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Oral Argument Recap: Aamer v. Obama

Wells Bennett
Friday, October 18, 2013, 11:19 PM
Here’s a read-out from today’s oral argument in Aamer v.

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Here’s a read-out from today’s oral argument in Aamer v. Obama, in which hunger-striking Guantanamo detainees have asked for a preliminary injunction against a Guantanamo force-feeding procedure, and alleged deliberate isolation from other detainees---and deprivation of their right to pray communally---during Ramadan. The three-judge panel (Circuit Judges David Tatel and Thomas Griffith, and Senior Circuit Judge Stephen Williams) made no effort to knock down the detainees’ arguments about why the court had jurisdiction to hear the case.  For example, none of the three mentioned the district court’s conclusion that Aamer’s case was barred by the Military Commissions Act’s ban on non-habeas actions, including those protesting detainee mistreatment. Judges Tatel and Griffith even expressed a measure of sympathy for the detainees’ reading of some relevant D.C. Circuit case law.  At the same time, Judge Tatel was openly hostile to the government’s effort to narrowly characterize some of the court’s past rulings---which seemingly accept habeas as an appropriate vehicle for challenges to confinement conditions, under certain circumstances.  Still, the government seemed to fare better when talk turned to the detainees’ purported legal entitlement not to be force-fed and what it might mean for courts to enforce that entitlement at Guantanamo. So how does that all shake out? As always, best practices counsel against making firm predictions based on oral argument, and I won’t venture one. For what it is worth, the larger litigation trends here don't suggest a surefire detainee victory, though.  The United States Court of Appeals for the District of Columbia Circuit is not exactly known for enthusiastically enlarging its role, or that of the district court, in managing day-to-day detention policy.  Still, the morning's proceedings left me thinking that Aamer and company might have bolstered their position a bit, at least with regard to their jurisdictional claims.   


