Amicus Curiae Brief — Hamdi v. Rumsfeld

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No. ()

FILED

Supreme Court, U.S.

FEB 23 2004

Supreme Court of the United States

YASER ESAM HAMDI and ESAM FOUAD HAMDI,

as next friend of Yaser Esam Hamdi,

Petitioners,

DONALD RUMSFELD and W.R. PAULETTE, Commander,

Respondents.

On Writ oF CERTIORARI TO THE UNITED STATES

Court OF APPEALS FOR THE FourTH CIRCUIT

Brier oF Amici CuriAE Hon. NATHANIEL R. JONES, HON. ABNER J.

Mixva, Hon. WiLitiAM A. Norris, Hon. H. LEE SAROKIN,

Hon. Hersert J. STERN, Hon. HarRo_p R. Ty er, Jr., SCOTT

GREATHEAD, RoBERT M. PENNOYER, AND BARBARA PAUL ROBINSON

IN SUPPORT OF PETITIONERS

DEBORAH PEARLSTEIN

THe Lawyers COMMITTEE

FOR HUMAN RIGHTS*

333 Seventh Avenue

13th Floor

New York, NY 10001-5004

(212) 845-5200

* Now known as

Human Rights First

Rosert P. LoBuE

Counsel of Record

ALEXIS GANDER

ADEEL A. MANGI

CLARE F. SAPERSTEIN

Carrie A. SYME

PATTERSON, BELKNAP, WEBB

& TyLer LLP

1133 Avenue of Americas

New York, NY 10036

(212) 336-2000

Counsel for Amici Curiae

185862

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

QUESTION PRESENTED

Amici intend to address the third question presented in

the petition for certiorari:

Whether the separation of powers doctrine

precludes a federal court from following ordinary

statutory procedures and conducting an inquiry

into the factual basis for the Executive branch’s

asserted justification for its indefinite detention

of an American citizen seized abroad, detained in

the United States, and declared by Executive

officials to be an “enemy combatant”?

TABLE OF CONTENTS

Question Pospemted ....6sséidiescatuedeee

pos fe PP

Table Of Cited Authorities ....................

eee ee a

Summary Of Argument .......................

The Decision Below Misapplies Separation-

Of-Powers Doctrine And Undermines The

Historic Function Of Habeas Corpus As A

Check On Executive Overreaching .......

A. The Decision Below Violates the

Separation of Powers by Intruding on the

Article III Judicial Power ...........

B. The Power Of Judicial Review Does Not

Disappear In Times Of War .........

C. The History and Purpose of Habeas

Corpus Prohibit the Unquestioning

Acceptance of Executive Representations

as Adequate Grounds for Detention .. .

CL Sa

Conclusion

ill

Contents

Early English courts regularly

inquired into the factual basis for

The Framers recognized the vital

importance of the writ as a

meaningful check on executive

UMD cc ccccccccccccccccceeces

United States habeas decisions and

legislation emphasize the vital

role played by judicial inquiry

into the factual justifications for

DE dccvevpecegecccens

4. Absent suspension of the writ by

Congress, the habeas court cannot be

compelled to accept the executive's

allegation of jurisdictional facts ..

Page

TABLE OF CITED AUTHORITIES

FEDERAL CASES

Ex parte Bollman, 8 U.S. (3 Cranch) 75 (1807) ... 22, 26

Ex parte Burford, 7 U.S. (3 Cranch) 448 (1806) ....21, 22

Crowell v. Benson, 285 U.S. 22 ae 14, 16

Duncan v. Kahanamoku, 327 U.S. 304 (1946) ..... 14, 18

England v. Louisiana State Board of Med. Examiners,

375 U.S. 411 (1964) ......000.0............ 9

Ford v. Wainwright, 477 U.S. 399 ar 24

Gutierrez de Martinez y. Lamagno, 515 U.S. 417

SUUEE decédacccsaccacaedeldneceecuens 10, 11

Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003) .. passim

Hamdi v. Rumsfeld, 337 F.3d 335 (4th Cir. 2003).. 3,4

INS v. St. Cyr, 533 U.S. 289 (2001) .............. 17, 18

McNary v. Haitian Refugee Center, Inc., 498 U.S. 479

PUNE Kesdvuncceeéedsbunaauenecenbaciut 16

Ex parte Merryman, 17 F. Cas. 144 (C.C. Md. 1861)

RO ee ner Lain 25, 26

Ex parte Milligan, 71 U.S. 2 (1866) ............ 27

Mitchell v. Harmony, 54 U.S. 115 a 13

Cited Authorities

Page

Northern Pipeline Constr. Co. v. Marathon Pipe Line ,

Co., 458 U.S. $0.( 1982) ..2 2... cece cee eeeees

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) ale

Ex parte Quirin, 317 U.S. 1 SED céceecccesees 14

Sterling v. Constantin, 287 U.S. 378 (1932) ...... 14

St. Joseph Stock Yards Co. v. United States, 298 U.S. ”

BB CIDIG) 2c ccccccccccccccccescvccccccees 9,

Swain v. Pressley, 430 U.S. 372 (1977) .......+-- 25

In re Territo, 156 F.2d 142 (9th Cir. 1946) ....... 14

United States v. Bainbridge, 24 F. Cas. 946 (C.C.D. -

Mass. 1816) (No. 14,497) .... 0.0... - 0 eee eee

United States v. Klein, 80 U.S. (13 Wall.) 128 _—

CIBTE) occ cccvcccccccccccccvccsscvccccscees :

United States v. Raddatz, 447 U.S. 667 (1980) .... 10

United States v. Utah Constr. & Mining Co., 384 U.S. ”

