Opposition Brief — Boumediene v. Bush

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Nos. 06-1195 and 06-1196: ._.

In the Supreme Court of the Anited States

LAKHDAR BOUMEDIENE, ET AL., PETITIONERS

v.

GEORGE W. BUSH,

PRESIDENT OF THE UNITED STATES, ET AL.

KHALED A.F. AL ODAH, NEXT FRIEND OF

FAWZI KHALID ABDULLAH FAHAD AL ODAH, ETAL.,

PETITICNERS

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Atterney General

DOUGLAS N. LETTER

ROBERT M. LOEB

CATHERINE Y. HANCOCK

SARANG V. DAMLE

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Whether the Military Commissions Act of 2006

(MCA), Pub. L. No. 109-366, 120 Stat. 2600, removes

federal court jurisdiction over habeas petitions filed by

aliens detained as enemy combatants at Guantanamo

Bay, Cuba.

2. Whether aliens detained as enemy combatants at

Guantanamo Bay have rights under the Suspension

Clause of Article I, Section 9, of the Constitution.

3. Whether, if aliens detained at Guantanamo Bay

have such rights, the MCA violates the Suspension

Clause.

4. Whether petitioners may challenge the adequacy

of the judicial review available under the MCA and the

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

Tit. X, 119 Stat. 2739, before they have sought to invoke,

much less exhaust, such review.

(1)

TABLE OF CONTENTS

Page

PD 5 vb. cdecctecesdacdovendvcdsecetusteseves 1

EEE ES, ee ee eee Pee et SR Be PY 2

TS cu dikes eee haces beebewawaddésaeeceansenes 2

eo ccnc cpap cenbanhieuneesetecachcouweseanes 7

as ce hee eee hee been hy ee kabel 30

TABLE OF AUTHORITIES

Cases:

Ahrens v. Clark, 335 U.S. 188 (1948) ...............026. 3

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

2003), rev'd sub nom. Rasal v. Bush, 542 U.S. 466

RETIRE ream eee neater es ep yee Er eo I a 3

Braden v. 30th Judicial Circuit Court, 410 U.S. 484

a cache al van when SAE ee Eb ken ens baenes eon 3

Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984) .. 28

Clinton v. Goldsmith, 526 U.S. 529 (1999) ............. 15

Cuban Am. Bar Ass’n v. Christopher, 43 F.3d 1412

(11th Cir.), cert. denied, 515 U.S. 1142 and 516 U.S.

i ae eee ine ald wide sas bs 21

Felker v. Turpin, 518 U.S. 651 (1996) ..............05. 18

Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006)... 5, 11, 15, 16

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) .. 18, 14, 15, 17, 29

Herrera v. Collins, 506 U.S. 390 (1993) .............06. 15

INS v. St. Cyr, 533 U.S. 289 (2001) ....... 11, 12, 14, 25, 28

Johnson v. Eisentrager, 339 U.S. 763

a ao sl de ee Rea duedudaeseandine passim

Lockington’s Case, Brightly 269 (Pa. 1815) ............ 26

(III)

IV

Cases—Continued: Page

Noyd v. Bond, 395 U.S. 683 (1969) ......0.00000ceee ees 15

People’s Mojahedin Org. of Iran v. Department of

State, 182 F.3d 17 (D.C. Cir. 1999), cert. denied,

8 Ek een rrr rer 21, 24

Preiser v. Rodriguez, 411 U.S. 475 (1973) ............. 10

Quirin, Ex parte, 317 US. 1 (1942) ................ 14, 18

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

Rex v. Cowle, 97 Eng. Rep. 587 (K.B. 1759) ............ 26

Rex v. Hastings, 1 Indian Dec. 1005 (Calcutta S.C.

SEE Gia snicknthunGerenebals ber eaeeeaneeusen 26

Rex v. Mitter, 1 Indian Dec. 1008 (Caleutta 8.C. 1781) .. 26

Rex v. Schiever, 97 Eng. Rep. 551 (K.B. 1759) .......... 26

Rose v. Lundy, 455 U.S. 509 (1982) ..............-206. 15

Schlesinger v. Councilman, 420 U.S. 738 (1975) ........ 15

Shaughnessy v. United States ex rel. Mezei, 345 U.S.

EE Sbaievscavdwdus keewdgecasevpennncincas 25

Swain v. Pressley, 430 U.S. 372 (1977) ............. 12,14

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

Se EE hbo bn ed s+eeuctendecces euceseucesnewis 26

United States v. Hayman, 342 U.S. 205 (1952) ......... 15

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

DN cbnneiatwbidesnneuaaseGiagusietn senses 20, 24

Yamashita, In re, 327 U.S. 1 (1946) .............06. 14, 18

Zadvydas v. Davis, 533 U.S. 678 (2001) ............ 20, 25

Constitution, treaties and statutes:

U.S. Const.:

Art. 1, § 9, Cl.2 (Suspension Clause) .......... passim

V

Constitution, treaties and statutes—Continued: Page

OED 66-66.00000605604000005000s4"eens ee 16

RED hv ccs cawicccccedenscesssueseeee 24

BE dnddacasctecesvnseuewiesened 3, 20, 21, 23

Sy GRID... 6:c cncccecsceenveesnsenkenen 3

Lease of Certain Areas for Naval or Coaling Stations,

July 2, 1903, U.S.-Cuba, T.S. No. 426 ............... 24

BUTE skuecencesebsesctosssaunseceesen 24

Lease of Lands for Coaling and Naval Stations, Feb.

16-23, 1903, U.S.-Cuba, T.S. No. 418 ............... 24

GER EE iedsves0sehvctkesasdesaséeesteeee 24

UAE dedveuskeue0eesaskietuesss eee 24

Treaty on Relations with Cuba, May 29, 1934, U.S.-

CA SHEE b00-064660a0en0uvesannnneseuens 24

Authorization for Use of Military Force, Pub. L. No.

es IGE o'nnees-cnveceescecndcuetenaus 4, 28

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

a OR 0 Te 2

Sn SP ED bib b:b.0'S ic caWeddescessenueus 16

$ 100G(aMS), 119 Stat. 2741 . 0... ccc cece cc eees 17

§ 1005(e)(1), 119 Stat. 2742 ................. 4,5, 11

§ 1005(e)(2), 119 Stat. 2742 ............ 4,5,9, 11,17

§$ 1005(e)(2)(A), 119 Stat. 2742 ..............0005, 4

§ 1005(e)(2)(C), 119 Stat. 2742 .......... 4, 13, 17, 30

§ 1005(e)(2)(C)(i), 119 Stat. 2742 ............. 13, 14

§ 1005(e)(2)(C)(ii),119 Stat. 2742 ............0... 13

§ 1005(e)(3), 119 Stat. 2748 .................. 4,5,9

§ 1005(e)(3)(A), 119 Stat. 2743 2.2.0... cee eee eee 1

VI

Statutes—Continued: Page .

