No Easy Answers

Source: http://www.scotusblog.com/movabletype/archives/Hamdan%20memo%2012-13-06.pdf

Excellent summary comments at ScotusBlog's article, Hamdan's case dismissed, but new Act may be partly invalid

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                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA


SALIM AHMED HAMDAN,                  :
                                     :
          Plaintiff,                 :
                                     :
     v.                              : Civil Action No. 04-1519 (JR)
                                     :
DONALD H. RUMSFELD,                  :
                                     :
          Defendant.                 :


                               MEMORANDUM


          The government seeks dismissal of the petition of Salim

Ahmed Hamdan for a writ of habeas corpus for lack of subject

matter jurisdiction, relying upon the jurisdiction-stripping

provisions of the Military Commissions Act of 2006, Pub. L. No.

109-366, 120 Stat. 2600 (MCA) [75].       Petitioner resists, arguing

that the MCA did not remove our jurisdiction over pending

Guantanamo habeas petitions, and alternatively that, if it did,

it was an unconstitutional suspension of the writ of habeas

corpus [78].

                               Background

          Salim Ahmed Hamdan, a Yemeni national, was taken into

United States military custody in Afghanistan in November 2001.

He was transported to the Defense Department's detention facility

at Guantanamo Bay in June 2002.      In July 2003, the President

declared him eligible for trial by military commission.  On

April 6, 2004, Hamdan petitioned for mandamus or habeas corpus in

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the United States District Court for the Western District of

Washington.   On July 13, 2004, after having been held for about

two years and eight months without formal charges, Hamdan was

finally charged at Guantanamo Bay with a single count of

conspiracy.   In August 2004, his habeas petition was transferred

to this court.

          On November 8, 2004, I granted Hamdan's petition for a

writ of habeas corpus after finding that he could not be tried

lawfully before a military commission that had not been approved

by Congress, Hamdan v. Rumsfeld, 344 F. Supp. 2d 152 (D.D.C.

2004).   That decision was reversed by a panel of the D.C. Circuit

on July 15, 2005, 415 F.3d 33, in a decision that was itself

reversed a year later by the Supreme Court, Hamdan v. Rumsfeld,

126 S. Ct. 2749 (2006), four justices noting that "[n]othing

prevents the President from returning to Congress to seek the

authority he believes necessary" to lawfully try enemy

combatants, Id. at 2799, (Breyer, J., concurring). ^1    On

September 22, 2006, the Court of Appeals remanded the case to me

"for further proceedings."      The remand order contained no

instructions, nor was it clear what proceedings, if any, would be

possible ­ for, by that time, the President had indeed

"return[ed] to Congress," and he had asked Congress to strip the


     1
      Four justices also concluded that conspiracy is not an
offense that may be tried by a military commission. Id. at 2779.

                                  -2-

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federal courts of their jurisdiction to hear any habeas petitions

of the Guantanamo detainees.

               On September 29, 2006 Congress enacted, and on

October 17, 2006, the President signed, the Military Commissions

Act.  The day after the MCA became law, the government filed, in

each of the 181 Guantanamo habeas cases pending in this Court, a

Notice of Military Commissions Act of 2006 [75], highlighting the

jurisdiction-stripping and retroactivity provisions of the Act.

The government focused on section 7 of the Act, which amends the

federal habeas statute by removing the jurisdiction of any

"court, judge, or justice" over habeas petitions and all other

actions filed by aliens who are either detained as enemy

combatants or are "awaiting such determination."  MCA § 7(a).  I

construed that notice as a motion to dismiss for lack of subject

matter jurisdiction and called for a response from Hamdan [77]. ^2


       2
      I did not issue similar orders in the 14 other Guantanamo
habeas cases on my own docket, in deference to the continuing
pendency before the Court of Appeals of two cases in which that
court has asked for supplemental briefing on the effect of the
Military Commissions Act, Boumediene, et al. v. Bush, 450 F.
Supp. 2d 25 (D.D.C. 2006) (appeal pending); Al Odah, et al. v.
United States, 346 F. Supp. 2d 1 (D.D.C. 2004) (appeal pending).
Hamdan's successful certiorari petition in the Supreme Court,
however, sets his case apart from the others. Unlike the
petitioners in those other cases, moreover, Hamdan moved for a
briefing schedule on the subject of jurisdiction [73] even before
the government filed its notice.

