Brief of the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, and the Arkansas Civil Liberties Foundation as Amici Curiae in Support of Petitioner.

Argument: Courts of appeals that have rejected petitioner's view of Section 2255(e) have held that relief under Section 2241 is available only if an incarcerated individual shows that Section 2255's remedy "was" inadequate or ineffective at the time of the individual's "first § 2255 motion." Pet. App. 7a (emphasis [*8] added); see also McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1081 (11th Cir. 2017) ("The petitioner bears the burden of establishing that the remedy by motion was 'inadequate or ineffective to test the legality of his detention.'") (emphasis added) (internal citation omitted); Prost v. Anderson, 636 F.3d 578, 594 (10th Cir. 2011) (similar). In other words, these courts have focused on the adequacy or efficacy of the remedy under Section 2255 in the past. This reasoning departs from the plain text of that statute. The relevant text of Section 2255(e) focuses on the present. It allows federal prisoners to seek habeas relief under Section 2241 when the remedy provided by Section 2255 " is inadequate or ineffective to test the legality of [their] detention." 28 U.S.C. § 2255(e) (emphasis added). Put another way, this saving clause asks whether Section 2255's remedy is currently inadequate or ineffective, not whether it was inadequate or ineffective.

Brief Amicus Curiae of the National Association of Criminal Defense Lawyers In Support of Petitioner-Appellant.

Argument: NACDL’s amicus brief argues that consistent with Boumediene v. Bush, 553 U.S. 723 (2008), the D.C. Circuit has repeatedly recognized the possibility that the Due Process Clause applies, at least in some respects, to Guantanamo detainees.  To the extent the en banc court concludes that the Suspension Clause does not bar the use of ex parte evidence in habeas proceedings, it should hold that the Due Process Clause does bar such evidence.  Ex parte evidence is one of the core evils against which the Due Process Clause guards.  Since before the Founding, it has been recognized that fundamental fairness requires allowing a litigant to see, and rebut, the evidence the government is relying upon to justify the exercise of its coercive powers.  The D.C. Circuit has long recognized and enforced the firmly held rule that courts may not decide the merits of a case—particularly one where individual liberty interests are at stake—on the basis of ex parte, in camera submissions.  If the information required to hold a detainee is classified:  “The government must choose; either leave the transactions in the obscurity from which a trial will draw them, or it must expose them fully.”  Jencks v. United States, 353 U.S. 657, 671 (1957).  Two key due process considerations strongly favor barring ex parte evidence here: the risk of erroneous deprivation and the strength of the government’s asserted interest.  Al-Hela has been in detention for nearly 20 years without ever being charged with a crime.  The information at issue is aged and the government’s interest in maintaining secrecy of such dated information has diminished with the passage of time.  At the same time, the risk of a prolonged detention based on erroneous information increases with each passing day.  As a result, the degree of scrutiny of the evidence used to justify detention must increase as well, requiring, at a minimum, that Al-Hela’s security-cleared counsel be given an opportunity to review all of the evidence used to justify Al-Hela’s continued detention.  There is good reason to be wary of the ex parte use of information in this context, given that prior ex partesubmissions have proven unreliable when subsequently exposed to daylight.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on petition for a writ of certiorari)

Argument: AEDPA deference should not apply to decisions of state-court jurists who labor under a probability of actual bias. Due process requires a judge free from the “Probability of Actual Bias.” Petitioner’s state post-conviction appeals were tainted by the probability of actual bias. The federal district court accorded AEDPA deference despite the probability of actual bias. Lower courts are split over whether federal habeas petitioners may challenge state post-conviction procedures that violate due process. The question presented is important because state courts are the “primary”— and, in almost every case, the only – “forums” for vindicating prisoners’ federal constitutional rights.