D.C. Circuit Strikes Down Bill of Attainder Claim in Paracha v. Trump

Yesterday, in a short per curiam opinion, the U.S. Court of Appeals for the D.C. Circuit affirmed the ruling of the U.S. District Court for the District Columbia that the lower court had no jurisdiction over a motion by Guantanamo detainee Saifullah Paracha to hold certain statutory provisions unconstitutional as “bills of attainder.” Paracha’s motion addressed provisions of the National Defense Authorization Act for FY 2016 (2016 NDAA) and the Consolidated Appropriations Act of 2016 (CAA).

Below is a review of the case along with Paracha’s and the Department of Justice’s arguments. A summary of the appeals court’s ruling, along with the judgement itself, is included.

Background

Paracha was detained in Bangkok in 2003 and then taken to Guantanamo Bay, Cuba in 2004. Paracha’s counsel state that he had sought to interview Osama bin Laden and had communicated with several of bin Laden’s associates, leading to his seizure by U.S. authorities. Later in 2004, Paracha filed a habeas petition, but the case was stayed at his request in 2011. Both the Guantanamo Review Task Force and the Periodic Review Board determined that Paracha should remain detained.

In April 2015, Paracha asked the U.S. District Court for the District of Columbia lift the stay on his habeas petition and render summary judgment that the statutory provisions in question were bills of attainder, which Benjamin Wittes flagged on Lawfare. Paracha sought the nullification of 32 provisions of the 2016 NDAA and the CAA, which apply to “Khalid Sheikh Mohammed or any other detainee” held on or after June 24, 2009 at Guantanamo Bay who is also not a U.S. citizen, a category into which Paracha falls. The provisions include prohibitions on the transfer or release of detainees to the United States, the preparation of prison facilities in the United States, and the transfer of detainees to foreign countries. Paracha also challenged notice and reporting requirements imposed on the president.

The court denied the claim on standing grounds in June 2016. Judge Paul Friedman held that Paracha was not injured by the statutory provisions in question because he “is detained pursuant to the Authorization for the Use of Military Force . . . not any of the 32 statutes.” Judge Friedman rejected Paracha’s alternative source of standing based on the injury to his reputation for being labeled a terrorist, saying that Paracha had not established that his reputational injury “derived directly” from the statutory provisions. He also ruled that even if Paracha had standing, the court lacked subject matter jurisdiction under 28 U.S.C. § 2241(e)(2), a provision of the Military Commissions Act that divests the judiciary of any jurisdiction over actions “relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement” of a detainee (except those involving habeas petitions, under Boumediene v. Bush). Judge Friedman concluded that habeas was not implicated here because the “bills of attainder” argument did not touch on Paracha’s confinement.

Then, in December 2016, Paracha filed an appeal in the D.C. Circuit. The government filed its reply brief on February 22, 2017, Paracha filed his reply brief on March 7, and oral argument was held on April 10.

Arguments Before the U.S. Court of Appeals for the D.C. Circuit

In his brief before the appeals court, Paracha argued that his injury establishing standing stemmed from Congress’s having labeled him as a terrorist and thus an “enemy of humankind”—though Paracha did not reference where any of the statutory provisions at issue use the word “terrorist” to describe him. By labeling him and others as terrorists before they have been tried and convicted, and preventing their transfer or removal from Guantanamo, Paracha argued that Congress had effectively tried and convicted him as a legislative body, stepping into a judicial role. Paracha also tangled with the long-debated issue of whether Congress can limit some or all of the jurisdiction of Article III courts, seeking to further extend Boumediene’s invalidation of the statutory provision preceding 28 U.S.C. § 2241(e)(2) on the grounds that it unconstitutionally limited jurisdiction over habeas claims.

Finally, Paracha circled back around to the original argument at the district court level: That the statutory provisions are unconstitutional because they are “bills of attainder.” Paracha’s brief relied primarily on Foretich v. United States, a 2003 D.C. Circuit case defining bills of attainder as legislative acts aimed at a specific person or “easily ascertainable members of a group,” to impose some punishment and establishing a three-part inquiry to establish that an action constitutes punishment.

The Justice Department brief stuck largely to the decision of the district court in its favor, arguing that the court lacked subject-matter jurisdiction under § 2241(e)(2) and that Paracha lacked standing under the relevant statutes because his continued confinement is under the authority of the 2001 AUMF at the discretion of the executive branch. The Department further argued that Paracha’s constitutional claims could not be litigated under the D.C. Circuit’s ruling in Janko v. Gates that § 2241(e)(2) bars any non-habeas claims, “whether statutory or constitutional.”

Finally, the Justice Department clarified that the statutory provisions at issue cause no injury to Paracha because they never explicitly refer to the detainees as “terrorists,” and in fact mention terrorism only twice in reference to the detainees: Once when requesting that the Secretary of Defense assess the risk that the detainee will “engage in terrorist activity . . . if released,” and again when instructing the Defense Secretary to inform Congress when a detainee is deemed “a high-risk or medium-risk threat to the United States.”

The Appeals Court’s Ruling

The appeals court concluded that it lacked jurisdiction under § 2241(e)(2). It examined its own precedent in Janko v. Gates and Jawad v. Gates, stating that the cases hold § 2241(e)(2) to withdraw jurisdiction over detention-related claims, “statutory or constitutional.” The court highlighted that “[d]espite their appearance in the Government’s brief, Paracha did not acknowledge the substance of these precedents in his briefs and, when prompted at oral argument, offered no basis for distinguishing them from this case,” before concluding Paracha’s bill of attainder claims did not “sound in habeas,” and would not alter his confinement regardless.