At one level, the D.C. Circuit’s decision this week in Aamer v. Obama on Guantanamo hunger strikes probably surprised nobody. As expected, the D.C. Circuit upheld the two district court decision to deny preliminary injunctive relief to hunger-striking Guantanamo detainees, who were challenging the government’s force-feeding regime. The significance of the case, however, lies not in the denial of the injunction but rather in Judge David Tatel’s surprising two-to-one ruling that the courts have subject-matter jurisdiction over detainee challenges to conditions of confinement—and not just at Guantanamo but at prisons generally.
In response to Congress’s attempt to categorically strip the courts of jurisdiction over detainee claims, the Supreme Court’s 2008 decision in Boumediene v. Bush created a habeas escape hatch through which detainees have been able to gain limited access to the courts, specifically to challenge the fact, duration, or place of their confinements. But the majority’s far more expansive interpretation of the scope of statutory habeas in Aamer suggests that this hatch will begin functioning as a sizeable door. That’s good news if you believe in comparatively easy access to the courts for prisoners. It’s bad news if you’re not a fan of prison litigation. But it’s a big deal.
Boumediene specifically struck down a provision of the Military Commissions Act (MCA) that purported to strip the courts of jurisdiction over the detainee habeas petitions. The decision was conspicuously silent, however, on a second provision of the same law, which purported to divest the courts of non-habeas jurisdiction as well. By effectively leaving this second provision intact, Boumediene split the universe of detainee claims into two: adjudicable habeas claims and non-adjudicable non-habeas claims. Thus, the fate of any Guantanamo detainee seeking a remedy in the federal courts hinges on what we might call Boumediene Step Zero: a threshold determination as to whether the detainee claim is appropriately styled as a habeas action.
Over at Just Security, Stephen Vladeck offers a handy overview of Judge Tatel’s opinion and some discussion of the significance of his jurisdictional holding. Rather than rehash these points, I would like to zoom in a bit on why the district court approached Boumediene Step Zero analysis the way that it did. I then zoom out on the case, offering some thoughts on how Judge Tatel’s broad interpretation of statutory habeas links up with recent scholarship suggesting a broad scope for the common law writ.
Zooming In: The Boumediene Step Zero Analysis Below
The panel’s Tuesday decision is noteworthy off the bat for the 20 pages it devotes to its Boumediene Step Zero analysis. By way of contrast, probably because the lower court judges believed the conclusion to be a foregone one, neither Judge Gladys Kessler nor Judge Rosemary Collyer offered much in the way of substantive support for their separate but largely identical holdings that the MCA stripped the district courts of subject-matter jurisdiction over the force-fed detainees’ conditions-of-confinement challenges.
Judge Tatel determines that Boumediene resulted in the wholesale invalidation of the habeas-stripping provision of the MCA, and that (contrary to what Judge Williams asserts in his dissent) congressional intent as embodied in the MCA’s surviving provision, stripping the courts of non-habeas jurisdiction, has no bearing on questions concerning the proper scope of statutory habeas. This line of reasoning leads Judge Tatel to declare that the jurisdictional issue before the court—whether conditions of confinement sound in habeas—is “not Guantanamo specific.”
Since the Supreme Court has expressly and repeatedly declined to address whether conditions of confinement sound in habeas, Judge Tatel turns to D.C. Circuit case law to settle the question. For his finding that the D.C. Circuit has generally embraced an expansive interpretation of what kind of challenges can be brought under habeas, he relies on the court’s decision in Hudson v. Hardy, 424 F.2d 854 (D.C. Cir. 1970). Judge Williams spends much of his dissent exploring technical reasons for rejecting the majority’s treatment of Hudson as precedent, but the majority’s assertion that its non-Guantanamo jurisprudence favors extending statutory habeas corpus to conditions of confinement does not seem radical. The district court has sometimes done the same. For example, in Stern v. Federal Bureau of Prisons, 601 F. Supp. 2d 303 (D.D.C. 2009), District Judge Ricardo Urbina declared, “This Circuit has not only left the door open to federal prisoners challenging conditions of their confinement via habeas petitions, but has welcomed them.” Similarly, in United States v. Stewart, 675 F. Supp. 2d 86 (D.D.C. 2009), Judge Kessler found that a prisoner’s claim that he was wrongfully denied admission to the Residential Drug Abuse Program was properly brought in a petition for habeas.
The same Judge Kessler who seemingly accepted a broad interpretation of habeas with respect to conditions-of-confinement challenges in Stewart denied detainee Jihad Dhiab’s motion for a preliminary injunction against force-feeding for failing to sound in habeas four years later. Why?
The obvious observation is that Judge Kessler—and Judge Collyer—interpreted habeas in the Guantanamo context narrowly, more narrowly than they would construe habeas in a case involving a standard federal prisoner. This narrow interpretation of detainee habeas derived from a particular interpretation of the surviving provision of the MCA. That interpretation not only differed from Judge Tatel’s but was in some tension with Justice Kennedy’s reading of the statute in Boumediene.
Recall that as amended by the MCA, pre-Boumediene, 28 U.S.C § 2241(e) provided:
(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by 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.
