Amicus Curiae Brief — Al Odah v. United States (Nos. 06-1196, 06-1195)

FILED

Tie 6D | M624 207

No. 06-1196 | OFFICE OF THE CLEP

IN THE

Supreme Court of the Anited States

October Term, 2007

KHALED A. F. AL ODAH, FT AL..,

Petitioners,

Vv.

UNITED STATES OF AMERICA, EFT AL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONERS

DAVID OVERLOCK STEWART

Counsel of Record

Ropes & GRAY LLP

One Metro Center

700 12th Street N.W.

Suite 900

Washington, D.C. 20005

AUGUST 24, 2007 (202) 508-4600

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST OF AMICI CURIAE....... |

SUMMARY OF ARGUMENT ......cccccccscssssssssssseesecessessssevee

I ee a 2

[. The Framers Intended The Habeas Guarantee

As An Essential Check On The Federal

ILLITE LL LO TED 2

Il. |The Habeas Clause Creates A Judicially

Enforceable Guarantee Which Congressional

Action Cannot Eliminate.............0........0...000.000 12

EARS TR LN Es De PTS Re a 20

ESC Te: SA RATS ln aD ee ne en A la

TABLE OF AUTHORITIES

Cases Page

Ex parte Bollman,

SR MEET nsicinncsietstnnsinsintictidntetaianniniipinncinttinnainidanad 14,19

Boumediene v. Bush,

476 F.3d 981 (D.C. Cir. 2007) .0...........ccceceeeeseeeeees 6,7, 13

In re Burr,

|, _____ T NNT om TNE RN ET 0 18

In re Burrus,

Se a: STITT ccirssiectteseintritbicincetinisrntanteniniuestnbianatiiesabidiiidiiia 15

CBS, Inc. v. Democratic National Committee,

ee ee eicictesnitinhitinctitatinalescssiitaticcisbdienaiateinitadtingsl 11

Carmell v. Texas,

SN A ci eeticescniiciatiiienlealaiiceaialianainla 10

Cummings v. State of Missouri,

ee ea ai eacien sitcslinricainteniinapsnabionbiiniaidnadeiaiaidal 10

Fong Yue Ting v. United States,

I iciciinpecintssitstniccciisiniavercnaminetiineceiiiis 11

INS v. St. Cyr,

| eT 12, 13, 16, 17

Insurance Corp. of Ireland, Lid. v. Compagnie des

Bauxites de Guinee, 456 U.S. 694 (1982)...............06. 13

Johnson v. Avery,

Pe ee eR sicetnsesincsnesinnscinntncnmeniinenmtinintin 14, 15

Jones v. Cunningham,

indie ngeeinnininnnnipetinaicnmibebienns 15, 16

Marbury v. Madison,

a nlcinnagantelinciiiimoniniiolts 17

McCulloch v. Maryland,

sae lisentanleiionniniing 4,18

McNally v. Hill,

I saltalacernipeloe 12

Ex parte Milligan, J :

71 a a inci ineaiinsiacaciaueenbice 12

Ex parte Mitsuye Endo,

I alana 15

Rasul v. Bush,

sai cidcaltaheindcensipniendeniieion 12, 15

Sanders v. United States,

I incited cincindeiidinniatininbibiels 16

Stogner v. California,

EET TE I ry MA MER et 9,10

United States v. Brown,

I iaciacincilndidihnentasitniiaisiiliite 9, 10, 20

United States v. Lovett,

TESS IR ee ec ne ee Le See 7

Weaver v. Graham,

EE PN i MPF POON Te A RT wv)

iV

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Alien Act, ch. 58, 1 Stat. 570 (1798)

CUEING BUD Bi, Ti rcrerccsscnsnccssesatiininindsieiiainnidaigiuaimaa 10

The Alien Enemies Act, ch. 66, 1 Stat. 577 (1798) ............ 10

The Naturalization Act, ch. 54, 1 Stat. 566 (1798) (repealed

by Act of Apr. 14, 1802, ch. 28, § 5, 2 Stat. 153, 155)....... 10

The Sedition Act, ch. 74, | Stat. 596 (1798)

CORI SEIT, FSET OD ecccccescsconssnsstctustemeeniottesteniiiamuaia 10

tg. Fe Ee ef mn rr 18

eRe FF Fe EE | eee ee 18

UE fe FS | Rae 4,18

RRs FF Fem 7,18

3 os FR & fener 18

BOOKS AND LAW JOURNALS

6 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE

CONSTITUTION 1359 (John P. Kaminski & Gaspare J.

REIN GE, FIED sc cevcecoiocenninsensntctnsehnntinameicaiammimganaaiaial 8

WILLIAM’F, DUKER, A CONSTITUTIONAL HISTORY OF

HABEAS CORPUS (1980) ............c.ccceceeseseceseeeseeeereereee 5,6,7,8

4 J. ELLIOT, DEBATES ON THE ADOPTION OF THE FEDERAL

CORR T ETE TAN CB E.. BR Pocccsccscccsccnssccedenssensniscsmsiienminiiinin 11

STANLEY ELKINS AND ERIC MCKITRICK, THE AGE OF

PARA CF i cccnivccccsstintesesssteiniiniemimamsenein 11

MAX FARRAND, THE RECORDS OF THE FEDERAL

CONVENTION OF 1787 (1911) ..........cccccesececesseeecseeeecenees passim ~

Eric M. Freedman, The Suspension Clause in the Ratification

Debates, 44 BUFFALO L. REV. 451 (Spring 1996) ................ 4

Eric M. FREEDMAN, HABEAS CORPUS: RETHINKING THE

GREAT WRIT OF LIBERTY (2001 ).........000000ccccccccecceceeeeeeeenees 14

Eric M. Freedman, Milestones in Habeas Corpus Part I, Just

Because John Marshall Said It, Doesn't Make It So: Ex

Parte Bollman and the Illusory Prohibition on the Federal

Writ of Habeas Corpus for State Prisoners in the Judiciary

Act of 1789, 51 ALA. L. REV. 531 (Winter 2000) ..... 9, 14, 19

3 CHARLES GORDON & STANLEY MAILMAN, IMMIGRATION

LAW AND PROCEDURE 71.01[1] (rev. ed. 1997) ..00.00.. I]

JAMES GRANT, JOHN ADAMS: PARTY OF ONE (2005).......... 11

JAMES MADISON: WRITINGS 622 (Jack Rakove ed.,

a ssestumsbentonastence I

RICHARD B. MorRIS, THE FORGING OF THE UNION, | 781-

ESSENSE RRS 2

ALLAN NEVINS, THE AMERICAN STATES DURING AND AFTER

THE REVOLUTION 1775-1789 (1969, originally 1924) .......... 2

6 THE PAPERS OF JOHN MARSHALL 486 (Charles F. Hobson,

SETS EL CO 17

Francis Paschal, The Constitution and Habeas Corpus,

EL 6, 14

vi

J.W. RANDOLPH, THE VIRGINIA REPORT OF 1799-1800:

TOUCHING THE ALIEN AND SEDITION LAWS (1850)............. 1!

