No.

17-6853

In the United States Supreme Court

SAIFULLAH PARA CHA,
Petitioner,
V.

DONALD J. TRUMP,
Respondent.

Petition for Certiorari to the
United States Court of Appeals for the District of Columbia Circuit

GAILLARD T. HUNT
Attorney of Record for Petitioner
D .C. Bar No. 089375
I 0705 Tenbrook Drive
Silver Spring, Maryland 2090 I
301-530-2807
gthunt@ mdo.net

 QUESTIONS PRESENTED

Are the congressional restrictions on release, movement, or exchange of the
prisoners held at Guantanamo Bay, Cuba, invalid as bills of attainder?

Does petitioner, a Pakistani businessman and television producer held at
Guantanamo Bay since 2004, have standing to raise that question?

II

 PARTIES TO THE PROCEEDINGS BELOW

CERTIFICATE AS TO PARTIES
There are no amici.
SAIFULLAH PARACHA,
Detainee, ISN 1094
Guantanamo Bay Naval Station,
Guantanamo Bay, Cuba,
petitioner, here and below, is a natural person, a citizen and national of
Pakistan.
DONALD J. TRUMP,
respondent, is the President of the United States and is sued in his official
capacity.
RULE 29.6 STATEMENT
There is no corporation interested in this action.

111

 TABLE OF CONTENTS

THE PETITION
THE OPINIONS BELOW

1

JURISDICTION OF THIS COURT

1

CONSTITUTIONAL AND STATUTORY AUTHORITIES INVOLVED
2
STATEMENT OF THE CASE

4

REASONS FOR GRANTING THE PETITION FOR CERTIORARI
5

I. THIS COURT SHOULD ACCEPT AND EXPRESSLY ENDORSE THE
DOCTRINE THAT CONGRESS MAY NOT SHUT THE FEDERAL
COURTS TO CONSTITUTIONAL CONTROVERSIES, ESPECIALLY
THOSE NECESSARY TO MAINTAIN THE SEPARATION OF POWERS
OR TO PROTECT AGAINST LEGISLATIVE FINDINGS OF GUILT.
5

II. IF THE CONSTITUTIONAL ISSUE MUST BE AVOIDED, THE
WORDING OF T)-IIS JURISDICTION-STRIPPING STATUTE MUST BE
HELD NOT TO APPLY TO PETITIONER'S CHALLENGE TO THESE
9
BILLS OF ATTAINDER.
III. AFTER THE JURISDICTIONAL OBSTACLES ARE REMOVED,
THIS COURT SHOULD ACKNOWLEDGE PETITIONER PARACHA'S
STANDING TO RAISE THE ISSUE AND SHOULD GO ON TO
DECLARE THE BILLS OF ATTAINDER VOID.
10
CONCLUSION

17

lV

 THE APPENDIX

RULINGS BELOW
June 16, 2016, opinion and order of U.S. D.C. D.C. rejecting petitioner's
attack on the bills of attainder
App. 1
July 29, 2016, opinion of U.S. D.C. D.C. ruling that the bills of attainder
App. 7
issue is separately appealable under FRCP 54(b)
July 29, 2016, order that the bills of attainder issue is separately appealable
App. 10
April 25, 2017, opinion of the D.C. Circuit affirming dismissal of
petitioner' s attack on the bills of attainder
A pp. 11
July 7, 2017, denial of rehearing

App.13

July 7, 2017, denial of rehearing en bane

App. 14

STATUTORY PROVISIONS
The statutes attacked as bills of attainder

App. 15

March 3, 2016, Government analysis of the statutes then in question
App. 35
Historical statutes

App. 51

CONGRESSIONAL COMMENTS EXPRESSING PUNITIVE INTENT:
Pages 8-10 from petitioner's April 30, 2015, memorandum of points and
authorities in support of his motion for summary judgment App. 55

V

 Pages 3-5 from petitioner's January 15, 2016, supplement to petitioner's
motion for summary judgment to include the National Defense
Authorization Act of 2016
App. 59

