Amicus Curiae Brief — Hamdan v. Rumsfeld

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No. 05-

IN THE FEB 23 2006

Supreme Court ofthe Unite BARBED AE

SALIM AHMED HAMDAN,

P, titi ,

DONALD RUMSFELD, SECRETARY OF DEFENSE, ET AL.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF SENATORS GRAHAM AND KYL

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

JEFFREY A. LAMKEN

Counsel of Record

SHEILA J. KADAGATHUR

BAKER Botts L.L.P.

1299 Pennsylvania Ave., NW

Washington, D.C. 20004-2400

(202) 689-7700

Counsel for Amici Curiae

WILSON-EPES PRINTING CO., INC. — (202) 788-0096 - WasHinGcToON, D.C. 20001

QUESTIONS PRESENTED

1. Whether this Court has (or should retain) jurisdic-

tion over this case following the enactment of the Detainee

Treatment Act of 2005, Pub. L. No. 109-148, Div. A, Tit. X,

119 Stat. 2739.

2. Whether federal courts should abstain from inter-

fering with ongoing military commission proceedings.

3. Whether the military commission established by the

President to try petitioner is duly authorized under Con-

gress’s Authorization for the Use of Military Force

(AUMF), Pub..L. No. 107-40, 115 Stat. 224; the Uniform

Code of Military Justice (UCMJ); some other statute; or the

inherent powers of the President.

4. Whether petitioner, as an al Qaeda combatant, has

judicially enforceable rights—or any rights—under the

Geneva Convention.

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TABLE OF CONTENTS

I. Federal Courts May Exercise Jurisdiction

Over Suits Like This One Only Under The

Review Mechanisms Established By The

eID: siascnesiccihiddaniiienicicecntaiehdeaaneteitiineaninaninatsisadinapeee

A. The DTA’s Text Makes Clear That

This Court Has Jurisdiction To

Review Pending Cases Only Under

8 REESE ERR ry ee ne

B. The DTA’s History Confirms That This

Court May N.. Review Pending Cases

Except As Provided By Section 1005(e)

SI ieheaikerdeiesicaidetiadidahiiecesttisbphiainbbpaidpienaannies

C. Petitioner’s Construction Is At War

With The DTA’s Purpose .............:.sccceceeeeee

II. Construing The DTA Consistent With Its

Text, History, And Purpose Creates No

Additional Constitutional Issues ..................00.

A. Petitioner’s Presumptions And

Avoidance Arguments Have No

EE TE siechinatisindanciinnteinintiontecinnmens

B. The DTA Does Not Violate The

Suspension Clause................-.- scicciitieaieiiliiltie

SINT cjicininicitiaptintintinitpitntiipiinenttanngeitucigtediiiniminaiincinention

Appendix: Statutory Provisions ...............::cscseeeeeeees

(iii)

TABLE OF AUTHORITIES

Page

CASES

Baltimore & P. R.R. Co. v. Grant, 98 U.S.

EEE Se 11

Beck v. Prupis, 529 U.S. 494 (2000) ........ccccecceseeeeee 22

Bruner v. United States, 343 U.S. 112

ESET AES nen Oe 11

Burns v. United States, 501 U.S. 129 (1991) .......... 6, 13

Chevron U.S.A., Inc. v. Echzabal, 536 U.S.

TSE He 13

Connecticut Nat'l Bank v. Germain, 503

EERE ae ee i)

Ex Parte D’Olivera, 7 F. Cas. 853 (C.C.

TS Ce 25

Ex Parte McCardle, 74 U.S. (7 Wall.) 506

ETE Nees a ce 10, 20

Ex Parte Mwenya, 3 W.L.R. 767 (C.A.

ESS Se ea 25-26

FEA vy. Algonquin SNG, Ine., 426 U.S. 548

ECE ESTE NSERE EO eee Renee 16

Gwin v. United States, 184 U.S. 669 (1902) ............ 11

Heckler v. Ringer, 466 U.S. 602 (1984)..............5, 11, 12

Illinois Dep't of Public Aid v. Schweiker,

707 F.2d 273 (7th Cir. 1988) .............ccccccscescesseseess 13

I.N.S. v. St. Cyr, 533 U.S. 289 (2001) ........cccscecseseeee 25

In re Ning Yi-Ching, 56 T.L.R. 3 (Vacation

Bs SNe cieaersecinaiieistuenbinaeeactinbactannenstnianeitnaseenmmannens 26, 27

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

(v)

TABLE OF AUTHORITIES—Continued

Page

King v. Overton, 82 Eng. Rep. 1173 (K.B.

ED icencerictenccnrinntnineninietaennsananntenaneniiaiianiaignianndmaanets 26

King v. Salmon, 84 Eng. Rep. 282 (K.B

NEED covninsecneresuissesnintgneniuttignaninvtiapesnseummnetieasienuentiangs 26

Lewis v. Cont’'l Bank Corp., 494 U.S. 472

Ce ecntsnsensensstcoresnnenmninsnenimmammenennanesnet 28-29

Lindh v. Murphy, 521 U.S. 320 (1997). ............passim

Lujan v. Nat'l Wildlife Fed’n, 497 U.S. 871

GRID csenmeserntimtueinatihemniniapennpeees 12

Merchant’s Ins. Co. v. Ritchie, 72 U.S. 541

Ce ncsnenenseeegtontunntcnniinimnninmmnneninne ll

Neder v. United States, 527 U.S. 1 (1999)............... 22

North Haven Bd. of Educ. v. Bell, 456 U.S.

Se EE seersentininsesinicntnninttaceapeninastonsnninnbiniggnensiinim 16

Rasul v. Bush, 542 US. 466 (2004)... cccceseeeees passim

Shell Oil Co. v. lowa Dep't of Revenue, 488

er TD cctinsriirticiptenterciinatiiedintesenenainnntin 17

Thomas Paper Stock Co. v. Porter, 328 U.S.

ee ccienncssnsiticcupsecitinaniiteinnesininiieninamemmccien 17

Thunder Basin Coal Co. v. Reich, 510 U.S.

ee 5, 12

United States v. Villato, 2 Dall. 370 (C.C.

PD, Ce ecnimnannininiiammnnmedan 25

Weinberger v. Salfi, 422 U.S. 749 (1975)............5, 11, 12

Wilson v. /zard, 30 F. Cas. 131 (C.C.N.Y.

SED cccnndvepentinnivenstnadenpenieemninees ———

Yamashita v. Styer, 327 U.S. 1 (1946)...............0..... 27

vii

TABLE OF AUTHORITIES—Continued

Page

STATUTE

Detainee Treatment Act of 2005, Pub. L.

No. 109-148, §§ 1001-06, 119 Stat. 2680,

2739-45:

a passim

ee 3

BD FREE Pixetenssessnsesecssssesmpemininonnmmeiiame passim

2 | | ee ere passim

ED cenpasesnosesnccnvennensntbasemnapenesiennentistin passim

OS ry ae 15

Ee ee rn 3

eee passim

§ 1005(e)(3)(A)............ wieeusinindbiicisciiapieitieliiiniiaintss 3, 15

eee 4

ID cqrecicscusinsntninieseejnasintmtenann 4

§ 1005(h)............0. a sinennptenampcedeneastannion: 10

2 | | | ee orcetimnmmantoctaas passim

DBD itercecercernmnintanemnsinnnesen passim

CONGRESSIONAL RECORD

151 Cong. Rec.:

$12,655 (daily ed. Nov. 10, 2005) .....................- »

$12,664 (daily ed. Nov. 10, 2005) ............... sebain 18

$12,753 (daily ed. Nov. 14, 2005) 0.0.00... 19

$12,754 (daily ed. Nov. 14, 2005) ............0...........17, 19

$12,755 (daily ed. Nov. 14, 2005).................. 7, 14, 20

$12,796 (daily ed. Nov. 15, 2005) 00.00.0000. 17

$12,799 (daily ed. Now. 15, 200B).......ccccccccceee 17

viii

TABLE OF AUTHORITIES—Continued

Page

$12,803 (daily ed. Nov. 15, 2005) ...........cccceseeeeee 17

$14,260-S14,268 (daily ed. Dec. 21, 2005).... 16, 17, 20

$14,263 (daily ed. Dec. 21, 2005).................+. passim

$14,264 (daily ed. Dec. 21, 2005)................eecceee- 24

$14,267 (daily ed. Dec. 21, 2005) ............:ccccccseeee 24

$14,268 (daily ed. Dec. 21, 2005)..............ccceceeeeee 24

E2341 (daily ed. Dec. 21, 2005) 000.0... eeseeseeeenee 16

MISCELLANEOUS

William Blackstone, 3 Commentaries 131 .............. 20

J. Elsea & K. Thomas, Guantanamo Detain-

ees: Habeas Corpus Challenges in Federal

Cuurt (CRS Report for Congress Dec. 7,

RS ES eo 25

F. Johns, Guantanamo Bay and the

Annihilation of the Exception, 16 Eur. J.

