What Now at GTMO?

Marty Lederman

The Court today denied the cert. petitions in the Guantanamo detainee cases, choosing instead to wait until the Pentagon's detention decisions have been reviewed by the U.S. Court of Appeals for the District of Columbia Circuit, as prescribed in the Detainee Treatment Act and Military Commissions Act. What this obviously means is that Justice Kennedy was unwilling to tip his hand on the merits either way within the Court. (If either block of four Justices had been confident of gaining his vote, they presumably would have voted to grant the petition.)

Justice Stevens and Justice Kennedy have been the principal architects of the Court's detainee cases, and they wrote jointly today with a pointed warning to the government not to delay the proceedings below:

Despite the obvious importance of the issues raised in these cases, we are persuaded that traditional rules governing our decision of constitutional questions, see Ashwander v. TVA, 297 U. S. 288, 341 (1936) (Brandeis, J., concurring), and our practice of requiring the exhaustion of available remedies as a precondition to accepting jurisdiction over applications for the writ of habeas corpus, cf. Ex parte Hawk, 321 U. S. 114 (1944) (per curiam), make it appropriate to deny these petitions at this time. However, "[t]his Court has frequently recognized that the policy underlying the exhaustion-of-remedies doctrine does not require the exhaustion of inadequate remedies." Marino v. Ragen, 332 U. S. 561, 570, n. 12 (1947) (Rutledge, J., concurring). [NOTE Justice Stevens's continuing resurrection of the wisdom of Justice Rutledge's wartime decisions -- Marino was a case of which Justice Rutledge and his clerk, one John Stevens, were especially proud -- see Diane Amann's new article, 74 Fordham L. Rev. 1569, 1580-1582.] If petitioners later seek to establish that the Government has unreasonably delayed proceedings under the Detainee Treatment Act of 2005, Tit. X, 119 Stat. 2739, or some other and ongoing injury, alternative means exist for us to consider our jurisdiction over the allegations made by petitioners before the Court of Appeals. See 28 U. S. C. §§1651(a), 2241. Were the Government to take additional steps to prejudice the position of petitioners in seeking review in this Court, "courts of competent jurisdiction," including this Court, "should act promptly to ensure that the office and purposes of the writ of habeas corpus are not compromised." Padilla v. Hanft, 547 U. S. 1062, 1064 (2006) (Kennedy, J., concurring in denial of certiorari). And as always, denial of certiorari does not constitute an expression of any opinion on the merits. See Rasul v. Bush, 542 U. S. 466, 480-481 (2004) (majority opinion of Stevens, J.); id., at 487 (Kennedy, J., concurring in judgment).

So what now?

The vast majority, if not all, of the pending habeas petitions were brought by alien detainees who now have had a Combatant Status Review Tribunal (CSRT) hearing, who were deemed detainable "combatants," and who claim that their detention itself is unlawful -- either because the Administration is using an impermissible standard for detention, because the process in the CSRT was legally inadequate, or because the factual record does not in fact satisfy the proper legal standard for detainability.

Under the 2005 Detainee Treatment Act (DTA), preserved by the MCA, those detainees cannot bring a habeas petition, but they may appeal to the United States Court of Appeals for the District of Columbia Circuit "to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant."

And in that D.C. Circuit review, the court can (indeed, must) consider whether the CSRT's use of the DoD standards and procedures to make the determination [of enemy combatant status] is consistent with the Constitution and laws of the United States."

Whether or not the provision of D.C. Circuit appellate review is adequate from a constitutional perspective for this set of detainees -- under the Due Process Clause and/or constitutional rights of habeas corpus (reflected in Article I's Suspension Clause) -- can be a complex question that will likely turn, in large part, on the exact nature of the D.C. Circuit review that the DTA prescribes.

Although the Court of Appeals for the D.C. Circuit cannot engage in de novo review of the CSRT record itself, or consider facts outside the record bearing on the grounds for detention, it can require the CSRTs to conform their own standards to all statutory, constitutional, law-of-war, and even, perhaps, treaty-based requirements. (The Court in Hamdan indicated that the DTA's references to "the Constitution and laws of the United States" includes "the law of war," 126 S. Ct. at 2775, which the Court construes to include the Geneva Conventions. The principal sponsor of the court-stripping provision of the MCA, Senator Graham, agreed. See 152 Cong. Rec. S10266.)

Thus, even outside the structure of the habeas review that the MCA eliminates, the D.C. Circuit can still review the adequacy of the CSRT procedures to determine whether they provide the sort of evidentiary process that constitutional habeas, and due process, requires (e.g., a right to adequately rebut the government's allegations and to have a decisionmaker engage in a meaningful factual inquiry) -- and if the court finds that the CSRT process is legally deficient, it can order the CSRT to provide the required form of review of detention decisions, to the extent possible.

It is not at all clear that the D.C. Circuit review of the CSRTs could satisfy all constitutional requirements. For example, to the extent the Constitution requires some sort of factual review of the basis for detention by an independent adjudicator outside the Executive branch, the DTA might not provide for it.

Most importantly, even if the D.C. Circuit issues an injunction to the Pentagon that fundamentally restructures the CSRT process -- and, most importantly, that establishes a legally acceptable definition of "enemy combatant" for the CSRTs to use -- and even if such an injunction would be constitutionally adequate prospectively, i.e., for future detainees, it is not at all certain that that would satisfy the Constitution as applied to these detainees, most of whom have been detained at GTMO for more than five years already. Presumably even a substantially revamped CSRT, on remand from the D.C. Circuit, would not issue revised detention decisions for quite some time -- to be followed by yet further D.C. Circuit review. To the extent constitutional habeas and due process require timely review of the Executive's detention decisions -- see, e.g., Preiser v. Rodriguez, 411 U.S. 475, 495 (1973) (“"[S]peedy review of [a prisoner’'s] grievance . . . is so often essential to any effective redress.”" -- any D.C. Circuit-issued remedy, which could take years to implement, might be constitutionally inadequate as to these detainees, even if it might "cure" the constitutional problems going forward.

One other important factor: As Justice Breyer stresses in his dissent from denial of cert., the D.C. Circuit panel has already held that the alien detainees at GTMO enjoy no constitutional rights -- a holding that the Supreme Court will almost certainly reverse, but that is the law of the case for now. As long as that decision stands, the court of appeals will not be willing to enjoin the CSRTs to comply with any constitutional requirements. The only way for the court of appeals to address any constitutional deficiencies, therefore, would be for the full en banc court to overrule its previous decision -- something that would prolong the proceedings even further. That's very unlikely. Breyer: "It is unreasonable to suggest that the D. C. Circuit in future proceedings under the DTA will provide review that affords petitioners the rights that the Circuit has already concluded they do not have." And yet the detainees are likely to get a favorable decision on the constitutional question (at least in pa rt) from the Supreme Court). Therefore, although the tactics on this are uncertain, the detainees might well be best served by a quick and decisive loss in the D.C. Circuit, so that the constutional and other important questions can get to the Supreme Court sooner rather than later.
Posted 10:04 AM by Marty Lederman [link]