Petition for Writ of Certiorari — Boumediene v. Bush

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IN THE

611 9° AR 5

OFFICE OF THE CLERK

Supreme Court of the United States

LAKHDAR BOUMEDIENE, et al.,

GEORGE W.

Petitioners,

BUSH, ef al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

STEPHEN H. OLESKEY

ROBERT C. KIRSCH

MARK C, FLEMING

JOSEPH J. MUELLER

PRATIK A. SHAH

LYNNE CAMPRELL SOUTTER

JEFFREY S. GLEASON

LAUREN G. BRUNSWICK

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

(617) 526-6000

SETH P. WAXMAN

Counsel of Record

PAUL R.Q. WOLFSON

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., N.W.

Washington, DC 20006

202) 663-6000

DOUGLAS F. CURTIS

PAUL M. WINKE

JULIAN DAVIS MORTENSON

WILMER CUTLER PICKERING

HAI.E AND DORR LLP

399 Park Avenue

New York, NY 10022

(212) 230-8800

QUESTIONS PRESENTED

1. Whether the Military Commissions Act of 2006,

Pub. L. No. 109-366, 120 Stat. 2600, validly stripped federal

court jurisdiction over habeas corpus petitions filed by for-

eign citizens imprisoned indefinitely at the United States

Naval Station at Guantanamo Bay.

2. Whether Petitioners’ habeas corpus petitions,

which establish that the United States government has im-

prisoned Petitioners for over five years, demonstrate unlaw-

ful confinement requiring the grant of habeas relief or, at

least, a hearing on the merits.

(i)

LIST OF PARTIES TO PROCEEDING BELOW

The parties to the proceeding in the court of appeals

(Boumediene, et al. v. Bush, et al., No. 05-5062) were:

Lakhdar Boumediene, Mustafa Ait Idir, Belkacem

Bensayah, Hadj Boudella, Saber Lahmar, and Mo-

hamed Nechla (Appellants);

Abassia Bouadjmi, Sabiha Delic-Ait Idir, Anela Ko-

bilica, Emina Planja, Emina Lahmar, and Badra

Baouche (Next Friends of Appellants); and

George W. Bush, Donald Rumsfeld, Jay Hood, and

Nelson J. Cannon (Appellees).

This case was consolidated in the court of appeals with

Khalid v. Bush, et al., No. 05-5063, in which the parties

were:

Ridouane Khalid (Appellant) and Mohammed Khalid

(Next Friend of Appellant); and

George W. Bush, Donald Rumsfeld, Jay Hood, and

Nelson J. Cannon (Appellees).

The court of appeals heard Bowmediene and Khalid at

the same time as Al Odah, et al. v. United States, Nos. 05-

5064, et al. This case was not consolidated with Al Odah.

(ii)

TABLE OF CONTENTS

Page

og ky | i

LIST OF PARTIES TO PROCEEDING BELOW............... ii

ee eC NE I sesitistnatsisnectiinneiecnantisnneitmmmmateiies vi

IPE socrictciqrinscactsnicniptiinistiianetinianbinnnsdniennnnumniin 1

ee aciccntinesninnaitesnivmnaniaseiniatinaienicensnteianiameminines 1

CONSTITUTIONAL AND STATUTORY PRO-

ee ES CE era scninvitavinsinctntentncesnmnnaieats 2

re aT cininsiininpienenicnccinnninitansentenecscsinncecimenedanestindions 2

STATEMENT OF THE CASE..............ccccscsocscssrsessesscsesssserenees 4

A. Petitioners’ Arrest, Investigation, And

FN ctssesicintncesenieniotintemneinaniimiatietpmeteumaimenntennets 4

B. Handover To U.S. Forces And Transpor-

tation To Guantanamo Bay............csesceseeseseesesseseeceeees 5

C. Conditions Of Confinement At Guan-

I centers tannetntiinniegumteteninetntinaiienmmnnin 5

D. The Petitions And The Government’s Re-

IGT ccresesscsenacressessnessevuteresesesnsnepnesenmnsonsnomnnnenecouseasessess 6

E. The District Court Judgment ............cccsccssceseeeeeeeeees 7

F. The Court Of Appeals Judgment ..............cccscseseesees 9

REASONS FOR GRANTING THE WRIT.....0..........cccceeeee 11

I. RASUL, HAMDAN, AND THE MCA’S FAILURE

TO PROVIDE AN ADEQUATE SUBSTITUTE FOR

HABEAS REVIEW COMPEL REVERSAL OF THE

COURT OF APPEALS’ JUDGMENT.........ccccccssssssssssseceesseeees 12

A. The Court Of Appeals Disregarded This

Court’s Strict Requirements For The Ret-

roactive Repeal Of Habeas Jurisdiction.................. 12

(iii)

TABLE OF CONTENTS—Continued

Page

Rasul’s Historical Analysis And Con-.

gress’s Failure To Provide An Adequate

Substitute For Habeas Demonstrate The

MCA’s Unconstitutionality .............cccccsscseseeeeeeeeseees 14

1. The court of appeals ignored this

Court’s finding that the writ’s avail-

ability to Guantanamo prisoners is

consistent with the historical reach of

SE I cesiintthctsicsttcicnctnccicsinniatennteanspenaneiescenees 14

2. The MCA is not an adequate substi-

Se Fr a iiccnccncscnctasenmcstnnisntnscsseemnssennnvene 18

II. THIS COURT SHOULD ALSO GRANT REVIEW

TO CLARIFY THAT PETITIONERS HAVE

STATED A CLAIM OF UNLAWFUL EXECUTIVE

ETA Se OE 22

A. The Court Should Resolve The Split In

I ins sini santarnateneiicieeetineientaateniemniee 22

B. Petitioners’ Indefinite Detention Without

I Fy i ccnnsensennarnniesamsssinncsmmmensmnanies 23

Ill. THE ISSUES PRESENTED IN THIS CASE ARE

OF PARAMOUNT NATIONAL IMPORTANCE. ..........c00000000- 28

+ ET anne ny one OTE OE Oe 29

APPENDIX A: Opinion of the United States Court

of Appeals for the District of Columbia Circuit,

available at 2007 WL 506581 (Feb. 20, 2007) ................. la

APPENDIX B: Opinion of the United States Dis-

trict Court for the District of Columbia, re-

ported at 355 F. Supp. 2d 311 (Jan. 19, 2005)................ 5la

APPENDIX C: Order of Deputy Secretary of De-

fense Paul Wolfowitz [Court of Appeals Joint

Appendix 1207-1210 (excerpts) ) ...........ssscesceeseeeeeeeeees 8la

TABLE OF CONTENTS—Continued

Page

APPENDIX D: Respondents’ Factual Return to

Petition for Writ of Habeas Corpus by Peti-

tioner Mustafa Ait Idir [Court of Appeals Joint

Appendix 0477-0479 (excerpts) ] ......csscscessesesnseserseeesenees 83a

APPENDIX E: Statutory Provisions ................:csessseeeeees 85a

TABLE OF AUTHORITIES

CASES

Page(s)

Balzac v. Porto Rico, 258 U.S. 298 (1922)......cssesesseserseseseseees 9

Bushell’s Case, 124 Eng. Rep. 1006 (C.P. 1670).........0ceese 19

Case of the Hottentot Venus, 104 Eng. Rep. 344

EA STE vicdecsnssecsenscngnetesasenssnennssendhanstennnsansccsssesssenesccsssaseees 21

Case of Three Spanish Sailors, 96 Eng. Rep. 775

ro re ieceteseenenceccnsenecnnesnasnsnsnsesesemnscesmnssescessssnemscrcens 17, 21

Dodd v. United States, 545 U.S. 353 (2005) ..........:ccccceccceeeeeee 26

Dorr v. United States, 195 U.S. 138 (1904) .........ccccececceeeeeeees i)

Downes v. Bidwell, 182 U.S. 244 (1901). ........ccccccceeeeeeeeeeees 9, 25

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

Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807)...........00seeseee 20

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

Ex parte Mwenya, 1 Q.B. 241 (C.A. 1960)........c.cccccecsenenenesnees 16

Ex parte Quirin, 317 U.S. 1 (1942).....ccccccssssessesesesensesnseneeeeneeee 27

Felker v. Turpin, 518 U.S, 651 (1996)........ccsceeeeseeneeserneeenees 14 |

Goldswain's Case, 96 Eng. Rep. 711 (C.P. 1778) .......cecseseee 21

Hamdan v. Rumsfeld, 126 8. Ct. 2749 (2006)........ccceereseee 12, 13

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) .......ccccccssesenees passim

Harris v. Nelson, 394 U.S. 286 (1969) .....ccccsesseseserseseeeees 10, 20

INS v. St. Cyr, 583 U.S. 289 (2001) .....ceccccseesereesernnenennes passim

In re Guantanamo Detainee Cases, 355 F. Supp. 2d

te CD cecnnestennesscennecnscesnnerannssseccsmeecsscesseenes passim

Johnson v. Eisentrager, 339 U.S. 763 (1950)......8, 9, 10, 17, 24

King v. Cowle, 97 Eng. Rep. 587 (K.B. 1759) ..........ccccsceseeeeees 16

Peyton v. Rowe, 391 US. 54 (1968) .......cccccsseseeseseeenseeeneenenes 29

Preiser v. Rodriguez, 411 U.S. 475 (1973) ........ccccsesceseeeeseeeees 29

Rasul v. Bush, 542 U.S. 466 (2004) 0000... .eccccccceeeeeeeeee passim

Reid v. Covert, 354 U.S. 1 (1957) ....ccccccsescssesssenesseseeeseneneneeeeee 24

Rex v. Schiever, 97 Eng. Rep. 551 (K.B. 1759) ........csccssesereeee 17

Swain v. Pressley, 430 U.S. 372 (1977)......ccccecseseeseeenesenes 15, 18

United States v. Verdugo-Urquidez, 494 U.S. 259

ST ietsicihieitescuatihigiadencenteianennensansenenneeesetsnmmnemmeenenenees 23, 24, 25

vii

TABLE OF AUTHORITIES—Continued

Page(s)

CONSTITUTIONAL AND STATUTORY PROVISIONS

le ame Gee, B, OG, GB, & cccnssanscnssenccneseresecemanesscseemennetennevens 2

i 13

Se ee i rrrrcnctestetrserereneenennsmmneinanien ]

ee ets Co ce rcccnmnnecorincccsenemmsnenssemesssemmemenmenente 2, 6, 8, 23

SD eae Oc cttctentenercemnrscieteseinteenesemnesemenmenenmeninmm 13

Act of Mar. 3, 1863, ch. 81, 12 Stat. 755 ............ccccssssssesesseeees 14

Act of Apr. 20, 1871, ch. 22, 17 Stat. 13..............ccccccsssseeseererees 14

Act of July 1, 1902, ch. 1369, 32 Stat. 691 000... ccccccseeeeeeneees 14

Authorization for Use of Military Force, Pub. L.

No. 107-40, 115 Stat. 224 (2001) .........ccccsesssssesesesesees passim

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

Ri ees SD crapeenaseertncsnasteremennemensneneegg passim

Military Commissions Act of 2006, Pub. L. No. 109-

A, SR, FO cctrecsenscerermnagfitenssmmmenseesees passim

OTHER AUTHORITIES

Affidavit of Sgt. Heather N. Cerveny (Oct. 4, 2006),

available at http://abenews.go.com/images/

WNT/gitmo_affidavit.pdf (last visited Mar. 2

Center for Constitutional Rights, Report on Torture

and Cruel, Inhuman, and Degrading Treat-

ment of Prisoners at Guantanamo Bay, Cuba

(2006), available at http://www.ccr-ny.org/v2/

reports/docs/Torture_Report_Final_version.

pdf (last visited Mar. 2, 2007)................0000 5, 6

Developments in the Law—Federal Habeas Cor-

pus, 83 Harv. L. Rev. 1088 (1970) ............ccccccsessessesessesees 15

Pe Fete I icccctcsiesesnnsssnesscenenseeeerenmenmen 15

Khan, Mavish, My Guantanamo Diary: Face to Face

with the War on Terrorism, Wash. Post, Apr. 30,

IEITE AI TTI sinssinnnsrincnnenentenehaanenitbinatnstatineteesidaaeepasasennibeemmcaniaeeel 6

Vili

TABLE OF AUTHORITIES—Continued

Page(s)

Letter from T.J. Harrington, Deputy Assistant Di-

rector, FBI Counterterrorism Division to Ma-

jor General Donald J. Ryder, Department of

the Army, Criminal Investigation Command,

July 14, 2004, available at http://www.aclu.org/

projects/foiasearch/pdf/DOJ F B1001914.pdf

(last visited Mar. 2, 2007) diddetaiantiiideiictielinsiasisiimaesl 29

Sharpe, R.J., The Law of Habeas Corpus (2d ed.

Supreme Court of the United States

No. 06-

LAKHDAR BOUMEDIENE, et al.,

Petitioners,

GEORGE W. BUSH, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Petitioners Lakhdar Boumediene, Mustafa Ajit Idir,

Belkacem Bensayah, Hadj Boudella, Saber Lahmar, and

Mohamed Nechla (“Petitioners”) respectfully petition for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the District of Columbia Circuit.

OPINIONS BELOW

The opinion of the district court (Leon, J.) dismissing

Petitioners’ habeas corpus petitions (App. 5la-79a) is re-

ported at 355 F. Supp. 2d 311. The opinion of the court of

appeals vacating the district court’s decision and dismissing

for lack of jurisdiction (App. la-50a) is not yet reported, but

is available at 2007 WL 506581.

JURISDICTION

The judgment of the court of appeals was entered on

February 20, 2007. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. Article 1, section 9, clause 2 of the United States

Constitution provides: “The Privilege of the Writ of Habeas

Corpus shall not be suspended, unless when in Cases of Re-

bellion or Invasion the public Safety may require it.”

2. The following statutory provisions are set forth in

relevant part in the Appendix hereto:

a. 28 U.S.C. § 2241(c) (2004) (App. 85a);

b. Authorization for Use of Military Force, § 2(a),

Pub. L. No. 107-40, 115 Stat. 224 (2001) (id.);

c. Detainee Treatment Act of 2005, § 1005(e)(2), Pub.

L. No. 109-148, 119 Stat. 2680 (id. 85a-87a);

d. Military Commissions Act of 2006, § 7, Pub. L.

No. 109-366, 120 Stat. 2600 (id. 87a-88a).

INTRODUCTION

In Rasul v. Bush, 542 U.S. 466 (2004), this Court held

that foreign nationals imprisoned by the United States gov-

ernment at the U.S. Naval Station at Guantanamo Bay, a

“territory over which the United States exercises exclusive

jurisdiction and control,” could challenge their confinement

through habeas corpus. /d. at 476. The Court explained that

this conclusion was “consistent with the historical reach of

the writ of habeas corpus,” which extended not only to “sov-

ereign territory” but also to “all other dominions under the

sovereign’s control.” Jd. at 481-482. The Court also noted

that the petitions in that case “unquestionably describe[d]

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

the United States,” id. at 483 n.15 (quoting 28 U.S.C.

§ 2241(c)(3)), and remanded the cases “for the District Court

to consider in the first instance the merits of petitioners’

claims,” id. at 485.

At the time of Rasul, Petitioners had already been im-

prisoned at Guantanamo for over two years. The United

States transported them there from their home country of

Bosnia and Herzegovina (“Bosnia”), notwithstanding a

three-month investigation and Bosnian court rulings con-

cluding that there was no evidence to support their deten-

tion and forbidding their expulsion from Bosnian territory.

Petitioners filed habeas petitions shortly after Rasul was

decided, asserting that their detention was unlawful. Both

the district court and court of appeals held, for different rea-

sons, that Petitioners could not seek any meaningful relief.

Petitioners are now in their sixth year of detention.

The rulings below disregarded this Court’s analysis and

conclusions in Rasul. In the district court’s view, Rasul was

merely a sterile exercise that allowed Petitioners to file a ha-

beas petition, which then was to be summarily dismissed be-

cause there was “no viable legal theory” for issuing the writ.

App. 74a-79a. The court of appeals held that the habeas juris-

diction confirmed in Rasul could be withdrawn without offend-

ing the Suspension Clause of the Constitution because, the

court believed, the common law writ as it existed in 1789 only

extended to “a sovereign territory of the Crown.” /d. 12a.

The court of appeals’ decision cannot be reconciled with

this Court’s considered conclusion that the historical writ

was not limite. by “formal notions of territorial sover-

eignty,” but rather extended to “all other dominions under

the sovereign’s control.” Rasul, 542 U.S. at 482. The Court

should grant certiorari to resolve the direct conflict between

the court of appeals’ Suspension Clause ruling and this

Court’s opinion in Rasul.

This Court should also determine that Petitioners’ ha-

beas petitions demons!,ate unlawful confinement and war-

rant a grant of habeas relief or, at the very least, a hearing on

the merits. Although the panel majority in the court of ap-

peals did not reach this issue, the matter has been fully aired

and is the subject of conflicting decisions in the United States

District Court for the District of Columbia, which is the only

court in which Guantanamo habeas cases have been filed. The

government claims an immense power unprecedented in our

history: to imprison foreign nationals, without bringing crimi-

nal charges or providing fair process, for an indefinite period.

Hundreds of other habeas cases have been stayed in the dis-

trict court pending the outcome of this case.

This case is unquestionably of national importance; in-

deed, it is difficult to imagine a public controversy more in

need of this Court’s guidance. If the decision below is al-

lowed to stand unreviewed, Rasul’s promise of judicial re-

view of “the merits” will prove empty. The Court should

grant certiorari and hear the case on an expedited schedule.

STATEMENT OF THE CASE

Petitioners are six natives of Algeria who emigrated to

Bosnia and Herzegovina at various times during the 1990s.

Five Petitioners acquired Bosnian citizenship, while the sixth

(Mr. Lahmar) acquired permanent residency in Bosnia. By

2001, each Petitioner was married, had two or more children,

and lived peacefully with his family in Bosnia.’

A. Petitioners’ Arrest, Investigation, And Release

Petitioners were arrested by Bosnian police in October

2001, purportedly on suspicion of an attempt to commit in-

ternational terrorism. The Bosnian authorities had no evi-

dence for the arrest, but rather were acting under extreme

pressure from United States officials. After a three-month

investigation, Bosnian authorities concluded that there was

no evidence to support a prosecution.’

On January 17, 2002, the Supreme Court of the Federa-

tion of Bosnia and Herzegovina ordered Petitioners re-

leased, with the concurrence of the Bosnian prosecutor, be-

cause the investigation had failed to support any allegation

of criminal activity. Ct. App. J.A. 0058-0059.

' Petitioners have filed a motion seeking expedited consideration of

this petition, as well as expedited briefing on the merits and oral argu-

ment this Term in the event that certiorari is granted.

