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COMMENT ON PAPER ‘LAW AND THE US JUDICIARY POST THE SUPREME COURT RULING ON DETAINEES’ PRESENTED BY JUDGE DIARMUID F O’SCANNLAIN, UNITED STATES CIRCUIT JUDGE FOR THE NINTH CIRCUIT COURT OF APPEALS, TO A TWILIGHT SEMINAR HELD BY THE CONSTITUTIONAL LAW SECTION OF THE NEW SOUTH WALES BAR ASSOCIATION TOGETHER WITH THE AUSTRALIAN ASSOCIATION OF CONSTITUTIONAL LAW ON TUESDAY 24 AUGUST 2004
Justice K E Lindgren
Judge, Federal Court of
Australia
Introduction
The three Supreme Court cases with which we are concerned, were all decided on 28 June 2004. They are Rumsfeld v Padilla; Hamdi v Rumsfeld and Rasul v Bush. Padilla and Hamdi were argued on 28 April 2004, and Rasul on 20 April 2004. Some background facts appear in the opinion of O’Connor J in Hamdi. Her Honour stated (at 2):
‘On September 11, 2001, the al Qaeda terrorist network used hijacked commercial airliners to attack prominent targets in the United States. Approximately 3,000 people were killed in those attacks. One week later, in response to these “acts of treacherous violence,” Congress passed a resolution authorizing the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” or “harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Authorization for Use of Military Force (“the AUMF”), 115 Stat. 224. Soon thereafter, the President ordered United States Armed Forces to Afghanistan, with a mission to subdue al Qaeda and quell the Taliban regime that was known to support it.’
Further background to the passing of the joint resolution of Congress was given by Stevens J in Rasul (at 1-2):
‘On September 11, 2001, agents of the al Qaeda terrorist network hijacked four commercial airliners and used them as missiles to attack American targets. While one of the four attacks was foiled by the heroism of the plane’s passengers, the other three killed approximately 3,000 innocent civilians, destroyed hundreds of millions of dollars of property, and severely damaged the U. S. economy.’
President Bush issued orders that Padilla, Hamdi and Rasul were ‘enemy combatants’.
A statutory provision which was important in all three cases, but with which an Australian audience is unlikely to be familiar, is 28 USC § 2241(a), which states:
‘Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.’ (emphasis added)
The section further requires that
‘[t]he order of a circuit judge shall be entered in the records of the
district court of the
district wherein the restraint complained of is
had’. (emphasis added) Section 2242 provides that a petition
‘addressed to the Supreme Court, a justice thereof or a circuit
judge ...
shall state the reasons for not making application to the district court of the
district in which the applicant is held.’ (emphasis added)
The
United States Constitution forbids suspension of ‘[t]he Privilege of the
Writ of Habeas Corpus ... unless when in Cases of Rebellion or Invasion the
public
Safety may require it’: Art I, § 9 cl 2. In
the circumstances of these three cases, suspension of the remedy of habeas
corpus was not required by rebellion, invasion or the public safety, and,
indeed, there was no purported suspension of the remedy.
The Three Decisions
Padilla
Padilla was a US citizen. He was brought to New York in federal criminal custody. Federal agents had apprehended him while executing a material witness warrant issued by the District Court for the Southern District of New York (‘the NY Court’) in connection with its grand jury investigation into the al Qaeda terrorist attacks on 11 September 2001. He moved to vacate the warrant. While Padilla’s motion to vacate was pending in the NY Court, the President issued an order to Secretary of Defence Rumsfeld designating Padilla an enemy combatant, and directing that he be detained in military custody. He was therefore moved to a Navy brig in Charleston SC.
Counsel for Padilla filed a habeas corpus petition under 28 USC § 2241 in the NY Court alleging that the military detention violated the Constitution. The named respondents to the petition were the President, the Secretary of Defence and Melanie Marr, the commander of the brig.
The Supreme Court held that the NY Court lacked jurisdiction. The reason was, so the Court held, that the only proper respondent to the habeas petition was Commander Marr, and the NY Court lacked jurisdiction over her.
The majority held that in ‘core’ habeas challenges to present physical confinement, of which Padilla’s petition was an example, it is the ‘immediate custodian’ alone who is the proper respondent to the petition, not the Attorney-General or some remote supervisory official. Exceptions to the ‘immediate custodian rule’ have been allowed, but none of them applied in the case of Padilla. His habeas petition should have been filed in the District of South Carolina.
