Reply Brief — Boumediene v. Bush

No. 06-1195

RST CLERK j

) FILED

MAR 2 3 2007

“tace*

IN THE

Supreme Court of the United States

LAKHDAR BOUMEDIENE, et al.,

Petitioners,

v.

GEORGE W.

BUSH, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR PETITIONERS

STEPHEN H. OLESKEY

ROBERT C. KIRSCH

MARK C. FLEMING

JOSEPH J. MUELLER

PRATIK A. SHAH

LYNNE CAMPBELL SOUTTER

JEFFREY S. GLEASON

LAUREN G. BRUNSWICK

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

(617) 526-6000

SETH P. WAXMAN

Counsel-of Record

PAUL R.Q. WOLFSON

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., N.W.

Washington, DC 20006

(202) 663-6000

DOUGLAS F. CURTIS

PAUL M. WINKE

JULIAN DAVIS MORTENSON

WILMER CUTLER PICKERING

HALE AND DORR LLP

399 Park Avenue

New York, NY 10022

(212) 230-8800

Supreme Court, US

a

TABLE OF CONTENTS

Page

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(i)

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691

(TGEE) .cvuciesissecsinsaiieatigaaaniald diatphdtitinseresinueccesecessnceresecce 7

Exe parte Qutrim, SUT UB. Ta ecccccecscscccocvevensccseseseccseccceves 2,4

Felker v. Turpin, 515 U.S. GB (1996). nccccocscesccscsoscvesevescoveecseesess 2

Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006)............ccccesseseeeees 2

Hamai v. Rumsfeld, 542 U.S. 507 (2004) 2.0... cscsseecssssseeeeeees 3

ENS v. St. Capp, Gas G7 ois ee Cte certectreescecsecscccereveseccccecececozoree 4

In re Guantanamo Detainee Cases, 355 F. Supp. 2d

SAD DD 6 aan ancintervermnqceecsecceccececes 7

Johnson v. Eisentrager, 339 U.S. 763 (1950) 00... eecceseeeeees 4,5

Preiser v. Rodrigwez, 411 U.S. 475 (1978)....cccscessesseceseseeeseeees 2

Rasul v. Bush, 542 U.S. 466 (2004) ...........cscccccsssesesereseseees 5, 6, 7

Swain v. Pressley, 480 U.S. 372 (1977)...........ccesccsccersoosserseeseeree 2

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

CL ODD) sccsinsseissiccaierenkdcs Aenea dipeliadlipaaniicdsereerecsevecceeneeseeseeres 6

Yamashita v. Styer, 327 U.S. 1 (1946)... Se 4

Yamataya v. Fisher, 189 U.S. 86 (1908)......ccccccessessesseseeceneees 4

Zadvydas v. Davis, 5383 U.S. 678 (2001) ........ccesesssseessessesssenees 6

STATUTES

Authorization for Use of Military Force, Pub. L.

No. 107-40, 115 Stat. ZE6 (GOT) .ccccvocecccscoveceveerscovesssssovevseee 8

Detainee Treatment Act of 2005, Pub. L. No. 109-

TAS, TAG a aie teaeetdatatensiicnpnevcesevcevcevocvesce 1

2B GSC, Bae eatticshccecenevenescercsveecevecenes 7

SB USC, Faia eeeeeeteliertaseecicnensescenceecencececess 4

OTHER AUTHORITIES

Sharpe. R.J., The Law of Habeas Corpus (2d ed.

TOBD) ..<ssscosaienilacenstetieseasiaieialaalaabliesibadesbeictnmerreemesssevecers 3,4

Hertz, Randy, & James S. Liebman, Federal Ha-

beas Corpus Practice & Procedure (5th ed.

The government is correct that the issues raised in this

case are “important” (Opp. 8), but it is seriously mistaken in

suggesting that their resolution should be deferred.

