The government has replied to the Hilton habeas corpus petition that I discussed last month. This, recall, is the case of Alexander Hilton, accused of attempted murder in Scotland. In the initial proceedings for certification of extraditability, Hilton made two unsuccessful arguments: first, he cannot be extradited to Scotland because under Scots law he could be found guilty by the verdict of a majority of the jury; and second, his mental illness would make extradition impermissible.

In my first post, I suggested that the majority verdict issue was a non-starter, and unsurprisingly, the government agrees, though in terms stronger than I used in my post. On the government’s view, the courts have no role to play in questions about the adequacy of the procedural protections given by the foreign courts. Such questions are for the executive. I don’t think we need to go so far to decide this case, though: surely Scotland is close enough to the far end of the spectrum to satisfy any reasonable inquiry, whether by the judiciary or by the executive.

I also suggested that humanitarian questions concerning Hilton’s mental health were for the executive, not the judiciary. The government, again unsurprisingly, makes this argument. It cites several appellate cases for this proposition.

There are two other points to address. First, the government argues that the magistrate judge erred in allowing Hilton to remain free on conditions pending his habeas corpus petition and asks the judge to vacate the magistrate judge’s order. The government claims that commitment is mandatory once the magistrate judge has certified extraditability, and on the face of the statute this seems correct. The statute provides:

If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, or under section 3181 (b), he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.

Still, I wonder whether it is procedurally proper to make such a request in the habeas corpus proceeding rather than, for example, by appeal from the magistrate judge’s order. I haven’t looked into the details of extradition procedure, but this strikes me as odd.

Second—and just be warned, here I am going to be talking about a pet peeve of mine that has stuck with me ever since my clerkship—the government argues that the court should dismiss the Secretary of State and the Attorney General as respondents, since only the US Marshal, who has custody of Hilton, is a proper respondent. It’s true that under Rumsfeld v. Padilla, 542 U.S. 426 (2004), the immediate custodian is the only proper respondent. But why is this so? Justice Scalia points to the language of 28 U.S.C. § 2241, which refers to “the” person with custody of the petitioner, and he makes a textual argument that under the statute, there can, therefore, be only one custodian. But he goes on to argue that the immediate custodian is the person who has the power to produce the petitioner in court.

Now, what’s that about? Only in a vanishingly small percentage of habeas corpus cases does a prisoner actually come to court. Any anyway, in the case of people imprisoned after conviction for federal crimes, the procedure for a collateral attack is not a petition for a writ of habeas corpus, but instead a motion under 28 U.S.C. § 2255, in which the United States, not the custodian, is the respondent; yet the government manages somehow to get prisoners in § 2255 cases to court when required. All of this applies doubly to a case like Hilton’s, by the way, since saying that he is in custody and has a custodian is just a legal fiction.

I think that the notion about being able to produce the prisoner in court is a vestige of the original form of action for the writ of habeas corpus, which was in the form of a command from the king to the custodian to have the body of the prisoner with him in court on the return day. If it weren’t for this history, would the immediate custodian rule make any sense at all for prisoners in the custody of the government, given the modern institutions of government? “The forms of action we have buried, but they still rule us from their graves.”

This was the reasoning that animated the decision of my judge, the late Ann Aldrich, in Roman v. Ashcroft, 162 F. Supp. 2d 755 (N.D. Ohio 2001), decided several years before Ashcroft v. Padilla. Roman was a national of the Dominican Republic and a legal permanent resident. He was convicted of counterfeiting visas and social security numbers. The government took steps to deport him after he served his criminal sentence, and he brought a petition for a writ of habeas corpus to challenge the legality of the deportation. He was being held at an overburdened immigration detention center in the Western District of Louisiana, and the Fifth Circuit (the regional court of appeals with jurisdiction over the federal district courts in Louisiana) had already noted that the district courts were unable to handle the volume of habeas corpus petitions coming from the center. Thus there was a risk that Roman would be deported before his claim could be heard. So instead of filing his petition in the Western District of Louisiana, he filed it in the Northern District of Ohio, the district where he had been criminally convicted. He named his immediate custodian—the warden of the Louisiana facility—as respondent, but he also named the Attorney General. Judge Aldrich recognized that she lacked personal jurisdiction over the warden, but she held, on the strength of precedents including Demjanjuk v. Meese, 784 F.2d 1114 (D.C.Cir.1986) (per Bork, J. in camera), that in exceptional circumstances it was proper to name the attorney general as respondent. (Demjanjuk, note, was an extradition case). Judge Aldrich was an unreconstructed old-school liberal, so it must have given her special pleasure to cite Judge Bork with approval.

Hilton’s situation is an example of the absurdities into which too much of a focus on the wording of the ancient writ leads us. Hilton is not even in custody. We think it is important for substantive reason for him to have an opportunity to challenge the certification of extraditiability, and we give him the opportunity via a habeas petition. But because of our adherence to the old form, we first have to assign him a custodian even though he is not in custody and then say that the only proper defendant is the nominal custodian. This sounds suspiciously like the Bill of Middlesex to me.

Let me close with a brief tribute to Judge Aldrich, who was the first woman appointed to the bench in the Northern District of Ohio after a long career as professor at the Cleveland-Marshall College of Law, a lawyer for the Federal Communications Commission, and United States delegate to the International Telecommunications Union Conference, and who was, among other things, a dogsledder and a keen fan of the Cleveland Indians. She liked her Smirnoff neat. She kept a large swordfish that she had caught mounted in her chambers to terrify lawyers. She is much missed.