Dimitri D. Portnoi (New York University School of Law) has posted Resorting to Extraordinary Writs: How the All Writs Act Rises to Fill the Gaps in the Rights of Enemy Combatants (New York University Law Review, Vol. 83, No. 1, 2008) on SSRN. Here is the abstract:
The indefinite detention of prisoners at Guantánamo Bay Naval Base raises serious concerns about whether those detainees will receive the process and rights due to them under statute and whether they will have the power to pursue those rights. How, for instance, could a detainee pursue an effective appeal of the Combatant Status Review Tribunal without effective assistance of counsel? How could a detainee challenge his detention when the U.S. government renders that detainee to foreign custody? The All Writs Act is a broad and historic statute originally codified in the Judiciary Act of 1789 that provides that “courts may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The Act provides the courts with an equitable power to issue injunctions that ensure that litigants' substantive rights are not frustrated by interstices in the applicable law. It is in this Act that district courts exercising habeas corpus jurisdiction found the right to effective assistance of counsel and the right to thirty days' notice prior to transfer to foreign custody. The Military Commissions Act stripped the courts of habeas jurisdiction with respect to alien enemy combatants, but the equitable power of the All Writs Act can attach to any jurisdiction, including the appellate power given to the D.C. Circuit Court of Appeals to review determinations made at Guantánamo Bay. This Note provides a roadmap for the standard that should apply when the courts consider whether to issue an All Writs Act injunction, and concludes that such injunctions are not only permissible but also an appropriate and important exercise of the courts' power.
