Amicus Curiae Brief — Boumediene v. Bush

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AE 20~ Nos, 06-1195 and 06-1196

IN THE

Supreme Court of the United States

LAKHDAR BOUMEDIENE, et al.,

Petitioners,

US.

GEORGE W. BUSH,

President of the United States, et al.,

Respondents.

KHALED A. F. AL ODAH, next friend of

FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al.,

Petitioners,

US.

UNITED STATES, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENTS

KENT S. SCHEIDEGGER

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

(916) 446-0345

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

QUESTIONS PRESENTED

The questions presented, as stated in the Govern-

ment’s Brief in Opposition, are:

1. Whether the Military Commissions Act of 2006

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

federal court jurisdiction over habeas petitions filed by

aliens detained as enemy combatants at Guantanamo

Bay, Cuba.

2. Whether aliens detained as enemy combatants at

Guantanamo Bay have rights under the Suspension

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

3. Whether, if aliens detained at Guantanamo Bay

have such rights, the MCA violates the Suspension

Clause.

4. Whether petitioners may challenge the adequacy

of the judicial review available under the MCA and the

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

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

invoke, much less exhaust, such review.

This brief amicus curiae addresses Question 2.

(i)

TABLE OF CONTENTS

Re ee ee i

eve necceaue seus cavekess iv

BUGUORE GE GUOICUS CUFERE 2... we ccc cccesccccees 1

Summary of facts and case ..............0cc000: 2

Summary of argument ToryerT TCT Teer TT Tere 5

DL eh GUbeeewe d6050 6668s eer eee 6

I

The constitutional “privilege of the writ of habeas

corpus” does not extend to an alien captured

abroad by the military as an enemy, with no other

connection to the United States, regardless of the

ED so scGendieusébevoesevics 6

A. Rasul and place of detention ............ 6

B. Part of the population ............ verre 8

il

Recent historical research refutes rather than

supports petitioners’ claims to a constitutional right

. . cc ceuee eae heeenaeesen 15

Ill

Where the executive and legislative branches have

jointly decided a question of foreign and military

policy, the judiciary should not interfere....... 18

I ee ate 20

iv

TABLE OF AUTHORITIES

Cases

Boumediene v. Bush, 127 S. Ct. 1478,

ee a es ED oo ov eve been conesees 5

Boumediene v. Bush, 127 S. Ct. 3078 (2007) ...... 5

Boumediene v. Bush, 476 F. 3d 981

ane ta Oh Cag a i 3, 4, 5, 14, 18

Case of the Hottentot Venus, 104 Eng. Rep. 344

te a a a ta ka 11,12

Ex parte D’Olivera, 7 F. Cas. 853 (No. 3,967)