$ 1005(h)(1), 119 Stat. 2743 ............ cee eee 1]

§ 1005(h)(2), 119 Stat. 2743 .......... ccc ewww eee 5

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

eck ie peteeeeseteceseseosecs —

EE 12

i eee ic dk eccceeseasetess 12

§ 3(a)(1), 120 Stat. 2600 (10 U.S.C. 948a et seq.):

120 Stat. 2603 (10 U.S.C. 948d(¢c)) ............ 16

120 Stat. 2623 (10 U.S.C. 950j) ............4.. 12

OF, BED Biat, BOTS wc cccccccccccccccvcece 9, 11, 12

§ 7(a), 120 Stat. 2635 (28 U.S.C. 2241(e)) 5, 6,9, 10,11

120 Stat. 2636 (28 U.S.C. 2241(e)(1)) ...... 5, 9, 10

120 Stat. 2636 (28 U.S.C. 2241(e)(2)) ....... 5, 6,9

DUCTED cccccocssanececeoseees 6, 10, 11

EE Ee Pee 3, 5, 11

sd oa elev é bea wane ses 15

SEE ee eee 15

Miscellaneous:

3 William Blackstone, Commentaries ................ 26

Robert Chambers, A Course of Lectures on The

English Law: Delivered at Oxford, 1767-1773

(Thomas M. Curley ed., 1986) ..............2.0008. 26

Dep't of Def., Annual Administrative Review Boards

for Enemy Combatants Held at Guantanamo

Attributable to Senior Defense Officials (Mar. 6,

2007) <http://www.defenselink.mil/transeripts/

transcript.aspx?transcriptid=3902> .............. 18

In the Supreme Court of the Anited States

No. 06-1195

LAKHDAR BOUMEDIENE, FT AL., PETITIONERS

Vv.

GEORGE W. BUSH,

PRESIDENT OF THE UNITED STATES, ET AL.

No. 06-1196

KHALED A.F. AL ODAH, NEXT FRIEND OF

FAWZI KHALID ABDULLAH FAHAD AL ODAH, ET AL.,

PETITIONERS

v.

UNITED STATES OF AMERICA, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-50a)

is reported at 476 F.3d 981.’ The opinions of the district

courts are reported at 355 F. Supp. 2d 311 (Pet. App.

' Unless otherwise noted, all references to “Pet.” and “Pet. App.” are

to the petition and appendix filed in No. 06-1195.

(1)

2

51a-79a) and 355 F.. Supp. 2d 443 (06-1196 Pet. App. 61-

127).

JURISDICTION

The judgment of the court of appeals was entered on

February 20, 2007. The petitions for a writ of certiorari

were filed on March 5, 2007. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioners are aliens detained by the Department of

Defense at the Naval Base at Guantanamo Bay, Cuba.

Their detention is based on individualized determina-

tions by military Combatant Status Review Tribunals

(CSRTs) that they are enemy combatants in the ongoing

armed conflict against the al Qaeda terrorist organiza-

tion and its supporters. Under the Detainee Treatment

Act of 2005 (DTA), Pub. L. No. 109-148, Tit. X, 119 Stat.

2739, those determinations are subject to review in the

United States Court of Appeals for the District of Co-

lumbia Circuit. Challenges to the scope of review pro-

vided by the DTA may also be presented to the D.C.

Circuit. Petitioners, unlike other detainees at

Guantanamo Bay, have not availed themselves of the

review provided by the DTA. The court of appeals held

that the district court lacked jurisdiction under the Mili-

tary Commissions Act of 2006 (MCA), Pub. L. No. 109-

366, 120 Stat. 2600, to consider their habeas challenges

filed outside of the exclusive review procedure estab-

lished by the DTA.

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

held that district courts had jurisdiction under 28 U.S.C.

2241 to consider habeas petitions filed by detainees at

Guantanamo Bay. The D.C. Circuit had relied on John-

son Vv. Eisentrager, 339 U.S. 763 (1950), for the proposi-

3

tion that habeas jurisdiction does not extend to aliens

held outside the sovereign territory of the United

States. See Al Odah v. United States, 321 F.3d 1134,

1141 (D.C. Cir. 2003), rev'd sub nom. Rasul v. Bush, 542

U.S. 466 (2004). This Court reversed. The Court rea-

soned that, on the question of “statutory jurisdiction”

under 28 U.S.C. 2241, Eisentrager had implicitly rested

on the narrow construction of the habeas statute

adopted in Ahrens v. Clark, 335 U.S. 188 (1948), which

did not survive the Court’s decision in Braden v. 30th

Judicial Circuit Court, 410 U.S. 484 (1973). See Rasul?

542 U.S. at 477-479. Accordingly, this Court had no oe-

casion to revisit Kisentrager’s constitutional holding and

instead concluded, as a statutory matter, that Section

2241 “confer[red| * * * jurisdiction to hear petitioners’

habeas corpus challenges to the legality of their deten-

tion at the Guantanamo Bay Naval Base.” /d. at 484.

The Court emphasized that it had decided “only whether

the federal courts have jurisdiction,” and it expressly

declined to address “the merits of petitioners’ claims.”

Id. at 485.

2. After the remand in Rasul, numerous

Guantanamo Bay detainees filed habeas petitions. Their

actions include 13 cases, involving more than 60 detain-

ees, which were coordinated in the district court for lim-

ited procedural purposes, but assigned to two different

district judges. Respondents moved to dismiss the

claims of each detainee. One district court, acting on

eleven of the cases, granted the motions in part and de-

nied them in part, concluding that Due Process Clause

of the Fifth Amendment applies extraterritorially to

aliens held at Guantanamo Bay, and that the CSRT pro-

cedures are constitutionally deficient. 06-1196 Pet. App.

6la-128a. Another district court, acting on two cases,

d

granted the motions to dismiss in full, holding that the

petitioners’ detention was authorized by the congressio-

nal Authorization for Use of Military Force (AUMP),

Pub. L. 107-40, 115 Stat. 224, and that the Constitution

does not protect aliens outside sovereign United States

territory, including at Guantanamo Bay. Pet. App. 5la-

79a. Both decisions were appealed.

3. Recognizing that litigation over habeas filings by

other detainees was consuming enormous resources and

disrupting the day-to-day operation of the Guantanamo

Bay Naval Base, Congress enacted the DTA. Section

1005(e)(1) of that Act amended the federal habeas cor-

pus statute to provide that “no court, justice, or judge

shall have jurisdiction” to consider habeas petitions filed

by aliens detained at Guantanamo Bay. DTA

§ 1005(e)(1), 119 Stat. 2742.

Section 1005(e)(2) of the Act provides that the Court

of Appeals for the District of Columbia Circuit “shall

have exclusive jurisdiction to determine the validity of

any final decision of a Combatant Status Review Tribu-

nal that an alien is properly detained as an enemy com-

batant.” DTA § 1005(e)(2)(A), 119 Stat. 2742. The DTA

specifies that the court of appeals may determine

whether a final CSRT decision “was consistent with the

standards and procedures specified by the Secretary of

Defense,” and “to the extent the Constitution and laws

of the United States are applicable, whether the use of

such standards and procedures to make the determina-

tion is consistent with the Constitution and laws of the

United States.” DTA § 1005(e)(2)(C), 119 Stat. 2742.

Section 1005(e)(3) creates a parallel exclusive-review

mechanism for Guantanamo Bay detainees seeking to

challenge final criminal convictions issued by military

commissions. DTA § 1005(e)(3)(A), 119 Stat. 2743.

5

4. While these appeals were pending, this Court de-

cided Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006). In

Hamdan, the Court held that Section 1005(e)(1), the

jurisdiction-removing provision of the DTA, does not

apply to habeas claims filed before the DTA was en-

acted. See id. at 2762-2769. In reaching that conclusion,

the Court observed that the statute made the exclusive-

review provisions in Sections 1005(e)(2) and 1005(e)(3)

of the DTA “expressly * * * applicable to pending

cases.” Jd. at 2764 (citing DTA § 1005(h)(2), 119 Stat.

