Amicus Curiae Brief — Boumediene v. Bush

2 e

Nos. 06-1195 and 06-1196

IN THE

Supreme Court of the United States

LAKHDAR Bol MEDIENF. ef al..

Petitioners,

We

GEORGE W. BUSH. ef al.

Respondents.

KHALED A. F. AL ODAH, ef al.

Petitioners.

UNITED STATES. e7 al.

Respondents.

On Petitions for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF AMICUS CURIAE OF

UNITED STATES SENATOR ARLEN SPECTER

IN SUPPORT OF PETITIONERS

SENATOR ARLEN SPLCTER *

Ranking Member

SENALF JUDICIARY COMMITTEE

152 Dirksen Senate Off. Bldg.

Washington. DC 20510

* Counsel of Record (202) 224-5225

WiLSON-EPES PRINTING CO..INC. — (202) 789-0096 -— WasSHinGTON.D C 20002

TABLE OF CONTENTS

Page

ee ie FF re Bi cccteterteccntaccccsnecesncinensotmenions il

INTEREST OF AMICUS CURIAE ..........:.seccssseeessceeees l

SUMMARY OF ARGUMENT ......0.........ccccccessseeeeseeeees

TT ssabichsstiahiidcsichienibduibiieilsiacnisantainiddiaiadasiiniansininanin 4

7

I. The MCA Precludes Habeas Relief in Pending

Re isesesinacincitiescmnocnnenaggiasninsunnsetiimiatiaieiiiiisaeiiitin 4

Il. The Great Writ Extends to Guantanamo

INT nicrteninbsnessisiighnecintnapiinciiapnidlacisiinaiasdbiiangaananens 5

II]. The Framework For Challenging Detention Is

an Insufficient Substitute for the Great Writ ..... 10

A. The Framework Lacks an Independent

EE trtesetiitnsnndtcinieinesasessntnipibiniadesanininnten 1]

B. The Framework Lacks an_ Imperative

EE desist sarntierinnescaifedtiiicmnentinmnmitiidiiniaeinsiane 12

C. The Framework Fails to Afford a Fair

Opportunity to Rebut the Accusations......... 15

IV. This Court’s Guidance is Necessary as a

Ie TUM cicenieniactincsicdsindinniniiidapsensleninesien 18

eNO suisiccdicslacebeeintciinianieptitsrennaieniiisnsiidaatioigitainaian 20

(i) ,

TABLE OF AUTHORITIES

CASES Page

Balzac v. Porto Rico, 258 U.S. 298 (1922)........... 15

Boumediene v. Bush, 476 F.3d 981 (D.C. Cir.

vane einicnilerniniiiasegentnidebeiinidbnisndumenniiapieimpeietiainnes passim

Cuban Am. Bar Ass’n, Inc. v. Christopher, 43

Bor ii i + a eeneeenae 15

Delaney v. Matesarez, 264 F.3d 7 (1st Cir. 2001). 10

Dorr v. United States, 195 U.S. 138 (1904) .......... 16

Felker v. Turpin, 518 U.S. 651 (1996) ...............02. 10

Gherebi v. Bush, 352 F.3d 1287 (9th Cir. 2003)..... 7, 8,9

Gov't of the Canal Zone vy. Scott, 502 F.2d 566

ay See ctebiieniesintieniresieaslebunislienniiesamnniensonsie 15

Haitian Ctrs. Council, Inc. v. McNary, 969 F.2d

RN SI cocesischsenesttihiaiibcetsiaihaniteiicisatiaduonios 15

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

Hamdan v. Rumsfeld, 126 §. Ct. 2749 (2006)........ 3,12

In re Guantanamo Detainee Cases, 355 F. Supp.

Be FED GE, BD ccccnstesntccsccntnctenscsesemnnncosses 18

INS v. St. Cyr, 533 U.S. 289 (2001)...........ccccceesees 5, 10

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

King v. Cowle, 97 Eng. Rep. 587 (K.B. 1759)...... 6

Korematsu v. United States, 323 U.S. 214 (1944) .. 9

Lonchar v. Thomas, 517 U.S. 314 (1996) ............. 11,12

McCleskey v. Zant, 499 U.S. 467 (1991)....c.cc000000- 12

Miller v. Marr, 141 F.3d 976 (10th Cir. 1998)...... 10

Preiser v. Rodriguez, 411 U.S. 475 (1973) ........... 13

Price v. Johnston, 334 U.S. 266 (1948)................. 12

Rasul v. Bush, 542 U.S. 466 (2004).............:2.c00000 passim

Sanders v. United States, 373 U.S. 1 (1963) ......... 10

Souter v, Jones, 395 F.3d 577 (6th Cir. 2005)....... 10

Swain v. Pressley, 430 U.S. 372 (1977) ..........20000 5,10

United States v. Hayman, 342 U.S. 205 (1952)..... 10

United States v. Lee, 906 F.2d 117 (4th Cir.

ill

TABLE OF AUTHORITIES—Continued

Page

United States v. Rogers, 388 F. Supp. 298 (E.D.

