This post is quite long, but worth reading.  It summarizes what we are left with after Boumediene v. Bush.  This post is a comment on Hamad v. Gates, No. 12-35395 (9th Cir.  Oct. 7, 2013).

Hamad, a Sudanese enemy combatant alleges he was detained in Pakistan in 2002 by Pakistani forces acting at the direction of an American official.  From there he was transferred to U.S. military custody and eventually detained at Guantanamo Bay.  The Combatant Status Review Tribunal (CSRT) found Hamad was an enemy combatant (individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners.  Hamdan v. Rumsfeld, 548 U.S. 557, 570 n. 1 (2006)).  In November 2005 an Administrative Review Board (ARB) panel found Hamad was a continued threat, but eligible for transfer to Sudan, where he was sent in 2007.

In 2010, Hamad filed an action for money damages in a federal district court in Washington State for prolonged arbitrary detention; cruel, inhuman, or degrading treatment; torture; targeting of a civilian; denial of due process;  and forced disappearance under state common law and the Alien Tort Statute 28 U.S.C. §1350.  He also claimed a violation of his Fifth Amendment right to due process.  District court held that it had subject matter jurisdiction, but dismissed for other reasons.  Hamad appealed and the government cross-appealed claiming 28 U.S.C. §2241(e) stripped the court of its subject matter jurisdiction.  If 28 U.S.C. §2241(e)(2) is valid then the Ninth Circuit lacks jurisdiction to hear the case.

Hamad argued that: 1. Boumediene v. Bush, 553 U.S. 723 (2008) struck down §2241(e) in its entirety, including §2241(e)(2);  2.  even if Boumediene struck down only §2241(e)(1), § 2241(e)(2) cannot be severed and both must fall together;  and 3. even if 2241(e)(2) survived, it is unconstitutional as applied to him.

In Hamdi v. Rumsfeld, 542 U.S. 507, (2004) the Court recognized the ability to capture combatants who fought during a particular conflict, and detain them for the duration of that conflict, is so fundamental and accepted an incident to war that it is necessary and appropriate force Congress has authorized the President to use.  Boumediene, 553 U.S. at 733. The same day the Supreme Court issued its opinion in Hamdi, it also issued Rasul v. Bush, 543 U.S. 466, 484 (2004) holding federal courts had jurisdiction under §2241 to hear Guantanamo detainees habeas corpus challenges to the legality of their detention.  Taken together, this court explained, the president had authority to detain individuals, but the detainees had a statutory right to habeas corpus in federal court to challenge their detention.

In response, Congress added subsection 2241(e) which imposed two additional limitations with two exceptions.  The limitations stripped any court of jurisdiction to hear a writ of habeas corpus filed by a detainee or any other action against the U.S. or its agents relating to any aspect of detention in Guantanamo Bay.  The D.C. Circuit was allowed to review the validity of any final decision of a CSRT that an alien is properly detained as an enemy combatant and to perform limited review of conviction by military tribunals.  However, the standard of review was limited to determining whether the review process was consistent with certain procedures and whether those procedures complied with the Constitution and applicable federal law.

The Boumediene court held that the protection of the Suspension Clause extended to individual detainees at Guantanamo, §2241(e) deprived petitioners of habeas corpus protection and to that extent it was invalid. Boumediene, 553 U.S. at 771.  It also found that the limited D.C. Circuit Review provided by the Detainee Treatment Act was not a sufficient substitute procedure for habeas.  Id.   It did not analyze whether §2241(e)(2) was constitutional or whether other constitutional provisions apply to Guantanamo detainees.

The court did not address section (e)(2), which covers other actions, but as a general rule, courts are to “refrain from invalidating more of a statute than is necessary,” United States v. Booker, 543 U.S. 220, 258 (2005).  The presumption of severability is overcome only if something “in the statute’s text or historical context makes it ‘evident’ that Congress, faced with the limitations imposed by the Constitution, would have preferred” no statute at all to a statute with the invalid part excised.  Free Enterprise Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3162 (2010) (quoting Alaska Airlines, 480 U.S. 678, 684(1987)). Section 2241(e)(2) is capable of functioning independently of §2241(e)(1).

Hamad argued §2241(e) is unconstitutional because it deprived him of a federal forum to seek a remedy for violations of his constitutional rights. The Supreme Court has avoided the question of whether Congress may completely deny a plaintiff access to federal forum to seek a remedy for a violation of constitutional rights.  This court also avoided the question because Hamad only sought money damages and the Constitution does not require the availability of such a remedy, even where the plaintiff’s claim is based on alleged violations of the constitutional rights. Al-Zahrani v. Rodriguez, 669 F.3d 315, 319 (D.C. Cir. 2012).  The court did not suggest an appropriate alternative remedy.

The Court went on to note that the statute is not a bill of attainder because there is no evidence of punitive intent and it does not inflict legislative punishment. Congress did not enact §2241(e) to impose any particular punishment on military detainees.  Nor does it violate Equal Protection even though it deprives alien enemy combatants, and not citizen combatants, of the ability to bring legal actions.

First, the Supreme Court has not yet determined whether the Fifth Amendment’s protections even apply to aliens detained outside the United States.   Second, even assuming it does apply, there are legitimate reasons for Congress to make classifications based on alienage.  Mathews v. Diaz, 426 U.S. 67, 78-80 (1976).  Therefore, the proper standard of review is rational basis.  Congress’s disparate treatment is rational.  The Ninth Circuit held that §2241(e)(2) is valid and deprives the court of subject matter jurisdiction in this case.