? See Mem. in Support of Mot. for Order Enjoining Appellees from

Transferring Pet’rs to Algeria at 1; Ex A at 2; Ex. Al at 3; Ex. A2 at 2-3;

Ex. A3 at 2-3; Ex. A4 at 2; Ex. Ad at 3; Ex. A6 at 2-3, Boumediene v.

Bush, No. 05-5062 (D.C. Cir. Sept. 21, 2005).

* See Pet'rs-Appellants’ Supp. Br. Regarding the Military Commis-

sions Act of 2006 at 25-26, Bouwmediene v. Bush, No. 05-5062 (D.C. Cir.

Nov. 1, 2006).

B. Handover To U.S. Forces And Transportation To

Guantanamo Bay

Late in the night of January 17, 2002, as Petitioners

were being released from the Central Prison in Sarajevo,

Bosnian police officers—acting again at the insistence of

United States officials—seized Petitioners, placed them in

shackles, put hoods over their heads, and transported them

to an unknown location.

Early the next morning, the Bosnian police handed Peti-

tioners over to U.S. military personnel stationed in Bosnia.

The U.S. military then transported Petitioners from Bosnia

to the U.S. Naval Station at Guantanamo Bay, Cuba. The

journey lasted three days, during which time the six men

were shackled, hooded, and exposed to extreme cold. Ct.

App. J.A. 0469, 0530. Petitioners have been imprisoned at

Guantanamo Bay ever since.

The Bosnian authorities acted in violation of a binding

order of the Human Rights Chamber for Bosnia and Herze-

govina—a civil rights tribunal established under the U.S.-

brokered Dayton Peace Agreement—which forbade Peti-

tioners’ removal from Bosnian territory. Ct. App. J.A. 0202

q 230. The Human Rights Chamber subsequently issued

decisions holding that the Bosnian government violated do-

mestic and European law by expelling Petitioners from Bos-

nian territory and allowing their removal to Guantanamo

Bay. E.g., id. 0123-0253.

C. Conditions Of Confinement At Guantanamo Bay

Petitioners are now in their sixth year of imprisonment

at Guantanamo. They are confined to individual 8’ x 6’ cells

consisting of concrete walls and steel mesh. Above each

man’s steel bunk, a fluorescent light remains on 24 hours a

day. Petitioners have been subject to, among other things, up

to 15 consecutive months of solitary confinement, sleep depri-

vation, and extreme temperature conditions.’ In 2004, for ex-

* See, e.g., Center for Constitutional Rights, Report on Torture and

Cruel, Inhuman, and Degrading Treatment of Prisoners at Guantanamo

ample, rogue soldiers crushed Mr. Ait Idir’s face into a gravel

courtyard and broke one of his fingers, even though he was

restrained and posed no threat. Ct. App. J.A. 0472. Each Pe-

titioner suffers from serious medical ailments caus. ' or exac-

erbated by the conditions of his detention.

D. The Petitions And The Government’s Response

In July 2004, counsel for Petitioners filed petitions for

writs of habeas corpus in the district court. Ct. App. J.A.

0064-0081. Petitioners sought habeas on the grounds that

their indefinite detention without criminal charge was

unlawful and violated the Constitution, laws, and treaties of

the United States. See 28 U.S.C. § 2241(c)(1), (3). Several

other Guantanamo prisoners filed similar petitions.

On September 15, 2004, the district court assigned a co-

ordinating judge (Green, J.) to manage all pending Guan-

tanamo habeas cases. Ct. App. J.A. 0327-0328. The order

permitted any judge of the district court to transfer any

Guantanamo case to the coordinating judge or to reclaim any

case previously transferred.

Judge Leon, the district judge to whom Petitioners’ case

was assigned, transferred the case to the coordinating judge

on September 29, 2004, for resolution of particular issues.

Ct. App. J.A. 0329. The coordinating judge ordered Respon-

dents to file factual returns to the petitions. In response, the

government submitted only what it described as the “re-

cord” of a “Combatant Status Review Tribunal” (CSRT) that

the government had recently held for each Petitioner.

Bay, Cuba 17 (2006), available at http://www.cer-ny.org/v2/reports/does/

Torture Report_F inal_version.pdf (lest visited Mar. 2, 2007) (reporting that

Petitioners Lahmar and Bensayah were kept in isolation for 15 months and

that Mr. Lahmar’s cell was “so cold on one occasion that ice formed on the

vents”); id. at 18 (reporting that Petitioner Boumediene was deprived of

sleep for 13 consecutive days); Mavish Khan, My Guantanamo Diary: Face

to Face with the War on Terrorism, Wash. Post, Apr. 30, 2006, at B1 (“Most

|detainees] are held in isolation in cells separated by thick steel mesh or

concrete walls.”).

The CSRT process was established in the wake of

Hamdi v. Rumsfeld, 542 U.S. 507 (2004), to “review” the

military’s assertion that prisoners at Guantanamo Bay were

being held as “enemy combatants.” App. 8la-82a. Each

CSRT consisted of three commissioned officers of the United

States military. The prisoner was not allowed counsel (even

at no cost to the government) or to view any classified evi-

dence offered against him. Jd. 39a, 62a, 82a. Although the

CSRT procedures permitted Petitioners to offer documen-

tary and testimonial evidence, this was limited to evidence

that the CSRT concluded was “reasonably available” (id.

82a)—a standard that, in practice, excluded much readily-

accessible evidence, including documents in the govern-

ment’s possession and readily locatable witnesses. See infra

p. 21 & n.18.

In deciding “enemy combatant” status, the CSRT was

permitted to “consider any information it deem|ed] relevant

and helpful to a resolution of the issue before it,” including

hearsay and evidence procured by torture or coercion. App.

82a. The CSRT applied a “rebuttable presumption in favor of

the government’s evidence.” /d.

E. The District Court Judgment

On October 4, 2004, the government moved to dismiss

all petitions filed on behalf of Guantanamo prisoners on the

theory that the facts alleged in the petitions, even if taken as

true, did not warrant a grant of habeas relief. App. 56a &

n.6.

On January 19, 2005, Judge Leon granted the govern-

ment’s motion in Petitioners’ case. App. 5la-79a. The court

believed that the Authorization for Use of Military Force,

Pub. L. No. 107-40, 115 Stat. 224 (2001) (‘AUMF’”) permitted

the President to “capture and detain those who the military

determined were either responsible for the 9/11 attacks or

posed a threat of future terrorist attacks,” id. 59a (emphasis

added), even though the AUMF’s text only authorizes “nec-

essary and appropriate force against those nations, organiza- -

tions, or persons he determines planned, authorized, com-

mitted, or aided the terrorist attacks that occurred on Sep-

tember 11, 2001, or harbored such organizations or persons,”

AUMF § 2(a).°

Relying primarily on Johnson v. Eisentrager, 339 US.

763 (1950), the district court ruled that Petitioners had no

cognizable constitutional rights because they are neither U.S.

citizens nor aliens “located within sovereign United States

territory.” App. 63a. The court rejected the argument that

Guantanamo Bay is “for all intents and purposes, sovereign

United States territory.” Jd. 65a n.13. Although acknowledg-

ing that this Court’s decision in Rasul recognized Petitioners’

statutory right to file habeas petitions in federal court, the

district court concluded that Rasul “did not concern itself

with whether the petitioners had any independent constitu-

tional rights.” /d. 66a. In the court’s view, Rasul—including

the statement that the petitions at issue “unquestionably de-

scribe ‘custody in violation of the Constitution or laws or trea-

ties of the United States,” 542 U.S. at 483 n.15 (quoting 28

US.C. § 2241(c)(3))—decided only that Petitioners had the

“ability to file an application.” App. 67a n.15.

The district court likewise rejected Petitioners’ sepa-

rate habeas claim under 28 U.S.C. § 2241(c)(1), which as-

serted “common law due process rights to judicial review” in

the event Petitioners lacked constitutional rights. App. 68a

n.17. Citing no authority, the court held that sectien

2241(c)(1) “does not give [Petitioners] more rights than they

would otherwise possess under the Constitution.” Jd.

Less than two weeks after Judge Leon issued his deci-

sion, the coordinating judge ruled directly to the contrary,

holding that “all [Guantanamo] detainees possess Fifth,

Amendment due process rights and . . . some detainees pos-

sibly possess rights under the Geneva Conventions.” Jn re

Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 481

(D.D.C. 2005) (Green, J.).

aol

> The district court did not address the government's argument that

the President’s powers under Article I] of the Constitution alone could

provide authority for Petitioners’ indefinite detention. App. 62a n.11.

F. The Court Of Appeals Judgment

On February 20, 2007, a divided panel of the court of

appeals vacated the district court judgment and dismissed

the case for lack of jurisdiction.° The panel majority con-

cluded that the Military Commissions Act of 2006, Pub. L.

No. 109-366, 120 Stat. 2600 (“MCA”)—enacted during the

pendency of the appeal—operated to strip federal jurisdic-

tion over Petitioners’ habeas petitions. App. 6a-9a.

The majority concluded that the MCA’s jurisdiction-

stripping provision did not offend the Suspension Clause be-

cause, in its view, habeas corpus would not have been avail-

able as of 1789 to persons “without presence or property

within the United States.” App. 12a-13a. The panel reached

this conclusion notwithstanding this Court’s statement in Ra-

sul that the ability of Guantanamo prisoners to invoke habeas

was consistent with the “historical reach of the writ” (id. 13a

(quoting 542 U.S. at 481-482)). The majority elected instead

to follow the reasoning of the Rasul dissent (see id. 13a-14a

(citing 542 U.S. at 502-505 & n.5 (Scalia, J., dissenting))).

Although the panel majority recognized that, unlike the

petitioners in Eisentrager, Petitioners here are not “enemy

aliens,” it nonetheless treated Hisentrager as controlling.

App. 13a & n8. The majority stated that distinctions be-

tween the Naval Station at Guantanamo and the prison at

Landsberg, Germany, where the Eisentrager petitioners

were held, are “immaterial to the application of the Suspen-

sion Clause.” /d. 16a. It likewise concluded that the reason-

ing of the Insular Cases,’ in which this Court recognized that

“fundamental personal rights” are applicable in territories

outside the United States, did not apply to the “de facto sov-

ereignty” at Guantanamo. /d. 16a.

*The court of appeals heard Petitioners’ appeal together with the

government’s appeal from the coordinating judge’s decision in Guan-

tanamo Detainee Cases, although the cases were not consolidated.

"See Balzac v. Porto Rico, 258 U.S. 298 (1922); Dorr v. United

States, 195 U.S. 138 (1904); Downes v. Bidwell, 182 U.S. 244 (1901).

Judge Rogers dissented. Agreeing that the MCA pur-

ported to repeal jurisdiction in this case, Judge Rogers con-

cluded that such a repeal was unconstitutional.

Judge Rogers noted that this Court had already con-

cluded in Rasul that the writ’s application to Guantanamo

prisoners was consistent with its historical reach. App. 33a.

Judge Rogers surveyed the scope of the writ, following this

Court’s analysis in Rasul and citing examples where English

courts had issued the writ to “faraway lands,” id. 36a, and

also explained that Eisentrager did not congyol this case, see

id. 36a-37a.*

Judge Rogers next examined whether the MCA replaced

habeas with a “commensurate procedure.” App. 37a. She

concluded that the procedure asserted—review of the CSRT

process in the court of appeals under section 1005(e)(2) of the

Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119

Stat. 2680 (“DTA”)—was insufficient. See id. 38a. First, she

explained, far from providing “careful consideration and ple-

nary processing of . . . claims and including full opportunity for

the presentation of the relevant facts” (id. (quoting Harris v.

Nelson, 394 U.S. 286, 298 (1969))), many aspects of the CSRT

proceedings—evidentiary presumptions against the prisoner,

lack of access to the government’s evidence, obstacles to pre-

senting rebuttal evidence, and the lack counsel—are “inimical

to the nature of habeas review.” See id. 39a40a.

In addition, Judge Rogers found, judicial review of the

CSRT process “is not designed to cure these inadequacies.”

App. 40a. The DTA prevents the prisoner from offering evi-

dence rebutting the government’s case; it “implicitly en-

dorses” detention on the basis of evidence obtained through

torture; and even if the court were to find detention unjusti-

fied, neither the DTA nor the MCA authorizes that court to

. Judge Rogers also concluded that the application of the Suspension

Clause did not depend on a finding that Petitioners possessed “constitu-

tional rights” because the Clause is a “limitation{] on Congress’s powers”

that courts must enforce regardless of whether the party asserting the

Clause enjoys specific rights under the Constitution. App. 25a.

order the prisoner’s release. Jd. 41a. Indeed, in some cases

where CSRTs themselves found detention to be unjustified,

the government simply reconvened CSRTs seriatim until it

obtained its desired result. See id.

On the merits, Judge Rogers would have remanded the

case for the district court to “follow the return and traverse

procedures of 28 U.S.C. § 2241 et seq.,” including an eviden-

tiary hearing on the factual and legal sufficiency of the Execu-

tive’s asserted bases for detention. App. 50a. Judge Rogers

noted that, even in wartime, federal courts have “engaged in

searching factual review of the Executive’s claims” (id. 46a);

she distinguished cases involving review of convictions by

military tribunal, because “the detainees have been charged

with no crimes, nor are charges pending” (id. 47a).

REASONS FOR GRANTING THE WRIT

This case presents questions central to the rule of law.

The court of appeals majority concluded that Congress could

validly abolish the writ of habeas corpus as to hundreds of

prisoners who have been held for over five years without

judicial process. And the district court held that the writ

itself is unavailing to those same prisoners because, in its

view, neither the requirements of habeas nor the Constitu-

tion, laws, and treaties of the United States place any limita-

tion on Executive detention in this context. The national

importance of these questions would warrant this Court’s

review on their own. Certiorari is even more imperative in

light of the oppressive conditions Petitioners endure.’

* This petition is being filed contemporaneously with a petition in A/

Odah, et al. v. United States, No. 06-____, which seeks review of the same

judgment of the court of appeals with respect to Guantanamo Detainee

Cases. Because of the overlap in issues, the Court may wish to consider

granting both petitions.

I. RASUL, HAMDAN, AND THE MCA’s FAILURE TO PROVIDE AN

ADEQUATE SUBSTITUTE FOR HABEAS REVIEW COMPEL RE-

VERSAL OF THE COURT OF APPEALS’ JUDGMENT

In the last three years, this Court has twice held that

federal courts may hear habeas petitions brought by Guan-

tanamo prisoners. See Rasul v. Bush, 542 U.S. 466 (2004);

Hamdan v. Rumsfeld, 126 8. Ct. 2749 (2006). The court of

appeals’ decision cannot be squared with the analysis in

those cases. The Court should grant certiorari to correct the

court of appeals’ decision, to clarify the scope of the Suspen-

sion Clause guarantee, and to ensure that prisoners held at

Guantanamo have a meaningful opportunity to challenge

their detention.

A. The Court Of Appeals Disregarded This Court's

Strict Requirements For The Retroactive Repeal Of

Habeas Jurisdiction

The court of appeals’ conclusion that the MCA repealed

habeas jurisdiction over Petitioners’ cases raises grave

doubts regarding the MCA’s constitutionality under the

Suspension Clause. As is explained in Part 1.B below, those

doubts are well-founded in light of the Suspension Clause’s

protection of Petitioners’ right to seek the writ. As an initial

matter, however, the Court may avoid reaching the constitu-

tional question by applying well-settled rules of construction

recently reaffirmed in Hamdan. As applied to this case,

those rules dictate tha. the MCA does not repeal habeas ju-

risdiction in cases pending when the MCA was enacted.

. First, “Congress must articulate specific and unambigu-

ous statutory directives to effect a repeal” of habeas juris-

diction. JNS v. St. Cyr, 533 U.S. 289, 299 (2001); cf. Ham-

dan, 126 S. Ct. at 2764 (stating that a statute will not be held

to revoke this Court’s habeas jurisdiction “absent an unmis-

takably clear statement to the contrary”). Second, “a nega-

tive inference may be drawn from the exclusion of language

from one statutory provision that is included in other provi-

sions of the same statute.” Hamdan, 126 S. Ct. at 2765. And

third, the Court should avoid construing the MCA in a man-

ner that would give rise to “substantial constitutional ques-

tions.” St. Cyr, 533 U.S. at 300.

Section 7(a) of the MCA purports to strip jurisdiction

over two distinct categories of cases: (1) “an application for a

writ of habeas corpus” filed by or on behalf of certain aliens,

28 U.S.C. § 2241(e)(1); and (2) “any other action against the

United States or its agents relating to any aspect of the de-

tention, transfer, treatment, trial, or conditions of confine-

ment” of such an alien, id. § 2241(e)2) (emphasis added).

Section 7(b), which sets out the “effective date” of section

7+ provides only that section 7(a) applies to pending cases

thar are in the second category—cases “which relate to any

aspect of the detention, transfer, treatment, trial, or condi-

tions of detention of an alien detained by the United States

since September 11, 2001.” MCA § 7(b) (emphasis added).

The MCA does not provide—much less contain an “unmis-

takably clear statement”—that section 7(a) repeals jurisdic-

tion over cases in the first category, i.e. habeas cases that

were pending on the date of enactment."

Finally, as shown below, construction of the MCA raises

serious constitutional questions that would be avoided if the

Court were to read the statute to allow the continued adju-

dication of these petitions. Indeed, the necessity of deter-

mining the scope of the Suspension Clause guarantee is “in

and of itself a reason to avoid answering the constitutional

'° The court of appeals brushed aside the contrast between section

7(b) and section 3(a) of the MCA, the latter of which addresses habeas

petitions brought by persons convicted by military commission. Section

3(a) added 10 U.S.C. § 950j, which provides that “notwithstanding any

other provision of law (including section 2241 of title 28 or any other ha-

beas corpus provision), no court, justice, or judge shall have jurisdiction to

hear or consider any claim or cause of action whatsvever . . . pending on

... the date of the enactment of the [MCA], relating to the prosecution,

trial, or judgment of a military commission under this chapter.” 10 U.S.C.

§ 950}(b) (emphasis added). That section explicitly states that the juris-

diction-stripping provision applies to habeas cases pending on the date of

enactment. The textual difference between that section and section 7(b)

raises a “negative inference” that section 7(b) did not repeal habeas in

pending cases. Hamdan, 126 S. Ct. at 2765.

questions that would be raised by concluding that [habeas]

review was barred entirely.” St. Cyr, 533 U.S. at 301 n.13.

