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Read this case How cited Boumediene v. Bush, 128 S. Ct. 2229 -
Supreme Court 2008
Boumediene v. Bush, 128 S. Ct. 2229 - Supreme Court 2008128 S.Ct.
2229 (2008)
Lakhdar BOUMEDIENE, et al., Petitioners,
v.
George W. BUSH, President of The United States, et al.
Khaled A.F. Al Odah, next friend of Fawzi Khalid Abdullah Fahad Al
Odah, et al., Petitioners,
v.
United States et al.
Nos. 06-1195, 06-1196.
Supreme Court of United States.
Argued December 5, 2007.
Decided June 12, 2008.
2239*2239 Seth P. Waxman, for Petitioners.
Paul D. Clement, for Respondents.
Stephen H. Oleskey, Robert C. Kirsch, Mark C. Fleming, Joseph J.
Mueller, Pratik A. Shah, Lynne Campbell Soutter, Jeffrey S. Gleason,
Lauren G. Brunswick, Wilmer Cutler Pickering, Hale and Dorr LLP,
Boston, MA, Seth P. Waxman, Paul R.Q. Wolfson, Jonathan G. Cedarbaum,
Michael J. Gottlieb, Wilmer Cutler Pickering Hale and Dorr LLP,
Washington, DC, Douglas F. Curtis, Paul M. Winke, Anne K. Small, David
S. Lesser, Julian Davis Mortenson, Wilmer Cutler Pickering, Hale and
Dorr LLP, New York, NY, for Boumediene Petitioners.
Paul D. Clement, Solicitor General, Peter D. Keisler, Assistant
Attorney General, Gregory G. Katsas, Principal Deputy Associate,
Attorney General, Gregory G. Garre, Deputy Solicitor General, Eric D.
Miller, Assistant to the Solicitor General, Douglas N. Letter, Robert
M. Loeb, August E. Flentje, Pamela M. Stahl, Jennifer Paisner,
Washington, D.C., for Respondents.
David J. Cynamon, Matthew J. MacLean, Osman Handoo Pillsbury Winthrop
Shaw Pittman LLP, Washington, DC, David H. Remes, Covington & Burling
LLP, Washington, DC, Marc D. Falkoff, DeKalb, IL, for Petitioners Al
Odah, et al.
Thomas B. Wilner, Neil H. Koslowe, Amanda Shafer Berman, Michael Y.
Kieval, Shearman & Sterling LLP, Washington, DC, John J. Gibbons,
Lawrence S. Lustberg, Gibbons P.C., Newark, NJ, Michael 2240*2240
Ratner, Gitanjali Gutierrez, J. Wells Dixon, Shayana Kadidal, New
York, NY, George Brent Mickum IV, Spriggs & Hollingsworth, Washington,
DC, Mark S. Sullivan, Christopher G. Karagheuzoff, Joshua Colangelo-
Bryan, Dorsey & Whitney LLP, New York, NY, Pamela Rogers Chepiga,
Douglas Cox, Sarah Havens, Julie Withers, Chintan Panchal, Allen &
Overy LLP, New York, NY, Joseph Margulies, Chicago, IL, Erwin
Chemerinsky, Durham, NC, Newark, NJ, Scott Sullivan, Derek Jinks,
Kristine Huskey, Austin, TX, Douglas J. Behr, Keller And Heckman LLP,
Washington, DC, Clive Stafford Smith Zachary Katznelson Reprieve,
London EC4P 4WS United Kingdom, for Petitioners.
Walter Dellinger, O'Melveny & Myers LLP, Washington, D.C., Lt. Cmdr.
William C. Kuebler, Rebecca Snyder, Office of Military Commissions,
Washington, D.C., for Respondent Omar Khadr.
Justice KENNEDY delivered the opinion of the Court.
Petitioners are aliens designated as enemy combatants and detained at
the United States Naval Station at Guantanamo Bay, Cuba. There are
others detained there, also aliens, who are not parties to this suit.
Petitioners present a question not resolved by our earlier cases
relating to the detention of aliens at Guantanamo: whether they have
the constitutional privilege of habeas corpus, a privilege not to be
withdrawn except in conformance with the Suspension Clause, Art. I, §
9, cl. 2. We hold these petitioners do have the habeas corpus
privilege. Congress has enacted a statute, the Detainee Treatment Act
of 2005(DTA), 119 Stat. 2739, that provides certain procedures for
review of the detainees' status. We hold that those procedures are not
an adequate and effective substitute for habeas corpus. Therefore § 7
of the Military Commissions Act of 2006(MCA), 28 U.S.C.A. § 2241(e)
(Supp. 2007), operates as an unconstitutional suspension of the writ.
We do not address whether the President has authority to detain these
petitioners nor do we hold that the writ must issue. These and other
questions regarding the legality of the detention are to be resolved
in the first instance by the District Court.
I
Under the Authorization for Use of Military Force (AUMF), § 2(a), 115
Stat. 224, note following 50 U.S.C. § 1541 (2000 ed., Supp. V), the
President is authorized "to use all necessary and appropriate force
against those nations, organizations, or persons he determines
planned, authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001, or harbored such organizations or
persons, in order to prevent any future acts of international
terrorism against the United States by such nations, organizations or
persons."
In Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.Ct. 2633, 159 L.Ed.2d 578
(2004), five Members of the Court recognized that detention of
individuals who fought against the United States in Afghanistan "for
the 2241*2241 duration of the particular conflict in which they were
captured, is so fundamental and accepted an incident to war as to be
an exercise of the `necessary and appropriate force' Congress has
authorized the President to use." Id., at 518, 124 S.Ct. 2633
(plurality opinion of O'Connor, J.), id., at 588-589, 124 S.Ct. 2633
(THOMAS, J., dissenting). After Hamdi, the Deputy Secretary of Defense
established Combatant Status Review Tribunals (CSRTs) to determine
whether individuals detained at Guantanamo were "enemy combatants," as
the Department defines that term. See App. to Pet. for Cert. in No.
06-1195, p. 81a. A later memorandum established procedures to
implement the CSRTs. See App. to Pet. for Cert. in No. 06-1196, p.
147. The Government maintains these procedures were designed to comply
with the due process requirements identified by the plurality in
Hamdi. See Brief for Respondents 10.
Interpreting the AUMF, the Department of Defense ordered the detention
of these petitioners, and they were transferred to Guantanamo. Some of
these individuals were apprehended on the battlefield in Afghanistan,
others in places as far away from there as Bosnia and Gambia. All are
foreign nationals, but none is a citizen of a nation now at war with
the United States. Each denies he is a member of the al Qaeda
terrorist network that carried out the September 11 attacks or of the
Taliban regime that provided sanctuary for al Qaeda. Each petitioner
appeared before a separate CSRT; was determined to be an enemy
combatant; and has sought a writ of habeas corpus in the United States
District Court for the District of Columbia.
The first actions commenced in February 2002. The District Court
ordered the cases dismissed for lack of jurisdiction because the naval
station is outside the sovereign territory of the United States. See
Rasul v. Bush, 215 F.Supp.2d 55 (2002). The Court of Appeals for the
District of Columbia Circuit affirmed. See Al Odah v. United States,
321 F.3d 1134, 1145 (2003). We granted certiorari and reversed,
holding that 28 U.S.C. § 2241 extended statutory habeas corpus
jurisdiction to Guantanamo. See Rasul v. Bush, 542 U.S. 466, 473, 124
S.Ct. 2686, 159 L.Ed.2d 548 (2004). The constitutional issue presented
in the instant cases was not reached in Rasul. Id., at 476, 124 S.Ct.
2686.
After Rasul, petitioners' cases were consolidated and entertained in
two separate proceedings. In the first set of cases, Judge Richard J.
Leon granted the Government's motion to dismiss, holding that the
detainees had no rights that could be vindicated in a habeas corpus
action. In the second set of cases Judge Joyce Hens Green reached the
opposite conclusion, holding the detainees had rights under the Due
Process Clause of the Fifth Amendment. See Khalid v. Bush, 355 F.Supp.
2d 311, 314 (DDC 2005); In re Guantanamo Detainee Cases, 355 F.Supp.2d
443, 464 (DDC 2005).
While appeals were pending from the District Court decisions, Congress
passed the DTA. Subsection (e) of § 1005 of the DTA amended 28 U.S.C.
§ 2241 to provide that "no court, justice, or judge shall have
jurisdiction to hear or consider ... an application for a writ of
habeas corpus filed by or on behalf of an alien detained by the
Department of Defense at Guantanamo Bay, Cuba." 119 Stat. 2742.
Section 1005 further provides that the Court of Appeals for the
District of Columbia Circuit shall have "exclusive" jurisdiction to
review decisions of the CSRTs. Ibid.
In Hamdan v. Rumsfeld, 548 U.S. 557, 576-577, 126 S.Ct. 2749, 165 L.Ed.
2d 723 (2006), the Court held this provision did 2242*2242 not apply
to cases (like petitioners') pending when the DTA was enacted.
Congress responded by passing the MCA, 10 U.S.C.A. § 948a et seq.
(Supp.2007), which again amended § 2241. The text of the statutory
amendment is discussed below. See Part II, infra. (Four Members of the
Hamdan majority noted that "[n]othing prevent[ed] the President from
returning to Congress to seek the authority he believes necessary."
548 U.S., at 636, 126 S.Ct. 2749 (BREYER, J., concurring). The
authority to which the concurring opinion referred was the authority
to "create military commissions of the kind at issue" in the case.
Ibid. Nothing in that opinion can be construed as an invitation for
Congress to suspend the writ.)
Petitioners' cases were consolidated on appeal, and the parties filed
supplemental briefs in light of our decision in Hamdan. The Court of
Appeals' ruling, 476 F.3d 981 (C.A.D.C.2007), is the subject of our
present review and today's decision.
The Court of Appeals concluded that MCA § 7 must be read to strip from
it, and all federal courts, jurisdiction to consider petitioners'
habeas corpus applications, id., at 987; that petitioners are not
entitled to the privilege of the writ or the protections of the
Suspension Clause, id., at 990-991; and, as a result, that it was
unnecessary to consider whether Congress provided an adequate and
effective substitute for habeas corpus in the DTA.
We granted certiorari. 551 U.S. ___, 127 S.Ct. 3067, 168 L.Ed.2d 755
(2007).
II
As a threshold matter, we must decide whether MCA § 7 denies the
federal courts jurisdiction to hear habeas corpus actions pending at
the time of its enactment. We hold the statute does deny that
jurisdiction, so that, if the statute is valid, petitioners' cases
must be dismissed.
As amended by the terms of the MCA, 28 U.S.C.A. § 2241(e) (Supp.2007)
now provides:
"(1) No court, justice, or judge shall have jurisdiction to hear or
consider an application for a writ of habeas corpus filed by or on
behalf of an alien detained by the United States who has been
determined by the United States to have been properly detained as an
enemy combatant or is awaiting such determination.
"(2) Except as provided in [§§ 1005(e)(2) and (e)(3) of the DTA] 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 have been properly
detained as an enemy combatant or is awaiting such determination."
Section 7(b) of the MCA provides the effective date for the amendment
of § 2241(e). It states:
"The amendment made by [MCA § 7(a)] shall take effect on the date of
the enactment of this Act, and 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, transfer, treatment,
trial, or conditions of detention of an alien detained by the United
States since September 11, 2001." 120 Stat. 2636.
There is little doubt that the effective date provision applies to
habeas corpus actions. Those actions, by definition, are cases "which
relate to ... detention." See Black's Law Dictionary 728 (8th ed.2004)
(defining habeas corpus as "[a] writ employed 2243*2243 to bring a
person before a court, most frequently to ensure that the party's
imprisonment or detention is not illegal"). Petitioners argue,
nevertheless, that MCA § 7(b) is not a sufficiently clear statement of
congressional intent to strip the federal courts of jurisdiction in
pending cases. See Ex parte Yerger, 8 Wall. 85, 102-103, 19 L.Ed. 332
(1869). We disagree.
Their argument is as follows: Section 2241(e)(1) refers to "a writ of
habeas corpus." The next paragraph, § 2241(e)(2), refers to "any other
action ... relating to any aspect of the detention, transfer,
treatment, trial, or conditions of confinement of an alien who ...
[has] been properly detained as an enemy combatant or is awaiting such
determination." There are two separate paragraphs, the argument
continues, so there must be two distinct classes of cases. And the
effective date subsection, MCA § 7(b), it is said, refers only to the
second class of cases, for it largely repeats the language of § 2241(e)
(2) by referring to "cases ... which relate to any aspect of the
detention, transfer, treatment, trial, or conditions of detention of
an alien detained by the United States."
Petitioners' textual argument would have more force were it not for
the phrase "other action" in § 2241(e)(2). The phrase cannot be
understood without referring back to the paragraph that precedes it, §
2241(e)(1), which explicitly mentions the term "writ of habeas
corpus." The structure of the two paragraphs implies that habeas
actions are a type of action "relating to any aspect of the detention,
transfer, treatment, trial, or conditions of confinement of an alien
who is or was detained... as an enemy combatant." Pending habeas
actions, then, are in the category of cases subject to the statute's
jurisdictional bar.
We acknowledge, moreover, the litigation history that prompted
Congress to enact the MCA. In Hamdan the Court found it unnecessary to
address the petitioner's Suspension Clause arguments but noted the
relevance of the clear statement rule in deciding whether Congress
intended to reach pending habeas corpus cases. See 548 U.S., at 575,
126 S.Ct. 2749 (Congress should "not be presumed to have effected such
denial [of habeas relief] absent an unmistakably clear statement to
the contrary"). This interpretive rule facilitates a dialogue between
Congress and the Court. Cf. Hilton v. South Carolina Public Railways
Comm'n, 502 U.S. 197, 206, 112 S.Ct. 560, 116 L.Ed.2d 560 (1991); H.
Hart & A. Sacks, The Legal Process: Basic Problems in the Making and
Application of Law 1209-1210 (W. Eskridge & P. Frickey eds.1994). If
the Court invokes a clear statement rule to advise that certain
statutory interpretations are favored in order to avoid constitutional
difficulties, Congress can make an informed legislative choice either
to amend the statute or to retain its existing text. If Congress
amends, its intent must be respected even if a difficult
constitutional question is presented. The usual presumption is that
Members of Congress, in accord with their oath of office, considered
the constitutional issue and determined the amended statute to be a
lawful one; and the Judiciary, in light of that determination,
proceeds to its own independent judgment on the constitutional
question when required to do so in a proper case.
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. The Court of Appeals
was correct to take note of the legislative history when construing
the statute, see 476 F.3d, at 986, n. 2 (citing relevant floor
statements); 2244*2244 and we agree with its conclusion that the MCA
deprives the federal courts of jurisdiction to entertain the habeas
corpus actions now before us.
III
In deciding the constitutional questions now presented we must
determine whether petitioners are barred from seeking the writ or
invoking the protections of the Suspension Clause either because of
their status, i.e., petitioners' designation by the Executive Branch
as enemy combatants, or their physical location, i.e., their presence
at Guantanamo Bay. The Government contends that noncitizens designated
as enemy combatants and detained in territory located outside our
Nation's borders have no constitutional rights and no privilege of
habeas corpus. Petitioners contend they do have cognizable
constitutional rights and that Congress, in seeking to eliminate
recourse to habeas corpus as a means to assert those rights, acted in
violation of the Suspension Clause.
We begin with a brief account of the history and origins of the writ.
Our account proceeds from two propositions. First, protection for the
privilege of habeas corpus was one of the few safeguards of liberty
specified in a Constitution that, at the outset, had no Bill of
Rights. In the system conceived by the Framers the writ had a
centrality that must inform proper interpretation of the Suspension
Clause. Second, to the extent there were settled precedents or legal
commentaries in 1789 regarding the extraterritorial scope of the writ
or its application to enemy aliens, those authorities can be
instructive for the present cases.
A
The Framers viewed freedom from unlawful restraint as a fundamental
precept of liberty, and they understood the writ of habeas corpus as a
vital instrument to secure that freedom. Experience taught, however,
that the common-law writ all too often had been insufficient to guard
against the abuse of monarchial power. That history counseled the
necessity for specific language in the Constitution to secure the writ
and ensure its place in our legal system.
Magna Carta decreed that no man would be imprisoned contrary to the
law of the land. Art. 39, in Sources of Our Liberties 17 (R. Perry &
J. Cooper eds. 1959) ("No free man shall be taken or imprisoned or
dispossessed, or outlawed, or banished, or in any way destroyed, nor
will we go upon him, nor send upon him, except by the legal judgment
of his peers or by the law of the land"). Important as the principle
was, the Barons at Runnymede prescribed no specific legal process to
enforce it. Holdsworth tells us, however, that gradually the writ of
habeas corpus became the means by which the promise of Magna Carta was
fulfilled. 9 W. Holdsworth, A History of English Law 112 (1926)
(hereinafter Holdsworth).
The development was painstaking, even by the centuries-long measures
of English constitutional history. The writ was known and used in some
form at least as early as the reign of Edward I. Id., at 108-125. Yet
at the outset it was used to protect not the rights of citizens but
those of the King and his courts. The early courts were considered
agents of the Crown, designed to assist the King in the exercise of
his power. See J. Baker, An Introduction to English Legal History
38-39 (4th ed.2002). Thus the writ, while it would become part of the
foundation of liberty for the King's subjects, was in its earliest use
a mechanism for securing compliance with the King's laws. See Halliday
& White, The Suspension Clause: English Text, Imperial Contexts, and
American 2245*2245 Implications, 94 Va. L.Rev. (forthcoming 2008)
(hereinafter Halliday & White) (manuscript, at 11, online at http://papers.
ssrn.com/sol3 /papers.cfm?abstract_id=1008252 (all Internet materials
as visited June 9, 2008, and available in Clerk of Court's case file)
(noting that "conceptually the writ arose from a theory of power
rather than a theory of liberty")). Over time it became clear that by
issuing the writ of habeas corpus common-law courts sought to enforce
the King's prerogative to inquire into the authority of a jailer to
hold a prisoner. See M. Hale, Prerogatives of the King 229 (D. Yale ed.
1976); 2 J. Story, Commentaries on the Constitution of the United
States § 1341, p. 237 (3d ed. 1858) (noting that the writ ran "into
all parts of the king's dominions; for it is said, that the king is
entitled, at all times, to have an account, why the liberty of any of
his subjects is restrained").
Even so, from an early date it was understood that the King, too, was
subject to the law. As the writers said of Magna Carta, "it means
this, that the king is and shall be below the law." 1 F. Pollock & F.
Maitland, History of English Law 173 (2d ed.1909); see also 2 Bracton
On the Laws and Customs of England 33 (S. Thorne transl. 1968) ("The
king must not be under man but under God and under the law, because
law makes the king"). And, by the 1600's, the writ was deemed less an
instrument of the King's power and more a restraint upon it. See
Collings, Habeas Corpus for Convicts—Constitutional Right or
Legislative Grace, 40 Calif. L.Rev. 335, 336 (1952) (noting that by
this point the writ was "the appropriate process for checking illegal
imprisonment by public officials").
Still, the writ proved to be an imperfect check. Even when the
importance of the writ was well understood in England, habeas relief
often was denied by the courts or suspended by Parliament. Denial or
suspension occurred in times of political unrest, to the anguish of
the imprisoned and the outrage of those in sympathy with them.
A notable example from this period was Darnel's Case, 3 How. St. Tr. 1
(K.B.1627). The events giving rise to the case began when, in a
display of the Stuart penchant for authoritarian excess, Charles I
demanded that Darnel and at least four others lend him money. Upon
their refusal, they were imprisoned. The prisoners sought a writ of
habeas corpus; and the King filed a return in the form of a warrant
signed by the Attorney General. Ibid. The court held this was a
sufficient answer and justified the subjects' continued imprisonment.
Id., at 59.
There was an immediate outcry of protest. The House of Commons
promptly passed the Petition of Right, 3 Car. 1, ch. 1 (1627), 5
Statutes of the Realm 23, 24 (reprint 1963), which condemned executive
"imprison[ment] without any cause" shown, and declared that "no
freeman in any such manner as is before mencioned [shall] be
imprisoned or deteined." Yet a full legislative response was long
delayed. The King soon began to abuse his authority again, and
Parliament was dissolved. See W. Hall & R. Albion, A History of
England and the British Empire 328 (3d ed.1953) (hereinafter Hall &
Albion). When Parliament reconvened in 1640, it sought to secure
access to the writ by statute. The Act of 1640, 16 Car. 1, ch. 10, 5
Statutes of the Realm, at 110, expressly authorized use of the writ to
test the legality of commitment by command or warrant of the King or
the Privy Council. Civil strife and the Interregnum soon followed, and
not until 1679 did Parliament try once more to secure the writ, this
time through the Habeas Corpus Act of 1679, 31 Car. 2, ch. 2, id., at
935. The Act, which later 2246*2246 would be described by Blackstone
as the "stable bulwark of our liberties," 1 W. Blackstone,
Commentaries *137 (hereinafter Blackstone), established procedures for
issuing the writ; and it was the model upon which the habeas statutes
of the 13 American Colonies were based, see Collings, supra, at
338-339.
This history was known to the Framers. It no doubt confirmed their
view that pendular swings to and away from individual liberty were
endemic to undivided, uncontrolled power. The Framers' inherent
distrust of governmental power was the driving force behind the
constitutional plan that allocated powers among three independent
branches. This design serves not only to make Government accountable
but also to secure individual liberty. See Loving v. United States,
517 U.S. 748, 756, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996) (noting that
"[e]ven before the birth of this country, separation of powers was
known to be a defense against tyranny"); cf. Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 96 L.Ed. 1153 (1952)
(Jackson, J., concurring) ("[T]he Constitution diffuses power the
better to secure liberty"); Clinton v. City of New York, 524 U.S. 417,
450, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998) (KENNEDY, J., concurring)
("Liberty is always at stake when one or more of the branches seek to
transgress the separation of powers"). Because the Constitution's
separation-of-powers structure, like the substantive guarantees of the
Fifth and Fourteenth Amendments, see Yick Wo v. Hopkins, 118 U.S. 356,
374, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), protects persons as well as
citizens, foreign nationals who have the privilege of litigating in
our courts can seek to enforce separation-of-powers principles, see,
e.g., INS v. Chadha, 462 U.S. 919, 958-959, 103 S.Ct. 2764, 77 L.Ed.2d
317 (1983).
That the Framers considered the writ a vital instrument for the
protection of individual liberty is evident from the care taken to
specify the limited grounds for its suspension: "The Privilege of the
Writ of Habeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it." Art. I, § 9,
cl. 2; see Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425,
1509, n. 329 (1987) ("[T]he non-suspension clause is the original
Constitution's most explicit reference to remedies"). The word
"privilege" was used, perhaps, to avoid mentioning some rights to the
exclusion of others. (Indeed, the only mention of the term "right" in
the Constitution, as ratified, is in its clause giving Congress the
power to protect the rights of authors and inventors. See Art. I, § 8,
cl. 8.)
Surviving accounts of the ratification debates provide additional
evidence that the Framers deemed the writ to be an essential mechanism
in the separation-of-powers scheme. In a critical exchange with
Patrick Henry at the Virginia ratifying convention Edmund Randolph
referred to the Suspension Clause as an "exception" to the "power
given to Congress to regulate courts." See 3 Debates in the Several
State Conventions on the Adoption of the Federal Constitution 460-464
(J. Elliot 2d ed. 1876) (hereinafter Elliot's Debates). A resolution
passed by the New York ratifying convention made clear its
understanding that the Clause not only protects against arbitrary
suspensions of the writ but also guarantees an affirmative right to
judicial inquiry into the causes of detention. See Resolution of the
New York Ratifying Convention (July 26, 1788), in 1 Elliot's Debates
328 (noting the convention's understanding "[t]hat every person
restrained of his liberty is entitled to an inquiry into the
lawfulness of such restraint, and to a removal thereof if unlawful;
2247*2247 and that such inquiry or removal ought not to be denied or
delayed, except when, on account of public danger, the Congress shall
suspend the privilege of the writ of habeas corpus"). Alexander
Hamilton likewise explained that by providing the detainee a judicial
forum to challenge detention, the writ preserves limited government.
As he explained in The Federalist No. 84:
"[T]he practice of arbitrary imprisonments, have been, in all ages,
the favorite and most formidable instruments of tyranny. The
observations of the judicious Blackstone ... are well worthy of
recital: `To bereave a man of life ... or by violence to confiscate
his estate, without accusation or trial, would be so gross and
notorious an act of despotism as must at once convey the alarm of
tyranny throughout the whole nation; but confinement of the person, by
secretly hurrying him to jail, where his sufferings are unknown or
forgotten, is a less public, a less striking, and therefore a more
dangerous engine of arbitrary government.' And as a remedy for this
fatal evil he is everywhere peculiarly emphatical in his encomiums on
the habeas corpus act, which in one place he calls `the BULWARK of the
British Constitution.'" C. Rossiter ed., p. 512 (1961) (quoting 1
Blackstone *136, 4 id., at *438).
Post-1789 habeas developments in England, though not bearing upon the
Framers' intent, do verify their foresight. Those later events would
underscore the need for structural barriers against arbitrary
suspensions of the writ. Just as the writ had been vulnerable to
executive and parliamentary encroachment on both sides of the Atlantic
before the American Revolution, despite the Habeas Corpus Act of 1679,
the writ was suspended with frequency in England during times of
political unrest after 1789. Parliament suspended the writ for much of
the period from 1792 to 1801, resulting in rampant arbitrary
imprisonment. See Hall & Albion 550. Even as late as World War I, at
least one prominent English jurist complained that the Defence of the
Realm Act, 1914, 4 & 5 Geo. 5, ch. 29(1)(a), effectively had suspended
the privilege of habeas corpus for any person suspected of
"communicating with the enemy." See King v. Halliday, [1917] A.C. 260,
299 (Lord Shaw, dissenting); see generally A. Simpson, In the Highest
Degree Odious: Detention Without Trial in Wartime Britain 6-7, 24-25
(1992).
In our own system the Suspension Clause is designed to protect against
these cyclical abuses. The Clause protects the rights of the detained
by a means consistent with the essential design of the Constitution.
It ensures that, except during periods of formal suspension, the
Judiciary will have a time-tested device, the writ, to maintain the
"delicate balance of governance" that is itself the surest safeguard
of liberty. See Hamdi, 542 U.S., at 536, 124 S.Ct. 2633 (plurality
opinion). The Clause protects the rights of the detained by affirming
the duty and authority of the Judiciary to call the jailer to account.
See Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S.Ct. 1827, 36 L.Ed.2d
439 (1973) ("[T]he essence of habeas corpus is an attack by a person
in custody upon the legality of that custody"); cf. In re Jackson, 15
Mich. 417, 439-440 (1867) (Cooley, J., concurring) ("The important
fact to be observed in regard to the mode of procedure upon this
[habeas] writ is, that it is directed to, and served upon, not the
person confined, but his jailer"). The separation-of-powers doctrine,
and the history that influenced its design, therefore must inform the
reach and purpose of the Suspension Clause.
2248*2248 B
The broad historical narrative of the writ and its function is central
to our analysis, but we seek guidance as well from founding-era
authorities addressing the specific question before us: whether
foreign nationals, apprehended and detained in distant countries
during a time of serious threats to our Nation's security, may assert
the privilege of the writ and seek its protection. The Court has been
careful not to foreclose the possibility that the protections of the
Suspension Clause have expanded along with post-1789 developments that
define the present scope of the writ. See INS v. St. Cyr, 533 U.S.
289, 300-301, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). But the analysis
may begin with precedents as of 1789, for the Court has said that "at
the absolute minimum" the Clause protects the writ as it existed when
the Constitution was drafted and ratified. Id., at 301, 121 S.Ct.
2271.
To support their arguments, the parties in these cases have examined
historical sources to construct a view of the commonlaw writ as it
existed in 1789—as have amici whose expertise in legal history the
Court has relied upon in the past. See Brief for Legal Historians as
Amici Curiae; see also St. Cyr, supra, at 302, n. 16, 121 S.Ct. 2271.