(2) Except as provided in [§§ 1005(e)(2) and (e)(3) of the DTA] no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
In his Boumediene opinion, Justice Kennedy expressly rejected the detainees’ contention that § 2241(e)(1) refers to one class of claims (habeas) and § 2241(e)(2) refers to another class of claims (“any other action . . . .”). Rather, he declared, “[t]he structure of the two paragraphs implies that habeas actions are a type of action ‘relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained . . . as an enemy combatant.’” Justice Kennedy’s interpretation was significant in that it contained no indication that a challenge to conditions of confinement necessarily constitutes a non-habeas action. Indeed, his interpretation suggested just the opposite: that conditions-of-confinement challenges are among the types of action that could constitute habeas actions.
Yet Judge Kessler and Judge Collyer’s treatment of the Boumediene Step Zero analysis did not take into account Justice Kennedy’s interpretation. Instead of reading § 2241(e)(2) as an absolute bar on non-habeas petitions relating to conditions of confinement, they appear to have interpreted the reference to conditions of confinement within § 2241(e)(2) as a conclusory statement that conditions of confinement are categorically non-habeas.
Zooming Out: Towards A Broad Conception of Habeas
As it turns out, the district courts were not alone in overlooking the ways in which Justice Kennedy’s reading of the MCA preserved the question of whether conditions-of-confinement challenges sound in habeas. In their filings, the appellant detainees did not invoke Justice Kennedy’s interpretation either. The detainees instead mostly argued that habeas must be available for challenging conditions of confinement where there is no alternative remedy. That is, they argued that § 2241(e)(2) makes Bivens actions unavailable to detainees seeking to challenge the conditions of their confinement, and relied on an Eighth Circuit case, Willis v. Ciccone, dating back to 1974, for the proposition that habeas relief must be available to appellants as their only resort in challenging conditions of their confinement that deprive them of “substantial rights.” But in Willis, the Eighth Circuit technically held that where all other remedies have failed, a federal prisoner may bring a habeas action to challenge conditions of confinement that constitute “a substantial infringement of a constitutional right” (emphasis added). The detainees’ decision to elide the full phrase makes strategic sense, given that it remains controversial whether and the extent to which noncitizen detainees have constitutional rights, but the omission also suggests Willis is less than squarely on point for their purposes.
Notably, Judge Tatel cites Willis only once, and merely to support his general observation that many circuits have misread a key Supreme Court decision as limiting the kinds of claims that may be brought in habeas and that, “[e]ven more perplexingly,” those circuits have ignored their own precedents following this decision recognizing that conditions-of-confinement challenges may sound in habeas.
Judge Tatel’s observation is important in that it gets at some of the contemporary problems associated with envisioning habeas as delineated by a core and margins. As Judge Tatel notes, the idea of a habeas “core” dates back to this particular 1973 Supreme Court decision in Preiser v. Rodriguez. There the Court found that challenges to the “fact or duration of his confinement” lie at the “core of habeas corpus” and therefore must be brought in habeas (as opposed to being brought under § 1983). 411 U.S. 475, 488 (1973). The Court was careful to distinguish this from the suggestion that only issues of fact and duration are cognizable in habeas, even going so far as to suggest that “[w]hen a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal.”
But this picture has proven susceptible over the decades to the very interpretation that the Preiser Court was careful to avoid: conflation of what is exclusively habeas with what habeas is exclusively. Conceiving of statutory habeas as a kind of spectrum fits—and facilitates—the modern tendency to understand the original common law writ as a safeguard for individual rights, rather than for the separation of powers. Under this schema, the habeas core, containing the right not to be illegally detained, is inviolate; lesser rights, relating to treatment while detained, are relegated to the margins for easy excision. Whenever and wherever rights hold less sway—at Guantanamo, for example, where factors like national security concerns and noncitizen status cut against rights—the substance of habeas would seem susceptible to contraction.
The legal historian Paul Halliday (on whom Justice Kennedy relies heavily in Boumediene) has done much important work in recent years that seems to undermine this rights-based understanding of the Great Writ. Halliday’s archival research—an examination of every writ of habeas corpus ad subjuciendum issuing from the court of King’s Bench every fourth year from 1502 to 1798—calls into question not only our narrative of habeas as a vehicle designed to vindicate individual rights, but also the idea that the writ as it existed at the time of the Constitution’s ratification was limited in scope. The narrow conception of habeas’s functions at common law nonetheless remains influential; for example, Judge Williams takes the majority to ask in his Aamer dissent for taking liberties “in expanding an ancient writ,” one that he asserts was “confined for centuries to attacks on the fact or place of confinement.” For an excellent overview of the implications of Halliday’s research for contemporary litigation, and in particular the Guantanamo cases, see Stephen Vladeck’s book review in the Harvard Law Review.
Insofar as it helps liberate the writ from the small box into which we have packed it, the decision handed down by the D.C. Circuit this week has major implications for the role of the judge in defining the parameters of habeas at Guantanamo and elsewhere. Some will see infidelity and mischief in this liberation. Some, rather, will see the opposite, a return to the freewheeling judge-made form of the common law writ. Consider, for example, these words from Halliday: “Habeas corpus did not evolve. Judges made it, transforming a common device for moving people about in aid of judicial process into an instrument by which they supervised imprisonment orders made anywhere, by anyone, for any reason.”