I iciinienincrapiicintninesepenevemeneceanenenpors 28

G. Neuman, The Habeas Corpus Suspension

Clause After St. Cyr, 33 Colum. Hum. Rts.

SET. Se eee 25

IN THE

Supreme Court of the United States

No. 05-184

SALIM AHMED HAMDAN,

Petitioner,

Vv.

DONALD RUMSFELD, BT AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the District of Colhambia Cirenit

BRIEF OF SENATORS GRAHAM AND KYL

AS AMICI CURTAE IN SUPPORT

OF RESPONDENTS

INTEREST OF AMICI CURIAE

Amici curiae are Senator Lindsey Graham of South

Carolina and Senator Jon Ky! of Arizona. Senators Graham

and Kyl are members of the Senate Judiciary Committee,

and both were sponsors of the “Graham-Levin-Kyl Amend-

ment” that eventually became Section 1005(e) of the

Detainee Treatment Act of 2005, Pub. L. No. 109-148,

§§ 1001-06 (2005) (“DTA” or “the Act”).' One of the issues

' This amicus brief is filed with the consent of the parties. Petitioner

has filed a letter with the Clerk of the Court consenting to the filing

of amicus briefs, and respondent's letter of consent is being filed with

the Clerk of the Court together with this brief, in accordance with

before this Court is how Section 1005(e) of that Act affects

this Court’s jurisdiction over, and the standards applicable

to, this case. As sponsors of the Graham-Levin-Kyl Amend-

ment that became Section 1U0US(e), and as members of the

Senate Judiciary Committee, Senators Graham and Ky]

both have a strong interest in the proper application of

Section 1005 and a unique familiarity with and understan-

ding of the provision’s drafting history.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Senate and the House of Representatives have twice

passed the Detainee Treatment Act, and the President has

now twice signed it into law. The DTA was incorporated

into the final version of H.R. 2863, the Department of De-

fense Appropriations Act of 2006, passed by the Senate on

December 21, 2005, and signed by the President on

December 30, 2005. Pub. L. No. 109-148, §§ 1001-1006.

The DTA was also incorporated into the National Defense

Authorization Act for Fiscal Year 2006, passed by the

Senate on December 21, 2005, and signed by the President

on January 6, 2006. Pub. L. No. 109-163, §§ 1401-1406.

The Detainee Treatment Act was passed in response to

this Court’s decision in Rasul v. Bush, 542 U.S. .66 (2004).

It works two principle changes. First, the Act immediately

rescinds the statutory grant of jurisdiction to the federal

courts to entertain petitions for writs of habeas corpus or

other actions filed by alien detainees held by the Depart-

ment of Defense at the Guantanamo Bay U.S. Naval Station

facility in Cuba (“Guantanamo”). The DTA declares that

“no court, justice, or judge shall have jurisdiction to hear or

consider” any habeas application or any other action that

this Court’s Rule 37.3(a). Pursuant to Rule 37.6, the amici sub-

mitting this brief and its counsel hereby represent that neither party

to this case nor their counsel authored this brief in whole or in part,

and that mo person other than amici paid for or made a monetary

contribution toward the preparation and submission of this brief.

“relate[s] to any aspect of detention” of an alien held at

Guanianamo. DTA § 1005(e)(1). That provision is designed

to return the geographic scope of habeas under the federal

statute to its pre-Rasul state. The withdrawal of jurisdic-

tion, like all other provisions of the DTA, “take|s] effect on

the date of [the DTA’s] enactment.” DTA § 1005(h)(1).

Second, the DTA establishes new, carefully tailored

mechanisms for judicial review of challenges brought by

Guantanamo detainees and channels all pending actions

through those new mechanisms. Enemy combatant deter-

minations are first made by Combatant Status Review Tri-

bunals (“CSRTs”) under standards established by the Sec-

retary of Defense. DTA § 1005(a)(1).’ Any “final decision”

of a CSRT is, in turn, subject to judicial review in the

United States Court of Appeals for the District of Columbia

Cireuit, which has “exclusive jurisdiction.” Jd. § 1065(e)(2).

The DTA also regulates the scope of that review. The D.C.

Circuit is empowered to review whether “the status deter-

mination of the [|CSRT] * * * was consistent with the stan-

dards and procedures specified by the Secretary of Defense

*** (including the requirement that the conclusion of the

Tribunal be supported by a preponderance of the evidence

***)” and “whether the * * * standards and procedures”

employed are “consistent with the Constitution and laws of

the United States” (to the extent they apply). /d.

§ 1005(e(2)(C).

The Detainee Treatment Act provides a separate mech-

anism for judicial review of final orders of conviction and

sentences issued by military commissions pursuant to Mili-

tary Commission Order No. 1 (Aug. 31, 2005) (or any suc-

cessor order), including challenges to the standards and

procedures employed. Section 1005(e)(3)(A) of the DTA

provides that such convictions and sentences are, like

* The Secretary of Defense must submit the standards to the

Committee on Armed Services and the Committee on the Judiciary

of both the House of Representatives and the Senate. /bid.

enemy combatant determinations issued by CSRTs, subject

to review “exclusively” in the D.C. Circuit. If the sentence

exceeds 10 years or is capital, that review is- available as a

matter of right. In all other cases, review is available at the

discretion of the D.C. Cireuit. DTA § 1005(e)(3)(B). As

with review of CSRT decisions, Congress regulated the

scope of judicial review of military commission final orders.

The D.C. Circuit is empowered to review only whether the

conviction or sentence is “consistent with” Military Com-

mission Order No. 1 (Aug. 31, 2005) or any successor

military order, as well as the legality of the standards and

procedures used under such military orders. DTA

§ 1005(e)(3)(D). Congress expressly provided that the new

mechanisms for judicial review—both of final enemy

combatant determinations by CSRTs under Section

1005(e)(2) and of final orders of conviction and sentencing

by military commissions under Section 1005(e)(3)—will

apply to all cases “pending on or after the date of the

enactment of this Act.” Jd. § 1005(h)(2).

I. The text, history, and purpose of the Detainee

Treatment Act confirm that Congress intended to withdraw

federal-court jurisdiction to review the detention-related

claims of Guantanamo detainees, except claims asserted un-

der the DTA itself.

A. 1. Section 1005(e)(1) by its clear terms withdraws

federal jurisdiction over Guantanamo detainee cases

effective immediately, except those claims assertable under

Section 1005(e) itself. This Court has long held that

statutes conferring or ousting jurisdiction, as Section

1005(e)(1) does, apply to pending cases unless Congress

provides an express reservation for pending cases.

Congress provided no such reservation here.

The DTA, moreover, provides an exclusive and imme-

diately applicable mechanism for judicial review, as well as

substantive standards and procedures for such review.

Those tailored mechanisms defer judicial review until after

final administrative determinations have been made by

military officials. Channeling claims through administrative

processes as a precondition to judicial review protects

Executive Branch and military action in this particularly

sensitive area from the potential for premature or “overly

casual * * * judicial intervention,” Heckler v. Ringer, 466

U.S. 602, 627 (1984); ensures that any controversy arises in

the conerete context of an actual application of the chal-

lenged procedures; and promotes judicial economy by

allowing the Secretary of Defense, CSRTs, and military

commissions “to correct [their] own errors, to afford the

parties and the courts the benefit of [their] experience and

expertise, and to compile a record which is adequate for ju-

dicial review.” Weinberger v. Salfi, 422 U.S. 749, 765 (1975).

This Court often infers that, when Congress expressly pro-

vides a tailored mechanism for after-the-fact review of

agency decisions, it does not intend for private plaintiffs to

bypass that mechanism in favor of pre-enforcement review.

See, e.g., Thunder Basin Coal Co. v. Reich, 510 U.S. 200

(1994).

Congress, moreover, expressly made those new stan-

dards and procedures applicable to pending cases. DTA

§ 1005(h)(2). That decision would make little sense if, as

petitioner contends, those pending cases can proceed in

precisely the fashion they would have absent the DTA’s

enactment.

2. Petitioner errs in asserting that, because the DTA

contains language expressly making Sections 1005(e)(2) and

1005(e)(3) applicable to pending cases, but does not include

that language with respect to the withdrawal of jurisdiction

in Section 1005(e)(1), Congress must have intended to

reserve jurisdiction for pending cases. Congress had good

reason to single out Subsections 1005(e)(2) and 1005(e)(3)

for differential treatment, because those provisions specify

a new review mechanism and new standards to be applied in

such review. There is no presumption that laws creating

new causes of action or imposing new substantive standards

of review that favor the government will apply to pending

cases, and indeed the contrary presumption may exist. See

Lindh v. Murphy, 521 U.S. 320, 327 (1997). Congress

therefore was well advised to make it clear that those new

provisions should apply to pending cases. In contrast, chan-

ges to jurisdiction—like the change provided in Section

1005(e)(1)—are presumptively applicable to pending cases,

as Congress was well aware. 151 Cong. Rec. $14,263 (daily

ed. Dec. 21, 2005) (statement of Sen. Kyl) (“The courts’ rule

of construction” is that “legislation ousting the courts of

jurisdiction is applied to pending cases.”). Congress’s

silence about whether Section 1005(e)(1) applies to pending

cases thus does not evince an intent to render that provision

inapplicable. Instead, it “merely” evidences Congress’s “ex-

pectation that nothing more need|ed] [to] be said in order to

effectuate the relevant legislative objective.” Burns v.