2743). The Court noted the absence of such language

regarding Section 1005(e)(1), and therefore drew a

“negative inference” as to Congress’ intent to apply Sec-

tion 1005(e)(1) to pending cases. /d. at 2766.

5. In the wake of this Court’s decision in Hamdan,

Congress enacted the MCA. Section 7(a) of the MCA

amends 28 U.S.C. 2241 to provide that “[n]Jo court, jus-

tice, or judge shall have jurisdiction to hear or consider

an application for a writ of habeas corpus filed by or on

behalf of an alien detained by the United States who has

been determined by the United States to have been

properly detained as an enemy combatant or is awaiting

such determination.” Section 7(a) also eliminates fed-

eral court jurisdiction, except as provided by Sections

1005(e)(2) and (3) of the DTA, over “any other action

against the Untied States or its agents relating to any

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

conditions of confinement” of such an alien. MCA § 7(a),

120 Stat. 2636. The MCA further provides that these

amendments “shall take effect on the date of the enact-

ment of this Act,” and that they “shall apply to all cases,

without exception, pending on or after the date of the

enactment of this Act, which relate to any aspect of the

detention, transfer, treatment, trial, or conditions of

6

detention of an alien detained by the United States since

September 11, 2001.” MCA § 7(b), 120 Stat. 2636.

6. On February 20, 2007, the court of appeals dis-

missed these cases for lack of jurisdiction.

a. The court held that the MCA applies to petition-

ers’ pending habeas cases—each of which “relates to an

‘aspect’ of detention and * * * deals with the detention

of an ‘alien’ after September 11, 2001,” Pet. App.

6a—and thus eliminates federal court jurisdiction over

their petitions, id. at 6a-Ya. The court rejected petition-

ers’ argument that Section 7(b)’s effective-date provi-

sion applies only to non-habeas detention-related cases

specified in Section 7(a) (28 U.S.C. 2241(e)(2)). The

court explained that Section 7(b) specifies the effective

date of Section 7(a), which eliminates federal jurisdic-

tion over both habeas and all other detention-related

claims in “all cases, without exception.” /d. at 9a.

The court of appeals further held that the MCA is

consistent with the Suspension Clause, for two inde-

pendent reasons. First, as aliens outside the sovereign

territory of the United States, petitioners have no con-

stitutional rights under that clause. Pet. App. 14a (cit-

ing, e.g., Johnson v. Eisentrager, 339 U.S. ‘763 (1950)).

Second, even if petitioners had constitutional rights un-

der the Suspension Clause, the clause would not protect

a right to the writ in these circumstances. As the court

explained, “the Suspension Clause protects the writ ‘as

it existed in 1789,’” id. at 10a, but “the history of the

writ in England prior to the founding” shows that “ha-

beas corpus would not have been available in 1789 to

aliens without presence or property within the United

States.” /d. at 12a-13a.

The court further explained that this Court’s decision

in Kisentrager “ends any doubt about the scope of com-

7

mon law habeas.” Pet. App. 13a. In Kisentrager, this

Court stated that it was aware of “no instance where a

court, in this or any other country 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. Nothing in the

text of the Constitution extends such a right, nor does

anything in our statutes.” /bid. (quoting Hisentrager,

339 U.S. at 768).

The court of appeals held that petitioners’ reliance on

this Court’s decision in Rasul was misplaced. Pet. App.

13a. The court explained that Rasul interpreted only

the statutory right to habeas, so it “could not possibly

have affected the constitutional holding of Eisentrager,”

id. at 15a n.10, in which the Court explicitly held that

aliens detained outside the sovereign territory of the

United States do not have a constitutionally protected

right to the writ, see 339 U.S. at 781.

Having concluded that the MCA eliminates jurisdic-

tion in petitioners’ cases, the court vacated the district

courts’ decisions and dismissed the cases for want of

jurisdiction. Pet. App. 19a-20a.

b. Judge Rogers dissented. She agreed that Con-

gress intended the MCA to withdraw federal jurisdiction

over the detainees’ claims, but she found the statute to

be inconsistent with the Suspension Clause, because

“Congress has neither provided an adequate alternative

remedy * * * nor invoked the exception to the Clause

by making the required findings to suspend the writ.”

Pet. App. 2la-22a.

ARGUMENT

The scope of judicial review afforded to aliens de-

tained at Guantanamo Bay who have been determined to

8

be enemy combatants is important, but the issues raised

by the petitions do not warrant this Court’s review at

this time. In the DTA, Congress has provided a means

by which petitioners can obtain judicial review of the

validity of their detention. Petitioners contend that this

review mechanism is deficient in various respects, but

their claims are not ripe because petitioners have not

even attempted to pursue review under the DTA. An

effort to seek DTA review would not only allow petition-

ers to challenge the scope of review available under the

DTA but also give concrete guidance as to the extent of

that review. There is no need for this Court to assess

the adequacy of DTA review before it has taken place,

and certainly none that warrants the extraordinary ex-

pedition requested by petitioners.

Furthermore, the decision of the court of appeals is

correct and does not conflict with any decision of this

Court or any other court of appeals. The court’s holding

that the MCA eliminates jurisdiction over petitioners’

habeas actions is compelled by the plain language of the

statute. Relying on the settled precedent of this Court,

the court of appeals also correctly held that the MCA

does not violate the Suspension Clause. As aliens out-

side the sovereign territory of the United States, peti-

tioners have no rights under the Suspension Clause,

and, in any event, the habeas rights protected by that

provision would not extend to aliens detained at

Guantanamo Bay as enemy combatants.

Congress has afforded petitioners—all aliens de-

tained at Guantanamo Bay as confirmed enemy combat-

ants in the ongoing armed conflict against the al Qaida

terrorist organization and its supporters—an unprece-

dented degree of access to our courts in wartime. No

other captured enemy combatants in the history of this

9

country, or any other, have enjoyed such privileges. The

court of appeals has correctly concluded that petitioners

must exercise their statutory right of judicial review

through the procedures established by Congress. Peti-

tioners have failed to demonstrate a sufficiently compel-

ling basis for this Court to review the court of appeals’

decision before petitioners have even attempted to in-

voke the procedures that Congress has afforded. And,

in any event, any review in this Court of the questions

presented should await a case in which a detainee has

actually invoked his right of judicial review under the

DTA, and in which this Court may consider the judicial

review available under the DTA on a developed and con-

crete record, rather than in the abstract.

1. The court of appeals correctly held that the MCA

removes federal jurisdiction over petitioners’ pending

habeas petitions. Section 7 of the MCA unequivocally

eliminates federal court jurisdiction over petitioners’

claims, except as provided by Section 1005(e)(2) and (3)

of the DTA. Section 7(a) of the MCA amends 28 U.S.C.

2241 to provide that “[n]Jo court, justice, or judge shall

have jurisdiction to hear or consider an application for

a writ of habeas corpus filed by or on behalf of an alien”

detained by the United States as an enemy combatant.

In addition, Section 7(a) eliminates federal jurisdiction

over “any other action * * * relating to any aspect of

the detention, transfer, treatment, trial, or conditions of

confinement” of such an alien. MCA § 7(a), 120 Stat.

2636. The statute further provides that both of these

amendments “shall take effect on the date of the enact-

ment of this Act,” and that they “shall apply to all cases,

without exception, pending on or after the date of the

enactment of this Act, which relate to any aspect of the

detention, transfer, treatment, trial, or conditions of

10

detention of an alien detained by the United States since

September 11, 2001.” MCA § 7(b), 120 Stat. 2636.

