# Opposition Brief — Boumediene v. Bush

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008
- **Citation:** 553 U.S. 723

## Text

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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) .............. 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) .
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0525%3A03. Public record. Not legal advice.