The opinion of the court was delivered by: James Robertson United States District Judge
The government seeks dismissal of the petition of Salim Ahmed Hamdan for a writ of habeas corpus for lack of subject matter jurisdiction, relying upon the jurisdiction-stripping provisions of the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (MCA) . Petitioner resists, arguing that the MCA did not remove our jurisdiction over pending Guantanamo habeas petitions, and alternatively that, if it did, it was an unconstitutional suspension of the writ of habeas corpus .
Salim Ahmed Hamdan, a Yemeni national, was taken into United States military custody in Afghanistan in November 2001. He was transported to the Defense Department's detention facility at Guantanamo Bay in June 2002. In July 2003, the President declared him eligible for trial by military commission. On April 6, 2004, Hamdan petitioned for mandamus or habeas corpus in the United States District Court for the Western District of Washington. On July 13, 2004, after having been held for about two years and eight months without formal charges, Hamdan was finally charged at Guantanamo Bay with a single count of conspiracy. In August 2004, his habeas petition was transferred to this court.
On November 8, 2004, I granted Hamdan's petition for a writ of habeas corpus after finding that he could not be tried lawfully before a military commission that had not been approved by Congress, Hamdan v. Rumsfeld, 344 F. Supp. 2d 152 (D.D.C. 2004). That decision was reversed by a panel of the D.C. Circuit on July 15, 2005, 415 F.3d 33, in a decision that was itself reversed a year later by the Supreme Court, Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006), four justices noting that "[n]othing prevents the President from returning to Congress to seek the authority he believes necessary" to lawfully try enemy combatants, Id. at 2799, (Breyer, J., concurring).*fn1 On September 22, 2006, the Court of Appeals remanded the case to me "for further proceedings." The remand order contained no instructions, nor was it clear what proceedings, if any, would be possible -- for, by that time, the President had indeed "return[ed] to Congress," and he had asked Congress to strip the federal courts of their jurisdiction to hear any habeas petitions of the Guantanamo detainees.
On September 29, 2006 Congress enacted, and on October 17, 2006, the President signed, the Military Commissions Act. The day after the MCA became law, the government filed, in each of the 181 Guantanamo habeas cases pending in this Court, a Notice of Military Commissions Act of 2006 , highlighting the jurisdiction-stripping and retroactivity provisions of the Act. The government focused on section 7 of the Act, which amends the federal habeas statute by removing the jurisdiction of any "court, judge, or justice" over habeas petitions and all other actions filed by aliens who are either detained as enemy combatants or are "awaiting such determination." MCA § 7(a). I construed that notice as a motion to dismiss for lack of subject matter jurisdiction and called for a response from Hamdan .*fn2
The Military Commissions Act and the briefs of the parties present three questions: (1) As a matter of statutory interpretation and construction, did Congress actually succeed in removing our statutory habeas jurisdiction over the detainee habeas cases? (2) If so, is the Military Commissions Act a constitutionally valid "suspension" of the writ of habeas corpus within the meaning of the Suspension Clause, U.S. Const. art. I § 9 cl. 2? (3) If not, and if a "constitutional" writ of habeas corpus survives the Military Commissions Act, does Hamdan have a right to seek such a writ? The answers to these questions are "yes" to number (1) and "no" to numbers (2) and (3).
1. The MCA Reflects Clear Congressional Intent to Limit the Statutory Habeas Jurisdiction of the Federal Courts
It has been clear since Ex Parte Yerger, 75 U.S. 85 (1869) (habeas petition by a prisoner facing trial by military commission), that statutory language will be interpreted as stripping courts of their habeas jurisdiction only when the intent of Congress is abundantly clear. "Implications from statutory text or legislative history are not sufficient to repeal habeas jurisdiction; instead, Congress must articulate specific and unambiguous statutory directives to effect a repeal." INS v. St. Cyr, 533 U.S. 289, 299 (2001). In the instant case, it appears to be conceded that Congress's intent to remove jurisdiction over future habeas petitions filed by a specified class of individuals was clear enough. Hamdan's submission, however, is that the MCA lacks the requisite clarity to support its retroactive operation -- stripping the courts of their jurisdiction over previously filed habeas cases.
Section 7 of the MCA provides:
(a) IN GENERAL. -- Section 2241 of title 28, United States Code [the habeas statute], is amended by ... inserting the following new subsection (e):
(e)(1) 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.
(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction 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 conditions of confinement of an alien who is or was detained by the United States and has been ...