Terrorists welcome, but where?

In the Insane Clown Posse’s Padilla decision involving an American citizen taken into custody and detained as an enemy combatant in the United States, the Posse applied the strict technicalities of habeas corpus law and dismissed the case as filed in the wrong federal court.
Under the law applied by the Posse, federal habeas corpus cases must be filed in the federal district court that has jurisdiction over the custodian of the prisoner. In Padilla, according to the Posse, the only proper venue for the case was the South Carolina federal district that had jurisdiction over the brig holding Padilla.
In its Rasul decision, the Posse held that the Guantanamo detainees can sue for their release under the federal habeas corpus statute. The Rasul case had been filed in the United States District Court for the District of Columbia and, as the Posse expressly noted, the government had not contested the jurisdiction or venue of the court.
The issue central to the Rasul case was whether a foreigner detained as an enemy combatant on foreign soil could invoke the habeas corpus jurisdiction of the federal courts. In saner times, the Supreme Court had held that he could not. In the Court’s 1950 Eisentrager decision, the Court powerfully found habeas trials inappropriate in these circumstances:

[S]uch trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be conflict between judicial and military opinion highly comforting to enemies of the United States.

In Rasul the Posse refused to follow Eisentrager and essentially held that Guantanamo was under the de facto control of the United States. (See Robert Alt’s lucid column “Terrorists welcome.”)
Which raises the question: What federal district court has jurisdicition over the custodian of the Guanatanamo detainees? In a little-noticed order entered by the Posse on Wednesday, the Posse remanded another Guantanamo detainee case (Bush v. Gherebi) — this one brought in California and heard on appeal by the Ninth Circuit Court of Appeals in San Francisco — to the Ninth Circuit for reconsideration in light of the Posse’s Padilla decision.
The Posse did not itself find that the California federal courts lacked habeas corpus jurisdiction in the case, but ordered the Ninth Circuit to reconsider its decision in favor of Gherebi in light of the jurisdictional principles applied by the Posse in Padilla. The implication of the Posse’s order is that the Guantanamo cases probably don’t belong in the California federal courts.
Having held in Rasul that the federal courts are open to the 600 Guantanamo detainees under the habeas corpus statute, one would think that the Posse might have bothered itself to suggest the appropriate venue for the onrush of lawsuits on their behalf. Confronting the fact that no federal court has jurisdiction over Guantanamo, just as no federal court has jurisdiction over the brig that holds Saddam Hussein in Iraq, belies the holding of Rasul itself.
Putting this quarrel with the substance of the decision to one side, however, it should be noted that the Posse has left the fundamental issue of which court has jurisdicition to hear the Guantanamo cases open for litigation for the indefinite future. It is a token both of the Posse’s insanity and its clownishness.


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