Boumediene, Lakhdar v. Bush, George

are con- and the officers’ recommendations single fact or No Army’s decision. is Army’s regulations Our conclusion dispositive. is sistent with both statement particu- and in record on the entire based and the record. and rebuttal application own Aguayo’s

lar addition, Aguayo applied In for dis- Aguayo’s own example, For statements. objector shortly a charge as conscientious provide reason materials application just days unit arriving after at his developed his beliefs whether doubt deployment Iraq, his a fact noted before “activity comparable rigor in through chaplain and which “raise[d] tradi- processes which dedication Judge in the mind of the Staff doubts” are formulated” religious convictions tional This court has held that Advocate. thought product of a conscious or “are not, timing application of a is suspect CO as to resulting in such a conviction process itself, grounds denial. sufficient its but to act person no choice allow ¶ Resor, F.2d Bortree v. AR 1- them.” 600-43 accordance with (D.C.Cir.1971). 7.a.(5)(6); Glossary. Aguayo regulations ex- The current id. religious raised plained timing may that he was a factor that consid- list be pacifist. father is a and that his parents timing expressly provide ered but may a upbringing be source Certainly this enough a alone “is never to furnish basis beliefs, also maintains Aguayo but of his AR 600-43 support disapproval.” fact to objector not conscientious that he was ¶ l-7.a.(5)(c). The DACORB this case Army. The for the when he volunteered properly could find that the circumstances of’ “growing out Army will consider claims consti- surrounding Aguayo’s application as the experiences, long so pre-enlistment weighed against tuted a factor that its after en- fixed applicant’s beliefs become approval. ¶ l-7.a.(l). Id. tering service. Army that his Though Aguayo stated Ill we anguish guilt, him training caused his beliefs were find little indication that reasons, the order of foregoing For the contemplation, by study or accompanied denying Agustín district court joined after he whether before or cor- Aguayo’s petition for a writ certainly we Army. point, More to the pus is affirmed. reviewing officers’ say cannot are so Aguayo’s as to convictions doubts So ordered. their rec- with the record that inconsistent disregarded. must be ommendations “crys- that the Aguayo insists appeal, objector be-

tallization” of conscientious

liefs, process religious conver- like the

sion, always prolonged not the result of is be dramatic and

study and can instead precipitated by a life

quick, as when case, Aguayo’s experience his crisis—in BOUMEDIENE, Detainee, Lakhdar Clearly, not an weapons training. this was al., Delta, Appellants Camp et Aguayo’s both Com- open-and-shut case: investigating and the of- pany Commander application ap- be ficer recommended BUSH, George W. President in close cases

proved. But the decision States, al., Appellees courts, et DACORB, not the rests with the Odah, Next Friend Khaled A.F. Al Al Khalid Abdullah Fahad

Fawzi al., Appellees/Cross-Appel et

Odah

lants America, al.,

United States et

Appellants/Cross-Appellees.

Nos. 05-5062 to

05-5095 to 05-5116. Appeals, Court of

United States

District Columbia Circuit. 8, 2005.

Argued Sept.

Decided Feb. Goldman, Falkoff, Marc A. David J.

Marc Cynamon, and Osman Handoo. Wesley Christopher R. Powell and C. on the of amicus curiae Land were brief in of the detain- Deghayes support Omar ees. amicus

Morton Sklar was on brief of Human Organization curiae The for World of the detainees. Rights support USA on the brief David Overlock Stewart was Legal of amici curiae and Historical Schol- support of the detainees. ars on the L. Hafetz was brief Jonathan American Habeas amici curiae British and in support of the detainees. Scholars Wax, T. Federal Public Defend- Steven er, Sady, Iniguez, R. Ruben L. Stephen Amy Baggio, Deputies Federal and Chief Defender, Federal Public Defender Public Oregon, and A.J. Kram- for the District Defender, er, Pub- Federal Federal Public Columbia, for the lic Defender District Oleskey argued the causes H. Stephen amicus curiae Feder- were on the brief for 05-5062, et al. With in Nos. appellants for Corpus Coun- al Public Defender Habeas Cohen, Louis R. him on the briefs were support sel in of the detainees. Curtis, Kirsch, Douglas F. Mark Robert C. Ronald Meis- Eugene R. Fidell and W. Powell, Sym- Fleming, Wesley R. Julia C. for amicus curiae the ter were on the brief on, Christopher Land. Military Justice Institute of National Hill, and Fitzpatrick, F. Leslie M. James of the detainees. support for were on the brief Graham J. Jenkins Katsas, Deputy Assistant Gregory G. support Rights curiae amicus Global General, Department of Attorney U.S. 05-5062, et al. appellants in Nos. Justice, for the United argued cause argued B. the causes Thomas Wilner America, al. in Nos. et States 05- Nos. appellees/cross-appellants him al. on the al. and et With et were him on the briefs et al. With Clement, Solicitor were Paul D. briefs Olshansky, Margulies, Neil Barbara J. Joe Keisler, General, Attor- D. Assistant Peter Goldstein, Koslowe, L. Barrett Jared A. H. Letter, General, N. Rob- ney Douglas Steel, Jr., Azmy, Boss, Baher Adrian Lee Miller, Loeb, Eric D. and Catherine ert M. Kadidal, Barry J. Pol- Shayana Devendrá Hancock, L. Attorneys. Kenneth Wain- Y. Freedman, Wilson, iak, Erie M. Richard J. stein, Attorney at the time the briefs Mickum, IV, Douglas James George Brent filed, appearance. were entered Behr, Chemerinsky, L. Erwin Jonathan Samp Richard A. Ahmad, Popeo Daniel J. Hafetz, Rogers I. Pamela Muneer Washing- curiae on the of amici Taylor, B. brief Chepiga, Ralph A. Seth Wax- Edu- Bedell, Remes, Foundation and Allied man, Legal ton Kevin B. David H. in support cational Foundation of the Unit- years the two since the district court’s decisions the undergone ed States of America. law has changes. result, several As a we have had SENTELLE, Before: RANDOLPH and arguments two oral and four rounds ROGERS, Judges. Circuit briefing in these during period. cases The developments that brought have us to for the court filed Circuit Opinion point are as follows. Judge RANDOLPH. States, In Al Odah v. United 321 F.3d filed Circuit Dissenting opinion (D.C.Cir.2003), rev’d sub nom. Ra Judge ROGERS. Bush, sul v. (2004), 159 L.Ed.2d 548 we affirmed the RANDOLPH, Judge. Circuit district court’s dismissal of various jurisdiction Do federal courts have over claims—habeas and non-habeas—raised petitions for writs of habeas filed Guantanamo respect detainees. to With captured aliens abroad and detained as claims, the habeas we held that “no court enemy Bay combatants at the Guantanamo country jurisdiction has grant to question Naval Base in The Cuba? has relief, § under 28 U.S.C. subject recurring legislation been the the Guantanamo detainees.” 321 F.3d at litigation. In these consolidated ap- 1141. The habeas statute then stated that peals, foreign nationals held at Guantana- corpus may “Writs granted be petitions mo filed for writs of habeas cor- Court, Supreme thereof, any justice Constitution, pus alleging violations of the the district any judge courts and circuit treaties, statutes, regulations, the common within their respective jurisdictions.” 28 law, and the law of nations. Some detain- 2241(a) (2004). § U.S.C. Because Guanta ees also raised non-habeas claims under Bay namo part was not sovereign statute, question federal 28 U.S.C. States, territory of the United but rather Act, § § and the Alien Tort id. Cuba, land the United States leases from (Nos. 05-5064, In the “Al Odah” cases 05- Odah, 1142-43, see Al 321 F.3d at we 05-5116), through which consist of determined it was not “respec within the fifty-six detainees, eleven involving cases jurisdictions” tive of the district court or Judge government’s Green denied the mo- any other court in the United States. We respect tion to dismiss with § claims therefore held that provide did not arising alleged statutory from violations of the Fifth to consider habeas any relief for enemy Amendment’s Due Process Clause and the or not—held at alien— Convention, Regarding Third Guantanamo. Id. at 1141. Geneva but dismissed “ claims, non-habeas we all noted that ‘the other claims. See In re Guantanamo privilege of Cases, (D.D.C. litigation’ does not extend to F.Supp.2d Detainee military aliens in 2005). custody who have no Judge After Green certified the presence ‘any territory over which the interlocutory appeal order for under 28 ” sovereign,’ United States is id. at 1144 1292(b), government U.S.C. appealed (quoting Johnson v. Eisentrager, 339 U.S. cross-appealed. and the detainees In the 763, 777-78, 94 L.Ed. 1255 (Nos. “Boumediene” cases 05-5062 and 05- (1950)), and held that the district court 5063) involving cases seven detain- —two properly dismissed those claims. Judge Leon granted govern- ees— ment’s motion and dismissed the cases in Supreme Court reversed Rasul v. Bush, entirety. Bush, their See Khalid v. S.Ct. (D.D.C.2005). F.Supp.2d L.Ed.2d holding that the habe- DTA, provided which section 1005 of the at Guantana to aliens extended as statute judicial review of Combatant themselves for exclusive the detainees Although mo. jurisdic Review Tribunal determinations district court’s Status beyond the military that the district commission decisions tion, determined the Court (e)(3). 1005(e)(2), cus the detainees’ See DTA jurisdiction over D.C. Circuit. court’s subject- provide was sufficient todians June, following Court Ra § 2241. See jurisdiction under — matter Rumsfeld, decided Hamdan sul, -, 2749, 165 L.Ed.2d 723 the district held that The Court further (2006). Among things, other the detainees’ jurisdiction over court had strip the DTA did not federal held that nothing in the claims because non-habeas jurisdiction over habeas cases courts of the Alien Tort statute or question federal at the time of the DTA’s enact- pending aliens outside categorically excluded Act pointed provision to a ment. The Court bringing from such the United States (e)(2) stating DTA subsections Rasul, claims. See (e)(3) apply 1005 “shall with of section remanded the 2686. The Court any pending claim ... that is on respect us, them to the and we remanded cases or after the date of the enactment of this court. district 1005(h). contrast, § pro- Act.” DTA In no of the DTA stated whether subsec- vision responded Congress meantime In the (e)(1) Find- applied pending tion to cases. Act of Detainee Treatment with the (2005) provide not to so ing Congress “chose No. 119 Stat. Pub.L. presented ... with the having after been (DTA), signed into law which the President concluded omis- option,” “[t]he the Court DTA 2005. The added on December integral part statutory an of the (e) sion [wa]s the habeas statute. This to subsection Hamdan, 126 S.Ct. at 2769. scheme.” that, “[ejxcept pro- as provision new stated [DTA], no 1005 of the vided in section Hamdan, response Congress In juris- court, justice, judge” may exercise or Military Act of passed the Commissions diction over Pub.L. No. Stat.

