The opinion of the court was delivered by: Ginsburg, Circuit Judge
On Petition for Rehearing
Before: GINSBURG, HENDERSON, and ROGERS, Circuit Judges.
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 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.
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.
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.*fn1
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 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").*fn2 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 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 Non-Violence 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."
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 ...