Amicus Curiae Brief — Boumediene v. Bush

FILED

IN THE AUG D4

Supreme Court of the United Statep a 2007

ICE OF THE CLERK

SUPSE

LAKHDAR BOUMEDIENE, ET AL., Petitioners, = COURT, U.S._

Vv

GEORGE W. BUSH, ET AL., Respondents.

KHALED A.F. AL ODAH, ET AL., Petitioners,

v.

UNITED STATES OF AMERICA, ET AL., Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the District of Columbia

BRIEF AMICUS CURIAE OF THE FEDERAL

PUBLIC DEFENDER FOR THE SOUTHERN

DISTRICT OF FLORIDA

IN SUPPORT OF

PETITIONERS

Kathleen M. Williams

Federal Public Defender

PAUL M. RASHKIND

Supervisory Assistant

Federal Public Defender

TIMOTHY CONF

Assistant Federal Public Detender

Counsel of record

150 West Flagler Street

Suite 1500

Miami, FL 33130

(305) 536-6900

Counsel for Amicus Curiae

TABLE OF CONTENTS

Re SEED oh bee sscesevdcvceescs ii

STATEMENT OF AMICUS CURIAE ............ ]

SUMMARY OF ARGUMENT .................. ]

PE 62h. Sneak bas ned ted eee ows eee oun 4

I, A Complete Suspension Clause Analysis

Focuses On More Than “Absolute

gat TTT Te TT Te 5

A. The Suspension Clause Protects More than

the Writ “Known to the Framers”: It

Encompasses The Historical Core of the

Writ’s Evolution Since 1789. .............. 8

B. Petitioners Invoke Habeas Principles At

Their Historical Core, and the Suspension

Clause Therefore Protects the Federal

Courts’ Jurisdiction to Hear Their Claims. ... 14

C. The “Ratcheting Up” Critique Of

Suspension Clause Protection Is Misplaced

Il. ST ci wdc vcdesvicseeresteuen 25

ll

TABLE OF AUTHORITIES

CASES:

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

cert. granted, 127 S. Ct. 3078 (2007)........... 5

Burns v. Wilson, 346 U.S. 137 (1953) ............ 13

Chin Yow v. United States, 208 U.S. 8 (1908)...... 10

Collins v. Loisel, 262 U.S. 426 (1923)............ 10

Commonwealth ex. rel. Stevens v. Myers, 419 Pa. 1, 213

DR re TEED 66 hne bees eicncecarnes’s 8

Daniels v. Alien, 344 U.S. 443 (1953) ..........4-. 9

Demore v. Kim, 538 U.S. 510 (2003) .... 6, 10, 12,22

Dodd v. United States, 545 U.S. 523 (2005) ........ l

Ekiu v. United States, 142 U.S. 651 (1892) ........ 10

Ex Parte Bollman, 4 Cranch 75 (1807) ........... 15

Ex Parte Endo, 323 U.S. 283 (1944) ............. 13

Ex Part’ Lange, 85 U.S. 163 (1873) ............. 15

Ex Parte McCardle, 73 U.S. 318 (1867) .......... 16

Ex Parte Milligan, 4 Wall. 2 (1866) ............. 13

Ex Parte Quirin, 317 U.S. 1 (1942) .............. 13

Ex Parte Yerger, 75 U.S. 85 (1868)........... 12,22

Felker v. Turpin, 518 U.S. 651 (1996)..... 4-6, 18, 20

Gonzalez v. Florida, 545 U.S. 524 (2005) .......... l

Griswold v. Connecticut, 381 U.S. 479 (1965) . 24-25

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ......... 22

Heikkila v. Barber, 345 U.S. 229 (1953) .......... 1]

Hirota v. MacArthur, 338 U.S. 197 (1948) ........ 13

ILN.S. v. St. Cyr, 533 U.S. 289 (2001) ..... 4-5, 12,17

Be te Raine, 53 UB. HGS CIGSS) ooo icc ccccccsccas 10

In re Yamashita, 327 U.S. 1 (1946) .............. 13

Kwock Jan Fat v. United States, 253 U.S. 454 (1920) 10

Lindh v. Murphy, 96 F.3d 856 (7” Cir. 1996), rev'd

on other grounds, 521 U.S. 320 (1997) ........ 17

McCleskey v. Zant, 499 U.S. 467 (1991) ........... 6

iV

National Archives and Records Admin. v. Favish,

PUG as CB y Ge «dsb éievissuveieceeueds 1]

O'Dell v. Netherland, 521 U.S. 151 (1997) ....... 22

Panetti v. Quarterman, _U.S.__, 127 S. Ct. 2842

SBPWVPCRISETILE CT PTT re 21

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

Reed v. Farley, $12 U.S. 339 (1994) ..........05. 18

Rumsfeld v. Padilla, 542 U.S. 426 (2004) ......... 14

Stone v. Powell, 428 U.S. 465 (1976) ............ 16

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

Teague v. Lane, 489 U.S. 288 (1989) ............ 21

United States ex rel. Toth v. Quarles, 350 U.S. 11

COPED owe bcvnect 0 65:6608040seeenens eee 13

United States v. Youssef, 327 F.3d 56 (2d Cir. 2003) 17

Whorton v. Bockting, _U.S.__, 127 S.Ct. 1173 (2007221

Williams v. Taylor, 529 U.S. 362 (2000) ......... 21

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

EQUUS occ cccdscedcovnnentsetsneie ee 8

Vv

CONSTITUTION, STATUTES, AND RULES:

8 ee ee) eee 1-4,17

Act of September 24, 1789, c. 20, s. 14, 1

DE Sueteaecctpeectceceegecs 15, 19-20

Military Commissions Act of 2006, Section 7(a) .... 1

ED cc ana nengasaabecdecees svee 17

ee ck dw hn eth etn es cucns avones 20

i cow eae ehekgaeeeceeey edawhe l

TREATISES, LAW REVIEWS & PERIODICALS:

Michael Abell & Bruno A. Ristau, /nternational Legal

ETT TTT eT TTT Te 9

Marc M. Arkin, Rethinking the Constitutional Right to a

Criminal Appeal, 39 UCLA L. Rev. 503 (1992) . 19

Bruce Ackerman, The Emergency Constitution, 113

pd eden ees 6 yk sv ess bce ne ewe 8

Akhil Reed Amar, Of Sovereignty and Federalism,

EE cece cccctencetecess 11

Charles L. Black, Jr., Law As An Art in The Humane

ne «. choca ces ¢eatenccees 23

vi

William J. Brennan, Jr., Federal Habeas Corpus and

State Prisoners, 7 Utah L. Rev. 423 (1961) .. 15, 19

Lea Brilmayer & Charles Norchi, Federal

Extraterritoriality and Fifth Amendment Due

Process, 105 Harv. L.Rev. 1217 (1992)........ 17

Richard H. Fallon, Jr. & Daniel J. Meltzer, Habeas

Corpus Jurisdiction, Substantive Rights, and the War

on Terror, 120 Harv. L. Rev.2079 (2904) 7, 9, 15, 19

Muhammad Usman Faridi, Stream lining Habeas Corpus

While Undermining Judicial Review: How 28 U.S.C.

§ 2254(D)(1) Violates the Constitution, 19% St.

Thomas U. L. Rev. 361 (2006) ................ 7

Henry J. Friendly, /s Innocence Irrelevant? Collateral

Attack on Criminal Judgments, 38 U. Chi. L. Rev.

PEE oundesavesessdbeeke baeuebees 7,18

Jonathan L. Hafetz, Note, The Untold Story of

Noncriminal Habeas Corpus and the 1996

!mmigration Acts, |07 Yale L.J. 2509(1998) .. 10

Henry M. Hart, Jr., The Power of Congress to Limit

the Jurisdiction of Federal Courts: An Exercise in

Dialectic, 66 Harv. L. Rev. 1362 (1953) ........ 9

Randy Hertz & James S. Liebman, Federal Habeas

Corpus Practice and Procedure § 7.2d

PD oNeeehidceeetadactedendasd % 19

vil

James S. Liebman, Apocalypse Next Time? The

Anachronistic Attack on Habeas Corpus/Direct

Review Parity, 92 Colum. L. Rev. 1997 (1992).16, 19

Jane Mayer, Outsourcing Torture: The Secret History of

America’s “Extraordinary Rendition” Program,

The New Yorker, Feb. 14, 2005 .............. 14

Ira Mickenberg, Abusing the Exceptions and

Regulations Clause: Legislative Attempts to Divest

the Supreme Court of Appellate Jurisdiction, 32 Am.

x a SE Ee Sc oss cece eckdesetboaseas 20

Henry Paul Monaghan, Doing Originalism, 104 Colum.

i En: “ait sa Get ubdsuneene ius4e% 8

Gerald L. Neuman, Habeas Corpus, Executive

Detention, and the Removal of Aliens, 98 Colum. L.