United States, 501 U.S. 129, 136 (1991).

For the same reason, petitioner errs in relying on Lindh.

Lindh turned on two critical considerations: That the

provisions there imposed new- substantive standards of

proof; and that both sets of provisions—the provisions

expressly made applicable to pending cases and those that

were not—addressed the same subject, the standard of

proof. As a result, “[njothing * * * but a different intent

explainijed| the different treatment” of the two sets of

provisions. 521 U.S. at 130. Here, in contrast, the two pro-

visions address different subjects—one eliminates jurisdic-

tion under prior statutes, while the other establishes a new

set of substantive standards and requirements for review

under the new statute. That difference explains why

Congress addressed them using different language.

Indeed, the differential language was necessary to make

clear that the courts were not required to dismiss all

pending lawsuits. Instead, the D.C. Circuit may retain

jurisdiction over the many pending detainee challenges to

the extent the claims can be asserted and reviewed under

the DTA. If Congress had made the withdrawal of

jurisdiction expressly applicable to pending cases, that

might have imnlied that the cases had to be dismissed. By

specifying instead that the withdrawal of jurisdiction was

immediately effective, but providing an alternative and

expressly applicable mechanism under which pending

claims may be heard, Congress made it clear that pending

cases need not be dismissed and may proceed to the extent

permitted and under the standards established by the DTA

itself.

B. The legislative history confirms that Congress

intended all pending claims to be governed by the DTA, and

sought to prevent cases from proceeding under previously

applicable statutes. In an extensive colloquy (which

appears in the Congressional Record prior to the Senate’s

adoption of the Conference Report), Senators Graham and

Kyl made it clear that the statute “extinguish|es] one type

of action—ali of the actions now in the courts—and

create|s| in their place a very limited judicial review of

certain military administrative decisions.” 151 Cong. Rec.

$14,263 (daily ed. Dec. 21, 2005) (statement of Sen. Ky).

The special language in “paragraph (h)(2)” declaring that

the new cause of action and substantive standards created

by the DTA shall “apply to pending cases” helps make it

clear that, to the extent a case is already in the proper court

and meets the DTA’s requirements, the claim need not be

dismissed; instead, “that claim [can] go forward” as a

“request for review of the detainee’s CSRT pursuant to

Section (e)[(2)].” bid. (statement of Sen. Graham); 151

Cong. Ree. $12,755 (daily ed. Nov. 14, 2005) (statement of

Sen. Levin) (no dismissal required but “the standards in the

amendment [would] be applied in pending cases”). The

notion that Congress specifically amended the DTA to

make it inapplicable to pending cases is incorrect. It was

revamped to provide for review of military commission

decisions that otherwise would have been wholly unreview-

able. The provisions setting forth effective dates were also

modified at the same time. But that modification merely

clarified that pending cases could—indeed were required

to—proceed under the standards established by Section

1005(e) itself and did not, to that extent, need to be dis-

missed entirely.

C. The argument that the myriad penaing habeas cases

may proceed unabated and unaffected despite the DTA’s

passage also defies common sense. Congress enacted the

DTA to bring order to the chaos that resulted from the

avalanche of anticipatory lawsuits under general statutes

that were not suitably tailored to the circumstances. Allow-

ing the current detainees—all of whom had pending actions

when the DTA was enacted—to continue to pursue those

actions would utterly defeat the DTA’s purpose. It would,

moreover, defeat Congress’s purpose of channeling cases

through the military administrative process as a condition

precedent to judicial review, as it would perpetuate the

resolution of important legal issues without the benefit of

concrete determinations by the military and Executive

Branch on a properly developed record.

II. A. Petitioner’s invocation of a variety of canons of

construction, such as the presumption against inferring that

Congress has “deprive[d] the courts of habeas jurisdiction,”

Pet. Opp. to Gov’t Motion to Dismiss 17, is also unper-

suasive. The question here is not whether the DTA with-

draws habeas jurisdiction. It unmistakably does, so any

presumption on that issue is overcome. The only question is

whether or not that withdrawal extends to pending cases.

Likewise, petitioner errs in invoking the doctrine of

constitutional avoidance. Construing the DTA as inapplic-

able to pending cases would not prevent the DTA from

raising the constitutional questions on which petitioner re-

lies. To the contrary, precisely the same issues would arise

on the DTA’s application to cases filed after its enactment.

Petitioner cannot invoke the doctrine of constitutional

doubt to promote a construction of the DTA that does not

erase any of the constitutional doubts petitioner purports to

raise.

B. Petitioner’s claim that the DTA violates the Suspen-

sion Clause is also unpersuasive. In Johnson v. Fisen-

trager, 339 U.S. 763, 776-778 (1950), this Court recognized

that the Constitution does not require the writ to be made

available to aliens detained outside the United States. This

Yourt again recognized that limit in Rasul, 542 U.S. at 478-

479, but held that the habeas statute had, in light of recent

developments, become applicable to aliens detained in

Guantanamo. By enacting the DTA, Congress merely re-

turned habeas corpus to its pre-Rasul state—i.e., its scope

under Fisentrager. Returning statutory habeas to its law-

ful scope under Hisentrager does not violate the Suspension

Clause. To the contrary, the Hisentrager rule is wholly

consistent with the writ’s historical reach.

ARGUMENT

I. FEDERAL COURTS MAY EXERCISE JURISDIC-

TION OVER SUITS LIKE THIS ONE ONLY

UNDER THE REVIEW MECHANISMS ESTAB-

LISHED BY THE DTA

A. The DTA’s Text Makes Clear That This Court

Has Jurisdiction To Review Pending Cases Only

Under Section 1005(e)

The DTA’s text says “what it means and means * * *

what it says.” Connecticut Nat'l Bank v. Germain, 503 U.S.

249, 254 (1992). Section 1005(e)(1) by its express terms

eliminates the jurisdiction of any court to adjudicate habeas

- and other claims brought by Guantanamo detainees, except

actions brought under the DTA itself. It declares that “no

court, justice, or judge shall have jurisdiction to hear or

consider” claims by Guantanamo detainees except as provi-

ded by Section 1005. DTA § 1005(e)(1). That withdrawal of

jurisdiction took “effect on the date of * * * enactment.” /d.

§ 1005(h)(1).

At the same time, the DTA substitutes an immediately

applicable alternative review mechanism for certain claims

by Guantanamo detainees. Sections 1005(e)(2) and (e)(3) of

the DTA provide new mechanisms for judicial review of

final status determinations, convictions, and sentences.

They provide new standards to govern that review. And

they accord the D.C. Circuit exclusive jurisdiction to con-

duct that review in the first instance. Those new provisions

and standards for review are, by their terms, made express-

ly applicable to all “pending cases.” DTA § 1005(h)(2).

The DTA’s text and structure make Congress’s intent

clear: As of the statute’s enactment, no court has jurisdic-

tion to address any claims that relate to any aspect of the

detention of a Guantanamo detainee, unless those claims

are brought within the framework of the DTA. That man-

date flows not merely from the text of Section 1005(e)(1),

which immediately withdraws jurisdiction over pending ha-

beas claims like this one, but also from Congress’s provision

for a new, tailored, and exclusive mechanism for judicial

review that defers review until after final action has been

taken by a CSRT or a Military Commission.

1. Notwithstanding Section 1005(e)(1)’s unequivocal

language, petitioner urges that its express withdrawal of

jurisdiction does not apply to pending cases. That claim

does not withstand scrutiny. As a textual matter, the with-

drawal of jurisdiction is not limited to cases filed after Sec-

tion 1005’s enactment. Section 1005(h)(1) declares that all

of Section 1005—which includes the withdrawal of jurisdic-

tion contained in Section 1005(e)(1)—“take|s] effect on the

date of * * * enactment.” But even absent such language, it

is well established that, when a jurisdictional provision “is

repealed, it must be considered, except as to transactions

** * closed, as if it never existed.” Ex Parte McCardle, 74

U.S. (7 Wall.) 506, 508 (1868) (emphasis auded). As this

Court explained a century ago, cases in which Congress

repeals the basis for jurisdiction “are by no means infre-

quent, * * * These cases fully establish the proposition that

a repealing statute which contains no saving clause oper-

ates as well upon pending cases as upon those thereafter

commenced.” Gwin v. United States, 184 U.S. 669, 675

(1902) (emphasis added); see, e.g., Baltimore & P. R.R. Co.

v. Grant, 98 U.S. 398, 401 (1866) (“It is equally well settled

that if a law conferring jurisdiction is repealed without any

reservation as to pending cases, all such cases fall with the

law.”); Merchant's Ins. Co. v. Ritchie, 72 U.S. 541, 544

(1878) (“express prohibition on the exercise of jurisdiction”

removes jurisdiction over pending cases where there is no

“saving of such causes”). It has long been clear that, “when

a law conferring jurisdiction is repealed without any

reservation as to pending cases, all cases fall with the law,”

and that principle has “been adhered to consistently by this

Court.” Bruner v. United States, 343 U.S. 112, 116-117

(1952).

