Reply Brief — Boumediene v. Bush

aki SUsTS UML FILED

4h

LAKHDAR BOUMEDIENE, et al.,

Petitioners,

GEORGE W. BUSH, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR THE BOUMEDIENE PETITIONERS

STEPHEN H. OLESKEY SETH P. WAXMAN

ROBERT C. KIRSCH Counsel of Record

MARK C. FLEMING PAUL R.Q. WOLFSON

JOSEPH J. MUELLER JONATHAN G. CEDARBAUM

PRATIK A. SHAH MICHAEL J. GOTTLIEB

LYNNE CAMPBELLSOUTTER WILMER CUTLER PICKERING

JEFFREY S. GLEASON HALE AND DORR LLP

LAUREN G. BRUNSWICK 1875 Pennsylvania Ave., N.W.

WILMER CUTLER PICKERING Washington, DC 20006

HALE AND DORR LLP (202) 663-6000

60 State Street

Boston, MA 02109 DOUGLAS F. CURTIS

(617) 526-6000 PAUL M. WINKE

ANNE K. SMALL

DAVIDS. LESSER

JULIAN DAVIS MORTENSON

WILMER CUTLER PICKERING

HALE AND DORR LLP

399 Park Avenue

New York, NY 10022

(212) 230-8800

TABLE OF CONTENTS

Page

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TE snttacteccniticcscnicncicansiasstntintuastanisisintincstantinniniganeeannteten l

I. THE MCAIS UNCONSTITUTIONAL .....0000 0. 1

A. The Suspension Clause Protects Petitioners............. l

1. The government offers no reason to

reconsider Rasul’s historical analysis ............... 2

2. The government’s allegation that Pe-

titioners are “enemy combatants”

does not affect their right to dispute

that allegation on habeas...................ccsceceeeeeeeeees 5

B. DTA Review Does Not Satisfy Constitu-

I Fe iictintiiceiietinieniessncntnincsinntnccienemiatinios 9

1. Abstention is inappropriate .....................:c0000 9

2. Habeas requires searching review of

Petitioners’ Getention .................cscsscseseescesseeees 10

3. DTA review is not comparable to habeas......... 15

Il. PETITIONERS’ DETENTION IS UNLAW-

iP WAND sinsiahldentheahdaedemniiiipeatlabeeiipgibeabachtiitenineccin 20

A. The AUMF Does Not Authorize The Gov-

ernment’s Broad Definition Of “Enemy

PUI <ctaninscdnticinicdlntnatetansdionnabinsdetibesapiinniantionsttions 20

B. Petitioners’ Imprisonment Violates Due

UTIs Lachssesaccsicssdbbhisicaltshosndendnhdeieiieietiaciechdaaliciitpiatatie 23

SEE TUITE TINT sccesiceishiessiiclesseiiiscmsetiateidladsctllaiiaidatctidsieciamahiniandie 25

(i)

rs

TABLE OF AUTHORITIES

UNITED STATES CASES

Page(s)

Bismullah v. Gates, 2007 WL 2851702 (D.C. Cir.

Ra a ATE ceectinecalsenseecincusineinsiabiicinininsiiitigtbiciiainnaniadtnnnapemnees 9, 18

Bismullah v. Gates, 501 F.3d 178 (D.C. Cir. 2007)................ 16

Burns v. Wilson, 346 U.S. 137 (1958)..........ccccccccccecssceereceseesees 11

Colepaugh v. Looney, 235 F.2d 429 (10th Cir. 1956)............... 6

Costa v. INS, 233 F.3d 31 (ist Cir. 2000)... cece cceceeeeeeeees 11

Downes v. Bidwell, 182 U.S. 244 (1901) ..........ccceceecceeeees 23, 24

Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807) ..........ccccccce0es 5

Ex parte Quirin, 317 U.S. 1 (1942) ............cccssesessseeseeeeeees 6, 11

Fisher v. Baker, 203 U.S. 174 (1906) ..........cccccccceeseeeeeseeseeeneeees 4

Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) 0.0.0... 8, 16

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

Herrera v. Collins, 506 U.S. 390 (1993) ........ccccceesesseeeeseeeeees 11

Hiatt v. Brown, 339 U.S. 108 (1950) .....................000000000000000000. 11

INS v. St. Cyr, 583 U.S. 289 (2001)...........0cccccscsersescscsseseesees 5, 10

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

Ns MII cckceieictniiehmiamcicciasibaniapabiininitreaanteninipuinnpeiniines 21

In re Territo, 156 F.2d 142 (9th Cir. 1946) 0.0... cccceeeeeeeees 6,7

POC ©. FOC, BGS Tis 6G OD cnccecentcccnsevncncesscresecsnnsonsenessinn 19

Johnson v. Eisentrager, 339 U.S. 763 (1950)... eee. 8, 24

Mathews v. Eldridge, 424 U.S. 319 (1976) .0..........cccccceeeeeeeeeees 24

Miller v. United States, 78 U.S. (11 Wall.) 268

Oat in scenliicastpeieieteibieiadeimiciinehepeasiaitinnapinaspensinninsenectnieninenininasmneiatit 22

Mitchell v. Forsyth, 472 U.S. 511 (1985)... ececeseeeeeeeseeees 20

Morrissey v. Brewer, 408 U.S. 471 (1972) .......cccccccccceeeeeeeeeeeeee 25

Price v. Johnston, 334 U.S. 266 (1948) ...........cccccscscsesseesecseesenees 9

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

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

The Prize Cases, 67 U.S. (2 Black) 635 (1868) ..............ccccccee 23

United States ex rel. Accardi v. Shaughnessy, 347

Ista A TITET I TITTII eicceniuseesensnetinscsnidonnateliahipsoneeipabenbnebiouninastibedindiiacitoinics 11

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

STII shia ethic lacnanielienh cas caacciabdal 24

United States v. Villato, 2 U.S. (2 Dall.) 370 (C.C.

RE FRETS reer Pn, SRN Tn NCR IT 6

iil

TABLE OF AUTHORITIES—Continued

Page(s)

Wong Wing v. United States, 163 U.S. 228 (1896)................. 23

Yamashita v. Styer, 327 U.S. 1 (1946)... ccccceceeeeeeeneeees 6, 11

Yamataya v. Fisher, 189 U.S. 86 (1908) ........ccccceceeseeeeeeeneees 10

Yick Wo v. Hopkins, 118 U.S. 356 (1886)....0.......cccccceeeeeeeeee 23

Zadvydas v. Davis, 533 U.S. 678 (2001) ........cccccccseceeeeeeeeeeneee 11

CASE PLEADINGS

Ait Idir v. Bush, No. 07-1157 (D.C. Cir.) .........cccccccecsececeeeeeeeees g

Al Ginco v. Gates, No. 07-1090 (D.C. Cir.) ........0cccccccceeeenes 9,19

Bismullah v. Gates, No. 06-1197 (D.C. Cir.) ......cccccccccceeeeeeeees 18

Hamad v. Bush, No. CV 05-1009 JDB (D.D.C.) .............0004. 15

Hamad v. Gates, No. 07-1098 (D.C. Cir.) .......cccccccceesceeeeseeeeeees 10

Tee re Tervito, No. 11214 (Sth Cir. ).......ccccscccscccccsccccccseccscecccccceses 6

Kiyemba v. Bush, Nos. 05-5487 & 05-5488 (D.C.

8 REE PES Be Rah 27S Se anh One ne Oe 18

Nassar v. Gates, No. 07-1340 (D.C. Cir.) ........ccccccccecceeceneeeeees 10

Paracha v. Rumsfeld, No. 06-1038 (D.C. Cir.) ............c0.cc0000+ 19

Parhat v. Gates, No. 06-1397 (D.C. Cir.) .........cccccccceceeeseeeeeeeees 18

Qassim v. Bush, No. 05-5477 (D.C. Cir.) ..........ccccccecceeeeceeeeeees 18

FOREIGN CASES

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

Seat IU ecieteehcehieionnenicienteiainibsideaaatenenianindibnieieaaniamensatnndniideonee 7,8

Chahal v. United Kingdom, 23 Eur. H.R. Rep. 413

achalasia lai iach anpigeannindetens 20

Charkaoui v. Canada, 1 S.C.R. 350 (2007)... ccccccececesceceeeees 20

Du Castro’s Case, 92 Eng. Rep. 816 (K.B. 1697) ................0. 6

In re Ning Yi-Ching, 56 T.L.R. 3 (Vacation Ct.

RECA Se Eas a as Fc a Ea 3

R. v. Earl of Crewe, 2 K.B. 576 (C.A. 1910)... eeeeeeeeee 2,3

R. v. Schiever, 97 Eng. Rep. 551 (K.B. 1759)............ccccceesees 7,8

TREATIES

Geneva Convention (III) Relative to the Treatment

of Prisoners of War, Aug. 12, 1949, 6 U.S.T.