Frederick A.O. Schwarz, Jr., The Constitution Outside the

Courts, 14 CARDOZO L. REV. 1287 (April 1993)................ 11

ADDITIONAL AUTHORITIES

THE FEDERALIST No. 44 (James Madison) (Clinton Rossiter

Sic See iecstentinsssitaiinniniassatcininibiasiciieiidestidainsisinisitehdipiitinaiiatiiintaiandapiuatiaal 9

THE FEDERALIST No. 82 (Alexander Hamilton) (Clinton

SE IEIITalthas SHITE sisctesntenienieniinatpthiaisiitntaihinibeniianainaniimpeiideaials 18

THE FEDERALIST No. 83 (Alexander Hamilton) (Clinton

ace 12

THE FEDERALIST No. 84 (Alexander Hamilton) (Clinton

SIC, SITE cancitnnntncnnitrsciinieninsmsdnnnnnnitenittieiniianiibadiiel 9,10

Letter from James Madison to Thomas Jefferson (Aug. | 2,

1786), reprinted in 9 PAPERS OF JAMES MADISON 93 (Robert

A. Rutland & William M.E. Rachal eds., 1975)................... 2

Letter from George Washington to James Madison (Nov. 5,

1786), reprinted in 4 THE PAPERS OF GEORGE WASHINGTON

331, available at http://gwpapers.virginia.edu/documents/

constitution/ 1784/madison2. html ...................c0cccceceseeeeeeeees 2

Letter from James Madison to Thomas Jefferson (Mar. 19,

1787), reprinted in 9 PAPERS OF JAMES MADISON 93(Robert

A. Rutland & William M.E. Rachal eds., 1975)................... 2

vil

Letter from Thomas Jefferson to James Madison (Dec. 20,

1787), reprinted in 8 DOCUMENTARY HISTORY OF THE

RATIFICATION OF THE CONSTITUTION 250 (John P. Kaminski

& Gaspare J. Saladino eds., 1984) .0..........cccccecceceeeeeeeeeeeeeees 8

Letter from Thomas Jefferson to Alexander Donald (Feb. 7,

1788), reprinted in 8 DOCUMENTARY HISTORY OF THE

RATIFICATION OF THE CONSTITUTION 3542 THE ADAMS-

JEFFERSON LETTERS 329 (John P. Kaminski & Gaspare J.

i a ses enbeenienehineiemgamiies 8

Letter from Thomas Jefferson to James Madison (June 7,

1798), reprinted in 8 THE WORKS OF THOMAS JEFFERSON

431 (Paul Leicester Ford ed., 1904)... cceeceeeeeeeeeees 1]

Letter from John Adams to Thomas Jefferson (June 14,

1813), reprinted in 2 THE ADAMS-JEFFERSON LETTERS 329

gE i]

James Otis, The Rights of the British Colonies Asserted and

Proved, (1764), reprinted in | PAMPHLETS OF THE AMERICAN

REVOLUTION 444 (Bernard Bailyn, ed. 1965)............. init 3

——

l

STATEMENT OF INTEREST OF AMICI CURIAE’

Amici Curiae are scholars who have studied and

taught the history of our government and Constitution. Our

studies have convinced us that the Constitution incorporated

the Great Writ of habeas corpus as a fundamental protection

against the passions of the legislative and executive

branches. We offer our understanding of the history of the

habeas guarantee because of the importance of the issues

framed in this Court’s Order of June 29, 2007, and

particularly because the court of appeals’ ruling in this case

largely ignored the historical roots of the constitutional

habeas guarantee. Because it ignored those historical roots,

the decision below failed to protect the habeas guarantee that

is so essential to our system of checks and balances. '

SUMMARY OF ARGUMENT

The court of appeals’ interpretation of the Military

Commissions Act of 2006 and of the habeas guarantee would

undermine the Great Writ, perhaps fatally, as a check on

unlawful government conduct. In this brief, we demonstrate

that the Framers precluded the government from suspending

the writ of habeas corpus except in narrowly limited

circumstances (“invasion” or “rebellion”’) which the

government has not argued are presented by this case. We

derive this conclusion from the deliberations of the

Philadelphia Convention of 1787 and the state ratifying

conventions, from the placement of the guarantee in Article

I, Section 9, and from the constitutional text itself. These

factors underscore that the constitutional habeas guarantee

was carefully insulated from manipulation by _ the

* All parties consent to the filing of this Amicus Curiae brief.

' Pursuant to Rule 37.6, the amici state that no counsel for any party

authored this brief in whole or in part, and no person or entity other than

the amici curiae made a monetary contribution to the preparation or

submission of this brief.

2

government. Consistent with this original purpose, the

courts have been firm in their enforcement of the

fundamental constitutional constraints established by the

habeas guarantee in Article !, Section 9.

ARGUMENT

I. The Framers Intended The Habeas Guarantee As

An Essential Check On The _ Federal

Government’s Power.

For the fifty-five delegates to the Philadelphia

‘Convention in 1787, the principal goal was to replace a

charter of government that was far too weak. Under the

Articles of Confederation in the 1780’s, the United States

was more of an alliance than a nation. States had their own

currencies, their own trade policies, and fought border wars

with one another.” Each state cast a single vote in Congress,

which was the only organ of national government. The

Articles established neither a national executive nor national

courts. In late 1786, George Washington lamented “the

consequences of lax or inefficient government,” adding,

“{t]hirteen sovereignties pulling against each other, and all

tugging at the federal head, will soon bring ruin on the

whole.”