As the court of appeals explained, “(t]he detainees’

lawsuits fall within the subject matter covered by the

amended [Section] 2241(e); each case relates to an ‘as-

pect’ 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.” Pet.

App. 6a. The court of appeals’ conclusion that the MCA

applies to these cases is unassailable and provides no

basis for further review. Indeed, though Judge Rogers

dissented on other issues, she agreed with the majority

that “Congress intended to withdraw federal jurisdic-

tion” through the MCA. /d. at 21a.

Petitioners contend (Pet. 13; 06-1196 Pet. 25-26) that

Section 7(b)’s effective-date provision does not apply to

the elimination of jurisdiction over habeas cases in Sec-

tion 7(a) (28 U.S.C. 2241(e)(1)), and that jurisdiction

over their pending habeas cases is therefore preserved.

That claim is contrary to both the statutory language

and the underlying legislative intent. The scope of Sec-

tion 7(b) is unambiguous—it applies to the amendment

“made by subsection (a),” MCA § 7(b), 120 Stat. 2636,

which expressly includes the elimination of jurisdiction

over habeas claims brought by aliens detained as enemy

combatants. MCA § 7(a), 120 Stat. 2635. Thus, there is

no basis for reading Section 7(b), which applies to “all

cases, without exception * * * which relate to any as-

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

tions of detention,” to exclude the habeas cases ad-

dressed in Section 7(a). As the court of appeals ex-

plained, “{[hlabeas cases are simply a subset of cases

dealing with detention.” Pet. App. 7a-8a; see Preiser v.

Rodriguez, 411 U.S. 475, 484 (1973) (“the essence of ha-

11

beas corpus is an attack by a person in custody on the

legality of that custody”).

The court of appeals properly rejected petitioners’

argument that the MCA does not satisfy the require-

ment that a statute contain a “clear statement” in order

to “repeal habeas jurisdiction,” /NS v. St. Cyr, 533 U.S.

289, 298 (2001). Section 7(a) expressly refers to the

elimination of “habeas” jurisdiction. It also amends the

habeas statute, 28 U.S.C. 2241. And the effective-date

provision of Section 7(b), stating that the amendment

“shall apply to all cases, without exception, pending on

or after the date of the enactment of this Act,” makes

clear that the repeal of habeas jurisdiction applies to

pending cases. Indeed, Congress “could not [have been]

clearer.” Pet. App. 7a. “It is almost as if the proponents

of these words were slamming their fists on the table

shouting ‘When we say “all,” we mean all—without ex-

ception!” /bid. This is more than sufficient to satisfy

St. Cyr, which, as the court of appeals explained, “de-

mands clarity, not redundancy.” /d. at 8a.

The context in which the MCA was enacted under-

scores that Section 7 was intended to remove district-

court jurisdiction over these cases and to do so clearly.

In the DTA, Congress had attempted to accomplish that

result and to place exclusive jurisdiction in the D.C. Cir-

cuit. See DTA § 1005(e)(1) and (2), (h)(1), 119 Stat. 2742,

2743. This Court, however, held that the DTA failed to

make sufficiently clear that the elimination of district-

court jurisdiction applied to pending cases. See

Hamdan, 126 8S. Ct. at 2769. Congress reacted swiftly

to Hamdan by extending the elimination of habeas juris-

diction to “all cases, without exception, pending” on the

date of the MCA’s enactment. MCA § 7(b), 120 Stat.

2636. Indeed, as the court of appeals explained,

12

“felveryone who has followed the interaction between

Congress and the Supreme Court knows full well” that

the MCA was passed in response to Hamdan. Pet. App.

6a; see id. at 6a n.2 (discussing legislative history).’

2. As explained below, aliens held outside the sover-

eign territory of the United States do not enjoy the

protections of the Suspension Clause. In any event,

even in contexts to which the Suspension Clause is fully

applicable, this Court has held that Congress may with-

draw habeas jurisdiction if it provides an adequate alter-

native remedy. See Swain v. Pressley, 430 U.S. 372, 381

(1977); St. Cyr, 533 U.S. at 314 n.38. Here, the DTA and

the MCA satisfy that requirement by giving petitioners

the right to obtain judicial review of the military’s deter-

mination that they are properly classified as enemy com-

batants. At the very least, the availability of judicial

review through the DTA underscores that consideration

of petitioners’ claims would be premature because they

have not yet exhausted their remedies under the DTA.

Pursuing that avenue would afford this Court the oppor-

* Petitioners suggest (Pet. 13 n.10; 06-1196 Pet. 25-26) that Section

3(a) of the MCA compels a negative inference that Section 7(b) does not

repeal jurisdiction over pending habeas cases. That argument lacks

merit. Section 3(a)(1) enacts 10 U.S.C. 950j, which removes federal

jurisdiction to review final military-commission decisions, except as

otherwise provided in the statute. As the court of appeals explained,

“Section 7(b), read in conjunction with |Slection 7(a), is no less explicit

than § 950j.”. Pet. App. 9a. Indeed, Congress used very similar

language in Sections 3 and 7. Both sections refer explicitly to the

habeas statute. And Section 7, referring to “all cases, without excep-

tion,” is even broader than Section 3, referring to “any claim or cause

of action.” In contrast to the statutory provisions addressed in

Hamdan, therefore, there is no basis for drawing a “negative infer-

ence” from Section 3 that Congress did not intend Section 7 to repeal

habeas jurisdiction.

13

tunity to assess the adequacy of the DTA’s alternative in

a concrete context, rather than in the abstract. It also

would show proper regard to Congress’s considered

judgment that that alternative is appropriate for alien

military detainees in the current conflict.

a. Section 1005(e)(2)(C) of the DTA specifies the

D.C. Circuit’s “[s]eope of review” of the CSRT’s enemy-

combatant determination. The court must consider

“whether the status determination of the [CSRT] with

regard to such alien was consistent with the standards

and procedures specified by the Secretary of Defense

for [CSRTs] (including the requirement that the conclu-

sion of the Tribunal be supported by a preponderance of

the evidence and allowing a rebuttable presumption in

favor of the Government’s evidence).” DTA

§ 1005(e)(2)(C)(i). 119 Stat. 2742. The court also must

consider, “to the extent the Constitution and laws of the

United States are applicable, whether the use of such

standards and procedures to make the determination is

consistent with the Constitution and laws of the United

States.” Jd. § 1005(e)(2)(C)(ii), 119 Stat. 2742. Thus, the

statute allows for ample judicial review both of the pro-

cedures used by the CSRTs and of the evidentiary suffi-

ciency of their determinations.

All but one of the petitioners (who has been charged

with a military-commission offense) are being detained

for non-punitive reasons during the ongoing conflict.

See Hamdi v. Rumsfeld, 542 U.S. 507, 518-524 (2004)

(plurality opinion). The level of review afforded under

the DTA, however, gives petitioners greater rights of

judicial review than traditionally provided to those held

for punishment pursuant to the judgment of a military

tribunal. This Court has held that the habeas review

afforded in that context does not examine the guilt or

14

innocence of the defendant, nor does it examine the suf-

ficiency of the evidence. Rather, it is limited to the

question whether the military tribunal had jurisdiction.

