In the Supreme Court of the United States, Summaries of Law

Download In the Supreme Court of the United States and more Summaries Law in PDF only on Docsity! No. 05-184 In the Supreme Court of the United States ___________ SALIM AHMED HAMDAN, Petitioner, v. DONALD H. RUMSFELD, Respondent. _____________ ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT _____________ Brief of Amici Curiae Norman Dorsen, Frank Michelman, Burt Neuborne, Judith Resnik, and David Shapiro in Support of Petitioner [Supreme Court Appellate Jurisdiction] _____________ Burt Neuborne Counsel of Record 40 Washington Square South New York, NY 10012 (212) 998-6172 i TABLE OF CONTENTS Page INTRODUCTION............................................................... 1 INTEREST OF AMICI ....................................................... 1 SUMMARY OF ARGUMENT........................................... 1 STATEMENT OF THE CASE ........................................... 3 ARGUMENT ...................................................................... 7 I. THE GRAHAM-LEVIN AMENDMENT DOES NOT STRIP THE SUPREME COURT OF JURISDICTION TO DECIDE THE MERITS OF THIS APPEAL............................................................. 7 A. The Text of 1005(e) is Inapplicable to This Pending Appeal..................................................... 7 B. Section 1005(e) Contains No Clear Statement of a Congressional Design to Deprive This Court of Appellate Jurisdiction Over This Appeal ................................................................. 15 C. The Constitution Bars Congress From Depriving This Court of Appellate Jurisdiction Over This Appeal................................................ 18 II. CONGRESS HAS NOT AUTHORIZED THE PRESIDENT TO TRY PETITIONER BEFORE A MILITARY COMMISSION...................................... 24 CONCLUSION ................................................................. 30 iv Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993).................................10 Quern v. Jordan, 440 U.S. 332 (1979).................................29 Ex parte Quirin, 317 U.S. 1 (1942)................................23, 27 Rasul v. Bush, 542 U.S. 466 (2004) .....................................22 Sugarman v. Dougall, 413 U.S. 634 (1973).........................24 Swint v. Chambers County Commission, 514 U.S. 35 (1995) .............................................................................10 The Prize Cases, 67 U.S. (2 Black) 635 (1862) ...................26 United States v. Klein, 80 U.S. (13 Wall.) 128 (1871) ..........................................................13, 19, 22 United States v. New York Times, 403 U.S. 713 (1971) .............................................................................27 United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103 (1801) ......................................................................13 Webster v. Doe, 486 U.S. 592 (1988)...................................17 Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1868) ....12, 17, 19, 20 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ..........................................................25, 27, 28 Zadvydas v. Davis, 533 U.S. 678 (2001)..............................19 DOCKETED CASES Padilla v. Hanft, No. 05-6396 (4th Cir. Dec. 21, 2005).................................................................................6 United States v. Hassoun et al., No 04-60001-CR- Cooke (S.D. Fla.) (filed Nov. 17, 2005) (unsealed Nov. 22, 2005)..................................................................5 v FEDERAL STATUTES AND LEGISLATIVE HISTORY 28 U.S.C. 1254(1)...........................................................14, 20 151 Cong. Rec. S14,165 (Dec. 20, 2005).............................14 151 Cong. Rec. S14,241 (Dec. 21, 2005).............................14 151 Cong. Rec. S14,256 (Dec. 21, 2005).............................15 The Detainee Treatment Act of 2005, Pub. L. No. 109-148, enacted as title X of the Defense Ap- propriation Act, H.R. 2863, 109th Cong., 1st Sess. (Dec. 30, 2005) ..............................................passim Detention, Treatment, and Trial of Certain Non-Citi- zens in the War Against Terrorism, 66 Fed. Reg. 57,833, at § 1(e) (Nov. 13, 2001) ...................................17 Pub. L. No. 107-40, 115 Stat. 224 (2001) ..........................3, 4 MISCELLANEOUS Akhil R. Amar, The Two-Tiered Structure of the Ju- diciary Act of 1789, 138 U. Pa. L. Rev. 