Amicus Curiae Brief — Boumediene v. Bush

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ed a @| “=

Nos. 06-1195 and 06-1196 AUG 2 4 2007

| OFFICE OF TH

SUPREME COURT RK

IN THE

Supreme Court of the United States

LAKHDAR BOUMEDIENE, ef al.,

Petitioners,

Vv.

GEORGE W. BUSH, ef ai.,

Respondents.

KHALED A. F. AL ODAH, ef al.,

Petitioners,

Vv.

UNITED STATES, ef ai.,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF AMICUS CURIAE OF

UNITED STATES SENATOR ARLEN SPECTER

IN SUPPORT OF PETITIONERS

SENATOR ARLEN SPECTER *

Ranking Member

SFNATE JUDICIARY COMMITTEE

152 Dirksen Senate Off. Bidg.

Washington, DC 20510

* Counsel of Record (202) 224-5225

WitSON-EPES PRINTING CO INC - (202)789-0096 - WasHinGTON,D C 20002

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TABLE OF CONTENTS

As GE A TEES Be evccssccvensescoseseccccsesovesocnes | cai

INTEREST OF AMICUS CURIAE ..........sccceeeeese0es | ae

INTRODUCTION AND SUMMARY OF |

SITET Sititetisisceccishoscepinnipuinibintestinieltintanenindinasineeel | ™

RIOT ats thichidchnsecditutiasnlad insenilnpeiboadiiountibeasiobenieeieiiie

1. The MCA Precludes Habeas Relief In Pending

iil iscstasdesiniisevischntisnecninipnsiabsnacitapnstimesiidiaplioctteonntaidiie

Il. The Great Writ Extends To Guantanamo

ELE LET TOTO 7

Il]. The Framework Established for Challenging

Detention Is an Insufficient Substitute for the

IE Fab intinnticcsinincsesicegnienscinigaeiniiiiainenahiesies

A. The Framework Lacks an Independent

Pe sesisdscsidinsintctiiitdeniteriibitiadincitisdtntnaiaiaibis

B. The Framework Lacks a Fair Opportunity

to Rebut the ACCUSATIONS ...........ccccesceseeeeeneee

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C. The Framework Lacks an _ Imperative

BP UIEI sislasialiesiscioticetubadieoadencaesedsiniuinnntaiiéseiioasiin _

eae UT iheriarctenceebiajieinihaapcniilibtdiliniindbiniiastaibionsibiiies

(1)

24

29

il

TABLE OF AUTHORITIES

CASES Page

Balzac v. Porto Rico, 258 U.S. 298 (1922) .........:. 13

Bismullah v. Gates, --- F.3d ----, 2007 WL

2067938 (D.C. Cir. July 20, 2007) ...............02.. passim

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

PT Piciiditiiiricicabicintgnibitnaiaiainbegtdiathaniapeeninciolatie passim

Burns v. Wilson, 346 U.S. 137 (1953) .............222..- 18

Concrete Pipe & Prods. of Cal., Inc. v. Constr.

Laborers Pension Trust for S. Cal., 508 U.S.

cei eiia hal Acitslsidiniscimtisnbaaciebintibiddambeols 13,14

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

Fe BOGE Oe Ue Gals BPP cctecctcisnccenstsiveedesicesese 13

Delaney v. Matesanz, 264 F.3d 7 (1st Cir. 2001)... ll

Felker v. Turpin, 518 U.S. 651 (1996) .............000 1]

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

Gideon v. Wainwright, 372 U.S. 335 (1963)......... 19, 20

Greenholtz v. Inmates of the Neb. Penal & Corr.

Complex, 442 US. 1 (1979) ........ccccoscsrsscseeees 21

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

I I ccctecisntinssnstaiicsinssiicitaericincientnaioncin 13

Hamdan v. Rumsfeld, 126 §. Ct. 2749 (2006)....... 3,15

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

In re Guantanamo Detainee Cases, 355 F. Supp.

ye EE 17, 18

INS v. St. Cyr, 533 U.S. 289 (2001)........ccceeeeeeees 6, 11

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

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

Korematsu v. United States, 323 U.S. 214 (1944). 10

Kyles v. Whitley, 514 U.S. 419 (1995)... 21

Lonchar v. Thomas, 517 U.S. 314 (1996) ............. 14

Miller v. Marr, 141 F.3d 976 (10th Cir. 1998)...... 11

Preiser v. Rodriguez, 411 U.S. 475 (1973) ........... 24

Price v. Johnston, 334 U.S. 266 (1948)................. 24

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

ill

TABLE OF AUTHORITIES—Continued

Page

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

Souter v. Jones, 395 F.3d 577 (6th Cir. 2005)....... 11

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

United States v. Hayman, 342 U.S. 205 (1952)..... 11

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

IP IIINNi salisckisintaticvisncishcebenlacins sodeestillapiptaniabuadghiandiin cian 8