(1) for a writ of habeas application an (2006)(MCA), signed President which the by or of an alien corpus filed on behalf 7 of into on October 2006. Section law by Department of Defense detained Corpus Mat- the MCA is entitled “Habeas Cuba; or Bay, at Guantanamo (a), Congress again ters.” subsection (2) 2241(e). any against other action United § The new amendment amended relating any as- agents or its States reads: by Department

pect of the detention (1) court, justice, have judge No or shall Defense of an alien Guantanamo appli- an jurisdiction to hear or consider Cuba, Bay, who corpus a writ of habeas filed cation for (A) currently military custody; by of an alien detained by or on behalf or been deter- States who has (B) to have been by by the Unit- the United has been determined mined States enemy Appeals for the an combat- properly ed States Court detained as ... determination. awaiting District of Columbia Circuit ant or is such an properly detained as have been (2) Except provided [section as enemy combatant. (e)(3) DTA], 1005(e)(2) no court, juris- have 1005(e)(1) (internal justice, judge shall quotation § DTA any other omitted). to hear or consider diction “except provided” marks (e)(3) (e)(2) States or its against action the United to subsections referred any aspect of the de- tion is agents relating whether statute is unconsti- treatment, tention, transfer, trial, or suspension tutional of the writ of habeas confinement of an alien conditions of corpus.1 by the United who is or was detained I. by has been determined

States and properly to have been de- United States As to application of the MCA to enemy or is tained as an combatant 7(b) lawsuits, these section states awaiting such determination. statute, amendment to the habeas 7(a) (internal quotation 2241(e), § marks MCA apply U.S.C. “shall to all omitted). (b) states: cases, Subsection exception, without pending on or (a) after the date of the enactment” that made subsection re

The amendment subjects. take effect on the date of the enact- late to certain law shall detainees’ Act, apply subject ment of and shall to all suits fall within matter covered cases, 2241(e); exception, pending without on or the amended each case re date the enactment of this lates to an “aspect” of detention and each after any aspect Act which relate to deals with the detention of an “alien” after detention, transfer, treatment, trial, or September brings 2001. The MCA all of an “cases, conditions of detention alien de- exception” such without within the Sep- States since tained the United new law. tember Everyone who has followed the interac- added). 7(b) (emphasis

§MCA tion between Congress and the question The first is whether the MCA Court knows full well that one pri- applies petitions. mary purposes to the detainees’ habeas of the MCA was to over- Hamdan,2 apply, If ques- is, the MCA does the second rule Everyone, except that 7(a) jurisdic- accomplish sought through Section of the MCA eliminates what it to do year. finally get tion over non-habeas claims de- lawyers [DTA] aliens last It will enemy Bay. tained as combatants. That alone is out of Guantanamo It will substitute the litigation require pending instigated by blizzard of sufficient to dismissal even of Rasul v. Circuit-only Bush non-habeas v. with narrow DC claims. See Bruner review of States, 112, 116-17, (state- hearings.”); the [CSRT] id. at S10404 Sessions) ("It (1952). 7(b) ment certainly of Sen. L.Ed. 786 was not Section reinforces this intent, DTA, my when I voted for the to ex- result. empt pending all of the Guantanamo lawsuits * * * exception, proponents Without both the provisions from the of that act. Section opponents provi- of section understood the of fixes this feature [MCA] of the DTA jurisdiction to sion eliminate habeas over possibility ensures that there is no See, pending e.g., Cong. cases. Rec. confusion in the future.... I don't see how 28, 2006) (statement (daily Sept. ed. any S10357 there could be confusion as to the effect (“The Leahy) stripping provi- of Sen. habeas pending litiga- of this act on the Guantanamo go beyond Congress sions in the bill far what jurisdictional tion. The applies MCA’s bar to ”); did litigation in the Detainee Treatment Act .... This exception.' that ‘without strips jurisdiction Cong. 2006) new bill habeas (daily Sept. retroactive- Rec. H7938 ed. id, cases.”); (statement ly, pending Hunter) ("The even Rep. at S10367 practical (statement Graham) ("The only of Sen. reason effect of [section will be to eliminate 7] we are here is because of the Hamdan pend- deci- hundreds of detainee lawsuits that are apply ing sion. The Hamdan throughout decision did not ... country in courts and to retroactively, so we have about 200 [DTA] consolidate all detainee treatment cases in the Circuit.”); and some habeas (Rep.Jackson- cases left unattended and D.C. id. at H7942 now.”); Lee) ("The going we are to attend to them id. at provisions legislation in the (statement ("[Ojnce Cornyn) SI0403 contrary congressional of Sen. are intent in the effective, [DTA], act, Congress ... finally Congress section 7 is will In that did not intend to cases, cases—shall take effect on they argue, includes habeas Their the detainees. arguments apply are crea- date of enactment and shall are not covered. accept cases, them would cogent. To ha- exception, including but not “all without tive Congress. Section defy the will Cyr interpre- be rule of beas cases.” St. 7(b) It states that not be clearer. could tation the detainees invoke demands clari- by subsection made “the amendment redundancy. ty, not (a)” jurisdiction— repeals habeas —which compare The detainees also ask us to cases, exception” without to “all applies 7(b) language of section to that of It is any aspect of detention. relating to 3 of the MCA. entitled section Section of these words proponents as if the almost Commissions,” jurisdic- “Military creates table slamming their fists on the mili- tion in the D.C. Circuit for review of ‘all,’ say mean all— shouting we we “When decisions, tary commission U.S.C. exception!”3 without 950j, § 950g. It then adds 10 U.S.C. do not see The detainees course finality military which deals with the have way. They say Congress should 950j strips commission decisions. Section 7(b) that habeas stated section expressly jurisdiction any over federal courts cases, among “all cases were included or future cases that would pending involve on or after” the exception, pending without of such decisions: review Otherwise, the MCA MCA became law. Except provided otherwise statu- “unambiguous represent does not notwithstanding any other chapter and corpus tory repeal direetive[]” provision (including of law section 2211 Cyr, jurisdiction. INS St. any title or other habeas 150 L.Ed.2d court, provision), justice, judge no or 7(b) is nonsense. Section This shall have to hear or consid- 7(a). the effective date of section specifies of action any er claim or cause whatso- argument means Con- The detainees’ ever, or including any pending action on (28 statute gress, amending the habeas the enactment of filed after the date of 2241), date specified an effective U.S.C. Military Commissions Act of cases. Of course Con- for non-habeas trial, prosecution, relating to the sort. Habeas gress nothing did military a commission un- judgment of dealing a of cases simply cases are subset challenges to chapter, including der this See, e.g., Preiser v. Rodri- with detention. military of procedures the lawfulness of 475, 484, guez, chapter. under this commissions (1973).4 Congress did not L.Ed.2d 439 added). 950j(b) (emphasis § 10 U.S.C. made say that “the amendment have to (a)” 950j § maintain that calls already The detainees expressly subsection —which detention,” would be inconsis- jurisdiction pend- conditions of strip over the the courts of [cases]."). 7(a) 7(a). ing of the habeas tent with section Section repeals jurisdiction "to hear or MCA first rarely necessary Congress has found it to 3. application a writ of habeas consider an for exceptions a clear emphasize the absence of to corpus” 28 U.S.C. detainees. Indeed, exception” of "without rule. the use 2241(e)(1). repeals jurisdiction over § It then emphasize to the word "all” occurs in relating any aspect "any ... to of other action provision U.S.Code. See 48 one other trial, transfer, treatment, detention, or 526(a). § U.S.C. detainee, id. of confinement” of conditions added), 2241(e)(2) signify- (emphasis § thus 7(b) cases If section did not include habeas as ing Congress considered habeas cases any among aspect to cases "which relate detention, detention, transfer, treatment, trial, relating indeed are. to as cases question Congress’s apply 1789,” into intention to existed when Judiciary the first 7(b) pending section habeas cases. Act granted created the federal courts and jurisdiction to corpus. issue writs of habeas goes argument The nowhere. Section Cyr, St. U.S. at 7(b), 7(a), conjunction section read with cf. Henry 7(a) Friendly, J. Is Innocence 950j. Irrele- explicit is no less than Section vant? cases, Attack on jurisdiction Collateral Criminal strips over detainee in- 7(b) cases, Judgments, 38 U. Chi. L. Rev. cluding habeas and section (1970). 7(a) applicable rely pending mainly section detainees on makes 950j accomplishes Section the same three to claim cases. that in privi- cases 1789 the A thing, drafting but in one sentence. lege of the writ extended to aliens outside separate decision to 7 into section two sovereign’s territory. In Lockington’s addressing the scope Case, (N.P.) subsections—one (Pa.1813), Bright. Brit- bar, jurisdictional addressing other ish Philadelphia resident of im- had been applies pending how the bar cases'— prisoned failing after to comply awith legal no difference.5 makes federal marshal’s order to relocate. The War of Lockington “enemy 1812 made II. alien” under the Alien Enemies Act brings This us to the constitutional is- Although he lost on the merits MCA, sue: whether the in depriving the petition his habeas before the jurisdiction courts of over the detainees’ Pennsylvania Court, Supreme two of three petitions, violates Suspension Pennsylvania justices held that he en- was Const, Constitution, Clause of the art. titled to review of his detention.6 In The I, cl. which states that “The Privi- Sailors, Case Spanish Three Eng. lege Corpus of the Writ of Habeas shall (C.P.1779), Rep. 775 Spanish three seamen suspended, not be unless Cases of when had a merchant boarded vessel bound for or Invasion Safety Rebellion the public England a promise wages with on arriv- may require it.” al. arriving After in England, English captain stated pay has wages refused their Suspension protects Clause writ “as it turned warship prisoners them over to a suggest 5. The detainees that federal courts process,’ order to avoid ‘due "serious Clause, some form Suspension retain common law residual problems,” and Article III jurisdiction petitions. parte over habeas Ex urge also us detainees not to read section Bollman, (4 Cranch) 2 L.Ed. to eliminate MCA opposite. holds Exporte over Geneva Convention claims. But that McCardle, (7 Wall.) 19 L.Ed. 264 reading is unavoidable. Section 7 is unam- "Jurisdiction of the lower 5(a), federal biguous, as is section which states that subjects is ... courts limited to those encom- person may "No invoke the Geneva Conven- passed statutory grant jurisdic- a within of any protocols any tions or thereto in habeas Ireland, Corp. Ins. Compagnie tion.” v. Ltd. corpus proceeding or other civil action or ... of Guiñee, des Bauxites de 456 U.S. rights any as a of source in court of the 102 72 L.Ed.2d 492 United States.” observations about common law habeas in Rasul, During 542 U.S. at period, state courts em- often practice England. referred to the ployed corpus inquire Even if the writ of habeas to thing juris- legality there were such a as law into the common of federal detention. The courts, 2241(e)(1) diction in the federal later held in Ableman v. Booth, (21 quite clearly How.) "jurisdiction eliminates all 16 L.Ed. 169 Case, (1859), application (13 Wall.) hear or consider an for a writ of and Tarble's detainee, corpus" by (1871), habeas whatever the 20 597 L.Ed. that state courts jurisdiction. source of that power. had no such

