Professional Documents
Culture Documents
Paracha Opening Brief
Paracha Opening Brief
No. 16-5248
FOR THE
______________________________
SAIFULLAH PARACHA,
Petitioner,
v.
BARACK H. OBAMA,
et al.,
Respondents.
______________________________
GAILLARD T. HUNT
Attorney for Appellant
(D.C. Bar No. 089375)
10705 Tenbrook Drive
Silver Spring, Maryland 20901
(Not admitted in Maryland)
301-530-2807
[email protected]
(Fax: 301-564-6059)
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 2 of 35
Parties
Pakistan, a country allied with the United States. He has been incarcerated
Respondents are all officers of the United States sued in their official
capacities.
Assoicated Press, New York Times, and USA Today intervened with
Rulings
The ruling appealed from is the U.S. District Courts ruling of June
Related cases
Parachas previous appeals1 to this Court are not related to this present
appeal, which deals only with the bills of attainder passed by Congress
ii
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 3 of 35
Guantanamo are not related to this bill of attainder issuewith the arguable
exception of Kiyemba v. Obama, 605 F.3d 1046 (D.C. Cir. 2010) (Kiyemba
iii
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 4 of 35
TABLE OF CONTENTS
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
ii
TABLE OF AUTHORITIES v
JURISDICTIONAL STATEMENT 1
STANDING 6
ARGUMENT 7
RELIEF SOUGHT 26
iv
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 5 of 35
TABLE OF AUTHORITIES
Cases
Bartlett v. Bowen, 816 F.2d 695, 259 U.S. App. D.C. 391 (D.C. Cir. 1987)
16, 19
Battaglia v. General Motors, 169 F.2d 254 (2d Cir. 1948) 15
Bond v. United States, 564 U.S. 211, 131 S. Ct. 2355, 180 L. Ed. 2d 269
(2011) 10
Boumediene v. Bush, 553 U.S. 723, 128 S. Ct. 2229, 171 L. Ed. 2d 41 (2008)
12, 20
Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986)
19
Cummings v. the State of Missouri, 71 U.S. (4 Wall.) 277, 323, 18 L.Ed.
356, (1866) 6
Davis v. U.S. Sentencing Commission, 716 F.3d 660 (D.C. Cir. 2013)
9
*Foretich v. United States, 351 F.3d 1198 (D.C. Cir. 2003) 6, 21
INS v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983)
11, 12
Johnson v. Robison, 415 U.S. 361 (1974) 18
v
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 6 of 35
Raleigh Wake Citizens Ass'n v. Wake Cnty. Bd. of Elections, 827 F.3d 333
(4th Cir., July 1, 2016) 25
*United States v. Brown, 381 U.S. 437, 85 S. Ct. 1707, 14 L. Ed. 2d 484
(1965) 9, 12
United States v. Klein, 80 U.S. (13 Wall.) 128, 20 L. Ed. 519 (1872) 14
*United States v. Lovett, 328 U.S. 303, 66 S. Ct. 1073, 90 L. Ed. 1252 (1946)
9
United States v. McDade, 699 F.3d 499, 505 (D.C. Cir. 2012) 26
Zivotofsky v. Kerry, ____U.S. ___, 135 S.Ct. 2076, 192 L. Ed. 2d 83 (2015)
1
Statutes
vi
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 7 of 35
Rules
Constitutions
Articles of Confederation 23
Constitution, Art. I, Section 7 11
Constitution, Article 6, clause 2 14
Constitution, Article I, Section 9, clause 2 13
Constitution, Article I, Section 9, clause 3 2, 5, 6
Constitution, Section 1. of Article III 13
Constitution, Section 2. of Article III 13
Other Authorities
vii
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 8 of 35
Hart, Henry M., Jr., The Power of Congress to Limit the Jurisdiction of
Federal Courts: An Exercise in Dialectic, 66 Harvard L. Rev. 1362
(1953) 14
Krammer, Arnold, Nazi Prisoners of War in America (New York: Stein &
Day, 1979) 24
Nadler ,Jerrold, Rep., April 29, 2015, Cong. Rec. H2604 25
Redish, Martin H. and Curtis E. Woods, Congressional Power to Control
the Jurisdiction of Lower Federal Courts, 124 U. Pennsylvania L.
