Appendix — Hamdan v. Gates (No. 07-15)
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APPENDIX A
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 04-1519 (JR)
SALIM AHMED HAMDAN, PLAINTIFF,
DONALD H. RUMSFELD, DEFENDANT.
December 13, 2006
MEMORANDUM
The government seeks dismissal of the petition of Salim
Ahmed Hamdan for a writ of habeas corpus for lack of subject
matter jurisdiction, relying upon the jurisdiction-stripping
provisions of the Military Commissions Act of 2006, Pub. L.
No. 109-366, 120 Stat. 2600 (MCA) [75]. Petitioner resists,
arguing that the MCA did not remove our jurisdiction over
pending Guantanamo habeas petitions, and alternatively that, if
it did, it was an unconstitutional suspension of the writ of
habeas corpus [78].
Background
Salim Ahmed Hamdan, a Yemeni national, was taken into
United States military custody in Afghanistan in November
2001. He was transported to the Defense Department’s
detention facility at Guantanamo Bay in June 2002. In July
2003, the President declared him eligible for trial by military
commission. On Apmnl 6, 2004, Hamdan petitioned for
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mandamus or habeas corpus in the United States District Court
for the Western District of Washington. On July 13, 2004, after
having been held for about two years and eight months without
formal charges, Hamdan was finally charged at Guantanamo
Bay with a single count of conspiracy. In August 2004, his
habeas petition was transferred to this court.
On November 8, 2004, I granted Hamdan’s petition for a
writ of habeas corpus after finding that he could not be tried
lawfully before a military commission that had not been
approved by Congress, Hamdan vy. Rumsfeld, 344 F. Supp. 2d
152 (D.D.C. 2004). That decision was reversed by a panel of the
D.C. Circuit on July 15, 2005, 415 F.3d 33, in a decision that
was itself reversed a year later by the Supreme Court, Hamdan
v. Rumsfeld, 126 S. Ct. 2749 (2006), four justices noting that
‘“{njothing prevents the President from returning to Congress to
seek the authority he believes necessary” to lawfully try enemy
combatants, /d. at 2799, (Breyer, J., concurring). ! On September
22, 2006, the Court of Appeals remanded the case to me “for
further proceedings.” The remand order contained no
instructions, nor was it clear what proceedings, if any, would be
possible — for, by that time, the President had indeed
“return{ed] to Congress,” and he had asked Congress to strip the
federal courts of their jurisdiction to hear any habeas petitions
of the Guantanamo detainees.
On September 29, 2006 Congress enacted, and on October
17, 2006, the President signed, the Military Commissions Act.
The day after the MCA became law, the government filed, in
cach of the 181 Guantanamo habeas cases pending in this Court,
a Notice of Military Commissions Act of 2006 [75],
highlighting the jursdiction-stripping and __ retroactivity
provisions of the Act. The government focused on section 7 of
the Act, which amends the federal habeas statute by removing
the jurisdiction of any “court, judge, or justice” over habeas
petitions and all other actions filed by aliens who are cither
detained as enemy combatants or are “awaiting such
determination.” MCA § 7(a). I construed that notice as a motion
' Four justices also concluded that conspiracy is not an offense that
may be tried by a military commission. /d. at 2779.
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to dismiss for lack of subject matter jurisdiction and called for a
response from Hamdan [77].?
Analysis
The Military Commissions Act and the briefs of the parties
present three questions: (1) As a matter of statutory
interpretation and construction, did Congress actually succeed
in removing our statutory habeas jurisdiction over the detainee
habeas cases? (2) If so, is the Military Commissions Act a
constitutionally valid “suspension” of the writ of habeas corpus
within the meaning of the Suspension Clause, U.S. Const. art. |
§ 9 cl. 2? (3) If not, and if a “constitutional” writ of habeas
corpus survives the Military Commissions Act, does Hamdan
have a right to seek such a writ? The answers to these questions
are “yes” to number (1) and “no” to numbers (2) and (3).
1. The MCA reflects clear congressional intent to limit the
statutory habeas jurisdiction of the federal courts.
It has been clear since Ex Parte Yerger, 75 U.S. 85 (1869)
(habeas petition by a prisoner facing trial by military
commission), that statutory language will be interpreted as
stripping courts of their habeas jurisdiction only when the intent
of Congress is abundantly clear. “Implications from statutory
text or legislative history are not sufficient to repeal habeas
jurisdiction; instead, Congress must articulate specific and
unambiguous statutory directives to effect a repeal.” JNS v. St.
Cyr, 533 U.S. 289, 299 (2001). In the instant case, it appears to
be conceded that Congress’s intent to remove jurisdiction over
future habeas petitions filed by a specified class of individuals
2 | did not issue similar orders in the 14 other Guantanamo habeas
cases on my own docket, in deference to the continuing pendency before
the Court of Appeals of two cases in which that court has asked for
supplemental briefing on the effect of the Military Commissions Act,
Boumediene, et al. v. Bush, 450 F. Supp. 2d 25 (D.D.C. 2006) (appeal
pending); A/ Odah, et al. v. United States, 346 F. Supp. 2d 1 (D.D.C.
2004) (appeal pending). Hamdan’s successful certiorari petition in the
Supreme Court, however, sets his case apart from the others. Unlike the
petitioners in those other cases, moreover, Hamdan moved for a briefing
schedule on the subject of jurisdiction [73] even before the government
filed its notice.
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was clear enough. Hamdan’s submission, however, ts that the
MCA lacks the requisite clarity to support its retroactive
operation — stripping the courts of their jurisdiction over
previously filed habeas cases.
Section 7 of the MCA provides:
(a) IN GENERAL. — Section 2241 of title 28, United
States Code [the habeas statute], is amended by...
inserting the following new subsection (c):
(e)(1) No court, justice, or judge shall have jurisdiction
to hear or consider an application for a writ of habeas
corpus filed by or on behalf of an alien detained by the
United States who has been determined by the United
States to have been properly detained as an enemy
combatant or is awaiting such determination.
(2) Except as provided in paragraphs (2) and (3) of
section 1005(e) of the Detaince Treatment Act of 2005
(10 U.S.C. 801 note), no court, justice, or judge shall
have jurisdiction to hear or consider any other action
against the United States or its agents relating to any
aspect of the detention, transfer, treatment, tral, or
conditions of confinement of an alien who is or was
detained by the United States and has been determined
by the United States to have been properly detained as
an enemy combatant or is awaiting such determination.
(b) EFFECTIVE DATE. — The amendment made by
subsection (a) shall take effect on the date of the
enactment of this Act, and shall apply to all cases,
without exception, pending on or after the date of the
enactment of this Act which relate to any aspect of the
detention, transfer, treatment, trial, or conditions of
detention of an alien detained by the United States since
September 11, 2001.
Da
Relying on what he calls “{ojrdinary principles of statutory
construction,” [78 at 10] and quoting Hamdan, 126 S. Ct. at
2765-69, Hamdan argues that the retroactivity provision of §
7(b) does not clearly apply to the habeas jurisdiction-stripping
provision of § 7(a), because, while the language of § 7(b) tracks
much of the language in § 7(a) describing cases other than
habeas petitions, it does not explicitly refer to habeas petitions.
The argument is unsuccessful.
Section 7(b) instructs that “the amendment made by
subsection (a)” is effective immediately, and that it applies both
retroactively and prospectively. New subsections (e)(1) and
(e)(2) both amend the habeas statute and therefore together
comprise “the amendment made by subsection (a).” Section
7(b), then, means that all of § 7(a), and not just the part
encompassed in new subsection (e)(2), applies retroactively.
Application of the retroactivity clause in § 7(b) to new
subsection (e)(1) is also compelled by the framework of the
statute. The references in section 7 are to one large category of
cases: those cases that relate to any aspect of the detention,
transfer, treatment, tnal, or conditions of detention of certain
aliens. In § 7(a), Congress divided this broad category into two
subcategories — (1) habeas petitions and (2) “any other
action(s] against the United States . . . relating to any aspect of
the detention . . .’ — and removed jurisdiction over both types
of cases. “Other,” as used in this subsection, logically describes
cases other than the habeas petitions referenced in the previous
subsection and confirms the inclusion of habeas proceedings
within the broader category encompassing “all cases .
pending on or after the date of enactment of this Act which
relate to any aspect of the detention, transfer, treatment, trial, or
conditions of detention of an alien detained by the United States
since September 11, 2001.” Section 7(b) applies “without
exception” to the broad category of cases encompassing both
subcategories addressed in new subsections (e)(1) and (e)(2);
this language is “so clear that it could sustain only one
interpretation.” Lindh v. Murphy, 521 U.S. 320, 329 n.4 (1997).
Habeas petitions are thus clearly within the ambit of § 7(b).
2. The MCA is not a constitutionally valid suspension of the
writ of habeas corpus.
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Congress unquestionably has the power to establish and to
define the jurisdiction of the lower federal courts. U.S. Const.
art. Ill, §§ 1, 2. But it does not necessarily follow, from the fact
that Congress has repealed its statutory grant of habeas
jurisdictic, that Congress has also “suspended” the writ. Some
historical background will be helpful in explaining why this is
so.
The history of habeas corpus — the “symbol and guardian
of individual liberty,” Peyton v. Rowe, 391 U.S. 54, 59 (1968)
— is well established. What we now know as the “Great Writ”
originated as the “prerogative writ of the Crown”;? its purpose
at first was to bring people into court rather than out of
imprisonment. Alan Clarke, Habeas Corpus: The Historical
Debate, 14 N.Y.L. Sch. J. Hum. Rts. 375, 378 (1998), citing
S.A. DeSmith, The Prerogative Writs, 11 Cambridge L.J. 40
(1951); William F. Duker, A Constitutional History of Habeas
Corpus 17 (1980). By the year 1230, the writ’s utility for that
purpose was a well-known aspect of English common law.
Clarke, supra.
The transformation of the writ to a guardian of liberty dates
to the 14'" century, when the Norman Conquest overlaid a
centralized court system on top of the existing courts. It was
during this period that prisoners began to initiate habeas
proceedings to challenge the legality of their detention. /d. The
first such use was by detained members of the privileged classes
who raised habeas claims tn superior central courts to challenge
their convictions in inferior courts; central courts would grant
such writs to assert the primacy of their jurisdiction. /d. Thus,
oddly enough, the original use of the writ by prisoners
challenging convictions or detentions had more to do with
jurisdictional disputes between courts than concerns over
liberty. /d.; Gerald L. Neuman, //abeas Corpus, Executive
Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961,
970-71 (1998).
3 Standing alone, the phrase “habeas corpus” refers to the common
law wnt of habeas corpus ad subjiciendum, or the “Great Writ.” Preiser
v. Rodriguez, 411 U.S. 475, 484-85 and n.2 (1973) citing Ex parte
Bollman, 8 U.S. (4 Cranch) 75, 95 (1807).
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As the power of the common law courts expanded in the
15" century, so too did the availability and meaning of habeas
corpus. The writ became a favorite tool of both Parliament and
the judiciary in battling the monarch’s assertion of unbridled
power. Clarke, supra at 380. By 1670, habeas corpus was “the
most usual remedy. by which a man is restored again to his
liberty, if he have been against law deprived of it.” Bushell’s
Case, Vaughan 135, 136, 124 Eng. Rep. 1006, 1007. The
growing significance of the writ is reflected in the Habeas
Corpus Act of 1679, described by Blackstone as “a second
magna charta, a stable bulwark of our liberties.” 1 Blackstone
133.
Notwithstanding the cherished status of habeas corpus, its
suspension in England was not uncommon. The writ was
suspended in 1688 and 1696 because of conspiracies against the
king, again during the American revolution, and at other points
during the 18th century. Rex A. Collings, Jr., Habeas Corpus
for Convicts — Constitutional Right or Legislative Grace?, 40
Cal. L. Rev. 335, 339 (1952).
Colonists in America were well aware of the growing
significance of the Great Writ, and many asserted a common
law right to habeas corpus in the period leading up to the
adoption of the Constitution. Massachusetts, New Hampshire,
and Georgia adopted constitutional provisions guaranteeing the
writ or prohibiting its suspension under most circumstances.
Max Rosenn, The Great Writ — A Reflection of Societal
Change, 44 Ohio St.. L.J. 337, 338 n.14 (1983). Several
delegates to the Constitutional Convention sought to include a
guarantee of habeas corpus in the federal Constitution, Erwin
Chemerinsky, Thinking about Habeas Corpus, 37 Case W. Res.
L. Rev. 748, 752, and the language that emerged from the
Constitutional Convention, forbidding the suspension of habeas
unless necessary in the face of “rebellion or invasion,” U.S.
Const. art. I, § 9, cl. 2, was a compromise. Habeas corpus
nevertheless enjoys powerful and unique constitutional stature
as the only common law writ explicitly referenced in the
Constitution. The first session of Congress also evinced
appreciation for the writ: in section 14 of the Judiciary Act of
1789, Congress affirmatively gave the power to issue writs of
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habeas corpus to the newly created federal courts. Act of Sept.
24, 1789, ch. 20, § 14, 1 Stat 73, 81. It is that statute, amended
several times over the last 217 years, that the MCA has
amended once again: this time to take away jurisdiction.4
Article I, section 9, clause 2 of the Constitution provides,
“The 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.” “Although [the Suspension
Clause] does not state that suspension must be effected by, or
authorized by, a legislative act, it has been so understood,
consistent with English practice and the Clause’s placement in
Article 1.” Hlamdi v. Rumsfeld, 542 U.S. 507, 562 (2004)
(Scalia, J., dissenting), citing Ex parte Bollman, 8 U.S. at 101;
Ex parte Merryman, 17 F. Cas. 144, 151-152 (CD Md. 1861)
(Taney, C. J., rejecting Lincoln’s unauthorized suspension); 3
Story § 1336, at 208-209.5
Congress has authorized executive suspension of the writ
only four times. See Duker, supra at 149, 178 n.190. All such
suspensions were accompanied by clear statements expressing
congressional intent to suspend the writ and limiting the
suspension to periods during which the predicate conditions
(rebellion or invasion) existed. /d. The first such instance was
during the Civil War, when the status and availability of habeas
corpus were at the center of an epic struggle. In 1861, without
congressional authorization, President Lincoln gave the
Commanding General of the Army permission to suspend the
writ in response to rioting between Philadelphia and
Washington as Union troops moved down the coast. A. Lincoln,
Letter to Commanding General Winfield Scott, (April 27,
1861), reprinted in Abraham Lincoln: Speeches and Writings,
4 The MCA may not have been Congress’s last word on the
statutory habeas rights of detainees such as Hamdan. On December 5,
2006, Senators Specter and Leahy introduced the Habeas Corpus
Restoration Act of 2006, S. 4081, 109th Cong. (2006), which would grant
statutory habeas rights to those whose rights were repealed by the MCA.
> In his dissent in Hamdi, Justice Scalia also makes reference to
President Jefferson’s unsuccessful attempt to suspend the writ in response
to the Aaron Burt conspiracy. Hamdi, 542 U.S. at 563 (Scalia, J.
dissenting), citing 16 Annals of Congress 402-425 (1807).
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1859-1865, at 237 (D. Fehrenbacher ed. 1989). John Merryman
was subsequently arrested for interfering with troop movements
and challenged the executive suspension of the writ. Chief
Justice Taney, riding circuit, heard the case and ruled in
Merryman’s favor, holding that only Congress may suspend the
writ. Ex parte Merryman, 1|7 F. Cas. at 151-152. Lincoln
ignored Taney’s order, but Congress eventually authorized
executive suspension, mooting the question of whether or not
Lincoln’s initial suspension was unconstitutional and avoiding a
Supreme Court test. Act of Mar. 3, 1863,- 12 Stat. 755.
Thereafter, Lincoln’s suspensions explicitly relied upon the
congressional grant. of authority. See, e.g., Proclamation No. 7,
13 Stat. 734 (1863).
After the Civil War, Congress next authorized executive
suspension of the writ in its Ku Klux Klan Act, which allowed
President Grant to suspend the writ while rebellions were raging
in several South Carolina counties. Duker, supra at 178 n.190.
Congress’s last two authorizations for executive suspension of
the writ were in 1902, when it granted suspension power to the
President and the governor during a rebellion in the
Philippines,© and in 1941, after the attack on Pearl Harbor,
when Congress authorized the governor of Hawaii to
temporarily suspend the writ in that territory.’ All four
congressionally authorized executive suspensions occurred
during times of indisputable, and congressionally declared,
rebellion or invasion.
The Supreme Court has never decided whether an Act of
Congress alone has effectively “suspended” the writ. In two
relatively recent cases involving the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA) and the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), indeed, the Court has carefully avoided saying
exactly what the Suspension Clause protects. In Felker v.
Turpin, 518 U.S. 651 (1996), the Court, per Rehnquist, C.J.,
“assume[d], for purposes of decision here, that the Suspension
Clause of the Constitution refers to the writ as it exists today,
© Act of July 1, 1902, ch. 1369, 32 Stat. 691.
7? See Duncan v. Kahanamoku, 327 U.S. 304, 307-308 (1946).
