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Comments on Criminal Issues
April 8, 2007
TERROR, TORTURE AND TRANSFERS
Houston Criminal Defense Attorney John Floyd Discusses Continued Litigation Caused by the Bush Administration’s Handling of Detainees at Guantanamo Bay
In 2006 the Congress passed the Military Commissions Act. § 7(a)(1) of that Act, applicable through 28 U.S.C. § 2241(e)(1), deprives courts from having jurisdiction over any “application for a writ of habeas corpus filed by or on behalf of an alien detained in 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.”
Further § 7(a)(2) of the MCA, applicable through 28 U.S.C. § 2241(e)(2), precludes the jurisdiction of the courts over “any other action … relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of” such an alien detained by the United States “[e]xcept as provided in” § 1005(e) of the Detainee Treatment Act (DTA), applicable through 10 U.S.C. § 801. The DTA deprived courts of jurisdiction over any actions brought by Guantanamo Bay detainees pursuant to the DTA, § 1005(e)(1). See: 28 U.S.C. § 2241(e)(2005). The Supreme Court, however, subsequently held that these provisions of the DTA did not apply to those petitions by Guantanamo Bay detainees pending in the courts when the DTA was enacted. See: Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2762-69 (2006).
In 2007 the D.C. Circuit Court of Appeals held that § 7(a)(1) of the MCA does not violate the Suspension Clause of the United States Constitution. See: U.S. Const. art. I, § 9, cl.2. See: Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), The appeals court premised its decision on the constitutional finding that habeas corpus does not apply to foreign nationals who do not have a right of presence or property in the sovereign territory of the United States. Id., at 981. The United States Supreme Court on April 2, 2007 initially denied Boumediene’s petition for a writ of certiorari, 127 S.Ct. 1478 (2007), but on rehearing granted the petition on June 29, 2007. See: 127 S.Ct. 3078 (2007).
Following the Supreme Court’s grant of certiorari in Boumediene, the appeals court and the district court in the District of Colombia issued either stay or recall orders in a long list of cases raising the same issue presented in Boumediene. These courts have authority to hold in abeyance cases they felt presented substantial jurisdictional questions. See: New Mexico Navajo Ranchers Ass’n v. I.C.C., 850 F.2d 729, 731-31 (D.C. Cir. 1988) [“Our decision to {hold the case} in abeyance seems necessarily to have rested on an assumption that this court secured jurisdiction.”].
In 2005 an Algerian national named Ahmed Belbacha filed a petition for writ of habeas corpus under the All Writs Act, 28 U.S.C. § 1651 challenging his detention at Guantanamo Bay, Cuba in the United States District Court for the District of Columbia. While the petition was pending, the Bush administration made a policy decision to reduce the number of prisoners held at Guantanamo. Belbacha was then deemed fit for release back to Algeria. Lawyers for Belbacha sought interim relief, requesting that the district court bar his transfer to Algeria where he faced torture by that country’s government and possible death from an extremist organization that had threatened his life. Relying upon § 7(a)(2) of the MCA and the D.C. Circuit’s decision in Boumediene v. Bush, the district court refused to grant preliminary relief barring the transfer saying it lacked the jurisdiction to do so. See: Belbacha v. Bush, No. 05-2349, U.S. Dist. Ct. (July 27, 2007).
On March 14, 2008 the D.C. Circuit Court of Appeals reversed that decision. See: Belbacha v. Bush, No. 07-5258 (D.C. Cir. 03/14/08) [Slip Opinion]. The appeals court had to first decide whether it had appellate jurisdiction:
“We have jurisdiction to entertain Belbacha’s interlocutory appeal. Although the district court characterized the relief he seeks as a ‘temporary restraining order,’ that court’s order dismissing his motion ‘effectively foreclose[s]’ Belbacha ‘from pursuing further interlocutory relief in the form of a preliminary injunction,’ and is therefore ‘tantamount to denial of a preliminary injunction,’ appealable under 28 U.S.C. § 1292(a)(1). Moreover, because Belbacha sought a stay of his transfer pending the Supreme Court’s decision in Boumediene and it was clear the Court would take more than 20 days to decide that case, preserving the status quo required a preliminary injunction rather than a temporary restraining order. See Fed.R.Civ.P. 65(b)(2)(imposing time limitation upon a temporary restraining order).” Id., at p. 2-3 [Internal citations omitted].
Having established jurisdiction, the appeals court had to confront the central question of whether the district court was barred jurisdiction to enjoin Belbacha’s transfer in light of the MCA and Boumediene v. Bush. The appeals court pointed out that when a case presents a “substantial” jurisdictional question, the district court has the authority under the All Writs Act to preserve “its jurisdiction while it determines whether it has jurisdiction.” Id., at 4. See also: United States v. United Mine Workers, 330 U.S. 258, 293 (1947). Against that backdrop, the appeals court concluded:
“ … absent a bar to its remedial powers, the court’s authority pursuant to the All Writs Act to grant Belbacha’s motion for interim relief depends upon whether Belbacha’s claims sound in habeas corpus and, if so, whether our decision in Boumediene renders insubstantial his argument that the district court has jurisdiction.” Id.
