Global (Statutory) Habeas After <em>Aamer</em>

As my co-authors and I put the finishing touches on the 2014-15 Supplement to Aspen Publishers' National Security Law and Counterterrorism Law casebooks, I had another thought about the potential consequences of the D.C. Circuit's February 2014 decision in Aamer v. Obama—about which I've blogged a fair amount previously. Recall that, in Aamer, the D.C. Circuit held that the Supreme Court’s decision in Boumediene v. Bush necessarily invalidated the habeas-stripping provision of the 2006 Military Commissions Act in its entirety, and not just as applied to claims protected by the Suspension Clause. That is to say, Aamer holds that Boumediene renders 28 U.S.C. § 2241(e)(1) permanently unenforceable, and thereby restores the federal habeas statute to its pre-2005 status quo. As I’ve written previously, such a ruling, at the very least, re-opens the doors to pre-trial habeas challenges by military commission defendants. But the pre-2005 status quo can also be divined from the Supreme Court’s decision ten years ago this Saturday in Rasul v. Bush, which held that the federal habeas statute allows federal courts to entertain any otherwise proper habeas petition from a detainee in U.S. custody so long as the court has jurisdiction over one of his custodians. As Justice Stevens wrote for the Court, “Petitioners contend that they are being held in federal custody in violation of the laws of the United States. No party questions the District Court’s jurisdiction over petitioners’ custodians. Section 2241, by its terms, requires nothing more.” Although it was discussed, the unique nature of U.S. control over Guantánamo, unlike in Boumediene,did not end up as a condition upon the Rasul Court’s statutory holding. If that’s true, then why wouldn’t it be the case that Aamer thereby reopens the D.C. courts’ doors to habeas claims by individuals—including non-citizens—in U.S. custody elsewhere, including those detainees still in U.S. custody in Afghanistan? To be sure, there are a pair of D.C. Circuit decisions rejecting such jurisdiction. But both of those opinions were focused on whether such jurisdiction is mandated by the Suspension Clause—i.e., they turned on whether, after and in light of Boumediene, the Suspension Clause “has full effect” at Bagram. If Aamer meant what it said, then the applicability of the Suspension Clause is not dispositive of the courts’ jurisdiction. As an ordinary matter of statutory interpretation, the federal courts in general, and the D.C. courts, in particular, have jurisdiction over any habeas petition brought by an individual who alleges that “[h]e is in custody in violation of the Constitution or laws or treaties of the United States,” and who names as custodian an official subject to the jurisdiction of U.S. courts. (And, just to be clear, neither D.C. Circuit opinion in the Bagram cases considered this statutory argument—and so neither would be prior precedent with which Aamer is inconsistent.) Of course, the population of detainees at Bagram still in U.S. custody may be a vanishingly small set, and so this analysis may not have any immediate effect. But insofar as future extraterritorial habeas cases are concerned, Aamer suggests that Boumediene resolves as a matter of statute the availability of jurisdiction that courts had held was not required by the Suspension Clause. At least for the time being, that appears to be the law of the D.C. Circuit.