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

A TEEN sib tidieisnciatidenabtihbujasupdavecahintenvaiilendintigateens 8

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

Pe iscildsaolientii cient shanicinshniitebdaciniaieltlecdialy tanidlinanones 27

Universal Camera Corp. v. NLRB, 340 U.S. 474

I Dita teea tsi allena iecdiaeant olipeitisidiinleds 16

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

Se eibindincennieaeneencseinn sa lneitiaiidiini hte tideaaneabenidetis 10, 13

Ward v. Vill. of Monroeville, 409 U.S. 57 (1972) .. 15

Wilkinson v. Dotson, 544 U.S. 74 (2005).............. 24

Youngblood v. West Virginia, 126 S. Ct. 2188

ra iiidecichicritpioniehiisidnininigtaaniisedipapeniiubppdgeintaeseoseneies 21

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

UNITED STATES CONSTITUTION

Asticte I, Section 9, Clause 2 ..00.:ccrccscsssssssscssseveseoee 2,6

STATUTES AND BILLS

i ada dtaninatieiceeteiianiwtingnenincaistions 26

SE TT ies iclannapheitbiernnetenbipiactiémsnntieaininents 5

bite chnticateenmnbdeeneninnendenngneds 25

Fe a TET incciielcisinieecenninscinsinisapavisienenenisinneds passim

aint enc hinthintetecttniinisiailanidate 11, 26

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

es IE SU Uacicieicchcticaciahinciicnnseencsssiinnen passim

Judiciary Act of 1789, 1 Stat. 73 0.0.0... eee eeeeeeeees 2

iv

TABLE OF AUTHORITIES—Continued

Page

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

CGPS, TBO BUR Ba Pi ccdeiiccsectsccsescsvsassiinncencets passim

S. Amdt. 2011, 110th Cong. (2007) ...........00000.... 27

TREATIES AND OTHER AGREEMENTS

Availability of Certain Indian Ocean Islands for

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

Se Iie in Wei tascteisenisatcicsiiseaheittinthasignciduippistianbiiononiniiin? 9

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

eee Pe eceicviinsisecinisinniiesicaiitliidegichaeh elilintiaiaits 9

Establishment of Long’ Range Aid to Navigation

Station in the Bahama Islands, June 24, 1960,

CAR Thy BE Cie Bu BOT cccccsctiinnepsnciiindetaitpnaviia 9

Lease of Certain Areas for Naval or Coaling

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

ES I ae be eS L T ES NSE 8

Lease of Lands for Coaling and Naval Stations,

Feb. 23, 1903, U.S-Cuba, T.S. No. 418............. 7,8

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

i: ST: Oe nctinecnisinvsinsininvicenaiiiccinteahidesiiotnit 9

Treaty Between the United States and Cuba

Defining Their Relations, May 29, 1934, US-

Ca aris Peis ME ctsiseciissaidinenienndgnibdcethidlidaneaiiect 7

Treaty Regarding United States Defence Arcas

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

Ant. & Barb., 29 U.S.T. 4183............ccccssseeeees 9

OTHER LEGISLATIVE MATERIALS

Congressional Record, Volume 152..........::cc:0000 5

Upholding the Principles of Habeas Corpus for

Detainees, 2007: Hearing before the House

Armed Servs. Comm., 110th Cong. (Jul. 26,

Vv

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS Page

Decl. of Stephen Abraham, Lt. Col., U.S. Army

Reserve (June 15, 2007) (“Abraham Decl.”)..... passim

Dep’t of Defense, News Release, Detainee

Transfer Announced (July 16, 2007) ................. 1, 25

Dep’t of Defense, Verbatim Transcript of

Combatant Status Review Tribunal Hearing

for ISN 10024 (Mar. 10, 2007) ...............cceceeeee “‘

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

Habeas Corpus Jurisdiction, Substantive

Rights, and the War on Terror, 120 HARV. L.

EE a passim

Robert H. Jackson, Wartime Security and Liberty

Under Law, | Burr. L. REV. 103 (1951)........... 28 ~

Memorandum from Gorgon England, Deputy

Sec’y of Def., to the Sec’ys of the Military

Dep’ts et al., Implementation of Combatant

Status Review Tribunal Procedures (July 14,

ZOGS) COCSRT PROGRIUIES”) .......0cerececevsercseceseces passim

Memorandum from Gordon England, Deputy

Sec’y of Def., to the Sec’ys of the Military

Dep’ts et al., Revised Implementation of

Administrative Review Procedures (July 14,

Ta ievdioeiidiisdeiiaadehicpranemntninsesianmiapeeninnmsmnasemecnenies 25

Memorandum’ from Paul Wolfowitz, Deputy

Sec’y of Def., to the Sec’y of the Navy, Order

Establishing Combatant Status Review Tri-

bunal (July 7, 2004) (“CSRT Order”) ............. 3, 17, 25

Gerald L. Neuman, Anomalous Zones, 48 STAN.

a lie acca aticmanemane 9.10

Dana Priest, C/A Holds Terror Suspects in Secret

Prisons, WASH. POST, Nov. 2, 2005.................. 9

James Robertson, Quo Vadis.. Habeas Corpus?,

55 Burr. L. Rev. (forthcoming 2008) ............... 28

vi

TABLE OF AUTHORITIES—Continued

David L. Shapiro, Habeas Corpus, Suspension,

and Detention: Another View, 82 NOTRE

oe OS en

Statement by the Government of Cuba to the

National and International Public Opinion

i Ae icceshecerennithaeinnsbiananetininpetnsitshitmintintals

Connie Veillette, CRE Report RL32337, Andean

Counterdrug Iritiative (ACI) and Related

Funding Programs: FY2005 Assistance

NE aes aE trtrasntsuncinenstennnnnstinnintianianitenes

Matthew L. Wald, U.S. Curbs Low-Flight Train-

ing in Italy Near ‘98 Ski-Lift Deaths, N.Y.

DARED, TED. GB, FeO eeccsstcssceresssscrencsrnensenen

Griff Witte, Taliban Leader Once Held by U.S.

Dies in Pakistan Raid, WASH. Post, July 25,

“ :

Ki

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INTEREST OF AMICUS CURIAE'

Amicus curiae, Senator Arlen Specter, is the Ranking

Member of the Senate Committee on the Judiciary. During

the 109th Congress, when the Military Commissions Act of

2006 and the Detainee Treatment Act of 2005 moved through

the Senate, amicus was Chairman of that Committee and held

several hearings to consider whether it is constitutionally

permissible for Congress to deny the right of habeas corpus to

detainees held at the United States Naval Station at Guan-

tanamo Bay without providing an adequate and effective

alternative to challenge the legality of their detention.

Amicus, being intimately familiar with the statutory pro-

visions implicated in these cases, urges this Court to

recognize the constitutional infirmity inherent in Congress’

effort to foreclose the Great Writ.

INTRODUCTION AND SUMMARY OF ARGUMENT

The United States began sending alien detainees to Guan-

tanamo over five years ago, after capturing them in the field

and declaring them “enemy combatants.” Approximately 415

detainees have been released to other countries while addi-

tional prisoners have since been interned at the installation.’

In total, the base remains home to roughly 360 detainees, of

whom eighty have been designated for release.’ By all

accounts, certain dangerous individuals reside within the

walls of Guantanamo. Toward the end of 2006. for example,

' This brief is filed with the written consent of the parties. No counsel

for a party authored this brief in whole or in part, nor did any person or

entity, other than amicus and his counsel, make a monetary contribution to

the preparation or submission of this brief.

? Dep’t of Defense, News Release, Detainee Transfer Announced (July

16, 2007), available at http://www.defenselink.mil/releases/release aspx’

releaseid= | | | 30 (last visited Aug. 22, 2007).

* Id.

the government transferred fourteen “high value” detainees to

the base, including the alleged (and now, reportedly, con-

fessed) 9/11 mastermind, Khalid Sheikh Muhammad.’ More-

over, reports indicate that as many as thirty former detainees

released from Guantanamv have returned to the battlefield to

face U.S. forces.”

The question presented here is not whether some of the

individuals should continue to be detained. They should.

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

writ of habeas corpus is available for detainees to contest the

legality of their detention by the executive.

The writ of habeas corpus is an age-old legal means for

challenging unlawful detention at the hands of an executive

authority. The Founders imported this common law right

from England; afforded it constitutional protection in the

Suspension Clause, U.S. Const. art. I, § 9, cl. 2; and

authorized the federal courts to issue the writ, see Judiciary

Act of 1789, ch. 20, § 14, 1 Stat. 73, 81-82.

Three years ago, in Rasul v. Bush, 542 U.S. 466 (2004),

this Court explained that the common law writ extends both

to citizens and to aliens within United States territory. See id.

at 481. In turn, the Court reasoned that, because the United

States exercises exclusive jurisdiction and control over Guan-

tanamo, “[a]pplication of the habeas statute to persons

detained at the base is consistent with the historical reach of

the writ of habeas corpus.” J/d.; see 28 U.S.C. § 2241 (2000).

Shortly thereafter, the Department of Defense (DoD) insti-

= ——

* See Dep't ef Defensé, Verbatim Transcript of Combatant Status

Review Tribunal Hearing for ISN 10024 (Mar. \0, 2007), available at

http://www .defenselink.mil/news/transcript_ ISN10024.pdf (last visited

Aug. 22, 2007).

> See, e.g., Griff Witte, Taliban Leader Once Held by US. Dies in

Pakistan Raid, WASH. POs}, July 25, 2007, at A‘.

3

tuted Combatant Status Review Tribunals (CSRTs) to as-

certain whether each detainee should still be considered an

enemy combatant and remain detained at the Guantanamo

facility. See Memorandum from Paul Wolfowitz, Deputy ~

Sec’y of Def., to the Sec’y of the Navy, Order Establishing —

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

Order”); Memorandum from Gordon England, Deputy Sec’y

of Def., to the Sec’ys of the Military Dep’ts et al., Imple-

mentation of Combatant Status Review Tribunal Procedures

(July 14, 2006) (previously issued July 29, 2004) (““CSRT

Procedures”).

