United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 20, 2008 Decided January 9, 2009 

No. 06-1197 

HAJI BISMULLAH A/K/A HAJI BISMILLAH, AND A/K/A HAJI 

BESMELLA, 

HAJI MOHAMMAD WALI, NEXT FRIEND OF HAJI BISMULLAH, 

PETITIONERS

v. 

ROBERT M. GATES, SECRETARY OF DEFENSE, 

RESPONDENT

No. 07-1508 

ABDUSABOUR, 

PETITIONER

v. 

ROBERT M. GATES, SECRETARY OF DEFENSE, ET AL., 

RESPONDENTS

No. 07-1523 

HAMMAD, 

PETITIONER
2 

v. 

ROBERT M. GATES, SECRETARY OF DEFENSE, ET AL., 

RESPONDENTS

On Petition for Rehearing 

Gregory G. Katsas, Assistant Attorney General, argued 

the cause for respondent. With him on the petition for 

rehearing were Jonathan F. Cohn, Deputy Assistant Attorney 

General, and Robert M. Loeb, August E. Flentje, and Henry 

C. Whitaker, Attorneys. 

Jennifer R. Cowan argued the cause for petitioners. With 

her on the opposition were John B. Missing, Susan Baker 

Manning, Sabin Willett, and Rheba Rutkowski. 

Before: GINSBURG, HENDERSON, and ROGERS, Circuit 

Judges. 

Opinion for the Court filed by Circuit Judge GINSBURG. 

GINSBURG, Circuit Judge: The petitioners, detainees 

held in military custody at Guantanamo Bay, each filed a 

petition, pursuant to the Detainee Treatment Act (DTA), for 

review of the determination by a Combatant Status Review 

Tribunal (CSRT) that he is an “enemy combatant.” The 

Government contends we do not have jurisdiction over the 

detainees’ petitions because the provision of the DTA that 

grants us subject matter jurisdiction cannot be severed from 

the provision eliminating habeas corpus jurisdiction, which 
3 

the Supreme Court held unconstitutional in Boumediene v. 

Bush, 128 S. Ct. 2229 (2008). We agree and therefore 

dismiss these petitions for lack of jurisdiction; the petitioners 

are remitted to their remedy under the habeas corpus statute, 

28 U.S.C. § 2241. 

I. Background 

Each detainee challenged his status determination by 

filing in this court a petition for review of the CSRT’s 

decision, pursuant to DTA § 1005(e)(2), 10 U.S.C. § 801 

note. In May 2007 we heard their cases together for the 

purpose of deciding various procedural issues, including the 

scope of the record on review. See Bismullah v. Gates, 501 

F.3d 178 (2007), reh’g denied, 503 F.3d 137 (2007), reh’g en 

banc denied, 514 F.3d 1291 (2008). The Government 

petitioned for a writ of certiorari on the merits of our decision 

but the Supreme Court, without reaching the merits, vacated 

the judgment and remanded the case to us for further 

consideration in light of its intervening decision in 

Boumediene. Gates v. Bismullah, 128 S. Ct. 2960 (2008). 

After briefing by the parties, we reinstated our decision 

establishing procedures for DTA review, whereupon the 

Government petitioned for rehearing, arguing for the first 

time that, in light of Boumediene, we no longer have 

jurisdiction over petitions for review filed pursuant to the 

DTA. We granted rehearing to determine whether we retain 

jurisdiction pursuant to DTA § 1005(e)(2) to review CSRT 

determinations notwithstanding the Supreme Court’s decision 

in Boumediene. For the reasons elaborated below, we hold 

we do not. 
4 

II. Analysis 

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. See Champlin Refining Co. v. Corp. Comm’n of 

Okla., 286 U.S. 210, 234 (1932). In this case on rehearing, 

the Government argues the Congress did not intend DTA § 

1005(e)(2), which gave this court alone jurisdiction to review 

CSRT determinations, to stand apart from the section of the 

Military Commissions Act (MCA) that provides no court 

shall have jurisdiction to hear a detainee’s petition for a writ 

of habeas corpus, see MCA of 2006, § 7, Pub. L. No. 109-

366, 120 Stat. 2600, 2635-36 (codified at 28 U.S.C. § 

2241(e)). The provision abolishing habeas jurisdiction for 

Guantanamo detainees having been held unconstitutional in 

Boumediene, therefore, the Government contends DTA § 

1005(e)(2) must fall as well.*

The detainees point out that the Supreme Court in 

Boumediene said “the DTA ... process remain[s] intact.” 128 

S. Ct. at 2275. The Government responds that, read in 

context, the Court was merely pointing out the limited extent 

of its constitutional holding in that case. We agree. Having 

concluded DTA review was not a constitutionally adequate 

substitute for habeas corpus, the Court had reason to be as 

clear as possible that it was not holding the review provisions 

of the DTA unconstitutional. Id. (“The only law we identify 

 

