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No. 05-892

In the Supreme Court of the United States

ABU BAKKER QASSIM, ET AL., PETITIONERS

v.

GEORGE W. BUSH,
PRESIDENT OF THE UNITED STATES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
BEFORE JUDGMENT
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record

PETER D. KEISLER
Assistant Attorney General

DOUGLAS N. LETTER
ROBERT M. LOEB
ERIC D. MILLER
Attorneys
Department of Justice
Washington, D.c. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the Detainee Treatment Act of 2005 divests the courts of jurisdiction over this case.

2. Whether the district court properly held that the military was not required to release petitioners upon its determination that they should no longer be detained as enemy combatants, where petitioners object to being returned to their native country and have no immigra tion status or other right permitting them to enter the United States, and where the Executive is actively seeking to find another country that will accept them.

In the Supreme Court of the United States

No. 05-892

ABU BAKKER QASSIM, ET AL., PETITIONERS

v.

GEORGE W. BUSH,
PRESIDENT OF THE UNITED STATES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
BEFORE JUDGMENT
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the district court (Pet. App. 1a-11a) is reported at 407 F. Supp. 2d 198. The case is currently pending before the court of appeals, and, hence, there is no opinion of the court of appeals at this time.

JURISDICTION

The order of the district court (Pet. App. 12a) was entered on December 22, 2005. The notice of appeal was filed on December 23, 2005. The petition for a writ of certiorari before judgment was filed on January 17, 2006. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1) and 2101(e). The court of appeals, and in turn this Court, lacks jurisdiction because of the De tainee Treatment Act of 2005. See pp. 9-11, infra.

STATEMENT

1. On September 11, 2001, the United States en dured the most deadly and destructive foreign attack in its history. In response, the President took immediate action to defend the country and prevent additional at tacks, and Congress approved his use of "all necessary and appropriate force against those nations, organiza tions, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons." Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, § 2(a), 115 Stat. 224.

The President ordered United States Armed Forces to subdue both the al Qaeda terrorist network and the Taliban regime that had harbored it in Afghanistan. Although United States troops have removed the Tali ban from power and dealt al Qaeda forces a heavy blow, armed combat against these enemies remains active and ongoing. Many Americans have been killed or wounded in combat, and many more continue to be in harm's way in order to defeat al Qaeda and the Taliban, and to pro tect this Nation from further attacks.

As in the case of every other major armed conflict in the Nation's history, in the course of these conflicts, the United States has captured and detained thousands of individuals. Consistent with the law and settled practice of armed conflict, it has detained a small fraction of them as enemy combatants. Approximately 480 of these enemy combatants are being held at the United States Naval Base at Guantanamo Bay, Cuba. Each of them was captured abroad and is an alien.

2. Every Guantanamo Bay detainee has received a formal adjudicatory hearing before a Combatant Status Review Tribunal (CSRT). The United States military established those tribunals "to determine, in a fact- based proceeding, whether the individuals de tained * * * at the U.S. Naval Base Guantanamo Bay, Cuba, are properly classified as enemy combatants and to permit each detainee the opportunity to contest such designation." Memorandum from Gordon England, Sec retary of the Navy, Regarding the Implementation of CSRT Procedures for Enemy Combatants Detained at Guantanamo Bay Naval Base, Cuba 1 (July 29, 2004) (England Memo) <http://www.defenselink.mil/news/ Jul2004/d20040730comb.pdf>. Out of the 558 CSRT hearings conducted, 38 resulted in determinations that the detainee in question should no longer be classified as an enemy combatant. See CSRT Summary (visited Mar. 17, 2006) <http://www.defenselink.mil/news/ Mar2005/d20050329csrt.pdf>.

When a detainee is determined to "no longer be clas sified as an enemy combatant," the Secretary of the Navy advises the "DoD Office of Detainee Affairs, the Secretary of State, and any other relevant U.S. Govern ment agencies, in order to permit the Secretary of State to coordinate the transfer of the detainee with the repre sentatives of the detainee's country of nationality for release or other disposition consistent with applicable laws." England Memo, Enclosure 1, at 9 (CSRT Pro cess). It is, however, the "policy of the United States, consistent with Article 3 of the Convention Against Tor ture and Other Cruel, Inhuman or Degrading Treatment or Punishment, not to repatriate or transfer individuals to other countries where it believes it is more likely than not that they will be tortured." C.A. App. 205.

