Amicus Curiae Brief — Geren v. Omar, 128 S. Ct. 741 (2007) (No. 07-394)

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-\e SIOZ Y | FILED

| FEB 28 2008

0 p4? oD © OFFICE OF THE CLERK

& 06-1666 SUPREME COURT, U.S.

IN THE

Supreme Court of the Anited States

PETE GEREN, SECRETARY OF THE

ARMY, stage Petitioners,

SANDRA K. OMAR AND AHMED 8. OMAR, AS

NEXT FRIENDS OF SHAWQI AHMAD OMAR, Respondents.

MOHAMMAD MUNAF, ET AL., Petitioners,

PETE GEREN, SECRETARY OF THE

ARMY, ET AL., Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

BRIEF AMICI CURIAE OF THE CONSTITUTION

PROJECT AND THE RUTHERFORD INSTITUTE IN

SUPPORT OF THE HABEAS PETITIONERS

SHARON BRADFORD FRANKLIN CHRISTOPHER T. HANDMAN*

THE CONSTITUTION PROJECT PAULA. WERNER

1025 Vermont Avenue, N.W. MICHAEL SEVI

Third Floor HOGAN & HARTSON L.L.P.

Washington, D.C. 20005 555 Thirteenth Street, N.W.

(202) 580-6920 Washington, D.C. 20004

| (202) 637-6719

*Counsel of Record Counsel for Amici Curiae

(additional counsel listed on inside cover)

Wicson-Epes Priwrine Co., inc. — (202) 788-0086 — Wasiingron, D.C. 20002

TABLE OF CONTENTS

TABLE OF AUTHORITIESG..................ccceeeeees

STATEMENT OF INTEREST OF AMICI

I. UNITED STATES COURTS HAVE

JURISDICTION TO REVIEW

HABEAS CLAIMS BY AMERICAN

CITIZENS HELD “IN THE CUS-

TODY” OF AMERICAN OFFICIALS

PARTICIPATING IN THE MULITI-

NATIONAL FORCE AT ISSUE HERE..

American Citizens Enjoy A Historic

And Fundamental Liberty Interest

In Freedom From Arbitrary Deten-

tion By Their Own Government

That Is Protected By The Writ Of

ST I ahi ci ccsrsacnsnivchiesodonn

. That An American Citizen Is Held

In American Custody As A Result

Of American-Led Multinational

Military Operations Does Not De-

prive A Court Of Jurisdiction Over

A Writ Of Habeas Corpus..................

. Hirota vy. MacArthur Does Not Con-

trol The Question Presented..............

The Government’s Proposed Rule Of

Decision Conflicts With This Court’s

EGRET TALI ASIN TE OI Ste

(i)

nnd > te ye ee Oe eee

B, Sales 4

TABLE OF CONTENTS—Continued

Page

E. The Government’s Rule Would Cre-

2 ate Perverse Incentives To Detain

American Citizens Under The Aus-

pices Of Multinational Military Op-

erations As A Way To Circumvent

Judicial Review ..............cccccsseceseseseeees 24

F. The Government Is Wrong That The

Separation-Of- Powers Doctrine

Supports The Rule That It Draws :

i SNE MII patie csientsnicocoicntiiansiounecienars 26 4

" 4

; IE ia Lite bdcciscion:datsuncedsiccnintcncinensenases 31 a

Pay

af ~~ .

oe.

og ;

phe

TABLE OF AUTHORITIES

Page

CASES:

Abu Aliv. Ashcroft, 350 F. Supp. 2d 28

RS GRE” SEM SDR meee Reema 11, 25, 26

Braden v. 30th Judicial Circuit Court

of Ky., 410 U.S. 484 (1978) ........ccccccesseseesseees 13

Cohens v. Virginia, 19 U.S. (6 Wheat)

a csesnbes 10

Ex parte Bollman, 8 U.S. (4 Cranch)

i a tid 10

Ex parte Endo, 323 U.S. 283 (1944) ................. 13

Ex parte Milligan, 71 U.S. (4 Wall.) 2

RE EEE ROC Ee 27

Ex parte Yerger, 75 U.S. (8 Wall.) 85

a cs seadinenandelnets 9

Foucha v. Louisiana, 504 U.S. 71

ASSERT SES a nO ®

Frank v. Mangum, 237 U.S. 309

(RECO ESSE Aeon Se 12

Hamdan v. Rumsfeld, 126 S. Ct. 2749

ESESGSS SE RE Rae eee 3, 28, 29

Hamdiv. Rumsfeld, 542 U.S. 507

REESE See ee Se ae ee passim

Harris v. Nelson, 394 U.S. 286 (1969)......9, 11, 12

Hensley v. Municipal Court, San Jose

Milpitas Judicial Dist., Santa

Clara County, 411 U.S. 345

ks he El SS a aA ES 12, 13

“4

yr. ;

TABLE OF AUTHORITIES—Continued

Page

Hirota v. MacArthur, 338 U.S. 197

take MERA ono pe Sahat RS or SE OR passim

INS v. St. Cyr, 533 U.S. 289 (2001)...........:000000 27

Johnson v. Eisentrager, 339 U.S. 763

7 ERERIPER CRETE Rnidasoe Seer rots hE OI 22, 24

Jones v. Cunningham, 371 U.S. 236

) REE BVAAE Dre ARN ae 12,13

Justices of Boston Mun. Court v. Ly-

don, 466 U.S. 294 (1984) ........ccccccccecseeseeeeees 12

Loncharv. Thomas, 517 U.S. 314

SRREENE RSLS STARE FREE Spiele ove Ce eae 10

Madsen v. Kinsella, 343 U.S. 341

SERRATE foeray cP ae 15, 16, 17

Malengv. Cook, 490 U.S. 488 (1989) ................. 12

Mistretta v. United States,

i a iccescsenmoeeoeetumniias 28

Munafv. Geren, 482 F.3d 582

a passim

Omar v. Harvey, 479 F.3d 1

es a ME vckastinscconininlansicisininieai 11, 19, 20, 21

Peyton v. Rowe, 391 U.S. 54 (1968)................ 9,13

Preiser v. Rodriguez, 411 U.S. 475

+ SERREOGCAD Ra Snes tioses oom eNReORO ENe 10

Rasulv. Bush, 542 U.S. 466 (2004)............ passim

Rumsfeldv. Padilla, 542 U.S. 426

SRI BEES SG eee 3, 13, 14

oa)

‘+

Ate

i”

=——> oS ee

TABLE OF AUTHORITIES—Continued

Page

United States ex rel. Tothv. Quarles,

ee sseccceeves 16, 17

United States v. Montalvo-Murillo,

I, FED RI eis iarsccccce dee sccessccoscccecsenscnes 29

United States v. Robel, 389 U.S. 258

——_ RRNESREERS: AR a 4

Wales v. Whitney, 114 U.S. 564 (1888).............. 13

Williams v. Kaiser, 323 U.S. 471

cst copeneweciion )

CONSTITUTION:

ES US TS Ge ncn eneconcecssctounss 10

I ccsunnondusneoie 7, 26

a cculuidibssobuecwns 7, 26

STATUTES:

ID. sconsesesovsnsonbnesens 11

I sectenstostonniee 13

Act of Sept. 24, 1789, ch. 20, § 14,

a ccucenons 10

LEGISLATIVE MATERIALS:

Nomination of General George W. Ca-

sey, Jr., for Reappointment to the

Grade of General & To Be Com-

mander, Multinational Force-Iraq:

Hearing Before the S. Comm. On

Armed Serv., 108th Cong. (June

i vi :

TABLE OF AUTHORITIES—Continued

Page ;

2 :

: 24, 2004) (statement of Gen. ;