*

 This court suggested as much, without resolving the issue, in the 

course of granting the Government’s motion to hold a detainee’s 

DTA petition in abeyance pending resolution of the detainee’s 

habeas case. Basardh v. Gates, 545 F.3d 1068, 1070 (2008) 

(registering “serious doubt about our jurisdiction” over DTA 

petitions). 
5 

as unconstitutional is MCA § 7 .... Accordingly, both the 

DTA and the CSRT process remain intact”). The question of 

severability was not presented, granted, or briefed and the 

Court had no occasion to decide it. See Cooper Indus., Inc. v. 

Aviall Servs., Inc., 543 U.S. 157, 170 (2004) (“Questions 

which merely lurk in the record, neither brought to the 

attention of the court nor ruled upon, are not to be considered 

as having been so decided as to constitute precedents”).* In 

sum, the Supreme Court in Boumediene did not address the 

issue of severability and thereby left it to this court to resolve 

in the first instance in light of that decision. 

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.” Id. at 

 

*

 This court exercised jurisdiction over a petition filed pursuant to 

the DTA after Boumediene, see Parhat v. Gates, 532 F.3d 834 

(2008), but “courts are not bound by a prior exercise of jurisdiction 

in a case where it was not questioned.” Indep. Petroleum Ass’n of 

Am. v. Babbitt, 235 F.3d 588, 597 (D.C. Cir. 2001). As to whether 

the judgment in Parhat remains res judicata despite our holding 

today, see CHARLES ALAN WRIGHT, ARTHUR R. MILLER &

EDWARD H. COOPER, 18A FEDERAL PRACTICE AND PROCEDURE:

JURISDICTION 2D § 4428, at 7 (“The res judicata effects of a 

judgment entered by a court that lacked subject-matter jurisdiction 

have not been captured in any rule or clear statement of controlling 

policies. . . . Recent decisions [tend] more and more toward 

supporting res judicata. Today, it is safe to conclude that most 

federal-court judgments are res judicata notwithstanding a lack of 

subject-matter jurisdiction.”).
6 

258-59 (internal quotation marks and citations omitted). 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. We approach that question cognizant that, in order 

to avoid “invalidating more of [a] statute than is necessary,” 

we are to start with a presumption in favor of severability. 

Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) 

(internal quotation marks omitted); Cmty. for Creative NonViolence v. Turner, 893 F.2d 1387, 1394 (D.C. Cir. 1990). 

That cautionary presumption is overcome only if we conclude 

the Congress would not “‘still have passed’ the valid sections 

‘had it known’ about the constitutional invalidity of the other 

portion[] of the statute.” Booker, 543 U.S. at 246 (quoting 

Denver Area Ed. Telecomms. Consortium, Inc. v. FCC, 518 

U.S. 727, 767 (1996) (plurality opinion)). 

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. 

Turning first, as we must, to the text of the statute, we see 

the DTA itself indicates the provisions removing habeas 

jurisdiction and granting jurisdiction to review status 

determinations were “inextricably linked in text and purpose.” 
7 

Basardh, 545 F.3d at 1071. In DTA § 1005(e)(2), the 

Congress provided that this court was to have “exclusive 

jurisdiction” to review the determination that a detainee is an 

enemy combatant. The Congress carefully limited the scope 

of our review to determining whether the CSRT complied 

with procedures to be established by the Secretary of Defense 

and whether those procedures were lawful. DTA § 

1005(e)(2)(C). Furthermore, DTA § 1005(e)(1), which was 

subsequently replaced by MCA § 7, eliminated the 

jurisdiction of all courts, including this one, over a petition for 

a writ of habeas corpus or any other action related to an 

alien’s detention at Guantanamo Bay “except as provided” by 

the jurisdiction-granting provision of the DTA. The 

Congress’s careful crafting of a limited mechanism for 

judicial review indicates the basic objective of the DTA was 

not to supplement habeas corpus, but rather to restrict judicial 

review of the Executive’s detention of persons designated 

enemy combatants. 

The response of the Congress to the Supreme Court’s 

interpretation of § 1005(e)(1) confirms this reading of the 

DTA. In June 2006, the Supreme Court held the DTA did not 

eliminate habeas jurisdiction over pending cases. Hamdan v. 

