Boumediene, Lakhdar v. Bush, George

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 8, 2005 Decided February 20, 2007

No. 05-5062

LAKHDAR BOUMEDIENE, DETAINEE, CAMP DELTA, ET AL.,

APPELLANTS

v.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, ET AL.,

APPELLEES

Consolidated with

05-5063

Appeals from the United States District Court

for the District of Columbia

(No. 04cv01142)

(No. 04cv01166)

No. 05-5064

KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI KHALID

ABDULLAH FAHAD AL ODAH ET AL.,

APPELLEES/CROSS-APPELLANTS

v.

2

UNITED STATES OF AMERICA, ET AL.,

APPELLANTS/CROSS-APPELLEES

Consolidated with

05-5095, 05-5096, 05-5097, 05-5098, 05-5099, 05-5100,

05-5101, 05-5102, 05-5103, 05-5104, 05-5105, 05-5106,

05-5107, 05-5108, 05-5109, 05-5110, 05-5111, 05-5112,

05-5113, 05-5114, 05-5115, 05-5116

______

Appeals from the United States District Court

for the District of Columbia

(No. 02cv00828)

(No. 02cv00299)

(No. 02cv01130)

(No. 02cv01135)

(No. 02cv01136)

(No. 02cv01137)

(No. 02cv01144)

(No. 02cv01164)

(No. 02cv01194)

(No. 02cv01227)

(No. 02cv01254)

Stephen H. Oleskey argued the causes for appellants in

Nos. 05-5062, et al. With him on the briefs were Louis R.

Cohen, Robert C. Kirsch, Douglas F. Curtis, Mark C. Fleming,

Wesley R. Powell, Julia Symon, and Christopher Land.

James F. Fitzpatrick, Leslie M. Hill, and Graham J.

3

Jenkins were on the brief for amicus curiae Global Rights in

support of appellants in Nos. 05-5062, et al.

Thomas B. Wilner argued the causes for the

appellees/cross-appellants in Nos. 05-5064, et al. With him on

the briefs were Barbara J. Olshansky, Joe Margulies, Neil H.

Koslowe, Jared A. Goldstein, L. Barrett Boss, Adrian Lee Steel,

Jr., Baher Azmy, Shayana Devendra Kadidal, Barry J. Pollak,

Eric M. Freedman, Richard J. Wilson, George Brent Mickum,

IV, Douglas James Behr, Erwin Chemerinsky, Jonathan L.

Hafetz, Muneer I. Ahmad, Pamela Rogers Chepiga, Ralph A.

Taylor, Seth B. Waxman, Kevin B. Bedell, David H. Remes,

Marc Falkoff, Marc A. Goldman, David J. Cynamon, and

Osman Handoo.

Wesley R. Powell and Christopher C. Land were on the

brief of amicus curiae Omar Deghayes in support of the

detainees.

Morton Sklar was on the brief of amicus curiae The

World Organization for Human Rights USA in support of the

detainees.

David Overlock Stewart was on the brief of amici curiae

Legal and Historical Scholars in support of the detainees.

Jonathan L. Hafetz was on the brief of amici curiae

British and American Habeas Scholars in support of the

detainees.

Steven T. Wax, Federal Public Defender, Stephen R.

Sady, Ruben L. Iniguez, and Amy Baggio, Chief Deputies

Federal Public Defender, Federal Public Defender for the

District of Oregon, and A.J. Kramer, Federal Public Defender,

Federal Public Defender for the District of Columbia, were on

4

the brief for amicus curiae Federal Public Defender Habeas

Corpus Counsel in support of the detainees.

Eugene R. Fidell and Ronald W. Meister were on the

brief for amicus curiae the National Institute of Military Justice

in support of the detainees.

Gregory G. Katsas, Deputy Assistant Attorney General,

U.S. Department of Justice, argued the cause for the United

States of America, et al. in Nos. 05-5062, et al. and 05-5064, et

al. With him on the briefs were Paul D. Clement, Solicitor

General, Peter D. Keisler, Assistant Attorney General, and

Douglas N. Letter, Robert M. Loeb, Eric D. Miller, and

Catherine Y. Hancock, Attorneys. Kenneth L. Wainstein, U.S.

Attorney at the time the briefs were filed, entered an appearance.

Daniel J. Popeo and Richard A. Samp were on the brief

of amici curiae Washington Legal Foundation and Allied

Educational Foundation in support of the United States of

America.

Before: SENTELLE, RANDOLPH and ROGERS, Circuit

Judges.

Opinion for the court filed by Circuit Judge RANDOLPH.

Dissenting opinion filed by Circuit Judge ROGERS.

RANDOLPH, Circuit Judge: Do federal courts have

jurisdiction over petitions for writs of habeas corpus filed by

aliens captured abroad and detained as enemy combatants at the

Guantanamo Bay Naval Base in Cuba? The question has been

the recurring subject of legislation and litigation. In these

consolidated appeals, foreign nationals held at Guantanamo filed

petitions for writs of habeas corpus alleging violations of the

5

Constitution, treaties, statutes, regulations, the common law, and

the law of nations. Some detainees also raised non-habeas

claims under the federal question statute, 28 U.S.C. § 1331, and

the Alien Tort Act, id. § 1350. In the “Al Odah” cases (Nos.

05-5064, 05-5095 through 05-5116), which consist of eleven

cases involving fifty-six detainees, Judge Green denied the

government’s motion to dismiss with respect to the claims

arising from alleged violations of the Fifth Amendment’s Due

Process Clause and the Third Geneva Convention, but dismissed

all other claims. See In re Guantanamo Detainee Cases, 355 F.

Supp. 2d 443 (D.D.C. 2005). After Judge Green certified the

order for interlocutory appeal under 28 U.S.C. § 1292(b), the

government appealed and the detainees cross-appealed. In the

“Boumediene” cases (Nos. 05-5062 and 05-5063) – two cases

involving seven detainees – Judge Leon granted the

government’s motion and dismissed the cases in their entirety.

See Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005).

In the two years since the district court’s decisions the

law has undergone several changes. As a result, we have had

two oral arguments and four rounds of briefing in these cases

during that period. The developments that have brought us to

this point are as follows.

In Al Odah v. United States, 321 F.3d 1134 (D.C. Cir.

2003), rev’d sub nom. Rasul v. Bush, 542 U.S. 466 (2004), we

affirmed the district court’s dismissal of various claims – habeas

and non-habeas – raised by Guantanamo detainees. With

respect to the habeas claims, we held that “no court in this

country has jurisdiction to grant habeas relief, under 28 U.S.C.

