18 December 2003

… Now It's a Headlong Rout

The Ninth Circuit has, a few minutes ago, posted a decision on the Guantanamo Bay detainees consistent with the Second Circuit's decision this morning in Padilla. In Gharebi v. Bush, a panel consisting of Circuit Judges Reinhardt and Graber, and Senior District Judge Shadur (Northern District of Illinois), held only that the courts are open to challenges, not necessarily that the detentions are unlawful.

   We hold that the district court erred in concluding, based on Johnson v. Eisentrager, that no district court would have jurisdiction over Gherebi’s habeas petition. We also hold that the Central District may exercise jurisdiction in this case because the Secretary of Defense is subject to service of process under the California long-arm statute. Finally, we remand to the district court for consideration of the question whether transfer to a different district than the Central District of California would be appropriate.

Slip op. at 58. Judge Graber dissented, holding that the situation was controlled by an existing adverse precedent.

The second sentence of its opinion contains the key to the majority’s errors here: "The issues we are required to confront are new, important, and difficult." Maj. op. at 2. Although the issues that we confront are important and difficult, they are not new. Because the issues are not new, we are bound by existing Supreme Court precedent, which the majority misreads. Because the issues are important and difficult, the Supreme Court has decided to revisit them, and we should await the Supreme Court’s imminent decision.

Id. at 59. Thus, although it is a dissent, it does not express much support for George III's suspension of habeas corpus. At least Lincoln had the good sense to formally declare it…