Se CPE Gi obese ns tebcntodaneeesetive 19

Gerald L. Neuman, The Habeas Corpus Suspension

Clause After I.N.S. v. St. Cyr, 33 Colum. Hum. Rts.

TS 2 ES crane 9

Ann Powers, Justice Denied? The Adjudication of

Extradition Applications, 37 Tex. Int’ L. J.

PE 61044. ine bee 00h ans eeouwess asks 10

David L. Shapiro, Habeas Corpus, Suspension and

Detention: Another View, 82 Notre Dame

ey ee hep pare 9,15

Vili

Jordan Steiker, Incorporating the Suspension Clause: Is

There a Constitutional Right to Federal Habeas

Corpus for State Prisoners?, 92 Mich. L. Rev.

DEE Gdueu Usvese case Vau¥eukba ae eb 19

Stephen I. Vladeck, Deconstructing Hirota, 95 Geo. L.

i EY “aulnecdseds neh sutouevaceaees 14

l

STATEMENT OF AMICUS CURIAE’

This case addresses whether Congress’ limitation on

federal habeas corpus jurisdiction for “enemy combatant”

detainees at Guantanamo Bay violates the Suspension

Clause of the United States Constitution. The Federal

Public Defender for the Southern District of Florida has

represented many habeas petitioners by appointment of the

federal courts, including two petitioners recently before

this Court in Gonzalez v. Florida, 545 U.S. 524 (2005),

and Dodd v. United States, 545 U.S. 523 (2005). Amicus

has also represented detainees at Guantanamo Bay, one of

whom remains detained there.

This brief attempts to supplement with an alternative

analytical framework the arguments developed by the

parties regarding the scope of the Constitution’s protection

of the writ.

SUMMARY OF ARGUMENT

The D.C. Circuit resolved whether Section 7(a) of the

Military Commissions Act of 2006 violates the Suspension

Clause by focusing its analysis exclusively on habeas

protections as of 1789. In their briefs to this Court,

’ Pursuant to Rule 37.6, amicus curiae affirms that no counsel for

a party authored this brief in whole or in part and that no person

other tham amicus curiae and their counsel made a monetary

contribution to its preparation or submission. The parties’ letters

consenting to the filing of this brief have been lodged with the

Clerk.

—_— s

;*

2

Petitioners and other amici conclusively demonstrate that

the D.C. Circuit misapprehended the pre-1789 caselaw.

But the D.C. Circuit erred for a separate reason: its

exclusive focus on pre-1789 caselaw was incomplete,

because pre-1789 law only encompasses the writ’s

constitutional protection at its “absolute minimum.” The

evolving body of habeas principles after 1789 further

delineates the scope of the writ’s constitutional protection,

and further confirms that federal habeas jurisdiction over

Petitioners’ claims is constitutionally protected.

The Suspension Clause does not merely protect the

writ “known to the Framers.” The Framers must have

been aware that the writ had evolved for centuries before,

and would not have conceived of a writ frozen at a

particular point in time, incapable of evolving to meet new

circumstances. Further, by providing for suspension of the

writ only in times of extreme crisis, e.g., “Rebellion,” or

“Invasion,” the Suspension Clause plainly implies that the

writ must not be suspended in unexceptional times, and

must, in fact, function in the creation of the “more perfect

Union” contemplated by the Constitution.

Suspension Clause protection extends to the historical

core of the writ, as ithas evolved since 1789. Because this

Court’s decision in Rasul v. Bush held that habeas

jurisdiction extends to persons identically-situated to

Petitioners, the Suspension Clause inquiry for the instant

case turns on a simple inquiry: does Rasul fall within the

compass of the writ’s evolving historical core? It does.

a

3

Rasul expressly grounded its reasoning in the historic

core purpose of habeas corpus. The opinion correctly

noted that, by challenging Executive detention, the

petitioners invoked habeas at its “historical core,” in a

context where habeas protections were at their “strongest.”

The detainees, moreover, challenged “military custody”;

Rasul correctly noted that the habeas remedy has long been

invoked to challenge restraints in the context of military

affairs. The Rasul petitioners were aliens; as Rasul noted,

the writ has been available to aliens from the early days of

the Republic. The Rasu/ petitioners were detained

overseas; again, Rasul correctly observed that the writ has

long reached beyond this Nation’s territorial boundaries.

Indeed, the claim that the territorial boundaries of the

United States might limit the writ’s application runs

counter to the very purpose of the Suspension Clause,

which is to achieve the full realization of the

Constitution’s guarantees of liberty — a goal that

countenances no artificial territorial limits.

Some have argued that the constitutional! protections

of the writ cannot extend beyond 1789 developments,

because no limiting principle would prevent the

protections from “ratcheting up” automatically, and

without limits, each time Congress amended the writ to

apply in new circumstances. But the writ as it was first

written by Congress in 1789 was extremely flexible, and

susceptible to use in a wide variety of contexts. It is this

original writ that is at stake today.

In fact, because the writ’s evolution since 1789 has

largely resulted not from Congress’ amendment of laws,

conflict is neither a punishment nor an act of vengeance, but rather

a simple war measure.”) (citations omitted); id/. at 16 n.5 (“[ T]he

detention of enemy combatants has not historically been regarded

as a punishment and ts not designed to promote the traditional

aims of punishment.) (citations omitted).

While the President may seek this Court’s deference on

“simple war measures” related to “vital military objectives,” such

deference is not warranted for punishment. This Court, not the

military, has particular expertise when it comes to “promot[ing]

the traditional aims of punishment,” and this Court, not the

military, 1s entitled to deference on such matters.

Second, individuals tried by a military commission face the

most severe possible punishments of life imprisonment or death.

In contrast, individuals who are merely detained and who have not

been tried by a military commission must be released at the end of

the “particular conflict in which they were captured.” Hamdi, 542

U.S. at 518, 521 (plurality); see also In re Territo, 156 F.2d 142,

145 (9th Cir. 1946). Moreover, many persons detained as enemy

combatants at Guantanamo have been released and repatriated to

their own countries, even while the particular conflicts in which

they were allegedly captured are ongoing. Scc Press Release,

Department of Defense, Detainee Transfer Announced (June 19,

2007) (“Since 2002, approximately 405 detainees have departed

Guantanamo for other countries’), available at

http://www defenselink mil/releases/release aspx’ releaseid= 1 1030.

Because individuals who are tried by commissions face no such

prospect of freedom, they should have access to the Great Writ to

test those trials.

Third, a successful habeas challenge to commissions cannot

in any way endanger national security. After a successful

challenge to a commission trial, the petitioner remains a detainee

at Guantanamo. By contrast, the Government must release from

military custody a petitioner who brings a successful habeas

challenge to his detention. The Government cannot, and therefore

does not, cite a single national security rationale for denying

Hamdan the habeas right to challenge the jurisdiction of military

commissions. Thus, when faced with habeas challenges to

commissions, the Court need not balance interests as it must when

confronted with a challenge to detention. Compare Hamdi, 542

U.S. at 524 (plurality) (applying a due process balancing test for

detention) with Gosa v. Mayden, 413 U.S. 665, 689 n.5 (1973)

(Douglas, J., concurring) (noting that habeas has been historically

used to test the jurisdiction of tribunals to try defendants); and kay

v. Noia, 372 U.S. 391, 423 (1963) (“It is of the historical essence

of habeas corpus that it lies to test proceedings so fundamentally

lawless that imprisonment pursuant to them ts not merely

erroneous but void.”), overruled in part on other grounds by

Wainwright v. Sykes, 433 U.S. 72 (1977).

Fourth, the Bowmediene Petitioners have argued previously

that those facing commissions have a weaker case for habeas

review because the commissions at least offer some form of

process. See, c.g, Supp. Br. of Pet’rs Boumediene, et al., and

Khalid, Bouwmediene v. Bush, No. 05-5062, at 18 (D.C. Cir);

Guantanamo Detainees’ Supp. Br., A/ Odah v. United States, No.