Still, after bitter experience with British rule the

Convention delegates also knew that a strong government

? Letter from James Madison to Thomas Jefferson (Aug. 12, 1786),

reprinted in 9 PAPERS OF JAMES MADISON 93, 96-97 (Robert A. Rutland

& William M.E. Rachal eds., 1975); Letter from James Madison to

Thomas Jefferson (Mar. 19, 1787), reprinted in id. at 317-321; ALLAN

NEVINS, THE AMERICAN STATES DURING AND AFTER THE REVOLUTION

1775-1789 570, 603-604, 659 (1969, originally 1924). See generally

RICHARD B. MORRIS, THE FORGING OF THE UNION, | 781-1789 (1987).

* Letter from George Washington to James Madison (Nov. 5, 1786),

reprinted in 4 THE PAPERS OF GEORGE WASHINGTON 331, available at

http://gwpapers. virginia.edu/documents/constitution/

1784/madison2.html.

3"

can become a tyranny that makes short work of individual

liberties. As James Madison wrote, “[t]he accumulation of

all powers, legislative, executive, and judiciary, in the same

hands, whether of one, a few, or many, and whether

hereditary, self-appointed, or elective, may justly be

pronounced the very definition of tyranny.” To balance

their desire for a vigorous government against their fear of

governmental power, the Framers developed a government

of enumerated, rather than general, powers. The writ of

habeas corpus was an important element in striking that

balance. At the same time, however, the Framers were intent

upon laying claim to all the rights of English subjects, central

among which was the ancient Writ of Habeas Corpus, which

Parliament enacted into a statute in 1679. °

During the first ten weeks of deliberations, the

delegates adopted broad powers for the new legislature: “to

legislate in all cases for the general interests of the Union,

and also in those cases to which the States are separately

incompetent, or in which the harmony of the United States

may be interrupted by the exercise of individual

legislation.” They then moved consistently to constrain that

legislative power. Indeed, while still in the first week of

debate, John Rutledge of South Carolina, had insisted on an

“exact enumeration” of legislative powers, a demand he

renewed on July 16.’ His protests were supported by other

* THE FEDERALIST NO. 47, at 301 (James Madison) (Clinton Rossiter ed..

1961).

* James Otis, The Rights of the British Colonies Asserted and Proved,

(1764), reprinted in | PAMPHLETS OF THE AMERICAN REVOLUTION 444

(Bernard Bailyn, ed. 1965) (Otis wrote in 1764 that every colonist was

“entitled to all the natural, essential, inherent, and inseparable nights of

our fellow subjects in Great Britain.”’).

®° 2 MAX FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF

1787, at21 (1911).

” 1 FARRAND, at 53; 2 FARRAND, at 17.

EEE

4

South Carolinians, including Charles Pinckney and Pierce

Butler.

At the end of July, Rutledge gained the opportunity

to implement his objection to broad congressional powers.

While the Convention took an eleven-day recess, a five-

member Committee of Detail was appointed to assemble a

draft constitution based on the nineteen skeletal resolutions

the delegates had approved. Rutledge was chair of the

committee, which promptly jettisoned the broad grant of

general legislative power. In its place, Rutledge and his

committee inserted a list of eighteen enumerated, specific

powers.® Though some have proved over the years to be

extensive, the message was plain that the new legislature

should have only defined powers.”

When the delegates reconvened on August 6, 1787,

this fundamental transformation of legislative powers drew

no comment. Indeed, it survived to the final Constitution,

while through the last five weeks of the Convention the

delegates explored additional ways to control the powers of

the new government. That exploration included the addition

of the habeas guarantee. '°

Habeas corpus had first been mentioned at the

Convention in Charles Pinckney’s “Draught of a Federal

Government,” which was submitted on May 29, 1787, four

* U.S. CONST. art. I, § 8.

® See McCulloch v. Maryland, \7 U.S. 316, 405 (1819) (Marshall, C.J.)

(“This government is acknowledged by all to be one of enumerated

powers. The principle, that it can exercise only the powers granted to it,

would seem too apparent to have required to be enforced by all those

arguments which it enlightened friends, while it was depending before

the people, found it necessary to urge. That principle is now universally

admitted.”).

" Eric M. Freedman, The Suspension Clause in the Ratification Debates,

44 BUFFALO L. REV. 451, 459-460 (1996).

——

5

days after the Convention was called to order. Although

Pinckney’s proposal was put to the side, and never

specifically discussed by the delegates, it had been shared

with other delegates and submitted to Rutledge’s Committee

of Detail.'' The Convention specifically referred the habeas

issue to the Committee of Detail on August 20, the day on

which Pinckney proposed on the Convention floor that:

The privileges and benefits of the Writ of

Habeas corpus shall be enjoyed in this

Government in the most expeditious and

ample manner; and shall not be suspended

by the Legislature except upon the most

urgent and pressing occasions, and for a

limited period not exceeding . . . months.’

The Committee of Detail never reported on the

habeas issue. Instead, Pinckney raised it again by motion

eight days later, in a simplified version. Rutledge was not

satisfied with it. Declaring that the individual’s mght to the

habeas writ should be “inviolable,” he criticized that part of

Pinckney’s motion that would have allowed suspension of

the habeas guarantee “on the most urgent occasions, and then

only for a limited time, not exceeding twelve months.”

'' WILLIAM F. DUKER, A CONSTITUTIONAL HISTORY OF HABEAS CORPUS

127-128 (1980); 3 FARRAND, at 595 (APPENDIX D THE PINCKNEY

PLAN). After the Convention, Pinckney issued two different versions of

his plan. One was published in late 1787, and the other was submitted in

_ 1818 to the then-Secretary of State John Quincy Adams when the latter

was assembling the government’s archive of Convention-related

documents. Madison said that both Pinckney drafts varied from the one

presented at the Convention, an objection borne out by an apparent

version of the actual Pinckney plan that was found in papers of James

Wilson of Pennsylvania. All three versions, though, include a habeas

corpus guarantee. 3 FARRAND, at 602-604.