B. Rasul’s Historical Analysis And Congress’s Failure

To Provide An Adequate Substitute For Habeas

Demonstrate The MCA’s Unconstitutionality

This Court has made clear that, at a minimum, the Sus-

pension Clause protects the scope of habeas corpus as it ex-

isted in 1789, and that access to the Great Writ may not be

restricted unless Congress clearly and validly suspends the

writ’ or provides an adequate and effective substitute for

habeas review of unlawful detention. The court of appeals

analyzed only the first issue (the scope of the writ in 1789)

and did so erroneously—in fact, its decision contradicts this

Court’s analysis in Rasul.

1. The court of appeals ignored this Court’s finding

that the writ’s availability to Guantanamo pris-

oners is consistent with the historical reach of

habeas corpus

“[A]t the absolute minimum, the Suspension Clause

protects the writ ‘as it existed in 1789.” St. Cyr, 533 U.S. at

301 (quoting Felker v. Turpin, 518 U.S. 651, 663-664 (1996))

(emphasis added). As Judge Rogers noted, the panel major-

ity confined its analysis to historical materials predating

1789 and never considered whether the Suspension Clause

might protect any post-Founding expansion of the writ.

App. 30a & n.5. In other words, the court of appeals ignored

this Court’s important caveat “[a]t the absolute minimum.”

Thus, even if the court of appeals’ conclusion regarding the

'' The government has never contended that the MCA meets the re-

quirements for a valid suspension of the writ under the Suspension

Clause, nor could it do so. Congress has suspended the writ on only four

occasions, and each time Congress has expressly mentioned suspension

and given it a limited temporal effect. See Act of Mar. 3, 1863, ch. 81, 12

Stat. 755, 755 (Civil War); Act of Apr. 20, 1871, ch. 22, 17 Stat. 13, 14-15

(armed resistance to Reconstruction); Act of July 1, 1902, ch. 1369, 32 Stat.

691, 692 (Philippine rebellion); Duncan v. Kahanamoku, 327 U.S. 304, 307-

308 (1946) (Pearl Harbor).

scope of the writ as of 1789 were sound—though it is not—

that would render unavoidable the important question re-

garding the full contours of the Suspension Clause."

In any event, the panel majority’s analysis is erroneous

on its own terms because, as Judge Rogers also recognized,

the writ would have been available to prisoners in Petition-

ers’ position as of 1789. This Court made clear in Rasul that

recognizing the right of “persons detained at the [Guan-

tanamo] base” to bring habeas petitions was “consistent with

the historical reach of the writ of habeas corpus.” 542 U.S.

at 481. Quoting a 1759 decision by Lord Mansfield, this

'? Analysis of that question warrants reversal as well. See Develop-

ments in the Law—Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1269

(1970) (“While the framers probably could not have foreseen the extent to

which the writ’s function would expand, the history of two centuries of

expansion through a combination of statutory and ju:ticial innovation in

England must have led them to understand habeas corpus as an inher-

ently elastic concept not bound to its 1789 form. The suspension clause

then could be read to protect the product of an evolving judicial process.”

(citing Paul A. Freund’s Resp’t Br. 35-39, United States v. Hayman, 342

U.S. 205 (1952)) (footnote omitted)). An evolving interpretation of the

Suspension Clause is particularly appropriate in cases of indefinite execu-

tive detention—like that at issue here—as opposed to detention pursuant

to the judgment of a duly constituted criminal court or military tribunal.

The commen law right to challenge indefinite detention by the Executive,

without benefit of criminal indictment or fair process, falls squarely within

the core of habeas corpus as it has been known for centuries and is not a

mere technicality of habeas procedure. See St. Cyr, 533 U.S. at 301 (“At

its historical core, the writ of habeas corpus has served as a means of re-

viewing the legality of Executive detention, and it is in that context that

iis protections have been strongest.”); Swain v. Pressley, 430 U.S. 372,

385 (1977) (Burger, C.J., concurring) (stating that the common law writ

was available “to inquire into the cause of commitment not pursuant to

judicial process”). The Framers intended the Suspension Clause to fight

arbitrary imprisonment by the Executive in all its forms. See Federalist

No. 84 (Hamilton) (“{Cjonfinement of the person, by secretly hurrying

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 gov-

ernment.” (quoting 1 Blackstone, Commentaries 136)). They never sug-

gested that the government could circumvent the Clause by holding pris-

oners in locations that, though nominally “offshore,” remain subject to the

government's exclusive jurisdiction and control.

Court noted that “even if a territory was ‘no part of the

realm,’ there was ‘no doubt’ as to the court’s power to issue

writs of habeas corpus if the territory was ‘under the subjec-

tion of the Crown.” Id. at 482 (quoting King v. Cowle, 97

Eng. Rep. 587, 598-599 (K.B. 1759)). This Court also recog-

nized that, at common law, “the reach of the writ depended

not on formal notions of territorial sovereignty, but rather

on the practical question of ‘the exact extent and nature of

the jurisdiction or dominion exercised in fact by the Crown.”

Id. (quoting Ex parte Mwenya, [1960] 1 Q.B. 241, 303 (C.A.)

(Lord Evershed, M.R.)).

The panel majority openly rejected this Court’s analysis

and instead agreed with the Rasul dissent that, because the

cases cited did not expressly involve “aliens held outside the

territory of the sovereign,” there was no evidence that per-

sons in Petitioners’ position would have benefited from the

writ in 1789. App. 13a (quoting 542 U.S. at 505 n.5 (Scalia, J.,

dissenting)). The court did not address several cases cited

by Judge Rogers where English courts issued the writ to

petitioners in India well before it became a British territory.

Cf. id. 36a (Rogers, J., dissenting). Moreover, this Court has

never held that an assessment of the scope of the 1789 writ

for Suspension Clause purposes depends on identifying a

specific case that exactly mimics the facts of the Petitioners’ .

own. As this Court found in Rasul, common law judges con-

sidered the writ to run to all places where the Crown held

sway and would have had no difficulty applying it to cireum-

stances such as Guantanamo. See 542 U.S. at 482. Accord-

ingly, the Court rejected the claim—made by the Raswl dis-

sent and adopted by the court of appeals in this case—that

“habeas corpus has been categorically unavailable to aliens

held outside sovereign territory.” /d. at 482 n.14.

The court of appeals’ decision also failed to account for

the “complete jurisdiction and control” the United States

exercises over the Guantanamo Bay Naval Station. Rasul,

542 U.S. at 480 (internal quotation marks omitted). As Jus-

tice Kennedy noted, “Guantanamo Bay is in every practical

respect a United States territory.” /d. at 487 (opinion con-

curring in the judgment). Thus, even if the 1789 writ were

limited to “sovereign” territory, this Court’s determination

of Guantanamo’s status as de facto sovereign territory for

habeas purposes would still compel reversal of the court of

appeals’ conclusion. When Guantanamo is properly recog-

nized as indistinguishable from “a United States territory,”

id., any distinction between this case and numerous other

pre-1789 cases evaporates completely. See, e.g., Case of

Three Spanish Sailors, 96 Eng. Rep. 775 (C.P. 1779); Rex v.

Schiever, 97 Eng. Rep. 551 (K.B. 1759).

The court of appeals also erred by relying on Eisen-

trager. As this Court explained in Rasul, Guantanamo pris-

oners are “differently situated from the Fisentrager detain-

ees” for several reasons. 542 U.S. at 476." Justice Kennedy

further agreed that the situation of Guantanamo prisoners is

“distinguishable from ... Eisentrager in two critical ways”:

because Guantanamo is “in every practical respect a United

States territory,” and because the prisoners were impris-

oned indefinitely and lacked “any legal proceeding to deter-

mine their status.” /d. at 487-488 (Kennedy, J., concurring in

the judgment). Whatever Eisentrager says about the avail-

ability of the writ in other cireumstances, Rasul is clear that

Eisentrager does not bear on Petitioners’ habeas petitions.

Finally, contrary to the court of appeals’ suggestion, Pe-

titioners need not establish that they enjoy additional consti-

tutional rights (such as Fifth Amendment rights) in order to

invoke the Suspension Clause. As Judge Rogers explained,

the Suspension Clause is a limitation on congressional power

'’ The Court elaborated ( Rasul, 542 U.S. at 476):

Petitioners in | Rasu/] differ from the Eisentrager detainees in

important respects: They are not nationals of countries at war

with the United States, and they deny that they have engaged

in or plotted acts of aggression against the United States; they

have never been afforded access to any tribunal, much less

charged with and convicted of wrongdoing; and for more than

two years they have been imprisoned in territory over which

the United States exercises exclusive jurisdiction and control.

that can be raised by any party prejudiced by legislation

that exceeds that limit, whether that party’s habeas petition

asserts constitutional violations or asserts that the detention

is unlawful and unauthorized for other reasons. App. 22a-

27a. The court of appeals’ reliance on cases addressing con-

stitutional provisions other than the Suspension Clause (see

id. 14a-15a) is therefore unavailing.'*

2. The MCA is not an adequate substitute

Having erroneously decided that the Suspension Clause

did not apply, the court below did not assess whether Con-

gress provided a substitute remedy that is adequate and ef-

fective to “test the legality of a person’s detention.” Swain

v. Pressley, 430 U.S. 372, 381 (1977) (internal quotation

marks omitted); see also St. Cyr, 533 U.S. at 305 (“a serious

Suspension Clause issue would be presented” absent an ade-

quate substitute). If construed to repeal habeas in this case,

the MCA would afford Petitioners only review in the court

of appeals of the CSRT process, as provided in section

1005(e)(2) of the DTA. See MCA § 7a) (adding 28 U.S.C.

§ 2241(e)(2)). As Judge Rogers explained, that procedure

falls far short of the core protections guaranteed on habeas.

Section 1005(e)(2) lacks any mechanism for petitioners

to probe and rebut the facts relied upon in imprisoning them.

It appears to require the reviewing court to accept the gov-

ernment’s record and to limit its review to whether (i) the

CSRT complied with its own standards and procedures, and

(ii) the use of those standards and procedures comports with

the Constitution and laws of the United States.

Moreover, the DTA, as interpreted by the government,

artificially constrains the “record” forming the basis of peti-

tioners’ detention to evidence that the government has se-

'* See, e.g. St. Cyr, 533 U.S. at 302-303 (stating that pre-1789 cases

“contain no suggestion that habeas relief in cases involving Executive

detention was only available for constitutional error”). In any event, the

court of appeals was wrong to hold that Petitioners may not vindicate

individual constitutional rights on habeas. See infra pp. 23-25.

lected and facts that the government has unilaterally deemed

reasonably available.’ Such a procedure is not calculated to

produce a record that a reviewing court can confidently as-

sume will fairly disclose the basis for the petitioner’s deten-

tion. It therefore provides no adequate substitute for the

common law writ of habeas corpus, which since time imme-

morial has authorized courts to examine whether the detain-

ing authority has demonstrated sufficient factual and legal

cause for detention. See, e.g., R.J. Sharpe, The Law of Ha-

beas Corpus 66, 116 (2d ed. 1989) (noting that habeas courts

“were especially ready to consider the facts in cases of im-

pressment” and investigated whether a prisoner was “both

in fact and law” a prisoner of war).

The government has also contended that the DTA shifts

material burdens to petitioners and requires the court to

treat CSRT findings deferentially."° In noncriminal habeas,

however, it is the government’s burden to support the de-

tention, and no deference is owed to the jailor’s view of the

evidence. Cf. Hamdi v. Rumsfeld, 542 U.S. 507, 553-554

(2004) (Souter, J., concurring in part, dissenting in part, and

concurring in the judgment); Bushell’s Case, 124 Eng. Rep.

1006, 1007 (C.P. 1670) (“[T]he cause of the imprisonment

ought, by the [return], to appear as specifically and certainly

to the Judges of the [return], as it did appear to the Court or

person authorized to commit.”). These thumbs on the scale

further demonstrate the DTA’s inadequacy as a substitute

for habeas. See Hamdi, 542 U.S. at 575 (Scalia, J., dissent-

ing) (the Suspension Clause “would be a sham if it could be

evaded by congressional prescription of requirements other

'® See, e.g., Resp. in Opp. to Mot. to Compel at 14, 18, Bismullah v.

Rumsfeld (No. 06-1197) (D.C. Cir. Aug. 21, 2006) (“Government Response

in Bismullah”) (arguing that the DTA limits the court of appeals’ review

to “the record before the CSRT” and does not permit review of the proc-

ess of “identifying and gathering” evidence).

'° See Gov't Resp. 13, Bismullah (arguing that the DTA limits the

court of appeals’ role to “at most” a determination that the CSRT decision

“js supported by substantial evidence”).

than the common-law requirement of committal for crimi-

nal prosecution that render the writ, though available, un-

availing.”).

A further deficiency in section 1005(e)(2) is that it does

not expressly authorize the court of appeals to discharge a

prisoner whose CSRT decision is held invalid. As Judge

Rogers observed, in some cases when CSRTs have con-

cluded that a prisoner should not be detained, the govern-

ment has simply convened new CSRTs until one reaches a

contrary result. App. 4la. In contrast, a habeas court that

find that imprisonment is unjustified “can only direct [the

prisoner] to be discharged.” Ex parte Bollman, 8 US. (4

Cranch) 75, 136 (1807).

DTA review is all the more inadequate when viewed in

light of the deficiencies in the underlying CSRT process.

For example, the CSRT proceeding does not allow a pris-

oner to contest the government’s factual case. Much of the

evidence submitted to the CSRT here was classified and not

shown to the prisoners, making any effective response im-

possible. Petitioner Ait Idir demonstrated the unfairness of

this process so effectively that, at one point, the very offi-

cials charged with administering the CSRT laughed at its

absurdity. App. 83a-84a; see also Guantanamo Detainee

Cases, 355 F. Supp. 2d at 469-470. This is a far cry from ha-

beas, where petitioners “are entitled to careful consideration

and plenary processing of their claims including full oppor-

tunity for the presentation of the relevant facts.” Harris v.

Nelson, 394 U.S. 286, 298 (1969); see also Hamdi, 542 U.S. at

538 (plurality opinion) (stating that a habeas court must

“permit{] the alleged combatant to present his own factual

case to rebut the Government’s return”)."’

'? Common law courts frequently examined affidavits proffered to

support a habeas petitioner. In a 1778 case in which a petitioner was

pressed into Admiralty service in apparent violation of an exemption is-

sued by the Navy Board, the court stated that it “could not willfully shut

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

not noticed on the return.” Goldswain's Case, 96 Eng. Rep. 711, 712 (C.P.

Moreover, where Petitioners were aware of documen-

tary evidence or testimony to rebut the government’s case,

the CSRT often declined to obtain it, incanting that the in-

formation was not “reasonably available.” For example, Pe-

titioner Boudella asked his CSRT to consider the January

2002 order of the Supreme Court of the Federation of Bosnia

and Herzegovina ordering him released from custody. Ct.

App. J.A. 0576, 0582. The CSRT concluded that the court

decision was “not reasonably available” (id. 0582), even

though the decision had been filed in the district court and

served on counsel for the government months before Mr.

Boudella’s CSRT convened."

The CSRT proceedings also deprive detainees of the

right to counsel and to exclude evidence obtained by torture

or coercion. See Guantanamo Detainee Cases, 355 F. Supp.

2d at 468-78; App. 39a-4la. As Judge Rogers appreciated,

these practices are “inimical to the nature of habeas review.”

App. 40a.

Limited review of an unfair procedure cannot be an

adequate substitute for habeas. See App. 40a. This Court

should grant certiorari and reverse the judgment of the

court of appeals.

1778); see also Case of the Hottentot Venus, 104 Eng. Rep. 344, 344 (K.B.

1810) (ordering an examination of a “native of South Africa” to determine

whether she was confined against her will); Three Spanish Sailors, 96

Eng. Rep. at 775 (examining affidavits supporting claim for release).

'® See Pet'rs’ Opp. to Resp’ts’ Mot. for Joint Case Mgmt. Conference,

Entry of Coordination Order and Request for Expedition, Ex. B, Bowme-

diene v. Bush, No. 1:04-ev-01166-RJL (D.D.C. Aug. 16, 2004). Petitioner

Lahmar also requested that the Bosnian decision be considered; his CSRT

also deemed it “not reasonably available” on the ground that “(t]he Bos-

nian government was unable to provide any such document.” Ct. App.

J.A. 0401. Petitioner Nechla sought the testimony of Mr. Mohmoud Sayed

Yousef, his supervisor in the Bosnian office of the Red Crescent. His

CSRT concluded that Mr. Yousef was not reasonably available (see id.

0520) even though counsel easily located Mr. Yousef by calling the Red

Crescent telephone number listed in the Sarajevo telephone directory.

Il. THIS COURT SHOULD ALSO GRANT REVIEW TO CLARIFY THAT

PETITIONERS HAVE STATED A CLAIM OF UNLAWFUL EXECU-

TIVE DETENTION

The Court should also grant certiorari to determine

whether Petitioners’ habeas petitions demonstrate unlawful

confinement and warrant grant of habeas relief or, at the

very least, a hearing on the merits.

A. The Court Should Resolve The Split In The District

Court

The district court has issued two conflicting decisions re-

garding the substantive standards applied to a habeas peti-

tion filed by an alien imprisoned at Guantanamo Bay. In Peti-

tioners’ case, Judge Leon held that there was “no viable legal

theory” under which the writ could issue. App. 74a-79. In

contrast, Judge Green held that Guantanamo detainees could

challenge their imprisonment as violative of the Constitution

and exceeding the Executive’s detention authority. Guan-

tanamo Detainee Cases, 355 F. Supp. 2d at 453-476.

Although the issue was fully briefed and argued in the

court of appeals, the panel majority did not address the point

because it found that it lacked jurisdiction. Judge Rogers

would have reversed the judgment in Petitioners’ case and

remanded for a hearing in which the Executive would be re-

quired to “convince an independent Article III habeas judge

that it has not acted unlawfully” and Petitioners would have

“a meaningful opportunity to respond.” App. 49a.

Petitioners respectfully submit that this issue is ripe for

resolution by this Court. A remand to the court of appeals

weuld simply delay a case that languished there for two

years. Moreover, the conflicting opinions of Judges Leon

and Green likely constitute the universe of views to be ex-

pressed by the judges of that district court—the only juris-

diction in which any Guantanamo petitions are pending.

Remanding the case without further guidance on the merits

would delay resolution with no discernible benefit.

B. Petitioners’ Indefinite Detention Without Charge Is

Unlawful

The district court’s holding in Petitioners’ case was con-

trary to this Court’s precedent for at least three reasons.

First, the court was wrong to state, in a footnote, that

the habeas statute does “not give Petitioners more rights

than they would otherwise possess under the Constitution.”