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                                Analysis

           The Military Commissions Act and the briefs of the

parties present three questions:      (1) As a matter of statutory

interpretation and construction, did Congress actually succeed in

removing our statutory habeas jurisdiction over the detainee

habeas cases?   (2) If so, is the Military Commissions Act a

constitutionally valid "suspension" of the writ of habeas corpus

within the meaning of the Suspension Clause, U.S. Const. art. I

§ 9 cl. 2?   (3) If not, and if a "constitutional" writ of habeas

corpus survives the Military Commissions Act, does Hamdan have a

right to seek such a writ?      The answers to these questions are

"yes" to number (1) and "no" to numbers (2) and (3).

1. The MCA reflects clear congressional intent to limit the
statutory habeas jurisdiction of the federal courts.

           It has been clear since Ex Parte Yerger, 75 U.S. 85

(1869) (habeas petition by a prisoner facing trial by military

commission), that statutory language will be interpreted as

stripping courts of their habeas jurisdiction only when the

intent of Congress is abundantly clear.  "Implications from

statutory text or legislative history are not sufficient to

repeal habeas jurisdiction; instead, Congress must articulate

specific and unambiguous statutory directives to effect a

repeal."   INS v. St. Cyr, 533 U.S. 289, 299 (2001).  In the

instant case, it appears to be conceded that Congress's intent to

remove jurisdiction over future habeas petitions filed by a

                                  -4-

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specified class of individuals was clear enough.  Hamdan's

submission, however, is that the MCA lacks the requisite clarity

to support its retroactive operation ­ stripping the courts of

their jurisdiction over previously filed habeas cases.

          Section 7 of the MCA provides:

                (a) IN GENERAL. ­ Section 2241 of title 28, United
                States Code [the habeas statute], is amended by
                ... inserting the following new subsection (e):

                (e)(1) No court, justice, or judge shall have
                jurisdiction to hear or consider an application
                for a writ of habeas corpus filed by or on behalf
                of an alien detained by the United States who has
                been determined by the United States to have been
                properly detained as an enemy combatant or
                is awaiting such determination.

                (2) Except as provided in paragraphs (2) and (3)
                of section 1005(e) of the Detainee Treatment Act
                of 2005 (10 U.S.C. 801 note), no court, justice,
                or judge shall have jurisdiction to hear or
                consider any other action against the United
                States or its agents relating to any aspect of the
                detention, transfer, treatment, trial, or
                conditions of confinement of an alien who is or
                was detained by the United States and has been
                determined by the United States to have been
                properly detained as an enemy combatant or is
                awaiting such determination.

                (b) EFFECTIVE DATE. ­ The amendment made by
                subsection (a) shall take effect on the date of
                the enactment of this Act, and shall apply to all
                cases, without exception, pending on or after the
                date of the enactment of this Act which relate to
                any aspect of the detention, transfer, treatment,
                trial, or conditions of detention of an alien
                detained by the United States since September 11,
                2001.

Relying on what he calls "[o]rdinary principles of statutory

construction," [78 at 10] and quoting Hamdan, 126 S. Ct. at 2765-

                                  -5-

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69, Hamdan argues that the retroactivity provision of § 7(b) does

not clearly apply to the habeas jurisdiction-stripping provision

of § 7(a), because, while the language of § 7(b) tracks much of

the language in § 7(a) describing cases other than habeas

petitions, it does not explicitly refer to habeas petitions.  The

argument is unsuccessful.

           Section 7(b) instructs that "the amendment made by

subsection (a)" is effective immediately, and that it applies

both retroactively and prospectively.  New subsections (e)(1) and

(e)(2) both amend the habeas statute and therefore together

comprise "the amendment made by subsection (a)."  Section 7(b),

then, means that all of § 7(a), and not just the part encompassed

in new subsection (e)(2), applies retroactively.