394 (1966) 2.2... cece cece eeeeeenes

Webster v. Doe, 486 U.S. 592 (1988) .........+-- 16

Youngstown Sheet & Tube Co. v. Sawyer, 343 US. “~

tly) eee ,

Zadvydas v. Davis, 253 U.S. 678 (2001) ...... 16, 17, 24

Cited Authorities

Page

STATE CASES

Commonwealth v. Harrison, 11 Mass. (1 Tyng) 63

PE cd kwdkbaddandeanedeeunedaneuunceeute 22

In re Stacy, 10 Johns. 328 (N.Y. 1813) .......... 22

CONSTITUTIONAL & STATUTORY PROVISIONS

U.S. Constitution, art. I, § 8,cl.1 .............. 13

U.S. Constitution, art. I, § 8,cl.10 ............. 13

U.S. Constitution, art. I, § 8,cl. 11 ............. 13

U.S. Constitution, art. I, § 8,cl.12 ............. 13

U.S. Constitution, art. I, § 8, cl. 13 ............. 13

U.S. Constitution, art. I, § 8, cl. 14 ............. i3

U.S. Constitution, art. I, § 8, cl. 16 ............. 13

Te ee 21

28 U.S.C. § 636(b)(1)(B) (2000) 2.2.0.0... 10

28 U.S.C. § 2243 (2000) ...........0...... 1,7, 12,24

28 U.S.C. § 2246 (2000) ................... 12, 23, 24

28 U.S.C. § 2248 (2000) ................. 7, 12, 23, 25

vil

Cited Authorities

Page

ENGLISH CASES & STATUTES

Bushell’s Case, 124 Eng. Rep. 1006 (C.P. 1670) .. 19

Goldswain s Case, 96 Eng. Rep. 711 (K.B. 1778) ... 19

Good's Case, 96 Eng. Rep. 137 (K.B. 1760) ...... 19

Habeas Corpus Act of 1679, 31 Car. 2, ch. —- ~~

Hellyard’s Case, 74 Eng. Rep. 455 (C.P. 1587) ... 18

King v. Lee, 83 Eng. Rep. 482 (K.B. 1676) ....... 19

Peter's Case, 74 Eng. Rep. 628 (C.P. 1587) ...... 18

Petition of Right, 3 Car. 1, ch. 1 (1628)........-. 18

Rex v. Earl of Orrery, 88 Eng. Rep. 75 (1722) .... 27

Rex v. Turlington, 97 Eng. Rep. 741 (K.B. 1761) .. 19

Sommersett’s Case, 20 Howell’s State Trials 1

(LB. ATTZ) onc ccccccccvccscvccsccesecces 19

vill

Cited Authorities

Page

OTHER AUTHORITIES

Alan Clarke, Habeas Corpus: The Historical Debate,

14.N.Y.L. Sch. J. Hum. Rts. 375 (1998) ....... 20

David Cole, Jurisdiction and Liberty: Habeas Corpus

and Due Process as Limits on Congress's Control

of Federal Jurisdiction, 86 Geo. L.J. 2481 (1998)

en ee ee ee el ee I eo ae a 25

William F. Duker, A Constitutional History of Habeas

Corpus 40 (1980) ............0 ccc eee 18, 20, 21, 27

Carlotta Gall, A Nation at War: Kabul; U.S. Sends 18

at Guantanamo to Afghanistan to be Freed,

The New York Times, March 25, 2003, at B13 .. 6

Carlotta Gall, Freed Afghan 15 Recalls a Year at

Guantanamo, The New York Times, February 11,

RE ee ere tee 6

Geneva Convention Relative to the Treatment of

Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316,

I i et ee Te 4, 5, 16

Habeas Corpus Act of Feb. 5, 1867, ch. 28, 14 Stat.

I ha 6 ah Bk tee Te he es 23

H.R. Rep. No. 80-308 (1948) ..............04.. . 23

Jonathan L. Hafetz, The Untold Story of Noncriminal

Habeas Corpus and the 1996 Immigration Acts,

107 Yale L.J. 2509 (1998) ...............05. 19

fe ee ae

Cited Authorities

Christine Haughney, Judge Orders Inquiry Into

Detainment of Egyptian, The Washington Post,

August 17, 2002, at A02 .......... eee eeeeeee

Indira A.F. Lakshmanan, Freed Detainees Cite

Rewards, Beatings Ex-Prisoners Talk of Treatment

at Guananamo Bay, The Boston Globe, March 26,

MU MREEED 566660 e00cbereedscneseeeeenes

Liz Sly, “J didn't do anything wrong,” aged former

detainee says, Chicago Tribune, October 30, 2002,

SED cc cuegnhabtdseenesesecessutesteouweres

The Declaration of Independence (U.S. 1776) ....

The Federalist No. 51 (Alexander Hamilton or James

MaGIGOR) onc cce sr cvccccccccecccsevecvees

The Federalist No. 84 (Alexander Hamilton) .....

World in Brief, The Washington Post, February 15,

BEDE GEARS ccccccccevccccccecsccvececees

Page

~s-—e

INTRODUCTION

Yaser Hamdi’s father claims his son was a civilian relief

worker. The executive claims he was an enemy combatant.

The decision of the U.S. Court of Appeals for the Fourth

Circuit holds that federal courts have no role to play in

determining who is correct, and consigns an American citizen

to indefinite detention without charges or trial. That decision

misapplies the separation-of-powers doctrine and abdicates

the courts’ historic role in habeas corpus cases to inquire

into the factual basis for executive detention. This Court

should therefore reverse the dismissal of the habeas corpus

petition and direct that the district court “hear and determine

the facts, and dispose of the matter as law and justice require.”

28 U.S.C. § 2243 (2000).'

‘STATEMENT OF INTEREST OF AMICI

Amici, the former federal judges and attorneys listed

below who have devoted their careers to promoting the rule

of law as implemented in our nation’s courts, have an abiding

interest in the independence of the judiciary as a check on

the actions of the executive branch.

Judge Nathaniel R. Jones served as a judge on the United

States Court of Appeals for the Sixth Circuit from 1979 to

2002.

Judge Abner J. Mikva served as a judge on the United

States Court of Appeals for the District of Columbia Circuit

from 1979 to 1994, and as Chief Judge from 1991 to 1994.

He also served as White House Counsel from 1994 to 1995.

Prior to taking the bench, he served five terms as a member

of Congress.

1. This brief is filed with the written consent of the parties. Letters

of consent have been filed with the Clerk. No counsel for the parties has

authored this brief in whole or in part. No person other than amici and

their counsel has made a monetary contribution to the preparation or

submission of this brief.

Judge William A. Norris served as a judge on the United

States Court of Appeals for the Ninth Circuit from 1980 to 1997.

Judge H. Lee Sarokin served as a judge on the United States

District Court for the District of New Jersey from 1979 to 1994,

and on the United States Court of Appeals for the Third Circuit

from 1994 to 1996.

. Judge Herbert J. Stern served as a judge on the United States

District Court for the District of New Jersey from 1973 to 1987.

He also served as the United States Judge for Berlin from 1979

to 1980.

Judge Harold R. Tyler, Jr. served as a judge on the United

States District Court for the Southern District of New York from

1962 to 1975. He has also served as the Deputy Attorney General

of the United States, an Assistant Attorney General of the

United States Department of Justice Civil Rights Division, and

an Assistant United States Attorney.

Scott Greathead is a member of the New York bar and an

international human rights advocate. He has traveled to more

than a dozen countries to advocate the rights of persons under

executive detention.

Robert M. Pennoyer is an attorney in private practice in

New York City. He has served as an Assistant United States

Attorney in the Criminal Division of the United States Attorney’s

Office for the Southern District of New York, the Assistant to

the General Counsel of the Department of Defense, and the

Special Assistant to the Assistant Secretary of Defense for

International Security A ffairs.

Barbara Paul Robinson is an attorney in private practice in

New York City. She is a former President of the Association of

the Bar of the City of New York.

———

STATEMENT OF THE CASE

As the case comes to this Court, the facts that the panel

below considered to be dispositive are either not supported by

evidence or very much in dispute. See Hamdi v. Rumsfeld,

337 F.3d 335, 360-61 (4th Cir. 2003) (hereinafter Hamdi IV)

(Luttig, J., dissenting from denial of rehearing en banc).

For example, while the decision here on review embraces as

dispositive that Mr. Hamdi was “captured on the battlefield,”

Hamdi v. Rumsfeld, 316 F.3d 450, 468, 471 (4th Cir. 2003)

(hereinafter Hamdi III), neither the petition for habeas corpus,

the Mobbs Declaration, nor anything else in the record, sets

forth where Mr. Hamdi was apprehended. The Mobbs

Declaration alleges that Mr. Hamdi was not captured by United

States forces, but was handed over to the U.S. military in

Afghanistan by unnamed members of the Northern Alliance.

J.A. at 149 (Mobbs Decl. {9 4, 7). How and where the Northern

Alliance apprehended Mr. Hamdi are not disclosed. Further,

while the Mobbs Declaration asserts that Mr. Hamdi

“was determined by the U.S. military screening team to meet

the criteria for enemy combatants over whom the United States

was taking control,” no information is provided as to what those

criteria are or the facts to which those criteria were applied in

Mr. Hamdi’s case. Jd. (Mobbs Decl. 4 7).

