Abdah v. Obama
630 F.3d 1047
D.C. Cir.
2011
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Docket

*1 Maryland hardly since law is III. uncertain enough justify delay. further Alternatively, Maryland certify to urges us to decline, For all we these reasons as of what Old question Appeals put counsel for it at Old Dominion oral Ann., Cts. & has. Md.Code Dominion argument, Maryland “refer to courts (authorizing the Ma Proc. 12-603 Jud. question panels of whether this court accept certified ryland Appeals Court of century misinterpreted the mid-twentieth courts).' “In decid from federal questions the dictum of a nineteenth Maryland cen- certify a case we look to ing whether tury mid-eighteenth applying case centu- genuinely uncertain local law is whether ry Maryland statute modified six- dispositive question---- respect with to a century teenth law.” Recording If, however, path a discernible there is for Arg. of Oral at affirm 20:41-21:08. We follow, then we do not the court summary district court’s grant judg- question.” Dial A deciding the short of ment for Old Dominion. Inc., Car, Transp., Inc. v. So ordered. (D.C.Cir.1998) (internal citations and omitted); see also 17A quotation marks Miller, Arthur R. Wright,

Charles Alan Amar, H. Vikram David Cooper

Edward &

Federal Practice and Procedure (3d ed.2007) (listing considerations

relevant to the determination of whether certify, frequency including up, prac- come which the will Detainee, ABDAH, Camp Mahmoad process, tical certification limitations of the Delta, al., Appellees et and the extent to which considerations of relevant). comity are Certification is thus OBAMA, Barack President here, where, as we have ex-

inappropriate States, al., et the United have found a “discer- amined state law and Appellants. consistent with our path” that is nible precedent. 05-5225, 05-5227, 05-5224, 05-5229, Nos. certify unwilling are this case for

We 05-5230, 05-5232, 05-5235, 05-5236, 05- First, because in two additional reasons. 05-5238, 05-5239, 05-5242, 05- Maryland adopted comprehen- the 1800s 05-5246, 5243, 05-5244, 05-5248, 05- statutory dealing sive framework with the 05-5374, 05-5390, 05-5338, 05- out, right to wharf the state common-law 05-5484, 05-5479, 05-5486, 06- absolutely no appli- rule issue here has 06-5043, 06-5062, 06- cability land outside of the riparian 5065, 06-5094. (and probably District of Columbia Appeals, United States Court any applicability even the seven District of Circuit. Columbia case, parcels Recording at issue in this 11:04-11:15, 13:34-14:10, Arg. of Oral 11, Jan. 29:09-30:04). imagine why the We cannot Falkoff, Illinois Marc D. Northern Uni- Maryland Appeals would want to Court of Law, Kalb, IL, versity De College of Alan spend on an issue of no its limited time Pemberton, Schuyler Livingston, A. W. Maryland. state of consequence to the LLP, Second, Covington Washington, litigation Burling been in & this case has *2 Kiyem- my As I dissent Remes, expressed for Jus- DC, Harry Appeal David MD, tice, Appellees. for of Boumediene Spring, application ba faithful Silver detain- compels provide us to Guantanamo Foster, Ramsey Dana Andrea Sydney procedural protec- the fundamental ees Esquire, Matthew M. Kaersvang, Lydia characterized the Great Writ tions that Katsas, Collette, George Douglas Gregory J., (Griffith, Loeb, at 522-23 dissent- 1789. Id. Letter, Robert Mark Esquire, N. Justice, Douglas Peter v. Department Cyr, see also INS St. 533 U.S. ing); U.S. LLP, Ken- Keisler, Sidley Austin Esquire, 2271,150 301,121 S.Ct. L.Ed.2d House, Wainstein, The L. White neth (“[A]t minimum, Suspen- an absolute DC, Appellants. Washington, the writ ‘as it existed protects sion Clause ” v. (quoting Turpin, Felker 1789’.... SENTELLE, Judge, Chief BEFORE: 651, 663-64, 2333, 135 518 U.S. HENDERSON, GINSBURG, (1996))). Among proce- those L.Ed.2d 827 BROWN, ROGERS, TATEL, GARLAND, safeguards long-established was the dural KAVANAUGH, GRIFFITH, Circuit jailer’s right of a Judges. transfer him to a where authority to to exe- impossible it would be difficult or