ee ws 12

Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333,

OE cece duveanceasveses 9

Furly v. Newnham, 99 Eng. Rep. 269

EE a ee 15

Hamdan v. Rumsfeld, 548 U.S. __, 126 S. Ct. 2749,

166 L. Ed. 2d 723 (2006) ... cee ec 18

Hamdi v. Rumsfeld, 542 U. S. 507, 1248. Ct. 2633,

159 L. Ed. 2d 578 (2004) .... 0... cc cee eee 7

In re Guantanamo Detainee Cases,

355 F. Supp. 2d 443 (DC 2005) .............. 2,3

INS v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271,

150 L. Ed. 2d 347 (2001) .................. 9,10

Johnson v. Eisentrager, 339 U. S. 763, 70S. Ct. 936,

en uae pack aveseeeouces 8

Khalid v. Bush, 355 F. Supp. 2d 311 (DC 2005) .. 2,3

King v. Cowle, 97 Eng. Rep. 587 (K. B. 1759) ..... 7

King v. Schiever, 97 Eng. Rep. 551

DE “oS bes unawkdeaes ddeeekadees 14, 15

Kokkonen v. Guardian Life Ins. Co. of America,

511 U.S. 375, 1148. Ct. 1673,

128 L. Ed. 2d 301 (1904) ..............ceceees 6

Lockington’s Case, Brightly 269, 5 Am. L. J. 92

tt + :iadenidadedeseketaCaaessen ie 13

Marbury v. Madison, 1 Cranch (5 U.S.) 137,

ED <i-v cu cv cwsswednetadakauns 9,19

Mathews v. Diaz, 426 U.S. 67, 96 S. Ct. 1883,

Ge Bn Bs Be SP CTD oc vec cbccevecsccecce 19

Oetjen v. Central Leather Co., 246 U. S. 297,

38 S. Ct. 309, 62 L. Ed. 726 (1918) ............ 19

Rasul v. Bush, 542 U. S. 466, 124 S. Ct. 2686,

159 L. Ed. 2d 548 (2004) .......... 6,9, 10, 12, 18

Shaughnessy v. United States ex rel. Mezei,

345 U.S. 206, 73 S. Ct. 625,

Pe Ey es PEE ov eeccccecscctsecesesens 9

Sommersett v. Stewart, 98 Eng. Rep. 499

8 3S errr ree rere ere Tere 11

Steel Co. v. Citizens for Better Environment,

523 U.S. 83, 118 S. Ct. 1003,

fe § | it | errr 13

The Case of the Three Spanish Sailors,

96 Eng. Rep. 775 (C. P. 1779) ................ 13

The Japanese Immigrant Case, 189 U. S. 86,

23 S. Ct. 611, 47 L. Ed. 721 (1903)......... 7, 8,9

United States v. Villato, 2 Dall. 370

EERE 12

Wilson v. Izard, 30 F. Cas. 131 (No. 17,810)

SERRE ee a 12

United States Constitution

Article I, §9, cl. 2, of the Constitution ........ 6, 19

United States Statutes

Oe 3

a wae 4,6

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

Title X, 119 Stat. 2680, 2739-2744 (2005) ..... 3,6

Military Commissions Act of 2006, § 9, Pub. L.

No. 109-366, 120 Stat. 2600 ................ 3,4

Public Law 109-163, § 1405(e)(1), 119 Stat. 3477 .. 7

Secondary Sources

Halliday & White, The Suspension Clause: English

Text, Imperial Context, and American Implications

(Social Science Research Network), available at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=

eee eee ekebe den 15, 16, 17

IN THE

Supreme Court of the United States

LAKHDAR BOUMEDIENE, et al., Petitioners,

US.

GEORGE W. BUSH,

President of the United States, et al., Respondents.

KHALED A. F. AL ODAH, next friend of

FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al.,

Petitioners,

US.

UNITED STATES, et al., Respondents.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a

nonprofit California corporation organized to partici-

pate in litigation relating to the criminal justice system

as it affects the public interest. CJLF seeks to bring the

constitutional protections of the accused into balance

—

The parties have consented to the filing of this brief.

No counsel for a party authored this brief in whole or in part,

and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief.

No person other than amicus curiae CJLF made a monetary

contribution to its preparation or submission

with the rights of the victims and of society to rapid,

efficient, and reliable determination of guilt and swift

execution of punishment.

In arguing that tho repeal of habeas jurisdiction in

the Military Commissions Act is unconstitutional,

Petitioners propose an excessively broad view of the

Suspension Clause. Adoption of these arguments would

hinder the executive and legislative branches in their

efforts to combat both terrorism and ordinary crime to

a much greater degree than the Constitution actually

requires. Such restrictions would be contrary to the

interest CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

Petitioners are aliens detained at the Naval Base in

Guantanamo Bay, Cuba. See Brief for Respondents in

Opposition 2. The Guantanamo detainees include

persons captured in war in Afghanistan and persons

taken into custody in other countries. See Jn re

Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 446

(DC 2005); see also Khalid v. Bush, 355 F. Supp. 2d

311, 316 (DC 2005) (petitioners captured in Bosnia or

Pakistan, no connection with U. S. except as detainees);

see also Brief for Petitioners Al Odah, et al. 2 (Al Odah

Brief) (petitioning for the Al Odah detainees, four

petitioners from Kuwait, and the Abdah detainees,

seven petitioners from Yemen).

Each petitioner has been judged to be an “enemy

combatant in the ongoing armed conflict against the al

Qaeda terrorist organization and its supporters” by a

Combatant Status Review Tribunal (CSRT). See Brief

for Respondents in Opposition 2. Congress has pro-

vided for review of that determination in the United

States Court of Appeals for the District of Columbia.

Ibid. Furthermore, Congress has provided that the

D. C. Circuit may hear challenges to the scope of review

provided by the Detainee Treatment Act of 2005,

Pub. L. No. 109-148, Title X, 119 Stat. 2680, 2739-2744

(2005) (DTA). See DTA § 1005(e)(2), (3), amended by

Military Commissions Act of 2006, §9, Pub. L. No. 109-

366, 120 Stat. 2600 (MCA).

