Wednesday, October 9, 2013
The Ninth Circuit ruled this week in Hamad v. Gates that the Military Commissions Act of 2006 deprived federal courts of jurisdiction over a Guantanamo detainee's claim that his detention violated the Constitution.
In so ruling, the Ninth Circuit joins the D.C. Circuit in holding that 28 U.S.C. Sec. 2241(e)(2) deprives federal courts of jurisdiction over these kinds of claims, even as the Supreme Court in Boumediene struck the habeas jurisdiction-stripping provision in 28 U.S.C. Sec. 2241(e)(1).
The MCA, 28 U.S.C. Sec. 2241(e), says:
(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for 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.
(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of 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.
The Supreme Court struck 2241(e)(1) in Boumediene. The question in Hamad is whether 2241(e)(2) survived.
The Ninth Circuit said yes, joining the D.C. Circuit. The rulings mean that Guantanamo detainees are cut off from the federal courts in all but habeas cases (under 2241(e)(1)).