Bismullah v. Gates

• Decision Date: 09 January 2009
• Docket Number: No. 07-1523.,No. 07-1508.,No. 06-1197.,06-1197.,07-1508.,07-1523.
• Citation: 551 F.3d 1068
• Parties: Haji BISMULLAH a/k/a Haji Bismillah, and a/k/a Haji Besmella, Haji Mohammad Wali, Next Friend of Haji Bismullah, Petitioners v. Robert M. GATES, Secretary of Defense, Respondent Abdusabour, Petitioner v. Robert M. Gates, Secretary of Defense, et al., Respondents Hammad, Petitioner v. Robert M. Gates, Secretary of Defense, et al., Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

551 F.3d 1068

Haji BISMULLAH a/k/a Haji Bismillah, and a/k/a Haji Besmella, Haji Mohammad Wali, Next Friend of Haji Bismullah, Petitioners v. Robert M. GATES, Secretary of Defense, Respondent Abdusabour, Petitioner v. Robert M. Gates, Secretary of Defense, et al., Respondents Hammad, Petitioner v. Robert M. Gates, Secretary of Defense, et al., Respondents.

No. 06-1197.

No. 07-1508.

No. 07-1523.

United States Court of Appeals, District of Columbia Circuit.

Argued November 20, 2008.

Decided January 9, 2009.

On Petition for Rehearing.

Gregory G. Katsas, Assistant Attorney General, argued the cause for respondent. With him on the petition for rehearing were Jonathan F. Cohn, Deputy Assistant Attorney General, and Robert M. Loeb, August E. Flentje, and Henry C. Whitaker, Attorneys.

Jennifer R. Cowan argued the cause for petitioners. With her on the opposition were John B. Missing, Susan Baker Manning, Sabin Willett, and Rheba Rutkowski.

Before: GINSBURG, HENDERSON, and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

The petitioners, detainees held in military custody at Guantanamo Bay, each filed a petition, pursuant to the Detainee Treatment Act (DTA), for review of the determination by a Combatant Status Review Tribunal (CSRT) that he is an "enemy combatant." The Government contends we do not have jurisdiction over the detainees' petitions because the provision of the DTA that grants us subject matter jurisdiction cannot be severed from the provision eliminating habeas corpus jurisdiction, which the Supreme Court held unconstitutional in Boumediene v. Bush, ___ U.S. ___, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008). We agree and therefore dismiss these petitions for lack of jurisdiction; the petitioners are remitted to their remedy under the habeas corpus statute, 28 U.S.C. § 2241.

I. Background

Each detainee challenged his status determination by filing in this court a petition for review of the CSRT's decision, pursuant to DTA § 1005(e)(2), 10 U.S.C. § 801 note. In May 2007 we heard their cases together for the purpose of deciding various procedural issues, including the scope of the record on review. See Bismullah v. Gates, 501 F.3d 178 (2007), reh'g denied, 503 F.3d 137 (2007), reh'g en banc denied, 514 F.3d 1291 (2008). The Government petitioned for a writ of certiorari on the merits of our decision but the Supreme Court, without reaching the merits, vacated the judgment and remanded the case to us for further consideration in light of its intervening decision in Boumediene. Gates v. Bismullah, ___ U.S. ___, 128 S.Ct. 2960, 171 L.Ed.2d 881 (2008). After briefing by the parties, we reinstated our decision establishing procedures for DTA review, whereupon the Government petitioned for rehearing, arguing for the first time that, in light of Boumediene, we no longer have jurisdiction over petitions for review filed pursuant to the DTA. We granted rehearing to determine whether we retain jurisdiction pursuant to DTA § 1005(e)(2) to review CSRT determinations notwithstanding the Supreme Court's decision in Boumediene. For the reasons elaborated below, we hold we do not.

II. Analysis

If it is evident the Congress would not have enacted one statutory provision had it known that another provision would be held unconstitutional, then the former provision cannot be severed from the latter and the two provisions must fall together. See Champlin Refining Co. v. Corp. Comm'n of Okla., 286 U.S. 210, 234, 52 S.Ct. 559, 76 L.Ed. 1062 (1932). In this case on rehearing, the Government argues the Congress did not intend DTA § 1005(e)(2), which gave this court alone jurisdiction to review CSRT determinations, to stand apart from the section of the Military Commissions Act (MCA) that provides no court shall have jurisdiction to hear a detainee's petition for a writ of habeas corpus, see MCA of 2006, § 7, Pub.L. No. 109-366, 120 Stat. 2600, 2635-36 (codified at 28 U.S.C. § 2241(e)). The provision abolishing habeas jurisdiction for Guantanamo detainees having been held unconstitutional in Boumediene, therefore, the Government contends DTA § 1005(e)(2) must fall as well.^*

