No. 06-1194 In the Supreme Court of the United States IN RE ALI, PETITIONER ON PETITION FOR A WRIT OF HABEAS CORPUS MOTION TO DISMISS PAUL D. CLEMENT Solicitor General Counsel of Record Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 QUESTIONS PRESENTED 1. Whether this Court lacks jurisdiction to consider petitioner’s petition for original writ of habeas corpus. 2. Whether, even assuming this Court has juris- diction to entertain this petition, the petition should be dismissed because petitioner has not exhausted his available remedies in the court of appeals. 3. Whether, assuming jurisdiction, petitioner has satisfied the stringent standard for obtaining mandamus relief from this Court. (I) TABLE OF CONTENTS Page Statement............................................ 1 Argument............................................ 5 Conclusion .......................................... 11 TABLE OF AUTHORITIES Cases: Boumediene v. Bush: 127 S. Ct. 1478 (2007) ........................... 4, 7 127 S. Ct. 1725 (2007) ............................ 7 476 F.3d 981 (D.C. Cir.), cert. denied, 127 S. Ct. 1478 (2007) ............................. 4, 6, 7, 10 Felker v. Turpin, 518 U.S. 651 (1996) .................. 6 Hamdan v. Gates, No. 06-1169 (Apr. 30, 2007) .......... 8 Will v. United States, 389 U.S. 90 (1967) .............. 10 Zalita v. Bush, No. 6A1005 (May 1, 2007) .............. 8 Constitution, statutes and rule: U.S. Const.: Art. I, § 9, Cl. 2 (Suspension Clause) ................ 4 Art. III ......................................... 6 Detainee Treatment Act of 2005, Pub. L. No. 109-148, Tit. X, 119 Stat. 2739 .............................. 2 § 1005(e)(2)(C), 119 Stat. 2742 ................... 8 § 1005(e)(2)(C)(ii), 119 Stat. 2742 ................. 9 Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 ............................ 2 § 7(a), 120 Stat. 2635 ....................... 3, 6, 7 (III) IV Statutes and rule—Continued: Page § 7(a), 120 Stat. 2636: (to be codified at 28 U.S.C. 2241(e)(1) (2006)) ................................ 310 (to be codified at 28 U.S.C. 2241(e)(2) (2006)) ............................... 3, 11 § 7(b), 120 Stat. 2636 (to be codified at 28 U.S.C. 2241 note (2006)) ............................ 3 28 U.S.C. 1651(a) .................................. 10 28 U.S.C. 2241 .................................. 2, 5, 7 28 U.S.C. 2242 ..................................... 10 28 U.S.C. 2243 ...................................... 7 Sup. Ct. R.: Rule 20.4(a) ................................ 8, 9, 10 Rule 20.4(b) ..................................... 7 In the Supreme Court of the United States No. 06-1194 IN RE ALI, PETITIONER ON PETITION FOR A WRIT OF HABEAS CORPUS MOTION TO DISMISS The Solicitor General, on behalf of the United States, respectfully files this motion to dismiss the captioned matter, styled as a “Petition for Original Writ of Habeas Corpus.” STATEMENT 1. Petitioner Ali, who is known to the United States as Hassan Anvar, is a Chinese Uighur detained by the United States at the United States Naval Base at Guantanamo Bay, Cuba. On January 25, 2005, a Com- batant Status Review Tribunal (CSRT) determined that petitioner “was properly designated an enemy combat- ant.” App. Tab 4A.1 On February 25, 2005, that deter- 1 A CSRT convened on November 16, 2004, determined that peti- tioner was not properly designated as an enemy combatant. A CSRT decision is not final until reviewed by a legal advisor and approved by the CSRT director, who “may approve the decision * * * or return the record to the Tribunal for further proceedings.” App. Tab 14 (CSRT Procedures, enclosure 1, § I(8)). In this case, the CSRT director re- turned the record for further proceedings. A second tribunal was convened on January 25, 2005, “to review additional classified evidence, unavailable to the previous Tribunal.” App. Tab 4A. The second (1) 2 mination became final. Ibid. The CSRT had before it evidence that, inter alia, petitioner “traveled to Afghan- istan for weapon and tactics training,” id. Tab 4A (enclo- sure 1, at 1); arrived at a “Tora Bora training camp * * * in September of 2001, where he received weapon training on the A-K rifle,” ibid.; see id. Tab 4A (Exh. D- b at 2); “joined the Eastern Turkistan Islamic Move- ment, which is suspected of having received training and financial assistance from al-Qaida,” id. Tab 4A (enclo- sure 1, at 1); and “provided a false name when cap- tured,” ibid. 2. In December 2005, petitioner, through counsel, filed a petition for a writ of habeas corpus in the United States District Court for the District of Columbia. See Thabid v. Bush, No. 1:05cv02398 (ESH) (AK) (D.D.C.) (05-2398) (App. Tab 3). On March 31, 2006, following the enactment of the Detainee Treatment Act of 2005 (DTA), Pub. L. No. 109-148, Tit. X, 119 Stat. 2739, the district court stayed petitioner’s case without prejudice, observing that the DTA “raises serious questions con- cerning whether this Court retains jurisdiction.” 