§ 2241, to the Guantanamo detainees.” 321 F.3d at 1141. The

habeas statute then stated that “Writs of habeas corpus may be

granted by the Supreme Court, any justice thereof, the district

courts and any circuit judge within their respective

jurisdictions.” 28 U.S.C. § 2241(a) (2004). Because

6

Guantanamo Bay was not part of the sovereign territory of the

United States, but rather land the United States leases from

Cuba, see Al Odah, 321 F.3d at 1142-43, we determined it was

not within the “respective jurisdictions” of the district court or

any other court in the United States. We therefore held that

§ 2241 did not provide statutory jurisdiction to consider habeas

relief for any alien – enemy or not – held at Guantanamo. Id. at

1141. Regarding the non-habeas claims, we noted that “‘the

privilege of litigation’ does not extend to aliens in military

custody who have no presence in ‘any territory over which the

United States is sovereign,’” id. at 1144 (quoting Johnson v.

Eisentrager, 339 U.S. 763, 777-78 (1950)), and held that the

district court properly dismissed those claims.

The Supreme Court reversed in Rasul v. Bush, 542 U.S.

466 (2004), holding that the habeas statute extended to aliens at

Guantanamo. Although the detainees themselves were beyond

the district court’s jurisdiction, the Court determined that the

district court’s jurisdiction over the detainees’ custodians was

sufficient to provide subject-matter jurisdiction under § 2241.

See Rasul, 542 U.S. at 483-84. The Court further held that the

district court had jurisdiction over the detainees’ non-habeas

claims because nothing in the federal question statute or the

Alien Tort Act categorically excluded aliens outside the United

States from bringing such claims. See Rasul, 542 U.S. at 484-

85. The Court remanded the cases to us, and we remanded them

to the district court.

In the meantime Congress responded with the Detainee

Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2680

(2005) (DTA), which the President signed into law on

December 30, 2005. The DTA added a subsection (e) to the

habeas statute. This new provision stated that, “[e]xcept as

provided in section 1005 of the [DTA], no court, justice, or

judge” may exercise jurisdiction over

7

(1) an application for a writ of habeas corpus filed by or

on behalf of an alien detained by the Department of

Defense at Guantanamo Bay, Cuba; or

(2) any other action against the United States or its

agents relating to any aspect of the detention by the

Department of Defense of an alien at Guantanamo Bay,

Cuba, who

(A) is currently in military custody; or

(B) has been determined by the United States Court

of Appeals for the District of Columbia Circuit . . .

to have been properly detained as an enemy

combatant.

DTA § 1005(e)(1) (internal quotation marks omitted). The

“except as provided” referred to subsections (e)(2) and (e)(3) of

section 1005 of the DTA, which provided for exclusive judicial

review of Combatant Status Review Tribunal determinations

and military commission decisions in the D.C. Circuit. See

DTA § 1005(e)(2), (e)(3).

The following June, the Supreme Court decided Hamdan

v. Rumsfeld, 126 S. Ct. 2749 (2006). Among other things, the

Court held that the DTA did not strip federal courts of

jurisdiction over habeas cases pending at the time of the DTA’s

enactment. The Court pointed to a provision of the DTA stating

that subsections (e)(2) and (e)(3) of section 1005 “shall apply

with respect to any claim . . . that is pending on or after the date

of the enactment of this Act.” DTA § 1005(h). In contrast, no

provision of the DTA stated whether subsection (e)(1) applied

to pending cases. Finding that Congress “chose not to so

provide . . . after having been presented with the option,” the

8

Court concluded “[t]he omission [wa]s an integral part of the

statutory scheme.” Hamdan, 126 S. Ct. at 2769.

In response to Hamdan, Congress passed the Military

Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600

(2006) (MCA), which the President signed into law on

October 17, 2006. Section 7 of the MCA is entitled “Habeas

Corpus Matters.” In subsection (a), Congress again amended

§ 2241(e). The new amendment reads:

(1) No court, justice, or judge shall have jurisdiction to

hear or consider an application for a writ of habeas

corpus filed by or on behalf of an alien detained by the

United States who has been determined by the United

States to have been properly detained as an enemy

combatant or is awaiting such determination.

(2) Except as provided in [section 1005(e)(2) and (e)(3)

of the DTA], no court, justice, or judge shall have

jurisdiction to hear or consider any other action against

the United States or its agents relating to any aspect of

the detention, transfer, treatment, trial, or conditions of

confinement of an alien who is or was detained by the

United States and has been determined by the United

States to have been properly detained as an enemy

combatant or is awaiting such determination.

MCA § 7(a) (internal quotation marks omitted). Subsection (b)

states:

The amendment made by subsection (a) shall take effect

on the date of the enactment of this Act, and shall apply

to all cases, without exception, pending on or after the

date of the enactment of this Act which relate to any

aspect of the detention, transfer, treatment, trial, or

9

conditions of detention of an alien detained by the

United States since September 11, 2001.

MCA § 7(b) (emphasis added).

The first question is whether the MCA applies to the

detainees’ habeas petitions. If the MCA does apply, the second

question is whether the statute is an unconstitutional suspension

of the writ of habeas corpus.1

I.

As to the application of the MCA to these lawsuits,

section 7(b) states that the amendment to the habeas corpus

statute, 28 U.S.C. § 2241(e), “shall apply to all cases, without

exception, pending on or after the date of the enactment” that

relate to certain subjects. The detainees’ lawsuits fall within the

subject matter covered by the amended § 2241(e); each case

relates to an “aspect” of detention and each deals with the

detention of an “alien” after September 11, 2001. The MCA

brings all such “cases, without exception” within the new law.

Everyone who has followed the interaction between

Congress and the Supreme Court knows full well that one of the

primary purposes of the MCA was to overrule Hamdan.2

1

Section 7(a) of the MCA eliminates jurisdiction over non-

habeas claims by aliens detained as enemy combatants. That alone is

sufficient to require dismissal even of pending non-habeas claims. See

Bruner v. United States, 343 U.S. 112, 116-17 (1952). Section 7(b)

reinforces this result.

2

Without exception, both the proponents and opponents of

section 7 understood the provision to eliminate habeas jurisdiction

over pending cases. See, e.g., 152 Cong. Rec. S10357 (daily ed. Sept.

28, 2006) (statement of Sen. Leahy) (“The habeas stripping provisions

10

Everyone, that is, except the detainees. Their cases, they argue,

are not covered. The arguments are creative but not cogent. To

accept them would be to defy the will of Congress. Section 7(b)

could not be clearer. It states that “the amendment made by

subsection (a)” – which repeals habeas jurisdiction – applies to

“all cases, without exception” relating to any aspect of

detention. It is almost as if the proponents of these words were

in the bill go far beyond what Congress did in the Detainee Treatment

Act . . . . This new bill strips habeas jurisdiction retroactively, even

for pending cases.”); id. at S10367 (statement of Sen. Graham) (“The

only reason we are here is because of the Hamdan decision. The

Hamdan decision did not apply . . . the [DTA] retroactively, so we

have about 200 and some habeas cases left unattended and we are

going to attend to them now.”); id. at S10403 (statement of Sen.