Those claims boil down to this question: does habeas jurisdiction encompass the detainees’ legal attack on the force-feeding protocol in use at Guantanamo? There might be the makings of an answer in the precedents, and the court of appeals had instructed the parties to come ready to debate four older D.C. Circuit cases touching on the scope of habeas review. The balance of the morning’s argument thus turned on whether, in light of the rulings---Miller v. Overholser, Creek v. Stone, Hudson v. Hardy, and United States v. Wilson----habeas jurisdiction comprises challenges to the fact and place of confinement only, or, also, challenges to a detainee's conditions of confinement. If the former, as the government contends, then there’s likely no jurisdiction over Aamer, period; if the latter, then there might well be. The detainees’ attorney, Jon Eisenberg, naturally opted for the second approach. And he made some headway during his remarks---or, at least, he didn’t run headlong into any firm resistance.  Judge David Tatel invited the lawyer to refute the United States’ contention that the four rulings were mere “place cases”---ones that didn’t suggest the viability of conditions-related challenges.  Eisenberg calmly took Tatel up on this, and faced no serious pushback during his explication.  (The sole exception here was  a quiet, clarifying inquiry from the panel’s lone senior judge, Stephen Williams.)  Wilson spoke of habeas review when a prisoner’s rights aren’t “respected,” argued Eisenberg; Creek said habeas would be appropriate, not only when a petitioner protests the location of his detention, but also when he protests “certain conditions … that he claims vitiate the justification” for it.  Tatel added that Creek almost certainly couldn’t be recast as a “place” case: after all, the remedy for the petitioner there, a juvenile, could have been a transfer to another detention facility or lawful treatment in the same facility. So no location-only problem there. The suggestion favored his client, so Eisenberg went along with it; ditto when Judge Thomas Griffith chimed in, and puzzled over why Eisenberg hadn’t made more of Kiyemba II. In a footnote, that D.C. Circuit case had said Boumediene, by invalidating the Military Commissions Act’s habeas jurisdiction-stripping provision, effectively restored Guantanamo detainees to review under the federal habeas statute.  Well, if that’s true, then it only helps you, said Judge Griffith: Eisenberg, after all, is citing statutory habeas decisions. Eisenberg certainly did not protest Griffith’s observation, much as he hadn’t protested the earlier one by Tatel. With regard got the merits, Judge Tatel tested Eisenberg’s theory, that force-feeding bears no relationship to a legitimate penological interest. (The legal principle is that when a prison regulation impinges on prisoners’ constitutional rights, then the regulation must bear a reasonable relationship to such an interest.)  The judge asked about a long string of detainee-unfavorable cases, cited by the United States, all of which affirmed the government’s legitimate interest in maintaining security and good order at prisons. Well, why isn’t that also true at Guantanamo? The lawyer acknowledged the cited authorities, but suggested nevertheless that an alternative approach---that employed under California state law---would better suit the case at bar. The lawyer surmised that JTF-GTMO officials had jumped the gun in some instances, by force-feeding certain detainees (Eisenberg’s clients, presumably) before their hunger strike began to pose a mortal risk. The California regime, he said, could account for this. Of course, the legitimacy of the government’s claimed interest was not the end of the matter, under the applicable legal standard.  Judge Tatel said that, if indeed the United States’ interest is legitimate, then it remains to determine whether JTF-GTMO’s force-feeding protocol is reasonably related to that interest's advancement. On this point, Eisenberg observed that the case had been knocked out on jurisdictional grounds, and that consequently there was no record evidence regarding the fit between the government’s chosen means (the force-feeding protocol) to achieving its policy objective (maintaining good order at GTMO). Here, Senior Judge Stephen Williams was especially skeptical of what, to his mind, Eisenberg’s California approach seemed to imply. Putting the courts in the business of monitoring the health of almost-dying detainees, Williams said, would be an “astonishing” thing.  Eisenberg countered that it would be just as astonishing instead to allow force-feeding to continue---and that, at any rate, he can’t test the nexus between the protocol and the government’s claimed interest. After all, he barely has access to his client at GTMO, let alone to documents and evidence bearing on what does and doesn’t help to ensure order there. The government’s attorney, Dan Lenerz, got an earful, both about his client’s interest in maintaining order and about the reach of habeas review. Starting with the former, Judge Griffith played on an Eisenberg-esque string. So how can the detainees challenge the relationship between order and security, on the one hand, and the force-feeding protocol, on the other? The United States’ lawyer didn’t really answer, other than to suggest that prison officials’ decisions are entitled to deference, and all the more so in the Guantanamo context. A visibly-doubtful Griffith wondered whether that made the invocation of a facially plausible interest a “trump card” for the United States. When the judge again asked, Lenerz told Griffith that the United States might flunk the legal test if an alternative approach to hunger striking detainees obviously could better achieve the goal of good order and security at Guantanamo. This paved the way for things jurisdictional, and for a reprise of Judge Tatel’s questions regarding Miller, Creek, Hudson, and Wilson. Each time, Lenerz strained to portray the rulings as concerned with the fact or place of confinement only. Each time, Judge Tatel corrected him, by noting either explicit, contrary language (like Creek’s “vitiate the justification” phrase) or other details that hinted at habeas review over conditions cases. (Judge Tatel separately chided Lenerz for omitting, from court correspondence, key language from Miller---which had implied that confinement conditions were, in fact, a proper subject for habeas inquiry.) Lastly, when pressed, Lenerz eventually came to what seemed to be be the day’s punch line: he agreed with Judge Tatel that the Supreme Court has left open, in Boumediene and other cases, the question of whether habeas encompasses challenges to a detainee’s treatment. So, asked the judge, why not resolve the matter now, by creating new law? Lenerz answered with a nod towards the Military Commissions Act, which strips the courts of jurisdiction over “other action[s]” arising from Guantanamo detentions, including those arising from treatment and confinement. Rising in reply, Eisenberg suggested a mechanism for probing the relationship between the force-feeding regime and the government’s objective of ensuring safety at Guantanamo. The burden might be placed on the government to come forth with evidence of that link, which Eisenberg could then test in a classified setting---say, by adducing proof of actual conditions at the detention facility. Judges Griffith and Williams both doubted this, the first by asking what such GTMO-specific evidence would prove; the second by asking if the court shouldn’t rely instead on other sorts of non-GTMO-specific proof.

Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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