Updated: Well. . . that's befuddling. The judge in New Jersey has plainly. . . erred this afternoon. End, update.
Again, for the slow-learners (Ahem. Kristi "The Dolt" Noem, et al.): the great writ of habeas corpus cuts through all other proceedings, and allows for the release of the body of anyone wrongfully-detained, anywhere on US soil. [That's why they were rushing to get him offshore.]
The ACLU lawyers for Mr. Khalil asked three days ago, now. . . what time -- after 9:30 am this morning in Jena, they could swing by to pick him up -- at the private prison gates. [That's when the order to release him becomes effective.] Noem's lawyers went silent for two days, this week.
Now. . . the opinion from last month, in Öztürk is quite instructive: these Noemites cannot thwart the Fourteeth Amendment's commands, with chicanery. And when they do, the Great Writ cuts through all this subterfuge, thus:
. . .The government cites no statute or case law for this extraordinary proposition, the practical effect of which would be that for some unspecified period of time after detention -- seemingly however long the government chooses to take in transporting a detainee between states or between facilities -- a detainee would be unable to file a habeas petition at all, anywhere. Such a rule finds no support in the law and is contrary to longstanding tradition. See 3 William Blackstone, Commentaries *131; Paul D. Halliday, Habeas Corpus: From England to Empire 161 (2012 edition) (“By exploring hundreds of cases across many decades, we can gain a sense of practices and principles, if not rules, that constituted a jurisprudence of normalcy. At the center of this jurisprudence stood the idea that the court might inspect imprisonment orders made at any time, anywhere, by any authority.”); see also Boumediene v. Bush, 553 U.S. 723, 739–46. . . .
At oral argument before this Court, the government first stated that it does not know who Öztürk’s immediate custodian was while she was in transit at approximately 10:01pm and then took the novel position that Öztürk’s immediate custodian at that time was the warden of the Vermont facility to which she had not yet arrived. The government cited no authority for this contention, and it is at odds with the straightforward rule set out in Padilla that the proper respondent to a habeas petition is “’the person with the ability to produce the prisoner’s body before the habeas court.” 542 U.S. at 435 (quotation marks omitted). As the Supreme Court instructed in Padilla, “the default rule is that the proper respondent is the warden of the facility where the prisoner is being held,” id. (emphasis added), not the person who will at some unspecified future time have the ability to produce the prisoner’s body. . . .
Now, the Noem-ites (this morning, finally!) say (comically, if a man's life and liberty weren't being foreclosed!) that a separate admin. law proceeding lets them keep Mr. Khalil in custody -- perhaps forever. Without any charge under any criminal statute.
Poppycock. The Noemites will lose. He is non-violent. He is uncharged. He must be released, despite Noem's unbecoming word-games -- the order in New Jersey releases him -- learned amici say so.
In any event, we'd expect a clarifying ruling from the able NJ USDC Judge -- perhaps even later today. We will keep you informed.
नमस्ते
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