'? 2 FARRAND, at 341.

6

Rutledge could imagine no justification, ever, for a

nationwide suspension of habeas corpus."

Gouverneur Morris of Pennsylvania. attempted to

bridge the gap between Pinckney’s proposal and Rutledge’s

demand for an even stronger habeas provision. Morris

offered an amendment that would narrow the nmght to

suspend habeas to “cases of rebellion or invasion.”'* James

Wilson of Pennsylvania sided with Rutledge, arguing that

there would never be a need to permit “suspension” of the

habeas guarantee on a general basis, since judges would

decide the merits of any individual prisoner’s case.'* The

habeas guarantee itself was approved unanimously. The

clause permitting suspension of habeas, even in Morris’s

narrower language, passed by a 7-3 margin. The dissenting

states (South Carolina, North Carolina, and Georgia)

evidently opposed granting any authority for Congress to

suspend the writ.'°

The location of the habeas guarantee in the

Constitution also is significant. Pinckney proposed to add

the habeas guarantee to the judiciary provision (then Article

XI) of the draft constitution that had been produced by the

Committee of Detail.'’ In early September, Gouverneur

Morris reorganized the draft as a member of the Committee

of Style. Morris placed the habeas guarantee in Article I,

Section 9, with several other restrictions on Congress that

'3 Id. at 438.

4 Id.

'S Id

'© fd. Although the majority ignored this drafting history, Judge Rogers

cited it correctly in her dissent. Boumediene v. Bush, 476 F.3d 981, 998

(D.C. Cir. 2007). The history demonstrates, as Judge Rogers noted, that

the Framers intended the habeas guarantee to provide a limited ability to

suspend the writ in very specific circumstances not presented in this case.

'? DUKER, at 128; Francis Paschal, The Constitution and Habeas Corpus,

1970 DUKE L.J. 605, 609-610.

-

had been added in the late weeks of the Convention,

including the prohibitions against export taxes, bills of

attainder, and ex post facto laws.'* The placement of the

habeas guarantee thus reflected the Convention’s resolve that

the right to habeas corpus would not be defined by Congress.

Rather, it is an inherent right of the people against Congress,

and thus it relies particularly on the judiciary to enforce it.'®

Morris’s final language, never amended, 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.””°

This review of the Convention’s deliberations

reinforces the importance of the habeas guarantee in two

respects. First, the habeas guarantee was part of the

delegates’ central determination that the new government

would be one of enumerated, not general, powers. Indeed,

that determination was spurred by the same delegates from

South Carolina — Rutledge and Pinckney — who were the

most aggressive advocates of the habeas guarantee. Second,

the delegates narrowed the circumstances in which the

habeas guarantee might be suspended to only two: rebellion

'S 2 FARRAND, at 596.

"9 Id. at 435; DUKER, at 131-132; United States v. Lovett, 328 U.S. 303,

314 (1946) (recognizing that the Court’s exercise of jurisdiction over

Congressional action is essential) (quoting THE FEDERALIST NO. 78

(Alexander Hamilton)). In her dissent below, Judge \Rogers

acknowledged the importance of Lovett in noting that this Court has long

held that the limitations on Congressional power found in Article 1,

Section 9, create justiciable controversies. Boumediene, 476 F.3d at 996.

The dissent understood that the placement of the habeas guarantee

alongside the bill of attainder and ex post facto clauses was intentional

and a “conscious determination of a limit on Congress’s powers,” which

the judiciary must enforce, much like the Commerce Clause. /d. at 998.

By dismissing the dissent’s reference to Lovett as “particularly baffling,”

the majority missed the point. /d. at 993.

*° LS. CONST. art. I, § 9, cl. 2.

8

or invasion. Those triggering events may readily be

determined and enforced by the courts.

__ This latter point emerged in the ratification debates in

Massachusetts.. Worcester County delegate John Taylor

objected that there was no limit on the length of time that the

writ might be suspended. In response, Judge Francis Dana

stressed the narrowness of the suspension clause: “[The]

safest and best restriction arises from the nature of the cases

in which Congress are authorized to exercise that power at

all, namely, in those of rebellion or invasion. These are clear

and certain times, facts of public notoriety, and whenever

these shall cease to exist, the suspension of the writ must

cease also.” *!

The habeas guarantee also figured in_ post-

Convention debates over the need for a Bill of Rights, an

omission from the Constitution that was roundly criticized

by many. From his posting in France, Thomas Jefferson

raised that objection in a letter to Madison, insisting that

liberty depended on “the eternal and unremitting force of the

habeas corpus laws.” In reply to such critics, Hamilton

pointed in The Federalist to the habeas guarantee, noting that

Blackstone “is everywhere peculiarly emphatical in his

*! 6 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE

CONSTITUTION 1359 (John P. Kaminski & Gaspare J. Saladino eds.,

1984);- DUKER, at 133-134 (citing 2 J. ELLIOT, DEBATES ON THE

ADOPTION OF THE FEDERAL CONSTITUTION 108 (1845)).

”? Letter from Thomas Jefferson to James Madison (Dec. 20, 1787),

reprinted in 8 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE

CONSTITUTION 250. Indeed, during the ratification debates, Jefferson

expressed hope that the Constitution would be amended “by a declaration

of rights . . . which shall stipulate . . . no suspensions of the habeas

corpus.” Letter from Thomas Jefferson to Alexander Donald (Feb. 7,

1788), reprinted in 8 DOCUMENTARY HISTORY OF THE RATIFICATION OF

THE CONSTITUTION 354. Though the suspension clause was not

amended, Jefferson's views, like the derivation of the clause during the

Philadelphia Convention, underscore its narrow parameters.

9

encomiums on the habeas-corpus act, which in one place he

calls ‘the BULWARK of the British Constitution.””””