05-5064, at 13. In reality, however, those facing commission

procedures are in a far worse position than those merely being

detained. If coavicted, they face the ultimate penalties of life

imprisonment or death. And even if acquitted by a commission,

the MCA does not require that they be released. Instead, an

acquitted commission defendant would simply be returred to

detention at Guantanamo and face the same fate as the

Boumediene Petitioners.

Il. The Writ of Habeas Corpus Must Be Available to

Challenge Military Commissions on a Pre-trial Basis

Amicus believes that all persons subject to detention at

Guantanamo have access to the Great Writ. This is especially so

for those facing novel and untested military commissions, which

have traditionally been at the core of habeas jurisprudence. In this

area of criminal enforcement and punishment, the Court's

institutional competence is at its zenith, and the harmful

consequences of the writ being granted (if any) are at their nadir.

Moreover, the military commissions purport to have the power to

sentence individuals to death. In this situation, where those

seeking habeas are threatened with the Government's ultimate

sanction, habeas review ts all the more necessary

A. The Great Writ Has Historically Been Available to

Challenge the Jurisdiction and Constitutionality of

Military Tribunals

This Court has repeatedly held that the legality of military

commissions may be tested in federal court through the writ of

habeas corpus. For example, in /:x parte Milligan, 7\ U.S. (4

Wall ) 2, 118 (1866), this Court exercised jurisdiction over

Milligan’s habeas petition to answer the question of whether the

military tribunal in that case had “the legal power and authority to

try and punish” the defendant. That this Court found the military

commission to be unlawful in Milligan is less important for

present purposes than the fact that it clearly understood the writ of

habeas corpus to be available to challenge military trials.

The same has been true in the case of American servicemen,

where this Court has long held that the lawfulness of tnbunals can

be challenged on habeas. See U/nited States v. Grimley, 137 US.

147, 150 (1890) (“It cannot be doubted that the civil courts may in

any case inquire into the jurisdiction of a court-martial, and. . .

may discharge [the defendant] from the sentence.”). Habeas is

permissible to examine whether the tribunal: (1) is legally

constituted: (2) has personal jurisdiction over the accused; and (3)

has subject-matter jurisdiction to hear the offense charged. Hiau v.

Brown, 339 U.S. 103, [11 (1950); see also Gusik v. Schilder, 340

U.S. 128 (1950) (recognizing the availability of habeas to

challenge the jurisdiction of a court-martial ).

In the case of alleged alien enemies, the Court has likewise

allowed military commission defendants to test the legality of the

process through habeas corpus. l:x parte Ouirin, 317 U.S. 1, 25

(1942), held that “neither the Proclamation nor the fact that [the

defendants] are enemy aliens forecloses consideration by the

courts of petitioners’ contentions that the Constitution and laws of

the United States... forbid their trial by military commission.”

The Court declined to hold that enemy aliens lack the ability to

file habeas petitions, even though Attorney General Biddle opened

his argument with that claim. /d¢ at || (reprinting argument).

Indeed. Ouirin offered the saboteurs the same habeas rights that

were extended in Grimley. See id at 48 (concluding that “the

Commission was lawfully constituted” and that “Charge |

-10-

alleged an offense which the President 1s authorized to order tned

by military commission”).

Similarly, in /n re Yamashita, 327 U.S. | (1946), the Court

permitted a convicted enemy belligerent, a Japanese Army

General, to file a habeas petition. The Court recognized the role of

the federal courts under habeas corpus to consider “the lawful

power of the commission to try the petitioner for the offense

charged.” /d. at 8. Specifically, the Court found that, absent

suspension of the writ, the federal courts possessed “the duty and

power to make such inquiry into the authority of the commission

as may be made by habeas corpus.” Id. at 9.

Hamdan is in much the same position as General Yamashita

and the Ouirin defendants during the Second World War. He has

been designated as an “enemy combatant” but contends that the

Constitution, laws, and treaties “withhold authority to proceed

with the trial.” /cd. at 9. And just as in Milligan, Grimley, Quirin,

and Yamashita, the wrt of habeas corpus is the appropriate

vehicle by which to test that authority.

B. Johnson v. Eisentrager Does Not Preclude Habeas

Review of the Legality of Military Commissions

In Hamdan’s case, the district court incorrectly denied access

to the writ because it misread Johnson v. Lisentrager, 339 U.S.

763 (1950). In fact, as this Court has already held with respect to

the Geneva Conventions, /isentrager does not control this case.”

Hamdan, |26 §. Ct. at 2794.

1. This Court should reach the merits of

Hamdan’s habeas challenge, just as it did in

Fisentrager

Lisentrager does not stand for the proposition that courts are

closed to those in Hamdan’s position. On the contrary, the

Lisentrager petitioners received a full hearing before this Court,

with the Court carefully considering the substance of their claims

before resolving them on the merits. This Court recognized as

much in Hamdan, noting that in Lisentrager “[wle rejected

|petitioners: Geneva Convention] claim on the merits because the

petitioners [unlike Hamdan here] had failed to identify any

prejudicial disparity ‘between the Commission that tried [them]

and those that would try an offending soldier of the American

forces of like rank.”” 126 S. Ct. at 2793 (quoting Lisentrager, 339

US. at 790).

The /isentrager Court reached the merits of the habeas

challenge even though the Petitioners were nationals of an enemy

nation who conceded their status as enemy combatants. In

contrast, Hamdan and the Petitioners in the present case are

nationals of friendly countries, who vigorously contest their

designation as enemy combatants. See Rasul v. Bush, 542 U.S.

466, 476 (2004) (noting these two factors as effectively

distinguishing Guantanamo detainees from the /:isentrager

petitioners). Since the Court reached the merits on a challenge to

military commissions by conceded enemy combatants in

kisentrager, that case cannot stand for the proposition that the

federal courts cannot do the same in the easier case of alien

nationals of friendly nations who challenge their designation and

eligibility for tral by military commission.

While Lisenirager did discuss at length whether enemy aliens

were afforded access to American courts, it stated that “the doors

of our courts have not been summarily closed upon these

prisoners” and that it heard and considered “all contentions they

have seen fit to advance” before concluding that no basis for

issuing the writ appeared. 339 U.S. at 780, 781. Indeed.

Eisentrager engaged in precisely the same habeas inquiry into the

jurisdiction of ‘he military commission that the Court had

previously provided in QOuirin, Yamashita, and Duncan y.

Kahanamoku, 327 U.S. 304 (1946). Tha’ inquiry focused on “the

iawful power of the commission to try the petitioner for the

offense charged.” 339 U.S. at 787 (quoting Yamashita, 327 U S. at

8).

In reaching the merits of the habeas challenge. the

Lisentrager Court recognized that—as in Ouirin and Yamashita—

it had jurisdiction to consider whether the petitioners had been

charged with an offense cognizable as a war crime. 339 US. at

787 (concluding that the charges had “a basis in conventional and

long-established law’). That 1s not the case here: in fact, a

plurality of this Court determined that the previous “conspiracy”

ot.

charge was no/ a violation of the laws of war. Hamdan, 126 S. Ct.

at 2785-86. Reliance on /isenirager to deny habeas review 1s

misplaced where no court has had the opportunity to pass 01 that

fundamental jurisdictional question.

Moreover, /isentrager did not need to address the underlying

question of the legality of the World War II military commissions

because those questions had already been decided in Ouirin and

Yamashita. 339 U.S. at 786 (“[W]e have held in the Ouirin and

Yamashita cases ... that the Military Commission is a lawful

tribunal to adjudge enemy offenses against the laws of war.”). The

petitioners in -isentrager thus had no claim that the commission

itself was illegitimate. Here, the prior military commission

established to try Hamdan (which is identical in many material

respects to the commission he faces now) was deemed unlawful by

this Court only a year ago. Rasu/ observed that the Hisentrager

petitioners had “been afforded access to [a] tribunal,” a factor that

weighed against the extension of habeas in that case. Rasu/, 542

U.S. at 476. It is inconceivable to think that subjection to an

unprecedented and unlawful tribunal could satisfy this criterion.

