No. 12-6615

IN THE Supreme Court of the United States

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HEDELITO TRINIDAD Y GARCIA, Petitioner, v.

LINDA THOMAS, WARDEN, Respondent.

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On Petition For a Writ of Certiorari to the United States Court of Appeals

for the Ninth Circuit ______________

BRIEF OF LEGAL HISTORIANS

AND HABEAS CORPUS EXPERTS AS AMICI CURIAE IN SUPPORT OF PETITIONER

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STEPHEN I. VLADECK LINDSAY C. HARRISON 4801 MASSACHUSETTS Counsel of Record AVE. NW ROOM 386 MATTHEW E. PRICE WASHINGTON, DC 20016 JENNER & BLOCK LLP (202) 274-4241 1099 NEW YORK AVE. NW

SUITE 900 WASHINGTON, DC 20001 (202) 639-6000 lharrison@jenner.com November 8, 2012

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................... iii

INTEREST OF AMICI CURIAE ............................. 1

SUMMARY OF ARGUMENT .................................. 3

ARGUMENT ............................................................. 6

I. The Suspension Clause Protects the Use of the Writ of Habeas Corpus to Prevent Transfer to Unlawful Overseas Detention. ........................................................ 6

A. The Power of English Judges To Issue Writs of Habeas Corpus Derived from the Royal Prerogative. ......... 7

B. As a Result, King’s Bench Often Issued Writs That Were Not Based Upon Established Precedent, but That Nevertheless Empowered the Justices To Examine Detention in All Forms. ................................................... 8

C. The Habeas Corpus Act of 1679 Did Not Establish Limits on the Scope of Habeas Authority But Rather Reflected the Existing Common Law Practice, Which Continued to Evolve. ...................................................... 10

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D. Exercising This Authority, King’s Bench Issued the Writ on a Number of Occasions To Prevent the Transfer of an Individual Beyond the Reach of Its Process. .......................... 13

II. The Suspension Clause Requires a “Meaningful” Opportunity to Contest the Legality of a Detainee’s Transfer to the Custody of a Foreign Sovereign. ............. 17

A. The Suspension Clause Requires Courts to Provide a Detainee With a Meaningful Opportunity to Contest the Legality of His Detention. ................. 18

B. Munaf Is Not to the Contrary. ................. 20

C. The Rule of Non-Inquiry Does Not Apply to Colorable FARRA Claims. ........ 23

CONCLUSION ....................................................... 25

APPENDIX ........................................................... A-1

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TABLE OF AUTHORITIES

CASES

Boumediene v. Bush, 553 U.S. 723 (2008) ............ 1, 2, 6, 9, 11, 14, 16, 18, 19, 20, 24

Bourn’s Case, 79 Eng. Rep. 465 (K.B. 1619) .......... 7

In re Burt, 737 F.2d 1477 (7th Cir. 1984) ............ 24

In re Extradition of Howard, 996 F.2d 1320 (1st Cir. 1993) .................................................. 23

INS v. St. Cyr, 533 U.S. 289 (2001) ........ 3, 4, 16, 20

Khouzam v. Attorney General, 549 F.3d 235 (3d Cir. 2008) ................................................... 19

Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009) ................................................................... 4

Mironescu v. Costner, 480 F.3d 664 (4th Cir. 2007) ............................................ 2, 5, 17, 24

Munaf v. Geren, 553 U.S. 674 (2008) ..... 2, 6, 21, 22

Omar v. McHugh, 646 F.3d 13 (D.C. Cir. 2011) ................................................... 2, 5, 17, 21

Plaster v. United States, 720 F.2d 340 (4th Cir. 1983) .......................................................... 24

Schiever’s case, 97 Eng. Rep. 551 (K.B. 1759) ................................................................. 10

Somerset’s Case, 98 Eng. Rep. 499 (K.B. 1759). .......................................................... 10, 15

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. CONST. art. I, § 9, cl. 2 ..................................... 3

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Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, div. G, § 2242, 112 Stat. 2681, 2681-822 .................. 5, 6

OTHER AUTHORITIES

William Blackstone, Commentaries (1st Ed. 1765) ................................................................. 11

William F. Duker, A Constitutional History of Habeas Corpus (1980) ................................... 9

The Federalist No. 84 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ............................. 11

Eric M. Freedman, Milestones in Habeas Corpus: Part I Just Because John Marshall Said it, Doesn’t Make it So: Ex parte Bollman and the Illusory Prohibition on the Federal Writ of Habeas Corpus for State Prisoners in the Judiciary Act of 1789, 51 Ala. L. Rev. 531 (2000) ......................................................... 12

Paul D. Halliday, Habeas Corpus: From England to Empire (2011) ................... 10, 14, 24

Paul D. Halliday & G. Edward White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L. Rev. 575 (2008) ............................................ 7, 8, 12, 13, 15

Gerald L. Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961 (1998) .............. 14