ARGUMENT

1. After years of litigation, the government now sug-

gests that the federal courts should “decline to consider [this]

habeas petition” until Petitioners “first exhaust [their] reme-

dies,” by which the government means filing a petition under

section 1005(e)(2) of the Detainee Treatment Act, Pub. L. No.

109-148, 119 Stat. 2680 (DTA), and pursuing that action until

the “review process” has “run its course.” Opp. 15-16. The

government’s argument is unpersuasive on multiple grounds.

In the first place, this case does not raise any issue of

“exhaustion.” Petitioners could not have “exhausted” DTA

review prior to filing their petitions for habeas corpus in July

2004 or even before seeking relief in the court of appeals in

early 2005, as the DTA had not been enacted. The exhaustion

doctrine does not require habeas petitioners to complete pro-

ceedings that do not exist at the time the petition is filed. See,

e.g., R. Hertz & J. Liebman, 2 Federal Habeas Corpus Prac-

tice & Procedure § 23.4(a), at 1093 (5th ed. 2005). Cases re-

quiring exhaustion of preexisting state court or court-martial

appellate procedures, see Opp. 15, are thus irrelevant.

The government’s suggestion that this Court should de-

lay this case until the District of Columbia Circuit opines .

regarding the scope of DTA review is curious, as the gov-

ernment previously urged the D.C. Circuit to stay the DTA

cases pending resolution of this habeas corpus case.' In one

such case, the government argued that “[bjecause this

Court’s ruling in the Al Odah/Boumediene appeals is likely to

' See, e.g., Opp. to Mots. for Entry of Protective Order & for Order

Setting Procedures & Cross Mot. to Enter Proposed Protective Order &

to Stay Proceedings 5-6, Parhat v. Gates, No. 06-1397 (D.C. Cir. Dec. 29,

2006); Mot. to Hold Briefing in Abeyance Until This Court Issues Its Rul-

ing in Al.Odah v. United States & Boumediene v. Bush 2-3, Bismullah v.

Gates, No. 06-1197 (D.C. Cir. July 25, 2006).

2

resolve one or more of the primary issues in the present case,

we ask that this Court hold the briefing in abeyance until the

Al Odah/Boumediene ruling is issued by this Court.’””

The government’s inconsistency aside, courts have

never required habeas petitioners to wade through alterna-

tive procedures before addressing a Suspension Clause chal-

lenge to a repeal of habeas. On the contrary, this Court has

adjudicated Suspension Clause cases as they are presented.

See Swain v. Pressley, 430 U.S. 372, 373-376, 381-384 (1977)

(evaluating adequacy of statutory alternative to habeas even

though the habeas petitioner had not invoked it); see also

Felker v. Turpin, 518 U.S. 651, 663-664 (1996) (interpreting

statute on its face without reference to actual operation of

alternate procedure). Just as a petitioner has “a compelling

interest in knowing in advance whether [he] may be tried by

a military commission that arguably is without basis in law,”

Hamdan v. Rumsfeld, 126 8. Ct. 2749, 2772 (2006) (emphasis

added), Petitioners here have an equally compelling interest

in knowing in advance whether a replacement of habeas with

a different (and potentially more limited) procedure is con-

stitutional before embarking on that procedure. See also Ex

parte Quirin, 317 U.S. 1, 23-24, 38-40 (1942) (considering

challenge to military commission procedures on an expedited

basis prior to conclusion of trial).

The Suspension Clause would be a dead letter if Con-

gress could repeal habeas and indefinitely delay a habeas peti-

tioner’s ability to challenge that repeal by erecting manifestly

inadequate substitute procedures. To require a habeas peti-

tioner to pursue a non-habeas proceeding as a prerequisite to

raising a constitutional challenge is to decide the Suspension

Clause issue in the government’s favor, since the very issue to

be decided in a Suspension Clause case is whether a petitioner

can be constitutionally required to forgo the writ’s expedi-

tious remedy in the first place. See, e.g., Preiser v. Rodriguez,

411 U.S. 475, 495 (1973) (“(S}peedy review of [a prisoner’s]

? Mot. to Hold Briefing in Abeyance 2-3, Bismullah, supra.