Instead, petitioners have challenged the constitu-

tionality of their CSRT review through habeas peti-

tions. Specifically they challenge the constitutionality

of the DTA and the MCA. See Boumediene Brief 7-8;

see also Al Odah Brief 9-10; see also Brief for Petition-

ers E]-Banna, et al. 11-12 (El-Banna Brief).

Petitioners have filed petitions for writs of habeas

corpus alleging violations of the Constitution, treaties,

and the common law. See Boumediene v. Bush, 476

F. 3d 981, 984 (CADC 2007). The present case is the

result of appeals consolidated after the decisions of the

District Court of the District of Columbia. See ibid.

In the “Al Odah” cases, Judge Green denied the

government’s motion to dismiss with respect to the

claims arising from alleged violations of the Fifth

Amendment’s Due Process Clause and the Third

Geneva Convention, but dismissed all other claims. See

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

481. Judge Green then certified the order for interlocu-

tory appeal under 28 U.S. C. § 1292(b), and the govern-

ment appealed. Boumediene, 476 F. 3d, at 984. The

detainees cross-appealed. Ibid. In the “Boumediene”

cases, Judge Leon dismissed the cases in their entirety,

stating that nonresidents’ rights were “subject to both

the military review process already in place and laws

Congress had passed defining the appropriate scope of

military conduct towards these detainees.” Khalid, 355

F. Supp. 2d, at 330.

While the appeals were pending, Congress enacted

the MCA. Section 7(a) of the MCA replaced subdivision

(e) of § 2241:

“(e)(1) No court, justice, or judge shall have

jurisdiction to hear or consider an application for a

writ of habeas corpus filed by or on behalf of an

alien detained by the United States who has been

determined by the United States to have been

properly detained as an enemy combatant or is

awaiting such determination.

“(2) Except as provided in paragraphs (2) and (3)

of section 1005(e) of the Detainee Treatment Act of

2005 (10 U.S.C. 801 note), no court, justice, or judge

shall have jurisdiction to hear or consider any other

action against the United States or its agents relat-

ing to any aspect of the detention, transfer, treat-

ment, trial, or conditions of confinement of an alien

who is or was detained by the United States and has

been determined by the United States to have been

properly detained as an enemy combatant or is

awaiting such determination.”

Section 7(b) of the MCA expressly made the change

applicable to pending cases.

In February 2007, the Court of Appeals for the

District of Columbia Circuit decided the consolidated

appeals. The Court of Appeals dismissed petitioner’s

pending habeas actions for lack of jurisdiction, Boume-

diene, 476 F. 3d, at 994, holding that the MCA“strips

jurisdiction over detainee cases,” including pending

habeas cases. Id., at 988. The Court of Appeals also

rejected the constitutional attack on the MCA. IZd., at

991-992. The Court of Appeals reasoned that because

“ ‘(njothing in the text of the Constitution extends’ ” to

alien enemies who have never been in United States

territory, the Suspension Clause does not grant peti-

tioners such a right. Jd., at 990-992 (quoting Johnson

v. Eisentrager, 339 U. S. 763 (1950)). Judge Rogers

dissented.

This Court initially denied petitioners’ petition for

certiorari. Boumediene v. Bush, 1278. Ct. 1478 (2907).

In June 2007, this Court granted rehearing and granted

the petition. Boumediene v. Bush, 127 S. Ct. 3078

(2007).

SUMMARY OF ARGUMENT

The “privilege of the writ of habeas corpus” pro-

tected by the Suspension Clause is limited to people

who are part of the population of the United States, as

that term is used in The Japanese Immigrant Case.

That term is broader than just citizens; it includes

resident aliens and even visitors. However, it is not so

broad as to include persons who had never entered the

United States or any area under its control prior to

being brought in as military prisoners.

None of the historical cases cited by petitioners or

supporting amici extended the writ to anyone in peti-

tioners’ status. Schiever’s Case expressly denied habeas

review on the ground that the petitioner was “the

King’s prisoner of war ....” Recent historical research,

relied on by amici Legal Historians, undercuts rather

than supports their position.

Unlike the Court’s prior detainee cases, this case

involves an unambiguous repeal of habeas jurisdiction

by Congress, expressly applicable to this case. Petition-

ers are therefore asking the judicial branch to overrule

a joint decision of both of the political branches on a

question of foreign and military policy. The judiciary is

not the proper forum for such issues. The detainees’

remedies are those Congress has provided plus the

diplomatic efforts of their home countries.

ARGUMENT

I. The constitutional “privilege of the writ of

habeas corpus” does not extend to an alien

captured abroad by the military as an enemy,

with no other connection to the United States,

regardless of the location of detention.

