United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 22, 2013 Decided January 17, 2014
No. 12-5017
ABDUL RAHIM ABDUL RAZAK AL J ANKO ,
APPELLANT
v.
ROBERT M. G ATES, FORMER SECRETARY OF DEFENSE , ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01702)
Paul L. Hoffman argued the cause for the appellant.
Terrence P. Collingsworth, Jennifer Green and Judith Brown
Chomsky were on brief. Catherine E. Sweetser entered an
appearance.
Janis H. Brennan was on brief for amici curiae Scholars
of State Law and International Law in support of the
appellant.
Sydney Foster, Attorney, United States Department of
Justice, argued the cause for the appellees. Stuart F. Delery,
Principal Deputy Assistant Attorney General, Matthew M.
Collette, Attorney, Mary Hampton Mason, Senior Trial
2
Counsel, and Siegmund F. Fuchs, Trial Attorney, were on
brief.
Before: HENDERSON, ROGERS and T ATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LE CRAFT HENDERSON, Circuit Judge: As part of
its global war on terrorism, the United States detained Abdul
Rahim Abdul Razak al Janko in Afghanistan and at United
States Naval Station Guantanamo Bay (Guantanamo) in Cuba
for seven years before the district court granted him a writ of
habeas corpus and ordered that diplomatic efforts be
undertaken to secure his release. He now seeks to recover for
injuries sustained during his detention. Because the Congress
has, in unmistakable language, denied the district court
jurisdiction to entertain his claims, we affirm the dismissal of
his claims.
I. Background
The Appellant is a Syrian citizen who alleges that he
travelled to Afghanistan in January 2000. Shortly thereafter,
the Taliban forced him to confess to spying for the United
States and Israel and imprisoned him in Kandahar, where he
was tortured by his Taliban captors. After the attacks on our
homeland on September 11, 2001, U.S. forces commenced
military operations in Afghanistan to subdue al Qaeda and its
Taliban allies. Shortly after the operations began, the new
Afghan government liberated the Appellant’s prison.
Allegedly on the basis of misinterpreted intelligence,
however, U.S. officials identified the Appellant as an enemy
combatant. 1 Pursuant to the President’s congressionally
1
The Executive Branch defines “enemy combatant” as “an
individual who was part of or supporting Taliban or al Qaida forces,
3
conferred authority, see Authorization for Use of Military
Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224, 224
(2001), to detain enemy combatants “for the duration of the
particular conflict in which they were captured,” Hamdi v.
Rumsfeld, 542 U.S. 507, 518 (2004) (plurality opinion); see
also Ali v. Obama, 736 F.3d 542, 544 (D.C. Cir. 2013), U.S.
forces captured the Appellant and transferred him to
Guantanamo in May 2002. He alleges that, for the next seven
years, U.S. officials subjected him to torture, physical and
psychological degradation and other forms of mistreatment.
During his detention, two Combatant Status Review Tribunals
(CSRTs)—executive-branch tribunals convened to determine
the status of Guantanamo detainees, see Maqaleh v. Hagel,
Nos. 12-5404 et al., 2013 WL 6767861, at *8 (D.C. Cir. Dec.
24, 2013)—determined that the Appellant was lawfully
detained as an enemy combatant. 2
The Appellant sought to obtain release from detention by
filing a petition for a writ of habeas corpus in district court.
After the Supreme Court decided that Guantanamo detainees
have a constitutional right to challenge the basis of their
detentions, Boumediene v. Bush, 553 U.S. 723, 771 (2008),
or associated forces that are engaged in hostilities against the
United States or its coalition partners.” Parhat v. Gates, 532 F.3d
834, 838 (D.C. Cir. 2008) (quotation marks omitted); see also Al-
Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010) (adopting
executive-branch definition of enemy combatant in habeas cases).
2
In addition to the CSRT decisions, two Administrative
Review Boards (ARBs) determined that the Appellant was properly
detained. The United States Secretary of Defense (Secretary)
established the ARBs to review whether a detainee should remain
detained “based on an assessment of various factors, including the
continued threat posed by each detainee.” Hamad v. Gates, 732
F.3d 990, 994 (9th Cir. 2013); see also Boumediene v. Bush, 553
U.S. 723, 821 (2008) (Roberts, C.J., dissenting) (describing ARBs).