The Government argues the common-law writ ran only to those
territories over which the Crown was sovereign. See Brief for
Respondents 27. Petitioners argue that jurisdiction followed the
King's officers. See Brief for Petitioner Boumediene et al. 11.
Diligent search by all parties reveals no certain conclusions. In none
of the cases cited do we find that a common-law court would or would
not have granted, or refused to hear for lack of jurisdiction, a
petition for a writ of habeas corpus brought by a prisoner deemed an
enemy combatant, under a standard like the one the Department of
Defense has used in these cases, and when held in a territory, like
Guantanamo, over which the Government has total military and civil
control.
We know that at common law a petitioner's status as an alien was not a
categorical bar to habeas corpus relief. See, e.g., Sommersett's Case,
20 How. St. Tr. 1, 80-82 (1772) (ordering an African slave freed upon
finding the custodian's return insufficient); see generally Khera v.
Secretary of State for the Home Dept., [1984] A.C. 74, 111 ("Habeas
corpus protection is often expressed as limited to `British subjects.'
Is it really limited to British nationals? Suffice it to say that the
case law has given an emphatic `no' to the question"). We know as well
that common-law courts entertained habeas petitions brought by enemy
aliens detained in England—"entertained" at least in the sense that
the courts held hearings to determine the threshold question of
entitlement to the writ. See Case of Three Spanish Sailors, 2 Black.
W. 1324, 96 Eng. Rep. 775 (C.P. 1779); King v. Schiever, 2 Burr. 765,
97 Eng. Rep. 551 (K.B.1759); Du Castro's Case, Fort. 195, 92 Eng. Rep.
816 (K.B.1697).
In Schiever and the Spanish Sailors' case, the courts denied relief to
the petitioners. Whether the holdings in these cases were
jurisdictional or based upon the courts' ruling that the petitioners
were detained lawfully as prisoners of war is unclear. See Spanish
Sailors, supra, at 1324, 96 Eng. Rep., at 776; Schiever, supra, at
766, 97 Eng. Rep., at 552. In Du Castro's Case, the court granted
relief, but that case is not analogous to petitioners' because the
prisoner there appears to have been detained in England. See Halliday
& White 27, n. 72. To the extent these authorities suggest the common-
law courts abstained altogether from matters involving prisoners of
war, there was greater justification for doing so in the context of
2249*2249 declared wars with other nation states. Judicial
intervention might have complicated the military's ability to
negotiate exchange of prisoners with the enemy, a wartime practice
well known to the Framers. See Resolution of Mar. 30, 1778, 10
Journals of the Continental Congress 1774-1789, p. 295 (W. Ford ed.
1908) (directing General Washington not to exchange prisoners with the
British unless the enemy agreed to exempt citizens from capture).
We find the evidence as to the geographic scope of the writ at common
law informative, but, again, not dispositive. Petitioners argue the
site of their detention is analogous to two territories outside of
England to which the writ did run: the so-called "exempt
jurisdictions," like the Channel Islands; and (in former times) India.
There are critical differences between these places and Guantanamo,
however.
As the Court noted in Rasul, 542 U.S., at 481-482, and nn. 11-12, 124
S.Ct. 2686, common-law courts granted habeas corpus relief to
prisoners detained in the exempt jurisdictions. But these areas, while
not in theory part of the realm of England, were nonetheless under the
Crown's control. See 2 H. Hallam, Constitutional History of England:
From the Accession of Henry VII to the Death of George II, pp. 232-233
(reprint 1989). And there is some indication that these jurisdictions
were considered sovereign territory. King v. Cowle, 2 Burr. 834, 854,
855, 97 Eng. Rep. 587, 599 (K.B.1759) (describing one of the exempt
jurisdictions, Berwick-upon-Tweed, as under the "sovereign
jurisdiction" and "subjection of the Crown of England"). Because the
United States does not maintain formal sovereignty over Guantanamo
Bay, see Part IV, infra, the naval station there and the exempt
jurisdictions discussed in the English authorities are not similarly
situated.
Petitioners and their amici further rely on cases in which British
courts in India granted writs of habeas corpus to noncitizens detained
in territory over which the Moghul Emperor retained formal sovereignty
and control. See supra, at 2246-2248; Brief for Legal Historians as
Amici Curiae 12-13. The analogy to the present cases breaks down,
however, because of the geographic location of the courts in the
Indian example. The Supreme Court of Judicature (the British Court)
sat in Calcutta; but no federal court sits at Guantanamo. The Supreme
Court of Judicature was, moreover, a special court set up by
Parliament to monitor certain conduct during the British Raj. See
Regulating Act of 1773, 13 Geo. 3, §§ 13-14. That it had the power to
issue the writ in nonsovereign territory does not prove that common-
law courts sitting in England had the same power. If petitioners were
to have the better of the argument on this point, we would need some
demonstration of a consistent practice of common-law courts sitting in
England and entertaining petitions brought by alien prisoners detained
abroad. We find little support for this conclusion.
The Government argues, in turn, that Guantanamo is more closely
analogous to Scotland and Hanover, territories that were not part of
England but nonetheless controlled by the English monarch (in his
separate capacities as King of Scotland and Elector of Hanover). See
Cowle, 2 Burr., at 856, 97 Eng. Rep., at 600. Lord Mansfield can be
cited for the proposition that, at the time of the founding, English
courts lacked the "power" to issue the writ to Scotland and Hanover,
territories Lord Mansfield referred to as "foreign." Ibid. But what
matters for our purposes is why common-law courts lacked this power.
2250*2250 Given the English Crown's delicate and complicated
relationships with Scotland and Hanover in the 1700's, we cannot
disregard the possibility that the common-law courts' refusal to issue
the writ to these places was motivated not by formal legal constructs
but by what we would think of as prudential concerns. This appears to
have been the case with regard to other British territories where the
writ did not run. See 2 R. Chambers, A Course of Lectures on English
Law 1767-1773, p. 8 (T. Curley ed.1986) (quoting the view of Lord
Mansfield in Cowle that "[n]otwithstanding the power which the judges
have, yet where they cannot judge of the cause, or give relief upon
it, they would not think proper to interpose; and therefore in the
case of imprisonments in Guernsey, Jersey, Minorca, or the
plantations, the most usual way is to complain to the king in
Council" (internal quotation marks omitted)). And after the Act of
Union in 1707, through which the kingdoms of England and Scotland were
merged politically, Queen Anne and her successors, in their new
capacity as sovereign of Great Britain, ruled the entire island as one
kingdom. Accordingly, by the time Lord Mansfield penned his opinion in
Cowle in 1759, Scotland was no longer a "foreign" country vis-á-vis
England—at least not in the sense in which Cuba is a foreign country
vis-á-vis the United States.
Scotland remained "foreign" in Lord Mansfield's day in at least one
important respect, however. Even after the Act of Union, Scotland
(like Hanover) continued to maintain its own laws and court system.
See 1 Blackstone *98, *109. Under these circumstances prudential
considerations would have weighed heavily when courts sitting in
England received habeas petitions from Scotland or the Electorate.
Common-law decisions withholding the writ from prisoners detained in
these places easily could be explained as efforts to avoid either or
both of two embarrassments: conflict with the judgments of another
court of competent jurisdiction; or the practical inability, by reason
of distance, of the English courts to enforce their judgments outside
their territorial jurisdiction. Cf. Munaf v. Geren, ___ U.S. ___, ___,
128 S.Ct. 2207, ___ L.Ed.2d ___, 2008 WL 2369260 *13-14 (opinion of
the Court) (recognizing that "`prudential concerns' ... such as comity
and the orderly administration of criminal justice" affect the
appropriate exercise of habeas jurisdiction).
By the mid-19th century, British courts could issue the writ to
Canada, notwithstanding the fact that Canadian courts also had the
power to do so. See 9 Holdsworth 124 (citing Ex parte Anderson, 3 El.
and El. 487 (1861)). This might be seen as evidence that the existence
of a separate court system was no barrier to the running of the common-
law writ. The Canada of the 1800's, however, was in many respects more
analogous to the exempt jurisdictions or to Ireland, where the writ
ran, than to Scotland or Hanover in the 1700's, where it did not.
Unlike Scotland and Hanover, Canada followed English law. See B.
Laskin, The British Tradition in Canadian Law 50-51 (1969).
In the end a categorical or formal conception of sovereignty does not
provide a comprehensive or altogether satisfactory explanation for the
general understanding that prevailed when Lord Mansfield considered
issuance of the writ outside England. In 1759 the writ did not run to
Scotland but did run to Ireland, even though, at that point, Scotland
and England had merged under the rule of a single sovereign, whereas
the Crowns of Great Britain and Ireland remained separate (at least in
theory). See Cowle, supra, at 856-857, 97 Eng. Rep., 600; 1 Blackstone
*100-101. But there was at least one major 2251*2251 difference
between Scotland's and Ireland's relationship with England during this
period that might explain why the writ ran to Ireland but not to
Scotland. English law did not generally apply in Scotland (even after
the Act of Union) but it did apply in Ireland. Blackstone put it as
follows: "[A]s Scotland and England are now one and the same kingdom,
and yet differ in their municipal laws; so England and Ireland are, on
the other hand, distinct kingdoms, and yet in general agree in their
laws." Id., at *100. This distinction, and not formal notions of
sovereignty, may well explain why the writ did not run to Scotland
(and Hanover) but would run to Ireland.
The prudential barriers that may have prevented the English courts
from issuing the writ to Scotland and Hanover are not relevant here.
We have no reason to believe an order from a federal court would be
disobeyed at Guantanamo. No Cuban court has jurisdiction to hear these
petitioners' claims, and no law other than the laws of the United
States applies at the naval station. The modern-day relations between
the United States and Guantanamo thus differ in important respects
from the 18th-century relations between England and the kingdoms of
Scotland and Hanover. This is reason enough for us to discount the
relevance of the Government's analogy.
Each side in the present matter argues that the very lack of a
precedent on point supports its position. The Government points out
there is no evidence that a court sitting in England granted habeas
relief to an enemy alien detained abroad; petitioners respond there is
no evidence that a court refused to do so for lack of jurisdiction.
Both arguments are premised, however, upon the assumption that the
historical record is complete and that the common law, if properly
understood, yields a definite answer to the questions before us. There
are reasons to doubt both assumptions. Recent scholarship points to
the inherent shortcomings in the historical record. See Halliday &
White 14-15 (noting that most reports of 18th-century habeas
proceedings were not printed). And given the unique status of
Guantanamo Bay and the particular dangers of terrorism in the modern
age, the common-law courts simply may not have confronted cases with
close parallels to this one. We decline, therefore, to infer too much,
one way or the other, from the lack of historical evidence on point.
Cf. Brown v. Board of Education, 347 U.S. 483, 489, 74 S.Ct. 686, 98
L.Ed. 873 (1954) (noting evidence concerning the circumstances
surrounding the adoption of the Fourteenth Amendment, discussed in the
parties' briefs and uncovered through the Court's own investigation,
"convince us that, although these sources cast some light, it is not
enough to resolve the problem with which we are faced. At best, they
are inconclusive"); Reid v. Covert, 354 U.S. 1, 64, 77 S.Ct. 1222, 1
L.Ed.2d 1148 (1957) (Frankfurter, J., concurring in result) (arguing
constitutional adjudication should not be based upon evidence that is
"too episodic, too meager, to form a solid basis in history, preceding
and contemporaneous with the framing of the Constitution").
IV
Drawing from its position that at common law the writ ran only to
territories over which the Crown was sovereign, the Government says
the Suspension Clause affords petitioners no rights because the United
States does not claim sovereignty over the place of detention.
Guantanamo Bay is not formally part of the United States. See DTA §
1005(g), 119 Stat. 2743. And under the terms of 2252*2252 the lease
between the United States and Cuba, Cuba retains "ultimate
sovereignty" over the territory while the United States exercises
"complete jurisdiction and control." See Lease of Lands for Coaling
and Naval Stations, Feb. 23, 1903, U.S.-Cuba, Art. III, T.S. No. 418
(hereinafter 1903 Lease Agreement); Rasul, 542 U.S., at 471, 124 S.Ct.
2686. Under the terms of the 1934 Treaty, however, Cuba effectively
has no rights as a sovereign until the parties agree to modification
of the 1903 Lease Agreement or the United States abandons the base.
See Treaty Defining Relations with Cuba, May 29, 1934, U.S.-Cuba, Art.
III, 48 Stat. 1683, T.S. No. 866.
The United States contends, nevertheless, that Guantanamo is not
within its sovereign control. This was the Government's position well
before the events of September 11, 2001. See, e.g., Brief for
Petitioners in Sale v. Haitian Centers Council, Inc., O.T.1992, No.
92-344, p. 31 (arguing that Guantanamo is territory "outside the
United States"). And in other contexts the Court has held that
questions of sovereignty are for the political branches to decide. See
Vermilya-Brown Co. v. Connell, 335 U.S. 377, 380, 69 S.Ct. 140, 93
L.Ed. 76 (1948) ("[D]etermination of sovereignty over an area is for
the legislative and executive departments"); see also Jones v. United
States, 137 U.S. 202, 11 S.Ct. 80, 34 L.Ed. 691 (1890); Williams v.
Suffolk Ins. Co., 13 Pet. 415, 420, 10 L.Ed. 226 (1839). Even if this
were a treaty interpretation case that did not involve a political
question, the President's construction of the lease agreement would be
entitled to great respect. See Sumitomo Shoji America, Inc. v.
Avagliano, 457 U.S. 176, 184-185, 102 S.Ct. 2374, 72 L.Ed.2d 765
(1982).
We therefore do not question the Government's position that Cuba, not
the United States, maintains sovereignty, in the legal and technical
sense of the term, over Guantanamo Bay. But this does not end the
analysis. Our cases do not hold it is improper for us to inquire into
the objective degree of control the Nation asserts over foreign
territory. As commentators have noted, "`[s]overeignty' is a term used
in many senses and is much abused." See 1 Restatement (Third) of
Foreign Relations Law of the United States § 206, Comment b, p. 94
(1986). When we have stated that sovereignty is a political question,
we have referred not to sovereignty in the general, colloquial sense,
meaning the exercise of dominion or power, see Webster's New
International Dictionary 2406 (2d ed.1934) ("sovereignty," definition
3), but sovereignty in the narrow, legal sense of the term, meaning a
claim of right, see 1 Restatement (Third) of Foreign Relations, supra,
§ 206, Comment b, at 94 (noting that sovereignty "implies a state's
lawful control over its territory generally to the exclusion of other
states, authority to govern in that territory, and authority to apply
law there"). Indeed, it is not altogether uncommon for a territory to
be under the de jure sovereignty of one nation, while under the
plenary control, or practical sovereignty, of another. This condition
can occur when the territory is seized during war, as Guantanamo was
during the Spanish-American War. See, e.g., Fleming v. Page, 9 How.
603, 614, 13 L.Ed. 276 (1850) (noting that the port of Tampico,
conquered by the United States during the war with Mexico, was
"undoubtedly ... subject to the sovereignty and dominion of the United
States," but that it "does not follow that it was a part of the United
States, or that it ceased to be a foreign country"); King v. Earl of
Crewe ex parte Sekgome, [1910] 2 K.B. 576, 603-604 (C.A.) (opinion of
Williams, L.J.) (arguing that the Bechuanaland Protectorate in South
Africa was "under His Majesty's dominion in the 2253*2253 sense of
power and jurisdiction, but is not under his dominion in the sense of
territorial dominion"). Accordingly, for purposes of our analysis, we
accept the Government's position that Cuba, and not the United States,
retains de jure sovereignty over Guantanamo Bay. As we did in Rasul,
however, we take notice of the obvious and uncontested fact that the
United States, by virtue of its complete jurisdiction and control over
the base, maintains de facto sovereignty over this territory. See 542
U.S., at 480, 124 S.Ct. 2686; id., at 487, 124 S.Ct. 2686 (KENNEDY,
J., concurring in judgment).
Were we to hold that the present cases turn on the political question
doctrine, we would be required first to accept the Government's
premise that de jure sovereignty is the touchstone of habeas corpus
jurisdiction. This premise, however, is unfounded. For the reasons
indicated above, the history of common-law habeas corpus provides
scant support for this proposition; and, for the reasons indicated
below, that position would be inconsistent with our precedents and
contrary to fundamental separation-of-powers principles.
A
The Court has discussed the issue of the Constitution's
extraterritorial application on many occasions. These decisions
undermine the Government's argument that, at least as applied to
noncitizens, the Constitution necessarily stops where de jure
sovereignty ends.
The Framers foresaw that the United States would expand and acquire
new territories. See American Ins. Co. v. 356 Bales of Cotton, 1 Pet.
511, 542, 7 L.Ed. 242 (1828). Article IV, § 3, cl. 1, grants Congress
the power to admit new States. Clause 2 of the same section grants
Congress the "Power to dispose of and make all needful Rules and
Regulations respecting the Territory or other Property belonging to
the United States." Save for a few notable (and notorious) exceptions,
e.g., Dred Scott v. Sandford, 19 How. 393, 15 L.Ed. 691 (1857),
throughout most of our history there was little need to explore the
outer boundaries of the Constitution's geographic reach. When Congress
exercised its power to create new territories, it guaranteed
constitutional protections to the inhabitants by statute. See, e.g.,
An Act: to establish a Territorial Government for Utah, 9 Stat. 458
("[T]he Constitution and laws of the United States are hereby extended
over and declared to be in force in said Territory of Utah"); Rev.
Stat. § 1891 ("The Constitution and all laws of the United States
which are not locally inapplicable shall have the same force and
effect within all the organized Territories, and in every Territory
hereafter organized as elsewhere within the United States"); see
generally Burnett, Untied States: American Expansion and Territorial
Deannexation, 72 U. Chi. L.Rev. 797, 825-827 (2005). In particular,
there was no need to test the limits of the Suspension Clause because,
as early as 1789, Congress extended the writ to the Territories. See
Act of Aug. 7, 1789, 1 Stat. 52 (reaffirming Art. II of Northwest
Ordinance of 1787, which provided that "[t]he inhabitants of the said
territory, shall always be entitled to the benefits of the writ of
habeas corpus").
Fundamental questions regarding the Constitution's geographic scope
first arose at the dawn of the 20th century when the Nation acquired
noncontiguous Territories: Puerto Rico, Guam, and the Philippines—
ceded to the United States by Spain at the conclusion of the Spanish-
American War— and Hawaii—annexed by the United States in 1898. At this
point Congress chose to discontinue its previous practice 2254*2254 of
extending constitutional rights to the territories by statute. See,
e.g., An Act Temporarily to provide for the administration of the
affairs of civil government in the Philippine Islands, and for other
purposes, 32 Stat. 692 (noting that Rev. Stat. § 1891 did not apply to
the Philippines).
In a series of opinions later known as the Insular Cases, the Court
addressed whether the Constitution, by its own force, applies in any
territory that is not a State. See De Lima v. Bidwell, 182 U.S. 1, 21
S.Ct. 743, 45 L.Ed. 1041 (1901); Dooley v. United States, 182 U.S.
222, 21 S.Ct. 762, 45 L.Ed. 1074 (1901); Armstrong v. United States,
182 U.S. 243, 21 S.Ct. 827, 45 L.Ed. 1086 (1901); Downes v. Bidwell,
182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901); Hawaii v. Mankichi,
190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1016 (1903); Dorr v. United
States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128 (1904). The Court
held that the Constitution has independent force in these territories,
a force not contingent upon acts of legislative grace. Yet it took
note of the difficulties inherent in that position.
Prior to their cession to the United States, the former Spanish
colonies operated under a civil-law system, without experience in the
various aspects of the Anglo-American legal tradition, for instance
the use of grand and petit juries. At least with regard to the
Philippines, a complete transformation of the prevailing legal culture
would have been not only disruptive but also unnecessary, as the
United States intended to grant independence to that Territory. See An
Act To declare the purpose of the people of the United States as to
the future political status of the people of the Philippine Islands,
and to provide a more autonomous government for those islands (Jones
Act), 39 Stat. 545 (noting that "it was never the intention of the
people of the United States in the incipiency of the War with Spain to
make it a war of conquest or for territorial aggrandizement" and that
"it is, as it has always been, the purpose of the people of the United
States to withdraw their sovereignty over the Philippine Islands and
to recognize their independence as soon as a stable government can be
established therein"). The Court thus was reluctant to risk the
uncertainty and instability that could result from a rule that
displaced altogether the existing legal systems in these newly
acquired Territories. See Downes, supra, at 282, 21 S.Ct. 770 ("It is
obvious that in the annexation of outlying and distant possessions
grave questions will arise from differences of race, habits, laws and
customs of the people, and from differences of soil, climate and
production...").
These considerations resulted in the doctrine of territorial
incorporation, under which the Constitution applies in full in
incorporated Territories surely destined for statehood but only in
part in unincorporated Territories. See Dorr, supra, at 143, 24 S.Ct.
808 ("Until Congress shall see fit to incorporate territory ceded by
treaty into the United States, ... the territory is to be governed
under the power existing in Congress to make laws for such territories
and subject to such constitutional restrictions upon the powers of
that body as are applicable to the situation"); Downes, supra, at 293,
21 S.Ct. 770 (White, J., concurring) ("[T]he determination of what
particular provision of the Constitution is applicable, generally
speaking, in all cases, involves an inquiry into the situation of the
territory and its relations to the United States"). As the Court later
made clear, "the real issue in the Insular Cases was not whether the
Constitution extended to the Philippines or Porto Rico when we went
there, but which of its provisions were applicable by way of
limitation 2255*2255 upon the exercise of executive and legislative
power in dealing with new conditions and requirements." Balzac v.
Porto Rico, 258 U.S. 298, 312, 42 S.Ct. 343, 66 L.Ed. 627 (1922). It
may well be that over time the ties between the United States and any
of its unincorporated Territories strengthen in ways that are of
constitutional significance. Cf. Torres v. Puerto Rico, 442 U.S. 465,
475-476, 99 S.Ct. 2425, 61 L.Ed.2d 1 (1979) (Brennan, J., concurring
in judgment) ("Whatever the validity of the [Insular Cases] in the
particular historical context in which they were decided, those cases
are clearly not authority for questioning the application of the
Fourth Amendment—or any other provision of the Bill of Rights—to the
Commonwealth of Puerto Rico in the 1970's"). But, as early as Balzac
in 1922, the Court took for granted that even in unincorporated
Territories the Government of the United States was bound to provide
to noncitizen inhabitants "guaranties of certain fundamental personal
rights declared in the Constitution." 258 U.S., at 312, 42 S.Ct. 343;
see also Late Corp. of Church of Jesus Christ of Latter-Day Saints v.
United States, 136 U.S. 1, 44, 10 S.Ct. 792, 34 L.Ed. 478 (1890)
("Doubtless Congress, in legislating for the Territories would be
subject to those fundamental limitations in favor of personal rights
which are formulated in the Constitution and its amendments"). Yet
noting the inherent practical difficulties of enforcing all
constitutional provisions "always and everywhere," Balzac, supra, at
312, 42 S.Ct. 343, the Court devised in the Insular Cases a doctrine
that allowed it to use its power sparingly and where it would be most
needed. This century-old doctrine informs our analysis in the present
matter.
Practical considerations likewise influenced the Court's analysis a
half-century later in Reid, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148.
The petitioners there, spouses of American servicemen, lived on
American military bases in England and Japan. They were charged with
crimes committed in those countries and tried before military courts,
consistent with executive agreements the United States had entered
into with the British and Japanese governments. Id., at 15-16, and nn.
29-30, 77 S.Ct. 1222 (plurality opinion). Because the petitioners were
not themselves military personnel, they argued they were entitled to
trial by jury.
Justice Black, writing for the plurality, contrasted the cases before
him with the Insular Cases, which involved territories "with wholly
dissimilar traditions and institutions" that Congress intended to
govern only "temporarily." Id., at 14, 77 S.Ct. 1222. Justice
Frankfurter argued that the "specific circumstances of each particular
case" are relevant in determining the geographic scope of the
Constitution. Id., at 54, 77 S.Ct. 1222 (opinion concurring in
result). And Justice Harlan, who had joined an opinion reaching the
opposite result in the case in the previous Term, Reid v. Covert, 351
U.S. 487, 76 S.Ct. 880, 100 L.Ed. 1352 (1956), was most explicit in
rejecting a "rigid and abstract rule" for determining where
constitutional guarantees extend. Reid, 354 U.S., at 74, 77 S.Ct. 1222
(opinion concurring in result). He read the Insular Cases to teach
that whether a constitutional provision has extraterritorial effect
depends upon the "particular circumstances, the practical necessities,
and the possible alternatives which Congress had before it" and, in
particular, whether judicial enforcement of the provision would be
"impracticable and anomalous." Id., at 74-75, 77 S.Ct. 1222; see also
United States v. Verdugo-Urquidez, 494 U.S. 259, 277-278, 110 S.Ct.
1056, 108 L.Ed.2d 222 (1990) (KENNEDY, J., concurring) (applying the
"impracticable and 2256*2256 anomalous" extraterritoriality test in
the Fourth Amendment context).
That the petitioners in Reid were American citizens was a key factor
in the case and was central to the plurality's conclusion that the
Fifth and Sixth Amendments apply to American civilians tried outside
the United States. But practical considerations, related not to the
petitioners' citizenship but to the place of their confinement and
trial, were relevant to each Member of the Reid majority. And to
Justices Harlan and Frankfurter (whose votes were necessary to the
Court's disposition) these considerations were the decisive factors in
the case.
Indeed the majority splintered on this very point. The key
disagreement between the plurality and the concurring Justices in Reid
was over the continued precedential value of the Court's previous
opinion in In re Ross, 140 U.S. 453, 11 S.Ct. 897, 35 L.Ed. 581
(1891), which the Reid Court understood as holding that under some
circumstances Americans abroad have no right to indictment and trial
by jury. The petitioner in Ross was a sailor serving on an American
merchant vessel in Japanese waters who was tried before an American
consular tribunal for the murder of a fellow crewman. 140 U.S., at
459, 479, 11 S.Ct. 897. The Ross Court held that the petitioner, who
was a British subject, had no rights under the Fifth and Sixth
Amendments. Id., at 464, 11 S.Ct. 897. The petitioner's citizenship
played no role in the disposition of the case, however. The Court
assumed (consistent with the maritime custom of the time) that Ross
had all the rights of a similarly situated American citizen. Id., at
479, 11 S.Ct. 897 (noting that Ross was "under the protection and
subject to the laws of the United States equally with the seaman who
was native born"). The Justices in Reid therefore properly understood
Ross as standing for the proposition that, at least in some
circumstances, the jury provisions of the Fifth and Sixth Amendments
have no application to American citizens tried by American authorities
abroad. See 354 U.S., at 11-12, 77 S.Ct. 1222 (plurality opinion)
(describing Ross as holding that "constitutional protections applied
`only to citizens and others within the United States ... and not to
residents or temporary sojourners abroad'" (quoting Ross, supra, at
464, 11 S.Ct. 897)); 354 U.S., at 64, 77 S.Ct. 1222 (Frankfurter, J.,
concurring in result) (noting that the consular tribunals upheld in
Ross "w[ere] based on long-established custom and they were justified
as the best possible means for securing justice for the few Americans
present in [foreign] countries"); 354 U.S., at 75, 77 S.Ct. 1222
(Harlan, J., concurring in result) ("what Ross and the Insular Cases
hold is that the particular local setting, the practical necessities,
and the possible alternatives are relevant to a question of judgment,
namely, whether jury trial should be deemed a necessary condition of
the exercise of Congress' power to provide for the trial of Americans
overseas").