Rumsfeld, 548 U.S. 557, 574-76 (2006). In September 2006, 

the Congress replaced the jurisdiction-stripping provision of 

the DTA with a new jurisdiction-stripping provision, MCA § 

7. The new provision again removed from the courts all 

jurisdiction, except as provided by the DTA, to hear an enemy 

combatant’s challenge to his detention, including – this time 

in no uncertain terms – jurisdiction over pending cases: This 

jurisdiction-stripping provision, the Congress proclaimed, 

“shall apply to all cases, without exception, pending on or 

after the date of the enactment of this Act which relate to any 

aspect of the detention ... of an alien detained by the United 

States since September 11, 2001.” MCA § 7(b). The 
8 

sequence of these legislative and judicial decisions clearly 

indicates the Congress understood review under DTA § 

1005(e)(2) to be a substitute for and not a supplement to 

habeas corpus and hence the exclusive means by which a 

detainee could contest the legality of his detention in a court. 

In sum, the Congress wanted DTA review (1) to be 

conducted solely in this court, (2) limited in scope, and (3) to 

displace habeas corpus and any other action by which an alien 

held at Guantanamo might challenge his detention in court. 

Because the Court held unconstitutional the provision 

eliminating habeas jurisdiction, DTA § 1005(e)(2) can no 

longer provide jurisdiction exclusively in this court over a 

detainee’s challenge to his detention as an enemy combatant; 

instead a detainee may challenge his detention in the District 

Court for the District of Columbia and get review of its 

decision in this court. Nor can DTA review now serve as a 

substitute – albeit more limited in scope – for habeas corpus. 

Therefore, DTA review, by opening an avenue of relief 

alongside the writ of habeas corpus, can no longer “function 

in a manner consistent with the intent of Congress.” Alaska 

Airlines, 480 U.S. at 685 (emphasis omitted). 

The detainees would draw a different lesson from the text 

of the statute, pointing out that the Congress did not include – 

though it could have done – a provision specifying that the 

jurisdiction-granting and jurisdiction-stripping provisions 

were not severable. The detainees cite no authority 

suggesting this is significant, and with good reason: The 

Congress’s failure to include a non-severability clause does 

not create a presumption of severability, any more than the 

absence of a severability clause implies non-severability. See 

id. at 686 (“In the absence of a severability clause ... 

Congress’ silence is just that – silence - and does not raise a 

presumption against severability”). At oral argument the 
9 

detainees contended the absence of a non-severability clause 

is nonetheless significant in this case because the Congress 

was aware its action was potentially unconstitutional. Such 

awareness could, just as easily, however, have prompted the 

Congress to include a severability clause as a non-severability 

clause; it did neither. As usual, therefore, congressional 

silence tells us nothing about the Congress’s intent regarding 

severability. See id. 

The enactment of successive jurisdiction-stripping 

provisions, in contrast, tells us quite a lot. In particular, it 

confirms what the text suggests: The Congress’s primary 

objective in giving this court “exclusive jurisdiction” over an 

enemy combatant’s challenge to his detention, DTA § 

1005(e)(2), was to limit the avenues for and scope of judicial 

review available to detainees. See Boumediene, 128 S. Ct. at 

2266 (“In passing the DTA Congress .... intended to create a 

more limited procedure [than habeas]”); see also Richard H. 

Fallon & Daniel J. Meltzer, Habeas Corpus Jurisdiction, 

Substantive Rights, and the War on Terror, 120 HARV. L.

REV. 2029, 2096 (2007); Editorial, A Case for Appeal, WASH.

POST, Sept. 26, 2006, at A20 (noting DTA was part of effort 

“to limit judicial supervision over detentions”). 

In 2004 the Court held the habeas statute, 28 U.S.C. § 

2241, extended to the detainees at Guantanamo. Rasul v. 

Bush, 542 U.S. 466, 483-84 (2004). The Congress responded 

directly by passing the DTA, eliminating the jurisdiction of 

the courts over a detainee’s challenge to his detention by 

habeas corpus or otherwise except for the newly-created and 

carefully delimited statutory review in this court. In Hamdan, 

however, the Court interpreted the jurisdiction-stripping 

provision of the DTA not to apply to pending habeas cases. 

548 U.S. at 574-76. Again the Congress responded, this time 

making crystal clear its intent to eliminate all forms of 
10 

judicial review for enemy combatants detained at 

Guantanamo, including pending cases, except for the narrow 

substitute provided in the DTA. See Boumediene, 128 S. Ct. 

at 2243 (“If this ongoing dialogue between and among the 

branches of Government is to be respected, we cannot ignore 

that the MCA was a direct response to Hamdan’s holding that 

the DTA’s jurisdiction-stripping provision had no application 

to pending cases”). This “dialogue” between the Court and 

the Congress shows that the Congress’s overriding goal 

throughout was to limit the judicial review available to 

detainees. It also confirms that the jurisdiction-stripping 

provision of the MCA cannot be deemed severable from the 

jurisdiction-granting provision of the DTA merely because 

the two were enacted at different times. The intervening 

decision of the Supreme Court bridges the interval; the 

jurisdiction-stripping provisions of the MCA replaced those 

of the DTA in direct response to the Court’s interpretation of 

the DTA. 

