MCA Before the D.C. Circuit

On October 17, 2006, the President signed into law the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (the “MCA”). The government contends that the MCA strips this Court and the district court of jurisdiction over petitioners’ pending habeas cases. This Court, however, need not decide the profound constitutional questions that would arise if the government were correct because the MCA, by its terms, does not revoke jurisdiction over applications for habeas corpus that were pending in court when the statute was enacted.

As the government has pointed out, the MCA distinguishes between two categories of cases: (1) “application[s] for writ of habeas corpus” and (2) “other action[s]” that relate “to any aspect of the detention, transfer, treatment, trial, or conditions of confinement” of aliens determined by the United States to have been properly only to pending cases in the latter category. Accordingly, the MCA does not affect the Court’s jurisdiction to hear and decide the present habeas cases, all of which were pending when the MCA was enacted. The Court should promptly affirm Judge Green’s denial of the government’s motion to dismiss these cases and, at long last, allow the district court to decide “the merits of petitioners’ claims” as mandated by the Supreme Court. Rasul v. Bush, 542 U.S. 466, 485 (2004).

A contrary reading of the MCA would render the statute unconstitutional. Congress may suspend the privilege of the writ of habeas corpus only in cases of “rebellion” or “invasion.” U.S. Const. art. I, § 9, cl. 2. Congress is otherwise simply without power to do so. Congress may substitute another remedy for habeas but only if that substitute is “commensurate” in scope with habeas and “is neither inadequate nor ineffective to test the legality of a person’s detention.” Swain v. Pressley, 430 U.S. 372, 381, 384 (1997).

In these circumstances of pure executive detention – where petitioners are not attacking a prior conviction pursuant to judicial process and have no prospect of a prompt trial – common law habeas required a searching judicial inquiry into the factual and legal bases for the detention. If the government had conducted some prior process to justify the detentions, the court would not defer to that process but would first determine whether it was fair and adequate and “more than empty shell.” The court would conduct its own inquiry into the legality of the detention; it would allow the petitioner to traverse the government’s return and to present exculpatory evidence, and it would resolve disputed facts. It would not limit itself to reviewing only evidence was obtained through torture or coercion. Following such an inquiry, a common law habeas court would order the petitioner’s release if it found inadequate justification for the detention.

The substitute remedy for habeas allowed by the MCA – namely, review in this Court under the Detainee Treatment Act of 2005 (“DTA”) of determinations by the Combatant Status Review Tribunals (“CSRT”) that petitioners have been properly detained as enemy combatants- does not come close to being the equivalent of this searching habeas inquiry. As construed by the government, the DTA limits this Court to determining whether the CSRTs followed their own standards and procedures. The Court would be precluded from examining whether the procedures themselves were a sham. It would also be restricted to reviewing only evidence presented to the CRSTs by the government, and precluded from examining all the evidence, including exculpatory evidence presented by petitioners. The court would have no authority to order a petitioner’s release, even if it found that his detention was unjustified. Thus, the MCA clearly does not provide an adequate or effective substitute for habeas, and it therefore violates the Suspension Clause.

I. The Military Commissions Act unambiguously eliminates district court jurisdiction over these cases. The MCA expressly states that this amendment “shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.” MCA, § 7(b). The statute’s plain language applies to these pending cases. Moreover, the context and legislative history uniformly demonstrate that the elimination of district court habeas jurisdiction applies to these pending cases. Review of petitioner’s challenges to their detention as enemy combatants now lies within this Court’s exclusive province.

II. Because there can now be no question that Congress has eliminated district court jurisdiction over petitioners’ claims, petitioners are left to arguing that the Act is unconstitutional. These arguments are without merit. First, as we have explained at length in our previous filings, petitioners, who are all aliens outside the United States, have no constitutional habeas rights to assert, and, thus the elimination of the statutory right to seek habeas review does not implicate the Suspension Clause. Second, even if petitioners possessed constitutional habeas rights, given the review afforded, there is no suspension in this context because Congress has provided an adequate substitute. As set out in our prior briefs, the review afforded by Congress of the enemy combatant determinations by the Combatant Status Review Tribunals (“CRSTS”) is greater than that afforded in habeas for alien enemies facing military criminal proceedings. Yamashita v. Styer, 327 U.S. 1, 8 (1946) (military tribunals are “not subject to judicial review merely because they have made a wrong decision on disputed.”). Even outside of the military context, under traditional habeas review, “other than the question whether there was some evidence to support the order, the courts generally did not review the factual determinations made by the Executive.” See INS v. St. Cyr, U.S. 289, 305-06 (2001). Petitioners’ insistence that enemies captured during armed conflict, and detained by the military as enemy combatants have a right to de novo review of the ruling of the governing military tribunal is wholly unfounded, contrary to Supreme Court precedent, and would severely impair the military’s ability to defend this country. See Johnson v. Eisentrager, 339 U.S. 763, 779 (1950) (proving such habeas review “would hamper the war effort and bring aid and comfort to the enemy”).

III. Section 5(a) of the MCA makes explicit that the Geneva Conventions are not judicially enforceable. The Act, therefore, supports the Government’s argument that petitioners’ treaty claims should be dismissed.

IV. Finally, petitioners’ arguments relating to the ability to challenge military commissions are not before this Court and are without merit.