Article I, § 9, cl. 2, of the Constitution provides, “The

Privilege of the Writ of Habeas Corpus shall not be

suspended, unless when in Cases of Rebellion or Inva-

sion the public Safety may require it.” Petitioners

argue that the Suspension Clause limits Congress’s

ability to suspend their privilege to habeas corpus. This

argument depends on the premise that petitioners are

holders of the “privilege” referred to in the Suspension

Clause. They are not.

A. Rasul and Place of Detention.

“It is the holdings of our cases, rather than their

dicta, that we must attend ....” Kokkonen v. Guard-

ian Life Ins. Co., 511 U. S. 375, 379 (1994). The ques-

tion presented in Rasul v. Bush, 542 U. S. 466, 475

(2004), and hence the holding of the case, concerned the

scope of the habeas statute as it then read. The statute

at that time made no distinction between citizens and

aliens. See id., at 481. The discussion of the rights of

aliens to habeas review at common law, see id., at 481-

482, n. 11, is dictum.

As subsequently amended, 28 U. S. C. §2241 now

distinguishes between aliens detained as enemy com-

batants and other persons. See §2241(e). Unlike the

previous, short-lived amendments of Public Law 109-

148, § 1005(e)(1), 119 Stat. 2742, and Public Law 109-

163, §1405(e)(1), 119 Stat. 3477, the current habeas

statute does not distinguish cases according to the place

of detention. The question of whether the amended

habeas statute violates the Suspension Clause should

therefore begin with the distinction drawn by Congress

based on the status of the alien, not the distinction

based on the location of detention that is the primary

basis of the Court of Appeals’ opinion.

Discussions of the history of the writ often conflate

issues of territorial reach with issues of the petitioner’s

status. See, e.g., Boumediene Brief 11-15. It is impor-

tant to keep the issues distinct. Cases such as King v.

Cowle, 97 Eng. Rep. 587 (K. B. 1759), are relevant only

to the territorial question. Whether the writ of habeas

corpus could issue to various places that had come into

the British Empire by various means, see Boumediene

Brief 14, is a separate question from who was entitled

to the “privilege” at common law.

The privilege of habeas corpus was meant only to

protect those who were “part of [the] population.” The

Japanese Immigrant Case, 189 U. S. 86, 191 (1903).

Aliens detained as enemy combatants, arrested overseas

and detained by the military on a military base, have

never become part of the population. They would not

be part of the population regardless of whether they

were detained in Guantanamo Bay, South Carolina, or

Afghanistan. In Hamdi v. Rumsfeld, 542 U.S. 507, 524

(2004), concerning the review available to a citizen

detainee, the plurality said, “It is not at all clear why

[place of detention] should make a determinative

constitutional difference.” There is also no good reason

why it should make such a difference in the case of

aliens who are not part of the population.

B. Part of the Population.

The fact that the United States has generously

extended constitutional protection to aliens living

within the country, to visitors, and even to those who

enter illegally, does not support a conclusion that we

must extend the full panoply of constitutional rights to

every alien who happens to be on territory in the

control of our government. The gove~ xment’s ability to

grant or deny a right depends on whom that right was

placed in the Constitution to protect. See Johnson v.

Eisentrager, 339 U. S. 763, 770-771 (1950). History

shows that the purpose of the Suspension Clause was to

protect the people of the United States.

Eisentrager, supra, at 777-778, rejected a claim of a

constitutional right to habeas corpus by enemy aliens.

While the Eisentrager decision emphasized the fact that

the enemy aliens were outside the United States, it did

not address the territorial application of habeas corpus

alone. The Court also noted, “The alien, to whom the

United States has been traditionally hospitable, has

been accorded a generous and ascending scale of rights

as he increases his identity with our society.” Id., at

770. The question is where the petitioners are on that

scale and where one must be to hold the privilege of the

writ of habeas corpus.

In The Japanese Immigrant Case, the petitioner was

“an alien, who has entered the country, and has become

subject in all respects to its jurisdiction, and a part of its

population, although alleged to be illegally here... .”

189 U.S., at 101 (emphasis added). Thus, although Ms.

Yamataya, the alien subject to deportation in The

Japanese Immigrant Case, had been in the United

States for less than two weeks, id., at 87, she was

entitled to basic due process. See id., at 101. Aliens

outside the population are not entitled to basic due

process. Such aliens are only afforded the process

Congress has provided to them. See Shaughnessy v.

