Boumediene v. Bush/DO1B

B.

This court would have jurisdiction to address the detainees’ claims but for Congress’s enactment of the MCA. In Rasul, 542 U.S. at 483-84, the Supreme Court held that the federal district courts had jurisdiction to hear petitions for writs of habeas corpus filed pursuant to 28 U.S.C. § 2241 by persons detained as “enemy combatants” by the United States at the Guantanamo Bay Naval Base. At the time, the habeas statute provided, in relevant part, that upon the filing of such a petition, the district court would promptly determine whether the petitioner was being held under the laws, Constitution, and treaties of the United States, utilizing the common-law procedure of a return filed by the government and a traverse filed by the petitioner. See 28 U.S.C. §§ 2242-2253. After Rasul, Congress enacted the DTA, which purported to deprive the federal courts of habeas jurisdiction. DTA § 1005(e), 118 Stat. at 2741-43. The Supreme Court held in Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2764-69 (2006), however, that the DTA does not apply retroactively, and so it does not disturb this court’s jurisdiction over the instant appeals, which were already pending when the DTA became law.

As for the MCA, I concur in the court’s conclusion that, notwithstanding the requirements that Congress speak clearly when it intends its action to apply retroactively, see Landgraf v. USI Film Prods., 511 U.S. 244, 265-73 (1994), and when withdrawing habeas jurisdiction from the courts, see INS v. St. Cyr, 533 U.S. 289, 299 (2001); Ex parte Yerger, 75 U.S. (8 Wall.) 85, 102 (1869), Congress sought in the MCA to revoke all federal jurisdiction retroactively as to the habeas petitions of detainees held at Guantanamo Bay. See Op. at 9-12. I do not join the court’s reasoning. The court stresses Congress’s emphasis that the provision setting the effective date for the jurisdictional change “shall apply to all cases, without exception.” However, the absence of exceptions does not establish the scope of the provision itself. The entire provision reads:

(b)—EFFECTIVE DATE. The amendment made by subsection (a) shall take effect on the date of the enactment of this Act, and 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. at 2636 (emphasis added). Subsection (a), in turn, amends 28 U.S.C. § 2241(e), which confers habeas jurisdiction on the federal courts. New section 2241(e)(1) repeals “jurisdiction to hear or consider an application for a writ of habeas corpus.” New section 2241(e)(2) repeals “jurisdiction to hear or consider any other action … relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement.”

The detainees suggest that by singling out habeas corpus in § 2241(e)(1) and by failing to do so in section 7(b) — and instead repeating the same list (“detention, transfer, treatment, trial, or conditions of confinement”) that appears in § 2241(e)(2) — Congress was expressing its intent to make the MCA retroactive only as to § 2241(e)(2). This argument hinges on their view that a petition for a writ of habeas corpus is not “relating to any aspect of … detention.” But, by the plain text of section 7, it is clear that the detainees suggest ambiguity where there is none. As the court notes, see Op. at 11 n. 4, whereas § 2241(e)(1) refers to habeas corpus, § 2241(e)(2) deals with “any other action … relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement.” (Emphasis added). By omitting the word “other” in section 7(b), and by cross-referencing section 7(a) in its entirety, Congress signaled its intent for the retroactivity provision to apply to habeas corpus cases. This conclusion has nothing to do with Congress’s emphasis that there are no exceptions and everything to do with the intent it expressed through the substantive provisions of the statute.