989 (1794); Ning Yi-Ching, In re the sail- Gen. King’s Bench denied war. The of (Vacation Ct.1939) “alien en- they (noting prior were T.L.R. petitions because ors’ war, of and therefore prisoners and in vain for a judge emies “had listened case of any privileges of the not entitled to corpus issued which the writ habeas had liberty to be set at much less Englishmen; respect foreigner part of a detained in a at 776. The corpus.” Id. on a habeas part of the world which was not a that, Lockington’s claim detainees realm”). King’s dominions or Robert Case, jurisdic- King’s Bench exercised Chambers, the to Blackstone at successor the merits. The third tion and reached Oxford, wrote in his lectures that the writ Schiever, Eng. Rep. 551 case—Rex corpus of habeas extended to the (K.B.1759) a citizen of Sweden —involved A Chambers, King’s dominions. Robert merchant entering English intent on English on the Law Course of Lectures English on an mer- trade. sea While (composed at Oxford 1767-1773 Delivered took privateer a French ship, chant’s Johnson), in association with Samuel at 7- of the crew as along with the rest Schiever (Thomas 1986). ed., Curley M. Cham- crew to another transferred the prisoners, (2 Coivle, Eng. Rep. bers cited Rex v. English prisoners let the ship, French and Burr.) (K.B.1759), in which Lord cap- thereafter English ship An go free. foreign Mansfield stated that domin- “[t]o crew, ship and its tured the French power ... no ions this Court has send Liverpool them to where Schiever carried any any kind. We cannot send a writ Liverpool From Schiever imprisoned. was Scotland, or corpus corpus, claiming he for habeas petitioned electorate; Ireland, Man, the Isle of but only by force a citizen of was Sweden ... plantations we [American colonies] of the French. The the service entered Mansfield, territory that may.” Every him it found denied relief because court Blackstone, juris- cited as a and Chambers prisoner that he was a ample evidence (e.g., diction to which the writ extended Id. at 552. war. Man, colonies, Ireland, the Isle of an alien these cases involved None of Wales) Ports, sovereign was a Cinque sovereign. territory outside territory of Crown. Philadelphia. Lockington was resident of the Crown detained agents When Spanish the three sailors and Schiever And dominions, prisoners outside the Crown’s sovereign ter- English all within were held were outside it was understood cite no case and no ritory.7 The detainees the writ. See Holds- English showing that the historical treatise Even British supra, at 116-17. worth, writ of habeas extend- common law islands, imprisoned “remote citizens beyond the Crown’s domin- ed to aliens places” “pre- and other garrisons, contrary. ions. review shows the Our law,” 2 from the benefit of vented] DuiceR, A F. Histo- CONSTITUTIONAL William Henry Hallam, Coepus (1980); 9 Histo- The Constitutional RY of Habeas William ry (William Hein England 127-28 S. History English A Holdsworth, Law Co.1989) access to (1982 which included ed.); Blackstone, Com- 51-53; (1768); corpus, supra, see Op. Att’y also 1 Duicer, mentaries 108 L.Ed.2d be- 7. The claims that the difference dissent (1990). and the detainees is "exceed- tween Schiever Verdugo-Urquidez was Fourth narrow,” ingly Dissent at because Obviously, nothing it had Amendment case. brought involuntarily to Liver- Schiever was Eighteenth corpus say about habeas in proposition, cites pool. this the dissent For Century England. Verdugo-Urquidez, U.S. States v. HoldswoRth, 116; known, supra, at see also Johan the writ is has it on issued behalf who, enemy of an alien at no relevant time Bay: Legal The Steyn, Guantanamo Comp. stage and in no captivity, his has been Int’l & Hole, L.Q. Black jurisdiction. Nothing within its territorial (2004) (“the corpus writ of habeas would in the text of the Constitution extends islands, garri- in “remote not be available” a right, anything such nor does in our (internal sons, quotation places” and other statutes.” Id. at see S.Ct. omitted)). Compliance with a writ marks Note, also Corpus Habeas Protection completely imprac- from was also overseas Detention, Against Illegal Extraterritorial given tical the habeas at law the time. 51 Colum. L. Rev. Cowle, explained Lord Mansfield that even they detainees claim are in a different in off the far territories “annexed position prisoners Eisentrager, than the in Crown,” the Court would not send the this difference is material for writ, “notwithstanding the power.” purposes They common law habeas.8 Eng. Rep. at 600. This is doubtless be- Rasul, point to dicta in 542 U.S. at Act of Corpus cause the Habeas in which the Court dis great innovation of this statute was English cussed habeas cases and the “his setting time for producing pris- limits torical reach of the writ.” Rasul refers to oner and if imposing fines on the custodian several English and American cases in limits those were not met. See CHAMBERS, volving varying combinations of territories supra, prisoner For a detained over of the relationships Crown and between court, detaining 100 miles from the petitioner country and the which the twenty days receiving officer had after sought. writ was Judge See id. But as produce body Hamdan, writ to before the court. Robertson found in one of “[n]ot the cases produce body, See id. If he did not he mentioned Rasul held that an captured alien abroad and detained outside easily imagine incurred a fine. One can the United States —or in ‘territory over practical problems would have en- which the United States exercises exclu if the run tailed writ had outside the sover- control,’ Rasul, sive eign territory of the Crown and reached 475, 124 U.S. S.Ct. 2686—had a common holding foreign prisoners British soldiers constitutionally law or protected right to conflicts, in overseas such as the ofWar corpus.” the writ of habeas Hamdan v. 1812. The short of the matter is that (D.D.C. Rumsfeld, 464 F.Supp.2d given history of the writ in England 2006). point Justice Scalia made the same prior founding, would dissent, Rasul, Rasul his not have been available in 1789 to aliens (Scalia, J., 502-05 & n. 124 S.Ct. 2686 presence property without within the dissenting) (noting single the absence of “a United States. holding case that aliens held outside the 339 70 territory of the sovereign were within v. Eisentrager, Johnson 94 L.Ed. any ends writ”), reach of the and the dissent ac doubt the scope about of common law ha- here, knowledges it see Dissent at 1000. are beas. ‘We cited to no instance where We are aware of no prior case to 1789 court, any country this or other where going way,9 the detainees’ and we are con 8. The presence any detainees are correct that are not but sovereign his lack of within territory. "enemy aliens.” That term refers to citizens country of a with which the United States is any 9. The dissent claims the lack of case on Odah, at war. See Al F.3d at 1139-40. point unique is a result of the combination of law, dispositive But under the common circumstances in this case. But extraterrito- status, petitioner’s enemy fact was anot alien Eighteenth rial detention was not unknown in (Shortly have ments.” Id. S.Ct. in 1789 would not the writ vinced that surrender, Germany’s held at an overseas the Nazis be- to aliens before been available foreign govern training leased from covert forces called military gan base “were- activities dur- ment. wolves” to conduct terrorist http://www. ing occupation. the Allied See another encounter The detainees declassified_rec- archives.gov/iwg/ Suspension Clause difficulty with their ords/oss_records_263_wil- and the in this court claim. Precedent helm_hoettl.html.) that the Constitution Court holds Supreme without rights confer on aliens does not Supreme Later Court decisions within the United property presence Eisentrager. have followed Odah, in Al explained As we States. instance, Eisentrager the Court stated controlling case is F.3d “rejected the claim that aliens are entitled twenty- Eisentrager. There Johnson rights to Fifth Amendment outside the custody nationals confined one German territory of the States.” sovereign United Army Germany filed habeas of the U.S. Verdugo-Urquidez, States v. United Although the German petitions. 108 L.Ed.2d they agents were civilian prisoners alleged describing the facts of After military government, of the German Eisentrager quoting opinion, from the them of war crimes commission convicted respect concluded that with Court military activity against the arising from aliens, rejection ap “our of extraterritorial Germany’s after China United States plication of the Fifth Amendment was their convictions They surrender. claimed analogy, emphatic.” By Id. the Court held various consti imprisonment violated pro not that the Fourth Amendment did provisions and the Geneva Con tutional against tect aliens unreason nonresident rejected ventions. The able or seizures conducted out searches Fifth Amend “that proposition sovereign territory of the side the persons, rights upon confers all ment 274-75, 110 Id. at S.Ct. 1056. Cit States. nationality, whatever their wherever explained ing Eisentrager again, the Court offenses,” located and whatever their are that to extend the Fourth Amendment to 936. The Court 339 U.S. at significant and aliens abroad “would have “If the Fifth Amendment con continued: consequences for the United deleterious ... all the world rights [it] fers its on beyond its conducting activities States during military occupa would mean that boundaries,” govern since the particularly elements, enemy guer tion irreconcilable “frequently employs Armed Forces ment fighters, rilla and ‘werewolves’ could re country,” outside this id. Judiciary American to assure quire the Verdugo-Urquidez, 1056. A decade after speech, press, freedoms of as them again citing Eisentrager— Amendment, right sembly in the First Court— con Second, found it “well established certain security in the to bear arms as persons available to protections stitutional searches and sei against ‘unreasonable’ Fourth, are unavailable to rights to inside the United States in the as well as zures as geographic of our borders.” jury trial as in the Fifth and Sixth Amend- aliens outside petitioners the court not- Century England. supra, at hundred other alien Holdsworth, noted, 116-17; 936) supra, ed, As at 51-53. see 339 U.S. at 768 n. Duker, prisoners beyond pro- supra, these extraterritorial detention and involved both law, which included access to tection of the petitioners. alien (and corpus. Eisentrager And the two 992 Davis, (D.C.Cir.1977). 678, 693, 121 569

Zadvydas v. 533 U.S. F.2d 607 But in each cases, (2001).10 Congress of those had exercised its 2491, 150 L.Ed.2d 653 S.Ct. IV, power under Article Section 3 between the naval base Any distinction regulate “Territory Constitution to or oth- Bay prison and the at Guantanamo Property belonging er to the United Germany, petition where the Landsberg, States,” TV, 3,§ art. U.S. cl. Const., held, is immaterial Eisentrager ers in These cases do not anything establish re- application Suspension garding the sovereignty sort of de facto occupies The United States Clause. say the detainees exists at Guantanamo. Bay Base Guantanamo Naval under Congress Here and the President have it entered into in 1903. indefinite lease specifically disclaimed the sort of territori- Odah, 321 F.3d at 1142. The text See Al al they asserted in Puerto lease and decisions of circuit courts Rico, Philippines, and Guam. all make clear that Supreme and the Precedent in circuit also forecloses Cuba—not the United States —has sover the detainees’ claims to constitutional eignty Bay. over Guantanamo See Vermil Deutch, rights. Harbury v. 233 F.3d Connell, 377, ya-Broum, v. 335 U.S. Co. 596, (D.C.Cir.2000), 604 rev’d other on 140, 381, (1948); 69 93 L.Ed. 76 S.Ct. Cu grounds Christopher sub nom. v. Har Christopher, ban Am. Bar Ass’n v. 43 F.3d 2179, bury, 536 122 U.S. S.Ct. 153 (11th Cir.1995). The “determination quoted extensively L.Ed.2d 413 we area,” sovereignty over an from Verdugo-Urquidez and held that the held, description Court’s Eisentrager was legislative “is for the Court has “firm and considered dicta that binds this departments.” Vennilya- executive court.” Other decisions of this court are Brown, 335 S.Ct. Citing firmer still. Eisentrager, we held political departments firmly Here the have “ Pauling McElroy, v. 278 F.2d States,’ clearly spoken: ‘United (D.C.Cir.1960) curiam), (per n. 3 that “non geographic when used in a sense ... does ... plainly appeal resident aliens cannot not include the United States Naval Sta protection of the Constitution or laws tion, Bay, DTA Guantanamo Cuba.” of the United States.” The law of this § 1005(g). circuit is that a “foreign entity without The detainees cite the Insular Cases property presence country or in this has personal rights” which “fundamental ex- rights, no constitutional under the pro due tended to U.S. territories. See Balzac v. People’s Moja cess clause otherwise.” Rico, 298, 312-13, 42 Porto 258 U.S. S.Ct. State, Org. Dep’t hedin Iran v. U.S. (1922); 66 L.Ed. 627 Dorr v. United (D.C.Cir.1999); 182 F.3d see also 32 States, 49 County Sovereignty Dep’t Comm. v. U.S. (1904); Bell, State, (D.C.Cir.2002).11 Ralpho L.Ed. v. see also 292 F.3d decision, resting Suspension 10. The Rasul did on 11. The text of the Clause also statutory interpretation, freely see 542 U.S. at does not lend itself extraterritorial possibly application. permits suspension could not The Clause holding have affected the constitutional of Ei- the writ in cases of "Rebellion or Invasion," sentrager. applicable Even if Rasul somehow calls Ei- neither of which is sentrager’s holding foreign ques military constitutional into conflicts. See Hamdi v. tion, 507, 593-94, suppose, Rumsfeld, as the detainees we would be J., (2004) (Thomas, Eisentrager. Rodriguez bound to follow de L.Ed.2d 578 Inc., Kent, Quijos dissenting); Exp., J. see also Andrew A Textu Shearson/American 477, 484-85, Against al and Historical Case a Global Con (1989). stitution, L.Ed.2d 526 95 Geo. L.J. authority, not mention individuals there is no consti- this line of against As that the Sus- right? right. the distinction tutional That cannot be The dissent offers congres- is a limitation on pension Clause guarantees First Amendment’s of freedom rather than a constitutional power sional speech religion and free exercise of do at all. But no distinction right. this is individuals; not mention nor does the rights against are the rights Constitutional Eighth prohibition Amendment’s on cruel and, such, restrictions as are government punishment and unusual or the Seventh H.P. power. See Hood & governmental on guarantee jury. Amendment’s of a civil Of Mond, Sons, Du 336 U.S. Inc. v. fair to provi- course is assume that these (1949) (“Even 657, 93 L.Ed. 865 69 S.Ct. individuals, apply just sions to as it is fair Bill amendments were Rights the petitions to assume that for writs of habe- limitation pow- the only upon framed as a as are filed individuals. the First Congress.”).12 ers of Consider (In contrasting Suspen- the Amendment. The dissent also looks to the Bill of in the Bill of provisions sion Clause with Clauses, Attainder and Ex Post Facto both the dissent Rights, see Dissent located next to the Suspension Clause Amendment.) ignore to the First is careful I, Article Section 9. We do not understand Clause, Suspension the First Like the trying what the dissent is to make of this framed as a limitation on Amendment is juxtaposition. citation to “Congress shall make no law Congress: Lovett, 303, v. States 328 U.S. 106 Ct.Cl. ” deny that .... Yet no one would 856, 1073, 66 S.Ct. 90 L.Ed. 1252 is protects rights Amendment First particularly baffling. Lovett held that religion assembly. speech free justicia- Bill of Attainder Clause was arguments other are also point dissent’s cannot be that the ble. The dissent’s out enough point filled holes. It is with Bill of and the Post Attainder Clause Ex larger three of the ones. protect Facto do not Clause individual rights. Numerous courts have held the Suspension that There is the notion Suspension fact that opposite.13 “The Fourth, Fifth, different from the Clause is prohibitions on bills of Clause abuts it does not and Sixth Amendments because laws, post provisions and ex facto attainder amendments mention individuals and those well-accepted protect liberty, individual “people,” “person,” and (respectively, do supports viewing privi- the habeas further accused”). Why Dissent at 996. “the right.” core Amanda lege as a individual significant eludes the dissent thinks this Ques- Tyler, Suspension if a does L. Is a Political point provision us. Is the powers only principle separation of plan was to almost 12. James Madison's insert pri Rights protections persons and into the Constitution for individual the entire Bill (citing pro- groups United States v. rather than wait for amendment. His vate I, Brown, Rights? posed the Bill of Article 85 S.Ct. location of 381 U.S. Garland, (1965); Suspension parte Clause. Section 9—next Ex L.Ed.2d Davies, (1866)); Recovering Original (4 Wall.) Y. See Thomas 18 L.Ed. 366 Amendment, Dotson, L. Rev. Fourth 98 Mich. Wilkinson v. 544 U.S. also (2005); 700-01 &n.437 Weaver v. 161 L.Ed.2d 253 24, 28-29, Graham, 450 U.S. (1981); Katzenbach, Nixon v. Adm’r Gen. 67 L.Ed.2d 17 v. See South Carolina Servs., 425, 468-69, 301, 323-24, L.Ed.2d (1977); (1966) ("[C]ourts Gabry, 123 consistently regarded 53 L.Ed.2d 867 have Shabazz (6th Cir.1997). Bill of Attainder Clause Article I and F.3d tion?, L. Rev. 374 & n.227 the DTA became law and after the Su- 59 StaN. added).14 Hamdan, (2006) preme Court decided ar- (emphasis gued authority that we were without to do so fixated on how to Why is the dissent authority so.16 Even if we have to convert Suspension Clause? The characterize appeals petitioners’ the habeas over the rea- assumption must be unstated objections, the record does not have suffi- decisions and the soning of our perform cient information to the review denying rights constitutional Court’s only DTA allows. Our recourse is to outside the United States would not aliens vacate the district courts’ decisions and provision if a could be apply constitutional jurisdiction. for lack of dismiss the cases protecting something characterized as oth- “right.” theory, than a On this for er So ordered.