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rather than as it existed in 1789,” but held that the restrictions
placed by the AEDPA upon second and successive statutory
habeas petitions by prisoners were “well within the compass of
[the writ’s} evolutionary process, and . . . do not amount to a
‘suspension’ of the writ contrary to Article I, § 9.” 518 ULS. at
663-64. In INS v. St. Cyr, 533 U.S. 299 (2001), the Court
rejected the government’s argument that the AEDPA and the
I[RIRA had effectively stripped the federal courts of jurisdiction
to decide questions of law. Acknowledging that the scope of the
writ has expanded significantly since the Founding, the Court
noted that, “at the absolute minimum, the Suspension Clause
protects the writ ‘as it existed in 1789,” id. at 1788 (quoting
Felker). And the Court went on to observe:
The fact that this Court would be required to answer the
difficult question of what the Suspension Clause
protects is in and of itself a reason to avoid answering
the constitutional questions that would be raised by
concluding that review was barred entirely. Cf. Neuman,
Habeas Corpus, Executive Detention, and the Removal
of Aliens, 98 Colum. L.Rev. 961, 980 (1998) (noting
that “reconstructing habeas corpus law . . . [for purposes
of a Suspension Clause analysis] would be a difficult
enterprise, given fragmentary documentation, state-by-
state disuniformity, and uncertainty about how state
practices should be transferred to new _ national
institutfons”’).8
Id. at n.13. Whether the Suspension Clause protects only the
“writ antecedent to statute,” Williams v. Kaiser, 323 U.S. 471,
484 (1945), or “the writ as it exists today,” Felker, 518 U.S. at
663, its protection is absolute in the absence of “invasion” or
8 In both Felker and St. Cyr, the Court was quick to point out that
neither the AEDPA nor the IIRIRA purported to repeal its own original
junsdiction of habeas cases, which was expressly granted by the Judiciary
Act of 1789, Felker, 518 U.S. at 660-61, quoted in St Cyr, 533 U.S. at
298-99. The jurisdiction-stripping language of the MCA, of course, does
purport to repeal the habeas jurisdiction of Supreme Court justices (“No
court, justice or judge... .." MCA § 7(a)).
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“rebellion.” Neither rebellion nor invasion was occurring at the
time the MCA was enacted. Indeed, Congress itself must not
have thought that it was “suspending” the writ with the
enactment of the MCA, since it made no findings of the
predicate conditions, as it did when it approved Lincoln’s
suspension in the Civil War and each of the subsequent
suspensions in Mississippi, the Philippines, and Hawaii. Thus,
the Great Writ has survived the Military Commissions Act. If
and to the extent that the MCA operates to make the writ
unavailable to a person who is constitutionally entitled to it, it
must be unconstitutional.
3. Hamdan is not entitled to the constitutional writ that
survives the MCA.
The jurisdiction of federal courts over the habeas petitions
of detainees at Guantanamo Bay rested upon the grant of
jurisdiction in the habeas statute and upon the United States’
exercise of “complete jurisdiction and control” over the Navy
base in Cuba. Rasul, 542 U.S. 466, 471, 481 (2004). Because
the habeas statute drew no distinction between citizens and
aliens, moreover, the Court found “little reason to think that
Congress intended the geographical coverage of the statute to
vary depending on the detainee’s citizenship. Aliens held at the
base, no less than American citizens, are entitled to invoke the
federal courts’ authority under § 2241.” /d. at.481. My original
assumption of jurisdiction of Hamdan’s Rev, 5 petition
depended entirely upon Rasu/ and upon § 2241, 344 F. Supp. 2d
at 156. Now that the MCA has amended § 2241 so that it no
longer serves as the basis for my jurisdiction, | must inquire
whether Hamdan or any other alien is constitutionally entitled to
the writ.
It has long been the practice of judges to ascertain the
“meaning of the term habeas corpus [by refercnce to] the
common law.” Ex parte Bollman, 8 U.S. at 93-94 (1807).
Petitioner cites at least two English common law cases in which
“aliens detained by the Executive at wartime” brought habeas
petitions challenging their designation as enemies. [78 at 20],
citing Case of the Three Spanish Sailors, 96 Eng. Rep. 775, 776
(C.P. 1779); Rex v. Schiever, 97 Eng. Rep. 551 (K. B. 1759). In
dicta, the majority in Rasul cited several other examples of pre-
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1789 habeas petitions brought by aliens detained within the
sovereign territory or elsewhere within the sovereign’s control.
Rasul, 542 U.S. at 481 n.11.9 Unfortunately, those cases do not
so easily resolve the issue when the statutory grant of habeas
has been withdrawn. In each of them, habeas relief was cither
(1) denied, in an opinion that failed to distinguish between
jurisdictional and substantive grounds for the dismissal;!9 (2)
denied to a prisoner of war without connections to the country
in which the writ was sought;!! or (3) granted to an alien with a
significant relationship to the country tn which the writ was
sought.!* Not one of the cases mentioned in Rasu/ held that an
alien captured abroad and detained outside the United States —
or in “territory over which the United States exercises exclusive
jurisdiction and control,” Rasu/, 542 U.S. at 475 — had a
common law or constitutionally protected right to the writ of
habeas corpus. !3
9 The court supplied the following list of English and American
habeas proceedings prior to 1789 and shortly thereafter: King v. Schiever,
2 Burr. 765, 97 Eng. Rep. 551 (K. B. 1759); Sommersett v. Stewart, 20
How. St. Tr. 1, 79-82 (K. B. 1772); Case of the Hottentot Venus, \3 East
195, 104 Eng. Rep. 344 (K. B. 1810)); United States v. Villato, 2 Dall.
370, 2 U.S. 370, IL. Ed. 419 (CC Pa. 1797); Ex parte D ‘Olivera, 7 F.
Cas. 853, F. Cas. No. 3967 (CC Mass 1813) (Story, J., on circuit); Wilson
v. Izard, 30 F. Cas. 131, F. Cas. No. 17810 (CC NY 1815) (Livingston, J.,
on circuit).
10 See, e.g., Case of the Three Spanish Sailors, 96 Eng. Rep. 775,
776 (C.P. 1779); Rex v. Shiever, 97 Eng. Rep. 551 (K. B. 1759). Note,
too, that petitioners in both of these cases were held within English
sovereign territory, unlike petitioner Hamdan.
'! Rex v. Schiever falls under this category as well: “{petitioner] is
the King’s prisoner of war, and we have nothing to do in that case, nor
can we grant an habeas corpus to remove prisoners of war.” 96 Eng. Rep.
1249 (K. B. 1759).
|2 See, e.g., U.S. v. Villato, 2 U.S. 370, 28 F. Cas. 377, 1 L. Ed. 419
(No. 16,622) (Pa. 1797) (petitioner, though Spanish-born, had traveled
from New Orleans to Philadelphia and attempted to become a citizen
before the offense that precipitated his detention).
'S Note that even /NS v. St Cyr, heavily relied upon by petitioner
Hamdan and filled with language extolling the importance of habeas
corpus in challenging executive detention, contains this limited
description of the rights herein asserted: “{i]n England prior to 1789, in
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The petitioner in Sommersett v. Stewart was not an enemy
alien but a slave challenging his enslavement. Unlike Hamdan,
James Sommersett was temporarily residing in England, and the
asserted unlawfulness of his confinement stemmed from the
arguable illegality of slavery in England. 98 Eng. Rep. 499 (K.
B. 1772). In the Case of the Hotientot Venus, Saattje Baartman
— a South African exhibited in a cage in Piccadilly, England —
was a non-enemy foreigner from the British Protectorate of
South Africa who could invoke the protection of the Crown by
right. 104 Eng. Rep. 344 (K. B. 1810).
In American habeas actions, alien petitioners have had
access to the writ largely because they resided, lawfully or
unlawfully, on American soil. See, e.g., The Japanese
Immigrant Case, 189 U.S. 86, 101 (1903) (alien, while alleged
to have entered the country unlawfully, nevertheless had made
himself “a part of its population”); Yick Wo v. Hopkins, 118
U.S. 356 (1886) (petitioner had been a legal resident of the
United States for over twenty years). Hamdan has been a
prisoner of the United States for five years. He has lived nearly
all of that time within the plenary and exclusive jurisdiction of
the United States, but he has not become a part of the population
enough to separate himself from the common law tradition
generally barring non-resident enemy aliens from accessing
courts in wartime. See Ex parte Kawato, 317 U.S. 69, 72-75
(1942) (describing common law rule). His detention in
Guantanamo, in other words, has not meaningfully “increase[d]
his identity with our society.” Eisentrager v. Johnson, 339 U.S.
763, 770 (1950).
It is the Eisentrager case that appears to provide the
controlling authority on the availability of constitutional habeas
to enemy aliens.!4 In that case, petitioners were Germans living
in China in the aftermath of World War II. /d. at 765. After trial
the Colonies, and in this Nation during the formative years of our
Government, the wnt of habeas corpus was available to nonenemy aliens
as well as to citizens,” 533 U.S. at 301.
'4 Eisentrager was unimportant to the statutory habeas question
presented the last time Hamdan was here, as the Supreme Court had made
plain in Rasul, 542 U.S. at 475-76, and was not dispositive on the
questions presented in the earlier Hamdan case, 126 S. Ct. at 2794.
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before a United States Military Commission in China, they were
convicted of war crimes and sent to occupied Germany to serve
their sentences. /d. at 766. The Supreme Court held that they
had no constitutional entitlement to habeas relief in U.S. Courts
because “at no relevant time were [they] within any territory
over which the United States is sovereign, and the scenes of
their offense, their capture, their trial, and their punishment
were all beyond the territorial jurisdiction of any court of the
United States.” /d. at 778.
Hamdan contends that several of the differences between
the Guantanamo petitioners and the Eisentrager petitioners are
constitutionally significant. First, he notes that the Eisentrager
petitioners admitted that they were enemy aliens, whereas
petitioner Hamdan has always objected to his classification as
an unlawful enemy combatant [78 at 25]. Here, however, as in
Eisentrager (where petitioners amended their petitions to assert
that they had really been civilian employees) Hamdan’s “exact
affiliation is .. . for our purposes, immaterial.” Fisentrager, 339
U.S. at 765. Second, Hamdan claims that, unlike the
Eisentrager petitioners, he has never been afforded access to a
proper tribunal. That observation is obviously true, thus far, but
Hamdan is to face a military commission newly designed,
because of his efforts, by a Congress that finally stepped up to
its responsibility, acting according to guidelines laid down by
the Supreme Court. It is difficult to see how continued habeas
jurisdiction could make further improvements in his tribunal.
Third, Hamdan argues that, after several years in a territory
within “the complete jurisdiction and control” of the United
States, his relationship with the United States is more extensive
than those of petitioners in Eisentrager. See Rasul, 542 U.S. at
480. This third distinction merits further consideration.
Hamdan’s lengthy detention beyond American borders but
within the jurisdictional authority of the United States is
historically unique. Nevertheless, as the government argues in
its reply brief, his connection to the United States lacks the
geographical and volitional predicates necessary to claim a
constitutional right to habeas corpus [85-1 at 15]. Petitioner has
never entered the United States and accordingly does not enjoy
the “implied protection” that accompanies presence on
1Sa
American soil. Eisentrager, 339 U.S. at 777-79. Guantanamo
Bay, although under the control of the United States military,
remains under “the ultimate sovereignty of the Republic of
Cuba.” Rasul, U.S. 542 at 471. Presence within the exclusive
jurisdiction and control of the United States was enough for the
Court to conclude in Rasul that the broad scope of the habeas
statute covered Guantanamo Bay detainees, but the detention
facility lies outside the sovereign realm, and only U.S. citizens
in such locations may claim entitlement to a constitutionally
guaranteed writ. United States v. Curtiss-Wright Export Corp.,
299 U.S. 304, 318 (1936). There is no dispute, moreover, that
Hamdan’s presence within the exclusive jurisdiction of the
United States has been involuntary. Presence within the United
States that is “lawful but involuntary [ ] ts not of the sort to
indicate any substantial connection with our country” that
would justify the invocation of a constitutional right to habeas
corpus, United States v. Verdugo-Urquidez, 494 U.S. 259, 271
(1990). !5
Conclusion
Congress’s removal of jurisdiction from the federal courts
was not a suspension of habeas corpus within the meaning of
the Suspension Clause (or, to the extent that it was, it was
plainly unconstitutional, in the absence of rebellion or invasion),
but Hamdan’s statutory access to the writ is blocked by the
jurisdiction-stripping language of the Military Commissions
Act, and he has no constitutional entitlement to habeas corpus. !®
'5 My ruling does not address whether and to what extent enemy
aliens may invoke other constitutional mghts; I find only that the
Suspension Clause does not guarantee the right to petition for habeas
corpus to non-resident enemy aliens captured and detained outside the
United States.
'6 Having been divested of jurisdiction over Hamdan’s habeas
petition, I do not reach his other arguments that the MCA is
unconstitutional — because it does not provide an adequate substitute for
habeas review, because it violates the principle of separation of powers by
instructing the courts to ignore the Supreme Court’s ruling that the
Geneva Conventions afford judicially enforceable protections to
l6a
Hamdan’s habeas petition must accordingly be dismissed for
want of subject matter jurisdiction.
JAMES ROBERTSON
United States District Judge
petitioner Hamdan, because it is an unlawful Bill of Attainder, and
because it violates Equal Protection.
17a
APPENDIX B
The Suspension Clause, U.S. Const. art I, § 9, cl. 2, states:
The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it.
U.S. Const., art. I, § 9, cl. 3, states:
No Bill of Attainder or Ex Post Facto law shall be
passed.
U.S. Const., Amend. 5 states:
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a grand jury, except in cases arising in the land or
naval forces, or in the militia, when in actual service in time of
war or public danger; nor shall any person be subject for the
same offense to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public
use, without just compensation.
U.S. Const., Amend. 14 states in part:
[NJor shall any State deprive any person of life, liberty
or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of laws.
18a
APPENDIX C
1. The Detainee Treatment Act of 2005, Pub. L. No. 109-148,
div. A, tit. X, 119 Stat. 2739, provides in relevant part:
TITLE X—MATTERS RELATING TO DETAINEES
SEC. 1005. PROCEDURES FOR STATUS REVIEW OF
DETAINEES OUTSIDE THE UNITED STATES.
{e) JUDICIAL REVIEW OF DETENTION OF ENEMY
COMBATANTS. -
(1) IN GENERAL. — Section 2241 of title 28, United
States Code, is amended by adding at the end the following:
“(e) Except as provided in section 1005 of the Detainee
Treatment Act of 2005, no court, justice, or judge shall have
jurisdiction to hear or consider
“(1) an application for a writ of habeas corpus filed
by or on behalf of an alien detained by the Department
of Defense at Guantanamo Bay, Cuba; or
(2) any other action against the United States or its
agents relating to any aspect of the detention by the
Departnient of Defense of an alien at Guantanamo Bay,
Cuba, who —
‘“(A) is currently in military custody; or
“(B) has been determined by the United States
Court of Appeals for the District of Columbia
Circutt in accordance with the procedures set forth
in section 1005(e) of the Detainee Treatment Act of
2005 to have been properly detained as an enemy
combatant.”.
19a
(2) REVIEW OF DECISIONS OF COMBATANT STATUS
REVIEW TRIBUNALS OF PROPRIETY OF DETENTION. —
(A) IN GENERAL. — Subject to subparagraphs (B),
(C), and (D), the United States Court of Appeals for the
District of Columbia Circuit shall have exclusive
jurisdiction to determine the validity of any final
decision of a Combatant Status Review Tribunal that an
alien is properly detained as an enemy combatant.
. (B) LIMITATION ON CLAIMS. -— The jurisdiction of
the United States Court of Appeals for the District of
Columbia Circuit under this paragraph shall be limited
to claims brought by or on behalf of an alien —
(i) who is, at the time a request for review by
such court is filed, detained by the Department of
Defense at Guantanamo Bay, Cuba; and
(11) for whom a Combatant Status Review
Tribunal has been conducted, pursuant to applicable
procedures specified by the Secretary of Defense.
(C) SCOPE OF REVIEW. — The jurisdiction of the
United States Court of Appeals for the District of
Columbia Circuit on any claims with respect to an alien
under this paragraph shall be limited to the
consideration of —
(i) whether the status determination of the
Combatant Status Review Tribunal with regard to
such alien was consistent with the standards and
procedures specified by the Secretary of Defense for
Combatant Status Review Tribunals (including the
requirement that the conclusion of the Tribunal be
supported by a preponderance of the evidence and
allowing a rebuttable presumption in favor of the
Government’s evidence); and
(i) to the extent the Constitution and laws of the
United States are applicable, whether the use of such
standards and procedures to make the determination
is consistent with the Constitution and laws of the
United States.
et ee
20a
(D) TERMINATION ON RELEASE FROM CUSTODY. —
The jurisdiction of the United States Court of Appeals
for the District of Columbia Circuit with respect to the
claims of an alien under this paragraph shall cease upon
the release of such alien from the custody of the
Department of Defense.
(3) REVIEW OF FINAL DECISIONS OF MILITARY
COMMISSIONS. —
(A) IN GENERAL. — Subject to subparagraphs (B),
(C), and (D), the United States Court of Appeals for the
District of Columbia Circuit shall have exclusive
jurisdiction to determine the validity of any final
decision rendered pursuant to Military Commission
Order No. 1, dated August 31, 2005 (or any successor
military order).
(B) GRANT OF REVIEW. — Review under this
paragraph —
(1) with respect to a capital case or a case in
which the alien was sentenced to a term of
imprisonment of 10 years or more, shall be as of
right; or
(11) with respect to any other case, shall be at the
discretion of the United States Court of Appeals for
the District of Columbia Circuit.
(C) LIMITATION ON APPEALS. — The jurisdiction of
the United States Court of Appeals for the District of
Columbia Circuit under this paragraph shall be limited
to an appeal brought by or on behalf of an alien —
(1) who was, at the time of the proceedings
pursuant to the military order referred to in
subparagraph (A), detained by the Department of
Defense at Guantanamo Bay, Cuba; and
(11) for whom a final decision has been rendered
pursuant to such military order.
(D) Scope OF REVIEW. — The jurisdiction of the
United States Court of Appeals for the District of
Columbia Circuit on an appeal of a final decision with
2la
respect to an alien under this paragraph shall be limited
to the consideration of -—-
(i) whether the final decision was consistent
with the standards and procedures specified in the
military order referred to in subparagraph (A); and
(11) to the extent the Constitution and laws of the
United States are applicable, whether the use of such
standards and procedures to reach the final decision
is consistent with the Constitution and laws of the
United States.
(4) RESPONDENT. — The Secretary of Defense shall be
the named respondent in any appeal to the United States
Court of Appeals for the District of Columbia Circuit under
this subsection.
(h) EFFECTIVE DATE. —
(1) IN GENERAL. — This section shall take effect on the
date of the enactment of this Act.