App. 68a n.17. The common law writ of habeas corpus, codi-

fied at 28 U.S.C. § 2241(c)(1), has never been dependent on a

showing that a petitioner possessed “rights . . . under the

Constitution,” which of course did not exist in England or

Colonial America. In St. Cyr, this Court surveyed cases

from “England prior to 1789, in the Colonies, and in this Na-

tion during the formative years of our Government,” 533

U.S. at 301 (footnote omitted), and concluded that “those

early cases contain no suggestion that habeas relief in cases

involving Executive detention was only available for consti-

tutional error,” id. at 302-303. Thus, as Judge Rogers ex-

plained, “the nature of the writ” as it was known at common

law requires that a habeas court undertake a “searching fac-

tual review of the Executive’s claims” as well as determine

the scope of the legal authority to detain, irrespective of

whether Petitioners can assert rights under the Fifth

Amendment. App. 46a, 49a, 50a n.14.

Second, the district court disregarded this Court’s rea-

soning in Rasul, which demonstrated that the Executive's

ability to confine prisoners at Guantanamo must comply with

the Constitution:

Petitioners’ allegations—that, although they have en-

gaged neither in combat nor in acts of terrorism

against the United States, they have been held in ex-

ecutive detention for more than two years in territory

subject to the long-term, exclusive jurisdiction and

control of the United States, without access to counsel

and without being charged with any wrongdoing—

unquestionably describe ‘custody in violation of the

Constitution or laws or treaties of the United States.’

28 U.S.C. § 2241(c)(3); cf United States v. Verdugo-

Urquidez, 494 U.S. 259, 277-278 (1990) (Kennedy, J.,

concurring), and cases cited therein.

542 U.S. at 483 n.15 (emphasis added). The Court thus ac-

knowledged that prisoners in Petitioners’ situation could

challenge their detention as inconsistent with the Constitu-

tion (and laws and treaties) of the United States, notwith-

standing the fact that they are imprisoned—by the govern-

ment’s own arbitrary choice—at Guantanamo rather than at

a similar facility in the United States proper.

That conclusion in Rasul is well supported by the au-

thority cited. “(T]he Government may act only as the Con-

stitution authorizes, whether the actions in question are for-

eign or domestic.” Verdugo-Urquidez, 494 U.S. at 277 (Ken-

nedy, J., concurring). The applicability of constitutional pro-

visions outside the formal territory of the United States de-

pends on the circumstances. See id. (“The proposition is, of

course, not that the Constitution ‘does not apply’ overseas,

but that there are provisions in the Constitution which do

not necessarily apply in all circumstances in every foreign

place.” (quoting Reid v. Covert, 354 U.S. 1, 74 (1957) (Harlan,

J., concurring in the judgment))).

As the Court rightly concluded, the circumstances of

Guantanamo (notably the “exclusive jurisdiction and control

of the United States,” Rasul, 542 U.S. at 483 n.15) and the

fundamental nature of the constitutional provision at issue

(the prohibition against arbitrary and indefinite deprivation

of liberty) compel the conclusion that Petitioners’ detention

must comply with due process. See id.; see also id. at 487

(Kennedy, J., concurring in the judgment) (reasoning that

the United States’ absolute control over Guantanamo “ex-

tend[s} the ‘implied protection’ of the United States to it”

(quoting Fisentrager, 339 U.S. at 777-778)); Guantanamo

Detainee Cases, 355 F. Supp. 2d at 463-464.

These same factors distinguish prior efforts to invoke

procedural or economic provisions of the Constitution in lo-

cations with their own established legal systems and popula-

tions unfamiliar with U.S. legal traditions. E.g., Verdugo-

Urquidez, 494 U.S. at 269-270 (Fourth Amendment Search

and Seizure Clause inapplicable in Mexico); Downes v.

Bidwell, 182 U.S. 244, 287 (1901) (Revenue Clauses of Con-

stitution inapplicable to Puerto Rico). Applying those con-

stitutional provisions in those cases would have been “im-

practicable and anomalous.” Verdugo-Urquidez, 494 U.S. at

278 (Kennedy, J., concurring). But there is nothing anoma-

lous about requiring that detention in a prison controlled en-

tirely by the United States government comply with consti-

tutional requirements. Accordingly, Petitioners are, at the

very least, entitled to a fair habeas proceeding in which they

receive notice of the government’s specific asserted grounds

for their imprisonment, may offer their own evidence and

argument to a neutral Article II] judge, and may be repre-

sented by counsel.

Third, the district court’s conclusion that the AUMF au-

thorized Petitioners’ imprisonment was based on a misread-

ing of the AUMF and of its interpretation in Hamdi. The

AUMF authorized the President to

use all necessary and appropriate force against

those nations, organizations, or persons he deter-

mines planned, authorized, committed, or aided the

terrorist attacks that occurred on September 11,

2001, or harbored such organizations or persons, in

order to prevent any future acts of international

terrorism against the United States by such na-

tions, organizations or persons.

A” "MF § 2(a) (emphases added). The AUMF thus empow-

ered the President to act against two limited classes of na-

tions, organizations, and persons: those involved in the plan-

ning and execution of the September 11 attacks, and those

who harbored such persons or organizations. The Hamdi

plurality confirmed, accordingly, that the AUMF “authorizes

the President to use ‘all necessary and appropriate force’

against ‘nations, organizations, or persons’ associated with

the September 11, 2001, terrorist attacks.” Hamdi, 542 US.

at 518 (plurality opinion) (citations omitted and emphasis

added); see also Guantanamo Detainee Cases, 355 F. Supp.

2d at 466 (“[T]he AUMF authorize[s] the President to use all

necessary and appropriate force against those responsible

for the September 11 attacks.” (emphasis added)).

The district court’s decision here, by contrast, held that

the AUMF “in effect” authorized the President to detain

persons who “were either responsible for the 9/11 attacks or

posed a threat of future terrorist attacks.” App. 59a (em-

phasis added). By engrafting the atextual “either/or” onto

the AUMFP, the district court contravened the bedrock rule

that courts “are not free to rewrite the statute that Con-

gress has enacted.” Dodd v. United States, 545 U.S. 353, 359

(2005). The court’s reading would permit the President to

detain, indefinitely and without charge, anyone whom he

deemed (however erroneously) to “pose[] a threat of future

terrorist attacks,” an astonishingly broad power that would

supplant ordinary civilian processes and protections in both

the United States and other countries—a result that cannot

be read into Congress’s language in the AUMF. The facts of

this case lay bare the absurdity of the district court’s mis-

reading: Petitioners were detained after the civilian authori-

ties in Bosnia—an allied nation at peace with the United

States and with functioning judicial institutions—conducted

a three-month investigation and concluded that there was no

lawful basis to continue Petitioners’ confinement.

The district court would have avoided this error had it in-

terpreted the AUMF in accordance with “longstanding law-

of-war principles.” Hamdi, 542 U.S. at 521; see also id. at 551

(Souter, J, concurring in part, dissenting in part, and concur-

ring in the judgment). Those laws govern treatment of mem-

bers of armed forces, persons directly engaged in hostilities,

and civilian populations within a zone of armed conflict; they

do not govern persons who are citizens of and resident in

friendly states, were not members of an armed force of an en-

emy state, and were never directly involved in hostilities

against the detaining power. See id. at 518 (plurality opinion)

(stating that the AUMF authorized detention of persons in

the “limited category” of “individuals who fought against the

United States in Afghanistan as part of the Taliban, an or-

ganization known to have supported the al Qaeda terrorist

network responsible for those attacks”); Ex parte Milligan, 71

U.S. 2, 121 (1866) (finding that the law of war did not justify

Executive detention during the Civil War of civilians who re-

sided in “states which have upheld the authority of the gov-

ernment, and where the courts are open and their process un-

obstructed”).'? Accordingly, when the government asked this

Court to approve its detention of “enemy combatants,” it

carefully limited the term te “an individual who, it alleges,

was part of or supporting forces hostile to the United States

or coalition partners in Afghanistan and who engaged in an

armed conflict against the United States there.” Hamdi, 542

U.S. at 516 (internal quotation marks omitted).

Since Hamdi, however, the government has asserted a

broader detention power that extends far beyond the AUMF.

The government’s latest definition of “enemy combatant,”

which the CSRTs applied in purporting to “confirm” the pro-

priety of Petitioners’ detention, extends to “an individual who

was part of or supporting Taliban or al Qaeda forces or asso-

ciated forces that are engaged in hostilities against the United

States or its coalition partners [and] . . . includes any person

who has committed a belligerent act or has directly supported

hostilities in aid of enemy armed forces.” App. 81a (emphasis

added). As Judge Green noted in Guantanamo Detainee

Cases, the word “includes” reveals that the government

claims the authority to detain indefinitely “individuals who

never committed a belligerent act or who never directly sup-

ported hostilities against the U.S. or its allies.” 355 F. Supp.

2d at 475. Indeed, the government admitted that its defini-

tion of “enemy combatant” would encompass people who un-

knowingly give “support{]” to Taliban or Al Qaeda members.

See id. (reporting that the government claimed the authority

"The Court in Ex parte Quirin, 317 U.S. 1 (1942), confirmed that

the laws of war do not apply to persons who, like Milligan and like Peti-

tioners here, are not members of an armed force and were not engaged

directly in hostilities. See id. at 45 (stating that a person “not being a part

of or associated with the armed forces of the enemy, was a non-

belligerent, not subject to the law of war”).

to detain indefinitely “[{a] little old lady in Switzerland who

writes checks to what she thinks is a charity that helps or-

phans in Afghanistan but [what] really is a front to finance al-

Qaeda activities” (internal quotation marks omitted)).

The district court’s conclusion that the AUMF author-

ized Petitioners’ detention is at odds with the statute’s text,

the laws of war, and the reasoning of the plurality and con-

curring opinions in Hamdi. This Court should reverse that

conclusion and make clear that the Executive lacks authority

under the AUMF to imprisen without charge persons who

did not engage in armed conflict or directly take part in on-

going hostilities against the United States. Moreover, be-

cause the government has never contended—and cannot

contend—that Petitioners ever waged war against the

United States, the proper application of the AUMF requires

that the district court grant habeas relief to Petitioners

forthwith.”

Ill. THE ISSUES PRESENTED IN THIS CASE ARE OF PARAMOUNT

NATIONAL IMPORTANCE

At issue in this case is nothing less than this country’s

commitment to the rule of law. Hundreds of men are cur-

rently facing lifelong imprisonment without any assurance

that they will ever be tried on a criminal charge or given any

fair opportunity to challenge the purported basis of their ap-

prehension and detention by the government. A situation so

grave demands review by this Court.

*° The government has previously contended that, even in the ab-

sence of the AUMF, the President’s Article II powers would authorize the

indefinite detention of prisoners at Guantanamo Bay without more. To

date, no court has addressed this argument, although it is clear that “a

state of war is not a blank check for the President.” Hamdi, 542 U.S. at

536 (plurality opinion). This principle carries even greater weight when

the President acts without congressional authorization to spirit away men

living peacefully in a European country to a distant island prison without

any fair process, notwithstanding a judgment of the courts of their home

country ordering them released.

The court of appeals’ decision has, for the moment, rati-

fied the abolition of the Great Writ, which for centuries has

functioned as the “symbol and guardian of individual lib-

erty.” Peyton v. Rowe, 391 U.S. 54, 58 (1968). The scope of

the writ—and the liberty it is designed to secure—is one of

the central issues facing the federal courts. Likewise, the

role of the Constitution, statutes, and traditional habeas as

limits on Executive power—an issue of both domestic and

international concern—demands guidance from this Court.

Not only are these questions of paramount legal impor-

tance, but the extreme and worsening plight of the Guan-

tanamo detainees make them questions of great humanitar-

ian urgency as well. See, e.g., Preiser v. Rodriguez, 411 U.S.

475, 494 (1973) (“[S]peedy reve w of [a prisoner’s] grievance

... is so often essential to any effective redress.”). Petition-

ers have already suffered for over five years without any

meaningful review of their imprisonment. Abuse of Guan-

tanamo detainees is well documented,”' and the physical and

mental health of the prisoners continues to deteriorate. See

Guantanamo Detainees’ Mot. to Expedite 4 4 (D.C. Cir. Feb.

2, 2007). Now more than ever, time is of the essence.

CONCLUSION

The petition for a writ of certiorari should be granted.

2! See, e.g., Aff. of Sgt. Heather N. Cerveny (Oct. 4, 2006), available

at http://abenews.go.com/images/WNT/gitmo_affidavit.pdf (last visited

Mar. 2, 2007) (detailing U.S. Marine Corps Sergeant’s conversations with

Guantanamo Ray personnel who boasted of abusing detainees, including

hitting a detainee’s head into a cell door and depriving detainees of water);

Letter from TJ. Harrington, Deputy Assistant Director, FBI Counterter-

rorism Division to Major General Donald J. Ryder, Department of the

Army, Criminal Investigation Command, July 14, 2004, available at

http://www.aclu.org/projects/foiasearch/pdf/DOJF BI001914.pdf (last vis-

ited Mar. 2, 2007) (documenting FBI agents’ observation of “highly ag-

gressing interrogation techniques,” including bending a detainee’s thumbs

backwards, grabbing a detainee’s genitals, and holding a detainee in isola-

tion for one or two months in cell that was “always flooded with light”).

STEPHEN H. OLESKEY

ROBERT C. KIRSCH

MARK C. FLEMING

JOSEPH J. MUELLER

PRATIK A. SHAH

LYNNE CAMPBELL SOUTTER

JEFFREY S. GLEASON

LAUREN G. BRUNSWICK

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

(617) 526-6000

MARCH 2007

Respectfully submitted.

SETH P. WAXMAN

Counsel of Record

PAUL R.Q. WOLFSON

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., N.W.

Washington, DC 20006

(202) 663-6000

DOUGLAS F.. CURTIS

PAUL M. WINKE

JULIAN DAVIS MORTENSON

WILMER CUTLER PICKERING

HALE AND DORR LLP

399 Park Avenue

New York, NY 10022

(212) 230-8800

APPENDIX

APPENDIX A

UNITEDSTATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 05-5062

LAKHDAR BOUMEDIENE,

DETAINEE, CAMP DELTA, ET AL., APPELLANTS

Vv.

GEORGE W. BUSH,

PRESIDENT OF THE UNITED STATES, ET AL., APPELLEES

Argued: September 8, 2005 Decided: February 20, 2007

Consolidated with 05-5063

Appeals from the United States District Court for the Dis-

trict of Columbia (No. 04cev01142) (No. 04ev01166)

No. 05-5064

KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI KHALID

ABDULLAH FAHAD AL ODAH, ET AL.

APPELLEES/CROSS-APPELLANTS

Vv.

UNITED STATES OF AMERICA, ET. AL.,

APPELLANTS/CROSS-APPELLEES

Consolidated with 05-5095, 05-5096, 05-5097, 05-5098, 05-5099,

05-5100, 05-5101, 05-5102, 05-5103, 05-5104, 05-5105, 05-5106,

05-5107, 05-5108, 05-5109, 05-5110, 05-5111, 05-5112, 05-5113,

05-5114, 05-5115, 05-5116

Appeals from the United States District Court for the District of

Columbia (No. 02cv00828) (No. 02cev00299) (No. 02ev01130)

(No. 02ev01135) (No. 02ev01136) (No. 02ev01137) (No. 02cv01144)

(No. 02ev01164) (No. 02ev01194) (No. 02ev01227) (No. 02cv01254)

[2007 WL 506581]

Before: SENTELLE, RANDOLPH and ROGERS, Circuit

Judges.

Opinion for the court filed by Circuit Judge RANDOLPH.

Dissenting opinion filed by Circuit Judge ROGERS.

RAN DOLPH, Circuit Judge.

[*1] Do federal courts have jurisdiction over petitions

for writs of habeas corpus filed by aliens captured abroad

and detained as enemy combatants at the Guantanamo Bay

Naval Base in Cuba? The question has been the recurring

subject of legislation and litigation. In these consolidated

appeals, foreign nationals held at Guantanamo filed petitions

for writs of habeas corpus alleging violations of the Consti-

tution, treaties, statutes, regulations, the common law, and

the law of nations. Some detainees also raised non-habeas

claims under the federal question statute, 28 U.S.C. § 1331,

and the Alien Tort Act, id. § 1350. In the “Al Odah” cases

(Nos. 05-5064, 05-5095 through 05-5116), which consist of

eleven cases involving fifty-six detainees, Judge Creen de-

nied the government’s motion to dismiss with respect to the

claims arising from alleged violations of the Fifth Amend-

ment’s Due Process Clause and the Third Geneva Conven-

tion, but dismissed all other claims. See Jn re Guantanamo

Detainee Cases, 355 F. Supp. 2d 443 (D.D.C. 2005). After

Judge Green certified the order for interlocutory appeal un-

der 28 U.S.C. § 1292(b), the government appealed and the

detainees cross-appealed. In the “Boumediene” cases (Nos.

05-5062 and 05-5063)—two cases involving seven detain-

ees—Judge Leon granted the government’s motion and dis-

missed the cases in their entirety. See Khalid v Bush, 355 F.

Supp. 2d 311 (D.D.C. 2005).

In the two years since the district court’s decisions the

law has undergone several changes. As a result, we have

had two oral arguments and four rounds of briefing in these

cases during that period. The developments that have

brought us to this point are as follows.

In Al Odah v. United States, 321 F.3d 1134 (D.C. Cir.

2003), rev ‘d sub nom. Rasul v. Bush, 542 U.S. 466 (2004), we

affirmed the district court’s dismissal of various claims—

habeas and non-habeas—raised by Guantanamo detainees.

With respect to the habeas claims, we held that “no court in

this country has jurisdiction to grant habeas relief, under 28

U.S.C. § 2241, to the Guantanamo detainees.” 321 F.3d at

1141. The habeas statute then stated that “Writs of habeas

corpus may be granted by the Supreme Court, any justice

thereof, the district courts and any circuit judge within their

respective jurisdictions.” 28 U.S.C. § 2241(a) (2004). Be-

cause Guantanamo Bay wa: not part of the sovereign terri-

tory of the United States, but rather land the United States

leases from Cuba, see Al Odah, 321 F.3d at 1142-43, we de-

termined it was not within the “respective jurisdictions” of

the district court or any other court in the United States.

We therefore held that § 2241 did not provide statutory ju-

risdiction to consider habeas relief for any alien—enemy or

not-—-held at Guantanamo. /d. at 1141. Regarding the non-

habeas claims, we noted that “the privilege of litigation’

does not extend to aliens in military custody who have no

presence in ‘any territory over which the United States is

sovereign,” id. at 1144 (quoting Johnson v. Kisentrager, 339

U.S. 763, 777-78 (1950)), and held that the district court

properly dismissed those claims.