example, aliens outside the United States protection Sepa- to the of the

are entitled ROGERS, Judge, dissenting. Circuit ration of Powers because have no join reasoning I can neither the rights Separation under the individual court nor its conclusion that the federal gets the dissent Powers. Where power courts lack to consider detain- mystery, strange idea is as is the reason- I petitions. agree ees’ that Con- While ing behind it. gress juris- intended to withdraw federal through Military diction Commissions III. Act of No. Pub.L. 120 Stat. (“MCA”), jurisdiction courts have no in 2600 holding Federal court’s that the supplemental briefing In af- Suspension these cases. MCA is consistent with the DTA, I, government ter enactment Clause of Article section of the Consti- to only analysis. By asked us not decide the habeas tution does not withstand jurisdiction question, concluding reject also to review the but this court must “the designation merits of the detainees’ as ene- detainees’ claims to rights,” constitutional my Op. fundamentally combatants their Combatant Status the court mis- DTA suspension: Review Tribunals. construes the nature of Far 1005(e)(2).15 objected The detainees conferring right from individual converting appeals appeals might pertain only their habeas persons substantially States, from their Tribunals. briefs filed after connected to the United see United Jay Bybee, challenge 14. Accord S. Common Ground: the lawfulness of their detentions— Jackson, Scalia, ”); Robert Antonin and a Power subsequent not the CSRT decisions .... Amendment, Theory the First 75 Tul. L. Rev. Supplemental Corrected Br. of Pet'rs Boume- (2000) ("[W]e easily diene, al., could de Regarding et & Khalid Section I,] rights [Article scribe Section 9 as a bill of 1005 of the Detainee Treatment Act of 2005 States.''). people for the of the United (“Nothing 56-59 in the [DTA] authorizes the ap- Court to 'convert' Petitioners’ notices of Supplemental 15. See Br. of the Federal Par- peal judgment origi- of the district court's into Addressing ties the Detainee Treatment Act of petitions nal for review of CSRT decisions (“This 2005 53-54 Court can and should con- 1005(e)(2) Act.”); under section pending appeals petitions vert the into Guantanamo Detainees' Corrected Second 1005(e)(2).”). under [DTAsection] review Supplemental Addressing Br. the Effect of the Supple- Detainee Treatment Act of 2005 on this 16. See The Guantanamo Detainees’ Ct.'s Pending Appeals Addressing Jurisdiction over the 43-44 mental Br. the Effect of the Su- ("[T]his preme Op. Rumsfeld, peti- Ct.'s Hamdan v. court should not convert these (2006), Pending Appeals petitions S.Ct. 2749 on the 8- tions into for review under the DTA (“The pending petitions government suggests.”). detainees in the as the Khalid and remand the Verdugo-Urquidez, cases to the States 108 L.Ed.2d district courts. (1990), Suspension Clause is a limita- I. powers Congress.

tion on the Conse- quently, by misreading it is the his- jurisdiction a court Where has no it is ignoring torical record and See, powerless e.g., to act. Marbury v. binding Court’s well-considered dic- (1 Madison, Cranch) 137, 173-74, Bush, tum Rasul v. 481- L.Ed. 60 But a statute enacted 159 L.Ed.2d 548 Congress purporting deprive a court of that the writ at common law would have jurisdiction binds that court only when detainees, extended to the that the court Congress acts pursuant powers can conclude that neither this court nor derives from the Constitution. The court the district courts have to con- today concludes that Suspension sider the detainees’ habeas claims. Clause is an right individual that cannot be operation A review of the text and of the invoked Op. detainees. See at 993. that, nature, Suspension Clause shows The text of the Suspension Clause and the operates powers it to constrain the of Con- structure the Constitution belie con- gress. Prior to the enactment of the clusion. The court farther concludes that MCA, Supreme acknowledged Court the detainees would have had no access to held the detainees at Guantanamo had the writ of habeas at corpus common law. Rasul, statutory right corpus. a to habeas Op. at 998-90. The historical record 542 124 S.Ct. 2686. The guidance and the purports right MCA to withdraw that but disprove this conclusion. does so in a manner that offends the con- Part, In this I address the nature of the suspension. stitutional constraint on Clause, Suspension the retroactive effect Suspension removal Clause limits the Congress’s recent enactment on habeas corpus, least as the writ was corpus MCA—and conclude an with —the law, understood at common to times of assessment of the effect of the MCA in Congress rebellion or invasion pro- unless light of the dictates of the Constitution. adequate remedy. vides an alternative The writ would have reached the detainees A. law, Congress common has neither provided adequate remedy, Congress may alternative The court holds that sus- through the Detainee Treatment Act pend corpus as to the detainees A, X, Pub.L. No. Div. tit. because have no individual un- rights (“DTA”), 119 Stat. nor invoked der the Constitution. It is unclear where exception making the Clause the court finds that limit suspension on required findings suspend the writ. the writ of habeas is an individu- The MCA is therefore void and does not al Suspension entitlement. The it- Clause deprive this court or the district courts of self makes no reference to or even citizens jurisdiction. Instead, persons. it directs that “[t]he Privilege Corpus of Habeas Writ

On the merits of the appeal detainees’ suspended, shall not Bush, (D.D.C. be unless when Khalid v. F.Supp.2d 2005) of Rebellion or public Cases Invasion the cross-appeals in In re Guan Const, Cases, Safety may require tanamo Detainee it.” U.S. art. F.Supp.2d (D.D.C.2005), I, 9,§ I would affirm in cl. 2. This part appears mandate in the I, Guantanamo Detainee Cases and ninth reverse section of Article which enumer- Lovett, from tion United States barred.” expressly excluded those actions ates 303, 315,106 Although the Clause Ct.Cl. powers. Congress’s Lovett, so, say it is settled the Court specifically L.Ed. not does suspending. may do that an Act of possibility only Congress dismissed Cranch) (4 Bollman, 8 U.S. Attainder in violation of the parte Congress Ex (1807); see Hamdi v. remarking; non-justiciable, 2 L.Ed. Clause was 507, 562, 124 S.Ct. Rumsfeld, contemplate did not Our Constitution (2004) J., (Scalia, 159 L.Ed.2d To Alexander a result. quote such Merryman, parte dissenting); Ex Hamilton, 9487) (No. (Taney, 144, 151-152 F.Cas. * * * * * * [is] a limited constitution 1861); 2 Justice, Md. Jo- C.C.D. Circuit specified which contains certain one seph Story, the Constitu- on Commentaries authority; legislative exceptions (5th § 1342 ed. States tion of the United instance, such, pass as that it shall 1891). manner, by plain both its In this attainder, post no ex facto no bills Suspen- section text and inclusion laws, of this the like. Limitations Fourth from the Clause differs sion no preserved practice kind can be “right of Amendment, establishes which through than the medium way other Amendment, which the Fifth people,” justice; duty whose of the courts of held,” and shall be “person limits how contrary acts must be to declare all Amendment, provides which the Sixth the Constitution tenor manifest provisions These rights to “the accused.” this, all the reserva- void. Without persons the listed.1 rights confer to or particular privileges rights tions I, section of Article provisions other The nothing. amount to would 9, Suspension the to read indicate how 314, (quoting 66 Id. at S.Ct. 1073 The immediately following clause Clause. added) (al 78) (emphasis FedeRalist No. Bill of Attainder or ex that provides “[n]o too, original). omissions in So teration and passed.”2 be facto shall post Law Graham, 24, 28-29 v. 450 U.S. Attain- Weaver has construed the Supreme Court 10, 960, 17 67 L.Ed.2d & n. 101 S.Ct. establishing “category der Clause as the the ban the where Court noted actions which Constitu- Congressional unless, suspended when in shall not be is also from Suspension Clause distinct 1. The Amendment, invasion, public inter- which has been the safe- the First cases of rebellion or rights. guarantor it,1 of individual preted convey as a may purport to ty require does not 258, Robel, See, U.S. e.g., v. States power judiciary. It is in or 419, (1967); 263, L.Ed.2d 508 88 S.Ct. legislative powers, and of executive restraint 652, 666, York, 268 U.S. v. Gitlow New judiciary than to further affects and the no 625, (1925). The court 69 L.Ed. necessity, privilege impose if the on them the provi- seriously that the two maintain cannot any suspended by corpus is authori- of habeas acknowledging that the while sions are alike exigency ty, demanded to decide whether the right an individual confers First Amendment the constitution exists to sanction the simultaneously the courts and enforceable act.”). not, claiming Suspension does that the Clause Bollman, (4 (citing 8 U.S. Op. at n. 5 see Suspensions and bills of attainder have a Cranch) 95); U.S. Barry, In re at see also suspensions history. England, oc- shared 122, 597, 113, 34 L.Ed. 42 F. specific casionally named individuals and (C.C.S.D.N.Y.1844), sub nom. error dismissed of attainder. See amounted bills therefore Mercein, Barry v. How. Jr., Collings, Corpus Con- Habeas Rex A. (1847) ("The ninth L.Ed. 70 section Right Legislative constitution, victs—Constitutional par. declar- first article Grace?, 40 Cal. L. Rev. of habeas ing privilege of the writ that 'the gov tional post legislation on “restricts amendments that form Bill ex facto by restraining arbitrary truism, power Rights.4 course, ernmental It is a potentially legislation” vindictive rights individual like those found in the acknowledged that the clause “confin[es] first ten amendments work to limit Con legislature penal pro decisions with However, gress. rights individual are spective Marbury, effect.” See also 5 U.S. merely a subset of those matters that con (1 Cranch) 179-80; Foretich v. United legislature. strain the These two sets can (D.C.Cir. States, 351 F.3d 1216-26 not be understood as coextensive unless 2003). reasons, any For like act viola prepared court is recognize such void, Suspension tion of the Clause is awkward rights individual as Commerce cf. Lovett, Const, rights, I, Clause see U.S. art. operate jurisdict cannot to divest a court of cl. or the personal right not to have a ion.3 raising bill originates revenue that in the Const, Senate, I, art. cl.