The Reid plurality doubted that Ross was rightly decided, precisely
because it believed the opinion was insufficiently protective of the
rights of American citizens. See 354 U.S., at 10-12, 77 S.Ct. 1222;
see also id., at 78, 77 S.Ct. 1222 (Clark, J., dissenting) (noting
that "four of my brothers would specifically overrule and two would
impair the long-recognized vitality of an old and respected precedent
in our law, the case of In re Ross, 140 U.S. 453, 11 S.Ct. 897, 35
L.Ed. 581 (1891)"). But Justices Harlan and Frankfurter, while willing
to hold that the American citizen petitioners in the cases before them
were entitled to the protections of Fifth and Sixth Amendments, were
unwilling to overturn Ross. 354 U.S., at 64, 77 S.Ct. 1222
(Frankfurter, J., concurring in result); 2257*2257 id., at 75, 77
S.Ct. 1222 (Harlan, J., concurring in result). Instead, the two
concurring Justices distinguished Ross from the cases before them, not
on the basis of the citizenship of the petitioners, but on practical
considerations that made jury trial a more feasible option for them
than it was for the petitioner in Ross. If citizenship had been the
only relevant factor in the case, it would have been necessary for the
Court to overturn Ross, something Justices Harlan and Frankfurter were
unwilling to do. See Verdugo-Urquidez, supra, at 277, 110 S.Ct. 1056
(KENNEDY, J., concurring) (noting that Ross had not been overruled).
Practical considerations weighed heavily as well in Johnson v.
Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950), where
the Court addressed whether habeas corpus jurisdiction extended to
enemy aliens who had been convicted of violating the laws of war. The
prisoners were detained at Landsberg Prison in Germany during the
Allied Powers' postwar occupation. The Court stressed the difficulties
of ordering the Government to produce the prisoners in a habeas corpus
proceeding. It "would require allocation of shipping space, guarding
personnel, billeting and rations" and would damage the prestige of
military commanders at a sensitive time. Id., at 779, 70 S.Ct. 936. In
considering these factors the Court sought to balance the constraints
of military occupation with constitutional necessities. Id., at
769-779, 70 S.Ct. 936; see Rasul, 542 U.S., at 475-476, 124 S.Ct. 2686
(discussing the factors relevant to Eisentrager's constitutional
holding); 542 U.S., at 486, 124 S.Ct. 2686 (KENNEDY, J., concurring in
judgment) (same).
True, the Court in Eisentrager denied access to the writ, and it noted
the prisoners "at no relevant time were within any territory over
which the United States is sovereign, and [that] the scenes of their
offense, their capture, their trial and their punishment were all
beyond the territorial jurisdiction of any court of the United
States." 339 U.S., at 778, 70 S.Ct. 936. The Government seizes upon
this language as proof positive that the Eisentrager Court adopted a
formalistic, sovereignty-based test for determining the reach of the
Suspension Clause. See Brief for Respondents 18-20. We reject this
reading for three reasons.
First, we do not accept the idea that the above-quoted passage from
Eisentrager is the only authoritative language in the opinion and that
all the rest is dicta. The Court's further determinations, based on
practical considerations, were integral to Part II of its opinion and
came before the decision announced its holding. See 339 U.S., at 781,
70 S.Ct. 936.
Second, because the United States lacked both de jure sovereignty and
plenary control over Landsberg Prison, see infra, at 2258-2259, it is
far from clear that the Eisentrager Court used the term sovereignty
only in the narrow technical sense and not to connote the degree of
control the military asserted over the facility. See supra, at
2250-2251. The Justices who decided Eisentrager would have understood
sovereignty as a multifaceted concept. See Black's Law Dictionary 1568
(4th ed.1951) (defining "sovereignty" as "[t]he supreme, absolute, and
uncontrollable power by which any independent state is governed"; "the
international independence of a state, combined with the right and
power of regulating its internal affairs without foreign dictation";
and "[t]he power to do everything in a state without accountability");
Ballentine's Law Dictionary with Pronunciations 1216 (2d ed.1948)
(defining "sovereignty" as "[t]hat public authority which commands in
civil society, and orders and directs what each citizen is 2258*2258
to perform to obtain the end of its institution"). In its principal
brief in Eisentrager, the Government advocated a bright-line test for
determining the scope of the writ, similar to the one it advocates in
these cases. See Brief for Petitioners in Johnson v. Eisentrager, O.T.
1949, No. 306, pp. 74-75. Yet the Court mentioned the concept of
territorial sovereignty only twice in its opinion. See Eisentrager,
supra, at 778, 780, 70 S.Ct. 936. That the Court devoted a significant
portion of Part II to a discussion of practical barriers to the
running of the writ suggests that the Court was not concerned
exclusively with the formal legal status of Landsberg Prison but also
with the objective degree of control the United States asserted over
it. Even if we assume the Eisentrager Court considered the United
States' lack of formal legal sovereignty over Landsberg Prison as the
decisive factor in that case, its holding is not inconsistent with a
functional approach to questions of extraterritoriality. The formal
legal status of a given territory affects, at least to some extent,
the political branches' control over that territory. De jure
sovereignty is a factor that bears upon which constitutional
guarantees apply there.
Third, if the Government's reading of Eisentrager were correct, the
opinion would have marked not only a change in, but a complete
repudiation of, the Insular Cases' (and later Reid's) functional
approach to questions of extraterritoriality. We cannot accept the
Government's view. Nothing in Eisentrager says that de jure
sovereignty is or has ever been the only relevant consideration in
determining the geographic reach of the Constitution or of habeas
corpus. Were that the case, there would be considerable tension
between Eisentrager, on the one hand, and the Insular Cases and Reid,
on the other. Our cases need not be read to conflict in this manner. A
constricted reading of Eisentrager overlooks what we see as a common
thread uniting the Insular Cases, Eisentrager, and Reid: the idea that
questions of extraterritoriality turn on objective factors and
practical concerns, not formalism.
B
The Government's formal sovereignty-based test raises troubling
separation-of-powers concerns as well. The political history of
Guantanamo illustrates the deficiencies of this approach. The United
States has maintained complete and uninterrupted control of the bay
for over 100 years. At the close of the Spanish-American War, Spain
ceded control over the entire island of Cuba to the United States and
specifically "relinquishe[d] all claim[s] of sovereignty ... and
title." See Treaty of Paris, Dec. 10, 1898, U.S.-Spain, Art. I, 30
Stat. 1755, T.S. No. 343. From the date the treaty with Spain was
signed until the Cuban Republic was established on May 20, 1902, the
United States governed the territory "in trust" for the benefit of the
Cuban people. Neely v. Henkel, 180 U.S. 109, 120, 21 S.Ct. 302, 45
L.Ed. 448 (1901); H. Thomas, Cuba or The Pursuit of Freedom 436, 460
(1998). And although it recognized, by entering into the 1903 Lease
Agreement, that Cuba retained "ultimate sovereignty" over Guantanamo,
the United States continued to maintain the same plenary control it
had enjoyed since 1898. Yet the Government's view is that the
Constitution had no effect there, at least as to noncitizens, because
the United States disclaimed sovereignty in the formal sense of the
term. The necessary implication of the argument is that by
surrendering formal sovereignty over any unincorporated territory to a
third party, while at the same time entering into a lease that grants
total control over the territory back to the United States, it would
be possible for the 2259*2259 political branches to govern without
legal constraint.
Our basic charter cannot be contracted away like this. The
Constitution grants Congress and the President the power to acquire,
dispose of, and govern territory, not the power to decide when and
where its terms apply. Even when the United States acts outside its
borders, its powers are not "absolute and unlimited" but are subject
"to such restrictions as are expressed in the Constitution." Murphy v.
Ramsey, 114 U.S. 15, 44, 5 S.Ct. 747, 29 L.Ed. 47 (1885). Abstaining
from questions involving formal sovereignty and territorial governance
is one thing. To hold the political branches have the power to switch
the Constitution on or off at will is quite another. The former
position reflects this Court's recognition that certain matters
requiring political judgments are best left to the political branches.
The latter would permit a striking anomaly in our tripartite system of
government, leading to a regime in which Congress and the President,
not this Court, say "what the law is." Marbury v. Madison, 1 Cranch
137, 177, 2 L.Ed. 60 (1803).
These concerns have particular bearing upon the Suspension Clause
question in the cases now before us, for the writ of habeas corpus is
itself an indispensable mechanism for monitoring the separation of
powers. The test for determining the scope of this provision must not
be subject to manipulation by those whose power it is designed to
restrain.
C
As we recognized in Rasul, 542 U.S., at 476, 124 S.Ct. 2686; id., at
487, 124 S.Ct. 2686 (KENNEDY, J., concurring in judgment), the
outlines of a framework for determining the reach of the Suspension
Clause are suggested by the factors the Court relied upon in
Eisentrager. In addition to the practical concerns discussed above,
the Eisentrager Court found relevant that each petitioner:
"(a) is an enemy alien; (b) has never been or resided in the United
States; (c) was captured outside of our territory and there held in
military custody as a prisoner of war; (d) was tried and convicted by
a Military Commission sitting outside the United States; (e) for
offenses against laws of war committed outside the United States; (f)
and is at all times imprisoned outside the United States." 339 U.S.,
at 777, 70 S.Ct. 936.
Based on this language from Eisentrager, and the reasoning in our
other extraterritoriality opinions, we conclude that at least three
factors are relevant in determining the reach of the Suspension
Clause: (1) the citizenship and status of the detainee and the
adequacy of the process through which that status determination was
made; (2) the nature of the sites where apprehension and then
detention took place; and (3) the practical obstacles inherent in
resolving the prisoner's entitlement to the writ.
Applying this framework, we note at the onset that the status of these
detainees is a matter of dispute. The petitioners, like those in
Eisentrager, are not American citizens. But the petitioners in
Eisentrager did not contest, it seems, the Court's assertion that they
were "enemy alien[s]." Ibid. In the instant cases, by contrast, the
detainees deny they are enemy combatants. They have been afforded some
process in CSRT proceedings to determine their status; but, unlike in
Eisentrager, supra, at 766, 70 S.Ct. 936, there has been no trial by
military commission for violations of the laws of war. The difference
is not trivial. The records from the Eisentrager trials suggest that,
well before the petitioners brought their case to this Court, there
had been a rigorous adversarial process to test the legality of their
2260*2260 detention. The Eisentrager petitioners were charged by a
bill of particulars that made detailed factual allegations against
them. See 14 United Nations War Crimes Commission, Law Reports of
Trials of War Criminals 8-10 (1949) (reprint 1997). To rebut the
accusations, they were entitled to representation by counsel, allowed
to introduce evidence on their own behalf, and permitted to cross-
examine the prosecution's witnesses. See Memorandum by Command of Lt.
Gen. Wedemeyer, Jan. 21, 1946 (establishing "Regulations Governing the
Trial of War Criminals" in the China Theater), in Tr. of Record in
Johnson v. Eisentrager, O.T.1949, No. 306, pp. 34-40.
In comparison the procedural protections afforded to the detainees in
the CSRT hearings are far more limited, and, we conclude, fall well
short of the procedures and adversarial mechanisms that would
eliminate the need for habeas corpus review. Although the detainee is
assigned a "Personal Representative" to assist him during CSRT
proceedings, the Secretary of the Navy's memorandum makes clear that
person is not the detainee's lawyer or even his "advocate." See App.
to Pet. for Cert. in No. 06-1196, at 155, 172. The Government's
evidence is accorded a presumption of validity. Id., at 159. The
detainee is allowed to present "reasonably available" evidence, id.,
at 155, but his ability to rebut the Government's evidence against him
is limited by the circumstances of his confinement and his lack of
counsel at this stage. And although the detainee can seek review of
his status determination in the Court of Appeals, that review process
cannot cure all defects in the earlier proceedings. See Part V, infra.
As to the second factor relevant to this analysis, the detainees here
are similarly situated to the Eisentrager petitioners in that the
sites of their apprehension and detention are technically outside the
sovereign territory of the United States. As noted earlier, this is a
factor that weighs against finding they have rights under the
Suspension Clause. But there are critical differences between
Landsberg Prison, circa 1950, and the United States Naval Station at
Guantanamo Bay in 2008. Unlike its present control over the naval
station, the United States' control over the prison in Germany was
neither absolute nor indefinite. Like all parts of occupied Germany,
the prison was under the jurisdiction of the combined Allied Forces.
See Declaration Regarding the Defeat of Germany and the Assumption of
Supreme Authority with Respect to Germany, June 5, 1945, U.S.-U.S.S.
R.-U. K.-Fr., 60 Stat. 1649, T.I.A.S. No. 1520. The United States was
therefore answerable to its Allies for all activities occurring there.
Cf. Hirota v. MacArthur, 338 U.S. 197, 198, 69 S.Ct. 197, 93 L.Ed.
1902 (1948) (per curiam) (military tribunal set up by Gen. Douglas
MacArthur, acting as "the agent of the Allied Powers," was not a
"tribunal of the United States"). The Allies had not planned a long-
term occupation of Germany, nor did they intend to displace all German
institutions even during the period of occupation. See Agreements
Respecting Basic Principles for Merger of the Three Western German
Zones of Occupation, and Other Matters, Apr. 8, 1949, U.S.-U. K.-Fr.,
Art. 1, 63 Stat. 2819, T.I.A.S. No.2066 (establishing a governing
framework "[d]uring the period in which it is necessary that the
occupation continue" and expressing the desire "that the German people
shall enjoy self-government to the maximum possible degree consistent
with such occupation"). The Court's holding in Eisentrager was thus
consistent with the Insular Cases, where it had held there was no need
to extend full constitutional protections to territories the United
2261*2261 States did not intend to govern indefinitely. Guantanamo
Bay, on the other hand, is no transient possession. In every practical
sense Guantanamo is not abroad; it is within the constant jurisdiction
of the United States. See Rasul, 542 U.S., at 480, 124 S.Ct. 2686;
id., at 487, 124 S.Ct. 2686 (KENNEDY, J., concurring in judgment).
As to the third factor, we recognize, as the Court did in Eisentrager,
that there are costs to holding the Suspension Clause applicable in a
case of military detention abroad. Habeas corpus proceedings may
require expenditure of funds by the Government and may divert the
attention of military personnel from other pressing tasks. While we
are sensitive to these concerns, we do not find them dispositive.
Compliance with any judicial process requires some incremental
expenditure of resources. Yet civilian courts and the Armed Forces
have functioned along side each other at various points in our
history. See, e.g., Duncan v. Kahanamoku, 327 U.S. 304, 66 S.Ct. 606,
90 L.Ed. 688 (1946); Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281
(1866). The Government presents no credible arguments that the
military mission at Guantanamo would be compromised if habeas corpus
courts had jurisdiction to hear the detainees' claims. And in light of
the plenary control the United States asserts over the base, none are
apparent to us.
The situation in Eisentrager was far different, given the historical
context and nature of the military's mission in post-War Germany. When
hostilities in the European Theater came to an end, the United States
became responsible for an occupation zone encompassing over 57,000
square miles with a population of 18 million. See Letter from
President Truman to Secretary of State Byrnes, (Nov. 28, 1945), in 8
Documents on American Foreign Relations 257 (R. Dennett & R. Turner
eds.1948); Pollock, A Territorial Pattern for the Military Occupation
of Germany, 38 Am. Pol. Sci. Rev. 970, 975 (1944). In addition to
supervising massive reconstruction and aid efforts the American forces
stationed in Germany faced potential security threats from a defeated
enemy. In retrospect the post-War occupation may seem uneventful. But
at the time Eisentrager was decided, the Court was right to be
concerned about judicial interference with the military's efforts to
contain "enemy elements, guerilla fighters, and `were-wolves.'" 339
U.S., at 784, 70 S.Ct. 936.
Similar threats are not apparent here; nor does the Government argue
that they are. The United States Naval Station at Guantanamo Bay
consists of 45 square miles of land and water. The base has been used,
at various points, to house migrants and refugees temporarily. At
present, however, other than the detainees themselves, the only long-
term residents are American military personnel, their families, and a
small number of workers. See History of Guantanamo Bay online at
https://www.cnic. navy.mil/Guantanamo/AboutGTMO/gtmohistorygeneral/
gtmohistgeneral. The detainees have been deemed enemies of the United
States. At present, dangerous as they may be if released, they are
contained in a secure prison facility located on an isolated and
heavily fortified military base.
There is no indication, furthermore, that adjudicating a habeas corpus
petition would cause friction with the host government. No Cuban court
has jurisdiction over American military personnel at Guantanamo or the
enemy combatants detained there. While obligated to abide by the terms
of the lease, the United States is, for all practical purposes,
answerable to no other sovereign for its acts on the base. Were that
not the case, or if the detention 2262*2262 facility were located in
an active theater of war, arguments that issuing the writ would be
"impracticable or anomalous" would have more weight. See Reid, 354
U.S., at 74, 77 S.Ct. 1222 (Harlan, J., concurring in result). Under
the facts presented here, however, there are few practical barriers to
the running of the writ. To the extent barriers arise, habeas corpus
procedures likely can be modified to address them. See Part VI-B,
infra.
It is true that before today the Court has never held that noncitizens
detained by our Government in territory over which another country
maintains de jure sovereignty have any rights under our Constitution.
But the cases before us lack any precise historical parallel. They
involve individuals detained by executive order for the duration of a
conflict that, if measured from September 11, 2001, to the present, is
already among the longest wars in American history. See Oxford
Companion to American Military History 849 (1999). The detainees,
moreover, are held in a territory that, while technically not part of
the United States, is under the complete and total control of our
Government. Under these circumstances the lack of a precedent on point
is no barrier to our holding.
We hold that Art. I, § 9, cl. 2, of the Constitution has full effect
at Guantanamo Bay. If the privilege of habeas corpus is to be denied
to the detainees now before us, Congress must act in accordance with
the requirements of the Suspension Clause. Cf. Hamdi, 542 U.S., at
564, 124 S.Ct. 2633 (SCALIA, J., dissenting) ("[I]ndefinite
imprisonment on reasonable suspicion is not an available option of
treatment for those accused of aiding the enemy, absent a suspension
of the writ"). This Court may not impose a de facto suspension by
abstaining from these controversies. See Hamdan, 548 U.S., at 585, n.
16, 126 S.Ct. 2749 ("[A]bstention is not appropriate in cases ... in
which the legal challenge `turn[s] on the status of the persons as to
whom the military asserted its power'" (quoting Schlesinger v.
Councilman, 420 U.S. 738, 759, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975))).
The MCA does not purport to be a formal suspension of the writ; and
the Government, in its submissions to us, has not argued that it is.
Petitioners, therefore, are entitled to the privilege of habeas corpus
to challenge the legality of their detention.
V
In light of this holding the question becomes whether the statute
stripping jurisdiction to issue the writ avoids the Suspension Clause
mandate because Congress has provided adequate substitute procedures
for habeas corpus. The Government submits there has been compliance
with the Suspension Clause because the DTA review process in the Court
of Appeals, see DTA § 1005(e), provides an adequate substitute.
Congress has granted that court jurisdiction to consider
"(i) whether the status determination of the [CSRT] ... was consistent
with the standards and procedures specified by the Secretary of
Defense ... and (ii) to the extent the Constitution and laws of the
United States are applicable, whether the use of such standards and
procedures to make the determination is consistent with the
Constitution and laws of the United States." § 1005(e)(2)(C), 119
Stat. 2742.
The Court of Appeals, having decided that the writ does not run to the
detainees in any event, found it unnecessary to consider whether an
adequate substitute has been provided. In the ordinary course we would
remand to the Court of Appeals to consider this question in the first
instance. See Youakim v. Miller, 425 U.S. 231, 234, 96 S.Ct. 1399, 47
L.Ed.2d 2263*2263 701 (1976) (per curiam). It is well settled,
however, that the Court's practice of declining to address issues left
unresolved in earlier proceedings is not an inflexible rule. Ibid.
Departure from the rule is appropriate in "exceptional" circumstances.
See Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157,
169, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004); Duignan v. United States,
274 U.S. 195, 200, 47 S.Ct. 566, 71 L.Ed. 996 (1927).
The gravity of the separation-of-powers issues raised by these cases
and the fact that these detainees have been denied meaningful access
to a judicial forum for a period of years render these cases
exceptional. The parties before us have addressed the adequacy issue.
While we would have found it informative to consider the reasoning of
the Court of Appeals on this point, we must weigh that against the
harms petitioners may endure from additional delay. And, given there
are few precedents addressing what features an adequate substitute for
habeas corpus must contain, in all likelihood a remand simply would
delay ultimate resolution of the issue by this Court.
We do have the benefit of the Court of Appeals' construction of key
provisions of the DTA. When we granted certiorari in these cases, we
noted "it would be of material assistance to consult any decision" in
the parallel DTA review proceedings pending in the Court of Appeals,
specifically any rulings in the matter of Bismullah v. Gates. 551 U.S.
___, 128 S.Ct. 1345, 170 L.Ed.2d 271 (2007). Although the Court of
Appeals has yet to complete a DTA review proceeding, the three-judge
panel in Bismullah has issued an interim order giving guidance as to
what evidence can be made part of the record on review and what access
the detainees can have to counsel and to classified information. See
501 F.3d 178 (C.A.D.C.) (Bismullah I), reh'g denied, 503 F.3d 137
(C.A.D.C.2007) (Bismullah II). In that matter the full court denied
the Government's motion for rehearing en banc, see Bismullah v. Gates,
514 F.3d 1291 (C.A.D.C.2008) (Bismullah III). The order denying
rehearing was accompanied by five separate statements from members of
the court, which offer differing views as to scope of the judicial
review Congress intended these detainees to have. Ibid.
Under the circumstances we believe the costs of further delay
substantially outweigh any benefits of remanding to the Court of
Appeals to consider the issue it did not address in these cases.
A
Our case law does not contain extensive discussion of standards
defining suspension of the writ or of circumstances under which
suspension has occurred. This simply confirms the care Congress has
taken throughout our Nation's history to preserve the writ and its
function. Indeed, most of the major legislative enactments pertaining
to habeas corpus have acted not to contract the writ's protection but
to expand it or to hasten resolution of prisoners' claims. See, e.g.,
Habeas Corpus Act of 1867, ch. 28, § 1, 14 Stat. 385 (current version
codified at 28 U.S.C. § 2241 (2000 ed. and Supp. V) (extending the
federal writ to state prisoners)); Cf. Harris v. Nelson, 394 U.S. 286,
299-300, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969) (interpreting the All
Writs Act, 28 U.S.C. § 1651, to allow discovery in habeas corpus
proceedings); Peyton v. Rowe, 391 U.S. 54, 64-65, 88 S.Ct. 1549, 20
L.Ed.2d 426 (1968) (interpreting the then-existing version of § 2241
to allow petitioner to proceed with his habeas corpus action, even
though he had not yet begun to serve his sentence).
There are exceptions, of course. Title I of the Antiterrorism and
Effective Death 2264*2264 Penalty Act of 1996 (AEDPA), § 106, 110
Stat. 1220, contains certain gatekeeping provisions that restrict a
prisoner's ability to bring new and repetitive claims in "second or
successive" habeas corpus actions. We upheld these provisions against
a Suspension Clause challenge in Felker v. Turpin, 518 U.S. 651,
662-664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). The provisions at
issue in Felker, however, did not constitute a substantial departure
from common-law habeas procedures. The provisions, for the most part,
codified the longstanding abuse-of-the-writ doctrine. Id., at 664, 116
S.Ct. 2333; see also McCleskey v. Zant, 499 U.S. 467, 489, 111 S.Ct.
1454, 113 L.Ed.2d 517 (1991). AEDPA applies, moreover, to federal,
postconviction review after criminal proceedings in state court have
taken place. As of this point, cases discussing the implementation of
that statute give little helpful instruction (save perhaps by
contrast) for the instant cases, where no trial has been held.
The two leading cases addressing habeas substitutes, Swain v.
Pressley, 430 U.S. 372, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977), and
United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232
(1952), likewise provide little guidance here. The statutes at issue
were attempts to streamline habeas corpus relief, not to cut it back.
The statute discussed in Hayman was 28 U.S.C. § 2255. It replaced
traditional habeas corpus for federal prisoners (at least in the first
instance) with a process that allowed the prisoner to file a motion
with the sentencing court on the ground that his sentence was, inter
alia, "`imposed in violation of the Constitution or laws of the United
States.'" 342 U.S., at 207, n. 1, 72 S.Ct. 263. The purpose and effect
of the statute was not to restrict access to the writ but to make
postconviction proceedings more efficient. It directed claims not to
the court that had territorial jurisdiction over the place of the
petitioner's confinement but to the sentencing court, a court already
familiar with the facts of the case. As the Hayman Court explained
"Section 2255 ... was passed at the instance of the Judicial
Conference to meet practical difficulties that had arisen in
administering the habeas corpus jurisdiction of the federal courts.
Nowhere in the history of Section 2255 do we find any purpose to
impinge upon prisoners' rights of collateral attack upon their
convictions. On the contrary, the sole purpose was to minimize the
difficulties encountered in habeas corpus hearings by affording the
same rights in another and more convenient forum." Id., at 219, 72
S.Ct. 263.
See also Hill v. United States, 368 U.S. 424, 427, 428, and n. 5, 82
S.Ct. 468, 7 L.Ed.2d 417 (1962) (noting that § 2255 provides a remedy
in the sentencing court that is "exactly commensurate" with the pre-
existing federal habeas corpus remedy).
The statute in Swain, D.C.Code Ann. § 23-110(g) (1973), applied to
prisoners in custody under sentence of the Superior Court of the
District of Columbia. Before enactment of the District of Columbia
Court Reform and Criminal Procedure Act of 1970 (D.C. Court Reform
Act), 84 Stat. 473, those prisoners could file habeas petitions in the
United States District Court for the District of Columbia. The Act,
which was patterned on § 2255, substituted a new collateral process in
the Superior Court for the pre-existing habeas corpus procedure in the
District Court. See Swain, 430 U.S., at 374-378, 97 S.Ct. 1224. But,
again, the purpose and effect of the statute was to expedite
consideration of the prisoner's claims, not to delay or frustrate it.
See id., at 375, n. 4, 97 S.Ct. 1224 (noting that the purpose of the
D.C. Court 2265*2265 Reform Act was to "alleviate" administrative
burdens on the District Court).
That the statutes in Hayman and Swain were designed to strengthen,
rather than dilute, the writ's protections was evident, furthermore,
from this significant fact: Neither statute eliminated traditional
habeas corpus relief. In both cases the statute at issue had a saving
clause, providing that a writ of habeas corpus would be available if
the alternative process proved inadequate or ineffective. Swain,
supra, at 381, 97 S.Ct. 1224; Hayman, supra, at 223, 72 S.Ct. 263. The
Court placed explicit reliance upon these provisions in upholding the
statutes against constitutional challenges. See Swain, supra, at 381,
97 S.Ct. 1224 (noting that the provision "avoid[ed] any serious
question about the constitutionality of the statute"); Hayman, supra,
at 223, 72 S.Ct. 263 (noting that, because habeas remained available
as a last resort, it was unnecessary to "reach constitutional
questions").
Unlike in Hayman and Swain, here we confront statutes, the DTA and the
MCA, that were intended to circumscribe habeas review. Congress'
purpose is evident not only from the unequivocal nature of MCA § 7's
jurisdiction-stripping language, 28 U.S.C.A. § 2241(e)(1) (Supp. 2007)
("No court, justice, or judge shall have jurisdiction to hear or
consider an application for a writ of habeas corpus..."), but also
from a comparison of the DTA to the statutes at issue in Hayman and
Swain. When interpreting a statute, we examine related provisions in
other parts of the U.S.Code. See, e.g., West Virginia Univ. Hospitals,
Inc. v. Casey, 499 U.S. 83, 88-97, 111 S.Ct. 1138, 113 L.Ed.2d 68
(1991); Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515
U.S. 687, 717-718, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (SCALIA, J.,
dissenting); see generally W. Eskridge, P. Frickey, & E. Garrett,
Cases and Materials on Legislation: Statutes and the Creation of
Public Policy 1039 (3d ed.2001). When Congress has intended to replace
traditional habeas corpus with habeas-like substitutes, as was the
case in Hayman and Swain, it has granted to the courts broad remedial
powers to secure the historic office of the writ. In the § 2255
context, for example, Congress has granted to the reviewing court
power to "determine the issues and make findings of fact and
conclusions of law" with respect to whether "the judgment [of
conviction] was rendered without jurisdiction, or ... the sentence
imposed was not authorized by law or otherwise open to collateral
attack." 28 U.S.C.A. § 2255(b) (Supp.2008). The D.C. Court Reform Act,
the statute upheld in Swain, contained a similar provision. §
23-110(g), 84 Stat. 609.