See Jn re Yamashita, 327 U.S. 1, 8 (1946); Ex parte

Quirin, 317 U.S. 1, 25 (1942); see also Eisentrager, 339

U.S. at 786; id. at 797 (Black, J. dissenting) (extent of

review “is of most limited scope”); ef. Hamdi, 542 U.S.

at 535 (plurality opinion) (recognizing that “the full

protections that accompany challenges to detentions in

other settings may prove unworkable and inappropriate

in the enemy-combatant setting”).

Under Yamashita, there was review only of the

threshold jurisdictional question whether the offense

and offender were triable by military commission.

There was no review of other legal questions, compli-

ance with the military’s own procedures, or evidentiary

sufficiency—all of which the DTA and MCA permit. See

DTA § 1005(e)(2)(C)(i), 119 Stat. 2742. Thus, the review

provided by Congress in the DTA far surpasses the type

of review available under Yamashita—a level of review

deemed adequate for an alien enemy convicted by a mili-

tary commission and sentenced to death—and it affords

an adequate and effective substitute remedy for any

applicable habeas right. See Pressley, 430 U.S. at 381.

The review provided under the DTA is not only

greater than that afforded under Yamashita, it also is

fully consistent with traditional habeas practice even

outside the particularly deferential military context.

This Court has explained that under traditional habeas

review, “pure questions of law” are generally

reviewable, but, “other than the question whether there

was some evidence to support the order, the courts gen-

erally did not review the factual determinations made by

the Executive.” St. Cyr, 533 U.S. at 305-306 (footnote

15

omitted); ef. Herrera v. Collins, 506 U.S. 390, 400 (1993)

(“[H Jabeas courts sit to ensure that individuals are not

imprisoned in violation of the Constitution—not to cor-

rect errors of fact.”); 28 U.S.C. 2254(e). DTA review

fully satisfies even that standard for conventional ha-

beas petitions (putting aside the extraordinary nature of

the petitions here). Thus, even if precedent developed

in the non-military context were to be applied, petition-

ers’ Suspension Clause arguments would fail because

Congress has provided an adequate alternative remedy.

b. The settled rule is that federal courts will decline

to consider a habeas petition in circumstances where

other judicial or administrative remedies have not been

exhausted. See Rose v. Lundy, 455 U.S. 509, 515-516

(1982). This requirement is most commonly applied in

cases where the available remedies are in state-court

proceedings, see 28 U.S.C. 2254(b)(1), but it also applies

to federal proceedings, see, e.g., United States v. Hay-

man, 342 U.S. 205, 223 (1952), including those conducted

by military tribunals, see Clinton v. Goldsmith, 526 U.S.

529, 537 n.11 (1999); Noyd v. Bond, 395 U.S. 683, 693-

699 (1969); cf. Schlesinger v. Councilman, 420 U.S. 738

(1975). The comity considerations that underlie the ex-

haustion requirement are especially pressing here, given

that petitioners seek to challenge the concurrent judg-

ment of Congress and the President regarding the con-

duct of an ongoing war. See Hamdi, 542 U.S. at 531

(plurality opinion); Rasul, 542 U.S. at 487 (Kennedy, J.,

concurring in the judgment) (“| T |here is a realm of polit-

ical authority over military affairs where the judicial

power may not enter.”).

To be sure, in Hamdan v. Rumsfeld, 126 8. Ct. 2749

(2006), this Court declined to require exhaustion of the

military-commission process before considering a chal-

16

lenge to the system of military commissions unilaterally

established by the President. The Court emphasized

that, while courts ordinarily “should respect the balance

that Congress struck,” id. at 2770, the military commis-

sions were not established by Congress and did not pro-

vide for “independent review,” id. at 2771. The contrast

between this case and Hamdan, however, is striking.

Congress enacted the statute at issue here in direct re-

sponse to Hamdan. Moreover, the DTA and the MCA

expressly recognize and affirm the CSRT process. See

DTA § 1005, 119 Stat. 2740; MCA § 3(a)(1), 120 Stat.

2603 (to be codified at 10 U.S.C. 948d(c)). Under the

DTA and the MCA, petitioners will enjoy “independent

review” of the CSRT determinations in the D.C. Circuit.

This Court should now “respect the balance that Con-

gress struck” and allow that review process to run its

course under the traditional rule that a habeas peti-

tioner must first exhaust his remedies before challeng-

ing the scope of review.*

c. Exhaustion is also appropriate because it could

resolve many of petitioners’ specific objections to the

DTA process, and at a minimum it would allow this

Court to consider those objections in a more concrete

setting. Petitioners complain (Pet. 18-21) about various

aspects of the CSRT procedural rules. These objections

lack merit, because the CSRTs provide detainees with

* That is particularly true given that the Al Odah petitioners

represented to the Court in Rasu/ that they sought only a military

tribunal process to determine the validity of their detention, and “have

never sought to have Article III courts make any individualized

determinations of petitioners’ alleged status as enemies or to second-

guess military determinations as to which aliens pose a threat to the

United States.” Al Odah Reply Br. at 13, Rasul, supra (No. 03-334);

see Tr. of Oral Arg. 9-10, 15, 18-19, Rasul, supra (No, 03-334).

17

procedural protections exceeding even those that this

Court in Hamdi held would be sufficient for American

citizens held in the United States. See 542 U.S. at 533

(plurality opinion). More to the point, petitioners’ objec-

tions can be asserted in the D.C. Circuit under the DTA.

That court can determine the nature of petitioners’

rights, if any, under “laws of the United States” and the

U.S. Constitution, and can decide whether the CSRT

process violated any applicable rights. See DTA

§ 1005(e)(2), 119 Stat. 2742. Likewise, any claim that the

CSRT misapplied the applicable standards and proce-

dures is subject to review in the D.C. Circuit under the

DTA. See DTA § 1005(e)(2)(C), 119 Stat. 2742. Petition-

ers therefore will have adequate opportunity to raise

such grievances in their petitions for review in that

court.

Petitioners assert that the review afforded under the

DTA is insufficient because it does not authorize fact-

finding by the court of appeals, and it prohibits them

from submitting new exculpatory material. In fact, the

DTA contains a provision requiring that such new evi-

dence be considered by the Department of Defense.

DTA § 1005(a)(3), 119 Stat. 2741 (directing the Secre-

tary to “provide for periodic review of any new evidence

that may become available relating to the enemy com-

batant status of a detainee”). In accordance with that

requirement, the Defense Department will administra-

tively review new evidence that a petitioner submits to

determine whether it warrants reconsideration of the

CSRT’s enemy combatant determination.’ Thus, con-

* In addition to the CSRT review process, the Department of

Defense also conducts an annual administrative examination of whether

it is appropriate to release or repatriate an enemy combatant. The 328

administrative reviews conducted in 2006 resulted in determinations

18

trary to petitioners’ assertion, there is an administrative

mechanism for these detainees to submit new evidence

that may bear on their detention.

In any event, limiting the D.C. Circuit’s DTA review

to the CSRT record does not make the DTA a constitu-

tionally inadequate substitute for habeas review. As

noted above, in the context of the decisions of military

tribunals, this Court has repeatedly held that habeas

does not provide for factual review, and certainly does

not provide an opportunity for counsel to build a new

evidentiary record. Yamashita, 327 U.S. at 8, 17;

Quirin, 317 U.S. at 25. Even outside the military con-

text, there is no right to factual re-examination of a

judgment. See, e.g., Felker v. Turpin, 518 U.S. 651, 663-

664 (1996) (restrictions on successive petitions do not

violate Suspension Clause). Likewise, for the confirmed

alien enemy combatants here, there is no constitutional

right to successive CSRT decisions.