The court dismisses the distinction be- Schlesinger see also rights tween individual Reservists and limitations on Comm. War, Stop Congress’s powers. It chooses to make no (1974) own, 41 L.Ed.2d argument affirmative of its instead (finding no hoping body right to rebut of con- individual under Ineligibility sizable Clause). flicting authorities. appears

The court to believe that That Suspension appears Clause Suspension just I, like Clause the constitu Article section is not happenstance. prescribed The court cites a number of cases for the when the crime was consum- Thus, proposition that the Attainder Clause confers merely mated. even if a statute alters right operating penal provisions an individual instead of as a grace accorded Congress. legislature, Op. structural limitation on violates the Clause if it is retrospective 993 n. 13. None of these cases makes the both and more onerous than point. the law court’s In South Carolina v. in effect on the date of the offense. Katzen- bach, 301, 323-24, 803, emphasized The Court also 383 U.S. 86 S.Ct. the structural na- I, 9, (1966), ture of the Supreme L.Ed.2d 769 limitations of Article section the Court held Servs., 425, in Nixon v. Adm’r Gen. Congress that it is a 433 U.S. not bill of attainder for of 2777, (1977) 97 S.Ct. punish 53 L.Ed.2d 867 speaks a state. This to the definition (noting that "the Bill of Attainder Clause says nothing [is] aof bill of attainder and about ... organizing principles one of the of our operation the of the Attainder Clause. Weaver system Graham, government”). Unsurprisingly, of v. 450 U.S. 101 S.Ct. authority support court cites no (1981), that would its says opposite L.Ed.2d 17 of what by providing novel construction of Weaver, section 9 Supreme the court asserts. that certain individuals lack Attainder Clause emphasized Court the Ex Post Facto rights. or Ex Post Facto Clause protect Clause is not intended to individual rights governs operation govern- but of point, 4. quotes, For this the court without ment institutions: context, Sons, from H.P. Hood & Inc. v. Du affirmative, Mond, presence The or absence of an 69 S.Ct. 93 L.Ed. relevant, however, right case, enforceable Op. is not see In that post prohibition, Supreme to the ex emphasized which for- Court that the of Bill facto imposition punishment Rights bids the powers Congress of more limited the of and did punishment states, assigned by severe than the powers law not affect the of the individual Sons, punished when the act to be occurred. H.P. Hood & Critical to relief under the Ex Post Facto at least until certain amendments were right Clause is not an incorporated individual's to less after ratification of the Four- punishment, but the lack of says nothing fair notice and teenth Amendment. This about governmental distinction, here, legislature restraint when the relevant between indi- punishment beyond rights increases Congress. what was vidual and limitations on finding a or exception upon rebellion Pinckney’s original proposal,

In Charles part of the have been 2 The Reoords would invasion. See suspension Fed- Sep- was moved It provision. supra, at 438. judiciary eral Convention Style on Committee tember Indeed, if it would be curious the Framers the re- gathered Arrangement, which implicitly sanctioning Executive-or- were in one loca- Congress’s power on strictions judicial re- dered detention without abroad DukeR, A CONSTITU- F. See William tion. by the by limiting suspension view —and Corpus 128-32 of Habeas HistoRY TIONAL reasoning limiting habeas court’s therefore (1980); 2 the Federal RECORDS events. To the con- domestic —to (Max 1787, at 596 Farrand Convention Hamilton trary, as Alexander foresaw ed.1966). reason- ed., By the court’s rev. 8k, invoking No. William The Federalist Suspension placed ing, the Framers Blackstone, there merely I because in Article Clause he), (says of life or To bereave a man to accom- rights no similar individual estate, his without violence confiscate Fram- that the implausible it. It is pany trial, gross accusation or would be so Suspension would have ers viewed despotism, act of as and notorious an budding a Clause, implies, as as the court convey tyran- the alarm of must at once assigned not have Rights but would Bill nation; but ny throughout the whole of the Consti- section provision its own secretly person, by confinement tution, did with the much as hurrying jail, him where his suffer- document, treason, in the specified crime a III, forgotten, are less ings unknown Article section appears alone in which Instead, striking, the Sus- a less and therefore public, court must treat I, arbitrary Article placement dangerous engine gov- Clause’s more pension a conscious determination section ernment. powers. The Congress’s on limit (E.H. at 468 Scott Federalist No. in the meaning has found similar 1898) (quoting ed. Blagkstone, William ever clauses of constitutional placement * 131-32); see also Ex Commentaries (4 Maryland, 17 U.S. McCulloch since Wall.) (4 2, 125, 18 parte Milligan, 71 U.S. (1819)

Wheat.) 4 L.Ed. 579 L.Ed. 281 also, Clause); Proper (Necessary and Pipeline e.g., v. Mid-America Skinner B. Co., jurisdiction court have This would Clause). (1989) (Taxing L.Ed.2d for the claims but address detainees’ that to the idea The court also alludes of the MCA. Congress’s enactment apply to for- cannot Suspension Clause the Rasul, 483-84, 124 S.Ct. 542 U.S. at excep- the eign military because conflicts held that the the federal of “Rebellion or only to cases tion extends jurisdiction pe- courts to hear district had n. 11. The Framers Op. at 992 Invasion.” corpus for writs of habeas filed titions of the writ privilege that the understood § by persons pursuant to 28 U.S.C. that its sus- great significance of such was “enemy by combatants” the detained as to cir- strictly limited should be pension Bay the Guantanamo United States security peace and where the cumstances time, Base. At the the habeas stat- Naval af- Only jeopardized. the Nation were that part, upon in relevant provided, ute au- considering proposals alternative ter the filing petition, of such a district the urgent most thorizing suspension “on the determine whether promptly court would out- forbidding suspension occasions” held under the being petitioner to a narrow the was right agree did the Framers Constitution, laws, and treaties of the tions of detention of an by alien detained States, utilizing the common-law the United States September since procedure by gov- of a return filed by peti- ernment and a traverse filed 7(b), §MCA (emphasis Stat. at 2636 §§ Af- tioner. See 28 U.S.C. 2242-2253. added). (a), turn, in Subsection amends 28 Rasul, DTA, Congress enacted ter 2241(e), § ju- U.S.C. which confers habeas purported deprive

which to the federal risdiction on the federal courts. New sec- jurisdiction. DTA courts of habeas 2241(e)(1) tion repeals “jurisdiction to hear 1005(e), § 118 Stat. at 2741-43. The Su- or consider an application for a writ of preme Court held Hamdan v. Rums- 2241(e)(2) corpus.” habeas New section — U.S.-, feld, 2764- repeals “jurisdiction to hear or consider (2006), however, 165 L.Ed.2d that any other relating any action ... to aspect apply retroactively, the DTA does not detention, transfer, treatment, trial, and so it does not disturb this court’s or conditions of confinement.” jurisdiction appeals, over instant suggest detainees that singling already pending which were when the 2241(e)(1) corpus § out habeas DTA became law. 7(b) failing to do so in section in- —and MCA, As for the I concur in the court’s repeating (“detention, stead the same list that, notwithstanding conclusion the re transfer, treatment, trial, or conditions of quirements Congress speak clearly confinement”) appears apply when it intends its action to retroac § 2241(e)(2) Congress was expressing its — Prods., tively, Landgraf see v. USI Film intent to make the MCA retroactive 244, 265-73, 2241(e)(2). § as to argument hinges This (1994), L.Ed.2d 229 when withdrawing on their that a petition view for a writ of courts, jurisdiction habeas from the see corpus “relating any habeas is not as- 289, 299, 121 Cyr, INS St. But, pect of ... plain detention.” (2001); 150 L.Ed.2d parte Ex text of section it is clear that the detain- (8 Wall.) 85, 102, Yerger, 75 U.S. 19 L.Ed. suggest ees ambiguity where there is Congress sought toMCA notes, none. As court Op. at 987 n. revoke all retroactively federal 2241(e)(1) whereas refers to habeas petitions of detainees held 2241(e)(2) corpus, “any deals with other Bay. Op. at Guantanamo I 986-87. ... relating any aspect action of the de- join do not reasoning. the court’s tention, transfer, treatment, trial, or condi- Congress’s court stresses emphasis that added). (Emphasis tions confinement.” provision setting the effective date for By omitting the “other” in word section jurisdictional change apply “shall to all 7(b), 7(a) by cross-referencing section cases, However, exception.” without entirety, Congress signaled its its intent exceptions absence of does not establish retroactivity provision apply the scope provision itself. The en cases. This conclusion has provision tire reads: nothing Congress’s emphasis to do with (b) DATE. The amend- exceptions every- that there are no —EFFECTIVE (a) ment made subsection shall take thing to do with it expressed the intent effect on the date of the enactment of through provisions the substantive Act, cases, apply and shall to all statute. exception, pending without on or after C.

the of date the enactment of this Act then, ivhich any aspect question, relate to of the deten- The is whether at- tion, transfer, treatment, trial, or condi- tempting ju- to eliminate all federal court a few mis- today quickly of demonstrates how petitions for writs to consider risdiction conducting history. can overstepped steps obscure Congress has corpus, habeas review, emphasizes court Suspen- its historical boundary established English predating has stat- that no cases Supreme The sion Clause. in the abso- that the detainees seek “at award the relief ed on several occasions minimum, short Suspension Op. Clause their at 989-91. “The petitions. lute ” concludes, matter,” in 1789.’ ‘as it existed the court is protects the writ 301, 121 S.Ct. avail- Cyr, corpus 533 U.S. would not have been St. “habeas 518 U.S. Turpin, presence Felker v. or (quoting in 1789 to aliens able without 663-64, L.Ed.2d 827 Op. S.Ct. States.” property within the United added). Therefore, (1996)) (emphasis mark. There at 990. But this misses the corpus exists and as habeas least insofar in may no case at common law well be 1789, Congress suspend cannot existed jurisdiction over which a court exercises adequate providing an the writ without claim of an alien from a corpus the habeas except exception the narrow alternative nation, may be an friendly who himself pro- This the Constitution.5 specified held enemy, captured who is abroad and removing to scription applies equally sovereign territory England outside the removing all itself and to writ control but within the Crown’s exclusive v. the writ. See United States to issue with a crime or being charged without (13 Wall.) 128, Klein, 20 L.Ed. 519 violation of the Laws of On the other War. (1872). Chemerinsicy, generally See Erwin hand, point court can to no case where (4th ed.2003). § 3.2 Federal Jurisdiction to exercise English court has refused enemy jurisdiction because the be-

