Normalizing Guantanamo.

• Author: Vladeck, Stephen I.
• Position: Detainees' habeas petitions

Over the past decade, a growing chorus of courts and commentators has expressed concern that doctrinal accommodations reached in post-9/11 terrorism cases might spill over or "seep" into more conventional bodies of jurisprudence. (1) Thus, the typical narrative goes, civilian criminal courts will encounter immense pressure to bend settled rules of evidence or procedure to ensure that high-profile terrorism suspects aren't acquitted on technicalities, that secrecy concerns don't prevent the government from making its case-in-chief, and so on. Indeed, whether or not one supports "special" procedural and evidentiary rules for terrorism cases, the very real possibility that such rules will not long be limited to the unique context in which they arose has routinely been invoked to militate against such departures in the first place--justifying either rigid adherence to the conventional rules, or the creation of an entirely separate system for dealing with terrorism suspects.

Regardless of where one comes down on this issue, virtually all discussions of the "seepage" concern to date have focused on criminal prosecutions; for obvious reasons, it is in that context that there is the greatest and most systemic likelihood that terrorism cases will exert pressure on judges to distort settled rules. Moreover, it is far less obvious how cases concerning the extracriminal detention or mistreatment of noncitizens at Guantanamo and elsewhere could ever raise comparable concerns; with exceptions not here relevant, (2) the government generally lacks analogous authority over individuals not affiliated with al Qaeda and its affiliates. (3) As such, no matter how much disagreement these decisions concerning the scope of the government's detention authority or the relevant burden of proof may provoke, (4) one may assume a variation on the sentiment expressed by then-Chief Judge Mukasey concerning the Padilla litigation (5)--that "Padilla's is not only the first, but also the only case of its kind. There is every reason not only to hope, but also to expect that this case will be just another of the isolated cases, like [Ex Parte] Quirin, that deal with isolated events and have limited application." (6) Like the Padilla litigation, there may be every reason to think that, for as interesting as the Guantanamo cases are, and as serious as they are to the parties involved, their broader doctrinal significance is minimal at best.

In the Essay that follows, I offer a somewhat different view. In particular, my thesis is that the Guantanamo jurisprudence of the District of Columbia Circuit ("D.C. Circuit") is beginning to have a growing impact on "ordinary" bodies of American constitutional law, at least in those areas where there is the potential for crossover. More to the point, as I've explained elsewhere, (7) the D.C. Circuit has an effective monopoly on Guantanamo litigation. Thus, whatever its merits, we simply can no longer treat the D.C. Circuit's work vis-a-vis Guantanamo as a diversion.

To illustrate this claim, I focus on the Omar litigation, an outgrowth of a habeas petition brought by a U.S. citizen detained by U.S. forces in Iraq based on allegations that he was actively involved in the insurgency against the Iraqi provisional government. (8) In its most recent decision this July (in Omar v. McHugh, or "Omar II"), a divided panel of the D.C. Circuit held that Congress had constitutionally barred the federal courts from entertaining the merits of Omar's claim that he credibly fears torture or other forms of cruel, inhuman, or degrading treatment if transferred to Iraqi custody. (9) Specifically, Judge Kavanaugh's majority opinion concluded that the Suspension Clause (10) does not bar Congress from foreclosing federal jurisdiction over such a claim, as it appeared to provide in the REAL ID Act of 2005. (11)

In its holding, the Omar II panel relied heavily on an earlier D.C. Circuit decision that did arise out of Guantanamo--the decision in Kiyemba v. Obama ("Kiyemba II"), in which the same court held that the Suspension Clause confers a right to neither notice nor a hearing prior to a detainee's transfer to any country in which the federal government has provided assurances to the court that the detainee will not be tortured. (12) Thus, although Omar II is also a military detention case, it is one critical factual step removed from the terrorism-specific context of Guantanamo. And although its rationale relies heavily on a Guantanamo case, the crux of its reasoning is even further divorced from arguments about the sui generis nature of post-9/11 terrorism detention. In short, the D.C. Circuit's decision in Omar II converts what was a Guantanamo-specific statutory holding into a general rule of constitutional law that can--and will--apply far afield of military detention cases. Indeed, as this Essay concludes, Omar II's analysis not only may impact run-of-the-mill immigration and extradition cases, but it could also empower Congress to further constrain the scope of federal habeas review in a host of additional cases.