In contrast the DTA's jurisdictional grant is quite limited. The Court
of Appeals has jurisdiction not to inquire into the legality of the
detention generally but only to assess whether the CSRT complied with
the "standards and procedures specified by the Secretary of Defense"
and whether those standards and procedures are lawful. DTA § 1005(e)(2)
(C), 119 Stat. 2742. If Congress had envisioned DTA review as
coextensive with traditional habeas corpus, it would not have drafted
the statute in this manner. Instead, it would have used language
similar to what it used in the statutes at issue in Hayman and Swain.
Cf. Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.
2d 17 (1983) ("`[W]here Congress includes particular language in one
section of a statute but omits it in another section of the same Act,
it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion'" (quoting United
States v. Wong Kim Bo, 472 F.2d 720, 722 (C.A.5 1972))). Unlike in
Hayman and Swain, moreover, there has 2266*2266 been no effort to
preserve habeas corpus review as an avenue of last resort. No saving
clause exists in either the MCA or the DTA. And MCA § 7 eliminates
habeas review for these petitioners.
The differences between the DTA and the habeas statute that would
govern in MCA § 7's absence, 28 U.S.C. § 2241 (2000 ed. and Supp. V),
are likewise telling. In § 2241 (2000 ed.) Congress confirmed the
authority of "any justice" or "circuit judge" to issue the writ. Cf.
Felker, 518 U.S., at 660-661, 116 S.Ct. 2333 (interpreting Title I of
AEDPA to not strip from this Court the power to entertain original
habeas corpus petitions). That statute accommodates the necessity for
factfinding that will arise in some cases by allowing the appellate
judge or Justice to transfer the case to a district court of competent
jurisdiction, whose institutional capacity for factfinding is superior
to his or her own. See 28 U.S.C. § 2241(b). By granting the Court of
Appeals "exclusive" jurisdiction over petitioners' cases, see DTA §
1005(e)(2)(A), 119 Stat. 2742, Congress has foreclosed that option.
This choice indicates Congress intended the Court of Appeals to have a
more limited role in enemy combatant status determinations than a
district court has in habeas corpus proceedings. The DTA should be
interpreted to accord some latitude to the Court of Appeals to fashion
procedures necessary to make its review function a meaningful one,
but, if congressional intent is to be respected, the procedures
adopted cannot be as extensive or as protective of the rights of the
detainees as they would be in a § 2241 proceeding. Otherwise there
would have been no, or very little, purpose for enacting the DTA.
To the extent any doubt remains about Congress' intent, the
legislative history confirms what the plain text strongly suggests: In
passing the DTA Congress did not intend to create a process that
differs from traditional habeas corpus process in name only. It
intended to create a more limited procedure. See, e.g., 151 Cong. Rec.
S14263 (Dec. 21, 2005) (statement of Sen. Graham) (noting that the DTA
"extinguish[es] these habeas and other actions in order to effect a
transfer of jurisdiction over these cases to the DC Circuit Court" and
agreeing that the bill "create[s] in their place a very limited
judicial review of certain military administrative decisions"); id.,
at S14268 (statement of Sen. Kyl) ("It is important to note that the
limited judicial review authorized by paragraphs 2 and 3 of subsection
(e) [of DTA § 1005] are not habeas-corpus review. It is a limited
judicial review of its own nature").
It is against this background that we must interpret the DTA and
assess its adequacy as a substitute for habeas corpus. The present
cases thus test the limits of the Suspension Clause in ways that
Hayman and Swain did not.
B
We do not endeavor to offer a comprehensive summary of the requisites
for an adequate substitute for habeas corpus. We do consider it
uncontroversial, however, that the privilege of habeas corpus entitles
the prisoner to a meaningful opportunity to demonstrate that he is
being held pursuant to "the erroneous application or interpretation"
of relevant law. St. Cyr, 533 U.S., at 302, 121 S.Ct. 2271. And the
habeas court must have the power to order the conditional release of
an individual unlawfully detained—though release need not be the
exclusive remedy and is not the appropriate one in every case in which
the writ is granted. See Ex parte Bollman, 4 Cranch 75, 136, 2 L.Ed.
554 (1807) (where imprisonment is unlawful, the court "can only direct
[the prisoner] to be discharged"); R. Hurd, Treatise on the 2267*2267
Right of Personal Liberty, and On the Writ of Habeas Corpus and the
Practice Connected with It: With a View of the Law of Extradition of
Fugitives 222 (2d ed. 1876) ("It cannot be denied where `a probable
ground is shown that the party is imprisoned without just cause, and
therefore, hath a right to be delivered,' for the writ then becomes a
`writ of right, which may not be denied but ought to be granted to
every man that is committed or detained in prison or otherwise
restrained of his liberty'"). But see Chessman v. Teets, 354 U.S. 156,
165-166, 77 S.Ct. 1127, 1 L.Ed.2d 1253 (1957) (remanding in a habeas
case for retrial within a "reasonable time"). These are the easily
identified attributes of any constitutionally adequate habeas corpus
proceeding. But, depending on the circumstances, more may be required.
Indeed, common-law habeas corpus was, above all, an adaptable remedy.
Its precise application and scope changed depending upon the
circumstances. See 3 Blackstone *131 (describing habeas as "the great
and efficacious writ, in all manner of illegal confinement"); see also
Schlup v. Delo, 513 U.S. 298, 319, 115 S.Ct. 851, 130 L.Ed.2d 808
(1995) (Habeas "is, at its core, an equitable remedy"); Jones v.
Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963)
(Habeas is not "a static, narrow, formalistic remedy; its scope has
grown to achieve its grand purpose"). It appears the common-law habeas
court's role was most extensive in cases of pretrial and noncriminal
detention, where there had been little or no previous judicial review
of the cause for detention. Notably, the black-letter rule that
prisoners could not controvert facts in the jailer's return was not
followed (or at least not with consistency) in such cases. Hurd,
supra, at 271 (noting that the general rule was "subject to
exceptions" including cases of bail and impressment); Oakes, Legal
History in the High Court—Habeas Corpus, 64 Mich. L.Rev. 451, 457
(1966) ("[W]hen a prisoner applied for habeas corpus before indictment
or trial, some courts examined the written depositions on which he had
been arrested or committed, and others even heard oral testimony to
determine whether the evidence was sufficient to justifying holding
him for trial" (footnotes omitted)); Fallon & Meltzer, Habeas Corpus
Jurisdiction, Substantive Rights, and the War on Terror, 120 Harv.
L.Rev.2029, 2102 (2007) ("[T]he early practice was not consistent:
courts occasionally permitted factual inquiries when no other
opportunity for judicial review existed").
There is evidence from 19th-century American sources indicating that,
even in States that accorded strong res judicata effect to prior
adjudications, habeas courts in this country routinely allowed
prisoners to introduce exculpatory evidence that was either unknown or
previously unavailable to the prisoner. See, e.g., Ex parte Pattison,
56 Miss. 161, 164 (1878) (noting that "[w]hile the former adjudication
must be considered as conclusive on the testimony then adduced" "newly
developed exculpatory evidence ... may authorize the admission to
bail"); Ex parte Foster, 5 Tex. Ct.App. 625, 644 (1879) (construing
the State's habeas statute to allow for the introduction of new
evidence "where important testimony has been obtained, which, though
not newly discovered, or which, though known to [the petitioner], it
was not in his power to produce at the former hearing; [and] where the
evidence was newly discovered"); People v. Martin, 7 N.Y. Leg. Obs.
49, 56 (1848) ("If in custody on criminal process before indictment,
the prisoner has an absolute right to demand that the original
depositions be looked into to see whether any crime is in fact imputed
to him, and the inquiry will by no means be confined to the return.
2268*2268 Facts out of the return may be gone into to ascertain
whether the committing magistrate may not have arrived at an illogical
conclusion upon the evidence given before him ..."); see generally (W.
Church, Treatise on the Writ of Habeas Corpus § 182, p. 235 1886)
(hereinafter Church) (noting that habeas courts would "hear evidence
anew if justice require it"). Justice McLean, on Circuit in 1855,
expressed his view that a habeas court should consider a prior
judgment conclusive "where there was clearly jurisdiction and a full
and fair hearing; but that it might not be so considered when any of
these requisites were wanting." Ex parte Robinson, 20 F. Cas. 969,
971, (No. 11,935) (CC Ohio 1855). To illustrate the circumstances in
which the prior adjudication did not bind the habeas court, he gave
the example of a case in which "[s]everal unimpeached witnesses"
provided new evidence to exculpate the prisoner. Ibid.
The idea that the necessary scope of habeas review in part depends
upon the rigor of any earlier proceedings accords with our test for
procedural adequacy in the due process context. See Mathews v.
Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)
(noting that the Due Process Clause requires an assessment of, inter
alia, "the risk of an erroneous deprivation of [a liberty interest;]
and the probable value, if any, of additional or substitute procedural
safeguards"). This principle has an established foundation in habeas
corpus jurisprudence as well, as Chief Justice Marshall's opinion in
Ex parte Watkins, 3 Pet. 193, 7 L.Ed. 650 (1830), demonstrates. Like
the petitioner in Swain, Watkins sought a writ of habeas corpus after
being imprisoned pursuant to a judgment of a District of Columbia
court. In holding that the judgment stood on "high ground," 3 Pet., at
209, 7 L.Ed. 650, the Chief Justice emphasized the character of the
court that rendered the original judgment, noting it was a "court of
record, having general jurisdiction over criminal cases." Id., at 203.
In contrast to "inferior" tribunals of limited jurisdiction, ibid.,
courts of record had broad remedial powers, which gave the habeas
court greater confidence in the judgment's validity. See generally
Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens,
98 Colum. L.Rev. 961, 982-983 (1998).
Accordingly, where relief is sought from a sentence that resulted from
the judgment of a court of record, as was the case in Watkins and
indeed in most federal habeas cases, considerable deference is owed to
the court that ordered confinement. See Brown v. Allen, 344 U.S. 443,
506, 73 S.Ct. 397, 97 L.Ed. 469 (1953) (opinion of Frankfurter, J.)
(noting that a federal habeas court should accept a state court's
factual findings unless "a vital flaw be found in the process of
ascertaining such facts in the State court"). Likewise in those cases
the prisoner should exhaust adequate alternative remedies before
filing for the writ in federal court. See Ex parte Royall, 117 U.S.
241, 251-252, 6 S.Ct. 734, 29 L.Ed. 868 (1886) (requiring exhaustion
of state collateral processes). Both aspects of federal habeas corpus
review are justified because it can be assumed that, in the usual
course, a court of record provides defendants with a fair, adversary
proceeding. In cases involving state convictions this framework also
respects federalism; and in federal cases it has added justification
because the prisoner already has had a chance to seek review of his
conviction in a federal forum through a direct appeal. The present
cases fall outside these categories, however; for here the detention
is by executive order.
2269*2269 Where a person is detained by executive order, rather than,
say, after being tried and convicted in a court, the need for
collateral review is most pressing. A criminal conviction in the usual
course occurs after a judicial hearing before a tribunal disinterested
in the outcome and committed to procedures designed to ensure its own
independence. These dynamics are not inherent in executive detention
orders or executive review procedures. In this context the need for
habeas corpus is more urgent. The intended duration of the detention
and the reasons for it bear upon the precise scope of the inquiry.
Habeas corpus proceedings need not resemble a criminal trial, even
when the detention is by executive order. But the writ must be
effective. The habeas court must have sufficient authority to conduct
a meaningful review of both the cause for detention and the
Executive's power to detain.
To determine the necessary scope of habeas corpus review, therefore,
we must assess the CSRT process, the mechanism through which
petitioners' designation as enemy combatants became final. Whether one
characterizes the CSRT process as direct review of the Executive's
battlefield determination that the detainee is an enemy combatant—as
the parties have and as we do—or as the first step in the collateral
review of a battlefield determination makes no difference in a proper
analysis of whether the procedures Congress put in place are an
adequate substitute for habeas corpus. What matters is the sum total
of procedural protections afforded to the detainee at all stages,
direct and collateral.
Petitioners identify what they see as myriad deficiencies in the
CSRTs. The most relevant for our purposes are the constraints upon the
detainee's ability to rebut the factual basis for the Government's
assertion that he is an enemy combatant. As already noted, see Part IV-
C, supra, at the CSRT stage the detainee has limited means to find or
present evidence to challenge the Government's case against him. He
does not have the assistance of counsel and may not be aware of the
most critical allegations that the Government relied upon to order his
detention. See App. to Pet. for Cert. in No. 06-1196, at 156, ¶ F(8)
(noting that the detainee can access only the "unclassified portion of
the Government Information"). The detainee can confront witnesses that
testify during the CSRT proceedings. Id., at 144, ¶ g (8). But given
that there are in effect no limits on the admission of hearsay evidence
—the only requirement is that the tribunal deem the evidence "relevant
and helpful," ibid., ¶ g (9)—the detainee's opportunity to question
witnesses is likely to be more theoretical than real.
The Government defends the CSRT process, arguing that it was designed
to conform to the procedures suggested by the plurality in Hamdi. See
542 U.S., at 538, 124 S.Ct. 2633. Setting aside the fact that the
relevant language in Hamdi did not garner a majority of the Court, it
does not control the matter at hand. None of the parties in Hamdi
argued there had been a suspension of the writ. Nor could they. The §
2241 habeas corpus process remained in place, id., at 525, 124 S.Ct.
2633. Accordingly, the plurality concentrated on whether the Executive
had the authority to detain and, if so, what rights the detainee had
under the Due Process Clause. True, there are places in the Hamdi
plurality opinion where it is difficult to tell where its
extrapolation of § 2241 ends and its analysis of the petitioner's Due
Process rights begins. But the Court had no occasion to define the
necessary scope of habeas review, for Suspension Clause purposes, in
the context of enemy combatant detentions. The closest the plurality
came to doing so was in discussing whether, in 2270*2270 light of
separation-of-powers concerns, § 2241 should be construed to forbid
the District Court from inquiring beyond the affidavit Hamdi's
custodian provided in answer to the detainee's habeas petition. The
plurality answered this question with an emphatic "no." Id., at 527,
124 S.Ct. 2633 (labeling this argument as "extreme"); id., at 535-536,
124 S.Ct. 2633.
Even if we were to assume that the CSRTs satisfy due process
standards, it would not end our inquiry. Habeas corpus is a collateral
process that exists, in Justice Holmes' words, to "cu[t] through all
forms and g[o] to the very tissue of the structure. It comes in from
the outside, not in subordination to the proceedings, and although
every form may have been preserved opens the inquiry whether they have
been more than an empty shell." Frank v. Mangum, 237 U.S. 309, 346, 35
S.Ct. 582, 59 L.Ed. 969 (1915) (dissenting opinion). Even when the
procedures authorizing detention are structurally sound, the
Suspension Clause remains applicable and the writ relevant. See 2
Chambers, Course of Lectures on English Law 1767-1773, at 6 ("Liberty
may be violated either by arbitrary imprisonment without law or the
appearance of law, or by a lawful magistrate for an unlawful reason").
This is so, as Hayman and Swain make clear, even where the prisoner is
detained after a criminal trial conducted in full accordance with the
protections of the Bill of Rights. Were this not the case, there would
have been no reason for the Court to inquire into the adequacy of
substitute habeas procedures in Hayman and Swain. That the prisoners
were detained pursuant to the most rigorous proceedings imaginable, a
full criminal trial, would have been enough to render any habeas
substitute acceptable per se.
Although we make no judgment as to whether the CSRTs, as currently
constituted, satisfy due process standards, we agree with petitioners
that, even when all the parties involved in this process act with
diligence and in good faith, there is considerable risk of error in
the tribunal's findings of fact. This is a risk inherent in any
process that, in the words of the former Chief Judge of the Court of
Appeals, is "closed and accusatorial." See Bismullah III, 514 F.3d, at
1296 (Ginsburg, C. J., concurring in denial of rehearing en banc). And
given that the consequence of error may be detention of persons for
the duration of hostilities that may last a generation or more, this
is a risk too significant to ignore.
For the writ of habeas corpus, or its substitute, to function as an
effective and proper remedy in this context, the court that conducts
the habeas proceeding must have the means to correct errors that
occurred during the CSRT proceedings. This includes some authority to
assess the sufficiency of the Government's evidence against the
detainee. It also must have the authority to admit and consider
relevant exculpatory evidence that was not introduced during the
earlier proceeding. Federal habeas petitioners long have had the means
to supplement the record on review, even in the postconviction habeas
setting. See Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 9 L.Ed.
2d 770 (1963), overruled in part by Keeney v. Tamayo-Reyes, 504 U.S.
1, 5, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). Here that opportunity is
constitutionally required.
Consistent with the historic function and province of the writ, habeas
corpus review may be more circumscribed if the underlying detention
proceedings are more thorough than they were here. In two habeas cases
involving enemy aliens tried for war crimes, In re Yamashita, 327 U.S.
1, 66 S.Ct. 340, 90 L.Ed. 499 (1946), and Ex parte Quirin, 317 U.S. 1,
63 S.Ct. 2271*2271 2, 87 L.Ed. 3 (1942), for example, this Court
limited its review to determining whether the Executive had legal
authority to try the petitioners by military commission. See
Yamashita, supra, at 8, 66 S.Ct. 340 ("[O]n application for habeas
corpus we are not concerned with the guilt or innocence of the
petitioners. We consider here only the lawful power of the commission
to try the petitioner for the offense charged"); Quirin, supra, at 25,
63 S.Ct. 2 ("We are not here concerned with any question of the guilt
or innocence of petitioners"). Military courts are not courts of
record. See Watkins, 3 Pet., at 209; Church 513. And the procedures
used to try General Yamashita have been sharply criticized by Members
of this Court. See Hamdan, 548 U.S., at 617, 126 S.Ct. 2749;
Yamashita, supra, at 41-81, 66 S.Ct. 340 (Rutledge, J., dissenting).
We need not revisit these cases, however. For on their own terms, the
proceedings in Yamashita and Quirin, like those in Eisentrager, had an
adversarial structure that is lacking here. See Yamashita, supra, at
5, 66 S.Ct. 340 (noting that General Yamashita was represented by six
military lawyers and that "[t]hroughout the proceedings ... defense
counsel ... demonstrated their professional skill and resourcefulness
and their proper zeal for the defense with which they were charged");
Quirin, supra, at 23-24, 63 S.Ct. 2; Exec. Order No. 9185, 7 Fed.Reg.
5103 (1942) (appointing counsel to represent the German saboteurs).
The extent of the showing required of the Government in these cases is
a matter to be determined. We need not explore it further at this
stage. We do hold that when the judicial power to issue habeas corpus
properly is invoked the judicial officer must have adequate authority
to make a determination in light of the relevant law and facts and to
formulate and issue appropriate orders for relief, including, if
necessary, an order directing the prisoner's release.
C
We now consider whether the DTA allows the Court of Appeals to conduct
a proceeding meeting these standards. "[W]e are obligated to construe
the statute to avoid [constitutional] problems" if it is "`fairly
possible'" to do so. St. Cyr, 533 U.S., at 299-300, 121 S.Ct. 2271
(quoting Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 76 L.Ed.
598 (1932)). There are limits to this principle, however. The canon of
constitutional avoidance does not supplant traditional modes of
statutory interpretation. See Clark v. Martinez, 543 U.S. 371, 385,
125 S.Ct. 716, 160 L.Ed.2d 734 (2005) ("The canon of constitutional
avoidance comes into play only when, after the application of ordinary
textual analysis, the statute is found to be susceptible of more than
one construction; and the canon functions as a means of choosing
between them"). We cannot ignore the text and purpose of a statute in
order to save it.
The DTA does not explicitly empower the Court of Appeals to order the
applicant in a DTA review proceeding released should the court find
that the standards and procedures used at his CSRT hearing were
insufficient to justify detention. This is troubling. Yet, for present
purposes, we can assume congressional silence permits a
constitutionally required remedy. In that case it would be possible to
hold that a remedy of release is impliedly provided for. The DTA might
be read, furthermore, to allow the petitioners to assert most, if not
all, of the legal claims they seek to advance, including their most
basic claim: that the President has no authority under the AUMF to
detain them indefinitely. (Whether the President has such authority
turns on whether the AUMF 2272*2272 authorizes—and the Constitution
permits—the indefinite detention of "enemy combatants" as the
Department of Defense defines that term. Thus a challenge to the
President's authority to detain is, in essence, a challenge to the
Department's definition of enemy combatant, a "standard" used by the
CSRTs in petitioners' cases.) At oral argument, the Solicitor General
urged us to adopt both these constructions, if doing so would allow
MCA § 7 to remain intact. See Tr. of Oral Arg. 37, 53.
The absence of a release remedy and specific language allowing AUMF
challenges are not the only constitutional infirmities from which the
statute potentially suffers, however. The more difficult question is
whether the DTA permits the Court of Appeals to make requisite
findings of fact. The DTA enables petitioners to request "review" of
their CSRT determination in the Court of Appeals, DTA § 1005(e)(2)(B)
(i), 119 Stat. 2742; but the "Scope of Review" provision confines the
Court of Appeals' role to reviewing whether the CSRT followed the
"standards and procedures" issued by the Department of Defense and
assessing whether those "standards and procedures" are lawful. §
1005(e)(C), ibid. Among these standards is "the requirement that the
conclusion of the Tribunal be supported by a preponderance of the
evidence ... allowing a rebuttable presumption in favor of the
Government's evidence." § 1005(e)(C)(i), ibid.
Assuming the DTA can be construed to allow the Court of Appeals to
review or correct the CSRT's factual determinations, as opposed to
merely certifying that the tribunal applied the correct standard of
proof, we see no way to construe the statute to allow what is also
constitutionally required in this context: an opportunity for the
detainee to present relevant exculpatory evidence that was not made
part of the record in the earlier proceedings.
On its face the statute allows the Court of Appeals to consider no
evidence outside the CSRT record. In the parallel litigation, however,
the Court of Appeals determined that the DTA allows it to order the
production of all "`reasonably available information in the possession
of the U.S. Government bearing on the issue of whether the detainee
meets the criteria to be designated as an enemy combatant,'"
regardless of whether this evidence was put before the CSRT. See
Bismullah I, 501 F.3d, at 180. The Government, see Pet. for Cert.
pending in Gates v. Bismullah, No. 07-1054 (hereinafter Bismullah
Pet.), with support from five members of the Court of Appeals, see
Bismullah III, 514 F.3d, at 1299 (Henderson, J., dissenting from
denial of rehearing en banc); id., at 1302 (opinion of Randolph, J.)
(same); id., at 1306 (opinion of Brown, J.) (same), disagrees with
this interpretation. For present purposes, however, we can assume that
the Court of Appeals was correct that the DTA allows introduction and
consideration of relevant exculpatory evidence that was "reasonably
available" to the Government at the time of the CSRT but not made part
of the record. Even so, the DTA review proceeding falls short of being
a constitutionally adequate substitute, for the detainee still would
have no opportunity to present evidence discovered after the CSRT
proceedings concluded.
Under the DTA the Court of Appeals has the power to review CSRT
determinations by assessing the legality of standards and procedures.
This implies the power to inquire into what happened at the CSRT
hearing and, perhaps, to remedy certain deficiencies in that
proceeding. But should the Court of Appeals determine that the CSRT
followed appropriate and lawful standards and procedures, it will
2273*2273 have reached the limits of its jurisdiction. There is no
language in the DTA that can be construed to allow the Court of
Appeals to admit and consider newly discovered evidence that could not
have been made part of the CSRT record because it was unavailable to
either the Government or the detainee when the CSRT made its findings.
This evidence, however, may be critical to the detainee's argument
that he is not an enemy combatant and there is no cause to detain him.
This is not a remote hypothetical. One of the petitioners, Mohamed
Nechla, requested at his CSRT hearing that the Government contact his
employer. The petitioner claimed the employer would corroborate
Nechla's contention he had no affiliation with al Qaeda. Although the
CSRT determined this testimony would be relevant, it also found the
witness was not reasonably available to testify at the time of the
hearing. Petitioner's counsel, however, now represents the witness is
available to be heard. See Brief for Boumediene Petitioners 5. If a
detainee can present reasonably available evidence demonstrating there
is no basis for his continued detention, he must have the opportunity
to present this evidence to a habeas corpus court. Even under the
Court of Appeals' generous construction of the DTA, however, the
evidence identified by Nechla would be inadmissible in a DTA review
proceeding. The role of an Article III court in the exercise of its
habeas corpus function cannot be circumscribed in this manner.
By foreclosing consideration of evidence not presented or reasonably
available to the detainee at the CSRT proceedings, the DTA
disadvantages the detainee by limiting the scope of collateral review
to a record that may not be accurate or complete. In other contexts,
e.g., in post-trial habeas cases where the prisoner already has had a
full and fair opportunity to develop the factual predicate of his
claims, similar limitations on the scope of habeas review may be
appropriate. See Williams v. Taylor, 529 U.S. 420, 436-437, 120 S.Ct.
1479, 146 L.Ed.2d 435 (2000) (noting that § 2254 "does not equate
prisoners who exercise diligence in pursuing their claims with those
who do not"). In this context, however, where the underlying detention
proceedings lack the necessary adversarial character, the detainee
cannot be held responsible for all deficiencies in the record.
The Government does not make the alternative argument that the DTA
allows for the introduction of previously unavailable exculpatory
evidence on appeal. It does point out, however, that if a detainee
obtains such evidence, he can request that the Deputy Secretary of
Defense convene a new CSRT. See Supp. Brief for Respondents 4.
Whatever the merits of this procedure, it is an insufficient
replacement for the factual review these detainees are entitled to
receive through habeas corpus. The Deputy Secretary's determination
whether to initiate new proceedings is wholly a discretionary one. See
Dept. of Defense, Office for the Administrative Review of the
Detention of Enemy Combatants, Instruction 5421.1, Procedure for
Review of "New Evidence" Relating to Enemy Combatant (EC) Status ¶
5(d) (May 7, 2007) (Instruction 5421.1) ("The decision to convene a
CSRT to reconsider the basis of the detainee's [enemy combatant]
status in light of `new evidence' is a matter vested in the
unreviewable discretion of the [Deputy Secretary of Defense]"). And we
see no way to construe the DTA to allow a detainee to challenge the
Deputy Secretary's decision not to open a new CSRT pursuant to
Instruction 5421.1. Congress directed the Secretary of Defense to
devise procedures for considering new evidence, see DTA § 1005(a)(3),
but the detainee has no 2274*2274 mechanism for ensuring that those
procedures are followed. DTA § 1005(e)(2)(C), 119 Stat. 2742, makes
clear that the Court of Appeals' jurisdiction is "limited to
consideration of ... whether the status determination of the Combatant
Status Review Tribunal with regard to such alien was consistent with
the standards and procedures specified by the Secretary of Defense...
and ... whether the use of such standards and procedures to make the
determination is consistent with the Constitution and laws of the
United States." DTA § 1005(e)(2)(A), ibid., further narrows the Court
of Appeals' jurisdiction to reviewing "any final decision of a
Combatant Status Review Tribunal that an alien is properly detained as
an enemy combatant." The Deputy Secretary's determination whether to
convene a new CSRT is not a "status determination of the Combatant
Status Review Tribunal," much less a "final decision" of that body.
