Boumediene v. Bush/CO1

I.

As to the application of the MCA to these lawsuits, section 7(b) states that the amendment to the habeas corpus statute, 28 U.S.C. § 2241(e), “shall apply to all cases, without exception, pending on or after the date of the enactment” that relate to certain subjects. The detainees’ lawsuits fall within the subject matter covered by the amended § 2241(e); each case relates to an “aspect” of detention and each deals with the detention of an “alien” after September 11, 2001. The MCA brings all such “cases, without exception” within the new law.

Everyone who has followed the interaction between Congress and the Supreme Court knows full well that one of the primary purposes of the MCA was to overrule Hamdan.^[2] Everyone, that is, except the detainees. Their cases, they argue, are not covered. The arguments are creative but not cogent. To accept them would be to defy the will of Congress. Section 7(b) could not be clearer. It states that “the amendment made by subsection (a)” – which repeals habeas jurisdiction – applies to “all cases, without exception” relating to any aspect of detention. It is almost as if the proponents of these words were slamming their fists on the table shouting “When we say ‘all,’ we mean all – without exception!”^[3]

The detainees of course do not see it that way. They say Congress should have expressly stated in section 7(b) that habeas cases were included among “all cases, without exception, pending on or after” the MCA became law. Otherwise, the MCA does not represent an “unambiguous statutory directive[]” to repeal habeas corpus jurisdiction. INS v. St. Cyr, 533 U.S. 289, 299 (2001). This is nonsense. Section 7(b) specifies the effective date of section 7(a). The detainees’ argument means that Congress, in amending the habeas statute (28 U.S.C. § 2241), specified an effective date only for non-habeas cases. Of course Congress did nothing of the sort. Habeas cases are simply a subset of cases dealing with detention. See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).^[4] Congress did not have to say that “the amendment made by subsection (a)” – which already expressly includes habeas cases – shall take effect on the date of enactment and shall apply to “all cases, without exception, including habeas cases.” The St. Cyr rule of interpretation the detainees invoke demands clarity, not redundancy.

The detainees also ask us to compare the language of section 7(b) to that of section 3 of the MCA. Section 3, entitled “Military Commissions,” creates jurisdiction in the D.C. Circuit for review of military commission decisions, see 10 U.S.C. § 950g. It then adds 10 U.S.C. § 950j, which deals with the finality of military commission decisions. Section 950j strips federal courts of jurisdiction over any pending or future cases that would involve review of such decisions:

Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.

10 U.S.C. § 950j(b) (emphasis added). The detainees maintain that § 950j calls into question Congress’s intention to apply section 7(b) to pending habeas cases.

The argument goes nowhere. Section 7(b), read in conjunction with section 7(a), is no less explicit than § 950j. Section 7(a) strips jurisdiction over detainee cases, including habeas cases, and section 7(b) makes section 7(a) applicable to pending cases. Section 950j accomplishes the same thing, but in one sentence. A drafting decision to separate section 7 into two subsections – one addressing the scope of the jurisdictional bar, the other addressing how the bar applies to pending cases – makes no legal difference.^[5]