Cornyn) (“[O]nce . . . section 7 is effective, Congress will finally

accomplish what it sought to do through the [DTA] last year. It will

finally get the lawyers out of Guantanamo Bay. It will substitute the

blizzard of litigation instigated by Rasul v. Bush with a narrow DC

Circuit-only review of the [CSRT] hearings.”); id. at S10404

(statement of Sen. Sessions) (“It certainly was not my intent, when I

voted for the DTA, to exempt all of the pending Guantanamo lawsuits

from the provisions of that act. * * * Section 7 of the [MCA] fixes

this feature of the DTA and ensures that there is no possibility of

confusion in the future. . . . I don’t see how there could be any

confusion as to the effect of this act on the pending Guantanamo

litigation. The MCA’s jurisdictional bar applies to that litigation

‘without exception.’”); 152 Cong. Rec. H7938 (daily ed. Sept. 29,

2006) (statement of Rep. Hunter) (“The practical effect of [section 7]

will be to eliminate the hundreds of detainee lawsuits that are pending

in courts throughout the country and to consolidate all detainee

treatment cases in the D.C. Circuit.”); id. at H7942 (Rep. Jackson-Lee)

(“The habeas provisions in the legislation are contrary to

congressional intent in the [DTA]. In that act, Congress did not intend

to strip the courts of jurisdiction over the pending habeas [cases].”).

11

slamming their fists on the table shouting “When we say ‘all,’

we mean all – without exception!”3

The detainees of course do not see it that way. They say

Congress should have expressly stated in section 7(b) that

habeas cases were included among “all cases, without exception,

pending on or after” the MCA became law. Otherwise, the

MCA does not represent an “unambiguous statutory directive[]”

to repeal habeas corpus jurisdiction. INS v. St. Cyr, 533 U.S.

289, 299 (2001). This is nonsense. Section 7(b) specifies the

effective date of section 7(a). The detainees’ argument means

that Congress, in amending the habeas statute (28 U.S.C. §

2241), specified an effective date only for non-habeas cases. Of

course Congress did nothing of the sort. Habeas cases are

simply a subset of cases dealing with detention. See, e.g.,

Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).4 Congress did

not have to say that “the amendment made by subsection (a)” –

which already expressly includes habeas cases – shall take effect

on the date of enactment and shall apply to “all cases, without

exception, including habeas cases.” The St. Cyr rule of

3

Congress has rarely found it necessary to emphasize the

absence of exceptions to a clear rule. Indeed, the use of “without

exception” to emphasize the word “all” occurs in only one other

provision of the U.S. Code. See 48 U.S.C. § 526(a).

4

If section 7(b) did not include habeas cases among cases

“which relate to any aspect of the detention, transfer, treatment, trial,

or conditions of detention,” it would be inconsistent with section 7(a).

Section 7(a) of the MCA first repeals jurisdiction “to hear or consider

an application for a writ of habeas corpus” by detainees. 28 U.S.C.

§ 2241(e)(1). It then repeals jurisdiction over “any other action . . .

relating to any aspect of the detention, transfer, treatment, trial, or

conditions of confinement” of a detainee, id. § 2241(e)(2) (emphasis

added), thus signifying that Congress considered habeas cases as cases

relating to detention, as indeed they are.

12

interpretation the detainees invoke demands clarity, not

redundancy.

The detainees also ask us to compare the language of

section 7(b) to that of section 3 of the MCA. Section 3, entitled

“Military Commissions,” creates jurisdiction in the D.C. Circuit

for review of military commission decisions, see 10 U.S.C.

§ 950g. It then adds 10 U.S.C. § 950j, which deals with the

finality of military commission decisions. Section 950j strips

federal courts of jurisdiction over any pending or future cases

that would involve review of such decisions:

Except as otherwise provided in this chapter and

notwithstanding any other provision of law (including

section 2241 of title 28 or any other habeas corpus

provision), no court, justice, or judge shall have

jurisdiction to hear or consider any claim or cause of

action whatsoever, including any action pending on or

filed after the date of the enactment of the Military

Commissions Act of 2006, relating to the prosecution,

trial, or judgment of a military commission under this

chapter, including challenges to the lawfulness of

procedures of military commissions under this chapter.

10 U.S.C. § 950j(b) (emphasis added). The detainees maintain

that § 950j calls into question Congress’s intention to apply

section 7(b) to pending habeas cases.

The argument goes nowhere. Section 7(b), read in

conjunction with section 7(a), is no less explicit than § 950j.

Section 7(a) strips jurisdiction over detainee cases, including

habeas cases, and section 7(b) makes section 7(a) applicable to

pending cases. Section 950j accomplishes the same thing, but

in one sentence. A drafting decision to separate section 7 into

two subsections – one addressing the scope of the jurisdictional

13

bar, the other addressing how the bar applies to pending cases –

makes no legal difference.5

II.

This brings us to the constitutional issue: whether the

MCA, in depriving the courts of jurisdiction over the detainees’

habeas petitions, violates the Suspension Clause of the

Constitution, U.S. CONST. art. I, § 9, cl. 2, which states that “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.”

5

The detainees suggest that federal courts retain some form

of residual common law jurisdiction over habeas petitions. Ex parte

Bollman, 8 U.S. (4 Cranch) 75, 95 (1807), holds the opposite. See Ex

parte McCardle, 74 U.S. 506 (1868). “Jurisdiction of the lower

federal courts is . . . limited to those subjects encompassed within a

statutory grant of jurisdiction.” Ins. Corp. of Ireland, Ltd. v.

Compagnie des Bauxites de Guinee, 456 U.S. 694, 701 (1982). The

observations about common law habeas in Rasul, 542 U.S. at 481-82,

referred to the practice in England. Even if there were such a thing

as common law jurisdiction in the federal courts, § 2241(e)(1) quite

clearly eliminates all “jurisdiction to hear or consider an application

for a writ of habeas corpus” by a detainee, whatever the source of that

jurisdiction.

In order to avoid “serious ‘due process,’ Suspension Clause,

and Article III problems,” the detainees also urge us not to read

section 7 of the MCA to eliminate habeas jurisdiction over Geneva

Convention claims. But that reading is unavoidable. Section 7 is

unambiguous, as is section 5(a), which states that “No person may

invoke the Geneva Conventions or any protocols thereto in any habeas

corpus or other civil action or proceeding . . . as a source of rights in

any court of the United States.”

14

The Supreme Court has stated the Suspension Clause

protects the writ “as it existed in 1789,” when the first Judiciary

Act created the federal courts and granted jurisdiction to issue

writs of habeas corpus. St. Cyr, 533 U.S. at 301; cf. Henry J.

Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal

Judgments, 38 U. CHI. L. REV. 142, 170 (1970). The detainees

rely mainly on three cases to claim that in 1789 the privilege of

the writ extended to aliens outside the sovereign’s territory. In

Lockington’s Case, Bright. (N.P.) 269 (Pa. 1813), a British

resident of Philadelphia had been imprisoned after failing to

comply with a federal marshal’s order to relocate. The War of

1812 made Lockington an “enemy alien” under the Alien

Enemies Act of 1798. Although he lost on the merits of his

petition for habeas corpus before the Pennsylvania Supreme

Court, two of three Pennsylvania justices held that he was

entitled to review of his detention.6 In The Case of Three

Spanish Sailors, 96 Eng. Rep. 775 (C.P. 1779), three Spanish

seamen had boarded a merchant vessel bound for England with

a promise of wages on arrival. After arriving in England, the

English captain refused to pay their wages and turned them over

to a warship as prisoners of war. The King’s Bench denied the

sailors’ petitions because they were “alien enemies and prisoners

of war, and therefore not entitled to any of the privileges of

Englishmen; much less to be set at liberty on a habeas corpus.”