See See ciceatebnepicideieitntaicialaibdiaieanadletniiidiameidaniinees 7

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

STI cisetsticicuasepincnenesscnitbihaniiniibiieehabaitaadaabensiasataniniat 16

Vermilya-Brown Co. v. Connell, 335 U.S. 377

STU aiiibieceresosissabieibociarndetdcieiiiiidaailsidabenbicieisensans 9,15

Wilkinson v. Dotson, 544 U.S. 74 (2005).............. 13

Zadvydas v. Davis, 533 U.S. 678 (2001)............... 15, 16

UNITED STATES CONSTITUTION

Article I, Section 9, Clause 2....................0.sssesseeees ae

STATUTES AND BILLS

nin inteinaistcieiaiesiianiinnnmedeldibiais 4

STITT distinc nictatniriiietennianinnsisidaianmitiond passim

GEER Cee ee ae DENT oe 10, 13

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

es 0 ts Ge ctincnatnnienininececeensennpunenene passim

Effective Terrorists Prosecution Act of 2006,

ns III, iticishicsenstinbtdiiisinctinininrintiniiiniee 19

Habeas Corpus Restoration Act of 2006, S.4081,

SITTIN: dinsdiratssenineinticinnnpincccmibeisinieitiiinibiniianns 19

Habeas Corpus Restoration Act of 2007, 8.185,

SITET seniisdeisiun) Uascadiieitnbibcndiastaimmmcenbesseinbenies 19

Judiciary Act of 1789, 1 Stat. 73.00... 2

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

109-366, 120 Stat. 2600..............cceeeeseeeseeeeees passim

S.A. 5087, 109th Cong. (2006)............ccceeeeeeeeeeee 19

TREATIES AND OTHER AGREEMENTS

Availability of Certain Indian Ocean Islands for

Defense Purposes, Dec. 30, 1966, U.S.-U.K..,

ep MAT Mali iisctitinniatideiscinieshosiiisighunpsinittiidiiaiadabaiiaaeiaal 8

iV

TABLE OF AUTHORITIES—Continued

Defense of Greenland, June 8, 1951, U.S.-Den., 2

Ba a dichinchiseiintiiecsetvedineiecihenintetesneciisiiindiiininnies

Establishment of Long Range Aid to Navigation

Station in the Bahama Islands, June 24, 1960,

je 2) Ge | tS tp | Senne

Lease of Certain Areas for Naval or Coaling

Stations, July 2, 1903, U.S.-Cuba, T.S. No.

Lease of Lands for Coaling and Naval Stations,

Feb. 23, 1903, U.S-Cuba, T.S. No. 418.............

Mutual Defense Treaty, Oct. 1, 1953, U.S.-S.

ee Es

Treaty Between the United States and Cuba

Defining Their Relations, May 29, 1934, US-

a is sseiceeiadonnsse

Treaty Regarding United States Defence Areas

and Facilities in Antigua, Jan. 1, 1978, U.S.-

Ant. & Barb., 29 U.S.T. 4183 .0..........cccccececeeeeeee

CONGRESSIONAL RECORD

ell

IT Ie oe oer a eee ae ee

lee

COMMITTEE HEARINGS

Detainees: Hearing Before the Senate Committee

on the Judiciary, 109th Cong. (June 15, 2005) ...

Examining Proposals to Limit Guantanamo

Detainees’ Access to Habeas Corpus Review:

Hearing Before the Senate Committee on the

Judiciary, 109th Cong. (Sept. 25, 2006)............

Hamdan v. Rumsfeld: Establishing a Constiu-

tional Process: Hearing Before the Senate

Committee on the Judiciary, 109th Cong. (July

Page

8

19

19

19

i.

Vv

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS Page

35 Op. Att’y Gen. 536 (1929)..........eesceseeseeeeeennes 15

Dep’t of Defense, Transcript of CSRT Hearing

for ISN 10024 (Mar. 10, 2007)..........cccseeeeeees l

Dep’t of Defense, Transcript of Press Conference

es Me ices diccininecihenidannticdiipeiiapetitiunttipnaseiaiee 14

R. Jackson, Wartime Security and Liberty Under

Law, | BUFFALO L. REV. 103 (1951)................. 20

Memorandum for Secretaries of the Military

Departments, Revised Implementation of Ad-

ministrative Review Procedures (July 14,

Fe itcediphieasnecnestennciiaadnidanaiiansinnnibadeimintilitenis 13,14

Memorandum for the Secretary of the Navy,

Order Establishing Combatant Status Review

Tribunal (July 7, 2004) (““CSRT Order’”)........... 2,13

Memorandum of the Secretary of the Navy,

Implementation of Combatant Status Review

Tribunal Procedures (July 29, 2004) (“CSRT

TUTTI Diicissstslinnetishininnomitariiiciabidinneniuiislighibeneieidiadi passim

G. L. Neuman, Anomalous Zones, 48 STAN. L.

BY, Fe a evsciineiisinicidsietinissinniinnmappnnintansinl 8,9, 15

D. Priest, CIA Holds Terror Suspects in Secret

Prisons, WASH. POST. Nov. 2, 2005................... 8

D. Shapiro, Habeas Corpus, Suspension, and

Detention: Another View, 82 NOTRE DAME L.

RR, Fe Ga nitshsscsictinsinnesnittaianiaiatanimintiiibiinaniee 16

Statement by the Government of Cuba to the

National and International Public Opinion

Eee NE rT nN 7

K. L. Storrs & C. Veillette, CRS Report, Andean

Regional Initiative (ARI): FYI 2003 Supple-

mental and FY 2004 Assistance for Colombia

and Neighbors (Jan. 31, 2004)............cceeccccceeeees 8

vi

TABLE OF AUTHORITIES—Continued

Page

M. Wald, U.S. Curbs Low-Flight Training in

Italy Near '98 Ski-Lift Deaths, N.Y. TIMES,

Bt Es IE cestnideiitnimnedamndincnscaticnmmnensstennncsans 8

J. White, Alleged Architect of 9/11 Confesses To

Many Attacks, WASH. PosT., Mar. 15, 2007...... ]

INTEREST OF AMICUS CURIAE'

Amicus is the Ranking Member of the Senate Committee

on the Judiciary. During the 109th Congress, when the Mili-

tary Commissions Act of 2006 and the Detainee Treatment

Act of 2005 moved through the Senate, amicus was Chairman

of the Committee and held several hearings to consider

whether it is constitutionally permissible for Congress to deny

the right of habeas corpus to detainees held at the United

States Naval Station at Guantanamo Bay. Therefore, amicus,

being intimately familiar with the statutory provisions impli-

cated in these cases, urges this Court to grant review and to

resolv. 1e constitutional questions presented.

INTRODUCTION AND SUMMARY OF ARGUMENT

The United States began sending alien detainees to Guan-

tanamo over five years ago, having previously found them to

be enemy combatants when they were initially captured.

During that time, some 390 detainees have been released, and

others have been added. In total, the base remains home to

385 detainees, of whom eighty have heen designated for

release. By all accounts, there are some very dangerous indi-

viduals residing within the walls of Guantanamo. Toward

the end of 2006, for example, the government transferred

fourteen “high value” detainees to the base, including the

alleged (and now, apparently, confessed) 9/11 mastermind,

Khalid Sheikh Muhammad.’ Moreover, reports indicate

some twenty former detainees may have returned to the

' This brief is filed with the consent of the parties. The parties” letters

of consent will be filed together with this brief. Pursuant to Rule 37.6,

amicus affirms that no counsel for a party authored this brief in whole or

in part and that no other person, other than amicus and its counsel, made a

monetary contribution to its preparations or submission.