2. The territorial limits of Eisentrager do not apply

here

The district court erroneously believed that Lisentrager

compelled dismissal of habeas petitions filed from prisoners held

outside the “sovereign realm” of the United States. But Hamdan’s

case falls squarely within the geographic scope of constitutional

habeas. which historically had an “‘extraordinary territorial

ambit.” Rasu/, 542 US. at 482 n.12 (quoting Robert J. Sharpe,

The Law of Habeas Corpus 188-89 (2d ed. 1989)). In the

eighteenth century, habeas was recognized to extend beyond the

Kingdom of England; it was “a writ of such a sovereign and

transcendent authority, that no privilege of person or place can

stand against it. It runs, at the common law, to ail dominions held

of the Crown. It 1s accommodated to all persons and places.”

Opinion on the Writ of Habeas Corpus, 97 Eng. Rep. 29, 36 (HLL.

1758). Indeed, Lord Mansfield stated there was “no doubt” the

writ could issue in any territory “under the subjection of the

Crown.” even if that territory was “no part of the realm.” Aing v.

-|3-

Cowle, 97 Eng. Rep. 587, 598 (K.B. 1759). The writ even

extended to India well before Britain’s 1813 assertion of

sovereignty.’ In short, habeas jurisdiction has always turned on de

facto control, not the formalistic notions of sovereignty adopted by

the circuit and district courts here for the first time.”

As this Court recognized in Rasu/ and Hamdan, isentrager

presented a unique factual situation, and its holding does not

govern here. The /‘isentrager petitioners were German nationals

convicted by a military commission in China. The commission

was established with the consent of the Chinese Government.°

Following their convictions, the petitioners were detained at

Landsberg Prison in occupied Germany, where the United States

shared jurisdiction over detentions with the other Allies.’ Based on

this relatively dense legal landscape, the Government claimed in

Lisentrager that “[t]he rights of these enemy aliens all flow from

and must be vindicated within the framework of the system

established for the occupation of their country.... They are

foreigners in a foreign land, held in that foreign land by the

sovereignty now governing it as a result of war, defeat, surrender,

and occupation... . [Their] legal status does not differ from that

' By 1775, judges began to issue common-law habeas writs to British subjects as

well as “natives” ig... N. Llussain. 7he Jurisprudence of Emergency:

Colonialism and the Rule of Law 81 (2003). B.N. Pandey. The Introduction of

Kneglish Law into India \3\ (1967).

* For instances in which the writ issued trom a court in England to locations

outside the realm but under the control of the Crown. see Aing v. Salmon, 84

Png. Rep. 282 (K.B. 1669) (writ issued to Channel Island of Jersev on behalf of

individual committed on suspicion of treason”). Aig v. Overton, 82 Lng. Rep

1173 (KB. 1668) (writ issued to Jersey ): Sir Matthew [lale. 7he /Tistory of the

(Common Law of Frgland 20 (1739) (writ issued to Channel Islands). see a/so

Bourn 's Case. 79 kng Rep. 465. 466 (KB. 1619) (writ issued to Calats). M

Bacon..1 New lAridgement of the Law. Vit. Habeas Corpus (3)47th ed. 1832)

(same).

* kisentrager. Index to Pleadings. Kx. 4—Message of 6 July. 1946 to Gen

Wedemeyer trom Joint Chiels of Stall, JA. 167.

See Basic Principles for Merger of the Three Western German Zones of

Occupation and Creation of an Allied High Commission, reprinted in

Documents on Germany, 1944-1970, Commun. on Foreign Relations. 92nd Cong.

(Conmn. Print 1971). at [S0-S1

-|4-

of Germans now detained in Germany by German authorities.

Like such prisoners, or like Englishmen in England, or Frenchmen

in France, they must look to the rights and remedies open to them

under their country’s present laws and government,” not the

American Constitution. U.S. Br., Johnson v. Kisentrager, 1950

WL 78514, at *65-67 (1950) (No. 306).

In contrast, Guantanamo is “territory over which the United

States exercises plenary and exclusive jurisdiction.” Rasu/, 542

U.S. at 475. It is “in every practical respect a United States

territory.” /d. at 487 (Kennedy, J., concurring). There is neither

shared control by multiple sovereigns, nor an underlying legal

framework apart from the Constitution. Guantanamo in 2007 ts

not remotely analogous to occupied Germany in 1947, and the

arguments counseling denial of the writ in /isentrager—

unwillingness to interfere with the multiple sovereigns and the

textured, distinctive legal system present in occupied Germany—

are absent in the un:que case of Guantanamo.

Moreover, for years the Government has held individuals

such as Hamdan not only within the territorial jurisdiction of the

United States, but actually within what this Court deemed the

statutory jurisdiction of the federal courts. Compare Lisentrager,

339 U.S. at 768 (emphasizing that the “alien enemy . .. in no stage

of his captivity[] has been within its territorial jurisdiction”), with

Rasul, 542 U.S. at 475-84 (holding that habeas jurisdiction

extended to Guantanamo). The Government continued to hold

Hamdan and others facing commission trial at Guantanamo for

years after Rasu/. Textually, there was nothing to “suspen[d]” in

Lisentrager, as the Court found that the writ had never protected

the petitioners. Here, by contrast, this Court has already found that

the writ protects Hamdan and others similarly situated.

3. The Fisentrager petitioners did not even raise

the claim at issue in this case

Lisentrager does not actually implicate the challenges

brought by either Hamdan or the Bowmedicne Petitioners, namely.

their claams under 28 USC. § 2241(c)(3) and constitutional

habeas that they are held and set to be tried in violation of the

Constitution, treaties, and laws of the United States. L:isemtrager’s

-|5-

counsel oddly asserted only one type of habeas jurisdiction, that

for “being a citizen of a foreign state. . . in custody for an act done

or omitted under any alleged... order or sanction of any foreign

state, or under color thereof, the validity and effect of which

depend upon the law of nations.” 28 U.S.C. § 2241(c)(4); see also

Br. for Respondent at 2, Johnson v. Lisentrager, 339 U.S. 763

(reprinting statute involved and only reprinting (a) and (c)(4)), id.

ai 24-26 (making argument based solely on (c)(4)). Eisentrager

thus stood in a different position from General Yamashita, for

Yamashita asserted a (c)(3) claim, namely that his trial violated

the Constitution, treaties, and laws of the United States.

As such, /isentrager could not benefit from, and this Court

did not confront the possible tension with, Yamashita’s

foundational claim. Nor could it confront the tension with the

bedrock claim of x parte McCardle. 73 U.S. (6 Wall.) 318, 325-

26 (1867). where this Court observed that the habeas corpus

statute “is of the most comprehensive character. It brings within

the habeas corpus jurisdiction of every court and of every judge

every possible case of privation of liberty contrary to the National

Constitution, treaties, or law. It is impossible to widen this

jurisdiction.” /:isentrager’s tactical decision to assert only

jurisdiction predicated on “the law of nations” may have led this

Court to analogize his claim to private-law disputes from the war

of 1812. See kisentrager, 339 U.S. 776-77.

The strategic choice by /isentrager’s counsel to place all his

eggs in one jurisdictional basket cannot bind later individuals who

seek to pursue other avenues for jurisdiction, particularly claims

that a person “is in custody under or by color of the authority of

the United States or is committed for trial before some court

thereof,” 28 U.S.C. § 2241(c)(1), or “ts in custody in violation of

the Constitution or laws or (reatics of the United States,” id

§ 2241(c)(3) (emphasis added), or “[i}t ts necessary to bring him

into court to testify or for trial.” «df § 2241(c5). While some of

the dicta in /isentrager appear to reach more than (c)(4), the

Court in that case had absolutely no occasion to revisit. question,

or even consider the other possibilities for jurisdiction that were at

-16-

issue in Yamashita and earlier cases.* The claims today go to the

heart of constit"*:onal law, and cannot be analogized to | 90-year-

old private-law disputes in New York state courts.

For -ach of the above reasons, “nothing in Lisentrager . . .

categorically excludes aliens detained in military custody outside

the United States from the ‘privilege of litigation’ in U.S. courts.”

Rasul, $42 US. at 484 (citation omitted).”

C. Those Facing Commissions Must Have the Ability To

Challenge the Trials’ Legality on a Pre-Trial Basis

Hamdan ’s petition invokes the fundamental right to challenge

his military commission before he is subjected to an unlawful tal.