4
the district court granted his petition, Al Ginco v. Obama, 626
F. Supp. 2d 123, 130 (D.D.C. 2009), and the United States
released him in October 2009. Nearly one year later, he filed
a complaint in district court against the United States and
twenty-six U.S. officials (collectively Government) for
injuries he suffered during his detention. His complaint, as
amended, stated claims under the Alien Tort Statute, 28
U.S.C. § 1350; the Federal Tort Claims Act, 28 U.S.C.
§§ 1346(b), 2671 et seq.; the Enforcement Act of 1871, 42
U.S.C. § 1985; and for violation of his Fourth and Fifth
Amendment rights under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Holding that, inter alia, section 7(a) of the Military
Commissions Act of 2006 (MCA), Pub. L. No. 109-366,
§ 7(a), 120 Stat. 2600, 2635 (codified at 28 U.S.C. § 2241(e)
(2006)), ousted it of jurisdiction, the district court dismissed
the Appellant’s claims. Janko v. Gates, 831 F. Supp. 2d 272,
278–81 (D.D.C. 2011). He timely appealed.
II. Analysis
A. Standard of Review
“We review de novo the district court’s grant of a motion
to dismiss for lack of subject matter jurisdiction.” Oakey v.
U.S. Airways Pilots Disability Income Plan, 723 F.3d 227,
231 (D.C. Cir. 2013). Because the Government has not
disputed the facts relevant to jurisdiction, we accept the
Appellant’s allegations as true and review only the district
court’s application of the law. See Herbert v. Nat’l Acad. of
Scis., 974 F.2d 192, 197–98 (D.C. Cir. 1992).
The question presented in this appeal is whether the
district court has jurisdiction over all, or any, of the
Appellant’s claims. “Federal courts are courts of limited
jurisdiction. They possess only that power authorized by
5
Constitution and statute . . . .” Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994). Because the
Appellant’s claims raise questions of federal law, they are
within the district court’s constitutional jurisdiction. See
Osborn v. Bank of the U.S., 22 U.S. (9 Wheat.) 738, 823–24
(1824) (Marshall, C.J.). Our task, then, is to decide whether
the Congress has conferred authority on the district court to
hear his claims and, if it has not, whether the Congress has
constitutional authority to withhold jurisdiction.
The first question turns on the meaning of section 7(a) of
the MCA. That section provides:
(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 determined
by the United States to have been properly detained as
an enemy combatant or is awaiting such
determination.
28 U.S.C. § 2241(e) (2006). In Al-Zahrani v. Rodriguez, we
held that section 2241(e)(2) withdraws the district court’s
jurisdiction over damages actions regarding any aspect of the
6
detention of an alien previously determined by a CSRT to be
properly detained as an enemy combatant. 669 F.3d 315, 318–
19 (D.C. Cir. 2012); see also Hamad v. Gates, 732 F.3d 990,
995–96 (9th Cir. 2013); cf. Al-Nashiri v. MacDonald, No. 12-
35475, 2013 WL 6698066, at *3 (9th Cir. Dec. 20, 2013).
Although the Al-Zahrani holding covers the Appellant’s
claims, he argues that the fact that he obtained a writ of
habeas corpus, which the Al-Zahrani detainees did not, moves
his claims outside section 2241(e)(2)’s ambit. And even if it
does not, he argues, section 2241(e)(2) is unconstitutional as
applied to his claims. We consider each argument in turn.
B. Statutory Construction
“The preeminent canon of statutory interpretation
requires us to ‘presume that [the] legislature says in a statute
what it means and means in a statute what it says there.’
Thus, our inquiry begins with the statutory text, and ends
there as well if the text is unambiguous.” BedRoc Ltd., LLC v.