I Gowen W. Caney, Bi) o.ciacdincscncvecoccccsecsssccecsesce 14

; RULES: ;

BN SES ANT SPE EOE 1

I i ssdessseibiliongell 1

INTERNATIONAL RESOLUTIONS:

S.C. Res. 83, U.N. Doc. S/RES/83

NS SEES a a a ea 17

S.C. Res. 84, U.N. Doc. S/RES/84

ed acseumeaiionanined 17

OTHER AUTHORITIES:

William Blackstone, Commentaries on

the Laws of England (1765) ...............++. 8,9, 11

Advance Questions for General George

W. Casey, Jr., U.S. Army Nominee

for Commander, Multi-National

Force-Trae, at 3 G04) .............00000s..ccrcccccesees. 14

Constitution Project, Deciding to Use

Force Abroad: War Powers in a

System of Checks and Balances

SRR IASE AS ARON ASN A 2

Constitution Project, Statement on

Restoring Habeas Corpus Rights

Eliminated by the Military Com-

MN BI i icicctsastetchacitnsduincecrnesecscorrsere 2

Markus Eder, Crime and Punishment

in the Royal Navy of the Seven

Years’ War (Ashgate 2004)..............:ccccc00ceee0 19

4 TABLE OF AUTHORITIES—Continued

TO POMBE INO. 46 ..2..0010:000000000000c0c00se0ec0se08

3 Ti DR a OF incites ssissscesnonsiserdcssoseseshine

Z The Federalist NO. 84 ........cccccccccssssessceeceeeeeeees

4 W. Friedman, The Allied Military

Government of Germany (1947)............::0000++

‘

Elmer Plischke, History of the Allied

High Commission for Germany: Its

Establishment, Structure and Pro-

ian hats cctbhanedicadiacinincdinicnacensessens

bor TRA Saat BE eee Oa ce

ote ees %. ram -

STATEMENT OF INTEREST OF AMICI CURIAE

Amici curiae are two not-for-profit, public-interest

organizations that share an interest in preserving

the historic right of American citizens held in Ameri-

can custody to invoke the Great Writ of habeas

corpus. Both groups work to safeguard constitu-

tional rights, and seek to preserve the fundamental

point of Jaw that an American citizen cannot be

denied habeas corpus simply because he is delivered

into American custody by a multinational military

force led by the United States.

Amicus the Constitution Project (“the Project”) is a |

‘bipartisan organization that promotes and defends

constitutional safeguards. The Project brings to-

gether legal and policy experts from across the

political spectrum to promote consensus solutions to

pressing constitutional issues. After September 11,

2001, the Project created its Liberty and Security

Committee, a blue-ribbon committee of prominent

Americans, to address the importance of preserving

civil liberties as we work to protect our Nation from

international terrorism. The committee develops .

policy recommendations on such issues as the use of

military commissions and governmental surveillance

policies, and emphasizes the need for all three

branches of government to play a role in preserving

constitutional rights.

Additionally, the Project's War Powers Committee

released a report in June 2005 entitled Deciding to

1 Pursuant to Supreme Court Rule 37.6, we note that no part

of this brief was authored by counsel for any party, and no

. person or entity other than amuci curiae, their members, or

their counsel made a monetary contribution to the preparation

or submission of the brief. This brief is filed with the written

consent of all parties pursuant to Rule 37.3(a); the requisite

consent letters have been filed with the Clerk of this Court.

STATEMENT OF INTEREST OF AMICI CURIAE

Amici curiae are two not-for-profit, public-interest

organizations that share an interest in preserving

the historic right of American citizens held in Ameri-

can custody to invoke the Great Writ of habeas

corpus. Both groups work to safeguard constitu-

tional rights, and seek to preserve the fundamental

point of law that an American citizen cannot be

denied habeas corpus simply because he is delivered

into American custody by a multinational military

force led by the United States.

Amicus the Constitution Project (“the Project”) is a

bipartisan organization that promotes and defends

constitutional safeguards. The Project brings to-

gether legal and policy experts from across the

political spectrum to promote consensus solutions to

pressing constitutional issues. After September 11,

2001, the Project created its Liberty and Security

Committee, a blue-ribbon committee of prominent

Americans, to address the importance of preserving

civil liberties as we work to protect our Nation from

international terrorism. The committee develops

policy recommendations on such issues as the use of

military commissions and governmental surveillance

policies, and emphasizes the need for all three

branches of government to play a role in preserving

constitutional rights.

Additionally, the Project's War Powers Committee

released a report in June 2005 entitled Deciding to

1 Pursuant to Supreme Court Rule 37.6, we note that no part

of this brief was authored by counsel for any party, and no

. person or entity other than amici curiae, their members, or

their counsel made a monetary contribution to the preparation

or submission of the brief. This brief is filed with the written

consent of all parties pursuant to Rule 37.3(a); the requisite

consent letters have been filed with the Clerk of this Court.

ia.

»*

;

}

eo.

Use Force Abroad: War Powers in a System of

Checks and Balances,? analyzing the respective

powers of all three branches of government during

wartime. The Project’s Courts Committee also

conducts public education on the importance of an

independent Judiciary and cautions against legisla-

tion or Executive Branch practices that would limit

the jurisdiction of federal courts.

In March 2007, the Project issued a Statement on

Restoring Habeas Corpus Rights Eliminated by the

Military Commissions Act, signed by a bipartisan

group of approximately 40 political leaders, policy

experts, and legal scholars. The signatories to the

statement reaffirmed that the Great Writ serves as

the preeminent safeguard of individual liberty and

separation of powers by supplying “the critical, fail-

safe procedure to ensure that the executive has

complied with the Constitution and laws of the

United States.”

Amicus the Rutherford Institute (“the Institute”) is

an international civil-liberties organization head-

quartered in Charlottesville, Virginia. Founded in

1982 by its President, John W. Whitehead, the

Institute specializes in providing legal representa-

tion without charge to individuals whose civil liber-

ties are threatened or violated. The Institute also

strives to educate the public about constitutional and

human-rights issues. During its 25-year history,

attorneys affiliated with the Institute have repre-

sented numerous parties before the U.S. Supreme

Court. The Institute has also filed briefs amicus

2 The Project's report is available online at

http://www.constitutionproject.org/pdf/War_Powers_Deciding_T

o_Use_Force_Abroad.pdf.

3 The Project’s Statement and the attendant list of signato-

ries is available at http://www.constitutionproject.org/pdf/

MCA_Statement.pdf.

‘a

;

curiae with this Court in cases dealing with critical

constitutional issues arising from the current efforts

to combat terrorism. See Hamdan v. Rumsfeld, 126

S. Ct. 2749 (2006); Rasul v. Bush, 542 U.S. 466

(2004); Rumsfeld v. Padilla, 542 U.S. 426 (2004).

Owing to their belief in the importance of the fun-

damental right of habeas corpus enjoyed by all

American citizens, the amici thus have a keen inter-

est in the principle of law that this Court announces

in resolving these cases. That is because the novel

and sweeping rule that the Government advances

here threatens to undermine the historic right of

American citizens to challenge in federal court the

lawfulness of their detention by their own govern-

ment. If left unchecked, the Executive’s proclaimed

detention power would authorize the Government to

detain indefinitely—and unlawfully—American

citizens held in American custody, so long as the

Government dressed up that detention with a multi-

national-forces fig leaf. But this Court has rejected

such formalisms in the past; it should do so again

here. The liberty promised in the Constitution—and

protected by the Great Writ—should not turn on

such preciously fine (and practically meaningless)

distinctions.