* See Dep't of Defense, Transcript of CSRT Hearing for ISN 10024

(Mar. 10, 2007); J. White, Alleged Architect Of 9/11 Confesses To Many

Attacks, WASH. POST, Mar. 15, 2007, at Al.

sf

2

battlefield to face U.S. forces. Given the lengthy debates and

disagreements among Members of Congress as to the han-

dling of these detainees, and the perception that the United

States Court of Appeals for the District of Columbia Circuit

failed to follow this Court’s direction in Rasul v. Bush, 542

U.S. 466 (2004), this Court should review these cases this term.

The question presented here is not whether some of the

individuals should continue to be detained. They should.

The question is whether the U.S. Constitution ensures that the

writ of habeas corpus is available for detainees to contest the

legality of their detention by the executive.

The writ of habeas corpus is an age-old remedy for

unlawful detention at the hands of the executive. The Found-

ers imported this common law right from England; afforded it

constitutional protection in the Suspension Clause, U.S.

Const. art. I., § 9, cl. 2; and authorized the federal courts to

issue the writ, see Judiciary Act of 1789, ch. 20, § 14, 1 Stat.

73, 81-82.

Three years ago, in Rasul, this Court explained that the

common law writ extends to both citizens and aliens within

United States territory. 542 U.S. at 481. In turn, the Court

reasoned that because the United States exercises exclusive

jurisdiction and control over Guantanamo, “[a]pplication of

the habeas statute to persons detained at the base is consistent

with the historical reach of the writ of habeas corpus.”

Id.; see 28 U.S.C. § 2241 (2000). Shortly thereafter, the

Department of Defense (DoD) instituted Combatant Status

Review Tribunals (CSRTs) to ascertain whether each de-

tainee should still be considered an enemy combatant and

remain detained at the Guantanamo facility. See Memo-

randum for the Secretary of the Navy, Order Establishing

Combatant Status Review Tribunal (July 7, 2004) (““CSRT

Order”); Memorandum of the Secretary of the Navy, Imple-

mentation of Combatant Status Review Tribunal Procedures

(July 29, 2004) (“CSRT Rules”).

3

The following year, with the Detainee Treatment Act of

2005, Pub. L. No. 109-148, 119 Stat. 2739 (2005) (DTA),

Congress purported to preclude habeas petitions from Guan-

tanamo detainees while providing for a limited review of

CSRT determinations in the D.C. Circuit. Jd. § 1005(e). In

Hamdan vy. Rumsfeld, 126 S. Ct. 2749 (2006), the Supreme

Court held that this so-called jurisdiction-stripping provision

did not apply to pending cases and therefore found it unneces-

sary to address its constitutional implications. In response,

Congress passed the Military Commissions Act of 2006, Pub.

L. No. 109-366, 120 Stat. 2600 (2006) (MCA), to preclude

detainee habeas petitions in all cases (pending and future).

In the present cases, the court of appeals relied on Johnson

v. Eisentrager, 339 U.S. 763 (1950), in holding that the

Guantanamo detainees have no constitutional right to seek

habeas relief because Guantanamo is not within the sov-

ereign territory of the United States. Boumediene v. Bush,

476 F.3d 981, 990-92 (D.C. Cir. 2007). This decision flies

directly in the teeth of this Court’s reasoned conclusion in

Rasul as to Guantanamo’s unique territorial status, which

places it within the “historical reach of the writ” as it existed

at common law prior to and during the founding era.

The procedures for reviewing enemy combatant status

provided pursuant to the DTA and MCA depart dramatically

from the core features of habeas relief and are, thus, a wholly

inadequate substitute. In particular, they fail to provide an

independent forum, an imperative remedy, and a fair op-

portunity to contest enemy combatant status.

Congress has struggled with the important constitutional

questions presented in these cases. The arguments have been

aired and re-aired. The time is ripe for this Court to address

the constitutional infirmity of the MCA’s attempt to curtail

the right of habeas corpus. Habeas must be restored to ensure

that the rule of law prevails at Guantanamo. This Court

should grant review and resolve the matter this term.

4

ARGUMENT

I. The MCA Precludes Habeas Relief in Pending

Cases

As a preliminary matter, this Court should decline Peti-

tioners’ invitation to exempt pending cases from the ambit of

the MCA. See Boumediene Pet. 12-14; Al Odah Pet. 25-26.

The Petitioners’ argument is little more than a red herring

aimed at avoiding this Court’s review of the pressing con-

stitutional issues. The language of the statute is straight-

forward: it precludes pending and future actions, both habeas

and non-habeas (except for CSRT appeals in the D.C.

Circuit), that relate to “any aspect of the detention, transfer,

treatment, trial, or conditions of confinement.” See MCA § 7

(codified at 28 U.S.C § 2241(e)).

Section 7(a) of the MCA removes (1) “jurisdiction to hear

or consider an application for a writ of habeas corpus” and

(2) “jurisdiction to hear or consider any other action. . .

relating to any aspect of the detention, transfer, treatment,

trial, or conditions of confinement.” (Emphasis added). In

turn, section 7(b) states that “subsection (a) . . . shall apply to

all cases, without exception, pending on or afier the date of

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

detention, transfer, treatment, trial, or conditions of deten-

tion.” (Emphasis added). Although this list mirrors the list

found in the second clause of section 7(a), it does not mean

that section 7(b) exempts habeas cases. To the contrary,

section 7(b) explicitly references the entirety of 7(a) and

conspicuously omits the word “other”’—a qualifier used in

section 7(a) to address non-habeas actions. In short, there is

no significance to section 7(b)’s use of one clause to refer to

what section 7(a) refers to in two clauses. Cf MCA § 3(a)

(adding 10 U.S.C. § 950)).