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Helen A. Nutting, The Most Wholesome Law—The Habeas Corpus Act of 1679, 65 Am. Hist. Rev. 527 (1960) ........................... 12

John T. Parry, International Extradition, the Rule of Non–Inquiry, and the Problem of Sovereignty, 90 B.U. L. Rev. 1973 (2010) ................................................. 23, 24

George Van Cleve, Somerset’s Case and Its Antecedents in Imperial Perspective, 24 L. & Hist. Rev. 601 (2006) ............................... 15

James Oldham & Michael J. Wishnie, The Historical Scope of Habeas Corpus and INS v. St. Cyr, 16 Geo. Immigr. L.J. 485 (2002) ................................................................ 12

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INTEREST OF AMICI CURIAE 1

Amici curiae listed in the Appendix are professors of legal history and/or experts on the law and history of habeas corpus. Amici have a professional interest in ensuring that the Court is fully and accurately informed regarding the historical scope of the common law writ of habeas corpus and the relevance of that history in assessing the scope of the Suspension Clause. See, e.g., Boumediene v. Bush, 553 U.S. 723, 739 (2008) (“[T]o the extent there were settled precedents or legal commentaries in 1789 regarding the extraterritorial scope of the writ or its application to enemy aliens, those authorities can be instructive for the present cases.”); see also id. at 746 (citing brief filed by legal historians—including some of the amici here—as “amici whose expertise in legal history the Court has relied upon in the past”).

Amici are impelled to support certiorari in this case for two reasons: First, as Chief Judge Kozinski explained in his dissent below, see Trinidad y Garcia v. Thomas, 683 F.3d 952, 1013 (9th Cir. 2012) (en banc) (Kozinski, C.J., dissenting in part), the decision of the Court of Appeals creates a circuit split as to the federal courts’ jurisdiction to entertain

1 The parties have consented to the filing of this brief. Counsel of record for both parties received notice at least 10 days prior to the due date of amici curiae’s intention to file this brief. No counsel for a party authored this brief in whole or in part, and no counsel for a party (nor a party itself) made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amici or their counsel made a monetary contribution to its preparation or submission.

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habeas petitions from individuals in U.S. custody seeking to challenge their extradition or transfer to the custody of a foreign sovereign on the ground it is more likely than not that they will be tortured if transferred. Compare id. at 955–57 (majority opinion), with Omar v. McHugh, 646 F.3d 13 (D.C. Cir. 2011) (holding that Suspension Clause is not violated by statute purportedly taking away jurisdiction over such claims), and Mironescu v. Costner, 480 F.3d 664 (4th Cir. 2007) (holding that there is no jurisdiction without Suspension Clause analysis). Amici therefore write to demonstrate the extent to which the common law powers of English courts to issue writs of habeas corpus, which the Suspension Clause incorporated, included the use of the writ to prevent transfer to unlawful overseas detention.

Second, although the Court of Appeals therefore correctly understood its jurisdiction, its holding that the Secretary of State need only file an unreviewable declaration averring that the detainee will not be transferred to torture, see Trinidad y Garcia, 683 F.3d at 957, fails to provide the “meaningful” review that this Court has held the Suspension Clause to require, see Boumediene, 553 U.S. at 779, and misunderstands the relevance—or lack thereof—of both this Court’s decision in Munaf v. Geren, 553 U.S. 674 (2008), and the rule of non-inquiry. Amici therefore write not just to emphasize why the Suspension Clause compels the Court of Appeals’ jurisdictional holding, but why on the merits it counsels a contrary result to the decision below.

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SUMMARY OF ARGUMENT

“[A]t the absolute minimum,” the Constitution’s Suspension Clause, U.S. CONST. art. I, § 9, cl. 2, protects the writ of habeas corpus “as it existed in 1789.” INS v. St. Cyr, 533 U.S. 289, 301 (2001) (quoting Felker v. Turpin, 518 U.S. 651, 663–64 (1996)). A review of historical sources reveals that the writ of habeas corpus “as it existed in 1789” was available to individuals who sought to challenge their transfer beyond the jurisdiction of the habeas court.

Because the writ of habeas corpus derived from the royal prerogative, King’s Bench often issued writs that were not based upon established precedent. The justices were thus empowered to examine detention in all forms, including cases concerning extradition or other forms of involuntary transfer. And empirically, the King’s Bench in fact exercised this expansive jurisdiction in cases where the detainee sought to challenge his transfer beyond the court’s process.

Moreover, these common law powers both predated and survived the Habeas Corpus Act of 1679. While the Act reinforced the conclusion that a fundamental concern of habeas corpus was the prevention of unlawful extrajudicial transfer, the common law practice of King’s Bench both before and subsequent to the Act’s codification independently provided authority at least as broad as—if not far broader than—that conferred by the statute, including the use of habeas corpus to prevent a

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prisoner’s transfer beyond the practical reach of King’s Bench.

