Petitioner, v. Respondents. - Center for Justice and Accountability

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14judicial review for defendants with lesser sentences. Inaddition, the Executive may unilaterally suspend the rightto review of a conviction indefinitely in any case by refusingto approve a verdict, thereby preclud-ing it from being“final.” Nov. 13, 2001 Mil. Order, § 4(c)(8).Even in cases where review is eventually provided,precluding all pretrial judicial review of claims challengingthe very jurisdiction and legitimacy of the Commissions is,in itself, a substantial departure from habeas tradition. See,e.g., Quirin, 317 U.S. at 19 (convening special session to hearpretrial challenge to jurisdiction of commission “withoutany avoidable delay” due to the “public importance of thequestions raised” and the Court’s “duty”). This departureraises serious constitutional questions, discussed below. 11All review under the DTA is severely constrained,precluding numerous constitutional and other claims thatcould otherwise be made in a traditional habeas petition,including the very claims this Court has granted certiorari todecide. Although this Court has undertaken to decidewhether the commissions are lawfully constituted andcomply with the terms of the Geneva Convention, the DTA11 In the very case the government cites for abstention, this Courtconfirmed that a petitioner who has “raised substantial argumentsdenying the right of the military to try him at all” need not exhaust theremedies afforded him by the military before filing a habeas petition.Schlesinger v. Councilman, 420 U.S. 738, 763 (1975 (citing Noyd v. Bond, 395U.S. 683, 696 n.8 (1969)); accord. United States ex rel. Toth v. Quarles, 350 U.S.11 (1955); Parisi v. Davidson, 405 U.S. 34, 41-42 (1972) (rejecting abstentionfrom a habeas claim since “the relief the petitioner seeks—discharge as aconscientious objector” was not “available to him with reasonablepromptness and certainty through the machinery of the military judicialsystem”); cf. Duro v. Reina, 495 U.S. 676 (1990) (granting pretrial habeaspetition by Native American prosecuted by another tribe). See infra pp. 22.Precisely because the abstention question is integrally bound up withthe merits of Hamdan’s challenge, the Motion cannot be assessed apartfrom the merits. If Hamdan’s challenge is like Abney v. United States, 431U.S. 651, 662 (1977), as the courts below both held, any legislativealteration of his right to bring it obviously affects substantive rights. Oncean Act of Congress alters rights, it is not subject to the general“jurisdictional” presumptions Respondents invoke. At the very least, theCourt should consider the Motion alongside the merits. Doing so willprovide context that will inform the Court’s judgment as to the Motion.
15permits the D.C. Circuit to determine only “whether thefinal decision was consistent with the standards andprocedures specified” in a DOD military order that itselfexplicitly guarantees no rights (Pet. Br. 3), and “whether theuse of such standards and procedures to reach the finaldecision is consistent with the Constitution and laws of theUnited States.” § 1005(e)(3)(D). Nothing in this languageauthorizes the court of appeals to determine whether thetribunals are lawfully constituted, whether petitioner fallswithin their jurisdiction, or whether the commission isconsistent with an international treaty. And although theGovernment argues in general terms that the DTA providesan adequate substitute for review by habeas or mandamus,see Mo. Dis. 22, it also asserts that the provisions of the Act“do more than remove jurisdiction, but…also limit the scopeof cognizable claims,” id. at 19 n.9, all the while taking painsto avoid stating that petitioner’s claims would fall within thescope of review afforded under that statute. The limitedscope of review only further supports the argument thatCongress did not intend to apply the DTA’s jurisdictionstrippingprovisions to this case. Otherwise, Congress notonly would have foreclosed this Court’s jurisdiction to hearHamdan’s claims, but it would have forever prejudged themerits of the questions on which this Court grantedcertiorari, an unlikely proposition in the abstract, and awholly unwarranted conclusion in light of the absence ofany clear congressional intent to that effect.The cases relied upon by the government bear not even apassing resemblance to the DTA in this respect. All involved“[s]tatutes merely addressing which court shall havejurisdiction to entertain a particular cause of action” since“[s]uch statutes affect only where a suit may be brought, notwhether it may be brought at all.” Hughes Aircraft Co. v.United States ex rel. Schumer, 520 U.S. 939, 951 (1997) (internalcitations omitted). Such statutes “usually ‘take[] away nosubstantive right but simply change[] the tribunal that is tohear the case.’” Id. (quoting Landgraf, 511 U.S. at 274). 12 Thus,12 The government, ignoring the distinction drawn in Hughes Aircraft,cites Republic of Austria v. Altmann, 541 U.S. 677, 693 (2004). But Altmann
Page 3 and 4: iiTABLE OF AUTHORITIESCasesAbney v.
Page 5 and 6: ivStanley v. Schwalby, 162 U.S. 255
Page 7 and 8: vi151 Cong. Rec. S14272 (Dec. 21, 2
Page 9 and 10: INTRODUCTIONThis case addresses the
Page 11 and 12: 3this Court will clarify the law at
Page 13 and 14: 5so doing, open the door to any num
Page 15 and 16: 7This would be so if in the “roug
Page 17 and 18: 9The habeas prohibition in the Grah
Page 19 and 20: 11Passage. Mr. Kyl. I would like to
Page 21: 132. The cases the government relie
Page 25 and 26: 17This Court has long presumed pros
Page 27 and 28: 19half-century, at least) by relyin
Page 29 and 30: 21expertise.” Id. at 212. The ade
Page 31 and 32: 23have received “final decisions
Page 33 and 34: 25Reading the Act to preclude this
Page 35 and 36: 27“Congress concerned enough to b
Page 37 and 38: 29This reading of the statute is co
Page 39 and 40: 31will there be any further proceed
Page 41 and 42: 33tution to the extent their claims
Page 43 and 44: 35the establishment of a commission
Page 45 and 46: 37reach any constitutional question
Page 47 and 48: 39In any event, the DTA fails even

Petitioner, v. Respondents. - Center for Justice and Accountability

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