The detainees point out that the Supreme Court in Boumediene said "the DTA ... process remain[s] intact." 128 S.Ct. at 2275. The Government responds that, read in context, the Court was merely pointing out the limited extent of its constitutional holding in that case. We agree. Having concluded DTA review was not a constitutionally adequate substitute for habeas corpus, the Court had reason to be as clear as possible that it was not holding the review provisions of the DTA unconstitutional. Id. ("The only law we identify as unconstitutional is MCA § 7.... Accordingly, both the DTA and the CSRT process remain intact"). The question of severability was not presented, granted, or briefed and the Court had no occasion to decide it. See Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004) ("Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents").^* In sum, the Supreme Court in Boumediene did not address the issue of severability and thereby left it to this court to resolve in the first instance in light of that decision.

Our task, therefore, is to determine with respect to the DTA "what Congress would have intended in light of the Court's constitutional holding" in Boumediene. United States v. Booker, 543 U.S. 220, 246, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (internal quotation marks omitted). In making this determination, we "must retain those portions of the Act that are (1) constitutionally valid, (2) capable of functioning independently, and (3) consistent with Congress' basic objectives in enacting the statute." Id. at 258-59, 125 S.Ct. 738 (internal quotation marks and citations omitted). The parties do not dispute that the first and second requirements for severability are met — that is, DTA § 1005(e)(2) is constitutional and could function independently.

The question that divides the parties is whether, now that the Supreme Court has held each detainee has a constitutional right to pursue a writ of habeas corpus, the availability of judicial review pursuant to DTA § 1005(e)(2) is consistent with the basic objective of the Congress that passed that provision. We approach that question cognizant that, in order to avoid "invalidating more of [a] statute than is necessary," we are to start with a presumption in favor of severability. Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684, 107 S.Ct. 1476, 94 L.Ed.2d 661 (1987) (internal quotation marks omitted); Cmty. for Creative Non-Violence v. Turner, 893 F.2d 1387, 1394 (D.C.Cir.1990). That cautionary presumption is overcome only if we conclude the Congress would not "`still have passed' the valid sections `had it known' about the constitutional invalidity of the other portion[ ] of the statute." Booker, 543 U.S. at 246, 125 S.Ct. 738 (quoting Denver Area Ed. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 767, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) (plurality opinion)).

In this case, there can be no doubt: Both the text of the relevant provisions and the enactment of successive jurisdiction-stripping provisions demonstrate clearly that the Congress would not in the DTA have given this court jurisdiction to review CSRT determinations had it known its attempt to remove the courts' jurisdiction over habeas petitions would fail.

Turning first, as we must, to the text of the statute, we see the DTA itself indicates the provisions removing habeas jurisdiction and granting jurisdiction to review status determinations were "inextricably linked in text and purpose." Basardh, 545 F.3d at 1071. In DTA § 1005(e)(2), the Congress provided that this court was to have "exclusive jurisdiction" to review the determination that a detainee is an enemy combatant. The Congress carefully limited the scope of our review to determining whether the CSRT complied with procedures to be established by the Secretary of Defense and whether those procedures were lawful. DTA § 1005(e)(2)(C). Furthermore, DTA § 1005(e)(1), which was subsequently replaced by MCA § 7, eliminated the jurisdiction of all courts, including this one, over a petition for a writ of habeas corpus or any other action related to an alien's detention at Guantanamo Bay "except as provided" by the jurisdiction-granting provision of the DTA. The Congress's careful crafting of a limited mechanism for judicial review indicates the basic objective of the DTA was not to supplement habeas corpus, but rather to restrict judicial review of the Executive's detention of persons designated enemy combatants.

The response of the Congress to the Supreme Court's interpretation of § 1005(e)(1) confirms this reading of the DTA. In June 2006, the Supreme Court held the DTA did not eliminate habeas jurisdiction over pending cases. Hamdan v. Rumsfeld, 548 U.S. 557, 574-76, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006). In September 2006, the Congress replaced the jurisdiction-stripping provision of the DTA with a new jurisdiction-stripping provision, MCA § 7. The new provision again removed from the courts all jurisdiction, except as provided by the DTA, to hear an enemy combatant's challenge to his detention, including — this time in no uncertain terms — jurisdiction over pending cases: This jurisdiction-stripping provision, the Congress proclaimed, "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 ... of an alien detained by the United States since September 11, 2001." MCA § 7(b). The sequence of these legislative and judicial decisions clearly indicates the Congress understood review under DTA § 1005(e)(2) to be a substitute for and not a supplement to habeas...