Petitioner’s argument also runs headlong into Sections

1005(e)(2) and 1005(e)(3), which establish exclusive mechan-

isms for judicial review of “final” CSRT enemy combatant

decisions and military commission convictions, respectively.

Those provisions by their express terms defer judicial

review until after final administrative determinations have

been made by military officials. DTA § 1005(e)(3) (C)(ii)

(challenge to military commission proceedings may be

brought only after a “final decision has been rendered”); id.

§ 1005(e)(2)(A) (providing for review of a “final decision of a

Combatant Status Review Tribunal that an alien is properly

detained as an enemy combatant”). Channeling claims

through administrative processes before allowing judicial

review serves important policy goals. First, it protects the

activities of the Executive Branch and the military in this

particularly sensitive area from the “potential for overly

casual * * * judicial intervention.” Heckler v. Ringer, 466

U.S. 602, 627 (1984); see Weinberger v. Salfi, 422 U.S. 749,

765 (1975). Second, by requiring that challenges be brought

in the context of a specifie and final determination, the Act

ensures that “the scope of the controversy [will be] reduced

to more manageable proportions, and its factual compo-

nents fleshed out, by some concrete” determination “apply-

ing the regulation to the claimant’s situation.” Lujan v.

Nat! Wildlife Fed’n, 497 U.S. 871, 891 (1990). Third, it

promotes judicial economy: It allows the Secretary of De-

fense, CSRTs, and military commissions “to correct |their]

own errors, to afford the parties and the courts the benefit

of [their] experience and expertise, and to compile a record

which is adequate for judicial review.” Salfi, 422 U.S. at

765; see Ringer, 466 U.S. at 619 n.12.

This Court has often concluded that, where Congress

provides an express and tailored mechanism for post-

enforcement judicial review, claimants cannot bypass that

mechanism by resort to more general causes of action for

pre-enforcement review. See, e.g., Thunder Basin Coal Co.

v. Reich, 510 U.S. 200 (1994) (no pre-enforcement review

available where Congress provided exclusive jurisdiction in

the court of appeals to review adverse agency determina-

tions). Likewise here, petitioner cannot bypass the express

mechanism for judicial review Congress has provided—a

mechanism made expressly applicable to pending cases, see

DTA § 1005(h)(2)—by seeking anticipatory judicial review

under more general causes of action. Indeed, to allow that

bypass would have this Court as well as others deciding

important and sensitive issues in the abstract, without the

concrete factual context of a particular determination, with-

out the benefit of the military’s decision, and without the

record on which effective appellate review so often depends.

2. Petitioner’s claim that he may pursue this action

irrespective of the DTA rests on an application of the max-

im eaxpressio unius est exclusio alterius. Petitioner points

out that Section 1005(e)2), which provides for review of

final CSRT enemy combatant determinations, and Section

1005(e)(3), which provides for review of final military com-

mission convictions and sentences, are expressly made

applicable to cases “pending on or after the date of * * *

enactment”; by contrast, the withdrawal of jurisdiction for

habeas and other claims in Section 1005(e)(1) is not. See

Pet. Opp. to Gov’t Motion to Dismiss 7-8. But this Court

has long recognized that the expressio unius maxim “just

fails to work” in some situations, Chevron U.S.A. Ine. v.

Echazabal, 536 U.S. 73, 84 (2002), because “[njot every

silence is pregnant,” Burns v. United States, 501 U.S. 129,

136 (1991) (quoting /llinois Dep't of Pub. Aid v. Schweiker,

707 F.2d 273, 277 (7th Cir. 1983)). This is one of those

situations.

For one thing, Congress had good reason to single out

Sections 1005(e)(2) and 1005(e)(3). Those provisions specify

a new review mechanism and new standards to be applied in

such review. Because there is no clear presumption that

laws creating new causes of action or imposing substantive

standards of review in favor of the government will apply to

pending cases, see Lindh v. Murphy, 521 U.S. 320, 327

(1997), Congress was well-advised to make it clear that

those new provisions should apply to pending cases. In

contrast, Congress was well aware that revocations of juris-

diction—like that provided in Section 1005(e)(1)—are

presumptively applicable to pending cases. 151 Cong. Rec.

$14,263 (daily ed. Dec. 21, 2005) (statement of Sen. Kyl)

(“The courts’ rule of construction” is that “legislation ous-

ting the courts of jurisdiction is applied to pending cases.”).

It was therefore sufficient for Congress to specify that

Section 1005 in its entirety, including the withdrawal of

jurisdiction for habeas actions, “take[s] effect on the date of

* * * enactment.” DTA § 1005(h)(1). Congress’s silence

about whether Section 1005(e)(1) applies to pending cases ~

thus does not evince an intent to render that provision

inapplicable. Instead, it “merely” evidences Congress's “ex-

pectation that nothing more need be said in order to effee-

tuate the legislative objective.” Burns, 501 U.S. at 136.

The structure identified by the detainees, moreover,

refiects the drafters’ effort to clarify that, with respect to

pending cases, the courts were not being stripped of juris-

diction entirely. Rather, the vast majority of pending cases

may proceed, but they must proceed within the framework

of Section 1005. As Senators Graham and Ky] explained in

an extensive colloquy (which appears in the Congressional

Record prior to the Senate’s adoption of the Conference

Report), the statute “extinguish[es] one type of action—all

of the actions now in the courts—and create[s] in their place

a very limited judicial review of certain military administra-

tive decisions.” 151 Cong. Rec. $14,263 (daily ed. Dec. 21,

2005) (statement of Sen. Kyl). The special language in

Section 1005(h)(2) declaring that the DTA’s new cause of

action and substantive standards shall “apply to pending

cases” helps make it clear that, to the extent a case is

already in the proper court and meets the DTA’s require-

ments, the case need not be dismissed; instead, “that claim.

[can] go forward” as a “request for review of the detainee’s

CSRT pursuant to” Section (e)(2). Jbid. (statement of Sen.

Graham); see also ibid. (statement of Sen. Graham) (“No

sense in kicking out a detainee’s current habeas action in

the D.C. Circuit just so that he has to re-file a section 1405

review request—it would be better to let the current case

go forward as a 1405 review request.”); 151 Cong. Ree.

$12,755 (daily ed. Nov. 14, 2005) (statement of Sen. Levin)

(no dismissal required but “the standards in the

amendment [would] be applied in pending cases”). By

contrast, if Congress had expressly declared that the

withdrawal of jurisdiction in Section 1005(e)(1) must be

applied to “pending cases,” that might have left the

misimpression that such cases must be dismissed, when in

fact they may proceed under the requirements and

standards set forth by Section 1005(e)(2).

For similar reasons, petitioner errs in relying on Lindh,

supra. In Lindh, this Court noted that Congress had

expressly declared that certain provisions should be appli-

cable to pending cases, but did not expressly so state with

respect to others. But the provisions at issue there—both

those made expressly applicable to pending cases and those

that were not—‘“change{d] standards of proof and

persuasion in a way favorable to a State.” 521 U.S. at 327.

The Court therefore inferred that Congress wanted the

new substantive standards to apply to pending cases only

where Congress had expressly so directed. Where

Congress intended the DTA’s changes to the standards of

review to apply in pending cases, it likewise said so

expressly in the DTA itself. See DTA §§ 1005(e)(2)(A),

(e)(3)(A), (h)(2). But no such express statement is required

for changes to federal court jurisdiction, which traditionally

apply to all pending cases. See pp. 10-11, supra. More

tmportant, both sets of changes at issue in Lindh addressed

the same subject—the standards of review and proof to be

applied on habeas. 521 U.S. at 329. As a result, “[njothing

*** but a different intent explain|ed] the different treat-

ment” of the two sets of provisions. /bid. Here, in contrast,

the two provisions address different subjects—one

eliminates jurisdiction under prior statutes, while the other

establishes a new set of substantive standards and require-

ments for review under the new statute. This factor, absent

in Lindh, explains the different treatment of the two

sections.