This distinction is significant because it highlights the extent to which the English experience that necessarily informed the Founders’ understanding of the scope of habeas corpus was neither confined to, nor defined by, cases under the Habeas Corpus Act of 1679. To the contrary, that experience included a robust common law writ of habeas corpus to which King’s Bench routinely resorted when the statutory writ proved either unavailable or ineffective. See generally St. Cyr, 533 U.S. at 300–03 (summarizing the scope and dexterity of the common law writ in pre-revolutionary England). As such, it is of little moment that the Habeas Corpus Act of 1679 only protected prisoners from transfer beyond the jurisdiction by prohibiting the transfer itself; the common law writ continued to furnish King’s Bench—as it always had—with an opportunity to inquire into the transfer before it took place, an authority it repeatedly exercised.

Both statutory and common law practice conclusively establish that “[t]he bar against transfer beyond the reach of habeas protections is a venerable element of the Great Writ and undoubtedly part of constitutional habeas,” Kiyemba v. Obama, 561 F.3d 509, 523 (D.C. Cir. 2009) (Griffith, J., concurring in the judgment in part and dissenting in part), and that the Court of Appeals therefore correctly held that the federal courts possess jurisdiction over claims such as the Petitioner’s. To the extent that the Fourth and D.C. Circuits have concluded to the

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contrary, see Omar, 646 F.3d 13; Mironescu, 480 F.3d 664, certiorari is warranted in order to resolve (in the Ninth Circuit’s favor) this important division of authority among the courts of appeals.

At the same time, although the per curiam opinion for the en banc Ninth Circuit reached the correct result as to the jurisdiction of the federal courts, it proceeded to limit that jurisdiction solely to requiring the Secretary of State (or her designee) to file a declaration averring that it is not “more likely than not” that the petitioner will face torture. See Trinidad y Garcia, 683 F.3d at 957 (quoting 22 C.F.R. § 95.2). Once such a declaration is filed, “the court’s inquiry shall have reached its end,” id., and the petitioner will receive no opportunity to rebut the Secretary’s assurances.

This holding neglects the distinct claims that detainees might raise under the Act of Congress implementing the U.N. Convention Against Torture, i.e., the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), Pub. L. No. 105-277, div. G, § 2242, 112 Stat. 2681, 2681-822 (codified at 8 U.S.C. § 1231 note). Where the Suspension Clause applies, “[t]he habeas court must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive’s power to detain,” Boumediene, 553 U.S. at 783. FARRA does not just create a procedural right to a finding by the Secretary; it creates a substantive right against “the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to

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torture.” FARRA § 2242(a). Thus, the Suspension Clause requires that courts afford detainees an opportunity to show that it is “more likely than not” that they will be tortured once transferred, even when the Secretary avers to the contrary.

The Court of Appeals nevertheless concluded that such review is foreclosed by both this Court’s decision in Munaf and by the rule of non-inquiry. As amici demonstrate, however, Munaf not only reserved judgment on the availability of a FARRA claim, see 553 U.S. at 703 & n.6, but it also involved materially distinguishable circumstances. And to whatever extent the rule of non-inquiry might otherwise apply, it must necessarily yield to the enforcement of procedural and substantive rights expressly conferred by Congress.

ARGUMENT

I. THE SUSPENSION CLAUSE PROTECTS THE USE OF THE WRIT OF HABEAS CORPUS TO PREVENT TRANSFER TO UNLAWFUL OVERSEAS DETENTION.

It is now settled that analysis of the Suspension Clause’s scope “may begin with precedents as of 1789, for the Court has said that ‘at the absolute minimum’ the Clause protects the writ as it existed when the Constitution was drafted and ratified.” Boumediene, 553 U.S. at 746 (quoting St. Cyr, 533 U.S. at 301). In recognizing the significance of these precedents, which clearly establish the power of English courts to use habeas corpus to prevent transfer to unlawful overseas detention, this Court has thereby endorsed the related conclusion that the

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Suspension Clause protects such judicial authority, as well.

A. The Power of English Judges To Issue Writs of Habeas Corpus Derived from the Royal Prerogative.

That the writ traced its roots and owed its power to the royal prerogative is critical in understanding the functional—indeed, the effectively equitable—nature of the authority exercised by King’s Bench (and most other English jurists) in the decades leading up to the Habeas Corpus Act of 1679. As Professors Halliday and White have explained, “Although habeas corpus was a common law writ, subjects’ pleas to use it were often based less on common law norms than on appeals to what we might call the equity of the writ.” Paul D. Halliday & G. Edward White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L. Rev. 575, 608 (2008). Moreover, “[t]he key to the prerogative writs lay in the court’s omnipotence when using them, and that omnipotence primarily stemmed from their equitable character: their embodiment of the King’s mercy.” Id.; see also Bourn’s Case, 79 Eng. Rep. 465, 466 (K.B. 1619) (“[T]his writ is a prerogative writ, which concerns the King’s justice to be administered to his subjects; for the King ought to have an account why any of his subjects are imprisoned . . . and to dispute it is not to dispute the jurisdiction, but the power of the King and his Court, which is not to be disputed . . . .”).

