Friday, March 20, 2009

The Changing Face of Habeas for Guatnanamo Detainees?

A group of Guantanamo detainees yesterday filed a Supplemental Memorandum arguing that the Geneva Conventions guarantee them certain conditions of confinement and that the federal courts have jurisdiction under the habeas statute to enforce them.  Many thanks to Lyle Denniston at SCOTUSblog for first reporting the filing and for the link to the Memo

The Memo comes in response to a court order dircting the detainees to address whether the Geneva Conventions (or anything else) guarantee the petitioners certain conditions of confinement, and whether the detainees can enforce any guarantees in federal court via habeas corpus.

The Memo focuses almost exclusively on whether the Geneva Conventions are enforceable on habeas--an issue I won't discuss here--and merely cursorily on what we might imagine to be the threshold question: Do these detainees enjoy the privilege of habeas at all? 

Petitioners argue that Boumediene answers the question: Yes.

There have been developments since June 2.  In particular, the Supreme Court decision in Boumediene v. Bush, 128 S. Ct. 229 (2008) removes any doubts about this court's jurisdiciton of the subject matter of this action under 28 U.S.C. Sec. 2241 [the habeas statute].  That case held that the legislation repealing the statutory habeas remedy of 28 U.S.C. Sec. 2241 et to prisoners at Guantanamo was constitutionally void and thus ineffective to eliminate this statutory habeas remedy.

The answer may be more complicated.

As I've noted in previous posts, under a narrow reading of BoumedieneGuantanamo detainees enjoy the privilege of habeas only to challenge their confinement itself, not the conditions of their confinement.  The difference is set out between Sections 2241(e)(1) (upon which the Court ruled in Boumediene) and Section 2241(e)(2) (which the Court did not squarely address):

(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(e)(2) Except as provided [in the appeal procedure provided for in the Detainee Treatment Act of 2005], no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

According to this view, Boumediene ruled on Section 2241(e)(1), not Section 2241(e)(2).

There are now at least three opinions from the D.C. District that adopt this narrow reading and refuse to extend Boumedieneto cover Section 2241(e)(2).  As a result, the D.C. District has held that Section 2241(e)(2) prohibits a habeas petition relating to the detainee's conditions of confinement.  To the extent that these petitioners' claims relate to the conditions of confinement (and not confinement itself), they may run up against these recent D.C. District holdings.

And it may be yet more complicated than this.  The administration just last week redefined detainable individuals, leaving out the phrase "enemy combatant."  (The administration wrote that this narrow class of individuals falls outside the definition of "prisoner of war," but that individuals within this class are nevertheless detainable under the laws of war.)  Sections 2241(e)(1) and (e)(2) specifically use the phrase "enemy combatant."  Do these sections no longer apply--by their plain terms--to detainees at Guantanamo?  Perhaps, if the present administration is not detaining them as "enemy combatants."  (This might seem like blind formalism; or it may be the administration's attempt to render Sections 2241(e)(1) and (e)(2) nugatory and obsolete.)

And what of the administration's review of Guantanamo and its detention policies in the war on terror?  The administration signalled last week that it will respect the AUMF and international law as limits upon its detention ability.  Will it also accept those sources as limits upon its treatment of detainees?

We don't yet know the answers to these questions yet, but we'll soon find out: The administration's response is due on March 26.  We'll keep you posted.


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