Federal Judiciary

GTMO Conditions and Transfer Claims

By Akin Gump Supreme Court Practice Group

A slight amplification on Lyle’s thorough post below:

Lyle writes that “[i]f Judge Hogan?s rulings withstand appeals, they would wipe out many of the claims that detainees have made since Boumediene ? challenges to transfers, to transfers without first notifying detainees? lawyers, to a lack of access to medical care and to their lawyers, to torture or abuse or to other living conditions in the various camps at Guantanamo. ”

I think this is not quite right. What Judge Hogan held in the Latif case, fairly unremarkably, is simply that section 7(a)(2) of the MCA strips courts of power to consider GTMO detainees’ claims challenging conditions of confinement and transfers, and that the Supreme Court’s Boumediene decision did not resolve the constitutionality of section 7(a)(2).

Judge Hogan did not address whether and to what extent challenges to conditions or transfers are constitutionally protected (in habeas or otherwise) and, if so, whether section 7(a)(2) is constitutional, because the petitioner did not raise that constitutional argument. Indeed, Judge Hogan’s order in the “unknown” case that DOJ is complaining about in Kiyemba was expressly predicated on the need to “protect [the court’s] jurisdiction to determine the constitutionality of section 7(a).”

In other words, Judge Hogan has yet to decide whether and to what extent the conditions and transfer claims are constitutionally protected, notwithstanding MCA section 7(a)(2).

Full post as published by SCOTUSBLOG on September 23, 2008 (boomark / email).