The dissenting justices thought that the circumstances did constitute an exception to the general rule. In particular, they argued that if jurisdiction was attracted when the petition was filed, it was not lost by reason of the later transfer of Padilla to another district. Following the making of the ‘enemy combatant’ order, the Government had asked the NY Court, ex parte, to vacate the outstanding material witness warrant. Upon the making of that order, custody of Padilla was transferred to the Department of Defence. Stevens J, dissenting, observed that it was reasonable to assume that, if counsel for Padilla had been informed, she would have filed the habeas petition then and there, while her client was still within the jurisdiction of the NY Court, rather than wait two days (by which time Padilla had been removed to the naval brig in Charleston SC). In fact, counsel for Padilla had learned only ‘from the media’ that her client had been removed.
It is consistent with the holding in Padilla, that Captain Rinnan, captain of MV Tampa, was at least a necessary respondent to the application for the ‘order in the nature of a writ of habeas corpus’ sought in Victorian Council of Civil Liberties v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1297; (2001) 110 FCR 452, as Beaumont J held he was on the appeal in that case: Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491 at [105]. Aronson, Dyer and Groves state (Judicial Review of Administrative Action (3rd ed, 2004) at 768) that ‘[t]he test is simply the ability to secure the applicant’s release’, and (at 767, fn 114), that the view expressed by Beaumont J in Ruddock v Vadarlis ‘had force’. However, the reason which the learned authors give is that it was the captain, rather than any officer of the Commonwealth, who prevented the applicants from accepting the calls of lawyers.
On 2 July 2004, just four days after the Supreme Court decision, Padilla filed a habeas petition under §2241 in the United States District Court for the District of South Carolina. The proceeding in that Court has, to date, been occupied with interlocutory steps.
Hamdi
Hamdi, also a US citizen, allegedly took up arms for the Taliban during the conflict in Afghanistan, was captured by members of the Northern Alliance and was eventually turned over to the US Military. He was detained, first at the US naval base in Guantanamo Bay, but when it was appreciated that he was a US citizen, he was transferred to a naval brig, first at Norfolk, Virginia, and then at Charleston, South Carolina.
Hamdi’s father filed a habeas corpus petition on his behalf under 28 USC § 2241, alleging that his son was detained in violation of the Fifth and Fourteenth Amendments.
Attached to the Government’s response to the petition was a declaration by Michael Mobbs, a Defence Department official. It alleged that Hamdi was affiliated with a Taliban unit and received weapons training during the time when the Taliban was battling US allies, and that Hamdi surrendered a Kalashnikov assault rifle to the Northern Alliance Forces consequent upon his unit’s surrender to them.
Hamdi’s father alleged that Hamdi went to Afghanistan to do ‘relief work’ two months before 11 September 2001, and could not have received military training.
The District Court found that the Mobbs declaration, standing alone, did not support Hamdi’s detention, and ordered the Government to produce numerous documents for in camera review. The Court of Appeals for the Fourth Circuit reversed this decision, stressing that because it was undisputed that Hamdi was captured in an active combat zone, no factual inquiry or evidentiary hearing at which he would be heard in rebuttal of the Government’s assertions, was necessary or proper. The Circuit Court thought the Government’s assertions in the Mobbs declaration, if accurate, provided a sufficient basis on which to conclude that the President had constitutionally detained Hamdi.
The Supreme Court, by majority, vacated the Circuit Court’s judgment and remitted the petition to the District Court for further hearing. The majority thought that due process demanded that a citizen held in the United States as an enemy combatant be given an opportunity to contest the factual basis of his or her detention. The Court rejected the Government’s submission that the separation of powers and the ‘limited institutional capabilities of the courts in matters of military decision-making in connection with an ongoing conflict’ ought to eliminate individual process, and leave the courts to investigating only ‘whether legal authorisation exists for the broader detention scheme’ (at 20).
The scope and content of the due process required to be accorded are not comprehensively identified in the opinions. O’Connor J, with whom Rehnquist CJ and Kennedy and Breyer JJ joined, said that a citizen-detainee must receive ‘notice of the factual basis for his classification [as an enemy combatant], and a fair opportunity to rebut the Government’s factual assertions before a neutral decision-maker’ (at 26). However, her Honour added (at 26-27):
‘At the same time, the exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict.’