United States, 541 U.S. 176, 183 (2004) (plurality opinion of
Rehnquist, C.J.) (quoting Conn. Nat’l Bank v. Germain, 503
U.S. 249, 253–254 (1992)); see also United States v. Ron Pair
Enters., Inc., 489 U.S. 235, 241 (1989).3 The parties agree on
the relevant text:
[N]o 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
3
The Appellant argues that we need not decide section
2241(e)(2)’s meaning because the Supreme Court struck it down in
Boumediene. We have previously rejected this argument and do so
again. Al-Zahrani, 669 F.3d at 319; Kiyemba v. Obama (Kiyemba
II), 561 F.3d 509, 512 n.1 (D.C. Cir. 2009); see also Al-Nashiri,
2013 WL 6698066, at *4; Hamad, 732 F.3d at 1000.
7
confinement of an alien who is or was detained by the
United States and has been determined by the United
States to have been properly detained as an enemy
combatant . . . .
28 U.S.C. § 2241(e)(2) (emphasis added). This action is
undoubtedly an action (1) other than habeas corpus or direct
review of a CSRT determination (2) against the United States
or its agents (3) brought by an alien (4) previously detained
by the United States, which action (5) relates to an aspect of
his detention. The crux of the parties’ dispute is whether the
Appellant was “determined by the United States to have been
properly detained as an enemy combatant.” Id. (emphasis
added).
1. Meaning of “the United States”
The Government argues that the statute bars the
Appellant’s claims because “the United States” means only
“the Executive Branch.” Because the CSRT is an executive-
branch tribunal, the Government contends that the first
CSRT’s determination that the Appellant was properly
detained triggered the jurisdictional bar. The Appellant,
citing to a dictionary and to cases interpreting unrelated
statutes, argues that “the United States” ordinarily
encompasses all three branches of the federal government and
not solely the Executive Branch. He argues that the bar does
not apply to him because the district court’s grant of the writ
is a determination by the United States “that he was never
properly detained as an enemy combatant.” Pl.-Appellant’s
Opening Br. 2 (Janko Br.), Janko v. Gates, No. 12-5017 (D.C.
Cir. Jan. 9, 2013) (emphasis in original).
The Appellant is of course correct that, in the absence of
a statutory definition, we give statutory language its “ordinary
or natural meaning.” FDIC v. Meyer, 510 U.S. 471, 476
8
(1994); see also Engine Mfrs. Ass’n v. S. Coast Air Quality
Mgmt. Dist., 541 U.S. 246, 252 (2004). The rule emanates
from the common-sense notion that the Congress, like any
speaker, desires to be understood and, “in the absence of
contrary indication,” Freeman v. Quicken Loans, Inc., 132 S.
Ct. 2034, 2042 (2012), uses words in the way they are
ordinarily used and understood, see Watson v. United States,
552 U.S. 74, 79 (2007); Maillard v. Lawrence, 57 U.S. (16
How.) 251, 261 (1853). But “plain meaning” takes us only so
far. Because many words are susceptible of multiple
meanings, plain meaning is frequently not so plain. The
expression “the United States” is a case in point. Those
words in a newspaper article about World Cup competition—
“the United States took an early lead on its way to defeating
Mexico”—likely mean something quite different from the
same words in an article about foreign policy—“the United
States has entered bilateral trade talks with Mexico.” Turning
to the dictionary entry for “United States” is unlikely to
resolve the ambiguity. See A. Raymond Randolph,
Dictionaries, Plain Meaning, and Context in Statutory
Interpretation, 17 HARV. J.L. & PUB. POL’Y 71, 72 (1994)
(“[C]iting to dictionaries creates a sort of optical illusion,
conveying the existence of certainty—or ‘plainness’—when
appearance may be all there is.”); see also Country Mut. Ins.
Co. v. Am. Farm Bureau Fed’n, 876 F.2d 599, 600 (7th Cir.
1989). Instead, our interpretation of “the United States” is
informed by the context in which the words appear. See
Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997); Deal v.
United States, 508 U.S. 129, 132 (1993).
If “the United States” seems “ambiguous in isolation,” it
is “clarified by the remainder of the statutory scheme[]
because the same terminology is used elsewhere in a context
that makes its meaning clear . . . .” United Sav. Ass’n of Tex.
v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371
9
(1988). The statute applies to any alien “detained by the
United States” and “determined by the United States to have
been properly detained as an enemy combatant.” 28 U.S.C.