ORDER Boumediene, cute the writ. 553 U.S. initial en banc Appellees’ petition for (Scalia, J., dissent- 128 S.Ct. 2229 response thereto were hearing and (Grif- II, 561 F.3d at 523 ing); Kiyemba court, the full and a vote was circulated to J., fith, Kiyemba II dissenting). eviscerat- Thereafter, majority requested. right by denying the detainees ed did not vote judges eligible participate Upon consider- of transfers the reach of the petition. in favor of the notice it is foregoing, ation of the writ. petition that the be denied. ORDERED reasoning was fundamental- The court’s * Tatel, and Judges Rogers, Grif- Circuit First, ly respects. flawed in at least two grant petition.

fith would to account for the the court failed * Griffith, Judge A statement Circuit his transfer. Sec- Ta- Judges Rogers whom Circuit ond, notice the court denied detainees the initial join, dissenting tel from the denial of necessary to exercise this based on hearing, en banc is attached. away judgment GRIFFITH, Judge, with whom Circuit lawful. Guantanamo join, and TATEL Judges Circuit ROGERS conclusion, reaching that the court misread dissenting: deci- misapplied Supreme then Court’s Geren, the denial of en banc

I dissent from sion Munaf (2008). Suspension I hearing 2207,171 believe L.Ed.2d 1 S.Ct. Clause, Supreme as construed stand, If II is allowed to Bush, in Boumediene v. will be able to transfer detain- (2008), 2229, 171 L.Ed.2d 41 without af- ees from Guantanamo Bay entitles detainees opportunity” fording meaningful them “a of transfers that will take them notice un- argue that the transfers would be beyond the reach of the writ of habeas Boumediene, lawful. ask us to reexam- violate practice 2229. Such S.Ct. contrary Kiyemba ruling ine our to the con- Boumediene protections the habeas II), {Kiyemba 561 F.3d 509 v. Obama (D.C.Cir.2009). ferred. oblige. We should