Mr. Mobbs asserts that all “individuals associated with

al Qaeda or Taliban were and continue to be enemy combatants,”

id. (Mobbs Decl. ¥ 6), and that Mr. Hamdi was “affiliated with

a Taliban military unit,” id. at 148 (Mobbs Decl. { 3), but does

not explain what the words “associated” and “affiliated” mean

in this context. Although the Government asserts to this Court

that the President has “conclusively determined” that Mr. Hamdi

is an “unlawful combatant” (Opp. to Cert Pet. at 29), the Mobbs

Declaration does not use the term “unlawful combatant,” and

only asserts that the U.S. military has determined that Mr. Hamdi

is an “enemy combatant.” J.A. at 149 (Mobbs Decl. {| 6, 7).

No facts were presented to the habeas court to establish that the

petitioner has committed offenses under any criminal or military

code. There is no suggestion that Mr. Hamdi has any connection

with al Qaeda or has committed acts of terrorism.

For all that appears in the record, Mr. Hamdi might be

(1) a lawful combatant entitled to all the protections afforded

such a person by the Geneva Convention,”? which the

Government concededly has not granted him; (2) an “unlawful”

combatant based on some as yet undisclosed evidence as applied

to some as yet undisclosed standard of conduct; (3) a civilian in

the wrong place at the wrong time.’

In the face of these uncertainties, the decision below holds

that “any effort [by the courts] to ascertain the facts” would

invade the executive’s “war efforts.” Hamdi III, 316 F.3d at

474-75. Instead, the only permissible judicial inquiry is whether

the facts alleged by the Government in support of the prisoner’s

detention would, “if accurate,” provide a valid basis for the

detention. /d. at 473 (emphasis added). The court below therefore

accorded conclusive effect to the two-page hearsay Mobbs

Declaration that purported to set forth the facts pertaining to

Mr. Hamdi’s apprehension and detention. The habeas petition

was dismissed without a hearing, without any judicial inquiry

into the veracity of the allegations by the Government, and

without the petitioner having been informed of the factual

allegations on which he has been held or afforded access to his

court-appointed counsel to apprise counsel whether the facts

alleged in the Mobbs Declaration are true.‘

2. Geneva Convention Relative to the Treatment of Prisoners of

War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (hereinafter “Geneva

Convention”).

3. The assertion that Mr. Hamdi was a civilian relief worker is

noted at Hamdi IV, 337 F.3d at 346 n.3 (Traxler, J., concurring in denial

of rehearing en banc).

4. The Mobbs Declaration implies that the declarant or others

within the U.S. military have in their possession evidence, such as

(Cont’d)

The Fourth Circuit’s ruling has placed Mr. Hamdi in a

legal limbo. He has not been charged with any crime in

either the civilian or military justice systems and the

Government disclaims any obligation to so charge him at any

time. (Opp. to Cert. Pet. at 24.) Mr. Hamdi has not been accorded

prisoner-of-war status and has not been afforded the protections

of the Geneva Convention, including the right to have a

“competent tribunal” determine his status.” The Government

disclaims any obligation to invoke such a hearing because

petitioner’s status is, at least in the military’s mind, “not in doubt”

(id. at 29) and has refused the district court’s suggestion that it

conduct a hearing before a military tribunal to confirm

Mr. Hamdi’s status (see Pet. for Cert. at 9 n.7). Even if the

Government were to acknowledge an obligation to release him

(or to charge him for war crimes) when hostilities end,° given

the nature of the present conflict, hostilities may continue

indefinitely. In short, if the Government’s position were

accepted, Mr. Hamdi, and anyone similarly situated, could be

detained for life without hope of access to any forum — civilian

(Cont'd)

statements of Mr. Hamdi and others, that supports their assertions as to

Mr. Hamdi’s status, and there is no claim of inability to marshal that

evidence. See J.A. at 149-50 (Mobbs Decl. 4 5, 8, 9). The fact-gathering

difficulties hypothesized by the Fourth Circuit, Hamdi III, 316 F.3d at

473-74, appear to be absent.

5. Geneva Convention, art. 5 (“Should any doubt arise as to whether

persons, having committed a belligerent act and having fallen into the

hands of the enemy, belong to any of the categories enumerated in Article

4, such persons shall enjoy the protection of the present Convention

until such time as their status has been determined by a competent

tribunal.”’).

6. Geneva Convention, art. 118 (“Prisoners of war shall be released

and repatriated without delay after the cessation of active hostilities.”);

Geneva Convention, art. 119 (“Prisoners of war against whom criminal

proceedings for an indictable offence are pending may be detained until

the end of such proceedings, and, if necessary, until the completion of

the punishment.”).

or military — with authority to inquire into the factual basis of

his detention.

The panel below countenanced that result despite its

recognition that “[t]he murkiness and chaos that attend armed

conflict mean military actions are hardly immune to mistake.”

Hamdi III, 316 F.3d at 473. Indeed, reports of bounty hunting

by Northern Alliance members cast in doubt the alleged

circumstances of any prisoner handed over to the U.S. authorities

by the Northern Alliance.’ The United States to date has released

some 87 Guantanamo detainees,* several of whom have asserted

that they were mistakenly identified as enemy combatants.’

In addition, in the wake of the September 11 attacks, there have

been other instances in which persons wrongly have been

accused of terrorist associations or activities.’ Those reports

7. See Indira A.R. Lakshmanan, Freed Detainees Cite Rewards,

Beatings Ex-Prisoners Talk of Treatment at Guantanamo Bay,

The Boston Globe, March 26, 2003, at A6 (reporting that a released

detainee “said he was forcibly conscripted by the militia and captured

by a notorious warlord, General Abdul Rashid Dostum, who ‘sold us to

the U.S.’”); see also Carlotta Gall, A Nation at War: Kabul: U.S. Sends

18 at Guantanamo to Afghanistan to be Freed, The New York Times,

March 25, 2003, at B13.

8. See World in Brief, The Washington Post, February 15, 2004, at

A25.

9. The first four detainees released in October 2002 included a

71-year-old man who was captured while traveling to visit a doctor and

who claimed he never fought for the Taliban; in fact, he was from a

village that fought against the Taliban. Liz Sly, “J didn't do anything

wrong,” aged former detainee says, Chicago Tribune, October 30, 2002,

at N3. One of the juveniles released on January 29, 2004, has stated that

he was arrested by Afghan militia soldiers and turned over to the

Americans while he was simply looking for work. Carlotta Gall, Freed

Afghan, 15, Recalls a Year at Guantanamo, The New York Times,

February 11, 2004, at A3.

10. One well-publicized casualty of the “war or. terror” is Abdallah

Higazy, an Egyptian national who was falsely accused of possessing an

(Cont'd)

underscore the inevitability of some error in the factual

determinations that underlie detention decisions, even by agents

acting in complete good faith, that proper judicial review may

correct. They also remind us, however, that habeas corpus is

the ultimate protection of the people against executive officers

not acting in good faith, who can misuse their awesome powers

to deprive innocent persons of liberty for illegitimate reasons.

SUMMARY OF ARGUMENT

The Fourth Circuit decision misapplies the separation-of-

powers doctrine by elevating to a preferred position the

executive’s military prerogatives, while surrendering a core

attribute of judicial power: the power to find the facts that are

determinative of a specific dispute before the court. This Court

has refused to give effect even to congressional enactments that

purported to eliminate the federal courts’ ability to decide

dispositive factual disputes in specific cases properly before

them. Here, where congressional enactments have instructed

the courts to “determine the facts” presented in habeas petitions,

28 U.S.C. § 2243, and authorized them to reject the executive’s

factual representations, 28 U.S.C. § 2248, executive power to

deni ‘nd a different procedure is at its weakest.