We do not imply DTA review would be a constitutionally sufficient
replacement for habeas corpus but for these limitations on the
detainee's ability to present exculpatory evidence. For even if it
were possible, as a textual matter, to read into the statute each of
the necessary procedures we have identified, we could not overlook the
cumulative effect of our doing so. To hold that the detainees at
Guantanamo may, under the DTA, challenge the President's legal
authority to detain them, contest the CSRT's findings of fact,
supplement the record on review with exculpatory evidence, and request
an order of release would come close to reinstating the § 2241 habeas
corpus process Congress sought to deny them. The language of the
statute, read in light of Congress' reasons for enacting it, cannot
bear this interpretation. Petitioners have met their burden of
establishing that the DTA review process is, on its face, an
inadequate substitute for habeas corpus.
Although we do not hold that an adequate substitute must duplicate §
2241 in all respects, it suffices that the Government has not
established that the detainees' access to the statutory review
provisions at issue is an adequate substitute for the writ of habeas
corpus. MCA § 7 thus effects an unconstitutional suspension of the
writ. In view of our holding we need not discuss the reach of the writ
with respect to claims of unlawful conditions of treatment or
confinement.
VI
A
In light of our conclusion that there is no jurisdictional bar to the
District Court's entertaining petitioners' claims the question remains
whether there are prudential barriers to habeas corpus review under
these circumstances.
The Government argues petitioners must seek review of their CSRT
determinations in the Court of Appeals before they can proceed with
their habeas corpus actions in the District Court. As noted earlier,
in other contexts and for prudential reasons this Court has required
exhaustion of alternative remedies before a prisoner can seek federal
habeas relief. Most of these cases were brought by prisoners in state
custody, e.g., Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed.
868, and thus involved federalism concerns that are not relevant here.
But we have extended this rule to require defendants in courts-martial
to exhaust their military appeals before proceeding with a federal
habeas corpus action. See Schlesinger, 420 U.S., at 758, 95 S.Ct.
1300.
The real risks, the real threats, of terrorist attacks are constant
and not likely soon to abate. The ways to disrupt our life and laws
are so many and unforeseen 2275*2275 that the Court should not attempt
even some general catalogue of crises that might occur. Certain
principles are apparent, however. Practical considerations and exigent
circumstances inform the definition and reach of the law's writs,
including habeas corpus. The cases and our tradition reflect this
precept.
In cases involving foreign citizens detained abroad by the Executive,
it likely would be both an impractical and unprecedented extension of
judicial power to assume that habeas corpus would be available at the
moment the prisoner is taken into custody. If and when habeas corpus
jurisdiction applies, as it does in these cases, then proper deference
can be accorded to reasonable procedures for screening and initial
detention under lawful and proper conditions of confinement and
treatment for a reasonable period of time. Domestic exigencies,
furthermore, might also impose such onerous burdens on the Government
that here, too, the Judicial Branch would be required to devise
sensible rules for staying habeas corpus proceedings until the
Government can comply with its requirements in a responsible way. Cf.
Ex parte Milligan, 4 Wall., at 127 ("If, in foreign invasion or civil
war, the courts are actually closed, and it is impossible to
administer criminal justice according to law, then, on the theatre of
active military operations, where war really prevails, there is a
necessity to furnish a substitute for the civil authority, thus
overthrown, to preserve the safety of the army and society; and as no
power is left but the military, it is allowed to govern by martial
rule until the laws can have their free course"). Here, as is true
with detainees apprehended abroad, a relevant consideration in
determining the courts' role is whether there are suitable alternative
processes in place to protect against the arbitrary exercise of
governmental power.
The cases before us, however, do not involve detainees who have been
held for a short period of time while awaiting their CSRT
determinations. Were that the case, or were it probable that the Court
of Appeals could complete a prompt review of their applications, the
case for requiring temporary abstention or exhaustion of alternative
remedies would be much stronger. These qualifications no longer
pertain here. In some of these cases six years have elapsed without
the judicial oversight that habeas corpus or an adequate substitute
demands. And there has been no showing that the Executive faces such
onerous burdens that it cannot respond to habeas corpus actions. To
require these detainees to complete DTA review before proceeding with
their habeas corpus actions would be to require additional months, if
not years, of delay. The first DTA review applications were filed over
a year ago, but no decisions on the merits have been issued. While
some delay in fashioning new procedures is unavoidable, the costs of
delay can no longer be borne by those who are held in custody. The
detainees in these cases are entitled to a prompt habeas corpus
hearing.
Our decision today holds only that the petitioners before us are
entitled to seek the writ; that the DTA review procedures are an
inadequate substitute for habeas corpus; and that the petitioners in
these cases need not exhaust the review procedures in the Court of
Appeals before proceeding with their habeas actions in the District
Court. The only law we identify as unconstitutional is MCA § 7, 28
U.S.C.A. § 2241(e) (Supp.2007). Accordingly, both the DTA and the CSRT
process remain intact. Our holding with regard to exhaustion should
not be read to imply that a habeas court should intervene 2276*2276
the moment an enemy combatant steps foot in a territory where the writ
runs. The Executive is entitled to a reasonable period of time to
determine a detainee's status before a court entertains that
detainee's habeas corpus petition. The CSRT process is the mechanism
Congress and the President set up to deal with these issues. Except in
cases of undue delay, federal courts should refrain from entertaining
an enemy combatant's habeas corpus petition at least until after the
Department, acting via the CSRT, has had a chance to review his
status.
B
Although we hold that the DTA is not an adequate and effective
substitute for habeas corpus, it does not follow that a habeas corpus
court may disregard the dangers the detention in these cases was
intended to prevent. Felker, Swain, and Hayman stand for the
proposition that the Suspension Clause does not resist innovation in
the field of habeas corpus. Certain accommodations can be made to
reduce the burden habeas corpus proceedings will place on the military
without impermissibly diluting the protections of the writ.
In the DTA Congress sought to consolidate review of petitioners'
claims in the Court of Appeals. Channeling future cases to one
district court would no doubt reduce administrative burdens on the
Government. This is a legitimate objective that might be advanced even
without an amendment to § 2241. If, in a future case, a detainee files
a habeas petition in another judicial district in which a proper
respondent can be served, see Rumsfeld v. Padilla, 542 U.S. 426,
435-436, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004), the Government can
move for change of venue to the court that will hear these
petitioners' cases, the United States District Court for the District
of Columbia. See 28 U.S.C. § 1404(a); Braden v. 30th Judicial Circuit
Court of Ky., 410 U.S. 484, 499, n. 15, 93 S.Ct. 1123, 35 L.Ed.2d 443
(1973).
Another of Congress' reasons for vesting exclusive jurisdiction in the
Court of Appeals, perhaps, was to avoid the widespread dissemination
of classified information. The Government has raised similar concerns
here and elsewhere. See Brief for Respondents 55-56; Bismullah Pet.
30. We make no attempt to anticipate all of the evidentiary and access-
to-counsel issues that will arise during the course of the detainees'
habeas corpus proceedings. We recognize, however, that the Government
has a legitimate interest in protecting sources and methods of
intelligence gathering; and we expect that the District Court will use
its discretion to accommodate this interest to the greatest extent
possible. Cf. United States v. Reynolds, 345 U.S. 1, 10, 73 S.Ct. 528,
97 L.Ed. 727 (1953) (recognizing an evidentiary privilege in a civil
damages case where "there is a reasonable danger that compulsion of
the evidence will expose military matters which, in the interest of
national security, should not be divulged").
These and the other remaining questions are within the expertise and
competence of the District Court to address in the first instance.
* * *
In considering both the procedural and substantive standards used to
impose detention to prevent acts of terrorism, proper deference must
be accorded to the political branches. See United States v. Curtiss-
Wright Export Corp., 299 U.S. 304, 320, 57 S.Ct. 216, 81 L.Ed. 255
(1936). Unlike the President and some designated Members of Congress,
neither the Members of this Court nor most federal judges begin the
day with briefings that may describe new and serious threats to our
Nation 2277*2277 and its people. The law must accord the Executive
substantial authority to apprehend and detain those who pose a real
danger to our security.
Officials charged with daily operational responsibility for our
security may consider a judicial discourse on the history of the
Habeas Corpus Act of 1679 and like matters to be far removed from the
Nation's present, urgent concerns. Established legal doctrine,
however, must be consulted for its teaching. Remote in time it may be;
irrelevant to the present it is not. Security depends upon a
sophisticated intelligence apparatus and the ability of our Armed
Forces to act and to interdict. There are further considerations,
however. Security subsists, too, in fidelity to freedom's first
principles. Chief among these are freedom from arbitrary and unlawful
restraint and the personal liberty that is secured by adherence to the
separation of powers. It is from these principles that the judicial
authority to consider petitions for habeas corpus relief derives.
Our opinion does not undermine the Executive's powers as Commander in
Chief. On the contrary, the exercise of those powers is vindicated,
not eroded, when confirmed by the Judicial Branch. Within the
Constitution's separation-of-powers structure, few exercises of
judicial power are as legitimate or as necessary as the responsibility
to hear challenges to the authority of the Executive to imprison a
person. Some of these petitioners have been in custody for six years
with no definitive judicial determination as to the legality of their
detention. Their access to the writ is a necessity to determine the
lawfulness of their status, even if, in the end, they do not obtain
the relief they seek.
Because our Nation's past military conflicts have been of limited
duration, it has been possible to leave the outer boundaries of war
powers undefined. If, as some fear, terrorism continues to pose
dangerous threats to us for years to come, the Court might not have
this luxury. This result is not inevitable, however. The political
branches, consistent with their independent obligations to interpret
and uphold the Constitution, can engage in a genuine debate about how
best to preserve constitutional values while protecting the Nation
from terrorism. Cf. Hamdan, 548 U.S., at 636, 126 S.Ct. 2749 (BREYER,
J., concurring) ("[J]udicial insistence upon that consultation does
not weaken our Nation's ability to deal with danger. To the contrary,
that insistence strengthens the Nation's ability to determine—through
democratic means—how best to do so").
It bears repeating that our opinion does not address the content of
the law that governs petitioners' detention. That is a matter yet to
be determined. We hold that petitioners may invoke the fundamental
procedural protections of habeas corpus. The laws and Constitution are
designed to survive, and remain in force, in extraordinary times.
Liberty and security can be reconciled; and in our system they are
reconciled within the framework of the law. The Framers decided that
habeas corpus, a right of first importance, must be a part of that
framework, a part of that law.
The determination by the Court of Appeals that the Suspension Clause
and its protections are inapplicable to petitioners was in error. The
judgment of the Court of Appeals is reversed. The cases are remanded
to the Court of Appeals with instructions that it remand the cases to
the District Court for proceedings consistent with this opinion.
It is so ordered.
Justice SOUTER, with whom Justice GINSBURG and Justice BREYER join,
concurring.
I join the Court's opinion in its entirety and add this afterword only
to emphasize 2278*2278 two things one might overlook after reading the
dissents.
Four years ago, this Court in Rasul v. Bush, 542 U.S. 466, 124 S.Ct.
2686, 159 L.Ed.2d 548 (2004) held that statutory habeas jurisdiction
extended to claims of foreign nationals imprisoned by the United
States at Guantanamo Bay, "to determine the legality of the
Executive's potentially indefinite detention" of them, id., at 485,
124 S.Ct. 2686. Subsequent legislation eliminated the statutory habeas
jurisdiction over these claims, so that now there must be
constitutionally based jurisdiction or none at all. Justice SCALIA is
thus correct that here, for the first time, this Court holds there is
(he says "confers") constitutional habeas jurisdiction over aliens
imprisoned by the military outside an area of de jure national
sovereignty, see post, at 2293 (dissenting opinion). But no one who
reads the Court's opinion in Rasul could seriously doubt that the
jurisdictional question must be answered the same way in purely
constitutional cases, given the Court's reliance on the historical
background of habeas generally in answering the statutory question.
See, e.g., 542 U.S., at 473, 481-483, and nn. 11-14, 124 S.Ct. 2686.
Indeed, the Court in Rasul directly answered the very historical
question that Justice SCALIA says is dispositive, see post, at 2303;
it wrote that "[a]pplication of the habeas statute to persons detained
at [Guantanamo] is consistent with the historical reach of the writ of
habeas corpus," 542 U.S., at 481, 124 S.Ct. 2686. Justice SCALIA
dismisses the statement as dictum, see post, at 2304-2305, but if
dictum it was, it was dictum well considered, and it stated the view
of five Members of this Court on the historical scope of the writ. Of
course, it takes more than a quotation from Rasul, however much on
point, to resolve the constitutional issue before us here, which the
majority opinion has explored afresh in the detail it deserves. But
whether one agrees or disagrees with today's decision, it is no bolt
out of the blue.
A second fact insufficiently appreciated by the dissents is the length
of the disputed imprisonments, some of the prisoners represented here
today having been locked up for six years, ante, at 2275-2276 (opinion
of the Court). Hence the hollow ring when the dissenters suggest that
the Court is somehow precipitating the judiciary into reviewing claims
that the military (subject to appeal to the Court of Appeals for the
District of Columbia Circuit) could handle within some reasonable
period of time. See, e.g., post, at 2280 (opinion of ROBERTS, C.J.)
("[T]he Court should have declined to intervene until the D.C. Circuit
had assessed the nature and validity of the congressionally mandated
proceedings in a given detainee's case"); post, at 2281 ("[I]t is not
necessary to consider the availability of the writ until the statutory
remedies have been shown to be inadequate"); post, at 2283 ("[The
Court] rushes to decide the fundamental question of the reach of
habeas corpus when the functioning of the DTA may make that decision
entirely unnecessary"). These suggestions of judicial haste are all
the more out of place given the Court's realistic acknowledgment that
in periods of exigency the tempo of any habeas review must reflect the
immediate peril facing the country. See ante, at 2274-2275.
It is in fact the very lapse of four years from the time Rasul put
everyone on notice that habeas process was available to Guantanamo
prisoners, and the lapse of six years since some of these prisoners
were captured and incarcerated, that stand at odds with the repeated
suggestions of the dissenters that these cases should be seen as a
judicial victory in a contest for power between the Court and the
political branches. See post, at 2279, 2280, 2293 (ROBERTS, C. J.,
dissenting); post, at 2279*2279 2295-2296, 2296, 2302, 2303, 2306-2307
(SCALIA, J., dissenting). The several answers to the charge of
triumphalism might start with a basic fact of Anglo-American
constitutional history: that the power, first of the Crown and now of
the Executive Branch of the United States, is necessarily limited by
habeas corpus jurisdiction to enquire into the legality of executive
detention. And one could explain that in this Court's exercise of
responsibility to preserve habeas corpus something much more
significant is involved than pulling and hauling between the judicial
and political branches. Instead, though, it is enough to repeat that
some of these petitioners have spent six years behind bars. After six
years of sustained executive detentions in Guantanamo, subject to
habeas jurisdiction but without any actual habeas scrutiny, today's
decision is no judicial victory, but an act of perseverance in trying
to make habeas review, and the obligation of the courts to provide it,
mean something of value both to prisoners and to the Nation. See ante,
at 2277.
Chief Justice ROBERTS, with whom Justice SCALIA, Justice THOMAS, and
Justice ALITO join, dissenting.
Today the Court strikes down as inadequate the most generous set of
procedural protections ever afforded aliens detained by this country
as enemy combatants. The political branches crafted these procedures
amidst an ongoing military conflict, after much careful investigation
and thorough debate. The Court rejects them today out of hand, without
bothering to say what due process rights the detainees possess,
without explaining how the statute fails to vindicate those rights,
and before a single petitioner has even attempted to avail himself of
the law's operation. And to what effect? The majority merely replaces
a review system designed by the people's representatives with a set of
shapeless procedures to be defined by federal courts at some future
date. One cannot help but think, after surveying the modest practical
results of the majority's ambitious opinion, that this decision is not
really about the detainees at all, but about control of federal policy
regarding enemy combatants.
The majority is adamant that the Guantanamo detainees are entitled to
the protections of habeas corpus—its opinion begins by deciding that
question. I regard the issue as a difficult one, primarily because of
the unique and unusual jurisdictional status of Guantanamo Bay. I
nonetheless agree with Justice SCALIA's analysis of our precedents and
the pertinent history of the writ, and accordingly join his dissent.
The important point for me, however, is that the Court should have
resolved these cases on other grounds. Habeas is most fundamentally a
procedural right, a mechanism for contesting the legality of executive
detention. The critical threshold question in these cases, prior to
any inquiry about the writ's scope, is whether the system the
political branches designed protects whatever rights the detainees may
possess. If so, there is no need for any additional process, whether
called "habeas" or something else.
Congress entrusted that threshold question in the first instance to
the Court of Appeals for the District of Columbia Circuit, as the
Constitution surely allows Congress to do. See Detainee Treatment Act
of 2005(DTA), § 1005(e)(2)(A), 119 Stat. 2742. But before the D.C.
Circuit has addressed the issue, the Court cashiers the statute, and
without answering this critical threshold question itself. The Court
does eventually get around to asking whether review under the DTA is,
as the Court frames it, an "adequate substitute" for habeas, ante, at
2262, but even 2280*2280 then its opinion fails to determine what
rights the detainees possess and whether the DTA system satisfies
them. The majority instead compares the undefined DTA process to an
equally undefined habeas right—one that is to be given shape only in
the future by district courts on a case-by-case basis. This whole
approach is misguided.
It is also fruitless. How the detainees' claims will be decided now
that the DTA is gone is anybody's guess. But the habeas process the
Court mandates will most likely end up looking a lot like the DTA
system it replaces, as the district court judges shaping it will have
to reconcile review of the prisoners' detention with the undoubted
need to protect the American people from the terrorist threat—
precisely the challenge Congress undertook in drafting the DTA. All
that today's opinion has done is shift responsibility for those
sensitive foreign policy and national security decisions from the
elected branches to the Federal Judiciary.
I believe the system the political branches constructed adequately
protects any constitutional rights aliens captured abroad and detained
as enemy combatants may enjoy. I therefore would dismiss these cases
on that ground. With all respect for the contrary views of the
majority, I must dissent.
I
The Court's opinion makes plain that certiorari to review these cases
should never have been granted. As two Members of today's majority
once recognized, "traditional rules governing our decision of
constitutional questions and our practice of requiring the exhaustion
of available remedies... make it appropriate to deny these petitions."
Boumediene v. Bush, 549 U.S. ___, 127 S.Ct. 1725, 1727, 167 L.Ed.2d
757 (2007) (citation omitted) (statement of STEVENS and KENNEDY, JJ.,
respecting denial of certiorari). Just so. Given the posture in which
these cases came to us, the Court should have declined to intervene
until the D.C. Circuit had assessed the nature and validity of the
congressionally mandated proceedings in a given detainee's case.
The political branches created a two-part, collateral review procedure
for testing the legality of the prisoners' detention: It begins with a
hearing before a Combatant Status Review Tribunal (CSRT) followed by
review in the D.C. Circuit. As part of that review, Congress
authorized the D.C. Circuit to decide whether the CSRT proceedings are
consistent with "the Constitution and laws of the United States." DTA
§ 1005(e)(2)(C), 119 Stat. 2742. No petitioner, however, has invoked
the D.C. Circuit review the statute specifies. See 476 F.3d 981, 994,
and n. 16 (C.A.D.C.2007); Brief for Federal Respondents 41-43. As a
consequence, that court has had no occasion to decide whether the CSRT
hearings, followed by review in the Court of Appeals, vindicate
whatever constitutional and statutory rights petitioners may possess.
See 476 F.3d, at 994, and n. 16.
Remarkably, this Court does not require petitioners to exhaust their
remedies under the statute; it does not wait to see whether those
remedies will prove sufficient to protect petitioners' rights.
Instead, it not only denies the D.C. Circuit the opportunity to assess
the statute's remedies, it refuses to do so itself: the majority
expressly declines to decide whether the CSRT procedures, coupled with
Article III review, satisfy due process. See ante, at 2269.
It is grossly premature to pronounce on the detainees' right to habeas
without first assessing whether the remedies the DTA system provides
vindicate whatever rights 2281*2281 petitioners may claim. The
plurality in Hamdi v. Rumsfeld, 542 U.S. 507, 533, 124 S.Ct. 2633, 159
L.Ed.2d 578 (2004), explained that the Constitution guaranteed an
American citizen challenging his detention as an enemy combatant the
right to "notice of the factual basis for his classification, and a
fair opportunity to rebut the Government's factual assertions before a
neutral decisionmaker." The plurality specifically stated that
constitutionally adequate collateral process could be provided "by an
appropriately authorized and properly constituted military tribunal,"
given the "uncommon potential to burden the Executive at a time of
ongoing military conflict." Id., at 533, 538, 124 S.Ct. 2633. This
point is directly pertinent here, for surely the Due Process Clause
does not afford non-citizens in such circumstances greater protection
than citizens are due.
If the CSRT procedures meet the minimal due process requirements
outlined in Hamdi, and if an Article III court is available to ensure
that these procedures are followed in future cases, see id., at 536,
124 S.Ct. 2633; INS v. St. Cyr, 533 U.S. 289, 304, 121 S.Ct. 2271, 150
L.Ed.2d 347 (2001); Heikkila v. Barber, 345 U.S. 229, 236, 73 S.Ct.
603, 97 L.Ed. 972 (1953), there is no need to reach the Suspension
Clause question. Detainees will have received all the process the
Constitution could possibly require, whether that process is called
"habeas" or something else. The question of the writ's reach need not
be addressed.
This is why the Court should have required petitioners to exhaust
their remedies under the statute. As we explained in Gusik v.
Schilder, 340 U.S. 128, 132, 71 S.Ct. 149, 95 L.Ed. 146 (1950), "If an
available procedure has not been employed to rectify the alleged
error" petitioners complain of, "any interference by [a] federal court
may be wholly needless. The procedure established to police the errors
of the tribunal whose judgment is challenged may be adequate for the
occasion." Because the majority refuses to assess whether the CSRTs
comport with the Constitution, it ends up razing a system of
collateral review that it admits may in fact satisfy the Due Process
Clause and be "structurally sound." Ante, at 2270. But if the
collateral review procedures Congress has provided—CSRT review coupled
with Article III scrutiny—are sound, interference by a federal habeas
court may be entirely unnecessary.
The only way to know is to require petitioners to use the alternative
procedures Congress designed. Mandating that the petitioners exhaust
their statutory remedies "is in no sense a suspension of the writ of
habeas corpus. It is merely a deferment of resort to the writ until
other corrective procedures are shown to be futile." Gusik, supra, at
132, 71 S.Ct. 149. So too here, it is not necessary to consider the
availability of the writ until the statutory remedies have been shown
to be inadequate to protect the detainees' rights. Cf. 28 U.S.C. §
2254(b)(1)(A) ("An application for a writ of habeas corpus ... shall
not be granted unless it appears that ... the applicant has exhausted
the remedies available in the courts of the State"). Respect for the
judgments of Congress— whose Members take the same oath we do to
uphold the Constitution—requires no less.
In the absence of any assessment of the DTA's remedies, the question
whether detainees are entitled to habeas is an entirely speculative
one. Our precedents have long counseled us to avoid deciding such
hypothetical questions of constitutional law. See Spector Motor
Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed.
101 (1944) ("If there is one doctrine more deeply rooted than any
other 2282*2282 in the process of constitutional adjudication, it is
that we ought not to pass on questions of constitutionality ... unless
such [questions are] unavoidable"); see also Ashwander v. TVA, 297
U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J.,
concurring) (Constitutional questions should not be decided unless
"`absolutely necessary to a decision of the case'" (quoting Burton v.
United States, 196 U.S. 283, 295, 25 S.Ct. 243, 49 L.Ed. 482 (1905))).
This is a "fundamental rule of judicial restraint." Three Affiliated
Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467
U.S. 138, 157, 104 S.Ct. 2267, 81 L.Ed.2d 113 (1984).
The Court acknowledges that "the ordinary course" would be not to
decide the constitutionality of the DTA at this stage, but abandons
that "ordinary course" in light of the "gravity" of the constitutional
issues presented and the prospect of additional delay. Ante, at 2263.
It is, however, precisely when the issues presented are grave that
adherence to the ordinary course is most important. A principle
applied only when unimportant is not much of a principle at all, and
charges of judicial activism are most effectively rebutted when courts
can fairly argue they are following normal practices.
The Court is also concerned that requiring petitioners to pursue "DTA
review before proceeding with their habeas corpus actions" could
involve additional delay. Ante, at 2275-2276. The nature of the habeas
remedy the Court instructs lower courts to craft on remand, however,
is far more unsettled than the process Congress provided in the DTA.
See ante, at 2277 ("[O]ur opinion does not address the content of the
law that governs petitioners' detention. That is a matter yet to be
determined"). There is no reason to suppose that review according to
procedures the Federal Judiciary will design, case by case, will
proceed any faster than the DTA process petitioners disdained.
On the contrary, the system the Court has launched (and directs lower
courts to elaborate) promises to take longer. The Court assures us
that before bringing their habeas petitions, detainees must usually
complete the CSRT process. See ante, at 2275-2276. Then they may seek
review in federal district court. Either success or failure there will
surely result in an appeal to the D.C. Circuit—exactly where judicial
review starts under Congress's system. The effect of the Court's
decision is to add additional layers of quite possibly redundant
review. And because nobody knows how these new layers of "habeas"
review will operate, or what new procedures they will require, their
contours will undoubtedly be subject to fresh bouts of litigation. If
the majority were truly concerned about delay, it would have required
petitioners to use the DTA process that has been available to them for
2 1/2 years, with its Article III review in the D.C. Circuit. That
system might well have provided petitioners all the relief to which
they are entitled long before the Court's newly installed habeas
review could hope to do so.[1]
2283*2283 The Court's refusal to require petitioners to exhaust the
remedies provided by Congress violates the "traditional rules
governing our decision of constitutional questions." Boumediene, 549
U.S., at ___, 127 S.Ct., at 1727 (statement of STEVENS and KENNEDY,
JJ., respecting denial of certiorari). The Court's disrespect for
these rules makes its decision an awkward business. It rushes to
decide the fundamental question of the reach of habeas corpus when the
functioning of the DTA may make that decision entirely unnecessary,
and it does so with scant idea of how DTA judicial review will
actually operate.
II
The majority's overreaching is particularly egregious given the
weakness of its objections to the DTA. Simply put, the Court's opinion
fails on its own terms. The majority strikes down the statute because
it is not an "adequate substitute" for habeas review, ante, at 2262,
but fails to show what rights the detainees have that cannot be
vindicated by the DTA system.
Because the central purpose of habeas corpus is to test the legality
of executive detention, the writ requires most fundamentally an
Article III court able to hear the prisoner's claims and, when
necessary, order release. See Brown v. Allen, 344 U.S. 443, 533, 73
S.Ct. 397, 97 L.Ed. 469 (1953) (Jackson, J., concurring in result).
Beyond that, the process a given prisoner is entitled to receive
depends on the circumstances and the rights of the prisoner. See
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18
(1976). After much hemming and hawing, the majority appears to concede
that the DTA provides an Article III court competent to order release.
See ante, at 2272-2273. The only issue in dispute is the process the
Guantanamo prisoners are entitled to use to test the legality of their
detention. Hamdi concluded that American citizens detained as enemy
combatants are entitled to only limited process, and that much of that
process could be supplied by a military tribunal, with review to
follow in an Article III court. That is precisely the system we have
here. It is adequate to vindicate whatever due process rights
petitioners may have.
A
The Court reaches the opposite conclusion partly because it misreads
the statute. The majority appears not to understand how the review
system it invalidates actually works—specifically, how CSRT review and
review by the D.C. Circuit fit together. After briefly acknowledging
in its recitation of the facts that the Government designed the CSRTs
"to comply with the due process requirements identified by the
plurality in Hamdi," ante, at 2241, the Court proceeds to dismiss the
tribunal proceedings as no more than a suspect method used by the
Executive for determining the status of the detainees in the first
instance, see ante, at 2263. This leads the Court to treat the review
the DTA provides in the D.C. Circuit as the only opportunity detainees
have to challenge their status determination. See ante, at 2266.