[*2] The Supreme Court reversed in Rasul v. Bush, 542

U.S. 466 (2004), holding that the habeas statute extended to

aliens at Guantaname. Although the detainees.themselves

were beyond the district court’s jurisdiction, the Court de-

termined that the district court’s jurisdiction over the de-

tainees’ custodians was sufficient to provide subject-matter

jurisdiction under § 2241. See Rasul, 542 U.S. at 483-84.

The Court further held that the district court had jurisdic-

tion over the detainees’ non-habeas claims because nothing

in the federal question statute or the Alien Tort Act cate-

gorically excluded aliens outside the United States from

bringing such claims. See Rasul, 542 U.S. at 484-85. The

Court remanded the cases to us, and we remanded them to

the district court.

In the meantime Congress responded with the Detainee

Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2680

(2005) (DTA), which the President signed into law on De-

cember 30, 2005. The DTA added a subsection (e) to the ha-

beas statute. This new provision stated that, “{e]xcept as

provided in section 1005 of the [DTA], no court, justice, or

judge” may exercise jurisdiction over

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

by or on behalf of an alien detained by the Depart-

ment of Defense at Guantanamo Ba, 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 Guan-

tanamo 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 . . . to have been properly

detained as an enemy combatant.

DTA § 1005(e)(1) (internal quotation marks omitted). The

“except as provided” referred to subsections (e)(2) and (e)(3)

of section 1005 of the DTA, which provided for exclusive ju-

dicial review of Combatant Status Review Tribunal deter-

minations and military commission decisions in the D.C. Cir-

cuit. See DTA § 1005(e)(2), (e)(3).

The following June, the Supreme Court decided Ham-

dan v. Rumsfeld, 126 S. Ct. 2749 (2006). Among other

things, the Court held that the DTA did not strip federal

courts of jurisdiction over habeas cases pending at the time

of the DTA’s enactment. The Court pointed to a provision of

the DTA stating that subsections (e)(2) and (e)(3) of section

1005 “shall apply with respect to any claim . . . that is pend-

ing on or after the date of the enactment of this Act.” DTA

§ 1005(h). In contrast, no provision of the DTA stated

whether subsection (e)(1) applied to pending cases. Finding

that Congress “chose not to so provide . . . after having been

presented with the option,” the Court concluded “(t]he omis-

sion {wa]s an integral part of the statutory scheme.” Ham-

dan, 126 S. Ct. at 2769.

In response to Hamdan, Congress passed the Military

Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600

(2006) (MCA), which the President signed into law on Octo-

ber 17, 2006. Section 7 of the MCA is entitled “Habeas Cor-

pus Matters.” In subsection (a), Congress again amended

§ 2241(e). The new amendment reads:

[*3] (1) No court, justice, or judge shall have juris-

diction to hear or consider an application for a writ

of habeas corpus filed by or on behalf of an alien de-

tained by the United States who has been deter-

mined by the United States to have been properly

detained as an enemy combatant or is awaiting such

determination.

(2) Except as provided in [section 1005(e)(2) and

(e)(3) of the DTA], no court, justice, or judge shall

have jurisdiction to hear or consider any other ac-

tion against the United States or its agents relating

to any aspect of the detention, transfer, treatment,

trial, or conditions of confinement of an alien who is

or was detained by the United States and has been

determined by the United States to have been

properly detained as an enemy combatant or is

awaiting such determination.

MCA § 7a) (internal quotation marks omitted). Subsection

(b) states:

The amendment made by subsection (a) shall take

effect on the date of the enactment of this Act, and

shall apply to all cases, without exception, pending

on or after the date of the enactment of this Act

which relate to any aspect of the detention, trans-

fer, treatment, trial, or conditions of detention of an

alien detained by the United States since Septem-

ber 11, 2001.

MCA § 7(b) (emphasis added).

The first question is whether the MCA applies to the

detainees’ habeas petitions. If the MCA does apply, the sec-

ond question is whether the statute is an unconstitutional

suspension of the writ of habeas corpus.’

As to the application of the MCA to these lawsuits, sec-

tion 7(b) states that the amendment to the habeas corpus

statute, 28 U.S.C. § 2241(e), “shall apply to all cases, without

exception, pending on or after the date of the enactment”

that relate to certain subjects. The detainees’ lawsuits fall

within the subject matter covered by the amended § 2241(e);

each case relates to an “aspect” of detention and each deals

with the detention of an “alien” after September 11, 2001.

The MCA brings all such “cases, without exception” within

the new law.

Everyone who has followed the interaction between

Congress and the Supreme Court knows full well that one of

the primary purposes of the MCA was to overrule Hamdan.’

' Section 7(a) of the MCA eliminates jurisdiction over non-habeas

claims by aliens detained as enemy combatants. That alone is sufficient to

require dismissal even of pending non-habeas claims. See Bruner v.

United States, 343 U.S. 112, 116-17 (1952). Section 7(b) reinforces this

result.

? Without exception, both the proponents and opponents of section 7

understood the provision to eliminate habeas jurisdiction over pending

cases. See, e.g., 152 Cong. Rec. S10357 (daily ed. Sept. 28, 2006) (state-

ment of Sen. Leahy) (“The habeas stripping provisions in the bill go far

beyond what Congress did in the Detainee Treatment Act... This new

bill strips habeas jurisdiction retroactively, even for pending cases.”); id.

at S10367 (statement of Sen. Graham) (“The only reason we are here is

because of the Hamdan decision. The Hamdan decision did not apply .. .

the |DTA| retroactively, so we have about 200 and some habeas cases left

unattended and we are going to attend to them now.”); id. at S10403

(statement of Sen. Cornyn) (“{OJnce . . . section 7 is effective, Congress

will finally accomplish what it sought to do through the [DTA} last year.

It will finally get the lawyers out of Guantanamo Bay. It will substitute

the blizzard of litigation instigated by Rasul v. Bush with a narrow DC

Circuit-only review of the [CSRT] hearings.”); id. at S10404 (statement of

Sen. Sessions) (“It certainly was not my intent, when I voted for the DTA,

Everyone, that is, except the detainees. Their cases, they

argue, are not covered. The arguments are creative but not

cogent. To accept them would be to defy the will of Con-

gress. Section 7(b) could not be clearer. It states that “the

amendment made by subsection (a)”—which repeals habeas

jurisdiction—applies to “all cases, without exception” relat-

ing to any aspect of detention. It is almost as if the propo-

nents of these words were slamming their fists on the table

shouting “When we say ‘all,’ we mean all—-without excep-

tion!”

[*4] The detainees of course do not see it that way.

They say Congress should have expressly stated in section

7(b) that habeas cases were included among “all cases, with-

out exception, pending on or after” the MCA became law.

Otherwise, the MCA does not represent an “unambiguous

statutory directive[]” to repeal habeas corpus jurisdiction.

INS v. St. Cyr, 533 U.S. 289, 299 (2001). This is nonsense.

Section 7(b) specifies the effective date of section 7(a). The

detainees’ argument means that Congress, in amending the

habeas statute (28 U.S.C. § 2241), specified an effective date

only for non-habeas cases. Of course Congress did nothing

of the sort. Habeas cases are simply a subset of cases deal-

to exempt all of the pending Guantanamo lawsuits from the provisions of

that act. * * * Section 7 of the |MCA\| fixes this feature of the DTA and

ensures that there is no possibility of confusion in the future. ... I don’t

see how there could be any confusion as to the effect of this act on the

pending Guantanamo litigation. The MCA’s jurisdictional bar applies to

that litigation ‘without exception.”’); 152 Cong. Rec. H7938 (daily ed. Sept.

29, 2006) (statement of Rep. Hunter) (“The practical effect of [section 7]

will be to eliminate the hundreds of detainee lawsuits that are pending in

courts throughout the country and to consolidate all detainee treatment

cases in the D.C. Cireuit.”); id. at H7942 (Rep. Jackson-Lee) (“The habeas

provisions in the legislation are contrary to congressional intent in the

[DTA]. In that act, Congress did not intend to strip the courts of jurisdic-

tion over the pending habeas [cases |.”).

' Congress has rarely found it necessary to emphasize the absence of

exceptions to a clear rule. Indeed, the use of “without exception” to em-

phasize the word “all” occurs in only one other provision of the U.S. Code.

See 48 U.S.C. § 526(a).

ing with detention. See, e.g., Preiser v. Rodriguez, 411 U.S.

475, 484 (1973). Congress did not have to say that “the

amendment made by subsection (a)”—which already ex-

pressly includes habeas cases—shall take effect on the date

of enactment and shall apply to “all cases, without exception,

including habeas cases.” The St. Cyr rule of interpretation

the detainees invoke demands clarity, not redundancy.

The detainees also ask us to compare the language of

section 7(b) to that of section 3 of the MCA. Section 3, enti-

tled “Military Commissions,” creates jurisdiction in the D.C.

Circuit for review of military commission decisions, see 10

U.S.C. § 950g. It then adds 10 U.S.C. § 950j, which deals

with the finality of military commission decisions. Section

950} strips federal courts of jurisdiction over any pending or

future cases that would involve review of such decisions:

Except as otherwise provided in this chapter and

notwithstanding any other provision of law (includ-

ing section 2241 of title 28 or any other habeas cor-

pus provision), no court, justice, or judge shall have

jurisdiction to hear or consider any claim or cause of

action whatsoever, including any action pending on

or filed after the date of the enactment of the Mili-

tary Commissions Act of 2006, relating to the

prosecution, trial, or judgment of a military com-

mission under this chapter, including challenges to

the lawfulness of procedures of military commis-

sions under this chapter.

* If section 7(b) did not include habeas cases among cases “which re-

late to any aspect of the detention, transfer, treatment, trial, or conditions

of detention,” it would be inconsistent with section 7(a). Section 7(a) of

the MCA first repeals jurisdiction “to hear or consider an application for a

writ of habeas corpus” by detainees. 28 U.S.C. § 2241(e)(1). It then re-

peals jurisdiction over “any other action . . . relating to any aspect of the

detention, transfer, treatment, trial, or conditions of confinement” of a

detainee, id. § 2241(e)(2) (emphasis added), thus signifying that Congress

considered habeas cases as cases relating to detention, as indeed they are.

10 U.S.C. § 950j(b) (emphasis added). The detainees main-

tain that § 950) calls into question Congress’s intention to

apply section 7(b) to pending habeas cases.

The argument goes nowhere. Section 7(b), read in con-

junction with section 7(a), is no less explicit than § 950). Sec-

tion 7(a) strips jurisdiction over detainee cases, including

habeas cases, and section 7(b) makes section 7(a) applicable

to pending cases. Section 950} accomplishes the same thing,

but in one sentence. A drafting decision to separate section

7 into two subsections—one addressing the scope of the ju-

risdictional bar, the other addressing how the bar applies to

pending cases—makes no legal difference.”

II.

This brings us to the constitutional issue: whether the

MCA, in depriving the courts of jurisdiction over the detain-

ees’ habeas petitions, violates the Suspension Clause of the

Constitution, U.S. Const., art. I, § 9, cl. 2, which states that

“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 detainees suggest that federal courts retain some form of re-

sidual common law jurisdiction over habeas petitions. Ex parte Bollman,

8 US. (4 Cranch) 75, 95 (1807), holds the opposite. See Kx parte

McCardle, 74 U.S. 506 (1868). “Jurisdiction of the lower federal courts is

... limited to those subjects encompassed within a statutory grant of ju-

risdiction.” Jus. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de

Guinee, 456 U.S. 694, 701 (1982). The observations about common law

habeas in Rasul, 542 U.S. at 481-82, referred to the practice in England.

Even if there were such a thing as common law jurisdiction in the federal

courts, § 2241(e)(1) quite clearly eliminates all “jurisdiction to hear or con-

sider an application for a writ of habeas corpus” by a detainee, whatever

the source of that jurisdiction.

In order to avoid “serious ‘due process,’ Suspension Clause, and Ar-

ticle III problems,” the detainees also urge us not to read section 7 of the

MCA to eliminate habeas jurisdiction over Geneva Convention claims.

But that reading is unavoidable. Section 7 is unambiguous, as is section

5(a), which states that “No person may invoke the Geneva Conventions or

any protocols thereto in any habeas corpus or other civil action or

proceeding . .. as a source of rights in any court of the United States.”

10a

The Supreme Court has stated the Suspension Clause

protects the writ “as it existed in 1789,” when the first Judi-

ciary Act created the federal courts and granted jurisdiction

to issue writs of habeas corpus. St. Cyr, 533 U.S. at 301; ef.

Henry J. Friendly, /s Innocence Irrelevant? Collateral At-

tack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 170

(1970). The detainees rely mainly on three cases to claim

that in 1789 the privilege of the writ extended to aliens out-

side the sovereign’s territory. In Lockington’s Case, Bright.

(N.P.) 269 (Pa. 1813), a British resident of Philadelphia had

been imprisoned after failing to comply with a federal mar-

shal’s order to relocate. The War of 1812 made Lockington

an “enemy alien” under the Alien Enemies Act of 1798. Al-

though he lost on the merits of his petition for habeas corpus

before the Pennsylvania Supreme Court, two of three Penn-

sylvania justices held that he was entitled to review of his

detention. In The Case of Three Spanish Sailors, 96 Eng.

Rep. 775 (C.P. 1779), three Spanish seamen had boarded a

merchant vesse! bound for England with a promise of wages

on arrival. After arriving in England, the English captain

refused to pay their wages and turned them over to a war-

ship as prisoners of war. The King’s Bench denied the sail-

ors’ petitions because they were “alien enemies and prison-

ers of war, and therefore not entitled to any of the privileges

of Englishmen; much less to be set at liberty on a habeas

corpus.” Jd. at 776. The detainees claim that, as in Locking-

ton’s Case, the King’s Bench exercised jurisdiction and

reached the merits. The third case—Rez v. Schiever, 97

Eng. Rep. 551 (K.B. 1759)—involved a citizen of Sweden in-

tent on entering the English merchant trade. While at sea

on an English merchant’s ship, a French privateer took

Schiever along with the rest of the crew as prisoners, trans-

° During this period, state courts often employed the writ of habeas

corpus to inquire into the legality of federal detention. The Supreme

Court later held in Ableman v. Booth, 62 U.S. (21 How.) 506 (1859), and

Tarble’s Case, 80 U.S. (13 Wall.) 397 (1871), that state courts had no such

power.

lla

ferred the crew to another French ship, and let the English

prisoners go free. An English ship thereafter captured the

French ship and its crew, and carried them to Liverpool

where Schiever was imprisoned. From Liverpool Schiever

petitioned for habeas corpus, claiming he was a citizen of

Sweden and only by force entered the service of the French.

The court denied him relief because it found ample evidence

that he was a prisoner of war. /d. at 552.

{[*5] None of these cases involved an alien outside the

territory of the sovereign. Lockington was a resident of

Philadelphia. And the three Spanish sailors and Schiever

were all held within English sovereign territory.’ The de-

tainees cite no case and no historical treatise showing that

the English common law writ of habeas corpus extended to

aliens beyond the Crown’s dominions. Our review shows the

contrary. See William F. Duker, A Constitutional History of

Habeas Corpus 53 (1980); 9 William Holdsworth, A History

of English Law 116-17, 124 (1982 ed.); 3 Blackstone, Com-

mentaries 131 (1768); see also 1 Op. Att’y Gen. 47 (1794); In

re Ning Yi-Ching, 56 T. L. R. 3, 5 (Vacation Ct. 1939) (noting

prior judge “had listened in vain for a case in which the writ

of habeas corpus had issued in respect of a foreigner de-

tained in a part of the world which was not a part of the

King’s dominions or realm”). Robert Chambers, the succes-

sor to Blackstone at Oxford, wrote in his lectures that the

writ of habeas corpus extended only to the King’s dominions.

2 Robert Chambers, A Course of Lectures on the English

Law Delivered at Oxford 1767-1773 (composed in association

with Samuel Johnson), at 7-8 (Thomas M. Curley ed., 1986).

Chambers cited Rex v. Cowle, 97 Eng. Rep. (2 Burr.) 587

(K.B. 1759), in which Lord Mansfield stated that “[t]o foreign

’ The dissent claims that the difference between Schiever and the

detainees is “exceedingly narrow,” Dissent at 14, because Schiever was

brought involuntarily to Liverpool. For this proposition, the dissent cites

United States vy. Verdugo-Urquidez, 494 U.S. 259, 271 (1990). Verdugo-

Urquidez was a Fourth Amendment case. Obviously, it had nothing to say

about habeas corpus in Eighteenth Century England.

l2a

dominions . . . this Court has no power to send any writ of

any kind. We cannot send a habeas corpus to Scotland, or to

the electorate; but to Ireland, the Isle of Man, the planta-

tions [American colonies] ... we may.” Every territory that

Mansfield, Blackstone, and Chambers cited as a jurisdiction

to which the writ extended (e.g., Ireland, the Isle of Man, the

colonies, the Cinque Ports, and Wales) was a sovereign ter-

ritory of the Crown.

When agents of the Crown detained prisoners outside

the Crown’s dominions, it was understood that they were

outside the jurisdiction of the writ. See Holdsworth, supra,

at 116-17. Even British citizens imprisoned in “remote is-

lands, garrisons, and other places” were “prevent{ed] from

the benefit of the law,” 2 Henry Hallam, The Constitutional

History of England 127-28 (William S. Hein Co. 1989) (1827),

which included access to habeas corpus, see Duker, supra, at

51-53; Holdsworth, supra, at 116; see also Johan Steyn,

Guantanamo Bay: The Legal Black Hole, 53 Int’]1 & Comp.

L.Q. 1, 8 (2004) (“the writ of habeas corpus would not be

available” in “remote islands, garrisons, and other places”

(internal quotation marks omitted)). Compliance with a writ

from overseas was also completely impractical given the ha-

beas law at the time. In Cowle, Lord Mansfield explained

that even in the far off territories “annexed to the Crown,”

the Court would not send the writ, “notwithstanding the

power.” 97 Eng. Rep. at 600. This is doubtless because of

the Habeas Corpus Act of 1679. The great innovation of this

statute was in setting time limits for producing the prisoner

and imposing fines on the custodian if those limits were not

met. See Chambers, supra, at 11. For a prisoner detained

over 100 miles from the court, the detaining officer had

twenty days after receiving the writ to produce the body

before the court. See id. If he did not produce the body, he

incurred a fine. One can easily imagine the practical prob-

lems this would have entailed if the writ had run outside the

sovereign territory of the Crown and reached British sol-

diers holding foreign prisoners in overseas conflicts, such as

the War of 1812. The short of the matter is that given the

history of the writ in England prior to the founding, habeas

13a

corpus would not have been available in 1789 to aliens with-

out presence or property within the United States.