§ 2241(e)(2) (emphases added). In light of the “established
canon of construction that similar language contained within
the same section of a statute must be accorded a consistent
meaning,” the Congress’s use of the same words to describe
the detaining authority and the authority responsible for
making the propriety-of-detention determination leads us to
conclude that they are one and the same. Nat’l Credit Union
Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 501
(1998); see also Powerex Corp. v. Reliant Energy Servs., Inc.,
551 U.S. 224, 232 (2007). As the Congress well understood
when it enacted the MCA, the detention of aliens as enemy
combatants is an exclusively executive function. See
Boumediene, 553 U.S. at 782–83 (distinguishing between
those “detained by executive order” at Guantanamo and those
held pursuant to criminal sentence); Hamdi, 542 U.S. at 516–
17 (holding AUMF gives “the Executive . . . the authority to
detain citizens who qualify as ‘enemy combatants’ ”); Rasul
v. Bush, 542 U.S. 466, 475, 483 n.15, 485 (2004) (recognizing
that detainees at Guantanamo are in exclusively executive
detention); Detention, Treatment, and Trial of Certain Non–
Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833,
57,834 (Nov. 13, 2001) (executive order authorizing detention
of enemy combatants); see also Oral Argument 13:17, Janko
v. Gates, No. 12-5017 (D.C. Cir. Oct. 22, 2013) (The
Appellant’s counsel conceding that “courts ordinarily don’t
detain people so the reference to ‘the United States’ in terms
of an ‘alien detained by the United States’ ordinarily” refers
to the Executive Branch); cf. Uthman v. Obama, 637 F.3d
400, 402 (D.C. Cir. 2011). Because the detaining authority
referred to as “the United States” in section 2241(e)(2) is
exclusively the Executive Branch, and the determination
triggering the jurisdictional bar is made by the detaining
10
authority, a “determin[ation] by the United States” is one
made by the Executive Branch.
Section 2241(e)(1), enacted as part of the same statutory
subsection, confirms our interpretation. 4 The provision ousts
all federal courts of jurisdiction over a habeas petition filed by
any alien “detained by the United States” and “determined by
the United States to have been properly detained as an enemy
combatant.” 28 U.S.C. § 2241(e)(1). This provision is plainly
in pari materia with section 2241(e)(2) and so we must give a
consistent interpretation to the two provisions’ identical
language. See Nijhawan v. Holder, 557 U.S. 29, 39 (2009)
(“Where, as here, Congress uses similar statutory language
4
We recognize that Boumediene struck down section
2241(e)(1) as it applies to Guantanamo. Maqaleh, 2013 WL
6767861, at *18; Kiyemba II, 561 F.3d at 512 n.2. Boumediene
does not, however, preclude us from considering section 2241(e)(1)
when interpreting section 2241(e)(2). Our task is to give section
2241(e)(2) the meaning it was understood to have when the
Congress enacted it. See Republic of Argentina v. Weltover, Inc.,
504 U.S. 607, 612–13 (1992) (“The meaning of [the relevant text]
is the meaning generally attached to that term . . . at the time the
statute was enacted.”); Perrin v. United States, 444 U.S. 37, 42
(1979) (“[W]ords will be interpreted as taking their ordinary,
contemporary, common meaning . . . at the time Congress enacted
the statute . . . .”); see also Amoco Prod. Co v. S. Ute Indian Tribe,
526 U.S. 865, 873–74 (1999). Particularly because the two
provisions were enacted as part of one statutory section and are in
pari materia—indeed, paragraph (e)(2) refers to paragraph (e)(1),
see Boumediene, 553 U.S. at 737—we cannot apprehend the
original meaning of section 2241(e)(2) within the context of the
“whole law” enacted by the Congress without reference to section
2241(e)(1). United States v. Heirs of Boisdoré, 49 U.S. (8 How.)
113, 122 (1849); see also 2B NORMAN J. SINGER & J.D. SHAMBIE
SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 51.04 (7th
ed. 2007).
11
and similar statutory structure in two adjoining provisions, it
normally intends similar interpretations.”); cf. Erlenbaugh v.
