Legal Opinions - U.S. Supreme Court: June 30, 2008

Daily Record, The (Baltimore), Jun 30, 2008

The remaining question was whether the result reached by the courts below could be justified based on one of the six the established grounds for nonparty preclusion. With one exception, those grounds plainly had no application here.

Respondents argued that Taylor's suit was a collusive attempt to relitigate Herrick's claim. That argument justified a remand to allow the courts below the opportunity to determine whether the fifth ground for nonparty preclusion -- preclusion because a nonparty to earlier litigation has brought suit as an agent of a party bound by the prior adjudication -- applies to Taylor's suit.

But courts should be cautious about finding preclusion on the basis of agency. A mere whiff of "tactical maneuvering" will not suffice; instead, principles of agency law indicate that preclusion is appropriate only if the putative agent's conduct of the suit is subject to the control of the party who is bound by the prior adjudication.

Finally, the Court rejected Fairchild's suggestion that Taylor must bear the burden of proving he was not acting as Herrick's agent. Claim preclusion is an affirmative defense for the defendant to plead and prove.

Constitutional Law

Habeas Corpus

BOTTOM LINE: Guantanamo Bay detainees had the constitutional privilege of habeas corpus, and were not barred from seeking the writ or invoking the Suspension Clause's protections because they were designated enemy combatants or because of their presence at Guantanamo.

CASE: Boumediene, et al. v. Bush, President of the United States, et al., No. 06-1195 (decided June 12, 2008) (Justices Stevens, KENNEDY, Souter, Ginsburg & Breyer) (Justices Souter, Ginsburg & Breyer, concurring) (Justices Roberts, Scalia, Thomas & Alito, dissenting).

FACTS: In the Authorization for Use of Military Force (AUMF), Congress empowered the President "to use all necessary and appropriate force against those...he determines planned, authorized, committed, or aided the terrorist attacks...on September 11, 2001."

In Hamdi v. Rumsfeld, 542 U.S. 507, five Justices recognized that detaining individuals captured while fighting against the United States in Afghanistan for the duration of that conflict was a fundamental and accepted incident to war. Thereafter, the Defense Department established Combatant Status Review Tribunals (CSRTs) to determine whether individuals detained at the U. S. Naval Station at Guantanamo Bay, Cuba, were "enemy combatants."

Petitioners were aliens detained at Guantanamo after being captured in Afghanistan or elsewhere abroad and designated enemy combatants by CSRTs. Denying membership in the al Qaeda terrorist network that carried out the September 11 attacks and the Taliban regime that supported al Qaeda, each petitioner sought a writ of habeas corpus in the district court, which ordered the cases dismissed for lack of jurisdiction because Guantanamo is outside sovereign U. S. territory.

The D.C. Circuit affirmed, but the Supreme Court reversed, holding that 28 U.S.C. [section]2241 extended statutory habeas jurisdiction to Guantanamo. See Rasul v. Bush, 542 U.S. 466.