In any event, petitioner’s expressio unius argument

ignores the exclusive review mechanisms provided by

Sections 1005(e)(2) and 1005(e)(3), which are undeniably

applicable to pending cases. Those provisions would be all

but superfluous—there would be virtually no point in

making them applicable to pending suits—if detainees

pursuing those actions were free to disregard the limits that

Sections 1005(e)(2) and 1005(e)(3) impose by continuing the

actions under more general statutes as if nothing had

changed. Given Congress’s provision of a specific mecha-

nism for review that requires the claimant to await the final

judgment of the military commission, the notion that

Congress also intended pre-trial injunctive actions to

continue unabated and unaffected is somewhat extravagant.

B. The DTA’s History Confirms That This Court

. May Not Review Pending Cases Except As

Provided By Section 1005(e) Itself

To the extent it is relevant, the legislative history of

Section 1005 confirms that Congress intended all of Section

1005 to be immediately effective, governing pending cases

and any newly filed lawsuits alike. The above-cited colloquy

between Senators Graham and Kyl—two of the primary

sponsors of the amendment—makes that unmistakably

clear. See 151 Cong. Rec. $14,260-S14,268 (daily ed. Dec.

21, 2005). Because Senators Graham and Kyl were

“sponsor|s! of the language ultimately enacted,” their re-

marks serve as “an authoritative guide to the statute’s con-

struction.” North Haven Bad. of Educ. v. Bell, 456 U.S. 512,

526-527 (1982); see also FEA v. Algonquin SNG, Inc., 426

U.S. 548, 564 (1976) (such statements “deservie] to be

accorded substantial weight”).

Petitioner’s assertion that the colloquy is not probative

of the statute’s meaning, Pet. Opp. to Gov't Motion to

Dismiss 10, lacks merit. Petitioner cites nothing in the Con-

gressional Record—-which is conclusively presumed to re-

flect Congress’s proceedings—indicating that the colloquy

is anything less than a genuine expression of the Senators’

understanding of, and intention regarding, the jurisdic-

tional provisions of the DTA. See 151 Cong. Rec. E2341

(daily ed. Dec. 21, 2005) (noting that the Congressional

Record is presumed to reflect live debate except when the

statements therein are followed by a bullet, indicating

“statements or insertions which are not spoken by a Mem-

ber of the Senate on the floor,” or are underlined, indicating

that they are “words inserted or appended, rather than

spoken, by a Member of the House on the floor”). The

colloquy, moreover, appears in the Congressional Record

immediately before the Senate's adoption of the Conference

Report, and predates the President's signature.’ See 151

Cong. Rec. $14,260-S14,268 (daily ed. Dec. 21, 2005) (Sen.

Graham & Sen. Kyl colloquy); id. at $14,275 (adopting

conference report).*

In any event, well before that colloquy, Senator after

Senator recognized that review under the DTA would

immediately displace habeas for all cases, including those

already filed. See 151 Cong. Rec. $12,754 (daily ed. Nov. 14,

2005) (statement of Sen. Graham) (“Instead of having un-

limited habeas corpus opportunities * * * we give every ene-

my combatant, all 500, a chance to go to Federal court, the

Circuit Court of Appeals for the District of Columbia.”); 151

Cong. Rec. $12,796 (daily ed. Nov. 15, 2005) (statement of

Sen. Specter) (“If it means what it says,” even “the Su-

preme Court of the United States would not have juris-

diction” except under the review mechanism of Section

1005(e) itself); 151 Cong. Rec. $12,799 (daily ed. Nov. 15,

2005) (statement of Sen. Durbin) (“It applies retroactively,

and therefore would also likely prevent the Supreme Court

from ruling on the merits of the Hamdan case.”). While

some Senators later asserted the opposite understanding,

see, Pet. Opp. to Gov’t Motion to Dismiss 11 n.8, 20 n.17,

many of them (e.g., Senators Leahy, Kennedy, Feingold,

and Durbin), voted against the final amendment. 151 Cong.

* The President’s understanding of the statute at the time that he

signed it is also probative of the statute’s meaning. See, ¢.g., Thomas

Paper Stock Co. v. Porter, 328 U.S. 50, 54 (1946) (interpreting an

amendment and according weight to the President’s understanding

of the amendment at the time the President signed it).

* Senator Kyl’s reference to the “now completed” Defense Authori-

zation Act, 151 Cong. Rec. $14,260 (daily ed. Dee. 21, 2005), cannot

be read to mean that the Act had already been passed. It merely

reflects Senator Kyl’s understanding that the Act’s drafting and the

related fine-tuning had been completed and the bill was ready to be

enacted. See 151 Cong. Rec. $14,263 (daily ed. Dee. 21, 2005)

(statement of Sen. Graham) (“I want our colleagues to know exactly

what they vill be agreeing to.”) (emphasis added).

Rec. 512,803 (daily ed. Nov. 15, 2005). The courts do “not

usually accord much weight to the statements of a bill’s

opponents.” Shell Oil Co. v. Lowa Dep't of Revenue, 488

U.S. 19, 29 (1988). Indeed, according weight to the state-

ments -of a bill’s opponents would provide them with an

opportunity to disable, through a limiting construction in

the legislative history, the very provisions they could not

defeat by amendment or majority vote.

Finally, it is not correct to assert that the drafting and

amendment history of the DTA show that it was amended

to permit pending cases to proceed as if the DTA had never

been enacted. See Pet. Opp. to Gov’t Motion to Dismiss &-

11. In fact, the amendment process petitioner relies on

addressed a wholly different issue—whether there would be

review of not merely enemy combatant determinations, but

also convictions and sentences issued by _ military

commissions. There is no dispute that, when it was adopted

on November 10, 1995, the original Graham amendment to

the DTA removed habeas jurisdiction for future and

pending cases alike. Under that amendment, Section

1005(e)(1) withdrew federal jurisdiction over the detainees’

habeas claims, while Section 1005(e)(3) declared that such

withdrawal of jurisdiction would “apply to any application

or other action that is pending on or after the date of this

Act.” 151 Cong. Ree. 812,655 (daily ed. Nov. 10, 2005); id.

ut 512,664 (statement of Sen. Levin) (“the language * * * is

retroactive”).

At that time, the amendment provided for review of

CSRT enemy combatant determinations under what is now

Section 1005(e)(2). But it lacked what is now Section

1005(e)(3), and thus did not provide any mechanism for judi-

cial review of convictions and sentences issued by military

commissions. For that reason, Senator Levin objected: “I

hope it is inadvertent,” he declared, but the amendment

“eliminates court review of the sentences of enemy comba-

tants before these commissions.” 151 Cong. Rec. $12,664

(daily ed. Nov. 10, 2005); ibid. (“If there is a conviction * * *

is there any appeal under this language in the amendment?

I am afraid there is not. ** * That is the problem here.

There would be no appeal.”); ibid. (“The question is whether

there will be an appeal”) (emphasis added).

It was in response to those concerns of Senator Levin

that Section 1005(e) was substantially revamped. Congress

added a whole new provision, now Section 1004(e)(3), to

provide for review of final military commission decisions.

See 151 Cong. Ree. $12,753 (daily ed. Nov. 14, 2005)

(publishing amendment).? Congress made that review

provision and its substantive standards, like those addres-

sing enemy combatant determinations, applicable to cases

pending on direct review. /bid. Senator Levin thus

explained that, although he had voted against the amend-

ment previously because “it did not »rovide for direct judi-

cial review of convictions by military commissions,” the new

amendment “adds a direct appeal for convictions by mili-

tary commissions.” /d. at $12,754.

Congress did, at the same time, change the language of

the “effective date” provision, but that change hardly

“saved” pending cases from the effect of the DTA. The

amendment expressly provided that the two judicial review

provisions and their substantive standards—both for CSRT

enemy combatant determinations, DTA § 1005(e)(2), and for

military tribunal convictions and_ sentences, DTA

§ 1005(e)(3)—would apply to “pending” cases. See 151

Cong. Ree. $12,753." And the amendment changed the

language of what is now Section 1005(h)(1) to establish that

the rest of Section 1005, including the withdrawal of habeas

jurisdiction, is effective on “the date of * * * enactment.”

Ibid. That change cannot be read as allowing former

* The provision allowing for review of military commission decisions

then appeared as Section (d)(3).

" The effective-date provision at that time appeared as Sections

1004(e)(1) and 1005(e (2).

habeas claims to go forward under the now-withdrawn

habeas jurisdiction. To the contrary, even the changed

language makes clear that the withdrawal of jurisdiction is

immediately effective. The change clarifies, however, that

courts are not precluded from reviewing pending cases to

the extent that the claims would be proper under the

jurisdictional provisions and standards in Section 1005(e).

