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Nos. 05-5062, 05-5064, 05-5095 Through 05-5116 in the UNITED STATES COURT of APPEALS for the DISTRICT of COLUMBIA CIRCUIT KHALED

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Nos. 05-5062, 05-5064, 05-5095 Through 05-5116 in the UNITED STATES COURT of APPEALS for the DISTRICT of COLUMBIA CIRCUIT KHALED Nos. 05-5062, 05-5064, 05-5095 through 05-5116 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT KHALED A. F. AL ODAH, Next Friend of FAWZI KHALID, ABDULLAH FAHAD AL ODAH, et. al., LAKHDAR BOUMEDIENE, Detainee, Camp Delta, et. al., Petitioners/Appellants v. George W. BUSH, President of the United States of America, et. al., UNITED STATES OF AMERICA, et. al., Respondents/Appellees ON ORDER FROM THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT SUPPLEMENTAL BRIEF AMICUS CURIAE OF THE WORLD ORGANIZATION FOR HUMAN RIGHTS USA IN SUPPORT OF PETITIONERS’/APPELLANTS’ POSITION ON THE JURISDICTIONAL IMPACT OF THE MILITARY COMMISSIONS ACT FILED PURSUANT TO THE COURT ORDER OF OCT. 18, 2006 Morton Sklar, Executive Director Counsel for Amicus Curiae, (D.C. Bar No. 144139) and Joseph Husty, Legal Intern WORLD ORGANIZATION FOR HUMAN RIGHTS USA 1725 K Street N.W., Suite 610, Washington, D.C. 20006 Tele: (202) 296-5702; Fax: (202) 296-5704 E-mail: [email protected] With the assistance of: Melissa Keyes (U. of CA at Hastings Law School) Charles Wait, Aaron Clark-Rizzio, Kennon Scott, Binish Hasan, Maria Tennyson, Olivia Maginley and Meredith Angelson (New York University Law School); and Simon Moshenberg (Yale Law School) Law Student Contributors Filed November 1, 2006 TABLE OF CONTENTS TABLE OF AUTHORITIES ……………………………………………. iii ISSUES PRESENTED …………………………………………………… v SUMMARY OF ARGUMENT ………………………………………….. 1 ARGUMENT ……………………………………………………………… 4 I. The Habeas and Court Stripping Provisions of the Military Commissions Act Do Not Apply to the Petitioners in the Instant Cases Because, Under the Specific Terms of the Applicable Provisions of the Statute, the Petitioners Have Not Been “Properly Determined by the United States Government” to be “Unlawful Enemy Combatants,” and Thereby Subject to Loss of Access to Habeas …………………. 4 I. Core Legal, Constitutional and Separation of Powers Concerns Would Be Raised If the MCA Statute Is Applied to the Petitioners in the Instant Proceedings So As to Severely Restrict or Eliminate Their Vested and Pre-Existing Legal and Constitutional Rights and Interests By Denying Them Access to the Courts ……………………………. 6 A. Jurisdictional Changes Can Not Be Imposed By Congress on a Retroactive Basis, Even if Such A Result is Specifically Stipulated In a Statute, Where Vested Legal Rights and Constitutional Protections Are Adversely Affected, Including Due Process, and the Prohibitions Against Bills of Attainder and Ex Poste Facto Laws 7 B. Petitioners With At Least a Colorable Basis for Claiming Legal Or Constitutionally Protected Rights Can Not Be Left with No Reasonably Effective Form of Judicial Review for Challenging The Legality and Constitutionality of Government Action Designed to Restrict These Rights, Without Raising Serious Due Process Concerns …………………………………………… 11 C. Jurisdictional Changes Can Not Be Used to Overturn Specific Judicial Determinations, Or to Seek to Control or Limit the Legal Standards or Rules of Decision that Courts Apply to Specific Cases, Especially Where Proceedings Are Pending … 13 i II. Suspension Clause Concerns Are Raised by the Habeas Stripping Provisions of the MCA Because the Alternative Appeal Process Established Under the Statute Does Not Provide for the Type of “Adequate, Effective and Equivalent” Form of Judicial Review That the Supreme Court Requires Before Access to Habeas Can be Restricted …………………………………. 15 III. The Elimination by Section 5 of the MCA of the Use of Geneva Convention Grounds as a Basis for Court Claims Does Not Affect the Jurisdiction of This Court in the Present Proceedings 18 V. Conclusion ……………………………………………………. 21 Certificate of Compliance ……………………………………………. 23 Certificate of Service …………………………………………………. 24 ii TABLE OF AUTHORITIES CASES Allstate Ins. v. Kim, 829 A.2d 611 (Crt.App.MD., 2003) …………………… 8 Brown v. Hutton Group, 795 F.Supp. 1307 (S.D.N.Y. 1992) ………………… 15 Calcano –Martinez v. INS, 121 S.Ct. 2268 (2001) ……………………………. 12 Campbell v. Holt, 115 U.S. 620 (1885) ……………………………………….. 12 Chase Sec.Corp. v. Donaldson, 325 U.S. 304 (1945) …………………………. 8 Goddard v. Frazier, 156 F.2d 938 (10th Cir. 1946) ……………………………. 12 Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006) ……………… 3,5,6,12,15,16,17,18,19,20 Heikkila v. Barber, 345 U.S. 229 (1953) ……………………………………… 18 Hughes Aircraft v. U.S. ex rel. Schumer, 520 U.S. 939 (1997) ………………. 9 INS v. St. Cyr, 533 U.S. 289 (2001) …………………………………………… 12 LaFontant v. INS, 135 F.3d 163 (D.C. Cir. 1998) …………………………….. 9 McNary v, Haitian Refugee Center, 498 U.S. 479 (1991) …………………….. 