Moreover, it is not yet established how, in practice,

DTA review will be conducted. Those detainees who

have pursued their DTA remedies have argued strenu-

ously for an exhaustive scope of review, including

wide-ranging discovery and fact-finding by the court of

appeals—a level of review far exceeding that tradition-

ally available in habeas. See, e.g., Emer. Mot. for Order

Setting Procedures at 9-10, Parhat v. Gates, No. 06-1397

(D.C. Cir. filed Dec. 22, 2006) (petitioners “are entitled

that 55 detainees (roughly 17 percent) should no longer be detained at

Guantanamo Bay. See Department of Defense, Annual Administra-

tive Review Boards for Enemy Combatants Held at Guantanamo

Attributable to Senior Defense Officials (Mar. 6, 2007) <http://

www.defenselink.mil/transcripts/transcript.aspx’ transcriptid =3902 >.

Since 2002, approximately 390 detainees have been transferred or

released. See thid.

19

to a hearing and limited discovery” of “all evidence rele-

vant to petitioners’ enemy combatant determination”);

Mot. to Compel at 19, Bismullah v. Gates, No. 06-1197

(D.C. Cir. filed Aug. 7, 2006) (arguing that the “DTA

must be construed to permit Bismullah to adduce new

evidence in support of his claim that he is not and never

has been an ‘enemy combatant’”). The government has

opposed those arguments, but the D.C. Circuit has not

yet resolved them.” Conventional principles against

avoiding important constitutional questions before it is

necessary to decide them counsel strongly against jump-

ing to determine, at this early juncture, the adequacy of

DTA review before the D.C. Circuit has even had an

opportunity to determine what that review entails in a

concrete setting and issued a decision adverse to an en-

emy combatant.°

3. The court of appeals correctly held that petition-

ers do not enjoy rights under the Suspension Clause.

a. As the court of appeals recognized, this Court’s

precedent—including the constitutional holding of

Kisentrager—“holds that the Constitution does not con-

fer rights on aliens without property or presence within

° The D.C. Circuit has ordered expedited briefing and argument in

Parhat and Bismullah to consider the nature of review under the DTA

and issues relating to the entry of a proposed protective order address-

ing, among other things, counsel access to classified information. Oral

gre will be held on May 15.

’ Petitioners further contend (Pet. 20) that the DTA does not

expressly authorize the court of appeals to order a detainee’s release.

in fact, all of the detainees who were determined by CSRTs not to be

enemy combatants have been released from United States custody. See

Notice of Transfer at 3, Kiyemba v. Bush, No. 05-5487 (D.C. Cir. filed

Nov. 21, 2006). And, in any event, petitioners may direct to the D.C.

Circuit any arguments about the appropriate relief under the DTA in

the case (if any) in which such a detainee is not released.

20

the United States.” Pet. App. 14a. As to any alleged

rights under the Suspension Clause in particular, this

Court’s decision in Eisentrager is “controlling.” /bid.

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

Court held that aliens detained as enemies outside the

United States are not “entitled, as a constitutional right,

to sue in some court of the United States for a writ of

habeas corpus.” Id. at 777. The Court concluded that,

because the petitioner in that case had no constitutional

rights, the denial of habeas review did not violate either

the Suspension Clause or the Fifth Amendment. /d. at

777-779, 784-785. In rejecting the assertion of a consti-

tutional habeas right, the Court emphatically stated that

such an entitlement “would hamper the war effort.” Jd.

at 779. The Court explained that “[i]t would be difficult

to devise a more effective fettering of a field commander

than to allow the very enemies he is ordered to reduce to

submission to call him to account :n his own civil courts

and divert his efforts and attention from the military

offensive abroad to the legal defensive at home.” /bid.

This Court has repeatedly reaffirmed Fisentrager’s

holding that aliens outside the United States have no

rights under the Constitution. See United States v.

Verdugo-Urquidez, 494 U.S. 259, 273 (1990) (“Not only

are history and case law against [the alien], but as

pointed out in [Fisentrager], the result of accepting his

claim would have significant and deleterious conse-

quences for the United States in conducting activities

beyond its boundaries.”); Zadvydas yv. Davis, 533 U.S.

678, 693 (2001) (citing Eisentrager and Verdugo-

Urquidez for the proposition that “[i]t is well established

that certain constitutional protections available to per-

sons inside the United States are unavailable to aliens

outside of our geographic borders”).

21

Likewise, the courts of appeals have consistently

applied these precedents in various contexts. See, e.g.,

People’s Mojahedin Org. of lran v. Department of State,

182 F.3d 17, 22 (D.C. Cir. 1999) (a “foreign entity with-

out property or presence in this country has no constitu-

tional rights, under the due process clause or other-

wise”) (emphasis added), cert. denied, 529 U.S. 1104

(2000). With respect to Guantanamo Bay specifically,

the Eleventh Circuit has held that aliens there “have no

First Amendment or Fifth Amendment rights.” Cuban

Am. Bar Ass’n v. Christopher, 43 F.3d 1412, 1428, cert.

denied, 515 U.S. 1142 and 516 U.S. 913 (1995); see also

id. at 1425 (“We disagree that ‘control and jurisdiction’

is equivalent to sovereignty.”).'

Petitioners contend (Pet. 17; 06-1196 Pet. 14-15) that

Eisentrager is no longer good law in the wake of this

Court’s decision in Rasul. Petitioners misread Rasul.

Rasul held that the “statutory predicate” for the Court’s

holding in Fisentrager had been overruled, and it there-

fore rejected the D.C. Circuit’s broad holding, based on

Eisentrager, that habeas jurisdiction was entirely un-

available to aliens at Guantanamo Bay. See Rasul, 542

U.S. at 475, 479. It did not, however, cast any doubt on

Eisentrager’s holding—or the holdings of subsequent

cases relying on Eisentrager—that aliens held abroad

do not have a constitutionally guaranteed right to ha-

beas corpus. See id. at 478. Rasul addressed only the

extent to which the habeas statute applies

" Petitioners argue (Pet. 17-18) that it does ne matter whether they

enjoy constitutional rights, because the Suspension Clause is “a

limitation on congressional power.” But so too is the Fifth Amendment.

In any event, however the Suspension Clause is described, Fisent rager

establishes that it does not apply to aliens held outside sovereign

United States territory. Cf. Pet. App. 17a-19a.

22

extraterritorially, and it expressly reserved all constitu-

tional questions. See id. at 485. Nothing in Rasul sug-

gests that the Court implicitly overruled Eisentrager or

the many other precedents governing that question.

Petitioners’ reliance on a concurrence in Rasul (Pet.

17; 06-1196 Pet. 20) is likewise misplaced. Justice Ken-

nedy stated that the detainees at Guantanamo Bay are

distinguishable from the petitioner in Kisentrager in two

ways, from which he would have concluded that there

was jurisdiction under the federal habeas statute.

Rasul, 542 U.S. at 487-488 (Kennedy, J., concurring in

the judgment). First, he stated, “Guantanamo Bay is in

every practical respect a United States territory.” /d.

at 487. Second, “the detainees at Guantanamo Bay are

being held indefinitely, and without benefit of any legal

proceeding to determine their status.” Id. at 487-488

(emphasis added). The latter observation cannot extend

to this case. Since this Court’s decision in Rasul, all of

petitioners have had CSRTs, which have issued individu-

alized decisions determining that each is properly being

detained as an enemy combatant. Further, Congress

has not only recognized the CSRT process but provided

for review of those CSRT determinations in the D.C.