           Application of the retroactivity clause in § 7(b) to

new subsection (e)(1) is also compelled by the framework of the

statute.   The references in section 7 are to one large category

of cases: those cases that relate to any aspect of the detention,

transfer, treatment, trial, or conditions of detention of certain

aliens.    In § 7(a), Congress divided this broad category into two

subcategories ­ (1) habeas petitions and (2) "any other action[s]

against the United States ... relating to any aspect of the

detention..." ­ and removed jurisdiction over both types of

cases.    "Other," as used in this subsection, logically describes

cases other than the habeas petitions referenced in the previous


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subsection and confirms the inclusion of habeas proceedings

within the broader category encompassing "all cases . . . pending

on or after the date of enactment of this Act which relate to any

aspect of the detention, transfer, treatment, trial, or

conditions of detention of an alien detained by the United States

since September 11, 2001."   Section 7(b) applies "without

exception" to the broad category of cases encompassing both sub-

categories addressed in new subsections (e)(1) and (e)(2); this

language is "so clear that it could sustain only one

interpretation."  Lindh v. Murphy, 521 U.S. 320, 329 n.4 (1997).

Habeas petitions are thus clearly within the ambit of § 7(b).

2. The MCA is not a constitutionally valid suspension of the writ
of habeas corpus.

          Congress unquestionably has the power to establish and

to define the jurisdiction of the lower federal courts.  U.S.

Const. art. III, §§ 1, 2.  But it does not necessarily follow,

from the fact that Congress has repealed its statutory grant of

habeas jurisdiction, that Congress has also "suspended" the writ.

Some historical background will be helpful in explaining why this

is so.

          The history of habeas corpus ­ the "symbol and guardian

of individual liberty," Peyton v. Rowe, 391 U.S. 54, 59 (1968) ­

is well established.  What we now know as the "Great Writ"




                                    -7-

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originated as the "prerogative writ of the Crown"; ^3 its purpose

at first was to bring people into court rather than out of

imprisonment.   Alan Clarke, Habeas Corpus: The Historical Debate,

14 N.Y.L. Sch. J. Hum. Rts. 375, 378 (1998), citing S.A. DeSmith,

The Prerogative Writs, 11 Cambridge L.J. 40 (1951); William F.

Duker, A Constitutional History of Habeas Corpus 17 (1980).  By

the year 1230, the writ's utility for that purpose was a well-

known aspect of English common law.  Clarke, supra.

          The transformation of the writ to a guardian of liberty

dates to the 14th century, when the Norman Conquest overlaid a

centralized court system on top of the existing courts.  It was

during this period that prisoners began to initiate habeas

proceedings to challenge the legality of their detention.  Id.

The first such use was by detained members of the privileged

classes who raised habeas claims in superior central courts to

challenge their convictions in inferior courts; central courts

would grant such writs to assert the primacy of their

jurisdiction.   Id.   Thus, oddly enough, the original use of the

writ by prisoners challenging convictions or detentions had more

to do with jurisdictional disputes between courts than concerns

over liberty.   Id.; Gerald L. Neuman, Habeas Corpus, Executive


     3
      Standing alone, the phrase "habeas corpus" refers to the
common law writ of habeas corpus ad subjiciendum, or the "Great
Writ." Preiser v. Rodriguez, 411 U.S. 475, 484-85 and n.2 (1973)
citing Ex parte Bollman, 8 U.S. (4 Cranch) 75, 95 (1807).

                                  -8-

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Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961, 970-

71 (1998).

            As the power of the common law courts expanded in the

15th century, so too did the availability and meaning of habeas

corpus.    The writ became a favorite tool of both Parliament and

the judiciary in battling the monarch's assertion of unbridled

power.  Clarke, supra at 380.  By 1670, habeas corpus was "the

most usual remedy by which a man is restored again to his

liberty, if he have been against law deprived of it."   Bushell's

Case, Vaughan 135, 136, 124 Eng. Rep. 1006, 1007.  The growing

significance of the writ is reflected in the Habeas Corpus Act of

1679, described by Blackstone as "a second magna charta, a stable

bulwark of our liberties."   1 Blackstone 133.