COMMENTS SHOWING REPUTA TIONAL HARM CAUSED BY
THE BILLS OF ATTAINDER:
Pages 17-18 from petitioner's June 19, 2015, reply in support of petitioner's
motion for summary judgment
App. 62

YI

 TABLE OF CITED AUTHORITIES

Cases
Bartlett v. Bowen, 816 F.2d 695, 259 U.S. App. D.C. 391 (D.C. Cir. 1987)
6

Battaglia v. General Motors, 169 F.2d 254 (2d Cir. 1948)

6

Bismullah v. Gates, 551 F.3d 1068 (D.C. Cir. 2009)

3

Bondv. United States, 564 U.S . 211, 131 S. Ct. 2355, 180 L. Ed. 2d 269
(2011)
11
Boumediene v. Bush, 553 U.S. 723, 128 S. Ct. 2229, 171 L. Ed. 2d 41 (2008)
3,8,13
Bowen v. Michigan Academy ofFamily Physicians, 476 U.S. 667 (1986)
10

Cummings v. Missouri, 71 U.S. (4 Wall.) 277,181 L. Ed. 356 (1866) 16
Ex parte Garland, 71 U.S. (4 Wall.) 333, 18 L. Ed. 386 (1866)

16

Foretich v. United States, 351 F.3d 1198 (D.C. Cir. 2003)

13-15

INS v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983)
10-11

Janka [or Al Janka] v. Gates, 741 F.3d 136, 139 (D.C. Cir. 2014)

5

Johnson v. Robison, 415 U.S. 361,366 (1974)

10

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)

10

Vil

 Nixon v. GSA, 433 U.S. 425 , 475 (1977)

14

Paracha v. Trump, _ _ F.3d _ _ , 201 7 U.S. App. LEXIS 7310 (D.C. Cir.
2017)
1
Paracha v. Trump, 194 F. Supp. 3d 7 (D.D.C. 2016)

1

Thunder Basin Coal Co. v. Reich, 510 U.S. 200,219 note (1994)

6

United States v. Brown, 381 U.S. 437 (1965)

12

United States v. Klein, 80 U.S . (13 Wall.) 128, 20 L. Ed. 519 (1871)

7

United States v. Lovett, 328 U.S. 303, 66 S. Ct. 1073, 90 L. Ed. 1252 (1946)
16
United States v. Brown, 381 U.S. 437, 85 S. Ct. 1707, 14 L. Ed. 2d 484
16
(1965)
United States v. Padelford, 76 U.S . (9 Wall.) 531, 19 L. Ed. 788 (1869) 7
Webster v. Doe, 486 U.S . 592 (1988)

6,10

Weinberger v. Salfi, 422 U.S. 749, 762 (1975)

10

Zivotofsky v. Kerry, 576 U.S . _

, 135 S.Ct. 2076, 192 L. Ed. 2d 83 (2015)
13

Constitutional Provisions
Article I, Section 7
Article I, Section 9, clause 3
Article II, Section 2, clause 3
Article III, Section 1

11
2
8

5-6

Statutes
10 U.S.C. 801 note, Detainee Treatment Act of 2005 , Section 1005(e) 2
28 U.S.C. 1254(1)
1
VIII

 28 U.S.C. 1331
2
28 U.S.C. 2101(c)
1
28 u.s.c. 2201
2
28 U.S.C. 2241(e)
9
28 U.S.C. 2241(e)(2)
2-3,5,9,10
Pub. L. 109-366, October 17, 2006, 120 Stat. 2635-2636, Military
2
Commissions Act of 2006, Section 7(a)
Pub. L. 114-328, 130 Stat. 2000, December 23, 2016, National Defense
3
Authorization Act for Fiscal Year 2017
Pub. L. 115-31, _ _ Stat. _ _ , May 5, 2017, Consolidated
3
Appropriations Act, 2017

H.R. 1301, Department of Defense Appropriations Act, 2017, Sections 8101,
8102, and 8103
4
H.R. 2810, National Defense Authorization Act for Fiscal Year 2018,
Sections 1022, 1023, and 1024
4
H.R. 3219 Make America Secure Appropriations Act, 2018, Sections 512,
8094, 8095, and 8096
4
H.R.3267
4
H.R.3355
4