United States ex rel. Mezei, 345 U.S. 206, 212 (1953).

Thus, a would-be immigrant “on the threshold of initial

entry stands on a different footing” even when he was

within the territorial boundaries of the United States

(Ellis Island) and deprived of his liberty by agents of the

federal government. See id., at 213.”

Petitioners argue that they have a constitutional

right to habeas corpus as it existed in 1789. They base

their claim on this Court’s ruling in INS v. St. Cyr, 533

U. S. 289, 301 (2001). St. Cyr indicates that “at the

absolute minimum, the Suspension Clause protects the

writ ‘as it existed in 1789.’ ”* However, this right exists

only for those who were “part of its population,” The

Japanese Immigrant Case, 189 U.S., at 101, and who

were detained under federal law. See Felker v. Turpin,

518 U. S. 651, 663 (1996) (establishing that the first

Congress only extended habeas to those held “under the

authority of the United States”). English decisions

from the time of the Founding and earlier, as well as

early American decisions, clarify the limits of constitu-

tional protection. At best, habeas corpus “ ‘as it existed

2. The Government did not contest that he could challenge his

detention by habeas corpus. See ibid. Like the petitioners in

Rasul v. Bush, 542 U.S. 466, 483-484 (2004), he was within the

terms of the habeas statute, and the Suspension Clause was not

at issue.

3. The need for the hedge phrase “at the absolute minimum” is

unclear. The entire legitimate basis of judicial review of

statutes is to protect the people’s sovereign right to make the

principles they put into the Constitution permanent until they

choose to change them by amendment. See Marbury v.

Madison, 1 Cranch (5 U. S.) 137, 176 (1803). An alteration of

the scope of a constitutional provision by the judiciary would be

every bit as much a violation of the people’s “original and

supreme will,” ibid., as would an alteration by the legislature.

10

in 1789’ ” extended to territories and not to aliens who

were not a “part of its population.”

In St. Cyr, this Court upheld the authority of federal

courts to grant a writ of habeas corpus to an alien who

had been “admitted to the United States as a lawful

permanent resident in 1986.” 533 U.S., at 293 (empha-

sis added). The Court granted St. Cyr’s petition to

review the legal question of whether discretionary

deportation relief under Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (IIRIRA) and

the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA) could apply to an alien who had pled

guilty to a deportable crime before either ITRIRA or the

AEDPA had been enacted. Jd., at 292-293. While this

Court recognized that the case had the potential to

raise the question “of what the Suspension Clause

protects,” this Court declined to address the constitu-

tional issue. Jd., at 301, n.13. To inform its statutory

interpretation, the Court examined the historical

exercise of habeas jurisdiction in England and the

United States. See id., at 301. In its analysis, this

Court found that “[{iJn England prior to 1789, in the

Colonies and in this Nation during the formative years

of our Government, the writ of habeas corpus was

available to nonenemy aliens as well as to citizens.”

Ibid. (emphasis added).

St. Cyr relied on a number of cases to support this

conclusion. See 533 U.S., at 302, n.16 (citing Sommer-

sett v. Stewart, 20 How. St. Tr. 1, 79-82 (K. B. 1772);

Case of the Hottentot Venus, 13 East 195, 104 Eng. Rep.

344 (K. B. 1810); King v. Schiever, 2 Burr. 765, 97

Eng. Rep. 551 (K. B. 1759); United States v. V:llato, 28

F. Cas. 377 (No. 16,622) (CC Pa. 1797); Commonwealth

v. Holloway, 1 Serg. & Rawle 392 (Pa. 1815); Ex parte

D’Olivera, 7 F. Cas. 853 (No. 3,967) (CC Mass. 1813)).

Rasul, 542 U. S., at 481, n. 11, cited largely the same

11

cases to support the proposition that the writ extended

to “claims of aliens detained within the sovereign

territory of realm,” omitting the word “nonenemy.” On

closer examination, each case falls into one of three

classifications. The first type extends habeas relief to

a person who is a part of the population, even if not a

citizen. The second type denies relief without distin-

guishing the merits from jurisdiction. The third type

supports the argument that aliens captured as enemies

by the military and otherwise unconnected with the

country are not eligible for habeas relief.

Sommersett v. Stewart, 98 Eng. Rep. 499 (K. B.

1772), is a case of the first kind. Sommersett was a

slave purchased in Africa and taken to Virginia, where

slavery was legal. His owner, Stewart, brought him to

England, where his advocates argued it was not. See

id., at 499. Although not originally from Britain or any

of its possessions, he had been brought into the British

Empire legally and permanently. He could be consid-

ered a “part of its population.” The court heard his

case on the merits without objection and granted relief.