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B. As a Result, King’s Bench Often Issued Writs That Were Not Based Upon Established Precedent, but That Nevertheless Empowered the Justices To Examine Detention in All Forms.

More than just affecting how this period is described historically, the increasing “omnipotence” of King’s Bench when it came to habeas corpus had contemporaneous consequences as well, for it left the justices in a better position to adapt the writ to accommodate novel jurisdictional issues as they arose (and proliferated) throughout the mid-seventeenth century, especially in the period leading up to the English Civil War, the Interregnum, and the Restoration. Thus, as the court encountered imprisonment orders issued by new governmental officers or agencies, or from individuals imprisoned in places testing the geographic reach of its process, King’s Bench showed no reluctance to continue issuing writs of habeas corpus. See, e.g., Halliday & White, supra, at 611–12, 621 n.130.

Moreover, the means by which King’s Bench adapted the writ is telling: rather than articulate circumstance-specific jurisdictional rules, King’s Bench issued the writ throughout this period on demonstration of a prima facie cause for issuance, requiring the production of the prisoner (and putting the disposition of the prisoner’s claim under its authority) even in cases without clear precedent. Such insistence on reaching the merits following production of the prisoner in the face of factually and legally varied circumstances reflected the

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assumption that the viability of a habeas claim was to be evaluated by the King’s Bench itself, and only once it had seized itself of both legal and physical custody of the prisoner.

Thus, habeas corpus became centered upon a general principle rather than a set of rigid common law rules. That principle, derived from the royal prerogative, was that King’s Bench could review imprisonment orders without respect to either the specific source of the authority to imprison or the factual circumstances under which the imprisonment took place. And while the result in a majority of cases was that the petitioner was bailed pendente lite or discharged, the critical point is the expansive jurisdiction of King’s Bench to reach the merits. See, e.g., William F. Duker, A Constitutional History of Habeas Corpus 62 (1980). Put another way, the ability of a court in pre-revolutionary England to grant relief on the merits was not limited by “jurisdictional” concepts at all, but rather solely by the practical ability of the sovereign to enforce any remedy that issued from the court. See, e.g., Boumediene, 553 U.S. at 750 (noting the “practical inability, by reason of distance, of the English courts to enforce their judgments outside their territorial jurisdiction”).

Thus, the court’s power to issue the writ depended little if at all upon the merits of the petitioner’s claim; it was only once the petitioner was properly before King’s Bench that the justices could—and would—reach the merits. As Professor Halliday has explained,

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The most significant aspect of Somerset’s case,[2] as in POW cases, was not the result, but that it was a case at all. In Schiever’s case,[3] the court had maintained its jurisdiction over POWs by deciding whether that Swede truly counted as a POW. Similarly, for James Somerset, the fact of the writ’s issuance was of the first importance. King’s Bench issued the writ by reasoning not from precedents, but from the writ’s central premise: that it exists to empower the justices to examine detention in all forms. . . . There were no real precedents, but there was nothing any more surprising about using the writ for a slave trapped on a ship in the Downs than there was for a sailor trapped on a ship in the same waters.

Paul D. Halliday, Habeas Corpus: From England to Empire 176 (2011) (footnotes omitted).

C. The Habeas Corpus Act of 1679 Did Not Establish Limits on the Scope of Habeas Authority But Rather Reflected the Existing Common Law Practice, Which Continued to Evolve.

Like generations of scholars, both Justices Kennedy and Scalia in Boumediene emphasized the historical significance of the Habeas Corpus Act of 1679, 31 Car. II, c. 2, which Blackstone

2 98 Eng. Rep. 499 (K.B. 1772).

3 97 Eng. Rep. 551 (K.B. 1759).

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hyperbolically labeled “the second magna carta,” 1 William Blackstone, Commentaries 133 (1st Ed. 1765), and the “stable bulwark of our liberties,” id.; see also The Federalist No. 84, at 512 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (citing Blackstone’s discussion of the Habeas Corpus Act).

To be sure, the Act was at least partially directed to the problem of transfer beyond the practical reach of judicial process. After all, its full name was “An Act for the better securing the Liberty of the Subject, and for the Prevention of Imprisonment beyond the Seas.” 31 Car. II, c. 2. And Article XII expressly forbid “the shipment of prisoners to places where the writ did not run or where its execution would be difficult.” Boumediene, 553 U.S. at 845–46 (Scalia, J., dissenting). But focus on the language and scope of the Habeas Corpus Act of 1679 should not obfuscate the larger and more important points about the common law practice of King’s Bench both before and subsequent to the Act’s codification—if for no other reason than because the Act was not directed toward non-criminal detention. Indeed, as Halliday and White have concluded,

the celebrated Habeas Corpus Act merely codified practices generated by King’s Bench justices. In whig histories, the statutory writ of the 1679 Habeas Corpus Act provides a moment for parliamentary self-congratulation that all but erased the significance of the role judges had played in developing the equitable dimensions of habeas corpus jurisprudence.