Moreover, as Congress debated and passed the MCA, both

the Members who supported and the Members who opposed

5

these provisions recognized the effect on pending habeas

cases. See, e.g., 152 CONG. REC. $10357 (Sept. 28, 2006)

(Sen. Leahy) (“This new bill strips habeas jurisdiction

retroactively, even for pending cases.”); id. at $10404 (Sen.

Sessions) (“I don’t see how there could be any confusion as

to the effect of this act on the pending Guantanamo liti-

gation.”).’ Similarly, the court below unanimously agreed

that the statute impacts pending habeas cases. Boumediene,

476 F.3d at 986-88; id. at 999 (Rogers, J., dissenting).

Any attempt to avoid this interpretation runs headlong into

the plain text and the clear understanding of the legislators.

See Swain v. Pressley, 430 U.S. 372, 378 n.11 (1977). As

a consequence, this Court should move past the statutory

argument and determine whether the MCA’s jurisdiction-

stripping provisions are constitutional.

II]. The Great Writ Extends to Guantanamo Detainees

The Constitution provides that “[t]he Privilege of the Writ

of Habeas Corpus shall not be suspended, unless when in

Cases of Rebellion or Invasion the public Safety may require

it.” U.S. Const., art. 1, § 9, cl. 2. Ata minimum, this consti-

tutional protection extends to the writ as it existed at common

law in 1789. JNS v. St. Cyr, 533 U.S. 289, 301 (2001).

Although it has expanded since that time, “[a]t its historical

core, the writ of habeas corpus has served as a means of

reviewing the legality of Executive detention, and it is in that

context that its protections have been strongest.” /d.

In Rasul, this Court held that the federal habeas statute was

available to aliens being detained at Guantanamo. See 542

U.S. at 485; 28 U.S.C. § 2241 (2000). In reaching this

conclusion, the Court reasoned that extending habeas to such

* Accord 1$2 CONG. REC. $11197 (Dec. 5, 2006) (Sen. Specter); id. at

$10364-65 (Sept. 28, 2006) (Sens. Smith and Levin); id at $10269-70

(Sept. 27, 2006) (Sen. Kyl); id. at H7544-45 (Rep. Sensenbrenner).

6

individuals was “consistent with the historical reach of the

writ of habeas corpus,” given that Guantanamo was “territory

over which the United States exercises exclusive jurisdiction

and control.” Rasul, 542 U.S. at 476, 481-82. At common

law, the Court declared, “even if a territory was ‘no part of

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

issue writs of habeas corpus if the territory was ‘under the

subjection of the Crown.’” /d. at 482 (quoting King v. Cowle,

97 Eng. Rep. 587, 598-99 (K.B. 1759)).

The court of appeals held that “(t]he text of the lease and

decisions of circuit courts and the Supreme Court all make

clear that Cuba—not the United States—has sovereignty over

Guantanamo Bay.” Boumediene, 476 F.3d at 992. However,

this conclusion is irrelevant given that, under Rasul, the

“historical reach of the writ” turns not on de jure sovereignty,

but rather on de facto exclusive jurisdiction and control.

It bears emphasizing that Guantanamo, for the reasons

mentioned in Rasul, is uniquely situated. 542 U.S. at 471,

480-81. Under the 1903 lease agreement (“Lease”), although

Cuba retains “ultimate sovereignty,” the United States “shall

exercise complete jurisdiction and control over and within

said areas.” Also, pursuant to a subsequent treaty, the

arrangement is to last indefinitely and it cannot be unilaterally

terminated by Cuba.’ As Justice Kennedy explained, “Guan-

tanamo Bay is in every practical respect a United States

territory, and it is one far removed from any hostilities. . . .

From a practical perspective, the indefinite lease . . . has

produced a place that belongs to the United States, extending

the ‘implied protection’ of the United States to it.” Rasul,

* Lease of Lands for Coaling and Naval Station., Feb. 23, 1903, U.S.-

Cuba, art. Ill, T.S. No. 418.

> See Treaty Between the United States and Cuba Defining Their

Relations, May 29, 1934, U.S.-Cuba, art. Ill, T.S. No. 866.

7

542 U.S. at 487 (concurring opinion) (quoting Eisentrager,

339 U.S. at 777-78).

Additional facts illustrate this exclusive control. First,

under the lease agreement, “(t]he United States exercises

exclusive criminal jurisdiction over all persons, citizens and

aliens alike, who commit criminal offenses at the Base[.]”

Gherebi v. Bush, 352 F.3d 1278, 1289 (9th Cir. 2003),

vacated on other grounds, 542 U.S. 952 (2004).° Second, the

United States has the power of eminent domain at Guan-

tanamo. See Lease, art. III]. Third, when Fidel Castro severed

water and supplies to the base in 1964, the base promptly

“became and remains entirely self-sufficient, with its own

water plant, schools, transportation, entertainment facilities,

and fast-food establishments.” Gherebi, 352 F.3d at 1295.

Fourth, although Cuba has declared its belief that the United

States has not adhered to restrictions in the original agree-

ment, Cuba nonetheless has recognized that it is powerless to

do anything about it.’ Fifth, the base remains in place despite

the decidedly rocky relations between the United States

and Cuba.

The contrast between Guantanamo and other American

military bases, past and present, further highlights the point.

° See Lease of Certain Areas for Naval or Coaling Stations, July 2,

1903, U.S.-Cuba, art. IV, T.S. No. 426; United States v. Lee, 906 F.2d

117, 117 & n. 1 (4th Cir. 1990) (Jamaican national charged with sexual

abuse occurring at Guantanamo); United States v. Rogers, 388 F. Supp.

298, 301 (E.D. Va. 1975) (U.S. civilian employee at Guantanamo Bay

under contract with the Navy was prosecuted for drug offenses and tried

in Virginia).

” Compare Lease, Art. li (permitting the United States “generally to do

any and all things necessary to fit the premises for use as coaling or naval

stations only, and for no other purpose”), with Statement by the

Government of Cuba to the National and International Public Opin-

ion (Jan. 11, 2002) (“Cuba could do absolutely nothing to prevent [other

activities}."), available at http://ciponline.org/cuba/cubaproject/cuban

statement.htm (last visited Mar. 15, 2007).