See id., at 510.

The Case of the Hottentot Venus, 104 Eng. Rep. 344

(K. B. 1810) is similar.* Saartje Baartman, a native of

South Africa and member of the Hottentot nation, was

said to be “remarkable for the formation of her person”

and was being exhibited to curious Londoners “under

the name of the Hottentot Venus.” Id., at 344. Third

parties, doubtless appalled by this spectacle, alleged

“that she had been clandestinely inveigled from the

Cape of Good Hope, without the knowledge of the

British Governor, (who extends his peculiar protection

4. This case postdates the Suspension Clause, but it is close

enough to have some relevance to the understanding of habeas

corpus in 1789.

12

in nature of a guardian over the Hottentut nation under

his government ...)....” Ibid. (emphasis added).

Although Ms. Baartman may not have been considered

a British subject in the strict sense of the word, neither

was she a stranger to the British Empire. The court

evidently regarded her as a resident of a British protec-

torate and a person within the protection of the Crown.

On motion of the Attorney General, the court appointed

investigators to determine if she was a willing partici-

pant and dismissed the proceedings upon determining

that she was. See id., at 344-345.

Rasul, 542 U. S., at 481, n. 11, cites three early

American cases as examples of habeas petitions by

aliens:

“United States v. Villato, 2 Dall. 370 (CC Pa. 1797)

(granting habeas relief to Spanish-born prisoner

charged with treason on the ground that he had

never become a citizen of the United States); Ex

parte D’Olivera, 7 F. Cas. 853 (No. 3,967) (CC Mass.

1813) (Story, J., on circuit) (ordering the release of

Portuguese sailors arrested for deserting their ship);

Wilson v. Izard, 30 F. Cas. 131 (No. 17,810) (CC NY

1815) (Livingston, J., on circuit) (reviewing the

habeas petition of enlistees who claimed that they

were entitled to discharge because of their status as

enemy aliens).”

While these cases do support the limited proposition for

which Rasul cites them, none involves a captured

enemy held by the military. Villato and D’Olivera are

both routine uses of habeas corpus for pretrial review in

cases of defendants held for trial in civilian courts. In

both Villato and Wilson, and arguably in al! three, the

petitioners were part of the population of the United

States within the broad meaning of The Japanese

Immigrant Case.

13

Another case of this type is Lockington’s Case,

Brightly 269, 5 Am. L. J. 92 (1813). The petitioner was

a resident alien who had come to reside in the United

States before the war began. See 5 Am L. J., at 92. The

chief justice expressly distinguished the situation of

such a resident alien from a prisoner of war “brought

among us by force; and his interests were never, in any

manner, blended with those of the people of this coun-

try.” Far from supporting a right to habeas for the

petitioners in the present case, who were “brought

among us by force,” Lockington’s Case refutes any such

right.

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

775 (C. PF. 1779) is a case of the second type. The three

sailors were undisputedly captured as enemy aliens and

prisoners of war in the first instance, but they claimed

they had ceased to be such by their voluntary service on

an English merchant vessel. See id., at 775. The

holding was that on their own showing they were

enemy aliens and prisoners of war and as such the

courts “can give them no redress.” Id., at 776. The

court went on to say that if their allegations were true

“it is probable they may find some relief from the Board

of Admiralty.” Ibid.

Even in the modern era, the line between jurisdic-

tion and merits is sometimes obscure. See Steel Co. v.

Citizens for Better Environment, 523 U. S. 83, 112-113

(1998) (Stevens, J., concurring in the judgment). It

may be clear that a party is not entitled to relief with-

out being clear whether the reason is jurisdictional or

substantive. To conclude on the basis of this sketchy

report that the court actually grappled with and decided

a subtle distinction is quite a stretch. The court simply

decided on the pleadings that the petitioners could get

no relief from the judiciary and had to ask the execu-

tive.

14

Judge Rogers’ dissent in the Court of Appeals cites

King v. Schiever, 97 Eng. Rep. 551 (K. B. 1759), to

illustrate that the writ at common law would have

extended to aliens under the control of the Crown.

Boumediene v. Bush, 476 F. 3d 981, 1001 (CADC 2007).

Schiever was a Swedish subject who claimed he had

been forced into service on a French privateer before

the privateer was captured by the English. See 97

Eng. Rep., at 551. He then became England’s prisoner

of war. In her dissent, Judge Rogers used Schiever to

infer that courts would extend the writ to enemy aliens.