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Halliday & White, supra, at 611; cf. Eric M. Freedman, Milestones in Habeas Corpus: Part I—Just Because John Marshall Said it, Doesn’t Make it So: Ex parte Bollman and the Illusory Prohibition on the Federal Writ of Habeas Corpus for State Prisoners in the Judiciary Act of 1789, 51 Ala. L. Rev. 531, 579 n.160 (2000) (noting comparable misconceptions about habeas in American jurisprudence).

A closer look at historical practice reveals instead that “[m]any of the technical provisions enacted in 1679 were [already] in actual operation by the middle 1670’s as a result of reforms within the court itself,” Helen A. Nutting, The Most Wholesome Law—The Habeas Corpus Act of 1679, 65 Am. Hist. Rev. 527, 539 (1960), and that “in the century after the passage of the Habeas Corpus Act of 1679, all the important innovations in habeas corpus jurisprudence occurred through judicial use of the common law writ rather than the statutory one.” Halliday & White, supra, at 612. To take just one example, despite the failure of Parliament in 1758 to agree to legislation that would have remedied the perceived failure of the statutory writ to encompass challenges to impressment orders, King’s Bench under the direction of Chief Justice Lord Mansfield routinely entertained such cases by issuing common law writs of habeas corpus. See, e.g., id. at 612 & nn.96–97, 632 & n.163. See generally James Oldham & Michael J. Wishnie, The Historical Scope of Habeas Corpus and INS v. St. Cyr, 16 Geo. Immigr. L.J. 485, 488–95 (2002).

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As explained in more detail below, King’s Bench had already used writs of habeas corpus to inquire into transfer beyond its reach several years before the Habeas Corpus Act of 1679 expressly prohibited such transfers. And since “the statutory writ was never understood . . . as superseding the common law habeas jurisprudence,” Halliday & White, supra, at 631, this authority survived the enactment of the Habeas Corpus Act of 1679 intact, even though the Act itself provided no comparable power.

Thus, even after 1679, courts continued to resort to their common law powers to issue the writ in cases in which the statute may not have specifically authorized it. See, e.g., Halliday & White, supra, at 634 n.168 (“[B]etween 1679 and 1789, the writ of habeas corpus was treated in Anglo-American jurisprudence as sounding in common law as well as in the 1679 Act.”); see also id at 612 n.97 (“The Act concerned the use of habeas corpus only in cases of alleged felony or treason. These wrongs dwindled as a share of habeas litigation in the eighteenth century as ever-larger numbers of writs tested detentions in which there was no allegation of wrong, such as those involving abused wives and impressed sailors.”).

D. Exercising This Authority, King’s Bench Issued the Writ on a Number of Occasions To Prevent the Transfer of an Individual Beyond the Reach of Its Process.

One important manifestation of the increasingly vast jurisdictional reach of King’s Bench’s habeas powers was its response to those in custody who

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sought to use habeas to prevent their transfer beyond the practical—if not legal—reach of the court’s process. Indeed, although Justice Scalia was entirely correct in Boumediene that the Habeas Corpus Act of 1679 sought to eliminate such a “possibility of evading judicial review” by the “spiriting-away” of British prisoners, 553 U.S. at 845–46 (Scalia, J., dissenting), the use of the writ to allow King’s Bench to decide the legality of such transfers both before and after 1679 further underscores the misunderstood relationship between the common law and statutory writs.

A particularly instructive case is that of Robert Murray, a Scot imprisoned on two separate occasions in 1677—first for “defamation of his majesty and his government,” and later “in order to his being sent into Scotland to be tried there according to law for several crimes.” See Halliday, supra, at 236. Both times, King’s Bench issued the writ to allow an inquiry into Murray’s deportation, and ended up bailing him rather than permitting his transfer. See id. at 425 n.87 (citing the disposition).

Of course, as Paul Freund warned, one must be careful “to look to history for the essentials of the Great Writ, but not to one point in that history for its accidents.” Brief for Respondent at 33, United States v. Hayman, 342 U.S. 205 (1952) (No. 23), 1951 WL 81953, quoted in Gerald L. Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98

Colum. L. Rev. 961, 970 & n.42 (1998). But Murray’s Case was no accident. Indeed, in the context of slavery, there are a number of reported instances of

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writs issuing to prevent the removal from England of individuals allegedly bound to slavery, the most famous of which is Somerset’s Case, 98 Eng. Rep. 499 (K.B. 1772), in which Lord Mansfield issued the writ on the ground that slavery was unknown to English common law. See generally George Van Cleve, Somerset’s Case and Its Antecedents in Imperial Perspective, 24 L. & Hist. Rev. 601 (2006). To similar effect, the common law writ routinely issued in cases brought by impressed seamen to inquire into the propriety of their military induction—before they were removed to the high seas. See, e.g., Halliday & White, supra, at 605 & n.72.