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Lease of Lands for Coaling and Naval Stations,

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

UNITED STATES STATUTES, LEGISLATIVE MATERIALS,

AND RULES

BD DARA. © Rae werketrccrscicenssrennicininiinuinnaiamaeieiiiaan ll

ais Be iontntcnesicinseineninciniscnasiaeiemeiiasimcmane 10

isc Ge scescessensscossicesisnssuniiaseensssansiendiumdanianan 11

© TAAL. © FD sicccccciecensviiestisiniissssinitimaiaibaiai an 11

Fe I ME 19

Act of July 1, 1902, ch. 1369, 32 Stat. 691.00... es 4

Classified Information Procedures Act, 18 U.S.C.

I Be Bo icinecenccinttensinntintsiaticticiaage asia ie 19

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

Ey, Oe SINR GUI cxxeresitispuesesslttincettniapiapadiiiaiammenntienelabacamenes 8

President’s Message, 11 Annals of Cong. 11 (1801)............... 23

EDEMIET Ge. CUI, SU censuscnninctntecnceiuiibiintiisaleitinnisaalantcitinessaiadin 19

FOREIGN STATUTES

Prevention of Terrorism Act, 2005, ¢. 2 (U.K.) coccccccccccccecceceee 20

Special Immigration Appeals Commission Act,

SS ee EE ME er 19

DUNO AGE, FTEs 6S GI hs O © cccsnesanesccecsstccnecnioceinamaticn 4

OTHER AUTHORITIES

Adjutant Gen.’s Office, War Dep’t, General Orders

Bm, BC Bie cecccninciciitationvecivnitininstntiatdsesiiammasmmiad 22

SU Tan, TG cxiecnsisinsiiansciinietancaaiiaaicaniliiaasic aaa 13, 14

Baker, Joseph R., & Henry G. Crocker, The Laws of

Land Warfare Concerning the Rights and Du-

ties of Belligerents (1918).............scssecsesssssssssscesseesees 21, 22

Bradley, Curtis A., & Jack L. Goldsmith, Congres-

sional Authorization and the War on Terror-

ism, 118 Harv. L. Rev. 2047 (2005). 0.0.0... eee 12, 22

Vv

TABLE OF AUTHORITIES—Continued

Page(s)

Combatant Status Review Tribunal Summary,

available at http://www.defenselink.mil/news/

Nov2007/CSRTU pdate-Nov2-07.pdff..............ccccceseeseeeevees 17

Department of the Army, Army Field Manual

ERE 22

Department of the Navy, Commander’s Handbook

on the Law of Naval Operations (1995) 0.00.0... 22

Hall, William Edward, A Treatise on International

ee 21, 22

Halliday, Paul, & G. Edward White, The Suspen-

sion Clause: English Text, Imperial Contexts,

and American Implications (2007), available

at http:/law.bepress.com/cgi/viewcontent.cgi’?

article=1118&context=uvalwps.................cceseereeseesereeees 2,4

Secretary of Navy Gordon England, Defense Dep't

Special Briefing on Combatant Status Review

Tribunals, Mar. 29, 2005, available at http://

www.defenselink.mil/transcripts/transcript.aspx

EES A SS SE 18

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

Srirnauisaiasiabcaesdaenieithedinreeneadiitinetasitdeloniondeneandztciaseteeseneseeceeeocece 7

Turner, Serrin, & Stephen J. Schulhofer, The Secrecy

Problem in Terrorism Trials (2005), available at

http//www.brennancenter.org/dynamic/subpages/

LED. See 19

United States Forces, Korea Reg. 190-6, available at

http://www.usfk.mil/usfk/Publications/Publication

i ec cecericncscrnasisnsnnnonrenecen 13

U.S. Air Force Pamphlet 110-31 (Nov. 19, 1976)................... 22

U.S. Military Assistance Command, Vietnam, Di-

rective 20-5, reprinted in 62 Am. J. Int’l L. 754

ELE SEE TET AT 14

Winthrop, William, Military Law and Precedents

EE EE SE ea 21, 22

Yoo, John, War by Other Means: An Insider's Ac-

count of the War on Terror (2006) .........ccccccecceeeseeeseceeereees 3

After six years of imprisonment without meaningful re-

view, it is time for a court to decide the legality of Petitioners’

detention. Petitioners have a constitutionally guaranteed

right to seek habeas corpus, and the DTA’s circumscribed re-

view of flawed CSRT determinations is not an adequate sub-

stitute. Petitioners’ detention, unauthorized by Congress and

unsupported by even minimal due process, is unlawful.

Once again, the government asks this Court to defer re-

view of the important issues in this case, just as the govern-

ment has consistently sought delay in the lower courts—a

strategy that has yielded stays of proceedings, lengthy ap-

peals, and multiple rounds of briefing. This Court should re-

ject the request for further delay and decide the questions it

has already accepted for review.

ARGUMENT

I. THE MCAIsS UNCONSTITUTIONAL

A. The Suspension Clause Protects Petitioners

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

that noncitizens detained by the United States military at

(;uantanamo Bay have access to the writ of habeas corpus, a

conclusion informed by the Court’s analysis of the common

law writ. The government offers no persuasive rebuttal to

the Court’s reading of history. The government’s reliance on

cases declining to grant habeas relief on the merits to “pris-

oners of war” is misplaced, as it assumes away the principal

issue in this case: Petitioners maintain that they are not en-

emy soldiers subject to military detention. Unlike prisoners

of war in traditional armed conflicts—where it is usually clear

or undisputed that the prisoners are in fact detainable enemy

soldiers—Petitioners are civilians from a friendly nation who

were abducted by the government far from any theater of

war and have never engaged in armed hostilities against the

United States. And Petitioners are being imprisoned indefi-

nitely despite rulings from the courts of their home country

that there is no factual basis for their detention.

2

1. The government offers no reason to recon-

sider Rasul’s historical analysis

The government (at 33) brushes aside what it calls “the

Court’s brief historical discussion” in Rasul, but the Court’s

review of the common law was anything but “brief.” The is-

sue was extensively discussed by the Rasul parties and amici;

the opinions spent several pages analyzing the history (includ-

ing all the common law cases the government relies on here);

and the Court expressly rejected the government’s narrow

view of the geographic reach of the writ. See 542 U.S. at 481-

482 & nn.11-14. The Court held that the right of “persons de-

tained at the [Guantanamo] base” to challenge their detention

was “consistent with the historical reach of the writ of habeas

corpus,” which was based on practical considerations of au-

thority and control, not formal notions of “sovereignty.” Jd. at

481-482. '

The government provides no new historical evidence jus-

tifying reconsideration of the Court’s conclusion. It cites only

two cases, both of which Rasul addressed and which actually

undermine the government’s position. Revealingly, the gov-

ernment (at 31-32) cites only the minority view in R. v. Earl

of Crewe, 2 K.B. 576 (C.A. 1910), failing to mention that two of

the three judges concluded that the writ did extend beyond

sovereign territory, including to places like the Bechuanaland

Protectorate, provided there were no local courts able to

grant similar relief. See 2 K.B. at 604 (Vaughan Williams,

LJ.) (referring to “His Majesty’s dominion” in terms of

“power and jurisdiction” for habeas purposes), id. at 605 (writ

can be issued to “any country or place under the subjection of

' “Sovereignty” at common law did not provide the “bright line” that the

government urges for delimiting the reach of the Suspension Clause. The Fram-

ers understood that sovereignty was a complex and multifaceted concept, and

colonial empires encompassed territones that were treated by the metropoli-

tan powers in various and variable ways. See Halliday & White, The Suspen-

sion Clause: English Tert, Imperial Conterts, and American Implications 51

(2007), available at http/aw.bepress.com/cgi/viewcontent.cgi?article=1118&

context=uvalwps (forthcoming 94 Va. L. Rev. __) (noting the “legal complex-

ity of the English king’s dominions” and the “many kinds of sovereignties”).

3

the Crown of England” and is not limited to “the King’s tern-

torial dominions”); id. at 618 (Farwell, J.) (writ available

wherever someone is “kept imprisoned without trial in a place

maintained by England”); see also Rasul, 542 U.S. at 483 n.14

(discussing Crewe under the name Ex parte Sekgome).’ The

other case cited by the government likewise relied only on the

minority opinion in Crewe and has been criticized on that ba-

sis. See Rasul, 542 U.S. at 483 n.14 (distinguishing, and not-

ing later British authority disapproving of, Jn re Ning Yi-

Ching, 56 T.L.R. 3 (Vacation Ct. 1939)).°

The government (at 27-30) cites various statements that

the writ extended to territories that were “under the Crown’s

sovereignty,” but that does not mean that common law ha-

beas was unavailable outside “sovereign” territory. Robert

‘hambers, whom the government (at 28) cites, granted the

common law writ on behalf of Indian petitioners while sitting

as a judge in India before the Crown asserted formal sover-

eignty there. See Pet. Br. 12-13. The government (at 31) re-

sponds that British judges in India issued habeas pursuant to

a “statutory” grant of power, but the relevant “statute”—the

royal charter creating the Supreme Court of Calcutta—

simply granted the judges the same common law authority as

judges of the King’s Bench in England. The British judges

thus repeatedly grounded their authority to issue habeas in

? Even counsel for the Crown acknowledged that “if there were no

Court in the particular place competent to issue the wnt the old jurisdiction

of the King’s Bench to do so possibly still exists.” Crewe, 2 K.B. at 588.

