28 June 2004

I. Civil Procedure

The most obvious civil procedure issue in the Detainee Trilogy is "jurisdiction." The Court held that US courts do have jurisdiction to hear each of these challenges; Padilla must refile his challenge, though, because he filed it in the wrong US court. This latter holding, though, bears much more careful consideration than I can give it quickly. It presents an interesting dilemma facing anyone in custody: Who and where do I sue for release? Mr. Padilla chose to sue the Secretary of Defense in the Southern District of New York. Padilla sued in New York because that court had issued the material witness warrant that resulted in his arrest at O'Hare, after which he was held in New York for a time. Padilla filed a motion objecting to this detention. The President then designated Padilla an enemy combatant and transferred him to the USN brig in Charleston, South Carolina. Padilla's attorney then filed a habeas corpus petition in New York, where the matter remained pending.

The Supreme Court held that Padilla should have filed (a) naming the brig commander and not Secretary Rumsfeld (b) in South Carolina. If one follows the precedents and statutory language blindly and literally, I am afraid that this is a fairly obvious result with this Court. The "immediate custodian rule" mandates (a). This crabbed interpretation actually comes from some rather strange case law interpreting sovereign immunity rules. The particular set of cases in question could have benefitted from Judge Posner's "pragmatic" approach, because they represent an attempt through a formalism to both allow for relief and respect "sovereign immunity." This particular rule does not change the identity of those who will actually defend the action; it changes only the names on the petition. Unlike the ordinary lawsuit, in which naming the correct defendant really is required for substantive justice, a habeas corpus petition is actually pointed at a broad governmental action. Nobody can reasonably pretend that Commander Marr is sitting outside Padilla's cell with a 9mm Beretta pulling guard duty. Instead, she is a facility commander. In reality, though, she does not have the authority to release Padilla. She has the power to do so; but then, so does every guard in the cell block. Under the logic of the "immediate custodian rule," given the unique way that military prisons and detention facilities are organized, the "correct" respondant is not Commander Marr, nor Secretary Rumsfeld; it is instead the Judge Advocate General of the service that controls the facility in question. Frankly, this whole issue is just an invitation to meaningless motion practice. It's an area of procedure that desperately calls for fundamental rethinking; but, as it stands, it's the law.

The proper location for Padilla's suit is a much closer question. Padilla was taken into custody in Chicago, then sent to New York. He is currently being held in South Carolina. Forcing the habeas corpus petition to South Carolina, when the substance of anything related to his custody will be heard in New York, is the worst kind of substitution of form for substance. Immediately upon the government receiving indications that the judge in New York intended to rule against it, Padilla was moved to a presumably much more government-friendly jurisdiction: South Carolina, in the Fourth Circuit. Given the Fourth Circuit's record on civil rights and criminal law in the last two decades, this is awfully close to unethical forum shopping. Further, there is little or no connection between the brig in Charleston and the ongoing investigation or the ongoing trial. In order to actually interrogate Padilla, either the investigators must come to him or he must be sent elsewhere. Thus, although the Court's decision to send this to South Carolina is defensible, it is even less logical than the "immediate custodian rule"'s designation of the "correct" respondant. Since habeas corpus is supposed to be protection against arbitrary government action, it seems rather ironic that the government can take arbitrary action to manipulate the forum. It's not a pleasant irony. It's not particularly funny, either.

So, then, Padilla has to go to South Carolina and refile. I would invite the judge who hears the matter to accept it on the briefs and confirm the Southern District's ruling. It would be within his discretion to do so, precisely because the Supreme Court refused to rule upon the merits and the merits were fully litigated previously in a court competent to hear such matters. Both the government and Padilla deserve a rapid decision on the merits. Of course, that's not what the government wants.

The civil procedure questions in Rasul and Hamdi are much more straightforward and much less controversial. In both of those cases, the Court held that US courts may hear challenges to detention. This is a resounding defeat for the Bush Administration. Bush didn't even want to play the game. He still gets to do so with tremendous advantages over the defendants; but this is one of those instances in which the refusal to play with others says more about the strength of the substance than the Administration might wish. The old "we don't want to set a precedent" is a smokescreen, because it goes the other way, too: The continued detention itself sets a precedent, because regardless of the authorization to use military force we are not in a state of war. Absent the state of war, the government's procedural posture falls on its face, because "military necessity" is not a valid rationale for detentions inconsistent with criminal law and procedure. Sorry, guys, but this particular formalism is required not just by the Constitution (requirement to formally suspend habeas corpus through Congressional action), but by at least six treaties. Considering how many wars arise or are extended by failure to communicate, this particular formalism—placing the opponent on unambiguous notice of the failure of nonviolent means to resolve the dispute—seems much more important than most.

The only potential controversy is the Gitmo question: Is Gitmo, which is outside of US territory, sufficiently within US control to allow jurisdiction of US courts? Frankly, if it's sufficiently within US control to make the authorities comfortable keeping prisoners there in indefinite confinement, it's sufficiently within US control for the appropriate US court to have jurisdiction. This isn't even a close question. Look at it this way: The prisoners are clearly within somebody's control; that's what "prisoner" and "detainee" mean. They are either within US control, or the control of somebody other than the US. Who might be able to enforce a demand to release the prisoners/detainees without using force to conquer the physical location of custody? The US.

Sometimes logic does have a place in civil procedure.