The following year, with the Detainee Treatment Act of

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

purported to preclude habeas petitions from aliens detained at

Guantanamo, id. § 1005(e)({1), while at the same time pro-

viding for a limited review of CSRT determinations in the

D.C. Circuit, id. § 1005(e)(2). In Hamdan v. Rumsfeld, 126

S. Ct. 2749 (2006), this Court held that this so-called juris-

diction-stripping provision did not apply to pending cases and

therefore found it unnecessary to address its constitutional

implications. In response, Congress passed the Military

Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat.

2600 (MCA), to preclude habeas petitions from Guantanamo

detainees in all cases—pending and future, id. § 7 (super-

seding DTA § 1005(e)(1)).

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

v. Eisentrager, 339 U.S. 763 (1950), to hold that the Guan-

tanamo detainees have no constitutional right to seek habeas

relief because Guantanamo is not within the sovereign terri-

tory of the United States. Boumediene v. Bush, 476 F.3d 981,

990-92 (D.C. Cir. 2007), cert. denied, 127 S. Ct. 1478 (Apr

2, 2007), reh'g and cert. granted, 127 S. Ct. 3078 (June 29,

2007). This decision flies directly in the teeth of this Court’s

reasoned conclusion in Rasul as to Guantaname's unique

territorial status, which places it within the “historical reach

4

of the writ” as it existed at common law prior to and during

the founding era. At a minimum, that writ enables the Guan-

tanamo detainees to challenge, in federal court, the legality of

their detention.

Although this Court has permitted legal means to challenge

detention other than through a habeas petition, such means

must be an “adequate and effective” substitute for habeas.

The procedures for reviewing enemy combatant status pro-

vided pursuant to the DTA depart dramatically from the core

features of habeas relief, however, and are therefore a wholly

inadequate substitute. In particular, they fail to provide an

independent forum for the challenge to be heard, a fair oppor-

tunity to contest enemy combatant status, and an imperative

remedy to end unlawful detention.

Accordingly, this Court should hold that the MCA’s at-

tempt to curtail the Guantanamo detainees’ access to habeas

corpus is constitutionally infirm. Habeas must be restored to

ensure that the rule of law prevails at Guantanamo.

ARGUMENT

I. The MCA Precludes Habeas Relief In Pending

Cases

As a preliminary matter, this Court should decline Peti-

tioners’ invitation to exempt pending detainee cases from the

ambit of the MCA. See Pet. 12-14, No. 06-1195; Pet. 25-26,

No. 06-1196. The Petitioners’ argument is aimed at avoiding

this Court’s review of the pressing constitutional issues. The

language of the statute, however, is straightforward: it pre-

cludes pending and future actions, both habeas and non-

habeas (except for limited CSRT appeals in the D.C. Circuit),

that relate to “any aspect of the detention, transfer, treatment,

trial, or conditions of confinement” of alien detainees alleged

to be enemy combatants. See MCA § 7 (codified at 28 U.S.C

§ 2241 (e)).

5

Section 7(a) of the MCA removes the federal courts’ juris-

diction to hear or consider (1) “an application for a writ of

habeas corpus” and (2) “any other action . . . relating to any

aspect of the detention, transfer, treatment, trial, or conditions —

of confinement.” (Emphasis added.) In turn, section 7(b)

states that “subsection (a)... shall apply to all cases, without

exception, pending on or after the date of the enactment of

this Act which relate to any aspect of the detention, trans-

fer, treatment, trial, or conditions of detention.” (Emphasis

added.) Although this list mirrors the language that section

7(a) uses to address non-habeas cases (in the second clause),

it does not mean that section 7(b) exempts habeas cases —

(which are referenced in section 7(a)’s first clause). To the

contrary, section 7(b) explicitly references the entirety of 7(a)

and conspicuously omits the word “other”—a qualifier used

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

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

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

(adding 10 U.S.C. § 950)j).

Moreover, as Congress debated and passed the MCA, both

the Members who opposed and the Members who supported

these provisions recognized the effect on pending habeas

cases. See, e.g., 152 CONG. REC. $10357 (daily ed. Sept. 28,

2006) (statement of Sen. Leahy, who voted against the MCA)

(“This new bill strips habeas jurisdiction retroactively, even

for pending cases.”); id. at $10404 (statement of Sen.

Sessions, who voted in favor of the MCA) (“I don’t see how

there could be any confusion as to the effect of this act on the

pending Guantanamo litigation. The MCA’s jurisdictional

bar applies to that litigation ‘without exception.””).° Sim-

* See also 152 CONG. REC. $11197 (daily ed. Dec. 5, 2006) ‘Sen. Spec-

ter); id. at S10364-65 (daily ed. Sept. 28, 2006) (Sens. Smith an! | evin):

id. at $10269-70 (daily ed. Sept. 27, 2006) (Sen. Kyl); id. at H7938 (daily

ed. Sept. 29, 2006) (Rep. Hunter); id. at H7942 (Rep. Jackson-Lee); id. at

H7544 (daily ed. Sept. 27, 2006) (Rep. Sensenbrenner).

6

ilarly, the lone dissenter below agreed with the majority that

the statute impacts pending habeas cases. Boumediene, 476

F.3d at 986-88 & n.2; id. at 999 (Rogers, J., dissenting).

Any attempt to avoid this interpretation runs headlong into

the plain statutory text as well as the clear understanding of

the legislators. See Swain v. Pressley, 430 U.S. 372, 378 n.11

(1977). As a consequence, this Court should move past the

statutory argument and determine whether the MCA’s junz-

diction-stripping provisions are constitutional.

Il. The Great Writ Extends To Guantanamo

Detainees

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

of Habeas Corpus shall not be suspended, unless when in

Cases of Rebellion or Invasion the public Safety may require

it.” U.S. Const. art. I, § 9, cl. 2. At a minimum, this

constitutional protection extends to the writ as it existed at

common law in 1789. JNS v. St. Cyr, 533 U.S. 289, 301

(2001). Although it has expanded since that time to include

post-conviction collateral review of detentions, “[a]t its

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

means of reviewing the legality of Executive detention, and it

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

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

available to aliens being detained at Guantanamo. See 542

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

clusion, this Court reasoned that extending habeas to such

individuals was “consistent with the historical reach of the

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

over which the United States exercises exclusive jurisdiction

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

law, this Court declared, “even if a territory was ‘no pari of

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

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

7

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

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

Although the court of appeals held that “(t]he text of the

lease and decisions of circuit courts and the Supreme Court

all make clear that Cuba—not the United States—has sov-

ereignty over Guantanamo Bay,” Boumediene, 476 F.3d at

992, this conclusion is of no moment given that, under Rasul,

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

sovereignty, but rather on de facto exclusive jurisdiction and

control. This Court conclusively determined that the United

States enjoys complete de facto control of Guantanamo.