[*6] Johnson v. Eisentrager, 339 U.S. 763 (1950), ends

any doubt about the scope of common law habeas. “We are

cited to no instance where a court, in this or any other coun-

try where the writ is known, has issued it on behalf of an

alien enemy who, at no relevant time and in no stage of his

captivity, has been within its territorial jurisdiction. Noth-

ing in the text of the Constitution extends such a right, nor

does anything in our statutes.” Jd. at 768; see also Note,

Habeas Corpus Protection Against Illegal Extraterritorial

Detention, 51 Colum. L. Rev. 368, 368 (1951). The detainees

claim they are in a different position than the prisoners in

Eisentrager, and that this difference is material for purposes

of common law habeas." They point to dicta in Rasul, 542

U.S. 481-82, in which the Court discussed English habeas

cases and the “historical resch of the writ.” Rasul refers to

several English and American cases involving varying com-

binations of territories of the Crown and relationships be-

tween the petitioner and the country in which the writ was

sought. See id. But as Judge Robertson found in Hamdan,

“(njot one of the cases mentioned in Rasul held that an alien

captured abroad and detained outside the United States—or

in ‘territory over which the United States exercises exclu-

sive jurisdiction and control,’ Rasul, 542 U.S. at 475—had a

common law or constitutionally protected right to the writ of

habeas corpus.” Hamdan v. Rumsfeld, No. 04-1519, 2006

WL 3625015, at *7 (D.D.C. Dec. 13, 2006). Justice Scalia

made the same point in his Rasul dissent, see Rasul, 542

U.S. at 502-05 & n.5 (Scalia, J., dissenting) (noting the ab-

sence of “a single case holding that aliens held outside the

territory of the sovereign were within reach of the writ”),

* The detainees are correct that they are not “enemy aliens.” That

term refers to citizens of a country with which the United States is at war.

See Al Odah, 321 F.3d at 1139-40. But under the common law, the disposi-

tive fact was not a petitioner’s enemy alien status, but his lack of presence

within any sovereign territory.

l4a

and the dissent acknowledges it here, see Dissent at 12. We

are aware of no case prior to 1789 going the detainees’ way,’

and we are convinced that the writ in 1789 would not have

been available to aliens held at an overseas military base

leased from a foreign government.

The detainees encounter another difficulty with their

Suspension Clause claim. Precedent in this court and the

Supreme Court holds that the Constitution does not confer

rights on aliens without property or presence within the

United States. As we explained in Al Odah, 321 F.3d at

1140-41, the controlling case is Johnson v. Eisentrager.

There twenty-one German nationals confined in custody of

the U.S. Army in Germany filed habeas corpus petitions.

Although the German prisoners alleged they were civilian

agents of the German government, a military commission

convicted them of war crimes arising from military activity

against the United States in China after Germany’s surren-

der. They claimed their convictions and imprisonment vio-

lated various constitutional provisions and the Geneva Con-

ventions. The Supreme Court rejected the proposition “that

the Fifth Amendment confers rights upon all persons, what-

ever their nationality, wherever they are located and what-

ever their offenses,” 339 U.S. at 783. The Court continued:

“If the Fifth Amendment confers its rights on all the world

... [it] would mean that during military occupation irrecon-

cilable enemy elements, guerrilla fighters, and ‘werewolves’

could require the American Judiciary to assure them free-

doms of speech, press, and assembly as in the First Amend-

ment, right to bear arms as in the Second, security against

‘unreasonable’ searches and seizures as in the Fourth, as

* The dissent claims the lack of any case on point is a result of the

unique combination of circumstances in this case. But extraterritorial

detention was not unknown in Eighteenth Century England. See Holds-

worth, supra, at 116-17; Duker, supra, at 51-53. As noted, supra, these

prisoners were beyond the protection of the law, which included access to

habeas corpus. And Eisentrager (and the two hundred other alien peti-

tioners the court noted, see 339 U.S. at 768 n.l) involved both extraterrito-

rial detention and alien petitioners.

15a

well as rights to jury trial as in the Fifth and Sixth Amend-

ments.” /d. at 784. (Shortly before Germany’s surrender,

the Nazis began training covert forces called “werewolves”

to conduct terrorist activities during the Allied occupation.

See http://www.archives.gov/iwg/declassified_records/oss_re

cords_263_wilhelm_hoettl.html.)

(*7] Later Supreme Court decisions have followed Eis-

entrager. In 1990, for instance, the Court stated that Fisen-

trager “rejected the claim that aliens are entitled to Fifth

Amendment rights outside the sovereign territory of the

United States.” United States v. Verdugo-Urquidez, 494

U.S. 259, 269 (1990). After describing the facts of Fisen-

trager and quoting from the opinion, the Court concluded

that with respect to aliens, “our rejection of extraterritorial

application of the Fifth Amendment was emphatic.” Jd. By

analogy, the Court held that the Fourth Amendment did not

protect nonresident aliens against unreasonable searches or

seizures conducted outside the sovereign territory of the

United States. Jd. at 274-75. Citing Eisentrager again, the

Court explained that to extend the Fourth Amendment to

aliens abroad “would have significant and deleterious conse-

quences for the United States in conducting activities be-

yond its boundaries,” particularly since the government

“frequently employs Armed Forces outside this country,” id.

at 273. A decade after Verdugo-Urquidez, the Court—again

citing Eisentrager—found it “well established that certain

constitutional protections available to persons inside the

United States are unavailable to aliens outside of our geo-

graphic borders.” Zadvydas v. Davis, 533 U.S. 678, 693

(2001)."°

' The Rasul decision, resting as it did on statutory interpretation,

see 542 U.S. at 475, 483-84, could not possibly have affected the constitu-

tional holding of Eisentrager. Even if Rasul somehow calls Eisentrager’s

constitutional holding into question, as the detainees suppose, we would

be bound to follow Eisentrager. See Rodriguez de Quijas v. Shear-

son/American Exp., Inc., 490 U.S. 477, 484-85 (1989).

l6a

Any distinction between the naval base at Guantanamo

Bay and the prison in Landsberg, Germany, where the peti-

tioners in Eisentrager were held, is immaterial to the appli-

cation of the Suspension Clause. The United States occupies

the Guantanamo Bay Naval Base under an indefinite lease it

entered into in 1903. See Al Odah, 321 F.3d at 1142. The

text of the lease and decisions of circuit courts and the Su-

preme Court all make clear that Cuba—not the United

States—has sovereignty over Guantanamo Bay. See Ver-

milya-Brown Co. v. Connell, 335 U.S. 377, 381 (1948); Cuban

Am. Bar Ass'n v. Christopher, 43 F.3d 1412 (11th Cir. 1995).

The “determination of sovereignty over an area,” the Su-

preme Court has held, “is for the legislative and executive

departments.” Vermilya-Brown, 335 U.S. at 380. Here the

political departments have firmly and clearly spoken:

“United States,’ when used in a geographic sense ... does

not include the United States Naval Station, Guantanamo

Bay, Cuba.” DTA § 1005(g).

The detainees cite the Jnsular Cases in which “funda-

mental personal rights” extended to U.S. territories. See

Balzac v. Porto Rico, 258 U.S. 298, 312-13 (1922); Dorr v.

United States, 195 U.S. 138, 148 (1904); see also Ralpho v.

Bell, 569 F.2d 607 (D.C. Cir. 1977). But in each of those

cases, Congress had exercised its power under Article IV,

Section 3 of the Constitution to regulate “Territory or other

Property belonging to the United States,” U.S. Const., art.

IV, § 3, cl. 2. These cases do not establish anything regard-

ing the sort of de facto sovereignty the detainees say exists

at Guantanamo. Here Congress and the President have spe-

cifically disclaimed the sort of territorial jurisdiction they

asserted in Puerto Rico, the Philippines, and Guam.

[*8] Precedent in this circuit also forecloses the detain-

- ees’ claims to constitutional rights. In Harbury v. Deutch,

233 F.3d 596, 604 (D.C. Cir. 2000), rev'd on other grounds sub

nom. Christopher v. Harbury, 536 U.S. 403 (2002), we

quoted extensively from Verdugo-Urquidez and held that

the Court’s description of Eisentrager was “firm and consid-

ered dicta that binds this court.” Other decisions of this

17a

court are firmer still. Citing Fisentrager, we held in

Pauling v. McElroy, 278 F.2d 252, 254 n.3 (D.C. Cir. 1960)

(per curiam), that “non-resident aliens . . . plainly cannot ap-

peal to the protection of the Constitution or laws of the

United States.” The law of this circuit is that a “foreign en-

tity without property or presence in this country has no con-

stitutional rights, under the due process clause or other-

wise.” People’s Mojahedin Org. of Iran v. U.S. Dep’t of

State, 182 F.3d 17, 22 (D.C. Cir. 1999); see also 32 County

Sovereignty Comm. v. U.S. Dep't of State, 292 F.3d 797, 799

(D.C. Cir. 2002).""

As against this line of authority, the dissent offers the

distinction that the Suspension Clause is a limitation on con-

gressional power rather than a constitutional right. But this

is no distinction at all. Constitutional rights are rights

against the government and, as such, are restrictions on

governmental power. See H.P. Hood & Sons, Inc. v. Du

Mond, 336 U.S. 525, 534 (1949) (“Even the Bill of Rights

amendments were framed only as a limitation upon the pow-

ers of Congress.”).'* Consider the First Amendment. (In

contrasting the Suspension Clause with provisions in the Bill

of Rights, see Dissent at 3, the dissent is careful to ignore

the First Amendment.) Like the Suspension Clause, the

First Amendment is framed as a limitation on Congress:

“Congress shall make no law ....” Yet no one would deny

'' The text of the Suspension Clause also does not lend itself freely

to extraterritorial application. The Clause permits suspension of the writ

only in cases of “Rebellion or Invasion,” neither of which is applicable to

foreign military conflicts. See Hamdi v. Rumsfeld, 542 U.S. 507, 593-94

(2004) (Thomas, J., dissenting); see also J. Andrew Kent, A Tertual and

Historical Case Against a Global Constitution, 95 Geo. L.J. (forthcoming

2007) (manuscript at 59-60, available af http://ssrn.com/abstract =888602).

'? James Madison’s plan was to insert almost the entire Bill of Rights

into the Constitution rather than wait for amendment. His proposed loca-

tion of the Bill of Rights? Article I, Section 9—-next to the Suspension

Clause. See Thomas Y. Davies, Recovering the Original Fourth Amend-

ment, 98 Mich. L. Rev. 547, 700-01 & n.437 (1999).

“~

18a

that the First Amendment protects the rights to free speech

and religion and assembly.

The dissent’s other arguments are also filled with holes.

It is enough to point out three of the larger ones.

There is the notion that the Suspension Clause is differ-

ent from the Fourth, Fifth, and Sixth Amendments because

it does not mention individuals and those amendments do

(respectively, “people,” “person,” and “the accused”). See

Dissent at 3. Why the dissent thinks this is significant

eludes us. Is the point that if a provision does not mention

individuals there is no constitutional right? That cannot be

right. The First Amendment’s guarantees of freedom of

speech and free exercise of religion do not mention individu-

als; nor does the Eighth Amendment’s prohibition on cruel

and unusual punishment or the Seventh Amendment’s guar-

antee of a civil jury. Of course it is fair to assume that these

provisions apply to individuals, just as it is fair to assume

that petitions for writs of habeas corpus are filed by indi-

viduals.

The dissent also looks to the Bill of Attainder and Ex

Post Facto Clauses, both located next to the Suspension

Clause in Article I, Section 9. We do not understand what

the dissent is trying to make of this juxtaposition. The cita-

tion to United States v. Lovett, 328 U.S. 303 (1946), is par-

ticularly baffling. Lovett held only that the Bill of Attainder

Clause was justiciable. The dissent’s point cannot be that

the Bill of Attainder Clause and the Ex Post Facto Clause

do not protect individual rights. Numerous courts have held

the opposite." “The fact that the Suspension Clause abuts

'' See South Carolina v. Katzenbach, 383 U.S. 301, 323-24 (1966)

(“{CJourts have consistently regarded the Bill of Attainder Clause of Arti-

cle I and the principle of the separation of powers only as protections for

individual persons and private groups .. . .”) (citing United States v.

Brown, 381 U.S. 437 (1965); Ex parte Garland, 71 U.S. (4 Wall.) 333

(1866)); see also Wilkinson v. Dotson, 544 U.S. 74, 82 (2005); Weaver v.

Graham, 450 U.S. 24, 28-29 (1981); Nixon v. Adm’r of Gen. Servs., 433 U.S.

425, 468-69 (1977); Shabazz v. Gabry, 123 F.3d 909, 912 (6th Cir. 1997).

19a

the prohibitions on bills of attainder and ex post facto laws,

provisions well-accepted to protect individual liberty, fur-

ther supports viewing the habeas privilege as a core indi-

vidual right.” Amanda L. Tyler, Js Suspension a Political

Question?, 59 Stan. L. Rev. 333, 374 & n.227 (2006) (empha-

sis added)."*

[*9] Why is the dissent so fixated on how to characterize

the Suspension Clause? The unstated assumption must be

that the reasoning of our decisions and the Supreme Court’s

in denying constitutional rights to aliens outside the United

States would not apply if a constitutional provision could be

characterized as protecting something other than a “right.”

On this theory, for example, aliens outside the United States

are entitled to the protection of the Separation of Powers

because they have no individual rights under the Separation

of Powers. Where the dissent gets this strange idea is a

mystery, as is the reasoning behind it.

Il.

Federal courts have no jurisdiction in these cases. In

supplemental briefing after enactment of the DTA, the gov-

ernment asked us not only to decide the habeas jurisdiction

question, but also to review the merits of the detainees’ des-

ignation as enemy combatants by their Combatant Status

Review Tribunals. See DTA § 1005(e)(2)."° The detainees

objected to converting their habeas appeals to appeals from

their Tribunals. In briefs filed after the DTA became law

and after the Supreme Court decided Hamdan, they argued

'* Accord Jay S. Bybee, Common Ground: Robert Jackson, Antonin

Scalia, and a Power Theory of the First Amendment, 75 Tul. L. Rev. 251,

318, 321 (2000) (“[W le could easily describe [Article 1,] Section 9 as a bill of

rights for the people of the United States.”).

'? See Supplemental Br. of the Federal Parties Addressing the De-

tainee Treatment Act of 2005 53-54 (“This Court can and should convert

the pending appeals into petitions for review under [DTA section]

1005(e)(2).”).

20a

that we were without authority to do so.'° Even if we have

authority to convert the habeas appeals over the petitioners’

objections, the record does not have sufficient information to

perform the review the DTA allows. Our only recourse is to

vacate the district courts’ decisions and dismiss the cases for

lack of jurisdiction.

So ordered.

'° See The Guantanamo Detainees’ Supplemental Br. Addressing the

Effect of the Supreme Ct.’s Op. in Hamdan v. Rumsfeld, 126 S. Ct. 2749

(2006), on the Pending Appeals 8-9 (“The detainees in the pending peti-

tions challenge the lawfulness of their detentions—not the subsequent

CSRT decisions . . . .”); Corrected Supplemental Br. of Pet’rs Boumediene,

et al., & Khalid Regarding Section 1005 of the Detainee Treatment Act of

2005 56-59 (“Nothing in the [DTA] authorizes the Court to ‘convert’ Peti-

tioners’ notices of appeal of the district court’s judgment into original peti-

tions for review of CSRT decisions under section 1005(e)(2) of the Act.”);

The Guantanamo Detainees’ Corrected Second Supplemental Br.

Addressing the Effect of the Detainee Treatment Act of 2005 on this Ct.’s

Jurisdiction over the Pending Appeals 43-44 (“(TJhis court should not

convert these petitions into petitions for review under the DTA as the

government suggests.”’).

2la

ROGERS, Circuit Judge, dissenting.

I can join neither the reasoning of the court nor its con-

clusion that the federal courts lack power to consider the

detainees’ petitions. While I agree that Congress intended

to withdraw federal jurisdiction through the Military Com-

missions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600

(“MCA”), the court’s holding that the MCA is consistent

with the Suspension Clause of Article I, section 9, of the

Constitution does not withstand analysis. By concluding that

this court must reject “the detainees’ claims to constitutional

rights,” Op. at 21, the court fundamentally misconstrues the

nature of suspension: Far from conferring an individual

right that might pertain only to persons substantially con-

nected to the United States, see United States v. Verdugo-

Urquidez, 494 U.S. 259, 271 (1990), the Suspension Clause is

a limitation on the powers of Congress. Consequently, it is

only by misreading the historical record and ignoring the

Supreme Court’s well-considered and binding dictum in Ra-

sul v. Bush, 542 U.S. 466, 481-82 (2004), that the writ at com-

mon law would have extended to the detainees, that the court

can conclude that neither this court nor the district courts

have jurisdiction to consider the detainees’ habeas claims.

A review of the text and operation of the Suspension

Clause shows that, by nature, it operates to constrain the

powers of Congress. Prior to the enactment of the MCA, the

Supreme Court acknowledged that the detainees held at

Guantanamo had a statutory right to habeas corpus. Rasul,

542 U.S. at 483-84. The MCA purports to withdraw that

right but does so in a manner that offends the constitutional

constraint on suspension. The Suspension Clause limits the

removal of habeas corpus, at least as the writ was under-

stood at common law, to times of rebellion or invasion unless

Congress provides an adequate alternative remedy. The writ

would have reached the detainees at common law, and Con-

gress has neither provided an adequate alternative remedy,

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

148, Div. A, tit. X, 119 Stat. 2680, 2739 (“DTA”), nor invoked

the exception to the Clause by making the required findings

22a

to suspend the writ. The MCA is therefore void and does not

deprive this court or the district courts of jurisdiction.

[*10] On the merits of the detainees’ appeal in Khalid v.

Bush, 355 F. Supp. 2d 311 (D.D.C. 2005) and the cross-

appeals in Jn re Guantanamo Detainee Cases, 355 F. Supp.

2d 443 (D.D.C. 2005), I would affirm in part in Guantanamo

Detainee Cases and reverse in Khalid and remand the cases

to the district courts.

Where a court has no jurisdiction it is powerless to act.

See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-74

(1803). But a statute enacted by Congress purporting to de-

prive a court of jurisdiction binds that court only when Con-

gress acts pursuant to the powers it derives from the Con-

stitution. The court today concludes that the Suspension

Clause is an individual right that cannot be invoked by the

detainees. See Op. at 22. The text of the Suspension Clause

and the structure of the Constitution belie this conclusion.

The court further concludes that the detainees would have

had no access to the writ of habeas corpus at common law.

See Op. at 14-17. The historical record and the guidance of

the Supreme Court disprove this conclusion.

In this Part, I address the nature of the Suspension

Clause, the retroactive effect of Congress’s recent enact-

ment on habeas corpus—the MCA—and conclude with an

assessment of the effect of the MCA in light of the dictates

of the Constitution.