Put simply, Omar II crosses a critical line that the courts had largely observed-perhaps to a fault in post-9/11 detention cases. And although reasonable people may well disagree about whether Omar II is rightly decided, what cannot be gainsaid is that the rule for which it stands is trans-substantive, and could dramatically affect federal habeas review going forward, along with Congress's control thereof, in cases having nothing to do whatsoever with the war on terrorism. Regardless of the effect that seepage is having on procedural and evidentiary issues in criminal cases, it is indisputable that Omar II is an example of seepage on an even bigger scale--and sub silentio, at that.

I begin in Part I with the relevant background to Omar II, including coverage of: (1) the litigation--including Omar I--that produced the Supreme Court's 2008 decision in Munaf v. Geren; (13) (2) the litigation culminating in the Court's decision on the same day in Boumediene v. Bush; (14) and (3) the D.C. Circuit's post-Boumediene jurisprudence with respect to Guantanamo, (15) in particular its decision in Kiyemba II. In Part II, I turn to the decision in Omar II itself. After recounting the proceedings before the district court after the Supreme Court's remand in Munaf, Part II focuses on the majority and concurring opinions in the D.C. Circuit, especially the analytical premises underlying Judge Kavanaugh's rationale for the majority. With the background provided in Part I as the backdrop, Part II explains how Omar II relied upon the D.C. Circuit's Guantanamo jurisprudence to resolve a general constitutional question of first impression--and in a manner that could have profound significance. Thus, Part II concludes by articulating the ways in which Omar II has already had an effect on "ordinary" immigration and extradition cases, and in which it may well yet come to bear on Congress's efforts vis-a-vis other classes of habeas claims.

1. OMAR I AND MUNAF, BOUMEDIENE, AND KIYEMBA II

   1. Omar I and Munaf

      Shawqi Ahmad Omar was one of a pair of U.S. citizens captured and subsequently detained in Iraq by U.S. forces under the auspices of the Multinational Force-Iraq ("MNF-I"). (16) Like Mohammed Munaf, (17) Omar sought to invoke the jurisdiction of the U.S. federal courts to prevent what he believed to be his impending transfer to Iraqi custody on the ground that he feared he would be mistreated--and perhaps even tortured--by Iraqi authorities. (18) To that end, Omar filed a habeas petition in the District of Columbia district court, and concomitantly sought a temporary restraining order (and subsequently a preliminary injunction) barring his transfer pending disposition of his claim for habeas relief. (19)

      The government opposed the injunction on three grounds, arguing that the district court lacked jurisdiction over Omar's habeas petition, and that, in any event, Omar could not state a viable claim on the merits, either because his claim presented a nonjusticiable political question or because he had no right not to be transferred. (20) With regard to the jurisdictional issue, the government's argument centered on the Supreme Court's terse 1948 per curiam decision in Hirota v. MacArthur, (21) which, the government claimed, foreclosed federal habeas jurisdiction over any individual in "multinational" custody. (22)

      The district court held Hirota to be distinguishable for three distinct reasons: (1) that Omar was a U.S. citizen, (2) that Omar claimed to be in the "constructive" custody of the United States, and (3) that Hirota had been overtaken by subsequent jurisprudence. (12) Judge Urbina did not proceed to rule for Omar on the merits, but instead concluded that his claim was sufficiently serious as to warrant the issuance of a preliminary injunction. (24)

      The government took an immediate appeal to the D.C. Circuit, a panel majority of which agreed with the district court in its entirety. (25) In particular, Judge Tatel held that the fact that Omar had not yet been convicted by an Iraqi court rendered Hirota distinguishable, (26) and that the district court was within its discretion to enjoin Omar's transfer in order to protect its jurisdictions Judge Brown dissented in part--largely agreeing with the majority's jurisdictional analysis, (28) but disagreeing with its affirmance of the injunction. (29) Over the dissents of Judges Brown and Kavanaugh, the D.C. Circuit denied rehearing en banc, (30) and the government sought certiorari from the Supreme Court.

      At the same time, Munaf (through his sister as his next friend) also sought to challenge his impending transfer to Iraqi custody. (31) Unlike Omar, however, Munaf had already been convicted by Iraq's Central Criminal Court ("CCC-I"), and was therefore seeking to block his transfer for purposes of serving his sentence. (32) That difference proved critical to Judge Lamberth...