3

grievance ... is so often essential to any effective redress.”);

R.J. Sharpe, The Law of Habeas Corpus 18-20 (2d ed. 1989)

(noting that the Habeas Corpus Act of 1679, the basis for the

modern writ, was designed to ensure that “judges would

come to a speedy determination”); see also Hamdi v. Rums-

feld, 542 U.S. 507, 575 (2004) (Scalia, J., dissenting) (the Sus-

pension Clause “would be a sham if it could be evaded by con-

gressional prescription of requirements other than the com-

mon-law requirement of committal for criminal prosecution

that render the writ, though available, unavailing”).

This Court can and should review the adequacy of the

DTA procedure as a substitute for habeas in light of the gov-

ernment’s own interpretation of the DTA, as Judge Rogers

did. Pet. App. 37a-4la. As interpreted by the government,

the DTA: (a) further restricts the limited access to counsel

that was granted to detainees in this and related cases; (b)

denies even the most basic discovery requests made by peti-

tioners in those cases; (c) requires the court of appeals to de-

cide the DTA petitions entirely on the basis of the one-sided

record compiled by the government in the CSRT proceedings,

where reasonable requests for documents and testimony were

repeatedly denied; (d) imposes a “strong presumption of regu-

larity” with respect to the compilation of the record; and (e)

restricts the remedy available to a remand for further consid-

eration, without vacating the “enemy combatant” designation

in the interim. See Mot. to Govern Further Proceedings &

Opp. to Mot. to Govern at 2, 9-17, Parhat v. Gates, No. 06-

1397 (D.C. Cir. Mar. 9, 2007) (““Gov’t Mot. to Govern DTA

Cases”); see also Opp. 30 (stating that the D.C. Circuit can

only “review the record evidence”). The government under-

scored the vast difference between habeas and DTA review

when it chided the DTA petitioners for “seek[ing] to recreate

much of the district court habeas regime that Congress abro-

gated.” Gov’t Mot. to Govern DTA Cases 8.

The government attempts to save the DTA’s review pro-

cedure by suggesting that the level of review to which Peti-

tioners are entitled is no greater than it would be had they

been “convicted by a military commission and sentenced to

4

death.” Opp. 14. This argument turns the law on its head. In

the cases the government cites, the petitioners had been con-

victed of crimes following trials that afforded extensive pro-

cedural protections, including notice of the charges against

them and the opportunity to present their own defense

through counsel. See, e.g., Johnson v. Eisentrager, 339 US.

763, 786 (1950) (prisoners were “formally accused of violating

the laws of war and fully informed of particulars of these

charges”); Yamashita v. Styer, 327 U.S. 1, 5 (1946); Quirin,

317 U.S. at 23. And what the government calls “conventional

habeas petitions” under 28 U.S.C. § 2254(e) (Opp. 15) are col-

lateral attacks on criminal convictions in state courts, which

likewise afford the accused full due process protections. In

contrast to these scenarios, Petitioners’ indefinite Executive

detention without trial or judgment falls squarely within the

“historical core” of habeas corpus, where “its protections have

been strongest.” INS v. St. Cyr, 533 U.S. 289, 301 (2001); see

also Sharpe, supra, at 66, 116 (stating that common law ha-

beas courts considered factual and legal objections to non-

criminal Executive detention, including cases of impressment

and prisoners of war).’

2. The government devotes significant space to de-

fending the court of appeals’ decision regarding the Suspen-

sion Clause (Opp. 19-28). Even if the court of appeals were

correct, however, this case would still strongly deserve this

Court’s review. The court of appeals overtly discarded this

Court’s analysis in favor of the Rasul dissent’s (Pet. App.