(;juantanamo unquestionably has no local court “competent to issue the

writ”, indeed, the government deliberately chose Guantanamo because it

believed no court could review the legality of detention of prisoners held

there. See Yoo, War by Other Means: An Insider's Account of the War on

Terror 142-143 (2006).

* To the extent the government contends that the writ was available

only to British subjects, that suggestion is disclaimed by the very opinion

upon which the government relies. See Crewe, 2 K.B. at 620 (Kennedy, !..J.)

(“The remedy obtainable by the writ of habeas corpus is not confined to

British subjects.”); see also Rasul, 542 U.S. at 481 & n.1l. Moreover, the

common law conception of subjecthood swept much more broadly than mod-

ern notions of citizenship. See Legal Historians’ Amicus Br. 5 n.4.

4

the common law, which extended the writ to aliens whenever

the court had jurisdiction over the jailer, including in territory

that was not under formal British sovereignty. See Legal

Historians’ Amicus Br. 13 & n.18. There is no suggestion in

the charter or elsewhere that the judges’ geographic location

in Bengal as opposed to Westminster made any difference to

their authority to issue the writ.

Finally, the government (at 15) argues that because the

Constitution permits suspension of the writ only in times of

“Rebellion or Invasion”—conditions the government asserts

occur only within the United States—the writ was not avail-

able to prisoners detained elsewhere. But nothing in the

Clause places any geographical limitation on the reach of the

writ itself; the Clause merely specifies conditions under which

the writ may be suspended. The constitutional text thus gives

no indication that habeas does not run to territories subject to

the exclusive jurisdiction and control of the United States.‘

Moreover, there is no reason to believe that a “Kebellion

or Invasion” cannot take place in territory that is under com-

plete United States control but not formally under its sover-

eignty. For example, a Cuban military incursion into Guan-

tanamo Bay, where the United States exercises “exclusive ju-

risdiction and control” (Rasul, 542 U.S. at 476), would surely

constitute an “Invasion” of that longstanding American settle-

ment.’ And under the government’s reading, the Executive

* The British acts suspending habeas between 1777 and 1783, of which

the Framers were undoubtedly aware, were expressly aimed at persons

(including impressed American s. ilors) captured “on the High Seas” or “out

of the Realm.” 17 Geo. 3, c. 9 (discussed in Halliday & White 61-62). These

suspensions would have been unnecessary if such persons could not have

invoked the pre-1789 writ at all.

* History also refutes the government's premise that a valid suspen-

sion can be based only on domestic conflict. Parliament’s 1777 suspension of

the writ was premised on the “Rebellion and War’ in the American colonies,

not in England itself. 17 Geo. 3, c. 9. Congress's express authorization of

the suspension of habeas corpus in the Philippines (Act of July 1, 1902, ch.

1369, § 5, 32 Stat. 691, 692), which was invoked in 1905 during the insurrec-

tion there (see Fisher v. Baker, 203 U.S. 174, 179-180 (1906)), further con-

firms that “Rebellion or Invasion” may occur outside the 50 States.

5

could arbitrarily and permanently detain even a United

States citizen outside the United States without any access to

habeas. The Framers—who were weli aware of the need for

habeas review of offshore Executive detention—could not

have intended such a result. Pet. Br. 14-15 nn.13-14.°

2. The government’s allegation that Petitioners

are “enemy combatants” does not affect their

right to dispute that allegation on habeas

Unable to identify a single pre-1789 decision refusing ha-

beas jurisdiction over a petitioner outside sovereign territory,

and faced with several that granted relief, the government

(at 37-40) argues that alien “prisoners of war” are ineligible

for habeas, regardless of the location of imprisonment. Leav-

ing aside the government’s opportunistic desire to label Peti-

tioners “prisoners of war” without according them the bene-

fits of such status during six years of confinement, its legal

assertion is both incorrect and inapplicable. It is incorrect

because courts have considered the merits of (and indeed

granted) habeas petitions of persons who did not contest that

they were alien soldiers and spies. It is inapplicable because

Petitioners dispute the government’s assertion that they are

“enemy combatants,” and thus their cases are far removed

° Congress’s enactment of early statutes providing for habeas corpus

in the territories does not support the government’s view of the Suspension

Clause. Just because Congress provides a statutory basis for courts to issue

the writ does not mean that the writ is not constitutionally protected. See

INS v. St. Cyr, 533 U.S, 289, 304 n.24 (2001) (noting that Section 14 of the

Judiciary Act of 1789 authorized federal courts to issue the writ protected

by the Suspension Clause (citing Ex parte Bollman, 8 U.S. (4 Cranch) 75, 95

(1807))). And Congress’s guarantee of the writ in the Northwest Territory

Ordinance of 1787 (cited at Gov’t Br. 18 n.5) occurred before the Constitution

was ratified; if anything, this suggests that the Framers understood that the

writ would issue o-*tside the United States proper.

Nor does the fact that Congress did not specifically provide for habeas in

a 1798 statute authorizing detention of persons seized from foreign ships

(Gov't Br. 16) suggest that habeas was unavailable to those individuals. Con-

gress had already provided the federal courts with general authority to issue

the writ of habeas corpus in the Judiciary Act of 1789, it did not need to repro-

duce a separate habeas provision in every subsequent statute authorizing

detention to guarantee habeas protection for those detained under them.

6

from those of admitted or adjudicated “prisoners of war” cited

by the government.

The government’s contention (at 37) that courts lack juris-

diction to grant habeas to “enemy spies and unlawful combat-

ants” is refuted by cases where courts have done just that. In

1697 the King’s Bench ordered the discharge of a foreign spy,

rejecting the respondent’s argument that alien enemy combat-

ants were “not intitled to have a habeas corpus.” Du Castro’s

Case, 92 Eng. Rep. 816 (K.B. 1697). In United States v. Villato,

2 US. (2 Dall.) 370 (C.C. Pa. 1797), the court granted habeas to a

Spanish-born prisoner who had captured an American vessel

while serving aboard a French privateer. Villato was released

precisely because he was an alien and thus could not be charged

with treason for his belligerent conduct. See id. at 377-379.

Several other cases confirm the availability of habeas to

alien military prisoners, even where they did not dispute their

status as prisoners of war. See Ex parte Quirin, 317 US. 1,

25 (1942) (rejecting argument that petitioners’ status as en-

emy German saboteurs “foreclose[d] consideration by the

courts of petitioners’ contentions that the Constitution and

laws of the United States” required habeas relief); Yamashita

v. Styer, 327 U.S. 1, 56 (1946) (reviewing habeas claims of

convicted Japanese general captured and imprisoned in the

Philippines); see also Colepaugh v. Looney, 235 F.2d 429, 431

(10th Cir. 1956) (rejecting argument that a U.S. citizen who

acted as a spy for Germany could be denied access to the

courts because “to do so would deny the supremacy of the

Constitution and the rule of law under it”); Jn re Territo, 156

F.2d 142, 142-143 (9th Cir. 1946) (reviewing, over govern-

ment’s jurisdictional objection, habeas claims of U.S. citizen

captured as part of Italian army on the battlefield during

World War II and detained as a prisoner of war).’

’ Although Territo was a U.S. citizen, the court expressly treated him

as an “alien enemy” belligerent based on his long-term domicile in a hostile

nation. 156 F.2d at 145. Notably, the government made the same objection

in Territo as it makes here: “a military prisoner of war cannot seek a writ of

habeas corpus and ... as such he is not entitled to access to our civil courts

for the purpose of obtaining the writ.” Reply Br. 12, /n re Territo, No. 11214

7

Unsurprisingly, admitted prisoners of war rarely brought

habeas petitions and, when they did, rarely succeeded on the

merits. This historical fact reflects the reality that such persons

(most of whom were captured while in uniform on a battlefield)

usually had no basis or incentive to contest prisoner-of-war

status; indeed, they frequently desired it. But when a prisoner

has denied that he is a detainable prisoner of war, habeas

courts have consistently exercised jurisdiction to determine

that issue. As a treatise cited by the government (at 39) states:

“If, however, it appears that the applicant may have been im-

properly detained as a prisoner of war, ... the court will investi-

gate the propriety of the detention.” Sharpe, The Law of Ha-

beas Corpus 116 (2d ed. 1989). That is exactly what Petitioners

seek: a determination by a fair and neutral juage that they do

not fall within the category of persons whose detention Congress

authorized when it gave the President the power to use “neces-

sary and appropriate force” against those responsible for the

September 11 attacks. See Pet. Br. 33-36. The government’s

expansive definition of “enemy combatant”—which encom-

passes citizens of a friendly nation, seized far from any battle-

field and not engaged in belligerent acts—is significantly more

likely to ensnare innocent civilians than the traditional “prisoner

of war” category. And the government’s refusal to provide Peti-

tioners with the protections ordinarily accorded to prisoners of

war makes the consequences of an erroneous designation—

indefinite detention without charge—all the more grave.