3. Petitioners are ethnic Uighurs and natives of China. Before September 11, 2001, they received weap ons training near Tora Bora, Afghanistan, at a military training facility supplied by the Taliban. C.A. App. 233- 234; Pet. App. 1a. After the September 11 attacks on the United States, Northern Alliance forces approached the military training camp, and petitioners fled with others to the nearby Tora Bora caves. They then fled to Pakistan, where they were captured by Pakistani forces and turned over to the United States military. Pet. App. 1a; C.A. App. 234.

Petitioners were screened by the Department of De fense (DoD) in Afghanistan, determined to be "enemy combatants," and sent to the U.S. Naval Base in Guan tanamo Bay, Cuba. C.A. App. 83, 233-234. There, the United States granted each petitioner a hearing before a CSRT to determine whether the detainee should con tinue to be held as an enemy combatant. Id. at 233. For the purposes of the CSRT proceedings, "enemy combat ant" was defined as "an 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." Order Establishing CSRT para. a (DoD July 7, 2004) <http://www.defense link.mil/news/Jul2004/d20040707review.pdf>. "This in cludes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces." Ibid. In March 2005, petitioners re ceived CSRT determinations that they should no longer be considered enemy combatants. C.A. App. 233-234; Pet. App. 1a-2a & n.1.1

Typically, a CSRT determination that a detainee should no longer be held as an enemy combatant will prompt the detainee's return to his native country. Peti tioners vigorously oppose, however, being released to their native country.2 As a result, they are being de tained by the military pending the outcome of substan tial ongoing diplomatic efforts to transfer them to an appropriate country. Pet. App. 3a. In the meantime, petitioners are housed by DoD at Guantanamo in "Camp Iguana" with other individuals who have received favor able CSRT determinations. In Camp Iguana, petition ers have a communal living arrangement with access to all of the areas of the Camp, including the exer cise/recreation yard, their own bunk house, and activity room. Petitioners also have had access to a television set with VCR and DVD capability, a stereo system, rec reational items (for activities such as soccer, volleyball, and ping pong), unlimited access to a shower facility, air conditioning in all living areas (which they control), spe cial food items, and library materials. C.A. App. 234- 235.

4. Petitioners filed a habeas action in district court demanding their release from detention. On December 22, 2005, the district court denied the habeas petition and entered final judgment. Pet. App. 1a-12a. The court held that the present detention of petitioners, who are no longer classified as enemy combatants, "is unlaw ful" because, even assuming their initial detention was lawful, their continued detention has "exceed[ed] the presumptive limit of six months the Supreme Court ap plied in the analogous context of removable and excludable aliens detained under immigration statutes." Id. at 6a (citing Zadvydas v. Davis, 533 U.S. 678 (2001); Clark v. Martinez, 543 U.S. 371 (2005)). The district court further held, however, that it could not order peti tioners' release. Id. at 6a-11a.

The district court observed that it was "undisputed that the government cannot find, or has not yet found, another country that will accept the petitioners." Pet. App. 9a. Thus, the court found that "the only way to comply with a release order would be to grant the peti tioners entry into the United States." Ibid. After ex plaining that it is "settled law that the power to exclude aliens 'is inherent in the executive power to control the foreign affairs of this nation,'" id. at 10a (quoting United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950)), and that "the conditions of entry for every alien . . . have been recognized as matters . . . wholly outside the power of [courts] to control," ibid. (quoting Fiallo v. Bell, 430 U.S. 787, 796 (1977)), the district court held that it could not issue such relief:

These petitioners are Chinese nationals who received military training in Afghanistan under the Taliban. China is keenly interested in their return. An order requiring their release into the United States-even into some kind of parole "bubble," some le gal-fictional status in which they would be here but would not have been "admitted"-would have na tional security and diplomatic implications beyond the competence or the authority of this Court.

Ibid. The court therefore denied the petition for a writ of habeas corpus. Id. at 12a.

5. On December 23, 2005, petitioners filed a notice of appeal to the District of Columbia Circuit. Petition ers then filed a motion to expedite the appeal. On Janu ary 27, 2006, the court of appeals granted that motion. Pursuant to the court of appeals' order, appellate brief ing was completed on March 22, 2006, and oral argument is scheduled for May 8, 2006.