United States, 409 U.S. 239, 244 (1972). This we can easily
do. In a statute depriving federal courts of jurisdiction to
decide the lawfulness of executive detention, the phrase
“determined by the United States” must refer to an executive-
branch determination. We will not “ ‘attribute a
schizophrenic intent to the’ ” Congress by reading “the United
States” to refer to executive-branch determinations in section
2241(e)(1) but not in section 2241(e)(2). Yousuf v. Samantar,
451 F.3d 248, 256 (D.C. Cir. 2006) (quoting Marek v.
Chesny, 473 U.S. 1, 21 (1985)).5
Finally, we find support for our interpretation in the
version of section 2241(e)(2) which the MCA amended. See
Johnson v. United States, 529 U.S. 694, 710 (2000) (“[W]hen
a new legal regime develops out of an identifiable
predecessor, it is reasonable to look to the precursor in
fathoming the new law.”); see also Hamilton v. Rathbone, 175
U.S. 414, 421 (1899). The Congress originally added 28
U.S.C. § 2241(e) to the U.S. Code in section 1005(e) of the
Detainee Treatment Act (DTA) of 2005, Pub. L. 109-148,
§ 1005, 119 Stat. 2739, 2742–43. Section 1005(e)(2) granted
this Court exclusive jurisdiction to review CSRT
determinations, see Bismullah v. Gates, 501 F.3d 178, 183
(D.C. Cir. 2007), vacated and remanded on other grounds by
554 U.S. 913 (2008), and section 1005(e)(1) (the portion
codified at 28 U.S.C. § 2241(e)(2)) ousted the federal courts
5
Because the statutory text is unambiguous, we need not
consult the MCA’s legislative history. See United States v.
Gonzales, 520 U.S. 1, 6 (1997) (“Given the straightforward
statutory command, there is no reason to resort to legislative
history.”); Nat’l Shooting Sports Found., Inc. v. Jones, 716 F.3d
200, 212 (D.C. Cir. 2013).
12
of jurisdiction to consider any non-habeas claim “against the
United States or its agents relating to any aspect of the
detention by the Department of Defense of an alien at
Guantanamo Bay, Cuba, who . . . has been determined by the
United States Court of Appeals for the District of Columbia
Circuit [D.C. Circuit]. . . to have been properly detained as an
enemy combatant,” DTA § 1005(e)(1), 119 Stat. at 2742
(codified at 28 U.S.C. § 2241(e)(2) (Supp. V 2005))
(emphasis added).
Responding to the Supreme Court’s interpretation of
section 1005(e) of the DTA, see Hamdan v. United States,
548 U.S. 557, 572–84 (2006), the Congress amended 28
U.S.C. § 2241(e) in the MCA. Despite retaining our review
of CSRT determinations, see MCA § 7(a), 120 Stat. at 2636
(excepting from jurisdictional bar actions brought under
“paragraph[] (2) . . . of section 1005(e) of the” DTA), section
7(a) replaced both “the Department of Defense” (the detaining
authority) and the “D.C. Circuit” (the relevant status
determiner) with “the United States,” compare DTA
§ 1005(e)(1), 119 Stat. at 2742, with MCA § 7(a), 120 Stat. at
2635–36. The change is significant. Under the DTA, the
relevant propriety-of-detention determination was made by a
tribunal (the D.C. Circuit) independent of the detaining
authority (the Department of Defense). Under the MCA,
however, the Congress abandoned the independent, judicial
propriety-of-detention determination in favor of a non-judicial
determination made by the same entity that detains the alien
(the United States). Adopting the Appellant’s interpretation
would deprive the changes made by section 7(a) of any “real
and substantial effect” and flout the Congress’s manifest
intent to have section 2241(e)(2)’s applicability turn on a non-
13
judicial status determination. Stone v. INS, 514 U.S. 386, 397
(1995).6
2. The Appellant’s Counterarguments
The Appellant counters our interpretation by arguing that
we effectively read “properly” out of the statute. His
contention rests on the belief that the statute bars claims only
from detainees who received “proper” CSRT determinations,
to wit, those detainees who in fact are enemy combatants. A
CSRT determination is “proper,” apparently, if a habeas court
subsequently reaches the same conclusion. Because the
district court in Al Ginco disagreed with the Appellant’s two
CSRTs, he argues that he is not in fact an enemy combatant
and section 2241(e)(2) does not apply.