            Notwithstanding the cherished status of habeas corpus,

its suspension in England was not uncommon.  The writ was

suspended in 1688 and 1696 because of conspiracies against the

king, again during the American revolution, and at other points

during the 18th century.  Rex A. Collings, Jr., Habeas Corpus for

Convicts ­ Constitutional Right or Legislative Grace?, 40 Cal. L.

Rev. 335, 339 (1952).

            Colonists in America were well aware of the growing

significance of the Great Writ, and many asserted a common law

right to habeas corpus in the period leading up to the adoption

of the Constitution.  Massachusetts, New Hampshire, and Georgia


                                    -9-

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adopted constitutional provisions guaranteeing the writ or

prohibiting its suspension under most circumstances.  Max Rosenn,

The Great Writ -- A Reflection of Societal Change, 44 Ohio St.

L.J. 337, 338 n.14 (1983).  Several delegates to the

Constitutional Convention sought to include a guarantee of habeas

corpus in the federal Constitution, Erwin Chemerinsky, Thinking

about Habeas Corpus, 37 Case W. Res. L. Rev. 748, 752, and the

language that emerged from the Constitutional Convention,

forbidding the suspension of habeas unless necessary in the face

of "rebellion or invasion," U.S. Const. art. I, § 9, cl. 2, was a

compromise.   Habeas corpus nevertheless enjoys powerful and

unique constitutional stature as the only common law writ

explicitly referenced in the Constitution.  The first session of

Congress also evinced appreciation for the writ: in section 14 of

the Judiciary Act of 1789, Congress affirmatively gave the power

to issue writs of habeas corpus to the newly created federal

courts.   Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat 73, 81.  It

is that statute, amended several times over the last 217 years,

that the MCA has amended once again: this time to take away

jurisdiction. ^4


     4
      The MCA may not have been Congress's last word on the
statutory habeas rights of detainees such as Hamdan. On December
5, 2006, Senators Specter and Leahy introduced the Habeas Corpus
Restoration Act of 2006, S. 4081, 109th Cong. (2006), which would
grant statutory habeas rights to those whose rights were repealed
by the MCA.

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          Article I, section 9, clause 2 of the Constitution

provides, "The Privilege of the Writ of Habeas Corpus shall not

be suspended, unless when in Cases of Rebellion or Invasion the

public Safety may require it."  "Although [the Suspension Clause]

does not state that suspension must be effected by, or authorized

by, a legislative act, it has been so understood, consistent with

English practice and the Clause's placement in Article I."  Hamdi

v. Rumsfeld, 542 U.S. 507, 562 (2004) (Scalia, J., dissenting),

citing Ex parte Bollman, 8 U.S. at 101; Ex parte Merryman, 17 F.

Cas. 144, 151--152 (CD Md. 1861) (Taney, C. J., rejecting

Lincoln's unauthorized suspension); 3 Story § 1336, at 208--209. ^5

          Congress has authorized executive suspension of the

writ only four times.  See Duker, supra at 149, 178 n.190.  All

such suspensions were accompanied by clear statements expressing

congressional intent to suspend the writ and limiting the

suspension to periods during which the predicate conditions

(rebellion or invasion) existed. Id.  The first such instance

was during the Civil War, when the status and availability of

habeas corpus were at the center of an epic struggle.  In 1861,

without congressional authorization, President Lincoln gave the

Commanding General of the Army permission to suspend the writ in


     5
      In his dissent in Hamdi, Justice Scalia also makes
reference to President Jefferson's unsuccessful attempt to
suspend the writ in response to the Aaron Burr conspiracy.
Hamdi, 542 U.S. at 563 (Scalia, J. dissenting), citing 16 Annals
of Congress 402-425 (1807).