Id. at 776. The detainees claim that, as in Lockington’s Case,

the King’s Bench exercised jurisdiction and reached the merits.

The third case – Rex v. Schiever, 97 Eng. Rep. 551 (K.B.

1759) – involved a citizen of Sweden intent on entering the

English merchant trade. While at sea on an English merchant’s

6

During this period, state courts often employed the writ of

habeas corpus to inquire into the legality of federal detention. The

Supreme Court later held in Ableman v. Booth, 62 U.S. (21 How.) 506

(1859), and Tarble’s Case, 80 U.S. (13 Wall.) 397 (1871), that state

courts had no such power.

15

ship, a French privateer took Schiever along with the rest of the

crew as prisoners, transferred the crew to another French ship,

and let the English prisoners go free. An English ship thereafter

captured the French ship and its crew, and carried them to

Liverpool where Schiever was imprisoned. From Liverpool

Schiever petitioned for habeas corpus, claiming he was a citizen

of Sweden and only by force entered the service of the French.

The court denied him relief because it found ample evidence that

he was a prisoner of war. Id. at 552.

None of these cases involved an alien outside the

territory of the sovereign. Lockington was a resident of

Philadelphia. And the three Spanish sailors and Schiever were

all held within English sovereign territory.7 The detainees cite

no case and no historical treatise showing that the English

common law writ of habeas corpus extended to aliens beyond

the Crown’s dominions. Our review shows the contrary. See

WILLIAM F. DUKER, A CONSTITUTIONAL HISTORY OF HABEAS

CORPUS 53 (1980); 9 WILLIAM HOLDSWORTH, A HISTORY OF

ENGLISH LAW 116-17, 124 (1982 ed.); 3 BLACKSTONE,

COMMENTARIES 131 (1768); see also 1 Op. Att’y Gen. 47

(1794); In re Ning Yi-Ching, 56 T. L. R. 3, 5 (Vacation Ct. 1939)

(noting prior judge “had listened in vain for a case in which the

writ of habeas corpus had issued in respect of a foreigner

detained in a part of the world which was not a part of the

King’s dominions or realm”). Robert Chambers, the successor

to Blackstone at Oxford, wrote in his lectures that the writ of

7

The dissent claims that the difference between Schiever and

the detainees is “exceedingly narrow,” Dissent at 14, because Schiever

was brought involuntarily to Liverpool. For this proposition, the

dissent cites United States v. Verdugo-Urquidez, 494 U.S. 259, 271

(1990). Verdugo-Urquidez was a Fourth Amendment case.

Obviously, it had nothing to say about habeas corpus in Eighteenth

Century England.

16

habeas corpus extended only to the King’s dominions. 2

ROBERT CHAMBERS, A COURSE OF LECTURES ON THE ENGLISH

LAW DELIVERED AT OXFORD 1767-1773 (composed in

association with Samuel Johnson), at 7-8 (Thomas M. Curley

ed., 1986). Chambers cited Rex v. Cowle, 97 Eng. Rep. (2 Burr.)

587 (K.B. 1759), in which Lord Mansfield stated that “[t]o

foreign dominions . . . this Court has no power to send any writ

of any kind. We cannot send a habeas corpus to Scotland, or to

the electorate; but to Ireland, the Isle of Man, the plantations

[American colonies] . . . we may.” Every territory that

Mansfield, Blackstone, and Chambers cited as a jurisdiction to

which the writ extended (e.g., Ireland, the Isle of Man, the

colonies, the Cinque Ports, and Wales) was a sovereign territory

of the Crown.

When agents of the Crown detained prisoners outside the

Crown’s dominions, it was understood that they were outside the

jurisdiction of the writ. See HOLDSWORTH, supra, at 116-17.

Even British citizens imprisoned in “remote islands, garrisons,

and other places” were “prevent[ed] from the benefit of the

law,” 2 HENRY HALLAM, THE CONSTITUTIONAL HISTORY OF

ENGLAND 127-28 (William S. Hein Co. 1989) (1827), which

included access to habeas corpus, see DUKER, supra, at 51-53;

HOLDSWORTH, supra, at 116; see also Johan Steyn,

Guantanamo Bay: The Legal Black Hole, 53 INT’L & COMP.

L.Q. 1, 8 (2004) (“the writ of habeas corpus would not be

available” in “remote islands, garrisons, and other places”

(internal quotation marks omitted)). Compliance with a writ

from overseas was also completely impractical given the habeas

law at the time. In Cowle, Lord Mansfield explained that even

in the far off territories “annexed to the Crown,” the Court

would not send the writ, “notwithstanding the power.” 97 Eng.

Rep. at 600. This is doubtless because of the Habeas Corpus

Act of 1679. The great innovation of this statute was in setting

time limits for producing the prisoner and imposing fines on the

17

custodian if those limits were not met. See CHAMBERS, supra,

at 11. For a prisoner detained over 100 miles from the court, the

detaining officer had twenty days after receiving the writ to

produce the body before the court. See id. If he did not produce

the body, he incurred a fine. One can easily imagine the

practical problems this would have entailed if the writ had run

outside the sovereign territory of the Crown and reached British

soldiers holding foreign prisoners in overseas conflicts, such as

the War of 1812. The short of the matter is that given the

history of the writ in England prior to the founding, habeas

corpus would not have been available in 1789 to aliens without

presence or property within the United States.

Johnson v. Eisentrager, 339 U.S. 763 (1950), ends any

doubt about the scope of common law habeas. “We are cited to

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; see also Note, Habeas Corpus Protection Against Illegal

Extraterritorial Detention, 51 COLUM. L. REV. 368, 368 (1951).

The detainees claim they are in a different position than the

prisoners in Eisentrager, and that this difference is material for

purposes of common law habeas.8 They point to dicta in Rasul,

542 U.S. 481-82, in which the Court discussed English habeas

cases and the “historical reach of the writ.” Rasul refers to

several English and American cases involving varying

combinations of territories of the Crown and relationships

8

The detainees are correct that they are not “enemy aliens.”

That term refers to citizens of a country with which the United States

is at war. See Al Odah, 321 F.3d at 1139-40. But under the common

law, the dispositive fact was not a petitioner’s enemy alien status, but

his lack of presence within any sovereign territory.