For example, Diego Garcia, located in the Indian Ocean, is

operated under an agreement with Great Britain that, unlike

the Guantanamo lease, is terminable by either party." Sim-

ilarly, the United States has operated various military

facilities under agreements that run only for a specific period

of time,’ articulate very narrow purposes,'° or provide for

joint control.'' Indeed, Landsberg, the post-WWII prison in

Germany that housed the petitioners in Eisentrager, was

operated “under three flags” (United States, Great Britian,

and France). Gherebi, 352 F.3d at 1287 n.10. In still other

instances of American control abroad, the host country has

pressured the United States to leave or make changes.'? Such

is not the case at Guantanamo, where the United States “is

* See Availability of Certain Indian Ocean Islands for Defense Pur-

poses, Dec. 30, 1966, U.S.-U.K., para. 11, 18 U.S.T. 28 (terminating two

years after “either Government shall have given notice of termination to

the other”); see also, e.g., Establishment of Long Range Aid to Navigation

Station in the Bahama Islands, June 24, 1960, U.S.-U.K., art. XXVI, 11

U.S.T. 1587; Mutual Defense Treaty, October |, 1953, U.S.-S. Korea, art.

VI, 5 U.S.T. 2368.

* See, e.g., Treaty Regarding United States Defence Areas and Facil-

ities in Antigua, Jan. 1, 1978, U.S.-Ant. & Barb., art. XXIV, 29 U.S.T.

4183 (“This Agreement shall come into force on January 1, 1978, and

shal] remain in force through December 31, 1988.”).

'° See, e.g., K. L. Storrs & C. Veillette, CRS Report, Andean Coun-

terdrug Initiative (ACI) and Related Funding Programs: FY2005, at 18

(May. 10, 2005) (describing agreement for use of location “solely for the

detection of drug trafficking flights in the region”).

'' See, e.g., Defense of Greenland, June 8, 1951, U.S.-Den., art. I, 2

U.S.T. 1485.

'? See, e.g., D. Priest, CIA Holds Terror Suspects in Secret Prisons,

WASH. PosT., Nov. 2, 2005, at Al (reporting that, in 2003, the Thai

government insisted CIA shut down “black” site where it was holding and

interrogating suspected terrorists); M. Wald, U.S. Curbs Low-Flight

Training in Italy Near '98 Ski-Lift Deaths, N.Y. TiMeES, Mar. 11, 1999, at

A7 (describing Italian response to accident involving U.S. pilots based out

of Aviano).

9

accountable to no one.” G. L. Neuman, Anomalous Zones, 48

STAN. L. REV. 1197, 1230 (1996); see also Gherebi, 352 F.3d

at 1300 (“[T]he United States’ territorial relationship with the

Base is without parallel today|.]”).

Consequently, the lower court’s reliance on Eisentrager is

misplaced. See Boumediene, 476 F.3d at 990-92. In

Eisentrager, this Court turned back the habeas claims of

enemy aliens who were captured, tried, convicted, and de-

tained on non-U.S. territory. Once Guantanamo is under-

stood to be a U.S. territory for these purposes, as Rasul holds

it must, then Eisentrager no longer controls. Nor can the

court below draw support from the DTA provision stating

that “‘United States,’ when used in a geographic sense . . .

does not include the United States Naval Station, Guan-

tanamo Bay, Cuba.” DTA § 1005(g). Whether or not “the

determination of sovereignty over an area is for the legislative

and executive departments,” Vermilya-Brown Co. v. Connell,

335 U.S. 377, 380 (1948), see Boumediene, 476 F.3d at 992,

the inquiry, per Rasul, into the common law scope of the writ

turns not on formal sovereignty but rather on the functional

level of control. Here, it is plain that the U.S. exercises such

control over Guantanamo.

In short, contrary to the court of appeals decision, Rasul’s

analytical path leads inexorably to the conclusion that the

Constitution prevents Congress from eliminating the writ for

the Guantanamo detainees—absent the prerequisites for

suspension (rebellion or invasion), which no one asserts here.

With Guantanamo under the plenary control of the United

States and isolated from the heat of battle, the “ordinary

constitutional processes” can, and must, move forward.

Korematsu v. United States, 323 U.S. 214, 234 (1944)

(Murphy, J., dissenting); see also Rasul, 542 U.S. at 487

(Kennedy, J., concurring) (observing that Guantanamo is “far

removed from any hostilities”).

10

Ill. The Framework For Challenging Detention Is an

Insufficient Substitute for the Great Writ

Although the MCA deprives the Guantanamo detainees of

habeas corpus, the Suspension Clause will not be offended if

there remains a substitute collateral remedy that is “neither

inadequate nor ineffective to test the legality of a person’s

detention.” Swain, 430 U.S. at 381; see also St. Cyr, 533 U.S.

at 314 n.38; Sanders v. United States, 373 U.S. 1, 14 (1963).

However, no adequate substitute appears here.

This Court has upheld statutory alternatives that shifted the

challenge to a different court, but did not otherwise materially

alter the nature of the habeas remedy. See Swain, 430 US. at

383-84 (upholding provision shifting habeas challenges to

local D.C. courts, notwithstanding the lack of tenure and

salary protections); United States v. Hayman, 342 U.S. 205

(1952) (upholding 28 U.S.C. § 2255, which provides for

actions to be brought by federal convicts in the sentencing

district rather than the district of detention). These substitutes

avoided constitutional difficulties largely by virtue of an

escape clause allowing habeas relief any time the alternative

proves “inadequate or ineffective.” Swain, 430 U.S. at 381;

Hayman, 342 U.S. at 223.'° No such escape clause exists

here. Rather, the procedures established under the DTA

remain the sole mechanism by which detention may be

challenged.

Moreover, far from a mere change in venue, the procedures

available to the Guantanamo detainees for contesting deten-

'? Restrictions on filing successive petitions have also been approved

because such constraints fall “well within the compass of [the] evolu-

tionary process” of the writ. Felker v. Turpin, 518 U.S. 651, 664 (1996).

Lower courts have upheld other modest limitations, such as a one-year

statute of limitation—albeit often acknowledging equitable tolling as a

means to avoid constitutional impropriety. See, e.g., Souter v. Jones, 395

F.3d 577, 602 (6th Cir. 2005); Delaney v. Matesanz, 264 F.3d 7, 12 (Ist

Cir. 2001); Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998).

