Posts Tagged ‘habeas’

Government Narrows Its Argument in Gtmo Habeas Cases

March 16, 2009

Friday, the United States filed a significant document in habeas corpus proceedings before Judge Bates in the District Court for the District of Columbia.  Coincidentally, this was the same day on which Chief Justice John Roberts appointed Judge Bates to be the chief judge of the FISA court.  The submission revises the legal position of the United States regarding its justification for detaining persons at Guantanamo Bay.  Prior submissions in the habeas litigation - as well as numerous assertions in other proceedings and in public - had always included reliance on the President’s “inherent powers” as commander in chief as one justification for the detentions.  These assertions had typically been made in tandem with reliance upon the Authorization for the Use of Military Force enacted by Congress just one week after September 11, 2001, Pub. L. 107-40, 115 Stat. 224 (2001).  The most recent submission by DOJ completely drops reliance on inherent presidential powers.  Instead, the submission argues there is ample authority to detain in the combination of the AUMF itself, the president’s conceded central role in executing the country’s war powers, and international law.   Although the declaration never mentions the Steel Seizure decision, it is easy to put the submission into the typology developed by Justice Jackson’s concurrence in that case:  the submission rests the detention authority totally within the confines of Category 1 of Justice Jackson’s concurrence, portraying this as a situation in which “the President acts pursuant to an express or implied authorization of Congress,” where “his authority is at its maximum, for it includes al that he possesses in his own right plus all that Congress can delegate.”

For the habeas defendants, this may not be such good news… (more…)

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Obama Says: No Habeas in Bagram

February 23, 2009

To the growing list of legal proceedings or issues in which the young Obama administration has taken the same stance as the much-maligned Bush administration you can add this one:  non-citizens being detained at Bagram Airfield, forty miles north of Kabul in Afghanistan cannot file habeas petitions in U.S. federal courts to challenge the validity of their detention. 

In a pending habeas proceeding in the District of Columbia District Court, Judge John Bates asked the Justice Department shortly after the Inaugural whether it wished to reconsider its position that the writ of habeas corpus did not extend to detainees at Bagram.  But as Lyle Denniston has reported on Scotusblog, on Friday the government said, “no thanks.”  Charlie Savage writes in the NYT that this decision was “generally expected among legal specialists,” but nonetheless is a “blow to human rights lawyers,”  one that Joan Walsh at Salon calls “appalling.”  With the U.S. position unchanged and the matter briefed and argued, we will await Judge Bates’ decision, which will surely be appealed regardless of how it turns out.

In the meantime, what to make of this latest in a series of cases, more fully documented in an earlier Savage article, in which the Obama administration has declined to put much daylight between its legal position and that of its predecessor?  This one is a little complicated.  The government’s position that the federal courts lack the jurisdiction to hear habeas cases brought by Bagram detainees is hardly without merit.  In fact, if you were making a judgment solely on the weight of existing legal authorities, you certainly could conclude that position was more sound than the contrary one.  At the same time, the most recent pronouncement on the reach of the Great Writ outside of the territorial boundaries of the United States has complicated the legal analysis considerably.  Because of the Supreme Court’s decision last term in Boumediene v. Bush, the legal question raised by the Bagram case is not free from doubt. (more…)

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