(2) REVIEW OF COMBATANT STATUS TRIBUNAL AND
MILITARY COMMISSION DECISIONS. — Paragraphs (2) and
(3) of subsection (e) shall apply with respect to any claim
whose review is governed by one of such paragraphs and
that is pending on or after the date of the enactment of this
Act.
22a
2. The Military Commissions Act of 2006, Pub. L. No. 109-366,
120 Stat. 2600, provides in relevant part:
SEC. 3. MILITARY COMMISSIONS.
(a) MILITARY COMMISSIONS. —
(1) IN GENERAL. — Subtitle A of title 10, United States
Code, is amended by inserting after chapter 47 the following
new chapter:
“CHAPTER 47A—MILITARY COMMISSIONS
Ҥ 948a. Definitions
“In this chapter:
“(1) UNLAWFUL ENEMY COMBATANT. —
(A) The term ‘unlawful enemy combatant’ means —
“(1) a person who has engaged in hostilities or who has
purposefully and materially supported hostilities against the
United States or its co-belligerents who is not a lawful
enemy combatant (including a person who is part of the
Taliban, al Qaeda, or associated forces); or
“(i1) a person who, before, on, or after the date of the
enactment of the Military Commissions Act of 2006, has
been determined to be an unlawful enemy combatant by a
Combatant Status Review Tribunal or another competent
tribunal established under the authority of the President or
the Secretary of Defense.
*(B) CO-BELLIGERENT. — In this paragraph, the term ‘co-
belligerent’, with respect to the United States, means any State
or armed force joining and directly engaged with the United
States in hostilities or directly supporting hostilities against a
common enemy.”
Ҥ 948c. Persons subject to military commissions
“Any alien unlawful enemy combatant is subject to trial by
military commission under this chapter.”
Ҥ 948d. Jurisdiction of military commissions
“(a) JURISDICTION. —- A military commission under this chapter
shall have jurisdiction to try any offense made punishable by
this chapter or the law of war when committed by an alien
unlawful. enemy combatant before, on, or after September 11,
2001.
“(b) LAWFUL ENEMY COMBATANTS. — Military commissions
under this chapter shall not have jurisdiction over lawful enemy
combatants. Lawful enemy combatants who violate the law of
war are subject to chapter 47 of this title. Courts-martial
established under that chapter shall have jurisdiction to try a
lawful enemy combatant for any offense made punishable under
this chapter.
“(c) DETERMINATION OF UNLAWFUL ENEMY COMBATANT
STATUS Dispositive. — A finding, whether before, on, or after
the date of the enactment of the Military Commissions Act of
2006, by a Combatant Status Review Tribunal or another
competent tribunal established under the authority of the
President or the Secretary of Defense that a person is an
unlawful enemy combatant is dispositive for purposes of
jurisdiction for trial by military commission under this chapter.
“(d) PUNISHMENTS. — A military commission under this chapter
may, under such limitations as the Secretary of Defense may
prescribe, adjudge any punishment not forbidden by this
chapter, including the penalty of death when authorized under
this chapter or the law of war.”
Ҥ 950g. Review by the United States Court of Appeals for the
District of Columbia Circuit and the Supreme Court
24a
“(a) EXCLUSIVE APPELLATE JURISDICTION. — (1)(A) Except as
provided in subparagraph (B), the United States Court of
Appeals for the District of Columbia Circuit shall have
exclusive jurisdiction to determine the validity of a final
judgment rendered by a military commission (as approved by
the convening authority) under this chapter.
“(B) The Court of Appeals may not review the final
judgment until all other appeals under this chapter have
been waived or exhausted.
“(2) A petition for review must be filed by the accused in
the Court of Appeals not later than 20 days after the date on
which —
“(A) written notice of the final decision of the Court of
Military Commission Review is served on the accused or on
defense counsel; or
“(B) the accused submits, in the form prescribed by
section 950c of this title, a written notice waiving the right
of the accused to review by the Court of Military
Commission Review under section 950f of this title.
“(b) STANDARD FOR REVIEW. — In a case reviewed by it under
this section, the Court of Appeals may act only with respect to
matters of law.
“(c) SCOPE OF REVIEW. — The jurisdiction of the Court of
Appeals on an appeal under subsection (a) shall be limited to the
consideration of —
“(1) whether the final decision was consistent with the
standards and procedures specified in this chapter; and
(2) to the extent applicable, the Constitution and the laws
of the United States.
“(d) SUPREME CouRT. — The Supreme Court may review by
writ of certiorari the final judgment of the Court of Appeals
pursuant to section 1257 of title 28.”
Ҥ 950). Finality or proceedings, findings, and sentences
25a -
“(a) FINALITY. — The appellate review of records of trial
provided by this chapter, and the proceedings, findings, and
sentences of military commissions as approved, reviewed, or
affirmed as required by this chapter, are final and conclusive.
Orders publishing the proceedings of military commissions
under this chapter are binding upon all departments, courts,
agencies, and officers of the United States, except as otherwise
provided by the President.
“(b) PROVISIONS OF CHAPTER SOLE BASIS FOR REVIEW OF
MILITARY COMMISSION PROCEDURES AND ACTIONS. — Except
as otherwise provided in this chapter and notwithstanding any
other provision of law (including section 2241 of title 28 or any
other habeas corpus provision), no court, justice, or judge shall
have jurisdiction to hear or consider any claim or cause of
action whatsoever, including any action pending on or filed
after the date of the enactment of the Military Commissions Act
of 2006, relating to the prosecution, trial, or judgment of a
military commission under this chapter, including challenges to
the lawfulness of procedures of military commissions under this
chapter.”
Ҥ 950p. Statement of substantive offenses
“(a) PURPOSE. — The provisions of this subchapter codify
offenses that have traditionally been triable by military
commissions. This chapter does not establish new crimes that
did not exist before its enactment, but rather codifies those
crimes for trial by military commission.
“(b) EFFECT. — Because the provisions of this subchapter
(including provisions that incorporate definitions in other
provisions of law) are declarative of existing law, they do not
preclude trial for crimes that occurred before the date of the
enactment of this chapter.”
26a
Ҥ 950v. Crimes triable by military commissions:
(24) TERRORISM. — Any person subject to this chapter who
intentionally kills or inflicts great bodily harm on one or more
protected persons, or intentionally engages in an act that evinces
a wanton disregard for human life, in a manner calculated to
influence or affect the conduct of government or civilian
population by intimidation or coercion, or to retaliate against
government conduct, shall be punished, if death results to one or
more of the victims, by death or such other punishment as a
military commission under this chapter may direct, and, if death
does not result to any of the victims, by such punishment, other
than death, as a military commission under this chapter may
direct.
(25) PROVIDING MATERIAL SUPPORT FOR TERRORISM — “
“(A) OFFENSE. — Any person subject to this chapter who
provides material support or resources, knowing or intending
that they are to be used in preparation for, or in carrying out, an
act of terrorism (as set forth in paragraph (24)), or who
intentionally provides material support or resources to an
international terrorist organization engaged in hostilities against
the United States, knowing that such organization has engaged
or engages in terrorism (as so set forth), shall be punished as a
military commission under this chapter may direct.
“(B) MATERIAL SUPPORT OR RESOURCES DEFINED. — In this
paragraph, the term ‘material support or resources’ has the
meaning given that term in section 2339A(b) of title 18.”
(28) CONSPIRACY. — Any person subject to this chapter who
conspires to commit one or more substantive offenses triable by
military commission under this chapter, and who knowingly
does any overt act to effect the object of the conspiracy, shall be
punished, if death results to one or more of the victims, by death
or such other punishment as a military commission under this
chapter may direct, and, if death does not result to any of the
victims, by such punishment, other than death, as a military
commission under this chapter may direct.”
SEC. 7. HABEAS CORPUS MATTERS.
(a) IN GENERAL. — Section 2241 of title 28, United States
Code, is amended by striking both the subsection (e) added by
section 1005(e)(1) of Public Law 109-148 (119 Stat. 2742) and
the subsection (e) added by added by section 1405(e)(1) of
Public Law 109-163 (119 Stat. 3477) and inserting the
following new subsection (e):
“(e)(1) No court, justice, or judge shall have jurisdiction to
hear or consider an application for a writ of habeas corpus filed
by or on behalf of an alien detained by the United States who
has been determined by the United States to have been properly
detained as an enemy combatant or is awaiting such
determination.
“(2) Except as provided in paragraphs (2) and (3) of section
1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801
note), no court, justice, or judge shall have jurisdiction to hear
or consider any other action against the United States or its
agents relating to any aspect of the detention, transfer,
treatment, trial, or conditions of confinement of an alien who is
or was detained by the United States and has been determined
by the United States to have been properly detained as an enemy
combatant or is awaiting such determination.”.
(b) EFFECTIVE DATE. — The amendment made by subsection (a)
shall take effect on the date of the enactment of this Act, and
shall apply to all cases, without exception, pending on or after
the date of the enactment of this Act which relate to any aspect
of the detention, transfer, treatment, trial, or conditions of
detention of an alien detained by the United States since
September 11, 2001.
28a
SEC. 9. REVIEW OF JUDGMENTS OF MILITARY
COMMISSIONS.
Section 1005(c)(3) of the Detainee Treatment Act of 2005 (title
X of Public Law 109-148; 119 Stat. 2740; 10 U.S.C. 801 note)
is amended —
(1) in subparagraph (A), by striking “pursuant to Military
Commission Order No. |. dated August 31, 2005 (or any
successor military order)” and inserting “by a_ military
commission under chapter 47A of title 10, United States Code”;
(2) by striking subparagraph (B) and inserting the following
new subparagraph (B):
“(B) GRANT OF REVIEW. — Review under this paragraph
shall be as of right.”;
(3) in subparagraph (C) —-
(A) in clause (1) —
(i) by striking “pursuant to the military order” and
inserting “by a military commission”; and
(11) by striking “at Guantanamo Bay, Cuba”; and
(B) in clause (it), by striking “pursuant to such military
order” and inserting “by the military commission”; and
(4) in subparagraph (D)(i), by striking “specified in the military
order” and inserting “specified for a military commission”.
* * *
SEC. 10. DETENTION COVERED BY REVIEW OF
DECISIONS OF COMBATANT STATUS REVIEW
TRIBUNALS OF PROPRIETY OF DETENTION.
Section 1005(e)(2)(B)(i) of the Detainee Treatment Act of 2005
(title X of Public Law 109-148; 119 Stat. 2742; 10 U.S.C. 801
note) is amended by striking “the Department of Defense at
Guantanamo Bay, Cuba” and inserting “the United States”.
18 U.S.C. § 2339A(b).
(b) Definitions. — As used in this section —
(1) the term “material support or resources” means any
property, tangible or intangible, or service, including currency
or monetary instruments or financial securities, financial
services, lodging, training, expert advice or assistance,
safehouses, false documentation or identification,
communications equipment, facilities, weapons, lethal
substances, explosives, personnel {1 or more individuals who
may be or include oneself), and transportation, except medicine
or religious materials.
30a
APPENDIX D
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SALIM AHMED HAMDAN,
Petitioner,
CIVIL ACTION NO.
Vv. 1:04-cv-01519-JR
DONALD H. RUMSFELD, NOTICE OF APPEAL
United States Secretary of
Defense, ef al.,
Respondents.
Notice is hereby given that Salim Ahmed Hamdan,
Petitioner in the above-named case, hereby appeals to the
United States Court of Appeals for the District of Columbia
Circuit, from an Order dismissing the case for lack of subject-
matter jurisdiction entered in this action on the 13th day of
December, 2006.
LIEUTENANT COMMANDER CHARLES
SWIFT
By /s/ Licutenant Commander Charles Swift
Lieutenant Commander Charles Swift
N.C. Bar #21084
PERKINS COIE LLP
By _ /s/ Joseph M. McMillan
Harry H. Schneider, Jr. (pro hac vice)
Joseph M. McMillan (pro hac vice)
Charles C. Sipos (pro hac vice)
NEAL KATYAL
By _/s/ Neal Katyal
Neal Katyal, D.C. Bar #462071
600 New Jersey Avenue, NW
3la
Washington, D.C. 20001
(202) 662-9000
Attorneys for Petitioner Salim Ahmed Hamdan
CERTIFICATE OF SERVICE
I hereby certify that on February 5, 2007, copies of the
foregoing Notice of Appeal, was served by electronic mail
upon the following:
Jonathan L. Marcus
Appellate Section, Criminal Division
U.S. Department of Justice
950 Pennsylvania Avenue, NW, Room 5636
Washington, D.C. 20530
(202) 514-8976
(202) 307-4613 (facsimile)
Jonathan.L.Marcus@usdoj.gov
Terry Henry
Thomas Swanton
Civil Division
Federal Programs Branch
U.S. Department of Justice
20 Massachusetts Avenue, NW, Room 7144
Washington, DC 20530
(202) 514-4107
(202) 616-8470 (facsimile)
Terry.Henry@usdo}.gov
Thomas.Swanton2@usdoj.gov
Attorneys for Respondents
/s/ Joseph M. McMillan
Joseph M. McMillan
32a
APPENDIX E
NOTIFICATION OF THE SWEARING OF CHARGES
DEPARTMENT OF DEFENSE
OFFICE OF THE CHIEF PROSECUTOR
OFFICE OF MILITARY COMMISSIONS
1610 DEFENSE PENTAGON
WASHINGTON, DC 20301-1610
(day) (month) (year)
MEMORANDUM FOR Detainee Salim Ahmed Hamdan 0149,
Guantanamo Bay, Cuba
SUBJECT: Notification of the Swearing of Charges
1. You are hereby notified that criminal charges were sworn
against youonthe _ day of , 2007, pursuant to the
Military Commissions Act of 2006 (MCA) and the Manual for
Military Commissions (MMC). A copy of this notice is being
provided to you and to your detailed defense counsel.
2. Specifically, you are charged with the following offenses:
PROVIDING MATERIAL SUPPORT FOR TERRORISM
CONSPIRACY
(Read the charges and specifications to the accused. If
necessary, an interpreter may read the charges in a language,
other than English, that the accused understands.)
33a
AFFIDAVIT OF NOTIFICATION
I hereby certify that a copy of this document was provided
to the named detainee this _ day of , 2007.
Signature Organization
Typed or Printed Name and Address of Organization
Grade
34a
CHARGE SHEET
]. PERSONAL DATA
1. NAME OF ACCUSED:
SALIM AHMED HAMDAN (hereafter "Hamdan")
2. ALIASES OF ACCUSED:
Salim Ahmad Hamdan, Salem Ahmed Salem Hamdan, Saqr
al Jadawy, Saqr al Jaddawi, Khalid bin Abdalla, Khalid wld
Abdallah
3. ISN NUMBER OF ACCUSED (LAST FOUR):
0149
1]. CHARGES AND SPECIFICATIONS
4. CHARGE: VIOLATION OF SECTION AND TITLE
OF CRIME IN PART IV OF M.M.C.
SPECIFICATION: (See Attached Charge Sheet)
35a
Ill. SWEARING OF CHARGES
Sa. NAME OF Sb. Sec.
ACCUSER (Last, First, | GRADE | ORGANIZATION
MI) OF ACCUSER
0-4
TUBBS II, MARVIN, W OMC-
: PROSECUTION
5d. SIGNATURE OF ACCUSER Se. DATE
(YYYYMMDD)
s/ Marvin Tubbs 20070405
AFFIDAVIT: Before me, the undersigned, authorized by
law to administer oath in cases of this character, personally
appeared the above named accuser the Sth day of April,
2007 , and signed the foregoing charges and specifications
under oath that he/she is a person subject to the Uniform
Code of Military Justice and that he/she has personal
knowledge of or has investigated the matters set forth therein
and that the same are true to the best of his/her knowledge
and belief.
WILLIAM B. BRITT OMC-PROSECUTION
Typed Name of Officer Organization of Officer
O-5 10 U.S.C. 1044(b)
Grade Official Capacity to
Administer Oath
s/ WILLIAM B. BRITT (See R.M.C. 307(b) must be
Signature commissioned officer)
36a
IV. NOTICE TO THE ACCUSED
6. On Sth April , 2007 _ the accused was notified
of the charges against him/her (See R.M.C. 308).
LTC WILLIAM B. BRITT | OMC-PROSECUTION
Typed Name and Grade of Organization of the Person
Person Who Caused Accused | Who Caused Accused to Be
to Be Notified of Charges Notified of Charges
s/ WILLIAM B. BRITT
Signature
V. RECEIPT OF CHARGES BY CONVENING
AUTHORITY
7. The sworn charges were received at__1411 hours, on
6 April 2007 _, at Arlington, Virginia
Location
For the Convening Authority: _ Jennifer D. Young
Typed Name of Officer
CW3
Grade
s/ Jennifer D. Young
Signature
37a
VI. REFERRAL
8a. DESIGNATION OF 8b. 8c. DATE
CONVENING PLACE (YYYYMMDD)
AUTHORITY Arlington, | 20070510
Convening Authority Virginia
1O0USC §948h
Appointed on 6 Feb 2007
Referred for trial to the (non)capital military commission
convening order _ 07-04
dated 1 May 2007
____ subject to the following instructions':_this case is
referred non-capital
By of
Command, Order, or Direction
Susan J, Crawford Convening Authority 10OUSC
Typed Name and Grade 948h
of Officer Official Capacity of Officer
Signing
s/ Susan J. Crawford
Signature
38a
VII. SERVICE OF CHARGES
9. On ’ 2007 I (caused to be) served a
copy these charges on the above named accused.
WILLIAM B. BRITT O-5
Typed Name of Trial Grade of Trial Counsel
Counsel
Signature of Trial
Counsel
FOOTNOTES
' See R.M.C. 601 conceming instructions. If none, so state.