For that reason, Senator Levin explained that the provision

did not “strip|] all of the courts * * * of jurisdiction over

pending cases,” which would require those pending cases to

be dismissed. 151 Cong. Rec. $12,755 (daily ed. Nov. 15,

2005) (emphasis added). Rather, the federal courts would

retain jurisdiction over the cases to the extent they included

claims that could be asserted under the new statute:

“|W |hat [the] amendment does, as soon as it is enacted and

the enactment is effective, it provides that the standards set

forth in our amendment will be the substantive standards

which we would expect would be applied in all cases,

including cases which are pending as of the effective date.”

Ibid. (statement of Sen. Levin).' The legislative history

thus confirms what the text makes clear: This case can no

longer proceed under the habeas statute; petitioner’s claims

can only be asserted within the framework established in

Section 1005."

* Indeed, Congress was well aware that each and every claimant

before the D.C. Cireuit had obtained a “final” enemy combatant

determination and thus was entitled to seek review in that court

under the DTA. See J. Elsea and K. Thomas, Guantanamo

Detainees: Habeas Corpus Challenges in Federal Court 5 (CRS

Report for Congress Dec. 7, 2005). ~

* Senators Graham, Kyl, and Levin appear to have disagreed on the

specific application of the DTA to this case, and whether this Court

would retain jurisdiction after the "YTA’s passage. Senators Graham

and Kyl made it clear that they “anticipate[d]” that this Court would

“dismiss [this case] for want of jurisdiction,” precisely as it “did in

Evy Parte McCardle.” 151 Cong. Ree. 814,268-814,264 (daily ed. Dec.

21, 2005). “I think that a majority of the (CJourt will do the right

C. Petitioner’s Construction Is At War With The

DTA’s Purpose

Finally, to construe the DTA as not applying to pending

cases would eviscerate Congress’s purpose in passing that

statute. Congress made clear that Section 1005(e) was

intended to restore order and rechannel the flood of habeas

claims inundating the courts by providing an alternative

process to review such claims. 151 Cong. Rec. $14,263

(daily ed. Dec. 21, 2005) (statements of Sen. Graham and

Sen. Kyl). Because habeas petitions have already been filed

on behalf of nearly all of the detainves in Guantanamo Bay,’

interpreting the DTA as inapplicable to pending claims

would render it a virtual nullity. Nearly every detainee

would be permitted to proceed with his current habeas

action, leaving few—if any—cases for the D.C. Circuit to

review under the new DTa process and standards. That

would be an absurd result, and is clearly not the result

envisioned by Congress. As Senator Graham explained,

Congress “extinguish|ed] these habeas and other actions in

order to effect a transfer of jurisdiction over these cases to

thing—to send Hamdan back to the military commission, and then

allow him to appeal pursuant to section 1405 of this bill.” /d. at

$14,264 (statement of Sen. Kyl). Senator Levin, although he

understood that all pending cases would be reviewable under the

standards set forth in Sections 1005(e)(2) and 1005(e)(3), expressed

the view that jurisdiction over this case would be unaffected.

Senator Levin, however, appears to have overlooked either the fact

that Sections 1005(e)(2) and 1005(e)(3) defer review until after final

action by the military commission, or that petitioner has not yet

obtained a final order of conviction or sentencing from a military

commission.

* As the government points out, “{hJabeas petitions have been filed

on behalf of a purported 600 detainees.” Gov't Mot. to Dismiss 20

n.10. Indeed, one petition purports to file habeas petitions on behalf

of every detainee who has not already filed an action. See ibid:

(citing Petition for Writ of Habeas Corpus, John Does 1-570 v. Bush,

No. 05-00813 (CKK) (D.D.C. Feb. 10, 2005)).

the D.C. Circuit Court and [effect a] substantive legal

change as well.” 151 Cong. Rec. $14,263 (daily ed. Dee. 21,

2005) (statement of Sen. Graham); see id. (statement of Sen.

Kyl) (“(T)Jhis bill’s provisions * * * extinguish one type of

action—all of the actions now in the courts—and create in

their place a very limited judicial review of certain military

administrative decisions.”).

Indeed, petitioner’s construction would transform the

DTA into a virtually pointless piece of legislation with no

practical effect. The hundreds of habeas cases currently in

the courts would continue unabated. Moreover, those cases

would continue to be litigated, and important legal issues in

this sensitive area would be resolved, by the courts in the

abstract, before the administrative process has been com-

pleted, and without the benefit of concrete determinations

on a properly developed record. That incomplete review is

precisely the sort of litigation process that Congress, by

channeling these issues first through the administrative

process and then through judicial review, sought to avoid.

It is a “longstanding canon of statutory construction that

terms in a statute should not be construed so as to render

any provision of that statute meaningless or superfluous.”

Beck vy. Prupis, 529 U.S. 494, 506 (2000). By the same

token, this Court should not construe the enactment of an

entire set of procedures as a meaningless gesture. This

Court is entitled to, and should, “stand back and see what

would be accomplished” under petitioner’s proposed con-

struction. Neder v. United States, 527 U.S. 1, 15 (1999).

II. CONSTRUING THE DTA CONSISTENT WITH ITS

TEXT, HISTORY, AND PURPOSE CREATES NO

ADDITIONAL CONSTITUTIONAL ISSUES

A. Petitioner's Presumptions And Avoidance Argu-

ments Have No Application Here

Petitioner has also invoked a variety of “presumptions”

to support his claim that the DTA allows the hundreds of

already pending habeas and other claims to proceed unaf-

fected. Among others, petitioner invokes “the presumption

against the withdrawal of federal court jurisdiction for

constitutional claims,” Pet. Opp. to Gov’t Motion to Dismiss

16, the presumption against inferring that Congress has

“deprive[d] the courts of habeas jurisdiction,” id. at 17, and

the principle of constitutional avoidance, id. at 32.

Those arguments, however, have no bearing on whether

the DTA applies to pending cases. For example, if the DTA

effects “a withdrawal of federal court jurisdiction for

constitutional claims,” it withdraws that jurisdiction

whether it applies to pending cases or solely to future ones.

The question is not whether or how much jurisdiction has

been withdrawn. The only question is whether, however

much jurisdiction has been withdrawn, the withdrawal

applies to pending cases.

The same is true of petitioner’s claim that the DTA

violates the Suspension Clause and related constitutional

avoidance arguments. Petitioner does not argue that the

DTA should be read as inapplicable to future lawsuits. Peti-

tioner instead argues that it should be read as inapplicable

to pending ones. Thus, even if- petitioner’s construction

were accepted, the claim that the DTA violates the Sus-

pension Clause would persist. Petitioner cannot rely on the

doctrine of constitutional avoidance when the construction

he proposes does not eliminate the putative constitutional

doubts on which he purports to rely.

B. The DTA Does Not Violate The Suspension

Clause

Petitioner, in any event, errs in asserting that the DTA

violates the Suspension Clause. As this Court made clear in

Rasul, 542 U.S. at 478-479 & n.&, and Johnson v. Eisen-

trager, 339 U.S. 763, 776-778 (1950), the Constitution does

not require that the writ of habeas corpus extend to enemy

aliens outside of the United States. In Fisentrager, for

example, the Court concluded that the Constitution does

not give federal courts jurisdiction to hear habeas petitions

filed by German enemy aliens captured in China and

confined in the custody of the U.S. Army in Germany. /d. at

768 (“Nothing in the *** Constitution extends such a

right”); see Rasul, 542 U.S. at 478-479 & n.8 (characterizing

Eisentrager as addressing primarily whether the Constitu-

tion requires habeas to be available); id. at 493 (Scalia, J.,

dissenting) (urging that Eisentrager resolved both the con-

stitutional and statutory questions). Likewise here, the

Constitution does not give federal courts jurisdiction to

hear habeas petitions filed by foreign enemy aliens cap-

tured in the Middle East and confined in military custody in

Guantanamo Bay, Cuba.

Far from undermining that conclusion, Rasul reinforces

it. In Rasul, this Court held that federal courts have statu-

tory jurisdiction to hear habeas petitions filed by non-

resident aliens held in Guantanamo Bay. Rasul, 542 U.S. at

478-479. Importantly, the Court reasoned that the statu-

tory habeas scheme, and not the Constitution, established

jurisdiction over the claims of Guantanamo Bay detainees.

ibid. The Court acknowledged that, at the time it decided

Eisentrager, there was neither a constitutional nor statu-

tory basis for non-resident aliens to file habeas petitions.

But it reasoned that developments in habeas since that time

had expanded the statutory grant of jurisdiction to encom-

pass habeas petitions filed by detainees in Guantanamo

Bay. /d. at 478 (“|[Bjecause subsequent decisions of this

Court have filled the statutory gap that had occasioned

Eisentrager’s resort to ‘fundamentals,’ persons detained

outside the territorial jurisdiction of any federal district

court no longer need rely on the Constitution as the source

of their right to federal habeas review.”) (emphasis added).

