I don’t think (h)(1) says one way or the other whether any part of the DTA applies to pending cases.

The main point I was making is that (e)(1) is a general rule that cancels all jurisdiction, but (e)(1) also says to look at other sections of the DTA for exceptions. And, if you do go look at the other sections of the DTA, you find express exceptions to (e)(1), and those express exceptions are listed in (e)(2) and (e)(3). Expressio unius should then kick in to forbid any further exceptions, e.g. for pending cases that have not reached final judgment.

That also explains why Hamdan was wrong that (e)(1) was just as vulnerable as (e)(2) and (e)(3) to being judicially limited to future cases only. What I’m curious to know is why no SCOTUS justices (nor anyone else that I’m aware of) made this expressio unius argument.

Ender Wiggin, in your comment you focus on a different expressio unius argument. You’re apparently defending the expressio unius argument that Hamdan made regarding the list in (h)(2). However, I still think it would be absurd to suppose that Congress meant for (e)(4) or (f) to apply only in future cases. And that’s not the only absurdity of Hamdan’s exclusio unius argument. It would also imply that (e)(1) wouldn’t apply to either pending OR future cases. After all, (h)(2) says, “Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this act.” So, if expressio unius apoplies here, then the upshot would be that, “Paragraphs (1) of subsection (e) shall NOT apply with respect to any claim whose review is governed by that paragraph and that is pending on or after the date of the enactment of this act.”

I don’t see how it is an “absurd result” to conclude that only (e)(2) and (e)(3) apply to pending cases. The only pending case not falling under (e)(2) or (e)(3) is Hamdan itself. To suggest that a statute deliberately excludes a single case, or is at least ambiguous on that point, hardly strikes me as absurd, caps lock or no caps lock.

Hamdan argued that the reason Congress expressly applied 1005(e)(2) and 1005(e)(3) of the DTA to both pending and future cases was because Congress felt that otherwise those two provisions might be judicially limited to future cases only. Hamdan also pointed out that Congress decided not to expressly apply 1005(e)(1) to both pending and future cases, as Congress did for 1005(e)(2) and 1005(e)(3). Hamdan argued that Congress had no reason to believe 1005(e)(2) and 1005(e)(3) were more susceptible to being limited to future cases than 1005(e)(1) was, and so Congress must have meant for 1005(e)(1) to apply only to future cases.

But it seems to me that there is a VERY STRONG textual argument for why 1005(e)(2) and 1005(e)(3) were vastly more susceptible to being limited to future cases than 1005(e)(1) was. In particular, it seems to me that 1005(e)(2) and 1005(e)(3) comprise a list of express exceptions to 1005(e)(1), and therefore expressio unius forbids inference of further exceptions such as an exception in currently pending cases.

DID THE GOVERNMENT OR ANY OF THE AMICI EVER MAKE THIS EXPRESSIO UNIUS ARGUMENT?

Please note that this is a very diffferent expressio unius argument from that involving the list in 1005(h) of the DTA. The latter expressio unius argument was rebutted by Senators Graham and Kyl in their amicus brief, and indeed I think the latter expressio unius argument fails for a couple reasons. Primarily, it would lead to the absurd conclusion that 1005(e)(1) does not apply to either pending OR future cases. Also, it

would lead to the absurd result that 1005(e)(2) and 1005(e)(3) would be the ONLY provisions in the DTA that apply to both pending and future cases.

Anyway, I’d very much appreciate an answer to the question above (in ALLCAPS).