39a
)
UNITED STATES OF AMERICA ) CHARGES
)
) Conspiracy
V )
) Providing Material
) Support for Terrorism
SALIM AHMED HAMDAN )
(hereaiter “Hamdan”) )
)
CHARGE I: VIOLATION OF 10 U.S.C. §950v(b)(28),
CONSPIRACY
Specification 1: In that Hamdan, a person subject to trial by
military commission as an alien unlawful enemy combatant,
did, in Afghanistan and other countries, from in or about
February 1996 to on or about November 24, 2001, conspire and
agree with Usama bin Laden, SaiatAdel, Ayman al Zawahari,
Sheikh Sayeed al Masri, Muhammad Atef (a/k/a Abu Hafs al
Masri), Saif al Adel and various members and associates,
known and unknown, of the al Qaeda organization and join an
enterprise of persons known as al Qaeda, and said al Qaeda
engaged in hostilities against the United States, including the
1998 attack against the American Embassies in Kenya and
Tanzania, the 2000 attack against the USS Cole, the
September 11, 2001 attack against the United States and other,
separate attacks, continuing to date and the aforementioned
members and associates of al Qaeda shared a common criminal
purpose that involved the commission or intended commission
of one or more substantive offenses subject to trial by military
commission, to wit: attacking civilians; attacking civilian
objects; murder in violation of the law of war; destruction of
property in violation of the law of war; hijaeking-or-hazarding-a
vesseloraireraft: and terrorism and the said Hamdan knew the
unlawful purpose of the agreement and the common criminal
40a
purpose of the enterprise and joined willfully, with the intent to
further said unlawful purpose, and in order to accomplish some
objective or purpose of the agreement or enterprise, Hamdan
knowingly committed at least one of the following overt acts:
a. Hamdan served as bodyguard for Usama Bin Laden;
b. Hamdan served as Usama Bin Laden's personal driver;
c. Hamdan transported and _ delivered weapons,
ammunition or other supplies to al Qaeda members and
associates;
d. Hamdan drove or accompanied Usama bin Laden to
various al Qaeda-sponsored training camps, press conferences,
or lectures.
e. Hamdan, on various occasions, received weapons
training in Afghanistan.
Specification 2: In that Hamdan, a person subject to trial by
military commission as an alien unlawful enemy combatant,
did, in Afghanistan, on or about November 24, 2001, willfully
enter into an agreement with one or more known or unknown
members of al Qaeda or Taliban to commit the offense of
Murder in Violation of the Law of War, a substantive offense
subject to trial by military commission, to wit: the murder of
United States or Coalition service members serving as pilots,
crew or passengers of United States or Coalition military
aircraft, knowing the unlawful purpose of said agreement and
joining into said agrecment willingly with the intent to further
said unlawful purpose, knowingly commit an overt act in order
to accomplish some objective or purpose of said agreement, to
wit, transporting one or more SA-7 surface to air missiles to be
ultimately used to unlawfully and intentionally kill said United
States or Coalition service members.
4lia
CHARGE II: VIOLATION OF 10 U.S.C. §950v(b)(25) —
PROVIDING MATERIAL SUPPORT FOR TERRORISM
Specification 1: In that Hamdan, a person subject to trial by
military commission as an alien unlawful enemy combatant,
did, in Afghanistan and other countries, from in or about
February 1996 to on or about November 24, 2001, in the context
of or associated with an armed conflict, provide material
support and resources to wit: personnel, himself, to be used in
preparation for or carrying out an act of terrorism, and that the
said Hamdan knew the said material support or resources were
to be used for an act of terrorism, by joining the terrorist
organization known as al Qaeda and performing at least one of
the following: -
a. Received training at an al Qaeda training camp;
b. Served as a driver for Usama bin Laden transporting
him to various locations in Afghanistan;
c. Served as Usama bin Laden's armed bodyguard at
various locations throughout Afghanistan;
d. Transported weapons or weapons systems or other
supplies for the purpose of delivering or attempting to deliver
said weapons or weapons systems to Taliban or al Qaeda
members and associates.
Specification 2: In that Hamdan, a person subject to trial by
military commission as an alien unlawful enemy combatant,
did, in Afghanistan and other countries, from in or about
February 1996 to on or about November 24, 2001, in context of
or associated with an armed conflict and with knowledge that al
Qaeda has engaged in or engages in terrorism, did provide
material support or resources, to wit: personnel, himself, to al
Qaeda, an international terrorist organization engaged in
hostilities against the United States, with the intent to provide
such material support and resources to al Qaeda, by becoming a
member of the organization and performing at least one of the
following:
42a
a. Received training at an al Qaeda training camp;
b. Served as a driver for Usama bin Laden transporting
him to various locations in Afghanistan;
¢. Served as Usama bin Laden's armed bodyguard at
various locations throughout Afghanistan;
d. Transported weapons or weapons systems or other
supplies for the purpose of delivering or attempting to deliver
said weapons or weapons systems to Taliban or al Qaeda
members and associates.
Specification 3: In that Hamdan, a person subject to trial by
military commission as an alien unlawful enemy combatant,
did, in Afghanistan, on or about November 24, 2001, in the
context of or associated with an armed conflict, provide material
support and resources to wit: weapons and weapons systems, to
wit; one or more SA-7 surface to air missiles, to be used in
preparation for or carrying out an act of terrorism, and the said
Hamdan knew these missiles were to be used for an act of
terrorism, by joining the terrorist organization known as al
Qaeda and knowingly providing one or more SA-7 surface to air
missiles to members of al Qaeda, Taliban or others directly
associated with said organizations.
Specification 4: In that Hamdan, a person subject to trial by
military commission as an alien unlawful enemy combatant,
did, in Afghanistan, on or about November 24, 2001, in the
context of or associated with an armed conflict and with
knowledge that al Qaeda, has engaged in or engages in
terrorism, did provide material support or resources, to wit,
weapons and weapons systems, to wit; one or more SA-7
surface to air missiles to al Qaeda, an international terrorist
organization engaged in hostilities against the United States,
with the intent to provide such material support and resources\to
al Qaeda, by knowingly providing one or more SA-7 surface to
air missiles to members of al Qaeda, Taliban or others directly
associated with said organizations.
43a
Specification 5: In that Hamdan, a person subject to trial by
military commission as an alien unlawful enemy combatant,
did, in Afghanistan and other countries, from in or about
February 1996 to on or about November 24, 2001, in the context
of or associated with an armed conflict, provide material
support and resources to wit: service or transportation by
serving as a driver for Usama bin Laden by transporting him to
various locations in Afghanistan knowing that by providing said
service or transportation he was directly facilitating
communication and planning used for an act of terrorism.
Specification 6: In that Hamdan, a person subject to trial by
military commission as an alien unlawful enemy combatant,
did, in Afghanistan and other countries, from in or about
February 1996 to on or about November 24, 2001, in the context
of or associated with an armed conflict and with knowledge that
al Qaeda, an international terrorist organization engaged in
hostilities against the United States, had engaged in or engages
in terrorism, intentionally provide material support or resources
to al Qaeda, to wit: service or transportation to Usama bin
Laden by transporting him to various areas in Afghanistan
knowing that by providing said service or transportation he was
directly facilitating communication and planning used for acts
of terrorism.
Specification 7: In that Hamdan, a person subject to trial by
military commission as an alien unlawful enemy combatant,
did, in Afghanistan and other countries, from in or about
February 1996 to on or about November 24, 2001, in the context
of or associated with an armed conflict, provide material
support and resources to wit: service as an armed body guard for
Usama bin Laden, knowing that by providing said service as an
armed bodyguard he was protecting the leader of al Qaeda and
facilitating communication and planning used for acts of
terrorism.
Specification 8: In that Hamdan, a person subject to trial by
military commission as an alien unlawful enemy combatant,
did, in Afghanistan and other countries, from in or about
February 1996 to on or about November 24, 2001, in the context
of or associated with an armed conflict and with knowledge that
al Qaeda, an international terrorist organization has engaged in
44a
hostilities against the United States, had engaged in or engages
in terrorism, intentionally provide material support or resources,
to al Qaeda, to wit: service as an armed body guard for Usama
bin Laden by knowing that by providing said service as an
armed body guard for Usama bin Laden he was protecting the
leader of al Qaeda and facilitating communication and planning
used for acts of terrorism.
45a
APPENDIX F
LORD GOLDSMITH, ATTORNEY GENERAL
OF THE UNITED KINGDOM TO THE HOUSE OF
DELEGATES MEETING OF THE AMERICAN
BAR ASSOCIATION
FEBRUARY 12, 2007
It is an honor and a pleasure to have been invited to
address you today. The American Bar Association is a great
organization admired and listened to by lawyers around the
world. It is a privilege therefore to address you, the House of
Delegates who represent the lawyers of America at the heart of
the ABA.
It is also a pleasure because of the close ties between the
American Bar Association and the legal profession in my
country. Those links go back many years. In the Middle
Temple, one of the great Inns of Court, for example, the
generosity of the ABA in helping to rebuild the great Hall,
badly damage in enemy action is commemorated. At
.Runnymede the ABA created a memorial to the signing of
Magna Carta, the great charter whose principles underlie both
our countries’ legal and democratic systems. And over the years
the ABA has celebrated its annual meetings in London from
time to time. Most recently in the year 2000.
The millennium year was a symbolic year to celebrate
our close legal traditions in this year. That celebration included
the publication by the ABA of a collection of essays by
American and British legal scholars and judges entitled
Common Law, Common Values, Common Rights. | was
privileged to be involved in that project which brought together
great American judges such as Chief Justice Judith Kay of New
York and Supreme Court Justice Anthony Kennedy and
equivalent figures from our own judiciary.
_ Participating in the project brought home to me how
very strong are our ties of the common law and of our common
46a
democratic values. It was the common law in which the
founding fathers of this country had confidence, brought by the
settlers as part of their culture and adapted to suit the social and
economic conditions of the New World.
You reflect that common heritage in the ABA’s logo:
“Defending Liberty and Pursuing Justice.”
These are great and proper ideals which we share. They
may not always be comfortable to pursue; it may mean
defending clients whose conduct causes revulsion or whose
Causes are unpopular. But part of defending liberty and pursuing
justice is to take on those cases too. Which is why so many who
understand these principles were shocked — as | was — when it
appeared that a senior Pentagon official was condoning
criticism of firms prepared to take on the cases of some of those
detained in Guantanamo Bay.
There is a long history in this country, as in mine, of
lawyers defending those with unpopular causes without it being
thought that the lawyers share the same views as their clients.
So John Adams, later to become second President of the
USA, rose to this challenge when as a young lawyer he courted
strong personal unpopularity and a major reduction in his
practice to defend British soldiers involved in the Boston
Massacre of 1770.
In the decision of the House of Lords in Medcalf v.
Weatherill (2003) the House underlined the importance of this
constitutional safeguard describing it as “too often taken for
granted.”
“Unpopular and seemingly unmeritorious litigants must
be capable of being represented without the advocate being
penalized or harassed whether by the Executive, the Judiciary or
by anyone else.”
I know that the Pentagon official involved has since
apologized and resigned and his remarks repudiated by the
Administration. I don’t come to make any personal attack, but |
assure you that remarks of that sort are vicwed from across the
Atlantic as unjust, unacceptable and un-American.
47a
The ABA’s logo encapsulates the ideals for which
America has been renowned. Indeed America is a country with
a proud tradition as a beacon of freedom, liberty and of justice
— assisting my country to free Europe from tyrants in two
world wars. American laws have been a model to which others
have aspired.
| And I am pleased to be able to pay tribute to the work
that the ABA has done and supported, for example, by its
sponsorship of support of the Central and Eastern European
Law Initiative, the CEELI program to help bring stable and
independent legal systems to countries emerging from
communist dictatorship or torn by civil war. This too has been a
model of the values the ABA stands for.
My country has worked too in these important areas,
supporting countries, their judges and their lawyers to
strengthen the rule of law; and to help build capacity to increase
access to justice. There is much that has been done. I have been
privileged to see some of it and to hear the benefits it has
brought -- such as the help in training black lawyers in the new
South Africa; or the help in rehabilitating prisoners I saw in the
slums of Nairobi; or the teaching of principles of human rights
law to the judges of Iraq trying to recreate a legal system in
which the public can have confidence after 30 years of
Baathism.
But I believe we can do more. Which is why we are
creating new networks of legal assistance to bring together not
only the work that is done by Government and lawyers in the
public sector — but lawyers and judges in the private sector. ]
was privileged recently to chair the first meetings of
coordinating committees to bring this into being; and to harness
the expertise and wisdom of lawyers and judges with the
development skills and resources of government.
I foresee the possibility of greater international
cooperation too. We should look, for example, at ways to
complement the work other countries and organizations, such as
the ABA are doing in these fields. That could be a profitable
48a
subject for greater discussion and, if there is interest | would be
willing to take this forward.
But as well as sharing a great legal tradition, we share
problems too.
One of the most profound, in my view, for our legal
system has been how to balance the need to protect our national
security and the lives of our citizens after the terrors of 9/11 and
the outrages which have followed, including the London
underground bombings of 7/7 with the need to protect our civil
liberties.
I believe, and have long asserted, that governments have
an obligation to protect both: our national security but also our
fundamental human rights. Our socicties are based on these
values; on commitment to liberty and to the rule of law; to our
democratic way of life; to freedom of expression and thought;
freedom from arbitrary arrest and to fair trial. These liberties
were hard fought by our ancestors over the years: from Magna
Carta at Runnymede; in the Declaration of Independence and on
the fields of battle of the Second World War. They are actually
freedoms and liberties and values which the terrorists would
destroy. This makes it all the more important that we continue
to hold them dear and preserve them.
Striking this balance is not easy. For the threats from
terrorism are large. We in my country have not found this easy.
We have strengthened our criminal law to meet the conditions
of modern terrorism; and we have invested significantly in our
front law enforcement agencies and security and intelligence
services.
I do not believe the threat that we face can be ignored.
So it is right to consider whether changes to existing laws are
needed. Indeed even the great human rights instruments of the
world, such as the Universal Declaration of Human Rights — in
Article 29 — and the European Convention of Human Rights —
in many individual articles and in Article 15 particularly —
recognize that some times rights have to be adjusted or
exceptionally derogated from in the interests of the community
more widely.
49a
But this does not give an unlimited license it to throw
away our values for the sake of expediency. It can only be
undertaken in a principled way.
I would single out three principles.
First, we must respect the rule of law.
That means adhering to our domestic and international
legal obligations. These cannot simply be ignored or set aside.
Respecting the rule of law means too subjecting
executive action to the scrutiny of the democratic institutions
but also of the courts. Judicial scrutiny is a key part of the rule
of law. It was to us shocking that until the Supreme Court ruled
otherwise in the Rasul v. President Bush decision it was thought
appropriate to assert that the legality of detentions in a US.
facility under U.S. control could not be the subject of
consideration by the U.S. courts.
Second, it is essential to maintain the commitment to
fundamental values and freedoms. That means that whilst there
are some rights which are subject to adjustment to safeguard the
rights of others — the right to privacy, for example, must allow
for exceptions to help fight crime or preserve the legitimate
rights of others — there are other rights which are non-
negotiable.
The third principle is that in those cases where it is
permissible to adjust the way that rights are protected to meet a
new challenge or even to derogate from them, only those
changes which are necessary to meet the new challenge — and
not merely desirable — and which are proportionate to the
challenge can be allowed.
The prohibition on torture is one such right on which |
would say we should not compromise — one reason why
Common Article 3 of the Geneva Conventions is such an
important part of a civilized world. The right to a fair trial is
another.
In this respect my view of the original Military
Commissions for those detained at Guantanamo Bay are well
known. Charged with my Prime Minister with considering
whether they provided appropriate and sufficient guarantees of a
50a
fair trial | considered the rules and regulations in detail over a
period of months in the summer and fall of 2003. My clear
conclusion was that the Military Commissions did not provide
such guarantees. | advised that we should not allow our citizens
to stand trial in such circumstances and insisted that they be
returned to the U.K. — which ultimately they were.
I am aware of the changes that have now been made,
following the Military Commissions Act signed into law late
last year. | welcome some of the changes made — such as the
removal of the possibility that detainees would be convicted on
the basis of evidence heard in secret and that they had not seen
or had a chance to contradict; and the amendments made in
Senate to exclude evidence obtained by torture — though there
remain some definitional questions of importance. But | am
aware of criticisms that remain: of a law which treats aliens in a
different way from American citizens; that still allows coerced
evidence to be used in certain cases; that excludes the
application of habeas corpus. And others. Some — perhaps all
of these — will be the subject of further court challenges.
But, it would be misleading if I did not tell you my own
view. | have previously stated my view that Guantanamo Bay is
unacceptable and should close; it is a symbol of injustice that
the long tradition of American justice and liberty ought to see
removed at the carliest moment. I have not changed my view.
The changes made are too little and too late. There remain
fundamental problems with this system of detention. And the
symbol remains.
In saying this, | am conscious that some will say that
this is not for an outsider to say. That this is America’s decision.
I have increasingly been of the view that this is not so. | should
explain why.
The struggle against global extremism and terrorism is
one that ultimately we will not win by conventional means
alone. We increasingly recognize in the United Kingdom that
we will only win in the end if we can win the battle for ideas
and values. We need to win this struggle at the level of values as
much as force. In a major speech given in Los Angeles at last
/
Sla
summer, Prime Minister Tony Blair said that to win the war of
values we must show that “our values are stronger, better and
more just, more fair than the alternative” and that “we are even
handed, fair and just in our application of those values to the
world.”
We have to show, against an al Qaeda narrative that all
that the West does is designed to oppress Muslims, our values
are actually those of justice, tough and fearless but fair, and of
equality; of the democratic way of life; of the rule of law and of
freedom. The presence of Guantanamo makes it so much more
difficult to do this. For all of us. i
So too in relation to other areas of our activity. We must
show that our values of democracy, tolerance, acceptance of
diversity and justice are strong. We in my country must also
approach new laws as well as our public statements with the
need to win this battle for ideas in mind.