SUMMARY OF ARGUMENT

Our Nation’s abiding commitment to individual

liberty is tested during grave times like these, when

our military is engaged in multiple wars abroad

against stateless enemies trying to inflict harm at

home. But while military and political priorities

inevitably shift and adapt to these challenges, the

Constitution’s commitment to liberty remains con-

stant. That consistency ensures that we “preserve

our commitment at home to the principles for which

we fight abroad.” Hamdiv. Rumsfeld, 542 U.S. 507,

532 (2004) (plurality op.). For “[ilt would indeed be

ironic if, in the name of national defense, we would

ed pe ee ee of ae iS

sanction the subversion of one of those liberties * * *

which makes the defense of the Nation worthwhile.”

United States v. Robel, 389 U.S. 258, 264 (1967).

But as our military fights international terrorism

overseas in Iraq to defend our freedoms, at home the

Government asserts that the federal courts are

without jurisdiction to entertain writs of habeas

corpus filed by American citizens who have been

detained abroad during that military effort. The

reason: These citizens’ custodian—a Lieutenant

Colonel in the U.S. Army, answerable exclusively to

a U.S. chain of command—is formally part of a U.S.-

led (and dominated) multinational force authorized

by the United Nations.

Thus, in these two cases, the Government threat-

ens to unlawfully and indefinitely confine two Ameri-

can citizens, Shawqi Omar and Mohammed Munaf

(the “habeas petitioners”), without affording them

access to the basic procedural safeguard that the

Framers fashioned to challenge government deten-

tion: the Great Writ of habeas corpus. This move

cuts deeply against tradition. Both the right at stake

and the attendant procedural remedy for its violation

have ancient roots extending into our English com-

mon-law heritage, are expressly protected in our

Constitution, and have been jealously guarded by

courts—including this one—for centuries.

Given the United States’ ever increasing involve-

ment in international agreements, multinational

military efforts, and security compacts, the jurisdic-

tional rule championed by the Government would

radically limit federal courts’ habeas jurisdiction.

This Court should not embrace such a boundless and

easily manipulated rule. Instead, it should adopt a

firm and easy-to-apply rule that puts to practice this

Court’s precedents and the Great Writ’s heritage:

American citizens are entitled to challenge their

detention in federal court whenever they are held in

the custody of American officials who, as here, are

answerable to a U.S. chain of command—regardless

of whether those U.S. officials are participating in

multinational military operations.

This rule reflects the historically expansive inter-

pretation that this Court has afforded the habeas

statute’s “in custody” requirement. For example, this

Court has emphasized that a petitioner is “in cus-

tody” whenever the custodian is a government offi-

cial capable of producing the petitioner before the

habeas court. Under this easily administered rubric,

Omar and Munaf are held in the custody of US.

authorities capable of producing them before the

habeas courts. Notwithstanding their participation

in multinational military operations in Iraq, our

military forces holding Omar and Munaf there

answer exclusively to an American—not multina-

tional—chain of command.

This Court has indeed assumed jurisdiction over

habeas petitions in the past that stemmed from

American participation in multinational military

efforts, including World War II, the Korean War, and

the ongoing efforts to combat international terror-

ism. Most notably, in Hamdi this Court addressed

the merits of a habeas petition filed by another

American citizen who landed in American custody as

a result of U.S. participation in multinational mili-

tary operations. Not one Justice concluded, or even

hinted, that federal courts might be deprived of

jurisdiction over Hamdi’s habeas petition simply

because he was captured and initially detained in

Afghanistan by military forces participating in

Operation Enduring Freedom, a coalition of forces

from the United States, the United Kingdom, and

the Northern Alliance. That distinction did not

matter in Hamdy, it should not matter here.

In support of its multinational-force limitation on

federal courts’ habeas jurisdiction, the Government

invokes one—and only one—case: Hirota v. MacAr-

thur, 338 U.S. 197 (1948). But that terse per curiam

opinion—nine sentences in all—does not support the

expansive jurisdictional limitation the Government

claims. Rather, the case was narrowly decided on

the specific circumstances involved there, including

circumstances not present here: Unlike the habeas

petitioners in these cases, the petitioners in Hirota

were foreign citizens who improperly invoked this

Court’s appellate jurisdiction to launch a collateral

attack on their military-tribunal convictions.

But the Government’s proposed jurisdictional limi-

tation is not only unsupported by the one case that it

cites in support of it. The limitation also conflicts

with this Court’s longstanding recognition that

American citizens held in American custody may, by

virtue of their citizenship, challenge the lawfulness

of their detention by petitioning federal! courts for

release. The Court most recently reaffirmed this

rule in Hamdi, which, just like these cases, involved

the Executive’s detention of an American citizen by

American authorities as a result of U.S. participation

in multinational military operations.

The multinational-force limitation on _ federal

courts’ habeas jurisdiction that the Government

advances would also create perverse incentives for

the Executive to detain American citizens under the

auspices of an international arrangement to obtain

the unbridled discretion to determine whether to

recognize their constitutional rights ve/ non. That

discretion would also allow the Government to

escape this Court’s core holding in Hamdr The

Executive would be under no obligation to provide

enemy combatants any measure of due process if it

could entirely escape federal court jurisdiction sim-

ply by claiming its challenged actions were taken in

accordance with some multinational arrangement.

Nor do separation-of-powers principles support the

jurisdictional limitation that the Government claims

is mandated by Hirota. Just the opposite. The

Government’s rule would consolidate within the

Executive Branch power that is constitutionally

vested in the Judicial Branch. It would let the

Executive—exercising its Article II powers—detain

U.S. citizens abroad but then insulate that decision

from Article HI review by unilaterally opting to

participate in a multinational military operation.

But a U.N. Resolution or armed-forces agreement

cannot—any more than an act of Congress—provide

a “blank check for the President when it comes to the

rights of the Nation’s citizens.” Hamdi, 542 US. at

536 (plurality opinion).

ARGUMENT

I. UNITED STATES COURTS HAVE JURIS-

DICTION TO REVIEW HABEAS CLAIMS BY

AMERICAN CITIZENS HELD “IN THE

CUSTODY” OF AMERICAN OFFICIALS

PARTICIPATING IN THE MULTINATIONAL

FORCE AT ISSUE HERE.

A. American Citizens Enjoy A Historic And

Fundamental Liberty Interest In Freedom

From Arbitrary Detention By Their Own

Government That Is Protected By The Writ

Of Habeas Corpus.

The Government’s asserted multinational-force

limitation on federal courts’ habeas jurisdiction

threatens to deprive the habeas petitioners here of

their fundamental right to be free from arbitrary and

indefinite Executive detention that was recognized in

England centuries ago, is part of our common law

heritage, is embedded in our Constitution, and has

been repeatedly reaffirmed in this Court’s jurispru-

dence.

; -

1. Since ancient times, the Great Writ has played

an essential role in a free society by protecting the

individual’s vital liberty interest in being free from

arbitrary and unlawful imprisonment by his or her

own government. As William Blackstone explained

centuries ago, “confinement of the person, by secretly

hurrying him to gaol, where his sufferings are un-

known or forgotten; is a less public, a less striking,

and therefore a more dangerous engine of arbitrary

government.” 1 W. Blackstone, Commentaries on the

Laws of England 132 (1765) (hereinafter Blackstone].

The Founders of this Nation knew the danger of

which Blackstone spoke. See Federalist No. 84

(Hamilton); see Hamdi, 542 U.S. at 555 (Scalia, J.,

dissenting) (noting that Hamilton quoted this “very

passage” from Blackstone). Alexander Hamilton, in

defending our Constitution, described “the practice of

arbitrary imprisonment” as a “favourite and most

formidable instrument of tyranny.” Federalist No.

8&4.

