Koubriti v. Convertino (6th Cir. Feb. 3, 2010)

March 2, 2010

* Koubriti v. Convertino (6th Cir. Feb. 3, 2010)

The Sixth Circuit has ordered the dismissal of the remaining causes of action in the civil suit against Richard Convertino, a former federal prosecutor alleged to have withheld exculpatory evidence from a defendant in a much-discussed post-9/11 terrorism case in Detroit.  The full text is below:

United States Court of Appeals,

Sixth Circuit.

Karim KOUBRITI, Plaintiff-Appellee,


Richard CONVERTINO, Defendant-Appellant,

Michael Thomas, Defendant.

No. 09-1016.

Argued:  Oct. 14, 2009.

Decided and Filed:  Feb. 3, 2010.

Background: Suspect prosecuted for conspiracy to provide material support or resources to terrorists brought Bivens action against federal prosecutor, alleging that he intentionally failed to disclose material exculpatory evidence and fabricated evidence. The United States District Court for the Eastern District of Michigan, Marianne O. Battani, J., 2008 WL 5111862, denied, in part, prosecutor’s motion to dismiss for failure to state a claim. Prosecutor appealed. Read the rest of this entry »

forthcoming scholarship

March 2, 2010

*Forthcoming Scholarship

Habeas and (Non-)Delegation

Paul A. Diller
Willamette University College of Law

University of Chicago Law Review, Forthcoming

Although the Constitution’s Suspension Clause explicitly mentions the writ of habeas corpus, it does not require that Congress make the writ available in its common-law form at all times. Rather, the Clause has long been understood to permit Congress to replace the writ with an alternative procedure so long as that remedy is an adequate and effective substitute for habeas corpus. Under this functional view of the Suspension Clause, Congress might delegate responsibility for performing the habeas review function to an entity other than an Article III court, so long as the substitute procedure allows a detainee to challenge the lawfulness of his detention fairly and effectively. Because, at its core, habeas is concerned with checking arbitrary executive detention, however, this article argues that any delegation of the habeas review function to a non-Article III entity must conform to the dictates of the nondelegation doctrine. To delegate the authority for designing the procedures used to challenge executive detention to the very executive responsible for detention would defeat the purpose of the Clause. In Boumediene v. Bush, the Supreme Court cast doubt on its prior functional jurisprudence regarding the Suspension Clause. In particular, the Court expressed hostility toward any substitute for habeas corpus that did not rely exclusively on an Article III Court. This article criticizes the Court’s approach in Boumediene, and demonstrates how it threatens the functional view of the Suspension Clause the Court had previously embraced. At the same time, this article explains how and why nondelegation concerns justified the result in Boumediene. In particular, by relying so heavily on an executive-designed scheme – the Combatant Status Review Tribunals – Congress’s substitute for habeas delegated excessive authority to the executive to perform the habeas review function. For that reason, Congress’s attempt to eliminate access to the writ for Guantánamo detainees through the Military Commissions Act of 2006 violated the Suspension Clause when read in conjunction with the nondelegation doctrine. A decision grounded more in nondelegation than in the absolutist conception of the Suspension Clause espoused by the Boumediene majority would have preserved more flexibility for the political branches to design a system for detaining terrorist suspects in the future. Read the rest of this entry »

kiyemba v. obama; almerfedi v. obama

March 2, 2010

1. Kiyemba v. Obama (S.Ct. Mar. 1, 2010)

The Supreme Court has vacated the judgment of the D.C. Circuit in Kiyemba, and remanded the case for reconsideration in light of the fact that offers of resettlement now exist for the remaining petitioners. The full text of the order:


We granted certiorari, 558 U. S. ___ (2009), on the question whether a federal court exercising habeas jurisdiction has the power to order the release of prisoners held at Guantanamo Bay “where the Executive detention is indefinite and without authorization in law, and release into the continental United States is the only possible effective remedy,” Pet. for Cert. i. By now, however, each of the detainees at issue in this case has received at least one offer of resettlement in another country. Most of the detainees have accepted an offer of resettlement; five detainees, however, have rejected two such offers and are still being held at Guantanamo Bay.

This change in the underlying facts may affect the legal issues presented. No court has yet ruled in this case in light of the new facts, and we decline to be the first to do so. See, e.g., Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005) (“[W]e are a court of review, not of first view”).

Under these circumstances, we vacate the judgment and remand the case to the United States Court of Appeals for the District of Columbia Circuit. It should determine, in the first instance, what further proceedings in that court or in the District Court are necessary and appropriate for the full and prompt disposition of the case in light of the new developments.

It is so ordered.

2. Almerfedi v. Obama (D.D.C. Mar. 1, 2010)


In a short order issued today in this GTMO habeas proceeding, Judge Friedman granted the government’s motion for admission of hearsay evidence and for a presumption of the authenticity of that evidence, but denied its motion for a presumption as to the accuracy of that evidence