13a-14a). Indeed, the government does not even attempt to

*The government miscites St. Cyr for the proposition that “tradi-

tional habeas review” was confined to review of legal issues and “whether

there was some evidence to support the order.” Opp. 14 (quoting St. Cyr,

533 U.S. at 305-306). That passage of St. Cyr did not discuss “traditional

habeas review” at all, but rather habeas to “test the legality of [a] deporta-

tion order.” 533 U.S. at 306 (emphasis added). An alien who has been

found deportable from this country has previously received “all opportu-

nity to be heard upon the questions involving his right to be and remain in

the United States.” Yamataya v. Fisher, 189 U.S. 86, 101 (1903). Peti-

tioners have had no such process.

9)

reconcile the decision below with this Court’s analysis of the

historical reach of the common law writ in Rasul. Thus,

while there may be no split among circuits—an unsurprising

fact, given that all Guantanamo habeas petitions have been

filed in the District of Columbia—there is most certainly a

split between the court of appeals and this Court’s analysis

in Rasul. The Court should grant certiorari to resolve that

conflict and, as Petitioners would demonstrate further in

merits briefing, reverse the court of appeals’ erroneously

formalistic view of the common law writ.

The government’s substantive arguments fail to engage

the basic issues. As both the Court and concurrence con-

cluded in Rasul, the case of Guantanamo prisoners like Peti-

tioners is distinguishable from Evsentrager on multiple

grounds. Citizens of friendly nations uncharged with any

crime and “imprisoned in territory over which the United

States exercises exclusive jurisdiction and control” are dif-

ferently situated from citizens of enemy nations convicted of

war crimes after full trials and held at a temporarily--

controlled Allied prison in Germany. Rasul v. Bush, 542

U.S. 466, 476 (2004). And while the Kisentrager petitioners

could not seek habeas because they were not within the “im-

plied protection” of the United States (339 U.S. at 777-778),

the United States’ indefinite control and jurisdiction over

Guantanamo Bay “has produced a place that belongs to the

United States, extending the ‘implied protection’ of the

United States to it” (Rasul, 542 U.S. at 487 (Kennedy, J.,

concurring in the judgment) (quoting Hisentrager, 339 U.S.

at 777-778)). Justice Kennedy’s recognition that Guan-

tanamo prisoners are covered by the “implied protection” of

the United States—the test used by Eisentrager for the

“constitutional right[] to sue in some court of the United

States for a writ of habeas corpus” (339 U.S. at 777)—refutes

6

the government’s effort to confine the Rasul reasoning

solely to statutory issues.’

The government’s statement that “aliens outside the

United States have no rights under the Constitution” (Opp.

20) misstates the law. The government’s cases state only that

“certain constitutional protections available to persons inside

the United States are unavailable to aliens outside of our geo-

graphic borders.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001)

(emphasis added).. As Petitioners pointed out—and the gov-

ernment does not address—this Court has declined to apply

particular provisions to conduct occurring in other countries

where doing so would be “impracticable and anomalous.”

United States v. Verdugo-Urquidez, 494 U.S. 259, 278 (1990)

(Kennedy, J., concurring) (internal quotation marks omitted);

Pet. 24-25. As the Court recognized in Rasul, however, there

is no such anomaly here. See 542 U.S. at 483 n.15.°

3. Finally, the government asserts that the Court

should not review the merits issues that have split the district

court because the court of appeals did not rule on them. Opp.

28. But the very case the government cites decided an issue

‘The government’s suggestion that the Court “rejected” Justice

Kennedy’s conclusion that Guantanamo “should be treated as sovereign

territory” for habeas purposes (Opp. 22) is without merit. The Court con-

cluded that the “the reach of the writ depended not on formal notions of

territorial sovereignty, but rather on the practical question of’ the juris-

diction and control exercised, and that the United States’ control over

Guantanamo rendered the writ as available to Guantanamo prisoners as to

prisoners held in the 50 states. The fact that the United States does not

exercise “ultimate sovereignty” (Opp. 22 (internal quotation marks omit-

_ ted)) was irrelevant to both the Court and Justice Kennedy.