Rev. 45 (1975) 17
Silberhorn, Thomas, May 29, 2009, Washington Post 10
Vladeck, Stephen I., Boumedienes Quiet Theory: Access to the Courts and
the Separation of Powers, 84 Notre Dame L. Rev. 2107 (2009) 17
Wikipedia, German prisoners of war in the United States 24
Young, Gordon G., A Critical Reassessment of the Case Law Bearing on
Congress's Power to Restrict the Jurisdiction of the Lower Federal
Courts, 54 Maryland L. Rev. 132, 133 n. 4 (1995) 15
GLOSSARY
viii
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 9 of 35
JURISDICTIONAL STATEMENT
The jurisdiction of the U.S. District Court for the District of Columbia
under the habeas statute, as Kiyemba v. Obama 561 F.3d 509, 512-513 (D.C.
restored all of habeas, along with the powers ancillary to that writ.
decisions of the District Court, 28 U.S.C. 1291. The separate finality and
appealability of the denial of relief from the bills of attainder rests on the
District Courts July 29, 2016, order and opinion, docket 444 and 445,
1
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 10 of 35
Are the listed statutes, which label appellant Paracha and the other
determinations of guilt, and therefore void under the provision that No Bill
The provisions in effect when the motion was first filed are listed in
January 15, 2016, are reproduced at Appendix 52-91. These include sections
of the National Defense Authorization Act for Fiscal Year 2016, Publ L.
2
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 11 of 35
113 and other Acts, under the authorizations and conditions provided in
108-109.
Bangkok, Thailand, agents of the United States set upon appellant Saifullah
Paracha and threw him into a vehicle. He has been imprisoned ever since
and his habeas corpus petition, 2004-cv-02022-PLF, has been pending for
twelve years.
the late Osama bin Laden would be a commercial and journalistic coup,
3
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 12 of 35
Paracha approached bin Laden and dealt with with some of bin Ladens
anything military, the Department of Defense has for the last twelve years
taken on a political, symbolic, and metaphorical life of its own. A less secure
entered the language as the equivalent of lock him up and throw away the
key, but the prison is a few hundred yards from the open sea and the base is
assume that any prisoner still there is a dangerous terrorist, but in fact the
remaining prisoners are a mixed lot: They range from a few who are accused
of plotting the 9/11 attacks to several dozen who have been declared no
threat but are still there only because they have no place to go.
prisoners but are in fact guilty of terrorism and deserve the harshest of
punishments.
new bills of attainder and to drop out those that had expired.2 On June 16,
2016, the District Court declined to address the merits of the bill of attainder
July 29, 2016, docket 444, the District Court ruled under Rule 54(b) that the
issue was separate from the remaining issues in Parachas habeas corpus
case and that this appeal could go forward without delaying the habeas
2
This superseded and replaced an earlier update filed on December 5, 2015,
docket 413.
5
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 14 of 35
This Circuit in the case Foretich v. United States, 351 F.3d 1198
That case explicitly rejected the theories about standing that led the district
court to dismiss Parachas motion to declare these bills of attainder3 null and
void.
STANDING
separation of powers under which the U.S. Congress has declared him and
6
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 15 of 35
ARGUMENT
declared that standing to sue in the Article III courts requires that the
not conjectural or hypothetical. 504 U.S. at 560. But Justice Scalia said
in that very opinion that if the plaintiff is the object of the government action
standing. 504 U.S. at 561-562. This Court followed that principle when it
some money taken from it. United States v. Emor, 785 F.3d 671 (D.C. Cir.,
2015). Standing is self-evident for persons and entities against whom the
The Lujan criteria are that the plaintiff suffered a cognizable wrong,
that it was caused by the defendants action complained of, and that the
courts can remedy the wrong. Appellant Paracha is not a concerned citizen
terrorist. He did not seek standing, standing was thrust upon him when he
confinement injury and his reputational injury. June 16, 2016, opinion 3.
the executive branch at the discretion of the executive branch, subject to the
laws of war and the harsh laws of military necessity. The bills of attainder
exactly what privileges, such as paid labor, packages from home, etc., would
combatant the executive has labeled him. This is the result of congressional
standing even if addresses the reason for confinement rather than the
8
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 17 of 35
enemy combatant who has not yet disproven his combatancy in a habeas
The cases striking down bills of attainder have never required that the
interest. In United States v. Lovett, 328 U.S. 303, 66 S. Ct. 1073, 90 L. Ed.
1252 (1946) the three government officials found unfit by the Dies
381 U.S. 437, 85 S. Ct. 1707, 14 L. Ed. 2d 484 (1965), Browns conviction
for serving as a union officer while a member of the Communist Party was
right to be a union officer than any Guantanamo prisoner has to come to the
United States.
4
Parachas choice to file his motion against his bills of attainder in his
9
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 18 of 35
before the lower court in the form of citations to remarks of foreign leaders
and politicians such as: If the U.S. refuses to take these people, why should
29, 2009, Washington Post. These remarks are in the Appendix at 45-48.
had standing to question whether prosecuting her under the federal statute
adultery. She wanted to argue that the Tenth Amendment reserved to the
states the prosecution of such a run-of-mill local and domestic offense. Bond
v. United States, 564 U.S. 211, 131 S. Ct. 2355, 180 L. Ed. 2d 269 (2011).