Rules
Supreme Court Rule 29.4(b)
FRCP 54 (b)

2

2,5

Articles
Vladeck, Stephen I., Boumediene's Quiet Theory: Access to the Courts and
the Separation ofPowers, 84 Notre Dame L. Rev. 2107 (2009) 8
Eisenberg, Theodore, Congressional Authority to Restrict Lower Federal
7
Court Jurisdiction, 83 Yale L. J. 498 (1974)
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)
8

IX

 Fallon, Richard H., Jr., Jurisdiction-Stripping Reconsidered, 96 Virginia L.
7,8
Rev. 1043, 1134 (2010)
Clinton, Robert N., A Mandatory View ofFederal Court Jurisdiction, 132 U.
Pennsylvania L. Rev. 741 (1984)
7
Young, Gordon G ., Congressional Regulation ofFederal Courts '
Jurisdiction and Processes: United States v. Klein Revisited, 1981
8
Wisconsin L. Rev. 1189 (1981)
Young, Gordon G., United States v. Klein: Then and Now, 44 Loyola
University of Chicago L. Journal 265 (2012)
8
Redish , Martin H. and Curtis E. Woods, Congressional Power to Control
the Jurisdiction ofLower Federal Courts, 124 U. Pennsylvania L.
Rev. 45, 93 (1975)
7

X

 PETITION FOR THE WRIT OF CERTIORARI
TO THE
UNITED STATES COURT OF APPEALS
FOR THE
DISTRICT OF COLUMBIA CIRCUIT

THE OPINIONS BELOW
The U.S. Com1 of Appeals for the D.C. Circuit on April 25, 2017, affirmed
the District Court's dismissal of petitioner Paracha's petition to have the bills of
attainder declared invalid. App. 11. This is reported at _ _ F.3d _ _ , 2017
U.S. App. LEXIS 7310 (D.C. Cir. 2017). The District Court's ruling of June 16,
2016, App. 1, is reported at 194 F. Supp. 3d 7 (D.D.C. 2016).

JURISDICTION OF THIS COURT
Petitioner Paracha's petitions for rehearing and rehearing en bane were
denied without comment July 7, 2017. App. 13 and 14. This petition for certiorari
is timely under 28 U.S.C. 2101 (c) and invokes this Court's authority under 28
U.S.C. 1254(1) to review the action of the Court of Appeals.

 The U.S. District Court had jurisdiction over petitioner's challenge to the
bills of attainder under the federal question statute, 28 U.S.C. 1331, and the
declaratory judgment statute, 28 U.S.C. 2201. The District Court certified on July
29, 2016, that that challenge was a severable issue under FRCP 54 (b) and could be
appealed while his petition for habeas corpus is still pending in the District Court.
App. 7 and 10.
Separate notice under Rule 29 .4(b) that the constitutionality of several
statutes is called into question is not required because respondent is an officer of
the United States and -the Solicitor General has been served.
'

CONSTITUTIONAL AND STATUTORY AUTHORITIES INVOLVED
U.S. Constitution, Article I, Section 9, clause 3: "No Bill of Attainder or ex
post facto Law shall be passed."
The lower courts rejecting petitioner's suit relied on the following
jurisdiction-stripping provision of the Military Commissions Act of 2006, Section
7(a), Pub. L. 109-366, October 17, 2006, 120 Stat. 2635-2636:
(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the
Detainee Treatment Act of2005 (10 U.S.C. 801 note), no court, justice, or
judge shall have jurisdiction to hear or consider any other action against the
United States or its agents relating to any aspect of the detention, transfer,
treatment, trial, or conditions of confinement of an alien who is or was
detained by the United States and has been determined by the United States to
2