Hamilton also emphasized the placement of the

habeas guarantee in Article I, Section 9, next to prohibitions

against bills of attainder, ex post facto laws, and titles of

nobility. He denounced ex post facto laws as “formidable

instruments of tyranny,””> and both he and Madison feared

bills of attainder for the same reason.”° Hamilton left no

doubt, however, of the primary importance of the habeas

guarantee, observing that “the practice of arbitrary

imprisonments, have been, in all ages, the favorite and most

formidable instruments of tyranny.”*’ The Framers included

all of these prohibitions and then grouped them in Article I,

Section 9, to prevent the government from enacting arbitrary

and vindictive legislation,” from encroaching on individual

* THE FEDERALIST No. 84, at 510-512 (Alexander Hamilton) (Clinton

Rossiter ed., 1961). Overall, there was virtually no agitation for a

specific Bill of Rights amendment protecting the right to habeas corpus,

probably because the habeas guarantee in Article 1, Section 9 was

deemed adequate to ensure access to the writ. See Eric M. Freedman,

Milestones in Habeas Corpus Part 1, Just Because John Marshall Said It,

Doesn't Make It So: Ex Parte Boliman and the Illusory Prohibition on

the Federal Writ of Habeas Corpus for State Prisoners in the Judiciary

Act of 1789, 51 ALA. L. REV. 531, 555 (Winter 2000) (noting “the fact

that (with one minor exception) the states had not proposed any further

protection for [the writ of habeas corpus]. A fair conclusion is that the

ratification debates had convinced all parties that the Clause as proposed

would satisfy the aims that they shared: to protect the liberties of those

who might fall afoul of the organs of power.”).

4 THE FEDERALIST NO. 84, at 511-512 (Hamilton).

5 id at 512.

© United States v. Brown, 381 U.S. 437, 444 (1965) (quoting Hamilton);

THE FEDERALIST NO. 44, at 282 (James Madison) (Clinton Rossiter ed.,

1961).

2? THE FEDERALIST NO. 84, at 512 (Hamilton).

** Weaver v. Graham, 450 U.S. 24, 29 (1981); Stogner v. California, 539

U.S. 607, 611 (2003).

10

rights, and from usurping the power of other branches of

government.” All of those constitutional guarantees,

Hamilton proclaimed, were “great{] securities to liberty and

republicanism.”

The importance of the habeas guarantee to the

founding generation was reinforced a decade after

ratification, during the dispute over.the Alien and Sedition

Acts.°*' In 1798, Madison argued that those statutes worked

an unconstitutional suspension of the Great Writ. In his

Report on the Virginia Resolution Conceming the Alien and

Sedition Laws, he noted that under the Alien Act the writ of

habeas corpus could be suspended even though there was no

rebellion or invasion:

In the administration of preventive justice,

the following principles have been held

sacred: that some probable ground of

suspicion be exhibited before some judicial

authority; . . . . that [a prisoner] may have

the benefit of a writ of habeas corpus, and

thus obtain his release if wrongfully

confined; and that he may at anytime be

discharged from his recognizance, or his

*? See Cummings v. State of Missouri, 71 U.S. 277, 286 (1867)

(explaining that the guarantee against ex post facto laws is one of the

critical protections against federal as well as state power); Brown, 381

U.S. at 442 (explaining that the Bill of Attainder clause was included in

the © stitution to implement the separation of powers and prevent the

“legislative exercise of the judicial function.”); see also Stogner, 539

U.S. 607 at 615; Carmell v. Texas, 529 U.S. 513, 520 (2000).

*° THE FEDERALIST NO. 84, at 511 (Hamilton).

*' The Acts collectively known as the Alien and Sedition Acts are as

follows: The Sedition Act, ch. 74, | Stat. 596 (1798) (expired Mar. 3,

1801); The Alien Act, ch. 58, | Stat. 570 (1798) (expired June 25, 1800);

The Naturalization Act, ch. 54, | Stat. 566 (1798) (repealed by Act of

Apr. 14, 1802, ch. 28, § 5, 2 Stat. 153, 155); The Alien Enemies Act, ch.

66, | Stat. 577 (1798).

confinement, and restored to his former

liberty and rights, on the order of the proper

judicial authority, if it shall see sufficient

cause.”

Madison argued the Alien Act wrongfully permitted the

President to suspend the writ of habeas corpus, “although the

Constitution ordains that it shall not be suspended unless

when the public safety may require it, in case of rebellion or

invasion,--neither of which existed at the passage of the

act.”’? Likewise, Thomas Jefferson characterized the statute

as “palpably in the teeth of the Constitution.’ The protests

against the Alien Act stirred such public uproar against any

suspension of habeas corpus that President Adams never

enforced the law.” Judges in later eras joined the

denunciation of the statute.”

*2 JAMES MADISON: WRITINGS 622 (Jack Rakove ed., 1999); 4 J. ELLIOT,

' DEBATES ON THE ADOPTION OF THE FEDERAL CONSTITUTION 555 (2d ed.

1836) (em aasis added).

> 4 J. ELuior, at 555; J.W. RANDOLPH, THE VIRGINIA REPORT OF 1799-

1800: TOUCHING THE ALIEN AND SEDITION LAWS 204 (1850).

* Letter from Thomas Jefferson to James Madison (June 7, 1798),

reprinted in 8 THE WORKS OF THOMAS JEFFERSON 431, 434 (Paul

Leicester Ford ed., 1904).

*® See, e.g. Frederick A.O. Schwarz, Jr., The Constitution Outside the

Courts, 14 CARDOZO L. REV. 1287, 1298 (April 1993); see also JAMES

GRANT, JOHN ADAMS: PARTY OF ONE (2005); STANLEY ELKINS AND

ERIC MCKITRICK, THE AGE OF FEDERALISM (1993), 3 CHARLES GORDON

& STANLEY MAILMAN, IMMIGRATION LAW AND PROCEDURE 71.01[1]

(rev. ed. 1997) (the Alien Act “was never enforced”); Letter from John

Adams to Thomas Jefferson (June 14, 1813), reprinted in 2 THt ADAMS-

JEFFERSON LETTERS 329 (Lester J. Cappon ed., 1959) (stating that the

Act “was never executed by me in any instance”).

© See CBS, Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 156-157

(1973) (Douglas, J., concurring) (“The Alien and Sedition Acts, | Stat.

566, 570, 596, passed early in our history were plainly unconstitutional,

as Jefferson believed.”); Fong Yue Ting v. United States, 149 U.S. 698,

746-750 (1893) (Field, J., dissenting) (The Alien Act was “severely

12

II. The Habeas Clause Creates A _ Judicially

Enforceable Guarantee Which Congressional

Action Cannot Eliminate. .