It bears emphasizing that Guantanamo, for the reasons

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

480-81. Under the 1903 lease agreement, although Cuba

retains “ultimate sovereignty,” the United States “shall exer-

cise complete jurisdiction and control over and within said

areas.”’ Also, pursuant to a subsequent treaty, the arrange-

ment is to last indefinitely and it cannot unilaterally be

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

tanamo Bay is in every practical respect a United States

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

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

produced a place that belongs to the United States, extending

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

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

339 US. at 777-78).

Additional facts illustrate this exclusive control. First,

under the lease agreement, “[t]he United States exercises ex-

” Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, U.S.-

Cuba, art. Ill, T.S. No. 418 (“Lease”).

* See Treaty Between the United States and Cuba Defining Their Rela-

tions, May 29, 1934, U.S.-Cuba, art. II, T.S. No. 866.

clusive criminal jurisdiction over‘all persons, citizens and

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

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

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

United States has the power of eminent domain at Guan-

tanamo. See Lease art. Ill. Third, when Fidel Castro severed

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

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

water plant, schools, transportation, entertainment facilities,

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

Fourth, although Cuba has declared its belief that the United

States has not adhered to restrictions in the original agree-

ment, Cuba nonetheless has recognized that it is powerless

to do anything about it.'” Fifth, the base remains in place

despite the lack of formal relations between the United

States and Cuba.

The contrast between Guantanamo and other American

military bases, past and present, further highlights the ex-

clusivity of American control of the base. For example,

Diego Garcia, located in the Indian Ocean, is operated under

an agreement with Great Britain that, unlike the Guantanamo

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

1903, U.S.-Cuba, art. 1V, T.S. No. 426; United States v. Lee, 906 F.2d

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

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

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

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

in Virginia).

' Compare Lease art. || (permitting the United States “generally to do

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

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

ment of Cuba to the National and International Public Opinion (Jan. 11,

2002) (“Cuba could do absolutely nothing to prevent [other activities].”),

available at http://ciponline.org/cuba/cubaprojccUcubanstatement.htm (last

visited July 31, 2007).

ee

9

lease, is terminable by either party.'' Similarly, the United

Statcs has operated various military facilities under agree-

ments that run only for a specific period of time,'? articulate

very narrow purposes,’? or provide for joint control.’

Indeed, Landsberg, the post-WWII prison in Germany that

housed the petitioners in Fisentrager, was operated under

three flags (those of the United States, Great Britian, and

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

instances of American control abroad, the host country has

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

is not the case at Guantanamo, where the United States

“is accountable to no one.” Gerald L. Neuman, Anomalous

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

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

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

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

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

U.S.T. 1587; Mutual Defense Treaty, Oct. 1, 1953, U.S.-S. Korea, art. VI,

5 U.S.T. 2368.

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

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

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

shall remain in force through December 31, 1988.”).

> See, e.g., Connie Veillette,. CRS Report RL32337, Andean Counter-

drug Initiative (ACI) and Related Funding Programs: FY2005 Assistance

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

the detection of drug trafficking flights in the region’).

'* See, e.g., Detense of Greenland, June 8, 1951, U.S.-Den., art. Il, 2

U.S.T. 1485,

'S See. e. g., Dana Priest, C/A Holds Terror Suspects in Secret Prisons,

WASH. Post, Nov. 2, 2005, at Al (reporting that, in 2003, the Thai gov-

ernment insisted CIA shut down “biack” site where it was holding and

interrogating suspected terrorists); Matthew L. Wald, U.S. Curbs Low-

Flight Training in lialy Near ‘98 Ski-Lifi Deaths, N.Y. Times, Mar. 11,

1999, at A7 (describing Italian response to accident involving U.S. pilots

based out of Aviano).

10

Zones, 48 STAN. L. Rev. 1197, 1230 (1996); see also

Gherebi, 352 F.3d at 1300 (“[T]he United States’ territorial

relationship with the Base is without parallel today .. . .”).

Consequently, the lower court’s reliance on Eisentrager is

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

trager, this Court turned back the habeas claims of enemy

aliens who were captured, tried, convicted, and detained on

non-U.S. territory. Once Guantanamo is understood to be

under the exclusive authority of the United States, as Rasul

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

the court below draw support from the DTA provision stating

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

does not include the United States Naval Station, Guan-

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

determination of sovereignty over an area is for the legislative

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

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

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

turns not on formal sovereignty, but rather on the functional

level of control. Here, it is plain that the United States

exercises such control over Guantanamo.

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

analytical path leads inexorably to the conclusion that the

Constitution prevents Congress from eliminating the writ for

the Guantanamo detainees—absent the prerequisites for

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

With Guantanamo under the plenary contro! of the United

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

constitutional processes” can, and must, move forward.

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

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

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

removed from any hostilities”).

1]

III. The Framework Established for Challenging

Detention Is an Insufficient Substitute For The

Great Writ

Although the MCA deprives the Guantanamo detainees of

the legal right to petition for a writ of habeas corpus, the

Suspension Clause will not be offended if there remains a

substitute remedy that is “neither inadequate nor ineffective

to test the legality of a person’s detention.” Swain, 430 U.S.

at 381; see also St. Cyr, 533 U.S. at 314 n.38; Sanders v.

United States, 373 U.S. 1, 14 (1963). However, no adequate

substitute appears here.

This Court has upheld statutory alternatives that shifted the

challenge to a different court, while not otherwise materially

altering the nature of the habeas remedy. For example, this

Court has approved a provision shifting habeas challenges to

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

salary protections, Swain, 430 U.S. at 383-84, and a provision

requiring actions to be brought by federal convicts in the

sentencing district rather than the district of detention, United

States v. Hayman, 342 U.S. 205 (1952) (upholding 28 U.S.C.

§ 2255). These substitutes avoided constitutional difficulties

largely by virtue of an escape clause allowing habeas relief in

an Article Ill court any time the alternative proves “in-

adequate or ineffective.” Swain, 430 U.S. at 381: Hayman,

342 U.S. at 223.'° No such escape clause exists here, as the

© Restrictions on filing successive petitions have also been approved

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

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

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

statute of limitation—albeit often acknowledging equitable tolling as a

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

F.3d 577, 602 (6th Cir. 2005): De/anev v. Matesanz, 264 F.3d 7, 2 (Ist

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

12

procedures established under the DTA are the sole mecha-

nism by which detention may be challenged.

Far from a mere change in venue or an inconvenient

hurdle, the procedures available to the Guantanamo detainees

for contesting detention represent a dramatic departure from

the essence of habeas relief and, accordingly, are ill-suited as

an alternative. The limited status review mechanisms include

CSRTs (to assess the detainees’ status upon arrival) and

Administrative Review Boards (ARBs) (to reassess the status

annually). The DoD is given wide discretion in designing

these tribunals, see DTA § 1005(a)-(b), and it can alter them

at will, see id. § 1005(c)

Moreover, the DTA only makes available a limited appeal

of CSRT decisions in the D.C. Circuit to determine whether

the CSRT complied with the DoD’s “standards and proce-

dures” (including the requirement that a CSRT base its

conclusions on a preponderance of the evidence, allowing a

rebuttable presumption in favor of the government’s evi-

dence), and whether those “standards and procedures” are

“consistent with the Constitution and laws of the United

States.” /d. § 1005(e)(2)(C). The courts are otherwise barred

from hearing actions (including habeas petitions) relating to

the “detention, transfer, treatment, trial, or conditions of con-

finement” of alien detainees alleged to be enemy combatants.

MCA § 7.

