* Bismullah v. Gates (D.C. Cir. Jan. 8, 2009)
The DC Circuit has determined that it no longer has jurisdiction to review Combatant Status Review Tribunal determinations pursuant to the Detainee Treatment Act, on the ground that this aspect of the DTA cannot be severed from the jurisdiction-stripping aspect of the DTA struck down by the Supreme Court in Boumediene. The full opinion is here:
If it is evident the Congress would not have enacted one statutory provision had it known that another provision would be held unconstitutional, then the former provision cannot be severed from the latter and the two provisions must fall together.
Our task, therefore, is to determine with respect to the DTA “what Congress would have intended in light of the Court’s constitutional holding” in Boumediene. United States v. Booker, 543 U.S. 220, 246 (2005) (internal quotation marks omitted). In making this determination, we “must retain those portions of the Act that are (1) constitutionally valid, (2) capable of functioning independently, and (3) consistent with Congress’ basic objectives in enacting the statute.”
The parties do not dispute that the first and second requirements for severability are met – that is, DTA § 1005(e)(2) is constitutional and could function independently. The question that divides the parties is whether, now that the Supreme Court has held each detainee has a constitutional right to pursue a writ of habeas corpus, the availability of judicial review pursuant to DTA § 1005(e)(2) is consistent with the basic objective of the Congress that passed that provision.
In this case, there can be no doubt: Both the text of the relevant provisions and the enactment of successive jurisdiction-stripping provisions demonstrate clearly that the Congress would not in the DTA have given this court jurisdiction to review CSRT determinations had it known its attempt to remove the courts’ jurisdiction over habeas petitions would fail.