10
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 19 of 35
The Court upheld her standing. Justice Kennedy, writing for the whole
Court, explained:
This recent ruling confirms Parachas right to relief. The specific case
Justice Kennedy discussed, INS v. Chadha, 462 U.S. 919, 103 S. Ct. 2764,
11
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 20 of 35
to the President. But Justice Powell, concurring, made clear that this was a
bill of attainder. As such the persons affected had standing to defend the
separation of powers:
INS v. Chadha 462 U.S at 962. Thus Chadha, like Ms. Bond, had standing to
So does Paracha.
powers and the guarantee that we may suffer punishment only after a
an amendment. That is also why, like the privilege of the writ of habeas
corpus (Boumediene v. Bush, 553 U.S. 723, 128 S. Ct. 2229, 171 L. Ed. 2d
12
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 21 of 35
the founders meant the habeas corpus clause (Article I, Section 9, clause 2)
litigant might raise. The bill of attainder clause immediately follows the
habeas corpus clause and is made of the same stuff. It reflects the founders
inconsistent with the divided and limited government they were creating.
executive branch.
interesting ambiguity for that important Court: may the exceptions and
judicial Power of the United States that is vested in such inferior Courts as
the Congress may from time to time ordain and establish. Nothing suggests
that this Court or the United States District Court for the District of
13
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 22 of 35
Columbia, once ordained and established, can have any part of the judicial
power of the United States taken away from them. And the possibility that
limits provides all the more reason that this Court and the District Court
should discharge their full responsibilities to apply the judicial power of the
For many years the authority of Professor Henry M. Hart, Jr., and his
commentators that Congress could shut off Article III courts from enforcing
class of cases. Professor Harts view was that the state courts are always
available, and under the supremacy clause (Article VI, clause 2) these courts
prisoners from any court, justice, or judge, state or federal. So state court
alternatives are not available to save the statute even under Professor Harts
theory.
United States v. Klein, 80 U.S. (13 Wall.) 128, 20 L. Ed. 519 (1872),
14
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 23 of 35
Confederacy. Here, Congress sought to prevent all forms of relief for anyone
must fail as well. It is a legislative attempt to dictate a negative result for any
The Second Circuit in Battaglia v. General Motors, 169 F.2d 254 (2d
Cir. 1948) dealt with the statutory claim of workers to be paid for their entire
portal-to-portal time on the employers premises, not only for the time
15
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 24 of 35
actually working. Congress had abolished that claim and the Second Circuit
acknowledged that the abolition of the claim could include stripping the
courts of jurisdiction to hear the claim. But if the claim had had
constitutional protection, Battaglia said, then it could not have been barred
In Bartlett v. Bowen, 816 F.2d 695, 703-711, 259 U.S. App. D.C. 391
(D.C. Cir. 1987), opinion reinstated and rehearing en banc denied, 824 F.2d
1240 (D.C.Cir.1987), this Court agreed, over the dissent of Judge Bork, who
free from ambiguity, 816 F.2d at 711. Bartlett dealt with denial of Medicare
nursing home to one not affiliated with that faith. The government claimed
Act. This Court discussed the constitutional issues at length because Judge
Borks dissent discussed them, and it was the majoritys view that a
Many commentators have taken the same view. Congress cannot use
Access to the Courts and the Separation of Powers, 84 Notre Dame L. Rev.
2107 (2009).
States has been emphatically termed a government of laws, and not of men.
It will certainly cease to deserve this high appellation, if the laws furnish no
17
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 26 of 35
remedy for the violation of a vested legal right. Marshall. C.J., Marbury v.
claim of Paracha that the legislative findings of guilt under which he labors
write such a ruling; the Court follows the principle that jurisdiction-stripping
statutes like 28 U.S.C. 2241(e) are to be read with caution, indeed with any
review. Johnson v. Robison, 415 U.S. 361 (1974) is a leading modern case.
366. Likewise, Weinberger v. Salfi, 422 U.S. 749, 762 (1975); Bowen v.
Michigan Academy of Family Physicians, 476 U.S. 667, 681 n.12 (1986);
and Webster v. Doe, 486 U.S. 592, 603 (1988). These cases all indicate that
This Court in Bartlett v. Bowen, 816 F.2d 695, 259 U.S. App. D.C.