11

tion represent a dramatic departure from the essence of

habeas relief and, accordingly, are ill-suited as an alternative.

The limited status review mechanisms include CSRTs (to

assess the detainees’ status upon arrival) and Administrative

Review Boards (ARBs) (to reassess the status annually).

Congress has not spelled out the precise frame-work for the

CSRTs and ARBs—except that they must “pro-vide for

periodic review of any new evidence” and must, “to the

extent practicable, assess” the probative value of any

statements resulting from coercion, DTA § 1005(a)(3), (b)—

and has, instead, entrusted the DoD to fill in the gaps, see id.

§ 1005(a)(1)(A). While a limited appeal of CSRT decisions

is available to the D.C. Circuit, see id. § 1005(e)(2); MCA

§ 10, the courts are otherwise barred from hearing actions

(including habeas petitions) relating to the “detention, trans-

fer, treatment, trial, or conditions of confinement” of alien

detainees alleged to be enemy combatants, see MCA § 7.

Whatever the precise metes and bounds of the inviolable

core of habeas, the framework established by the MCA and

DTA provides an insufficient substitute for habeas because

it lacks three fundamental features: a hearing before an

impartial adjudicator, an imperative remedy, and a fair

opportunity to rebut the charges.

A. The Framework Lacks an_ Independent

Tribunal

The MCA and DTA fail to provide an independent forum

in which to contest executive detention in the first instance.

Instead, detainees must face a non-neutral tribunal—a CSRT

staffed with executive branch officials. See CSRT Rules,

encl.1 § (C). Labeling the CSRT members as “neutral com-

missioned officers,” id. (emphasis added), is of little comfort

to the detainee, whose plea for release depends on the very

executive branch that is detaining him. Indeed, that turns

traditional habeas corpus on its head, putting the king in the

role of both jailer and judge. See Lonchar v. Thomas, 517

12

U.S. 314, 322 (1996) (describing the writ’s “most basic

purpose” as “avoiding serious abuses of power by a govern-

ment, say a king’s imprisonment of an individual without

referring the matter to a court”); Boumediene, 476 F.3d at

1005 (Rogers, J., dissenting) (“[T]hese proceedings occur

before a board of military judges subject to command

influence.”); cf Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004)

(plurality) (citizen entitled to “neutral decisionmaker” in

challenging enemy combatant status in habeas action).

The CSRTs and ARBs are in no sense independent and,

accordingly, are not a passable substitute to the great wmit.

Indeed, in practice, the CSRT procedures have allowed the

government, upon receiving an unfavorable CSRT decision,

to convene multiple tribunals until the detainee is found to be

an enemy combatant. See Boumediene, 476 F.3d at 1006-07

(Rogers, J., dissenting).

Moreover, such a fundamental flaw cannot be remedied on

review, especially given the limited scope of authority af-

forded the D.C. Circuit in conducting its review. (Cf.

Hamdan, 126 §S. Ct. at 2807 (Kennedy, J., concurring)

(expressing concern for DTA’s limited review of military

commissions and noting that “provisions for review of legal

issues after trial cannot correct for structural defects . . . that

can cast doubt on the factfinding process and the presiding

judge’s exercise of discretion during trial”). This deficiency

alone warrants this Court’s prompt intervention.

B. The Framework Lacks an Imperative Remedy

The MCA and DTA also do not provide the power to order

the release of individuals whose indefinite detentions are

contrary to law. At its core, the writ’s function is “to afford a »

swift and imperative remedy in ail cases of illegal restraint

upon personal liberty.” Price v. Johnston, 334 U.S. 266, 283

(1948) (emphasis added), overruled on other grounds,

McCleskey v. Zant, 499 U.S. 467 (1991). As imported from

13

England, “the use of habeas corpus to secure release from

unlawful physical confinement . . . was thus an integral part

of our common-law heritage.” Preiser v. Rodriguez, 411 U.S.

475, 484 (1973). This is reflected, for example, in the federal

statute providing post-conviction relief for federal convicts

(as a substitute to habeas under § 2241): if the sentence is

illegal, the court is authorized to “discharge the prisoner”

after “vacat[ing] and set[ting] the judgment aside.” 28 U.S.C.

§ 2255. While the writ may, over time, have expanded, a

claim for “immediate release . . . lies at ‘the core of habeas

corpus.’” Wilkinson v. Dotson, 544 U.S. 74, 79 (2005).

1. A CSRT has no power to order a detainee released,

even if it determines that the detainee is not an enemy

combatant. As implemented, if the CSRT “determines that

the detainee shall no longer be classified as an enemy

combatant,” its decision (after approved by the Director) is

forwarded “in order to permit the Secretary of State to

coordinate the transfer of the detainee with representatives of

the detainee’s country of nationality for release or other

disposition consistent with applicable laws,” CSRT Rules,

encl.1 § (I1)(9) (emphasis added), and “consistent with domes-

tic and international obligations and the foreign policy of the

United States,” CSRT Order § (i). Also, the “implementing

directive is subject to revision at any time.” CSRT Rules at

2. The lack of a remedy is apparent from this permissive

languag .

2. In similar fashion, an ARB offers little remedial hope.

An ARB, which convenes annually to reassess detainee

status, is directed to “conduct its own proceeding and make

an independent recommendation notwithstanding any prior

determinations” and, thereafter, “make a recommendation” to

the Designated Civilian Officer (DCO) to release, transfer, or

continue to detain. Memorandum for Secretaries of the

Military Departments, Revised Implementation of Adminis-

trative Review Procedures, encl.3 § 1(b) (July 14, 2006). The

14

DCO “decides whether to release, transfer with conditions, or

continue to detain the enemy combatant” and coordinates

with various cabinet departments “to implement any enemy

combatant release or transfer according to established Deputy

Secretary of Defense policy.” /d., encl.4 § 5(c)-(d).

The non-mandatory language of the rules establishing both

the CSRTs and ARBs, in the absence of statutory constraints,

provides ample wiggle room for continued detention at the

discretion of the executive officials—who are under no obli-

gation to reach an agreement with the host countries at all, let

alone in an expeditious fashion. By claiming it has not

received adequate assurances from the home countries to

address security risks posed by the individuals to be released,

the executive branch can refrain indefinitely from actually

releasing the detainees.'* In short, neither the CSRTs nor the

ARBs have the authority to require the executive to release

auy detainees, even ones designated for release or found no

longer to be enemy combatants.

