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The True Significance of Judge Tatel’s Opinion in the Force-Feeding Appeal

As Wells already flagged over at Lawfare, the D.C. Circuit decided Aamer v. Obama this morning — the effort by some of the Guantánamo detainees to challenge the force-feeding protocol instituted by the government in response to hunger strikes that were themselves precipitated by a new genital search policy (the validity of which is still pending before the D.C. Circuit in Hatim v. Obama, which was argued in December). The immediate headline from this morning is that the Court of Appeals unanimously affirmed the district court’s denial of plaintiffs’ request for a preliminary injunction. But insofar as a divided panel held that the federal courts do have jurisdiction to entertain the detainees’ challenges to their “conditions of confinement,” the decision is, in fact, perhaps the most significant victory for the detainees in any post-Boumediene D.C. Circuit habeas case–and one that could have sweeping consequences not just in future Guantánamo cases, but in all prisoner litigation going forward.

I.  Judge Tatel’s Parsing of the Military Commissions Act of 2006

There are two issues in Aamer: Whether the force-feeding protocol violates the detainees’ rights, and whether the federal courts even have the power to answer that question. Before getting to the second question, it’s important to understand the government’s argument on the first point–and the significance of Judge Tatel’s rejection thereof.

In amending the federal habeas statute in the Military Commissions Act of 2006, Congress actually passed two jurisdiction-stripping provisions. The “habeas strip,” 28 U.S.C. § 2241(e)(1), is the provision that the Supreme Court invalidated in Boumediene v. Bush, at least as applied to “core” challenges by detainees to the legality of their detention. The other jurisdiction stripping provision, § 2241(e)(2), is the one that the D.C. Circuit has continued to enforce against any and all non-habeas claims by current or former detainees, as I discussed a few weeks back in respect to the Court of Appeals’ January decision in Al-Janko v. Gates. Like HatimAamer falls into a gap in this decisional law; on the one hand, the detainees are seeking to use habeas, and not some other civil action, to challenge the conditions of their confinement, and so decisions like Al-JankoAl-Zahrani v. Rodriguez, and Kiyemba II are inapposite. On the other hand, they are not challenging the legality of their detention, and so it’s not immediately obvious that their claim is covered by Boumediene–insofar as it’s not immediately obvious that such a claim is constitutionally protected by the Suspension Clause.

Hence the significance of Judge Tatel’s opinion today. Writing for himself and Judge Griffith (more on the significance of that lineup below), Tatel held that, Boumediene necessarily eviscerated the habeas stripping provision, § 2241(e)(1), in its entirety. Thus, the question becomes whether challenges to conditions of confinement would have been cognizable under the pre-MCA federal habeas statute. Relying on authority from several different circuits (and on well-founded disagreements with the courts of appeals appearing to hold to the contrary), Judge Tatel holds that the answer is yes–that, as a matter of pure statutory interpretation, challenges to conditions of confinement were cognizable under § 2241 prior to 2006, and so are still cognizable under § 2241 after Boumediene

My own view, not surprisingly, is that Judge Tatel’s statutory analysis (both with respect to the effect of Boumediene and the pre-2006 law) is spot-on. Yes, as Judge Williams’s dissent notes, some circuits had held to the contrary, and this was arguably an open question in the D.C. Circuit at the time the MCA was enacted. But as Judge Tatel explains with respect to the first point, those decisions are invariably based upon a misreading of the Supreme Court’s 1973 decision in Preiser v. Rodriguez, which emphasized which claims should be brought via habeas as opposed to other actions for civil relief–not which claims could not be brought at all. As for Judge Williams’s second objection, that the law wasn’t settled in the D.C. Circuit when the MCA was enacted doesn’t mean that, in an appropriate case, the Court of Appeals wouldn’t have reached the exact same holding as Judge Tatel.

II.  The Significance of Aamer‘s Statutory Holding

To be sure, Judge Tatel was at pains to stress the limited nature of the holding. Nothing in Aamer suggests that Congress couldn’t take away habeas jurisdiction over challenges to the conditions of confinement, even though I (and plenty of others) believe that such a statute would raise serious Suspension Clause questions. Indeed, the avoidance canon, especially the strong form thereof that the Court has historically applied in habeas cases, would have provided a compelling additional justification for Judge Tatel’s interpretation of the habeas statute, had he wished to go there.

Instead, all Judge Tatel held is that Boumediene abnegated all of § 2241(e)(1), and not just that section as applied to claims protected by the Suspension Clause. Such a holding, indeed, will allow this and future courts to avoid having to assess the scope of the Suspension Clause in every single similar case–but also leaves Congress the power to try to remove this basis for habeas jurisdiction, as well.

But even a statutory holding that the detainees are entitled to pursue challenges to their conditions of confinement is a significant one, both for the Guantánamo detainees and for anyone else detained within the jurisdiction of the D.C. Circuit. After all, Judge Tatel’s analysis clears away the biggest hurdle to relief in these cases, and requires courts to confront such challenges on their merits–whether, in fact, the conditions of the detainees’ confinement are unlawful. In that regard, Aamer clears the way for Hatim, in which the Court of Appeals can now directly confront the difficult counsel access issues raised by the genital search policy. (The Hatim panel includes Chief Judge Garland and Judges Griffith and Henderson.)

And although the government as recently as a year ago might have considered trying to have this case reheard en banc, changes in the composition of the Court of Appeals, along with the fact that Judge Griffith sided with Judge Tatel’s jurisdictional analysis (and is sitting on Hatim), would render pointless any such effort. The government could always, of course, seek to take this case to the Supreme Court. But even though the Court has usually said yes when the government asked it to hear a counterterrorism case, it’s hard to see why the Court would feel impelled to take the government’s appeal of a victory — in which an effort to enjoin the government’s force-feeding protocol was turned aside. Of course, that could always change after further proceedings on remand. Speaking of which…

III.  Whither the Merits of the Force-Feeding Challenge

At the same time, the majority held that, on the merits, the plaintiffs could not show that they were entitled to a preliminary injunction, largely because they couldn’t show, at least at this preliminary stage, that the force-feeding policy was not “reasonably related to legitimate penological interests,” the test enunciated by the Supreme Court in Turner v. Saffley.  But that may well change on remand. As has been well-documented elsewhere, the government has encountered some difficulties with respect to articulation of the force-feeding protocol, and it’s entirely possibility that discovery and opportunities for additional hearings in the district court will provide the plaintiffs with an opportunity to satisfy even Turner‘s highly deferential standard. Indeed, Judge Tatel specifically highlights this possibility on page 31 of his opinion, previewing three of the more plausible grounds on which the petitioners might prevail:

It is conceivable that petitioners could establish that the government’s interest in preserving the lives of those detained at Guantanamo is somehow reduced, or demonstrate that the government has such complete control over Guantanamo detainees that hunger-striking inmates present no threat to order and security, or even show that there are “ready alternatives” to force-feeding that the government might employ to achieve these same legitimate interests. We leave it to the district court in the first instance to decide what procedures may be necessary to provide petitioners a ‘meaningful opportunity’ to make this showing [quoting Boumediene(!)].

In any event, the more important point for present purposes, though, is that they will have that opportunity. And the longer that Guantánamo remains open, the more the detainee litigation will become about the conditions, and not the merits, of the detainees’ confinement–and the more significant Aamer will become in cementing the role of the federal courts in resolving those challenges on their merits.

 

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About the Author

is co-editor-in-chief of Just Security. Steve is a professor of law and the associate dean for scholarship at American University Washington College of Law. Follow him on Twitter @steve_vladeck.