Habeas and the Military Commissions After Aamer

I’ve already written at some length about the D.C. Circuit’s decision last month in Aamer v. Obama, in which a divided panel held that the Guantánamo detainees may challenge the conditions of their confinement through habeas petitions, notwithstanding the language of the jurisdiction-stripping provisions of the Military Commissions Act of 2006. As Judge Tatel explained, the Supreme Court’s 2008 decision in Boumediene v. Bush—which invalidated the MCA provision that specifically foreclosed habeas jurisdiction (28 U.S.C. § 2241(e)(1))—necessarily vitiated the entire habeas-stripping provision. Thus, even in cases (perhaps like Aamer) where the petitioner’s entitlement to habeas is not protected by the Suspension Clause, Boumediene nevertheless restores the statutory habeas jurisdiction of the federal courts to the pre-MCA status quo. As I wrote shortly after the decision came down, this holding, if left unchallenged by the U.S. government, could be immensely significant for future Guantánamo detainee habeas cases—especially the Hatim (genital search / counsel access) case already argued before the D.C. Circuit. But the more I’ve thought about it, the more Aamer may also have significant repercussions for the military commissions, as well. Indeed, as I explain below the fold, Aamer not only settles the (less significant) availability of post-conviction collateral Article III review of the commissions via habeas; it may also open the door to (more significant) pre-conviction review of the commissions in at least some cases, as well. I.                  Collateral Review of Military Commissions Prior to the MCA To understand the potential significance of Aamer, let’s start with a fairly basic and uncontested proposition: Prior to the 2005 enactment of the Detainee Treatment Act (DTA), there was no way for defendants in a military commission to directly appeal their conviction to a higher U.S. court. Instead, the only review that was available was collateral review in the district courts, almost always via habeas petitions under present-day 28 U.S.C. § 2241(a). As cases in point, every significant Supreme Court military commission decision—Milligan, Quirin, Yamashita, Eisentrager, Madsen, even Hamdan I—got to the Court through habeas. Indeed, in Hamdan I, such review took place notwithstanding the newfound availability of a direct, post-conviction appeal under section 1005(e)(3) of the DTA. Because Hamdan sought to challenge the jurisdiction of the commission, the Supreme Court held, he was entitled to do so via a pre-trial habeas petition. As for the standard of review in such cases, all agree that, as in Hamdan I, it extends at least to whether the commission properly has jurisdiction. But it may extend more broadly; the Court has not had to confront this question since it broadened the scope of habeas review of civilian and court-martial convictions in 1942 and 1953, respectively. II.                  The MCA’s Jurisdiction-Stripping Provisions Enter, the MCA. In addition to the two jurisdiction-stripping provisions codified at 28 U.S.C. § 2241(e) (one for habeas actions and one for “any other action,” which the D.C. Circuit has upheld as applied to, e.g., Bivens suits), the 2006 statute also created new 10 U.S.C. § 950j(b), a jurisdiction-stripping provision that was far more specific to the commissions:

Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.

Because this provision might have prevented commission defendants with meritorious jurisdictional challenges from using habeas to block their trial, I’ve argued elsewhere that it raised serious (albeit hitherto unresolved) Suspension Clause questions. To that end, when two different defendants to post-MCA commissions—Hamdan and Omar Khadr—sought to challenge their amenability to military jurisdiction in pre-trial habeas petitions filed in 2008, both argued that, inasmuch as § 950j(b) barred the federal courts from hearing such claims, it was unconstitutional. In a pair of rulings, Judges Robertson and Bates purported to sidestep that constitutional question, holding instead that “abstention” was appropriate under the Supreme Court’s 1975 decision in Schlesinger v. Councilman—because Hamdan’s and Khadr’s claims could be adjudicated in the first instance by the commissions, and then appealed to the civilian courts under the MCA if and when they were convicted. But there can be little question that the specter of § 950j(b) was lurking in the background of both decisions—all the more so since Judge Robertson’s application of Councilman to jurisdictional challenges was dubious, at best. Had Judge Robertson not held that abstention was appropriate, he would then have needed to decide the difficult constitutional question raised by § 950j(b). Nevertheless, those decisions have been followed since, with virtually no habeas petitions coming out of the commissions in the six years since they were handed down—and even after Congress, in the Military Commissions Act of 2009, deleted § 950j(b) without comment. III.                  Aamer This is why I believe the Aamer decision may be so significant. Although Judge Tatel was there concerned with the ability of detainees not being tried to challenge the conditions of their confinement, the holding of his opinion was undeniable: Boumediene necessarily abnegated the entire habeas stripping provision of the 2006 MCA—and thereby cleared the way for any action that would have been cognizable via habeas prior to the enactment of that statute, whether or not review of such claims is constitutionally required. (He then proceeded to explain why challenges to conditions of confinement so qualify.) But as I noted above, there is no question that, prior to the MCA, collateral challenges to military commissions, both pre- and post-trial, would have been—and were—cognizable via the federal habeas statute. Thus, Congress in 2009 got rid of the first jurisdiction-stripping provision that might have blocked habeas challenges to the commissions; and last month’s decision in Aamer held that Boumediene necessarily got rid of the second one. So long as a military commission defendant can show that his habeas claim would have been cognizable prior to 2006, Aamer suggests that it should be cognizable via habeas in federal district court today. With regard to pre-trial challenges, the government will certainly argue that such claims should still be subject to Councilman abstention. But as Hamdan I itself emphasized, Councilman abstention is not appropriate in any case in which a defendant claims a right “not to be tried”—i.e., in which he challenges the jurisdiction of the commission, and not just the procedural or evidentiary rulings of the presiding judge. (See footnote 16 of Justice Stevens’s majority opinion.) Even if Judge Robertson’s 2008 rulings to the contrary in Hamdan and Khadr could be taken at face value, those rulings were decided in the shadow of § 950j(b), a provision that is no longer on the books. Thus, although its effects in this regard remain to be seen (and may well be modest), the D.C. Circuit’s Aamer decision reopens the doors of the federal courts to habeas petitions by military commission defendants, both before and after their trials.