# Petition for Writ of Certiorari — Boumediene v. Bush > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0525%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2008 - **Citation:** 553 U.S. 723 ## Text 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) B. iv 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 Vv 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 vi 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, v. 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). 2 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- 3 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. 4 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). 5 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 6 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.”). 7 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- 8 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. 9 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). 10 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. 11 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. 12 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- 13 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. 14 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). 15 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. 16 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- 17 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. 18 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. 19 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”). 20 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. 21 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. 22 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. 23 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- 24 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 25 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 26 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 27 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”). 28 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. 29 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”). * 30 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 la 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) 2a [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. 3a 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. 4a 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- 5a 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). 6a 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.’ I. 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, 7a 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). 8a 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. 9a 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 ag 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. I. 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. A. 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. B [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0525%3A02. Public record. Not legal advice.