“The habeas court ultimately determined, on the basis

of Schiever’s testimony that he was properly character-

ized [as a prisoner of war] and thus lawfully detained.”

476 F. 3d, at 1001 (citing Schiever, 97 Eng. Rep., at 551-

552). The report cited by Judge Rogers states, “the

Court thought this man, upon his own showing, clearly

a prisoner of war, and lawfully detained as such.

Therefore they 11 Denied the motion.” Jbid. Schiever’s

“own showing” was the affidavit he produced to support

his petition for a writ of habeas corpus. /d., at 551. In

this report, Scheiver appears to be a case of the second

type, denying relief without distinguishing merits from

jurisdiction.

In another report of the same case, Schiever’s Case,

96 Eng. Rep. 1249 (K. B. 1759), there is a more ex-

tended report of the holding. From this report, it

appears that Schiever is a case of the third type, refut-

ing petitione-s’ argument.

“He is the King’s prisoner of war, and we have

nothing to do in that case, nor can we grant an

habeas corpus to remove prisoners of war. His being

a native of a nation not at war does not alter the

case, for by that rule many French prisoners might

be set at liberty, as they have regiments of many

15

other kingdoms in their service, as Germans, Ital-

ians, &c.

“But, if the case be as this man represents it, he will

be discharged upon application to a Secretary of

State.” Id., at 1249.

In other words, the court did not adjudicate whether his

detention as a prisoner of war was proper and expressed

an opinion that it was not if his allegations were true,

yet the court washed its hands of the case anyway.

Indeed, the reluctance of the courts to interfere with

the custody of military prisoners was so great that even

the writ of habeas corpus ad testificandum would not

issue to bring the prisoner into court to testify, defer-

ring to the executive as to whether the prisoner would

be produced. See Furly v. Newnham, 99 Eng. Rep. 269

(K. B. 1780). In short, no reported case from the

Founding era or earlier supports the proposition that

military prisoners with no prior connection with the

kingdom were entitled to habeas review, and some cases

refute that claim.

II. Recent historical research refutes

rather than supports petitioners’ claims to a

constitutional right to habeas review.

Amici Legal Historians cite a forthcoming article,

Halliday and White, the Suspension Clause: English

Text, Imperial Context, and American Implications.

This article is available at the Social Science Research

Network, http://papers.ssrn.com/sol3/papers.cfm?

abstract_id= 1008252. Professor Halliday has informed

amicus CJLF that the paper will be published in next

May’s Virginia Law Review. The research in this article

of unpublished manuscripts in habeas cases is indeed

important, but it does not support the proposition that

16

persons in the status of the petitioners are constitution-

ally entitled to habeas.

The :nain theme of the Halliday and White article is

that the writ of habeas corpus was a part of the rela-

tionship between the king and his subjects. “As we

shall see, this prerogative power, whether running

through the writ of habeas corpus or through the king’s

suspension of law [e.g., by pardon], was invariably

connected to his obligation to protect and further the

good of his subjects.” Halliday & White, supra, at 25.

Subjects, for this purpose, encompassed a broader

class of persons than those born in England or natural-

ized. The term also included “local subjects.” Id., at 26

(quoting M. Hale, The Prerogatives of the King 54

(D. Yale ed. 1976)). This category included foreigners

present in the kingdom as residents or visitors, even if

they were “enemies” in the sense of being subjects of a

country at war with England. /d., at 26-27. Such aliens

owed a duty of allegiance and were entitled to the king’s

protection while in the kingdom.

This is the basis for the assertion that habeas corpus

was routinely available to aliens, even “enemies,”

usually without even raising the issue of their alienage.

Halliday and White quote Hale for the proposition, “ ‘If

any alien enemy reside or come into the kingdom, and

not in open hostility, he owes an allegiance to the king

[by reason of place].’ ” Jd., at 27 (emphasis added).

They note the case of DuCastro (or DuCastre), who was

accused of being a spy. /d., at 27, n. 72. Amici Legal

Historians rely on DuCastro for the proposition that

status as a foreigner does not disentitle an alleged

enemy from habeas relief. See Legal Historians Brief 6.

However, DuCastro appears to be distinguishable from

the present case. From the manuscripts relied on by

the Legal Historians, it appears that a warrant was

issued for DuCastro’s arrest, implying he was already in

17

the country. Unlike Schiever, see supra, at 14, and

unlike petitioners in the present case, DuCastro was

apparently not captured abroad and brought in as a

military prisoner.