Unlike the court of appeals, the Framers understood

that the courts must protect the habeas guarantee if it is to

serve as an effective check on government power. Hamilton

in The Federalist insisted on the judicial role, asserting that

“trial by jury in criminal cases, aided by the habeas corpus

act . . . [i]s provided for, in the most ample manner.’

Courts, including this Court, have implemented the Framers’

intent that the habeas clause not be undermined by statute.

This Court’s decisions have noted carefully that the

constitutional right to habeas corpus stands independent of

those rights created by statute, though the Court has had no

occasion to define the scope of the constitutional right.**

Indeed, this Court has given a narrow reading to habeas-

restricting statutes in order to avoid such constitutional

questions, effectively affirming that the constitutional nght

stands separate from any enabling statute.”

—_

The court of appeals held that the Military

Commissions Act of 2006 completely eliminates the

denounced by many of [America’s] statesmen and jurists as

unconstitutional and barbarous.”).

? THe FEDERALIST NO. 83, at 499 (Alexander Hamilton) (Clinton

Rossiter ed., 1961).

*® See, e.g., Rasul v. Bush, 542 U.S. 466, 477 (2004) (acknowledging the

separate status of the habeas constitutional nght); /NS v. St. Cyr, 533

U.S. 289, 305 (2001) (rejecting a statutory interpretation that would strip -

the courts of habeas jurisdiction in violation of the Constitutional habeas

guarantee); McNally v. Hill, 293 US. 131, 135 (1934) (Court

acknowledged that use of writ as an incident of federal judicial power ts

implicitly recognized by Constitution, but failed to specify scope of

writ); Ex parte Milligan, 71 U.S. 2, 130-31 (1866) (discussing the

distinction between a suspension of the privilege of the writ and

suspension of the writ itself).

* See, e.g., St. Cyr, 533 US. at 305.

13

Petitioners’ right to bring a habeas corpus proceeding,

concluding that Congress has the right to “clearly eliminate{}

all ‘jurisdiction to hear or consider an application for a writ

of habeas corpus’ by a detainee, whatever the source of that

jurisdiction.” This extreme view conflicts with the

Framers’ plain intent (as explained above) to provide a

critical restraint on government powers, and with the courts’

consistent view of that restraint.

The court of appeals pointed to Ex parte Bollman as

authority for the proposition that the mght to habeas corpus

derives only from statute, and not from the Constitution or

the common law.*' Yet this Court has made clear that the

Bollman dicta cited by the court below — that the wnt would

be suspended if Congress enacted no parallel statute -- does

not define the constitutional habeas guarantee.”

But this case does not require the Court to address

Bollman’s highly controversial dicta. As was true in

Bollman, Congress has complied with its obligation to

provide a remedy (albeit an inadequate one) through the

Military Commissions Act. The question for_decision is the

adequacy of that remedy. In using Bollman’s dicta to

support its holding, the court of appeals cites Bollman for a

proposition wholly irrelevant to the resolution of this case.

*° Boumediene, 476 F.3d at 988 n.5 (quoting 28 U.S.C. § 2241(e)(1)).

"' Id. (citing Ex parte Bollman, 8 U.S. 75, 95 (1807)). The court of

appeals also cited /nsurance Corp. of Ireland, Ltd. v. Compagnie des

Bauxites de Guinee, 456 U.S. 694, 701 (1982), for the proposition that

Congress may eliminate by statute habeas jurisdiction without invoking

the habeas guarantee. But that case had nothing whatsoever to do with

habeas jurisdiction; rather, tt stands for the unremarkable proposition that

Congress may define generically lower courts’ subject matter

jurisdiction. It did not take into account the impact of the habeas

guarantee.

* St. Cyr, 533 U.S. at 304 n.24 (rejecting the dissent’s reading of

Bollman and asserting that Chief Justice Marshall did not mean to

suggest that Congress could erase the habeas guarantee through inaction).

14

In Bollman, this Court had to decide whether it had

the power to grant a writ of habeas corpus to Dr. Erick

Bollman and Samuel Swartwout, who had allegedly

conspired with Aaron Burr in 1806 and 1807 to separate

certain western territories from the United States. In a closed

session, the Senate passed legislation to suspend the writ of

habeas corpus and ensure the continued confinement of

Swartwout and Bollman. The House, however, rejected the

legislation overwhelmingly, by a vote of 113-19. The

prisoners then sought habeas relief from this Court.”

Chief Justice Marshall determined that the Court had

jurisdiction to consider the case through the Judiciary Act of

1789, properly looking to a statutory source of jurisdiction

before considering any constitutional basis. Marshall then

offered some further comments. In dicta, he addressed

whether a statutory grant of jurisdiction over habeas corpus

proceedings was required, an? answered that it was. With no

support or explanation, he asserted “the power to award the

writ by any of the courts of the United States, must be given

by written law.”

Since Bollman, each time this Court has been

presented with a statute that came dangerously close to

denying the constitutional habeas guarantee, the Court has

construed the statute to avoid any constitutional violation,

refusing to reach Bol/man’s dicta that Congress might alter

the constitutional habeas guarantee.

This Court has “constantly emphasized the

fundamental importance of the writ of habeas corpus in our

constitutional scheme,’ recognizing that the habeas

* Freedman, 51 ALA. L. REV. at 559-561; ERIC M. FREEDMAN, HABEAS

CORPUS: RETHINKING THE GREAT WRIT OF LIBERTY 20-21 (2001);

Paschal, 1970 DUKE L.J at 623-624.

* Ex parte Bollman, 8 U.S. at 94.

*S Johnson v. Avery, 393 U.S. 483, 485 (1969).

15

guarantee provides a “safeguard against invasion of the basic

civil rights of the individual.” For that reason, Johnson v.

Avery invalidated a state prison regulation that prohibited

inmates from helping one another prepare habeas | etitions,

thereby foreclosing habeas relief to poor prisoners.*’ Before

reaching its conclusion, the Court noted that “there 1s no

higher duty than to maintain [the writ] unimpaired.”

