Bismullah v. Gates

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 20, 2008 Decided January 9, 2009

No. 06-1197

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

No. 07-1508

ABDUSABOUR,
PETITIONER

v.

ROBERT M. GATES, SECRETARY OF DEFENSE, ET AL.,
RESPONDENTS

No. 07-1523

HAMMAD,
PETITIONER
 2
v.

ROBERT M. GATES, SECRETARY OF DEFENSE, ET AL.,
RESPONDENTS

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
 3
the Supreme Court held unconstitutional in Boumediene v.
Bush, 128 S. Ct. 2229 (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, 128 S. Ct. 2960 (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.
 4
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 (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
*
This court suggested as much, without resolving the issue, in the
course of granting the Government’s motion to hold a detainee’s
DTA petition in abeyance pending resolution of the detainee’s
habeas case. Basardh v. Gates, 545 F.3d 1068, 1070 (2008)
(registering “serious doubt about our jurisdiction” over DTA
petitions).
 5
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 (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 (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

*
This court exercised jurisdiction over a petition filed pursuant to
the DTA after Boumediene, see Parhat v. Gates, 532 F.3d 834
(2008), but “courts are not bound by a prior exercise of jurisdiction
in a case where it was not questioned.” Indep. Petroleum Ass’n of
Am. v. Babbitt, 235 F.3d 588, 597 (D.C. Cir. 2001). As to whether
the judgment in Parhat remains res judicata despite our holding
today, see CHARLES ALAN WRIGHT, ARTHUR R. MILLER &
EDWARD H. COOPER, 18A FEDERAL PRACTICE AND PROCEDURE:
JURISDICTION 2D § 4428, at 7 (“The res judicata effects of a
judgment entered by a court that lacked subject-matter jurisdiction
have not been captured in any rule or clear statement of controlling
policies. . . . Recent decisions [tend] more and more toward
supporting res judicata. Today, it is safe to conclude that most
federal-court judgments are res judicata notwithstanding a lack of
subject-matter jurisdiction.”).
 6
258-59 (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 (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 (quoting
Denver Area Ed. Telecomms. Consortium, Inc. v. FCC, 518
U.S. 727, 767 (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.”
 7
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 (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
 8
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 corpus and hence the exclusive means by which a
detainee could contest the legality of his detention in a court.

In sum, the Congress wanted DTA review (1) to be
conducted solely in this court, (2) limited in scope, and (3) to
displace habeas corpus and any other action by which an alien
held at Guantanamo might challenge his detention in court.
Because the Court held unconstitutional the provision
eliminating habeas jurisdiction, DTA § 1005(e)(2) can no
longer provide jurisdiction exclusively in this court over a
detainee’s challenge to his detention as an enemy combatant;
instead a detainee may challenge his detention in the District
Court for the District of Columbia and get review of its
decision in this court. Nor can DTA review now serve as a
substitute – albeit more limited in scope – for habeas corpus.
Therefore, DTA review, by opening an avenue of relief
alongside the writ of habeas corpus, can no longer “function
in a manner consistent with the intent of Congress.” Alaska
Airlines, 480 U.S. at 685 (emphasis omitted).

The detainees would draw a different lesson from the text
of the statute, pointing out that the Congress did not include –
though it could have done – a provision specifying that the
jurisdiction-granting and jurisdiction-stripping provisions
were not severable. The detainees cite no authority
suggesting this is significant, and with good reason: The
Congress’s failure to include a non-severability clause does
not create a presumption of severability, any more than the
absence of a severability clause implies non-severability. See
id. at 686 (“In the absence of a severability clause ...
Congress’ silence is just that – silence - and does not raise a
presumption against severability”). At oral argument the
 9
detainees contended the absence of a non-severability clause
is nonetheless significant in this case because the Congress
was aware its action was potentially unconstitutional. Such
awareness could, just as easily, however, have prompted the
Congress to include a severability clause as a non-severability
clause; it did neither. As usual, therefore, congressional
silence tells us nothing about the Congress’s intent regarding
severability. See id.

The enactment of successive jurisdiction-stripping
provisions, in contrast, tells us quite a lot. In particular, it
confirms what the text suggests: The Congress’s primary
objective in giving this court “exclusive jurisdiction” over an
enemy combatant’s challenge to his detention, DTA §
1005(e)(2), was to limit the avenues for and scope of judicial
review available to detainees. See Boumediene, 128 S. Ct. at
2266 (“In passing the DTA Congress .... intended to create a
more limited procedure [than habeas]”); see also Richard H.
Fallon & Daniel J. Meltzer, Habeas Corpus Jurisdiction,
Substantive Rights, and the War on Terror, 120 HARV. L.
REV. 2029, 2096 (2007); Editorial, A Case for Appeal, WASH.
POST, Sept. 26, 2006, at A20 (noting DTA was part of effort
“to limit judicial supervision over detentions”).