 have been properly detained as an enemy combatant or is awaiting such
determination.
28 U.S.C. 2241(e)(2). (The exception provided for review of the decisions of the
combatant status review tribunals by the D.C. Circuit. It was struck down by the
D.C. Circuit as no longer necessary because Boumediene v. Bush, 553 U.S. 723,
128 S. Ct. 2229, 171 L. Ed. 2d 41 (2008), had restored habeas corpus for
Guantanamo detainees. Bismullah v. Gates, 551 F.3d 1068 (D.C. Cir. 2009).)
The statutes petitioner Paracha challenges as bills of attainder are perennial
provisions in the various authorization and appropriations acts. Tracking them is
complicated, but they are by no means ambiguous or ineffective. The most recent
are the Consolidated Appropriations Act, 2017, Pub. L. 115-31, _ _ Stat. _ _
May 5, 2017, and the National Defense Authorization Act for Fiscal Year 2017,
Pub. L. 114-328, 130 Stat. 2000, December 23,2016. The relevant sections are set
out in petitioner's Appendix, along with citations to the previous identical or nearly
identical provisions petitioner is also challenging. App. 15-34.
As this petition is prepared in early September 2017, it is apparent that these
bills of attainder will be continued or reenacted in the authorization and
appropriation acts for 2018. Three bills with bills of attainder have passed the

3

 House 1 and others have been proposed. 2 Attempts by Representative Jerrold Nadler
3

(D.-N.Y.) to strike some of the bills of attainder have been voted down.

STATEMENT OF THE CASE
Petitioner Saifullah Paracha was a businessman and TV producer in Karachi,
Pakistan. He lived in the United States for several years, has many American
relatives, and considers himself pro-American. He became an object of intelligence
interest because he tried to get an interview with the late Osama Bin Laden. He is
anti-terrorist and has never been anywhere near any combat.
~e has been held as an enemy combatant since 2003 , first at Bagram Air
Base in Afghanistan and since 2004 at Guantanamo Bay in Cuba.
Paracha's habeas corpus petition has been pending in U.S. District Court in
D.C. since 2004, but discovery and classification complications have delayed
resolution. In 2015 Paracha filed a challenge to the numerous congressional
enactments- bills of attainder- that have labeled him and the other prisoners at
Guantanamo as terrorists, the "worst of the worst," solely on the basis of where

1

H.R. 1301 , Department of Defense Appropriations Act, 2017, Sections 8101,
8102, and 8103 ; H.R. 2810, National Defense Authorization Act for Fiscal Year
2018, Sections 1022, 1023, and 1024; H.R. 3219 Make America Secure
Appropriations Act, 2018, Sections 512, 8094, 8095, and 8096.
2
E.g., H.R. 3355, H.R. 3267, and others.
3
House Amendment 265 , Congressional Record July 27, 2017, H6501-H6502 and
H6508-H6509.
4

 they have the misfortune to be held. The district court declared that Paracha had no
standing to challenge the bills of attainder, that his action was blocked by the
statute that attempts to strip jurisdiction from all courts to hear any claim dealing
with the detention of anyone declared an enemy combatant (28 U .S.C. 2241 (e )(2),
above), and that the challenged statutes are not bills of attainder. App. 1-6. The
district court under FRCP 54(b) certified the issue as distinct from the rest of the
pending case and separately appealable. App. 7-10. The D.C. Circuit affirmed on
the jurisdiction-stripping statute alone, relying on an expansive reading of an
earlier case, Janka [or Al Janka] v. Gates, 741 F.3d 136, 139 (D.C. Cir. 2014),
which denied jurisdiction for a claim of money damages for allegedly wrongful
detention at Guantanamo Bay. App. 11-12.
The writ of certiorari should issue so that this Court can condemn the bills of
attainder and restore the separation of powers so that the fate of alleged enemy
combatants will be decided by the judiciary and the executive and not by Congress.

REASONS FOR GRANTING THE PETITION FOR CERTIORARI
I. THIS COURT SHOULD ACCEPT AND EXPRESSLY ENDORSE THE
DOCTRINE THAT CONGRESS MAY NOT SHUT THE FEDERAL
COURTS TO CONSTITUTIONAL CONTROVERSIES, ESPECIALLY
THOSE NECESSARY TO MAINTAIN THE SEPARATION OF POWERS
OR TO PROTECT AGAINST LEGISLATIVE FINDINGS OF GUILT.