The inquiry into the necessary scope of an adequate habeas

substitute, while potentially murky at the margins, is in-

formed by the Due Process Clause. See Hamdi v. Rumsfeld,

542 U.S. 507, 525 (2004) (plurality opinion) (explaining that

Due Process Clause “informs the procedural contéurs” of the

writ of habeas corpus); David L. Shapiro, Habeas Corpus, —

Suspension, and Detention: Another View, 82 NOTRE DAME

L. Rev. 59, 75 n.67 (2006) (“[T]he habeas remedy (or an

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

deprived of liberty without due process are intertwined.”).

13

Here, in light of the Rasul Court’s characterization o. Guan-

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

makes it akin to the “unincorporated territories” in the so-

called “Insular Cases”——the detainees are entitled to at least a

bare minimum of due process in contesting enemy combatant

status. '”

Whatever the precise metes and bounds of the inviolable

core of habeas, the exclusive framework established by the

DTA and MCA provides an insufficient substitute for habeas

because it lacks three fundamental features of due process: a

hearing before an impartial adjudicator, a fair opportunity to

rebut the government’s allegations, and an imperative

remedy.

A. The Framework Lacks an _ Independent

Tribunal ,

The DTA fails to provide an independent forum in which

to contest executive detention in the first instance, contrary to

the requirements of habeas corpus and fundamental due

process. See Concrete Pipe & Prods. of Cal., Inc. v. Constr.

Laborers Pension Trust for S. Cal., 508 U.S. 602, 617 (1993)

(“{[D]}ue process requires a neutral and detached judge in the

" See, e.g., Balzac v. Porto Rico, 258 U.S. 298, 311-13 (1922) (Consti-

tution affords “certain fundamental personal rights” to inhabitants of terri-

tories not yet “incorporated” by Congress); Haitian Cirs. Council, Inc. v.

MeNary, 969 F.2d 1326, 1342-43 (2d Cir. 1992) (“fundamental constitu-

tional rights” are guaranteed to Guantanamo inhabitants), vacated as

moot, 509 U.S. 918 (1993); Richard H. Fallon, Jr. & Daniel J. Melzer,

Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror,

120 HARV. L. REV. 2029, 2094 (2007) (“Guantanamo Bay is sufficiently

similar, functionally, to American territory that at least fundamental

constitutional rights extend to all who are held there.”’); but see Cuban

Am. Bar Ass'n, Inc. v. Christopher, 43 F.3d 1412, 1425 (11th Cir. 1995),

Vermilya-Brown, 335 U.S. at 405 (Jackson, J., dissenting) (arguing Guan-

tanamo is not a “possession”’).

14

first instance . .. .” (emphasis added; internal quotation marks

and citation omitted)); Zadvydas v. Davis, 533 U.S. 678, 723

(2001) (Kennedy, J., dissenting) (highlighting the importance

of a “neutral administrative official” in cases involving

prolonged alien detention); Hamdi, 542 U.S. at 533 (plurality

opinion) (finding citizen entitled to “neutral decisionmaker”

in challenging enemy combatant status in habeas action).

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

a CSRT staffed with executive branch officials. See CSRT

Procedures, encl.! § C; Boumediene, 476 F.3d at 1005

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

board of military judges subject to command influence.”).

Labeling the CSRT panel members as “neutral commissioned

officers,” CSRT Procedures, encl.1 § C(1) (emphasis added),

is of little comfort to the detainee, whose plea for release

depends on the very executive branch that is detaining him.

Indeed, that turns traditional habeas corpus on its head,

putting the king in the role of both jailer and judge. See

Lonchar v. Thomas, 517 U.S. 314, 322 (1996) (describing the

writ’s “most basic purpose” as “avoiding serious abuses of

power by a government, say a king’s imprisonment of an

individual without referring the matter to a court”).

Although this Court has understood that non-Article Ill

courts may entertain petitions challenging the legality of

executive detention, see Swain, 430 U.S. at 383-84, never has

it allowed the executive branch ‘the authority to assess the

lawfulness of its own detentions. It is clear why the Court

has never done so. Consolidating the decision to detain with

the review of that decision is anathema to fundamental liberty

interests.

In fact, the CSRT procedures have allowed the govern-

ment, upon receiving an unfavorable CSRT decision, to

convene multiple tribunals until the detainee is found to be an

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

(Rogers, J., dissenting); Decl. of Stephen Abraham, Lt. Col.,

15

U.S. Army Reserve § 23 (June 15, 2007) (“Abraham Decl.”),

appended to Reply to Br. in Opp. to Reh’g, No. 06-1196; see

also Upholding the Principles of Habeas Corpus for

Detainees, 2007: Hearing before the House Armed Servs.

Comm., 110th Cong. (Jul. 26, 2007) (testimony of Stephen

Abraham) (noting that 'CSRTs have been empanelled “pre-

cisely for t+2 purpose of overturning prior findings that were

favorable to the detainees”). Plainly, the CSRTs (and, sim-

ilarly, the ARBs) are in no sense independent and, accord-

ingly, are not a passable substitute to the Great Writ.

Moreover, such a fundamental structural flaw cannot be

remedied on review, especially given the limited scope of

authority afforded the D.C. Circuit. See Hamdan, 126 S. Ct.

at 2807 (Kennedy, J., concurring) (expressing concern for

DTA’s limited review of military commissions and noting

that “provisions for review of legal issues after trial cannot

correct for structural defects . . . that can cast doubt on the

factfinding process and the presiding judge’s exercise of

discretion during trial”); Ward v. Vill. of Monroeville, 409

U.S. 57, 61-62 (1972) (holding that due process requires “a

neutral and detached judge in the first instance” and that a

biased initial adjudication cannot be cured simply by offering

an impartial tribunal on appeal).

Recently, in Bismullah v. Gates, the D.C. Circuit high-

lighted its constrained authority in CSRT review cases,

acknowledging that its “jurisdiction under the [DTA] is

expressly ‘limited to the consideration of whether a de-

tainee’s status determination was ‘consistent with the stan-

dards and procedures specified by the Secretary of Defense

for [a CSRT].” --- F.3d ----, ----, 2007 WL 2067938, at *7

(D.C. Cir. July 20, 2007) (quoting DTA § 1005(e)(2)(C)\i)).

The court further fleshed out its deferential posture in

explaining that the DIA “does not authorize [the] court to

determine whether a status determination is arbitrary and

capricious because . . . it is inconsistent with the status

16

determination of another detainee who was detained under

similar circumstances.” Jd. Cf Zadvydas, 533 U.S. at 718

(Kennedy, J., dissenting) (“As persons within our jurisdiction,

the aliens are entitled to the protection of the Due Process

Clause[,] . . . includ{ing] protection against . . . arbitrary

personal restraint or detention.”). This suggests that, faced

with similar evidence in two cases, the court will not make its

own determination but will instead defer to a non-neutral

panel.'®

In sum, by permitting the executive branch to determine

the legality of its own detention decisions and then by

constraining the D.C. Circuit’s review of this inherently

biased tribunal, the DTA fails to provide an adequate

substitute to habeas corpus. This deficiency alone is fatal to

the MCA’s habeas-stripping prevision.

B. The Framework Lacks a Fair Opportunity to

Rebut the Accusations

The limited nature of the D.C. Circuit’s review is even

more problematic when considered in light of the CSRTs’

other deficiencies that deny detainees due process and make it

impossible meaningfully to contest enemy combatant status.