This Court has repeatedly indicated that the judicial power

does not disappear in times of war. There is no reason to believe

that federal courts would unduly interfere with military

operations or compromise national security by performing arole

in which the courts are expert — resolving factual disputes — and

at radio on September 11, 2001 at a hotel near the World Trade

Center, arrested by the FBI as a material witness, and held in solitary

confinement for 31 days before being released. A United States District

Judge later stated that “[t]he court . . . was apparently seriously misled

on two occasions in connection with the detention of Mr. Higazy as a

material witness. .. .” See Christine Haughney, Judge Orders Inquiry

Into Detainment of Egyptian, The Washington Post, August 17, 2002,

at AO2.

numerous cases involving substantial national security concerns

have been successfully processed by the courts. The Fourth

Circuit's mistrust of the courts’ ability to do so should be

rejected.

The history and purpose of the writ of habeas corpus are

also contrary to the decision below. The power to question facts

alleged by the executive as support for a petitioner’s

detention, particularly when there have been no prior judicial

or quasi-judicial findings, is essential if the writ is to fulfill its

purpose as a bulwark against unlawful executive detention.

To hold, as the court below did, that the habeas court is powerless

to look behind the government’s representations of fact would

have the same effect as suspendin

g the writ, which can

be done only by Congress. peer

ARGUMENT

THE DECISION BELOW MISAPPLIES SEPARATI

ON-

OF-POWERS DOCTRINE AND UNDERMINES THE

HISTORIC FUNCTION OF HABEAS CORPUS AS A

CHECK ON EXECUTIVE OVERREACHING

A. The Decision Below Violates the Separation of Powers

by Intruding on the Article III Judicial Power

The Fourth Circuit decision acknowledges that the

separation of powers is a means of protecting the liberty of the

people. Hamdi III, 316 F.3d at 462-63. From that unassailable

premise, however, the decision quickly goes astray in

recognizing and elevating to a preferred position a “right of the

people” collectively to enjoy the benefits of an executive power

immunized from “trespass” by the judicial branch. Jd. at 463.

The three branches of government are separate, but co-equal.

The people have as much right to collectively enjoy the benefits

of an independent judiciary as they do to enjoy the benefits of a

wise legislature and an effective executive. In short, the principle

of separation of powers does not immunize executive actions

from judicial scrutiny. The decision below, far from protecting

the executive from unwarranted “trespass” by the judiciary,

violates the separation of powers by causing an unwarranted

surrender of the judicial power in Article III of the Constitution.

Article III creates a federal judiciary that “stand{s]

independent of the Executive and Legislature — to maintain the

checks and balances of the constitutional structure, and also to

guarantee that the process of adjudication itself remain(s]

impartial.” Northern Pipeline Constr. Co. v. Marathon Pipe Line

Co., 458 U.S. 50, 58 (1982) (plurality opinion). An essential

element of the federal judiciary’s responsibility and power under

Article III is the “judicial duty to exercise an independent

judgment.” St. Joseph Stock Yards Co. v. United States, 298

U.S. 38, 53 (1936). Neither Congress nor the executive branch

may constitutionally prevent the judiciary from fulfilling that

duty, for both lack the authority to require “the federal courts to

exercise ‘[t]he judicial Power of the United States,’ U.S. Const.,

art. III, § 1, in a manner repugnant to the text, structure, and

traditions of Article III.” Plaut v. Spendthrift Farm, Inc.,

514 USS. 211, 217-18 (1995) (holding that Congress violated

the separation of powers by retroactively commanding the

federal courts to reopen final judgments).

Throughout its history, often in cases other than habeas

corpus, this Court has carefully guarded the judiciary’s power

to make independent judgments by reserving to Article III courts

the power to determine whether the evidence is sufficient to

support a specific claim properly before the court. And properly

so, because “{h]Jow the facts are found will often dictate the

decision of federal claims.” England v. Louisiana State Bd. of

Med. Examiners, 375 U.S. 411, 416-17 (1964)."

11. The Court has held that under the “demands of due process

and the constraints of Art[icle} III,” a federal district court cannot

constitutionally abdicate its duty to find facts, and can only defer to a

record developed by a non-Article III officer when “the entire process

(Cont'd)

The principle that a coordinate branch cannot tell an

Article II] court how to determine the outcome of a specific

cause properly before it is central to the separation of powers

envisioned in the Constitution. The paradigm is United States

v. Klein, 80 U.S. (13 Wall.) 128 (1871), where the Court held

unconstitutional a congressional enactment that required federal

courts to find a former Confederate citizen’s acceptance of a

general presidential pardon to be conclusive evidence of prior

disloyalty to the Union. The statute effectively determined the

outcome of claims brought by those citizens under an act that

allowed those who could prove their loyalty to recover property

confiscated by federal troops during the war. The Court rejected

this statute as an attempt by Congress to “forbid[ the court] to

give the effect to evidence which, in its own judgment, such

evidence should have,” and held it to be an unconstitutional

violation of the separation of powers. /d. at 147 (stating that

Congress “inadvertently passed the limit which separates the

legislative from the judicial power’). Since Klein, the Court

has continued to hold that Congress cannot “require federal

courts to exercise the judicial power in a manner that Article III

forbids” by “prescrib[ing] rules of decision to the Judicial

Department of the government in cases pending before it.”

Plaut, 514 U.S. at 218.

Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995),

is a recent example of this Court’s skepticism of attempts to

compel Article III courts to rubber-stamp factual determinations

of the executive branch. The question was whether the Attorney

General’s statutorily-authorized certification that a federal

(Cont'd)

takes place under the district court’s total control and jurisdiction.”

United States v. Raddatz, 447 U.S. 667, 681, 683-84 (1980) (holding

constitutional the provision of the Federal Magistrates Act, 28 U.S.C.

§ 636(b)(1)(B) (2000), that permits a federal judge to determine and

decide a motion to suppress evidence based on the record developed

before a magistrate judge, because “the magistrate acts subsidiary to

and only in aid of the district court”).

— _——-

employee was acting within the scope of his employment, which

would be determinative of a tort claim against the government,

was conclusive on the court. /d. at 420. This Court observed

that the notion that Congress could “instruct{] a court

automatically to enter a judgment pursuant to a decision the

court has no authority to evaluate,” id. at 430, is contrary to the

“traditional understandings and basic principles .. . [that]

executive determinations generally are subject to judicial review

and .. . mechanical judgments are not the kind federal courts

are set up to render.” /d. at 434. In a case with stakes far lower

than the indefinite loss of personal liberty here, the Court

therefore refused to read the statute as requiring the judiciary to

be bound by the Attorney General’s certification, because such

a reading “would cast Article III] judges in the role of petty

functionaries, persons required to enter as a court judgment an

executive officer’s decision, but stripped of capacity to evaluate

independently whether the executive’s decision is correct.”

Id. at 426.

