Tuesday, November 25, 2008
Judge John D. Bates of the U.S. District Court for the District of Columbia yesterday rejected detainee Omar Khadr's habeas petition. Khadr is a 22-year old Canadian held at Guantanamo Bay; he has been in U.S. custody since age 15.
Khadr was previously designated an "enemy combatant" by a Combat Status Review Tribunal. He is scheduled for a military commission trial for war crimes in January.
Khadr's habeas petition claimed that his military commission lacked authority to try him, because the MCA does not confer personal jurisdiction to try minors. Moreover, he claimed his detention as an enemy combatant was illegal, because under U.S. law and the law of war a minor cannot be a "member," "affiliate," or "associate" of a group like al Qaeda. Finally Khadr argued that even if he can be detained he must be transfered to a rehabilitation facility, because he was a child soldier when captured.
Judge Bates rejected the petition for two reasons. On the first two claims, Judge Bates ruled that Councilman required abstention, see Schlesinger v. Councilman at 758 (holding "that federal courts normally will not entertain habeas petitions by military prisoners unless all available military remedies have been exhausted"), and that Khadr did not satisfy the status-based exception to Councilman abstention, because his claims were statutory, not constitutional. See Councilman at 759 (holding that the pre-Councilman cases giving rise to the exception "concerned not only the military court's jurisdiction, but also whether Art. I Congress could allow the military to interfere with the liberty of civilians"--a constitutional claim that the military courts were ill-equipped to deal with).
Judge Bates ruled that Congress, under the MCA, stripped the courts of jurisdiction to hear Khadr's third claim--a claim based on 2241(e)(2) of the habeas statute--and distinguished Boumediene. The Court:
Although Boumediene declared that section 2241(e) is unconstitutional, it did not specify what portion of the statute, if any, remains in effect. Becasue section 2241(e)(1) purports to strip courts of jurisdiction to hear "an application for a writ of habeas corpus," and Boumediene held that those detained as enemy combatants are entitled to "challenge the legality of their detention" through constitutional habeas, it is clear that, at a minimum, subsection (e)(1) was invalidated. . . .
[But claims] relating to "conditions of treatment or confinement" fall squarely within the jurisdictional bar of section 2241(e)(2), and by excluding such claims from the scope of its analysis the Supreme Court appears to have left that subsection undisturbed. . . .
Judge Bates ruled that Khadr's claim was an (e)(2) claim, not an (e)(1) claim, because Khadr sought transfer to a rehabilitation facility, not complete release:
As petitioner states clearly in his reply brief, he "has not moved for complete release, but only release from adult detention and placement in a rehabilitation or reintegration program . . . ." Thus, to find that petitioner's challenge evades section 2241(e)(2)'s continuing jurisdictional bar, the Court must conclude that a request for a remedy that stops short of outright release is nonetheless a core habeas claim.
Judge Bates ruled that it is not and thus rejected Khadr's petition. (Judge Bates's opinion, of course, does not prohibit Khadr from raising his claims at his commission trial and on direct appeal.)
This is now the third time that this court classified habeas petitions as (e)(2) petitions and thus rejected them, in the course reading Boumediene not to extend to them. In the two previous cases, petitioners requested an on-base transfer and a blanket--more clearly requests that related to conditions of confinement. Khadr's claim for placement in a rehabilitation program is different, and Judge Bates's ruling seems to push the (e)(2) category.
We'll keep you posted on developments.