18

between the petitioner and the country in which the writ was

sought. See id. But as Judge Robertson found in Hamdan,

“[n]ot one of the cases mentioned in Rasul held that an alien

captured abroad and detained outside the United States – or in

‘territory over which the United States exercises exclusive

jurisdiction and control,’ Rasul, 542 U.S. at 475 – had a

common law or constitutionally protected right to the writ of

habeas corpus.” Hamdan v. Rumsfeld, No. 04-1519, 2006 WL

3625015, at *7 (D.D.C. Dec. 13, 2006). Justice Scalia made the

same point in his Rasul dissent, see Rasul, 542 U.S. at 502-05 &

n.5 (Scalia, J., dissenting) (noting the absence of “a single case

holding that aliens held outside the territory of the sovereign

were within reach of the writ”), and the dissent acknowledges it

here, see Dissent at 12. We are aware of no case prior to 1789

going the detainees’ way,9 and we are convinced that the writ in

1789 would not have been available to aliens held at an overseas

military base leased from a foreign government.

The detainees encounter another difficulty with their

Suspension Clause claim. Precedent in this court and the

Supreme Court holds that the Constitution does not confer rights

on aliens without property or presence within the United States.

As we explained in Al Odah, 321 F.3d at 1140-41, the

controlling case is Johnson v. Eisentrager. There twenty-one

German nationals confined in custody of the U.S. Army in

9

The dissent claims the lack of any case on point is a result

of the unique combination of circumstances in this case. But

extraterritorial detention was not unknown in Eighteenth Century

England. See HOLDSWORTH, supra, at 116-17; DUKER, supra, at 51-

53. As noted, supra, these prisoners were beyond the protection of the

law, which included access to habeas corpus. And Eisentrager (and

the two hundred other alien petitioners the court noted, see 339 U.S.

at 768 n.1) involved both extraterritorial detention and alien

petitioners.

19

Germany filed habeas corpus petitions. Although the German

prisoners alleged they were civilian agents of the German

government, a military commission convicted them of war

crimes arising from military activity against the United States in

China after Germany’s surrender. They claimed their

convictions and imprisonment violated various constitutional

provisions and the Geneva Conventions. The Supreme Court

rejected the proposition “that the Fifth Amendment confers

rights upon all persons, whatever their nationality, wherever

they are located and whatever their offenses,” 339 U.S. at 783.

The Court continued: “If the Fifth Amendment confers its rights

on all the world . . . [it] would mean that during military

occupation irreconcilable enemy elements, guerrilla fighters, and

‘werewolves’ could require the American Judiciary to assure

them freedoms of speech, press, and assembly as in the First

Amendment, right to bear arms as in the Second, security

against ‘unreasonable’ searches and seizures as in the Fourth, as

well as rights to jury trial as in the Fifth and Sixth

Amendments.” Id. at 784. (Shortly before Germany’s

surrender, the Nazis began training covert forces called

“werewolves” to conduct terrorist activities during the Allied

occupation. See http://www.archives.gov/iwg/

declassified_records/oss_ records_263_wilhelm_hoettl.html.)

Later Supreme Court decisions have followed

Eisentrager. In 1990, for instance, the Court stated that

Eisentrager “rejected the claim that aliens are entitled to Fifth

Amendment rights outside the sovereign territory of the United

States.” United States v. Verdugo-Urquidez, 494 U.S. 259, 269

(1990). After describing the facts of Eisentrager and quoting

from the opinion, the Court concluded that with respect to

aliens, “our rejection of extraterritorial application of the Fifth

Amendment was emphatic.” Id. By analogy, the Court held that

the Fourth Amendment did not protect nonresident aliens against

unreasonable searches or seizures conducted outside the

20

sovereign territory of the United States. Id. at 274-75. Citing

Eisentrager again, the Court explained that to extend the Fourth

Amendment to aliens abroad “would have significant and

deleterious consequences for the United States in conducting

activities beyond its boundaries,” particularly since the

government “frequently employs Armed Forces outside this

country,” id. at 273. A decade after Verdugo-Urquidez, the

Court – again citing Eisentrager – found it “well established that

certain constitutional protections available to persons inside the

United States are unavailable to aliens outside of our geographic

borders.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001).10

Any distinction between the naval base at Guantanamo

Bay and the prison in Landsberg, Germany, where the

petitioners in Eisentrager were held, is immaterial to the

application of the Suspension Clause. The United States

occupies the Guantanamo Bay Naval Base under an indefinite

lease it entered into in 1903. See Al Odah, 321 F.3d at 1142.

The text of the lease and decisions of circuit courts and the

Supreme Court all make clear that Cuba – not the United

States – has sovereignty over Guantanamo Bay. See Vermilya-

Brown Co. v. Connell, 335 U.S. 377, 381 (1948); Cuban Am.

Bar Ass’n v. Christopher, 43 F.3d 1412 (11th Cir. 1995). The

“determination of sovereignty over an area,” the Supreme Court

has held, “is for the legislative and executive departments.”

Vermilya-Brown, 335 U.S. at 380. Here the political

departments have firmly and clearly spoken: “‘United States,’

10

The Rasul decision, resting as it did on statutory

interpretation, see 542 U.S. at 475, 483-84, could not possibly have

affected the constitutional holding of Eisentrager. Even if Rasul

somehow calls Eisentrager’s constitutional holding into question, as

the detainees suppose, we would be bound to follow Eisentrager. See

Rodriguez de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477,

484-85 (1989).

21

when used in a geographic sense . . . does not include the United

States Naval Station, Guantanamo Bay, Cuba.” DTA § 1005(g).

The detainees cite the Insular Cases in which

“fundamental personal rights” extended to U.S. territories. See

Balzac v. Porto Rico, 258 U.S. 298, 312-13 (1922); Dorr v.

United States, 195 U.S. 138, 148 (1904); see also Ralpho v. Bell,

569 F.2d 607 (D.C. Cir. 1977). But in each of those cases,

Congress had exercised its power under Article IV, Section 3 of

the Constitution to regulate “Territory or other Property

belonging to the United States,” U.S. CONST., art. IV, § 3, cl. 2.

These cases do not establish anything regarding the sort of de

facto sovereignty the detainees say exists at Guantanamo. Here

Congress and the President have specifically disclaimed the sort

of territorial jurisdiction they asserted in Puerto Rico, the

Philippines, and Guam.

Precedent in this circuit also forecloses the detainees’

claims to constitutional rights. In Harbury v. Deutch, 233 F.3d

596, 604 (D.C. Cir. 2000), rev’d on other grounds sub nom.

Christopher v. Harbury, 536 U.S. 403 (2002), we quoted

extensively from Verdugo-Urquidez and held that the Court’s

description of Eisentrager was “firm and considered dicta that

binds this court.” Other decisions of this court are firmer still.

Citing Eisentrager, we held in Pauling v. McElroy, 278 F.2d

252, 254 n.3 (D.C. Cir. 1960) (per curiam), that “non-resident

aliens . . . plainly cannot appeal to the protection of the

Constitution or laws of the United States.” The law of this

circuit is that a “foreign entity without property or presence in

this country has no constitutional rights, under the due process

clause or otherwise.” People’s Mojahedin Org. of Iran v. U.S.