The court holds that Congress may suspend habeas cor-

pus as to the detainees because they have no individual

rights under the Constitution. It is unclear where the court

finds that the limit on suspension of the writ of habeas cor-

pus is an individual entitlement. The Suspension Clause it-

self makes no reference to citizens or even persons. Instead,

it directs that “[tJhe Privilege of the Writ of Habeas Corpus

shall not be suspended, unless when in Cases of Rebellion or

23a

Invasion the public Safety may require it.” U.S. Const., art.

I, § 9, cl. 2. This mandate appears in the ninth section of Ar-

ticle I, which enumerates those actions expressly excluded

from Congress’s powers. Although the Clause does not spe-

cifically say so, it is settled that only Congress may do the

suspending. Ex parte Bollman, 8 U.S. (4 Cranch) 75, 101

(1807); see Hamdi v. Rumsfeld, 542 U.S. 507, 562 (2004)

(Scalia, J., dissenting); Ex parte Merryman, 17 F. Cas. 144,

151-152 (No. 9487) (Taney, Circuit Justice, C.C.D. Md. 1861);

2 Joseph Story, Commentaries on the Constitution of the

United States § 1342 (5th ed. 1891). In this manner, by both

its plain text and inclusion in section 9, the Suspension

Clause differs from the Fourth Amendment, which estab-

lishes a “right of the people,” the Fifth Amendment, which

limits how a “person shall be held,” and the Sixth Amend-

ment, which provides rights to “the accused.” These provi-

sions confer rights to the persons listed. '

The other provisions of Article I, section 9, indicate how

to read the Suspension Clause. The clause immediately fol-

lowing provides that “[nJo Bill of Attainder or ex post facto

Law shall be passed.”* The Supreme Court has construed

' The Suspension Clause is also distinct from the First Amendment,

which has been interpreted as a guarantor of individual rights. See, e.g.,

United States v. Robel, 389 U.S. 258, 263 (1967); Gitlow v. New York, 268

U.S. 652, 666 (1925). The court cannot seriously maintain that the two

provisions are alike while acknowledging that the First Amendment con-

fers an individual right enforceable by the courts and simultaneously

claiming that the Suspension Clause does not, see Op. at 13 n.5 (citing

Bollman, 8 U.S. (4 Cranch) at 95); see also In re Barry, 42 F. 113, 122

(C.C.S.D.N.Y. 1844), error dismissed sub nom. Barry v. Mercein, 46 U.S.

103 (1847) (“The ninth section of the first article of the constitution, par. 2,

declaring that ‘the privilege of the writ of habeas corpus shall not be sus-

pended unless, when in cases of rebellion or invasion, the public safety

may require it,’ does not purport to convey power or jurisdiction to the

judiciary. It is in restraint of executive and legislative powers, and no

further affects the judiciary than to impose on them the necessity, if the

privilege of habeas corpus is suspended by any authority, to decide whether

the exigency demanded by the constitution exists to sanction the act.”).

? Suspensions and bills of attainder have a shared history. In Eng-

land, suspensions occasionally named specific individuals and therefore

24a

the Attainder Clause as establishing a “category of Congres-

sional actions which the Constitution barred.” United States

v. Lovett, 328 U.S. 303, 315 (1946). In Lovett, the Court dis-

missed the possibility that an Act of Congress in violation of

the Attainder Clause was non-justiciable, remarking:

{*11] Our Constitution did not contemplate such a

result. To quote Alexander Hamilton,

* * * a limited constitution * * * [is] one

which contains certain specified exceptions

to the legislative authority; such, for in-

stance, as that it shall pass no bills of at-

tainder, no ex post facto laws, and the like.

Limitations of this kind can be preserved

in practice no other way than through the

medium of the courts of justice; whose

duty it must be to declare all acts contrary

to the manifest tenor of the Constitution

void. Without this, all the reservations of

particular rights or privileges would

amount to nothing.

Id. at 314 (quoting The Federalist No. 78) (emphasis added)

(alteration and omissions in original). So too, in Weaver v.

Graham, 450 U.S. 24, 28-29 & n.10 (1981), where the Court

noted that the ban on ex post facto legislation “restricts gov-

ernmental power by restraining arbitrary and potentially

vindictive legislation” and acknowledged that the clause

“confinfes] the legislature to penal decisions with prospec-

tive effect.” See also Marbury, 5 U.S. (1 Cranch) at 179-80;

Foretich v. United States, 351 F.3d 1198, 1216-26 (D.C. Cir.

2003). For like reasons, any act in violation of the Suspen-

sion Clause is void, cf. Lovett, 328 U.S. at 316, and cannot

operate to divest a court of jurisdiction.’

amounted to bills of attainder. See Rex A. Collings, Jr., Habeas Corpus

for Convicts—Constitutional Right or Legislative Grace?, 40 Cal. L. Rev.

335, 339 (1952).

The court cites a number of cases for the proposition that the At-

tainder Clause confers an individual right instead of operating as a struc-

25a

The court dismisses the distinction between individual

rights and limitations on Congress’s powers. It chooses to

make no affirmative argument of its own, instead hoping to

rebut the sizable body of conflicting authorities.

The court appears to believe that the Suspension Clause

is just like the constitutional amendmenrits that form the Bill

of Rights.’ It is a truism, of course, that individual rights

tural limitation on Congress. See Op. at 23 n. 13. None of these cases

makes the court’s point. In South Carolina v. Katzenbach, 383 U.S. 301,

323-24 (1966), the Supreme Court held that it is not a bill of attainder for

Congress to punish a state. This speaks to the definition of a bill of attain-

der and says nothing about the operation of the Attainder Clause. Weaver

v. Graham, 450 U.S. 24, 30 (1981), says the opposite of what the court as-

serts. In Weaver, the Supreme Court emphasized that the Ex Post Facto

Clause is not intended to protect individual rights but governs the opera-

tion of government institutions:

The presence or absence of an affirmative, enforceable right is

not relevant, however, (o the ex post facto prohibition, which

forbids the imposition of punishment more severe than the pun-

ishment assigned by law when the act to be punished occurred.

Critical to relief under the Ex Post Facto Clause is not an indi-

vidual’s right to less punishment, but the lack of fair notice and

governmental restraint when the legislature increases punish-

ment beyond what was prescribed when the crime was con-

summated. Thus, even if a statute merely alters penal provi-

sions accorded by the grace of the legislature, it violates the

Clause if it is both retrospective and more onerous than the law

in effect on the date of the offense.

The Court also emphasized the structural nature of the limitations of Ar-

ticle I, section 9, in Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 469 (1977)

(noting that “the Bill of Attainder Clause [is] . . . one of the organizing

principles of our system of government”). Unsurprisingly, the court cites

no authority that would support its novel construction of section 9 by pro-

viding that certain individuals lack Attainder Clause or Ex Post Facto

Clause rights.

* For this point, the court quotes, without context, from H.P. Hood

& Sons, Inc. v. Du Mond, 336 U.S. 525 (1949), see Op. at 22. In that case,

the Supreme Court emphasized that the Bill of Rights limited the powers

of Congress and did not affect the powers of the individual states, HP.

Hood & Sons, 336 U.S. at 534, at least until certain amendments were

incorporated after ratification of the Fourteenth Amendment. This says

—

26a

like those found in the first ten amendments work to limit

Congress. However, individual rights are merely a subset of

those matters that constrain the legislature. These two sets

cannot be understood as coextensive unless the court is pre-

pared to recognize such awkward individual rights as Com-

merce Clause rights, see U.S. Const., art. I, § 8, cl. 3, or the

personal right not to have a bill raising revenue that origi-

nates in the Senate, see U.S. Const., art. I, § 7, cl. 1; see also

Schlesinger v. Reservists Comm. to Stop the War, 418 US.

208, 224 (1974) (finding no individual right under the Ineligi-

bility Clause).

That the Suspension Clause appears in Article I, section

9, is not happenstance. In Charles Pinckney’s original pro-

posal, suspension would have been part of the judiciary pro-

vision. It was moved in September 1789 by the Committee

on Style and Arrangement, which gathered the restrictions

on Congress’s power in one location. See William F. Duker,

A Constitutional History of Habeas Corpus 128-32 (1980); 2

The Records of the Federal Convention of 1787, at 596 (Max

Farrand ed., rev. ed. 1966). By the court’s reasoning, the

Framers placed the Suspension Clause in Article I merely

because there were no similar individual rights to accom-

pany it. It is implausible that the Framers would have

viewed the Suspension Clause, as the court implies, as a

budding Bill of Rights but would not have assigned the pro-

vision its own section of the Constitution, much as they did

with the only crime specified in the document, treason,

which appears alone in Article III, section 3. Instead, the

court must treat the Suspension Clause’s placement in Arti-

cle I, section 9, as a conscious determination of a limit on

Congress’s powers. The Supreme Court has found similar

meaning in the placement of constitutional clauses ever since

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 419-21

(1819) (Necessary and Proper Clause); see also, e.g., Skinner

nothing about the distinction, relevant here, between individual rights and

limitations on Congress.

v. Mid-America Pipeline Co., 490 U.S. 212, 220-21 (1989)

(Taxing Clause).

(*12] The court also alludes to the idea that the Suspen-

sion Clause cannot apply to foreign military conflicts because

the exception extends only to cases of “Rebellion or Inva-

sion.” Op. at 21 n. 11. The Framers understood that the

privilege of the writ was of such great significance that its

suspension should be strictly limited to circumstances where

the peace and security of the Nation were jeopardized. Only

after considering alternative proposals authorizing suspen-

sion “on the most urgent occasions” or forbidding suspension

outright did the Framers agree to a narrow exception upon a

finding of rebellion or invasion. See 2 The Records of the

Federal Convention of 1787, supra, at 438. Indeed, it would

be curious if the Framers were implicitly sanctioning Execu-

tive-ordered detention abroad without judicial review by

limiting suspension—and by the court’s reasoning therefore

limiting habeas corpus—to domestic events. To the con-

trary, as Alexander Hamilton foresaw in The Federalist No.

84, invoking William Blackstone,

To bereave a man of life (says he), or by violence to

confiscate his estate, without accusation or trial,

would be so gross and notorious an act of despot-

ism, as must at once convey the alarm of tyranny

throughout the whole nation; but confinement of

the person, by secretly hurrying him to jail, where

his sufferings are unknown or forgotten, is a less

public, a less striking, and therefore a more dan-

gerous engine of arbitrary government.

The Federalist No. 84, at 468 (E.H. Scott ed. 1898) (quoting

William Blackstone, 1 Commentaries *131-32); see also Ex

parte Milligan, 71 U.S. (4 Wall.) 2, 125 (1866).

This court would have jurisdiction to address the de-

tainees’ claims but for Congress’s enactment of the MCA. In

Rasul, 542 U.S. at 483-84, the Supreme Court held that the

federal district courts had jurisdiction to hear petitions for

28a

writs of habeas corpus filed pursuant to 28 U.S.C. § 2241 by

persons detained as “enemy combatants” by the United

States at the Guantanamo Bay Naval Base. At the time, the

habeas statute provided, in relevant part, that upon the fil-

ing of such a petition, the district court would promptly de-

termine whether the petitioner was being held under the.

laws, Constitution, and treaties of the United States, utiliz-

ing the common-law procedure of a return filed by the gov-

ernment and a traverse filed by the petitioner. See 28

U.S.C. §§ 2242-2253. After Rasul, Congress enacted the

DTA, which purported to deprive the federal courts of ha-

beas jurisdiction. DTA § 1005(e), 118 Stat. at 2741-43. The

Supreme Court held in Hamdan v. Rumsfeld, 126 S. Ct.

2749, 2764-69 (2006), however, that the DTA does not apply

retroactively, and so it does not disturb this court’s jurisdic-

tion over the instant appeals, which were already pending

when the DTA became law.

As for the MCA, I concur in the court’s conclusion that,

notwithstanding the requirements that Congress speak

clearly when it intends its action to apply retroactively, see

Landgraf v. USI Film Prods., 511 U.S. 244, 265-73 (1994),

and when withdrawing habeas jurisdiction from the courts,

see INS v. St. Cyr, 533 U.S. 289, 299 (2001); Ex parte Yerger,

75 U.S. (8 Wall.) 85, 102 (1869), Congress sought in the MCA

to revoke all federal jurisdiction retroactively as to the ha-

beas petitions of detainees held at Guantanamo Bay. See Op.

at 9-12. I do not join the court’s reasoning. The court

stresses Congress’s emphasis that the provision setting the

effective date for the jurisdictional change “shall apply to all

cases, without exception.” However, the absence of excep-

tions does not establish the scope of the provision itself. The

entire provision reads:

(*13] (b)—EFFECTIVE DATE. The amendment

made by subsection (a) shall take effect on the date

of the enactment of this Act, and shall apply to all

cases, without exception, pending on or after the

date of the enactment of this Act which relate to

any aspect of the detention, transfer, treatment,

29a

trial, or conditions of detention of an alien detained

by the United States since September 11, 2001.

MCA § 7b), 120 Stat. at 2636 (emphasis added). Subsection

(a), in turn, amends 28 U.S.C. § 2241(e), which confers ha-

beas jurisdiction on the federal courts. New section

2241(e)(1) repeals “jurisdiction to hear or consider an appli-

cation for a writ of habeas corpus.” New section 2241(e)(2)

repeals “jurisdiction to hear or consider any other action . ..

relating to any aspect of the detention, transfer, treatment,

trial, or conditions of confinement.”

The detainees suggest that by singling out habeas cor-

pus in § 2241(e)(1) and by failing to do so in section 7(b)—and

instead repeating the same list (“detention, transfer, treat-

ment, trial, or conditions of confinement”) that appears in

§ 2241(e)(2)—Congress was expressing its intent to make

the MCA retroactive only as to § 2241(e)(2). This argument

hinges on their view that a petition for a writ of habeas cor-

pus is not “relating to any aspect of. . . detention.” But, by

the plain text of section 7, it is clear that the detainees sug-

gest ambiguity where there is none. As the court notes, see

Op. at 11 n. 4, whereas § 2241(e)( 1) refers to habeas corpus,

§ 2241 (e)(2) deals with “any other action . . . relating to any

aspect of the detention, transfer, treatment, trial, or condi-

tions of confinement.” (Emphasis added). By omitting the

word “other” in section 7(b), and by cross-referencing section

7(a) in its entirety, Congress signaled its intent for the retro-

activity provision to apply to habeas corpus cases. This con-

clusion has nothing to do with Congress’s emphasis that there

are no exceptions and everything to do with the intent it ex-

pressed through the substantive provisions of the statute.

The question, then, is whether by attempting to climi-

nate all federal court jurisdiction to consider petitions for

writs of habeas corpus, Congress has overstepped the

boundary established by the Suspension Clause. The Su-

preme Court has stated on several occasions that “at the ab-

solute minimum, the Suspension Clause protects the writ

30a

‘as it existed in 1789.” St. Cyr, 533 U.S. at 301 (quoting

Felker v. Turpin, 518 U.S. 651, 663-64 (1996)) (emphasis

added). Therefore, at least insofar as habeas corpus exists

and existed in 1789, Congress cannot suspend the writ with-

out providing an adequate alternative except in the narrow

exception specified in the Constitution. This proscription

applies equally to removing the writ itself and to removing

all jurisdiction to issue the writ. See United States v. Klein,

80 U.S. (13 Wall.) 128 (1872). See generally Erwin Chemer-

insky, Federal Jurisdiction § 3.2 (4th ed. 2003).

[*14) 1.

Assessing the state of the law in 1789 is no trivial feat,

and the court’s analysis today demonstrates how quickly a

few missteps can obscure history. In conducting its histori-

cal review, the court emphasizes that no English cases pre-

dating 1789 award the relief that the detainees seek in their

petitions. Op. at 15-17. “The short of the matter,” the court

concludes, is that “habeas corpus would not have been avail-

able in 1789 to aliens without presence or property within

the United States.” Op. at 17. But this misses the mark.

There may well be no case at common law in which a court

exercises jurisdiction over the habeas corpus claim of an

> It is uanecessary to resolve the question of whether the Constitu-

tion provides for an affirmative right to habeas corpus—either through

the Suspension Clause, the Fifth Amendment guarantee of due process, or

the Sixth Amendment—or presumed the continued vitality of this “writ

antecedent to statute,” Williams v. Kaiser, 323 U.S. 471, 484 n.2 (1945)

(internal quotation marks omitted). Because the Supreme Court in Rasul

held that the writ existed in 2004 and that there was, therefore, something

to suspend, it is sufficient to assess whether the writ sought here existed

in 1789. Given my conclusion, see infra Part C.1, * is also unnecessary to

resolve the question of whether the Suspension \ .use protects the writ

of habeas corpus as it has developed since 1789. Compare St. Cyr, 533

U.S. at 304-05, and LaGuerre v. Reno, 164 F.3d 1035, 1038 (7th Cir. 1998),

with Felker, 518 U.S. at 663-64, and Gerald L. Neuman, Habeas Corpus,

Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961,

970 (1998). The court oddly chooses to ignore the issue by truncating its

reference to St. Cur, without comment, and omitting the qualifier “at the

absolute minimum.” See Op. at 14.

3la

alien from a friendly nation, who may himself be an enemy,

who is captured abroad and held outside the sovereign terri-

tory of England but within the Crown’s exclusive control

without being charged with a crime or violation of the Laws

of War. On the other hand, the court can point to no case

where an English court has refused to exercise habeas juris-

diction because the enemy being held, while under the con-

trol of the Crown, was not within the Crown’s dominions.°

The paucity of direct precedent is a consequence of the

unique confluence of events that defines the situation of

these detainees and not a commentary on the reach of the

writ at common law.

The question is whether by the process of inference

from similar, if not identical, situations the reach of the writ

at common law would have extended to the detainees’ peti-

tions. At common law, we know that “the reach of the writ

depended not on formal notions of territorial sovereignty,

but rather on the practical question of ‘the exact extent and

nature of the jurisdiction or dominion exercised in fact by

the Crown.” Rasul, 542 U.S. at 482 (quoting Ex parte

Mwenya, [1960] 1 Q.B. 241, 303 (C.A.) (Lord Evershed,

M.R.)). We also know that the writ extended not only to

citizens of the realm, but to aliens, see id. at 481 & n.11, even

in wartime, see id. at 474-75; Case of Three Spanish Sailors,

° The court's assertion that “extraterritorial detention was not. un-

known in Fighteenth Century England,” Op. at 18 n.9, is of no moment.