The Court attempts to explain its glancing treatment of the CSRTs by
arguing that "[w]hether one characterizes the CSRT process as direct
review of the Executive's battlefield determination ... or as the
first step in the collateral review of a battlefield determination
makes no difference." Ante, at 2269. First of all, the majority is
quite wrong to dismiss the 2284*2284 Executive's determination of
detainee status as no more than a "battlefield" judgment, as if it
were somehow provisional and made in great haste. In fact, detainees
are designated "enemy combatants" only after "multiple levels of
review by military officers and officials of the Department of
Defense." Memorandum of the Secretary of the Navy, Implementation of
Combatant Status Review Tribunal Procedures for Enemy Combatants
Detained at Guantanamo Bay Naval Base (July 29, 2004), App. J to Pet.
for Cert. in No. 06-1196, p. 150 (hereinafter Implementation Memo).
The majority is equally wrong to characterize the CSRTs as part of
that initial determination process. They are instead a means for
detainees to challenge the Government's determination. The Executive
designed the CSRTs to mirror Army Regulation 190-8, see Brief for
Federal Respondents 48, the very procedural model the plurality in
Hamdi said provided the type of process an enemy combatant could
expect from a habeas court, see 542 U.S., at 538, 124 S.Ct. 2633
(plurality opinion). The CSRTs operate much as habeas courts would if
hearing the detainee's collateral challenge for the first time: They
gather evidence, call witnesses, take testimony, and render a decision
on the legality of the Government's detention. See Implementation
Memo, App. J to Pet. for Cert. in No. 06-1196, at 153-162. If the CSRT
finds a particular detainee has been improperly held, it can order
release. See id., at 164.
The majority insists that even if "the CSRTs satisf[ied] due process
standards," full habeas review would still be necessary, because
habeas is a collateral remedy available even to prisoners "detained
pursuant to the most rigorous proceedings imaginable." Ante, at
2269-2270, 2270. This comment makes sense only if the CSRTs are
incorrectly viewed as a method used by the Executive for determining
the prisoners' status, and not as themselves part of the collateral
review to test the validity of that determination. See Gusik, 340
U.S., at 132, 71 S.Ct. 149. The majority can deprecate the importance
of the CSRTs only by treating them as something they are not.
The use of a military tribunal such as the CSRTs to review the aliens'
detention should be familiar to this Court in light of the Hamdi
plurality, which said that the due process rights enjoyed by American
citizens detained as enemy combatants could be vindicated "by an
appropriately authorized and properly constituted military tribunal."
542 U.S., at 538, 124 S.Ct. 2633. The DTA represents Congress'
considered attempt to provide the accused alien combatants detained at
Guantanamo a constitutionally adequate opportunity to contest their
detentions before just such a tribunal.
But Congress went further in the DTA. CSRT review is just the first
tier of collateral review in the DTA system. The statute provides
additional review in an Article III court. Given the rationale of
today's decision, it is well worth recalling exactly what the DTA
provides in this respect. The statute directs the D.C. Circuit to
consider whether a particular alien's status determination "was
consistent with the standards and procedures specified by the
Secretary of Defense" and "whether the use of such standards and
procedures to make the determination is consistent with the
Constitution and laws of the United States." DTA § 1005(e)(2)(C), 119
Stat. 2742. That is, a court determines whether the CSRT procedures
are constitutional, and a court determines whether those procedures
were followed in a particular case.
In short, the Hamdi plurality concluded that this type of review would
be enough 2285*2285 to satisfy due process, even for citizens. See 542
U.S., at 538, 124 S.Ct. 2633. Congress followed the Court's lead, only
to find itself the victim of a constitutional bait and switch.
Hamdi merits scant attention from the Court—a remarkable omission, as
Hamdi bears directly on the issues before us. The majority attempts to
dismiss Hamdi's relevance by arguing that because the availability of
§ 2241 federal habeas was never in doubt in that case, "the Court had
no occasion to define the necessary scope of habeas review ... in the
context of enemy combatant detentions." Ante, at 2269. Hardly. Hamdi
was all about the scope of habeas review in the context of enemy
combatant detentions. The petitioner, an American citizen held within
the United States as an enemy combatant, invoked the writ to challenge
his detention. 542 U.S., at 510-511, 124 S.Ct. 2633. After "a careful
examination both of the writ... and of the Due Process Clause," this
Court enunciated the "basic process" the Constitution entitled Hamdi
to expect from a habeas court under § 2241. Id., at 525, 534, 124
S.Ct. 2633. That process consisted of the right to "receive notice of
the factual basis for his classification, and a fair opportunity to
rebut the Government's factual assertions before a neutral
decisionmaker." Id., at 533, 124 S.Ct. 2633. In light of the
Government's national security responsibilities, the plurality found
the process could be "tailored to alleviate [the] uncommon potential
to burden the Executive at a time of ongoing military conflict." Ibid.
For example, the Government could rely on hearsay and could claim a
presumption in favor of its own evidence. See id., at 533-534, 124
S.Ct. 2633.
Hamdi further suggested that this "basic process" on collateral review
could be provided by a military tribunal. It pointed to prisoner-of-
war tribunals as a model that would satisfy the Constitution's
requirements. See id., at 538, 124 S.Ct. 2633. Only "[i]n the absence
of such process" before a military tribunal, the Court held, would
Article III courts need to conduct full-dress habeas proceedings to
"ensure that the minimum requirements of due process are achieved."
Ibid. (emphasis added). And even then, the petitioner would be
entitled to no more process than he would have received from a
properly constituted military review panel, given his limited due
process rights and the Government's weighty interests. See id., at
533-534, 538, 124 S.Ct. 2633.
Contrary to the majority, Hamdi is of pressing relevance because it
establishes the procedures American citizens detained as enemy
combatants can expect from a habeas court proceeding under § 2241. The
DTA system of military tribunal hearings followed by Article III
review looks a lot like the procedure Hamdi blessed. If nothing else,
it is plain from the design of the DTA that Congress, the President,
and this Nation's military leaders have made a good-faith effort to
follow our precedent.
The Court, however, will not take "yes" for an answer. The majority
contends that "[i]f Congress had envisioned DTA review as coextensive
with traditional habeas corpus," it would have granted the D.C.
Circuit far broader review authority. Ante, at 2265. Maybe so, but
that comment reveals the majority's misunderstanding. "[T]raditional
habeas corpus" takes no account of what Hamdi recognized as the
"uncommon potential to burden the Executive at a time of ongoing
military conflict." 542 U.S., at 533, 124 S.Ct. 2633. Besides,
Congress and the Executive did not envision "DTA review"—by which I
assume the Court means D.C. Circuit review, see ante, at 2265-2266—as
the detainees' only opportunity to challenge their detentions.
Instead, 2286*2286 the political branches crafted CSRT and D.C.
Circuit review to operate together, with the goal of providing
noncitizen detainees the level of collateral process Hamdi said would
satisfy the due process rights of American citizens. See Brief for
Federal Respondents 48-53.
B
Given the statutory scheme the political branches adopted, and given
Hamdi, it simply will not do for the majority to dismiss the CSRT
procedures as "far more limited" than those used in military trials,
and therefore beneath the level of process "that would eliminate the
need for habeas corpus review." Ante, at 2260. The question is not how
much process the CSRTs provide in comparison to other modes of
adjudication. The question is whether the CSRT procedures—coupled with
the judicial review specified by the DTA—provide the "basic process"
Hamdi said the Constitution affords American citizens detained as
enemy combatants. See 542 U.S., at 534, 124 S.Ct. 2633.
By virtue of its refusal to allow the D.C. Circuit to assess
petitioners' statutory remedies, and by virtue of its own refusal to
consider, at the outset, the fit between those remedies and due
process, the majority now finds itself in the position of evaluating
whether the DTA system is an adequate substitute for habeas review
without knowing what rights either habeas or the DTA is supposed to
protect. The majority attempts to elide this problem by holding that
petitioners have a right to habeas corpus and then comparing the DTA
against the "historic office" of the writ. Ante, at 2265. But habeas
is, as the majority acknowledges, a flexible remedy rather than a
substantive right. Its "precise application ... change[s] depending
upon the circumstances." Ante, at 2267. The shape of habeas review
ultimately depends on the nature of the rights a petitioner may
assert. See, e.g., Reid v. Covert, 354 U.S. 1, 75, 77 S.Ct. 1222, 1
L.Ed.2d 1148 (1957) (Harlan, J., concurring in result) ("[T]he
question of which specific safeguards of the Constitution are
appropriately to be applied in a particular context ... can be reduced
to the issue of what process is `due' a defendant in the particular
circumstances of a particular case").
The scope of federal habeas review is traditionally more limited in
some contexts than in others, depending on the status of the detainee
and the rights he may assert. See St. Cyr, 533 U.S., at 306, 121 S.Ct.
2271 ("In [immigration cases], other than the question whether there
was some evidence to support the [deportation] order, the courts
generally did not review factual determinations made by the
Executive" (footnote omitted)); Burns v. Wilson, 346 U.S. 137, 139, 73
S.Ct. 1045, 97 L.Ed. 1508 (1953) (plurality opinion) ("[I]n military
habeas corpus the inquiry, the scope of matters open for review, has
always been more narrow than in civil cases"); In re Yamashita, 327
U.S. 1, 8, 66 S.Ct. 340, 90 L.Ed. 499 (1946) ("The courts may inquire
whether the detention complained of is within the authority of those
detaining the petitioner. If the military tribunals have lawful
authority to hear, decide and condemn, their action is not subject to
judicial review"); Ex parte Quirin, 317 U.S. 1, 25, 63 S.Ct. 2, 87
L.Ed. 3 (1942) (federal habeas review of military commission verdict
limited to determining commission's jurisdiction).
Declaring that petitioners have a right to habeas in no way excuses
the Court from explaining why the DTA does not protect whatever due
process or statutory rights petitioners may have. Because if the DTA
provides a means for vindicating petitioners' rights, it is
necessarily an adequate 2287*2287 substitute for habeas corpus. See
Swain v. Pressley, 430 U.S. 372, 381, 97 S.Ct. 1224, 51 L.Ed.2d 411
(1977); United States v. Hayman, 342 U.S. 205, 223, 72 S.Ct. 263, 96
L.Ed. 232 (1952).
For my part, I will assume that any due process rights petitioners may
possess are no greater than those of American citizens detained as
enemy combatants. It is worth noting again that the Hamdi controlling
opinion said the Constitution guarantees citizen detainees only
"basic" procedural rights, and that the process for securing those
rights can "be tailored to alleviate [the] uncommon potential to
burden the Executive at a time of ongoing military conflict." 542
U.S., at 533, 124 S.Ct. 2633. The majority, however, objects that "the
procedural protections afforded to the detainees in the CSRT hearings
are ... limited." Ante, at 2260. But the evidentiary and other
limitations the Court complains of reflect the nature of the issue in
contest, namely, the status of aliens captured by our Armed Forces
abroad and alleged to be enemy combatants. Contrary to the repeated
suggestions of the majority, DTA review need not parallel the habeas
privileges enjoyed by noncombatant American citizens, as set out in 28
U.S.C. § 2241 (2000 ed. and Supp V). Cf. ante, at 2264-2265. It need
only provide process adequate for noncitizens detained as alleged
combatants.
To what basic process are these detainees due as habeas petitioners?
We have said that "at the absolute minimum," the Suspension Clause
protects the writ "`as it existed in 1789.'" St. Cyr, supra, at 301,
121 S.Ct. 2271 (quoting Felker v. Turpin, 518 U.S. 651, 663-664, 116
S.Ct. 2333, 135 L.Ed.2d 827 (1996)). The majority admits that a number
of historical authorities suggest that at the time of the
Constitution's ratification, "common-law courts abstained altogether
from matters involving prisoners of war." Ante, at 2248. If this is
accurate, the process provided prisoners under the DTA is plainly more
than sufficient—it allows alleged combatants to challenge both the
factual and legal bases of their detentions.
Assuming the constitutional baseline is more robust, the DTA still
provides adequate process, and by the majority's own standards.
Today's Court opines that the Suspension Clause guarantees prisoners
such as the detainees "a meaningful opportunity to demonstrate that
[they are] being held pursuant to the erroneous application or
interpretation of relevant law." Ante, at 2266 (internal quotation
marks omitted). Further, the Court holds that to be an adequate
substitute, any tribunal reviewing the detainees' cases "must have the
power to order the conditional release of an individual unlawfully
detained." Ibid. The DTA system—CSRT review of the Executive's
determination followed by D.C. Circuit review for sufficiency of the
evidence and the constitutionality of the CSRT process—meets these
criteria.
C
At the CSRT stage, every petitioner has the right to present evidence
that he has been wrongfully detained. This includes the right to call
witnesses who are reasonably available, question witnesses called by
the tribunal, introduce documentary evidence, and testify before the
tribunal. See Implementation Memo, App. J to Pet. for Cert. in No.
06-1196, at 154-156, 158-159, 161.
While the Court concedes detainees may confront all witnesses called
before the tribunal, it suggests this right is "more theoretical than
real" because "there are in effect no limits on the admission of
hearsay evidence." Ante, at 2269. The Court further complains that
petitioners lack 2288*2288 "the assistance of counsel," and—given the
limits on their access to classified information—"may not be aware of
the most critical allegations" against them. Ante, at 2269. None of
these complaints is persuasive.
Detainees not only have the opportunity to confront any witness who
appears before the tribunal, they may call witnesses of their own. The
Implementation Memo requires only that detainees' witnesses be
"reasonably available," App. J to Pet. for Cert. in No. 06-1196, at
155, a requirement drawn from Army Regulation 190-8, ch. 1, § 1-6(e )
(6), and entirely consistent with the Government's interest in
avoiding "a futile search for evidence" that might burden warmaking
responsibilities, Hamdi, supra, at 532, 124 S.Ct. 2633. The dangerous
mission assigned to our forces abroad is to fight terrorists, not
serve subpoenas. The Court is correct that some forms of hearsay
evidence are admissible before the CSRT, but Hamdi expressly approved
this use of hearsay by habeas courts. 542 U.S., at 533-534, 124 S.Ct.
2633 ("Hearsay, for example, may need to be accepted as the most
reliable available evidence from the Government").
As to classified information, while detainees are not permitted access
to it themselves, the Implementation Memo provides each detainee with
a "Personal Representative" who may review classified documents at the
CSRT stage and summarize them for the detainee. Implementation Memo,
supra, at 152, 154-155, 156; Brief for Federal Respondents 54-55. The
prisoner's counsel enjoys the same privilege on appeal before the D.C.
Circuit. That is more access to classified material for alleged alien
enemy combatants than ever before provided. I am not aware of a single
instance—and certainly the majority cites none—in which detainees such
as petitioners have been provided access to classified material in any
form. Indeed, prisoners of war who challenge their status
determinations under the Geneva Convention are afforded no such
access, see Army Regulation 190-8, ch. 1, §§ 1-6(e)(3) and (5), and
the prisoner-of-war model is the one Hamdi cited as consistent with
the demands of due process for citizens, see 542 U.S., at 538, 124
S.Ct. 2633.
What alternative does the Court propose? Allow free access to
classified information and ignore the risk the prisoner may eventually
convey what he learns to parties hostile to this country, with deadly
consequences for those who helped apprehend the detainee? If the Court
can design a better system for communicating to detainees the
substance of any classified information relevant to their cases,
without fatally compromising national security interests and sources,
the majority should come forward with it. Instead, the majority fobs
that vexing question off on district courts to answer down the road.
Prisoners of war are not permitted access to classified information,
and neither are they permitted access to counsel, another supposed
failing of the CSRT process. And yet the Guantanamo detainees are
hardly denied all legal assistance. They are provided a "Personal
Representative" who, as previously noted, may access classified
information, help the detainee arrange for witnesses, assist the
detainee's preparation of his case, and even aid the detainee in
presenting his evidence to the tribunal. See Implementation Memo,
supra, at 161. The provision for a personal representative on this
order is one of several ways in which the CSRT procedures are more
generous than those provided prisoners of war under Army Regulation
190-8.
Keep in mind that all this is just at the CSRT stage. Detainees
receive additional process before the D.C. Circuit, including
2289*2289 full access to appellate counsel and the right to challenge
the factual and legal bases of their detentions. DTA § 1005(e)(2)(C)
empowers the Court of Appeals to determine not only whether the CSRT
observed the "procedures specified by the Secretary of Defense," but
also "whether the use of such standards and procedures ... is
consistent with the Constitution and laws of the United States." 119
Stat. 2742. These provisions permit detainees to dispute the
sufficiency of the evidence against them. They allow detainees to
challenge a CSRT panel's interpretation of any relevant law, and even
the constitutionality of the CSRT proceedings themselves. This
includes, as the Solicitor General acknowledges, the ability to
dispute the Government's right to detain alleged combatants in the
first place, and to dispute the Government's definition of "enemy
combatant." Brief for Federal Respondents 59. All this before an
Article III court—plainly a neutral decisionmaker.
All told, the DTA provides the prisoners held at Guantanamo Bay
adequate opportunity to contest the bases of their detentions, which
is all habeas corpus need allow. The DTA provides more opportunity and
more process, in fact, than that afforded prisoners of war or any
other alleged enemy combatants in history.
D
Despite these guarantees, the Court finds the DTA system an inadequate
habeas substitute, for one central reason: Detainees are unable to
introduce at the appeal stage exculpatory evidence discovered after
the conclusion of their CSRT proceedings. See ante, at 2271. The Court
hints darkly that the DTA may suffer from other infirmities, see ante,
at 2274 ("We do not imply DTA review would be a constitutionally
sufficient replacement for habeas corpus but for these limitations on
the detainee's ability to present exculpatory evidence"), but it does
not bother to name them, making a response a bit difficult. As it
stands, I can only assume the Court regards the supposed defect it did
identify as the gravest of the lot.
If this is the most the Court can muster, the ice beneath its feet is
thin indeed. As noted, the CSRT procedures provide ample opportunity
for detainees to introduce exculpatory evidence—whether documentary in
nature or from live witnesses—before the military tribunals. See
infra, at 2289-2291; Implementation Memo, App. J to Pet. for Cert. in
No. 06-196, at 155-156. And if their ability to introduce such
evidence is denied contrary to the Constitution or laws of the United
States, the D.C. Circuit has the authority to say so on review.
Nevertheless, the Court asks us to imagine an instance in which
evidence is discovered after the CSRT panel renders its decision, but
before the Court of Appeals reviews the detainee's case. This
scenario, which of course has not yet come to pass as no review in the
D.C. Circuit has occurred, provides no basis for rejecting the DTA as
a habeas substitute. While the majority is correct that the DTA does
not contemplate the introduction of "newly discovered" evidence before
the Court of Appeals, petitioners and the Solicitor General agree that
the DTA does permit the D.C. Circuit to remand a detainee's case for a
new CSRT determination. Brief for Petitioner Boumediene et al. in No.
06-1195, at 30; Brief for Federal Respondents 60-61. In the event a
detainee alleges that he has obtained new and persuasive exculpatory
evidence that would have been considered by the tribunal below had it
only been available, the D.C. Circuit could readily remand the case to
the tribunal to allow that body to consider the evidence in the first
instance. The Court of Appeals could 2290*2290 later review any new or
reinstated decision in light of the supplemented record.
If that sort of procedure sounds familiar, it should. Federal
appellate courts reviewing factual determinations follow just such a
procedure in a variety of circumstances. See, e.g., United States v.
White, 492 F.3d 380, 413 (C.A.6 2007) (remanding new-evidence claim to
the district court for a Brady evidentiary hearing); Avila v. Roe, 298
F.3d 750, 754 (C.A.9 2002) (remanding habeas claim to the district
court for evidentiary hearing to clarify factual record); United
States v. Leone, 215 F.3d 253, 256 (C.A.2 2000) (observing that when
faced on direct appeal with an underdeveloped claim for ineffective
assistance of counsel, the appellate court may remand to the district
court for necessary factfinding).
A remand is not the only relief available for detainees caught in the
Court's hypothetical conundrum. The DTA expressly directs the
Secretary of Defense to "provide for periodic review of any new
evidence that may become available relating to the enemy combatant
status of a detainee." DTA § 1005(a)(3). Regulations issued by the
Department of Defense provide that when a detainee puts forward new,
material evidence "not previously presented to the detainee's CSRT,"
the Deputy Secretary of Defense "`will direct that a CSRT convene to
reconsider the basis of the detainee's ... status in light of the new
information.'" Office for the Administrative Review of the Detention
of Enemy Combatants, Instruction 5421.1, Procedure for Review of "New
Evidence" Relating to Enemy Combatant (EC) Status ¶¶ 4(a)(1), 5(b)
(May 7, 2007); Brief for Federal Respondents 56, n. 30. Pursuant to
DTA § 1005(e)(2)(A), the resulting CSRT determination is again
reviewable in full by the D.C. Circuit.[2]
In addition, DTA § 1005(d)(1) further requires the Department of
Defense to conduct a yearly review of the status of each prisoner. See
119 Stat. 2741. The Deputy Secretary of Defense has promulgated
concomitant regulations establishing an Administrative Review Board to
assess "annually the need to continue to detain each enemy combatant."
Deputy Secretary of Defense Order OSD 06942-04 (May 11, 2004), App. K
to Pet. for Cert. in No. 06-1196, p. 189. In the words of the
implementing order, the purpose of this annual review is to afford
every detainee the opportunity "to explain why he is no longer a
threat to the United States" and should be released. Ibid. The Board's
findings are forwarded to a presidentially appointed, Senate-confirmed
civilian within the Department of Defense whom the Secretary of
Defense has designated to administer the review process. This
designated civilian official has the authority to order release upon
the Board's recommendation. Id., at 201.
The Court's hand wringing over the DTA's treatment of later-discovered
exculpatory evidence is the most it has to show after a roving search
for constitutionally problematic scenarios. But "[t]he delicate power
of pronouncing an Act of Congress unconstitutional," we have said, "is
not to be exercised with reference to hypothetical cases thus
imagined." United States v. 2291*2291 Raines, 362 U.S. 17, 22, 80
S.Ct. 519, 4 L.Ed.2d 524 (1960). The Court today invents a sort of
reverse facial challenge and applies it with gusto: If there is any
scenario in which the statute might be constitutionally infirm, the
law must be struck down. Cf. United States v. Salerno, 481 U.S. 739,
745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ("A facial challenge ...
must establish that no set of circumstances exists under which the Act
would be valid"); see also Washington v. Glucksberg, 521 U.S. 702,
739-740, and n. 7, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (STEVENS,
J., concurring in judgments) (facial challenge must fail where the
statute has "`plainly legitimate sweep'" (quoting Broadrick v.
Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973))).
The Court's new method of constitutional adjudication only underscores
its failure to follow our usual procedures and require petitioners to
demonstrate that they have been harmed by the statute they challenge.
In the absence of such a concrete showing, the Court is unable to
imagine a plausible hypothetical in which the DTA is unconstitutional.
E
The Court's second criterion for an adequate substitute is the "power
to order the conditional release of an individual unlawfully
detained." Ante, at 2266. As the Court basically admits, the DTA can
be read to permit the D.C. Circuit to order release in light of our
traditional principles of construing statutes to avoid difficult
constitutional issues, when reasonably possible. See ante, at
2270-2271.
The Solicitor General concedes that remedial authority of some sort
must be implied in the statute, given that the DTA — like the general
habeas law itself, see 28 U.S.C. § 2243 — provides no express remedy
of any kind. Brief for Federal Respondents 60-61. The parties agree
that at the least, the DTA empowers the D.C. Circuit to remand a
prisoner's case to the CSRT with instructions to perform a new status
assessment. Brief for Petitioner Boumediene et al. in No. 06-1195, at
30; Brief for Federal Respondents 60-61. To avoid constitutional
infirmity, it is reasonable to imply more, see Ashwander, 297 U.S., at
348, 56 S.Ct. 466 (Brandeis, J., concurring) ("When the validity of an
act of the Congress is drawn in question ... it is a cardinal
principle that this Court will... ascertain whether a construction of
the statute is fairly possible by which the [constitutional] question
may be avoided" (internal quotation marks omitted)); see also St. Cyr,
533 U.S., at 299-300, 121 S.Ct. 2271, especially in view of the
Solicitor General's concession at oral argument and in his
Supplemental Brief that authority to release might be read in the
statute, see Tr. of Oral Arg. 37; Supplemental Brief for Federal
Respondents 9.
The Court grudgingly suggests that "Congress' silence on the question
of remedies suggests acquiescence to any constitutionally required
remedy." Ante, at 2271. But the argument in favor of statutorily
authorized release is stronger than that. The DTA's parallels to 28
U.S.C. § 2243 on this score are noteworthy. By way of remedy, the
general federal habeas statute provides only that the court, having
heard and determined the facts, shall "dispose of the matter as law
and justice require." Ibid. We have long held, and no party here
disputes, that this includes the power to order release. See Wilkinson
v. Dotson, 544 U.S. 74, 79, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005)
("[T]he writ's history makes clear that it traditionally has been
accepted as the specific instrument to obtain release from [unlawful]
confinement" (internal quotation marks omitted)).
2292*2292 The DTA can be similarly read. Because Congress substituted
DTA review for habeas corpus and because the "unique purpose" of the
writ is "to release the applicant ... from unlawful confinement,"
Allen v. McCurry, 449 U.S. 90, 98, n. 12, 101 S.Ct. 411, 66 L.Ed.2d
308 (1980), DTA § 1005(e)(2) can and should be read to confer on the
Court of Appeals the authority to order release in appropriate
circumstances. Section 1005(e)(2)(D) plainly contemplates release,
addressing the effect "release of [an] alien from the custody of the
Department of Defense" will have on the jurisdiction of the court. 119
Stat. 2742-2743. This reading avoids serious constitutional difficulty
and is consistent with the text of the statute.
The D.C. Circuit can thus order release, the CSRTs can order release,
and the head of the Administrative Review Boards can, at the
recommendation of those panels, order release. These multiple release
provisions within the DTA system more than satisfy the majority's
requirement that any tribunal substituting for a habeas court have the
authority to release the prisoner.
The basis for the Court's contrary conclusion is summed up in the
following sentence near the end of its opinion: "To hold that the
detainees at Guantanamo may, under the DTA, challenge the President's
legal authority to detain them, contest the CSRT's findings of fact,
supplement the record on review with newly discovered or previously
unavailable evidence, and request an order of release would come close
to reinstating the § 2241 habeas corpus process Congress sought to
deny them." Ante, at 2271. In other words, any interpretation of the
statute that would make it an adequate substitute for habeas must be
rejected, because Congress could not possibly have intended to enact
an adequate substitute for habeas. The Court could have saved itself a
lot of trouble if it had simply announced this Catch-22 approach at
the beginning rather than the end of its opinion.
III
For all its eloquence about the detainees' right to the writ, the
Court makes no effort to elaborate how exactly the remedy it
prescribes will differ from the procedural protections detainees enjoy
under the DTA. The Court objects to the detainees' limited access to
witnesses and classified material, but proposes no alternatives of its
own. Indeed, it simply ignores the many difficult questions its
holding presents. What, for example, will become of the CSRT process?
The majority says federal courts should generally refrain from
entertaining detainee challenges until after the petitioner's CSRT
proceeding has finished. See ante, at 2275-2276 ("[e]xcept in cases of
undue delay"). But to what deference, if any, is that CSRT
determination entitled?
There are other problems. Take witness availability. What makes the
majority think witnesses will become magically available when the
review procedure is labeled "habeas"? Will the location of most of
these witnesses change — will they suddenly become easily susceptible
to service of process? Or will subpoenas issued by American habeas
courts run to Basra? And if they did, how would they be enforced?
Speaking of witnesses, will detainees be able to call active-duty
military officers as witnesses? If not, why not?
The majority has no answers for these difficulties. What it does say
leaves open the distinct possibility that its "habeas" remedy will,
when all is said and done, end up looking a great deal like the DTA
review it rejects. See ante, at 2275-2276 (opinion of the court) ("We
recognize, however, that the Government has a legitimate interest in
protecting sources and methods 2293*2293 of intelligence gathering,
and we expect that the District Court will use its discretion to
accommodate this interest to the greatest extent possible"). But
"[t]he role of the judiciary is limited to determining whether the
procedures meet the essential standard of fairness under the Due
Process Clause and does not extend to imposing procedures that merely
displace congressional choices of policy." Landon v. Plasencia, 459
U.S. 21, 34-35, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982).