Dep’t of State, 182 F.3d 17, 22 (D.C. Cir. 1999); see also 32

22

County Sovereignty Comm. v. U.S. Dep’t of State, 292 F.3d 797,

799 (D.C. Cir. 2002).11

As against this line of authority, the dissent offers the

distinction that the Suspension Clause is a limitation on

congressional power rather than a constitutional right. But this

is no distinction at all. Constitutional rights are rights against the

government and, as such, are restrictions on governmental

power. See H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525,

534 (1949) (“Even the Bill of Rights amendments were framed

only as a limitation upon the powers of Congress.”).12 Consider

the First Amendment. (In contrasting the Suspension Clause

with provisions in the Bill of Rights, see Dissent at 3, the dissent

is careful to ignore the First Amendment.) Like the Suspension

Clause, the First Amendment is framed as a limitation on

Congress: “Congress shall make no law . . ..” Yet no one would

deny that the First Amendment protects the rights to free speech

and religion and assembly.

11

The text of the Suspension Clause also does not lend itself

freely to extraterritorial application. The Clause permits suspension

of the writ only in cases of “Rebellion or Invasion,” neither of which

is applicable to foreign military conflicts. See Hamdi v. Rumsfeld,

542 U.S. 507, 593-94 (2004) (Thomas, J., dissenting); see also J.

Andrew Kent, A Textual and Historical Case Against a Global

Constitution, 95 GEO. L.J. (forthcoming 2007) (manuscript at 59-60,

available at http://ssrn.com/abstract=888602).

12

James Madison’s plan was to insert almost the entire Bill

of Rights into the Constitution rather than wait for amendment. His

proposed location of the Bill of Rights? Article I, Section 9 – next to

the Suspension Clause. See Thomas Y. Davies, Recovering the

Original Fourth Amendment, 98 MICH. L. REV. 547, 700-01 & n.437

(1999).

23

The dissent’s other arguments are also filled with holes.

It is enough to point out three of the larger ones.

There is the notion that the Suspension Clause is

different from the Fourth, Fifth, and Sixth Amendments because

it does not mention individuals and those amendments do

(respectively, “people,” “person,” and “the accused”). See

Dissent at 3. Why the dissent thinks this is significant eludes us.

Is the point that if a provision does not mention individuals there

is no constitutional right? That cannot be right. The First

Amendment’s guarantees of freedom of speech and free exercise

of religion do not mention individuals; nor does the Eighth

Amendment’s prohibition on cruel and unusual punishment or

the Seventh Amendment’s guarantee of a civil jury. Of course

it is fair to assume that these provisions apply to individuals, just

as it is fair to assume that petitions for writs of habeas corpus are

filed by individuals.

The dissent also looks to the Bill of Attainder and Ex

Post Facto Clauses, both located next to the Suspension Clause

in Article I, Section 9. We do not understand what the dissent

is trying to make of this juxtaposition. The citation to United

States v. Lovett, 328 U.S. 303 (1946), is particularly baffling.

Lovett held only that the Bill of Attainder Clause was justiciable.

The dissent’s point cannot be that the Bill of Attainder Clause

and the Ex Post Facto Clause do not protect individual rights.

Numerous courts have held the opposite.13 “The fact that the

13

See South Carolina v. Katzenbach, 383 U.S. 301, 323-24

(1966) (“[C]ourts have consistently regarded the Bill of Attainder

Clause of Article I and the principle of the separation of powers only

as protections for individual persons and private groups . . ..”) (citing

United States v. Brown, 381 U.S. 437 (1965); Ex parte Garland, 71

U.S. (4 Wall.) 333 (1866)); see also Wilkinson v. Dotson, 544 U.S. 74,

82 (2005); Weaver v. Graham, 450 U.S. 24, 28-29 (1981); Nixon v.

24

Suspension Clause abuts the prohibitions on bills of attainder

and ex post facto laws, provisions well-accepted to protect

individual liberty, further supports viewing the habeas privilege

as a core individual right.” Amanda L. Tyler, Is Suspension a

Political Question?, 59 STAN. L. REV. 333, 374 & n.227 (2006)

(emphasis added).14

Why is the dissent so fixated on how to characterize the

Suspension Clause? The unstated assumption must be that the

reasoning of our decisions and the Supreme Court’s in denying

constitutional rights to aliens outside the United States would

not apply if a constitutional provision could be characterized as

protecting something other than a “right.” On this theory, for

example, aliens outside the United States are entitled to the

protection of the Separation of Powers because they have no

individual rights under the Separation of Powers. Where the

dissent gets this strange idea is a mystery, as is the reasoning

behind it.

III.

Federal courts have no jurisdiction in these cases. In

supplemental briefing after enactment of the DTA, the

government asked us not only to decide the habeas jurisdiction

question, but also to review the merits of the detainees’

designation as enemy combatants by their Combatant Status

Adm’r of Gen. Servs., 433 U.S. 425, 468-69 (1977); Shabazz v. Gabry,

123 F.3d 909, 912 (6th Cir. 1997).

14

Accord Jay S. Bybee, Common Ground: Robert Jackson,

Antonin Scalia, and a Power Theory of the First Amendment, 75 TUL.

L. REV. 251, 318, 321 (2000) (“[W]e could easily describe [Article I,]

Section 9 as a bill of rights for the people of the United States.”).

25

Review Tribunals. See DTA § 1005(e)(2).15 The detainees

objected to converting their habeas appeals to appeals from their

Tribunals. In briefs filed after the DTA became law and after

the Supreme Court decided Hamdan, they argued that we were

without authority to do so.16 Even if we have authority to

convert the habeas appeals over the petitioners’ objections, the

record does not have sufficient information to perform the

review the DTA allows. Our only recourse is to vacate the

district courts’ decisions and dismiss the cases for lack of

jurisdiction.

So ordered.

15

See Supplemental Br. of the Federal Parties Addressing the

Detainee Treatment Act of 2005 53-54 (“This Court can and should

convert the pending appeals into petitions for review under [DTA

section] 1005(e)(2).”).

16

See The Guantanamo Detainees’ Supplemental Br.

Addressing the Effect of the Supreme Ct.’s Op. in Hamdan v.

Rumsfeld, 126 S. Ct. 2749 (2006), on the Pending Appeals 8-9 (“The

detainees in the pending petitions challenge the lawfulness of their

detentions – not the subsequent CSRT decisions . . ..”); Corrected

Supplemental Br. of Pet’rs Boumediene, et al., & Khalid Regarding

Section 1005 of the Detainee Treatment Act of 2005 56-59 (“Nothing

in the [DTA] authorizes the Court to ‘convert’ Petitioners’ notices of

appeal of the district court’s judgment into original petitions for

review of CSRT decisions under section 1005(e)(2) of the Act.”); The

Guantanamo Detainees’ Corrected Second Supplemental Br.

Addressing the Effect of the Detainee Treatment Act of 2005 on this

Ct.’s Jurisdiction over the Pending Appeals 43-44 (“[T]his court

should not convert these petitions into petitions for review under the

DTA as the government suggests.”).