In cases such as Klein and Gutierrez de Martinez, the Court

has preserved inviolate the power of the federal courts to engage

in independent fact-finding in the face of assertions that

Congress had shifted the power to adjudicate facts out of the

courts’ control. If in the present case Congress had enacted

legislation that directed the federal habeas court to accept as

conclusive a declaration by a member of the Department of

Defense certifying the enemy combatant status of the detainee,

the attempted dilution of the courts’ adjudicatory power by the

legislature would present a serious constitutional issue. In the

present case, however, Congress has not so legislated. Nor has

it remained silent. Were the federal habeas court to accept as

conclusive an executive representation of the facts that purport

to justify the petitioner’s confinement, as the Fourth Circuit has

instructed it to do, it would disobey congressional enactments

that place the fact-finding power in the habeas court.

In the Judicial Code, Congress has directed courts to

“summarily hear and determine the facts” involved in a habeas

petition. 28 U.S.C. § 2243. The petitioner may deny the facts of

the government's return or allege facts on his own. Jd. The Court

may glean the facts from depositions, affidavits, or oral

testimony, but when affidavits of the government are accepted,

as in the present case, the petitioner has the right to propound

written interrogatories on the government’s affiant. 28 U.S.C.

§ 2246 (2000). Finally, even if the petitioner does not traverse

the facts alleged in the return, the court may refuse to accept the

facts asserted by the government if it “finds from the evidence

that they are not true.” 28 U.S.C. § 2248. Nothing in

these enactments carves out cases involving terrorism, warfare,

or other aspects of national security for different treatment.

The decision below ignores the significance of these

provisions in the separation-of-powers analysis. The executive’s

claim here of a constitutional right to displace the fact-finding

prerogatives of the habeas court misunderstands separation-of-

powers principles as surely as did the executive’s claim that

was rejected in Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952). Among the fundamental teachings of

Youngstown is that the executive’s assertion of power deriving

from the President’s role as Commander-in-Chief is at its

weakest when it is opposed, not supported, by act of Congress.

Id. at 587; see also id. at 646 (Jackson, J., concurring). Or, as

J ustice Clark ’s concurrence put it, such an exercise of purported

executive power cannot be sustained where “Congress had

prescribed methods to be followed by the President in meeting

the emergency at hand,” but the executive utilizes other methods

of its own devising. Jd. at 662. Here, too, the executive claims

power to intrude upon the adjudicatory function of the habeas

court in derogation of explicit statutory commands that repose

the fact-finding function in the court itself.

;

B. The Power Of Judicial Review Does Not Disappear In

Times Of War

The Fourth Circuit diminished the scope of judicial review

to the vanishing point because the nation is at war, and because

“the President is given the war power.” Hamdi III, 316 F.3d at

471. Of course, it is not completely true that the President is

given the “war power,” a phrase that is not used in the

Constitution. Governmental powers pertaining to the declaring

and making of war are apportioned carefully among the

legislative and executive branches.’? And, here the executive

power is asserted without legislative authorization to restrict

the scope of habeas corpus review.

This Court has repeatedly held that the judicial power does

not disappear when the nation is at war or military prerogatives

of the executive are exercised. See, e.g., Mitchell v. Harmony,

54 U.S. 115 (1851) (military officers’ seizure of U.S. citizen’s

12. The Constitution’s only reference to the Executive’s

“war power” is found in Article II, section 2, clause 1, which declares

the Executive to be “Commander in Chief of the Army and Navy of the

United States, and of the Militia of the several States, when called into

the actual Service of the United States.” In contrast, the Constitution

grants Congress a wide variety of powers governing the nation’s ability

to make war. See U.S. Const., art. I, § 8, cl. 1 (granting Congress the

power to “collect taxes... to... . provide for the common defense . . .

of the United States”); U.S. Const., art. 1, § 8, cl. 10 (granting Congress

the power to “define and punish Piracies and Felonies committed on the

High Seas, and Offences against the Law of Nations”); U.S. Const.,

art. I, § 8, cl. 11 (granting Congress the power to “declare war” and to

“make Rules concerning Captures on Land and Water”), U.S. Const.,

art. I, § 8, cl. 12 (granting Congress the power to “raise and support

Armies”); U.S. Const., art. I, § 8, cl. 13 (granting Congress the power to

“provide and maintain a Navy”); U.S. Const., art. I, § 8, cl. 14 (granting

Congress the power to “make Rules for the Government and Regulation

of the land and naval Forces”); U.S. Const., art. I, § 8, cl. 16 (granting

Congress the power to “provide for the organizing, arming, and

disciplining, the Militia, and for governing such Part of them as may be

employed in the service of the United States”).

property in foreign country was subject to court challenge,

including jury determination of the facts); see also, e.g.,

Youngstown, 343 U.S. at 587 (“It is not a military prerogative,

without support of law, to seize persons or property because

they are important or even essential for the military and naval

establishment.”); Duncan v. Kahanamoku, 327 U.S. 304,

320 ( 1946) (describing the “philosophy embodied in the Petition

of Right and Declaration of Independence, that existing civilian

government and especially the courts were not to be interfered

with by the exercise of military power”); Crowell v. Benson,

285 U.S. 22, 58 (1932) (“When proceedings are taken against a

person under the military law, and enlistment is denied, the issue

has been tried and determined de novo upon habeas corpus.”);

Sterling v. Constantin, 287 U.S. 378, 401 (1932) (“What are

the allowable limits of military discretion, and whether or not

they have been overstepped in a particular case, are judicial

questions.”’).

The executive’s supposed primacy in “war making”

therefore does not support the surrender of the judicial power

wrought by the decision below.'* Nor does the Fourth Circuit’s

reliance on the alleged (but unproved) fact that Mr. Hamdi was

seized in a “war zone” justify his continued detention without

13. None of the cases relied on by the Government, or by the

Fourth Circuit, supports the contention that because this nation is at war

4 federal habeas court may be bound by the executive’s assertion of the

jurisdictional facts underlying its authority to detain the petitioner.

In particular, in both Ex parte Quirin, 317 U.S. 1, 20, 38 (1942), and

In re Territo, 156 F.2d 142, 145-46 (9th Cir. 1946), petitioners did not

dispute the factual findings underpinning the determination of their status.

Nonetheless, they had full access to a tribunal in which any disputed

facts could be tried. Indeed, in Quirin, this Court reached the merits of

the habeas petitions despite a presidential order that purported to deny

the petitioners access to the U.S. courts. 317 U.S. at 23. In Territo,

the district court held a hearing on the habeas petition and made the

factual findings necessary to confirm that petitioner was properly

designated a prisoner of war. /d. at 143.

effective judicial review.‘ If the place of the petitioner’s capture

were determinative, all the more reason that this vital

jurisdictional fact be subjected to court review. The notion that

the scope of court review of a habeas corpus petition should

depend upon whether the petitioner was captured on a battlefield

is, in any event, fundamentally wrong. The place and

circumstances of the petitioner’s capture may be relevant to the

determination whether he was properly seized, and to his

classification as a prisoner of war, unlawful combatant,

or otherwise. But the place where the petitioner was captured

bears no logical relationship to a federal district court’s

competence to adjudicate his habeas corpus petition.

Far from being diminished due to alleged military necessity,

a habeas court’s fact-finding power should be at its strongest in

a case such as this, where an important liberty interest is at stake

and the petitioner had no opportunity to contribute to the factual

record upon which the executive based its determination. Habeas

is not being used here as a post-conviction remedy to relitigate

facts found adversely to the petitioner by any tribunal.