This Court has also consistently recognized “the

fundamental nature of a citizen’s right to be free

from involuntary confinement by his own govern-

ment without due process of law.” Hamdi, 542 U.S.

at 531; see also Foucha v. Louisiana, 504 U.S. 71, 80

(1992) (“Freedom from bodily restraint has always

been at the core of the liberty protected by the Due

Process Clause from arbitrary governmental ac-

tion.”). As this Court has only recently explained,

“Executive imprisonment has been considered op-

pressive and lawless since John, at Runnymede,

pledged that no free man should be imprisoned,

dispossessed, outlawed or exiled save by the judg-

ment of his peers or by the law of the land.” Rasul,

542 U.S. at 474 (quotation marks omitted).

2. The recognition of this fundamental right—

being free from unlawful government detention—is

no less historic than the recognition of the proper

Pe Py Sees CE es RC ON en eT PE EM My oe kl ep

remedy for a violation of it: The Great Writ of ha-

beas corpus, which has long stood as “the symbol and

guardian of individual liberty.” Peyton v. Rowe, 391

U.S. 54, 58 (1968). That writ, as this Court has

recognized, “is the fundamental instrument for

safeguarding individual freedom against arbitrary

and lawless state action.” Harris v. Nelson, 394 U.S.

286, 290-291 (1969). And as the procedural vehicle

providing “a swift and imperative remedy in all cases

of illegal restraint or confinement,” the writ “is of

immemorial antiquity.” Williams v. Kaiser, 323 U.S.

471, 484 n.2 (1945) (quotation marks omitted).

The Great Writ traces its origins to our English

forbeurs, who fashioned it to protect individuals from

government abuses of power. See id. (noting an

“instance of its use occurring in the thirty-third year

of Edward I”). As this Court has explained, “[t]he

judges of England developed the writ of habeas

corpus largely to preserve these immunities from

executive restraint.” Hasu/, 542 U.S. at 474. And

“after a long struggle” with the Crown, the writ of

habeas corpus was “firmly guaranteed [to English

subjects] by the famous Habeas Corpus Act of May

27, 1679.” Ex parte Yerger, 75 U.S. (8 Wall.) 85, 95

(1868). Blackstone described the passage of this Act

as “another [MJagna [C]harta,” 3 Blackstone 135,

tailor-made “for the better securing of the liberty of

the subject,” Ex parte Yerger, 75 U.S. at 95. In time,

the habeas writ came to be “the most celebrated writ

in the English law,” 3 Blackstone 129, and it has yet

to lose its allure: For centuries it has been “es-

teemed the best and only sufficient defence of per-

sonal freedom.” Ex parte Yerger, 75 U.S. at 95.

From our Nation’s founding, the writ has been

entrenched “deep into the Genius of our common

law.” Jd. For “[bly the time the American Colonies

achieved independence, the use of habeas corpus to

secure release from unlawful physical confinement

;

‘

“

;

tt AOR ATL ope ee

7 *

*** was *** an integral part of our common-law

heritage.” Preiser v. Rodriguez, 411 U.S. 475, 485

(1973). That common-law heritage was later hon-

ored with a privileged place in our Nation’s founding

document; it is “the only common law writ to be

explicitly mentioned” in the Constitution. Hamdi,

542 U.S. at 558 (Scalia, J., dissenting). Thus, the

Suspension Clause provides that “(t]he Privilege of

the Writ of Habeas Corpus shall not be suspended,

unless when in Cases of Rebellion or Invasion the

public Safety may require it.” U.S. Const. art. I, § 9,

el, 2. |

Soon after the Constitution was ratified, the federal]

courts were entrusted with carrying out the Suspen-

sion Clause’s command. As Chief Justice Marshall

has explained, the First Congress, “lalcting under

the immediate influence of this injunctionl,]” gave

“this great constitutional privilege *** life and

activity.” Ex parte Bollman, 8 U.S. (4 Cranch) 75, 95

(1807). The Judiciary Act of 1789, which constitutes

“a contemporaneous exposition of the constitution,”

Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 420

(1821), authorized federal courts to grant the writ of

habeas corpus in any case of detention “under or by

colour of the authority of the United States.” Act of

Sept. 24, 1789, ch. 20, § 14, 1 Stat. 81-82.

From that day forward, the writ of habeas corpus

has operated as this Nation’s “highest safeguard of

liberty.” Lonchar v. Thomas, 517 U.S. 314, 322

(1996) (quotation marks omitted). Accordingly, “this

Court has recognized the federal courts’ power to

review applications for habeas relief in a wide vari-

ety of cases involving executive detention, in wartime

as well as in times of peace.” Rasu/, 542 U.S. at 474.

And it is no less vital today during the ongoing

efforts to combat terrorism than it has been in the

past: Even “now, in the twenty-first century, the

writ continues to protect fundamental rights as the

{

United States confronts the challenge of interna-

tional terrorism.” Omar v. Harvey, 479 F.3d 1, 5

(D.C. Cir. 2007).

B. That An American Citizen Is Held In Ameri-

can Custody As A Result Of American-Led

Multinational Military Operations Does Not

Deprive A Court Of Jurisdiction Over A Writ

Of Habeas Corpus.

“The turnkey of the habeas statute is the require

ment of custody.” Abu Ali v. Ashcroft, 350 F. Supp.

2d 28, 45 (D.D.C. 2004).4 It has long been the rule

that this critical “in custody” requirement is satisfied

whenever a person is held by an American official,

provided that the official has the ability to produce

the person before the habeas court. That is indis-

putably the case here. And this Court’s decisions

since World War II make clear that the fact that the

habeas petitioners in these cases came into American

custody as a result of multinational military opera-

tions does not alter that calculus.

1. From its inception, courts have given the Great

Writ of habeas corpus a broad reach. See 3 Black-

stone 131 (“[T]he great and efficacious writ in a//

manner of illegal confinement, is that of habeas

corpus.”) (emphasis added). This practice is true to

the writ’s high office: “The very nature of the writ

demands that it be administered with the initiative

and flexibility essential to insure that miscarriages

of justice within its reach are surfaced and cor-

rected.” Harris, 394 U.S. at 291. As Justice Holmes

explained, “habeas corpus cuts through all forms and

goes to the very tissue of the structure. It comes in

4 See 28 U.S.C. § 2241(c) (“The writ of habeas corpus shall not

extend to a prisoner unless * * * [hle is in custody under or by

color of the authority of the United States * * * or * * * [he is in

custody in violation of the Constitution or laws or treaties of the

United States”).

Z ry

from the outside * * * and although every form may

have been preserved, opens the inquiry whether they

have been more than an empty shell.” Frank v.

Mangum, 237 U.S. 309, 346 (1915) (Holmes, J.,

dissenting); see also Harris, 394 U.S. at 291 (“The

scope and flexibility of the writ—its capacity to reach

all manner of illegal detention—its ability to cut

through barriers of form and procedural mazes—

have always been emphasized and jealously guarded

by courts and lawmakers.”).

Accordingly, federal courts have given the habeas

statute’s “in custody” requirement a broad construc-

tion. See, eg, Maleng v. Cook, 490 U.S. 488,

492 (1989) (“[W]e have very liberally construed the

‘in custody’ requirement for purposes of federal

habeas.”). As this Court has emphasized, “we have

consistently rejected interpretations of the habeas

corpus statute that would suffocate the writ in

stifling formalisms or hobble its effectiveness with

the manacles of arcane and scholastic procedural

requirements.” Hensley v. Municipal Court, San

Jose Milpitas Judicial Dist., Santa Clara County, 411

U.S. 345, 350 (1973).