391 (D.C. Cir. 1987), discussed above, said, This foreboding line of
have moved modern courts to apply the clear and convincing standard to
claims that Congress has stripped the federal courts of jurisdiction over any
constitutional morass and the courts must avoid it if at all possible. 816
F.2d at 700. This Court admitted that one part of the Medicare statute
stripped it of jurisdiction and held that part invalid, as discussed above, but
still exercised great caution and construed another part as not clearly and
19
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 28 of 35
the Constitution, and the language of the statute does not bar his claim.5
Obama, 605 F.3d 1046, 1048 (D.C. Cir. 2010) (Kiyemba III) that the
concurrence in that case shows what inadequate support for the bills of
already been released or offered release. Judge Rogers was right to chide her
statute to bar this bill of attainder claim. 28 U.S.C. 2241(e)(2), barring any
other action, is not severable from the habeas-barring section, section
2241(e)(1), which was struck down in Boumediene. Cf. the ruling of this
Court, Bismullah v. Gates, 551 F.3d 1068 (D.C. Cir. 2009), that the direct
appeals from the Combatant Status Review Tribunals to the D.C. Circuit are
not severable from that key provision and could not take place after
Boumediene. The operative language in Boumediene spoke of striking down
2241(e) and not (e)(1) only. 553 U.S. 723, 733. And 2241(e)(2) refers to
paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of
2005 (10 U.S.C. 801 note), which was enacted at 119 Stat. 2739, 2741-
2743, and was eviscerated by Bismullah, supra, and partially repealed by
123 Stat. 2612 and 124 Stat. 4374.
20
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 29 of 35
Foretich v. United States, 351 F.3d 1198 (D.C. Cir. 2003), a case which
controls this case and answers every argument the government can marshal
Dr. Foretich guilty of molestation, had intervened to strip the D.C. Superior
statute did not mention Dr. Foretich by name but targeted a narrow class of
custody cases of which his was the only likely example. This Court
or group of persons and imposing punishment upon them. 351 F.3d at 1217.
showing an intent to punish. 351 F.3d at 1218. These are not separate
together. 351 F.3d at 1218. This Court has said that incarceration is not
essential: our inquiry is not ended by the determination that the Act
21
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 30 of 35
Attainder Clause, Foretich, 351 F.3d at 1220, quoting Nixon v. GSA, 433
meet all three criteria for punishment: they speak in terms of confinement, a
rationale; and they were enacted professedly and explicitly to punish a group
restrictions into bills of attainder. The United States has waged war many
times since its founding, and a survey of the Statutes at Large for the
executive to hold and feed enemy combatants. See the historical note in
22
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 31 of 35
support of the motion filed April 30, 2015, Appendix 24-25. When statutes
actual decisions. E.g., the law of July 6, 1812, authorizing the safe
when truce negotiations stalled for more than two years, from June 28, 1951
to July 27, 1953, over the question whether prisoners would be allowed to
choose not to be repatriated. During all that time, when public attention was
riveted on the large number of Chinese and North Koreans who did not want
interfered with the executives responsibility to deal with the problem. See
6
One of the defects of the Articles of Confederation was the lack of
In World War II, when much of Europe was overrun with a criminal
regime and America was fully engaged in the struggle against it, several
camps throughout the United States. Many of them were allowed to work in
agriculture and other industries not directly related to the war effort. Arnold
Krammer, Nazi Prisoners of War in America (New York: Stein & Day,
anonymous and obscureout of sight and out of mind, the worst form of
network of relatives and friends in the United States who would visit and
Senator Tom Cotton (R., Ark.): As far as Im concerned, every last one of
them [the Guantanamo prisoners] can rot in hell. But as long as they dont
do that, then they can rot in Guantanamo Bay. Senate Armed Services
attacked in this appeal have revived this defect the Constitution supposedly
put behind us.
24
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 33 of 35
statements were submitted to the lower court and are collected in the
reflect the belief of a majority of the legislators that each and every prisoner
Saifullah Paracha.
bodies have no right to make such judgments about individuals. June 19,
the bill of attainder section . . . April 29, 2015, Cong. Rec. H2604,
Appendix 51. Now that they are enacted and are inhibiting the normal course
These arguments were urged on the District Court and may be found
827 F.3d 333, slip. op. 22 (4th Cir., July 1, 2016), quoting Pullman-
Standard v. Swint, 456 U.S. 273, 292 (1982). Semble, United States v.
Dillon, 738 F.3d 284, 297 (D.C. Cir. 2013); United States v. McDade, 699
F.3d 499, 505 (D.C. Cir. 2012). No remand is needed here. This record
RELIEF SOUGHT
updated and supplemented on January 15, 2016, be granted, and that all bills
declared null and void, or, alternatively, that the matter be remanded to the
Respectfully submitted,
GAILLARD T. HUNT
Attorney for Petitioner
(D.C. Bar No. 089375)
10705 Tenbrook Drive
Silver Spring, Maryland 20901
(Not admitted in Maryland)
301-530-2807
[email protected]
(Fax: 301-564-6059)
26
USCA Case #16-5248 Document #1651986 Filed: 12/20/2016 Page 35 of 35
CERTIFICATE OF SERVICE
27