ROGERS, Circuit Judge, dissenting: I can join neither the

reasoning of the court nor its conclusion that the federal courts

lack power to consider the detainees’ petitions. While I agree

that Congress intended to withdraw federal jurisdiction through

the Military Commissions Act of 2006, Pub. L. No. 109-366,

120 Stat. 2600 (“MCA”), the court’s holding that the MCA is

consistent with the Suspension Clause of Article I, section 9, of

the Constitution does not withstand analysis. By concluding that

this court must reject “the detainees’ claims to constitutional

rights,” Op. at 21, the court fundamentally misconstrues the

nature of suspension: Far from conferring an individual right

that might pertain only to persons substantially connected to the

United States, see United States v. Verdugo-Urquidez, 494 U.S.

259, 271 (1990), the Suspension Clause is a limitation on the

powers of Congress. Consequently, it is only by misreading the

historical record and ignoring the Supreme Court’s well-

considered and binding dictum in Rasul v. Bush, 542 U.S. 466,

481-82 (2004), that the writ at common law would have

extended to the detainees, that the court can conclude that

neither this court nor the district courts have jurisdiction to

consider the detainees’ habeas claims.

A review of the text and operation of the Suspension Clause

shows that, by nature, it operates to constrain the powers of

Congress. Prior to the enactment of the MCA, the Supreme

Court acknowledged that the detainees held at Guantanamo had

a statutory right to habeas corpus. Rasul, 542 U.S. at 483-84.

The MCA purports to withdraw that right but does so in a

manner that offends the constitutional constraint on suspension.

The Suspension Clause limits the removal of habeas corpus, at

least as the writ was understood at common law, to times of

rebellion or invasion unless Congress provides an adequate

alternative remedy. The writ would have reached the detainees

at common law, and Congress has neither provided an adequate

alternative remedy, through the Detainee Treatment Act of 2005,

Pub. L. No. 109-148, Div. A, tit. X, 119 Stat. 2680, 2739

2

(“DTA”), nor invoked the exception to the Clause by making the

required findings to suspend the writ. The MCA is therefore

void and does not deprive this court or the district courts of

jurisdiction.

On the merits of the detainees’ appeal in Khalid v. Bush,

355 F. Supp. 2d 311 (D.D.C. 2005) and the cross-appeals in In

re Guantanamo Detainee Cases, 355 F. Supp. 2d 443 (D.D.C.

2005), I would affirm in part in Guantanamo Detainee Cases

and reverse in Khalid and remand the cases to the district courts.

I.

Where a court has no jurisdiction it is powerless to act. See,

e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-74 (1803).

But a statute enacted by Congress purporting to deprive a court

of jurisdiction binds that court only when Congress acts

pursuant to the powers it derives from the Constitution. The

court today concludes that the Suspension Clause is an

individual right that cannot be invoked by the detainees. See

Op. at 22. The text of the Suspension Clause and the structure

of the Constitution belie this conclusion. The court further

concludes that the detainees would have had no access to the

writ of habeas corpus at common law. See Op. at 14-17. The

historical record and the guidance of the Supreme Court

disprove this conclusion.

In this Part, I address the nature of the Suspension Clause,

the retroactive effect of Congress’s recent enactment on habeas

corpus — the MCA — and conclude with an assessment of the

effect of the MCA in light of the dictates of the Constitution.

A.

The court holds that Congress may suspend habeas corpus

as to the detainees because they have no individual rights under

3

the Constitution. It is unclear where the court finds that the limit

on suspension of the writ of habeas corpus is an individual

entitlement. The Suspension Clause itself makes no reference

to citizens or even persons. Instead, it directs that “[t]he

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. This mandate

appears in the ninth section of Article I, which enumerates those

actions expressly excluded from Congress’s powers. Although

the Clause does not specifically say so, it is settled that only

Congress may do the suspending. Ex parte Bollman, 8 U.S. (4

Cranch) 75, 101 (1807); see Hamdi v. Rumsfeld, 542 U.S. 507,

562 (2004) (Scalia, J., dissenting); Ex parte Merryman, 17 F.

Cas. 144, 151-152 (No. 9487) (Taney, Circuit Justice, C.C.D.

Md. 1861); 2 JOSEPH STORY, COMMENTARIES ON THE

CONSTITUTION OF THE UNITED STATES § 1342 (5th ed. 1891).

In this manner, by both its plain text and inclusion in section 9,

the Suspension Clause differs from the Fourth Amendment,

which establishes a “right of the people,” the Fifth Amendment,

which limits how a “person shall be held,” and the Sixth

Amendment, which provides rights to “the accused.” These

provisions confer rights to the persons listed .1

1

The Suspension Clause is also distinct from the First

Amendment, which has been interpreted as a guarantor of individual

rights. See, e.g., United States v. Robel, 389 U.S. 258, 263 (1967);

Gitlow v. New York, 268 U.S. 652, 666 (1925). The court cannot

seriously maintain that the two provisions are alike while

acknowledging that the First Amendment confers an individual right

enforceable by the courts and simultaneously claiming that the

Suspension Clause does not, see Op. at 13 n.5 (citing Bollman, 8 U.S.

(4 Cranch) at 95); see also In re Barry, 42 F. 113, 122 (C.C.S.D.N.Y.

1844), error dismissed sub nom. Barry v. Mercein, 46 U.S. 103 (1847)

(“The ninth section of the first article of the constitution, par. 2,

declaring that ‘the privilege of the writ of habeas corpus shall not be

suspended unless, when in cases of rebellion or invasion, the public

4

The other provisions of Article I, section 9, indicate how to

read the Suspension Clause. The clause immediately following

provides that “[n]o Bill of Attainder or ex post facto Law shall

be passed.”2 The Supreme Court has construed the Attainder

Clause as establishing a “category of Congressional actions

which the Constitution barred.” United States v. Lovett, 328

U.S. 303, 315 (1946). In Lovett, the Court dismissed the

possibility that an Act of Congress in violation of the Attainder

Clause was non-justiciable, remarking:

Our Constitution did not contemplate such a result. To

quote Alexander Hamilton,

* * * a limited constitution * * * [is] one which

contains certain specified exceptions to the

legislative authority; such, for instance, as that it

shall pass no bills of attainder, no ex post facto

laws, and the like. Limitations of this kind can be

preserved in practice no other way than through

the medium of the courts of justice; whose duty it

must be to declare all acts contrary to the manifest

tenor of the Constitution void. Without this, all

the reservations of particular rights or privileges

safety may require it,’ does not purport to convey power or

jurisdiction to the judiciary. It is in restraint of executive and

legislative powers, and no further affects the judiciary than to impose

on them the necessity, if the privilege of habeas corpus is suspended

by any authority, to decide whether the exigency demanded by the

constitution exists to sanction the act.”).

2

Suspensions and bills of attainder have a shared history.

In England, suspensions occasionally named specific individuals and

therefore amounted to bills of attainder. See Rex A. Collings, Jr.,

Habeas Corpus for Convicts — Constitutional Right or Legislative

Grace?, 40 CAL. L. REV. 335, 339 (1952).