Contrary to the government’s suggestion (at 38-39), R. v.

Schiever, 97 Eng. Rep. 551 (K.B. 1759), and Case of Three

Spanish Sailors, 96 Eng. Rep. 775 (C.P. 1779), do not suggest

that habeas is closed to alleged enemy combatants. The peti-

tioners in those cases presented, and the courts examined,

evidence challenging their status as prisoners of war, includ-

(9th Cir. Feb. 1946) (quoting Resp. Br. 31). The court nevertheless heard

evidence bearing on Territo’s habeas claim and denied relief on the merits.

See 156 F.2d at 145-148.

*On this point, Sharpe (at 115-116) refutes the contrary proposition

advanced by Lord MeNair, on whom the government relies (at 38).

8

ing affidavits filed in their support. See Schiever, 97 Eng.

Rep. at 551; Three Spanish Sailors, 96 Eng. Rep. at 775; see

also Gov’t Br. 39 (admitting that, in Schiever, the court con-

sidered “the fact that the petitioner had been found aboard an

enemy ship”). The courts denied habeas relief not because of

lack of jurisdiction, but because, “upon their own shewing,”

the facts demonstrated that the petitioners qualified as law-

fully detainable prisoners of war. Schiever, 97 Eng. Rep. at

552; Three Spanish Sailors, 9% Eng. Rep. at 776.

Finally, the government’s recycled argument based on

Johnson v. Eisentrager, 339 U.S. 763 (1950), ignores the prin-

cipal opinions in Rasul. See Pet. Br. 16-18. The government’s

insistence (at 18, 22, 23, 24) that Petitioners seek to “over-

rul[e]” Eisentrager is simply wrong; the Court need only reaf-

firm Rasul’s recognition that Guantanamo prisoners are situ-

ated differently from the Eisentrager petitioners. Even less

convincing is the government’s attempt (at 24-25) to compare

Landsberg prison, a temporary outpost in post-World War II

Germany under joint Allied command, to the exclusive and

effectively permanent jurisdiction and control the United

States exercises at Guantanamo. See Rasul, 542 U.S. at 476;

id. at 487 (Kennedy, J., concurring in the judgment). Nor

does CSRT review make Petitioners similarly situated to the

Eisentrager petitioners. In Eisentrager, the prisoners were

admitted enemy aliens convicted of war crimes after a full

military commission trial authorized by treaty. See 339 U.S.

at 784, 786. In contrast, the CSRT is a unilateral creation of

the Executive that fails to accord even minimal due process

protections. See Pet. Br. 26-32; infra pp. 13-20.”

* The Court has already rejected the government’s unelaborated as-

sertion (at 43) that Congress “recognize(d] and affirm[ed] the CSRT proc-

ess.” The DTA (both before and after amendment by the MCA) “pointedly

reserves judgment” on whether the CSRT review mechanism “actually

violate|s| the ‘Constitution and laws” of the United States. Hamdan v.

Rumsfeld, 126 S. Ct. 2749, 2775 (2006) (quoting DTA § 1005(e)). Although

Congress has “recognize|d]’ the existence of the Guantanamo Bay [CSRTs]

in the weakest sense” (id. (quoting Resp. Br. 15)), a statute that expressly

9

B. DTA Review Does Not Satisfy Constitutional Re-

quirements

1. Abstention is inappropriate

The government’s request (at 41) that this Court abstain

from resolving the Suspension Clause issue in this case until Pe-

titioners “exhaust their available DTA remedies” is a request for

unlimited delay. The government has moved to stay Petitioners’

DTA cases, as it has most pending DTA actions, in an effort to

secure an indefinite freeze of all but five of the 150 DTA cases

now before the court of appeals. Pet. Br. 31.'° And the court of

appeals has proposed that the government convene entirely new

*SRTs, which presumably would lead to further delay or even

dismissal of Petitioners’ DTA cases. See Bismullah v. Gates,

2007 WL 2851702, at *3 (D.C. Cir. Oct. 3, 2007) (““Bismullah IT’)

(denying panel rehearing). The government is actively consider-

ing this route (see Mot. to Govern Further Proceedings 1-2, Al

Ginco v. Gates, No. 07-1090 (D.C. Cir. Oct. 31, 2007)) and, mean-

while, has declined to provide the court of appeals with the “re-

cord on review” in even a single case.'' Petitioners cannot be

required to exhaust a remedy that the government itself is pre-

venting from proceeding. There is no reason to delay resolution

of the crucial questions on which this Court granted certiorari.

See Price v. Johnston, 334 U.S. 266, 283 (1948) (“historic and

great usage of the writ” is as “a swift and imperative remedy”)."”

contemplates possible judicial invalidation of the CSRTs does not demon-

strate congressional ratification.

" See, e.g., Opp. to Mot. to Compel Prod. of Gov’t Info. & Cross-Mot.

for Stay 13, Ait Idir v. Bush, No. 07-1157 (D.C. Cir. Sept. 27, 2007) (request-

ing immediate stay and subsequent consideration of DTA cases “in stages”);

Omnibus Mot. to Stay Orders to File Certified Index of Record 25, 33,

Hamad v. Gates, No. 07-1098 (D.C. Cir. Sept. 27, 2007) (same).

"The court of appeals has so far accommodated the government by

staying the government's obligation to produce the record in several DTA

cases. See, e.g., Order, Nassar v. Gates, No. 07-1340 (D.C. Cir. Sept. 26, 2007).

The Boumediene Petitioners have moved to compel production of the record

on review, but the court of appeals has yet to act on the motion. Mot. to Com-

pel Prod. of Gov’t Info., Ait Idir v. Bush, No. 07-1157 (D.C. Cir. Sept. 14, 2007).

'? Furthermore, although the government asserts (at 41) that “im-

portant questions remain subject to consideration or elaboration as to the

10

2. Habeas requires searching review of Peti-

tioners’ detention

Common law habeas, at its “historical core,” served “as a

means of reviewing the legality of Executive detention,” and in

that context “its protections have been strongest.” JNS v. St.

Cyr, 533 U.S. 289, 301 (2001). The government does not even

address the numerous Founding-era cases demonstrating the

rigorous nature of habeas review. See Pet. Br. 19-26. Instead, it

suggests that this case should be treated like a deportation case,

a criminal case, or a battlefield determination of prisoner-of-war

status—anything but what it really is, namely a case of indefinite

military detention of persons from a friendly country who have

been held thousands of miles from any theater of hostilities for

six years without any meaningful adversarial process. What-

ever level of habeas review is appropriate in the other scenarios

the government invokes, they do not govern this case.

The government’s analogy to deportation cases surfaces in

a misleading discussion of St. Cyr, which it cites for the propo-

sition that “traditional habeas review” was limited to review of

““pure questions of law” and the existence of “‘some evidence

to support the order” at issue. Gov’t Br. 47 (quoting 533 U.S.

at 305-306). The government fails to mention that this passage

of St. Cyr discussed habeas proceedings “to test the legality of

[a] deportation order.” 533 U.S. at 306. Deportation proceed-

ings provide aliens with “all opportunity to be heard upon the

questions involving [their] right to be and remain in the United

States.” Yamataya v. Fisher, 189 U.S. 86, 101 (1903). The St.

Cyr petitioner thus had the right to counsel (8 U.S.C.

§ 1229(a)(1)(E)); a meaningful opportunity “to examine the evi-

scope of the review available under the DTA,” the government’s sole ex-

ample is a question whose resolution could only narrow the scope of re-

view. The government notes (at 41 n.16) that the D.C. Circuit has yet to

decide the government’s petition for rehearing en banc in Bismullah,

which seeks to limit the DTA record on review to information that the

CSRT actually obtained and considered, rather than including all infor-

mation the CSRT is authorized to obtain and consider. The possibility

that Petitioners’ rights may be curtailed even further is not a reason for

abstention; if anything, it confirms the need for this Court’s review.

11

dence against [him], to present evidence on [his] own behalf,

and to cross-examine witnesses presented by the Government”

(id. § 1229a(b)(4)(B)); the benefit of a heavy burden on the gov-

ernment to prove deportability by “clear and convincing evi-

dence” (id. § 1229a(c)(3)(A)); and a neutral decisionmaker inde-

pendent of the prosecuting authority.’ Additionally, the lib-

erty interest here is weightier than even the grave interest at

stake in deportation proceedings, which do not “permit indefi-

nite detention.” Zadvydas v. Davis, 533 U.S. 678, 689 (2001).