1. held, ing while under the control of the Crown, was not within the Crown’s domin- Assessing the of the law 1789 is state feat, analysis paucity precedent of direct is and the court’s ions.6 no trivial oddly unnecessary question The court chooses to 5. It is resolve ignore by truncating provides the issue its reference to for an affir- whether the Constitution comment, omitting Cyr, through St. without right corpus mative to habeas —either Clause, Op. qualifier "at the absolute minimum.” Suspension the Fifth Amendment at 988. guarantee process, due the Sixth presumed the continued vi- Amendment'—or statute," tality of this "writ antecedent court’s that "extraterritorial assertion Kaiser, 484 n. Williams v. Eighteenth was not unknown in detention (1945) (internal quo- S.Ct. 89 L.Ed. 398 Century England,” Op. no at 990 n. is of omitted). tation marks Because the the 1667 im- moment. The court references writ existed in Clarendon, Court in Rasul held that the peachment the Earl of Lord therefore, was, something 2004 and that there High England. See id. at Chancellor suspend, it is sufficient to assess whether sending 990 n. 9. Clarendon was accused of sought the writ here existed in 1789. Given faraway deprive lands to them of enemies conclusion, my C. also Part legal process. effective The court makes infra unnecessary question wheth- to resolve the corpus unsupported inference that habeas Suspension protects Nothing er the Clause the writ was therefore unavailable abroad. corpus developed suggests as it has since that habeas Clarendon affair Instead, Cyr, Compare sought St. 533 U.S. at refused. was Reno, F.3d today, legal process and LaGueire can be remains the case Felker, (7th Cir.1998), prisoners with evaded when are detained without and Gerald L. That the detainees at U.S. at access to the courts. Neuman, Detention, procure Corpus, were able to next Habeas Executive Guantanamo Aliens, attorneys pursue petitions and their and the Removal 98 Colum L. friends Rev. Schiever, unique English confluence of consequence just the case Rex v. shows events that defines the situation of these how small this final inference is. Barnard commentary and not a on the detainees subject Schiever was the of a neutral na- common reach of the writ at law. (Sweden), tion by who was detained question process is whether England Crown when was at war with similar, identical, from if not Burr, of inference Schiever, France. Eng. situations the reach of the writ at common Rep. at 551. He claimed that his classifi- law would have extended the detainees’ “prisoner cation as a of war” factually was law, petitions. At common we know that inaccurate, because he “was desirous of depended “the reach the writ not on entering into the service of the merchants sovereignty, formal notions of territorial England” until he was seized on the on practical question but rather of ‘the high seas privateer, French which in and nature of exact extent turn captured by was Navy. British Id. or dominion exercised in fact affidavit, In an he swore that his French Rasul, Crown.’” 542 U.S. at captor against “detained him[ ] his will and (quoting parte Mwenya, S.Ct. 2686 Ex ^[1960] Q.B. (C.A.) (Lord Ev inclination ... treated him with so M.R.)). ershed, severity! much captor] that would not ] [his We also know writ extended not to citizens of the go suffer him to port on shore when in ... realm, aliens, but to see id. at & n. closely but him duty confined [on board wartime, even see id. at the ship].” Eng. Id. at Rep. at Case Three ultimately 551. The habeas court deter- Sailors, Spanish 2 Black. W. 96 mined, on the basis of Schiever’s own testi- (C.P.1779); Schiever, Eng. Rep. 775 Rex mony, that properly categorized he was (K.B.1759). 2 Burr. 97 Eng. Rep. 551 lawfully thus detained. Id. at A of 1812-era case in War which Chief Eng. Rep. at 551-52. granted Justice John Marshall a habeas subject writ to a British establishes that because, The court discounts Schiever even conceded enemies of the United England captured after the French priva- States could test its courts detention Norway, teer en while route was claimed was unauthorized. See carried into Liverpool, England, where Hobson, Gerald L. Neuman & Charles F. Id., jail. Schiever was held in the town Enemy John Marshall and the Alien: A such, Eng. Rep. 551. As the case did Canon, Missing Case 9 GREEN from not involve “an alien territory outside the Bag (2005) (reporting United States 2d sovereign.” Op. at 988-89. Howev- (C.C.D.Va. 4,1813)). v. Williams Dec. er, surely Schiever was not voluntarily To draw the ultimate conclusion as to brought England, pres- into so his mere whether the writ at common law would ence rights. conferred no additional As have extended to aliens under the control in Verdugo- Court observed (if sovereign territory) not within the Urquidez, “involuntary [presence] is not requires piecing together Crown any the sort to indicate substantial connec- evidence, considerable circumstantial country.” tion with our step that the court unwilling to take. cases,

Analysis of one Any gap of these the 1759 110 between Schiever seventeenth-century Englishmen whereas writ at common law. The court's obfuscation difficult, would impossi- impracticality have found this if not as to the distinction between ble, says nothing availability unavailability about the is further addressed infra. 1002 country, reasoning implies, as the court’s detention at Guantana- detainees’

and the country narrow. rather “a which at some time exceedingly but Bay is thus mo part foreign formed of the dominions of a the final infer need not make This court potentate, by conquest or which state but already made for us. It has been ence. part a of the domin- or cession has become Rasul, that Court stated Supreme In England.” parte Ex ions of the Crown per statute to of the habeas “[application Brown, Eng. Rep. 122 835 5 B. & S. base is [Guantanamo] at the sons detained (K.B.1864). exception And the noted in reach of the the historical consistent with nothing qualification Lord Mansfield’s has at corpus.” 542 U.S. of habeas writ Instead, ha- extraterritoriality: with to do reaching contrary a By 124 S.Ct. unneces- from mainland courts was beas conclusion, ignores the settled the court that sary for territories like Scotland “carefully considered lan principle by princes in the line of succes- controlled Court, if even tech guage independent sion because had court dictum, generally must be treated nically systems. See William EPA, Blaciístone, Sierra Club v. as authoritative.” COM- *95-98; Pfander, E. (D.C.Cir.2003) James (quoting 322 F.3d MENTARIES Jurisdiction and the Oakar, Limits Habeas 111 F.3d United States Terror, (D.C.Cir.1997)) (internal L. Rev. Global War on 91 Cornell quotation marks omitted). modern-day 512-13 In the setting princi aside this Even alternative for convincing analysis parallel, no where suitable ple, the court offers exists, not extend. contrary conclusion. The habeas the writ need compel First, three assertions: Lord 2 Robert A Course court makes See Chambers, of Leo- Cowle, 2 in Rex v. opinion Mansfield’s AT TURES ON THE ENGLISH LAW DELIVERED (Thomas (K.B.1759), Rep. Eng. Burr. at 8 M. Cur- Oxford 1986) by the detain right ed., indicating claimed ley, (quoting disavows Cowle as Second, impracti that, it would have been notwithstanding power ees. to issue English Minorca, cal for courts to extend the writ Guernsey, Jersey, the writ “in Third, v. Ei extraterritorially. Johnson courts would not think it plantations,” sentrager, 339 U.S. “the most “proper interpose” because controlling. L.Ed. 1255 None way complain king is to to the usual scrutiny. withstands these assertions Council, from supreme appeal court of provincial governments”); see also those Cowle, Mansfield wrote that Lord relationship Part C.2. The between power of this is no doubt as “[t]here infra England only was the principalities Court; is under the sub- place where the necessary “found instance where was jection England; of the Crown Burr, scope restrict the of the writ.” 9 William is, question propriety.” as to the History English A Holdsworth, at 599. He noted Eng. Rep. at Law (1938). Cowle, then, plain language, its thereafter, by way qualification, that the recognizing that the writ must be read as foreign not extend domin- writ would “[t]o places ran even to ions, belong prince to a who suc- which realm,” Id., part were “no where England.” ceeds to the throne of run, other writs did not nor did its Crown’s Through the use of Eng. Rep. at 599-600. Burr, 835-36, 853-55, apply. laws marks, qualifi- ellipsis the court excises 598-99. The Su- Eng. Rep. cation and concludes that the writ does not adopted logical read- Op. preme Court has foreign extend dominions.” “[t]o Rasul, 481-82, 124 ing. 542 U.S. at problems This masks two its anal- B. Malachow- ysis. “foreign foreign A dominion” is not see also Mitchell

1003 sM, Redefining From Gitmo with Love: beene committed for criminall or supposed Corpus 2, 2, in the criminall Habeas Jurisdiction Wake Matters.” 31 Car. c. 200k, Hence, Enemy the burden of expediency Combatant Cases 52 imposed of (2005).7 118,122-28 scarcely the Act could prevented Naval L. have Rev. common-law courts from exercising habeas disposes The court next of Cowle and jurisdiction in non-criminal matters such by suggesting the historical record that in petitions these appeals. Statuto- “power” to issue the writ acknowl ry in English courts did not extend edged by Lord can explained Mansfield be to non-criminal detention until the Habeas by the Act Corpus Habeas 31 Car. Corpus Act of 56 Geo. c. 2, c. 2. Op. See at 989. The although courts continued to exercise their Corpus Court has stated that the Habeas powers common-law in the 2 interim. See law,” Act parte “enforces the common Ex ChambeRS, supra, 11; at 9 Holdsworth, Pet.) Watkins, (3 193, 202, 7 L.Ed. supra, at 121. (1830), hardly suggesting thus that the Second, ample there is evidence that the “power” recognized by Lord Mansfield was writ did faraway issue to In lands. Ex statutory and not included within the 1789 Anderson, parte El.3 & El. 121 Eng. scope common-law writ. To the Rep. (Q.B.1861),superseded statute, extent that the court makes the curious Viet., 1,§ 26& c. the Court of that argument Corpus the Habeas Act Queen’s Bench exercised its common-law impractical would made it too pro have powers to issue a writ of corpus if prisoners applied extraterritorially duce Quebec Upper Canada after expressly imposed jailers on because fines who did acknowledging that it was “sensible of the quickly produce not body, Op. at 989- may inconvenience which result from such precedent the court cites no that sug a step.” Eng. Id. at Rep. at gests “practical problems” that eviscerate 527-28; Brown, see also 5 B. & S. precious safeguard personal liberty “the Eng. Rep. (issuing a -writ to the Isle higher there no duty [for which] is than to England Man the sea between and Ire- unimpaired,” maintain it Bowen v. John land). English common-law courts also ston, 19, 26, recognized power to issue habeas cor- L.Ed. 455 This line reasoning India, pus non-subjects, even to and did employed by the court fails for two main notwithstanding competition so from local reasons: courts, England well before recognized its First, Corpus Habeas Act of 1679 sovereignty India. See B.N. Pandey, English expressly was limited to those who “have Introduction Law into 7. The preme it clear what referencing quite expresses the view that the writ should issue eign ship diction of the of-war in U.S. (K.B. Op. Att'y Attorney clear that ‘the Vacation significance foreign Court noted that has "no Gen. 47 In re country General, point commander of ports, reasoning Ct.1939). Ning Yi-Ching, exemption of a 1794 remedy the court is into Ning Yi-Ching is unclear. Nor which he Op. of habeas opinion by Rasul, a from the foreign ship- 56 T.L.R. 3 making by comes,” the for the Su "made which juris Rasul, Mwenya, vides a within the reach of the reach of the was not confined to British would extend to prior n. support ershed, M.R.). Ching 56 T.L.R. case that 124 S.Ct. 2686 542 U.S. at 483 n. parenthetical quotation ^[1960] recalls "narrow view of writ,” 5), was and that the case does not 'any person dissenting position id. Q.B. (quoting Ning Yi-Ching, later writ,” Here, repudiated. 542 U.S. at 483 the court subjects,’ ... detained' (Lord territorial Ning from a pro Ev but Yi- any pro- (1967); subject to substantial Rex v. tion “were see also India remedy his ma[k]e cedural hurdles which Mitter, (Sup.Ct., Calcutta Morton than federal imperative ... less swift 1 The Indian 1781), reprinted Decisions (T.A. gravest constitutional Venkasawmy corpus, habeas the Row Series) (Old the 206, engendered [under doubts would be 1911); Hastings, Morton ed., v. Rex 1775) Sanders v. United (opinion Suspension Clause].” (Sup.Ct., Calcutta 208-09 1068, States, 1, 14, 83 S.Ct. 373 U.S. J.), in 1 The Chambers, reprinted Indian (1963). L.Ed.2d 148 id. at 209 Decisions, supra, Raustiala, C.J.); Kal Impey, (opinion of has, on three occa- Supreme Court Justice, L. 73 Foedham Geography sions, cor- replacement found a habeas (2005). n.156 Rev. adequate. In United States v. pus to be 263, 96 Hayman, that Eisen- 342 U.S. S.Ct. court reasons Finally, the (1952), L.Ed. 232 the Court reviewed that there is the conclusion trager requires the writ extinguished which habeas for those U.S.C. right to no constitutional crimes as to those convicted federal Op. at 990- posture. in detainees’ the judges exchange III in for claimed before Article the detainees Eisentrager, 91. Pri- “entitled, sentencing the court. as a constitutional recourse before that the enactment of section the of the United or to in some court right, to sue jurisdiction writ available the corpus.” habeas was a writ of States for detention, the of convic- Eisentrag- Thus not 936. U.S. at S.Ct. than tion. The concluded that this sub- question a far different Court presented er acceptable part because the The detainees do stitute was this court.8 confronts remedy ac- remained avail- that the Constitution traditional habeas here contend not proved section 2255 right to the writ but able statute where positive a cords them 223, 72 “inadequate or ineffective.” Id. at Clause restricts Suspension rather that the preexist- a 263. The Court came a similar to eliminate Congress’s power Pressley, ques- To answer that conclusion Swain ing statutory right. 97 S.Ct. 51 L.Ed.2d looking not entail to the extent tion does with a similar “inade- reviewing but statute the detainees’ ties United States hatch, quate escape or ineffective” id. understanding scope requires rather (reviewing CODE D.C. corpus at common law of habeas writ 23-110). case, In that con- Court on Eisen- The court’s reliance hearing that a procedure cluded trager misplaced. is courts, District of Columbia’s as courts, an distinct from the federal was Felker, adequate Finally, in question me to the of wheth- alternative. brings This 663-64, writ, er, Congress provided has 518 U.S. at absent procedure Suspension for chal- Court found no Clause viola- adequate an alternative chooses, peti- tion in the restrictions on successive If it so Con- lenging detention. under the Antiterrorism may privilege of habeas tions for the writ gress replace Penalty Act of procedure a commensurate and Effective Death corpus with con- overreaching its constitutional am- Pub.L. No. Stat. without However, cluding that these were “well within the Supreme as the Court has bit. evolutionary process” of cautioned, subject compass if a of Executive deten- of [the] Supreme rejected approach in Ra- that the court relies on Eisen- 8. To the extent sul, theory, 124 S.Ct. 2686. trager proof see 542 U.S. of its historical full including opportunity for abuse of the claims for the corpus protocol the habeas impose upon presentation not the writ writ and did relevant facts.” Har Nelson, itself. ris v. 1082, 22 L.Ed.2d 281 The offer little cover for the provide These cases ings CSRTs fall far short of this mark. Court has government. As law, the common Under when detainee core, stated, its historical the writ of “[a]t petition, files a habeas the burden shifts to as a means of has served government justify the detention in legality of Executive deten-