Consistent with a flexible approach designed to

serve the core purpose of the habeas statute—to free

citizens unlawfully imprisoned by their govern-

ment—this Court over the years has indeed steadily

expanded the scope of the statute’s “in custody”

requirement. See Hensley, 411 U.S. at 351 (“The

custody requirement of the habeas corpus statute is

designed to preserve the writ of habeas corpus as a

remedy for severe restraints on individual liber-

ties.”). As a result, “the use of habeas corpus has not

been restricted to situations in which the applicant is

in actual, physical custody.” Jones v. Cunningham,

371 U.S. 236, 239 (1963). Thus, this Court has held

that a petitioner remained in state custody despite

being released “on personal recognizance,” Justices of

Boston Mun. Court v. Lydon, 466 U.S. 294, 300

‘

(1984); that a petitioner remained in custody of the

Virginia Parole Board despite being paroled, see

Cunningham, 371 U.S. at 243; and that a petitioner

imprisoned in Alabama nevertheless remained in

Kentucky’s custody, see Braden v. 30th Judicial

Circuit Court of Ky., 410 U.S. 484 (1973).

Underlying this robust expansion of the habeas

statute’s “in custody” requirement is the basic prin-

ciple that a person is “in custody” whenever the

custodian is a government official with the ability to

produce the person before the habeas court. See 28

U.S.C. § 2243 (“The writ * * * shall be directed to the

person having custody of the person detained.”);

Peyton, 391 U.S. at 58 (explaining the habeas writ

“assures * * * that a prisoner may require his jailer

to justify the detention under the law.”). As this

Court explained before the turn of the last century,

the habeas statute “contemplatel[s] a proceeding

against some person who has the immediate custody

of the person detained, with the power to produce the

body of such person before the court or judge, that he

may be liberated if no sufficient reason is shown to

the contrary.” Wales v. Whitney, 114 U.S. 564, 574

(1885) (emphasis added); see also Ex parte Endo, 323

U.S. 283, 306 (1944) (“The important fact to be

observed in regard to the mode of procedure upon

this writ is, that it is directed to, and served upon,

not the person confined, but his jailer.”) (quotation

marks omitted). Nearly a century later, the Court

again held that “[t]he writ of habeas corpus does not

act upon the prisoner who seeks relief, but upon the

person who holds him in what is alleged to be unlaw-

ful custody.” Braden, 410 U.S. at 494-495. And just

a few years ago, this Court reiterated that the statu-

tory custodian is “‘the person’ with the ability to

produce the prisoner’s body before the habeas court.”

Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (em-

phasis added) (quoting 28 U.S.C. § 2243). Thus, the

ultimate touchstone of the habeas statute’s “in

custody” requirement is the ability of the designated

official to produce the petitioner before the habeas

court.

2. Under this straightforward test, the habeas

petitioners here are plainly held in the custody of

American officials with the power to produce them

before the habeas courts. After all, it is undisputed

that the petitioners are being held at detention

facilities run by United States forces operating in

Iraq as part of Multi-National Force Iraq—a.k.a.,

MNF-I. See Gov. Br. 5 (“Since his capture, Omar has

remained in the custody of members of the United

States armed forces operating as part of the MNF-

I.”); see also Munafv. Geren, 482 F.3d 582, 491 (D.C.

Cir. 2007) (Munaf is “being held, in Iraq, by United

States military personnel serving as part of [MNF-

I)”). And the MNF-I “operates under the unified

command of United States military officers.” Gov.

Br. at 2 (quotation marks omitted).

Even while American military personnel partici-

pate in MNF-I, they answer only to a United States

chain of command ultimately running to the Com-

mander-in-Chief. See Advance Questions for Gen-

eral George W. Casey, Jr., U.S. Army Nominee for

Commander, Multi-National Force-Irag, at 3 (2004).

Thus, the United States military personnel detaining

the petitioners in Iraq answer to no authority other

than United States military personnel and civilian

officials. See Nomination of General George W.

Casey, Jr., for Reappointment to the Grade of Gen-

eral & to be Commander, Multinational Force-Iraq:

Hearing Before the S. Comm. On Armed Serv., 108th

Cong. (June 24, 2004) (statement of Gen. George W.

Casey, Jr.).

This Court’s cases make clear that American citi-

zens so held may petition federal courts for release:

that they were placed in American custody by an

American-led multinational military force makes no

difference. The Government’s claim that federal

courts lack jurisdiction in such circumstances would

indeed mire them in the very statutory formalism

that they have long eschewed.

3. In keeping with the expansive reading of the

habeas statute’s “in custody” requirement courts

historically have not hesitated to assume jurisdiction

over writs of habeas corpus imbued with a multina-

tional character like those at issue in these cases.

Three of this Court’s decisions in particular gainsay

the Government’s assertion that federal courts are

bereft of jurisdiction to entertain writs of habeas

corpus involving multinational military operations.

These decisions date back to the middle of the last

century and involve this Nation’s participation in

seminal multinational conflicts—World War II, the

Korean War, and the ongoing operations to combat

terrorism.

First, in Madsen v. Kinsella, 343 U.S. 341 (1952),

this Court exercised jurisdiction over a writ of ha-

beas corpus filed by an American woman who had

been convicted under the German Criminal Code by

the “United States Court of the Allied High Commis-

sion” of murdering her husband, an Air Force lieu-

tenant, during the U.S.-led occupation of Germany

following World War II. Jd. at 343. That court

represented a hybrid of U.S. and multinational

authority. On the one hand, it was chartered under

a law issued by the “Allied High Commission” in

1949, id. at 344-345 & n.3, and, as an occupation

court, was “designed especially to meet the needs of

law enforcement in that occupied territory” and

applied “the German Criminal Code largely as it was

theretofore in force.” Jd. at 355-356.

But on the other hand, its existence was rooted to

an international framework established by the four

Allied powers. Following the German surrender in

May 1945, the Allied powers asserted supreme

“

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authority over Germany and agreed that “authority

was to be wielded unilaterally by the Commanders-

in-Chief in their respective zones of occupation.”

Elmer Plischke, History of the Allied High Commis-

sion for Germany: Its Establishment, Structure and

Procedures 1 (1951). And it was under this multina-

tional delegation of authority that General Eisen-

hower issued Ordinance No. 2 establishing military-

occupation courts. See W. Friedman, The Allied

Military Government of Germany 300-308 (1947).

Despite the multinational dimension to Madsen,

this Court did not dismiss the petition for want of

jurisdiction. To the contrary, the Court resolved the

case on the merits: It held that “the jurisdiction of

the United States Courts of the Allied High Commis-

sion for Germany to try petitioner being established,

the judgment of the Court of Appeals affirming the

discharge of the writ of habeas corpus for petitioner’s

release from custody is affirmed.” Madsen, 343 U.S.

at 362.

Second, in United States ex rel. Toth v. Quarles,

350 U.S. 11 (1955), this Court again entertained a

writ of habeas corpus arising from American partici-

pation in a multinational military effort. . The peti-

tion at issue was filed on behalf of an American

citizen—Toth—detained in Korea for crimes commit-

ted during American military operations there. See

id. at 18. After being discharged from the Air Force,

Toth was arrested in Pittsburgh and transported

back to Korea to be tried for murder and conspiracy

to commit murder before a court-martial. Jd. at 13 &

n.3. His petition challenged the constitutionality of

the Government’s effort to subject him to a court-

martial after being discharged from military service.

Again, the Court did not dismiss Toth’s petition for

lack of jurisdiction; it decided his case on the merits.

See id. at 23. Granting Toth’s writ, the Court held

that “Congress cannot subject civilians like Toth to

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+ - ye . ; :

trial by court-martial. They, like other civilians, are

entitled to have the benefit of safeguards afforded

those tried in the regular courts authorized by Arti-

cle III of the Constitution.” Jd.