As examples of this ‘tailoring’, O Connor J referred to the possible necessity of acceptance of hearsay evidence, and of a presumption in favour of the Government’s evidence.
Hamdi is a reminder that, to quote O Connor J, ‘a state of war is not a blank cheque for the President when it comes to the rights of the nation’s citizens’ (at 29).
Rasul
While Padilla and Hamdi concerned US citizens, Rasul concerned two Australians (David Hicks and Mamdouh Habib) and twelve Kuwaitis, who were captured in Afghanistan or Pakistan and handed over to the United States. They were held in military custody at Guantanamo Bay, Cuba, Naval Base (‘the Base’). (The petitioners for habeas corpus also included two British citizens, but after the grant of certiorari by the Supreme Court, they were released from custody.)
The US occupied the Base under a lease and treaty which recognised Cuba’s ultimate sovereignty, but which gave the US complete jurisdiction and control so long as it did not abandon the leased areas.
The petitioners alleged that they had never been combatants against the US, had never engaged in terrorist activities, had never been charged with wrongdoing, and had not been permitted to consult counsel or been provided with access to courts or other tribunals.
The petitioners failed in the District Court and the Court of Appeals on the ground of want of jurisdiction. Those courts held that, under Johnson v Eisentrager, [1950] USSC 60; 339 US 763, aliens detained outside US sovereign territory may not invoke habeas relief.
Over a strong dissent, the majority in the Supreme Court reversed the Court of Appeals, distinguishing Eisentrager, and held that the District Court did have jurisdiction to grant habeas corpus relief under 28 USC § 2241.
In Eisentrager, German citizens had been captured by US forces in China, tried and convicted of war crimes by an American military commission in Nanking, and incarcerated in occupied Germany. Reversing a Court of Appeals judgment finding jurisdiction, the Supreme Court in Eisentrager found that:
‘The German prisoners were:
(a) enemy aliens who
(b) had never been or resided in the United States,
(c) were captured outside U S territory and there held in military custody,
(d) were there tried and convicted by the military
(e) for offences committed there, and
(f) were imprisoned there at all times.’ (Syllabus at 2)
The present petitioners, in contrast:
The opinions delivered in Rasul differed as to the significance to be attached to two other decisions of the Supreme Court. These were Ahrens v Clark [1948] USSC 91; 335 US 188, which just preceded Eisentrager, and Braden v 30th Judicial Circuit Court of Kentucky [1973] USSC 46; 410 US 484, which was decided after it. It suffices to say that Stevens J, in whose opinion, O’Connor, Souter, Ginsburg and Breyer JJ joined, thought that a ‘statutory predicate’ to Eisentrager, established in Ahrens, namely that § 2241 required that the petitioners must be present within the District Court’s territorial jurisdiction, had been shown in Braden not to be ‘an invariable prerequisite’.
Kennedy J, filed an opinion concurring in the majority judgment. Scalia J filed a strong dissenting opinion, in which Rehnquist CJ and Thomas J joined.
Scalia J referred to the provisions of 28 USC § 2241 and § 2242 (mentioned in the Introduction earlier) and said that ‘[e]ven a cursory reading of the habeas statute shows that it presupposes a federal district court with territorial jurisdiction over the detainee’ (at 2). His Honour disagreed with the ‘statutory predicate’ argument accepted by Stevens J.
Modes of expression
I will not discuss further the reasoning in Rasul, or, in particular, the area of disagreement between the members of the Court. I wish, however, to contrast a certain mode of expression to be found in the opinions with that which is typical of Australian judgments.
First, two bouquets. The summary of the factual background in the Supreme Court opinions is admirably concise: no more is said about the facts than is necessary for the purpose of disposing of the appeal. Secondly, there are numerous references in the opinions to the opinions of the other members of the Court. That is, the members of the Court address arguments which have found favour with their colleagues, but with which they disagree. Too often in Australia, our individual appellate judgments pass like ships in the night.
A matter of concern to me, however, is those parts of the opinions which
bring to mind the words virulence, vitriol and vituperation
(an exaggeration to
be sure, but a useful one). The opinions certainly do not mince words. That of
Scalia J, in particular, does
not merely address the view of the majority;
it denounces it. The following extracts from the opinions of Stevens J,
and, in particular,
Scalia J, will serve to make my point:
Stevens J
(at 11, fn (9)): ‘The dissent also disingenuously contends that the continuing vitality of Ahrens’ jurisdictional holding is irrelevant to the question presented in these cases ...’