1499 (1990) .............................................................................19 Hart, The Power of Congress to Limit the Jurisdiction of the Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1364-65 (1953) .........................19 James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times, Dec. 16, 2005, at A1. ......................................................................4 Warren, The Supreme Court of the United States, 496-97 (rev. ed. 1935) ....................................................20 INTRODUCTION Pursuant to Supreme Court Rule 37, the undersigned Pro- fessors of Law respectfully submit this brief amici curiae in support of petitioner.1 INTEREST OF AMICI This is the first case since Ex parte McCardle to involve a possible attempt by Congress to abolish retroactively the Su- preme Court’s jurisdiction over a pending appeal. Because any such attempt would raise questions that go to the heart of our constitutional structure, and would in this case imperil an essential function of the Supreme Court, amici, professors of law who have devoted much of their careers to the study of the Constitution and the federal courts, respectfully submit this brief in support of the Court’s continuing jurisdiction over this appeal. SUMMARY OF ARGUMENT This Court has repeatedly ruled that the text of any statute purportedly eliminating the appellate jurisdiction of this Court, especially over a pending appeal, must speak in ex- plicit, unmistakable terms. Accordingly, since the text of Sec- tion 1005(e) and (h) of the Detainee Treatment Act of 2005 (also known as the Graham-Levin amendment) does not di- rectly refer to this Court’s appellate jurisdiction, the Court ought not to construe it as an attempt – the first in almost 150 years – to eliminate this Court’s appellate jurisdiction over a pending appeal. 1 The parties have consented in writing to the participation of amici herein. Their written consents have been filed with the Clerk of the Court. No party in this case authored the brief in whole or in part, or made any monetary contribution to its prepara- tion and submission. 4 powers of a battlefield commander to: (1) impose military preventive detention on persons denominated as “enemy combatants” in the war against terror;4 (2) prosecute alien- detainees at Guantanamo Bay accused of serious terrorist- related war crimes against the United States before military commissions empowered to mete out long prison sentences, even death; and (3) conduct warrantless wiretaps and email searches of international communications to and from the United States as a means of gathering “battlefield intelli- gence” for use against terrorists.5 Petitioner, a national of Yemen, has been detained at Guantanamo Bay since 2002 as an “enemy combatant.” On November 7, 2005, this Court granted a writ of certiorari to review petitioner’s challenge to the President’s legal authority to prosecute him before a military commission for alleged ter- rorist activities. Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir.), cert. granted, 125 S. Ct. 622 (2005).6 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. Pub. L. No. 107-40, 115 Stat. 224 (2001). 4 Given the unconventional nature of the “war,” the President has argued that, in detaining “enemy combatants,” he is not bound by the Geneva Conventions governing the treatment of prisoners of war. Hamdi v. Rumsfeld, 542 U.S. 507, 548-51 (2004) (Souter, J., joined by Justice Ginsburg, concurring in part, dissenting in part, and concurring in the judgment). 5 James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times, Dec. 16, 2005, at A1. 6 The President has formally charged petitioner with a single count of conspiracy to engage in terrorist activities. The latest ver- (continued) 5 Two weeks earlier, on October 25, 2005, a second peti- tioner, Jose Padilla, an American citizen taken into custody in the United States, had petitioned this Court for a writ of cer- tiorari to review the constitutionality of his prolonged military detention without trial. Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005), petition for cert. filed, October 25, 2005 (Docket No. 05-553). With the grant of certiorari in Hamdan, and the pendency of the certiorari petition in Padilla, this Court ap- peared poised to review the constitutionality of the Execu- tive’s assertion of power to detain, interrogate and prosecute accused terrorists outside the usual course of military or civil- ian justice. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province and duty of the judi- cial department to say what the law is.”). Faced with the prospect of imminent Supreme Court re- view, the Executive branch appears to have engaged in a con- certed effort to block this Court from reviewing the Padilla and Hamdan appeals. On November 22, 2005, after holding Padilla in military custody for 42 months on a shifting series of factual justifications, the United States unsealed a criminal indictment in an apparent effort to moot Padilla’s pending ap- peal to this Court. United States v. Hassoun et al., No 04- 60001-CR-Cooke (S.D. Fla.) (filed Nov. 17, 2005) (unsealed Nov. 22, 2005). The United States then filed a suggestion of mootness in this Court, as well as a motion in the 4th Circuit seeking to vacate the opinion below before this Court had an sion of the DOD order governing Guantanamo military commis- sions, dated August 31, 2005, is available at http://www.de- fenselink.mil/news/sep2005/d20050902order.pdf (last visited Jan. 4, 2006). 6 opportunity to consider Padilla’s pending certiorari petition. On December 21, 2005, the 4th Circuit panel denied the gov- ernment’s motion for leave to transfer Padilla to civilian cus- tody, and rebuffed the suggestion of mootness. Order, Padilla v. Hanft, No. 05-6396 (4th Cir. Dec. 21, 2005). Padilla’s cer- tiorari petition remains pending before this Court. In an effort to prevent Supreme Court review in this case, the Executive turned to Congress, seeking to condition the Executive’s acceptance of a proposed Congressional ban on extreme, physically coercive interrogation of detainees – a ban sponsored by Senator John McCain – on the elimination of Article III jurisdiction over Guantanamo Bay detainees.7 Congress balked at such extreme action, substituting Section 1005(e), which establishes a special procedure to review “fi- nal orders” of Guantanamo military commissions, and pro- spectively limits the jurisdiction of the lower courts over ha- beas corpus petitions and other “actions,” but makes no men- tion of the appellate jurisdiction of this Court. 7 See Statement of President, Dec. 30, 2005, available at http://www.whitehouse.gov/news/releases/2005/2005/12/2005123 0-8.html (last visited January 4, 2006). 9 (3) Sections 1005(h)(1) and (2) establish the effective dates of the relevant provisions – (h)(1) provides that the trial court jurisdictional limitations imposed by (e)(1) become ef- fective “on the date of the enactment of this Act;” while (h)(2) provides that the final order/exhaustion requirements of (e)(2) and (e)(3) regarding appeals from “final decisions” “shall ap- ply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.” 11 The plain meaning of the three textual components im- poses a “final decision/exhaustion” requirement on appeals from the day-to-day rulings of a military commission, but im- poses no restrictions on this Court’s appellate jurisdiction to resolve this pending challenge to the constitutionality of the commissions themselves. The circuit court below, in an opinion issued prior to the enactment of 1005(e), held that petitioner was not obliged to submit to the jurisdiction of a military commission before seeking judicial review of the tribunal’s legal right to try him in the first place, Hamdan, 415 F.3d at 35-37. In reaching this conclusion, the Court of Appeals applied settled Supreme Court precedent recognizing a distinction between a challenge to the day-to-day operations of a tribunal, and a challenge to the tribunal’s power to try the litigant at all. Abney v. United States, 431 U.S. 651 (1977) (immediate consideration of dou- ble jeopardy defense).12 11 The text of 1005(h) is set forth infra at n.13. 12 In deferring consideration of whether military commissions violate Article 3 of the Geneva Convention, the D.C. Circuit ap- parently confused petitioner’s argument that military commissions lack fundamental guaranties of fairness required to satisfy the Ge- (continued) 10 Not surprisingly, Congress, in enacting the Graham-Levin amendment, incorporated just such a distinction between ap- peals from a Guantanamo tribunal’s day-to-day operations (which must be deferred until the tribunal’s entry of a final decision), and challenges to the President’s power to try peti- tioner before a military commission at all (which are omitted from the final decision/exhaustion requirement). Section 