This Court has recognized the necessity of a pre-trial habeas

challenge to military trials in Hamdan’s very case, over the

* The Court has stated that doubts about military jurisdiction should be resolved

in favor of ervihan jurisdiction. See / nited States ex rel Toth v. Quarles, 350

U.S. 11. 15(1955) (There is a compelling reason for construing the clause this

Way: any expansion of court-martial jurisdiction like that im the 1950 Act

necessarily encroaches on the jurisdiction of federal courts set up under Article

Ill of the Constitution where persons on trial are surrounded with more

constitulional safeguards than m military tribunals. ”): see also /-x Parte Lerger.

75 US. (8 Wall.) 85, 102 (1868) (the general spit and genius of our

mstitutions has tended to the widening and enlarging of the /rabeas corpus

jurisdicuon’). Price v. Johmston, 334 US. 266. 283 (1948) (| The wnt of

habeas corpus should be left sufficiently elastic so that a court may. in the

eXereise of its proper jurisdiction. deal effectively with anv and all forms of

illegal restramt. The ngidity which is appropnate to ordinary jursdictional

doctrines has not been apphed to this wrt.”). overruled on other grounds by

MeCleskev v. Zant, 499 US. 467 (1991).

~ The //amdan district court rehed on the fact that. in /isertrager. wt was

mmaterial whether the petitioners were im the service of a German ethan or

military mstitution But that was because the petitioners were widisputably

German nationals, 339 US. at 765, and that status alone rendered them enemies

asa matter of law. if. at 773-75 & 0.6 In addition. Fisentrager emphasized that

“these prisoners were actual enemies. active in the hostile service of an enemy

power. There is ne fiction about thei enmity ~ /d. at 778. By contrast. | lamdan

isa ciuzen ol Yemen. a nation not at war with the United States. and he does not

share the presumptive enemy affiliation of the Fisentrager petitioners

Boumediene. App. 95a © These detainees are citizens of tnendly nations

finelucding}| Yemenf{.|~) (Rogers. J. dissenting)

-17-

Government's objection that the military commission Hamdan

faced was solidly grounded in precedent from World War IL

Hamdan held that “abstention ts not appropriate in cases in which

individuals raise ‘substantial arguments denying the right of the

military to try them at all.°” 126 S. Ct. at 2770 n.16; Schlesinger v.

Councilman, 420 U.S. 738, 759 (1975) (same). Given the

unprecedented nature of the commissions under the MCA, today’s

commission defendants continue to have a “compelling interest in

knowing in advance whether [they] may be tried by a military

commission that arguably is without any basis in law.” Hamdan.

126 S. Ct. at 2772.

Hamdan is just the most recent of this Court’s important

precedents recognizing the right of those facing trial by military

commissions to raise pre-trial habeas challenges to the legality of

those commissions. In Ouirin, this Court evaluated the legality of

a military commission pre-trial because “the public interest

required that we consider and decide those questions without any

avoidable delay.” 317 U.S. at 19. And over a century prior, the

Court countenanced pre-trial challenges to the jurisdiction of both

civilian and military trials in foundational cases. k.g., kx parte

Bollman, 8 U.S. (4 Cranch) 75 (1807) (undertaking a pre-trial

habeas review of defendants’ claims and stating they could not be

tried for certain substantive offenses); x parte Yerger, 75 U.S. (8

Wall.) 85 (1868) (entertaining pre-trial habeas challenge to the

jurisdiction of military commission). Such pre-trial challenges are

wholly consistent with the Great Writ’s function as a means to test

the jurisdiction of a court purporting to hold and try a defendant.

See, e.g., In re Mayfield, 141 US. 107, 116 (1891), Ex parte

Yarbrough, 110 US. 651, 653 ( 1884)"

‘The necessity of pre-trial habeas review is not undermined by the fact that

Congress has now authorived the military commissions m the MCA, see MCA

$ 3. and provided for exclusive appellate review im the D.C. Cireutt. see 10

IIS C §$ 950g As the Court recognized in Counci/man. exhaustion of remedies

im the military system is not required—-even where Congress makes enilian

appellate review ulumately avatlable—betore allowing habeas = rehet

Councilman, A20 US. at 759 centing ! nited States ex rel. Toth 350 01S.

(1955). Read». Covert, 354 US. 1 (1957). Meklrew v. C nited States ex rel.

Cmagliardo, 361 US. 281 (1960) In Toth. Read. and \icFlrev. the habeus

-18-

Hamdan has challenged the jurisdiction of the commission, its

rules and procedures, and the legality of the particular substantive

oifenses for which he will be tried. See Hamdan v. Rumsfeld, 464

F. Supp. 2d 9(D.D.C. 2006). And without an opportunity to raise

these challenges to the commissions on a pre-trial basis, he will be

irreparably harmed. Without knowing in advance whether the

commission has jurisdiction over him, what evidence it may

consider, and for which offenses he may be tried, he or any other

defendant will be unable to develop an effective defense

strategy. |!

Moreover, requiring a defendant to submit to a procedure that

he contends is unlawful causes him “a significant and irreparable

injury.” Rafeedie v. INS., 880 F.2d 506, 517-18 (D.C. Cir. 1989).

Specifically, if a defendant participates in a proceeding that is

found unlawful, the Government will “know his defense in

advance of any subsequent . . . proceeding,” id at 517, whether it

be alawfully convened military commission or a civilian criminal

trial. But if a defendant, in order not to prejudice himself in a later

proceeding, “does not present his factual defense .. . he risks

forsaking his only opportunity,” id

Finally, denying defendants a pre-trial challenge to the

legality of their commissions would do away with another core

habeas protection. At common law, “habeas incorporated a

petitioners contended that Congress had no constitutional power to subject them

to the punsdiction of military tribunals. /c/. The fact that Congress had provided

for appellate review by an Article TIT court did not preclude the Court fom

holding in those cases that it was mappropriate to require exhaustion of the

military tnal process before entertamimng habeas challenges.

'' The Government clearly understands the strategic litigation importance of

certamty m advance of trial. Indeed. the Government asked Congress to place

within the MCA a pretrial nght for mterlocutory review when it loses—-even iit

loses a mere evidentiary question. During the MCA dratting. the Government

requested. and Congress gave it. the mght to take an interlocutory appeal any

ume there ts an adverse ruling that “terminates proceedings of the military

commission with respect to a charge or specification” or “excludes evidence that

is Substantial proof of a fact material in the proceeding ~ MCA § Hap. LOU SC

$950dia)) Yet wos unclear whether the MCA allords the defendant a

comparable abihty to challenge ad\ erse rulings on these issues

-|9-

speedy-.::al 2uarantee,” Boumedicne, 476 F.3d at 1006 n9

(Rogers, J., dissenting) (citing cases), that the MCA explicitly

eliminates in commission proceedings. See MCA § 3(a) (codified

at 1OU.S.C. § 948b(d)(1 (A)) (providing that “any rule of courts-

martial relating to speedy trial” ‘shall not apply to trial by military

commission”). Without the ability to file a pre-trial habeas

petition, defendants facing military trial would have no way to

obiain swift justice.

lll. This Court Has Already Decided in Hamdan That the

Detainees at Guantanamo May Vindicate Structural

Constitutional Guarantees

The Government has characterized this Court’s decision in

Hamdan v. Rumsfeld as a statutory decision. See, ¢.g., U.S. Br.

Opp. Cert., Boumediene v. Bush, No. 06-1196, at 5. While there is

some truth to that description, Hamdan makes clear that the

Government and the panel below have overread the Aisentrager

decision in finding that the detainees can assert no constitutional

protections whatsoever.

Although Hamdan certainly held that the President's initial

scheme for military commissions violated the Uniform Code of

Military Justice, see Hamdan, 126 S. Ct. at 2759, Hamdan’s entire

framework is built around the constitutional axiom of separation

of powers. If the Government was correct in its claim that

Guantanamo detainees could assert no constitutional protections,

Mr. Hamdan could not have prevailed before this Court. Mr.

Hamdan asserted a constitutional conflict between the President's

Military Order and congressional statutes. This Court did not

resolve that conflict by deeming it irrelevant or somehow

accepting the Government's claim that Lisentrager barred

detainees from asserting structural principles. Rather, it inquired

into the constitutional separation of powers tssue and explicitly

found that in a conflict between the Congress and the President in

this arena, Congress prevails. Hamdan, 126 §. Ct. at 2774 n.23.