As was the case in Madsen, however, the United

States’ participation in the Korean War was under

the auspices of international authority and as a

member of a multinational military force. Indeed,

much like the present conflict, the United Nations

had passed resolutions authorizing multinational

military operations there. 5

Third, and most recently, in Hamdi this Court as-

sumed jurisdiction over a writ of habeas corpus

involving circumstances very similar to those under-

lying the petitions involved in these cases. Yasir

Hamdi—an American citizen—was captured and

detained in Afghanistan as part of Operation Endur-

ing Freedom, a multinational military effort under-

taken by the United States, the United Kingdom,

and the Northern Alliance. For all intents and

purposes, that multinational force operated no

differently from the multinational force in Iraq that

captured and detained the petitioners in these

cases—both of whom are also American citizens. See

542 U.S. at 510 (explaining that Hamdi was “seized

by members of the Northern Alliance, a coalition of

military groups opposed to the Taliban government,”

not American forces).

Once again, the fact that Hamdi was captured dur-

ing a multinational military operation did not oper-

ate as a jurisdictional bar to the Court’s considera-

tion of his writ of habeas corpus. The Court ad-

dressed the merits of Hamdi’s petition, holding that

enemy combatants are entitled to a “meaningful

opportunity to contest the factual basis for [their]

5 See S.C. Res. 84, U.N. Doc. S/RES/84 WJuly 7, 1950); S.C.

Res. 83, U.N. Doc. S/RES/83 (June 27, 1950).

detention before a neutral decisionmaker.” Jd. at 509

(plurality op.). While the Court was divided over the

resolution of the merits of Hamdi’s petition, not a

single Justice doubted that the Court had jurisdic-

tion to entertain it in the first place. See id. at 539

(plurality op.); see id. at 553 (Souter, J., concurring

in part, dissenting in part, and concurring in the

judgment); id. at 554 (Scalia, J., dissenting); id. at

585 (Thomas, J., dissenting).

Instead of casting doubt on the right of an Ameri-

can citizen held in American custody by virtue of

multinational military operations to petition a fed-

eral court for a writ of habeas corpus, the plurality

“reaffirmled] *** the fundamental nature of a

citizen’s right to be free from involuntary confine-

ment by his own government without due process of

law.” Jd. at 531. As the plurality explained, “the

interest in being free from physical detention by

one’s own government * * * is the most elemental of

liberty interests.” Jd. at 529. The plurality also

made clear that availability of this right did not turn

on where Hamdi was held, be it Afghanistan, Cuba,

or the United States. Jd. at 524 (explaining that “it

is not at all clear why that should make a ***

difference”).

These three cases—Madsen, Toth, and Hamdi—

confirm that this Court has never endorsed Execu-

tive attempts to limit the Judiciary’s habeas jurisdic-

tion based on American participation in multina-

tional military efforts. They also demonstrate that

this Court has continually accepted jurisdiction over

writs of habeas corpus arising out of this Nation's

participation in multinational military operations.®

® These cases are consistent with historic practice. During

the Seven Years’ War, for example, the King’s Bench enter-

tained, and ultimately granted, a writ of habeas corpus filed on

behalf of Robert Brownless. the master of a Greenland Fishery

For if there were any such limitation, each of these

cases could have—and would have—been dismissed

for lack of jurisdiction.

The Government nevertheless finds such a limita-

tion in an obscure per curiam decision that this

Court itself has apparently never before seen fit to

rely upon for any substantive proposition of law. See

Omar, 479 F.3d at 7. The case does not remotely

support the Government’s asserted limitation.

C. Hirota v. MacArthur Does Not Control The

Question Presented.

The Government relies upon a single case to sup-

port the novel proposition that federal courts lack

jurisdiction to entertain writs of habeas corpus filed

by American citizens delivered into American cus-

tody by a multinational military force led by the

United States: Hirota. See, e.g., Gov. Br. 21 (“The

basic teaching of Hirota calls for dismissal of these

cases.”). But this Court’s brief three-paragraph, per

curiam opinion in Airota simply cannot bear the

weight that the Government invites this Court to

place on it: Hirota announces no rule of general

applicability, let alone the surprising and dangerous

proposition that the Government says it does.

Hirota’s holding is encapsulated in a single sen-

tence: “Under the foregoing circumstances the courts

of the United States have no power or authority to

review, to affirm, set aside or annul the judgment

and sentences imposed on these petitioners and for

this reason the motion for leave to file petitions for

writs of habeas corpus are denied.” 338 U.S. at 198

ship, who had been impressed into service in the Royal Navy.

See Markus Eder, Crime and Punishment in the Royal N. sof

the Seven Years’ War 29-35 (Ashgate 2004). That conflict, like

the present one, had multinational dimensions, with Great

Britain joining in a coalition that included Prussia.

(emphasis added). But the Court declined to articu-

late which of the “circumstances” that it described in

the “foregoing” two paragraphs of the opinion it

actually found to control the outcome. See id. at 197-

198.

Yet, whatever the critical “foregoing circumstances”

were that motivated the Court’s holding, the court’s

recitation included a particularly notable distin-

guishing fact not involved here. Unlike the Ameri-

can petitioners involved in these cases, the petition-

ers in Hirota were “all residents and citizens of

Japan.” 338 U.S. at 197 (emphasis added). More-

over, the Court’s decision seems to reflect the unique

procedural nature of the challenge, which again was

quite different from these cases: Before seeking

relief in a district court, the Hirota petitioners in-

voked the Court’s appellate jurisdiction to collater-

ally attack the judgments of “[t]he military tribunals

* ** set up by General MacArthur as the agent of

the Allied Powers.” See id.

In any event, it is clear that the Court’s modest and

largely unexplained holding in Hirota, which was

expressly based on the particular circumstances

involved in that case, cannot “establish[ ] that United

States courts lack jurisdiction to review the deten-

tion of individuals held abroad pursuant to interna-

tional authority.” Gov. Br. 17. For there is not

“anything in the [Hirota] opinion holdling) that

federal courts lack habeas jurisdiction whenever, as

the government insists, American officials detaining

a petitioner are functioning as part of a multina-

tional] force.” Omar, 479 F.3d at 7. Far from an-

nouncing any such rule, the Hirota Court was careful

to articulate “no general legal principle at all” to

ensure that the case would be decided on the “nar-

rowest possible grounds.” /d. (emphasis added).

Even the Munaf court, which ultimately found

jurisdiction over Munaf's petition wanting, declined

3 to “suggest that [it] [found] the logic of Hirota espe-

4 cially clear or compelling, particularly as applied to

American citizens.” Munaf v. Geren, 482 F.2d at

584.7 Rather than embrace the Government’s read-

ing of Airota, the court there simply—if incor-

a rectly8—concluded that Hirota held that “the fact of

q a criminal conviction in a non-U.S. court is a fact of

jurisdictional significance under the habeas statute.”

Id.

In claiming that Hirota establishes a categorical

ban on habeas jurisdiction whenever an American

citizen is held by a multinational force, the Govern-

. ment stretches that modest per curiam decision

beyond all recognition. The Government takes a

a cursory opinion—which was expressly limited to its

unique circumstances, resolved without announcing

any general rule of decision, and involved no Ameri-

can citizens—and converts it into an expansive

warrant for the Executive Branch to detain Ameri-

cans abroad without any judicial recourse whenever

the United States is involved in a multinational

conflict. Hirota does not support that expansive view

of Executive power.

7 The third judge of the Munaf panel—Judge Randolph—

found that the court had jurisdiction to entertain the petition

and concurred in the judgment for a different reason. In

reaching that conclusion, Judge Randolph actually cited Hirota

for the proposition that “[t]he critical considerations are that

Munaf is an American citizen and that he is held by American

forces overseas.” Munaf, 482 F.2d at 585 (Randolph, J., concur-

ring in the judgment). That reading of the case comports with

this Court’s precedents.