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response to rioting between Philadelphia and Washington as Union

troops moved down the coast.  A. Lincoln, Letter to Commanding

General Winfield Scott, (April 27, 1861), reprinted in Abraham

Lincoln: Speeches and Writings, 1859-1865, at 237 (D.

Fehrenbacher ed. 1989).  John Merryman was subsequently arrested

for interfering with troop movements and challenged the executive

suspension of the writ.  Chief Justice Taney, riding circuit,

heard the case and ruled in Merryman's favor, holding that only

Congress may suspend the writ.  Ex parte Merryman, 17 F. Cas. at

151--152.  Lincoln ignored Taney's order, but Congress eventually

authorized executive suspension, mooting the question of whether

or not Lincoln's initial suspension was unconstitutional and

avoiding a Supreme Court test.  Act of Mar. 3, 1863, 12 Stat.

755.  Thereafter, Lincoln's suspensions explicitly relied upon

the congressional grant of authority.  See, e.g., Proclamation

No. 7, 13 Stat. 734 (1863).

            After the Civil War, Congress next authorized executive

suspension of the writ in its Ku Klux Klan Act, which allowed

President Grant to suspend the writ while rebellions were raging

in several South Carolina counties.  Duker, supra at 178 n.190.

Congress's last two authorizations for executive suspension of

the writ were in 1902, when it granted suspension power to the

President and the governor during a rebellion in the




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Phillipines, ^6 and in 1941, after the attack on Pearl Harbor, when

Congress authorized the governor of Hawaii to temporarily suspend

the writ in that territory. ^7  All four congressionally authorized

executive suspensions occurred during times of indisputable, and

congressionally declared, rebellion or invasion.

             The Supreme Court has never decided whether an Act of

Congress alone has effectively "suspended" the writ.  In two

relatively recent cases involving the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996 (IIRIRA), indeed,

the Court has carefully avoided saying exactly what the

Suspension Clause protects.  In Felker v. Turpin, 518 U.S. 651

(1996), the Court, per Rehnquist, C.J., "assume[d], for purposes

of decision here, that the Suspension Clause of the Constitution

refers to the writ as it exists today, rather than as it existed

in 1789," but held that the restrictions placed by the AEDPA upon

second and successive statutory habeas petitions by prisoners

were "well within the compass of [the writ's] evolutionary

process, and . . . do not amount to a `suspension' of the writ

contrary to Article I, § 9."  518 U.S. at 663-64.  In INS v. St.

Cyr, 533 U.S. 299 (2001), the Court rejected the government's

argument that the AEDPA and the IIRIRA had effectively stripped


     6
         Act of July 1, 1902, ch. 1369, 32 Stat. 691.

     7
         See Duncan v. Kahanamoku, 327 U.S. 304, 307-308 (1946).

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the federal courts of jurisdiction to decide questions of law.

Acknowledging that the scope of the writ has expanded

significantly since the Founding, the Court noted that, "at the

absolute minimum, the Suspension Clause protects the writ `as it

existed in 1789,'" id. at 1788 (quoting Felker).  And the Court

went on to observe:

          The fact that this Court would be required to answer
          the difficult question of what the Suspension Clause
          protects is in and of itself a reason to avoid
          answering the constitutional questions that would be
          raised by concluding that review was barred entirely.
          Cf. Neuman, Habeas Corpus, Executive Detention, and the
          Removal of Aliens, 98 Colum. L.Rev. 961, 980 (1998)
          (noting that "reconstructing habeas corpus law . . .
          [for purposes of a Suspension Clause analysis] would be
          a difficult enterprise, given fragmentary
          documentation, state-by-state disuniformity, and
          uncertainty about how state practices should be
          transferred to new national institutions"). ^8

Id. at n.13.   Whether the Suspension Clause protects only the

"writ antecedent to statute," Williams v. Kaiser, 323 U.S. 471,

484 (1945), or "the writ as it exists today," Felker, 518 U.S. at

663, its protection is absolute in the absence of "invasion" or

"rebellion."   Neither rebellion nor invasion was occurring at the

time the MCA was enacted.  Indeed, Congress itself must not have


     8
      In both Felker and St. Cyr, the Court was quick to point
out that neither the AEDPA nor the IIRIRA purported to repeal its
own original jurisdiction of habeas cases, which was expressly
granted by the Judiciary Act of 1789, Felker, 518 U.S. at 660-61,
quoted in St. Cyr, 533 U.S. at 298-99. The jurisdiction-
stripping language of the MCA, of course, does purport to repeal
the habeas jurisdiction of Supreme Court justices("No court,
justice or judge . . . ." MCA § 7(a)).

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thought that it was "suspending" the writ with the enactment of

the MCA, since it made no findings of the predicate conditions,

as it did when it approved Lincoln's suspension in the Civil War

and each of the subsequent suspensions in Mississippi, the

Phillippines, and Hawaii.  Thus, the Great Writ has survived the

Military Commissions Act.  If and to the extent that the MCA

operates to make the writ unavailable to a person who is

constitutionally entitled to it, it must be unconstitutional.

3. Hamdan is not entitled to the constitutional writ that
survives the MCA.

           The jurisdiction of federal courts over the habeas

petitions of detainees at Guantanamo Bay rested upon the grant of

jurisdiction in the habeas statute and upon the United States'

exercise of "complete jurisdiction and control" over the Navy

base in Cuba.   Rasul, 542 U.S. 466, 471, 481 (2004).  Because the

habeas statute drew no distinction between citizens and aliens,

moreover, the Court found "little reason to think that Congress

intended the geographical coverage of the statute to vary

depending on the detainee's citizenship.  Aliens held at the

base, no less than American citizens, are entitled to invoke the

federal courts' authority under § 2241."  Id. at 481.  My

original assumption of jurisdiction of Hamdan's habeas petition

depended entirely upon Rasul and upon § 2241, 344 F. Supp. 2d at

156.   Now that the MCA has amended § 2241 so that it no longer

serves as the basis for my jurisdiction, I must inquire whether

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Hamdan or any other alien is constitutionally entitled to the

writ.

            It has long been the practice of judges to ascertain

the "meaning of the term habeas corpus [by reference to] the

common law."  Ex parte Bollman, 8 U.S. at 93-94 (1807).

Petitioner cites at least two English common law cases in which

"aliens detained by the Executive at wartime" brought habeas

petitions challenging their designation as enemies.  [78 at 20],

citing Case of the Three Spanish Sailors, 96 Eng. Rep. 775, 776

(C.P. 1779); Rex v. Schiever, 97 Eng. Rep. 551 (K. B. 1759).  In

dicta, the majority in Rasul cited several other examples of pre-

1789 habeas petitions brought by aliens detained within the

sovereign territory or elsewhere within the sovereign's control.

Rasul, 542 U.S. at 481 n.11. ^9  Unfortunately, those cases do not

so easily resolve the issue when the statutory grant of habeas

has been withdrawn.  In each of them, habeas relief was either

(1) denied, in an opinion that failed to distinguish between


        9
      The court supplied the following list of English and
American habeas proceedings prior to 1789 and shortly thereafter:
King v Schiever, 2 Burr. 765, 97 Eng. Rep. 551 (K. B. 1759);
Sommersett v Stewart, 20 How. St. Tr. 1, 79-82 (K. B. 1772); Case
of the Hottentot Venus, 13 East 195, 104 Eng. Rep. 344 (K. B.
1810)); United States v. Villato, 2 Dall. 370, 2 U.S. 370, 1 L.
Ed. 419 (CC Pa. 1797); Ex parte D'Olivera, 7 F. Cas. 853, F. Cas.
No. 3967 (CC Mass 1813) (Story, J., on circuit); Wilson v. Izard,
30 F. Cas. 131, F. Cas. No. 17810 (CC NY 1815) (Livingston, J.,
on circuit).
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jurisdictional and substantive grounds for the dismissal; ^10 (2)