Because of this high duty, the Court has eschewed formalism

in its habeas decisions. In Ex parte Mitsuye Endo, the Court

found that an American citizen of Japanese ancestry was

entitled to unconditional release from a Relocation Center

(Internment Camp) even though the petitioner had

subsequently been removed from the territory in which she

filed her petition.“* In Rasul, this Court rejected the

government’s argument that the facility at Guantanamo Bay

was beyond the reach of the courts.”

In direct contrast to the decision under review, this

Court’s rulings have consistently acknowledged the

constitutional nature of the habeas right and the courts’

central role in determining when the right is

unconstitutionally abrogated. Jones v. Cunningham stated

that the “jurisdictional statute implements the constitutional

command that the writ of habeas corpus be made

available.””' Lest this comment be interpreted to mean that

the writ could be eliminated in the absence of statute, the

Court warned in Sanders v. United States that statutory

“© Ex parte Mitsuve Endo, 323 U.S. 283, 299 (1944); see also In re

Burrus, 136 U.S. 586, 589 (1890) (noting that the inclusion of the habeas

guarantee in the constitution “added to the exalted estimate in which that

writ has always been held in this country and in England”).

” Johnson, 393 U.S. at 485, 487.

** Id. at 485 (quoting Bowen v. Johnston, 306 U.S. 19, 26 (1939)).

” Ex parte Mitsuye Endo, 323 U.S. at 307.

” Rasul, 542 U.S. at 481-482.

*' Jones v. Cunningham, 371 U.S. 236, 238 (1963).

16

changes that “derogate from the traditional liberality of the

writ . . . might raise serious constitutional questions.”*” In

Jones, the Court refused to limit the habeas right to instavices

of traditional confinement, holding that a habeas petition was

the proper medium for a parolee to contest restrictions on his

liberty. The Court explained that the Great Writ “is not now

and [has] never been a static, narrow, formalistic remedy; its

scope has grown to achieve its grand purpose-the protection

of individuals against erosion of their right to be free from

wrongful restraints upon their liberty.”™

INS v. St. Cyr illustrates the power of the habeas

guarantee. In that case, the Court considered the effect of

two'statutes on the U.S. Attorney General’s ability to waive

deportation for aliens who had committed aggravated

felonies. The government argued that the Illegal

Immigration Reform and Immigrant Responsibility Act of

1996 and the Antiterrorism and Effective Death Penalty Act

of 1996 removed the Attorney General’s discretion to waive

deportation, even for those aliens who had committed

felonies before the laws were passed. The government also

asserted that the laws left no judicial forum to evaluate this

interpretation. This Court flatly rejected both assertions.”

According to the Court, the government’s position on

jurisdiction “would entirely preclude review of a pure

question of law by any court,” and thus raised a serious

constitutional question under the habeas guarantee in Article

I, Section 9.°° The Court insisted on a narrow statutory

reading that preserved the Court’s jurisdiction over habeas

petitions, emphasizing the importance of the constitutional

guarantee: “[ajt its historical core, the writ of habeas corpus

* Sanders v. United States, 373 U.S. 1, 11-12 (1963) abrogated on other

grounds McClesky v. Zant, 499 U.S. 467 (1991), superseded by statute.

3 Jones, 371 US. at 243.

™ St. Cyr, 533 U.S. at 298-300.

> Id. at 300.

17

has served as a means of reviewing the legality of executive

detention, and it is in that context that its protections have

been strongest.”°°

This Court’s repeated reluctance to apply Bo//man’s

dicta has been entirely warranted. Indeed, that dicta might

be seen to contradict the habeas guarantee itself, which

plainly states that Congress may suspend the writ only upon

“rebellion or invasion.” That provision makes clear that

mere Congressional inaction cannot cancel the habeas

guarantee; rather, the guarantee can be suspended only by

some positive act of government. The text confines the

suspension of the habeas guarantee to situations of

“invasion” or “rebellion”: nowhere does the provision

permit the suspension of the writ for “inaction.” It would

surely be anomalous if such a restriction on congressional

power could be nullified by Congress’s failure to enact a

parallel statute. °”

By providing that the writ “shall not be suspended,”

the constitutional text does not direct Congress to establish

% id. at 301.

*’ The puzzling character of the Bollman dicta may be explained by the

complex politics of the times, and of the Burr conspiracy. Marshall had

written just a few years earlier in Marbury v. Madison that no statute of

Congress was needed to give the federal courts authority to remedy

essential common law rights. Marburv v. Madison, 5 U.S. 137 (1803)

(recognizing that actions to protect common law rights must be

cognizable by the courts); 6 THE PAPERS OF JOHN MARSHALL 486 n.11

(Charles F. Hobson, et al. eds. 1990) (recognizing that the courts had

jurisdiction over common law issues not addressed by statute). His

contradictory dicta in Bollman may have been crafted to appease the

federal government. Because the release of Dr. Bollman and Swartwout

was likely to anger the President and Congress, the dicta might have been

intended to mitigate that reaction by suggesting that Congress still had

power over the habeas jurisdiction of the Court. This approach was the -

inverse of his strategy in Marbury, where he upheld the jurisdiction of

the courts, but his substantive ruling favored the President. Marbury, 5

U.S. 137.

18

the writ by statute.’ Moreover, the Framers surely knew

how to give Congress discretion, and in numerous places

they provided Congress the power, but not the obligation, to

act. For instance, the Congress has “the power to” exercise

all of the prerogatives listed in Article I, Section 8,°° while

Article III, Section 1, provides that Congress “may from time

to time ordain and establish” inferior courts, if it so

chooses.” But the habeas guarantee grants Congress

discretion to suspend the writ only under very narrow

circumstances. Nothing in that provision supports the

conclusion that Congress may extinguish the availability of

the writ through its own inaction.

The Bollman dicta, therefore, in no way alters the

force of the habeas guarantee. Indeed, within months of

writing Bollman, Marshall himself acknowledged that other

dicta in the opinion did not have the force of binding

precedent: he departed from the definition of treason set

forth in Bollman, finding it both wrong and “extrajudicial.””!

‘8 Compare U.S. Const. art. 1, § 9, cl. 2, with U.S. CONST. art. I, § 4, cl.

2 (providing that the Congress “shall assemble at least once in every

Year”); id § 5, cl. 3 (requiring the House to keep a journal of

proceedings).