This battle for ideas and values is then, in my view, of
the greatest importance for our future. It is part of your function
to uphold the values of the law and of our common law. | have
great respect for this organization and | commend you in that
responsibility and in meeting the commitment your motto
makes clear: to defend liberty and pursue justice.
52a
APPENDIX G
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 2005 Decided February 20, 2007
No. 05-5062
Lakhdar Boumediene, Detainee, Camp Delta, et al.,
Appellants
George W. Bush, President of the United States, et al.,
Appellees
Consolidated with
05-5063
Appeals from the United States District Court
for the District of Columbia
(No. 04cv01142)
(No. 04cv01166)s——
No. 05-5064
Khaled A.F. Al Odah, Next Friend of Fawzi Khalid
Abdullah Fahad AI Odah et al.,
Appellcees/Cross-Appellants
53a
United States of America, et al.,
Appellants/Cross-Appellees
Consolidated with
05-5095, 05-5096, 05-5097, 05-5098, 05-5099, 05-5100,
05-5101, 05-5102, 05-5103, 05-5104, 05-5105, 05-5106,
05-5107, 05-5108, 05-5109, 05-5110, 05-5111, 05-5112,
05-5113, 05-5114, 05-5115, 05-5116
Appeals from the United States District Court
for the District of Columbia
(No. 02cv00828)
(No-02cv00299)
(No. 02cv01130)
(No. 02cv01135)
(No. 02cv01136)
(No. 02cv01137)
(No. 02cv01 144)
(No. 02cv01 164)
(No. 02cv01194)
(No. 02cv01227)
(No. 02cv01254)
—
Before: SENTELLE, RANDOLPH and ROGERS, Circuit Judges.
Opinion for the court filed by Circuit Judge RANDOLPH.
Dissenting opinion filed by Circuit Judge ROGERS.
RANDOLPH, Circuit Judge: Do federal courts have
jurisdiction over petitions for writs of habeas corpus filed by
aliens captured abroad and detained as enemy combatants at the
S4a
Guantanamo Bay Naval Base in Cuba? The question has been
the recurring subject of legislation and litigation. In these
consolidated appeals, foreign nationals held at Guantanamo
filed petitions for writs of habeas corpus alleging violations of
the Constitution, treaties, statutes, regulations, the common law,
and the law of nations. Some detainees also raised non-habeas
claims under the federal question statute, 28 U.S.C. § 1331, and
the Alien Tort Act, id. §1350. In the “Al Odah” cases (Nos. 05-
5064, 05-5095 through 05-5116), which consist of eleven cases
involving fifty-six detainees, Judge Green denied the
government's motion to dismiss with respect to the claims
arising from alleged violations of the Fifth Amendment's Duc
Process Clause and the Third Geneva Convention, but
dismissed all other claims. See /n re Guantanamo Detainee
Cases, 355 F. Supp. 2d 443 (D.D.C. 2005). After Judge Green
certified the order for interlocutory appeal under 28 U.S.C. §
1292(b), the government appealed and the detainees cross-
appealed. In the “Boumediene” cases (Nos. 05-5062 and 05-
5063) - two cases involving seven detainees - Judge Leon
granted the government's motion and dismissed the cases in
their entirety. See Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C.
2005).
In the two years since the district court's decisions the law
has undergone several changes. As a result, we have had two
oral arguments and four rounds of briefing in these cases during
that period. The developments that have brought us to this point
are as follows.
In Al Odah v. United States, 321 F.3d 1134 (D.C. Cir.
2003), rev'd sub nom. Rasul v. Bush, 542 U.S. 466 (2004), we
affirmed the district court's dismissal of various claims - habeas
and non-habeas - raised by Guantanamo detainees. With respect
to the habeas claims, we held that “no court in this country has
jurisdiction to grant habeas relief, under 28 U.S.C. § 2241, to
the Guantanamo detainees.” 321 F.3d at 1141. The habeas
statute then stated that “Writs of habeas corpus may be granted
by the Supreme Court, any justice thereof, the district courts and
any circuit judge within their respective jurisdictions.” 28
5Sa
U.S.C. § 2241(a) (2004). Because Guantanamo Bay was not
part of the sovereign territory of the United States, but rather
land the United States leases from Cuba, see Al Odah, 321 F.3d
at 1142-43, we determined it was not within the “respective
jurisdictions” of the district court or any other court in the
United States. We therefore held that § 2241 did not provide
statutory jurisdiction to consider habeas relief for any alien -
enemy or not - held at Guantanamo. /d. at 1141. Regarding the
non-habeas claims, we noted that “‘the privilege of litigation’
does not extend to aliens in military custody who have no
presence in ‘any territory over which the United States is
sovereign,” id. at 1144 (quoting Johnson v. Eiséntrager, 339
U.S. 763, 777-78 (1950)), and held that the district court
properly dismissed those claims.
The Supreme Court reversed in Rasul v. Bush, 542 U.S.
466 (2004), holding that the habeas statute extended to aliens at
Guantanamo. Although the detainees themselves were beyond
the district court's jurisdiction, the Court determined that the
district court's jurisdiction over the detainees' custodians was
sufficient to provide subject-matter jurisdiction under § 2241.
See Rasul, 542 U.S. at 483-84. The Court further held that the
district court had jurisdiction over the detainees’ non-habeas
claims because nothing in the federal question statute or the
Alien Tort Act categorically excluded aliens outside the United
States from bringing such claims. See Rasul, 542 U.S. at 484-
85. The Court remanded the cases to us, and we remanded them
to the district court.
In the meantime Congress responded with the Detainee
Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2680
(2005) (DTA), which the President signed into law on
December 30, 2005. The DTA added a subsection (e) to the
habeas statute. This new provision stated that, “[e]xcept as
provided in section 1005 of the [DTA], no court, justice, or
judge” may exercise jurisdiction over
(1) an application for a writ of habeas corpus filed by or
S6a
on behalf of an alien detained by the Department of
Defense at Guantanamo Bay, Cuba; or
(2) any other action against the United States or its
agents relating to any aspect of the detention by the
Department of Defense of an alicn at Guantanamo Bay,
Cuba, who
(A) is currently in military custody; or
(B) has been determined by the United States
Court of Appeals for the District of Columbia
Circuit ... to have been properly detained as an
enemy combatant.
DTA § 100S(e)(1) (internal quotation marks omitted). The
“except as provided” referred to subsections (e)(2) and (e)(3) of
section 1005 of the DTA, which provided for exclusive judicial
review of Combatant Status Review Tribunal determinations
and military commission decisions in the D.C. Circuit. See DTA
§ 1005(e)(2), (e)(3).
The following June, the Supreme Court decided Hamdan v.
Rumsfeld, 126 S. Ct. 2749 (2006). Among other things, the
Court held that the DTA did not strip federal courts of
jurisdiction over habeas cases pending at the time of the DTA's
enactment. The Court pointed to a provision of the DTA stating
that subsections (e)(2) and (c)(3) of section 1005 “shall apply
with respect to any claim ... that is pending on or after the date
of the enactment of this Act.” DTA § 1005(h). In contrast, no
provision of the DTA stated whether subsection (c)(1) applied
to pending cases. Finding that Congress “chose not to so
provide ... after having been presented with the option,” the
Court concluded “[t]he omission [wa]s an integral part of the
statutory scheme.” Hamdan, 126 S. Ct. at 2769.
S7a
In response to Hamdan, Congress passed the Military
Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600
(2006) (MCA), which the President signed into law on October
17, 2006. Section 7 of the MCA is entitled “Habeas Corpus
Matters.” In subsection (a), Congress again amended § 2241(e).
The new amendment reads:
(1) No court, justice, or judge shall have jurisdiction to
hear or consider an application for a writ of habeas
corpus filed by or on behalf of an alien detained by the
United States who has been determined by the United
States to have been properly detained as an enemy
combatant or is awaiting such determination.
(2) Except as provided in [section 1005(e)(2) and (e)(3)
of the DTA], no court, justice, or judge shall have
jurisdiction to hear or consider any other action against
the United States or its agents relating to any aspect of
the detention, transfer, treatment, trial, or conditions of
confinement of an alien who is or was detained by the
United States and has been determined by the United
States to have been properly detained as an enemy
combatant or is awaiting such determination.
MCA §& 7(a) (internal quotation marks omitted). Subsection (b)
states:
The amendment made by subsection (a) shall take effect
on the date of the enactment of this Act, and shall apply
to all cases, without exception, pending on or after the
date of the enactment of this Act which relate to any
aspect of the detention, transfer, treatment, trial, or
conditions of detention of an alien detained by the
United States since September 11, 2001.
MCA § 7(b) (emphasis added).
58a
The first question is whether the MCA applies to the
detainees’ habeas petitions. If the MCA does apply, the second
question is whether the statute is an unconstitutional suspension
of the writ of habeas corpus. !
As to the application of the MCA to these lawsuits, section
7(b) states that the amendment to the habeas corpus statute, 28
U.S.C. § 2241(e), “shall apply to all cases, without exception,
pending on or after the date of the enactment” that relate to
certain subjects. The detainees’ lawsuits fall within the subject
matter covered by the amended § 2241(e); each case relates to
an “aspect” of detention and each deals with the detention of an
“alien” after September 11, 2001. The MCA brings all such
“cases, without exception” within the new law.
Everyone who has followed the interaction between
Congress and the Supreme Court knows full well that one of the
primary purposes of the MCA was to overrule Hamdan.?
! Section 7(a) of the MCA eliminates jurisdiction over non-habeas
claims by aliens detained as enemy combatants. That alone is sufficient to
require dismissal even of pending non-habeas claims. See Bruner v.
United States, 343 U.S. 112, 116-17 (1952). Section 7(b) reinforces this
result.
Without exception, both the proponents and opponents of section 7
understood the provision to climinate habeas jurisdiction over pending
cases. See, e.g., 152 Cong. Rec. $10357 (daily ed. Sept. 28, 2006)
(statement of Sen. Leahy) (“The habeas stripping provisions in the bill go
far beyond what Congress did in the Detainee Treatment Act .... This new
bill strips habeas jurisdiction retroactively, even for pending cases.”); id.
at $10367 (statement of Sen. Graham) (“The only reason we are here is
because of the Hamdan decision. The Hamdan decision did not apply ...
the [DTA] retroactively, so we have about 200 and some habeas cases left
unattended and we are going to attend to them now.”); id. at $10403
(statement of Sen. Cornyn) (“[O]nce ... section 7 is effective, Congress
will finally accomplish what it sought to do through the [DTA] last year.
It will finally get the lawyers out of Guantanamo Bay. [t will substitute
the blizzard of litigation instigated by Rasu/ v. Bush with a narrow DC
Circuit-only review of the [CSRT] hearings.”); id. at $10404 (statement
of Sen. Sessions) (“It certainly was not my intent, when | voted for the
DTA, to exempt all of the pending Guantanamo lawsuits from the
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Everyone, that is, except the detainees. Their cases, they argue,
are not covered. The arguments are creative but not cogent. To
accept them would be to defy the will of Congress. Section 7(b)
could not be clearer. It states that “the amendment made by
subsection (a)” - which repeals habeas jurisdiction - applies to
“all cases, without exception” relating to any aspect of
detention. It is almost as if the proponents of these words were
slamming their fists on the table shouting “When we say ‘all,’
we mean all - without exception!” >
The detainees of course do not see it that way. They say
Congress should have expressly stated in section 7(b) that
habeas cases were included among “all cases, without
exception, pending on or after’ the MCA _ became law.
Otherwise, the MCA does not represent an “unambiguous
statutory directive[ ]” to repeal habeas corpus jurisdiction. /NS
v. St. Cyr, 533 U.S. 289, 299 (2001). This is nonsense. Section
7(b) specifies the effective date of section 7(a). The detainees'
argument means that Congress, in amending the habeas statute
(28 U.S.C. § 2241), specified an effective date only for non-
habeas cases. Of course Congress did nothing of the sort.
Habeas cases are simply a subset of cases dealing with
detention. See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 484
provisions of that act. * * * Section 7 of the [MCA] fixes this feature of
the DTA and ensures that there is no possibility of confusion in the
future.... | don't see how there could be any confusion as to the effect of
this act on the pending Guantanamo litigation. The MCA's jurisdictional
bar applies to that litigation ‘without exception.”’); 152 Cong. Rec.
H7938 (daily ed. Sept. 29, 2006) (statement of Rep. Hunter) (“The
practical effect of [section 7] will be to eliminate the hundreds of detainee
lawsuits that are pending in courts throughout the country and to
consolidate all detainee treatment cases in the D.C. Circuit.”); id. at
H7942 (Rep. Jackson-Lee) (“The habeas provisions in the legislation are
contrary to congressional intent in the [DTA]. In that act, Congress did
not intend to strip the courts of jurisdiction over the pending habeas
[cases].”).
3 Congress has rarely found it necessary to emphasize the absence
of exceptions to a clear rule. Indeed, the use of “without exception” to
emphasize the word “all” occurs in only one other provision of the
U.S.Code. See 48 U.S.C. § 526(a).
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(1973).4 Congress did not have to say that “the amendment
made by subsection (a)” - which already express/y includes
habeas cases - shall take effect on the date of enactment and
shall apply to “all cases, without exception, including habeas
cases.” The St. Cyr rule of interpretation the detainees invoke
demands clarity, not redundancy.
The detainees also ask us to compare the language of
section 7(b) to that of section 3 of the MCA. Section 3, entitled
“Military Commissions,” creates jurisdiction in the D.C. Circuit
for review of military commission decisions, see 10 U.S.C. §
950g. It then adds 10 U.S.C. § 950}, which deals with the
finality of military commission decisions. Section 950j strips
federal courts of jurisdiction over any pending or future cases
that would involve review of such decisions:
Except as otherwise provided in this chapter and
notwithstanding any other provision of law (including
section 2241 of title 28 or any other habeas corpus
provision), no court, justice, or judge shall have
jurisdiction to hear or consider any claim or cause of
action whatsoever, including any action pending on or
filed after the date of the enactment of the Military
Commissions Act of 2006, relating to the prosecution,
trial, or judgment of a military commission under this
chapter, including challenges to the lawfulness of
procedures of military commissions under this chapter.
10 U.S.C. § 950)(b) (emphasis added). The detainees maintain
4 If section 7(b) did not include habeas cases among cases “which
relate to any aspect of the detention, transfer, treatment, trial, or
conditions of detention,” it would be inconsistent with section 7(a).
Section 7(a) of the MCA first repeals jurisdiction “to hear or consider an
application for a wnt of habeas corpus” by detainees. 28 U.S.C. §
2241(e)(1). It then repeals jurisdiction over “any other action ... relating
to any aspect of the detention, transfer, treatment, trial, or conditions of
confinement” of a detainee, id. § 2241(c)(2) (emphasis added), thus
signifying that Congress considered habeas cases as cases relating to
detention, as indeed they are.
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that § 950) calls into question Congress's intention to apply
section 7(b) to pending habeas cases.
The argument goes nowhere. Section 7(b), read in
conjunction with section 7(a), is no less explicit than § 950).
Section 7(a) strips jurisdiction over detainee cases, including
habeas. cases, and section 7(b) makes section 7(a) applicable to
pending cases. Section 950; accomplishes the same thing, but in
one sentence. A drafting decision to separate section 7 into two
subsections - one addressing the scope of the jurisdictional bar,
the other addressing how the bar applies to pending cases -
makes no legal difference.°
il.
This brings us to the constitutional issue: whether the
MCA, in depriving the courts of jurisdiction over the detainees’
habeas petitions, violates the Suspension Clause of the
Constitution, U.S. CONsT. art. I, § 9, cl. 2, which states that
“The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the
5 The detainees suggest that federal courts retain some form of
residual common law jurisdiction over habeas petitions. Ex parte
Bollman, 8 U.S. (4 Cranch) 75, 95 (1807), holds the opposite. See Ex
parte McCardle, 74 U.S. 506 (1868). “Jurisdiction of the lower federal
courts is ... limited to those subjects encompassed within a statutory grant
of jurisdiction.” /ns. Corp. of Ireland, Lid. v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 701 (1982). The observations about common law
habeas tn Rasul, 542 U.S. at 481-82, referred to the practice in England.
Even if there were such a thing as common law jurisdiction in the federal
courts, § 2241(e){1) quite clearly eliminates all “jurisdiction to hear or
consider an application for a wnt of habeas corpus” by a detainee,
whatever the source of that jurisdiction.
In order to avoid “serious ‘due process,’ Suspension Clause, and
Article III problems,” the detainees also urge us not to read section 7 of
the MCA to eliminate habeas jurisdiction over Geneva Convention
claims. But that reading is unavoidable. Section 7 is unambiguous, as is
section 5(a), which states that “No person may invoke the Geneva
Conventions or any protocols thereto in any habeas corpus or other civil
action or proceeding ... as a source of rights in any court of the United
States.”
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public Safety may require it.”
The Supreme Court has stated the Suspension Clause
protects the writ “as it existed in 1789,” when the first Judiciary
Act created the federal courts and granted jurisdiction to issue
writs of habeas corpus. St. Cyr, 533 U.S. at 301; cf Henry J.
Friendly, /s Jnnocence Irrelevant? Collateral Attack on
Criminal Judgments, 38 U. Cui. L. REv. 142, 170 (1970). The
detainees rely mainly on three cases to claim that in 1789 the
privilege of the writ extended to aliens outside the sovereign's
territory. In Lockington's Case, Bright. (N.P.) 269 (Pa.1813), a
British resident of Philadelphia had been imprisoned after
failing to comply with a federal marshal's order to relocate. The
War of 1812 made Lockington an “enemy alien” under the
Alien Enemies Act of 1798. Although he lost on the merits of
his petition for habeas corpus before the Pennsylvania Supreme
Court, two of three Pennsylvania justices held that he was
entitled to review of his detention.© In The Case of Three
Spanish Sailors, 96 Eng. Rep. 775 (C.P. 1779), three Spanish
seamen had boarded a merchant vessel bound for England with
a promise of wages on arrival. After arriving in England, the
English captain refused to pay their wages and turned them over
to a warship as prisoners of war. The King's Bench denied the
sailors’ petitions because they were “alien enemies and prisoners
of war, and therefore not entitled to any of the privileges of
Englishmen; much less to be set at liberty on a habeas corpus.”