Halliday and White also note cases of foreign sailors

impressed into service in the navy. See Halliday &

White, supra, at 27, n. 73. Like the cases previously

discussed, a sailor on a British-flag ship was a resident

of a place under British control, and he was a part of

the population for this purpose.

Because the writ of habeas corpus was an aspect of

the relation of king to subject, it followed British

subjects to any place in the world where the power of

the crown reached. This included places where English

property law and most common law writs did not reach.

See id., at 51-52. By the time of the American Revolu-

tion, habeas corpus was a “critical marker of subject-

hood,” and its removal was considered a violation of the

Americans’ rights. See id., at 52. When Parliament

suspended the writ in America but not in England, Sir

Edmund Burke denounced the discrimination between

two classes of subjects in a pamphlet widely distributed

in America. See id., at 65-67.

Near the end of the article, Halliday and White

criticize a statement in the Court of Appeals’ opinion in

the present case that in 1789 “ ‘habeas corpus would

not have been available to aliens without presence or

property within the United States.’ ” Jd., at 116

(quoting Boumediene, 476 F. 3d, at 990). Yet that

statement is fully consistent with the theme of the

article that the historical purpose of the writ was to

question the custody of “subjects,” as broadly defined to

include aliens permanently or temporarily residing in

areas under British control. The Court of Appeals’

statement is not inconsistent with any case Halliday

and White cite to support their thesis. An alien cap-

18

tured by the military in a foreign land whose only

presence in British-controlled lands was as a military

prisoner was not a “subject” even in the broadest

possible sense of the word.

The latest historical research thus brings us back to

where we started with The Japanese Immigrant Case.

The “part of its population” criterion of that case is

substantially equivalent to the broadly defined “sub-

jects” of Halliday and White’s historical analysis.

Schiever’s Case, see supra, at 14, remains the closest

analogy to the present case. Persons who are not part

of the population are not holders of the historical

constitutional “privilege of the writ of habeas corpus,”

and Congress is well within its authority to repeal

habeas jurisdiction as to such persons,

III. Where the executive and legislative

branches have jointly decided a question of

foreign and military policy, the judiciary

should not interfere.

The present case comes to the Court in a very

different posture regarding separation of powers than

the previous cases. In Rasul v. Bush, 542 U.S. 466

(2004), and Hamdan v. Rumsfeld, 548 U.S. __, 126

S. Ct. 2749 (2006), there was room for doubt on inter-

pretation of the pertinent Acts of Congress. In the

present case, there is no doubt. The statutory language

is as clear as words can be that Congress repealed

habeas jurisdiction for these petitioners and that the

repeal applies to pending cases. The Court of Appeals

aptly characterized the argument to the contrary as

“nonsense.” Boumediene v. Bush, 476 F. 3d 981, 987

(CADC 2007).

In the previous cases, this Court determined that

executive decisions regarding the conduct of the war on

19

terror were contrary to the law enacted by Congress. In

this case, petitioners ask the Court to overrule a joint

decision of the executive and legislative branches. That

is a far different matter. Whatever the relative roles of

the executive and legislative branches in foreign policy

may be, the role of the judiciary is minimal. See Oetjen

v. Central Leather Co., 246 U.S. 297, 302 (1918). This

primacy of the political branches extends to the treat-

ment of aliens. See Mathews v. Diaz, 426 U. S. 67, 81

(1976).

Certainly questions can be raised about the wisdom

of current policies. The proper balance between secu-

rity needs and America’s relations with other countries

and reputation in the world is debatable. See Al Odah

Brief 2. But a court of law is not the forum for that

debate. We are in a new kind of war, with a new kind

of danger and a new kind of enemy. The proper re-

sponse and the correct balance are political decisions for

the political branches to make.

Where the statute is clear, the only justiciable

question is whether it violates a permanent principle

that the people have placed in the Constitution. See

Marbury v. Madison, 1 Cranch (5 U. S.) 137, 176-177

(1803). Petitioners in this case are not holders of the

“privilege of the writ of habeas corpus,” U.S. Const.,

Art. I, §9, cl. 2, as thet privilege was understood by the

people when they ratified that limit on congressional

authority. The statute is not unconstitutional as

applied to them. Their remedies are the reviews

provided in the statutes and the diplomatic efforts of

their home countries.

20

CONCLUSION

The decision of the Court of Appeals for the District

of Columbia Circuit should be affirmed.

October, 2007

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation