Belbacha v. Bush (D.C. Cir. 3/14/08)

GINSBURG, Griffith, Randolph (dissenting)

In a Guantanamo case, the D.C. Cir stayed the removal of an individual from Guantanamo to Algeria, where he fears torture. The Court found a substantial possibility that the District Court maintained habeas jurisdiction, and found that the District Court's power under the All Writs Act to enter collateral orders to preserve its jurisdiction would suffice to grant it authority to stay removal to Algeria.  Found that in light of gravity of harm feared (torture), Belbacha might be able to meet the standard, remanded to Dist Ct. 

http://pacer.cadc.uscourts.gov/docs/common/opinions/200803/07-5258b.pdf

Individual detained in Guantanamo fears removal to Algeria, where he says he will be tortured.  Filed habeas petition in District Court, arguing that his detention at Guantanamo is illegal, and also asking the District Court to enjoin removal to Algeria.  District Court refused, citing circuit precedent; appealed to DC Circuit.

1.  If habeas petition presents "substantial question" as to jurisdiction, District Court has power to grant preliminary relief.

   If a case presents a “substantial” jurisdictional question, then under the All Writs Act, 28 U.S.C. § 1651, a district court may act to preserve its jurisdiction while it determines whether it has jurisdiction. United States v. United Mine Workers, 330 U.S. 258, 293 (1947); see also Bell v. Hood, 327 U.S. 678 (1946); cf. Omar v. Harvey, 479 F.3d 1, 11-14 (D.C. Cir. 2007) (court may temporarily enjoin transfer in order to preserve jurisdiction), cert. granted on a different question sub nom., Geren v. Omar, No. 07-394 (Dec. 7, 2007) (citing Ntakirutimana v. Reno, 184 F.3d 419, 423 n.7 (5th Cir. 1999) (stay of extradition pending appeal); Then v. Melendez, 92 F.3d 851, 853 n.1 (9th Cir. 1996) (same)). Accordingly, absent a bar to its remedial powers, the court’s authority pursuant to the All Writs Act to grant Belbacha’s motion for interim relief depends upon whether Belbacha’s claims sound in habeas corpus and, if so, whether our decision in Boumediene renders insubstantial his argument that the district court has jurisdiction. Cf. Bell, 327 U.S. 678 (jurisdiction depends upon colorable claim); see also Adams v. McCann, 317 U.S. 269, 273 (1942) (All Writs Act grants power to issue “all auxiliary writs” as “may be necessary for the exercise of a jurisdiction already existing”) (quoting Whitney v. Dick, 202 U.S. 132, 136-37 (1906)).

2.  Finds claim to be substantial - if detainee can challenge "enemy combatant" designation, Govt may lack authority to remove him to Algeria.

   We conclude that Belbacha’s petition for a writ of habeas corpus is colorable. Belbacha does not challenge only his transfer to a country that might torture him; he contests also the basis for his detention as an “enemy combatant.” Should the Supreme Court hold in Boumediene that a detainee at Guantánamo Bay may petition for a writ of habeas corpus to challenge his detention, and should the district court conclude that Belbacha’s detention is unlawful, then the Executive might be without authority to transfer him to Algeria.* See Omar, 479 F.3d at 10 (holding writ of habeas corpus may be used to challenge transfer of U.S. citizen held in Iraq to custody of Iraqi court for trial); Benson v. McMahon, 127 U.S. 457, 462 (1888) (extradition); INS v. St. Cyr, 533 U.S. 289 (2001) (deportation); see also Wang v. Ashcroft, 320 F.3d 130, 141 (2d Cir. 2003) (writ of habeas corpus used to challenge deportation in violation of Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3, Dec. 10, 1984, 1465 U.N.T.S. 85); but cf. Mironescu v. Costner, 480 F.3d 664 (4th Cir. 2007) (Section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, 112 Stat. 2681, 8 U.S.C. § 1231 note, renders Convention Against Torture judicially cognizable only in the context of removal by immigration authorities).

3.  Found that jurisdiction-stripping provision did not strip jurisdiction "in aid of" preexisting jurisdiction, under All Writs Act.

   The district court held, and the Government argues, that in light of § 7(a)(2) of the MCA, the federal courts are without power to entertain Belbacha’s motion seeking temporarily to enjoin his transfer from Guantánamo to Algeria. Section 7(a)(2) strips the courts of their “jurisdiction to hear or consider any other action ... relating to any aspect of the ... transfer” of a detainee. It does not displace their remedial authority, pursuant to the All Writs Act, to issue an “auxiliary” writ “in aid” of a “jurisdiction already existing,” see Adams, 317 U.S. at 273, here the jurisdiction to determine whether § 7(a) is constitutional. See United Mine Workers, 330 U.S. at 293; see also Clinton v. Goldsmith, 526 U.S. 529, 534-35 (1999) (All Writs Act empowers court to issue writs “‘in aid of’ its existing statutory jurisdiction; the Act does not enlarge that jurisdiction”). Precedents of the Supreme Court compel the conclusion that the federal courts’ remedial powers are intact. Califano v. Yamasaki, 442 U.S. 682, 705 (1979) (“Absent the clearest command to the contrary from Congress, federal courts retain their equitable power to issue injunctions in suits over which they have jurisdiction”); FTC v. Dean Foods Co., 384 U.S. 597, 608 (1966) (“In the absence of explicit direction from Congress,” court retains authority pursuant to All Writs Act to preserve status quo when “necessary to protect its own jurisdiction”); Scripps-Howard Radio v. FCC, 316 U.S. 4, 11 (1942) (unless Congress “clearly” evinces a contrary intent, court is presumed to have power to maintain status quo in order to preserve jurisdiction).* Otherwise, Belbacha’s transfer would make it impossible for the district court to entertain his claim to relief that the Constitution might guarantee. Cf. Webster v. Doe, 486 U.S. 592, 603 (1988) (declining to read statute to deprive court of jurisdiction over “colorable constitutional claim”).

4.  In light of the gravity of harm that could occur, Belbacha might prevail on PI, so remanded to District Court for a decision on the stay.

   Here the probability of Belbacha’s prevailing on the merits of his habeas petition is far from clear but, in light of the seriousness of the harm he claims to face, namely, torture at the hands of a foreign state and of a terrorist organization, we cannot as the Government urged at oral argument say Belbacha’s motion for a preliminary injunction fails as a matter of law. It falls to the district court in the first instance, therefore, to balance the four factors in order to decide whether a preliminary injunction is “necessary or appropriate” in this case. 28 U.S.C. § 1651; see Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998). Accordingly this matter is remanded to the district court for further proceedings. 

Atty: David H. Remes, Covington & Burling (pro bono)

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