Similarly misplaced is the government’s reliance on ha-

beas proceedings involving criminal defendants, including

persons tried by military commission. Any limitations on ha-

beas review in the post-conviction context are attributable to

the vigorous adversarial and judicial protections that precede

a conviction.'* The scope of habeas review appropriate after

such proceedings has no bearing on this case, where Petition-

ers have had no meaningful judicial process at all. See 06-1196

Pet. App. 150 (CSRT procedures mandating a “non-

adversarial proceeding”); see also Rasul, 542 U.S. at 487-488

(Kennedy, J., concurring in the judgment) (“In Eisentrager,

the prisoners were tried and convicted by a military commis-

sion{.] Indefinite detention without trial or other proceeding

presents altogether different considerations.”).

Finally, the government (at 44-45) invokes the plurality

opinion in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), as authori-

'* See, e.g., 8 U.S.C. § 1101(b)(4) (immigration judges “shall not be em-

ployed by the Immigration and Naturalization Service” but by the Execu-

tive Office for Immigration Review); Costa v. INS, 233 F.3d 31, 33 n.1 (ist

Cir. 2000) (immigration court is “independent|] of the INS”); cf United

States er rel. Accardi v. Shaughnessy, 347 U.S. 260, 267 (1954) (remanding

for inquiry into executive influence on Board of Immigration Appeals).

'* See Yamashita, 327 U.S. at 5 (military commission heard 286 wit-

nesses; defendant represented by six lawyers); Quirin, 317 U.S. at 23 (de-

fendants represented by counsel and presented extensive evidence); see

also Herrera v. Collins, 506 U.S. 390, 399-401 (1993) (full death penalty trial

in civilian court); Burns v. Wilson, 346 U.S. 137, 141, 145 (1958) (“{rjigorous”

court-martial provisions secured “exhaustive inquiry” and “ablje] repre-

sentjation]”); Hiatt v. Brown, 339 U.S. 108, 106 (1950) (full criminal court-

martial with representation by three attorneys).

12

zation for permanent detention on the basis of nothing more

than a “rudimentary procedure,” so long as the government

claims that the prisoner is an “enemy combatant.” But far

from embracing “rudimentary” procedures, the plurality rec-

ognized Hamdi’s right to “notice of the factual basis for his

classification, and a fair opportunity to rebut the Government’s

factual assertions before a neutral decisionmaker.” 542 US. at

533. As previously explained (Pet. Br. 20-21, 28-32, 48), the

CSRTs provided none of this. See also infra pp. 13-20.

What is more, the balancing of interests undertaken in

Hamdi requires substantially greater procedural safeguards

here. The risk of subjecting the Boumediene Petitioners to

“erroneous deprivation” of their liberty is much greater, and

the government’s interest in avoiding “practical difficulties”

during live combat much weaker, than in Hamdi. 542 U.S. at

529, 531 (citation omitted).

The risk of misclassifying Hamdi was far lower: he was al-

leged to be part of an enemy State’s military, captured in battle

with his assault rifle as part of a “Taliban unit” in a “foreign

combat zone” during active hostilities. 542 U.S. at 512-513, 528

(emphasis omitted); cf. id. at 510-511 (deseribing America’s war

against “the Taliban regime” governing Afghanistan). By con-

trast, the government has never suggested that the Boumedi-

ene Petitioners directly participated in hostilities as part of the

armed forces of an enemy State; it asserts (at 62) only that Pe-

titioners were “associates of al Qaeda” residing in a European

country friendly to the United States. This amorphous accusa-

tion is far more subject to error than the case of soldiers cap-

tured on a battlefield as part of the fighting forces of an enemy

government. See Bradley & Goldsmith, Congressional Au-

thorization and the War on Terrorism, 118 Harv. L. Rev. 2047,

2124 (2005) (“Because the enemy does not wear uniforms and is

not affiliated with an enemy state, and because of the poten-

tially indefinite duration of the conflict, designation errors are

both more likely and more serious.”).

As for the government’s interests, the Hamad. plurality

gave significant weight to governmental concerns that “military

officers who are ... waging battle would be unnecessarily and

dangerously distracted” from live combat by “discovery into

13

military operations [and] evidence buried under the rubble of

war.” 542 U.S. at 581-582. Such concerns do not apply to Peti-

tioners, who were civilians in a friendly country far from any

active theater of war, arrested and detained by Bosnian law en-

forcement officials at the behest of U.S. diplomats, not “military

officers.” Moreover, the government’s interest in prolonged de-

tention under exigent circumstances without fair procedures is

nowhere near as strong as it was in 2004: “[A]s the period of de-

tention stretches from months to years, the case for continued

detention to meet military exigencies becomes weaker.” Rasul,

542 U.S. at 488 (Kennedy, J., concurring in the judgment).

The government fastens on the Hamdi plurality’s refer-

ence (542 U.S. at 538) to “the possibility” that Article 5 tribu-

nals conducted under Army Regulation 190-8 could constitute

adequate process for a person in Hamdi’s situation, 7.e., an

alleged armed soldier of a State army caught while “engaged

in an armed conflict against the United States” on an active

battlefield (id. at 516). The government’s argument ignores

the notably different balancing of interests in this case. And

in any event, CSRTs fall well short of Article 5 tribunals.

Unlike the CSRTs, Article 5 tribunals do not apply any pre-

sumption that the government’s evidence is “genuine and ac-

curate.” 06-1196 Pet. App. 159. They prohibit the use of tor-

ture and coercion. Army Reg. 190-8 4 2-1.a(1)(d). They are

convened promptly after detention and near the location of

capture, maximizing the availability of witnesses and evi-

dence." And whereas the CSRT regulations expressly forbid

the participation of counsel, nothing in Army Regulation 190-

8 does so. Indeed, the U.S. military’s first written procedures

for Article 5 tribunals—developed during the Vietnam War,

which was waged in significant part against irregular combat-

ants—recognized a detainee’s right to counsel as a “funda-

mental right[] considered to be essential to a fair hearing.”

'’ See, ¢.g., United States Forces, Korea Reg. 190-6, § 7-2.a (“nor-

mally ... within 2 days of capture”), available at http//www.usfk.mil/usfk/

Publications/Publication_Records_Reg_USFK.htm; Nat'l Inst. of Military

Justice Amicus Br. 12; Retired Military Officers Amicus Br. 8, 12.

14

U.S. Military Assistance Command, Vietnam, Directive 20-5,

Annex A.7, reprinted in 62 Am. J. Int'l L. 754, 771 (1968)

(“MACV Directive 20-5”), see also id. Annex A.8 (military

lawyer provided to unrepresented detainees). '°

The government (at 52) highlights certain CSRT proce-

dures as not present in the Article 5 context, but those proce-

dures either had no meaningful effect in practice or actually op-

erated to prisoners’ detriment. The ability of “a higher author-

ity” to review decisions and “return the record ... for further

proceedings” (id.) led to reversals of detainee-favorable rulings

and created a culture of preordained results and unwillingness to

test the government’s assertions. Pet. Br. 30. By contrast, legal

review of Article 5 decisions is a protective measure for the de-

tainee’s benefit when the tribunal denies prisoner-of-war status.

See Army Reg. 190-8 4 1-6.g. The provision of a “personal rep-

resentative” was an ineffectual charade given the lack of a confi-

dential relationship, the ban on serving as an “advocate,” and the

failure of most personal representatives to provide meaningful

assistance. Pet. Br. 31-32. summary of the

evidence” was likewise , as the government

admits (at 4), “most of the CSRT usions are based in signifi-

cant part on classified information.” And while the CSRT rules

may have required the Recorder to submit evidence favorable to

'° The government's assertion (at 54) that “aliens captured on a foreign

battlefield and held as enemy combatants” have never “been given hearings ...

at which they were represented by counsel” is thus plainly incorrect. Also

historically wrong is its claim (at 52) that Article 5 tribunals have not re-

viewed detainee-favorable evidence or allowed the detainee to present docu-

mentary evidence. In Vietnam, a lawyer acting as “|cjounse) for the tribunal”

was required to present to the Article 5 tribunal “all relevant evidence to

which he has access ... without regard to whether the evidence is favorable or

unfavorable to the detainee.” MACV Directive 20-5, Annex A.14.g, 62 Am. J.

Int'l L. at 773. Counsel for the detainee was allowed to present “witnesses,

documents, affidavits, real evidence, and sworn or unsworn statements in

behalf of the detainee.” Jd. Annex A.14i. Although Article 5 tribunals did not

expressly allow detainees to confront classified information (Gov't Br. 49 n.18),

there is no indication that Article 5 tribunals have ever relied on hidden evi-

dence in evaluating prisoner-of-war status, whereas the CSRTs relied “in

significant part” on secret evidence (id. 4).

