Boumediene et al. v. Bush, President of the United States

Your relationship with government is simple: government knows everything about you, and you know nothing about government. In practice this means government can do whatever it wants to you before you know it's going to happen. Government policy makers think this is a good way of ensuring citizen compliance. Thus, all of these investigations are retrospective -- they look back at the squirrely shit that government has pulled, and occasionally wring their hands about trying to avoid it happening in the future. Not inspiring reading, but necessary if you are to face the cold reality that Big Brother is more than watching.

Re: Boumediene et al. v. Bush, President of the United State

Postby admin » Mon Oct 14, 2013 8:30 am

Roberts, C. J., dissenting



06–1195 v.



06–1196 v.


on writs of certiorari to the united states court of appeals for the district of columbia circuit

[June 12, 2008]

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 42, but even 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.


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. ___ (2007) (slip op., at 1) (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 (CADC 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 54.

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 petitioners may claim. The plurality in Hamdi v. Rumsfeld, 542 U. S. 507, 533 (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. 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; INS v. St. Cyr, 533 U. S. 289, 304 (2001) ; Heikkila v. Barber, 345 U. S. 229, 236 (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 (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 56. 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. 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 (1944) (“If there is one doctrine more deeply rooted than any other 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 (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 (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 (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 43. 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 66. 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 69 (“[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 66. 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 212 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

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 ___ (slip op., at 1) (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.


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 42, 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 (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 (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 61. 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.


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 3, 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 43. 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 49.

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 54. First of all, the majority is quite wrong to dismiss the 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 (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 55, 56. 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. 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. 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 to satisfy due process, even for citizens. See 542 U. S., at 538. 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 55. 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. 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. 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. 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.

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. 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.

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 48. 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. Besides, Congress and the Executive did not envision “DTA review”—by which I assume the Court means D. C. Circuit review, see ante, at 48—as the detainees’ only opportunity to challenge their detentions. Instead, 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.


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 37. 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.

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 47. 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 50. 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 (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 (“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 (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 (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 (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 substitute for habeas corpus. See Swain v. Pressley, 430 U. S. 372, 381 (1977) ; United States v. Hayman, 342 U. S. 205, 223 (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. The majority, however, objects that “the procedural protections afforded to the detainees in the CSRT hearings are … limited.” Ante, at 37. 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 46–47. 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 (quoting Felker v. Turpin, 518 U. S. 651, 663–664 (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 17. 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 50 (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.


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 55. The Court further complains that petitioners lack “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 54. 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. 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 (“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.

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 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.


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 58. The Court hints darkly that the DTA may suffer from other infirmities, see ante, at 63 (“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 21–23; 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 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 (CA6 2007) (remanding new-evidence claim to the district court for a Brady evidentiary hearing); Avila v. Roe, 298 F. 3d 750, 754 (CA9 2002) (remanding habeas claim to the district court for evidentiary hearing to clarify factual record); United States v. Leone, 215 F. 3d 253, 256 (CA2 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. Raines, 362 U. S. 17, 22 (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 (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 , and n. 7 (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 (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.


The Court’s second criterion for an adequate substitute is the “power to order the conditional release of an individual unlawfully detained.” Ante, at 50. 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 56–57.

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 (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, 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 58. 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 (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)).

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 , n. 12 (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 63. 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.


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 66 (“[e]xcept in cases of undue delay”). Butto 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 66 (opinion of the court) (“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”). 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 (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 (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.



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 2 (opinion of Souter, J.). This Court issued its decisions in Rasul v. Bush, 542 U. S. 466 , and Hamdi v. Rumsfeld 542 U. S. 507 , 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 62–63. 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.
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Re: Boumediene et al. v. Bush, President of the United State

Postby admin » Mon Oct 14, 2013 8:34 am

Scalia, J., dissenting



06–1195 v.



06–1196 v.


on writs of certiorari to the united states court of appeals for the district of columbia circuit

[June 12, 2008]

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 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.


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 (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 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 54–55. 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 (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.

“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 (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 40. “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 39. 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.



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 (1990) ; United States v. National Dairy Products Corp., 372 U. S. 29, 32 (1963) ; see also American Communications Assn. v. Douds, 339 U. S. 382, 435 (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 (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 (1988) ; Regan v. Wald, 468 U. S. 222, 243 (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 22, 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 22–23; Rasul v. Bush, 542 U. S. 466, 500–501 (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 25. 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 36.

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 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.


The Court purports to derive from our precedents a “functional” test for the extraterritorial reach of the writ, ante, at 34, 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 , 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. 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.

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.

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 (discussing Ex parte Quirin, 317 U. S. 1 (1942) , and In re Yamashita, 327 U. S. 1 (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.

Eisentrager thus held—held beyond any doubt—that the Constitution does not ensure habeas for aliens held by the United 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 32. Formal sovereignty, says the Court, is merely one consideration “that bears upon which constitutional guarantees apply” in a given location. Ante, at 34. 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.

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 (quoted in part, ante, at 36).

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 (emphasis added). How much further than what? Further than the rule set 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. 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.

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 26–29. It cites our statement in Balzac v. Porto Rico, 258 U. S. 298, 312 (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 28. 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 (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 (1990) ; Reid v. Covert, 354 U. S. 1, 13 (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.

The Court also relies on the “[p]ractical considerations” that influenced our decision in Reid v. Covert, supra. See ante, at 29–32. 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 (plurality opinion of Black, J.); id., at 74–75 (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 (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 (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 32. 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 38, 39. 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 37. But no one looking for “functional” equivalents would put Eisentrager and the present cases in the same category, 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 (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, 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 (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.


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 35. That cannot be, the Court says, because it is the duty of this Court to say what the law is. Id., at 35–36. It would be difficult to imagine a more 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 (1960) (citing Marbury v. Madison, 1 Cranch 137 (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 (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.


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 (CADC 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 (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 (1934) ; see also INS v. St. Cyr, 533 U. S. 289, 342 (2001) (Scalia, J., dissenting); D’Oench, Duhme & Co. v. FDIC, 315 U. S. 447, 471, n. 9 (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 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, 65Am. 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 credible view. Ante, at 16. 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, 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 20. 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 19–20. 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 21–22. 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 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, even while holding that aliens abroad did not have habeas corpus rights.” Rasul, 542 U. S., at 501, 502 (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, 2Pet. 137, 144 (1829).

See also Hall, The Common Law: An Account of its Reception in the United States, 4Vand. 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., at6; see also Verdugo-Urquidez, 494 U. S., at 269–270. 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 (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 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. 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 69. 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 15–16 (citing INS v. St. Cyr, 533 U. S. 289 300–301 (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 23–25. 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 22. 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, 9How. 603 (1850), a case about the application of a customs statute to a foreign port occupied by U. S. forces. See ante, at 24. 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 (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 1–2. 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 (1973) . See Rasul, supra, at 475–479. 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, with ante, at 18. 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 (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.

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 21. 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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