# Amicus Curiae Brief — Hamdi v. Rumsfeld

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0010%3A22

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 1099

## Text

I
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”?

ul

TABLE OF CONTENTS

Question Pospemted ....6sséidiescatuedeee
pos fe PP

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

eee ee a

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

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 .. .

13

CL Sa

Conclusion

ill

Contents

Early English courts regularly
inquired into the factual basis for

I

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

18

20

21

25

28

iv
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

Vv

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

vi
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

ix

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

20

20

ce

~s-—e

l

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.

2

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.

———

3

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

4

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)

5

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.”).

6

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)

7

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.

8

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

9

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)

10

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”).

— _——-

11

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.

12

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.

;
Ly
|

13

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”).

14

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.

15

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.

16

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.

17

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).

18

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).

19

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).

20

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

21

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

22

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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23

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

24

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.).

ee

25

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,

26

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.

27

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.

28

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

© Mew imeem os & TyLer LLP .

Human Rights First 1133 Avenue of Americas
New York, NY 10036
(212) 336-2000

Counsel for Amici Curiae

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0010%3A22. Public record. Not legal advice.