# Reply Brief — Boumediene v. Bush > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0525%3A18 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 2008 - **Citation:** 553 U.S. 723 ## Text 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 Ee FF a Ne tet cciiectiscinitoncsenntichininiansnntantiuis il 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0525%3A18. Public record. Not legal advice.