The court references the 1667 impeachment of the Earl of Clarendon,

Lord High Chancellor of England. See id. at 16, 18 n.9. Clarendon was

accused of sending enemies to faraway lands to deprive them of effective

legal process. The court makes the unsupported inference that habeas

corpus was therefore unavailable abroad. Nothing in the Clarendon affair

suggests that habeas corpus was sought and refused. Instead, as remains

the case today, legal process can be evaded when prisoners are detained

without access to the courts. That the detainees at Guantanamo were able

to procure next friends and attorneys to pursue their petitions whereas

seventeenth-century Englishmen would have found this difficult, if not

impossible, says nothing about the availability of the writ at common law.

The court’s obfuscation as to the distinction between impracticality and

unavailability is further addressed infra.

32a

2 Black. W. 1324, 96 Eng. Rep. 775 (C.P. 1779); Rex v.

Schiever, 2 Burr. 765, 97 Eng. Rep. 551 (K.B. 1759). A War

of 1812-era case in which Chief Justice John Marshal!

granted a habeas writ to a British subject establishes that

even conceded enemies of the United States could test in its

courts detention that they claimed was unauthorized. See

Gerald L. Neuman & Charles F. Hobson, John Marshall and

the Enemy Alien: A Case Missing from the Canon, 9 Green

Bag 2d 39 (2005) (reporting United States v. Williams

(C.C.D. Va. Dec. 4, 1813)). To draw the ultimate conclusion

as to whether the writ at common law would have extended

to aliens under the control (if not within the sovereign terri-

tory) of the Crown requires piecing together the consider-

able circumstantial evidence, a step that the court is unwill-

ing to take. Analysis of one of these cases, the 1759 English

case of Rex v. Schiever, shows just how e™:! this final infer-

ence is. Barnard Schiever was the subject of a neutral na-

tion (Sweden), who was detained by the Crown when Eng-

land was at war with France. Schiever, 2 Burr. at 765, 97

Eng. Rep. at 551. He claimed that his classification as a

“prisoner of war” was factually inaccurate, because he “was

desirous of entering into the service of the merchants of

England” until he was seized on the high seas by a French

privateer, which in turn was captured by the British Navy.

Id. In an affidavit, he swore that his French captor “de-

tained him[] against his will and inclination . . . and treated

him with so much severity[] that [his captor] would not suf-

fer him to go on shore when in port ... but closely confined

him to duty [on board the ship].” /d. at 765-66, 97 Eng. Rep.

at 551. The habeas court ultimately determined, on the basis

of Schiever’s own testimony, that he was properly catego-

rized and thus lawfully detained. /d. at 766, 97 Eng. Rep. at

551-52.

[*15] The court discounts Schiever because, after Eng-

land captured the French privateer while en route to Nor-

way, it was carried into Liverpool, England, where Schiever

was held in the town jail. /d., 97 Eng. Rep. at 551. As such,

the case did not involve “an alien outside the territory of the

sovereign.” Op. at 14-15. However, Schiever surely was not

33a

voluntarily brought into England, so his mere presence con-

ferred no additional rights. As the Supreme Court observed

in Verdugo-Urquidez, “involuntary [presence] is not the sort

to indicate any substantial connection with our country.”

494 U.S. at 271. Any gap between Schiever and the detainees’

detention at Guantanamo Bay is thus exceedingly narrow.

This court need not make the final inference. It has al-

ready been made for us. In Rasul, the Supreme Court

stated that “[a]pplication of the habeas statute to persons

detained at the [Guantanamo] base is consistent with the

historical reach of the writ of habeas corpus.” 542 U.S. at

481. By reaching a contrary conclusion, the court ignores

the settled principle that “carefully considered language of

the Supreme Court, even if technically dictum, generally

must be treated as authoritative.” Sierra Club v. EPA, 322

F.3d 718, 724 (D.C. Cir. 2003) (quoting United States v.

Oakar, 111 F.3d 146, 153 (D.C. Cir. 1997)) (internal quotation

marks omitted). Even setting aside this principle, the court

offers no convincing analysis to compel the contrary conclu-

sion. The court makes three assertions: First, Lord Mans-

field’s opinion in Rex v. Cowie, 2 Burr. 834, 97 Eng. Rep. 587

(K.B. 1759), disavows the right claimed by the detainees.

Second, it would have been impractical for English courts to

extend the writ extraterritorially. Third, Johnson v. Eisen-

trager, 339 U.S. 763 (1949), is controlling. None of these as-

sertions withstands scrutiny.

In Cowle, Lord Mansfield wrote that “(tJhere is no

doubt as to the power of this Court; where the place is under

the subjection of the Crown of England; the only question is,

as to the propriety.” 2 Burr, at 856, 97 Eng. Rep. at 599. He

noted thereafter, by way of qualification, that the writ would

not extend “[(tlo foreign dominions, which belong to a prince

who succeeds to the throne of England.” /d., 97 Eng. Rep. at

599-600. Through the use of ellipsis marks, the court excises

the qualification and concludes that the writ does not extend

“[tlo foreign dominions.” Op. at 16. This masks two prob-

lems in its analysis. A “foreign dominion” is not a foreign

country, as the court’s reasoning implies, but rather “a coun-

34a

try which at some time formed part of the dominions of a for-

eign state or potentate, but which by conquest or cession has

become a part of the dominions of the Crown of England.” Ex

parte Brown, 5 B. & S. 280, 122 Eng. Rep. 835 (K.B. 1864).

And the exception noted in Lord Mansfield’s qualification has

nothing to do with extraterritoriality: Instead, habeas from

mainland courts was unnecessary for territories like Scotland

that were controlled by princes in the line of succession be-

cause they had independent court systems. See William

Blackstone, 1 Commentaries *95-98; James E. Pfander, The

Limits of Habeas Jurisdiction and the Global War on Terror,

91 Cornell L. Rev. 497, 512-13 (2006). In the modern-day par-

allel, where a suitable alternative for habeas exists, the writ

need not extend. See 2 Robert Chambers, A Course of Lec-

tures on the English Law Delivered at Oxford 1767-1773, at 8

(Thomas M. Curley, ed., 1986) (quoting Cowle as indicating

that, notwithstanding the power to issue the writ “in Guern-

sey, Jersey, Minorca, or the plantations,” courts would not

think it “proper to interpose” because “the most usual way is

to complain to the king in Council, the supreme court of ap-

peal from those provincial governments”); see also infra Part

C.2. The relationship between England and principalities was

the only instance where it was “found necessary to restrict

the scope of the writ.” 9 Williarn Holdsworth, A History of

English Law 124 (1938). Cowle, by its plain language, then,

must be read as recognizing that the writ of habeas corpus

ran even to places that were “no part of the realm,” where the

Crown’s other writs did not run, nor did its laws apply. 2

Burr, at 835-36, 853-55, 97 Eng. Rep. at 587-88, 598-99. The

Supreme Court has adopted this logical reading. See Rasul,

542 U.S. at 481-82; see also Mitchell B. Malachowski, From

Gitmo with Love: Redefining Habeas Corpus Jurisdiction in

the Wake of the Enemy Combatant Cases of 2004, 52 Naval L.

rev. 118, 122-23 (2005).’

’ The significance of a 1794 opinion by the U.S. Attorney General, see

Op. at 15, which expresses the view that the writ should issue to the for-

eign commander of a foreign ship-of-war in U.S. ports, reasoning that the

™

35a

[*16] court next disposes of Cowle and the histori-

cal record iggesting that the “power” to issue the writ

acknowledged by Lord Mansfield can be explained by the

Habeas Corpus Act of 1679, 31 Car. 2, c. 2. See Op. at 16.

The Supreme Court has stated that the Habeas Corpus Act

“enforces the common law,” Ex parte Watkins, 28 US. (3

Pet.) 193, 202 (1730), thus hardly suggesting that the

“power” recognized by Lord Mansfield was statutory and

not included within the 1789 scope of the common-law writ.

To the extent that the court makes the curious argument

that the Habeas Corpus Act would have made it too imprac-

tical to produce prisoners if applied extraterritorially be-

cause it imposed fines on jailers who did not quickly produce

the body, Op. at 16-17, the court cites no precedent that sug-

gests that “practical problems” eviscerate “the precious

safeguard of personal liberty [for which] there is no higher

duty than to maintain it unimpaired,” Bowen v. Johnston,

306 U.S. 19, 26 (1939). This line of reasoning employed by

the court fails for two main reasons:

First, the Habeas Corpus Act of 1679 was expressly lim-

ited to those who “have beene committed for criminall or

supposed criminall Matters.” 31 Car. 2, c. 2, § 1. Hence, the

burden of expediency imposed by the Act could scarcely

have prevented common-law courts from exercising habeas

jurisdiction in non-criminal matters such as the petitions in

these appeals. Statutory habeas in English courts did not

foreign ship has “no exemption from the jurisdiction of the country into

which he comes,” 1 Op. Att’y Gen. 47 (1794), is unclear. Nor is it clear

what point the court is making by referencing /n re Ning Yi-Ching, 56

T.L.R. 3 (K.B. Vacation Ct. 1939). In Rasul, the Supreme Court noted

that Ning Yi-Ching “made quite clear that ‘the remedy of habeas corpus

was not confined to British subjects,’ but would extend to ‘any person ...

detained’ within the reach of the writ,” 542 U.S. at 483 n.13 (quoting Ning

Yi-Ching, 56 T.L.R. at 5), and that the case does not support a “narrow

view of the territorial reach of the writ,” id. Here, the court provides a

parenthetical quotation for Ning Yi-Ching that recalls a dissenting posi-

tion from a prior case that was later repudiated. See Rasul, 542 U.S. at

483 n. 14; Mwenya, [1960] 1 Q.B. at 295 (Lord Evershed, M.R.).

36a

extend to non-criminal detention until the Habeas Corpus

Act of 1816, 56 Geo. 3, c. 100, although courts continued to

exercise their common-law powers in the interim. See 2

Chambers, supra, at 11; 9 Holdsworth, supra, at 121.

Second, there is ample evidence that the writ did issue

to faraway lands. In Ex parte Anderson, 3 El. & El. 487, 121

Eng. Rep. 525 (Q.B. 1861), superseded by statute, 25 & 26

Vict., c. 20, § 1, the Court of Queen’s Bench exercised its

common-law powers to issue a writ of habeas corpus to Que-

bec in Upper Canada after expressly acknowledging that it

was “sensible of the inconvenience which may result from

such a step.” Id. at 494-95,121 Eng. Rep. at 527-28; see also

Brown, 5 B. & S. 280, 122 Eng. Rep. 835 (issuing a writ to

the Isle of Man in the sea between England and Ireland).

English common-law courts also recognized the power to

issue habeas corpus in India, even to non-subjects, and did so

notwithstanding competition from local courts, well before

England recognized its sovereignty in India. See B.N.

Pandey, The Introduction of English Law into India 112,

149, 151 (1967); see also Rex v. Mitter, Morton 210 (Sup. Ct.,

Calcutta 1781), reprinted in 1 The Indian Decisions (Old Se-

ries) 1008 (T.A. Venkasawmy Row ed., 1911); Rex v. Hast-

ings, Morton 206, 208-09 (Sup. Ct., Caleutta 1775) (opinion of

Chambers, J.), reprinted in 1 The Indian Decisions, supra,

at 1005, 1007; id. at 209 (opinion of Impey, C.J.); Kal

Raustiala, The Geography of Justice, 73 Fordham L. Rev.

2501, 2530 n. 156 (2005).

(*17] Finally, the court reasons that Eisentrager re-

quires the conclusion that there is no constitutional right to

habeas for those in the detainees’ posture. See Op. at 17_)¢

In Eisentrager, the detainees claimed that they werg «entj-

tled, as a constitutional right, to sue in some CO}jrt of the

United States for a writ of habeas corpus.” 339 U.S. at 777.

Thus Eisentrager presented a far different question than

37a

confronts this court." The detainees do not here contend

that the Constitution accords them a positive right to the

writ but rather that the Suspension Clause restricts Con-

gress’s power to eliminate a preexisting statutory right. To

answer that question does not entail looking to the extent of

the detainees’ ties to the United States but rather requires

understanding the scope of the writ of habeas corpus at

common law in 1789. The court’s reliance on Eisentrager is

misplaced.

This brings me to the question of whether, absent the

wr't, Congress has provided an adequate alternative proce-

dure for challenging detention. If it so chooses, Congress may

replace the privilege of habeas corpus with a commensurate

procedure without overreaching its constitutional ambit.

However, as the Supreme Court has cautioned, if a subject of

Executive detention “were subject to any substantial proce-

dural hurdles which ma(kJe his remedy . . . less swift and im-

perative than federal habeas corpus, the gravest constitu-

tional doubts would be engendered [under the Suspension

Clause].” Sanders v. United States, 373 U.S. 1, 14 (1963).

The Supreme Court has, on three occasions, found a re-

placement to habeas corpus to be adequate. In United

States v. Hayman, 342 U.S. 205 (1952), the Court reviewed

42 U.S.C. § 2255, which extinguished the writ as to those

convicted of federal crimes before Article II] judges in ex-

change for recourse before the sentencing court. Prior to

the enactment of section 2255, the writ was available in the

jurisdiction of detention, not the jurisdiction of conviction.

The Court concluded that this substitute was acceptable in

part because the traditional habeas remedy remained avail-

able by statute where section 2255 proved “inadequate or

ineffective.” Jd. at 223. The Court came to a similar conclu-

* To the extent that the court relies on Eisentrager as proof of its

historical theory, the Supreme Court rejected that approach in Rasul, see

542 US. at 475-79.

38a

sion in Swain v. Pressley, 430 U.S. 372 (1977), reviewing a

statute with a similar “inadequate or ineffective” escape

hatch, id. at 381 (reviewing D.C. Code § 23-110). In that

case, the Court concluded that a procedure for hearing ha-

beas in the District of Columbia’s courts, as distinct from the

federal courts, was an adequate alternative. Finally, in

Felker, 518 U.S. at 663-64, the Court found no Suspension

Clause violation in the restrictions on successive petitions

for the writ under the Antiterrorism and Effective Death

Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1217, con-

cluding that these were “well within the compass of [the]

evolutionary process” of the habeas corpus protocol for

abuse of the writ and did 10t impose upon the writ itself.

[*18] These cases provide little cover for the govern-

ment. As the Supreme Court has staced, “[a]t its historical

core, the writ of habeas corpus has served as a means of re-

viewing the legality of Executive detention, and it is in that

context that its protections have been strongest.” St. Cyr,

533 U.S. at 301. With this in mind, the government is mis-

taken in contending that the combatant status review tribu-

nals (“CSRTs”) established by the DTA suitably test the le-

gitimacy of Executive detention. Far from merely adjusting

the mechanism for vindicating the habeas right, the DTA

imposes a series of hurdles while saddling each Guantanamo

detainee with an assortment of handicaps that make the ob-

stacles insurmountable.

At the core of the Great Writ is the ability to “inquire

into illegal detention with a view to an order releasing the

petitioner.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)

(internal quotation marks and alteration omitted). An ex-

amination of the CSRT procedure and this court’s CSRT re-

view powers reveals that these alternatives are neither ade-

quate to test whether detention is unlawful nor directed to-

ward releasing those who are unlawfully held.

“Petitioners in habeas corpus proceedings . . . are enti-

tled to careful consideration and plenary processing of their

claims including full opportunity for the presentation of the

relevant facts.” Harris v. Nelson, 394 U.S. 286, 298 (1969).

39a

The offerings of CSRTs fall far short of this mark. Under

the common law, when a detainee files a habeas petition, the

burden shifts to the government to justify the detention in

its return of the writ. When not facing an imminent trial,’

the detainee then must be afforded an opportunity to trav-

erse the writ, explaining why the grounds for detention are

inadequate in fact or in law. See, e.g., 28 U.S.C. §§ 2243,

2248; Bollman, 8 U.S. (4 Cranch) at 125; Ex parte Beeching,

4 B. & C. 137, 107 Eng. Rep. 1010 (K.B. 1825); Schiever, 2

' Burr. 765, 97 Eng. Rep. 551; cf. Hamdi, 542 U.S. at 537-38

(plurality opinion). A CSRT works quite differently. See

Order Establishing Combatant Status Review Tribunal

(July 7, 2004), available at http://www.defenselink.mil/news/

Jul2004/d20040707review.pdf. The detainee bears the bur-

den of coming forward with evidence explaining why he

should not be detained. The detainee need not be informed

of the basis for his detention (which may be classified), need

not be allowed to introduce rebuttal evidence (which is

sometimes deemed by the CSRT too impractical to acquire),

and must proceed without the benefit of his own counsel."

Moreover, these proceedings occur before a board of mili-

tary judges subject to command influence, see Hamdan, 126

S. Ct. at 2804, 2806 (Kennedy, J., concurring in part); Weiss

v. United States, 510 U.S. 163, 179-80 (1994); cf. 10 U.S.C.

§ 837(a). Insofar as each of these practices impedes the

* At common law, where criminal charges were pending, a prisoner

filing a habeas writ would be remanded, although habeas incorporated a

speedy-trial guarantee. See, e.g., Ex parte Beeching, 4 B. & C. 137, 107

Eng. Rep. 1010 (K.B. 1825); Bushell’s Case, Vaugh. 135, 124 Eng. Rep.

1006, 1009-10 (C.P. 1670). But see MCA § 3(a)(1), 120 Stat. at 2602 (codi-

fied at 10 U.S.C. § 948b(d)(A)). Once there was “a judgment of conviction

rendered by a court of general criminal jurisdiction,” release under the

writ was unavailable. Hayman, 342 U.S. at 210-11.

° With a few possible exceptions, the Guantanamo detainees before

the federal courts are unlikely to be fluent in English or to be familiar

with legal procedures and, as their detentions far from home and cut off

from their families have been lengthy, they are likely ill prepared to be

able to obtain evidence to support their claims that they are not enemies

of the United States.

“4

40a

process of determining the true facts underlying the lawful-

ness of the challenged detention, they are inimical to the na-

ture of habeas review.

[*19] This court’s review of CSRT determinations, see

DTA § 1005(e)(2), 119 Stat. at 2742, is not designed to cure

these inadequacies. This court may review only the record

developed by the CSRT to assess whether the CSRT has

complied with its own standards. Because a detainee still

has no means to oresent evidence rebutting the govern-

ment’s case—even assuming the detainee could learn of its

contents—assessing whether the government has more evi-

dence in its favor than the detainee is hardly the proper an-

tidote. The fact that this court also may consider whether

the CSRT process “is consistent with the Constitution and

laws of the United States,” DTA § 1005(e)(2)(C)(ii), 119 Stat.

at 2742, does not obviate the need for habeas. Whereas a

cognizable constitutional, statutory, or treaty violation could

defeat the lawfulness of the government’s cause for deten-

tion, the writ issues whenever the Executive lacks a lawful

justification for continued detention. The provisions of DTA

§ 1005(e)(2) cannot be reconciled with the purpose of habeas

corpus, as they handcuff attempts t

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