Scalia J
(at 1): ‘The Court’s contention that Eisentrager was somehow negated by Braden v 30th Judicial Circuit Court of Ky. [1973] USSC 46; 410 U. S. 484 (1973) – a decision that dealt with a different issue and did not so much as mention Eisentrager – is implausible in the extreme. This is an irresponsible overturning of settled law in a matter of extreme importance to our forces currently in the field. I would leave it to Congress to change §2241, and dissent from the Court’s unprecedented holding.’
(at 6): ‘Eisentrager’s directly-on-point statutory holding makes it exceedingly difficult for the Court to reach the result it desires today. To do so neatly and cleanly, it must either argue that our decision in Braden overruled Eisentrager, or admit that it is overruling Eisentrager. The former course would not pass the laugh test, inasmuch as Braden dealt with a detainee held within the territorial jurisdiction of a district court, and never mentioned Eisentrager. And the latter course would require the Court to explain why our almost categorical rule of stare decisis in statutory cases should be set aside in order to complicate the present war, and, having set it aside, to explain why the habeas statute does not mean what it plainly says. So instead the Court tries an oblique course: “Braden”, it claims, “overruled the statutory predicate to Eisentrager’s holding”, ante, at 11 (emphasis added), by which it means the statutory analysis of Ahrens.
(at 9, fn (4)): ‘Justice Kennedy’s approach provides enticing law-school-exam imponderables in an area where certainty is called for.’
(at 10-11): ‘The reality is this: Today’s opinion, and today’s opinion alone, overrules Eisentrager; today’s opinion, and today’s opinion alone, extends the habeas statute, for the first time, to aliens held beyond the sovereign territory of the United States and beyond the territorial jurisdiction of its courts. No reasons are given for this result; no acknowledgment of its consequences made. By spurious reliance on Braden the Court evades explaining why stare decisis can be disregarded, and why Eisentrager was wrong. Normally, we consider the interests of those who have relied on our decisions. Today, the Court springs a trap on the Executive, subjecting Guantanamo Bay to the over-sight of the federal courts even though it has never before been thought to be within their jurisdiction – and thus making it a foolish place to have housed alien wartime detainees.
In abandoning the venerable statutory line drawn in Eisentrager, the Court boldly extends the scope of the habeas statute to the four corners of the earth.’
(at 12): Today’s carefree Court disregards, without a word of acknowledgment, the dire warning of a more circumspect Court in Eisentrager: ...’
(at 14): ‘Fortunately, however, the Court’s irrelevant discussion also happens to be wrong.’
(at 20): ‘The fact that extraterritorially located detainees lack the district of detention that the statute requires has been converted from a factor that precludes their ability to bring a petition at all into a factor that frees them to petition wherever they wish—and, as a result, to forum shop. For this Court to create such a monstrous scheme in time of war, and in frustration of our military commanders’ reliance upon clearly stated prior law, is judicial adventurism of the worst sort. I dissent.’
On the basis of a reading of 28 USC §§ 2241 and 2242 (quoted earlier) alone, and without considering the ‘statutory predicate’ argument which found favour with the majority, I happen to see much force in Scalia J’s construction of § 2241. I respectfully suggest, however, that expressions of judicial reasoning in the strong adversarial terms used by his Honour does nothing to foster public confidence in judicial decision-making, particularly in cases with an obvious political dimension. The reason is that readers may perceive an intolerance driven by a strongly held political belief. Moreover, judges in lower courts may be led to emulate the highest court in the country, with unfortunate results. It is better that modes of judicial expression be used which clearly convey dispassionate consideration.
Habeas corpus relief in the Federal Court of Australia
The Federal Court does not have general law jurisdiction in respect of wrongful interference with the individual’s common law right of liberty of movement. An allegation that an individual is unlawfully detained does not, without more, raise a federal matter.
Sections 22 and 23 of the Federal Court of Australia Act 1976 (Cth) provide:
‘22. The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.