3. Nor is the D.C. Circuit given authority to order

release. Even if that court, in exercising its limited review,

concludes that the CSRT’s procedures were improper—that

is, the court determines either that the CSRT did not comply

with the Defense Secretary’s “standards and procedures” or

that the “standards and procedures” are inconsistent with the

Constitution and laws of the United States—the court is only

given authority “to determine the validity of any final

decision of a [CSRT].” DTA § 1005(e)(2)(A), (C). Voiding

the CSRT’s decision would thus apparently leave the de-

tainee in his ex ante position—i.e., detained.

'* See Dep't of Defense, Transcript of Press Conference (Mar. 6, 2007)

(discussing 80 detainees still in custody despite being “designated for

release or transfer”), available at http://www.defenselink.mil/transcripts/

transcript.aspx ?transcriptid=3902 (last visited Mar. 12, 2007).

15

In sum, lacking an imperative remedy, these procedures

cannot be an adequate substitute for the great writ. As has

been the case over the last five years, such “indefinite

detention of an alien” represents a “serious constitutional

problem,” Zadvydas v. Davis, 533 U.S. 678, 690 (2001),

impacting “friends and foes alike.” Rasul, 542 U.S. at 488

(Kennedy, J., concurring).

C. The Framework Fails to Afford a Fair Op-

portunity to Rebut the Accusations

In light of the Rasul Court’s characterization of Guan-

tanamo as being under plenary U.S. control—which perhaps

makes it akin to the “unincorporated territories” in the Jnsular

Cases—the detainees are entitled to at least a bare minimum

of due process in contesting enemy combatant status.'* How-

ever, the framework established by the MCA and DTA falls

short and, accordingly, is an inadequate substitute for habeas

corpus.

In Hamdi v. Rumsfeld, a plurality of this Court determined

that, upon seeking habeas relief, a citizen captured in a

foreign country and detained within the United States as an

enemy combatant must be given notice of the factual basis

underlying his classification, a fair opportunity to rebut the

'S See, e.g., Balzac v. Porto Rico, 258 U.S. 298, 312-13 (1922) (consti-

tution affords “certain fundamental personal rights” to inhabitants of

territories not yet “incorporated” by Congress); Haitian Cirs. Council,

Inc. v. McNary, 969 F.2d 1326, 1342-43 (2d Cir. 1992) (“fundamental

constitutional rights” are guaranteed to Guantanamo inhabitants), vacated

as moot, 509 U.S. 918 (1993); Gov't of the Canal Zone v. Scott, 502 F.2d

566, 568 (Sth Cir. 1974) (treating Canal Zone as unincorporated U.S.

territory); 35 Op. Att'y Gen. 536, 540 (1929) (Canal Zone grant “ap-

pear[s] to be no less comprehensive a grant that the lease from Cuba”);

Neuman, supra, at 1200 (comparing Guantanamo to Canal Zone); but see

Cuban Am. Bar Ass'n, Inc. v. Christopher, 43 F.3d 1412, 1425 (11th Cir.

1995); of Vermilya-Brown, 335 U.S. at 405 (Jackson, J., dissenting) (ar-

guing Guantanamo is not a “possession”).

16

government’s assertions before a neutral decisionmaker, and

the assistance of counsel. 542 U.S. at 533, 539. As the

plurality explained, the Due Process Clause “informs the

procedural contours” of the writ of habeas corpus. 542 U.S.

at 525; see also D. Shapiro, Habeas Corpus, Suspension, and

Detention: Another View, 82 NOTRE DAME L. REv. 59,

75 n.67 (2006) (“[T]he habeas remedy (or an adequate

alternative) and the right of a detainee not to be deprived of

liberty without due process are intertwined.”).

While this does not necessarily indicate that the same level

of constitutional protection must attach to detainees held at

Guantanamo, ® at least some minimal fundamental due process

protections must apply to the detainees in light of the indefinite

nature of the detention on territory over which the United

States exercises complete jurisdiction and control. See Rasul,

542 U.S. at 487 (Kennedy, J., concurring) (Guantanamo is

under the “implied protection” of the United States); Zadvydas,

533 U.S. at 690 (“A statute permitting indefinite detention of

an alien would raise a serious constitutional problem.”);

Verdugo-Urquidez, 494 U.S. 259, 271-72 (1990) (reserving the

question whether a “lawful but involuntary” presence, if

prolonged, would constitute “substantial connections with this

country” such that constitutional protections attach).

These are not “some undefined, limitless class of nonciti-

zens who are beyond our territory.” Verdugo-Urquidez, 494

U.S. at 275 (Kennedy, J., concurring). These are 385

individuals who “face continued detention, perhaps for life,”

and, even though aliens are “subject to limitations and

conditions not applicable to citizens,” they are nonetheless

entitled to a “fair hearing under lawful and proper proce-

dures.” Zadvydas, 533 U.S. at 718 (Kennedy, J., dissenting);

"© Cf Dorr v. United States, 195 U.S. 138 (1904) (no Sixth Amend-

ment right to jury trial in Philippines, which was then an insular

possession).

17

see also Hamdi, 542 U.S. at 530 (“[A]n unchecked system of

detention carries the potential to become a means for

oppression and abuse of others who do not present [an

immediate] threat [to the national security of the United

States during ongoing international conflict].”).