This Court’s willingness to permit Article III courts to defer, in

some situations other than habeas, to an executive agency’s

factual determinations has been limited to situations where the

agency made the determinations “in a judicial capacity,”

resolving “disputed issues of fact properly before it which the

parties . . . had an adequate opportunity to litigate.” United States

v. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966);

see also St. Joseph Stock Yards Co., 298 U.S. at 52-53

(acknowledging that the “judicial duty to exercise an

independent judgment does not require or justify disregard of

14. In addressing only Question 3 presented to this Court, amici

take no position as to whether capture in a war zone is a sufficient basis

for executive detention. The contention here is that, assuming those, or

some other set of defined, circumstances would permit detention

consistent with the Constitution, the connection with military activity

does not require the courts to cede their power to verify whether in a

particular case the requisite circumstances were present.

the weight which may properly attach to findings upon hearing

and evidence”) (emphasis added). If the Government had

criminally prosecuted petitioner in a civilian or military court'®

or granted him an “Article 5” hearing under the Geneva

Convention to determine his status,'® any habeas petition filed

thereafter by Mr. Hamdi would be in the nature of a collateral

attack and the appropriate degree of judicial review of the prior

tribunal’s fact-finding would present a different question than

that posed by this case. Absent such a prior judicial or

quasi-judicial proceeding, the federal court’s power and

obligation to find facts of jurisdictional and constitutional

significance must be plenary. See Crowell, 285 U.S. at 64;

see also McNary v. Haitian Refugee Center, Inc., 498 U.S. 479,

496-97 (1991) (because litigants alleged that the INS’s

procedures for making deportation decisions “do not allow

applicants to assemble adequate records,” judicial review of the

litigants’ constitutional claims could not be confined to the

record created by the INS).

The Court of Appeals’ reluctance to entertain judicial

inquiry into the facts that underlie Mr. Hamdi’s detention was

largely premised on assumptions about interference with military

activities and second-guessing of military decisions. Hamdi III,

316 F.3d at 473-74. Its approach, however, betrays a mistaken

mistrust of the federal courts’ ability to engage in the sensitive

balancing of executive needs and individual rights. In Webster

v. Doe, 486 U.S. 592, 604 (1988), for example, this Court

observed that district courts are capable of balancing a plaintiff's

discovery needs in a wrongful termination case “against the

extraordinary needs of the CIA for confidentiality and the

protection of its methods, sources, and mission.” Similarly, in

Zadvydas v. Davis, 253 U.S. 678 (2001), the Court

15. This brief does not address the question of whether a military

tribunal would be a proper tribunal in which to try Mr. Hamdi’s alleged

status as unlawful combatant.

16. See footnote 5, supra.

acknowledged the significant administrative, as well as policy-

based, reasons to defer to the executive in implementing the

nation’s immigration laws. Nonetheless, the Court “believe[d]

that courts can take appropriate account of such matters without

abdicating their legal responsibility to review the lawfulness of

an alien’s continued detention.” /d. at 700.

Cases involving the military raise similar concerns but

should elicit a similar response. A habeas court can defer to the

Commander-in-Chief where deference is due without

relinquishing its historic role. For example, we would not expect

a court to second-guess the determination of the U.S. military

to enter Afghanistan, to identify the Taliban as its foe, to work

with the Northern Alliance, and to conduct the war as it deemed

fit. We would expect a habeas court to be empowered to ascertain

whether, for example, the evidence on which the military claims

to have relied in branding Mr. Hamdi an “affiliate” of the Taliban

really exists. We would also expect a habeas court to hear

Mr. Hamdi’s side of the story and judge, as courts are expert in

doing, whether it is credible. Indeed, independent review of the

facts alleged by the government to justify his detention would

be particularly meaningful in correcting unwarranted detentions

when the initial capture occurs on a battlefield, where the

opportunity for deliberation and accurate assessment of a

person’s identity and status is least likely.

C. The History and Purpose of Habeas Corpus

Prohibit the Unquestioning Acceptance of Executive

Representations as Adequate Grounds for Detention

The decision below is not only inconsistent with this Court’s

holdings that protect judicial independence as an integral

element of the separation of powers, but also with the singular

history and purpose of habeas corpus as a check on the executive

branch. “At 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).

1. Early English courts regularly inquired into the

factual basis for confinement

In St. Cyr, this Court held that the Suspension Clause of

the Constitution at minimum protects the writ as it existed in

1789. Id. Habeas corpus practice at the time of adoption of the

Constitution permitted courts to look behind the factual

averments of the Government that were offered to justify

detention.

Early English cases granting habeas relief to prisoners

detained without process by individual Privy Council'’ members

held that a return merely claiming the executive’s authority to

hold a detainee, without more, was insufficient to justify

continued incarceration. See, e.g., Hellyard’s Case, 74 Eng.

Rep. 455 (C.P. 1587); Peter's Case, 74 Eng. Rep. 628

(C.P. 1587). With small initial steps such as these, the common

law courts began to claim for themselves the power to require

that executive detentions conform to law, rather than to the whim

or caprice of those in power.

In 1628, Parliament enacted the Petition of Right, which

abolished the sovereign’s right to arrest and detain without

showing cause. 3 Car. 1, ch. 1 (1628). This Court has observed

that the Petition of Right was prompted by attempts by the

monarch to employ martial law as a means of visiting summary

punishment on civilians. See Duncan, 327 U.S. at 320. The same

act also abolished the Court of Star Chamber, which had been

widely reviled as an instrument of the arbitrary — and

unappealable — exercise of executive power. Its abolition

underscored Parliament’s recognition that a tribunal that existed

merely to place a rubber stamp of judicial imprimatur on

decisions of the executive presented a threat to the meaningful

exercise of the right to habeas corpus. After the Restoration,

17. The Privy Council was the predecessor to an executive agency:

the “organ through which the King [or Queen] carried on the work of

government.” WILLIAM F. Duker, A ConsTITUTIONAL History OF HABEAS

Corpus 40 (1980) (hereinafter Duxer).

Parliament enacted the Habeas Corpus Act of 1679, 31 Car. 2,

ch. 2 (1679), with additional provisions designed to prevent

avoidance of the writ by the executive. The right to a factual

inquiry into the causes stated in the return was not made statutory

until the Habeas Corpus Act of 1816, 56 Geo. 3, c. 100 (1816),

but earlier courts applying the common law writ recognized the

necessity of meaningful consideration of the factual basis for

confinement. Jonathan L. Hafetz, The Untold Story of

Noncriminal Habeas Corpus and the 1996 Immigration Acts,

107 YALE L.J. 2509, 2535 (1998).

For example, in the well-known Bushell s Case, 124 Eng.

Rep. 1006 (C.P. 1670), the Court of Common Pleas rejected the

argument that it must accept as true the allegations in the return,

stating that “we ought not implicitly think the commitment was

re vera, for cause particular and sufficient enough ... our

judgment ought to be grounded on our own inferences and

understandings. . . .” /d. at 1007-08. See also Sommersett s Case,

20 Howell’s State Trials 1 (K.B. 1772) (holding a factual hearing

on the return); Rex v. Turlington, 97 Eng. Rep. 741 (K.B. 1761);

King v. Lee, 83 Eng. Rep. 482 (K.B. 1676) (considering “divers

affidavits” from both sides in deciding habeas petition).

Habeas cases involving the military were not treated

differently. In Goldswain 5 Case, 96 Eng. Rep. 711 (K.B. 1778),

the petitioner claimed wrongful impressment into the navy.

The court held that neither “the court [nJor the party are

concluded by the return of a habeas corpus, but may plead to it

any special matter necessary to regain his liberty.” /d. at 712.