I Prevention of Imprisonment beyond the Seas.” 31 Car. c. 2 (Eng.). With three century, Since least the seventeenth limited exceptions,1 prisoners entitled to guaranteed the writ of habeas has *3 invoke the writ could not be transferred prisoners very right “beyond the any seas” or to other protect: court failed to to chal- where would be difficult to execute the lenge beyond the reach of the (“[N]o § writ. subject Id. may ... writ. This element of corpus de- prisoner Scotland, sent Ireland, into Jer- veloped as a preventing means of sey, Guernsey, Tangier, or any parts, into King’s sending prisoners officers from garrisons, islands, places beyond or jurisdiction. to evade habeas Justice seas any which are or at time hereafter component Scalia described this of the writ shall be within or without the dominions of in his dissent in possi- Boumediene: “The Majesty ... and ... every such im- bility evading judicial of through review prisonment is hereby ... illegal____”). A spiriting-away eliminated, such by was jailer who violated this ban on unlawful abroad, expanding the writ but forbid- transfers could be imprisoned, fined up- ... ding shipment prisoners of wards of five pounds hundred payable to places where the run writ did not or where prisoner, and “disabled from its execution thence- would be difficult.” 553 U.S. forth [bearing] any office of trust or (Scalia, J„ profit” 128 S.Ct. 2229 dis- in England any or of the King’s senting). other dominions. Id. The 1679 Act pris- allowed Parliament codified the habeas oner transfers within England, only but developed had been at common specifically enumerated circumstances.2 law what has come to be known as the jailer who prisoner transferred a under Act Corpus legislative other subject circumstances was punish- achievement that Blackstone described as § ment. Id. 9.3 the “stable bulwark of our liberties.” Blackstone, Concern over Commentaries *137. unlawful transfers had William The full title of been acknowledged voiced in years Parliament some be- protection from beyond the writ’s fore the Act. For example, 1667 Lord reach an integral component was Hyde habeas Chancellor Edward impeached “An corpus: Act for the securing better because he had pro- “advised and Liberty Subject and for the cured Majesty’s subjects divers of his to be places 1. The Act allowed transfers to legal prison- some other writ or where the prisoner the reach of the writ if a er is carry delivered to the constable ... contracted to work abroad prisoner as indentured jail to some common or where servant, § permitted id. a court any person felon to any is sent Judge order of transportation penal choose colony to a Assize or Justice any of the Peace to execution, § lieu of id. or the Crown ... house of correction or where the King's transferred a to another of the prison is removed from one to another dominions to be tried for a crime he county within the same in order to his or her there, alleged § to have committed id. discharge 16. trial or in due course of law or in case of sudden fire or infection or other ne- portion provided: The relevant the Act cessity. ...” Id. 9. any person any “[I]f ... shall be committed to prison custody any jailer officer ... repeatedly whatso- 3. A who defied the Act and any ever for criminal ... matter ... said transferred outside these enumerat- person shall not be removed from the subject said ed scenarios was to a two hundred prison custody pound into the incapable fine and “made to hold or other officer unless it be execute his ... office” further. Id. islands, much in authority very of the writ was still against law, in remote imprisoned thereby doubt, places, and other D. garrisons, see Paul Halliday, Habeas Cor- of the law.” England Empire the benefit pus: From Complete un- (describing Jersey prisoner’s of State 6 Cobbett’s Collection (Thomas ed., Lon- B. Howell attempt to invoke the writ successful Trials don, 1816); also Robert Bagshaw R. 1650s). Bench, law King’s the common Walker, often, sent The Constitutional court that issued writ most Searles Development Legal as jailers, multiple writs to Overton’s Liberty (photo, & n. 151 the Writ years they give for seven refused to but 2006) (1960) “prac- (describing the reprint *4 Id. at n. 33. The return. 437 removing prisoners altogether out tice of designed protect prisoners Act 1679 to jurisdiction royal courts” as of the of the by the expressly prohibiting like Overton “absolutely corpus fatal” to and to King’s sending prisoners officers against principal charges” “one of the Jersey place or other where was 1669, to Hyde). Anthony Cope In Sir took 2, difficult to execute the writ. See 31 Car. the to the floor of House of Commons 2, § c. “[wjould that he have no man out declare English cases from time and over this Westminster-hall,” the loca- of the reach century the next demonstrate that courts King’s from which the courts issued tion readily power exercised their to review the writs of habeas 1 Anchitell Grey, lawfulness of the reach of 237 the Debates House of Commons 1677, impris- the writ. In the twice Crown (London 1769). turn, In Thomas Lee Sir Murray Robert oned for defamation that to “[h]e worried that is sent crimes, King’s the other both times Channel, Guernsey,” in English islands the Bench ordered his release “may distant Tangier,” be sent more Scotland, deportation to where the writ did dominion, “and so know what his never (discuss- supra, not run. at 236 Halliday, are, and no can Corpus crimes Habeas Case). ing Murmy’s During the second Id.; A. reach him.” see also Helen Nut- eighteenth century, half of the ting, The Most Law-The Ha- Wholesome regularly courts ordered the release 1679, Corpus beas Act 65 Am. Hist. Rev. impressed than wrongfully seamen rather (1960) (observing proponents 534 that King’s permitting navy to take Corpus of what became the Act of Paul D. Halliday abroad. & G. Edward “charged being 1679 that sent to men were White, Suspension English Clause: that plantations Tangier so Text, Contexts, Imperial not reach and American writs from Westminster could them”). 94 Va & n. Implications, 605 L.Rev. (2008). And in that 72 a celebrated case By experience taught slavery foreshadowed the in abolition some limit on needed to transfers was Lord England, Mansfield issued the writ King’s “avoiding prevent the officers from transportation an African by moving prisoners.” the writ Walk- Jamaica, slavery in bound where supra, at 84. the notorious case of er, writ could not him. Somerset v. help Overton, parliamen- the prominent Robert (1772) Stewart, (K.B.); 98 Eng. Rep. 499 plot arrested in a part tarian was for his 1, 79-82; Tr. King 20 How. St. see also restored against monarchy of Charles Ditton, Inhabitants 99 Thames and, sent to the island of Jer- (KB.) 892; Rep. Dougl. 891 4 Eng. Dictionary 42 sey, see Oxford of National J.) (H.C.G. (Mansfield, Biography (observing Brian 301 a habeas 174 Matthews & eds., 2004), if slavery legal Harrison where the suit that even

