Detention & Guantanamo

D.C. Circuit Denies Government's Motion to Postpone Argument in Aamer v. Obama

By Jane Chong
Wednesday, October 9, 2013, 9:32 AM

The government may not have its act together, but the third branch insists on carrying on anyway.

The other day, the Justice Department filed a motion to postpone oral argument in the force-feeding case currently before the D.C. Circuit Court of Appeals, Aamer v. Obama, citing lack of funding due to the government shutdown. The motion explained:

Absent an appropriation, Department of Justice attorneys are prohibited from working, even on a voluntary basis, except in very limited circumstances, including "emergencies involving the safety of human life or the protection of property.” 31 U.S.C. § 1342 . . . . If this motion is not granted, Department of Justice counsel will be authorized to appear and will plan to appear at the oral argument, pursuant to the authority provided by the “very limited circumstances” noted above.

The motion also noted that detainees' counsel, Jon Eisenberg, objected to the requested postponement on grounds of exigency as well as nonrefundable travel costs already incurred.
Yesterday the D.C. Circuit denied the government's motion per curiam. The order states, in full:

Upon consideration of appellees’ motion to postpone oral argument in light of lapse of appropriations, it is ORDERED that the motion be denied. This case remains scheduled for oral argument on October 18, 2013.

That means oral argument is still on for October 18, 2013, before Judges David Tatel and Thomas Griffith and Senior Circuit Judge Stephen Williams.
UPDATE: The D.C. Circuit has ordered sua sponte that the parties be prepared to argue the relevance of four specific cases to the court's jurisdiction to issue a writ of habeas. The cases are as follows:

United States v. Wilson, 471 F.2d 1072 (D.C. Cir. 1972) involved the appeal of a defendant who was transferred at the Attorney General's discretion to a penitentiary in Pennsylvania and alleged that his confinement violated the Eighth Amendment “in view of his alleged mental illness,” id. at 1077. The D.C. Circuit ruled that the defendant “unquestionably” had a right to challenge his confinement in the penitentiary on these grounds, id. at 1081, but that the challenge had to be brought in the district of his confinement in a habeas or civil rights proceeding.

In Hudson v. Hardy, 424 F.2d 854 (D.C. Cir. 1970), an inmate appealed the district court’s dismissal of his petition to removed from his control cell but was transferred to a prison outside the appellate court’s jurisdiction while the appeal was pending. The D.C. Circuit observed that the inmate's pleadings were “styled” as a petition for declaratory judgment, id. at 855, and if so treated, the case was not moot. If, however, the appellant did not desire his pleadings to be treated as an action for damages, the case would essentially amount to a petition for habeas and might be moot, unless the imposed discipline in question affected his record such that it affected his eligibility for parole. The court remanded the case to the district court both for a determination as to how the inmate intended to style his pleadings, and for a determination of mootness.

In Creek v. Stone, 379 F.2d 106 (D.C. Cir. 1967), the D.C. Circuit declared moot the appeal of an arrested juvenile who claimed that he was being unlawfully confined in a state home pending final disposition of his case. The court first noted, however, that “in general habeas corpus is available not only to an applicant who claims he is entitled to be freed of all restraints, but also to an applicant who protests his confinement in a certain place, or under certain conditions, that he claims vitiate the justification for confinement.” Id. at 109.

Miller v. Overholser, 206 F.2d 415 (D.C. Cir. 1953) involved a defendant who filed a habeas petition after being detained in a hospital as a sexual psychopath; the writ was subsequently discharged by the district court. The D.C. Circuit found that habeas was an "available remedy for the correction" of the defendant's situation, relying in particular on In re Bonner, 151 U.S. 242 (1894) (“[T]he writ is available to test the validity not only of the fact of confinement but also of the place of confinement.”) and Logan v. United States, 144 U.S. 263 (1892) (“‘The Government has the absolute right to hold prisoners for offenses against it but it also has the correlative duty to protect them against assault or injury from any quarter while os held. A prisoner is entitled to the writ of habeas corpus when, though lawfully in custody, he is deprived of some right to which he is lawfully entitled even in his confinement, the deprivation of which serves to make his imprisonment more burdensome than the law allows or curtails his liberty to a greater extent than the law permits.”).