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

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32III. To the Extent that the DTA Deprives This Court ofJurisdiction, It Is UnconstitutionalTo read the DTA as the government proposes wouldrender it unconstitutional. Even “[t]he fact that this Courtwould be required to answer the difficult question of whatthe Suspension Clause protects is in and of itself a reason toavoid answering the constitutional questions that would beraised by concluding that review was barred entirely.” St.Cyr, 533 U.S. at 301 n.13. 32A. Congress Did Not Constitutionally SuspendHamdan’s Right To Petition For Habeas CorpusThe DTA cannot deprive Hamdan of his constitutionalright to habeas corpus. “Habeas corpus is…a writantecedent to statute,…throwing its root deep into thegenius of our common law….The writ appeared in Englishlaw several centuries ago [and] became an integral part ofour common-law heritage by the time the Colonies achievedindependence.” Rasul, 542 U.S. at 473-74 (citations omitted).Our Founders took care to ensure that the availability ofhabeas was not dependent upon executive or legislativegrace. See, e.g., St. Cyr, 533 U.S. 304 n.24 (noting SuspensionClause protects against loss of right to pursue habeas claimby “either the inaction or the action of Congress”). Thus, theConstitution’s right to habeas relief exists even in theabsence of statutory authorization, and may be suspendedonly by explicit congressional action and only under limitedconditions. See Johnson v. Eisentrager, 39 U.S. 763, 767-68(1950) (assuming that, in the absence of statutory right ofhabeas, petitioners could bring claim directly under Consti-32 It might be argued that the government’s reading of the DTA ispreferable because it allows courts to avoid adjudicating the legality ofcommissions. Such reasoning is foreclosed by the many cases that requireclear statements for jurisdictional repeals, even where constitutionalchallenges to statutes are at issue. See St. Cyr, 533 U.S. at 299. It is also intension with Quirin—and for good reason. Petitioner is not a plaintiffseeking money damages. He is a defendant in a proceeding where thegovernment seeks to deprive him of all the liberty he has for the rest of hislife. The remedy for an Executive that seeks to avoid adjudication of aparticular constitutional question is to forgo the prosecution in the specifictribunal. See United States v. Nixon, 418 U.S. 683, 694-96 (1974).
33tution to the extent their claims fell within the scope ofhabeas protected by the Suspension Clause); Rasul, 542 U.S.at 473-78. Because Congress has not invoked its Suspensionpower, and because any such attempt in these circumstanceswould be invalid, the district court retains jurisdiction toconsider Hamdan’s habeas petition even if Congress haswithdrawn access to habeas previously authorized by statute.1. If Congress intends to implement its Suspension Clausepower, it must do so with unmistakable clarity. See St. Cyr,533 U.S. at 298-99. Nothing here meets that requirement. 33Congress has only suspended the writ four times; in each,Congress invoked its Suspension power, each time using theverb “suspend.” See Natl. Security Ctr. Br. 26-30. Simplywithdrawing a statutory basis for habeas is not a sufficientindication of Congress’ intent. Cf. St. Cyr, 533 U.S. at 298-300.2. The DTA should not be read as an attempted exerciseof the Suspension Clause power for the additional reasonthat any such attempt clearly would be invalid. Congresslacks carte blanche power to suspend the writ at will, even intimes of open war. Instead, the Constitution permits asuspension only when in “Cases of Rebellion or Invasion thepublic Safety may require it.” U.S. CONST. art. I, § 9, cl. 2. Inenacting the DTA, Congress made no such finding.In addition, even during actual “Rebellion or Invasion,”this Court has required that congressional suspension belimited in scope and duration in ways that the DTA is not.First, Congress must tailor its suspension geographically tojurisdictions in rebellion or facing imminent invasion. Thus,in Ex parte Milligan, this Court considered the Act of March3d, 1863, which suspended habeas in rebelling territories.Because Milligan was a resident of Indiana, a State not inrebellion, his right to habeas was protected. 71 U.S. 2, 126(1866). 34 Like Indiana, “Guantanamo Bay…is…far removed33 “No one contends that the congressional Authorization for Use ofMilitary Force…is an implementation of the Suspension Clause.” Hamdi,542 U.S. at 554 (Scalia, J. dissenting).34 The Court reached this conclusion even though Congress hadauthorized a broader suspension. See Act of Mar. 3, 1863, 12 Stat. 755(authorizing the President to “suspend the privilege of the writ of habeascorpus in any case throughout the United States, or any part thereof”).
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 and 22: 132. The cases the government relie
Page 23 and 24: 15permits the D.C. Circuit to deter
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: 31will there be any further proceed
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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