The Appellant’s argument results in a very subtle
rewriting of the statute. The statute applies to an alien
“determined by the United States to have been properly
detained as an enemy combatant.” 28 U.S.C. § 2241(e)(2)
6
The Appellant views the DTA differently. He argues that,
because section 2241(e)(2) preserved this Court’s review of CSRT
determinations, the Congress contemplated a “role” for “the
Judiciary . . . in determining whether someone had been properly
detained.” Appellant’s Reply Br. 10, Janko v. Gates, No. 12-5017
(D.C. Cir. Apr. 15, 2013). Although we have since invalidated
section 1005(e)(2) of the DTA, Bismullah v. Gates, 551 F.3d 1068,
1072–73 (D.C. Cir. 2009), we agree that the Congress preserved a
“role” for a particular court in the status determination process. But
that fact does not avail him for two reasons. First, the only “role”
was for this Court alone, not for the district court that granted his
habeas petition. Second, the relevant question is not whether the
judiciary has a “role” in status determinations generally but rather
which branch’s determination triggers section 2241(e)(2)’s
jurisdictional bar. For the reasons we have already given, the
Executive Branch’s determination alone triggers the bar.
14
(emphasis added). He reads “properly” to modify
“determined,” thereby requiring that a CSRT correctly
determine a detainee’s status in order that section 2241(e)(2)
apply. But “properly” does not modify “determined”; it
modifies “detained.” The phrase “properly detained as an
enemy combatant” identifies the type of determination the
Executive Branch must make, viz., a determination that the
detainee meets the AUMF’s criteria for enemy-combatant
status. See, e.g., Barhoumi v. Obama, 609 F.3d 416, 423, 432
(D.C. Cir. 2010) (detainee is “properly detained pursuant to
the AUMF” if he meets the requirements for enemy
combatant status). But the statute does not say that the bar
applies to an alien whom “the United States has properly
determined to have been properly detained as an enemy
combatant.” It requires only that the Executive Branch
determine that the AUMF authorizes the alien’s detention
without regard to the determination’s correctness.
Conditioning the statute’s applicability on the accuracy of the
Executive Branch’s determination would do violence to the
statute’s clear textual directive. 7
The Appellant protests that if the bar applies even to
incorrect CSRT determinations, then it applies to every
person detained by the United States under the AUMF. He
argues that every detained alien has at least once been
determined by someone in the Executive Branch—a soldier or
an intelligence operative in the field, for example—to be an
7
More fundamentally, the Appellant’s contention that a
successful habeas petition makes any earlier CSRT status
determination “improper” has no textual footing. In the very
statutory subsection erecting the jurisdictional bar, the Congress
ousted the district courts from considering his petition. The statute
cannot be fairly read to include within the meaning of “determined
by the United States” a judicial decision which, in the same
statutory section, the Congress attempted to preclude.
15
enemy combatant. Cf. Boumediene, 553 U.S. at 783
(characterizing “the CSRT process as direct review of the
Executive’s battlefield determination that the detainee is an
enemy combatant”). If that determination is enough, he
argues, the mere fact of capture bars all claims for detention-
related injuries, a result the Congress could not possibly have
intended.
We need not decide today the full extent of the meaning
of “the United States.” In holding that section 2241(e)(2)
barred claims brought on behalf of aliens determined by
CSRTs to have been properly detained, Al-Zahrani
necessarily held that a CSRT determination is a determination
“by the United States,” see Al-Zahrani, 669 F.3d at 317, 319,
and we are bound by that holding, see LaShawn A. v. Barry,
87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc). Moreover,
whatever else “the United States” meant in 2006, “the
contextual background against which Congress was
legislating, including relevant practices of the Executive
Branch which presumably informed Congress’s decision,
prior legislative acts, and historical events” makes clear that
the words undoubtedly encompassed CSRTs. United States v.
Wilson, 290 F.3d 347, 354 (D.C. Cir. 2002); see also Nat’l
Lead Co. v. United States, 252 U.S. 140, 147 (1920) (citing
United States v. Bailey, 34 U.S. (9 Pet.) 238, 256 (1835)
(Story, J.).