In 2004 the Court held the habeas statute, 28 U.S.C. §
2241, extended to the detainees at Guantanamo. Rasul v.
Bush, 542 U.S. 466, 483-84 (2004). The Congress responded
directly by passing the DTA, eliminating the jurisdiction of
the courts over a detainee’s challenge to his detention by
habeas corpus or otherwise except for the newly-created and
carefully delimited statutory review in this court. In Hamdan,
however, the Court interpreted the jurisdiction-stripping
provision of the DTA not to apply to pending habeas cases.
548 U.S. at 574-76. Again the Congress responded, this time
making crystal clear its intent to eliminate all forms of
 10
judicial review for enemy combatants detained at
Guantanamo, including pending cases, except for the narrow
substitute provided in the DTA. See Boumediene, 128 S. Ct.
at 2243 (“If this ongoing dialogue between and among the
branches of Government is to be respected, we cannot ignore
that the MCA was a direct response to Hamdan’s holding that
the DTA’s jurisdiction-stripping provision had no application
to pending cases”). This “dialogue” between the Court and
the Congress shows that the Congress’s overriding goal
throughout was to limit the judicial review available to
detainees. It also confirms that the jurisdiction-stripping
provision of the MCA cannot be deemed severable from the
jurisdiction-granting provision of the DTA merely because
the two were enacted at different times. The intervening
decision of the Supreme Court bridges the interval; the
jurisdiction-stripping provisions of the MCA replaced those
of the DTA in direct response to the Court’s interpretation of
the DTA.

The detainees argue that, in view of the ongoing dialogue
between the Congress and the courts, the failure of the
Congress to respond to Boumediene by repealing DTA §
1005(e)(2) indicates that continued operation of that section is
consistent with congressional intent. The Congress has had
only a few months in which to respond to Boumediene,
however, and in any event, absent an extraordinary counter-
indication, congressional failure to act is of no probative
value. See Bob Jones Univ. v. United States, 461 U.S. 574,
600 (1983) (“Ordinarily, and quite appropriately, courts are
slow to attribute significance to the failure of Congress to act
on particular legislation”). Legislative inaction is not
probative here because it is neither long-standing nor is there
“‘overwhelming evidence’ that Congress considered and
failed to act upon the ‘precise issue’ before the [c]ourt.”
Rapanos v. United States, 547 U.S. 715, 750 (2006); cf. Bob
 11
Jones Univ., 461 U.S. at 600-01 (finding probative
Congress’s inaction over a long period). The detainees cite
Medellin v. Texas, 129 S. Ct. 360, 361 (2008), for the
proposition that a failure to respond to a decision by the Court
within just a few months may be significant, but in that case
the Congress also had four years to respond to the underlying
decision of the International Court of Justice, id. In contrast
to Medellin, here the Congress was faced with the problem of
continued DTA review for the first time last June, when the
Court held the jurisdiction-stripping provision of the MCA
unconstitutional.

The detainees maintain that the actual objective of the
Congress was to streamline review of detainee claims; they
contend that objective can be served with DTA review intact.
Although it is certainly true that the Congress intended review
pursuant to the DTA to be streamlined in that it was vested in
one court with no right of further appeal and was limited in
scope to the issues of compliance with and the lawfulness of
applicable procedures, we think it clear the legislature’s
primary objective was to curtail the detainees’ access to
judicial review by providing one form of review in lieu of
habeas corpus or “any other action.” MCA § 7(a). Even if
the detainees’ characterization of the Congress’s objective as
limited to streamlining review were correct, however, that
objective would not be served by the continued operation of
DTA review.

The detainees argue to the contrary that parallel forms of
review generate “synergies” and “efficiencies,” but that is not
convincing. Although a few detainees, including petitioner
Bismullah, have chosen (at least thus far) to pursue only
review under the DTA, the great majority have chosen to
pursue both DTA review and a writ of habeas corpus.
Further, because review under the DTA is narrow, a habeas
 12
proceeding will almost always be necessary to address issues
that cannot be raised in the DTA proceeding. Finally, to the
extent detainees proceed with both actions simultaneously, as
most are now doing, it is a near certainty the proceedings will
be duplicative and will greatly burden the Government’s
capacity to produce sensitive evidence, which is hardly
consistent with the objective of streamlining review. See
Decl. of Michael V. Hayden, Director, Central Intelligence
Agency ¶ 13, Aug. 29, 2008, Resp’t Pet. for Reh’g
Addendum 60-61; Decl. of Robert S. Mueller, III, Director,
Federal Bureau of Investigation ¶ 14-16, Sept. 6, 2007, Resp’t
Pet. for Reh’g Addendum 81. The aggregate effect of
providing two simultaneous and overlapping but not
congruent forms of judicial review is a less, not a more,
streamlined and efficient process.

Having disposed of the detainees’ “streamlining”
argument, we are left with the question whether the Congress
would have enacted the jurisdiction-granting provision of the
DTA had the Congress known its attempt to eliminate habeas
review for the detainees would be held unconstitutional. The
answer is undoubtedly no. Because the basic objective of the
statute was to limit the detainees’ access to the courts, had the
Congress known its attempts to eliminate the habeas
jurisdiction of the district courts would come to naught, it
would not have turned around and created an additional and
largely duplicative process by which a detainee could
challenge his detention in the court of appeals.

III. Conclusion

In sum, we are confident the Congress would not have
enacted DTA § 1005(e)(2) in the absence of the statutory
provision banning the courts from exercising jurisdiction over
a detainee’s habeas petition. Because the latter provision has
 13
been held unconstitutional, the former must also fall.
Accordingly, we hold this court lacks subject matter
jurisdiction over the detainees’ petitions for review of their
status determinations by a CSRT. The petitions are,
therefore,

Dismissed.