The majority rests its decision on abstract and hypothetical concerns.
Step back and consider what, in the real world, Congress and the
Executive have actually granted aliens captured by our Armed Forces
overseas and found to be enemy combatants:
• The right to hear the bases of the charges against them, including a
summary of any classified evidence.
• The ability to challenge the bases of their detention before
military tribunals modeled after Geneva Convention procedures. Some 38
detainees have been released as a result of this process. Brief for
Federal Respondents 57, 60.
• The right, before the CSRT, to testify, introduce evidence, call
witnesses, question those the Government calls, and secure release, if
and when appropriate.
• The right to the aid of a personal representative in arranging and
presenting their cases before a CSRT.
• Before the D.C. Circuit, the right to employ counsel, challenge the
factual record, contest the lower tribunal's legal determinations,
ensure compliance with the Constitution and laws, and secure release,
if any errors below establish their entitlement to such relief.
In sum, the DTA satisfies the majority's own criteria for assessing
adequacy. This statutory scheme provides the combatants held at
Guantanamo greater procedural protections than have ever been afforded
alleged enemy detainees — whether citizens or aliens — in our national
history.
* * *
So who has won? Not the detainees. The Court's analysis leaves them
with only the prospect of further litigation to determine the content
of their new habeas right, followed by further litigation to resolve
their particular cases, followed by further litigation before the D.C.
Circuit — where they could have started had they invoked the DTA
procedure. Not Congress, whose attempt to "determine — through
democratic means — how best" to balance the security of the American
people with the detainees' liberty interests, see Hamdan v. Rumsfeld,
548 U.S. 557, 636, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006) (BREYER, J.,
concurring), has been unceremoniously brushed aside. Not the Great
Writ, whose majesty is hardly enhanced by its extension to a
jurisdictionally quirky outpost, with no tangible benefit to anyone.
Not the rule of law, unless by that is meant the rule of lawyers, who
will now arguably have a greater role than military and intelligence
officials in shaping policy for alien enemy combatants. And certainly
not the American people, who today lose a bit more control over the
conduct of this Nation's foreign policy to unelected, politically
unaccountable judges.
I respectfully dissent.
Justice SCALIA, with whom THE CHIEF JUSTICE, Justice THOMAS, and
Justice ALITO join, dissenting.
Today, for the first time in our Nation's history, the Court confers a
constitutional right to habeas corpus on alien enemies 2294*2294
detained abroad by our military forces in the course of an ongoing
war. THE CHIEF JUSTICE's dissent, which I join, shows that the
procedures prescribed by Congress in the Detainee Treatment Act
provide the essential protections that habeas corpus guarantees; there
has thus been no suspension of the writ, and no basis exists for
judicial intervention beyond what the Act allows. My problem with
today's opinion is more fundamental still: The writ of habeas corpus
does not, and never has, run in favor of aliens abroad; the Suspension
Clause thus has no application, and the Court's intervention in this
military matter is entirely ultra vires.
I shall devote most of what will be a lengthy opinion to the legal
errors contained in the opinion of the Court. Contrary to my usual
practice, however, I think it appropriate to begin with a description
of the disastrous consequences of what the Court has done today.
I
America is at war with radical Islamists. The enemy began by killing
Americans and American allies abroad: 241 at the Marine barracks in
Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in
Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen. See
National Commission on Terrorist Attacks upon the United States, The
9/11 Commission Report, pp. 60-61, 70, 190 (2004). On September 11,
2001, the enemy brought the battle to American soil, killing 2,749 at
the Twin Towers in New York City, 184 at the Pentagon in Washington,
D. C., and 40 in Pennsylvania. See id., at 552, n. 9. It has
threatened further attacks against our homeland; one need only walk
about buttressed and barricaded Washington, or board a plane anywhere
in the country, to know that the threat is a serious one. Our Armed
Forces are now in the field against the enemy, in Afghanistan and
Iraq. Last week, 13 of our countrymen in arms were killed.
The game of bait-and-switch that today's opinion plays upon the
Nation's Commander in Chief will make the war harder on us. It will
almost certainly cause more Americans to be killed. That consequence
would be tolerable if necessary to preserve a time-honored legal
principle vital to our constitutional Republic. But it is this Court's
blatant abandonment of such a principle that produces the decision
today. The President relied on our settled precedent in Johnson v.
Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950), when he
established the prison at Guantanamo Bay for enemy aliens. Citing that
case, the President's Office of Legal Counsel advised him "that the
great weight of legal authority indicates that a federal district
court could not properly exercise habeas jurisdiction over an alien
detained at [Guantanamo Bay]." Memorandum from Patrick F. Philbin and
John C. Yoo, Deputy Assistant Attorneys General, Office of Legal
Counsel, to William J. Haynes II, General Counsel, Dept. of Defense
(Dec. 28, 2001). Had the law been otherwise, the military surely would
not have transported prisoners there, but would have kept them in
Afghanistan, transferred them to another of our foreign military
bases, or turned them over to allies for detention. Those other
facilities might well have been worse for the detainees themselves.
In the long term, then, the Court's decision today accomplishes
little, except perhaps to reduce the well-being of enemy combatants
that the Court ostensibly seeks to protect. In the short term,
however, the decision is devastating. At least 30 of those prisoners
hitherto released from Guantanamo Bay have returned to 2295*2295 the
battlefield. See S.Rep. No. 110-90, pt. 7, p. 13 (2007) (Minority
Views of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn) (hereinafter
Minority Report). Some have been captured or killed. See ibid.; see
also Mintz, Released Detainees Rejoining the Fight, Washington Post,
Oct. 22, 2004, pp. A1, A12. But others have succeeded in carrying on
their atrocities against innocent civilians. In one case, a detainee
released from Guantanamo Bay masterminded the kidnapping of two
Chinese dam workers, one of whom was later shot to death when used as
a human shield against Pakistani commandoes. See Khan & Lancaster,
Pakistanis Rescue Hostage; 2nd Dies, Washington Post, Oct. 15, 2004,
p. A18. Another former detainee promptly resumed his post as a senior
Taliban commander and murdered a United Nations engineer and three
Afghan soldiers. Mintz, supra. Still another murdered an Afghan judge.
See Minority Report 13. It was reported only last month that a
released detainee carried out a suicide bombing against Iraqi soldiers
in Mosul, Iraq. See White, Ex-Guantanamo Detainee Joined Iraq Suicide
Attack, Washington Post, May 8, 2008, p. A18.
These, mind you, were detainees whom the military had concluded were
not enemy combatants. Their return to the kill illustrates the
incredible difficulty of assessing who is and who is not an enemy
combatant in a foreign theater of operations where the environment
does not lend itself to rigorous evidence collection. Astoundingly,
the Court today raises the bar, requiring military officials to appear
before civilian courts and defend their decisions under procedural and
evidentiary rules that go beyond what Congress has specified. As THE
CHIEF JUSTICE's dissent makes clear, we have no idea what those
procedural and evidentiary rules are, but they will be determined by
civil courts and (in the Court's contemplation at least) will be more
detainee-friendly than those now applied, since otherwise there would
no reason to hold the congressionally prescribed procedures
unconstitutional. If they impose a higher standard of proof (from
foreign battlefields) than the current procedures require, the number
of the enemy returned to combat will obviously increase.
But even when the military has evidence that it can bring forward, it
is often foolhardy to release that evidence to the attorneys
representing our enemies. And one escalation of procedures that the
Court is clear about is affording the detainees increased access to
witnesses (perhaps troops serving in Afghanistan?) and to classified
information. See ante, at 2269-2270. During the 1995 prosecution of
Omar Abdel Rahman, federal prosecutors gave the names of 200
unindicted co-conspirators to the "Blind Sheik's" defense lawyers;
that information was in the hands of Osama Bin Laden within two weeks.
See Minority Report 14-15. In another case, trial testimony revealed
to the enemy that the United States had been monitoring their cellular
network, whereupon they promptly stopped using it, enabling more of
them to evade capture and continue their atrocities. See id., at 15.
And today it is not just the military that the Court elbows aside. A
mere two Terms ago in Hamdan v. Rumsfeld, 548 U.S. 557, 126 S.Ct.
2749, 165 L.Ed.2d 723 (2006), when the Court held (quite amazingly)
that the Detainee Treatment Act of 2005 had not stripped habeas
jurisdiction over Guantanamo petitioners' claims, four Members of
today's five-Justice majority joined an opinion saying the following:
"Nothing prevents the President from returning to Congress to seek the
authority [for trial by military commission] he believes necessary.
2296*2296 "Where, as here, no emergency prevents consultation with
Congress, judicial insistence upon that consultation does not weaken
our Nation's ability to deal with danger. To the contrary, that
insistence strengthens the Nation's ability to determine — through
democratic means — how best to do so. The Constitution places its
faith in those democratic means." Id., at 636, 126 S.Ct. 2749 (BREYER,
J., concurring).[1]
Turns out they were just kidding. For in response, Congress, at the
President's request, quickly enacted the Military Commissions Act,
emphatically reasserting that it did not want these prisoners filing
habeas petitions. It is therefore clear that Congress and the
Executive — both political branches — have determined that limiting
the role of civilian courts in adjudicating whether prisoners captured
abroad are properly detained is important to success in the war that
some 190,000 of our men and women are now fighting. As the Solicitor
General argued, "the Military Commissions Act and the Detainee
Treatment Act ... represent an effort by the political branches to
strike an appropriate balance between the need to preserve liberty and
the need to accommodate the weighty and sensitive governmental
interests in ensuring that those who have in fact fought with the
enemy during a war do not return to battle against the United States."
Brief for Respondents 10-11 (internal quotation marks omitted).
But it does not matter. The Court today decrees that no good reason to
accept the judgment of the other two branches is "apparent." Ante, at
2261. "The Government," it declares, "presents no credible arguments
that the military mission at Guantanamo would be compromised if habeas
corpus courts had jurisdiction to hear the detainees' claims." Id., at
2260-2261. What competence does the Court have to second-guess the
judgment of Congress and the President on such a point? None whatever.
But the Court blunders in nonetheless. Henceforth, as today's opinion
makes unnervingly clear, how to handle enemy prisoners in this war
will ultimately lie with the branch that knows least about the
national security concerns that the subject entails.
II
A
The Suspension Clause of the Constitution provides: "The Privilege of
the Writ of Habeas Corpus shall not be suspended, unless when in Cases
of Rebellion or Invasion the public Safety may require it." Art. I, §
9, cl. 2. As a court of law operating under a written Constitution,
our role is to determine whether there is a conflict between that
Clause and the Military Commissions Act. A conflict arises only if the
Suspension Clause preserves the privilege of the writ for aliens held
by the United States military as enemy combatants at the base in
Guantanamo Bay, located within the sovereign territory of Cuba.
We have frequently stated that we owe great deference to Congress's
view that a law it has passed is constitutional. See, e.g., Department
of Labor v. Triplett, 494 U.S. 715, 721, 110 S.Ct. 1428, 108 L.Ed.2d
701 (1990); United States v. National 2297*2297 Dairy Products Corp.,
372 U.S. 29, 32, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); see also American
Communications Assn. v. Douds, 339 U.S. 382, 435, 70 S.Ct. 674, 94
L.Ed. 925 (1950) (Jackson, J., concurring in part and dissenting in
part). That is especially so in the area of foreign and military
affairs; "perhaps in no other area has the Court accorded Congress
greater deference." Rostker v. Goldberg, 453 U.S. 57, 64-65, 101 S.Ct.
2646, 69 L.Ed.2d 478 (1981). Indeed, we accord great deference even
when the President acts alone in this area. See Department of Navy v.
Egan, 484 U.S. 518, 529-530, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988);
Regan v. Wald, 468 U.S. 222, 243, 104 S.Ct. 3026, 82 L.Ed.2d 171
(1984).
In light of those principles of deference, the Court's conclusion that
"the common law [does not] yiel[d] a definite answer to the questions
before us," ante, at 2251, leaves it no choice but to affirm the Court
of Appeals. The writ as preserved in the Constitution could not
possibly extend farther than the common law provided when that Clause
was written. See Part III, infra. The Court admits that it cannot
determine whether the writ historically extended to aliens held
abroad, and it concedes (necessarily) that Guantanamo Bay lies outside
the sovereign territory of the United States. See ante, at 2251-2252;
Rasul v. Bush, 542 U.S. 466, 500-501, 124 S.Ct. 2686, 159 L.Ed.2d 548
(2004) (SCALIA, J., dissenting). Together, these two concessions
establish that it is (in the Court's view) perfectly ambiguous whether
the common-law writ would have provided a remedy for these
petitioners. If that is so, the Court has no basis to strike down the
Military Commissions Act, and must leave undisturbed the considered
judgment of the coequal branches.[2]
How, then, does the Court weave a clear constitutional prohibition out
of pure interpretive equipoise? The Court resorts to "fundamental
separation-of-powers principles" to interpret the Suspension Clause.
Ante, at 2253. According to the Court, because "the writ of habeas
corpus is itself an indispensable mechanism for monitoring the
separation of powers," the test of its extraterritorial reach "must
not be subject to manipulation by those whose power it is designed to
restrain." Ante, at 2259.
That approach distorts the nature of the separation of powers and its
role in the constitutional structure. The "fundamental separation-of-
powers principles" that the Constitution embodies are to be derived
not from some judicially imagined matrix, but from the sum total of
the individual separation-of-powers provisions that the Constitution
sets forth. Only by considering them one-by-one does the full shape of
the Constitution's separation-of-powers principles emerge. It is
nonsensical to interpret those provisions themselves in light of some
general "separation-of-powers principles" dreamed up by the Court.
Rather, they must be interpreted to mean what they were understood to
mean when the people ratified them. And if the understood scope of the
writ of 2298*2298 habeas corpus was "designed to restrain" (as the
Court says) the actions of the Executive, the understood limits upon
that scope were (as the Court seems not to grasp) just as much
"designed to restrain" the incursions of the Third Branch.
"Manipulation" of the territorial reach of the writ by the Judiciary
poses just as much a threat to the proper separation of powers as
"manipulation" by the Executive. As I will show below, manipulation is
what is afoot here. The understood limits upon the writ deny our
jurisdiction over the habeas petitions brought by these enemy aliens,
and entrust the President with the crucial wartime determinations
about their status and continued confinement.
B
The Court purports to derive from our precedents a "functional" test
for the extraterritorial reach of the writ, ante, at 2258, which shows
that the Military Commissions Act unconstitutionally restricts the
scope of habeas. That is remarkable because the most pertinent of
those precedents, Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936,
94 L.Ed. 1255, conclusively establishes the opposite. There we were
confronted with the claims of 21 Germans held at Landsberg Prison, an
American military facility located in the American Zone of occupation
in postwar Germany. They had been captured in China, and an American
military commission sitting there had convicted them of war crimes —
collaborating with the Japanese after Germany's surrender. Id., at
765-766, 70 S.Ct. 936. Like the petitioners here, the Germans claimed
that their detentions violated the Constitution and international law,
and sought a writ of habeas corpus. Writing for the Court, Justice
Jackson held that American courts lacked habeas jurisdiction:
"We are cited to [sic] no instance where a court, in this or any other
country where the writ is known, has issued it on behalf of an alien
enemy who, at no relevant time and in no stage of his captivity, has
been within its territorial jurisdiction. Nothing in the text of the
Constitution extends such a right, nor does anything in our statutes."
Id., at 768, 70 S.Ct. 936.
Justice Jackson then elaborated on the historical scope of the writ:
"The alien, to whom the United States has been traditionally
hospitable, has been accorded a generous and ascending scale of rights
as he increases his identity with our society ....
"But, in extending constitutional protections beyond the citizenry,
the Court has been at pains to point out that it was the alien's
presence within its territorial jurisdiction that gave the Judiciary
power to act." Id., at 770-771, 70 S.Ct. 936.
Lest there be any doubt about the primacy of territorial sovereignty
in determining the jurisdiction of a habeas court over an alien,
Justice Jackson distinguished two cases in which aliens had been
permitted to seek habeas relief, on the ground that the prisoners in
those cases were in custody within the sovereign territory of the
United States. Id., at 779-780, 70 S.Ct. 936 (discussing Ex parte
Quirin, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3 (1942), and In re
Yamashita, 327 U.S. 1, 66 S.Ct. 340, 90 L.Ed. 499 (1946)). "By reason
of our sovereignty at that time over [the Philippines]," Jackson
wrote, "Yamashita stood much as did Quirin before American courts."
339 U.S., at 780, 70 S.Ct. 936.
Eisentrager thus held — held beyond any doubt — that the Constitution
does not ensure habeas for aliens held by the United 2299*2299 States
in areas over which our Government is not sovereign.[3]
The Court would have us believe that Eisentrager rested on
"[p]ractical considerations," such as the "difficulties of ordering
the Government to produce the prisoners in a habeas corpus
proceeding." Ante, at 2257. Formal sovereignty, says the Court, is
merely one consideration "that bears upon which constitutional
guarantees apply" in a given location. Ante, at 2258. This is a sheer
rewriting of the case. Eisentrager mentioned practical concerns, to be
sure — but not for the purpose of determining under what circumstances
American courts could issue writs of habeas corpus for aliens abroad.
It cited them to support its holding that the Constitution does not
empower courts to issue writs of habeas corpus to aliens abroad in any
circumstances. As Justice Black accurately said in dissent, "the
Court's opinion inescapably denies courts power to afford the least
bit of protection for any alien who is subject to our occupation
government abroad, even if he is neither enemy nor belligerent and
even after peace is officially declared." 339 U.S., at 796, 70 S.Ct.
936.
The Court also tries to change Eisentrager into a "functional" test by
quoting a paragraph that lists the characteristics of the German
petitioners:
"To support [the] assumption [of a constitutional right to habeas
corpus] we must hold that a prisoner of our military authorities is
constitutionally entitled to the writ, even though he (a) is an enemy
alien; (b) has never been or resided in the United States; (c) was
captured outside of our territory and there held in military custody
as a prisoner of war; (d) was tried and convicted by a Military
Commission sitting outside the United States; (e) for offenses against
laws of war committed outside the United States; (f) and is at all
times imprisoned outside the United States." Id., at 777, 70 S.Ct. 936
(quoted in part, ante, at 2259).
But that paragraph is introduced by a sentence stating that "[t]he
foregoing demonstrates how much further we must go if we are to invest
these enemy aliens, resident, captured and imprisoned abroad, with
standing to demand access to our courts." 339 U.S., at 777, 70 S.Ct.
936 (emphasis added). How much further than what? Further than the
rule set 2300*2300 forth in the prior section of the opinion, which
said that "in extending constitutional protections beyond the
citizenry, the Court has been at pains to point out that it was the
alien's presence within its territorial jurisdiction that gave the
Judiciary power to act." Id., at 771, 70 S.Ct. 936. In other words,
the characteristics of the German prisoners were set forth, not in
application of some "functional" test, but to show that the case
before the Court represented an a fortiori application of the ordinary
rule. That is reaffirmed by the sentences that immediately follow the
listing of the Germans' characteristics:
"We have pointed out that the privilege of litigation has been
extended to aliens, whether friendly or enemy, only because permitting
their presence in the country implied protection. No such basis can be
invoked here, for these prisoners at no relevant time were within any
territory over which the United States is sovereign, and the scenes of
their offense, their capture, their trial and their punishment were
all beyond the territorial jurisdiction of any court of the United
States." Id., at 777-778, 70 S.Ct. 936.
Eisentrager nowhere mentions a "functional" test, and the notion that
it is based upon such a principle is patently false.[4]
The Court also reasons that Eisentrager must be read as a "functional"
opinion because of our prior decisions in the Insular Cases. See ante,
at 2253-2255. It cites our statement in Balzac v. Porto Rico, 258 U.S.
298, 312, 42 S.Ct. 343, 66 L.Ed. 627 (1922), that "`the real issue in
the Insular Cases was not whether the Constitution extended to the
Philippines or Porto Rico when we went there, but which of its
provisions were applicable by way of limitation upon the exercise of
executive and legislative power in dealing with new conditions and
requirements.'" Ante, at 2254-2255. But the Court conveniently omits
Balzac's predicate to that statement: "The Constitution of the United
States is in force in Porto Rico as it is wherever and whenever the
sovereign power of that government is exerted." 258 U.S., at 312, 42
S.Ct. 343 (emphasis added). The Insular Cases all concerned
territories acquired by Congress under its Article IV authority and
indisputably part of the sovereign territory of the United States. See
United States v. Verdugo-Urquidez, 494 U.S. 259, 268, 110 S.Ct. 1056,
108 L.Ed.2d 222 (1990); Reid v. Covert, 2301*2301 354 U.S. 1, 13, 77
S.Ct. 1222, 1 L.Ed.2d 1148 (1957) (plurality opinion of Black, J.).
None of the Insular Cases stands for the proposition that aliens
located outside U.S. sovereign territory have constitutional rights,
and Eisentrager held just the opposite with respect to habeas corpus.
As I have said, Eisentrager distinguished Yamashita on the ground of
"our sovereignty [over the Philippines]," 339 U.S., at 780, 70 S.Ct.
936.
The Court also relies on the "[p]ractical considerations" that
influenced our decision in Reid v. Covert, supra. See ante, at
2255-2257. But all the Justices in the majority except Justice
Frankfurter limited their analysis to the rights of citizens abroad.
See Reid, supra, at 5-6, 77 S.Ct. 1222 (plurality opinion of Black,
J.); id., at 74-75, 77 S.Ct. 1222 (Harlan, J., concurring in result).
(Frankfurter limited his analysis to the even narrower class of
civilian dependents of American military personnel abroad, see id., at
45, 77 S.Ct. 1222 (opinion concurring in result).) In trying to wring
some kind of support out of Reid for today's novel holding, the Court
resorts to a chain of logic that does not hold. The members of the
Reid majority, the Court says, were divided over whether In re Ross,
140 U.S. 453, 11 S.Ct. 897, 35 L.Ed. 581 (1891), which had (according
to the Court) held that under certain circumstances American citizens
abroad do not have indictment and jury-trial rights, should be
overruled. In the Court's view, the Reid plurality would have
overruled Ross, but Justices Frankfurter and Harlan preferred to
distinguish it. The upshot: "If citizenship had been the only relevant
factor in the case, it would have been necessary for the Court to
overturn Ross, something Justices Harlan and Frankfurter were
unwilling to do." Ante, at 2257. What, exactly, is this point supposed
to prove? To say that "practical considerations" determine the precise
content of the constitutional protections American citizens enjoy when
they are abroad is quite different from saying that "practical
considerations" determine whether aliens abroad enjoy any
constitutional protections whatever, including habeas. In other words,
merely because citizenship is not a sufficient factor to extend
constitutional rights abroad does not mean that it is not a necessary
one.
The Court tries to reconcile Eisentrager with its holding today by
pointing out that in postwar Germany, the United States was
"answerable to its Allies" and did not "pla[n] a long-term
occupation." Ante, at 2260, 2260. Those factors were not mentioned in
Eisentrager. Worse still, it is impossible to see how they relate to
the Court's asserted purpose in creating this "functional" test —
namely, to ensure a judicial inquiry into detention and prevent the
political branches from acting with impunity. Can it possibly be that
the Court trusts the political branches more when they are beholden to
foreign powers than when they act alone?
After transforming the a fortiori elements discussed above into a
"functional" test, the Court is still left with the difficulty that
most of those elements exist here as well with regard to all the
detainees. To make the application of the newly crafted "functional"
test produce a different result in the present cases, the Court must
rely upon factors (d) and (e): The Germans had been tried by a
military commission for violations of the laws of war; the present
petitioners, by contrast, have been tried by a Combatant Status Review
Tribunal (CSRT) whose procedural protections, according to the Court's
ipse dixit, "fall well short of the procedures and adversarial
mechanisms that would eliminate the need for habeas corpus review."
Ante, at 2260. But no one looking for "functional" equivalents would
put Eisentrager and the present cases in the same category, 2302*2302
much less place the present cases in a preferred category. The
difference between them cries out for lesser procedures in the present
cases. The prisoners in Eisentrager were prosecuted for crimes after
the cessation of hostilities; the prisoners here are enemy combatants
detained during an ongoing conflict. See Hamdi v. Rumsfeld, 542 U.S.
507, 538, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality opinion)
(suggesting, as an adequate substitute for habeas corpus, the use of a
tribunal akin to a CSRT to authorize the detention of American
citizens as enemy combatants during the course of the present
conflict).
The category of prisoner comparable to these detainees are not the
Eisentrager criminal defendants, but the more than 400,000 prisoners
of war detained in the United States alone during World War II. Not a
single one was accorded the right to have his detention validated by a
habeas corpus action in federal court — and that despite the fact that
they were present on U.S. soil. See Bradley, The Military Commissions
Act, Habeas Corpus, and the Geneva Conventions, 101 Am. J. Int'l L.
322, 338 (2007). The Court's analysis produces a crazy result: Whereas
those convicted and sentenced to death for war crimes are without
judicial remedy, all enemy combatants detained during a war, at least
insofar as they are confined in an area away from the battlefield over
which the United States exercises "absolute and indefinite" control,
may seek a writ of habeas corpus in federal court. And, as an even
more bizarre implication from the Court's reasoning, those prisoners
whom the military plans to try by full-dress Commission at a future
date may file habeas petitions and secure release before their trials
take place.
There is simply no support for the Court's assertion that
constitutional rights extend to aliens held outside U.S. sovereign
territory, see Verdugo-Urquidez, 494 U.S., at 271, 110 S.Ct. 1056, and
Eisentrager could not be clearer that the privilege of habeas corpus
does not extend to aliens abroad. By blatantly distorting Eisentrager,
the Court avoids the difficulty of explaining why it should be
overruled. See Planned Parenthood of Southeastern Pa. v. Casey, 505
U.S. 833, 854-855, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (identifying
stare decisis factors). The rule that aliens abroad are not
constitutionally entitled to habeas corpus has not proved unworkable
in practice; if anything, it is the Court's "functional" test that
does not (and never will) provide clear guidance for the future.
Eisentrager forms a coherent whole with the accepted proposition that
aliens abroad have no substantive rights under our Constitution. Since
it was announced, no relevant factual premises have changed. It has
engendered considerable reliance on the part of our military. And, as
the Court acknowledges, text and history do not clearly compel a
contrary ruling. It is a sad day for the rule of law when such an
important constitutional precedent is discarded without an apologia,
much less an apology.
C
What drives today's decision is neither the meaning of the Suspension
Clause, nor the principles of our precedents, but rather an inflated
notion of judicial supremacy. The Court says that if the
extraterritorial applicability of the Suspension Clause turned on
formal notions of sovereignty, "it would be possible for the political
branches to govern without legal constraint" in areas beyond the
sovereign territory of the United States. Ante, at 2258-2259. That
cannot be, the Court says, because it is the duty of this Court to say
what the law is. Id., at 2258-2259. It would be difficult to imagine a
more 2303*2303 question-begging analysis. "The very foundation of the
power of the federal courts to declare Acts of Congress
unconstitutional lies in the power and duty of those courts to decide
cases and controversies properly before them." United States v.
Raines, 362 U.S. 17, 20-21, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960) (citing
Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803); emphasis added).
Our power "to say what the law is" is circumscribed by the limits of
our statutorily and constitutionally conferred jurisdiction. See Lujan
v. Defenders of Wildlife, 504 U.S. 555, 573-578, 112 S.Ct. 2130, 119
L.Ed.2d 351 (1992). And that is precisely the question in these cases:
whether the Constitution confers habeas jurisdiction on federal courts
to decide petitioners' claims. It is both irrational and arrogant to
say that the answer must be yes, because otherwise we would not be
supreme.