The detainees argue that, in view of the ongoing dialogue 

between the Congress and the courts, the failure of the 

Congress to respond to Boumediene by repealing DTA § 

1005(e)(2) indicates that continued operation of that section is 

consistent with congressional intent. The Congress has had 

only a few months in which to respond to Boumediene, 

however, and in any event, absent an extraordinary counterindication, congressional failure to act is of no probative 

value. See Bob Jones Univ. v. United States, 461 U.S. 574, 

600 (1983) (“Ordinarily, and quite appropriately, courts are 

slow to attribute significance to the failure of Congress to act 

on particular legislation”). Legislative inaction is not 

probative here because it is neither long-standing nor is there 

“‘overwhelming evidence’ that Congress considered and 

failed to act upon the ‘precise issue’ before the [c]ourt.” 

Rapanos v. United States, 547 U.S. 715, 750 (2006); cf. Bob 
11 

Jones Univ., 461 U.S. at 600-01 (finding probative 

Congress’s inaction over a long period). The detainees cite 

Medellin v. Texas, 129 S. Ct. 360, 361 (2008), for the 

proposition that a failure to respond to a decision by the Court 

within just a few months may be significant, but in that case 

the Congress also had four years to respond to the underlying 

decision of the International Court of Justice, id. In contrast 

to Medellin, here the Congress was faced with the problem of 

continued DTA review for the first time last June, when the 

Court held the jurisdiction-stripping provision of the MCA 

unconstitutional. 

The detainees maintain that the actual objective of the 

Congress was to streamline review of detainee claims; they 

contend that objective can be served with DTA review intact. 

Although it is certainly true that the Congress intended review 

pursuant to the DTA to be streamlined in that it was vested in 

one court with no right of further appeal and was limited in 

scope to the issues of compliance with and the lawfulness of 

applicable procedures, we think it clear the legislature’s 

primary objective was to curtail the detainees’ access to 

judicial review by providing one form of review in lieu of 

habeas corpus or “any other action.” MCA § 7(a). Even if 

the detainees’ characterization of the Congress’s objective as 

limited to streamlining review were correct, however, that 

objective would not be served by the continued operation of 

DTA review. 

The detainees argue to the contrary that parallel forms of 

review generate “synergies” and “efficiencies,” but that is not 

convincing. Although a few detainees, including petitioner 

Bismullah, have chosen (at least thus far) to pursue only 

review under the DTA, the great majority have chosen to 

pursue both DTA review and a writ of habeas corpus. 

Further, because review under the DTA is narrow, a habeas 
12 

proceeding will almost always be necessary to address issues 

that cannot be raised in the DTA proceeding. Finally, to the 

extent detainees proceed with both actions simultaneously, as 

most are now doing, it is a near certainty the proceedings will 

be duplicative and will greatly burden the Government’s 

capacity to produce sensitive evidence, which is hardly 

consistent with the objective of streamlining review. See 

Decl. of Michael V. Hayden, Director, Central Intelligence 

Agency ¶ 13, Aug. 29, 2008, Resp’t Pet. for Reh’g 

Addendum 60-61; Decl. of Robert S. Mueller, III, Director, 

Federal Bureau of Investigation ¶ 14-16, Sept. 6, 2007, Resp’t 

Pet. for Reh’g Addendum 81. The aggregate effect of 

providing two simultaneous and overlapping but not 

congruent forms of judicial review is a less, not a more, 

streamlined and efficient process. 

Having disposed of the detainees’ “streamlining” 

argument, we are left with the question whether the Congress 

would have enacted the jurisdiction-granting provision of the 

DTA had the Congress known its attempt to eliminate habeas 

review for the detainees would be held unconstitutional. The 

answer is undoubtedly no. Because the basic objective of the 

statute was to limit the detainees’ access to the courts, had the 

Congress known its attempts to eliminate the habeas 

jurisdiction of the district courts would come to naught, it 

would not have turned around and created an additional and 

largely duplicative process by which a detainee could 

challenge his detention in the court of appeals. 

III. Conclusion 

In sum, we are confident the Congress would not have 

enacted DTA § 1005(e)(2) in the absence of the statutory 

provision banning the courts from exercising jurisdiction over 

a detainee’s habeas petition. Because the latter provision has 
13 

been held unconstitutional, the former must also fall. 

Accordingly, we hold this court lacks subject matter 

jurisdiction over the detainees’ petitions for review of their 

status determinations by a CSRT. The petitions are, 

therefore, 

Dismissed.