an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Over at SCOTUSblog, Lyle Denniston has been providing a very helpful window into a mostly behind-the-scenes skirmish between the D.C. Circuit and District Judge Gladys Kessler over the latter's power to block the transfer of a Guantanamo detainee, Farhi Saeed Bin Mohammed, back to his native Algeria. As Lyle summarizes, the latest salvo came late yesterday, when a divided panel of the Court of Appeals overturned Judge Kessler's most recent order, clearing the way for Mohammed's return (Kessler had granted Mohammed's habeas petition last November).
I know it's difficult at times to keep tabs on the voluminous, fast-moving, and often sui generis litigation arising out of Guantanamo, but the central issue raised in Mohammed's case is, unlike what's true in many of these cases, a question with implications far beyond Guantanamo: do the federal courts in the exercise of their habeas corpus jurisdiction have the power to bar the transfer of a detainee to a country in which they credibly fear torture, or other forms of cruel, inhuman, or degrading treatment? In the post that follows, I briefly sketch out why this issue was not actually settled by the Supreme Court's 2008 decision in Munaf v. Geren, and why the D.C. Circuit was gravely incorrect in "Kiyemba II" to suggest that it was.
In Munaf, the question was whether the federal courts could block the transfer of particular detainees to the custody of a particular country (Iraq) in a case in which the State Department had already provided assurances that the detainees would not be mistreated in that country's custody. More to the point, the Chief Justice's opinion for the Court specifically reserved whether, even in such a case, a detainee might be able to invoke the Foreign Affairs Reform and Restructuring Act (FARRA), which incorporates our non-refoulment obligations under Article 3 of the UN Convention Against Torture (which itself prohibits the return of an individual to a country in which he credibly fears torture or other forms of cruel, inhuman, or degrading treatment). According to the Munaf Court, the petitioners there hadn't perfected their FARRA claim.
In contrast, the issue in "Kiyemba II" was whether the federal courts in general have the power in habeas cases to enjoin the transfer of a detainee to another country until and unless the court holds an evidentiary hearing on the credibility of the detainee's fear of torture. Pointedly, there was no specific country at issue, and no specific assurance by the State Department; the argument was simply that courts had the power to act until and unless a particular country was identified and appropriate assurances were provided.
A divided panel of the D.C. Circuit nevertheless held that Munaf controlled the answer to that question, reversing a district court decision that had reasoned to the contrary. Judge Griffith vigorously dissented from Judge Ginsburg's opinion for the Court of Appeals, concluding that "I do not believe Munaf compels absolute deference to the government on this matter, and I believe the premise of Boumediene requires that the detainees have notice of their transfers and some opportunity to challenge the government's assurances." As Griffith explained, Munaf hadn't settled the question, and, on the merits, the district court should have been affirmed. Reasonable people can disagree as to the second part of that statement, but it seems hard to quibble with the conclusion that Munaf didn't control...
With that in mind, the detainees sought rehearing en banc in the D.C. Circuit, and lost, 6-3. Then, they sought certiorari in the Supreme Court, and were unsuccessful, leaving Kiyemba II as the law of the D.C. Circuit going forward. That's why, presumably, the D.C. Circuit has been so obstinate in these more recent transfer cases; so long as Kiyemba II is on the books, there is nothing for the court to do (indeed, this is a major part of why some detainees have now sought initial en banc hearing in the Court of Appeals). Put another way, the battle between the Court of Appeals and Judge Kessler may have already been fought when the D.C. Circuit denied rehearing en banc in Kiyemba II.
Why does this all matter? The short answer is that the habeas/transfer issue is just as big a deal (if not bigger) in immigration and extradition cases, contexts in which detainees routinely contest their removal to a particular country on the ground that they credibly fear mistreatment. As a result, although most of the detainee litigation involves legal questions unlikely to arise in other contexts (e.g., the scope of detention authority under the Authorization for Use of Military Force), the power of the federal courts to adjudicate claims like these is a critical exception. And if both the D.C. Circuit and the Supreme Court are unwilling to revisit the issue (and the specific holding of Munaf) in the Guantanamo context, the question becomes whether another Court of Appeals might be so inclined in one of those areas, or whether an undisturbed (albeit thinly reasoned) D.C. Circuit opinion will be the last word on an issue the Supreme Court consciously sidestepped...