Circuit. Thus, there is an established statutory mecha-

nism for the detainees to challenge their status determi-

nation.

The other “critical” fact Justice Kennedy cited—that,

in construing the habeas statute, Guantanamo Bay

should be treated as sovereign territory of the United

States—was rejected by the majority in Rasul, which

held that the United States exercises control, but “not

‘ultimate sovereignty,” over the leased area. See 542

U.S. at 475. And although the Court concluded that

such control was sufficient to establish statutory habeas

23

jurisdiction even as to aliens, it focused on the distinc-

tive language of the habeas statute, see id. at 481, as

well as the “‘extraordinary territorial ambit’ of the writ

at common law,” id. at 482 n.12 (citation omitted). In-

deed, the very fact that the Court was addressing the

territorial reach of the writ underscores that

Guantanamo Bay—a part of the sovereign territory of

Cuba—lies outside the sovereign territory of the United

States.

In any event, the status of Guantanamo Bay for pur-

poses of the habeas statute is no longer a relevant con-

sideration. The DTA makes clear that detainees at

Guantanamo Bay have an avenue to challenge their de-

tention in the court of appeals and that that new statu-

tory remedy is exclusive. Accordingly, the question now

before the Court is the constitutionality of this new stat-

ute. As to that question, Eisentrager controls: petition-

ers, as aliens outside the United States, are not “enti-

tled, as a constitutional right, to sue in some court of the

United States for a writ of habeas.” 339 U.S. at 777.

Petitioners nevertheless contend that, even though

they are aliens held on Cuban sovereign territory, they

should be treated as being within the United States

since the United States has control over the Naval Base

at Guantanamo Bay. What was critical to the constitu-

tional holding in Kisentrager, however, was sovereignty,

not control. In Fisentrager, the petitioners were aliens

imprisoned at a United States military base in Germany,

which was controlled by the United States Army. See

339 U.S. at 766. Despite that control, this Court

stressed that the aliens “at no relevant time were within

any territory over which the United States is sovereign,”

id. at 778 (emphasis added), and, on that basis, it held

that application of the Fifth Amendment would be

24

impermissibly “extraterritorial” (id. at 784). The

United States is not sovereign over Guantanamo Bay; it

operates a naval base there under written agreements

with Cuba that expressly recognize Cuban sovereignty.”

Even if Guantanamo Bay were somehow treated as

sovereign United States territory (contrary to Rasuwl),

petitioners still would not have any constitutional rights.

In Verdugo-Urquidez, this Court held that aliens “re-

ceive constitutional protections when they have come

within the territory of the United States and developed

substantial connections with this country.” 494 U.S. at

271 (emphases added); see People’s Mojahedin, 182 F.3d

at 22. The Court further held that “lawful but involun-

tary” presence in the United States “is not of the sort to

indicate any substantial connection with our country” for

constitutional purposes. Verdugo-Urquidez, 494 U.S. at

271. Applying that rule, this Court denied Fourth

Amendment protection to an alien who was being de-

tained in the United States against his will, but who had

“no previous significant voluntary connection with the

United States.” Jbid. (emphasis added). Similarly,

here, petitioners’ presence at Guantanamo Bay is, as the

* See Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903,

U.S.-Cuba, T.S. No. 418 (Lease); Lease of Certain Areas for Naval or

Coaling Stations, July 2, 1903, U.S.-Cuba, T.S. No. 426 (Supp. Lease);

Treaty on Relations with Cuba, May 29, 1934, U.S.-Cuba, 48 Stat. 1682.

Under those agreements, “the United States recognizes the continu-

ance of the ultimate sovereignty of the Republic of Cuba” over the

leased area, and “Cuba consents” to United States control over that

area, but only “during the period” of the lease. Lease art. III. The

lease permits the United States to “de any and all things necessary to

fit the premises for use as coaling or naval stations only, and for no

other purpose.” Lease art. II. The United States may not, for example,

allow civilian settlement at Guantanamo Bay, or establish “commercial”

or “industrial” enterprises there. Supp. Lease art. [11.

25

petitions underscore, involuntary, and the detainees lack

significant voluntary connections with this country.”

b. Even if alien enemy combatants detained outside

the United States do possess some measure of constitu-

tional rights, the court of appeals correctly held that the

protections of the Suspension Clause do not extend “to

aliens held at an overseas military base leased from a

foreign government.” Pet. App. 14a.

As the court of appeals explained, the Suspension

Clause protects the common law writ of habeas corpus,

“as it existed in 1789.” Pet. App. 10a (quoting St. Cyr,

533 U.S. at 301). The court further noted that petition-

ers were unable to identify any cases “showing that the

English common law writ of habeas corpus extended to

aliens beyond the Crown’s dominions.” Pet. App. lla.

And the court, in undertaking its own review, found the

contrary: “lelvery territory * * * cited as a jurisdic-

tion to which the writ extended * * * was a sovereign

territory of the Crown,” but when “the Crown detained

prisoners outside the Crown’s dominions, it was under-

stood that they were outside the jurisdiction of the

writ.” /d. at 12a. As the court stated, “[{t]he short of the

matter is that given the history of the writ in England

prior to the founding, habeas corpus would not have

been available in 1789 to aliens without presence or

property within the United States.” /d. at 12a-13a.

The court’s conclusion is correct. Numerous contem-

porary treatises support its understanding of the scope

’ Even if Guantanamo Bay were treated as sovereign United States

{ rritory, and even if petitioners had a substantial connection to the

L_..ved States, petitioners would face an additional barrier to their

assertion of constitutional rights: their failure to effect an “entry” into

the United States. See Zadvydas, 533 U.S. at 693; Shaughnessy v.

United States ex rel. Mezei, 345 U.S. 206, 215 (1953).

26

of the writ at common law. See Pet. App. 11a (citing,

inter alia, 3 William Blackstone, Commentaries *131;

2 Robert Chambers, A Course of Lectures on the Eng-

lish Law: Delivered at Oxford, 1767-1773, at 7-8

(Thomas M. Curley ed., 1986)). Moreover, no cases to

the contrary have been identified. The cases upon which

petitioners rely are inapposite, as the court of appeals

explained, Pet. App. 10a-1la, because they all involved

petitions by aliens held within sovereign territory."

Nor do the cases cited by the dissent (id. at 33a-36a)

cast any doubt on the court of appeals’ holding."

In any event, as the court of appeals further ex-

plained, this Court’s decision in Eisentrager “ends any

doubt about the scope of common law habeas.” Pet.

App. 13a. In Eisentrager, this Court observed that no

court has ever issued a writ on behalf of an alien enemy

that was not within the court’s jurisdiction at any time

" See Lockington’s Case, Brightly 269 (Pa. 1813) (denying habeas

petition of enemy alien found in Philadelphia); The Case of Three

Spanish Sailors, 96 Eng. Rep. 775 (C.P. 1779) (declining to review

detention of sailors held within English sovereign territory because

they were “alien enemies and prisoners of war, and therefore not

entitled to any of the privileges of Englishmen; much less to be set at

liberty on a habeas corpus”); Rex v. Schiever, 97 Eng. Rep. 551 (K.B.

1759) (denying habeas to Swedish citizen held in Liverpool because

there was ample evidence that he was a prisoner of war).