15

the detainee, the practice differed significantly in Petitioners’

cases. E.g., Pet. Br. 5, 27-29. Hamdi’s reference to Army Regu-

lation 190-8 cannot be taken as approval of the use of these very

different CSRT procedures in a very different context. '’

3. DTA review is not comparable to habeas

The government posits (at 48) that this Court should evalu-

ate the adequacy of the DTA review procedure as though Peti-

tioners were “in effect making a facial challenge to the validity of

the DTA procedures.” Yet this is anything but a facial chal-

lenge; it is a habeas petition brought on behalf of specific indi-

viduals for whom the DTA does not provide meaningful review

at a meaningful time. Whether judicial interpretation of the

DTA could render it an adequate substitute for habeas in other

circumstances—such as cases of newly-arrived detainees given a

meaningful opportunity to contest the government’s allegations

in an actual adversarial proceeding—it does not give these Peti-

tioners an adequate replacement for the rigorous protections of

common law habeas. The government may prefer to defend a

theoretical version of the DTA that ignores the reality of Peti-

tioners’ case, but this Court should consider the means by which

the statutory review procedure is actually implemented. Swain

v. Pressley, 430 U.S. 372, 383 n.20 (1977); cf. Pet Br. 18 n.17.

The government’s suggestion (at 54) that “the combined

effect of the CSRTs and the DTA” constitutes the relevant ha-

beas substitute for purposes of the Suspension Clause is like-

wise mistaken. Habeas is a judicial remedy; it cannot be re-

placed by a process that (like the CSRT) is ultimately con-

trolled by the jailer. While habeas courts may exercise a less

searching review when the prisoner has already received a rig-

orous and fair adversarial process before a neutral decision-

* attain statements of Lt. Col. Abraham (J.A. 105-107), an-

other officer who participated as a panelist in 49 CSRT proceedings has come

forward with revelations of pervasive pressure to conform CSRT outcomes to

command instructions, lack of participation by virtually all “personal repre-

sentatives,” lack of meaningful ability to present evidence, and incompetence

of many CSRT panelists. See Decl. of William J. Teesdale 3-10, Hamad vy.

Bush, No. CV 05-1009 JDB (D.D.C. Oct. 5, 2007) (reproducing content of in-

terview with officer). Petitioners will seek leave to lodge this declaration.

16

maker (as in criminal and deportation cases), that is not the

case here. See Pet. Br. 19-20. Far from justifying limited habeas

review, the serious structural flaws of the CSRT process—

including its ban on counsel, its lack of an independent deci-

sionmaker, and its failure to give prisoners notice of the factual

basis for the government’s claims or any meaningful opportunity

to present their own evidence—bring into sharp relief the inabil-

ity of the DTA to provide meaningful review of detention. See

Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2807 (2006) (Kennedy, J.,

concurring in part) (DTA review “cannot correct for structural

defects ... that can cast doubt on the factfinding process”).

No opportunity to present evidence. The D.C. Circuit re-

stricts the DTA “record on review” to evidence “reasonably

available” to the government and prevents detainees from

presenting their own evidence to the court. Bismuilah v.

Gates, 501 F.3d 178, 180 (D.C. Cir. 2007). This restriction—

utterly foreign to common law habeas—is particularly harm-

ful here, given that Petitioners strongly dispute the govern-

ment’s factual assertions. The effect of the closed DTA record

is worsened by the fact that Petitioners had no way to refute

the government's allegations before the CSRT, where “most”

conclusions were based “in significant part” on classified in-

formation hidden from the prisoner. Gov’t Br. 4."* The gov-

ernment’s only suggestion (at 56) is that counsel should now

submit new evidence to the government, which will then de-

cide in its (presumably unreviewable) discretion whether to

convene a new CSRT."

'* This was certainly true in Petitioners’ cases, where the unclassified

evidence presented was cursory and unilluminating. See, e.g., CAJA 541-

561 (Nechla); CAJA 345-346 (Roumediene); CAJA 495-503 (Ait Idir).

'’ The government cites (at 56) only one situation in which it has de-

cided to convene a new CSRT in response to new evidence—a decision

reached after Petitioners filed their opening brief in this Court. Counsel for

the Boumediene Petitioners presented significant exculpatory evidence to

the government in 2005, but no new proceedings have resulted. See Mem. in

Supp. of Mot. for Order Enjoining Appellees from Transferring Pet’rs to

Algeria, Exs. Al-A6, Boumediene v. Bush, No. 05-5062 (D.C. Cir. Sept. 21,

2005) (Petitioners’ submissions to Administrative Review Board).

17

No rigorous review of factual determinations. The gov-

ernment ignores the DTA’s statutory mandate that the court

of appeals apply a rebuttable presumption in favor of the gov-

ernment’s evidence—evidence adduced in an essentially ex

parte and in camera process. See Pet. Br. 29. Indeed, the

government carefully stops short of acknowledging any re-

view under the DTA of a CSRT’s factual determinations.

The insufficiency of DTA review is compounded by the

fact that the CSRTs themselves were required by regulation

to presume that the government’s evidence was “genuine and

accurate.” 06-1196 Pet. App. 159. And CSRT panelists were

not independent, but were highly susceptible to command in-

fluence. Senior military officials publicly tarred all Guan-

tanamo prisoners as the “worst of the worst,” and the CSRT

regulations warned that “multiple levels of review” had al-

ready concluded that each prisoner was properly detained.

Pet. Br. 3, 30. Noticeably absent from the government’s

touted “favorable determinations” list is any instance in which

a CSRT ever determined that a prisoner was not an enemy

combatant and therefore that the detaining authority had

made a mistake. See Gov’t Br. 57 (citing CSRT Summary,

available at http://www.defenselink.mil/news/Nov2007/CSRT

Update-Nov2-07.pdf). At most, a lucky few were designated

as “no longer” enemy combatants—and even in some of those

cases, panelists’ superiors ordered do-overs until the result

favored the government. Pet. Br. 30.

No express authority to order release. The government

insists that the court of appeals cannot order release but can

merely remand cases for a new round of CSRTs—as though

DTA proceedings were garden-variety administrative law

cases in which railroad ratemaking, rather than individual lib-

erty, were at stake. The government’s vision of the DTA proc-

ess is an endless loop of cursory CSRTs and meaningless court

challenges. If this is what the DTA provides, then it is surely

an insufficient substitute for habeas. The government suggests

(at 60) that habeas relief typically involves a conditional order

of release pending retrial, ignoring both the undisputed power

of habeas courts to order unconditional release in appropriate

circumstances and its own position that the DTA does not

18

permit even a conditional order of release. And a release or-

der would clearly not raise any “diplomatic concerns” (Gov't

Br. 61) given that Bosnia has repeatedly stated its willingness

to accept the Boumediene Petitioners’ return. Pet. Br. 3.”°

Lack of speed. The government cites no authority for its

suggestion (at 59-60) that the snail’s pace of DTA review

should be assessed only from the beginning of each DTA pro-

ceeding. This would allow the government limitless opportu-

nities to restart the clock by convening a new CSRT proceed-

ing and pretending that the last six years of Petitioners’ lives

have not been spent in U.S. custody—precisely the course of

action that has been suggested by the court of appeals. Bis-

mullah II, at *3. And even by the government’s calculation,

DTA review has been exceedingly slow. The first DTA peti-

The government’s claim (at 60) that it has “taken on itself” to re-

lease every prisoner who received a favorable CSRT determination is disin-

genuous. As noted above (at p. 17), the military command structure recon-

vened CSRTs for some detainees until its desired outeome was reached.

Moreover, although the Defense Department hierarchy reviewed and final-

ized all CSRT determinations by March 29, 2005 (see Secretary of Navy

Gordon England, Defense Dep’t Special Briefing on Combatant Status Re-

view Tribunals, Mar. 29, 2005, available at http//www.defenselink.mil/

transcripts/transcript.aspx?transcriptid=2504), petitioners who had _ re-

ceived favorable CSRT decisions continued to be imprisoned in Guantanamo

for nearly two years after that date. See Notice of Transfer & Mot. to Dis-

miss Case as Moot as to Certain Pet’rs, Kiyemba v. Bush, Nos. 05-5487 &

05-5488 (D.C. Cir. Nov. 22, 2006) (petitioners transferred to Albania in No-

vember 2006); see also Emergency Mot. to Dismiss as Moot, Qassim v.

Bush, No. 05-5477 (D.C. Cir. May 5, 2006) (petitioners transferred to Alba-

nia in May 2006, one business day before oral argument in habeas appeal

challenging the government’s claimed authority to continue to imprison

them). Nor does clearance by Administrative Review Boards (Gov’t Br. 4)

compel the release of detainees. See Emergency Mot. for Leave to Supple-

ment the Record on Pending Mots. 5, Parhat v. Gates, No. 06-1397 (D.C.