Apparently concerned about what the Supreme Court’s
Hamdi and Rasul decisions 8 portended for aliens detained as
8
In Hamdi, the Supreme Court held that the Fifth Amendment
required the President to afford any U.S. citizen detained as an
enemy combatant an opportunity to challenge the basis of his
detention, Hamdi, 542 U.S. at 533 (plurality opinion), and Rasul
held that Guantanamo detainees could invoke the extant habeas
16
enemy combatants at Guantanamo, the Secretary established
CSRTs to permit detainees to challenge the Executive
Branch’s status determinations. Ashley S. Deeks, The
Observer Effect: National Security Litigation, Executive
Policy Changes, and Judicial Deference, 82 FORDHAM L.
REV. 827, 842–43 & n.63 (2013) (citing David A. Martin,
Judicial Review and the Military Commissions Act: On
Striking the Right Balance, 101 AM. J. INT’ L L. 344, 349
(2007)). The next year, the Congress in the DTA instructed
the Secretary to submit to the Congress “a report setting forth
. . . the procedures of the [CSRTs] . . . established by [him] . .
. for determining the status of the detainees held at
Guantanamo Bay.” DTA § 1005(a)(1)(A), 119 Stat. at 2740–
41 (emphasis added). And in section 1005(e)(2), entitled
“Review of Decisions of [CSRTs] of Propriety of Detention,”
the Congress gave this Court “exclusive jurisdiction to
determine the validity of any final decision of a [CSRT] that
an alien is properly detained as an enemy combatant.” Id.
§ 1005(e)(2)(A), 119 Stat. at 2742 (emphases added). The
language of the DTA, and the MCA’s reference thereto in
section 7(a), demonstrates that the Executive Branch’s
practice of using CSRTs to determine whether aliens detained
at Guantanamo were “properly detained as enemy
combatants” was well known to the Congress when it enacted
the MCA. Viewed against this historical backdrop, we are
convinced that “determined by the United States to have been
properly detained as an enemy combatant” refers to a
determination by the executive-branch tribunal the Congress
knew was making that determination. Cf. 10 U.S.C.
§ 948a(1)(A)(ii) (2006) (provision of MCA defining
“unlawful enemy combatant” as a person “determined to be
an unlawful enemy combatant by a [CSRT]”); id. § 948d(c)
statute, 28 U.S.C. § 2241, to challenge their detention, Rasul, 542
U.S. at 483. Both were decided on the same day.
17
(2006) (“A finding . . . by a [CSRT] . . . that a person is an
unlawful enemy combatant is dispositive for purposes of
jurisdiction for trial by military commission . . . .”).
Accordingly, we hold that a CSRT determination is a
“determin[ation] by the United States” under section
2241(e)(2) and reserve the question of what else those words
might mean for another day.
C. Constitutional Challenge
Having determined that the statute applies to the
Appellant, we must now decide whether its application is
constitutional. 9 We conclude that it is. He first argues that
9
Concomitantly with his constitutional arguments, the
Appellant contends that we should interpret section 7(a) as
inapplicable to his claims in order to avoid what he believes are
“serious issues of [the statute’s] constitutionality.” Janko Br. 31.
“When the validity of an act of the Congress is drawn in question,
and even if a serious doubt of constitutionality is raised, it is a
cardinal principle that this Court will first ascertain whether a
construction of the statute is fairly possible by which the question
may be avoided.” Crowell v. Benson, 285 U.S. 22, 62 (1932)
(Hughes, C.J.); see also United States v. Coombs, 37 U.S. (12 Pet.)
72, 76 (1838) (Story, J.). This principle applies if a statute (1)
raises “grave and doubtful constitutional questions,” Rust v.
