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.