1051 “by (Richmond, a slave owner not England, could force Va. Stat. Cochran 1823) compel go out of king- [a slave] (prohibiting transfers of dom”); supra, (noting at 274 out of the Halliday, state “where the prisoner that while white could Jamaicans invoke shall be charged by affidavit with treason time, the writ this “habeas felony, alleged to be in any done slaves”); never be available to their America, other United States of in which Hulsebosch, Nothing Daniel J. But Liber- ... case he shall be sent thither in custo- ty: Somerset’s Case and the British Em- dy” by court); of Virginia order see also pire, Law & Hist. Rev. 12, 1712, Act of Dec. 2 S.C. Stat. (observing the rule of Somerset did (Columbia, 1837) Johnston (adopting the Jamaica). apply slaves 1679). Habeas Corpus Act of As evi- power of a court in pass habeas to laws, denced these the time Con- on the lawfulness of transfers of gress jurisdiction conferred habeas on the reception English law newly created lower federal courts Carpen- American colonies. See A.H. Judiciary 1 Stat. ter, Colonies, Am. to challenge an unlawful transfer *5 (1902) 18, how, (explaining 26 Hist. Rev. was an established indispensable fea- habeas, even in the statutory absence of ture of the American law of the common law extended the writ to the American always courts have heard colonies). American Around the time of challenges to transfers that deprive could Founding, many of original thir- prisoner of the benefits of habeas cor- teen states enacted habeas laws that either pus. For example, in the nineteenth cen- expressly adopted the 1679 Act or other- tury, habeas courts in free states some- See, wise prohibitions. followed its e.g., times issued the writ to block a slave’s (1777) (“The Const, art. principles LX Ga. See, forcible removal to a slave state. e.g., habeas-corpus of the act shall be a Aves, (18 Commonwealth v. 35 Mass. constitution.”); 16, 1785, this Act of Mar. 1 Pick.) (1836) (Shaw, C.J.); 193 Lemmon v. 72, § Mass. Gen. Laws ch. (pro- 10 (1860); People, 20 N.Y. 562 see also Dallin “any hibiting person transporting] [from] Oaks, H. in the States— any subject of this Commonwealth ... 243, 32 U. Chi. L.Rev. 279 & n. any part without the limits of cases). 194 (citing additional The the same ... except person [if] be exercise of authority this was sufficiently law, sent due course of to answer for well known that a ship captain 1855 some criminal offense committed in some docking Cincinnati moved his human America”); other of the United States of cargo across the river to the common- 11, 1795, Digest of Mar. of the wealth of Kentucky to avoid an Ohio (4th ed., Newark, Laws New judge’s issuance of the writ. Attempt An 1868) Martin R. Dennis & Co. (providing to Detain Sixteen Slaves on a Writ that “no citizen of may this state ... Corpus, 23, 1855, N.Y. Mar. Times, prisoner sent place whatsoever out at 5. As Chief Justice explained Shaw this state” where he is sent to Aves, unless some law authorized a slave’s another state to be tried for a crime he state, removal from the illegal allegedly there); committed Act of Feb. enjoined and could be by a habeas court. Digest the Laws (18 Pick.) (7th Pennsylvania ed., Mass. at 217 (holding that a Philadelphia, 1847) Davis habeas court (imposing two could intervene to pound hundred anyone fíne on who transfers a transfer of slaves where “there no [was] so); legal authority to do Act of law which warrant [would] their fore- removal”); to notice was never ers were entitled detention or forcible ible Reprint already issue, 1 Ohio Dec. Hoppess, because also State (Ohio 1845) at *11 1845 WL transfers and a proposed notice of their may inter- that a habeas court (observing meaningful opportunity “there is a transfer where vene to By denying III these in an Article court. authorizing [the the