05- 2398 Order 2. On October 17, 2006, the United States filed a factual return to petitioner’s habeas petition. See App. Tab 4B (classified factual return). The return constituted the final record of proceedings before the CSRT pertaining to petitioner. See ibid. Also on that day, the Military Commissions Act of 2006 (MCA), Pub. L. No. 109-366, 120 Stat. 2600, became tribunal concluded that petitioner was properly classified as an enemy combatant. That determination was reviewed by the legal advisor and approved by the CSRT director, and therefore constitutes the final CSRT decision. 3 law. Section 7(a) of the MCA amends 28 U.S.C. 2241 to provide that: No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. MCA § 7(a), 120 Stat. 2636 (to be codified at 28 U.S.C. 2241(e)(1) (2006)). Section 7(a) further provides that, except as authorized in the DTA: [N]o court, justice, or judge shall have jurisdic- tion to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or condi- tions of confinement of an alien who is or was de- tained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determi- nation. Ibid. (to be codified at 28 U.S.C. 2241(e)(2) (2006)). The MCA expressly provides that the jurisdiction-altering amendments to Section 2241 “shall take effect on the date of the enactment of this Act,” and that they “shall apply to all cases, without exception, pending on or after the date of the enactment of this Act, which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.” MCA § 7(b), 120 Stat. 2636 (to be codified at 28 U.S.C. 2441 note (2006)). On November 22, 2006, petitioner moved to lift the stay issued by the district court. The district court de- 4 nied that request on December 6, 2006. App. Tab 2. The court explained that “[t]he D.C. Circuit will address [in Boumediene v. Bush and other cases] * * * the effect on district court jurisdiction over cases such as this one of the [DTA] and the [MCA].” Id. Tab 2, at 1. The court further explained that “for reasons of judicial economy and efficiency” it would “uphold the stay of proceedings in this case until the resolution of the fundamental juris- dictional questions surrounding the Guantanamo de- tainee cases.” Ibid. 3. On February 13, 2007, petitioner filed in this Court a document entitled “Petition for Original Writ of Habeas Corpus.” Petitioner contended (Pet. 14-15) that habeas review in the lower courts was “[l]ogjammed” because the District of Columbia Circuit had yet to is- sue its decision in Boumediene and asked “the Court to direct the District Court to lift its stay of his case and proceed to the merits of his petition.” Pet. 3. Peti- tioner also asked this Court, “[p]ursuant to 28 U.S.C. § 2241(b), * * * [to] transfer Petitioner’s application to the District Court for an immediate and expedited hear- ing and determination.” Pet. 18-19. One week after petitioner filed the instant petition, the purported “logjam” (Pet. 13, 14, 15) that was the premise for his extraordinary request to this Court was broken. On February 20, 2007, the District of Columbia Circuit decided Boumediene v. Bush, holding that the MCA eliminates federal court jurisdiction over petitions for habeas corpus filed by aliens detained as enemy com- batants at Guantanamo Bay and does not violate the Suspension Clause. 476 F.3d 981 (2007). The Boume- diene petitioners promptly sought review of that ruling in this Court. On April 2, 2007, this Court declined to grant certiorari to review that holding. 127 S. Ct. 1478. 5 On April 19, 2007, the United States asked the dis- trict court in this matter to lift the stay in order to dis- miss the case for lack of jurisdiction. 05-2398 Resp. Mot. to Dismiss 1 n.1. The government explained: a number of the above-captioned cases were previ- ously stayed or administratively closed by the Court pending resolution of the jurisdictional issues by the Court of Appeals. Now that the Court of Appeals has confirmed that the MCA withdraws habeas and other jurisdiction of the District Court in these cases, the stays or administrative closures of those cases should be lifted to address respondents’ motion to dismiss. Ibid. On May 2, 2007, petitioner filed an opposition to the government’s motion to dismiss and a motion for a stay.