One of the many things that people were concerned about as the detentions and military commissions at Guantanamo Bay, Cuba, started to unfold was that they might spawn some really bad caselaw.
Depending on your point of view, this either has or has not happened, on such matters as whether the military commissions in which the Bush Administration breathed new life were valid, whether the writ of habeas corpus extended to Guantanamo Bay, and what rights detainees could actually invoke as nonresident aliens and unlawful combatants. The U.S. Court of Appeals for the District of Columbia Circuit recently decided yet another Guantanamo case, and this is one that may have consequences far beyond the detainees. Aamer v. Obama, No. 13-5223 (Feb. 11, 2014), shows how controversies involving the remaining detainees may resonate more broadly across the sweep of federal law.
At issue in the case were claims by several hunger-striking detainees that they had a right not to be force-fed. The claims were brought by petitions for writs of habeas corpus. Two questions were presented. First, are such claims properly brought as habeas corpus causes of action, and second, were they entitled to relief? District judges had found that they had no jurisdiction as a result of the jurisdiction-stripping provisions of the Military Commissions Act of 2006, and one had gone further to explain that she would deny relief on the merits even if she had jurisdiction. (The permissibility of force-feeding has been an issue in a number of states, including our own. See Commissioner of Corrections v. Coleman, 38 A.2d 84 (Conn. 2012) (permissible in case of starving inmate facing risk of death).)
The D.C. Circuit, in an opinion by Judge David Tatel, held that there was habeas jurisdiction but affirmed the denial of the petitioners’ applications for writs of habeas corpus. Senior Judge Stephen Williams dissented.
The decision is noteworthy because the majority held that objections to forced feeding of prison hunger strikers falls within the permissible scope of statutory habeas corpus. On this question there was a single square D.C. Circuit precedent, by which the panel was bound. The cases, however, are all over the place in other circuits, and the Supreme Court, which at one point had quite clearly indicated such claims did sound in habeas, has more recently been more wishy-washy. Aamer could be a vehicle for obtaining needed nationwide clarification on this important recurring question. We hope the Supreme Court grants review if a petition for certiorari is filed. Prison and other custodial authorities as well as inmates are entitled to clear guidance on the matter. The fact that the case arises from Guantanamo is immaterial; the issue really is generic.
If the court does grant certiorari, it will not have to decide the scope of the constitutional right of habeas corpus — i.e., was it frozen in 1789, or can it morph over time? The reason is that the Aamer majority determined that forced-feeding sounds in habeas and the Supreme Court has already determined that the jurisdiction-stripping provision of the Military Commissions Act did not close the door to habeas claims.
The frozen-or-changeable issue would have to be confronted, however, if Congress were to amend that act to strip the district courts of habeas jurisdiction over cases brought under the rubric of the Great Writ that concern force-feeding and similar issues. If it were to do so, the courts would have to reach the ultimate question of whether the right to habeas that springs directly from the Constitution’s Suspension Clause is truly frozen in the amber of 1789, when such a claim would almost certainly not have been entertained.
Much is at stake. This controversy could take some surprising directions depending on what Congress and the Supreme Court do. Fortunately, there are many ways issues as basic as this can be averted. But sometimes, as we know, for example, from the pending recess appointments case, they must be confronted.•