Aside from the lack of a truly neutral and independent

adjudicator, the additional shortcomings of the CSRTs have

been well-documented. See Boumediene, 476 F.3d at 1005-06

(Rogers, J., dissenting); Richard H. Fallon, Jr. & Daniel J.

Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and

the War on Terror, 120 Harv. L. Rev. 2029, 2100 & n.286

(2007); Abraham Decl. 4 5-23. Those deficiencies include

the lack of counsel; the lack of standards and safeguards in

'S Cf Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)

(court will not “displace [an agency's] choice between two fairly con-

flicting views, even though the court would justifiably have made a

differem choice had the matter been before it de novo”).

17

sifting through evidence; the potential use of information

obtained under abusive interrogation techniques; the limita-

tion on discovery of classified information; the tribunal's

discretion to screen out evidence and witnesses found to be

not “reasonably available”; the inability to ascertain the

- factual basis underlying the government’s case; the govern-

ment’s low burden of proof; the admission of hearsay

evidence; and the rebuttable presumption in favor of the

government’s evidence. See DTA § 1005(b)(1), (e)(2(C)();

CSRT Procedures, encl.1 §§ B, E(2)-(3), F(5)-(6), F(8), G(2),

G(7), G(9)-(11), H(7); id., encl.3 §§ A(1), CCl), D; id,

encl.10 § B. While some of these elements might individ-

ually be justifiable under certain limited circumstances, see

Hamdi, 542 U.S. at 533-34 (plurality opinion) (giving quali-

fied approval of hearsay evidence and rebuttable presump-

tions), in the aggregate, this framework denies a detainee a

“fair opportunity to rebut the Government’s factual asser-

tions” and “present his own factual case to rebut the Gov-

ernment’s return,” id. at 533, 538.

The CSRTs’ shortcomings are hardly surprising given the

haste with which they were issued in the wake of Rasu/—and

given that the DoD itself contemplated the continuing

availability of habeas corpus as a failsafe. See CSRT Order at

1 (“[A]ll detainees shall be notified . . . of the right to seek a

writ of habeas corpus in the courts of the United States.”).

“Apparently, even on its own terms, the DoD did not intend

CSRTs to act a substitute for habeas.

One particular anecdote, recounted in an opinion rendered

by the United States District Court for the District of

Columbia below, brings the matter into focus. See Jn re

Guantanamo Detainee Cases, 355 F. Supp. 2d 443 (D.D.C.

2005). An individual was being detained on allegations that

he was “associated with a known Al Qaida operative.” /d. at

469. However, he was not told his purported associate's

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

18

view the evidence against him (if any even existed). Unable

to defend himself, and lacking independent defense counsel,

he simply denied the charges and stated: “I was hoping you

had evidence that you can give me. . . . [I]f a supervisor came

to me and showed me accusations like these, | would take

these accusations and | would hit him in the face with them.

Sorry about that.” /d. The resulting laughter by those in the

tribunal room demonstrates the absurdity of the situation. As

the district court judge noted, it would have been humorous,

had it not been so serious and “had the detainee’s criticism of

the process not been so piercingly accurate.” /d. at 470.

A process such as this, which lacks even the fundamental

indicia of a fair judicia' proceeding, demands robust habeas

review. That is, given that the procedural protections af-

forded by the CSRTs are “rudimentary at best,” Fallon &

Meltzer, supra, at 2100 & n.286, a habeas court’s duty must

be correspondingly heightened. See Hamdi, 542 U.S. at 538-

39 (plurality opinion) (calibrating scope of the habeas review

based on deficiencies in prior executive proceedings and

expecting the habeas court to “permit[] the alleged. combatant

to present his own factual case to rebut the Government’s

return” and to “engag[e] in a factfinding process”); Fallon

& Meltzer, supra, at 2098 (“[T]he appropriate scope of

review often depends on the nature of the prior executive

proceeding] .|”).'

" See also Swain, 430 U.S. at 383 (“Normally a state judge’s resolu-

tion of a factual issue will be presumed to be correct [by a federal habeas

court] unless the factfinding procedure employed by the siate court was

not adequate.” (emphasis added)); Burns v. Wilson, 346 U.S. 137, 141

(1953) (plurality opinion) (approving of limitations on habeas review of

court-martial determinations where “[r]igorous provisions guarantee a

trial as free as possible from command influence, the right to prompt

arraignment, the right to counsel of the accused’s own choosing, and the

right to secure witnesses and prepare an adequate defense”).

19

The DTA is not up to the task, notwithstanding the gov-

ernment’s assurances to the contrary. The government

contends that the various CSRT deficiencies can be addressed

by the D.C. Circuit as it ascertains whether a CSRT

“misapplied” the DoD’s specified standards and procedures.

Br. in Opp. to Cert. 17; see DTA § 1005(e)(2)(C)(i). While

this argument is not without force as to certain issues, see

Bismullah, --- F. 3d at ----, 2007 WL 2067938, at *6 & n.*

(noting that court will review pre-hearing actions taken by

CSRT staff for compliance with DoD procedures), there are

at least three concerns that resist such an easy response: the

lack of counsel, the lack of reliable process to uncover

exculpatory information, and the lack of prohibitions on

evidence adduced by coercion.

1. First, the CSRT is a “non-adversarial proceeding” at

which the detainee “shall not be represented by legal coun-

sel,” and will only have access to a “Personal Represen-

tative’—a commissioned officer who is not necessarily

trained in the law, who is appointed by the Director, who is

forbidden from acting as a detainee’s advocate, and with

whom “no confidential relationship exists.” CSRT Proce-

dures, encl.! §§ B, F(5); id. encl3 §§ A(1), C(1), D.

Although access to legal counsel is well-established as an

essential aspect of challenging one’s detention, see Hamdi,

542 U.S. at 539, the CSRTs fail to provide this fundamental

protection. As this Court has noted in other contexts, the

right to counsel is “necessary to insure fundamental human

rights of life and liberty,” given that “[t}he right to be heard

would be, in many cases, of little avail if it did not

comprehend the right to be heard by counsel.” Gideon v.

Wainwright, 372 U.S. 335, 343, 344-45 (1963) (internal

quotation marks and citations omitted).

This lack of counsel cannot be cured on review in the D.C.

Circuit. During the CSRT’s crucial factfinding stage, the

detainee will be unaided by an advocate in preparing his case,

20

discerning what evidence and witnesses to seek, and at-

tempting to digest the non-confidential evidence against him.

And it is at that stage that a detainee most needs the “guiding

hand of counsel,” id. at 345 (internal quotation marks and

citation omitted), given that the choices made will chart and

constrain the appellate court’s course on review. Rather than

being in a position to correct the absence of counsel below,

the appellate court’s ability to review the case will be

hampered by the absence of counsel below.

The D.C. Circuit’s decision in Bismullah, --- F.3d ----,

2007 WL 2067938, issued in July 2007, does not mitigate the

problem. There, the court determined that detainees chal-

lenging a CSRT decision would have access to counsel, that

the record on review would include “all the information a

|CSRT] is authorized to obtain and consider” (not just the

subset actually presented to the CSRT), and that the court can

review whether the CSRT properly determined witnesses and

evidence not to be “reasonably available.” /d at *1, *7.

Such apparent concessions, however, are of little practical

solace for the detainee who, unaided by counsel in the CSRT,

was not savvy enough to request certain witnesses or evi-

dence in the first instance. Similarly, as a detainee is unable

to draw upon classified information in the CSRT, it is little

help that, on review, counsel is given access to such in-

formation and is presumed to have a “need to know,” id. at

*1, *8—after the factfinding damage is already done.