> Similarly, while the voluntariness of one’s presence in the United

States may be relevant to claims under the Fourth Amendment’s Search

and Seizure Clause, cf. Opp. 24-25, this Court has never suggested, much

less approved, the government’s contention that involuntary presence has

any bearing on the Fifth Amendment’s prohibition against arbitrary de-

tention. Under the government’s position, the Executive could presuma-

bly abduct a foreign citizen and detain him in the United States without

any meaningful judicial review/on the theory that his presence here was

“involuntary.” Opp. 25.

7

on which neither the district court nor the court of appeals

had ruled, that the parties had not initially briefed, and that

was raised for the first time by an amicus curiae in this

Court. See Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691,

697 (1984) (deciding a preemption issue even though it was

merely “acknowledged” by the district court and court of ap-

peals and was only briefed in response to a special order of

this Court). Here, Petitioners’ ability to assert substantive

rights on habeas was not only briefed but also decided by the

district court and fully briefed and argued in the court of ap-

peals.

The government avoids all discussion of Petitioners’ ma-

jor merits arguments: that they have validly stated claims

under both common law habeas and the Constitution that

warrant a hearing, contrary to Judge Leon’s holding. Pet. 23-

25. The government’s failure to address Petitioners’ right to a

“searching factual review of the Executive’s claims” under

the common law writ codified in 28 U.S.C. § 2241(c)(1) (Pet.

App. 46a (Rogers, J., dissenting)), or the fact that petitions

indistinguishable from Petitioners’ “unquestionably describe”

constitutional violations cognizable under section 2241(c)(3)

(Rasul, 542 U.S. at 483 n.15), demonstrates the weakness of

the government’s position on these points.

The government likewise fails to confront the fact that

the CSRTs’ expanded definition of “enemy combatant” al-

lows the detention of people who render assistance to others

who, without their knowledge, are allegedly associated with

Al Qaeda. The government tellingly does not dispute that

the CSRT definition would permit detention of Judge

Green’s hypothetical “little old lady in Switzerland” who in-

nocently gives money to a disguised terrorist organization.

In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 475

(D.D.C. 2005) (internal quotation marks omitted).° Whether

°The government attempts to blunt the force of Judge Green's hy-

pothetical by asserting that Petitioner Boumediene was detained for sup-

posedly “provid[ing] assistance” to a “known al Qaida operative” (Opp. 29

& n.13). But the government’s careful language never says that the per-

8

each and every detainee at Guantanamo fits within that hypo-

thetical is irrelevant. The point is that the government’s lat-

est definition of “enemy combatant,” which the government

all but concedes is far broader than the definition previously

put before the Court (Opp. 28-29), significantly exceeds Con-

gress’s mandate in the Authorization for Use of Military

Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) and the tradi-

tional detention power under the laws of war. Moreover,

because Petitioners clearly do not fall within these latter le-

gitimate categories of detainable persons, the writ should

issue forthwith.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

STEPHEN H. OLESKEY SETH P. WAXMAN

ROBERT C. KIRSCH Counsel of Record

MARK C. FLEMING PAUL R.Q. WOLFSON

JOSEPH J. MUELLER WILMER CUTLER PICKERING ~

PRATIK A. SHAH HALE AND DORR LLP

LYNNE CAMPBELL SOUTTER 1875 Pennsylvania Ave., N.W.

JEFFREY S. GLEASON Washington, DC 20006

LAUREN G. BRUNSWICK (202) 663-6000

WILMER CUTLER PICKERING

HALE AND DORR LLP DOUGLAS F,, CURTIS

60 State Street PAUL M. WINKE

Boston, MA 02109 JULIAN DAVIS MORTENSON

(617) 526-6000 WILMER CUTLER PICKERING

HALE AND DORR LLP

399 Park Avenue

New York, NY 10022

(212) 230-8800

MARCH 2007

son’s supposed status as an “al Qaida operative” was “known” to Mr.

Boumediene.