# Amicus Curiae Brief — Al Odah v. United States (Nos. 06-1196, 06-1195) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0526%3A32 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2007 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0526%3A32. Public record. Not legal advice.