The upshot of these cases is the conclusion that habeas corpus could be—and routinely was—used to ensure the ex ante legality of an individual’s transfer beyond the process of King’s Bench. And while concerns over the prisoner’s fate once transferred may well have motivated the justices’ disposition toward individual cases, the only means of allaying such concerns was to assert jurisdiction ab initio, in order to allow King’s Bench to conduct an inquiry into whether such fears might be justified. Jurisdiction never turned on the particular claims the prisoner made on the merits in objecting to his transfer, and the assertion of jurisdiction in every case empowered King’s Bench to provide remedies in those cases in which English law might prohibit the fate that would befall the petitioner once transferred.

* * *

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This Court is already familiar with much of the history summarized above. Its invocation here, though, is to emphasize a point underlying this Court’s analysis in St. Cyr, but completely ignored by the various opinions in the Court of Appeals in this case: the English experience that necessarily informed the Founders’ understanding of the nature of the “privilege of the writ of habeas corpus” that Article I’s Suspension Clause was designed to protect included a robust common law writ of habeas corpus to which King’s Bench routinely resorted when the statutory writ proved either unavailable or ineffective. See St. Cyr, 533 U.S. at 300–03. As such, while it is significant that the Habeas Corpus Act of 1679 protected prisoners from transfer beyond the jurisdiction by prohibiting the transfer itself, see Boumediene, 553 U.S. at 845–46 (Scalia, J., dissenting), the common law writ continued to furnish King’s Bench—as it always had—with an opportunity to inquire into the transfer before it took place, an authority it repeatedly exercised. Thus the Suspension Clause, which incorporates the common law writ as a baseline, necessarily protects the analogous authority of the federal courts to issue writs of habeas corpus in such circumstances—and requires the invalidation of any statute that deprives the federal courts of such power without providing an adequate alternative.

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II. THE SUSPENSION CLAUSE REQUIRES A “MEANINGFUL” OPPORTUNITY TO CONTEST THE LEGALITY OF A DETAINEE’S TRANSFER TO THE CUSTODY OF A FOREIGN SOVEREIGN.

The foregoing analysis explains why the Ninth Circuit reached the correct result as to jurisdiction, i.e., that the federal courts do have the authority to entertain challenges to extradition or transfer based upon FARRA.4 To the extent that the Fourth and D.C. Circuits have held to the contrary, see Omar, 646 F.3d 13; Mironescu, 480 F.3d 664, these decisions cannot be reconciled with the analysis provided in Part I—and certiorari is therefore justified in order to resolve this division of authority among the courts of appeals.

At the same time, although the per curiam opinion for the en banc Ninth Circuit reached the correct result as to the jurisdiction of the federal courts, it proceeded to limit that jurisdiction solely to requiring the Secretary of State (or her designee) to file a declaration averring that it is not “more likely than not” that the petitioner will face torture. See

4 The Court of Appeals held that such authority in this case comes from the federal habeas statute, and that neither FARRA nor the REAL ID Act of 2005 provided the requisite “clear statement” to divest the federal courts of such jurisdiction. See Trinidad y Garcia, 683 F.3d at 956. Although amici agree with this analysis, the Suspension Clause discussion provided above undergirds this conclusion by demonstrating why a statute taking away such jurisdiction (without providing an adequate alternative) would be unconstitutional.

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Trinidad y Garcia, 683 F.3d at 957 (quoting 22 C.F.R. § 95.2). Once such a declaration is filed, “the court’s inquiry shall have reached its end,” id., and the petitioner will receive no opportunity to rebut the Secretary’s assurances.

The problem with this conclusion is that it neglects the distinct substantive challenge that a detainee might raise under FARRA. Because FARRA creates a substantive right barring transfer to torture, and not just a procedural right to certain administrative certifications prior to transfer, see Trinidad y Garcia, 683 F.3d at 996 (Berzon, J., concurring in part and dissenting in part), the Suspension Clause requires that a detainee have an opportunity to fully vindicate colorable claims under FARRA.

A. The Suspension Clause Requires Courts to Provide a Detainee With a Meaningful Opportunity to Contest the Legality of His Detention.

As Boumediene held, “the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law.” 553 U.S. at 779 (quoting St. Cyr, 533 U.S. at 302). Indeed, “the common-law habeas court’s role was most extensive in cases of pretrial and noncriminal detention, where there had been little or no previous judicial review of the cause for detention.” Id. at 780 (emphasis added).

Thus, Boumediene concluded that the review provided by Combatant Status Review Tribunals

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(CSRTs)—and by the D.C. Circuit, on appeal—was inadequate to satisfy the “meaningful opportunity” required by the Suspension Clause. See id. at 779–92. As Justice Kennedy explained,

For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the [underlying] proceedings. This includes some authority to assess the sufficiency of the Government’s evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding.