Id. at 776. The detainees claim that, as in Lockington's Case, the
King's Bench exercised jurisdiction and reached the merits. The
third case - Rex v. Schiever, 97 Eng. Rep. 551 (K.B. 1759) -
involved a citizen of Sweden intent on entering the English
merchant trade. While at sea on an English merchant's ship, a
French privateer took Schiever along with the rest of the crew as
prisoners, transferred the crew to another French ship, and Iet
© During this period, state courts often employed the writ of habeas
corpus to inquire into the legality of federal detention. The Supreme
Court later held in Ableman v. Booth, 62 U.S. (21 How.) 506 (1859), and
Tarble's Case, 80 U.S. (13 Wall.) 397 (1871), that state courts had no
such power.
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the English prisoners go free. An English ship thereafter
captured the French ship and its crew, and carried them to
Liverpool where Schiever was imprisoned. From Liverpool
Schiever petitioned for habeas corpus, claiming he was a citizen
of Sweden and only by force entered the service of the French.
The court denied him relief because it found ample evidence
that he was a prisoner of war. /d. at 552.
None of these cases involved an alien outside the territory
of the sovereign. Lockington was a resident of Philadelphia.
And the three Spanish sailors and Schiever were all held within
English sovereign territory.’ The detainees cite no case and no
historical treatise showing that the English common law writ of
habeas corpus extended to aliens beyond the Crown's
dominions. Our review shows the contrary. See WILLIAM F.
DUKER, A CONSTITUTIONAL HISTORY OF HABEAS CORPUS 53
(1980); 9 WILLIAM HOLDsSworTH, A HISTORY OF ENGLISH LAW
116-17, 124 (1982 ed.); 3 BLACKSTONE, COMMENTARIES 131
(1768); see also 1 Op. Att'y Gen. 47 (1794); In re Ning Yi-
Ching, 56 T.L.R. 3, 5 (Vacation Ct.1939) (noting prior judge
“had listened in vain for a case in which the writ of habeas
corpus had issued in respect of a foreigner detained in a part of
the world which was not a part of the King's dominions or
realm”). Robert Chambers, the successor to Blackstone at
Oxford, wrote in his lectures that the writ of habeas corpus
extended only to the King's dominions. 2 ROBERT CHAMBERS, A
COURSE OF LECTURES ON THE ENGLISH LAW DELIVERED AT
OXFORD 1767-1773 (composed in association with Samuel
Johnson), at 7-8 (Thomas M. Curley ed., 1986). Chambers cited
Rex v. Cowle, 97 Eng. Rep. (2 Burr.) 587 (K.B. 1759), in which
Lord Mansfield stated that “[t]o foreign dominions ... this Court
has no power to send any writ of any kind. We cannot send a
7 The dissent claims that the difference between S-hiever and the
detainees is “exceedingly narrow,” Dissent at 14, because Schiever was
brought involuntarily to Liverpool. For this proposition, the dissent cites
United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990). Verdugo-
Urquidez was a Fourth Amendment case. Obviously, it had nothing to say
about habeas corpus in Eighteenth Century England.
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habeas corpus to Scotland, or to the clectorate; but to Ireland,
the Isle of Man, the plantations [American colonies] ... we
may.” Every territory that Mansfield, Blackstone, and Chambers
cited as a jurisdiction to which the writ extended (e.g., Ireland,
the Isle of Man, the colonies, the Cinque Ports, and Wales) was
a sovereign territory of the Crown.
When agents of the Crown detained prisoners outside the
Crown's dominions, it was understood that they were outside the
jurisdiction of the writ. See HOLDSWORTH, supra, at 116-17.
Even British citizens imprisoned in “remote islands, garrisons,
and other places” were “prevent[ed] from the benefit of the
law,’ 2 HENRY HALLAM, THE CONSTITUTIONAL HISTORY OF
ENGLAND 127-28 (William S. Hein Co. 1989) (1827), which
included access to habeas corpus, see DUKER, supra, at 51-53;
HOLDSWORTH, supra, at 116; see also Johan Steyn,
Guantanamo Bay. The Legal Black Hole, 53 INT'L & COMP.
L.Q. 1, & (2004) (“the writ of habeas corpus would not be
available” in “remote islands, garrisons, and other places”
(internal quotation marks omitted)). Compliance with a writ
from overseas was also completely impractical given the habeas
law at the time. In Cow/e, Lord Mansfield explained that even in
the far off territories “annexed to the Crown,” the Court would
not send the writ, “notwithstanding the power.” 97 Eng. Rep. at
600. This is doubtless because of the Habeas Corpus Act of
1679. The great innovation of this statute was in setting time
limits for producing the prisoner and imposing fines on the
custodian if those limits were not met. See CHAMBERS, supra, at
11. For a prisoner detained over 100 miles from the court, the
detaining officer had twenty days after receiving the writ to
produce the body before the court. See id. If he did not produce
the body, he incurred a fine. One can easily imagine the
practical problems this would have entailed if the writ had run
Outs sie «he sovereign territory of the Crown and reached British
soldicz: nolding foieign prisoners in overseas conflicts, such as
the War of 1812. The short of the matter is that given the history
of the writ in England prior to the founding, habeas corpus
would not have been available in 1789 to alicns without
65a
presence or property within the United States.
Johnson v. Eisentrager, 339 U.S. 763 (1950), ends any
doubt about the scope of common law habeas. “We are cited to
no instance where a court, in this or any other country where the
writ is known, has issued it on behalf of an alien enemy who, at
no relevant time and in no stage of his captivity, has been within
its territorial jurisdiction. Nothing in the text of the Constitution
extends such a right, nor does anything in our statutes.” /d. at
768; see also Note, Habeas Corpus Protection Against Illegal
Extraterritorial Detention, 51 COLUM. L. REV. 368, 368 (1951).
The detainees claim they are in a different position than the
prisoners in Eisentrager, and that this difference is material for
purposes of common law habeas.® They point to dicta in Rasul,
542 U.S. 481-82, in which the Court discussed English habeas
cases and the “historical reach of the writ.” Rasul refers to
several English and American cases involving varying
combinations of territories of the Crown and relationships
between the petitioner and the country in which the writ was
sought. See id. But as Judge Robertson found in Hamdan, “[n]ot
one of the cases mentioned in Rasul held that an alien captured
abroad and detained outside the United States - or in ‘territory
over which the United States exercises exclusive jurisdiction
and control,’ Rasul, 542 U.S. at 475 - had a common law or
constitutionally protected right to the writ of habeas corpus.”
Hamdan v. Rumsfeld, No. 04-1519, 2006 WL 3625015, at *7
(D.D.C. Dec. 13, 2006). Justice Scalia made the same point in
his Rasul dissent, see Rasul, 542 U.S. at 502-05 & n.5 (Scalia,
J., dissenting) (noting the absence of “a single case holding that
aliens held outside the territory of the sovereign were within
reach of the writ”), and the dissent acknowledges it here, see
Dissent at 12. We are aware of no case prior to 1789 going the
8 The detainees are correct that they are not “enemy aliens.” That
term refers to citizens of a country with which the United States is at war.
See Al Odah, 321 F.3d at 1139-40. But under the common law, the
dispositive fact was not a petitioner's enemy alien status, but his lack of
presence within any sovereign territory.
66a
detainees’ way,? and we are convinced that the writ in 1789
would not have been available to aliens held at an overseas
military base leased from a foreign government.
The detainees encounter another difficulty with their
Suspension Clause claim. Precedent in this court and the
Supreme Court holds that the Constitution does not confer
rights on aliens without property or presence within the United
States. As we explained in A/ Odah, 321 F.3d at 1140-41, the
controlling case is Johnson v. Eisentrager. There twenty-one
German nationals confined in custody of the U.S. Army in
Germany filed habeas corpus petitions. Although the German
prisoners alleged they were civilian agents of the German
government, a military commission convicted them of war
crimes arising from military activity against the United States in
China after Germany's surrender. They claimed _ their
convictions and imprisonment violated various constitutional
provisions and the Geneva Conventions. The Supreme Court
rejected the proposition “that the Fifth Amendment confers
rights upon all persons, whatever their nationality, wherever
they are located and whatever their offenses,” 339 U.S. at 783.
The Court continued: “If the Fifth Amendment confers its rights
on all the world ... {it} would mean that during military
occupation irreconcilable enemy elements, guerrilla fighters,
and ‘werewolves’ could require the American Judiciary to
assure them freedoms of speech, press, and assembly as in the
First Amendment, right to bear arms as in the Second, security
against ‘unreasonable’ searches and seizures as in the Fourth, as
well as rights to jury trial as in the Fifth and Sixth
Amendments.” /d. at 784. (Shortly before Germany's surrender,
9 The dissent claims the lack of any case on point is a result of the
unique combination of circumstances in this case. But extraterritorial
detention was not unknown in Eighteenth Century England. See
HOLDSWORTH, supra, at 116-17; DUKER, supra, at 51-53. As noted,
supra, these prisoners were beyond the protection of the law, which
included access to habeas corpus. And Eisentrager (and the two hundred
other alien petitioners the court noted, see 339 U.S. at 768 n.1) involved
both extraterritorial detention and alien petitioners.
67a
the Nazis began training covert forces called “werewolves” to
conduct terrorist activities during the Allied occupation. See
http://www.archives.gov/iwg/ declassified_records/oss_records_
263_wilhelm_hoettl.html.)
Later Supreme Court decisions have followed Eisentrager.
In 1990, for instance, the Court stated that Eisentrager “rejected
the claim that aliens are entitled to Fifth Amendment rights
outside the sovereign territory of the United States.” United
States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990). After
describing the facts of Eisentrager and quoting from the
opinion, the Court concluded that with respect to aliens, “our
rejection of extraterritorial application of the Fifth Amendment
was emphatic.” /d. By analogy, the Court held that the Fourth
Amendment did not protect nonresident aliens against
unreasonable searches or seizures conducted outside the
sovereign territory of the United States. Jd . at 274-75. Citing
Eisentrager again, the Court explained that to extend the Fourth
Amendment to aliens abroad “would have significant and
deleterious consequences for the United States in conducting
activities beyond its boundaries,” particularly since the
government “frequently employs Armed Forces outside this
country,” id. at 273. A decade after Verdugo-Urquidez, the
Court - again citing Eisentrager - found it “well established that
certain constitutional protections available to persons inside the
United States are unavailable to aliens outside of our geographic
borders.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001).!°
Any distinction between the naval base at Guantanamo Bay
and the prison in Landsberg, Germany, where the petitioners in
Eisentrager were held, is immaterial to the application of the
Suspension Clause. The United States occupies the Guantanamo
Bay Naval Base under an indefinite lease it entered into in 1903.
'0 The Rasul decision, resting as it did on statutory interpretation,
see 542 U.S. at 475, 483-84, could not possibly have affected the
constitutional holding of Eisentrager. Even if Rasul somehow calls
Eisentragers constitutional holding into question, as the detainees
suppose, we would be bound to follow Eisentrager. See Rodriguez de
Quijas v. Shearson/American Exp., Inc., 490 U.S. 477, 484-85 (1989).
68a
See Al Odah, 321 F.3d at 1142. The text of the lease and
decisions of circuit courts and the Supreme Court all make clear
that Cuba - not the United States - has sovereignty over
Guantanamo Bay. See Vermilya-Brown Co. v. Connell, 335 U.S.
377, 381 (1948); Cuban Am. Bar Ass'n v. Christopher, 43 F.3d
1412 (11th Cir.1995). The “determination of sovereignty over
an area,” the Supreme Court has held, “is for the legislative and
executive departments.” Vermilya-Brown, 335 U.S. at 380. Here
the political departments have firmly and clearly spoken:
“*United States,” when used in a geographic sense ... does not
include the United States Naval Station, Guantanamo Bay,
Cuba.” DTA § 1005(g).
The detainees cite the /nsular Cases in which “fundamental
personal rights” extended to U.S. territories. See Balzac v. Porto
Rico, 258 U.S. 298, 312-13 (1922): Dorr v. United States, 195
U.S. 138, 148 (1904); see also Ralpho v. Bell, 569 F.2d 607
(D.C. Cir. 1977). But in each of those cases, Congress had
exercised its power under Article IV, Section 3 of the
Constitution to regulate “Territory or other Property belonging
to the United States,” U.S. COnsT., art. IV, § 3, cl. 2. These
cases do not establish anything regarding the sort of de facto
sovercignty the detainees say exists at Guantanamo. Here
Congress and the President have specifically disclaimed the sort
of territorial jurisdiction they asserted in Puerto Rico, the
Philippines, and Guam.
Precedent in this circuit also forecloses the detainces'
claims to constitutional rights. In Harbury v. Deutch, 233 F.3d
596, 604 (D.C. Cir. 2000), rev'd on other grounds sub nom.
Christopher v. Harbury, 536 U.S. 403 (2002), we quoted
extensively from Verdugo-Urquidez and held that the Court's
description of Eisentrager was “firm and considered dicta that
binds this court.” Other decisions of this court are firmer still.
Citing Eisentrager, we held in Pauling v. McElroy, 278 F.2d
252, 254 n.3 (D.C. Cir. 1960) (per curiam), that “non-resident
aliens ... plainly cannot appeal to the protection of the
Constitution or laws of the United States.” The law of this
circuit 1s that a “foreign entity without property or presence in
69a
this country has no constitutional rights, under the due process
clause or otherwise.” People's Mojahedin Org. of Iran v. U.S.
Dep't of State, 182 F.3d 17, 22 (D.C. Cir. 1999); see also 32
County Sovereignty Comm. v. U .S. Dep't of State, 292 F.3d
797, 799 (D.C. Cir. 2002).!!
As against this line of authority, the dissent offers the
distinction that the Suspension Clause is a limitation on
congressional power rather than a constitutional right. But this
is no distinction at all. Constitutional rights are rights against
the government and, as such, are restrictions on governmental
power. See H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525,
534 (1949) (“Even the Bill of Rights amendments were framed
only as a limitation upon the powers of Congress.”).'2 Consider
the First Amendment. (In contrasting the Suspension Clause
with provisions in the Bill of Rights, see Dissent at 3, the
dissent is careful to ignore the First Amendment.) Like the
Suspension Clause, the First Amendment is framed as a
limitation on Congress: “Congress shall make no law ....” Yet
no one would deny that the First Amendment protects the rights
to free speech and religion and assembly.
The dissent's other arguments are also filled with holes. It
is enough to point out three of the larger ones.
There is the notion that the Suspension Clause is different
from the Fourth, Fifth, and Sixth Amendments because it does
not mention individuals and those amendments do (respectively,
'! The text of the Suspension Clause also does not lend itself freely
to extraterritorial application. The Clause permits suspension of the writ
only in cases of “Rebellion or Invasion,” neither of which is applicable to
foreign military conflicts. See Hamdi v. Rumsfeld, 542 U.S. 507, 593-94
(2004) (Thomas, J., dissenting); see also J. Andrew Kent, A Textual and
Historical Case Against a Global Constitution, 95 GEO. LJ.
(forthcoming 2007) (manuscript at 59-60, available at http://
ssrn.com/abstract=888602).
!2 James Madison's plan was to insert almost the entire Bill of
Rights into the Constitution rather than wait for amendment. His
proposed location of the Bill of Rights? Article 1, Section 9 - next to the
Suspension Clause. See Thomas Y. Davies, Recovering the Original
Fourth Amendment, 98 MIicu. L. REV. 547, 700-01 & n.437 (1999).
70a
oF 66
“people,” “person,” and “the accused”). See Dissent at 3. Why
the dissent thinks this is significant eludes us. Is the point that if
a provision does not mention individuals there is no
constitutional right? That cannot be right. The First
Amendment's guarantees of freedom of speech and free exercise
of religion do not mention individuals; nor does the Eighth
Amendment's prohibition on cruel and unusual punishment or
the Seventh Amendment's guarantee of a civil jury. Of course it
is fair to assume that these provisions apply to individuals, just
as it is fair to assume that petitions for writs of habeas corpus
are filed by individuals.
The dissent also looks to the Bill of Attainder and Ex Post
Facto Clauses, both located next to the Suspension Clause in
Article I, Section 9. We do not understand what the dissent is
trying to make of this juxtaposition. The citation to United
States v. Lovett, 328 U.S. 303 (1946), is particularly baffling.
Lovett held only that the Bill of Attainder Clause was
justiciable. The dissent's point cannot be that the Bill of
Attainder Clause and the Ex Post Facto Clause do not protect
individual rights. Numerous courts have held the opposite.!3
“The fact that the Suspension Clause abuts the prohibitions on
bills of attainder and ex post facto laws, provisions well-
accepted to protect individual liberty, further supports viewing
the habeas privilege as a core individual right.” Amanda L.
Tyler, /s Suspension a Political Question?, 59 STAN. L. REV.
333, 374 & n.227 (2006) (emphasis added). !4
'3 See South Carolina v. Katzenbach, 383 U.S. 301, 323-24 (1966)
(“{Cjourts have consistently regarded the Bill of Attainder Clause of
Article | and the principle of the separation of powers only as protections
for individual persons and private groups ....”) (citing United States v.
Brown, 381 U.S. 437 (1965); Ex parte Garland, 71 U.S. (4 Wall.) 333
(1866)); see also Wilkinson v. Dotson, 544 U.S. 74, 82 (2005); Weaver v.
Graham, 450 U.S. 24, 28-29 (1981); Nixon v. Adm'r of Gen. Servs., 433
U.S. 425, 468-69 (1977); Shabazz v. Gabry, 123 F.3d 909, 912 (6th Cir.
1997).
'4 Accord Jay S. Bybee, Common Ground: Robert Jackson, Antonin
Scalia, and a Power Theory of the First Amendment, 75 TUL. L. REV.
