the 2008 election, the next president may well order Guantanamo closed.

Since the government's underlying argument about the Suspension Claus and habeas jurisdiction rests on the unique geography of the Guantanamo base, that is all the more reason for the administration to rely on the theory that the CSRT procedures are an adequate substitute for habeas.

# posted by

JaO : 11:04 AM

I find myself surprised that the government is going forward with an argument that DTA review is a sufficient substitute for habeas when they themselves admit that "it is not yet established how, in practice, DTA review will be conducted."

Clearly, the point they make in the brief that you can't declare a process insufficient until you've seen it in action makes sense, but surely they know that sword cuts both ways?

# posted by

PMS_Chicago : 1:59 PM

PMS_Chicago:

I find myself surprised that the government is going forward with an argument that DTA review is a sufficient substitute for habeas when they themselves admit that "it is not yet established how, in practice, DTA review will be conducted."

Not to mention, they can keep stalling by saying they're still setting them up, and thus the courts just have to wait. WHose fault is it that there are no "DTA reviews" to look at? SInce there are none, that's hardly an "adequate substitute"....

Cheers,

# posted by

Arne Langsetmo : 5:58 PM

And, as it turns out in today's New York Times, New to Job, Gates Argued for Closing Guantanamo.

Even within the current administration, the secretaries of Defense and State favor closing Guantanamo. That leaves Bush, Cheney and Gonzales as proponents of the status quo, where almost their entire legal case barring habeas rests on Guantanamo's geographic status. (But the MCA also purports to deny habeas to alien "enemy combatants" in the United States.)

# posted by

JaO : 9:55 AM

JaO:

(But the MCA also purports to deny habeas to alien "enemy combatants" in the United States.)

But then they have to deal with constitutional habeas reach (w/o Eisentrager, or what's left of it, in the list of authorities), or with the adequacy of the "suspension".

I'd say they'll have a tough time for someone within U.S. sovereign territory who chooses to make a stink (or if the transport on U.S. flagged vessels is sufficient nexus with U.S. sovereignty to defeat objections based on Eisentrager).

And as JaO poitns out, the law doesn't distinguish (any more; DTA did, but not MCA). I guess we're just waiting for the right petitioner to show up to invoke standing. No wonder that Abu Gonzales, Cheney, and Dubya are resisting the closing of Guanatanamo....

Cheers,

# posted by

Arne Langsetmo : 1:28 PM

Arne: I guess we're just waiting for the right petitioner to show up to invoke standing.

The constitutionality of the MCA denial of habeas, at least as-applied, is already being challenged in the al-Marri case. Ali al-Marri is the only alien actually held in the United States as an "enemy combatant."

Interestingly, al-Marri already has had a habeas proceeding devised by a magistrate judge, was denied relief on the merits, and now is appealing that result. The government actually takes the position that this was a full habeas proceeding in which Al Marri received just as much process as would be due to a U.S. citizen (such as Hamdi) held as an "enemy combatant." Thus, this case already provides some precedent for habeas review for Guantanamo detainees if they should be transferred stateside.

Al-Marri's habeas proceeding took place before the MCA was enacted, and the government's position is that the MCA also prevents the appeal from going forward.

# posted by

JaO : 2:54 PM

JaO:

Thanks for that info.

Cheers,

# posted by

Arne Langsetmo : 6:29 PM