Habeas, Due Process, and... Extradition?

One of the more interesting structural constitutional questions to emerge from the post-9/11 detention litigation has been the previously under-explored relationship between the Constitution's Suspension and Due Process Clauses--and the extent to which they might do separate work with regard to the scope of judicial review in executive detention cases. Thus, for example, in Boumediene, Justice Kennedy held that "the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to 'the erroneous application or interpretation' of relevant law," even as he side-stepped deciding whether the Guantánamo detainees even have due process rights (let alone resolving how much process would be due in such circumstances). Contrast that "meaningful opportunity" with Justice O'Connor's holding for the Hamdi plurality that "due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." Are these two very similar sounding tests actually asking two different questions? Or is Boumediene just using the Suspension Clause as a backdoor way to apply due process standards to detainees who might not be protected by the Due Process Clause? With one equivocal exception, the distinction between the "meaningful opportunity" that the Suspension Clause requires and the one required by the Due Process Clause has not yet received any judicial attention. But it's starting to get noticed in the academy, including a 2010 Virginia Law Review article by Martin Redish & Colleen McNamara, a 2012 piece in the University of Pennsylvania Journal of Constitutional Law by Josh Geltzer, and, most recently, a thoughtful new article in the Cornell Law Review by Brandon Garrett. Professor Garrett's article, in particular, offers a ringing defense of the notion that, in fact, due process and the Suspension Clause are asking two distinct questions in the context of habeas challenges to executive detention: Whereas the Due Process Clause (where it applies) is primarily concerned with the adequacy of the procedures employed by the Executive Branch in subjecting the petitioner to detention, the Suspension Clause demands a fair chance to ask the more fundamental question: Is the detainee lawfully imprisoned, regardless of the fairness of the underlying process. [These questions will often--although not always--merge in the more conventional post-conviction context.] To that end, consider Chief Judge Lamberth's ruling in the MOU/access-to-counsel dispute, in which he held that, in order to vindicate their right of access to the courts under the Suspension Clause, the Guantánamo detainees are entitled to access to counsel. Judge Lamberth never expressly says as much, but the undeniable gist of his holding is that, in the context of Guantánamo, the Suspension Clause requires access to counsel even if the Due Process Clause (which may not apply) doesn't... Judge Lamberth's ruling aside, this distinction has otherwise proven particularly hard to see in the Guantánamo litigation, both because the D.C. Circuit has been reluctant to hold that the Due Process Clause applies at all, and because, more fundamentally, it has misunderstood the difference between habeas challenges to executive detention and post-conviction habeas petitions. But in a short essay in response to Professor Garrett's article, I argue that extradition provides a far cleaner (and less politically fraught) lens through which to understand this distinction--and its longer-term doctrinal significance. Consider an extradition case in which a detainee seeks to challenge his extradition on the ground that he fears torture if transferred to the requesting country. The due process question in such cases is whether the U.S. government followed the proper procedures in ensuring that it is not "more likely than not" that the detainee will be tortured if transferred. That's why, in cases like Munaf v. Geren and Kiyemba II, the government's assurance that it doesn't transfer to torture is usually the end of the due process inquiry. [I wrote a terribly long background post on the legal issues in these cases here.] But, as I explain in my essay, Professor Garrett's analysis helps to explain why, even if the government's assurances dispose of the detainee's due process claim, that's not the end of the case. After all, there is a separate legal ground (the Foreign Affairs Reform and Restructuring Act of 1998--which implements our treaty obligations under the UN Convention Against Torture) that makes it unlawful to transfer an individual whenever it is more likely than not that he will be tortured by the requesting country, without regard to the underlying process. Thus, in theory, at least, the Suspension Clause should protect a detainee's ability to raise a FARRA claim in a habeas petition, even when the U.S. government certifies that it does not believe it is transferring to torture. Of course, as I explain in the essay, a badly divided en banc panel of the Ninth Circuit came out the other way last year in Trinidad y Garcia v. Thomas, a case in which I wrote an amicus brief in support of certiorari (which the Supreme Court denied in January). But, as my essay concludes, if we take seriously the core idea that due process and habeas are asking two different questions, then it's hard not to agree with Judge Berzon's dissent in Trinidad--and with the idea that, as my response concludes, "the 'meaningful opportunity' the Suspension Clause requires courts to provide to a detainee to challenge his detention cannot be judged solely based upon due process standards." The harder task going forward is to identify the other standards that are relevant to ensuring that detainees have received the meaningful opportunity Boumediene requires. But accepting that it's not just whether he received the process that is due is a critical first step--and one with consequences far, far afield of Guantánamo.