Id. at 786 (citations omitted); cf. Khouzam v. Att’y Gen., 549 F.3d 235, 259 (3d Cir. 2008) (holding that it violates due process to deny a non-citizen in removal proceedings the chance to rebut diplomatic assurances made by a foreign country that the detainee will not be tortured once removed). As Boumediene stressed, “[t]he habeas court must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive’s power to detain.” 553 U.S. at 783.

To be sure, extradition proceedings differ from challenges to the potentially indefinite military detention at issue in Boumediene. But it necessarily follows from Boumediene that, where there are no adversary judicial proceedings culminating in an individual’s detention, the “meaningful opportunity”

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required by the Suspension Clause must include at least some ability for the detainee to contest the government’s argument that his detention (in this context, his extradition) is both procedurally and substantively lawful. Cf. St. Cyr, 533 U.S. at 305–14 (invoking the Suspension Clause as a basis for interpreting various jurisdiction-stripping statutes to not preclude a non-citizen from arguing via habeas that he was eligible for a waiver of deportation). And of significance here, Boumediene so held without resolving whether the Guantánamo detainees have due process rights in the first instance, see 553 U.S. at 785, thereby suggesting that the Suspension Clause requires such review even in cases in which the Due Process Clause does not.

B. Munaf Is Not to the Contrary.

Notwithstanding Boumediene, the Court of Appeals held that a mere declaration by the Secretary (or her designee) that the petitioner will not be transferred to torture is the complete judicial review available to detainees in this context, based on a misreading of this Court’s decision (on the same day as Boumediene) in Munaf. Whereas Munaf recognizes the need to accord appropriate deference to the Secretary’s determination, nothing in Munaf suggests that such deference should be absolute—as the Court of Appeals concluded. To the contrary, three critical caveats in Munaf militate against the Court of Appeals’ reasoning below.

First, Munaf reserved the question of whether an individual could validly invoke FARRA in a habeas petition as a ground for blocking their involuntary

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transfer to foreign custody. As Chief Justice Roberts explained for the Court,

Petitioners briefly argue that their claims of potential torture may not be readily dismissed . . . because [FARRA] prohibits transfer when torture may result. Neither petitioner asserted a [FARRA] claim in his petition for habeas, and the Act was not raised in any of the certiorari filings before this Court. Even in their merits brief in this Court, the habeas petitioners hardly discuss the issue. The Government treats the issue in kind. Under such circumstances we will not consider the question.

553 U.S. at 703 (citations omitted). Instead, Munaf resolved only the detainees’ due process claim—leaving the FARRA issue for the lower courts in the first instance on remand.5

Second, as the Court noted in a footnote to the above-quoted passage, Munaf raised a separate question concerning whether, given its plain language, FARRA could be invoked by individuals who were already within the territorial jurisdiction of the country seeking their transfer after traveling there voluntarily. See id. at 703 n.6 (“It is not settled that the Act addresses the transfer of an individual located in Iraq to the Government of Iraq; arguably

5 That review never took place, since the D.C. Circuit—erroneously, in our view—held on remand that Congress had constitutionally divested the federal courts of habeas jurisdiction over FARRA claims. See Omar, 646 F.3d 13.

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such an individual is not being ‘returned’ to ‘a country’—he is already there.”). There is no similar question about FARRA’s applicability in this case, where the United States is seeking to extradite the Petitioner, presently on U.S. soil, to the Philippines.

Third, Munaf was clear that, even on the merits, the Secretary is entitled to appropriate—but not absolute—deference in assessing the likelihood that a detainee faces torture if transferred to the custody of a foreign sovereign. Thus, Munaf specifically turned on the conclusion that “this is not a more extreme case in which the Executive has determined that a detainee is likely to be tortured but decides to transfer him anyway,” id. at 702; see also id. at 706 (Souter, J., concurring) (“The Court accordingly reserves judgment on [such] an ‘extreme case.’”). And Justice Souter’s concurrence, which was joined by Justices Ginsburg and Breyer, went one step further, stressing that he “would extend the caveat to a case in which the probability of torture is well documented, even if the Executive fails to acknowledge it.” Id. at 706 (Souter, J., concurring). Critically, these distinctions would be irrelevant under the rule adopted by the Court of Appeals; so long as the Secretary formally averred that it was not “more likely than not” that torture would occur, any further judicial review would be pretermitted regardless of the fate likely to befall the detainee.

Thus, whatever else can be said about Munaf (which, among other things, did not grapple with the review that the Suspension Clause might require), it seems clear that the Court meant to leave open at

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least some possibility for a detainee to rebut the Secretary’s assurances; the deference to which the Secretary is entitled means simply that the burden on the merits is properly placed on the detainee in such circumstances—as it should be.

C. The Rule of Non-Inquiry Does Not Apply to Colorable FARRA Claims.

Finally, the Court of Appeals also concluded that “[t]he doctrine of separation of powers and the rule of non-inquiry block any inquiry into the substance of the Secretary’s declaration.” Trinidad y Garcia, 683 F.3d at 957. But this statement—like the authority on which it relied—fails to account for the relationship between the rule of non-inquiry and FARRA. As the First Circuit has explained,

The government suggests that the Constitution mandates the rule of non-inquiry. We disagree. The rule did not spring from a belief that courts, as an institution, lack either the authority or the capacity to evaluate foreign legal systems. Rather, the rule came into being as judges, attempting to interpret particular treaties, concluded that, absent a contrary indication in a specific instance, the ratification of an extradition treaty mandated non-inquiry as a matter of international comity.