reviewing facing its return of the writ. When not tion, in that context its trial,9 imminent the detainee then must be strongest.” Cyr, protections have been St. an opportunity afforded to traverse the 301, 121 533 U.S. at S.Ct. With writ, explaining why grounds for de mind, government is mistaken inadequate tention are in fact contending that the combatant status re- law. (“CSRTs”) See, by 2243, 2248; e.g., §§ view tribunals established 28 U.S.C. Boll suitably (4 Cranch) of legitimacy man, the DTA test 125; parte at Ex merely Far from ad- Executive detention. 137, 4 B. Beeching, Eng. Rep. & C. 107 justing vindicating the mechanism for (K.B.1825); Schiever, 765, 1010 2 Burr. 97 right, imposes the DTA a series 551; Hamdi, Eng. Rep. 542 at U.S. cf. saddling hurdles while each Guantanamo 537-38, 124 (plurality opinion). S.Ct. 2633 handicaps detainee with assortment A quite differently. CSRT works See Or that make the insurmountable. obstacles Establishing der Combatant Status Re 7, 2004), (July view Tribunal available at

At the core of the Great Writ is the http://www.defenselink.mi1/news/Jul2004/d ability “inquire illegal into detention releasing peti- with a view to an order 20040707review.pdf. The detainee bears Rodriguez, 411 tioner.” Preiser v. U.S. coming the burden of forward with evi 36 L.Ed.2d 439 explaining why dence he should not be (1973) (internal quotation marks and alter- need not in detained. detainee be omitted). ation An examination formed of the basis his detention and this procedure CSRT court’s CSRT (which classified), may not be need be powers review reveals these alterna- allowed to introduce rebuttal evidence adequate tives are neither to test whether (which is sometimes deemed the CSRT detention is unlawful nor directed toward impractical acquire), pro too and must releasing unlawfully those who are held. ceed couns without benefit his own Moreover, proceedings el.10 these occur corpus proceed

“Petitioners military subject a ings judges ... are entitled to careful consider before board Hamdan, influence, plenary processing ation and of their to command see 126 law, charges Hay- 9. At common where criminal release under the writ was unavailable. man, 342 U.S. at 72 S.Ct. 263. pending, prisoner filing a habeas writ remanded, although would be habeas incor- possible exceptions, 10. With a few the Guan- See, porated speedy-trial guarantee. e.g., Ex tanamo detainees before the federal courts Beeching, Eng. parte Rep. 4 & C. B. 107 English unlikely are to be fluent in or to be (K.B.1825); Case, Vaugh. BusheU’s and, legal procedures familiar with as their (C.P.1670). Eng. Rep. 1009-10 from and cut off from detentions far home 3(a)(1), § But MCA see 120 Stat. at 2602 lengthy, they their families have been are like- (codified 948b(d)(A)). § at 10 U.S.C. Once ly prepared ill to be evidence to able obtain judgment “a there was of conviction rendered support their claims that are not enemies general jurisdiction,” a court of criminal of the United States. J., (Kennedy, http://www.fas.orgdrp/ concur available at S.Ct. States, point long has dni/educing.pdf. This basic ring part); Weiss law, recognized by been the common which 837(a). (1994); 10 U.S.C. regarded “has torture and its fruits with L.Ed.2d cf. practices impedes years.” of these A. v. as each abhorrence for over 500 Insofar underlying the process determining lawfulness of the the true facts chal Sec’y (appeal State, taken from ^[2006] Eng.) (Bingham, A.C. 221 51 ¶ (H.L.) L.); detention, they are inimical to the Hamdan, lenged see also Jack- Denno, of habeas review. nature son v. (1964); Proceedings 12 L.Ed.2d 908 determina- This court’s review CSRT Felton, Against 3 Howell’s St. Tr. 1005(e)(2), tions, DTA 119 Stat. (1628) H. (Eng.); John Langbein, Torture designed to cure these inade- is not (1977) (“Already and the Law of Proof may only the quacies. This court review centuries, in the fifteenth and sixteenth developed the CSRT assess record ‘panegyr- ... the celebrated Renaissance complied has with its the CSRT

whether English extolling were ... ists’ of law Because a detainee still own standards. (footnote England.”) of torture in absence present has no means to evidence rebut- omitted). implicitly The DTA endorses assum- ting government’s case—even holding on the basis of such evi- detainees con- ing the detainee could learn of its by including provi- dence an anti-torture government assessing whether the tents — applies only sion that to future CSRTs. in its favor than the has more evidence 1005(b)(2), §DTA 119 Stat. at 2741. Even hardly proper antidote. detainee is however, proceedings, for these future may court also consider The fact that this Secretary required only of Defense is process “is consistent whether CSRT develop procedures to assess evi- whether and laws of the with the Constitution probative, not dence obtained torture States,” 1005(e)(2)(C)(ii), § DTA 1005(b)(1), § require its exclusion. Id. does not obviate the Stat. 119 Stat. at 2741. cognizable for a need habeas. Whereas constitutional, statutory, treaty viola- capable if protocol Even the CSRT were could defeat the lawfulness of the tion assessing whether a detainee was un detention, government’s cause the writ released, lawfully held and entitled to be the Executive lacks a issues whenever adequate is not an substitute for the habe- justification for continued detention. lawful remedy guaran as writ because this is not 1005(e)(2) § provisions of DTA cannot Upon concluding teed. that detention is purpose reconciled with the of habeas be unjustified, court “can direct corpus, they attempts handcuff to com- prisoner] discharged.” [the be Boll great engines judicial despo- “the bat man, (4 Cranch) see also (Al- tism,” The FEDERALIST No. at 456 § But supra, 1339. neither Story, Hamilton) (E.H. 1898). exander ed. Scott this, require DTA nor the MCA and a report recent studying CSRT records still,

Additionally, significant and more that when at three detainees shows least may justified by a continued detention be enemy were found not to CSRTs be resulting on the CSRT basis evidence combatants, they subjected to a were sec Testimony procured by from torture. ond, third, notoriously pro one case CSRT coercion is unreliable and un- ceeding finally until found to be speakably generally inhumane. See INTEL- Eduoing enemy properly classified as combatants. Board, LIGENCESCIENCE Informa- Interrogation: al., No-Hearing and Art Mark Denbeaux Hear et tion: Science Suspension The Modem Habeas Cor ings: CSRT: was also authorized “when (2006), http://law.shu.edu/ pus?, rebellion, at 37-39 insurrection, in cases of or inva news/fmal_no_hearing_hearings_xeport. public safety may sion the require it” in pdf. two territories of the United States: Philippines, 1, 1902, July Act of ch. 691, 692, Hawaii, 32 Stat. Hawai Therefore, Congress enacting because Act, Organic ian ch. 31 Stat. privilege has revoked the MCA (1900); Kahanamoku, see Duncan v. writ of where it would have 304, 307-08, the common issued under law Duker, L.Ed. 688 supra, also alternative, providing adequate without 149, 178 n. 190. Congress’s the MCA is void unless action Because the MCA neither contains exception fits in the Suspension within suspension, these hallmarks of and be- Congress may suspend Clause: the writ cause there is no Congress indication that “when Cases of Rebellion or Invasion sought to exception avail itself of the in the Safety public may require it.” U.S. Clause, Suspension attempt its to revoke Const, I, However, 9,§ art. cl. 2. Con- jurisdiction federal the Supreme gress power. has not invoked this powers Court held to exist exceeds Suspension has an exceedingly been Congress. The MCA therefore has no history rare event in the of the United effect on the of the federal only four States. On occasions has Con courts to consider these petitions their gress seen fit to These suspend writ. appeals. related examples pattern: follow a clear Each sus pension specific has made reference to a II. state “Rebellion” or “Invasion” and each suspension was limited to the duration of Cases, In In re Guantanamo Detainee 1863, necessity. recognizing that In “the (D.D.C.2005), F.Supp.2d Judge rebellion,” present Congress authorized Joyce Hens Green addressed eleven coor- during President Lincoln the Civil War dinated involving habeas cases 56 aliens “whenever, in judgment, public his the being by detained the United States as it, safety may require ... suspend to the “enemy Bay, combatants” at Guantanamo 3, corpus.” writ Act of Mar. id. at 445. These detainees are citizens of 1, § ch. Stat. 755. As a Australia, Bahrain, friendly Can- nations — result, long no writ was to issue “so said ada, Kuwait, Libya, Turkey, the United suspension by the remain President shall Kingdom, and in Yemen'—-whowere seized force, in and said rebellion continue.” Id. Afghanistan, Herzegovina, Bosnia and In Ku Klux Klan Congress the Act of Gambia, Pakistan, Thailand, and Zambia. agreed suspension to authorize whenever Each that he detainee maintains was “the unlawful combinations named [in wrongly “enemy classified as an combat- armed, organized shall be and and statute] in Denying part government’s ant.” able, powerful so numerous and as to be petitions, motion dismiss the the district violence, to either overthrow or set court ruled: defiance the constituted authorities of such petitioners [T]he have stated valid State, and of the United States within such claims under the Fifth Amendment State,” finding that these circumstances and ... United States Constitution against “shall be deemed a rebellion procedures implemented by gov- government of the United States.” Act of 20, 1871, 22, 4, Apr. ch. 14- petitioners 17 Stat. ernment to confirm that the Hamdan, unclear, subject to in- at 2773- “enemy combatants” see are petitioners’ Quirin, violate the (citing parte definite detention id. at 2786 Ex process of law. rights due 87 L.Ed. 3 (1942)), and the Executive detention at court further ruled Id. at 445. The district product unique is the of a situation in Qaeda issue but not the al that the Taliban protections history. our Unlike the uniformed combat detainees were entitled war, Fourth of the Third and Geneva Conven- contemplated by that is the laws of tions. Id. at 478-80. Winthrop, generally see William MilitaRY (2d ed.1920), Ge Bush, AND F.Supp.2d

In Law Preoedents Khalid Conventions, (D.D.C.2005), e.g., neva Geneva Convention Judge Richard con- J. Leon petitions of five Al- Relative to the Treatment of Prisoners of sidered the habeas Algerian and gerian-Bosnian War, citizens one Aug. U.S.T. permanent residency. Bosnian citizen with Constitution, and the U.N.T.S. police arrested Bosnian in They were Const, I, art. cl. the United suspicion plotting 2001 on to attack the in enemy States confronts stateless United and British embassies States war on that identify terror is difficult to Sarajevo. Supreme After the Court Hamdi, widely dispersed. Bosnia and Herzegovina Federation of or- 519-20, 124 U.S. at dered the six men to be released Janu- parties recite in their several briefs 2002,11 ary were seized competing the substantial interests of indi transported States forces to Guanta- liberty security vidual and national Bay. namo The Khalid decision also covers stake, are at much as did the of a separate case French citizen Hamdi transported in Pakistan and seized (plurality opinion); S.Ct. 2633 see id. at Bay. Rejecting petition- Guantanamo (Souter, J., joined 124 S.Ct. 2633 unjusti- claim their detention is ers’ J., by Ginsburg, concurring part, dis fied, court ruled that “no the district viable senting part, concurring in the theory by which legal [the exists district Hamdi, judgment). plurality ac could issue writ court] knowledged that strategic “core matters of presented, under” the circumstances id. at warmaking belong in the hands of those 314, noting powers the President’s under positioned political who are best and most II, Congress’s Article Authorization for ly making accountable for them.” Id. at (“AUMF”), Military Force the Use 531, time, 124 S.Ct. 2633. At the (Nov. same 13, 2001), on Detention the Order acknowledged that for Hamdi “detention granted id. at 317-20. The district court government’s the motion could last for the and dismissed rest of his life.” Id. at petitions. the at Id. Although S.Ct. 2633. Hamdi was citizen, a United States premise the under question presented by The fundamental lying the conclusion that is a for there role petition for a writ of is judiciary, id. at whether Executive detention is lawful. A “history was that and common sense teach far question more difficult is what serves system us that an unchecked of detention justify Executive detention under the margin, potential law. At the carries the to become a precise constitu means tional authority oppression bounds of Executive are and abuse of others do who 11. See Court of the Federation Ki-1001/01. Herzegovina, Sarajevo, Bosnia and Jan. threat,” ing past years at five during that sort of id. which the present

not short, 2633. In the nature detainees have been held at Guantanamo Bay being makes true enemies of the United to determine who is conflict held and See, Hamdan, e.g., At the same for what reason. States more troublesome. Hamdi, time, 2773; wrongful risk of detention of at U.S. at cf. acute, bystanders particularly 124 S.Ct. 2633. mere where, here, the Executive detains indi as Throughout history, courts reviewing viduals without trial. prisoners the Executive detention of have