master to force lawno rights, Kiyemba procedural fundamental recognizes state which back to the slave] holding II went well Munaf. of master and the relation and enforces petitioners were American The Munaf slave”). enjoin unlawful authority allegedly committed crimes citizens who ju- of habeas remains a feature Although Iraq Iraq. parte era. See Ex in the modern risdiction ar- responsibility “ultimate for [their] held Endo, imprisonment,” rest and (1944) (observing that a habeas L.Ed. 243 custody military of the U.S. prisoner’s that a may act to ensure court “many Iraq’s prison facilities defeat- “impaired are not destroyed.” 553 U.S. been ha[d] from the the removal of the ed injunction They sought the District jurisdiction of territorial them in U.S. on the keep Court”). Iraqi custody that a transfer to grounds in- challenge transfers was only subject them to unfair would not extension herent Bomnediene’s them at put but would also prosecution, corpus to the Guan- protections of habeas torture. Id. at risk of course, this is tanamo detainees. Of *6 Supreme rejected the unanimous not told meaningless if the detainee is challenge on the merits. The petitioners’ to send him. government plans where the Nevertheless, blocking that the transfers Kiyemba in II Court reasoned the court spirit to gave permission Iraqi sovereignty. the Executive an affront to would be away warning, thereby detainee all, petitioners After the had been ac- Id. denying protections him the essential in committing Iraq crimes and cused making component of the Great Writ country in being held that on behalf were “subject to ma- right the to habeas Furthermore, Iraqi government. it is de- nipulation by power those whose judi- claims called on the petitioners’ the Boumediene, 553 signed to restrain.” U.S. ciary “second-guess” a determination to 766,128 at S.Ct. 2229. at political the branches that torture the unlikely. at Iraq hands of was Id. II Finally, the form of relief S.Ct. Kiyemba II court based its decision the sought detention to shelter —continued Geren, 674, 128 on Munaf foreign prosecution —was 171 L.Ed.2d which held that S.Ct. traditionally available in habeas. Id. not the a habeas court should not block trans- 693,128 S.Ct. Iraqi to authorities of two American fer II, sought the Kiyemba In the detainees Iraq on citizens held U.S. give meaningful them a notice that would Kiyemba Iraq. behalf of object to to a transfer that opportunity II court over- Kiyemba at 516. But the might response, gov- unlawful. In Mu- looked a crucial distinction between judicial cautioned that involve- ernment II. was about Munaf naf transfer of the detainees ment transfer, the lawfulness not about sensi- would undermine from Guantanamo procedures by which a transfer could be states and foreign prison- negotiations tive challenged. Whether Munaf adversely foreign policy. affect American where a plaintiff FOIA seeks sensitive for- event, asserted, government In eign-affairs information, the court should not undertake unlawful give weight” “substantial a government Deferring to the Exec- from Guantanamo. affidavit that the information is exempt the court judgment, utive’s concluded from FOIA but nevertheless consider con- no the detainees had to know of their trary presented by evidence plaintiff). they advance because Munaf, In the fact that political “the unlikely prevail on claim that their branches are well suited to consider” sen- transfers would be unlawful. See 561 F.3d foreign-policy sitive matters was a reason 514; (Kavanaugh, see also id. give substantial weight to their views on J., concurring). merits, atU.S. Although and a host of other Munaf but it not a reason to bar the court- urge authorities deference to the Execu- house The petitioners door. lost Munaf judgment tive’s considered about sensitive