Whether or not these provisions empower the Federal Court to issue what may be described as a ‘writ of habeas corpus’, or ‘an order in the nature of habeas corpus’, there can be no question that they empower it to order the release of a person from unlawful detention in an appropriate case. The notion of ‘an appropriate case’ requires the existence of a federal matter in respect of which the Court has been given jurisdiction by a law of the Commonwealth Parliament, and an appropriate connection between that matter and the order for release.
In addition to grants of specific forms of jurisdiction by other Acts, subsections 39B(1) and (1A) of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) give the Federal Court such a wide jurisdiction that the Court’s power to grant relief in respect of an allegedly unlawful detention may often be found to be enlivened. Those subsections provide:
‘(1) Subject to subsections (1B) and (1C), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.
(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
(a) in which the Commonwealth is seeking an injunction or a declaration; or
(b) arising under the Constitution, or involving its interpretation; or
(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.’ (emphasis added)
There have been several recent cases in which relief has been sought in respect of the allegedly unlawful detention of asylum seekers. In Victorian Council for Civil Liberties Inc v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1297; (2001) 110 FCR 452, North J ordered that the Minister, the Commonwealth and the Secretary ‘release [the persons on the MV Tampa] and bring [them] ashore to a place on the mainland of Australia’. In Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 1009; (2002) 192 ALR 609, Merkel J made an order that the applicant be released from detention forthwith (in Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 126 FCR 54 (FC), an appeal from Merkel J was dismissed).
Beaumont J, sitting as a member of the Full Court in Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491, on the appeal from North J in the Victorian Council for Civil Liberties case, discussed the present question at [101]-[108]. His Honour expressed the opinion that the Court did not have power to issue ‘a writ of habeas corpus’, but could entertain an application for ‘an order in the nature of habeas corpus’, ‘provided the original jurisdiction of the Court was properly invoked’.
There had been two proceedings before North J: V 899/01 brought by the Victorian Council for Civil Liberties, and V 900/01 brought by Eric Vadarlis. In both proceedings, injunctions and orders in the nature of mandamus were sought against officers of the Commonwealth: cf s 39B(1) of the Judiciary Act. The concept of habeas corpus and the expression ‘habeas corpus’ appeared only in the Council’s application. The Council sought a final order that:
‘The Respondents bring before the Court the detainees referred to in the said affidavits and presently aboard the MV Tampa, to be dealt with according to law’
and an interlocutory order that:
‘The Respondents do show cause why an order in the nature of a writ of habeas corpus should not issue out of this Court directed to them, requiring them to bring before the Court the detainees aboard the vessel Tampa, to be dealt with according to law.’
The order made by North J was set out above.
Recently (on 6 August 2004) in the High Court in Al Kateb v Goodwin [2004] HCA 37; (2004) 208 ALR 124, Gleeson CJ referred to a ‘division of opinion’ in the Federal Court as to whether, under s 23 of the Federal Court Act, read with s 39B of the Judiciary Act 1903, the Federal Court ‘had power to issue a writ of habeas corpus or to make an order in the nature of habeas corpus’ (at [24]). The Chief Justice noted that the question had not been argued before the High Court and that nothing turned on it in the appeal before that Court. His Honour continued (at [24]):
‘Even if the power is best described as a power to make an order in the nature of habeas corpus, that is what was sought. Furthermore, on the matter of making orders on conditions, s 22 of the Federal Court of Australia Act is to be noted.’
His Honour appears to have had no difficulty in accepting, as Beaumont J had done in Ruddock v Vadarlis, that the Federal Court had power to make ‘an order in the nature of habeas corpus’.
I raise for consideration, but refrain from discussing, a question as to which elements, if any, of the long established habeas corpus procedure and its incidents are intended to be imported in the notion of an ‘order in the nature of habeas corpus’, over and above a simple order for release from detention. In Al-Jashamy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1008, the applicant claimed a declaration that he was unlawfully detained, and:
‘A writ of (or order in the nature of) habeas corpus directing the Respondent to cause the Applicant to be released from immigration detention forthwith.’
It suffices for me to say, in this comment on Judge O’Scannlain’s paper, that in my view there is some terminological uncertainty and confusion in this area in Australia which calls for resolution.
I conclude by noting that of considerable general importance is the Chief Justice’s statement in Al Kateb v Goodwin (at [10]): ‘Parliament cannot deprive the courts of the power to order the release of a person from unlawful detention’.
K E Lindgren
10 September 2004
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