The framework prescribed by statute and implemented in

the CSRTs does not guarantee a detainee sufficient oppor-

tunity to contest his status as an enemy combatant. First, the

detainee “shall not be represented by legal counsel,” and will

only have access to a “Personal Representative”—who is a

commissioned officer appointed hy the Director, and with

whom “no confidential relationship exists.” CSRT Rules,

encl.1 § (F)(5); id., encl.3 §§ (A)(1), (C)(1). Access to legal

counsel has long been held to be an essential aspect of

challenging one’s detention. Second, the evidentiary stan-

dards raise serious concerns due to the potential use of infor-

mation obtained under abusive interrogation techniques; the

limitation on discovery of classified information; the admis-

sion of hearsay evidence; the tribunal’s discretion to screen

out evidence found to be not “reasonably available”; the

government’s low burden of proof; and the rebuttable

presumption in favor of the government’s evidence. See DTA

§ 1005(b)(1), (e(2)(C)(i); CSRT Rules, encl.1 §§ (B), (E)(2)-

(3), (F)(6), (F)(8), (G2), (G)(7), (G)(9)-(11), (H(7). While

some of these elements might be individually justifiable

depending on the circumstances, see Hamdi, 542 U.S. at 533-

34 (giving qualified approval of hearsay evidence and rebut-

table presumptions) (plurality), in the aggregate, this frame-

work denies a detainee a “fair opportunity to rebut the

Government’s factual assertions” and “present his own fac-

tual case to rebut the Government’s return,” id. at 533, 538;

see also Boumediene, 476 F.3d at 1004-06 (Rogers, J.,

dissenting).

One particular anecdote, recounted in an opinion rendered

by the United States District Court for the District of Colum-

18

bia below, brings the matter into focus. See Jn re Guan-

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

An individual was being detained on allegations that he was

“associated with a known Al Qaida operative.” Jd. at 469.

However, he was not told his purported associate’s name (the

tribunal did not even know it) and was unable to view the

evidence against him (if there even was any). Unable to

defend himself, he simply denied the charges and stated: “I

was hoping you had evidence that you can give me... . [I]fa

supervisor came to me and showed me accusations like these,

I would take these accusations and I would hit him in the face

with them. Sorry about that.” /d. The resulting laugher by

those in the tribunal room demonstrates the absurdity of the

situation. As the district court judge noted, it would have

been humorous, had it not been so serious and “had the

detainee’s criticism of the process not been so piercingly

accurate.” Jd. at 470. This is hardly an adequate substitute

for habeas corpus.

Congress is, of course, capable of amending the statute

not just to recognize the CSRTs and ARBs, see DTA

§ 1005(a)(1)(A), but to further prescribe a framework

commensurate with traditional habeas review. By making

clear that certain constitutional minimums apply, this Court

will preserve Congress’s role in mapping out the way forward

while simultaneously allowing the detainees the opportunity

to be heard and to advance the merits of their individ-

ual cases.

IV. This Court’s Guidance is Necessary as a Bulwark

of Liberty

Within Congress, there has been extensive debate over the

last few years regarding the Guantanamo detainees’ access to

habeas corpus. Some Members have argued that the pro-

visions in the MCA (and, before that, the DTA) stripping the

courts of habeas jurisdiction, MCA § 7; DTA § 1005(e), pass

ams

19

constitutional muster.'’ Others have taken the contrary posi-

tion.'* Moreover, some lawmakers have explicitly sought to

amend or delete the offending MCA habeas provisions.’? In

the last Congress, the Senate Judiciary Committee held three

hearings, chaired by amicus, examining the detainees’ situ-

ation and considering testimony from a wide array of legal

authorities.”°

While this exchange of ideas is surely healthy and appro-

priate, the cunversation has begun to generate diminishing

returns. Meanwhile, the detainees wait, and uncertainty

surrounds a fundamental constitutional principle. If the Court

declines to resolve these important issues in this term, the

detainees could face more than another full year in legal

limbo. Although Congress will continue to discharge its

” See, e.g., 152 CONG. REC. $10359 (Sept. 28, 2006) (Sen. Sessions);

id. at $10265-67 (Sept. 27, 2006) (Sens. Graham and Warner); id.

$10267-72 (Sen. Kyl); id. at $10272-73 (Sen. Cornyn).

'® See, e.g., 153 CONG. REC. $2962-63 (Mar. 9, 2007) (Sen. Leahy); id.

at $2749-51 (Mar. 7, 2007) (Sen. Specter); 152 CONG. REC. $10366 (Sept.

28, 2006) (Sen. Dodd); id. at $10264-65 (Sept. 27, 2006) (Sen. Specter);

id. at $10243 (Sen. Levin); id. at $10361 (Sen. Feingold); id. at $10400

(Sen. Kennedy); id. at $10409 (Sen. Biden); id. at H7548, H7550, H7559

(Reps. Conyers, Lofgren, Nadler, and Jackson-Lee); 151 CONG. REC.

$14309 (Nov. 10, 2005) (Sen. Bingaman); id. at H1 1866 (Dec. 15, 2005)

(Rep. Kucinich).

' See, e.g., Habeas Corpus Restoration Act of 2007, S. 185, 110th

Cong.; Habeas Corpus Restoration Act of 2006, S. 4081, 109th Cong.;

Effective Terrorists Prosecution Act of 2006, S. 4060, 109th Cong.; S.A.

5087, 109th Cong. (2006).

?° See Examining Proposals to Limit Guantanamo Detainees’ Access to

Habeas Corpus Review: Hearing Before the Senate Comm. on the Judi-

ciary, 109th Cong. (Sept. 25, 2006); Hamden v. Rumsfeld: Establishing a

Constitutional Process: Hearing Before the Senate Comm. on the Judi-

ciary, 109th Cong. (July 11, 2006); Detainees: Hearing Before the Senate

Comm. on the Judiciary, 109th Cong. (June 15, 2005).

20

duties, at the end of the day, it falls to this Court to say,

emphatically, what the law is.

In an address at Buffalo Law School in 1951, Justice

Jackson warned that “suspension of privilege of the writ of

habeas corpus is in effect a suspension of every other liberty.”

Robert Jackson, Wartime Security and Liberty Under Law, |

BUFFALO L. REV. 103, 109 (1951). To avoid an incongruous

legal “black hole” at Guantanamo, the Court should review

one or both of these cases, strike down the MCA’s illegal

suspension of the great writ, and pave the way for Congress

to address this challenging situation consistent with the

constitutional reach of the writ.

CONCLUSION

This Court should grant the petitions for a writ of certiorari

and move expeditiously to decide the cases this term.

Respectfully submitted,

SENATOR ARLEN SPECTER *

Ranking Member

SENATE JUDICIARY COMMITTEE

152 Dirksen Senate Off. Bldg.

Washington, DC 20510

* Counsel of Record (202) 224-5225

March 2007