ARGUMENT

Petitioners seek the extraordinary remedy of certio rari before judgment. This Court's rules make clear that such a premature petition will not be granted unless it meets the most stringent criteria for this Court's im mediate intervention. See Sup. Ct. R. 11 (certiorari be fore judgment "will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court"). Those criteria are not remotely satisfied here. Petitioners are unable to show irreparable harm of a nature that would warrant immediate review; the court of appeals has agreed to expedite review such that the case will likely be decided in time that petitioners could seek review after judgment during the 2006 Term; the legal issues would benefit from consideration and elaboration by the court of appeals; and the court of appeals' decision or other events could well eliminate the need for this Court's intervention altogether. Accordingly, the peti tion for a writ of certiorari before judgment should be denied.

1. Certiorari before judgment is particularly inap propriate here because it is highly unlikely that bypass ing the court of appeals would hasten the ultimate reso lution of petitioners' claims. The court of appeals has expedited review to the point that the case is already fully briefed in that court and set for argument on May 8, 2006. In other words, the case will be argued and likely be decided by the court of appeals before the case could be briefed and argued in this Court. Indeed, given the expedited manner in which the court of appeals is handling the case, that court is likely to issue a decision in such time that petitioners could, if they chose to do so, seek plenary review of such a decision in this Court dur ing the 2006 Term. Thus, even if petitioners' arguments had any merit (which, for the reasons discussed below, they do not) there would be no reason to prevent the District of Columbia Circuit from considering the appeal on the fast track on which it has already been placed.3

2. Petitioners argue (Pet. 15) that this Court's "in tervention is called for to address an urgent, systemic need" for resolution of legal issues relating to the status of detainees at Guantanamo Bay. That argument lacks merit. First, as mentioned above, because the case would likely be amenable to review next Term following a decision by the court of appeals, there is no point in resolving the issues without the benefit of a decision by the court of appeals. Second, at face value, the legal issues in this case are not appreciably different in kind or magnitude than those in other recent cases involving enemy combatants in which this Court has denied peti tions for certiorari before judgment. See note 3, supra.

Finally, the fact that petitioners are detained (Pet. 18) does not establish that they are suffering irreparable harm requiring this Court's immediate intervention. That is true in virtually every habeas case, and in most criminal cases as well. The fact that the military has determined that petitioners' detention is no longer nec essary to the war effort and that the United States is actively seeking to find a country into which they may be released does not establish that the case is of "impera tive public importance" within the meaning of this Court's Rule 11. To the contrary, as the district court found, petitioners' predicament requires resolution by the political Branches, not the courts. Pet. App. 9a-10a. More to the point, the fact that the government is ac tively seeking through diplomatic means to facilitate pe titioners' release from custody puts them in a more fa vorable position than other habeas petitioners.

3. The practical arguments against granting certio rari before judgment provide a sufficient basis to dis pose of this petition. Petitioners' arguments on the mer its also fail to meet the exceptionally high standard that this Court has set for certiorari before judgment. As explained below, there is a threshold jurisdictional bar to petitioners' habeas action and, in any event, their ar guments on the merits are unavailing.

a. The Detainee Treatment Act of 2005 (DTA), Pub. L. No. 109-148, Div. A, Tit. X, 119 Stat. 2739, eliminates jurisdiction over habeas actions brought on behalf of Guantanamo detainees. As explained in detail in the gov ernment's motion to dismiss in Hamdan v. Rumsfeld, cert. granted, No. 05-184 (oral argument scheduled for Mar. 28, 2006), Section 1005(e)(1) of the DTA by its terms applies to all pending habeas cases and any other actions brought by Guantanamo detainees. It provides:

(I) In General.-Section 2241 of title 28, United States Code, is amended by adding at the end the following:

(e) Except as provided in section 1005 of the De tainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider-

(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or

(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who-

(A) is currently in military custody; or

(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.

Petitioners' are aliens detained in military custody at Guantanamo Bay, and their habeas action therefore falls squarely with the terms of Section 1005(e)(1). Because the DTA removes habeas jurisdiction over this action, this action should be dismissed for want of jurisdiction.4

b. In any event, even apart from that jurisdictional defect, petitioners' claims are without merit. Petitioners argue that their detention is unlawful and that the dis trict court erred in failing to grant them relief. Petition ers are incorrect on both scores.

