Hamdan: Doesn’t The Government’s Interpretation Of The DTA Make It A Classic Bill Of Attainder?

Federal Defenders appointed to represent Guantanamo detainees in the District of Columbia are watching with interest the Supreme Court litigation in Hamdan regarding the Detainee Treatment Act. The government claims that Congress retroactively stripped federal courts of the habeas jurisdiction the Supreme Court found in Rasul, which enabled detainees to challenge whether they are enemy combatants. The government's claim flies in the face of the statute’s text, which appears to be unambiguously prospective. The words of the statute explicitly addressing retroactivity are directed to subsections (e)(2) and (e)(3) of the Act; the habeas stripping provision is in (e)(1). Basic rules of construction -- espressio unius est exclusio alterius -- foreclose construction of the statue to retroactively deprive pending petitioners of their day in court.

The government’s claim that Guantanamo detainees can be singled out and deprived of access to the federal court suffers a further defect, apart from the presumption against retroactivity, the violation of due process, and the effective suspension of habeas corpus. Doesn’t a retroactive construction of the DTA constitute an unconstitutional Bill of Attainder under Article I, Section 9, Clause 3? And doesn’t the specific provision of the Constitution banning Bills of Attainder trump the general power to legislate in the area of federal jurisdiction?

Mr. Hamdan correctly observes in his briefing, without contradiction in the government’s reply, that a retroactive DTA would constitute a classic Bill of Attainder. Two cases from 1866 support this position. In Ex parte Garland, 71 U.S. 333 (1866), the Court found that a law directed against individuals who had taken arms against the Republic was an unconstitutional Bill of Attainder. Congress passed a statute prohibiting appearance in any federal court by any attorney who failed to take and subscribe to an expurgatory loyalty oath that, by its terms, excluded former members of the Confederacy. Garland, an attorney and former member of the Confederacy, brought an action for declaratory relief in the Supreme Court seeking to have the legislation declared unconstitutional. Writing for the majority, Justice Fields found the loyalty oath legislation to constitute a Bill of Attainder barring otherwise qualified individuals from practice before federal courts:

"The statute is directed against parties who have offended in any of the particulars embraced by these clauses. And its object is to exclude them from the profession of law, or at least from its practice in the courts of the United States. As the oath prescribed cannot be taken by these parties, the act, as against them, operates as a legislative decree of perpetual exclusion. And exclusion from any of the professions or any of the ordinary avocations of life for past conduct can be regarded in no other light than as punishment for such conduct."

71 U.S. at 377 (emphasis added). To block the Guantanamo detainees from proceeding with their currently pending litigation in federal court, with the consequent indefinite detention, is a far more punitive and specific Bill of Attainder than the law reviewed in Garland.

The Supreme Court also focused on the access-to-the-courts aspect of a Bill of Attainder in Cummings v. Missouri, 71 U.S. 277 (1866), asserting that the Bill of Attainder proscription encompassed the deprivation or suspension of "any rights, civil or political," by legislative fiat:

"The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact. Disqualification from office may be punishment, as in cases of conviction upon impeachment. Disqualification from the pursuits of a lawful avocation, or from positions of trust, or from the privilege of appearing in the courts, or acting as an executor, administrator, or guardian, may also, and often has been, imposed as punishment."

(Emphasis added). In Cummings, a priest was jailed for ministering without providing an oath that he had not participated in the rebellion against the United States. The Court emphasized that the analysis of a Bill of Attainder was functional, and not dependent on labels:

"The Constitution deals with substance, not shadows. Its inhibition was leveled at the thing, not the name. It intended that the rights of the citizen should be secure against deprivation for past conduct by legislative enactment, under any form, however disguised. If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding."

Cummings, 71 U.S. at 325. The Court relied extensively on Blackstone’s definition of punishments, which included banishment, loss of property, disqualification from offices, and "loss of liberty by perpetual or temporary imprisonment." Cummings, 71 U.S. at 321.

Under the applicable standards, retroactive application of the DTA renders it a Bill of Attainder:

• the individuals affected, persons with habeas corpus petitions pending at the time of the DTA’s enactment, could not be more discrete and identified: they are the persons who filed for habeas relief from Guantanamo Bay after the Rasul decision;
• the legislative animus is reflected in the repeated characterization of the detainees as terrorists from the floor of the Senate, even though, as the Seton Hall Report on Guantanamo Detainees has revealed, only a small minority of detainees took arms against the United States or belong to al Qaeda;
• as a practical matter, the detainees will suffer indefinite detention without any means of developing relevant facts or challenging the validity of previous assertions made against them by the government.

A retroactive DTA would be a Bill of Attainder against the detainees with cases pending in federal court. But the Court never needs to reach this issue because, if not unambiguously prospective, the Doctrine of Constitutional Avoidance would apply. Before reaching the substance of the constitutional question, the Court, as recently elaborated in Clark v. Martinez, must determine if the statute is amenable to construction to avoid the question. Thus, if the statute is ambiguous regarding retroactivity, the Court should simply give Congress credit for not intending to create a Bill of Attainder as to those petitioners with pending cases.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon