Footnotes edit
1 ↑ Section 7(a) of the MCA eliminates jurisdiction over nonhabeas claims by aliens detained as enemy combatants. That alone is sufficient to require dismissal even of pending non-habeas claims. See Bruner v. United States, 343 U.S. 112, 116-17 (1952). Section 7(b) reinforces this result.
2 ↑ Without exception, both the proponents and opponents of section 7 understood the provision to eliminate habeas jurisdiction over pending cases. See, e.g., 152 Cong. Rec. S10357 (daily ed. Sept. 28, 2006) (statement of Sen. Leahy) (“The habeas stripping provisions in the bill go far beyond what Congress did in the Detainee Treatment Act …. This new bill strips habeas jurisdiction retroactively, even for pending cases.”); id. at S10367 (statement of Sen. Graham) (“The only reason we are here is because of the Hamdan decision. The Hamdan decision did not apply … the [DTA] retroactively, so we have about 200 and some habeas cases left unattended and we are going to attend to them now.”); id. at S10403 (statement of Sen. Cornyn) (“[O]nce … section 7 is effective, Congress will finally accomplish what it sought to do through the [DTA] last year. It will finally get the lawyers out of Guantanamo Bay. It will substitute the blizzard of litigation instigated by Rasul v. Bush with a narrow DC Circuit-only review of the [CSRT] hearings.”); id. at S10404 (statement of Sen. Sessions) (“It certainly was not my intent, when I voted for the DTA, to exempt all of the pending Guantanamo lawsuits from the provisions of that act. * * * Section 7 of the [MCA] fixes this feature of the DTA and ensures that there is no possibility of confusion in the future. … I don’t see how there could be any confusion as to the effect of this act on the pending Guantanamo litigation. The MCA’s jurisdictional bar applies to that litigation ‘without exception.’”); 152 Cong. Rec. H7938 (daily ed. Sept. 29, 2006) (statement of Rep. Hunter) (“The practical effect of [section 7] will be to eliminate the hundreds of detainee lawsuits that are pending in courts throughout the country and to consolidate all detainee treatment cases in the D.C. Circuit.”); id. at H7942 (Rep. Jackson-Lee) (“The habeas provisions in the legislation are contrary to congressional intent in the [DTA]. In that act, Congress did not intend to strip the courts of jurisdiction over the pending habeas [cases].”).
3 ↑ Congress has rarely found it necessary to emphasize the absence of exceptions to a clear rule. Indeed, the use of “without exception” to emphasize the word “all” occurs in only one other provision of the U.S. Code. See 48 U.S.C. § 526(a).
4 ↑ If section 7(b) did not include habeas cases among cases “which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention,” it would be inconsistent with section 7(a). Section 7(a) of the MCA first repeals jurisdiction “to hear or consider an application for a writ of habeas corpus” by detainees. 28 U.S.C. § 2241(e)(1). It then repeals jurisdiction over “any other action … relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement” of a detainee, id. § 2241(e)(2) (emphasis added), thus signifying that Congress considered habeas cases as cases relating to detention, as indeed they are.
5 ↑ The detainees suggest that federal courts retain some form of residual common law jurisdiction over habeas petitions. Ex parte Bollman, 8 U.S. (4 Cranch) 75, 95 (1807), holds the opposite. See Ex parte McCardle, 74 U.S. 506 (1868). “Jurisdiction of the lower federal courts is … limited to those subjects encompassed within a statutory grant of jurisdiction.” Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701 (1982). The observations about common law habeas in Rasul, 542 U.S. at 481-82, referred to the practice in England. Even if there were such a thing as common law jurisdiction in the federal courts, § 2241(e)(1) quite clearly eliminates all “jurisdiction to hear or consider an application for a writ of habeas corpus” by a detainee, whatever the source of that jurisdiction.
In order to avoid “serious ‘due process,’ Suspension Clause, and Article III problems,” the detainees also urge us not to read section 7 of the MCA to eliminate habeas jurisdiction over Geneva Convention claims. But that reading is unavoidable. Section 7 is unambiguous, as is section 5(a), which states that “No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding … as a source of rights in any court of the United States.”
6 ↑ During this period, state courts often employed the writ of habeas corpus to inquire into the legality of federal detention. The Supreme Court later held in Ableman v. Booth, 62 U.S. (21 How.) 506 (1859), and Tarble’s Case, 80 U.S. (13 Wall.) 397 (1871), that state courts had no such power.
7 ↑ The dissent claims that the difference between Schiever and the detainees is “exceedingly narrow,” Dissent at 14, because Schiever was brought involuntarily to Liverpool. For this proposition, the dissent cites United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990). Verdugo-Urquidez was a Fourth Amendment case. Obviously, it had nothing to say about habeas corpus in Eighteenth Century England.
8 ↑ The detainees are correct that they are not “enemy aliens.” That term refers to citizens of a country with which the United States is at war. See Al Odah, 321 F.3d at 1139-40. But under the common law, the dispositive fact was not a petitioner’s enemy alien status, but his lack of presence within any sovereign territory.
9 ↑ The dissent claims the lack of any case on point is a result of the unique combination of circumstances in this case. But extraterritorial detention was not unknown in Eighteenth Century England. See Holdsworth, supra, at 116-17; Duker, supra, at 51-53. As noted, supra, these prisoners were beyond the protection of the law, which included access to habeas corpus. And Eisentrager (and the two hundred other alien petitioners the court noted, see 339 U.S. at 768 n.1) involved both extraterritorial detention and alien petitioners.
10 ↑ The Rasul decision, resting as it did on statutory interpretation, see 542 U.S. at 475, 483-84, could not possibly have affected the constitutional holding of Eisentrager. Even if Rasul somehow calls Eisentrager’s constitutional holding into question, as the detainees suppose, we would be bound to follow Eisentrager. See Rodriguez de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477, 484-85 (1989).
11 ↑ The text of the Suspension Clause also does not lend itself freely to extraterritorial application. The Clause permits suspension of the writ only in cases of “Rebellion or Invasion,” neither of which is applicable to foreign military conflicts. See Hamdi v. Rumsfeld, 542 U.S. 507, 593-94 (2004) (Thomas, J., dissenting); see also J. Andrew Kent, A Textual and Historical Case Against a Global Constitution, 95 Geo. L.J. (forthcoming 2007) (manuscript at 59-60, available at http://ssrn.com/abstract=888602).
12 ↑ James Madison’s plan was to insert almost the entire Bill of Rights into the Constitution rather than wait for amendment. His proposed location of the Bill of Rights? Article I, Section 9 – next to the Suspension Clause. See Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 700-01 & n.437 (1999).
13 ↑ See South Carolina v. Katzenbach, 383 U.S. 301, 323-24 (1966) (“[C]ourts have consistently regarded the Bill of Attainder Clause of Article I and the principle of the separation of powers only as protections for individual persons and private groups ….”) (citing United States v. Brown, 381 U.S. 437 (1965); Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866)); see also Wilkinson v. Dotson, 544 U.S. 74, 82 (2005); Weaver v. Graham, 450 U.S. 24, 28-29 (1981); Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 468-69 (1977); Shabazz v. Gabry, 123 F.3d 909, 912 (6th Cir. 1997).
14 ↑ Accord Jay S. Bybee, Common Ground: Robert Jackson, Antonin Scalia, and a Power Theory of the First Amendment, 75 Tul. L. Rev. 251, 318, 321 (2000) (“[W]e could easily describe [Article I,] Section 9 as a bill of rights for the people of the United States.”).
15 ↑ See Supplemental Br. of the Federal Parties Addressing the Detainee Treatment Act of 2005 53-54 (“This Court can and should convert the pending appeals into petitions for review under [DTA section] 1005(e)(2).”).
16 ↑ See The Guantanamo Detainees’ Supplemental Br. Addressing the Effect of the Supreme Ct.’s Op. in Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), on the Pending Appeals 8-9 (“The detainees in the pending petitions challenge the lawfulness of their detentions – not the subsequent CSRT decisions ….”); Corrected Supplemental Br. of Pet’rs Boumediene, et al., & Khalid Regarding Section 1005 of the Detainee Treatment Act of 2005 56-59 (“Nothing in the [DTA] authorizes the Court to ‘convert’ Petitioners’ notices of appeal of the district court’s judgment into original petitions for review of CSRT decisions under section 1005(e)(2) of the Act.”); The Guantanamo Detainees’ Corrected Second Supplemental Br. Addressing the Effect of the Detainee Treatment Act of 2005 on this Ct.’s Jurisdiction over the Pending Appeals 43-44 (“[T]his court should not convert these petitions into petitions for review under the DTA as the government suggests.”).