their to the lawfulness of their matters, case, foreign-policy no espe- transfers, but after having notice of cially not directs us to short-circuit Munaf the place wanted to send procedures requires. In its them and an opportunity object. cases, Supreme Court has petitioners Kiyemba sought the same made clear that deference to the Executive opportunity notice and object, and the petitions on the merits of habeas does not granted court should have them. judiciary duty divest the of its to hear Boumediene, them. See relying on s treatment of the Munaf 2229; Bush, see also Rasul v. claim, merits of a transfer the Kiyemba II 159 court fundamentally confused. Notice J., (Kennedy, L.Ed.2d 548 concur- necessary is a element of ring). And while there is no transfer, challenge a and this right does approach our to the War on Terror “must depend on whether the challenge is pay particular keen attention to the bur- By holding otherwise, succeed. *7 dens faced the Executive the context Kiyemba II court put the detainee action, military system it would turn our impossible position: To receive notice of checks and balances on its head” to transfer, of a he must first show that it is suggest that a prisoner with habeas likely unlawful. But he cannot make that way “could not make his to court with a showing knowing any details challenge simply because the Execu- transfer that might he be sent some tive opposes making available such a chal- day place to some for some reason. This lenge.” Rumsfeld, Hamdi v. 542 U.S. Catch-22 eliminates “meaningful op- 159 L.Ed.2d 578 portunity” challenge a transfer. Boum- (2004) (plurality opinion); Youngstown cf. ediene, 128 S.Ct. 2229. In Sawyer, Sheet & Tube Co. v. the more familiar context of the Due Pro- 96 L.Ed. 1153 Clause, cess unlikely defendant who is (Jackson, J., concurring) (stating that “[a] prevail is still entitled to know he has been seizure pursu- executed the President Pizzutti, sued. See v. Wuchter ant to an Act Congress would be sup- 72 L.Ed. 446 ported by strongest of presumptions (requiring that defendant receive notice of judicial and the widest of latitude of inter- suit). regard lawsuit without pretation” merits of subject but would still be judicial State, inquiry); Similarly, v. Dep’t detainees are enti- Afshar (D.C.Cir.1983) 702 F.2d 1125 (holding that tled to regardless notice a transfer may be a ruse process think the transfer a court the they persuade are to how to maintain control over designed unlawful. would be writ.” beyond the reach of the detainees say that the response to It is no II, at 516 n. 7. Kiyemba 561 F.3d away from Guantana- challenge end, that the disagree I do not In the Indeed, the court formality. mo is a mere demonstrating high face a bar detainees possibility for the Kiyemba II allowed illegal. But that their transfers would be unlawful. transfers could be that some question we point. that is beside at 514 n. 561 F.3d detain- today is whether Guantanamo face J., con- 7; (Kavanaugh, n. 7 n. id. at 521 to notice of a transfer ees are entitled Gates, Maqaleh Al curring); see also the writ. If it seems beyond the reach of (D.C.Cir.2010) (“We do not on Terror odd that detainees War arguments of the detainees ignore the right, they do so enjoy should of deten- States chose the United habeas cor- Boumediene extended judicial might be able to evade tion and are bound to pus to Guantanamo. We decisions of that decision. accept consequences of Executive detention review reason, respectfully I dissent active conflict For transferring detainees into hearing. from the denial of en banc zones, granting the Executive thereby off on or power to switch Constitution (internal marks omit- quotation

at will.”

ted)). might a transfer if, example, we had “reason

succeed

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