But so long as there are some places to which habeas does not run — so
long as the Court's new "functional" test will not be satisfied in
every case — then there will be circumstances in which "it would be
possible for the political branches to govern without legal
constraint." Or, to put it more impartially, areas in which the legal
determinations of the other branches will be (shudder!) supreme. In
other words, judicial supremacy is not really assured by the
constitutional rule that the Court creates. The gap between rationale
and rule leads me to conclude that the Court's ultimate, unexpressed
goal is to preserve the power to review the confinement of enemy
prisoners held by the Executive anywhere in the world. The
"functional" test usefully evades the precedential landmine of
Eisentrager but is so inherently subjective that it clears a wide path
for the Court to traverse in the years to come.
III
Putting aside the conclusive precedent of Eisentrager, it is clear
that the original understanding of the Suspension Clause was that
habeas corpus was not available to aliens abroad, as Judge Randolph's
thorough opinion for the court below detailed. See 476 F.3d 981,
988-990 (C.A.D.C.2007).
The Suspension Clause reads: "The Privilege of the Writ of Habeas
Corpus shall not be suspended, unless when in Cases of Rebellion or
Invasion the public Safety may require it." U.S. Const., Art. I, § 9,
cl. 2. The proper course of constitutional interpretation is to give
the text the meaning it was understood to have at the time of its
adoption by the people. See, e.g., Crawford v. Washington, 541 U.S.
36, 54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). That course is
especially demanded when (as here) the Constitution limits the power
of Congress to infringe upon a pre-existing common-law right. The
nature of the writ of habeas corpus that cannot be suspended must be
defined by the common-law writ that was available at the time of the
founding. See McNally v. Hill, 293 U.S. 131, 135-136, 55 S.Ct. 24, 79
L.Ed. 238 (1934); see also INS v. St. Cyr, 533 U.S. 289, 342, 121
S.Ct. 2271, 150 L.Ed.2d 347 (2001) (SCALIA, J., dissenting); D'Oench,
Duhme & Co. v. FDIC, 315 U.S. 447, 471, n. 9, 62 S.Ct. 676, 86 L.Ed.
956 (1942) (Jackson, J., concurring).
It is entirely clear that, at English common law, the writ of habeas
corpus did not extend beyond the sovereign territory of the Crown. To
be sure, the writ had an "extraordinary territorial ambit," because it
was a so-called "prerogative writ," which, unlike other writs, could
extend beyond the realm of England to other places where the Crown was
sovereign. R. Sharpe, The Law of Habeas Corpus 188 (2d ed.1989)
(hereinafter Sharpe); see also Note on the Power of the English Courts
2304*2304 to Issue the Writ of Habeas to Places Within the Dominions
of the Crown, But Out of England, and On the Position of Scotland in
Relation to that Power, 8 Jurid. Rev. 157 (1896) (hereinafter Note on
Habeas); King v. Cowle, 2 Burr. 834, 855-856, 97 Eng. Rep. 587, 599
(K.B.1759).
But prerogative writs could not issue to foreign countries, even for
British subjects; they were confined to the King's dominions — those
areas over which the Crown was sovereign. See Sharpe 188; 2 R.
Chambers, A Course of Lectures on the English Law 1767-1773, pp. 7-8
(Curley ed.1986); 3 W. Blackstone, Commentaries on the Laws of England
131 (1768) (hereinafter Blackstone). Thus, the writ has never extended
to Scotland, which, although united to England when James I succeeded
to the English throne in 1603, was considered a foreign dominion under
a different Crown — that of the King of Scotland. Sharpe 191; Note on
Habeas 158.[5] That is why Lord Mansfield wrote that "[t]o foreign
dominions, which belong to a prince who succeeds to the throne of
England, this Court has no power to send any writ of any kind. We
cannot send a habeas corpus to Scotland...." Cowle, supra, at 856, 97
Eng. Rep., at 599-600.
The common-law writ was codified by the Habeas Corpus Act of 1679,
which "stood alongside Magna Charta and the English Bill of Rights of
1689 as a towering common law lighthouse of liberty — a beacon by
which framing lawyers in America consciously steered their course."
Amar, Sixth Amendment First Principles, 84 Geo. L.J. 641, 663 (1996).
The writ was established in the Colonies beginning in the 1690's and
at least one colony adopted the 1679 Act almost verbatim. See Dept. of
Political Science, Okla. State Univ., Research Reports, No. 1, R.
Walker, The American Reception of the Writ of Liberty 12-16 (1961).
Section XI of the Act stated where the writ could run. It "may be
directed and run into any county palatine, the cinque-ports, or other
privileged places within the kingdom of England, dominion of Wales, or
town of Berwick upon Tweed, and the islands of Jersey or Guernsey." 31
Car. 2, ch. 2. The cinque-ports and county palatine were so-called
"exempt jurisdictions" — franchises granted by the Crown in which
local authorities would manage municipal affairs, including the court
system, but over which the Crown maintained ultimate sovereignty. See
3 Blackstone 78-79. The other places listed — Wales, Berwick-upon-
Tweed, Jersey, and Guernsey — were territories of the Crown even
though not part England proper. See Cowle, supra, at 853-854, 97 Eng.
Rep., at 598 (Wales and Berwick-upon-Tweed); 1 Blackstone 104 (Jersey
and Guernsey); Sharpe 192 (same).
The Act did not extend the writ elsewhere, even though the existence
of other places to which British prisoners could be sent was
recognized by the Act. The possibility of evading judicial review
through such spiriting-away was eliminated, not by expanding the writ
abroad, but by forbidding (in Article XII of the Act) the shipment of
prisoners to places where the writ did not run or where its execution
would be difficult. See 31 Car. 2, ch. 2; see generally Nutting, The
Most Wholesome Law — The Habeas Corpus Act of 1679, 65 Am. Hist. Rev.
527 (1960).
The Habeas Corpus Act, then, confirms the consensus view of scholars
and jurists that the writ did not run outside the sovereign territory
of the Crown. The Court says that the idea that "jurisdiction followed
the King's officers" is an equally 2305*2305 credible view. Ante, at
2248. It is not credible at all. The only support the Court cites for
it is a page in Boumediene's brief, which in turn cites this Court's
dicta in Rasul, 542 U.S., at 482, 124 S.Ct. 2686, mischaracterizing
Lord Mansfield's statement that the writ ran to any place that was
"under the subjection of the Crown," Cowle, supra, at 856, 97 Eng.
Rep., at 599. It is clear that Lord Mansfield was saying that the writ
extended outside the realm of England proper, not outside the
sovereign territory of the Crown.[6]
The Court dismisses the example of Scotland on the grounds that
Scotland had its own judicial system and that the writ could not, as a
practical matter, have been enforced there. Ante, at 2250. Those
explanations are totally unpersuasive. The existence of a separate
court system was never a basis for denying the power of a court to
issue the writ. See 9 W. Holdsworth, A History of English Law 124 (3d
ed.1944) (citing Ex parte Anderson, 3 El. and El. 487 (1861)). And as
for logistical problems, the same difficulties were present for places
like the Channel Islands, where the writ did run. The Court attempts
to draw an analogy between the prudential limitations on issuing the
writ to such remote areas within the sovereign territory of the Crown
and the jurisdictional prohibition on issuing the writ to Scotland.
See ante, at 2249-2250. But the very authority that the Court cites,
Lord Mansfield, expressly distinguished between these two concepts,
stating that English courts had the "power" to send the writ to places
within the Crown's sovereignty, the "only question" being the
"propriety," while they had "no power to send any writ of any kind" to
Scotland and other "foreign dominions." Cowle, supra, at 856, 97 Eng.
Rep., at 599-600. The writ did not run to Scotland because, even after
the Union, "Scotland remained a foreign dominion of the prince who
succeeded to the English throne," and "union did not extend the
prerogative of the English crown to Scotland." Sharpe 191; see also
Sir Matthew Hale's The Prerogatives of the King 19 (D. Yale ed.1976).
[7]
In sum, all available historical evidence points to the conclusion
that the writ would not have been available at common law for aliens
captured and held outside the sovereign territory of the Crown.
Despite three opening briefs, three reply briefs, and support from a
legion of amici, petitioners have failed to identify a single case in
the history of Anglo-American law that supports their claim to
jurisdiction. The Court finds it significant that there is no recorded
case denying jurisdiction to such prisoners either. See ante, at
2250-2251. But a case standing for the remarkable proposition that the
writ could issue to a foreign land would surely have been reported,
whereas a case denying such a writ for lack of jurisdiction would
likely not. At a minimum, the absence of a 2306*2306 reported case
either way leaves unrefuted the voluminous commentary stating that
habeas was confined to the dominions of the Crown.
What history teaches is confirmed by the nature of the limitations
that the Constitution places upon suspension of the common-law writ.
It can be suspended only "in Cases of Rebellion or Invasion." Art. I,
§ 9, cl. 2. The latter case (invasion) is plainly limited to the
territory of the United States; and while it is conceivable that a
rebellion could be mounted by American citizens abroad, surely the
overwhelming majority of its occurrences would be domestic. If the
extraterritorial scope of habeas turned on flexible, "functional"
considerations, as the Court holds, why would the Constitution limit
its suspension almost entirely to instances of domestic crisis? Surely
there is an even greater justification for suspension in foreign lands
where the United States might hold prisoners of war during an ongoing
conflict. And correspondingly, there is less threat to liberty when
the Government suspends the writ's (supposed) application in foreign
lands, where even on the most extreme view prisoners are entitled to
fewer constitutional rights. It makes no sense, therefore, for the
Constitution generally to forbid suspension of the writ abroad if
indeed the writ has application there.
It may be objected that the foregoing analysis proves too much, since
this Court has already suggested that the writ of habeas corpus does
run abroad for the benefit of United States citizens. "[T]he position
that United States citizens throughout the world may be entitled to
habeas corpus rights ... is precisely the position that this Court
adopted in Eisentrager, see 339 U.S., at 769-770, 70 S.Ct. 936, even
while holding that aliens abroad did not have habeas corpus rights."
Rasul, 542 U.S., at 501, 502, 124 S.Ct. 2686 (SCALIA, J., dissenting)
(emphasis deleted). The reason for that divergence is not difficult to
discern. The common-law writ, as received into the law of the new
constitutional Republic, took on such changes as were demanded by a
system in which rule is derived from the consent of the governed, and
in which citizens (not "subjects") are afforded defined protections
against the Government. As Justice Story wrote for the Court,
"The common law of England is not to be taken in all respects to be
that of America. Our ancestors brought with them its general
principles, and claimed it as their birthright; but they brought with
them and adopted only that portion which was applicable to their
situation." Van Ness v. Pacard, 2 Pet. 137, 144, 7 L.Ed. 374 (1829).
See also Hall, The Common Law: An Account of its Reception in the
United States, 4 Vand. L.Rev. 791 (1951). It accords with that
principle to say, as the plurality opinion said in Reid: "When the
Government reaches out to punish a citizen who is abroad, the shield
which the Bill of Rights and other parts of the Constitution provide
to protect his life and liberty should not be stripped away just
because he happens to be in another land." 354 U.S., at 6, 77 S.Ct.
1222; see also Verdugo-Urquidez, 494 U.S., at 269-270, 110 S.Ct. 1056.
On that analysis, "[t]he distinction between citizens and aliens
follows from the undoubted proposition that the Constitution does not
create, nor do general principles of law create, any juridical
relation between our country and some undefined, limitless class of
noncitizens who are beyond our territory." Id., at 275, 110 S.Ct. 1056
(KENNEDY, J., concurring).
In sum, because I conclude that the text and history of the Suspension
Clause provide no basis for our jurisdiction, I would 2307*2307 affirm
the Court of Appeals even if Eisentrager did not govern these cases.
* * *
Today the Court warps our Constitution in a way that goes beyond the
narrow issue of the reach of the Suspension Clause, invoking
judicially brainstormed separation-of-powers principles to establish a
manipulable "functional" test for the extraterritorial reach of habeas
corpus (and, no doubt, for the extraterritorial reach of other
constitutional protections as well). It blatantly misdescribes
important precedents, most conspicuously Justice Jackson's opinion for
the Court in Johnson v. Eisentrager. It breaks a chain of precedent as
old as the common law that prohibits judicial inquiry into detentions
of aliens abroad absent statutory authorization. And, most tragically,
it sets our military commanders the impossible task of proving to a
civilian court, under whatever standards this Court devises in the
future, that evidence supports the confinement of each and every enemy
prisoner.
The Nation will live to regret what the Court has done today. I
dissent.
[1] In light of the foregoing, the concurrence is wrong to suggest
that I "insufficiently appreciat[e]" the issue of delay in these
cases. See ante, at 2278 (opinion of SOUTER, J.). This Court issued
its decisions in Rasul v. Bush, 542 U.S. 466, 124 S.Ct. 2686, 159 L.Ed.
2d 548, and Hamdi v. Rumsfeld 542 U.S. 507, 124 S.Ct. 2633, 159 L.Ed.
2d 578, in 2004. The concurrence makes it sound as if the political
branches have done nothing in the interim. In fact, Congress responded
18 months later by enacting the DTA. Congress cannot be faulted for
taking that time to consider how best to accommodate both the
detainees' interests and the need to keep the American people safe.
Since the DTA became law, petitioners have steadfastly refused to
avail themselves of the statute's review mechanisms. It is unfair to
complain that the DTA system involves too much delay when petitioners
have consistently refused to use it, preferring to litigate instead.
Today's decision obligating district courts to craft new procedures to
replace those in the DTA will only prolong the process—and delay
relief.
[2] The Court wonders what might happen if the detainee puts forward
new material evidence but the Deputy Secretary refuses to convene a
new CSRT. See ante, at 2273-2274. The answer is that the detainee can
petition the D.C. Circuit for review. The DTA directs that the
procedures for review of new evidence be included among "[t]he
procedures submitted under paragraph (1)(A)" governing CSRT review of
enemy combatant status § 1405(a)(3), 119 Stat. 3476. It is undisputed
that the D.C. Circuit has statutory authority to review and enforce
these procedures. See DTA § 1005(e)(2)(C)(i), id., at 2742.
[1] Even today, the Court cannot resist striking a pose of faux
deference to Congress and the President. Citing the above quoted
passage, the Court says: "The political branches, consistent with
their independent obligations to interpret and uphold the
Constitution, can engage in a genuine debate about how best to
preserve constitutional values while protecting the Nation from
terrorism." Ante, at 2277. Indeed. What the Court apparently means is
that the political branches can debate, after which the Third Branch
will decide.
[2] The opinion seeks to avoid this straightforward conclusion by
saying that the Court has been "careful not to foreclose the
possibility that the protections of the Suspension Clause have
expanded along with post-1789 developments that define the present
scope of the writ." Ante, at 2247-2248 (citing INS v. St. Cyr, 533
U.S. 289 300-301, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)). But not
foreclosing the possibility that they have expanded is not the same as
demonstrating (or at least holding without demonstration, which seems
to suffice for today's majority) that they have expanded. The Court
must either hold that the Suspension Clause has "expanded" in its
application to aliens abroad, or acknowledge that it has no basis to
set aside the actions of Congress and the President. It does neither.
[3] In its failed attempt to distinguish Eisentrager, the Court comes
up with the notion that "de jure sovereignty" is simply an additional
factor that can be added to (presumably) "de facto sovereignty" (i.e.,
practical control) to determine the availability of habeas for aliens,
but that it is not a necessary factor, whereas de facto sovereignty
is. It is perhaps in this de facto sense, the Court speculates, that
Eisentrager found "sovereignty" lacking. See ante, at 2252-2253. If
that were so, one would have expected Eisentrager to explain in some
detail why the United States did not have practical control over the
American zone of occupation. It did not (and probably could not). Of
course this novel de facto-de jure approach does not explain why the
writ never issued to Scotland, which was assuredly within the de facto
control of the English crown. See infra, at 2305.
To support its holding that de facto sovereignty is relevant to the
reach of habeas corpus, the Court cites our decision in Fleming v.
Page, 9 How. 603, 13 L.Ed. 276 (1850), a case about the application of
a customs statute to a foreign port occupied by U.S. forces. See ante,
at 2252. The case used the phrase "subject to the sovereignty and
dominion of the United States" to refer to the United States'
practical control over a "foreign country." 9 How., at 614. But
Fleming went on to explain that because the port remained part of the
"enemy's country," even though under U.S. military occupation, "its
subjugation did not compel the United States, while they held it, to
regard it as part of their dominions, nor to give to it any form of
civil government, nor to extend to it our laws." Id., at 618. If
Fleming is relevant to these cases at all, it undermines the Court's
holding.
[4] Justice SOUTER's concurrence relies on our decision four Terms ago
in Rasul v. Bush, 542 U.S. 466, 124 S.Ct. 2686, 159 L.Ed.2d 548
(2004), where the Court interpreted the habeas statute to extend to
aliens held at Guantanamo Bay. He thinks that "no one who reads the
Court's opinion in Rasul could seriously doubt that the jurisdictional
question must be answered the same way in purely constitutional
cases." Ante, at 2240-2241. But Rasul was devoted primarily to an
explanation of why Eisentrager's statutory holding no longer
controlled given our subsequent decision in Braden v. 30th Judicial
Circuit Court of Ky., 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443
(1973). See Rasul, supra, at 475-479, 124 S.Ct. 2686. And the opinion
of the Court today — which Justice SOUTER joins — expressly rejects
the historical evidence cited in Rasul to support its conclusion about
the reach of habeas corpus. Compare id., at 481-482, 124 S.Ct. 2686,
with ante, at 2249. Moreover, even if one were to accept as true what
Justice SOUTER calls Rasul's "well-considered" dictum, that does not
explain why Eisentrager's constitutional holding must be overruled or
how it can be distinguished. (After all, Rasul distinguished
Eisentrager's statutory holding on a ground inapplicable to its
constitutional holding.) In other words, even if the Court were to
conclude that Eisentrager's rule was incorrect as an original matter,
the Court would have to explain the justification for departing from
that precedent. It therefore cannot possibly be true that Rasul
controls this case, as Justice SOUTER suggests.
[5] My dissent in Rasul v. Bush, 542 U.S. 466, 503, 124 S.Ct. 2686,
159 L.Ed.2d 548 (2004), mistakenly included Scotland among the places
to which the writ could run.
[6] The dicta in Rasul also cited Ex parte Mwenya, [1960] 1 Q.B. 241,
(C. A.), but as I explained in dissent, "[e]ach judge [in Mwenya] made
clear that the detainee's status as a subject was material to the
resolution of the case," 542 U.S., at 504, 124 S.Ct. 2686.
[7] The Court also argues that the fact that the writ could run to
Ireland, even though it was ruled under a "separate" crown, shows that
formal sovereignty was not the touchstone of habeas jurisdiction.
Ante, at 2250-2251. The passage from Blackstone that the Court cites,
however, describes Ireland as "a dependent, subordinate kingdom" that
was part of the "king's dominions." 1 Blackstone 98, 100 (internal
quotation marks omitted). And Lord Mansfield's opinion in Cowle
plainly understood Ireland to be "a dominion of the Crown of England,"
in contrast to the "foreign dominio[n]" of Scotland, and thought that
distinction dispositive of the question of habeas jurisdiction. Cowle,
supra, at 856, 97 Eng. Rep., at 599-600.
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On Oct 7, 4:40 pm, dick <rhomp2...@earthlink.net> wrote:
> As I recall during WW II we were best buds with the Soviets. That
> changed right after the war was over as you may recall and the Soviets
> became our enemies. The same with Osama and the US. Osame was the
> lesser of two evils between the Soviets and the Taliban. Once the
> Soviets were no more, then the Taliban with its actions became an
> enemy. Easy peasy to explain that one.
>
> As to the Geneva Convention the terrorists were not noncombatants. They
> were unlawful combatants which is a totally different thing and makes
> them not covered by the Geneva Convention.
>
> The full range of our rights is not available to the unlawful
> combatants. Different thing from what you are trying to bloviate about.
>
> On 10/07/2010 04:12 PM, nominal9 wrote:
>
>
>
> > Geneva Conventions are for uniformed army from national
> > governments.
> > Where do you get that these terrorists are therefore covered by the
> > Geneva Conventions. dick
>
> > Hi dick , First... I am not a lawyer.... but I do read some such
> > stuff, on occassion.... just to keep an eye on the real
> > liars.....Anyway, I have read portions of the Geneva Convention that
> > extend treaty protections to non-uniformed combatants or just plaint
> > indigenoue=s peopel caught in the middle or "suspected.... do you
> > really want to make me look it up?... it would be a bother....http://
> > en.wikipedia.org/wiki/Third_Geneva_Convention....
> > Article 3 has been called a "Convention in miniature." It is the only
> > article of the Geneva Conventions that applies in non-international
> > conflicts.[1] It describes minimal protections which must be adhered
> > to by all individuals within a signatory's territory during an armed
> > conflict not of an international character (regardless of citizenship
> > or lack thereof): Noncombatants, combatants who have laid down their
> > arms, and combatants who are hors de combat (out of the fight) due to
> > wounds, detention, or any other cause shall in all circumstances be
> > treated humanely, including prohibition of outrages upon personal
> > dignity, in particular humiliating and degrading treatment. The
> > passing of sentences must also be pronounced by a regularly
> > constituted court, affording all the judicial guarantees which are
> > recognized as indispensable by civilized peoples. Article 3's
> > protections exist even if one is not classified as a prisoner of war.
> > Article 3 also states that parties to the internal conflict should
> > endeavour to bring into force, by means of special agreements, all or
> > part of the other provisions of GCIII.
>
> > As to the Abu Ghraib photos, those were not military trials. As to
> > the
> > perps there they had been removed and were having their trials set up
> > when the story was broadcast. The military had already publicized
> > the
> > Abu Ghraib case months before Seymour Hersch wrote his articles. The
> > officers had been removed, the NCO's were under indictment and the
> > case
> > was being handled by the military at the time the story broke. It
> > was
> > the media that blew that up and caused the problems from Abu
> > Ghraib.
> > You should check somewhere other than Talking Points Memo before you
> > mention that. As I said, those were not trials and have no basis for
> > even being mentioned here./ dick
>
> > Well... my basis was your comment on the "inquisition" analogy.... I
> > was comparing some of the "punishments" imposed by ther Inquisition to
> > some of the Photographed punishment at Abu Ghraib... the photo of the
> > semi-naked prisoner with the pointed hood over his head, standing on a
> > stool with electrodes and wires dangling from his fingers particularly
> > evoked the Inquisitiion for me... the Inquisitioners were the first to
> > wear those sorts of pointy hoods, I think.... I don't know if the KKK
> > picked it up directly from them, or not.... Anyway.... association to
> > torture was my aim, not a strict allegation of trials for the
> > prisoners there.
>
> > I made no mention of denying rights to citizens. I was merely
> > suggesting that there is no basis in the Constitution or the case law
> > that would suggest that foreign nationals should be granted the
> > rights
> > that are granted citizens by the Constitution. Can you point to any?
>
> > Come on.... do you mean to tell me that a "foreign national" a tourist
> > for a week in the U.S. or someone on a limited visitor visa... if
> > charged with a crime here in the U.S. ... should not and would not be
> > accorded all rights and privileges under the Courts and Law as a U.S.
> > Citizen? Maybe you should look that one up.... But to your point.... I
> > want to try to find what the U.S. Supreme Court ruled this GITMO
> > question during the Bush years....http://scholar.google.com/
> > scholar_case?case=2483936489630436485&q=Boumediene+v.
> > +Bush&hl=en&as_sdt=8002
> > there it is...... Boumediene v. Bush.... hope the link works for you I
> > could paste the decision but it is long.
>
> > It was the civilians, in particular a civilian lawyer, who was used
> > by
> > this sheik to pass orders to his group in Egypt. That would not
> > have
> > happened with the military. I think if that same case came before
> > the
> > court now with the benefit of hindsight the results would have been
> > different. I also think that had more cases come to the court the
> > weight of judging would have been different as well. It was the luck
> > of
> > the draw which case go to the SCOTUS first. The various cases in
> > the
> > chute came there from different results based on whether they came
> > from
> > the 9th Circuit Court or from a court that actually believed in the
> > Constitution.
>
> > As to your grieving, those seem like crocodile tears to me. "I
> > grieve
> > that because of my political beliefs your rights to protection from
> > terrorists have been denied. I grieve that my AG and her staff set
> > up
> > the wall that kept info from being passed between agencies. I
> > grieve
> > that the administration I supported for 8 years declined to take
> > charge
> > of Osama when he was offered. I grieve that the administration I
> > supported for 8 years declined to do anything when our embassies were
> > blown up. I grieve that when our troops and the ship they were on
> > were
> > attacked the administration I supported for 8 years sat back and did
> > nothing." There's your grief. Fat lot of good it did. / dick
>
> > Please do not question my "grief".... I have long stated that I wish
> > that each of the Dead U.S. 9/11 cilvilians and U.S. soldiers and
> > Coalition soldiers that have died in the Middle East could be replaced
> > by the misguided "leaders" and their political supporters who put them
> > in harm's way.....it should have been Bush/Cheney and the Neocons...
> > plus any of their other misguided supporters.... dead...
> > As for the Clinton Administration's handling of Osama bin Laden... I
> > do not disagree... but go back further... to the Soviet / Afghan
> > War....the U.S. supported Osama back then, too....What turned an "ally
> > " into an enemy, then? How about the Israeli/ Palestinian issue...
> > want to get into that one, too?
>
> > .
>
> > On Oct 6, 5:28 pm, dick<rhomp2...@earthlink.net> wrote:
>
> >> Geneva Conventions are for uniformed army from national governments.
> >> Where do you get that these terrorists are therefore covered by the
> >> Geneva Conventions.
>
> >> As to the Abu Ghraib photos, those were not military trials. As to the
> >> perps there they had been removed and were having their trials set up
> >> when the story was broadcast. The military had already publicized the
> >> Abu Ghraib case months before Seymour Hersch wrote his articles. The
> >> officers had been removed, the NCO's were under indictment and the case
> >> was being handled by the military at the time the story broke. It was
> >> the media that blew that up and caused the problems from Abu Ghraib.
> >> You should check somewhere other than Talking Points Memo before you
> >> mention that. As I said, those were not trials and have no basis for
> >> even being mentioned here.
>
> >> I made no mention of denying rights to citizens. I was merely
> >> suggesting that there is no basis in the Constitution or the case law
> >> that would suggest that foreign nationals should be granted the rights
> >> that are granted citizens by the Constitution. Can you point to any?
>
> >> It was the civilians, in particular a civilian lawyer, who was used by
> >> this sheik to pass orders to his group in Egypt. That would not have
> >> happened with the military. I think if that same case came before the
> >> court now with the benefit of hindsight the results would have been
> >> different. I also think that had more cases come to the court the
> >> weight of judging would have been different as well. It was the luck of
> >> the draw which case go to the SCOTUS first. The various cases in the
> >> chute came there from different results based on whether they came from
> >> the 9th Circuit Court or from a court that actually believed in the
> >> Constitution.
>
> >> As to your grieving, those seem like crocodile tears to me. "I grieve
> >> that because of my political beliefs your rights to protection from
> >> terrorists have been denied. I grieve that my AG and her staff set up
> >> the wall that kept info from being passed between agencies. I grieve
> >> that the administration I supported for 8 years declined to take charge
> >> of Osama when he was offered. I grieve that the administration I
> >> supported for 8 years declined to do anything when our embassies were
> >> blown up. I grieve that when our troops and the ship they were on were
> >> attacked the administration I supported for 8 years sat back and did
> >> nothing." There's your grief. Fat lot of good it did.
>
> >> On 10/06/2010 05:01 PM, nominal9 wrote:
>
> >>> Why do you compare military trials to medieval
> >>> trials. Are you saying that the military trials our military are
> >>> tried
> >>> under are the equivalent of The Inquisition? / dick
>
> >>> Something about the Abu Ghraib photos suggested it to
>
> ...
>
> read more »- Hide quoted text -
>
> - Show quoted text -
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