Petitioners' detention is lawful. Petitioners went to Afghanistan to receive weapons training at a military training facility supplied by the Taliban near Tora Bora. C.A. App. 233-234. They were receiving that training when Northern Alliance forces approached the military training camp. Petitioners fled to the Tora Bora caves and ultimately to Pakistan, where they were captured by Pakistani forces and turned over to the United States military. Pet. App. 1a; C.A. App. 234. DoD screened petitioners in the zone of combat, determined that they were enemy combatants, and transferred them to the U.S. Naval Base at Guantanamo Bay for detention.

That quintessential military determination was rea sonable under the circumstances and is entitled to ef fect. As a general matter, it is well within the scope of the U.S. military's authority to capture and detain per sons who were trained at an enemy-supplied military training base in enemy territory and who were found fleeing that base during the armed conflict. The uncon ventional nature of the conflict in Afghanistan, in which the enemy purposefully blurs the distinction between combatants and non-combatants, only increases the need for the military to be permitted to make such de terminations in a theater of active combat operations. As a plurality of this Court concluded in Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004), the AUMF grants the President the power to detain enemies captured dur ing our armed conflict with al Qaeda and the Taliban.

Petitioners correctly observe (Pet. 5) that the CSRTs, after thoroughly examining all of the informa tion provided by the military and the detainees, ulti mately determined that petitioners should no longer be held as enemy combatants, as that term was defined and implemented for the purposes of the CSRTs. That de termination does not mean, however, that petitioners' original detention was inappropriate or unauthorized. Through a process unprecedented in the history of armed conflict, and more protective than the one-shot review envisioned by Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War, the U.S. military has conducted a rigorous examination of a de tainee's enemy combatant status based on information available at the time of the review, including any new information gathered subsequent to the detainee's cap ture. Under DoD instructions, the CSRT rulings re garding petitioners establish that it is no longer re quired that petitioners be detained as enemy combat ants; the rulings do not, however, provide a basis to con clude that their initial detention following their capture in a foreign combat zone was unlawful.

The Executive's power to detain enemy combatants necessarily includes the authority to wind up detention in an orderly fashion after a determination has been made that it is no longer necessary to hold a detainee for war-related reasons. Typically, when a CSRT finds that a detainee should no longer be held as an enemy combat ant, he is returned to his native country. England Memo, Enclosure 1, at 9 (CSRT Process). But petition ers vigorously oppose being sent to their native country. And the United States, consistent with its policy against returning an individual when it is more likely than not that he will be tortured (C.A. App. 205), will not return petitioners to China. Thus, they are being detained by the U.S. military pending the outcome of extensive dip lomatic efforts to transfer them to an appropriate coun try. Those efforts are active and ongoing and have been given high priority by the Executive Branch.5 In the meantime, because petitioners are not eligible to enter the United States, it is not unlawful for the military to continue to detain them at Guantanamo-in the consid erably less restrictive conditions of Camp Iguana, see p. 5, supra-until they can be properly resettled.

The district court's conclusion that the United States lacks authority to continue to detain those captured dur ing an armed conflict, where the individuals oppose be ing returned to their native country and cannot safely be returned there, while some other venue for relocation is found, is contrary to both history and logic. Historically, the United States armed forces, like the armed forces of our allies, have continued the detention of prisoners of war following the end of major conflicts when the pris oner objects to repatriation in his native country. For example, at the end of the Korean War, approximately 100,000 Chinese and North Korean prisoners of war re fused to return to their native countries, citing fears of execution, imprisonment, or mistreatment in their coun tries if returned. See Jan P. Charmitz & Harold M. Wit, Repatriation of Prisoners of War and the 1949 Geneva Convention, 62 Yale L.J. 391, 392 (1953); Christiane Shields Delessert, Release and Repatriation of Prison ers of War at the End of Active Hostilities: A Study of Article 118, Paragraph 1 of the Third Geneva Conven tion Relative to the Treatment of Prisoners of War 157-165 (1977) (Delessert). The United Nations Com mand continued to hold those 100,000 prisoners for more than one and one-half years while it considered whether and how best to resettle them. See id. at 163-164.

