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Analysis: Crucial new test of Boumediene

By Akin Gump Supreme Court Practice Group

pstrongAnalysis/strong/p pTaking on a task newly assigned to it by the Supreme Court, the D.C. Circuit Court in the next few weeks will be faced with answering a constitutional question of historic dimensions: what part of the Constitution extends to Guantanamo Bay, and to the foreign nationals held prisoner there?  This is a crucial test of what the Supreme Court meant in its June 12 ruling in emBoumediene v. Bush/em./p pHere is how that inquiry is likely to proceed:  on about Jan. 9 (unless the Court shortens the time), the Justices will formally put into effect the order they issued on Monday to the Circuit Court to look again at the emBoumediene/em ruling.  The specific task will be to apply that ruling to the claims of four Britons that they were tortured and suffered religious discrimination at Guantanamo when they were there./p pThe first step by the Circuit Court is likely to be a call for new written briefs on that issue, on a timetable that may run at least into February.  The Circuit Court may then hold a hearing on it, before beginning deliberating on a decision./p pThis timetable has a special significance because it means that the new review will take place after Barack Obama has become President, and it will be his Justice Department that will file the government#8217;s views in the case.  Whether the new administration will abandon the Bush Administration restrictive view on the rights of Guatanamo detainees is ucnertain at this point, but it seems a fair prospect./p pThe Britons lost their case in the D.C. Circuit last Jan. 11,  They appealed that rulng to the Supreme Court (emRasul, et al., v. Myers, et al/em., 08-235).  They asked the Supreme Court to take on the case itself, and apply its emBoumediene /emdecision to it.  As an alternative, they suggested that the Justices return the case to the Circuit Court for another look under emBoumediene/em. The Justices took the second option./p pIn the emBoumediene/em decision, the Justices had overturned another ruling of the Circuit Court, issued Feb. 20, 2007, which had concluded that those being held at Guantanamo have no constitutional rights whatsoever.  The Circuit Court had summed up that view this way: #8220;Precedent in this court and the Supreme Court holds that the Constitution does not confer rights on aliens without property or presence within the United States.#8221;/p pIn the Britons#8217; case raising constitutional and other claims about conditions at Guantanamo, the Circuit Court quoted that same language in turning down those claims. Noting that the Supreme Court was then considering whether to review the Circuit Court#8217;s emBoumediene/em ruling, the panel in the Britons case said that #8220;we must folow Circuit precedent until and unless it is altered#8221; either by the full Circuit Court emen banc/em or by the Supreme Court./p pThe Supreme Court, of course, has now overturned that Circuit precedent, at least in part.  It ruled, at the least, that the detainees do have one constitutional right #8212; a right to pursue a habeas case #8220;to challenge the legality of their detention,#8221; as Justice Anthony M. Kennedy put it./p pGiven that holding, the Court majority said, #8220;we need not discuss the reach of the [habeas] writ with respect to claims of unlawful conditions of treatment or confinement.#8221;  The Justice Department last month, in urging the Supreme Court not to hear the Britons#8217; appeal, relied specifically upon that statement in an attempt to show that the Court#8217;s constitutional conclusion in emBoumediene /emwas very limited./p pThe Department added: #8220;emBoumediene/em did not overturn the Court#8217;s prior rulings that the individual-rights provisions of the Constitution run only to aliens who have a substantial connection to our country and not to enemy combatants who are detained abroad.#8221; The Britons, to be sure, dispute that interpretation./p pThe British ex-detainees also had a part of the Court#8217;s emBoumediene /emdecision that they insisted buttressed their position, contending that this shows that emBoumediene /emwas not so limited./p pA bit of background before reciting that portion of the Kennedy opinion, since the quotation is somewhat convoluted: The Court#8217;s overall decision in emBoumediene/em had two foundation points that related to this issue. One was that the Constitution#8217;s separation of powers, preserving a significant role for the courts to second-guess presidential detention decisions, contained a strong #8220;liberty#8221; element #8212; that is, a significant guarantee of freedom from arbitrary restraint. The second was that the detainees had been held for quite prolonged periods, which enhanced their claim to some assurances about seeking their freedom through habeas./p pHere is the quotation on which the Britons relied, perhaps bearing directly on the scope of the detainees#8217; #8220;liberty#8221; interests: #8220;Because the Constitution#8217;s separation-of-powers structure, like the substantive guarantees of the Fifth and Fourteenth Amendments, see emYick Wo v. Hopkins/em, 118 U.S. 356, 374 (1886), protects persons as well as citizens, foreign nationals who have the privilege of litigating in our courts can seek to enforce separation-of-powers principles, see, e.g., emINS v. Chadha/em, 462 U.S. 919, 958-959 (1983).#8221;/p pThe Britons#8217; lawyers read that comment as indicating that non-citizens have significant #8220;liberty#8221; interests, including some level of protection under the Fifth and Fourteenth Amendments.  Those amendments guarantee #8220;due process#8221; and condemn discrimination.  The Britons#8217; case complaining of mistreatment at Guantanamo invokes both concepts, as well as other constitutional provisions.  The Justice Department does not read this quotation the same way, to be sure./p pParsing these competing visions of emBoumediene /emis likely to be at the heart of the Circuit Court#8217;s new inquiry into the ruling#8217;s scope and intention.  There are, of course, other details of the competing interpretations of what the Justices meant, but the government#8217;s narrow reading of emBoumediene/em and the ex-detainees#8217; expansive reading of it will be central./p pAnother issue that is likely to figure prominently in this new inquiry is, even assuming the Britons have some constitutional rights they can assert against their keepers at Guantanamo, do those officials have immunity to those claims?  Not surprisingly, the two sides have sharply contrasting views over whether immunity is available in the context of Guantanamo#8217;s operation./p pThe Justice Department did put forward its claim of immunity in urging the Supreme Court not to hear the Britons#8217; case at this stage.  The Department said this issue made the Britons#8217; case #8220;not a proper vehicle#8221; for addressing such constitutional claims.  The Court, without taking a position on that claim, did not turn aside the Britons#8217; petition, but instead returned the case to the Circuit Court, where the immunity issue will no doubt be another central question./p pStill, if the Circuit Court follows the accustomed procedure for dealing with immunity claims, it would first have to decide whether the detainees have constitutional rights, and then consider whether they were recognized rights at the time of the claimed incidents involving the Britons at Guantanamo.  (The Supreme Court is now considering, in a separate case [emPearson v. Callahan/em, 07-751] whether to change this order of consideration of immunity case issues. The outcome of that inquiry, too, may affect what the Circuit Court does.)/p div class="feedflare" a href="http://feeds.feedburner.com/~f/scotusblog/pFXs?a=RgN3O"img src="http://feeds.feedburner.com/~f/scotusblog/pFXs?i=RgN3O" border="0"/img/a a href="http://feeds.feedburner.com/~f/scotusblog/pFXs?a=IJ5TO"img src="http://feeds.feedburner.com/~f/scotusblog/pFXs?i=IJ5TO" border="0"/img/a a href="http://feeds.feedburner.com/~f/scotusblog/pFXs?a=0sC3O"img src="http://feeds.feedburner.com/~f/scotusblog/pFXs?i=0sC3O" border="0"/img/a a href="http://feeds.feedburner.com/~f/scotusblog/pFXs?a=2ADdo"img src="http://feeds.feedburner.com/~f/scotusblog/pFXs?i=2ADdo" border="0"/img/a /divimg src="http://feeds.feedburner.com/~r/scotusblog/pFXs/~4/488163263" height="1" width="1"/

Full post as published by SCOTUSBLOG on December 17, 2008 (boomark / email).