1005 (e)(3)(A), (B) and (C) vests exclusive juris- diction in the D.C. Circuit to review “final decisions” of Guantanamo Bay Military Commissions. Under (e)(3)(D), however, appeals to the D.C. Circuit from such a “final deci- sion” are explicitly limited to claims that the military com- mission failed to follow applicable DOD “standards and pro- cedures,” or that “the use of such standards and procedures to reach the final decision” violated the Constitution or laws of the United States. Accordingly, while (e)(3) imposes a final decision/exhaustion requirement on appeals to the D.C. Cir- cuit from a military commission’s day-to-day operations, (e)(3) is silent about a detainee’s challenge to the President’s neva Convention’s substantive requirements of jurisdiction with an attack on the commission’s day-to-day rulings. Under the reason- ing of the Circuit, Article 3 issues are properly before this Court because they implicate the President’s power to create the tribunals in the first instance. See Nixon v. Fitzgerald, 457 U.S. 731 (1982) (immediate consideration of Presidential immunity); Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) (immediate consideration of sovereign immunity); Mitchell v. Forsyth, 472 U.S. 511 (1985) (immediate consideration of Attor- ney General’s immunity); Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993) (immediate considera- tion of 11th Amendment immunity); Swint v. Chambers County Comm’n, 514 U.S. 35 (1995) (immediate consideration of quali- fied immunity). 11 authority to try alleged terrorists before military commissions in the first place. Since the scope of a “claim whose review is governed by” (e)(2) and (e)(3) is explicitly limited in subparagraph (e)(3)(D) to: “consideration of whether the final decision was consistent with the standards and proce- dures specified in [Military Order No. 1, dated August 31, 2005 (or any successor military order)]; and * * * whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States,” the text of 1005(e) tracks the very distinction recognized by the Court of Appeals below – all pending and future judicial challenges to the day-to-day rulings of a Guantanamo mili- tary commission must follow the final decision/exhaustion route set forth in paragraph (e)(3),13 but challenges to the le- gality a Guantanamo Bay military commission’s very exis- tence fall outside the restrictive appeals structure established by (e)(3) and are governed by the prospective restrictions imposed by (e)(1). In fact, a detainee’s broad challenge to Presidential au- thority falls, not under the narrowly defined scope of (e)(2) or (e)(3), but under the provisions of (e)(1). The jurisdictional 13 Each of Hamdan’s challenges questions the jurisdiction of a military commission to proceed at all, either as a matter of the Constitution, or under governing principles of international law, and, therefore, fall within this Court’s appellate jurisdiction. See n. 12, supra. 14 corpus in Hamdan were issued prior to the enactment of 1005(e), (e)(1) has no effect on this Court’s appellate jurisdic- tion. Accordingly, since neither (e)(1), (e)(2) nor (e)(3) inter- feres with this Court’s exercise of 28 U.S.C. 1254(1) jurisdic- tion, Senator Levin, co-author of the amendment, was correct when he assured his Senate colleagues that 1005(e) does not impair the Supreme Court’s jurisdiction over this appeal.16 fecting an unconstitutional suspension of the writ. See Lindh v. Murphy, 521 U.S. 320 (1997). 16 Numerous Senators expressed confidence that, given the text, the amendment would not strip this Court of jurisdiction to hear the Hamdan appeal. See 151 Cong. Rec. S14,165, S14,170 (Dec. 20, 2005) (Senator Kennedy: “Section 1405 * * * leaves com- pletely undisturbed a challenge to the military commission process now pending in the Supreme Court in Hamdan v. Rumsfeld. The sponsors of the original amendment made it clear on the floor of the Senate that the provision has prospective application only, which is what my colleagues and I understood to be the drafters’ intent.”); 151 Cong. Rec. S14,241, S14,245 (Dec. 21, 2005) (Sena- tor Leahy: “Since the Graham-Levin amendment would not retro- actively apply to pending cases, the Supreme Court will still have the opportunity to determine the legitimacy of the military com- missions, as being litigated in the case of Hamdan v. Rumsfeld.”); 151 Cong. Rec. at S14,252 (Senator Durbin: “A critical feature of