In re Extradition of Howard, 996 F.2d 1320, 1330 n.6 (1st Cir. 1993) (emphasis added); see also John T. Parry, International Extradition, the Rule of Non–Inquiry, and the Problem of Sovereignty, 90 B.U. L. Rev. 1973, 1978–96 (2010) (documenting the

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evolution of the non-inquiry doctrine). Even if the rule of non-inquiry applied to claims that the U.S. government itself was acting unlawfully in an extradition case,6 it must give way, insofar as it is judge-made, to statutes that create express substantive rights enforceable via the remedy of habeas corpus—such as FARRA.7

More fundamentally, the rule of non-inquiry is best understood as a prudential constraint on the ability of U.S. judges to second-guess the basis for extradition requests by foreign sovereigns. The Suspension Clause is not offended in cases in which the rule properly applies because the rule reflects a view that, in that context, there is no viable substantive basis on which a detainee may contest his extradition. Where, as here, Congress has expressly provided such a basis, the Suspension Clause compels the conclusion that the federal courts

6 Several courts have suggested that the rule does not apply in such cases, since international comity is not a justification for declining to review actions of the U.S. government. See, e.g., Mironescu, 480 F.3d at 670–71; In re Burt, 737 F.2d 1477, 1483 (7th Cir. 1984); Plaster v. United States, 720 F.2d 340, 348 (4th Cir. 1983); see also Parry, supra, at 1998–99.

7 In that regard, the rule of non-inquiry can be analogized to the black-letter rule in eighteenth-century English habeas jurisprudence that judges were not permitted to examine facts controverting the return. As this Court noted in Boumediene, although such a rule was routinely cited by commentators, it was honored in the breach by jurists—especially in impressment cases. See 553 U.S. at 780; see also Halliday, supra, at 108–16, 245–46.

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must have the power to entertain such a claim—and to take it seriously.

CONCLUSION

For the foregoing reasons, amici respectfully submit that the petition for a writ of certiorari should be granted.

Respectfully submitted,

STEPHEN I. VLADECK LINDSAY C. HARRISON 4801 MASSACHUSETTS Counsel of Record AVE. NW, ROOM 386 MATTHEW E. PRICE WASHINGTON, DC 20016 JENNER & BLOCK LLP (202) 274-4241 1099 NEW YORK AVE. NW SUITE 900 WASHINGTON, DC 20001 (202) 639-6000 lharrison@jenner.com

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APPENDIX

AMICI CURIAE LEGAL HISTORIANS AND HABEAS CORPUS EXPERTS

(institutional affiliations are provided for identification purposes only)

PAUL FINKELMAN John Hope Franklin Visiting Professor of American Legal History, Duke Law School President William McKinley Distinguished Professor of Law and Public Policy, Albany Law School

ERIC M. FREEDMAN Maurice A. Deane Distinguished Professor of Constitutional Law, Hofstra University, Maurice A. Deane School of Law BRANDON L. GARRETT Roy L. and Rosamond Woodruff Morgan Professor of Law, University of Virginia School of Law JONATHAN HAFETZ Associate Professor of Law, Seton Hall University School of Law BERNARD E. HARCOURT Julius Kreeger Professor of Law & Criminology and Chair and Professor of Political Science, University of Chicago RANDY A. HERTZ Vice Dean, Professor of Clinical Law, and Director, Clinical and Advocacy Programs, New York University School of Law

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EMILY HUGHES Professor and Bouma Fellow in Law, University of Iowa College of Law NASSER HUSSAIN Professor of Law, Jurisprudence, & Social Thought, Amherst College LEE KOVARSKY Assistant Professor of Law, University of Maryland Francis King Carey School of Law ANDREA D. LYON Associate Dean for Clinical Programs, Clinical Professor of Law, and Director, Center for Justice in Capital Cases, DePaul University College of Law JUSTIN MARCEAU Associate Professor, University of Denver, Sturm College of Law JAMES C. OLDHAM St. Thomas More Professor of Law and Legal History, Georgetown University Law Center WILFRID PREST Professor Emeritus, University of Adelaide IRA P. ROBBINS Professor of Law and Justice and Barnard T. Walsh Scholar, American University Washington College of Law

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STEPHEN I. VLADECK Professor of Law and Associate Dean for Scholarship, American University Washington College of Law MICHAEL WISHNIE William O. Douglas Clinical Professor of Law and Director, Jerome N. Frank Legal Services Organization, Yale Law School LARRY W. YACKLE Basil Yanakakis Faculty Research Scholar and Professor of Law, Boston University School of Law