With the enactment of the DTA, Congress did nothing

more than return the habeas statute back to its pre-Rasu/

state. 151 Cong. Rec. $14,264 (daily ed. Dee. 21, 2005)

(statement of Sen. Kyl) (“Hisentrager was-the law of the

land for over 50 vears * * * . Congress * * * restores

Kisentrager’s role as the governing standard.”); id. at

$14,267 (statement of Sen. Kyl) (“{Wle legislatively

overrule Rasul today.”); id. at $14,268 (statement of Sen.

Graham) (“And since the Rasul decision was based on the

habeas statute in the U.S. Code, I am very comfortable

amending that statute as a proper Congressional response

to the Court’s decision”). Unless the Constitution has

changed meaning since HKisentrager was decided, there is

no constitutional barrier to Congress returning the habeas

statute to its pre-Rasul, post-Eisentrager state. To hold

otherwise would turn the habeas statute into “a one-way

ratchet that enshrines in the Constitution every grant of

habeas jurisdiction.” /.N.S. v. St. Cyr, 5383 U.S. 289, 342

(2001) (Sealia, J., dissenting); G. Neuman, The Habeas

Corpus Suspension Clause After INS v. St. Cyr, 33 Colum.

Hum. Rts. L. Rev. 555, 590 (2002) (“{OJ]f course the

Suspension Clause is not a ratchet perpetuating every

statutory expansion that Congress enacts. Rather, it is con-

tended that the Suspension Clause stands for a principle (or

set of principles) that distinguish permissible statutory con-

tractions from unconstitutional suspensions.”).

Further, expanding the Suspension Clause to require

habeas to be available to enemy combatants detained

abroad would be inconsistent with centuries of historical

practice. See Fisentrager, 339 U.S. at 776-778. There is no

doubt that aliens physically present in the United States

traditionally could file habeas petitions. See, e.g., United

States v. Villato, 2 Dall. 370, 370 (C.C. Pa. 1797) (alien

detained in the United States released based on a habeas

claim); Ex parte D’Olivera,-7 F. Cas. 858, 854 (C.C. Mass.

1813) (Portuguese seamen detained in a Boston jail released

under grant of habeas); Wilson v. /zard, 30 F. Cas. 131, 131

(C.C.N.Y. 1815) (reviewing habeas petitions of alien soldiers

who had enlisted in the United States Army but were sta-

tioned in New York City). Likewise, there is no doubt that,

at times, habeas relief was made available to citizens de-

tained by their own government abroad. See, e.g., Ev parte

Mwenya, 3 W.L.R. 767, 767 (C.A. 1960) (involving a British

citizen detained in Northern Rhodesia); King v. Overton, 82

Eng. Rep. 1173 (K.B. 1668); King v. Salmon, 84 Eng. Rep.

282 (K.B. 1669).

But the writ historically has not extended to enemy

aliens held beyond the sovereign’s own territory. Habeas

corpus may have run “into all parts of the king’s domin-

ions,” because “the king is at all times [e}ntitled-to have an

account, [of] why the liberty of any of his subjects is re-

strained, wherever that restraint may be inflicted.” Rasul,

542 U.S. at 482 n.13 (citing 3 Blackstone 131). But at the

very least the location had to be “part of the king’s domin-

ion,” and the detained person had to be one of the king’s

“subjects.” See Rasul, 542 U.S. at 503-504 (Scalia, J.,

dissenting). Extending the constitutionally required scope

of the writ to encompass enemy aliens, detained in the

territory of another sovereign that is merely being leased

for particular purposes, stretches the meaning of the words

“dominion” and “subjects” beyond their ordinary limits. It

is one thing to infer that the protections of habeas follow

citizens wherever they go. /bid. It is another to infer that

those protections exist everywhere in the sovereign’s realm.

But it is a different thing altogether to assume the writ

follows the military wherever it leases territory, sets up

camps, and detains foreign combatants.

For that reason, the English courts have in comparable

cirenmstances refused habeas relief to foreigners detained

abroad. See, e.g., /n re Ning Yi-Ching, 56 T.L.R. 3 (Vaca-

tion Ct. 1989) (refusing to entertain habeas petitions by

Chinese subjects detained in a British-controlled section of

China). Indeed, the parallel between this case and Ning Y?-

Ching could not be more striking. In that case, Britain had

a lease that allowed it to exercise certain rights of

administration and control in the territory in which the

Chinese aliens were being detained. /d. at 4. But the

_ English court held that habeas was unavailable because

ultimate sovereignty over the British-controlled section of

China did not rest with Britain; it rested with China. /bid.

Likewise here, the United States may have certain rights

under its lease for Guantanamo. But here, as in Ning Yi-

Ching, ultimate sovereignty rests with a foreign power, not

the United States. Consequently, here, as in Ning Yi-

Ching, habeas is not available to a foreigner detained in a

foreign land.

To the extent historical cases have extended habeas to a

variety of locations, those cases all involve citizens or sub-

jects. Rasul, 542 U.S. at 502-503 (Scalia, J., dissenting).

They very often involve jurisdictions where, at most, the

sovereign had delegated some of its sovereign power to

local authorities (but was presumed not to have delegated

away the prerogative writs). /d. at 502. And they often

involve “territories that are ‘dominions of’” the sovereign.

Ibid. In other words, all involve “sovereign territory of the

Crown: colonies, acquisitions, and conquests, and so on.”

Ibid. None involve land situated within the boundaries of a

foreign sovereign that merely had been leased for specified

purposes.

For similar reasons, petitioner’s extensive reliance on

Yamashita v. Styer, 327 U.S. 1 (1946), see Pet. Opp. to Gov't

Motion to Dismiss 34-36, is misplaced. In that case, the

claimant was tried and held in the Philippines. As the

Court explained in Eisentrager when distinguishing

Yamashita, the Philippines were then “insular possessions”

of the United States. 339 U.S. at 780. The claimant, more-

over, was being held and tried under a Presidential

proclamation declaring that “enemy belligerents who,

during time of war, exter the United States, or any

territory possession thereof, and who violate the law of war,

should be subject *** to the jurisdiction of military

tribunals.” 327 U.S. at 10 (emphasis added). Yamashita

thus at most addresses the availability of habeas relief for

foreign nationals held in United States territory. It does

not address the availability of habeas relief in foreign lands

being leased by the United States for particular purposes.

Finally, expansion of constitutional habeas to aliens de-

tained abroad would open a Pandora’s box of practical diffi-

culties. Guantanamo Bay is a military base in a foreign

country. If the Constitution requires detentions there to be

subject to judicial scrutiny, it is difficult to imagine a deten-

tion that would not be subject to such scrutiny. The

potentially disruptive effect on military operations is

obvious. The military’s mission of winning battles cannot be

encumbered with a requirement that every enemy captured

abroad be given a lawyer and a hearing.

Nor is the nature of U.S. control in Guantanamo

sufficient to distinguish it from other theaters of military

activity. See Fleur Johns, Guantanamo Bay and the Anni-

hilation of the Exception, 16 Eur. J. Int'l L. 613, 616 (Sept.

2005). If the United States’ lease for and control over

Guantanamo by itself were sufficient to make habeas apply

there, then habeas might have to be available in various

portions of Afghanistan and Iraq as well. See Rasul, 542

U.S. at 501 (Sealia, J., dissenting). The fact that the United

States has exercised control over Guantanamo for a long

time hardly distinguishes it from many other military bases

abroad. It, moreover, begs the question of when a military

base or occupation is of sufficient duration that habeas

should be made available. That is the sort of determination

that should be made in the first instance by the Legislative

and Executive Branches, not the judiciary.

CONCLUSION

For the foregoing reasons, the Court should dismiss the

case for want of jurisdiction. In the alternative, the Court

should vacate the judgment of the court of appeals and

remand the case for a determination of whether any of peti-

tioner’s claims may properly be raised under the DTA. See

Lewis v. Cont'l Bank Corp., 494 U.S. 472, 482 (1990) (where

Court loses jurisdiction because of “a change in the legal

framework governing the case, and where the plaintiff may

have some residual claim under the new framework that

was understandably not asserted previously, our practice is

to vacate the judgment and remand for further proceedings

in which the parties may, if necessary, amend their plead-

ings or develop the record more fully.”).

Respectfully submitted.

JEFFREY A. LAMKEN

Counsel of Record

SHEILA J. KADAGATHUR

BAKER Borts L.L.P.

1299 Pennsylvania Ave., NW

Washington, D.C. 20004-2400

(202) 639-7700

Counsel for Amici Curiae

Senators Lindsey Graham and John Ky!

FEBRUARY 2006

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STATUTORY APPENDIX

The Detainee Treatment Act of 2005, Pub. L. No. 109-

148, 119 Stat. 2680, provides in relevant part:

An Act

Making appropriations for the Department

of Defense for the fiscal year ending

September 30, 2006, and for other purposes.