denied to a prisoner of war without connections to the country in

which the writ was sought; ^11 or (3) granted to an alien with a

significant relationship to the country in which the writ was

sought. ^12   Not one of the cases mentioned in Rasul held that an

alien captured abroad and detained outside the United States ­ or

in "territory over which the United States exercises exclusive

jurisdiction and control," Rasul, 542 U.S. at 475 ­ had a common

law or constitutionally protected right to the writ of habeas

corpus. ^13


     10
      See, e.g., Case of the Three Spanish Sailors, 96 Eng. Rep.
775, 776 (C.P. 1779); Rex v. Shiever, 97 Eng. Rep. 551 (K. B.
1759). Note, too, that petitioners in both of these cases were
held within English sovereign territory, unlike petitioner
Hamdan.

     11
      Rex v. Schiever falls under this category as well:
"[petitioner] is the King's prisoner of war, and we have nothing
to do in that case, nor can we grant an habeas corpus to remove
prisoners of war." 96 Eng. Rep. 1249 (K. B. 1759).

     12
      See, e.g., U.S. v. Villato, 2 U.S. 370, 28 F. Cas. 377, 1
L. Ed. 419 (No. 16,622) (Pa. 1797) (petitioner, though Spanish-
born, had traveled from New Orleans to Philadelphia and attempted
to become a citizen before the offense that precipitated his
detention).

     13
      Note that even INS v. St Cyr, heavily relied upon by
petitioner Hamdan and filled with language extolling the
importance of habeas corpus in challenging executive detention,
contains this limited description of the rights herein asserted:
"[i]n England prior to 1789, in the Colonies, and in this Nation
during the formative years of our Government, the writ of habeas
corpus was available to nonenemy aliens as well as to citizens,"
533 U.S. at 301.
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            The petitioner in Sommersett v. Stewart was not an

enemy alien but a slave challenging his enslavement.  Unlike

Hamdan, James Sommersett was temporarily residing in England, and

the asserted unlawfulness of his confinement stemmed from the

arguable illegality of slavery in England.  98 Eng. Rep. 499 (K.

B. 1772).    In the Case of the Hottentot Venus, Saartje Baartman ­

a South African exhibited in a cage in Piccadilly, England ­ was

a non-enemy foreigner from the British Protectorate of South

Africa who could invoke the protection of the Crown by right.

104 Eng. Rep. 344 (K. B. 1810).

            In American habeas actions, alien petitioners have had

access to the writ largely because they resided, lawfully or

unlawfully, on American soil.  See, e.g., The Japanese Immigrant

Case, 189 U.S. 86, 101 (1903) (alien, while alleged to have

entered the country unlawfully, nevertheless had made himself "a

part of its population"); Yick Wo v. Hopkins, 118 U.S. 356 (1886)

(petitioner had been a legal resident of the United States for

over twenty years).  Hamdan has been a prisoner of the United

States for five years.  He has lived nearly all of that time

within the plenary and exclusive jurisdiction of the United

States, but he has not become a part of the population enough to

separate himself from the common law tradition generally barring

non-resident enemy aliens from accessing courts in wartime.  See

Ex parte Kawato, 317 U.S. 69, 72-75 (1942) (describing common law


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rule).    His detention in Guantanamo, in other words, has not

meaningfully "increase[d] his identity with our society."

Eisentrager v. Johnson, 339 U.S. 763, 770 (1950).

            It is the Eisentrager case that appears to provide the

controlling authority on the availability of constitutional

habeas to enemy aliens. ^14  In that case, petitioners were Germans

living in China in the aftermath of World War II. Id. at 765.

After trial before a United States Military Commission in China,

they were convicted of war crimes and sent to occupied Germany to

serve their sentences. Id. at 766.  The Supreme Court held that

they had no constitutional entitlement to habeas relief in U.S.

Courts because "at no relevant time were [they] within any

territory over which the United States is sovereign, and the

scenes of their offense, their capture, their trial, and their

punishment were all beyond the territorial jurisdiction of any

court of the United States." Id. at 778.