Sullivan, 500 U.S. 173, 191 (1991) (quotation marks omitted), and
(2) is “readily susceptible” of two constructions, one constitutional
and the other unconstitutional, Reno v. Am. Civil Liberties Union,
521 U.S. 844, 884 (1997) (quotation marks omitted). Assuming
arguendo that section 2241(e)(2) satisfies the first requirement, it
does not satisfy the second. “[T]he statute must be genuinely
susceptible to two constructions after, and not before, its
complexities are unraveled.” Almendarez-Torres v. United States,
523 U.S. 224, 238 (1998); see also Clark v. Martinez, 543 U.S.
371, 385 (2005). As we have shown supra, section 2241(e)(2)
unambiguously applies to the Appellant’s claims. Because only
one construction of section 2241(e)(2) is “fairly possible,” United
18
section 2241(e)(2) is unconstitutional because it deprives him
of a damages remedy for violations of his constitutional
rights. Apparently recognizing that we rejected this argument
in Al-Zahrani, 669 F.3d at 319–20, the Appellant once again
relies on his successful habeas petition to distinguish his case.
While his successful habeas petition is a factual distinction, it
makes no constitutional difference. Jurisdiction, in this
context, is the authority of a court to decide a particular class
of cases. See Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154,
160–61 (2010) (“[T]he term ‘jurisdictional’ properly applies
only to ‘prescriptions delineating the classes of cases (subject-
matter jurisdiction) and the persons (personal jurisdiction)’
implicating [the court’s] authority.” (quoting Kontrick v.
Ryan, 540 U.S. 443, 455 (2004))). The class of claims to
which section 2241(e)(2) constitutionally applies plainly
encompasses the Appellant’s claims—that is, any detention-
related claims, whether statutory or constitutional, brought by
an alien detained by the United States and determined to have
been properly detained as an enemy combatant. Al-Zahrani,
669 F.3d at 318–19. The writ, although perhaps relevant to
the merits of his constitutional claims, does not move them
out of the class to which section 2241(e)(2) constitutionally
applies.
Finally, citing to United States v. Klein, 80 U.S. (13
Wall.) 128 (1871), the Appellant argues that section
2241(e)(2) unconstitutionally encroaches on the judiciary’s
Article III authority by mandating a particular result in his
case. The Supreme Court in Klein struck down a statute
because, inter alia, it purported to “prescribe rules of decision
States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916) (Holmes, J.), the
constitutional questions raised by section 2241(e)(2) “must be faced
and answered,” George Moore Ice Cream Co. v. Rose, 289 U.S.
373, 379 (1933) (Cardozo, J.).
19
to the Judicial Department . . . in cases pending before it” and
therefore “passed the limit which separates the legislative
from the judicial power.” Klein, 80 U.S. (13 Wall.) at 146,
147. Although Klein is a bit of a constitutional Sphinx, we
need not play Oedipus today. Klein applies where the
Congress prescribes the outcome of pending litigation, id. at
146; see also United States v. Sioux Nation of Indians, 448
U.S. 371, 404 (1980), by means other than amending the
applicable law, Plaut v. Spendthrift Farm, Inc., 514 U.S. 211,
218 (1995) (quoting Robertson v. Seattle Audubon Soc’y, 503
U.S. 429, 441 (1992)). Enacted as an amendment to 28
U.S.C. § 2241(e)(2) more than four years before the Appellant
filed his suit, section 7(a) of the MCA does not fit the bill. 10
It may very well be that to deny the Appellant recovery
for injuries incurred while in the United States’s custody
based solely on the unreviewed decision of a tribunal the
Supreme Court has labeled “closed and accusatorial” is rough
justice. Boumediene, 553 U.S. at 785 (quotation marks
omitted). But that objection is to the statute’s underlying
policy and not to our interpretation thereof. The Constitution,
subject to certain limitations, leaves exclusively to the
Congress questions of fairness, justice, and the soundness of
policy in the allocation of our jurisdiction. “[T]his court
simply is not at liberty to displace, or to improve upon, the
jurisdictional choices of Congress.” Wagner v. FEC, 717 F.3d
1007, 1016 (D.C. Cir. 2013) (per curiam) (quotation marks
10
We decline to decide how Klein might apply to litigation
pending at the time of the MCA’s enactment because the facts of
this case do not require it. See Lyng v. Nw. Indian Cemetery
Protective Ass’n, 485 U.S. 439, 445 (1988) (“A fundamental and
longstanding principle of judicial restraint requires that courts avoid
reaching constitutional questions in advance of the necessity of
deciding them.”).
20
omitted). The Congress has communicated its directive in
unmistakable language and we must obey.
For the foregoing reasons, the judgment of the district
court is
Affirmed.