That is to say, Hamdan is grounded in a constitutional

principle, one available for detainees to vindicate. If a

Guantanamo detainee lacked the ability to assert a structural

violation of the Constitution, the President would have been able

-20-

to do whatever he wanted in his Military Order without this

Court's interference in Hamdan. But the Court properly reyected

such bold arguments, and instead found that Hamdan, a detainee at

Guantanamo, was able to raise the constitutional structural conflict

between the President's Order and Congress’ statutes.

This point is particularly relevant in the present case, for just

as constitutional principles of separation of powers served to limit

the President's power in Hamdan, the Suspension Clause serves as

a structural constitutional “limit on Congress's powers’ to strip the

courts of jurisdiction over these habeas cases. See Boumediene,

476 F.3d at 998 (Rogers, J., dissenting). Accordingly, Congress

may not strip this Court of jurisdiction unless it acts “pursuant to

the powers it derives from the Constitution,” /d at 995, in the

same way that in Hamdan, the President could not order military

trials unless he acted pursuant to powers he derived from Congress

and the Constitution.

IV. The Court of Appeals’ Decision Disregards this Court's

Fundamental Rights Jurisprudence

The court of appeals’ decision in Boumediene further erred by

summarily dismissing the “fundamental rights” jurisprudence ot

this Court and the Petitioners’ efforts to invoke those rights. In the

“most significant’ '* of Zhe Insular Cases, Downes v. Bidwell, this

Court identified certain rights that were “indispensable to a free

government,” distinguishing them from less essential protections

that. while provided for in the Constitution, do not necessarily

apply in all circumstances when the Government acts outside the

United States. Downes v. Bidwell, 182 U.S. 244, 282-83 (1901). In

ei:aborating on the distinction between constitutional prohibitions

in effect only in the United States and those that operate

“irrespective of time or place,” the Court made clear that certain

types of legislation are simply outside the powers of Congress,

regardless of location. i/ at 276-77: see also Dorr v. United

States, 195 U.S. 138, 146 (1904): Balzac v. Porto Rico, 258 US.

298, 312-13 (1922) (reaffirming “fundamental = nghts”

~ Examoung Bel of Eng rs. Architects & Survevers v. blores de Otero. 4260S

S72. 601 (1976)

Ot.

jurisprudence). Indeed, in //ores, this Court summarized the key

holdings of 7he Insular Cases, noting that even in territories

where admission to the Union was not anticipated, ‘fundamental’

constitutional rights were guaranteed to the inhabitants.” 426 U.S.

at 601 n.30.

Despite this long history of protecting fundamental rights in

territory under U.S. control, the court of appeals in this case

summarily and erroneously rejected the guidance of /he Insular

Cases. The panel distinguished those cases by saying that they

related only to “Territory or other Property belonging to the

United States.” Boumediene, 476 F.3d at 992.

This reasoning is grossly flawed, and provides no basis for

the sweeping assertion that no constitutional rights, fundamental

or otherwise, protect Petitioners. This Court has already rejected

the claim that the lack of formal sovereignty over Guantanamo

places it beyond the jurisdiction of American courts and law. See

Rasul, 542 US. at 480 (“[ T]he United States exercises ‘complete

jurisdiction and control’ over the Guantanamo Bay Naval Base,

and may continue to exercise such control permanently if it so

chooses.”). Guantanamo “belongs” to the United States in every

meaningful sense. As Justice Kennedy has explained,

“Guantanamo Bay is 1n every practical respect a United States

territory .... From a practical perspective, the indefinite lease of

Guantanamo Bay has produced a place that belongs to the United

States, extending the ‘implied protection’ of the United States to

it” Jd at 487 (Kennedy, J.. concurring) This “implied

protection.” if it means anything. must include protection for

fundamental rights.

Rasul itself strongly suggests that the “fundamental rights”

reasoning of the /nsi/ar Cases applies at Guantanamo. In Rasi/

the Court stated that Petitioners. held for over two years in

terntory subject to the exclusive jurisdiction and control of the

United States. had adequately alleged a violation of the

Constitution or laws or treaties of the United States necessary to

support a valid habeas petition. /c/. at 484 n.15. The Court cited to

a section of Justice Kennedys concurring opinion in Cl ‘nited States

v. Perdugo-lrquidez. 494 U.S. 259, 277-78 (1990), a case testing

whether the Fourth Amendment applied when U.S. agents

-22.-

searched the Mexican residence of a Mexican citizen. That section

of Justice Kennedy's opinion began with the proposition that “the

Government may act only as the Constitution authorizes, whether

the actions in question are foreign or domestic.” Jd. at 277. It then

analyzed the facts of }’erdugo in light of the “fundamental rights”

jurisprudence of 7he Insular Cases. Id. at 278 (Kennedy, J.,

concurring). Justice Kennedy's focus on due process in Verdugo

drew heavily on Justice Harlan’s analysis of 7he Insular Cases,

noting that “‘the question of which specific safeguards . . . are

appropriately to be applied in a particular context .. . can be

reduced to the issue of what process is ‘due’ a defendant in the

particular circumstances of a particular case.*” /d. (Kennedy, J.,

concurring) (quoting Reid, 354 U.S. at 75 (Harlan, J., concurring):

see also id. at 277 (The proposition is, of course, not that the

Constitution ‘does not apply’ overseas, but that there are

provisions in the Constitution which do not necessarily apply in all

circumstances in every foreign place.””) (quoting Reid, 354 US. at

74 (Harlan, J., concurring)).

Thus, at a minimum, some “safeguards” are de> to criminal

defendants in American courts as a matter of fundamental

constitutional right, regardless of the location of the trial or the

* Verdugo-l rqtidez does not purport to hold that the Constitution a/wavs ts

inapplicable to non-nauionals overseas. Although the Court held in that case that

the Fourth Amendment did not app’) © those circumstances. 1t regarded as

established that certain “fundamental consututional mghts are guaranteed to

inhabitants of... territones” under the control of the United States. /c/. at 268.

The Court emphasized the limited and highly contextual nature of its decision.

Which carefully examined the history of the Fourth Amendment. //. [he degree

to which the Constituuion applies extratermtorially is complex and dependent on

many factors. including the particular provision. the status of the mdividual

claiming tts protection. and the territory m question. See, e.g.. Balzac v. Porto

Rico, 238 US. 298 (1922). Ocampo v. United States. 234 US. 91 (19 T4y:

I erdugo-l rqutidez. 494 US. at 277 (Rennedy . J. concurring) (explaining that

the question is not whether the Constitution applies. as it must. but “what

constituuional standards apply when the Government acts. in reference to an

ahen. within its sphere of foreign operations) Terdigo-7 rgitidez, moreoy er.

reserved the question whether a person Whose “lawful but nvoluntary” stay was

prolonged “by a prison sentence” might be enutled to constututional protections.

494 01S. at 271-72

-23-

status of the defendant. But if the court of appeals’ decision in

Boumediene is affirmed without modification, the minimal

protections afforded by this Court’s fundamental rights

jurisprudence will be nullified, and criminal defendants in the

military commissions set up under the MCA will be totally subject

to the whims of Congress and the tribunals in those proceedings.

While the full scope of such protection need not be articulated in

this case (which, after all, involves detention rather than criminal

prosecution), it is imperative that the Court not affirm the court of

appeals’ decision in a manner that strips criminal defendants of the

ability to invoke fundamental constitutional rights in their defense.

Instead, the Court should use this case to reaffirm the

fundamental rights jurisprudence regarding those minimal

constitutional protections afforded to criminal defendants in all

American courts. Among these protections are the following:

(1) the Constitution’s most fundamental nght—the nght to

habeas corpus. See Carafas v. LaVallee, 391 U.S. 234, 238 (1968)

(habeas is “shaped to guarantee the most fundamental of all

rights”); see also Downes, 182 U.S. at 282 (identifying “free

access to courts” as one of the “natural rights enforced in the

Constitution”). Without access to the courts via habeas,

defendants lack the ability to protect their fundamental nights.

(2) a guarantee of due process of law, see Calero-Toledo v.