Article III, Section 1, of the Constitution could not be clearer:
5

 The judicial Power of the United States, shall be vested in one
supreme Court, and in such inferior Courts as the Congress shall
from time to time ordain and establish.
Nevertheless, Congress has occasionally tried to strip the courts of some part of
their vested judicial power. 4 Battaglia v. General Motors, 169 F .2d 254 (2d Cir.
1948) allowed that Congress may indeed take away jurisdiction to enforce a purely
statutory financial claim, in that case the claim5 of employees to be paid for all
time put in portal-to-portal, not just the time spent actually working. But the
Second Circuit in Battaglia went on to say, "while Congress has the undoubted
power to give, withhold, and restrict the jurisdiction of courts other than the
Supreme Court, it must not so exercise that power as to deprive any person of life,
liberty, or property without due process of law or to take private property without
just compensation." 169 F.2d at 257, footnote and citations omitted.
While that doctrine has been widely accepted,6 this Court has never
embraced it with the clarity and force it deserves. Often, as discussed below in

4

E.g., Webster v. Doe, 486 U.S . 592 (1988) and the other cases cited below,
section II.
5
A purely statutory claim under the Fair Labor Standards Act, 28 U.S.C. 201 et
seq.
6
Battaglia has been widely cited and followed. 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 bane denied, 824 F.2d 1240 (D.C. Cir. 1987). It has been cited only
once by anyone on this Court: Justice Scalia, concurring in part, in Thunder Basin
Coal Co. v. Reich, 510 U.S. 200, 219 note (1994 ). Most commentators have taken
the same view. "Congress cannot use its power to control jurisdiction to preclude
6

 section II, the doctrine that large constitutional questions should be avoided if
possible has led this Court to interpret jurisdiction-stripping statutes very narrowly.
As a result, this Court has never allowed a constitutional wrong to go uncorrected
even when Congress has tried to limit the jurisdiction of the judicial branch.
This rejection of jurisdiction-stripping is especially strong where the courts
are called upon to enforce the separation of powers. United States v. Klein, 80 U.S.
(13 Wall.) 128, 20 L. Ed. 519 (1871), arose out of the bitter dispute between the
Congress and President Andrew Johnson over the treatment of those who had
supported the Confederacy. The President had liberally granted pardons to those
who would swear to thenceforth support the Constitution, and this Court had held
that those pardons freed the persons pardoned to pursue compensation in the Court
of Claims for property seized during the war. United States v. Padelford, 76 U.S.
(9 Wall.) 531 , 19 L. Ed. 788 (1869). Determined to prevent restitution to those who

constitutionally necessary remedies for the violation of constitutional rights."
Richard H. Fallon, Jr., Jurisdiction-Stripping Reconsidered, 96 Virginia L. Rev.
1043, 1134 (2010). "There exists a due process right to an independent judicial
determination of constitutional rights." Martin H. Redish and Curtis E. Woods,
Congressional Power to Control the Jurisdiction ofLower Federal Courts, 124 U.
Pennsylvania L. Rev. 45, 93 (1975). "The conclusion is . . . inescapable that
Congress cannot withdraw federal jurisdiction to hear cases in which constitutional
rights are at stake . . ." Theodore Eisenberg, Congressional Authority to
Restrict Lower Federal Court Jurisdiction, 83 Yale L. J. 498, 532 (1974) (footnote
omitted). Likewise, Robert N . Clinton, A Mandatory View ofFederal Court
Jurisdiction, 132 U. Pennsylvania L. Rev. 741 (1984).
7

 had aided the rebellion, Congress stripped this Court of jurisdiction over restitution
suits involving a pardon. This Court rejected this jurisdiction-stripping. The
"Power to grant Reprieves and Pardons for Offenses against the United States,"
Article II, Section 2, clause 3, is a presidential power, and the power to interpret
and give effect to pardons is a judicial power. This Court did not hesitate to reject
congressional interference with the allocation of powers the founders bequeathed
to us for our safety. 7
Many commentators have read Boumediene v. Bush, 553 U.S. 723, 128 S.
Ct. 2229, 171 L. Ed. 2d 41 (2008), the governing case allowing Guantanamo
litigation, not only as a vindication of the habeas corpus anti-suspension clause, but
also as a vindication of this broader rule against jurisdiction-stripping when a claim
is rooted in the Constitution. Fallon, supra note 6, 1056-1063; Stephen I. Vladeck,
Boumediene's Quiet Theory: Access to the Courts and the Separation ofPowers,
84 Notre Dame L. Rev. 2107 (2009).
Professor Henry M. Hart, Jr., in his article The Power of Congress to Limit