The Supreme Court has held that jurisdiction under the All Writs Act depends upon a colorable claim. See: Bell v. Hood, 327 U.S. 678 (1946), The All Writs Act grants a court the power to issue “all auxiliary writs” as “may be necessary for the exercise of a jurisdiction already existing.” See: Adams v. McCann, 317 U.S. 269, 273 (1942).
Under instruction of these Supreme Court precedents, the D.C. appeals court said that “ … the MCA, of course, leaves intact the presumptive jurisdiction of the federal courts to inquire into the constitutionality of a jurisdictional-stripping statute.” Belbacha, supra, at 5. The remaining issue was whether Belbacha’s had presented a “colorable claim.” The appeals court concluded he had:
“We conclude that Belbacha’s petition for a writ of habeas corpus is colorable. Belbacha does not challenge only his transfer to a country that might torture him; he contests also the basis for his detention as an ‘enemy combatant.’ Should the Supreme Court hold in Boumediene that a detainee at Guantanamo Bay may petition for a writ of habeas corpus to challenge his detention, and should the district court conclude that Belbacha’s detention is unlawful, then the Executive might be without authority to transfer him to Algeria. We need not and do not address the Government’s argument that, irrespective of the Supreme Court’s holding in Boumediene, § 7(a) of the MCA constitutionally bars Belbacha’s underlying claims for relief; the district court has the authority to grant Belbacha’s preliminary relief because the Suspension Clause colorably protects those claims and … because § 7(a) does not displace its remedial powers.” Id., 5-6.
This conclusion by the appeals court was influenced by its previous decision in Omar v. Harvey that habeas corpus was a proper remedy for a U.S. citizen held in Iraq who challenged the custody of an Iraqi court for trial. See: 479 F.3d 1, 10 (D.C. Cir. 2007). See also: Wang v. Ashcroft, 320 F.3d 130, 141 (2nd Cir. 2003)[habeas corpus is a proper remedy to challenge deportation in violation of Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3, Dec. 10, 1984, 1465 U.N.T.S. § 123].
The Belbacha court held that its ruling in Boumediene did not lessen the colorable status of Belbacha’s argument. The appeals court noted that the Supreme Court has made it clear that a prior adverse decision by the court forecloses and renders insubstantial a jurisdictional question, but the Supreme Court said nothing about a prior appeals court decision foreclosing a jurisdictional question. See: Steel Co. v. Citizens for a Better Env’t., 523 U.S. 83, 89 (1998). See also: Belbacha, supra, at 6. The appeals court then crystallized its reasoning:
“A decision of this court is binding upon a later panel and upon the district court. We hold, nonetheless, that when the Supreme Court grants certiorari to review this court’s determination that the district court lacks jurisdiction, a court can, pursuant to the All Writs Act, 28 U.S.C. § 1651, and during the pendency of the Supreme Court’s review, act to preserve the status quo in other cases raising the same jurisdictional issue if a party satisfies the criteria for issuing a preliminary injunction.” Belbacha, supra, at 7.
In dissent, Circuit Judge Randolph did not object to the majority’s finding that the district court had jurisdiction over Belbacha’s petition but disagreed with the way the court reached its conclusion:
“Students of federal courts will be surprised to learn that district judges have jurisdiction to issue preliminary injunctions in cases in which they have no jurisdiction to issue permanent injunctions. That is the majority’s position here today.
“I have no quarrel with the majority’s point that the district court had jurisdiction to determine whether § 7(a) of the Military Commissions Act, stripping that court of jurisdiction, was unconstitutional. But I cannot see how this bears on the question before us. The district court has already decided that circuit precedent compelled it to uphold the statute, as indeed it did. It therefore makes no sense to send the case back to the district court so that it may decide whether to issue a temporary injunction in aid of its jurisdiction to decide something is has already [correctly] decided.
“This should have been a very simple case. Instead it has been turned into a tangle. All we have to do was issue a stay under the All Writs Act, 28 U.S.C. § 1651, preventing Belbacha’s transfer to Algeria pending the Supreme Court decision in Boumediene v. Bush … We would do so for the traditional reasons – because there is a substantial chance the Court’s decision will affect Belbacha’s case and because he would suffer irreparable harm.” Id., at 12.
Beyond the grave constitutional importance of the pending Boumediene case, the Belbacha case underscores the contentious impact the Military Commissions Act has had on the D.C. Court of Appeals and the district courts in the District of Columbia who confront legal actions filed by detainees at Guantanamo Bay. The Supreme Court will soon decide whether these detainees have any constitutional right of access to the nation’s court system. If the Supreme Court upholds those provisions of MCA that bar access to the courts by these detainees, there is growing support in the Congress to repeal the statute. In the meantime, the Constitution hangs in the balance and hundreds of prisoners at Guantanamo Bay and other “secret prisoners” suffer an endless cycle of physical and psychological abuses. That is not what America is about.
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