Further, the judges stated “that they could not willfully shut

their eyes against such facts as appeared on the affidavits, but

which were not noticed on the return.” Jd. See also Good 5 Case,

96 Eng. Rep. 137 (K.B. 1760) (relying on petitioner’s affidavit

to establish facts that entitled him to exemption from

impressment).

At the time the U.S. Constitution was adopted, the English

courts thus bequeathed a legacy of increasingly independent

factual inquiry in resolving habeas petitions.

2. The Framers recognized the vital importance of

the writ as a meaningful check on executive power

Deprived of the full protections of the writ, the colonies

chafed under “arbitrary detention [of colonists] by royal

governors and other officers of the executive branch” throughout

New England and New York. Alan Clarke, Habeas Corpus:

The Historical Debate, 14 N.Y.L. Scu. J. Hum. Rts. 375, 393

(1998). The colonists recognized the importance of habeas

corpus to their personal freedoms and individual liberty. Cotton

Mather, instructing Massachusetts’s agents in London to request

for Massachusetts the protections of the 1679 Act, wrote that

without those protections “we are slaves... .” DUKER, supra,

at 101 -Alluding to the lack of meaningful review of, in particular,

detentions ordered by the military, the colonists listed in the

Declaration of Independence among their enumerated grievances

the complaint that the King had “affected to render the military

independent of, and superior to, the civil power,” and “depriv[ed]

us, In many cases, of the benefit of trial by jury.”

THE DECLARATION OF INDEPENDENCE para. 14, 20 (U.S. 1776).

The Framers were aware of the dangers of unchecked

executive power, and viewed the separation of powers as the

ultimate assurance of a just government, with the “separate and

distinct exercise of the different powers of government ...

essential to the preservation of liberty.” THE FEDERALIST No. 51

(Alexander Hamilton or James Madison). Further, the Framers

recognized the essential power of habeas corpus as a check on

unbridled executive power to arrest and detain. Quoting

—— Alexander Hamilton wrote of the writ in Federalist

0. 84:

The practice of arbitrary imprisonments [has] been,

in all ages, [one of] the favorite and most formidable

instruments of tyranny . . . “to bereave a man of life

... or by violence to confiscate his estate, without

accusation or trial, would be so notorious an act of

despotism, as must at once convey the alarm of

tyranny throughout the whole nation; but

confinement of the person, by secretly carrying him

to jail, where his sufferings are unknown or

forgotten, is a less public, a less striking, and

therefore a MORE DANGEROUS ENGINE of

arbitrary government.”

Three states, Georgia, Massachusetts, and North Carolina,

included habeas corpus guarantees in their own constitutions

prior to the Philadelphia Convention in 1787, and courts

of all of the states recognized the common law writ.

Duxer, supra, at 103, 106, 115. At the Convention, affirmations

of the right to habeas review similar to those in the state

constitutions were proposed, but were eventually rejected.

Instead, its availability was presumed and debate focused on

whether any grounds for suspension should be authorized.

Id. at 127-131. The writ finally was made subject only to the

limited restrictions of the Suspension Clause of Article I,

section 9: “The 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.” The First Congress passed

the Judiciary Act of 1789, which granted the federal courts

statutory authority to issue writs of habeas corpus to prisoners

“in custody, under or by color of the authority of the United

States.” 1 Stat. 82 (1789).

3. United States habeas decisions and legislation

emphasize the vital role played by judicial inquiry into

the factual justifications for confinement

This Court soon had the opportunity to consider cases

challenging confinement by the executive without findings in

any tribunal to justify the action. In Ex parte Burford, 7 US.

(3 Cranch) 448 (1806), the habeas petitioner was committed to

prison on the basis of a meeting of several justices of the peace,

at which (the warrant recited) it was decided “from the

information, testimony and complaint of many credible persons,

. . . that [petitioner was a] disturber of the peace.” Jd. at 450-51.

Burford sought habeas relief from the Circuit Court, which

ordered him remanded to custody. On appeal, this Court

discharged him, stating that the representations of fact in the

warrant were insufficient to support his confinement: “The fact,

ought to have been established by testimony, and the names of

the witnesses stated.” Jd. at 452. The essential deficiency in the

Circuit Court’s ruling was its uncritical acceptance of what

amounted to bare allegations, rather than proof, adduced by the

prosecutorial agency, the justices of the peace.

Ex parte Bollman, 8 U.S. (3 Cranch) 75 (1807), decided by

the Marshall Court in the same year, involved a habeas petition

brought by two alleged co-conspirators of Aaron Burr, who were

held in military detention on the charge of treason. This Court

refused to accept the facts alleged by the government, and

engaged in a lengthy examination of the evidence presented by

both sides, including affidavits and testimony, eventually

determining that the evidence did not support petitioners’

continued detention and ordering them released. /d. at 133-37.

Similarly, in several wrongful impressment habeas cases

decided during the War of 1812, state and lower federal courts

inquired into the factual basis of confinement, taking testimony

beyond the return. See, e.g., Commonwealth v. Harrison,

11 Mass. (1 Tyng) 63, 65 (1814) (examining evidence showing

that the enlistee was a minor, stating “[t]his Court has authority

~ and it will not shun the exercise of it on proper occasions — to

inquire into the circumstances under which any person brought

before them by writ of habeas corpus is confined or restrained

of his liberty”); Jn re Stacy, 10 Johns. 328 (N.Y. 1813)

(examining multiple affidavits provided by the habeas petitioner,

and stating, “we must act, as the courts have always, of necessity,

acted, in like cases, upon the return itself and the accompanying

— +

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affidavits of the complainant”); United States v. Bainbridge,

24 F. Cas. 946, 952 (C.C.D. Mass. 1816) (No. 14,497) (where a

factual question arises regarding a parent’s consent to the

enlistment of his minor son, it would be “necessary to have

required more explicit affidavits than have been made”).

The Habeas Corpus Act of 1867, in the midst of

Reconstruction, further expanded the scope of habeas review.

First, the writ was made available to prisoners held under color

of state law to challenge confinement in violation of the federal

Constitution or federal law. Act of Feb. 5, 1867, ch. 28, 14 Stat.

385 (1867)) (hereinafter “1867 Act”). Second, and more

pertinent here, Congress provided that petitioners could “deny

any of the facts set forth in the return” and “allege any fact to

show that the detention is in contravention of the constitution

or laws of the United States.” Jd. Congress instructed that the

court then “proceed in a summary way to determine the facts of

the case, by hearing testimony and the arguments of the parties

interested.” Jd.

When Congress overhauled the Judiciary Code in 1948, it

added two new provisions that it believed codified existing

procedures in habeas matters. See H.R. Rep. No. 80-308, at Al 79

(1948). Congress allowed either party to submit affidavits in

lieu of oral testimony, which could then be answered by

affidavits or interrogatories from the opposing party. 28 U.S.C

§ 2246. In addition, Congress intended that the allegations in

the government’s return to the habeas petition should be critically

reviewed, and not assumed true if “the judge finds from the

evidence that they are not true.” 28 U.S.C. § 2248.

Those provisions not only give courts : variety of

mechanisms by which they may find the facts, but impose upon

them a duty to engage in factual inquiry rather than uncritically

accept the executive’s representations. Were the rule otherwise,

the Great Writ would be toothless. Just three Terms ago,

for example, this Court held that the habeas court was not

required to “accept the Government’s view about whether the

implicit statutory limitation [on the executive’s power to detain]

is satisfied in a particular case, conducting little or no

independent review of the matter.” Zadvydas, 533 U.S. at 699

(citing 28 U.S.C. § 2241).