the Jurisdiction ofFederal Courts: An Exercise in Dialectic, 66 Harvard L. Rev.
1362 (1953 ), put forth the view that constitutional issues can be shut out of the
federal courts because the state courts are equally bound to decide them correctly.
7

Gordon G. Young, Congressional Regulation ofFederal Courts' Jurisdiction and
Processes: United States v. Klein Revisited, 1981 Wisconsin L. Rev. 1189 (1981),
and Gordon G. Young, United States v. Klein: Then and Now, 44 Loyola
University of Chicago L. Journal 265 (2012).
8

 But the Guantanamo jurisdiction-stripping statute, 28 U.S.C. 2241 (e )(2), purports
to strip jurisdiction for the prisoners from any "court, justice, or judge," state or
federal. So state court alternatives are not available to save the statute even under
Professor Hart's theory.
Thus, if28 U.S.C. 2241(e)(2) were to shut off jurisdiction to review the
claim of Paracha that the legislative findings of guilt under which he labors are
unconstitutional, it would itself be unconstitutional. It is time this Court
unequivocally embraced and proclaimed the doctrine that Congress may not
truncate "the judicial Power of the United States," which includes all cases "arising
under this Constitution," after it has been vested in an Article III court. This
attempt to tell a petitioner that he may not challenge a congressional finding of
guilt, a bill of attainder, because the courts have been denied jurisdiction is an apt
occasion to put this doctrine beyond speculation.

II. IF THE CONSTITUTIONAL ISSUE MUST BE A VOIDED, THE
WORDING OF THIS JURISDICTION-STRIPPING STATUTE MUST BE
HELD NOT TO APPLY TO PETITIONER'S CHALLENGE TO THESE
BILLS OF ATTAINDER.

This Court has followed the principle that jurisdiction-stripping statutes like
28 U.S.C. 2241(e) are to be read with caution, indeed with any plausible
interpretation that allows avoidance of the ultimate constitutional question of
9

 whether the courts may be stripped of the power of constitutional review. Johnson

v. Robison, 415 U.S. 361,366 (1974); Weinberger v. Salfi, 422 U.S. 749, 762
(1975); Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667,681 n.12
(1986); Webster v. Doe, 486 U.S. 592, 603 (1988); etc.
When persons rightly or wrongly detained as enemy combatants bring a bill
of attainder to the courts' attention, they are not complaining of any "aspect of
[their] detention, transfer, treatment, trial, or conditions of confinement," as
disallowed by the statute, 28 U.S.C. 2241(e)(2). They are pointing out a breach of
the separation of powers, a rupture in the fabric of the Constitution. Whatever the
validity of the statute when confined to its terms, it must not be expanded to cover
challenges unrelated to the plaintiffs confinement, such as petitioner Paracha's
challenge to the legislative findings that he and his fellow prisoners are terrorists in
addition to being enemy combatants.

III. AFTER THE JURISDICTIONAL OBSTACLES ARE REMOVED, THIS
COURT SHOULD ACKNOWLEDGE PETITIONER PARACHA'S
STANDING TO RAISE THE ISSUE AND SHOULD GO ON TO DECLARE
THE BILLS OF ATTAINDER VOID.
Justice Scalia in Lujan v. Defenders a/Wildlife, 504 U.S. 555 (1992), while
articulating the modem-day requirement for particular and actual interest before a
person or organization may challenge a government program, said that if the
plaintiff is the object of the government action complained of, there is "ordinarily
10