Pearson Yacht Leasing Co., 416 U.S. 663, 668 n.5 (1974) (“there

cannot exist under the American flag any governmental authority

untrammeled by the requirements of due process of law’) (intemal

quotation marks and citation omitted), including, among other

things, the right to be tried before an impartial and independent

court, see Hamdi, 542 U.S. at 535 (identifying the might to be

heard by “an impartial adjudicator” as one aspect of the process

due to an enemy combatant), and the nght to confront one’s

accusers, sec Crawford v. Washington, 541 U.S 36, 49 (2004) ("It

is a rule of the common law, founded on natural justice, that no

man shall be prejudiced by evidence which he had not the liberty

-24-

to cross examine’) (internal quotation marks and citation omitted).

see also Hamdan, \26 §. Ct. at 2798 (plurality) (citing cases). ”

(3) the right to not be tried on ex post facto charges, see

Downes, 182 U.S. at 277 (suggesting that the Ex Post Facto

Clause applies “irrespective of time or place,” as it goes to “the

competency of Congress to pass a bill of that description”)

(emphasis omitted); and

(4) protection against the use of evidence extracted by torture

or coercion, see Miller v. Lenton, 474 U.S. 104, 109 (1985)

(abusive interrogation techniques “are so offensive to a civilized

system of justice that they must be condemned”): Rochin vy.

California, 342 U.S. 165, 173-74 (1952) (coerced confessions

gravely “offend the community’s sense of fair play and

decency... . [T]o sanction [such] brutal conduct... would be to

afford brutality the cloak of law. Nothing would be more

calculated to discredit law and thereby to brutalize the temper of a

society.”).'* Such evidence is not only inherently unreliable, see,

e.g, Jackson v. Denno, 378 U.S. 368, 385-86 (1964), but its

admission necessarily corrupts the judicial process and violates

fundamental constitutional and human rights.

'! The MCA offends fundamental confrontation principles by reversing the

longstanding presumption against admitting hearsay evidence. and placing on

the party opposing its admission (typically the defendant) the burden of proving

its unreliability. As a practical matter. 1t then makes it virtually impossible for

defendants to prove unreliability by protecting from disclosure any sensitive

sources and methods used by the Government to obtain the hearsay evidence.

MCA § 3 (adding 10 U.S.C. $§ 949a¢ by 2). 949d).

'~ Long before the drafting of the U.S. Constitution. the common law

unequivocally condemned torture and banned judicial rehance on coerced

lesumony. See, ¢.g.. 4d. v. Secretary of State, [2005] UKTI. 71. © 11. © SI

(appeal taken from Eng) ¢>| | [he English common law has regarded torture and

its [ruts with abhorrence for over 500 vears.”). But im this case. the |:xecutive

Branch has maintained that it was not “the CSRTs role” to investigate

allegations of torture. and it Was permissible for CSRIs to rely on evidence

“obtained through a non-tradiuenal means. even torture” to make status

determinations. Tr. 12/2/04 oral argument at 83-87. Bowmediene v. Bush. Cw.

No 04-1166 (RIL) (DC Likewise. the MCA would allow testimony

obtumed through “coercion” to be introduced into evidence at &@ commission

tral. See MCA § 3 (adding LOTT S.C. § 948r)

-25.

This is by no means an exhaustive list; rather, it merely

illustrates some fundamental rights that the court of appeals swept

aside in its overbroad and erroneous ruling in this case. This Court

should not ratify that result, as to do so would leave criminal

defendants before commissions without protection in a process

that raises serious constitutional questions. Instead, the Court

should resolve this case in a manner that ensures that the

commissions do not transgress the Constitution’s limitations on

the exercise of power at the expense of fundamental rights.

Such a ruling would be solidly grounded in precedent, as this

Court has noted the limitations imposed by the Constitution on

such tribunals. Ouirin, 317 U.S. at 29 (“We must therefore first

inquire whether any of the acts charged is an offense against the

law of war cognizable before a military tribunal, and if so whether

the Constitution prohibits the trial.”). Neither of thé prerequisites

identified in Ouirin has been satisfied with respect to the Amicus

here, as the acts with which he has been charged (“Conspiracy™

and “Providing Material Support for Terrorism”)'° are not

offenses under the law of war and his trial on these charges is

prohibited by the Ex Post Facto Clause. Hamdan’s right to assert

these defenses, and this Court's power to protect fundamental

rights wherever the authority of the United States is being

exercised, must be preserved

V. The MCA Provides Neither an Adequate Nor an Effective

Habeas Substitute

Absent suspension of the Great Writ, Congress may only

eliminate federal jurisdiction over constitutional habeas claims if it

provides a substitute “which ts neither inadequate nor ineffective

to test the legality” of the executive action. Swain vy. Pressley, 430

U.S. 372, 381 (1977). In Petitioners’ case, this will require an

inquiry into whether DTA section 1005(e)(2)'s provision for

review of CSRT decisions in the D.C. Circuit ts such a substitute.

Military commission challenges, however. will require a wholly

distinct inquiry into whether MCA section 3°s very different

le . e ° 9 aires . °

See Llamdan’s Pet. tor Writ of Cert. Betore J. tiled un /famidan vy. Gates. S

Ct. Case No. 07-15, at 4

-26-

provision for limited review of final commission determinations in

the D.C. Circuit can act as an adequate substitute. Whatever the

answer to the “adequate and effective” inquiry with respect to

Petitioners, the MCA falls far short of this standard with respect to

the claims of defendants challenging trial by military

commission.’ To the extent this Court concludes that the DTA

' The MCA’s convoluted provisions leave some doubt as to whether

defendants in military commissions have any recourse at all to the federal courts.

Under the 2005 DTA, section 1003(e)3) provided for limited review of

decisions of military commissions. But MCA section 3 explicitly states that

“|e }xcept as otherwise provided in this chapter and notwithstanding any other

provision of law (including section 2241 of title 28 or any other Habeas corpus

provision). no court, jusuce, or judge shall have jurisdiction to hear or consider

any claim or cause of action whatsoever . ._ relating to the prosecution, trial. or

judgment of a military commussion under this chapter. including challenges to

the law fulness of procedures of military commissions under this chapter.” MCA

§ 3(a), LOULS.C. § 950)(b)) (emphasis added). Since DTA section 1003(e)(3) 1s

codified in Chapter 47 of Title 10 as opposed to Chapter 47A (where the MCA

is codified), the MCA exphieitly shuts offany recourse to the commission review

procedures in DTA section 1005(¢4 3). See MCA § 3(ay1) CSubutle A of ttle

10. United States Code. 1s amended by inserting after chapter 47 the following

new chapter: Chapter 47A-Military Commissions).

Elsewhere in MCA section 3(a), Congress vested the D.C. Cireuit with

“exclusive jurisdiction to determine the validity of a final padgment rendered by

a nnuhtary commission.” 10 U.S.C. § 950g(a). Another section of the MCA.

however. states that “[e}Ncept as provided in paragraphs (2) and (3) of section

1003(¢) of the Detainee ‘| reatment Act of 2005. no court. justice. or yudge shall

have jurisdiction to hear or consider any other acuion . . . relating to any aspect

of the... tnal. .. of an alien” detained as an enemy combatant. MCA § 7(a).

this latter provision seems to nullify the review provisions added in section

31a). defining the DTA’s already mvalidated commission review procedures as

the only available recourse.

Thus. one could fairly read the MCA as providing vo valid provision at all for

review of military commnssions by an Article HT court. On the one hand. the

provisions of DTA section 1005¢e 3) are mapphicable because they appear ina

different chapter of the 1! S. Code than the MCA and the latter speerficalls

denies any provision outside its own chapter from being available to challenge

the trial of detamees. On the other hand. the MCA‘s own provisions for review

of commission decisions appearing im section 34a) would seem to be

inapplicable by virtue of section 7(a)s mandate that only DIA section

100Ste 43) can be used to challenge any aspect of the tral of a detamee. This

provides an adequate substitute for habeas review of CSRT

decisions, Amicus Hamdan asks that it issue a narrow decision that

does not extend to the very different provisions governing review

of military commissions.

The MCA purports to prohibit federal courts from

considering the issue at the heart of the Great Writ and of

Hamdan’s legal challenge: whether the military commissions are

lawfully constituted and have junsdiction to try and punish

Hamdan and other defendants. See Ludecke v. Watkins, 335 U.S.

160, 162 (1948). Instead, the MCA apparently restricts the

reviewing court's inquiry to the issue of “whether the final

decision [of the commission] was consistent with the standards

and procedures” set forth by the Act. MCA § 3(a), 10 USC.