Similarly, in Ford v. Wainwright, 477 U.S. 399 (1986),

this Court invalidated a state’s determination that a death row

prisoner was sane, a determination made unilaterally by state

executive appointees. A majority of the Court agreed that such

a determination, made by the executive without affording the

prisoner any opportunity to be heard, did not comport with due

process. See Ford, 477 U.S. at 410-11.'* “[P]Jerhaps the most

striking defect” in the state procedures was the “placement of

the decision wholly within the executive branch. . . . In no other

circumstance of which we are aware is the vindication of a

constitutional right entrusted to the unreviewable discretion of

an administrative tribunal.” Jd. at 415-16. As Justice Powell

observed, “the Governor’s finding is not entitled to a

presumption of correctness” because the “essence of a ‘court’

is independence from the prosecutorial arm of government and

... the Governor is ‘[t}he commander of the State’s corps of

prosecutors.”” /d. at 423 (Powell J., concurring in part).

The panel decision below violates all the key mandates that

Congress wrote into the modern habeas corpus statute.

The district court has been stripped of the power to “hear and

determine the facts.” 28 U.S.C. § 2243. The district court has

been directed to accept as conclusive the affidavit of an executive

officer, but without affording the petitioner the opportunity to

propound interrogatories to the affiant in violation of

section 2246. And, the district court has been directed not to

permit a traverse by the petitioner of the facts alleged by the

government and instead has been directed to accept the facts

alleged by the government to be true, in violation of

18. Three concurring Justices agreed on this point with the four

Justices who joined the plurality opinion. See Ford, 477 U.S. at 424

(Powell, J.); id at 430 (O'Connor, J., joined by White, J.).

section 2248. Seen in historical context, the holding below

represents an unwarranted refusal to apply congressionally-

mandated procedures that embody the long struggle to establish

the writ of habeas corpus as an effective means to judicially

contest an executive detention.

4. Absent suspension of the writ by Congress, the habeas

court cannot be compelled to accept the executive’s

allegation of jurisdictional facts

The Suspension Clause is integral to the separation of

powers. Although the Framers recognized that there were some

extreme circumstances in which a suspension may be necessary,

by limiting the circumstances under which a suspension would

be available, they ensured that suspensions would be rare.

Further, in vesting the power to suspend in Article I, rather than

Article II, the Framers secured an essential element of the

delicate system of governmental checks and balances. Because

the core purpose of habeas corpus relief was to challenge

executive detentions, the Framers ensured that the branch whose

actions would be reviewed on a habeas petition was not also

the one with the power to suspend habeas protections. See Swain

v. Pressley, 430 U.S. 372, 386 (1977) (Burger, C.J., concurring

in part and concurring in the judgment) (“transfer of the historic

habeas jurisdiction to an Art. I court could raise separation-of-

powers questions, since the traditional Great Wnit was largely a

remedy against executive detention”); see also David Cole,

Jurisdiction and Liberty: Habeas Corpus and Due Process as

Limits on Congress s Control of Federal Jurisdiction, 86 GEo.

L.J. 2481, 2495 (1998).

In the early days of the Civil War, Chief Justice Taney,

sitting as Circuit Justice in Ex parte Merryman, 17 F. Cas. 144

(C.C. Md. 1861) (No. 9,487), confirmed that only Congress

can suspend the writ. John Merryman had been arrested and

imprisoned on the charge of treason, without any form of

hearing, by a military officer acting at the order of President

Lincoln. Jd. at 147-48. Merryman applied for habeas corpus,

and the Chief Justice ordered the military commander to produce

the prisoner. The officer refused to produce Merryman, arguing

that he had been authorized by President Lincoln to suspend

the writ. /d. Chief Justice Taney described the case in terms

strikingly similar to the facts presented by Mr. Hamdi, nearly a

century and half later:

[A] military officer . . . without any application to

the judicial authorities, assumes to himself the

judicial power ... undertakes to decide what

constitutes the crime of treason or rebellion; what

evidence (if indeed he required any) is sufficient to

support the accusation and justify the commitment;

and commits the party, without a hearing . . . to close

custody, in a strongly garrisoned fort, to be held there,

it would seem, during the pleasure of those who

committed him.

Id. at 152. The Chief Justice, relying on the English history of

habeas corpus and the suspension power, Blackstone’s

Commentaries, the language of the Suspension Clause itself

and its placement in Article I, and Ex parte Bollman, concluded

that there was “no ground whatever for supposing that the

president, in any emergency, or in any state of things, can

authorize the suspension of the privileges of habeas corpus... .”

Id. at 149.

If the executive cannot for reasons of military necessity

suspend the writ absent congressional authorization, neither can

a court do so in an effort to safeguard the executive’s military

powers from supposed interference by the judiciary. The Fourth

Circuit decision misunderstood why its decision is incompatible

with the Suspension Clause. See Hamdi III, 316 F.3d at

467 n.5. Its decision suspends the writ not because it refused to

grant petitioner relief, but because it limits judicial review of

his detention to no more than would apply if the writ were

suspended.

Suspension practice in England under the 1679 Act limited

the power to Parliament, which could, through an Act with a

specific expiration date, empower the Crown to detain a

particular individual or class of individuals suspected of High

Treason or another specified offense without bail or trial.

DUKER, supra, at 141-42. The suspension of the writ did not,

however, strip the detainee of all right to question the propriety

of his detention. A prisoner detained under a suspension order

could still apply for habeas relief to determine the sufficiency

of the warrant on which he was detained; only if the warrant

showed that the detainee was within the class of individuals

whose rights to habeas relief were suspended would the court

refuse to entertain the petition. See id. at 142 & nn.120-21

(citing Rex v. Earl of Orrery, 88 Eng. Rep. 75 (1722)).

Suspension practice in the United States has followed the same

model. See Ex parte Milligan, 71 U.S. 2, 130-31 (1866)

(“[T]he suspension of the privilege of the writ of habeas corpus

does not suspend the writ itself. The writ issues as a matter of

course; and on the return . . . the court decides whether the party

applying is denied the right of proceeding any further with it.”).

Suspension has not been authorized in this case, and could

not have been authorized because there has been no rebellion

in or invasion of the United States. Nonetheless, the Fourth

Circuit has reached a result that is strikingly similar to the more

limited judicial function that obtains when the writ has been

suspended. The court below based its determination that no

habeas relief could be granted solely on the facts alleged in the

Mobbs Declaration, holding that the executive’s determination

that Mr. Hamdi was an “enemy combatant” was conclusive.

That is the same limited form of judicial review as would obtain

had Congress suspended the writ as to U.S. citizens who are

enemy combatants. In reaching that result, the Court below

intruded on both the exclusive congressional power to suspend

the writ in appropriate cases, and on the judicial power to

adjudicate petitions properly before the court.

CONCLUSION

The decision below should be reversed, and the district court

directed to hear and determine the facts, and dispose of the matter

as law and justice require.

Respectfully submitted,

DEBORAH PEARLSTEIN Rosert P. LoBue

THE Lawyers ComMMITTEE Counsel of Record

FOR HUMAN RIGHTs* ALEXIS GANDER

333 Seventh Avenue ADEEL A. MANGI

13th Floor CLarRE F. SAPERSTEIN

New York, NY 10001-5004 Carrie A. SYME

(212) 845-5200 PATTERSON, BELKNAP, WEBB

Human Rights First 1133 Avenue of Americas

New York, NY 10036

(212) 336-2000

Counsel for Amici Curiae

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