The opinion of the court was delivered by: John D. Bates United States District Judge
Haji Wazir, an Afghan citizen, is being detained by the United States at the Bagram Theater Internment Facility at Bagram Airfield, Afghanistan. On September 29, 2006, Wazir filed a petition for a writ of habeas corpus, and respondents then filed a motion to dismiss for lack of jurisdiction on October 3, 2008. Respondents had filed similar motions to dismiss three other habeas petitions filed by Bagram detainees, and on November 17, 2008, the four cases were consolidated for argument. This Court heard oral argument from the parties on January 7, 2009.
On April 2, 2009, the Court denied respondents' motion to dismiss the petitions filed by the other three Bagram detainees but deferred ruling on respondents' motion to dismiss the petition filed by Wazir. See Al Maqaleh v. Gates, 604 F. Supp. 2d 205 (D.D.C. 2009). Applying the multi-factor test set forth by the Supreme Court in Boumediene v. Bush, 128 S.Ct. 2229 (2008), this Court reasoned that the other three petitioners, none of whom are Afghan citizens, are entitled to invoke the Suspension Clause of the Constitution, Art. I. § 9 cl. 2. Hence, the Court concluded, § 7(a) of the Military Commissions Act of 2006 ("MCA"), Pub. L. No. 109-366, 120 Stat. 2600, which deprives courts of jurisdiction to entertain habeas petitions filed by individuals designated by the President as "enemy combatants," is unconstitutional as applied to those three petitioners. As to Wazir, however, the Court determined that "there is a real possibility of friction with the Afghan government with respect to Afghan detainees." 604 F. Supp. 2d at 229. In balancing the Boumediene factors, this possibility of friction was sufficiently weighty to defeat Wazir's claim that he is entitled to invoke the protections of the Suspension Clause. Id. at 231.
Having rejected Wazir's Suspension Clause argument, the Court considered "four other grounds to deny respondents' motions to dismiss: the MCA constitutes a usurpation of the Judiciary's Article III powers; the MCA amounts to a permanent suspension of the writ of habeas corpus; the jurisdiction-stripping provisions of the MCA do not apply to [Wazir]; and respondents are violating [Wazir's] rights under constitutional, statutory, and international law." Id. at 232. The Court rejected the three latter grounds. Id. at 233-35. As to the first ground, however, the Court found the briefing inadequate to permit a reasoned conclusion. Id. at 233. The Court therefore ordered further briefing on this issue. In particular, the Court ordered further briefing as to whether MCA § 7 violates the principles set out in United States v. Klein, 80 U.S. (13 Wall.) 128 (1871).
Klein arose after the Civil War. In 1863, Congress passed a law allowing individuals whose property was seized during the Civil War to recover their property (or receive compensation for it) upon a showing of loyalty. In United States v. Padelford, 76 U.S. (9 Wall.) 531 (1869), the Supreme Court held that proof of a presidential pardon was sufficient to prove loyalty. Klein, whose property had been seized during the Civil War but who had since been pardoned, then filed suit in the Court of Claims and successfully recovered his property. The government appealed, and as the appeal was pending before the Supreme Court, Congress passed a new statute. The new law provided that proof of a presidential pardon did not show loyalty, but instead was conclusive proof of disloyalty, and proof of a pardon would divest courts of jurisdiction.
The Supreme Court held that the statute was unconstitutional. The Court recognized that Congress has authority to control the appellate jurisdiction of the Supreme Court, but held "that Congress has inadvertently passed the limit which separates the legislative from the judicial power." 80 U.S. at 147. By declaring that pardons were not, as the Court had previously found, proof of loyalty, but instead were conclusive proof of disloyalty, Congress had "prescribe[d] rules of decision to the Judicial Department of the government in cases pending before it." Id. at 146. The Court also held that by "impairing the effect of a pardon," the statute "infring[ed] the constitutional power of the Executive." Id. at 147.
Whether MCA § 7 violates Klein and its progeny is the only remaining issue. The Court previously considered all of Wazir's other arguments and, for the reasons stated in the April 2 memorandum opinion, found them insufficient to defeat respondents' motion to dismiss. Because the Court now finds Wazir's argument under Klein unavailing for the reasons below, respondents' motion to dismiss Wazir's habeas petition will be granted.