8 The Government and the habeas petitioners agree that a

' jurisdictional rule that allows citizens to petition federal courts

to challenge their detention until they are convicted by a

foreign court makes no sense. See, e.g., Gov. Br. 28-29.

D. The Government’s Proposed Rule Of Deci-

sion Conflicts With This Court’s Decisions.

Not only does the Government’s limitation on ha-

beas jurisdiction find no support in this Court’s

precedent; it squarely conflicts with it. This Court

has long recognized that federal courts have jurisdic-

tion to entertain writs of habeas corpus filed by

American citizens to challenge the lawfulness of

their detention by American officials precisely be-

cause they are American citizens.

Merely two years after this Court decided Hirota, it

decided Johnson v. Eisentrager, 339 U.S. 763 (1950).

There, the Court held that federal courts were with-

out jurisdiction to entertain writs of habeas corpus

filed by “enemy aliens overseas”—specifically, Ger-

mans imprisoned in Germany. Jd. at 765. But in

articulating the breadth of its holding, the Court

carefully limited its scope. It concluded that Ameri-

can citizens were outside its embrace because “[t]his

Court long ago extended habeas corpus” to citizens

held outside the United States. See id. at 769. The

Court explained the privileged role of American

citizenship in the jurisdictional inquiry as follows:

With the citizen we are now little concerned, ex-

cept to set his case apart as untouched by this de-

cision and to take measure of the difference be-

tween his status and that of all categories of

aliens. Citizenship as a head of jurisdiction and a

ground of protection was old when Paul invoked it

in his appeal to Caesar. The years have not de

stroyed nor diminished the importance of citizen-

ship nor have they sapped the vitality of a citi-

ny claims upon his government for protection.

Id.

Eisentrager thus recognized that American citizens

held abroad in American custody can avail them-

selves of the writ of habeas corpus.

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The Court’s recent cases reaffirm this proposition.

In Rasul, for example, eight Justices of this Court

“explicitly agreed that American citizens held by

American officials overseas could invoke habeas

jurisdiction.” Munaf, 482 F.2d at 585 (Randolph, J.,

concurring in the judgment). In that case, the Court

observed that aliens held at the Guantanamo Bay

Naval base in Cuba, “no Jess than American citizens,

are entitled to invoke the federal courts’ authority

under § 2241.” Rasul, 542 U.S. at 481 (emphasis

added). The Court went on to explain that

“[a]pplication of the habeas statute to persons de-

tained at the base is consistent with the historical

reach of the writ of habeas corpus.” Jd.

The dissent did not take issue with the proposition

that American citizens held outside the territorial

United States could avail themselves of the writ of

habeas corpus; it embraced this proposition as well.

Justice Scalia, writing for himself as well as Chief

Justice Rehnquist and Justice Thomas, noted that

“(neither party to the present case challenges the

atextual extension of the habeas statute to United

States citizens held beyond the territorial jurisdic-

tions of the United States courts.” Jd. at 497 (Scalia,

J. dissenting). He also recognized that there was a

good reason for this: “[T]he position that United

States citizens throughout the world may be entitled

to habeas corpus rights * * * is precisely the position

that this Court adopted in Eisentrager.” Id. at 502

(Scalia, J. dissenting) (emphasis added).

Then there is of course Hamdi, decided during the

very same term as Fasul, in which the Court specifi-

cally put this broad understanding of an American

citizen’s entitlement to the writ of habeas corpus to

practice. See 542 U.S. at 531. Like petitioners in

these cases, Hamdi, an American citizen, was de-

tained as a result of our Nation’s participation in

multinational military operations in Afghanistan.

> aS ee Pe ee Fae PK Pe RAS OE OPPS Fee CT yee ee VR eel af AI eee le Ser ne ee Pie

See 542 U.S. at 510; see supra at 17-19. But, as

discussed above, in reviewing his habeas petition,

not a single Justice found jurisdiction wanting. See

supra at 17-19. Instead, the plurality “reaffirmled]

* * * the fundamental nature of a citizen’s right to be

free from involuntary confinement by his own gov-

ernment without due process of law.” Jd. at 531.

The Government is hard-pressed to explain how its

multinational-force limitation can be squared with

this Court’s recognition in Eisentrager, Rasul and

Hamdi that federal courts have jurisdiction to enter-

tain writs of habeas corpus filed by Americans held

in American custody to test the legality of their

detention—regardless of whether their American

jailers are participants in a multinational military

enterprise. Judge Randolph, in his separate concur-

rence in Munaf recognized as much: He explained

that “[tlo extend Hirota to habeas petitions filed by

American citizens not only would contradict Eisen-

trager,” but would also contradict “the majority and

dissenting opinions in Rasul” 482 F.3d at 585

(Randolph, J., concurring in the judgment). Even the

majority in Munaf noted that this Court’s decisions

in Hamdi and Rasul “are grounds for questioning

Hirota's continued vitality.” Jd. at 585. This Court

should reject the Government’s asserted jurisdic-

tional limitation now.

E. The Government’s Rule Would Create Per-

verse Incentives To Detain American Citi-

zens Under The Auspices Of Multinational

Military Operations As A Way To Circum-

vent Judicial Review.

The upshot of the Government’s asserted limita*‘on

on federal courts’ habeas jurisdiction is that the

Executive would have unbridled discretion to detain

American citizens free of any judicial supervision so

long as it acts under the auspices of a multinational

arrangement. Such an incentive would have per-

‘

verse consequences, not the least of which is that the

Government would have available to it a ready-made

way of circumventing the core holding of Hamdi.

The Court in Hamdi recognized the type of “per-

verse incentivels]” that a jurisdictional rule like the

one the Government wants here would trigger.

Hamdi, 542 U.S. at 524 (plurality op.). There, the

Court noted that a habeas rule that turned on where

an American citizen is held would present “[mlilitary

authorities * * * the stark choice of submitting to the

full-blown criminal process or releasing a suspected

enemy combatant captured on the battlefield.” Jd.

As a result, military authorities would be encouraged

to “simply keep citizen-detainees abroad.” Jd.

The incentives created by the jurisdictional rule the

Government proposes here are no less perverse. For

the rule would encourage the Government to assert

custody over American citizens under the auspices of

multinational arrangements in order to obtain the

sole discretion to determine whether the citizens are

entitled to the most elemental right to challenge the

lawfulness of their detention. The Executive would

thus have at hand “nothing less than the unreview-

able power to separate an American citizen from the

most fundamental of his constitutional rights merely

by choosing where he will be detained and who will

detain him.” Abu Ali, 350 F. Supp. 2d at 40. The

constitutional obligations that the Executive owes to

the citizens of this Nation effectively would be op-

tional whenever it participated in multinational

endeavors.

That result would be particularly troubling because

it would offer the Government an expedient way to

evade the rule of law this Court announced in

Hamdi. If the Government could evade federal court

habeas jurisdiction simply by invoking multinational

authorization it would be under no obligation to

provide people captured in multinational military

operations any due process of law, including the

right to challenge the factual basis of their detention

before a neutral decisionmaker. See 542 U.S. at 509,

535. Hamdi clearly intended to prevent that injus-

tice.

F. The Government Is Wrong That The Separa-

tion-Of-Powers Doctrine Supports The Rule

That It Draws From Hirota.

The Government argues that “[t]he restraint called

for by Hirota is supported by fundamental separa-

tion-of-powers principles.” Gov. Br. 23. Not so. The

Government’s view of separation of powers would

actually collapse the Constitution’s structural sepa-

ration of powers by arrogating to the Executive

power that is vested in the Judiciary. Concentrating

that sort of power in the Executive would undermine

the very aim of the structural separation of powers:

to promote individual liberty. In any event, this

Court has already rejected the same mistaken view

of the separation of powers that the Government

advances here.