Cir. Jan, 22, 2007) (prisoner remains imprisoned at Guantanamo despite

October 2005 notice of ARB determination that he is eligible for release);

Joint Br. in Supp. of Pending Mots. to Set Procedures & for Entry of Pro-

tective Order 27, Bismullah v. Gates, No. 06-1197 (D.C. Cir. Mar. 26, 2007)

(six petitioners remain imprisoned notwithstanding favorable ARB deci-

sions). The government has consistently argued that detention can continue

indefinitely regardless of CSRT or ARB determinations and that courts

have no power to order release. Pet. Br. 30.

19

tion was filed twenty-two months ago. Pet. for Review,

Paracha v. Rumsfeld, No. 06-1088 (D.C. Cir. Jan. 24, 2006).

The government has yet to produce the “record on review’ —

and has in fact stated that it “does not possess and cannot

produce” such records “in a timely fashion.” Mot. to Govern 3,

Al Ginco v. Gates, No. 07-1090 (D.C. Cir. Oct. 31, 2007).

Restrictions on attorney-client relationship. Petitioners’

ability to seek relief from their detention under the DTA is

hobbled both by the DTA’s impairment of the attorney-client

relationship (Pet. Br. 31-32) and by the CSRTs’ flat prohiti-

tion on the assistance of counsel in the first instance. The

CSRTs’ ban on counsel at such a “critical stage” (cf. Jowa v.

Tovar, 541 U.S. 77, 86-87 (2004)}—a ban the government

claims could extend to American citizens (Br. 52, 54)—is en-

tirely foreign to the Anglo-American legal system. And it has

particularly pernicious effects here, since the DTA’s “record

on review” was created by the CSRTs, which relied “in sig-

nificant part,” and often exclusively, on classified evidence

(Gov’t Br. 4), which Petitioners never saw, but which could

have been rebutted if Petitioners had been represented by

security-cleared counsel.”'

*' Existing procedural mechanisms demonstrate that it is entirely pos-

sible to safeguard classified information without denying a meaningful op-

portunity to confront the evidence. See, e.g., 8 U.S.C. §§ 1582-1535 (exami-

nation of classified information by security-cleared attorneys and provision

of unclassified summaries that enable a defense in removal proceedings for

resident aliens accused of terrorist activity); Classified Information Proce-

dures Act, 18 U.S.C. app. 3, 88 4, 6(c)(1) Gudicial supervision of targeted

redaction and unclassified summaries that “will provide the defendant with

substantially the same ability to make his defense”); Mil. R. Evid. 505(i)4),

(j) (oversight by military judge of proposed redactions and the adequacy of

unclassified summaries); Turner & Schulhofer, The Secrecy Problem in Ter-

rorism Trials 17-34 (2005), available at http://www.brennancenter.ory/

dynamic/subpages/download_file_34654.pdf (discussing several procedures

used by federal courts to accommodate secrecy concerns without weakening

the adversarial system or fundamental rights).

Experience abroad confirms that such a balance is workable. For exam-

ple, the Unitea Kingdom and Canada have used security-cleared special advo-

cates to represent the interests of alien detainees who have been denied access

to sensitive information. See Special Lmmigration Appeals Commission Act,

20

The government’s statement (at 55) that the CSRT per-

sonal representative “fulfill[ed] some of the most important

- functions of counsel” reveals a remarkably parsimonious view

of the function of lawyers. Personal representatives had no

legal training, were not ethically bound to represent Petition-

ers zealously, were forbidden from serving as “advocates,”

had no privileged relationship with Petitioners, and could

even be forced to testify against them. 06-1196 Pet. App. 155,

170, 172. DTA review of a closed record formed under these

conditions cannot be an adequate substitute for habeas.

Il. PETITIONERS’ DETENTION IS UNLAWFUL

The Court should reject the plea (Gov’t Br. 61-62) that it

abstain from addressing the merits issues. They were ruled

on by the district court, submitted to the court of appeals, and

included in the petition for certiorari. No public interest sup-

ports deferring these issues for more lengthy rounds of litiga-

tion while Petitioners remain imprisoned. The interests of

justice and judicial efficiency call for this Court’s adjudication

of the lawfulness of Petitioners’ detention. See Mitchell v.

Forsyth, 472 U.S. 511, 580 (1985).

A. The AUMF Does Not Authorize The Government's

Broad Definition Of “Enemy Combatant”

Neither the AUMF nor the laws of war authorize the gov-

ernment’s enormously expansive definition of detainable “enemy

combatants.” The government studiously avoids discussing, but

cannot deny, that its definition—which includes anyone who

1997, c. 68, § 6 (U.K.); Prevention of Terrorism Act, 2005, c. 2, sched. 7 (U.K.);

Charkaoui v. Canada, 1 S.C.R. 350, 4 71-74 (2007). The Supreme Court of

Canada recently invalidated an alternative procedural scheme that failed to

provide security-cleared counsel and severely restricted an alien detainee’s abil-

ity to challenge the veracity of confidential information. Charkaoui { 139 (“solu-

tions can be devised that protect confidential security information and at the

same time are less intrusive on the person’s rights”); see also Chahal v. United

Kingdom, 23 Eur. H.R. Rep. 413 ¢ 131 (1996) (“{Tyhere are techniques which

can be employed which both accommodate legitimate security concerns about

the nature and sources of intelligence information and yet accord the individual

a substantial measure of procedural justice.”); cf Specialists in Israeli Military

Law & Constitutional Law Amicus Br. 22-23 (describing Israeli efforts to pro-

tect due process in cases involving classified information).

21

“support{ed}” al Qaeda, the Taliban, or “associated forces” (Pet.

App. 81a}—sweeps in persons whose connection to those entities

is unknowing, trivial, or utterly unrelated to combat. Pet. Br. 34.

The government thus does not dispute that an innocent charita-

ble gift could trigger indefinite detention without charge for the

unwitting donor, if the recipient turned out to be an al Qaeda

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

443, 475 (D.D.C. 2005). So, presumably, would the innocent pro-

vision of medical, legal, educational or other everyday services.

The government cites no modern law-of-war source or

US. practice suggesting that the category of “combatants” has

so vast a reach. Other than inapposite sections of the 1949 Ge-

neva Conventions, the government (at 64-65) relies exclusively

on sources dated 1920 or earlier. The law-of-war backdrop

relevant to interpreting the AUMF is more likely to be in-

formed by recent domestic and international commentary and,

most importantly, recent U.S. mil.ary practice, none of which

authorizes the broad standard of detention advanced by the

government here. See Pet. Br. 38-43. Even the government’s

sources merely state that certain noncombatant personnel em-

ployed by or closely connected to a foreign State’s military

may be detained. But the government has never alleged that

the Petitioners were “civil persons engaged in military duty or

in immediate connection with an army.” Winthrop, Military

Law and Precedents 789 (2d ed. 1920). Nor are they “[pJersons

belonging to the auxiliary departments of an army, whether

permanently or temporarily employed” (Baker & Crocker, The

Laws of Land Warfare Concerning the Rights and Duties of

Belligerents 35 (1918) (quoting Hall, A Treatise on Interna-

tional Law 420 (4th ed. 1895))); “{plersons who accompany the

armed forces” (Geneva Convention (III) Relative to the

Treatment of Prisoners of War, Aug. 12, 1949, art. 4(A)(4), 33, 6

U.S.T. 3316); or “medical personnel and chaplains” (id. art. 33).

Even if the laws of war were to treat involvement with a

terrorist organization like al Qaeda as equivalent to involve-

ment with a foreign State’s army, the government points to no

law-of-war principle, let alone a “longstanding” one (Hamdi,

542 U.S. at 521), that authorizes military detention on the basis

of mere “support[].” The government’s own authorities require

22

a significantly closer and intentional connection to the military

operations of enemy forces.” The government’s position that

persons who merely “support{]” an enemy army may be indefi-

nitely detained would have allowed Nazi Germany to imprison

any American who bought war bonds, entertained U.S. troops,

and perhaps merely paid taxes. Cf. Bradley & Goldsmith, 118

Harv. L. Rev. at 2115 (noting that, in modern wars, the cate-

gory of persons “who support[] the war effort ... would include

everyone”). And the government’s alarming claim (at 66) that

a “supporter of an entity engaged in armed conflict” forfeits his

or her status as a “civilian” would allow enemy States to use

military force against millions of ordinary American civilians,

all of whom would become “combatants” and therefore legiti-

mate targets of attack. Unsurprisingly, the laws of war pro-

vide no support for such a vague and illimitable power.”

See, e.g., Baker & Crocker 35 (contemplating detention of persons

““on the ground of the direct services” to the army (quoting Hall 420)); Win-

throp 789 (civilians “in immediate connection” with an army); Adjutant

Gen.’s Office, War Dep’t, General Orders No. 100, art. 49 (Apr. 24, 1863) (“all

those who are attached to the Army for its efficiency and promote directly

the object of the war” (emphasis added)); see also Hamdi, 542 U.S. at 519

(stressing that the petitioners in Quirin were “bent on hostile acts” with the

“aid, guidance, and direction” of the enemy government (internal quotation

marks omitted)).