Likewise, after World War II, Allied Forces spent several years dealing with prisoners of war they de tained during the war, including thousands of prisoners who did not wish to return to their native countries. See Delessert 145-156 & n.53 (citing, inter alia, the fact that as late as 1948 England held 24,000 German prisoners who objected to being repatriated); Charmitz & Wit, supra, at 401 nn.46 & 48, 404 n.70; Christiane Shields Delessert, Repatriation of Prisoners of War to the So viet Union During World War II: A Question of Hu man Rights in World in Transition: Challenges to Hu man Rights, Development and World Order 80 (Henry H. Han ed., 1979). Similarly, thousands of Iraqis were held in continued detention by the United States and its allies after the end of combat in the prior Gulf War be cause they objected to being repatriated to their native country. See DoD, Conduct of the Persian Gulf War: Final Report to Congress 620 (1992) (discussing the more than 13,000 Iraqi POWs who objected to being repatriated and remained in custody despite the end of hostilities).

In the district court, petitioners contended that their release was mandated by Article 118 of the Third Geneva Convention, which states that "[p]risoners of war shall be released and repatriated without delay af ter the cessation of active hostilities," Geneva Conven tion Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3406, 75 U.N.T.S. 224, and Article 132 of the Fourth Geneva Convention (Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3606, 75 U.N.T.S. 376), which provides that "[e]ach interned person shall be released by the Detaining Power as soon as the reasons which necessitated his internment no longer exist." The Geneva Convention does not create judicially enforce able private rights. Instead, as this Court recognized in Johnson v. Eisentrager, 339 U.S. 763 (1950), the Conven tion's protections "are vindicated under it only through protests and intervention of protecting powers." Id. at 789 n.14. See Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005), cert. granted, No. 05-184 (oral argument scheduled for Mar. 28, 2006); see also Gov't Br. at 30-34, Hamdan, No. 05-184.

In any event, the provisions on which petitioners rely presuppose that repatriation is possible. Significantly, the International Committee of the Red Cross commen tary explains that the term "without delay" does not address the situation where the prisoner refuses to re turn to his native country. See International Comm. of the Red Cross, Commentary to the Geneva Convention Relative to the Treatment of Prisoners of War 541-550 (1960). In those situations, "[e]ach case must * * * be dealt with individually." Id. at 548. The general re quirement of return without delay does not "affect the practical arrangements which must be made so that re patriation may take place consistent with humanitarian rules." Id. at 550.

c. Petitioners mistakenly rely on Zadvyadas v. Da vis, 533 U.S. 678 (2001), and Clark v. Martinez, 543 U.S. 371 (2005), to support their contention that their contin ued detention is unlawful. There is no conflict with those cases warranting this Court's review, much less review before the court of appeals is afforded an oppor tunity to pass on the matter. Those cases resolved a question of statutory interpretation in a materially dif ferent context, and did not address constitutional issues of the sort petitioners seek to raise.

In both Zadvydas and Clark, this Court construed an immigration statute, 8 U.S.C. 1231(a)(6), which has no application here. That statute governs the detention of an alien inside the United States pending the execution of an immigration removal order. In Zadvydas, the Court held that this statutory provision "limits an alien's post-removal-period detention to a period reasonably necessary to bring about that alien's removal from the United States," 533 U.S. at 689, and that six months af ter the removal order becomes final constitutes a pre sumptively reasonable period, id. at 701. Clark con firmed that Zadvydas's interpretation of the statute applies to the removal of inadmissible aliens being held within the United States. See 543 U.S. at 378.

The immigration statute at issue in Zadvydas and Clark, which addresses detention of an alien in the United States pending the execution of an immigration removal order, is plainly inapplicable to petitioners here. Petitioners, who are not and have never been in the United States, are not being detained under that statute or any other immigration provision. See 8 U.S.C. 1101(a)(38) (defining the geographic scope of the United States for the purposes of the Immigration and Nation ality Act (INA), 8 U.S.C. 1101 et seq.); DTA § 1005(g), 119 Stat. 2743 (stating that Guantanamo Bay is not part of the United States). Moreover, in Zadvydas, this Court stated that it was not announcing a rule that would necessarily apply to immigration cases in volving "terrorism or other special circumstances where * * * [there would be a need for] heightened de ference to the judgments of the political branches with respect to matters of national security." 533 U.S. at 696. In Clark, the Court expanded upon that statement, ex plaining that the Court's interpretation of Section 1231(a)(6) would not affect the ability of the government to detain aliens under other authority. 543 U.S. at 379 n.4. Given that petitioners here are not being held pur suant to the INA, the limitation on detention authority under Section 1231(a)(6) recognized in Zadvydas and Clark has no bearing on petitioners' case.