The issue before the Court is whether MCA § 7 violates the separation of powers principle set out in Klein and is therefore facially unconstitutional. A statute can potentially run afoul of Klein in two ways. First, Congress may not pass a statute "infringing the constitutional power of the Executive." Klein, 13 U.S. at 147; see also United States v. Sioux Nation of Indians, 448 U.S. 371, 404 (1980) (interpreting scope of Klein). MCA § 7, if anything, enhances the Executive's role, and hence this aspect of Klein is not at issue here. Second, a statute violates Klein if it "prescribe[s] a rule of decision in a case pending before the courts." Sioux Nation, 448 U.S. at 404. It is this second aspect of Klein that forms the basis of petitioner's challenge. And, in analyzing this prong of Klein, respondents do not argue that petitioner's case was not pending when the MCA was enacted. See Resps.' Br. at 9 & n.3. The only question, then, is whether MCA § 7 unconstitutionally prescribes a "rule of decision."
A "rule of decision" is defined as a "statute... that provides the basis for deciding or adjudicating a case." Black's Law Dictionary 1359 (8th ed. 2004). The only "rule of decision" that the Supreme Court has rejected as unconstitutional under Klein was the statute at issue in Klein itself. There, as discussed above, Congress enacted a new statute providing that a presidential pardon was not equivalent to proof of loyalty, as the Supreme Court had previously held, but was in fact proof of disloyalty. See Klein, 13 U.S. at 145. If, on appeal from the Court of Claims, the Supreme Court determined that a claimant had provided a presidential pardon as proof of loyalty, then the statute required the Supreme Court to dismiss the case for lack of jurisdiction. Id.
The Supreme Court significantly altered the scope of Klein in Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992). At issue in Robertson was a statute enacted while two cases were pending in the lower federal courts. The pending cases challenged proposed timber harvesting in the Pacific Northwest. In response to the litigation, Congress passed an appropriations act containing a clause providing that "Congress hereby determines and directs that management of areas according to [other subsections of the statute] is adequate consideration for the purposes of meeting the statutory requirements that are the basis for the [pending litigation]." 503 U.S. at 434-35. The defendants sought dismissal based on the new statute, and plaintiffs argued that it violated Klein. Although the district court rejected plaintiffs' argument, the Ninth Circuit reversed, holding that the statute "directs the court to reach a specific result and make certain factual findings." Seattle Audubon Soc'y v. Robertson, 914 F.2d 1311, 1316 (9th Cir. 1990).
The Supreme Court granted certiorari and unanimously reversed. The Court concluded that the statute at issue "replaced the legal standards underlying the two original challenges... without directing particular applications under either the old or new standards." 503 U.S. at 437. In other words, the statute "compelled changes in law, not findings or results under old law." Id. at 438. While some have argued that this interpretation in fact overruled Klein,*fn1 most scholars and courts interpret Robertson to have narrowed Klein so that it applies only when Congress directs courts how to apply existing laws, but not when Congress adopts a new law. See Erwin Chemerinksy, Federal Jurisdiction § 3.2 (5th ed. 2007); Nat'l Coalition to Save Our Mall v. Norton, 269 F.3d 1092, 1097 (D.C. Cir. 2001).
Under Klein, as interpreted by Robertson, petitioner's argument fails. MCA § 7 does not direct courts how to apply existing laws. Nor does it command courts to find that certain petitioners are or are not "enemy combatants." Rather, it amends the applicable substantive law -- 28 U.S.C. § 2241 -- to strip courts of jurisdiction for petitioners detained as "enemy combatants." And when a statute merely "amends the applicable substantive law," it does not violate Klein. See Save Our Mall, 269 F.3d at 1097; see also Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218 (1995) ("Whatever the precise scope of Klein... later decisions have made clear that its prohibition does not take hold when Congress 'amends applicable law.'") (quoting Robertson, 503 U.S. at 441); Jung v. Ass'n of Am. Medical Colleges, 2006 WL 1582667, at *2 (D.C. Cir. June 1, 2006) ("Congress may amend substantive laws, even when doing so affects pending litigation.") (citing Robertson, 503 U.S. at 438).
Other statutes that have been upheld under Klein and Robertson further demonstrate that MCA § 7 does not violate Klein. The statute at issue in Jung, for example, is instructive. There, as an antitrust suit challenging the National Resident Matching Program was pending, Congress passed a law exempting the matching program from the antitrust laws and "bar[ring] evidence of any participation in such programs in support of a claim in federal court that antitrust laws have been violated." 2006 WL 1582667, at *1. The law expressly applied to pending suits. Id. Under the new statute, the case was dismissed. On appeal, the D.C. Circuit rejected plaintiff's argument under Klein and ...