Be it enacted by the Senate and House of Repre-

sentatives of the United States of America in Congress

assembled,

DIVISION A

DEPARTMENT OF DEFENSE APPROPRIATIONS

ACT, 2006

**e AK

TITLE X—MATTERS RELATING TO DETAINEES

SEC. 1001. SHORT TITLE

This title may be cited as the “Detainee Treatment Act

of 2005”.

; x** KK

SEC. 1005. PROCEDURES FOR STATUS REVIEW

OF DETAINEES OUTSIDE THE UNI-

TED STATES.

(a) SUBMITTAL OF PROCEDURES FOR STATUS REVIEW OF

DETAINEES AT GUANTANAMO BAY, CUBA, AND IN AFGHAN-

ISTAN AND IRAQ.—

(1) IN GENERAL.—Not later than 180 days after the

date of the enactment of this Act, the Secretary of Defense

shall submit to the Committee on Armed Services and the

Committee on the Judiciary of the Senate and the

Committee on Armed Services and the Committee on the

Judiciary of the House of Representatives a report setting

forth—

(la)

‘ 2a

(A) the procedures of the Combatant Status Re-

view Tribunals and the Administrative Review Boards

established by direction of the Secretary of Defense that

are in operation at Guantanamo Bay, Cuba, for deter-

mining the status of the detainees held at Guantanamo

Bay or to provide an annual review to determine the

need to continue to detain an alien who is a detainee;

and

(B) the procedures in operation in Afghanistan and

Iraq for a determination of the status of aliens detained

in the custody or under the physical control of the

Department of Defense in those countries.

(2) DESIGNATED CIVILIAN OFFICIAL.—The proce-

dures submitted to Congress pursuant to paragraph (1)(A)

shall ensure that the official of the Department of Defense

who is designated by the President or Secretary of Defense

to be the final review authority within the Department of

Defense with respect to decisions of any such tribunal or

board (referred to as the “Designated Civilian Official”)

shall be a civilian officer of the Department of Defense

holding an office to which appointments are required by law

to be made by the President, by and with the advice and

consent of the Senate.

(3) CONSIDERATION OF NEW EVIDENCE.—The proce-

dures submitted under paragraph (1)(A) shall provide for

periodic review of any new evidence that may become avail-

able relating to the enemy combatant status of a detainee.

(b) CONSIDERATION OF STATEMENTS DERIVED WITH

COERCION.—

(1) ASSESSMENT.—The_ procedures submitted — to

Congress pursuant to subsection (a)(1)(A) shall ensure that

a Combatant Status Review Tribunal or Administrative

Review Board, or any similar or successor administrative

tribunal or board, in making a determination of status or

disposition of any detainee under such procedures, shall, to

the extent practicable, assess—

(A) whether any statement derived from or

relating to such detainee was obtained as a result of

coercion; and

(B) the probative value (if any) of any such state-

ment.

(2) APPLICABILITY.—Paragraph (1) applies with re-

spect to any proceeding beginning on or after the date of

the enactment of this Act.

Secretary of Defense shall submit to the committees spe-

cified in subsection (a)(1) a report on any modification of the

procedures submitted under subseetion (a). Any such re-

port shall be submitted not later than 60 days before the

date on which such modification goes into effect.

(d) ANNUAL REPORT.—

(1)- REPORT REQUIRED.—The Secretary of Defense

shall submit to Congress an annual revort on the annual

review process for aliens in the custody of the Department

of Defense outside the United States. Each such report

shall be submitted in unclassified form, with a classified

annex, if necessary. The report shall be submitted not later

than December 31 each year.

(2) ELEMENTS OF REPORT.—Each such report shall

include the following with respect to the year covered by

the report:

(A) The number of detainees whose status was

reviewed.

(B) The procedures used at each location.

(e) JUDICIAL REVIEW OF DETENTION OF ENEMY

COMBATANTS.—

(1) IN GENERAL.—Section 2241 of title 28, United

States Code, is amended by adding at the end the following:

“(e) Except as provided in section 1005 of the Detainee

Treatment Act of 2005, no court, justice, or judge shall have

jurisdiction to hear or consider—

“(1) an application for a writ of habeas corpus filed by

or on behalf of an alien detained by the Department of

Defense at Guantanamo Bay, Cuba; or

“(2) any other action against the United States or its

agents relating to any aspect of the detention by the

Department of Defense of an alien at Guantanamo Bay,

Cuba, who—

“(A) is currently in military custody; or

“(B) has been determined by the United States

Court of Appeals for the District of Columbia Circuit in

accordance with the procedures set forth in section

1005(e) of the Detainee Treatment Act of 2005 to have

been properly detained as an enemy combatant.”.

(2) REVIEW OF DECISIONS OF COMBATANT STATUS

REVIEW TRIBUNALS OF PROPRIETY OF DETENTION ,—

(A) IN GENERAL.—Subject to subparagraphs (B),

(C), and (D), the United States Court of Appeals for the

District of Columbia Circuit shall have exclusive juris-

diction to determine the validity of any final decision of

a Combatant Status Review Tribunal that an alien is

properly detained as an enemy combatant.

(B) LIMITATION ON CLAIMS.—The jurisdiction of

the United States Court of Appeals for the District of

Columbia Circuit under this paragraph shall be limited

to claims brought by or on behalf of an alien—

(i) who is, at the time a request for review by

such court is filed, detained by the Department of

Defense at Guantanamo Bay, Cuba; and

(ii) for whom a Combatant Status Review

Tribunal has been conducted, pursuant to applicable

procedures specified by the Secretary of Defense.

United States Court of Appeals for the District of

Columbia Circuit on any claims with respect to an alien

under this paragraph shall be limited to the consider-

ation of—

(i) whether the status determination of the

Combatant Status Review Tribunal with regard to

such alien was consistent with the standards and

procedures specified by the Secretary of Defense for

Combatant Status Review Tribunals (including the

requirement that the conclusion of the Tribunal be

supported by a preponderance of the evidence and

allowing a rebuttable presumption in favor of the

Government's evidence); and

(ii) to the extent the Constitution and laws of

the United States are applicable, whether the use of

such standards and procedures to make the deter-

mination is consistent with the Constitution and laws

of the United States.

(D) TERMINATION ON RELEASE FROM CUSTODY.—

The jurisdiction of the United States Court of Appeals

for the District of Columbia Circuit with respect to the

claims of an alien under this paragraph shall cease upon

the release of such alien from the custody of the

Department of Defense.

(3) REVIEW OF FINAL DECISIONS OF MILITARY

COMMISSIONS.—

(A) IN GENERAL.—Subject to subparagraphs (B),

(C), and (D), the United States Court of Appeals for the

District of Columbia Circuit shall have exclusive juris-

diction to determine the validity of any final decision

rendered pursuant to Military Commission Order No. 1,

dated August 31, 2005 (or any successor military order).

(B) GRANT OF REVIEW.—Review under this

paragraph—

(i) with respect tu a capital case or a case in

which the alien was sentenced to a term of imprison-

ment of 10 years or more, shall be as of right; or

(ii) with respect to any other case, shall be at

the discretion of the United States Court of Appeals

for the District of Columbia Circuit.

the United States Court of Appeals for the District of

‘olumbia Circuit under this paragraph shall be limited

to an appeal brought by or on behalf of an alien—

(i) who was, at the time of the proceedings pur-

suant to the military order referred to in subpara-

graph (A), detained by the Department of Defense at

Guantanamo Bay, Cuba; and

(ii) for whom a final decision has been rendered

pursuant to such military order.

(D) SCOPE OF REVIEW.—The jurisdiction of the

United States Court of Appeals for the District of

Columbia Circuit on an appeal of a final decision with

respect to an alien under this paragraph shall be limited

to the consideration of—

(i) whether the final decision was consistent

with the standards and procedures specified in the

military order referred to in subparagraph (A); and

(ii) to the extent the Constitution and laws of

the United States are applicable, whether the use of

such standards and procedures to reach the final de-

cision is consistent with the Constitution and laws of

the United States.

(4) RESPONDENT.—The Secretary of Defense shall

be the named respondent in any appeal to the United States

Court of Appeals for the District of Columbia Circuit under

this subsection.

(f) CONSTRUCTION.—Nothing in this section shall be

construed to confer any constitutional right on an alien de-

tained as an enemy combatant outside the United States.

(g) UNITED STATES DEFINED.—For purposes of this

section, the term “United States”, when used in a geo-

graphic sense, is as defined in section 101(a)(38) of the

Immigration and Nationa ity Act and, in particular, does

not include the United States Naval Station, Guantanamo

Bay, Cuba.

(h) EFFECTIVE DATE.—

(1) IN GENERAL.—This section shall take effect on

the date of the enactment of this Act.

(2) REVIEW OF COMBATANT STATUS TRIBUNAL AND

MILITARY COMMISSION DECISIONS.—Paragraphs (2) and (3)

of subsection (e) shall apply with respect to any claim whose

review is governed by one of such paragraphs and that is

pending on or after the date of the enactment of this Act.

* eX KE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.