this legislation is that it is forward looking. A law purporting to require a Federal court to give up its jurisdiction over a case that is submitted and awaiting decision would raise grave constitutional questions. The amendment’s jurisdiction-stripping provisions clearly do not apply to pending cases, including the Hamdan v. Rumsfeld case, which is currently pending before the Supreme Court.”); 151 Cong. Rec. at S14,253 (Senator Feingold: “The pro- vision on judicial review of military commissions covers only ‘fi- nal decisions’ of military commissions, and only governs chal- lenges brought under that provision * * * Therefore, it is my un- derstanding that this provision would not affect the ongoing litiga- (continued) 15 B. Section 1005(e) Contains No Clear State- ment of a Congressional Design to Deprive This Court of Appellate Jurisdiction Over This Appeal Despite the text of Subsections 1005(e) and (h), the Ex- ecutive may argue that the Graham-Levin amendment strips tion in Hamdan v. Rumsfeld before the Supreme Court * * * .” ); 151 Cong. Rec. S14,256, S14,257-58 (Dec. 21, 2005) (Senator Levin: “A House proposal during the conference contained lan- guage stating that the habeas stripping provision ‘shall apply to any application or other action that is pending on or after the date of the enactment of this Act.’ We objected to this language and it was not included in the conference report. Rather, the conference report states that the provision ‘shall take effect on the date of the enactment of this Act.’. These words have their ordinary meaning – that the provision is prospective in its application, and does not apply to pending cases. By taking the position, we preserve comity between the judicial and legislative branches and avoid repeating the unfortunate precedent in Ex parte McCardle, in which Con- gress intervened to strip the Supreme Court of jurisdiction over a case which was pending before that Court.” ); 151 Cong. Rec. at S14,275 (Senator Reid: “* * * I am pleased that Senator Graham’s original language was altered so that the Supreme Court would not be divested of jurisdiction to hear the pending case of Hamden v. Rumsfeld * * * I believe that this act has no impact on the Su- preme Court’s ability to consider Hamdan’s challenge at this pre- conviction stage of the military commission proceedings). See also 151 Cong. Rec. at S14,272 (Senator Kerry). But see 151 Cong Rec. at S14,263 (colloquy between Senators Graham and Kyl noting the retroactive application of 1005(e)). President Bush, in signing the Act, asserted its retroactive application to pending cases. See Statement of President, Dec. 30, 2005, available at http://www.whitehouse.gov/news/releases/2005/2005/12/2005123 0-8.html (last visited January 4, 2006). Of course, staged collo- quies and self-serving Presidential declarations cannot override the plain meaning of the text. 16 this Court of jurisdiction to consider Hamdan’s pending ap- peal. The Executive may argue that petitioner’s pending chal- lenge to the President’s authority to try him before a military commission falls within Section 1005(e)(3), requiring deferral of this appeal until the eventual issuance of a “final decision” by the military commission. Alternatively, the Executive may acknowledge that a challenge to the President’s authority to try petitioner before a military commission is not encom- passed within a fair reading of the exclusive jurisdiction es- tablished in Section 1005(e)(3), and argue more broadly that since Section 1005(e)(1) prevents the issue from being raised at the trial level, the Graham-Levin amendment operates to strip the Article III courts of jurisdiction to review the Presi- dent’s authority in any forum, restricting Guantanamo detain- ees to the limited issues permitted by Section 1005(e)(3)(D). The government’s effort to shoehorn Hamdan’s challenge into the “final decision/exhaustion” procedure established by 1005(e)(3) would fail on two levels. First, reading (e)(3) as governing a challenge to the Presi- dent’s power to try petitioner before a military commission at all is implausible. The text of (e)(3)(D) explicitly limits (e)(3) appeals to questions of whether the final decision of a com- mission violated specific ‘standards and procedures’ imposed by Military Order #1, and whether the ‘use of such standards and procedures’ to reach a ‘final decision’ violated ‘the Con- stitution and laws of the United States.’ Nothing in the text of (e)(3) suggests that it is intended to authorize a broad chal- lenge to the President’s power to establish military commis- sions in the first place. 19 mission also renders the Graham-Levin amendment unconsti- tutional. INS v. St. Cyr, 533 U.S. 289 (2001); Zadvydas v. Davis, 533 U.S. 678 (2001). “Internal” constraints imposed by Article III, and “exter- nal” constraints imposed by the Suspension, Equal Protection, Due Process and Bill of Attainder Clauses deprive Congress of power to oust the Supreme Court of appellate jurisdiction over appeals by aliens detained by the military at the Guan- tanamo Bay detention facility, especially where, as here, Congress has also purported to strip the lower federal courts of jurisdiction to review the challenged activity. See United States v. Klein, 80 U.S. (13 Wall.) 128 (1871). See also Akhil R. Amar, The Two-Tiered Structure of the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499 (1990). No case has ever countenanced an effort to strip both this Court and the lower federal courts of original and appellate jurisdiction to pass on the constitutionality of Executive ac- tion in derogation of personal liberty. To do so would place the very structure of the Constitution at risk by attacking an “essential function” of the Supreme Court and the Article III judiciary. See Henry M. Hart, The Power of Congress to Limit the Jurisdiction of the Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1364-65 (1953). In Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868), this Court upheld a statute explicitly eliminating expedited appel- late jurisdiction over a pending appeal, but noted that the is- sue posed by the appeal was reviewable by the Court pursuant to an alternative appellate route. 74 U.S. at 515. Indeed, in Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1868), the Court ruled that 20 it possessed an alternative basis of jurisdiction to rule on the issues posed in McCardle.19 In Felker v. Turpin, 518 U.S. 651 (1996), Congress with- drew certiorari jurisdiction to review refusals by the courts of appeal to authorize a “successive” habeas corpus petition in a capital case. This Court sustained the limitation on its certio- rari jurisdiction, but only after noting an alternative basis of jurisdiction pursuant to the Court’s power to issue habeas corpus writs in defense of its appellate jurisdiction.20 Finally, in INS v. St. Cyr, 533 U.S. 289 (2001), Congress expanded the category of deportable aliens ineligible for dis- cretionary suspension of deportation. The Attorney General 19 In an action redolent of its current efforts to avoid judicial view in Padilla, the Executive ordered Yerger released from mili- tary custody, thereby mooting his habeas corpus challenge to mili- tary Reconstruction. See Warren, The Supreme Court of the United States, 496-97 (rev. ed. 1935). Under modern conceptions of mootness, this Court would be empowered to rule on the merits of Yerger’s claim. City of Erie v. Pap’s A.M., 529 U.S. 277, 288 (2000) (“voluntary cessation of a challenged practice does not de- prive a federal court of its power to determine the legality of the practice”). See also City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982) (same). 20 Since the text of 1005(e)(1) purports to deprive a “justice” of the power to issue a writ of habeas corpus on behalf of an alien detained at Guantanamo Bay, it is possible that the residual habeas corpus jurisdiction invoked in Yerger, Felker and St Cyr would be unavailable in this case. There is, however, no need in this case to resort to habeas corpus jurisdiction in aid of appellate jurisdiction because Congress has made no effort to limit the Court’s appellate jurisdiction under 28 U.S.C. 1254(1). In the absence of a textual effort to limit this Court’s appellate jurisdiction, this case poses an even stronger argument for the continued exercise of appellate ju- risdiction than in Yerger, Felker and St. Cyr. 21 read the complex statute broadly to eliminate power to con- sider discretionary suspension in connection with activity oc- curring prior to the statute’s effective date. When affected aliens challenged that reading in the courts, the Attorney Gen- eral argued that Congress had abolished the jurisdiction of the Article III courts to review the Attorney General’s construc- tion of the statute. This Court, invoking the canon of constitu- tional avoidance, especially in the