§ 950g(c)(1). That is, the judicial review provided for by the

MCA—the supposed habeas substitute—consists only of

considering whether the commission followed the assertedly

unlawful procedures in the statute. Defendants are seemingly

denied the ability under the MCA to claim that the military

commission's “standards and procedures” are themselves

impermissible.'* And this statutory scheme itself gives the

result would defy the Constitution's requirement that to remove habeas

jurisdicuon Congress must provide petitioners an adequate and effective

substitute. Despite this statutory abyss. for the remainder of this bnef | lamdan

assumes for the sake of argument that MCA section 3(a) s review provisions are

available following the final decision of a military commission.

'* MCA section 3 also states that the 1).C. Circuit's jurisdiction “shall be limited

to the consideration of... (2) to the extent applicable. the Constitution and the

laws of the United States.” MCA § 31a) (codified at 10 US.C. 950g(eK2)). To

the extent this ery pte provision allows federal courts any recourse at all to the

Constitution and laws of the United States. 1 does not specily whether courts

may evaluate the commission's procedures and standards against those laws or

Whether they may consider only the commission's final decision m a particular

case

Moreover. the MCA seemingly precludes the federal courts trom considering.

a defendant's treaty claims. MCA § 34a). TOTES C § 950g0e). § 948b¢2). Under

cominon law habeas. in contrast. courts must consider and vindicate treaty -based

rights See, e.g.. \laliv. Keeper of the Common Jail, (20S. 117-18 C1887)

Although Congress ts [ree to abrogate eaties entirely - must do so witha clea

statement: otherwise. courts must interpret federal law as bemy consistent with

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Government the keys to the federal courthouse: by not finalizing a

decision (or by delaying prosecution) it can block judicial review

forever.”

The MCA’s failure to provide petitioners with any

opportunity to test the legality of the commission's procedures

stands in marked contrast to the scope of review the DTA

prescribes for CSRTs. The DTA requires a federal court to make

the inquiry into CSRTs that the MCA forbids for military

commissions: “whether the use of [the CSRT] standards and

procedures . . . is consistent with the Constitution and laws of the

United States.” DTA § 1005(e2(C)(ii).”

In addition, while the MCA prohibits review of factual

matters in challenges to commissions, the DTA requires it for

challenges to CSRTs. Compare MCA § 3(a) (codified at 10 U.S.C.

§ 950g(b) (providing that in a review of a military commission,

“the Court of Appeals may act only with respect to matters of

law”) with DTA § 100S(e(2)(C)(1) (requiring, with respect to

CSRTs, that the D.C. Circuit ensure “that the conclusion of the

Tribunal be supported by a preponderance of the evidence”). This

DTA provision requiring at least some minimal factual review of

CSRTs has led the D.C. Circuit to announce orders governing the

evidentiary and procedural rules of the tribunals. See Bismillah v.

Gates, No. 06-1387, slip op. at 13 (D.C. Cir. 2007) (“[ T]he DTA

international law obligations. (ook v. ( nited States, 288 US. 102, 120 (1933).

see alsv Murray v. Schooner Charming Betsy. 6 US. (2 Cranch) 64 (1804). The

MCA does not constitute any such clear statement—on the contrary . 1t purports

to uphold the Geneva Conventions. see MCA § 6: id. § 3 (codified at LOU S.C

$ 948b(1))—and delendants therefore retain their treaty rights but lack a forum

in Which to vindicate them.

As explained above. because the MCA does away with traditional guarantees

of a speedy tral. the Government may delay a commission thal mdetimtely at

any point. preventing a “final” judgment or decision. and thereby immunizing

the military commissions from any judicial serutiny

“DTA section 1005(e3) whieh. as eXplained above. section (a) of the MCA

renders iappheable to defendants. did permit the D.C Cireuit to make a similar

matuiry tor military commissions See DLA § lOOSce ns Diy But see MCA

$ 3(a) (codified at LOU S.C. § 9507) cehimmnating recourse to the DIA review

procedures): sapra note 17

-29-

directs this court to ‘determine the validity’ of a Tribunal’s ‘status

determination’... with particular reference to ‘the requirement

that the conclusion of the Tribunal be supported by a

preponderance of the evidence.””). Because the MCA forbids the

D.C. Circuit to even consider factual issues regarding military

commissions, it will be unable to issue orders for those

commissions of the kind issued in Bismullah for review of CSRT

determinations.

The MCA’s prohibition on any judicial challenge to factual or

evidentiary matters ts particularly unacceptable as a habeas

substitute because the MCA allows a defendant to be convicted

and punished based on evidence obtained through use of “cruel,

inhuman, or degrading treatment”—so long as the interrogation

occurred before passage of the DTA on December 30, 2005. See

MCA § 3 (codified at 10 U.S.C. § 948r) (prohibiting the use of

such evidence obtained after passage of the DTA, and so

implicitly inviting its use if obtained befor. that date). Because

evidence “procured by coercion is notoriously unreliable and

unspeakably inhumane,” Bowmnediene, 476 F.3d at 1006 (Rogers,

J., dissenting), “the English common law has regarded torture and

its fruits with abhorrence for over 500 years,” A. v. Sec 'y of State,

[2006] 2 A.C. 221 4 51 (H_L.) (appeal taken from Eng.) (Bingham,

L.). Accordingly, a proceeding that welcomes evidence obtained

through “cruel, inhuman, or degrading” methods and immunizes

such evidence from the scrutiny of Article Ill judges is no

substitute for the writ of habeas corpus.

The Great Writ has long distinguished between persons

convicted by civilian criminal courts of general jurisdiction, and

those tried by the military or executive. As Chief Justice Marshall

explained, on habeas review a judgment from a military tribunal

an “inferior court| | of limited jurisdiction” — is “not placed on the

same high ground with the judgments of a court of record” such as

a civilian court. Ly parte Watkins, 28 U.S. (3 Pet.) 193, 209

(1830).°' Because habeas is at its zenith when challenging the

M ' , ;,

Atcommon law. “[t]he judgments or orders of these tribunals of special and

lumited jurisdiction did not carn the same presumption of validity as the

judgments of a superior court [Le. a court of general purisdicuion|” Gerald |

-30-

validity of these inferior courts, any adequate substitute must

allow a full opportunity to challenge the legal and factual basis of

the detention and trial. The MCA provides defendants before

military commissions with neither, and so is inherently inadequate

and ineffective as a habeas replacement.

Amicus believes the DTA’s procedures are also an inadequate

substitute for the Great Writ in detention cases. Regardless of how

the Court decides that question, Amicus believes that the inquiry

into whether Congress has provided an adequate substitute in

Boumediene requires a different analysis than its military-

commission counterpart. For the reasons stated above, Hamdan

would prefer that this Court render a decision about whether the

MCA provides an adequate substitute for habeas in commission

cases following full briefing and oral argument on this specific

question. However, after six years of awaiting a trial, Hamdan

believes this Court should, if at all possible, resolve this question

now. Indeed, in Onirin, this Court opted to hear the pretrial

challenge to the military commission, even though the defendants

had only been in captivity for a few weeks. Hamdan is about to

start his seventh year of captivity. Both the nation and the

international community have a deep interest in knowing what

procedures the Government will employ to try those accused of

being enemy combatants. It is high time to resolve this

uncertainty.

CONCLUSION

For the foregoing reasons, this Court should reverse the

judgment below. Whether through the vehicle of Hamdan’s

companion Petition for Certiorari Before Judgment, or within this

case itself, the Court should hold that the MCA’s elimination of

pre-trial habeas corpus to challenge a newfangled military tribunal

with powers of life and death 1s impermissible.

Neuman. //abeas Corpus, Fvecutive Detention, and the Removal of Aliens. 98

Colum. [| Rev 961.982 (1998) Because these spectral tribunals “nmght employ

less protects e procedures than the conunen law courts.” / at YS82 nL 1S. habeas

requires greater scrutiny of ther purtsdiction and legality

-3]-

NEAL K. KATYAL

Counsel of Record

JUSTIN FLORENCE

600 New Jersey Ave., NW

Washington, D.C. 20001

(202) 662-9000

HARRY H. SCHNEIDER, JR.

JOSEPH M. MCMILLAN

ERIC S. MERRIFIELD

Perkins Cote LLP

LAURENCT H. TRIBE

KEVIN K. RUSSELL

Harvard Law School

Supreme Court Litigation Clinic

Lr. CMDR. CHARLES SWIFT

Office of Military Commissions

Auorneys for Salim Hamdan

Date: August 24, 2007