Miller v. United States, 78 U.S. (11 Wall.) 268 (1870), did not involve

military force or detention, but confiscation of property, and the confiscation

was based not on mere “support[],” but on extensive, intentional ties to the

Confederate army. Miller was adjudged to be “a person engaged in the re-

bellion” (id. at 301) and—according to averments that the Court deemed

established by default—acted as “an officer of the army, and also as an offi-

cer of the navy of the rebels, in arms against the government of the United

States” (id. at 277 (reporter’s quotation of libel of information)).

3 See, e.g., Department of the Navy, Commander's Handbook on the

Law of Naval Operations 5.3 (1995) (defining “those individuals who do not

form a part of the armed forces and who otherwise refrain from the commis-

sion or direct support of hostile acts” as “noncombatants” or “the civilian

population”); U.S. Air Force Pamphlet 110-31, § 1-2(b) (Nov. 19, 1976) (de-

fining “civilian” as “any person other than one of the categories of persons

referred to” as prisoners of war in Third Geneva Convention art. 4(A)(1)-(3)

and (6)); Department of the Army, Army Field Manual No. 27-10, ch. 3, € 60

(1956).

23

In light of this background, there is no reason to believe

that Congress authorized such an expansive power to detain.

At most, the AUMF’s authorization of “necessary and appro-

priate” force against those responsible for the September 11

attacks implicitly allows the detention of: (1) civilians who di-

rectly participate in hostilities (see Pet. Br. 41); and (2) mem-

bers of a State’s military—categories that indisputably do not

include the Boumediene Petitioners. Petitioners’ detention is

accordingly unlawful.”

B. Petitioners’ Imprisonment Violates Due Process

Even apart from the fact that Petitioners’ detention is not

authorized by law, they are entitled to habeas relief because

the procedures by which the government determined that they

were “enemy combatants” were fundamentally unfair. Peti-

tioners, as aliens within the territorial jurisdiction of the

United States, have fundamental due process rights. See

Downes v. Bidwell, 182 U.S. 244, 277 (1901); Wong Wing v.

United States, 163 U.S. 228, 238 (1896); Yick Wo v. Hopkins,

118 U.S. 356, 369 (1886). In Rasul, this Court rejected the

** Article II of the Constitution does not empower the President to

subject civilians to indefinite military imprisonment without authorization

of Congress or the laws of war. Pet. Br. 44 n.45; see also President’s Mes-

sage, 11 Annals of Cong. 11, 12 (1801) (statement of President Jefferson that

a U.S. warship could not detain the crew of a disabled Tripolitan cruiser

because it was “{uJnauthorized by the Constitution, without the sanction of

Congress”). Whatever power might be claimed in an immediate emergency

(see The Prize Cases, 67 US. (2 Black) 635, 669-670 (1863)) does not author-

ize six years’ imprisonment without charge. See Rasul, 542 U.S. at 488

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

> The government's attempt (at 69-70) to distinguish the /nsular

Cases cn sovereignty grounds is unavailing. To be sure, the United States

owned Puerto Rico at the time of Downes, but nowhere did the Court sug-

gest, let alone hold, that the right of the people of Puerto Rico “under the

principles of the Constitution to ... life, liberty, and property” depended on

American sovereignty. 182 U.S. at 283. Instead, the Court relied on the

notion that certain constitutional prohibitions “go to the very root of the

power of Congress to act at all, irrespective of time or place.” /d. at 277. It

was the fundamental notion that our government is one of limited powers—

not a sovereignty test—which led the Court “to disclaim any intention to

hold that the inhabitants of these territories are subject to an unrestrained

24

contention that Guantanamo prisoners are beyond the reach of

American law, for Guantanamo is “territory over which the

United States exercises exclusive jurisdiction and control.” 542

U.S. at 476. Under these precedents, Petitioners have at least

some enforceable due process rights. See id. at 488 n.15.”

Eisentrager is not to the contrary, because its conclusion

rested on the fact that “the scenes of [the prisoners’] offense,

their capture, their trial and their punishment were all beyond

the territorial jurisdiction of any court of the United States.”

339 U.S. at 778 (emphasis added). By contrast, Rasul recog-

nized that Guantanamo prisoners are “detained within the ter-

ritorial jurisdiction of the United States.” 542 U.S. at 480 (in-

ternal quotation marks omitted). It would be anomalous to

hold that, although the United States has exercised “complete

jurisdiction and control’ over the Guantanamo Bay Naval

Base” for more than a century (id. (quoting 1903 Lease

Agreement, art. II1)), the base nonetheless falls “beyond [our]

territorial jurisdiction” for constitutional purposes.”’

On the merits, the government (at 72) merely repeats its

comparison of the unfair CSRT procedure and futile DTA re-

view to the Article 5 tribunals mentioned in Hamdi. As dis-

cussed above (at pp. 12-13), the government is wrong to pre-

sume that the due process calculus is the same here as it was

power ... upon the theory that they have no rights which [Congress] is

bound to respect.” Jd. at 283.

© Petitioners do not seek “wholesale” application of the “full measure”

of the Bill of Rights. Gov’t Br. 70-71. Rather, consistent with the /nsular

Cases, Petitioners simply seek vindication of their fundamental due process

nights to meaningful notice and “the opportunity to be heard at a meaningful

time and in a meaningful manner” before they are locked away for what

could be the rest of their lives. Mathews v. Eldridge, 424 U.S. 319, 333

(1976) (internal quotation marks omitted); see also Hamdi, 542 U.S. at 533.

” United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), is similarly

inapposite. The government does not dispute that all references to the Fifth

Amendment in Verdugo-Urquidez are dicta. Justice Kennedy’s concur-

rence, which envisions the existence of certain “restrictions that the United

States must observe with reference to aliens beyond its territory” (id. at

276), demonstrates that the dicta on which the government relies were un-

convincing to a majority of the Court.

25

in Hamdi. “(D]ue process is flexible and calls for such proce-

dural protections as the particular situation demands.” Mor-

rissey v. Brewer, 408 U.S. 471, 481 (1972). The case of these

six men—taken from a peaceful European country after that

country’s civilian courts conducted a lengthy investigation

and found no basis for their detention—calls for significant

due process protections, particularly given the government’s

adoption, immediately after Hamdi, of an unprecedented defi-

nition of “enemy combatant” that carries a high risk of error.

The experience of other allied democracies is relevant

here, not only in ascertaining the extent to which the laws of

war authorize detention of combatants, but also in determin-

ing what process this “particular situation demands.” Morris-

sey, 408 U.S. at 481. Courts in Europe and Israel—where the

risk of terrorist attack has been substantial for many years—

have unflinchingly held that lengthy executive detention

without charge or trial offends the rule of law. Pet. Br. 49-50

& n.52.% The lesson, of course, is not that this Court is bound

by the views of the Supreme Court of Israel or the European

Court of Human Rights (Gov’t Br. 73), but that those courts,

facing similarly grave security threats, have not tolerated in-

definite, unreviewable military detention under overbroad

standards. Instead, they have confirmed the feasibility of en-

suring that imprisonment is promptly reviewed under ac-

cepted law-of-war principles in fair, adversarial judicial pro-

ceedings. This Court can and should do likewise under our

own Constitution and laws.

CONCLUSION

The Court should reverse the judgment of the court of

appeals, hold Petitioners’ imprisonment unlawful, and direct

the district court to grant habeas relief.

*® The government’s charge (at 73) that Petitioners have engaged in

“{sjelective [rJeliance” on foreign law is puzzling. Petitioners cited not only

Israeli law but also established precedents from the European Union. Pet.

Br. 49-50 & n.52; see also Specialists in Israeli Military Law & Constitu-

tional Law Amicus Br. In response, the government cites not a single case,

from this country or any foreign jurisdiction, which even purports to justify

indefinite detention without charge of persons in Petitioners’ position.

STEPHEN H. OLESKEY

ROBERT C. KIRSCH

MARK C. FLEMING

JOSEPH J. MUELLER

PRATIK A. SHAH

LYNNE CAMPBELL SOUTTER

JEFFREY S. GLEASON

LAUREN G. BRUNSWICK

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

(617) 526-6000

NOVEMBER 2007

Respectfully submitted.

SETH P. WAXMAN

Counsel of Record

PAUL R.Q. WOLFSON

JONATHAN G. CEDARBAUM

MICHAEL J. GOTTLIEB

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., N.W.

Washington, DC 20006

(202) 663-6000

DOUGLAS F. CURTIS

PAUL M. WINKE

ANNE K. SMALL

DAVID S. LESSER

JULIAN DAVIS MORTENSON

WILMER CUTLER PICKERING

HALE AND DORR LLP

399 Park Avenue

New York, NY 10022

(212) 230-8800