*° U.S. CONST art. I, § 8 (“The Congress shall have the power to...”); see

also McCulloch, 17 U.S. at 421 (describing the discretion the

Constitution vests in Congress in exercising its enumerated powers).

© U.S. CONST. art. III, § 1; see also | FARRAND, at 125 (Madison's notes

state that he and James Wilson proposed the Article Ill language, and

together “[tJhey observed that there was a distinction between

establishing such tribunals absolutely, and giving a discretion to the

legislature to establish or not establish them”), THE FEDERALIST No. 82,

at 492 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (noting that

there would only be “as many subordinate courts as Congress should

think proper to appoint’).

*! im re Burr, 8 U.S. 470, 10-11 (1807) (“It may not be proper to notice

the opinion of the Supreme Court in the case of the United States against

Bollman and Swartwout. \t is said that this opinion, in declaring that

those who do not bear arms may yet be guilty of treason, is contrary to

law, and is not obligatory, because it is extrajudicial, and was delivered

19

Courts also began ignoring other dicta in Bollman —

regarding jurisdiction over state prisoners — shortly after the

decision was rendered.””

Moreover, Marshall’s comment, unadorned by

citation to precedent, announced a starkly illogical position.

On the one hand, Marshall stated that the Constitution

required Congress to pass a jurisdictional statute allowing

habeas petitions. On the other, and without explanation, he

recognized no judicial remedy if Congress violated that

constitutional obligation. This Court has consistently

declined to adopt this flawed line of reasoning; the present

case offers no occasion for the Court to do so now.

At bottom, the question before the Court is whether

Congress has met its “obligatica of providing efficient

means by which this great constitutional privilege should

receive life and activity.” °° Towards this end, “resort may

unquestionably be had to the common law.” As the brief

of the parties and other amici fully demonstrate, the

procedures provided by the Detainee Treatment Act of 2005

fall far short of those inherent in the writ at common law.

on a point not argued. This court is, therefore, required to depart from the

principle there laid down.”’).

“ Freedman, 51 ALA. L. REV. at 595-600 (In which three courts

exercised habeas jurisdiction over state prisoners despite Marshall's

comment that there was no statutory authority for such jurisdiction.)

(citing Daze v. The Keeper of the Debtors Apartment, (D. Pa. May 22,

1814), Jouet v. Jones, (C.C.S.D.N.Y. Apr. 7, 1800), and United States v.

Desfontes & Gaillard, (2d Cir. Feb. 12, 1830)).

* Ex parte Bollman, 8 U.S. at 95.

“* Id. at 93-94.

20

CONCLUSION

“Nothing is more common than for a free people, in

times of heat and violence, to gratify momentary passions,

by letting into the government principles and precedents

which afterwards prove fatal to themselves.” The Military

Commissions Act of 2006 is a vivid example of this

unfortunate tendency. This Court should vindicate the core

habeas right that the Framers valued so highly that they

specifically and unequivocally incorporated it in the

Constitution.

Respectfully submitted,

DAVID OVERLOCK STEWART

Counsel of Record

Ropes & GRAY LLP

One Metro Center

700 12th Street N.W.

Suite 900

Washington, D.C. 20005

(202) 508-4600

August 24, 2007

* Brown, 381 U.S. at 444 (quoting JOHN C. HAMILTON, HISTORY OF THE

REPUBLIC OF THE UNITED STATES 34 (1859)).

la

APPENDIX A

NAMES OF AMICI”

PAUL FINKELMAN

President William McKinley Distinguished

Professor of Law and Public Policy and

Senior Fellow, Government Law Center

ALBANY LAW SCHOOL

Albany, New York

JOYCE APPLEBY

Professor Emerita

UNIVERSITY OF CALIFORNIA, LOS

ANGELES

Los Angeles, California

JAMES M. BANNER, JR

Washington, District of Columbia

CHARLENE BICKFORD

Project Director, First Federal Congress

Project, History Department

THE GEORGE WASHINGTON. UNIVERSITY

Washington, District of Columbia

Lois G. SCHWOERER

Elmer Louis Kayser Professor of

History Emerita

THE GEORGE WASHINGTON UNIVERSITY

Washington, District of Columbia

" Affiliations of amici are listed for identification purposes only, and do

not reflect the views of their respective institutions.

2a

AUSTIN ALLEN

Assistant Professor of History

UNIVERSITY OF HOUSTON — DOWNTOWN

Houston, Texas

R. B. BERNSTEIN

Distinguished Adjunct Professor of Law

NEW YORK LAW SCHOOL

New York, New York

GARY HART }

UNITED STATES SENATOR (RET.)

Wirth Chair Professor of Public Affairs

UNIVERSITY OF COLORADO

Denver, Colorado

SAMUEL B. HOFF

Law Studies Director

DELAWARE STATE UNIVERSITY

Dover, Delaware

GABRIEL J. CHIN

Chester H. Smith Professor of Law

Professor of Public Administration and

Policy, Co-Director of Law, Criminal

Justice and Security Program

UNIVERSITY OF ARIZONA, JAMES E.

ROGERS COLLEGE OF LAW

Tucson, Arizona

MICHAEL ZUCKERMAN

Professor of History

UNIVERSITY OF PENNSYLVANIA

Philadelphia, Pennsylvania

3a

ABRAHAM R. WAGNER

Adjunct Professor of International

and Public Affairs

COLUMBIA UNIVERSITY

New York, New York

CORNELL W. CLAYTON

Professor and Graduate Director,

Department of Political Science

WASHINGTON STATE UNIVERSITY

Pullman, Washington

KENNETH B. NUNN

Professor of Law

UNIVERSITY OF FLORIDA FREDRIC G.

LEVIN COLLEGE OF LAW

Gainesville, Florida

MARK R. SHULMAN

Assistant Dean for Graduate Programs

& International Affiliations and

-Adjunct Professor of Law

PACE UNIVERSITY SCHOOL OF LAW

White Plains, New York

MARCY L. TANTER

Associate Professor of English

TARLETON STATE UNIVERSITY

Stephenville, Texas

NANCY C. UNGER

Associate Professor of History, Women

& Gender Studies, and Environmental

Studies

SANTA CLARA UNIVERSITY

Santa Clara, California