Parsing judiciary engaged searching the role of the this factual review the Bollman, power context is arduous. The of the Executive’s claims. In the Su zenith, all, preme petition President is at its after when Court reviewed a of two alleged levying the President acts the conduct of for traitors accused of war eign support Congress. against petitioners affairs with the the United The States. Youngstown custody by Sheet & Tube Co. v. Saw were held in marshal but (4 579, 635-38, yer, yet charged. 96 had not been Cranch) (1952) (Jackson, J., 75-76,125. concur at L.Ed. 1153 After the “testimo ny they ring). assuming Even the AUMF on which were committed [was] considered,” provide support fully attentively Order on Detention such examined and issue, for the detentions at still the Presi prisoners Court ordered the released. are not in war Id. at powers English dent’s unlimited 136-37. case of Wall.) (4 Schiever, See, e.g., Milligan, supra time. Rex discussed Part I.C.l, granted at 125. could The Founders have also shows that habeas courts scruti plenary power the President to confront nized the factual basis for the detention of situations, not; Schiever, emergency they prisoners. but did even wartime they suspension prisoner’s could have authorized the court reviewed affidavit war, witness, corpus during any testimony of habeas state of took further from a they suspension limited to cases of that but who Schiever was forced “sw[ore] Const, against art. ... “Rebellion Invasion.” U.S. his inclination to serve on Burr, I, 1342; cl. see 2 supra, privateer].” [the board French at Stoey, Nonetheless, 2 Eng. Rep. see also at 551. the FedeRal Reoords had, at 341 stipra, (propos the court it was clear Schiever Convention fact, such, Pinckney). fought against England. al of Charles Even in As man, justice a time thought upon “[a]ll when still flowed from “the Court his own king merely dispensed shewing, clearly prisoner the courts of war and [and] justice,” Duxee, supra, lawfully the idea detained such. Therefore Id., that a court prisoner Eng. Rep. would remand a Denied the motion.” (footnote omitted). merely because the Crown so ordered Similar themes ”) {“per speciale Regis inquiry appear Span mandatum Domini and factual Three Sailors, 1324, Eng. was deemed to be inconsistent with the 2 Black. 96 ish W. 775, a government Rep. petitioners notion of under law. See in which three alien Case, 1, during Darnel’s 3 Howell’s St. Tr. 59 submitted affidavits wartime but (K.B.1627); Meadoe, supra, they at 13-19. failed to court that convince the Crown, judgments military necessity While are enemies of the not Gold- Case, 1207, by Eng. entitled to deference 5 Black. 96 courts sivain’s W. (C.P.1778), custody during Rep. wrongly while wartime 711 in which a temporary may justified properly pro impressed Englishman be in order was from released captured, during cess those who have been service wartime. See also Beech 137, ample opportunity ing, Eng. Rep. Executive has had dur 4 B. & C. 107 1010 See, e.g., Eisentrager, 70 early history of the United 339 U.S.

In the States, Yamashita, that fac suggest 936; two cases further In re 327 66 S.Ct. U.S. during accompanied even writs tual review (1946); Quinn, 90 L.Ed. 499 In States Williams wartime. good 2. There is (C.C.D.Va. 4, 1813), previously a un Dec. differently by a petition reason to treat for a recent es reported case researched uncharged detainee —who could be held say Bag, in The Green Chief Justice John indefinitely without of a prospect even Marshall, circuit, enemy released an riding meaningful process trial or that of a —from by from detention civil authorities. alien Rasul, criminal. convicted war reg concluded that “the The Chief Justice U.S. at Omar v. Har- ulations made the President of the (D.C.Cir.2007); vey, 479 F.3d see also respecting alien enemies United States Yamashita, supra example, note 9. For not authorize the confinement of the [did] prisoner petitioned for a writ of habeas in this case.” Neuman & Hob petitioner military corpus after a trial before a son, at 42 circuit supra, (quoting the attorneys where his six defended tribunal book). A majority court’s order against government witnesses. Pennsylvania, in Lock- Supreme Court Quirin S.Ct. 340. involved (N.P.) (Pa. Case, ington’s Brightly’s commission, 18-19, military see 317 U.S. at 1813),agreed that alien enemies were enti government present- 63 S.Ct. where the judgment to a on the merits as to tled “overwhelming” ed included proof justified,12 their detention was whether from confessions the German saboteurs. prisoners. thereafter remanded the Id. 152-53, O’DonNell, C.J.); PieRce In Time of WAR (Tilghman, id. at 283-84 J.). Eisentrager, (Yeates, military U.S. at government maintains that a series lasting tribunal conducted a trial months. II-era cases of World War undercuts contrast, By the detainees have been that habeas review of un- proposition crimes, charged charges with no nor are charged requires a factual as- detainees pending. The robustness of the review sessment. It cites several cases which they have received to or- date differs engage courts have refused to factual magnitude military ders of from that of the findings military review of the tribunals imposing sentences under laws war. tribunal cases.13 Booth, (21 12. Prior to Ableman v. Persons who have determined been How.) (1859), competent 16 L.Ed. 169 and Tarble’s tribunal not be entitled Case, (13 Wall.) 397, 411-12, executed, prisoner may 20 L.Ed. of war status not be regularly imprisoned, penalized state courts issued writs or otherwise without prisoners. of habeas as to federal proceedings to further determine what acts penalty have committed and what imposed. every should be The record of good distinguish 13. There is also reason to proceeding resulting Tribunal in a determi- parallel between these detainees’ cases and denying [Enemy nation of War] Prisoner cases where detainees have been accorded legal sufficiency status shall be reviewed for prisoner-of-war status and the benefits of when the record is received at the office of Army Regulation implements which Judge convening the Staff Advocate for provi- the Third Geneva Convention. These authority. contemplate sions the end of hostilities and Hamdi, 3-11, 3-13, l-6g. Supreme § prisoner exchanges, §§ Id. In Court id. and provide recognized proce- process for more that it was conceivable that extensive for deter- mining prisoners, Army Regulation may § the status of id. 1-6. The dures similar to 190-8 regulations specify provide process further that: suffice to due to a citizen-

1011 enemy pose allen combatants who a con in did not Rasul Supreme Court during engage tinuing threat active pro and what further “whether address in ment of the United States the war on necessary after re ceedings may become 488, id. at 124 S.Ct. 2686 terror. See to the responses make their spondents J., (Kennedy, concurring judgment); in the claims,” 542 at U.S. petitioners’ merits of 518-19, 124 542 U.S. at S.Ct. Hamdi cf. cannot 124 2686. The detainees S.Ct. showing But it must make that and 2633. under the Fifth process rest on due meaning must be allowed a the detainees the district court Although Amendment. respond. opportunity ful See Meador, Cases, 355 in Detainee Guantanamo 18; Hamdi, at supra, at see also 542 U.S. ruling, contrary F.Supp.2d at made 525-26, 124 S.Ct. 2633. held Eisentrager in Therefore, I that on remand would hold rights does not afford that the Constitution the district courts shall follow the return at context. 339 U.S. to aliens procedures traverse of 28 U.S.C. and 936; Verdugo-Urquidez, accord 70 S.Ct. upon applica- § 2241 seq. particular, et Although at S.Ct. U.S. corpus, a writ of 28 U.S.C. tion for on the con the Court cast doubt Rasul § court shall issue an the district at Eisentrager, 542 U.S. tinuing vitality of cause, whereupon order to show “[t]he 475-79, explicit absent S.Ct. the writ is or order is person whom that it intended by the Court statement certifying shall make a return directed hold Eisentrager’s constitutional overrule detention,” true cause of the id. holding binding on this court. ing, that is “puts forth long government So as the Rodriguez Quijas de Shearson/Am. that the meets [detainee] credible evidence Inc., 109 S.Ct. Express, criteria,” Hamdi, enemy-combatant (1989); Op. L.Ed.2d 526 at 992. at the district S.Ct. Rather, that is due inheres process as true “if accept court must the return it inquiry the writ and the the nature of person detained. Id. not traversed” in Rasul held that entails. The Court may court take evi- § 2248. The district jurisdiction under 28 U.S.C. federal court or, deposition, in the “orally dence permitted petitions § 2241 for habeas Id. judge, by affidavit.” discretion Guantanamo, 542 by detainees at filed may district court conduct 2246. The 2686; 488,124 id. at Harris, discovery. See J., concurring judg in the (Kennedy, Governing Rules Sec- cf. ment), be and this result is undisturbed 6-8; Cases, Governing R. Rules tion long is void. So as the Thereafter, cause the MCA Cases, R. 6-8. Section Ar independent Executive can convince an summarily hear court shall “[t]he [district] facts, judge dispose III that it has not acted ticle and determine justice require.” Dis- matter as law and unlawfully, may continue to detain those status, prisoner-of-war cord such detainees U.S. at 124 S.Ct. 2633 detainee. 542 see, (plurality opinion); e.g., Conference id. The President's News J., (Souter, J., Ginsburg, Afghan with whom Karzai of the With Chairman Hamid dissenting part, joins, concurring part, (Jan. Authority, 1 Pub. Interim Papers concurring judgment). as- in the Even 28, 2002). according suming Guantanamo detainees question Suspension 14. Because the Clause Army Regulation rights 190-8 would under Supreme Court in the decided must be provide adequate independent factual re- order for the district court detainees’ favor in satisfy claims sufficient to view of their occur, day proceedings to I leave for another any corpus, dictates of habeas as well as evolving questions relating and unlimit treaty obligations able that the detainees are combatant,” enforce, "enemy has declined to ac- ed definition of the Executive adjust trict are well able to these courts government’s

proceedings light guarding national

significant interests De-

security, suggested Guantanamo Cases, F.Supp.2d use

tainee parte and ex protective orders review, 471. procedural id. at

camera ease, see, employed in that

mechanisms

e.g., employed id. at 452 & n. should be

again, as district courts must assure the proceedings,

basic fairness the habeas generally id. at 468-78.

Accordingly, respectfully I dissent from judgment vacating the district courts’ dismissing appeals

decisions and these jurisdiction.

lack of America, Appellee

UNITED STATES of

Sterling MAPP, Appellant.

No. 05-3156. Appeals, States Court of

District of Columbia Circuit.

Argued Jan.

Decided Feb. Cases, F.Supp.2d lenges Guantanamo Detainee to the conditions of confinement are 474-75, Khalid, inability cognizable Compare detainee’s to rebut in habeas. evi security grounds, F.Supp.2d dence withheld on national with Miller v. Overhol ser, (D.C.Cir.1953). see id. at as well as the detainees’ F.2d 419-21 statutes, Congressional may clarify claims under other international action also matters. conventions, treaties, See, e.g., Cong. whether chal S. S. 110th

Case Details

Case Name: Boumediene, Lakhdar v. Bush, George

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Feb 20, 2007

Citation: 476 F.3d 981

Docket Number: 05-5062 to 05-5064, 05-5095 to 05-5116

Court Abbreviation: D.C. Cir.