Furthermore, in construing the immigration statute at issue in Zadvydas, the Court relied upon a constitutional-avoidance analysis. That approach is in applicable here. In Zadvydas, the aliens had been ad mitted for lawful permanent residence. 533 U.S. at 684- 685.6 The Court observed that the analysis would be very different for aliens, like petitioners here, who are outside of the United States. As the Court explained, "[i]t is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic bor ders." Id. at 693.

The more relevant immigration case is Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953). There, an alien who had been a 25-year resident of the United States left the country to visit his dying mother. The INS found that he could not legally re-enter. Mezei was stopped at the border and held in detention in the United States because no other country would accept him. He contended that his detention was indefinite and unlawful. The Court found that Mezei had no constitu tional right to enter or obtain release into the United States, even though he had been detained more than two years and even though at the time there was no prospect that another country would accept him. The Court ex plained that, "[w]hatever our individual estimate of [the decision not to release Mezei] and the fears on which it rests, respondent's right to enter the United States de pends on the congressional will, and courts cannot sub stitute their judgment for the legislative mandate." Id. at 216. The same rationale applies all the more here because petitioners likewise have no right to enter the United States, have never been present in the United States, and were captured during an armed conflict.7

d. Petitioners argue that a court can order the Exec utive to parole an alien into this country from outside the United States. That is incorrect. The cases on which petitioners rely (Pet. 10-11) deal with aliens who were already physically present in the United States and provide no authority for the relief they seek. Peti tioners are held outside the United States on the island of Cuba. The INA defines the "United States" to in clude only "the continental United States, Alaska, Ha waii, Puerto Rico, Guam, and the Virgin Islands of the United States," see 8 U.S.C. 1101(a)(38), and therefore excludes Guantanamo, which is located in Cuba. Fur ther, in the DTA, Congress specified that, for purposes of judicial review of claims brought by detainees at Guantanamo Bay, the geographic scope of the "United States" should be as defined in Section 101(a)(38) of the INA and, "in particular, does not include the United States Naval Station, Guantanamo Bay, Cuba." DTA § 1005(g), 119 Stat. 2743 (emphasis added).

In order to make a "lawful entry * * * into the United States," petitioners would have to be "admitted" to this country. 8 U.S.C. 1101(a)(13)(A). A court does not have the power to order the admission of petitioners. See Fok Yung Yo v. United States, 185 U.S. 296, 305 (1902) ("Congressional action has placed the final deter mination of the right of admission in executive officers, without judicial intervention."). With limited exceptions not relevant here, the INA provides that an alien outside the United States must have a visa to enter the country. See 8 U.S.C. 1182(a)(7). Petitioners have no such visas, and a court cannot order the Executive to issue them.

Furthermore, a judicial order requiring the govern ment to bring petitioners into the United States not only would conflict with the INA, but also would be contrary to over a century of this Court's jurisprudence recogniz ing that the admission of aliens is a quintessential sover eign function reserved exclusively to the political Branches of government. As the Court explained long ago, "[t]he power to exclude or to expel aliens, being a power affecting international relations, is vested in the political departments of the government." Fong Yue Ting v. United States, 149 U.S. 698, 713 (1893). That exclusion power is "to be regulated by treaty or by act of Congress, and to be executed by the executive author ity according to the regulations so established, except so far as the judicial department has been authorized by treaty or by statute, or is required by the paramount law of the Constitution, to intervene." Ibid.; see Lem Moon Sing v. United States, 158 U.S. 538, 546-547 (1895).

Because a district court may not review and override a denial of admission, it follows a fortiori that a court may not order admission in the first instance. Nor could a court order that the Government "parole" (Pet. 12) petitioners, which would temporarily admit them into the United States. Although the INA authorizes the parole of aliens who are applying for admission, 8 U.S.C. 1182(d)(5), the decision to parole-like the decision to admit-is vested solely in the Executive Branch's unre viewable discretion. See 8 U.S.C. 1182(d)(5)(A), 1252(a)(2)(B)(ii). Aside from admission or parole, there is no way for petitioners to be lawfully present in the United States. Under 8 U.S.C. 1182(a)(9)(B)(ii), an alien who "is present in the United States without being ad mitted or paroled" is "unlawfully present." See 8 U.S.C. 1182(a)(6)(A)(i) (aliens who have not been "admitted or paroled" are inadmissible).8