Tla
Why is the dissent so fixated on how to characterize the
Suspension Clause? The unstated assumption must be that the
reasoning of our decisions and the Supreme Court's in denying
constitutional rights to aliens outside the United States would
not apply if a constitutional provision could be characterized as
protecting something other than a “right.” On this theory, for
example, aliens outside the United States are entitled to the
protection of the Separation of Powers because they have no
individual rights under the Separation of Powers. Where the
dissent gets this strange idea is a mystery, as is the reasoning
behind it.
Federal courts have no jurisdiction in these cases. In
supplemental briefing after enactment of the DTA, the
government asked us not only to decide the habeas jurisdiction
question, but also to review the merits of the detainees’
designation as enemy combatants by their Combatant Status
Review Tribunals. See DTA § 1005(e)(2).!5 The detainees
objected to converting their habeas appeals to appeals from their
Tribunals. In briefs filed after the DTA became law and after
the Supreme Court decided Hamdan, they argued that we were
without authority to do so.!© Even if we have authority to
251, 318, 321 (2000) (“[W]e could easily describe [Article I,] Section 9
as a bill of rights for the people of the United States.”’).
'5 See Supplemental Br. of the Federal Parties Addressing the
Detainee Treatment Act of 2005 53-54 (“This Court can and should
convert the pending appeals into petitions for review under [DTA section]
1005(e)(2).”).
'6 See The Guantanamo Detainees’ Supplemental Br. Addressing the
Effect of the Supreme Ct.'s Op. in Hamdan v. Rumsfeld, 126 S. Ct. 2749
(2006), on the Pending Appeals 8-9 (“The detainees in the pending
petitions challenge the lawfulness of their detentions - not the subsequent
CSRT decisions ....”); Corrected Supplemental Br. of Pet'rs Boumediene,
et al., & Khalid Regarding Section 1005 of the Detainee Treatment Act of
2005 56-59 (“Nothing in the [DTA] authorizes the Court to ‘convert’
Petitioners’ notices of appeal of the district court's judgment into original
petitions for review of CSRT-decisions under section 1005(e)(2) of the
Act.”); The Guantanamo Detainees’ Corrected Second Supplemental Br.
72a
convert the habeas appeals over the petitioners’ objections, the
record does not have sufficient information to perform the
review the DTA allows. Our only recourse is to vacate the
district courts’ decisions and dismiss the cases for lack of
jurisdiction.
So ordered.
Addressing the Effect of the Detainee Treatment Act of 2005 on this Ct.’s
Jurisdiction over the Pending Appeals 43-44 (“[T]his court should not
convert these petitions into petitions for review under the DTA as the
government suggests.”’).
73a
ROGERS, Circuit Judge, dissenting: I can join neither the
reasoning of the court nor its conclusion that the federal courts
lack power to consider the detainees’ petitions. While I agree
that Congress intended to withdraw federal jurisdiction through
the Military Commissions Act of 2006, Pub. L. No. 109-366,
120 Stat. 2600 (“MCA”), the court's holding that the MCA is
consistent with the Suspension Clause of Article I, section 9, of
the Constitution does not withstand analysis. By concluding that
this court must reject “the detainees’ claims to constitutional
rights,” Op. at 21, the court fundamentally misconstrues the
nature of suspension: Far from conferring an individual right
that might pertain only to persons substantially connected to the
United States, see United States v. Verdugo-Urquidez, 494 U.S.
259, 271 (1990), the Suspension Clause is a limitation on the
powers of Congress. Consequently, it is only by misreading the
historical record and ignoring the Supreme Court's well-
considered and binding dictum in Rasul v. Bush, 542 U.S. 466,
481-82 (2004), that the writ at common law would have
extended to the detainees, that the court can conclude that
neither this court nor the district courts have jurisdiction to
consider the detainees’ habeas claims.
A review of the text and operation of the Suspension
Clause shows that, by nature, it operates to constrain the powers
of Congress. Prior to the enactment of the MCA, the Supreme
Court acknowledged that the detainees held at Guantanamo had
a statutory right to habeas corpus. Rasu/, 542 U.S. at 483-84.
The MCA purports to withdraw that gight but does so in a
manner that offends the constitutional constraint on suspension.
The Suspension Clause limits the removal of habeas corpus, at
least as the writ was understood at common law, to times of
rebellion or invasion unless Congress provides an adequate
alternative remedy. The writ would have reached the detainees
at common law, and Congress has neither provided an adequate
alternative remedy, through the Detainee Treatment Act of
2005, Pub. L. No. 109-148, Div. A, tit. X, 119 Stat. 2680, 2739
(“DTA”), nor invoked the exception to the Clause by making
the required findings to suspend the writ. The MCA is therefore
74a
void and does not deprive this court or the district courts of
jurisdiction.
On the merits of the detainees’ appeal in Khalid v. Bush,
355 F. Supp. 2d 311 (D.D.C. 2005) and the cross-appeals in /n
re Guantanamo Detainee Cases, 355 F. Supp. 2d 443 (D.D.C.
2005), | would affirm in part in Guantanamo Detainee Cases
and reverse in Khalid and remand the cases to the district courts.
I.
Where a court has no jurisdiction it is powerless to act. See,
e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-74
(1803). But a statute enacted by Congress purporting to deprive
a court of jurisdiction binds that court only when Congress acts
pursuant to the powers it derives from the Constitution. The
court today concludes that the Suspension Clause 1s an
individual right that cannot be invoked by the detainees. See Op.
at 22. The text of the Suspension Clause and the structure of the
Constitution belie this conclusion. The court further concludes
that the detainees would have had no access to the writ of
habeas corpus at common law. See Op. at 14-17. The historical
record and the guidance of the Supreme Court disprove this
conclusion.
In this Part, | address the nature of the Suspension Clause,
the retroactive effect of Congress's recent enactment on habeas
corpus - the MCA - and conclude with an assessment of the
effect of the MCA in light of the dictates of the Constitution.
A.
The court holds that Congress may suspend habeas corpus
as to the detainees because they have no individual rights under
the Constitution. It is unclear where the court finds that the limit
on suspension of the writ of habeas corpus is an individual
entitlement. The Suspension Clause itself makes no reference to
citizens or even persons. Instead, it directs 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
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require it.” U.S. CONST. art. I, § 9, cl. 2. This mandate appears in
the ninth section of Article I, which enumerates those actions
expressly excluded from Congress's powers. Although the
Clause does not specifically say so, it is settled that only
Congress may do the suspending. Ex parte Bollman, 8 U.S. (4
Cranch) 75, 101 (1807); see Hamdi v. Rumsfeld, 542 U.S. 507,
562 (2004) (Scalia, J., dissenting); Ex parte Merryman, 17 F.
Cas. 144, 151-152 (No. 9487) (Taney, Circuit Justice, C.C.D.
Md. 1861); 2 JOSEPH STORY, COMMENTARIES ON THE
CONSTITUTION OF THE UNITED STATES § 1342 (Sth ed. 1891). In
this manner, by both its plain text and inclusion in section 9, the
Suspension Clause differs from the Fourth Amendment, which
establishes a “right of the people,” the Fifth Amendment, which
limits how a “person shall be held,” and the Sixth Amendment,
which provides rights to “the accused.” These provisions confer
rights to the persons listed. !
The other provisions of Article I, section 9, indicate how to
read the Suspension Clause. The clause immediately following
provides that “[{n]o Bill of Attainder or ex post facto Law shall
be passed.” The Supreme Court has construed the Attainder
! The Suspension Clause is also distinct from the First Amendment,
which has been interpreted as a guarantor of individual rights. See, e.g.,
United States v. Robel, 389 U.S. 258, 263 (1967); Gitlow v. New York,
268 U.S. 652, 666 (1925). The court cannot seriously maintain that the
two provisions are alike while acknowledging that the First Amendment
confers an individual right enforceable by the courts and simultaneously
claiming that the Suspension Clause does not, see Op. at .13 n.5 (citing
Bollman, 8 U.S. (4 Cranch) at 95); see also In re Barry, 42 F. 113, 122
(C.C.S.D.N.Y.1844), error dismissed sub nom. Barry v. Mercein, 46 U.S.
103 (1847) (“The ninth section of the first article of the constitution, par.
2, declaring that ‘the 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,’ does not purport to convey power or jurisdiction to the
judiciary. It is in restraint of executive and legislative powers, and no
further affects the judiciary than to impose on them the necessity, if the
privilege of habeas corpus is suspended by any authority, to decide
whether the exigency demianded by the constitution exists to sanction the
act.”’).
2 Suspensions and bills of attainder have a shared history. In
England, suspensions occasionally named specific individuals and
76a
Clause as establishing a “category of Congressional actions
which the Constitution barred.” United States v. Lovett, 328
U.S. 303, 315 (1946). In Lovett, the Court dismissed the
possibility that an Act of Congress in violation of the Attainder
Clause was non-justiciable, remarking:
Our Constitution did not contemplate such a result. To
quote Alexander Hamilton,
* * * a limited constitution * * * [1s] one which
contains certain specified exceptions to the
legislative authority; such, for instance, as that it
shall pass no bills of attainder, no ex post facto
laws, and the like. Limitations of this kind can
be preserved in practice no other way than
through the medium of the courts of justice;
whose duty it must be to declare all acts
contrary to the manifest tenor of the
Constitution void. Without this, all the
reservations of particular rights or privileges
would amount to nothing.
Id. at 314 (quoting THE FEDERALIST No. 78) (emphasis added)
(alteration and omissions in original). So too, in Weaver v.
Graham, 450 U.S. 24, 28-29 & n.10 (1981), where the Court
noted that the ban on ex post facto legislation “restricts
governmental power by restraining arbitrary and potentially
vindictive legislation” and acknowledged that the clause
“confin[es] the legislature to penal decisions with prospective
effect.” See also Marbury, 5 U.S. (1 Cranch) at 179-80;
Foretich v. United States, 351 F.3d 1198, 1216-26 (D.C. Cir.
2003). For like reasons, any act in violation of the Suspension
Clause is void, cf Lovett, 328 U.S. at 316, and cannot operate to
therefore amounted to bills of attainder. See Rex A. Collings, Jr., Habeas
Corpus for Convicts - Constitutional Right or Legislative Grace?, 40
CAL. L. REV. 335, 339 (1952).
77a
divest a court of jurisdiction.3
The court dismisses the distinction between individual
rights and limitations on Congress's powers. It chooses to make
no affirmative argument of its own, instead hoping to rebut the
sizable body of conflicting authorities.
The court appears to believe that the Suspension Clause is
just like the constitutional amendments that form the Bill of
Rights.‘ It is a truism, of course, that individual rights like those
3 The court cites a number of cases for the proposition that the
Attainder Clause confers an individual right instead of operating as.a
structural limitation on Congress. See Op. at 23 n.13. None of these cases
makes the court's point. In South Carolina v. Katzenbach, 383 U.S. 301,
323-24 (1966), the Supreme Court held that it is not a bill of attainder for
Congress to punish a state. This speaks to the definition of a bill of
attainder and says nothing about the operation of the Attainder Clause.
Weaver v. Graham, 450 U.S. 24, 30 (1981), says the opposite of what the
court asserts. In Weaver, the Supreme Court emphasized that the Ex Post
Facto Clause is not intended to protect individual rights but governs the
operation of government institutions:
The presence or absence of an affirmative, enforceable right is not
relevant, however, to the ex post facto prohibition, which forbids
the imposition of punishment more severe than the punishment
assigned by law when the act to be punished occurred. Critical to
relief under the Ex Post Facto Clause is not an individual's right to
less punishment, but the lack of fair notice and governmental
restraint when the legislature increases punishment beyond what
was prescribed when the crime was consummated. Thus, even if a
statute merely alters penal provisions accorded by the grace of the
legislature, it violates the Clause if it is both retrospective and
more onerous than the law in effect on the date of the offense.
The Court also emphasized the structural nature of the limitations of
Article I, section 9, in Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 469
(1977) (noting that “the Bill of Attainder Clause [is] ... one of the
organizing principles of our system of government’). Unsurprisingly, the
court cites no authority that would support its novel construction of
section 9 by providing that certain individuals lack Attainder Clause or Ex
Post Facto Clause rights.
4 For this point, the court quotes, without context, from H.P. Hood
& Sons, Inc. v. Du Mond, 336 U.S. 525 (1949), see Op. at 22. In that case,
the Supreme Court emphasized that the Bill of Rights limited the powers
78a
found in the first ten amendments work to limit Congress.
However, individual rights are merely a subset of those matters
that constrain the legislature. These two sets cannot be
understood as coextensive unless the court is prepared to
recognize such awkward individual rights as Commerce Clause
rights, see U.S. CONST. art. I, § 8, cl. 3, or the personal right
not to have a bill raising revenue that originates in the Senate,
see U.S. CONST. art. I, § 7, cl. 1; see also Schlesinger v.
Reservists Comm. to Stop the War, 418 U.S. 208, 224 (1974)
(finding no individual right under the Ineligibility Clause).
That the Suspension Clause appears in Article I, section 9,
is not happenstance. In Charles Pinckney's original proposal,
Suspension would have been part of the judiciary provision. It
was moved in September 1789 by the Committee on Style and
Arrangement, which gathered the restrictions on Congress's
power in one location. See WILLIAM F. DUKER, A
CONSTITUTIONAL HISTORY OF HABEAS CORPUS 128-32 (1980); 2
THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 596
(Max Farrand ed., rev. ed. 1966). By the court's reasoning, the
Framers placed the Suspension Clause in Article I merely
because there were no similar individual rights to accompany it.
It is implausible that the Framers would have viewed the
Suspension Clause, as the court implies, as a budding Bill of
Rights but would not have assigned the provision its own
section of the Constitution, much as they did with the only
crime specified in the document, treason, which appears alone
in Article III, section 3. Instead, the court must treat the
Suspension Clause's placement in Article I, section 9, as a
conscious determination of a limit on Congress's powers. The
Supreme Court has found similar meaning in the placement of
constitutional clauses ever since McCulloch v. Maryland, {7
U.S. (4 Wheat.) 316, 419-21 (1819) (Necessary and Proper
of Congress and did not affect the powers of the individual states, 1. P.
Hood & Sons, 336 U.S. at 534, at least until certain amendments were
incorporated after ratification of the Fourteenth Amendment. This says
nothing about the distinction, relevant here, between individual rights and
limitations on Congress.
79a
Clause); see also, e.g., Skinner v. Mid-America Pipeline Co.,
490 U.S. 212, 220-21 (1989) (Taxing Clause).
The court also alludes to the idea that the Suspension
Clause cannot apply to foreign military conflicts because the
exception extends only to cases of “Rebellion or Invasion.” Op.
at 21 n.11. The Framers understood that the privilege of the writ
was of such great significance that its suspension should be
strictly limited to circumstances where the peace and security of
the Nation were jeopardized. Only after considering alternative
proposals authorizing suspension “on the most urgent
occasions” or forbidding suspension outright did the Framers
agree to a narrow exception upon a finding of rebellion or
invasion. See 2 THE RECORDS OF THE FEDERAL CONVENTION OF
1787, supra, at 438. Indeed, it would be curious if the Framers
were implicitly sanctioning Executive-ordered detention abroad
without judicial review by limiting suspension - and by the
court's reasoning therefore limiting habeas corpus - to domestic
events. To the contrary, as Alexander Hamilton foresaw in The
Federalist No. 84, invoking William Blackstone,
To bereave a man of life (says he), or by violence to
confiscate his estate, without accusation or trial, would
be so gross and notorious an act of despotism, as must at
once convey the alarm of tyranny throughout the whole
nation; but confinement of the person, by secretly
hurrying him to jail, where his sufferings are unknown
or forgotten, is a less public, a less striking, and
therefore a more dangerous engine of arbitrary
government.
THE FEDERALIST NO. 84, at 468 (E.H. Scott ed. 1898) (quoting
WILLIAM BLACKSTONE, 1 COMMENTARIES * 131-32); see also
Ex parte Milligan, 71 U.S. (4 Wall.) 2, 125 (1866).
B.
This court would have jurisdiction to address the detainees’
claims but for Congress's enactment of the MCA. In Rasul, 542
U.S. at 483-84, the Supreme Court held that the. federal district
80a
courts had jurisdiction to hear petitions for writs of habeas
corpus filed pursuant to 28 U.S.C. § 2241 by persons detained
as “enemy combatants” by the United States at the Guantanamo
Bay Naval Base. At the time, the habeas statute provided, in
relevant part, that upon the filing of such a petition, the district
court would promptly determine whether the petitioner was
being held under the laws, Constitution, and treaties of the
United States, utilizing the common-law procedure of a return
filed by the government and a traverse filed by the petitioner.
See 28 U.S.C. § § 2242-2253. After Rasu/, Congress enacted the
DTA, which purported to deprive the federal courts of habeas
jurisdiction. DTA § 1005(e), 118 Stat. at 2741-43. The Supreme
Court held in Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2764-69
(2006), however, that the DTA does not apply retroactively, and
so it does not disturb this court's jurisdiction over the instant
appeals, which were already pending when the DTA became
law.
As for the MCA, I concur in the court's conclusion that,
notwithstanding the requirements that Congress speak clearly
when it intends its action to apply retroactively, see Landgraf v.
USI Film Prods., 511 U.S. 244, 265-73 (1994), and when
withdrawing habeas jurisdiction from the courts, see /NS v. St.
Cyr, 533 U.S. 289, 299 (2001); Ex parte Yerger, 75 U.S. (8
Wall.) 85, 102 (1869), Congress sought in the MCA to revoke
all federal jurisdiction retroactively as to the habeas petitions of
detainees held at Guantanamo Bay. See Op. at 9-12. I do not
join the court's reasoning. The court stresses Congress's
emphasis that the provision setting the effective date for the
jurisdictional change “shall apply to all cases, without
exception.” However, the absence of exceptions does not
establish the scope of the provision itself. The entire provision
reads:
(b) - EFFECTIVE DATE. The amendment made by
subsection (a) shall take effect on the date of the
cnactment of this Act, and shall apply to all cases,
without exception, pending on or after the date of the
8la
enactment of this Act which relate to any aspect of the
detention, transfer, treatment, trial, or conditions of
detention of an alien detained by the United States since
September 11, 2001.