            Hamdan contends that several of the differences between

the Guantanamo petitioners and the Eisentrager petitioners are

constitutionally significant.  First, he notes that the

Eisentrager petitioners admitted that they were enemy aliens,

whereas petitioner Hamdan has always objected to his


     14
       Eisentrager was unimportant to the statutory habeas
question presented the last time Hamdan was here, as the Supreme
Court had made plain in Rasul, 542 U.S. at 475-76, and was not
dispositive on the questions presented in the earlier Hamdan
case, 126 S.Ct. at 2794.
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classification as an unlawful enemy combatant [78 at 25].  Here,

however, as in Eisentrager (where petitioners amended their

petitions to assert that they had really been civilian employees)

Hamdan's "exact affiliation is . . . for our purposes,

immaterial."   Eisentrager, 339 U.S. at 765.  Second, Hamdan

claims that, unlike the Eisentrager petitioners, he has never

been afforded access to a proper tribunal.  That observation is

obviously true, thus far, but Hamdan is to face a military

commission newly designed, because of his efforts, by a Congress

that finally stepped up to its responsibility, acting according

to guidelines laid down by the Supreme Court.  It is difficult to

see how continued habeas jurisdiction could make further

improvements in his tribunal.  Third, Hamdan argues that, after

several years in a territory within "the complete jurisdiction

and control" of the United States, his relationship with the

United States is more extensive than those of petitioners in

Eisentrager.  See Rasul, 542 U.S. at 480.  This third distinction

merits further consideration.

          Hamdan's lengthy detention beyond American borders but

within the jurisdictional authority of the United States is

historically unique.  Nevertheless, as the government argues in

its reply brief, his connection to the United States lacks the

geographical and volitional predicates necessary to claim a

constitutional right to habeas corpus [85-1 at 15].  Petitioner


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has never entered the United States and accordingly does not

enjoy the "implied protection" that accompanies presence on

American soil.   Eisentrager, 339 U.S. at 777-79.  Guantanamo Bay,

although under the control of the United States military, remains

under "the ultimate sovereignty of the Republic of Cuba."  Rasul,

U.S. 542 at 471.   Presence within the exclusive jurisdiction and

control of the United States was enough for the Court to conclude

in Rasul that the broad scope of the habeas statute covered

Guantanamo Bay detainees, but the detention facility lies outside

the sovereign realm, and only U.S. citizens in such locations may

claim entitlement to a constitutionally guaranteed writ.  United

States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936).

There is no dispute, moreover, that Hamdan's presence within the

exclusive jurisdiction of the United States has been involuntary.

Presence within the United States that is "lawful but involuntary

[ ] is not of the sort to indicate any substantial connection

with our country" that would justify the invocation of a

constitutional right to habeas corpus, United States v.

Verdugo-Urquidez, 494 U.S. 259, 271 (1990). ^15


     15
      My ruling does not address whether and to what extent
enemy aliens may invoke other constitutional rights; I find only
that the Suspension Clause does not guarantee the right to
petition for habeas corpus to non-resident enemy aliens captured
and detained outside the United States.

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                                Conclusion

           Congress's removal of jurisdiction from the federal

courts was not a suspension of habeas corpus within the meaning

of the Suspension Clause (or, to the extent that it was, it was

plainly unconstitutional, in the absence of rebellion or

invasion), but Hamdan's statutory access to the writ is blocked

by the jurisdiction-stripping language of the Military

Commissions Act, and he has no constitutional entitlement to

habeas corpus. ^16   Hamdan's habeas petition must accordingly be

dismissed for want of subject matter jurisdiction.




                                   JAMES ROBERTSON
                             United States District Judge


     16
       Having been divested of jurisdiction over Hamdan's habeas
petition, I do not reach his other arguments that the MCA is
unconstitutional ­ because it does not provide an adequate
substitute for habeas review, because it violates the principle
of separation of powers by instructing the courts to ignore the
Supreme Court's ruling that the Geneva Conventions afford
judicially enforceable protections to petitioner Hamdan, because
it is an unlawful Bill of Attainder, and because it violates
Equal Protection.
                                  - 22 -

posted by cboldt  # 12/14/2006 09:10:00 AM