 little question" that he or she has standing. 504 U.S. at 561-562. Standing is selfevident for persons and entities against whom the government is taking action.
Standing is especially clear where the individual moved against is raising a
structural challenge, alleging that the action against him or her violates the
separation of powers. This Court recently considered whether a criminal defendant
had standing to question whether prosecuting her under the federal statute banning
chemical weapons for a minor assault with a caustic substance interfered with the
Tenth Amendment reservation of powers to the states. Bond v. United States, 564
U.S. 211, 131 S. Ct. 2355, 180 L. Ed. 2d 269 (2011). Justice Kennedy, writing for
the whole Court, upheld her standing and explained:
In the precedents of this Court, the claims of individuals- not of
Government departments- have been the principal source of judicial
decisions concerning separation of powers and checks and balances. For
example, the requirement that a bill enacted by Congress be presented to
the President for signature before it can become law gives the President a
check over Congress' exercise of legislative power. See U.S. Const., Art. I,
§ 7. Yet individuals, too, are protected by the operations of separation of
powers and checks and balances; and they are not disabled from relying on
those principles in otherwise justiciable cases and controversies. In INS v.
Chadha, 462 U.S. 919,103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), it was an
individual who successfully challenged the so-called legislative veto--a
procedure that Congress used in an attempt to invalidate an executive
determination without presenting the measure to the President. The
procedure diminished the role of the Executive, but the challenger sought
to protect not the prerogatives of the Presidency as such but rather his own
right to avoid deportation under an invalid order. Chadha's challenge was
sustained. A cardinal principle of separation of powers was vindicated at
the insistence of an individual, indeed one who was not a citizen of the
United States but who still was a person whose libe1ty was at risk.
II

 Bondv. United States, 131 S. Ct. at 2365 . This passage is followed by citations to
eight cases vindicating the rights of afflicted individuals to invoke separation of
powers arguments.
The specific case Justice Kennedy discussed, INS v. Chadha, 462 U.S. 919,
103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983), dealt with a resolution by the House of
Representatives requiring the deportation of named persons. The Court stressed the
invalidity of such unicameral action as a violation of the constitutional requirement
that bills be passed by both houses and presented 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:
As the Court recognized in United States v. Brown, 381 U.S. 437, 442
(1965), "the Bill of Attainder Clause was intended not as a narrow,
technical ... prohibition, but rather as an implementation of the separation
of powers, a general safeguard against legislative exercise of the judicial
function, or more simply - trial by legislature." This Clause, and the
separation-of-powers doctrine generally, reflect the Framers' concern that
trial by a legislature lacks the safeguards necessary to prevent the abuse of
power.

INS v. Chadha, 462 U.S at 962. Thus Chadha, like Ms. Bond, had standing to
protest against the breakdown of the constitutional allocation of authority. So does
petitioner Paracha.
The prohibition of bills of attainder is basic to our separation of powers and
the guarantee that we may suffer punishment only after a judicial proceeding. That
is why it is in the original Constitution and is not an amendment. That is also why,
12

 like the privilege of the writ of habeas corpus (Boumediene v. Bush, 553 U.S. 723 ,
128 S. Ct. 2229, 171 L. Ed. 2d 41 (2008)) it is enforceable on behalf of the military
prisoners at Guantanamo despite their paucity of other enforceable rights. The bill
of attainder clause immediately follows the habeas corpus clause and is equally
fundamental. It reflects the founders' same intention to do away with
parliamentary powers they thought inconsistent with the divided and limited
government they were creating. 8
Petitioner Paracha's enemy combatant label is distinct from the terrorist
label added onto him by the bills of attainder. Most enemy combatants are not
terrorists, and the one label does not blot out standing to object to the other. None
of petitioner's disabilities as a person accused of combatancy diminish that
standing.
That the statutes petitioner Paracha challenges are bills of attainder is clear.
Paracha relied below on the D.C. Circuit case Foretich v. United States, 351 F.3d
1198 (D.C. Cir. 2003), holding that an ostensibly general limitation of the custody
jurisdiction of D.C. Superior Court was in fact an unconstitutional bill of attainder
because it rested on a legislative belief that Dr. Foretich had been guilty of child

8

Zivotofsky v. Kerry, 576 U.S. _ , 135 S.Ct. 2076, 192 L. Ed. 2d 83 (2015)
recently reaffirmed the importance of the judiciary striking down congressional
attempts to dictate decisions the Constitution commits to the executive branch.
13

 abuse. Every aspect of Foretich supports petitioner Paracha's claim. The D.C.
Circuit said that incarceration is not essential: "our inquiry is not ended by the
determination that the Act imposes no punishment traditionally judged to be
prohibited by the Bill of Attainder Clause," 351 F.3d at 1220, quoting Nixon v.