MCA § 7(b), 120 Stat. at 2636 (emphasis added). Subsection
(a), in turn, amends 28 U.S.C. § 2241(e), which confers habeas
jurisdiction on the federal courts. New section 2241(e)(1)
repeals “jurisdiction to hear or consider an application for a writ
of habeas corpus.” New section 2241(e)(2) repeals “jurisdiction
to hear or consider any other action ... relating to any aspect of
the detention, transfer, treatment, trial, or conditions of
confinement.”
The detainees suggest that by singling out habeas corpus in
§ 2241(e)(1) and by failing to do so in section 7(b) - and instead
repeating the same list (“detention, transfer, treatment, trial, or
conditions of confinement”) that appears in § 2241(e)(2) -
Congress was expressing its intent to make the MCA retroactive
only as to § 2241(e)(2). This argument hinges on their view that
a petition for a writ of habeas corpus is not “relating to any
aspect of ... detention.” But, by the plain text of section 7, it is
clear that the detainees suggest ambiguity where there is none.
As the court notes, see Op. at 11 n. 4, whereas § 2241(e)(1)
refers to habeas corpus, § 2241(e)(2) deals with “any other
action ... relating to any aspect of the detention, transfer,
treatment, trial, or conditions of confinement.” (Emphasis
added). By omitting the word “other” in section 7(b), and by
cross-referencing section 7(a) in its entirety, Congress signaled
its intent for the retroactivity provision to apply to habeas
corpus cases. This conclusion has nothing to do with Congress's
emphasis that there are no exceptions and everything to do with
the intent it expressed through the substantive provisions of the
statute.
c.
The question, then, is whether by attempting to eliminate
82a
all federal court jurisdiction to consider petitions for writs of
habeas corpus, Congress has overstepped the boundary
established by the Suspension Clause. The Supreme Court has
stated on several occasions that “at the absolute minimum, the
Suspension Clause protects the writ ‘as it existed in 1789.” ° Sv.
Cyr, 533 U.S. at 301 (quoting Felker v. Turpin, 518 U.S. 651,
663-64 (1996)) (emphasis added). Therefore, at least insofar as
habeas corpus exists and existed in 1789, Congress cannot
suspend the writ without providing an adequate alternative
except in the narrow exception specified in the Constitution.*
This proscription applies equally to removing the writ itself and
to removing all jurisdiction to issue the writ. See United States
v. Klein, 80 U.S. (13 Wall.) 128 (1872). See generally ERWIN
CHEMERINSKY, FEDERAL JURISDICTION § 3.2 (4th ed.2003).
1.
Assessing the state of the law in 1789 is no trivial feat, and
the court's analysis today demonstrates how quickly a few
missteps can obscure history. In conducting its historical
review, the court emphasizes that no English cases predating
1789 award the relief that the detainees seek in their petitions.
Op. at 15-17. “The short of the matter,” the court concludes, is
5 It is unnecessary to resolve the question of whether the
Constitution provides for an affirmative right to habeas corpus - either
through the Suspension Clause, the Fifth Amendment guarantee of due
process, or the Sixth Amendment - or presumed the continued vitality of
this “writ antecedent to statute,” Williams v. Kaiser, 323 U.S. 471, 484
n.2 (1945) (internal quotation marks omitted). Because the Supreme
Court in Rasul held that the writ existed in 2004 and that there was,
therefore, something to suspend, it is sufficient to assess whether the writ
sought here existed in 1789. Given my conclusion, see infra Part C.1, it ts
also unnecessary to resolve the question of whether the Suspension
Clause protects the writ of habeas corpus as it has developed since 1789.
Compare St. Cyr, 533 U.S. at 304-05, and LaGuerre v. Reno, 164 F.3d
1035, 1038 (7th Cir.1998), with Felker, 518 U.S. at 663-64, and Gerald L.
Neuman, ffabeas Corpus, Executive Detention, and ihe Removal of
Aliens, 98 COLUM. L. REV. 961, 970 (1998). The court oddly chooses to
ignore the issue by truncating its reference to St. Cyr, without comment,
and omitting the qualifier “at the absolute minimum.” See Op. at 14.
83a
that “habeas corpus would not have been available in 1789 to
aliens without presence or property within the United States.”
Op. at 17. But this misses the mark. There may well be no case
at common law in which a court exercises jurisdiction over the
habeas corpus claim of an alien from a friendly nation, who may
himself be an enemy, who is captured abroad and held outside
the sovereign territory of England but within the Crown's
exclusive control without being charged with a crime or
violation of the Laws of War. On the other hand, the court can
point to no case where an English court has refused to exercise
habeas jurisdiction because the enemy being held, while under
the control of the Crown, was not within the Crown's
dominions.® The paucity of direct precedent is a consequence of
the unique confluence of events that defines the situation of
these detainees and not a commentary on the reach of the writ at
common law.
The question is whether by the process of inference from
similar, if not identical, situations the reach of the writ at
common law would have extended to the detainees' petitions. At
common law, we know that “the reach of the writ depended not
on formal notions of territorial sovereignty, but rather on the
practical question of ‘the exact extent and nature of the
jurisdiction or dominion exercised in fact by the Crown.”
Rasul, 542 U.S. at 482 (quoting Ex parte Mwenya, [1960] |
© The court's assertion that “extraterritorial detention was not
unknown in Eighteenth Century England,” Op. at 18 n.9, is of no
moment. The court references the 1667 impeachment of the Earl of
Clarendon, Lord High Chancellor of England. See id. at 16, 18 n.9.
Clarendon was accused of sending enemies to faraway lands to deprive
them of effective legal process. The ‘court makes the unsupported
inference that habeas corpus was therefore unavailable abroad. Nothing in
the Clarendon affair suggests that habeas corpus was sought and refused.
Instead, as remains the case today, legal process can be evaded when
prisoners are detained without access to the courts. That the detainees at
Guantanamo were able to procure next frends and attorneys to pursue
their petitions whereas seventeenth-century Englishmen would have
found this difficult, if not impossible, says nothing about the availability
of the writ at common law. The court's obfuscation as to the distinction
between impracticality and unavailability is further addressed infra.
84a
Q.B. 241, 303 (C.A.) (Lord Evershed, M.R.)). We also know
that the writ extended not only to citizens of the realm, but to
aliens, see id. at 481 & n.11, even in wartime, see id. at 474-75;
Case of Three Spanish Sailors, 2 Black. W. 1324, 96 Eng. Rep.
775 (C.P. 1779); Rex v. Schiever, 2 Burr. 765, 97 Eng. Rep. 551
(K.B. 1759). A War of 1812-era case in which Chief Justice
John Marshall granted a habeas writ to a British subject
establishes that even conceded enemies of the United States
could test in its courts detention that they claimed was
unauthorized. See Gerald L. Neuman & Charles F. Hobson,
John Marshall and the Enemy Alien: A Case Missing from the
Canon, 9 GREEN BAG 2D 39 (2005) (reporting United States v.
Williams (C.C.D. Va. Dec. 4, 1813)).
To draw the ultimate conclusion as to whether the writ at
common law would have extended to aliens under the control (if
not within the sovereign territory) of the Crown requires piecing
together the considerable circumstantial evidence, a step that the
court is unwilling to take. Analysis of one of these cases, the
1759 English case of Rex v. Schiever, shows just how small this
final inference is. Barnard Schiever was the subject of a neutral
nation (Sweden), who was detained by the Crown when
England was at war with France. Schiever, 2 Burr. at 765, 97
Eng. Rep. at 551. He claimed that his classification as a
“prisoner of war” was factually inaccurate, because he “was
desirous of entering into the service of the merchants of
England” until he was seized on the high seas by a French
privateer, which in turn was captured by the British Navy. /d. In
an affidavit, he swore that his French captor “detained him[ |
against his will and inclination ... and treated him with so much
severity[ ] that [his captor] would not suffer him to go on shore
when in port ... but closely confined him to duty [on board the
ship].” /d. at 765-66, 97 Eng. Rep. at 551. The habeas court
ultimately determined, on the basis of Schiever's own testimony,
that he was properly categorized and thus lawfully detained. /d.
at 766, 97 Eng. Rep. at 551-52.
The court discounts Schiever because, after England
captured the French privateer while en route to Norway, it was
85a
carried into Liverpool, England, where Schiever was held in the
town jail. /d.,.97 Eng. Rep. at 551. As such, the case did not
involve “an alien outside the territory of the sovereign.” Op. at
14-15. However, Schiever surely was not voluntarily brought
into England, so his mere presence conferred no additional
rights. As the Supreme Court observed in Verdugo-Urquidez,
“involuntary [presence] is not the sort to indicate any substantial
connection with our country.” 494 U.S. at 271. Any gap
between Schiever and the detainees' detention at Guantanamo
Bay is thus exceedingly narrow.
This court need not make the final inference. It has already
been made for us. In Rasu/, the Supreme Court stated that
“{a]pplication of the habeas statute to persons detained at the
[Guantanamo] base is consistent with the historical reach of the
writ of habeas corpus.” 542 U.S. at 481. By reaching a contrary
conclusion, the court ignores the settled principle that “carefully
considered language of the Supreme Court, even if technically
dictum, generally must be treated as authoritative.” Sierra Club
v. EPA, 322 F.3d 718, 724 (D.C. Cir. 2003) (quoting United
States v. Oakar, 111 F.3d 146, 153 (D.C. Cir. 1997)) (internal
quotation marks omitted). Even setting aside this principle, the
court offers no convincing analysis to compel the contrary
conclusion. The court makes three assertions: First, Lord
Mansfield's opinion in Rex v. Cowle, 2 Burr. 834, 97 Eng. Rep.
587 (K.B.1759), disavows the right claimed by the detainees.
Second, it would have been impractical for English courts to
extend the writ extraterritorially. Third, Johnson v. Eisentrager,
339 U.S. 763 (1949), is controlling. None of these assertions
withstands scrutiny.
In Cowle, Lord Mansfield wrote that “[t]here is no doubt as
to the power of this Court; where the place is under the
subjection of the Crown of England; the only question is, as to
the propriety.” 2 Burr. at 856, 97 Eng. Rep. at 599. He noted
thereafter, by way of qualification, that the writ would not
extend “{t]o foreign dominions, which belong to a prince who
succeeds to the throne of England.” /d., 97 Eng. Rep. at 599-
600. Through the use of ellipsis marks, the court excises the
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qualification and concludes that the writ does not extend “[tJo
foreign dominions.” Op. at 16. This masks two problems in its
analysis. A “foreign dominion” is not a foreign country, as the
court's reasoning implies, but rather “ta country which at some
time formed part of the dominions of a foreign state or
potentate, but which by conquest or cession has become a part
of the dominions of the Crown of England.” Ex parte Brown, 5
B. & S. 280, 122 Eng. Rep. 835 (K.B. 1864). And the exception
noted in Lord Mansfield’s qualification has nothing te do with
extraterritoriality: Instead, habeas from mainland courts was
unnecessary for territories like Scotland that were controlled by
princes in the line of succession because they had independent
court systems. See WILLIAM BLACKSTONE, !| COMMENTARIES
*95-98; James E. Pfander, The Limits of Habeas Jurisdiction
and the Global War on Terror, 91 CORNELL L. REV. 497, 512-13
(2006). In the modern-day parallel, where a suitable alternative
for habeas exists, the writ need not extend. See 2 ROBERT
CHAMBERS, A COURSE OF LECTURES ON THE ENGLISH LAW
DELIVERED AT OXFORD 1767-1773, at 8 (Thomas M. Curley,
ed., 1986) (quoting Cow/e as indicating that, notwithstanding
the power to issue the writ “in Guernsey, Jersey, Minorca, or
the plantations,” courts would not think it “proper to interpose”
because “the most usual way is to complain to the king in
Council, the supreme court of appeal from those provincial
governments”); see also infra Part C.2. The relationship
between England and principalities was the only instance where
it was “found necessary to restrict the scope of the writ.” 9
WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 124
(1938). Cowle, by its plain language, then, must be read as
recognizing that the writ of habeas corpus ran even to places
that were “no part of the realm,” where the Crown's other writs
did not run, nor did its laws apply. 2 Burr. at 835-36, 853-55, 97
Eng. Rep. at 587-88, 598-99. The Supreme Court has adopted
this logical reading. See Rasul, 542 U.S. at 481-82; see also
Mitchell B. Malachowski, From Gitmo with Love: Redefining
Habeas Corpus Jurisdiction in the Wake of the Enemy
Combatant Cases of 2004, 52 NAVAL L. REV. 118, 122-23
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(2005).?
The court next disposes of Cowle and the historical record
by suggesting that the “power” to issue the writ acknowledged
by Lord Mansfield can be explained by the Habeas Corpus Act
of 1679, 31 Car. 2, c. 2. See Op. at 16. The Supreme Court has
stated that the Habeas Corpus Act “enforces the common law,”
Ex parte Watkins, 28 U.S. (3 Pet.) 193, 202 (1730), thus hardly
suggesting that the “power” recognized by Lord Mansfield was
statutory and not included within the 1789 scope of the
common-law writ. To the extent that the court makes the
curious argument that the Habeas Corpus Act would have made
it too impractical to produce prisoners if applied
extraterritorially because it imposed fines on jailers who did not
quickly produce the body, Op. at 16-17, the court cites no
precedent that suggests that “practical problems” eviscerate “the
precious safeguard of personal liberty [for which] there is no
higher duty than to maintain it unimpaired,” Bowen v. Johnston,
306 U.S. 19, 26 (1939). This line of reasoning employed by the
court fails for two main reasons:
First, the Habeas Corpus Act of 1679 was expressly limited
to those who “have beene committed for criminall or supposed
criminall Matters.” 31 Car. 2, c. 2, § 1. Hence, the burden of
expediency imposed by the Act could scarcely have prevented
? The significance of a 1794 opinion by the U.S. Attorney General,
see Op. at 15, which expresses the view that the writ should issue to the
foreign commander of a foreign ship-of-war in U.S. ports, reasoning that
the foreign ship has “no exemption from the jurisdiction of the country
into which he comes,” | Op. Att'y Gen. 47 (1794), is unclear. Nor is it
clear what point the court is making by referencing /n re Ning Yi-Ching,
56 T.L.R. 3 (K.B. Vacation Ct. 1939). In Rasul, the Supreme Court noted
that Ning Yi-Ching “made quite clear that ‘the remedy of habeas corpus
was not confined to British subjects,’ but would extend to ‘any person ...
detained” within the reach of the writ,” 542 U.S. at 483 n.13 (quoting
Ning Yi-Ching, 56 T.L.R. at 5), and that the case does not support a
“narrow view of the territorial reach of the writ,” id. Here, the court
provides a parenthetical quotation for Ning Yi-Ching that recalls a
dissenting position from a prior case that was later repudiated. See Rasul,
542 U.S. at 483 n. 14; Mwenya, [1960] | Q.B. at 295 (Lord Evershed,
M.R.).
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common-law courts from exercising habeas jurisdiction in non-
criminal matters such as the petitions in these appeals. Statutory
habeas in English courts did not extend to non-criminal
detention until the Habeas Corpus Act of 1816, 56 Geo. 3, c.
100, although courts continued to exercise their common-law
powers in the interim. See 2 CHAMBERS, supra, at 11; 9
HOLDSWORTH, supra, at 121.
Second, there is ample evidence that the writ did issue to
faraway lands. In Ex parte Anderson, 3 El. & El. 487, 121 Eng.
Rep. 525 (Q.B. 1861), superseded by statute, 25 & 26 Vict., c.
20, § 1, the Court of Queen's Bench exercised its common-law
powers to issue a writ of habeas corpus to Quebec in Upper
Canada after expressly acknowledging that it was “sensible of
the inconvenience which may result from such a step.” /d. at
494-95, 121 Eng. Rep. at 527-28; see also Brown, 5 B. & S.
280, 122 Eng. Rep. 835 (issuing a writ to the Isle of Man in the
sea between England and Ireland). English common-law courts
also recognized the power to issue habeas corpus in India, even
to non-subjects, and did so notwithstanding competition from
local courts, well before England recognized its sovereignty in
India. See B.N. PANDEY, THE INTRODUCTION OF ENGLISH LAW
INTO INDIA 112, 149, 151 (1967); see also Rex v. Mitter, Morton
210 (Sup. Ct., Calcutta 1781), reprinted in 1 THE INDIAN
DECISIONS (OLD SERIFS) 1008 (T.A. Venkasawmy Row ed.,
1911); Rex v. Hastings, Morton 206, 208-09 (Sup. Ct., Calcutta
1775) (opinion of Chambers, J.), reprinted in 1 THE INDIAN
DECISIONS, supra, at 1005, 1007; id. at 209 (opinion of Impey,
C.J.); Kal Raustiala, The Geography of Justice, 73 FORDHAM L.
REV. 2501, 2530 n.156 (2005).
Finally, the court reasons that Eisentrager requires the
conclusion that there is no constitutional right to habeas for
those in the detainees’ posture. See Op. at 17-18. In Eisentrager,
the detainees claimed that they were “entitled, as a
constitutional right, to sue in some court of the United States for
a writ of habeas corpus.” 339 U.S. at 777. Thus Fisentrager
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presented a far different question than confronts this court.8 The
detainees do not here contend that the Constitution accords them
a positive right to the writ but rather that the Suspension Clause
restricts Congress's power to eliminate a preexisting statutory
right. To answer that question does not entail looking to the
extent of the detainees’ ties to the United States but rather
requires understanding the scope of the writ of habeas corpus at
common law in 1789. The court's reliance on Eisentrager is
misplaced.
2.
This brings me to the question of whether, absent the writ,
Congress has provided an adequate alternative procedure for
challenging detention. If it so chooses, Congress may replace
the privilege of habeas corpus
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