" See Rex v. Cowle, 97 Eng. Rep. 587, 599 (K.B. 1759) (holding King’s

Bench had power to issue writ to Berwick, an English borough, after

determining that Berwick was part of sovereign English territory); Rex

v. Mitter, 1 Indian Dec. 1008 (Calcutta S.C. 1781) (local court in India,

specifically authorized by the British Parliament pursuant to the East

India Company Regulation Act of 1773, held that it lacked power to

issue writ); Rex v. Hastings, 1 Indian Dec. 1005 (Calcutta S.C. 1775)

(same).

27

during his captivity. See 339 U.S. at 768. Petitioners

provide no reason for revisiting that conclusion here.

Petitioners contend (Pet. 15-16; 06-1196 Pet. 18) that

the court of appeals’ reliance on Hisentrager ignored

this Court’s more recent decision in Rasul. That is in-

correct. Rasul was limited to a construction of the fed-

eral habeas statute; it studiously avoided addressing the

constitutional right to habeas. See pp. 21-22, supra.

Insofar as the Court discussed common-law habeas

rights in Rasul, it did not conclude that habeas jurisdic-

tion would have extended to aliens outside the sovereign

territory of England. Instead, it stated that, “[aJt com-

mon law, courts exercised habeas jurisdiction over the

claims of aliens detained within sovereign territory of

the realm, as well as the claims of persons detained in

the so-called ‘exempt jurisdictions, where ordinary

writs did not run, and all other dominions under the sov-

ereign’s control.” 542 U.S. at 481-482 (footnotes omit-

ted). The cited cases involving “persons” outside the

“sovereign territory of the reali” all involved British

subjects. See id. at 481-482 nn.12-13. In stating that

“{a]pplication of the habeas statute to persons detained

at the base is consistent with the historical reach of the

writ,” id. at 481 (emphasis added), the Court thus rested

not on the historic availability of habeas to aliens

abroad, but on its historic availability to citizens abroad

in controlled territories, combined with the fact that the

habeas “statute draws no distinction between Americans

and aliens.” See id. at 481-82. The DTA, of course,

draws just such a distinction, and so aliens outside the

realm to whom the writ was historically unavailable

have no basis to piggyback on the availability of the writ

to citizens outside the realm. For that reason, Rasu/ in

28

no way undermines Hisentrager’s holding as to the

scope of the writ protected by the Suspension Clause.”

4. Finally, petitioners raise various objections to the

merits of their detention. Those arguments have not

been considered by the court of appeals, so they do not

provide a basis for review here. See Capital Cities Ca-

ble, Ine v. Crisp, 467 U.S. 691, 697 (1984). They should

instead be presented to the D.C. Circuit in the context

of DTA review of petitioners’ CSRT determinations. If

petitioners are dissatisfied with the outcome of the pro-

ceedings in the D.C. Circuit, they may seek further re-

view in this Court at that time.

In any event, petitioners’ objections lack merit. Peti-

tioners contend (Pet. 25) that the definition of “enemy

combatant” as applied to them is inconsistent with the

AUMF and Executive authority. That is incorrect. The

AUMF authorizes the President to take action against

all “organizations” that “planned, authorized, commit-

ted, or aided” the September 11 attacks. 115 Stat. 224.

Al Qaida is undeniably such an organization, and the

CSRTs determined that petitioners were “part of or

supporting * * * al Qaida forces or associated forces

that are engaged in hostilities against the United

States.” Pet. App. 8la. Petitioners’ claim that Hamdi

limits the Executive’s authority under the AUMF is

without basis. In Hadi, the plurality looked to the text

of the AUMF and traditional laws of war in upholding

Petitioners assert that the Suspension Clause may extend beyond

the writ “as it existed in 1789.” Pet. 14 (citing St. Cyr, 583 U.S. at 301).

Whatever the merits of “[a}n evolving interpretation of the Suspension

Clause”; Pet. 15 n.12, that issue is not presented in this case. Petition-

ers cannot show any historical practice, either before or after 1789, of

extending habeas corpus to alien enemies detained outside of sovereign

territory.

29

the President’s authority to detain individuals who were

“part of or supporting forces hostile to the United

States” and who had themselves “engaged in an armed

conflict against the United States.” 542 U.S. at 516-521;

see also id. at 586-588 (Thomas, J., dissenting). Nothing

in Hamdi even remotely suggests, however, that the

AUMF encompasses only those individuals.

The suggestion (Pet. 28), that petitioners are being

improperly detained because they are akin to “little old

ladlies} in Switzerland” who unwittingly lend financial

support to al Qaida activities, is absurd. After individu-

alized hearings, petitioners were each found to be enemy

combatants based on their substantial connections with,

or provision of support to, al Qaida or associated

forces—a terrorist network that has already inflicted

the deadliest foreign attack ever on American soil and

has repeatedly vowed to strike America and its allies

again. The records of those CSRT proceedings contain

ample evidence supporting those findings."

While classified information reinforces many of the CSRT

determinations and cannot be addressed in a public filing, the unclassi-

fied summaries and other unclassified material in the record provide a

much different perspective on these enemy combatants than suggested

by the petitions. The lead habeas petitioners in the various cases for

which petitions have been filed who remain in detention are indicative:

Al Odah went to Afghanistan shortly before September 11, used an AK-

47 at a training camp, and carried a weapon through the Tora Bora

mountains during the US campaign in the region. Unclassified CSRT

Decision Report (Al Odah), encl. 1, at 1. (The CSRT Decision Reports

were included in the factual returns to the habeas petitions and are part

of the district court record.) Boumediene traveled to conflict hotspots

throughout the i990s and provided assistance on several occasions to

a known al Qaida operative. Unclassified CSRT Decision Report

(Boumediene), enc]. 1, at 1; ¢d. exh. Rl. David Hicks trained with al

Qaida, collected intelligence on the U.S. Embassy in Afghanistan, and

fought on the front lines against the United States in Afghanistan.

30

Petitioners are free to challenge those enemy-com-

batant determinations. And under the DTA, the D.C.

Circuit can review the record evidence to ensure that

the CSRTs properly adhered to the applicable standards

and procedures and that their determinations are sup-

ported by a preponderance of the eviaence. See DTA

§ 1005(e)(2)(C), 119 Stat. 2742. At a minimum, any con-

sideration by this Court of the questions presented by

this case should await the outcome of such proceedings.

CONCLUSION

The petitions for a writ of certiorari should be de-

nied.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

PETER D. KEISLER

Assistant Attorney General

DOUGLAS N. LETTER

ROBERT M. LOFB

CATHERINE Y. HANCOCK

SARANG V. DAMLE

Attorneys

MARCH 2007

Unclassified CSRT Decision Report (Hicks), encl. 1, at 1. Falen

Gherebi was an al Qaida operative in Kabul who fled Afghanistan in

November 2001; his name was also on a list of individuals who trained

at an al Qaida camp. Unclassified CSRT Decision Report (Gherebi),

encl. 1, at 1; id. exh. Rl. Zohair Al-Shorabi went to Afghanistan for

weapons training and fought on the front lines. CSRT Decision Report,

encl. 1, at 1. Jamil El-Banna met with and aided an al Qaida operative,

Abu Qatada, while he was in hiding from British police. Al Odah C.A.

Supp. J.A. 1806. Ali Abdullah Almurbati voluntarily traveled from

Bahrain to Afghanistan in November 200i to get training and “fight the

Jihad.” Unclassified CSRT Decision Report (Almurbati), encl. 1, at 1.