1. The Executive’s Commander-in-Chief power

does not trump the Judiciary’s protection of individ-

ual liberties, for “[a] state of war is not a blank check

for the President when it comes to the rights of the

Nation’s citizens.” Hamad, 542 U.S. at 536. Even

during times of military conflict, the Constitution

mandates a role not only for the Article I] Com-

mander-in-Chief but also for the Article III Judici-

ary: To evaluate the lawfulness of Executive deten-

tion in view of the fundamental individual liberty at

stake. Thus, “the Great Writ of habeas corpus allows

the Judicial Branch to play a necessary role in main-

taining the delicate balance of governance, serving as

an important judicial check on the Executive's dis-

cretion in the realm of detentions.” Jd.

This judicial check on Executive authority was

important to the Founders, who were rightly suspi-

cious of an Executive vested with unbridled military

power permitting it to detain citizens at will. As this

Court has explained, the Founders “knew—the

history of the world told them—the nation they were

founding, be its existence short or long, would be

involved in war; how often or how long continued,

human foresight could not tell; and that unlimited

power, wherever lodged at such a time, was espe-

cially hazardous.” x parte Milligan, 71 U.S. (4

Wall.) 2, 125 (1866). This deep distrust of Executive

military power runs throughout the Federalist

Papers. See, e.g., The Federalist No. 45 (Madison)

(explaining that “the blessings of liberty” are jeop-

ardized by “those military establishments which

must gradually poison its very fountain”). As Justice

Scalia has emphasized, no fewer than “10 issues of

the Federalist were devoted in whole or part to

allaying fears of oppression from the proposed Con-

stitution’s authorization of standing armies in peace-

time.” Hamdi, 542 U.S. at 568 (Scalia, J., dissent-

ing).

The writ of habeas corpus that the Founders en-

shrined in the Constitution is central to the Judici-

ary’s ability to check the Executive: It stands as the

procedural “bulwark” against Executive overreaching

through abusive detentions. The Federalist No. 84

(Hamilton). Thus, “[{a]t its historical core, the writ of

habeas corpus has served as a means of reviewing

the legality of executive detention, and it is in that

context that its protections have been strongest.”

INS v. St. Cyr, 533 U.S. 289, 301 (2001) (emphasis

added). Yet, it is in this very context—the review of

the legality of detentions of American citizens by

American jailers through the writ of habeas corpus—

that the Government now claims absolutely no

protections exist.

That belief is not supported by the Constitution’s

separation of powers; it is at war with the very

purpose of that structural safeguard. The Constitu-

tion’s separation of powers is designed to preserve

liberty by creating checks and balances through

divided enumerated powers. See Hamdan v. Rums-

feld, 126 S. Ct. 2749, 2800 (2006) (“Concentration of

power puts personal liberty in peril of arbitrary

action by officials, an incursion the Constitution’s

three-part system is designed to avoid.”) (Kennedy,

J., concurring). It was indeed “the central judgment

of the Framers of the constitution that, within our

political scheme, the separation of governmental

powers into three coordinate Branches is essential to

the preservation of liberty.” Mistretta v. United

States, 488 U.S. 361, 380 (1989). Thus, “[tlhe very

core of the liberty secured by our Anglo-Saxon sys-

tem of separated powers has been freedom from

indefinite imprisonment at the will of the Executive.”

Hamdi, 542 U.S. 554-555 (Scalia, J., dissenting).

The consolidation of power within the Executive

Branch that the Government seeks would thus invert

our constitutional system of checks and balances. To

be clear: “(I]t would turn our system of checks and

balances on its head to suggest that a citizen could

not make his way to court with a challenge to the

factual basis for his detention by his Government,

simply because the Executive opposes making avail-

able such a challenge.” Hamad, 542 U.S. at 536-537

(plurality op.). That result would indeed invite the

very abuses that the Founders so feared. See id. at

530 (“history and common sense teach us that an

unchecked system of detention carries the potential

to become a means for oppression and abuse”). As

James Madison warned us, “(t]he accumulation of all

powers legislative, executive and judicial, in the

same hands, whether of one, a few or many, and

whether hereditary, self appointed, or elective, may

justly be pronounced the very definition of tyranny.”

The Federalist No. 47 (Madison). Indeed, a world of

unrestrained “[elxecutive power to detain an indi-

vidual” is undoubtedly “the hallmark of the totalitar-

ian state.” United States v. Montalvo-Murillo, 495

U.S. 711, 723 (1990) (Stevens, J., dissenting). The

Court should now deny the Executive such danger-

ous and unchecked power—again.

2. This Court recently considered and emphatically

rejected the premise that separation-of-powers

principles preclude Article II] courts from entertain-

ing writs of habeas corpus filed by American citizens

to contest the legality of their detention during the

present American-led global operation to combat

terrorism. See Hamdi, 542 U.S. at 535-537; Rasul,

542 U.S. at 485 (“[Tlhe federal courts have jurisdic-

tion to determine the legality of the Executive's

potentially indefinite detention of individuals who

claim to be wholly innocent of wrongdoing.”). In

Hamdi, the court entertained a writ of habeas corpus

filed by an American citizen and went on to hold that

enemy combatants held by the United States must

be given a meaningful opportunity to contest the

factual basis for their detention before a neutral

decisionmaker. See 542 U.S. at 509, 535. In so

holding, the Court “necessarily rejectled) the Gov-

ernment’s assertion that separation of powers prin-

ciples mandate a heavily circumscribed role for the

courts in such circumstances.” /d. at 535.

The Court’s justification for rejecting the Govern-

ment’s understanding of separation of powers was

simple and clear: A view of separation of powers

that “serves only to condense power into a single

branch of government” is fundamentally “unreason-

able.” Jd. at 536. (emphasis in original). Far from

being a mechanism designed to consolidate power

within a single Branch of government, the Court

explained that the Constitution’s division of labor

among three Branches was designed to protect

individuals from the excesses of a single Branch:

“Whatever power the United States Constitution

envisions for the Executive in its exchanges with

other nations or with enemy organizations in times

of conflict, it most assuredly envisions a role for all

three branches when individual liberties are at

stake.” Id. (emphasis added).

As in Hamdi, the liberty interests at issue in these

cases are “the most elemental of liberty interests—

the interest in being free from physical detention by

one’s own government.” Jd. at 529. Accordingly, as

the Court concluded there, “it does not infringe on

the core role of the military for the courts to exercise

their own time-honored and constitutionally man-

dated roles of reviewing and resolving claims like

those presented here.” Jd. at 535. In these cases, the

Court should reject once more the Government’s

vision of the Executive’s constitutional role during

wartime—i.e., that the Executive alone is the compe-

tent constitutional actor in the arena of military

detentions of American citizens.

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CONCLUSION

For the foregoing reasons, the judgment of the

Court of Appeals in No. 07-394 should be affirmed:

the judgment of the Court of Appeals in No. 06-1666

should be reversed.

Respectfully submitted,

SHARON BRADFORD FRANKLIN CHRISTOPHER T. HANDMAN*

THE CONSTITUTION PROJECT PAULA. WERNER

1025 Vermont Avenue, N.W. MICHAEL SEVI

Third Floor HOGAN & HARTSON L.L.P.

Washington, D.C. 20005 555 Thirteenth Street, N.W.

(202) 580-6920 Washington, D.C. 20004

(202) 637-5719

JOHN W. WHITEHEAD

THE RUTHERFORD INSTITUTE

P.O. Box 7482

Charlottesville, VA 22906

(434) 978-3888

*Counsel of Record Counsel for Amici Curiae

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