CONCLUSION

The petition for a writ of certiorari should be dis missed for lack of jurisdiction or denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

PETER D. KEISLER
Assistant Attorney General

DOUGLAS N. LETTER
ROBERT M. LOEB
ERIC D. MILLER
Attorneys

MARCH 2006

1 Although it will lead to a detainee's release from military custody, a CSRT determination that a detainee should no longer be held as an enemy combatant does not invalidate the military's initial judgment that an individual should be detained as an enemy combatant. See p. 12, infra.

2 As noted above, it is the policy of the United States not to return individuals to countries where it is more likely than not they will be tortured (C.A. App. 205).

3 Indeed, the case for bypassing the court of appeals here in order to expedite review by this Court is considerably weaker than in other recent cases in which this Court has denied petitions for writs of certiorari before judgment seeking review of the President's exercise of his war powers in the ongoing armed conflict with al Qaeda and the Taliban. See Padilla v. Hanft, 125 S. Ct. 2906 (2005) (denying petition for a writ of certiorari before judgment where expedition in the Fourth Circuit (including the scheduling of oral argument in July 2005) made it reasonably likely that the Court could consider the case during the 2005 Term); Hamdan v. Rumsfeld, 543 U.S. 1096 (2005) (denying petition for a writ of certiorari before judgment where the clear effect of that denial was to postpone Supreme Court review until the following term).

4 Because petitioners received a favorable CSRT determination, they have no claim under Section 1005(e)(2) and their case is not properly "in the court of appeals" for purposes of this Court's jurisdiction under 28 U.S.C. 1257. The impact of the DTA on the jurisdiction of the court of appeals will be a prominent feature of briefing in the court of appeals, and that fact further counsels against review at this juncture. The proper scope and effect of the DTA is an issue currently pending before this Court in Hamdan, cert. granted, No. 05-184 (oral argument scheduled for Mar. 28, 2006), and in the District of Columbia Circuit in Al Odah, No. 05-5064 (argued Mar. 22, 2006). That provides another basis for denying certiorari before judgment in this case. Because there are many other reasons for denying certiorari before judgment in this case, this petition need not be held pending the disposition in Hamdan.

5 The government offered to make a detailed in camera and ex parte report to the district court describing the ongoing resettlement efforts. C.A. App. 447. The district court declined the offer. Ibid.

6 In Clark, the aliens were seeking admission to the United States. 543 U.S. at 374-375. While the Court gave the detention statute the same construction it gave it in Zadvydas, those aliens, as a result of the Court's decision in Shaugnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), had no constitutional argument to be released into the United States.

7 Petitioners also suggest (Pet. 18) that the district court's decision "empties [Rasul v. Bush, 542 U.S. 466 (2004)] and [Hamdi v. Rumsfeld, 542 U.S. 507 (2004)] of meaning." That is incorrect. Petitioners invoked the habeas jurisdiction that this Court held existed in Rasul (though that statutory jurisdiction has now been removed and supplanted in part by the DTA). Hamdi recognized that the military has the authority to capture and detain individuals, such as petitioners, who were determined to have associated with the enemy and were in the midst of a foreign combat zone. Moreover, Hamdi involved the deten tion in this country of an American citizen, who enjoyed constitutional rights that aliens detained abroad, such as petitioners, do not possess. See U.S. Br. 43, Hamdan, supra (No. 05-184). In any event, in Hamdi, this Court observed that the due process rights of an American citizen to challenge his wartime detention as an enemy combatant could be satisfied by affording such a detainee an administrative hearing before the military. See 542 U.S. at 538. Petitioners received such process, and more, pursuant to the CSRT process.

8 Last year, Congress clarified that the comprehensive preclusion of judicial review over discretionary immigration decisions also encom passes habeas review. In the REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, 119 Stat. 302, Congress amended the INA to make explicit that no court has jurisdiction under 28 U.S.C. 2241 or "any other habeas corpus provision" to review such discretionary decisions. See REAL ID Act § 106(a), 119 Stat. 310; see also id. § 101(f)(2), 119 Stat. 305 (providing that there is no jurisdiction "regardless of whether the judgment, decision or action is made in removal proceedings").