18 Ogden v. Saunders, 25 U.S. 213 (1827) ………………………………………… 11 Police Patrol Sec. Systems, Inc., v. Prince Georges County (838 A.2d 1191 (2003) 8 Rasul v. Bush, 124 S.Ct. 2686 (2004) ………………………………………….. 5, 6, 12 Rogers v. Tennessee, 532 U.S. 451 (2001) ……………………………………… 8 Ruiz v. U.S., 243 F.3d 941 (5th Cir. 2001) ……………………………………… 14 Swain v. Pressley, 430 U.S. 372 (1977) ………………………………………. 18 U.S. v. Brown, 381 U.S. 437 (1965) ……………………………………………. 10, 11 U.S. v. Hayman, 342 U.S. 205 (1952) ………………………………………….. 18 U.S. v. Klein, 80 U.S. 128 (1871) ………………………………………………. 14, 15 iii Walker v. Dept. of Housing and Urban Development, 912 F.2d 819 (5th Cir. 1990) 14 CONSTITUTION Article I, Section 9 (Bill of Attainder Clause) ……………………………… 10, 11 Article I, Section 9 (Suspension Clause) ……………………… 13,15,16,17 Article VI …………………………………………………………………. 19 STATUTES AND REGULATIONS Detainee Treatment Act (PL 109-148) ……………………………………… 9, 16, 17 Military Commissions Act ………………………… ,2,3,4,5,6,7,9,10,11,12,15,16 17,18,19,20,21,22 U.S. Army Regulation 190-8 ………………………………………………… 21, 22 UNIFORM CODE OF MILITARY JUSTICE ……………………………… 5 TREATIES AND OTHER INTERNATIONAL INSTRUMENTS Geneva Conventions Relative to the Treatment of Prisoners of War .. 5, 19, 20, 21, 22 TREATISES AND COMMENTARIES Hockman, Charles, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv. L.Rev. 692 …………………………………. 8 OTHER AUTHORITIES Memorandum for the Sec. of the Navy from Dept. Sec. of Defense Wolfowitz, Order Establishing the Combatant Status Review Tribunals, Issued July 7, 2004 …………………………………………………………….. 22 iv ISSUES PRESENTED 1. Do the habeas and court stripping provisions of the Military Commissions Act apply to the Petitioners in the present habeas proceedings since they have not been “properly determined” to be “unlawful enemy combatants” under the specific terms of the statute? 2. Can jurisdictional changes be mandated by Congress on a retroactive basis where they would adversely affect vested legal and Constitutionally protected rights and interests? 3. Can jurisdictional changes be used by Congress to overturn specific judicial determinations or to control the rules of decision applied by the courts in specific cases? 4. Does the special review procedure provided in the MCA meet the “adequate, effective and equivalent” test that the Supreme Court applies under the Suspension Clause when access to habeas is restricted? 5. Does the limitation in Section 5 of the MCA on the use of the Geneva Conventions as a basis for legal claims by unlawful enemy combatants provide a basis for eliminating the jurisdiction of this Court over the present proceedings? v SUMMARY OF ARGUMENT In its October 17 Rule 28(j) supplementary submission of authorities to the Court, the Government seeks to cite provisions of the newly enacted Military Commissions Act (MCA) altering the jurisdiction of the U.S. courts in cases involving “unlawful enemy combatants” as mandating dismissal of the instant proceedings. In fact, for the reasons listed below, the provisions of the MCA that the Government cites do not provide the basis for dismissal that the Government claims. First, the elimination of jurisdiction over claims of individuals who have been “properly determined” to be unlawful enemy combatants in Section 7(a) of the MCA can not be applied to the present habeas proceedings because the question of whether the Petitioners have been “properly determined” to be unlawful enemy combatants and therefore ineligible under the terms of the MCA to file habeas petitions is still very much in dispute, has been acknowledged by the U.S. Supreme Court in several recent decisions to be an open question, and is the focus of the present proceedings. It would be premature to presume that these Petitioners meet the “properly determined” test. Second, even if the specific terms of the habeas stripping provisions of the MCA are deemed to apply to the Petitioners, questions must be raised as to whether these jurisdictional restrictions are lawful and constitutional on a number 1 of grounds, including whether they improperly restrict vested legal and constitutionally protected rights and interests on a retroactive basis, whether Congress has violated the principle of separation of powers by seeking to control or limit the legal interpretations or rules of decision that courts (including the Supreme Court) have articulated in specific cases (thereby implicitly overruling concrete decisions of the Supreme Court), and whether the result would be to improperly and unconstitutionally violate due process standards by leaving the Petitioners in the position of having no reasonably effective judicial means for challenging government violations of what the Supreme Court has suggested may well be their vested and legally enforceable rights. Moreover, interpreting the statute so as to allow the elimination of habeas jurisdiction in the present cases would raise constitutional concerns under the Suspension
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