context of efforts to pre- clude judicial review in settings implicating personal liberty, construed the statute narrowly to preserve habeas corpus ju- risdiction to review the legality of the Executive branch’s reading of the statute. If, despite the foregoing arguments and precedents, this Court views Subsection 1005(e) as a direct or indirect juris- dictional bar to this appeal, the Court will be confronted with issues of enormous constitutional importance, including: (1) the power of Congress to threaten an “essential function” of the Supreme Court by stripping it of jurisdiction over a pend- ing constitutional appeal in an effort to insulate gross depriva- tions of liberty by the Executive from judicial review; (2) the power of Congress to eliminate all access to judicial review by detainees; and (3) the power of Congress to single out alien detainees at Guantanamo Bay and deny them access to Article III courts. The Executive’s claim of power to create a legal “black hole” at Guantanamo Bay into which aliens suspected of ter- rorist activities may be dropped ultimately rests on the con- tinued assertion that aliens detained at Guantanamo Bay are not within the United States, and, thus, have no right of access to an Article III court. Johnson v. Eisentrager, 339 U.S. 763 (1950). See Section 1005(g) (purporting to exclude Guan- 24 Such an irrationally discriminatory allocation of access to the courts violates the Equal Protection clause. One need not argue that the substantive rights of citizens and aliens are identical in order to reject such a discriminatory refusal to permit aliens access to a court to seek to vindicate a substan- tive right. See Graham v. Richardson, 403 U.S. 365 (1971); Sugarman v. Dougall, 413 U.S. 634 (1973); Bernal v. Fainter, 467 U.S. 216 (1984). While alienage may be a relevant basis for determining membership in a political community (Foley v. Connelie, 435 U.S. 291 (1978), or for allocating scarce en- titlements (Matthews v. Diaz, 426 U.S. 67 (1976), it is not a permissible basis for determining access to an Article III court in an effort to protect an alien’s personal liberty. In re Grif- fiths, 413 U.S. 717 (1973); Plyler v. Doe, 457 U.S. 202 (1982). A fortiori, the physical location of an alien’s detention cannot be the determining factor in granting or denying access to a court, especially when the alien is detained in the United States. II. CONGRESS HAS NOT AUTHORIZED THE PRESIDENT TO TRY PETITIONER BEFORE A MILITARY COMMISSION The Executive argues that the United States is engaged in an unconventional war, with the territorial United States part of a world-wide battlefield. In the President’s view, accused terrorists captured on the world-wide battlefield are “enemy tegral part of the United States. Thus, this Court need not explore whether a decision to suspend the writ on the grounds specified in the Constitution is subject to judicial review. Viewed as an effort to invoke the Suspension clause, 1005(e) is plainly ineffective since it makes no effort to make the necessary Congressional find- ings. 25 combatants” operating outside the rules of war, subject to prosecution before military commissions operating under ex- tremely relaxed standards of evidence, procedure and proof, empowered to mete out severe sentences, even death. Petitioner denies behaving unlawfully. He asserts the right to defend himself before a tribunal more consistent with set- tled constitutional practice, and challenges the power of the political branches to subject him to a battlefield tribunal long after his capture, especially when the tribunal’s procedures violate the Geneva Convention. Amici believe that it is unnecessary in this case to choose between these polar positions. At a minimum, the uniform practice of this Court, shaped initially by Chief Justice Mar- shall, has been to demand explicit Congressional authoriza- tion before permitting the Executive to depart dramatically from settled constitutional practice in pursuit of wartime secu- rity. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 653-54 (1952) (Jackson, J. concurring). While this Court has read Congressional authorizations of force broadly when nec- essary to provide the Executive with the conventional tools of battlefield combat, see Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (plurality opinion), the Court has consistently de- manded a clear statement of Congressional intent whenever the Executive seeks to depart from international law or from settled constitutional practice outside the exigencies of com- bat. For example, in Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804), the literal language of the Non- Intercourse Act, which forbade “American citizens” from car- rying on maritime trade with France and subjected their ves- sels used in such forbidden trade to military seizure, was con- strued narrowly by the Chief Justice to exclude maritime 26 commerce with France carried on by American citizens resid- ing abroad who had pledged allegiance to a foreign sovereign. If, reasoned Chief Justice Marshall, Congress wished to im- pose military sanctions on such non-resident citizens in viola- tion of international law, it must do so explicitly.24 Similarly, in Brown v. United States, 12 U.S. (8 Cranch) 110 (1814), Chief Justice Marshall ruled that Congress’s dec- laration of war against Great Britain, and the corresponding Authorization for the Use of Military Force, failed to provide implied authority to seize the property of enemy aliens resid- ing in the United States during the War of 1812. If such a “disreputable” departure from the “modern law of nations” was to occur, Chief Justice Marshall demanded explicit Con- gressional authorization. In the two centuries since Chief Justice Marshall’s pio- neering decisions, this Court has repeatedly adhered to his wise counsel that, even in times of national emergency, nei- ther constitutional values, nor international law may be dis- placed by military authority in the absence of an explicit Con- gressional command that satisfies the doctrine of clear state- ment. See, e.g., The Prize Cases, 67 U.S. (2 Black) 635 (1862) (noting express Congressional ratification of military seizure of ships seeking to run the blockade of Confederate ports; four Justices refuse to recognize retroactive Congres- sional authorization); Ex parte Milligan, 71 U.S. (4 Wall) 2, 137 (1866) (four Justices note lack of Congressional authori- 24 Similarly, in Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804), Chief Justice Marshall narrowly construed a provision of the Non- Intercourse Act authorizing military seizure of a vessel sailing to a French port as failing to authorize military seizure of a ship sailing from a French port. 29 gressional authorization is required. Brown v. United States, 12 U.S. (8 Cranch) 110 (1814); Duncan v. Kahanamoku, 327 U.S. 304 (1946). See Hamdi, 542 U.S. at 539-54 (opinion of Justice Souter, joined by Justice Ginsburg, concurring in part, dissenting in part, and concurring in the judgment). When the above-described structural principles are ap- plied to this case, neither the general language of the AUMF for Afghanistan, which speaks only of the use of “force,” nor the general authorization of the use of military commissions in proper settings in the Uniform Code of Military Justice, attains level of specificity required by a doctrine of clear statement. See Quern v. Jordan, 440 U.S. 332 (1979); Atasca- dero State Hosp. v. Scanlon, 473 U.S. 234 (1985); Gregory v. Ashcroft, 501 U.S. 452 (1991). In the absence of such a clear statement, Hamdan should be remitted to an appropriate alter- native tribunal for prosecution.26 26 The government may argue that Section 1005(e) is itself an implied Congressional authorization of the use of military com- missions. However, not a single member of Congress suggested that by providing for judicial review over the commissions, Con- gress was impliedly authorizing them. In fact, Section 1005(e) is exactly the type of equivocal, back-door statutory activity that cannot satisfy a clear statement rule. 30 CONCLUSION For the above-stated reasons, this Court should continue to exercise appellate jurisdiction over this appeal, and should reverse the decision below. Respectfully submitted, BURT NEUBORNE 40 WASHINGTON SQUARE SOUTH NEW YORK, NY 10012 (212) 998-6172 COUNSEL OF RECORD FOR THE UNDERSIGNED AMICI CURIAE 31 AMICI CURIAE27 NORMAN DORSEN STOKES PROFESSOR OF LAW NEW YORK UNIVERSITY LAW SCHOOL FRANK MICHELMAN ROBERT WALMSLEY UNIVERSITY PROFESSOR HARVARD UNIVERSITY BURT NEUBORNE INEZ MILLHOLLAND PROFESSOR OF CIVIL LIBERTIES NEW YORK UNIVERSITY LAW SCHOOL JUDITH RESNIK ARTHUR LIMAN PROFESSOR OF LAW YALE LAW SCHOOL DAVID SHAPIRO WILLIAM NELSON CROMWELL PROFESSOR OF LAW HARVARD LAW SCHOOL DATED: JANUARY 6, 2006 NEW YORK, NEW YORK 27 Titles are listed solely for the purposes of identification.