GSA, 433 U.S. 425, 475 (1977). Impermissible punishment can be inferred from
(1) the historical meaning of the burden imposed, (2) the tendency to go beyond
what is necessary to accomplish non-punitive purposes, and (3) a legislative record
showing an "intent to punish." 351 F.3d at 1218. These are not separate criteria
each of which must be satisfied; they are indicia to be "weighed together." 351
F.3d at 1218.
The second criterion, whether the provision goes beyond anything necessary
for non-punitive purposes, would suffice alone to make these 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 wartime years turns up nothing remotely
resembling the congressional Guantanamo restrictions. See the historical note,
9

App. 51-54. The contrast is striking between that reticence and the denunciation in

9

One of the defects of the Articles of Confederation was the lack of separation of
powers, and the Continental Congress did involve itself in prisoner exchanges. See,
as an example of one such intrusion, the incident mentioned in Boumediene, 553
U.S. 723, 747-748. The bills of attainder attacked in this motion have revived such
ill-advised practices the Constitution supposedly put behind us.
14

 10

Congress of the exchange of five G uantanamo prisoners for the American soldier
Sergeant Bowe Bergdahl, a purely executive act by the commander-in-chief that
these bills of attainder were designed to inhibit.
The third criterion, legislative intent to punish, is clinched by the numerous
explicit statements by members of Congress to that effect. E.g.: Senator Tom
Cotton (R., Ark.): "As far as I'm concerned, every last one of them [the
Guantanamo prisoners] can rot in hell. But as long as they don't do that, then they
can rot in Guantanamo Bay." 11 These statements were submitted to the lower court
and are collected at App. 55-61. They are hearty proclamations of punitive intent.
As Rep. Jerrold Nadler (D., N.Y.) correctly observed, "legislative bodies
have no right to make such judgments about indivi~uals." June 19, 2014, 160
Cong. R. H5518. He declared that these congressional determinations of guilt are
"a violation of the bill of attainder section

." April 29, 2015, Cong. Rec.

H2604, App. 61 .

Foretich makes clear that the main effect of some bills of attainder is
reputational injury. 351 F.3d at 1211-1216. Ample evidence ofreputational injury

10

House Resolution 644 condemned the prisoner swap as a violation of some of
the bills of attainder challenged here. September 9, 2014, Congressional Record
H7325 et seq.
11
Senate Armed Services Committee Hearing on the Guantanamo Detention
Facility and the Future of U.S. Detention Policy, February 5, 2015, transcript
56: 15-18. App. 56.
15

 was 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 we?"
Thomas Silberhorn, member of the German Parliament, quoted May 29, 2009,

Washington Post. These remarks are at App. 62-64. They alone would give
petitioner standing.
This Court has a long and hoqorable record of striking down bills of
attainder on those rare occasions when inflamed concern has led Congress to forget
that it is not a judicial organ empowered to decide questions of guilt or innocence.

Exparte Garland, 71 U.S. (4 Wall.) 333, 18 L. Ed. 386 (1866); Cummings v.
Missouri, 71 U .S. (4 Wall.) 277, 181 L. Ed. 356 (1866); United States v. Lovett,
328 U.S. 303, 66 S. Ct. 1073, 90 L. Ed. 1252 (1946); United States v. Brown, 381
U.S. 437, 85 S. Ct. 1707, 14 L. Ed. 2d 484 (1965), and others. The time has come
to intervene again.

16

 CONCLUSION
WHEREFORE petitioner Saifullah Paracha respectfully petitions this honorable
Court for the writ of certiorari to review the order of the D.C. Circuit affirming
dismissal of his challenge to the bills of attainder.

Respectfully submitted,

September 26, 2017
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
gthunt@mdo.net
(Fax: 301-564-6059)

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