Indeed, the court seems disinclined to allow such factual

development as might be necessary to offset the prior lack of

counsel. See id. at *7 (finding further discovery not nec-

essary “in order to challenge a CSRT’s ruling that a requested

witness or item of evidence was not ‘reasonably available’”

because “that ruling must be made on the record, which

should be sufficient to determine whether the [CSRT] acted

in accordance with the specified procedures”). In like fash-

ion, the government has made clear its view that a detainee

21

cannot adduce new evidence in his DTA court challenge. See

Pr. in Opp. to Reh’g 7 n.3 (DTA procedures “permit de-

tainces to present new evidence fo the Defense Department”

(emphasis added)). Thus, the lack of counsel as the CSRT

purports to sort out the facts injects a persistent taint that

undermines the adequacy of the D.C. Circuit’s review.

2. Second, the CSRT procedures lack standards and

safeguards for culling exculpatory information from the

various federal agencies. See Abraham Decl. $f} 10-18 (ex-

plaining the inability to discern whether agencies produce all

exculpatory evidence and noting the absence of a requirement

that staff members have legal or intelligence training). This

represents a serious deficit of due process, doing little to

“minimize the risk of erroneous decisions.” Greenholiz v.

Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 13

(1979),”°

In particular, the procedures allow government agencies

(such as intelligence organizations) to decline CSRT requests

for information, merely by providing instead a “certification

to the Tribunal that none of the withheld information would

Support a determination that the detainee is not an enemy

combatant.” CSRT Procedures, encl.! § E(3)(a). However,

there are no specified standards by which the sundry agencies

are to exercise discretion in assessing what constitutes ex-

culpatory information. See Abraham Decl. 4 16 (“The con-

tent of intelligence products, including databases, made

’ Cf Youngblood v. West Virginia, 126 S. Ct. 2188, 2190 (2006) (“A

Brady violation occurs when the government fails to disclose evidence

materially favorable to the accused|—Jeven evidence that is known only

to policy investigators and not to the prosecutor.” (internal quotation

marks and citation omitted)), Kyles v. Whitley, 514 U.S. 419, 438 (1995)

(“[T]he individual prosecutor has a duty to learn of any favorable evi-

dence known to the others acting on the government's behalf in the case,

including the police”)

22

available to case writers, Recorders, or liaison officers, was

often left entirely to the discretion of the organizations

providing the information.”); id. 9 10-16 (detailing irreg-

ularities in certification process and in collection of exculp-

atory information). Similarly, individual military comman-

ders are tasked with deciding if their subordinates are

“reasonably available,” and civilian witnesses can simply

“decline properly made requests to appear at a hearing.”

CSRT Procedures, encl.1 § G(9){a), (b).

This standardless discretion cannot be cured on review, as

the D.C. Circuit’s limited inquiry only addresses final deci-

sions of the CSRT. See DTA § 1005(e)(2)(A). In other

words, a hodgepodge of other federal agencies, military

commanders, and civilian witnesses—not a court, and not

even the CSRT—are making potentially unreviewable deci-

sions about the universe of evidence that is available to the

CSRT. As such, notwithstanding a CSRT’s full compliance

with the governing procedures, any resulting CSRT fact-

finding on a “preponderance of the evidence,” DTA

§ 1005(e)(2)(C)(i), is inherently unreliable and unworthy of

deference.*' A review premised on such an ad hoc set of

standards (or lack thereof) does not ensure the due process

necessary for a detainee to meaningfully contest his deten-

tion, as is required by an adequate habeas substitute.

Nor is it sufficient to ensure that, on review, the D.C.

Circuit will have access to all of the government’s evidence —

(including exculpatory evidence) that the CSRI is “author-

ized to obtain and consider.” See Bismullah, --- F.3d at ----,

2007 WL 2067938. at *1. In order to have a meaningful

opportunity to contest the basis of detention, the detainee

must have access to the exculpatory evidence during the

*" Cf Fallon & Meltzer, supra, at 2069 (“Modern notions of deference

to administrative decisionmakers, developed primarily in other contexts,

are in considerable tension with the historic office of the Great Writ.”).

23

initial CSRT proceedings as he formulates a Strategy and

attempts to persuade the factfinder.

3. Third, a CSRT faces no solid barriers whatsoever to

using evidence obtained under abusive conditions. The

procedures simply require the CSRT to “assess, to the extent

practicable, whether any statement derived from or relating to

such detainee was obtained as a result of coercion and the

probative value, if any, of such statement.” CSRT Proce-

dures, encl.10 § B. There is no requirement that such

statements be excluded—a shortcoming not remedied on

appeal given that the statute itself contemplates such

evidence. See DTA § 1005(b)({1). While no one suggests that

Statements taken in the context of military action be subjected

to the same level of scrutiny as if taken in the course of

routine: police actions. it is incumbent that there be some

articulated standards for assessing probity, allowing for

appropriate consideration of weighty national security con-

cerns. As currently designed, however, the CSRTs are given

no such guidance.

In short, there are several impediments to a fair and

meaningful opportunity to contest detention that are not cured

by the D.C. Circuit’s relatively constrained review. An

adequate habeas remedy cannot consist of making sure an

executive tribunal followed its own patently inadequate

rules.” Even if, by promulgation of certain regulations, the

executive branch remedied several of these procedural

* Nor is it dispositive, as the government suggests, that the DTA

permits the D.C. Circuit to determine whether the CSRTs’ standards and

procedures are consistent with the Constitution and laws of the United

States. See Br. in Opp. to Cert. 17; DTA § 1005(e)(2(C)ii). Where, as

here, the mechanism for reviewing detention as currently enacted by

Congress and implemented by the DoD is, on its face, an insufficient

substitute for habeas corpus, such a mechanism does not suddenly become

adequate simply by providing an additional forum where its flaws can be

identified.

24

deficiencies, the detainee still would be dependent on the

discretion of the executive. Congress has not spelled out the

precise framework for the CSRTs (and ARBs)—except that

they must “provide for periodic review of any new evidence”

and must, “to the extent practicable, assess” the probative

value of any statements resulting from coercion, DTA

§ 1005(a)(3), (b)(1)}—and has, instead} entrusted the DoD to

fill in the gaps, see id. § 1005(a)(1)(A). And the DoD is free

to alter the procedures at will. See id. § 1005(c); CSRT

Procedures § 3. Such a flimsy and ephemera! set of pro-

cedural safeguards is an inadequate substitute for habeas.

C. The Framework Lacks an Imperative Remedy

Finally, the DTA does not provide either the CSRTs or the

D.C. Circuit with the power to order the release of individuals

whose indefinite detentions are unlawful. At its core, the

writ’s function is “to afford a swift and imperative remedy in

all cases of illegal restraint upon personal liberty.” Price v.

Johnston, 334 U.S. 266, 283 (1948) (emphasis added). As

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

release from. unlawful physical confinement . . . was thus an

integral part of our common-law heritage.” Preiser v.

Rodriguez, 411 U.S. 475, 485 (1973). This is reflected, for

example, in the federal statute providing post-conviction

relief for federal convicts (as a substitute to habeas under

§ 2241): if the sentence is illegal, the court is authorized to

“discharge the prisoner” after “vacat[ing] and set(ting] the

judgment aside.” 28 U.S.C. § 2255. While, over time, the

writ may have expanded, a claim for “‘immediate release’ . . .

lies at ‘the core of habeas corpus.””. Wilkinson v. Dotson, 544

U.S. 74, 79 (2005) (quoting Preiser, 411 U.S. at 482, 487).

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

even if it determines that the detainee is not an enemy

combatant. As implemented, if the CSRT “determines that

the detainee shall no longer be classified as an enemy

25

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

forwarded “in order to permit the Secretary of State to

coordinate the transfer of the detainee with representatives of

the detainee’s country of nationality for release or other

disposition consistent with applicable laws,” CSRT Pro-

cedures, encl.1 § 1(9) (emphases added), and “consistent with

domestic and international obligations and the foreign policy

of the United States,’ CSRT Order § i. Also, the “im-

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

Procedures § 3. The lack of an imperative remedy is ap-

parent from this permissive language.”

Accordingly, in the absence of statutory constraints, there

is ample wiggle room for continued detention at the dis-

cretion of executive officials—who are under no obligation to

reach an agreement with the host countries at all, let alone in

an expeditious fashion. By claiming it has not received

adequate assurances from the home countries to address

security risks posed by the individuals to be released, the

executive branch can refrain indefinitely from actually re-

leasing the detainees." Moreover, as noted above, a find-

ing of non-enemy combatant status might result in nothing

more than a new CSRT. Boumediene, 476 F.3d at 1006-07

(Rogers, J., dissenting).

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

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

3 In similar fashion, ARBs offer little remedial hope. See Memoran-

dum from Gordon England, Deputy Sec’y of Def., to the Scc’ys of the

Military Dep’ts et al., Revised Implementation of Administrative Review

Procedures, encl.3 § I(b) (July 14, 2006): id., encl.4 § S(c)-(d). Cf 18

U.S.C. § 4203 (explicitly authorizing U.S. Parole Commission to “grant

... an application [for] parole” with respect to certain offenders).

** See Dep't of Defense, News Release. Detainee Transfer announced

(July 16, 2007) (discussing 80 detainees still in custody despite being

“designated for release or transfer’).

26

concludes that the CSRT’s procedures were improper—that

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

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

that the “standards and procedures” are inconsistent with the

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

given authority “to determine the validity of any final

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

In other statutory schemes, Congress has explicitly em-

powered courts to order release, e.g. 28 U.S.C. § 2255

(authorizing court to discharge federal convict), or, more

generally, to compel agency action, e.g., 5 U.S.C. § 706(1)

(authorizing court to “compel agency action unlawfully with-

held or unreasonably delayed”). Tellingly, it has not done so

here. In fact, the government has acknowledged implicitly

that, under the DTA, the D.C. Circuit can only remand to the

CSRT, not order release. Br. in Opp. to Reh’g 7. Voiding the

CSRT’s decision would thus apparently leave the detainee in

his ex ante position—i.e., detained.”°

In sum, lacking an imperative remedy to cure unlawful

detention, these procedures are not an adequate substitute for

the Great Writ. As has been the case over the last five years,

the resulting “indefinite detention of an alien” represents a

“serious constitutional problem,” Zadvydas, 533 U.S. at 690,

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

(Kennedy, J., concurring).

** Moreover, the DTA’s statutory review provisions do not allow the

D.C. Circuit to step in when the government refuses to release a detainee

that has received a favorable CRST decision. See DTA § 1005{e)(2(A)

(authorizing court to “determine the validity of any final decision of a

{CSRT] that an alien is properly detained as an enemy combatant”

(emphasis added)). That is, a detainee cannot challenge whether the

government's asserted reasons for continued detention (e.g., inability to

secure agreement from a destination country) are instead mere pretense or

the result of a lack of diligence.

27

At the end of the day, Congress is, of course, capable of

amending the statute to prescribe a framework commensurate

with traditional habeas review. Indeed, efforts statutorily to

specify CRST procedures are underway. See, e.g., S. Amdt.

2011, 110th Cong. § 1023(a) (proposed July 9, 2007) (sub-

stitute amendment to H.R. 1585).”° However, this Court

should provide guidance to legislators and clarify that

although the detainees’ legal authority to petition for habeas

may be statutorily removed, Congress must—at a mini-

mum—establish a constitutionally adequate procedure to

enable the Guantanamo prisoners to challenge the legality

their detentions. While Congress will undoubtedly continue

to work its will, it is incumbent upon this Court to provide

appropriate constitutional guidance and to restore habeas to

its rightful place. By making clear that certain constitutional

minimums apply, this Court will preserve Congress’ role in

mapping out the path forward while simultaneously allowing

the detainees the opportunity to be heard and to advance the

merits of their individual cases without further delay.

After all, these detainees are not “some undefined, limitless

class of noncitizens who are beyond our territory.” United

States v. Verdugo-Urquidez, 494 U.S. 259, 275 (1990)

(Kennedy, J., concurring). They are 360 individuals who

“face continued detention, perhaps for life,” and, even though

aliens are “subject to limitations and conditions not applicable

to citizens,” they are nonetheless entitled to a “fair hearing

under lawful and proper procedures.” Zadvydas, 533 U.S. at

718 (Kennedy, J., dissenting); see also Hamdi, 542 U.S. at

*° Among other things, the proposed legislation specifies that a

detainee appearing before a CSRT is entitled to legal counsel; may “com-

pel witnesses to appear and testify and to compel the production of other

_ evidence”; and may cross-examine witnesses against him. S. Amdt. 2011,

§ 1023(a) (amending DTA § 1005(b)). Furthermore, it requires a CSRT

President to be a military judge and prohibits a CSRT from considering a

Statement resulting from torture. /d

28

530 (plurality opinion) (“[A}n unchecked system of detention

carries the potential to become a means for oppression and

abuse of others who do not present [an immediate] threat [to

the national security of the United States during ongoing

international conflict].”). We do not shield our eyes from the

danger those interned at Guantanamo may present. But

neither can we blind ourselves to the shunting aside of

our constitutional values. Our-nation is strong, our Con-

stitution revered, precisely because our laws apply equally to

all persons—regardless of how heinous their actions may

have been.

In an address at Buffalo Law School in 1951, Justice

Jackson warned that “suspension of privilege of the writ of

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

Robert H. Jackson, Wartime Security and Liberty Under Law,

1 Burr. L. Rev. 103, 109 (1951). In the most recent iteration

of that same lecture series, another federal judge appro-

priately echoed these sentiments: “[T]he Great Writ and the

liberty interests that it represents are supported by balanced

power in government and chailenged when power is unbal-

anced and unchecked.” James Robertson, Quo Vadis, Habeas

Corpus?, 55 Burr. L. REV. (forthcoming 2008). To avoid an

incongruous legal “black hole” at Guantanamo, this Court

should strike down the MCA’s illegal suspension of the Great

Writ and allow Congress to establish procedures consistent

with what national security and the Constitution require.

ie

29

CONCLUSION

This Court should reverse the iudgment of the court of

appeals and remand for further proceedings.

Respectfully submitted,

SENATOR ARLEN SPECTER *

Ranking Member

SENATE JUDICIARY COMMITTEE

152 Dirksen Senate Off. Bldg.

Washington, DC 20510

* Counsel of Record (202) 224-5225

August 24, 2007