5

would amount to nothing.

Id. at 314 (quoting THE FEDERALIST NO. 78) (emphasis added)

(alteration and omissions in original). So too, in Weaver v.

Graham, 450 U.S. 24, 28-29 & n.10 (1981), where the Court

noted that the ban on ex post facto legislation “restricts

governmental power by restraining arbitrary and potentially

vindictive legislation” and acknowledged that the clause

“confin[es] the legislature to penal decisions with prospective

effect.” See also Marbury, 5 U.S. (1 Cranch) at 179-80;

Foretich v. United States, 351 F.3d 1198, 1216-26 (D.C. Cir.

2003). For like reasons, any act in violation of the Suspension

Clause is void, cf. Lovett, 328 U.S. at 316, and cannot operate to

divest a court of jurisdiction.3

3

The court cites a number of cases for the proposition that

the Attainder Clause confers an individual right instead of operating

as a structural limitation on Congress. See Op. at 23 n.13. None of

these cases makes the court’s point. In South Carolina v. Katzenbach,

383 U.S. 301, 323-24 (1966), the Supreme Court held that it is not a

bill of attainder for Congress to punish a state. This speaks to the

definition of a bill of attainder and says nothing about the operation of

the Attainder Clause. Weaver v. Graham, 450 U.S. 24, 30 (1981),

says the opposite of what the court asserts. In Weaver, the Supreme

Court emphasized that the Ex Post Facto Clause is not intended to

protect individual rights but governs the operation of government

institutions:

The presence or absence of an affirmative, enforceable right

is not relevant, however, to the ex post facto prohibition,

which forbids the imposition of punishment more severe than

the punishment assigned by law when the act to be punished

occurred. Critical to relief under the Ex Post Facto Clause is

not an individual’s right to less punishment, but the lack of

fair notice and governmental restraint when the legislature

increases punishment beyond what was prescribed when the

6

The court dismisses the distinction between individual

rights and limitations on Congress’s powers. It chooses to make

no affirmative argument of its own, instead hoping to rebut the

sizable body of conflicting authorities.

The court appears to believe that the Suspension Clause is

just like the constitutional amendments that form the Bill of

Rights.4 It is a truism, of course, that individual rights like those

found in the first ten amendments work to limit Congress.

However, individual rights are merely a subset of those matters

that constrain the legislature. These two sets cannot be

understood as coextensive unless the court is prepared to

recognize such awkward individual rights as Commerce Clause

rights, see U.S. CONST. art. I, § 8, cl. 3, or the personal right not

crime was consummated. Thus, even if a statute merely alters

penal provisions accorded by the grace of the legislature, it

violates the Clause if it is both retrospective and more onerous

than the law in effect on the date of the offense.

The Court also emphasized the structural nature of the limitations of

Article I, section 9, in Nixon v. Adm’r of Gen. Servs., 433 U.S. 425,

469 (1977) (noting that “the Bill of Attainder Clause [is] . . . one of the

organizing principles of our system of government”). Unsurprisingly,

the court cites no authority that would support its novel construction

of section 9 by providing that certain individuals lack Attainder Clause

or Ex Post Facto Clause rights.

4

For this point, the court quotes, without context, from H.P.

Hood & Sons, Inc. v. Du Mond, 336 U.S. 525 (1949), see Op. at 22.

In that case, the Supreme Court emphasized that the Bill of Rights

limited the powers of Congress and did not affect the powers of the

individual states, H.P. Hood & Sons, 336 U.S. at 534, at least until

certain amendments were incorporated after ratification of the

Fourteenth Amendment. This says nothing about the distinction,

relevant here, between individual rights and limitations on Congress.

7

to have a bill raising revenue that originates in the Senate, see

U.S. CONST. art. I, § 7, cl. 1; see also Schlesinger v. Reservists

Comm. to Stop the War, 418 U.S. 208, 224 (1974) (finding no

individual right under the Ineligibility Clause).

That the Suspension Clause appears in Article I, section 9,

is not happenstance. In Charles Pinckney’s original proposal,

suspension would have been part of the judiciary provision. It

was moved in September 1789 by the Committee on Style and

Arrangement, which gathered the restrictions on Congress’s

power in one location. See WILLIAM F. DUKER, A

CONSTITUTIONAL HISTORY OF HABEAS CORPUS 128-32 (1980);

2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 596

(Max Farrand ed., rev. ed. 1966). By the court’s reasoning, the

Framers placed the Suspension Clause in Article I merely

because there were no similar individual rights to accompany it.

It is implausible that the Framers would have viewed the

Suspension Clause, as the court implies, as a budding Bill of

Rights but would not have assigned the provision its own section

of the Constitution, much as they did with the only crime

specified in the document, treason, which appears alone in

Article III, section 3. Instead, the court must treat the

Suspension Clause’s placement in Article I, section 9, as a

conscious determination of a limit on Congress’s powers. The

Supreme Court has found similar meaning in the placement of

constitutional clauses ever since McCulloch v. Maryland, 17

U.S. (4 Wheat.) 316, 419-21 (1819) (Necessary and Proper

Clause); see also, e.g., Skinner v. Mid-America Pipeline Co.,

490 U.S. 212, 220-21 (1989) (Taxing Clause).

The court also alludes to the idea that the Suspension

Clause cannot apply to foreign military conflicts because the

exception extends only to cases of “Rebellion or Invasion.” Op.

at 21 n.11. The Framers understood that the privilege of the writ

was of such great significance that its suspension should be

8

strictly limited to circumstances where the peace and security of

the Nation were jeopardized. Only after considering alternative

proposals authorizing suspension “on the most urgent

occasions” or forbidding suspension outright did the Framers

agree to a narrow exception upon a finding of rebellion or

invasion. See 2 THE RECORDS OF THE FEDERAL CONVENTION OF

1787, supra, at 438. Indeed, it would be curious if the Framers

were implicitly sanctioning Executive-ordered detention abroad

without judicial review by limiting suspension — and by the

court’s reasoning therefore limiting habeas corpus — to

domestic events. To the contrary, as Alexander Hamilton

foresaw in The Federalist No. 84, invoking William Blackstone,

To bereave a man of life (says he), or by violence to

confiscate his estate, without accusation or trial, would

be so gross and notorious an act of despotism, as must

at once convey the alarm of tyranny throughout the

whole nation; but confinement of the person, by

secretly hurrying him to jail, where his sufferings are

unknown or forgotten, is a less public, a less striking,

and therefore a more dangerous engine of arbitrary

government.

THE FEDERALIST NO. 84, at 468 (E.H. Scott ed. 1898) (quoting

WILLIAM BLACKSTONE, 1 COMMENTARIES *131-32); see also Ex

parte Milligan, 71 U.S. (4 Wall.) 2, 125 (1866).

B.

This court would have jurisdiction to address the detainees’

claims but for Congress’s enactment of the MCA. In Rasul, 542

U.S. at 483-84, the Supreme Court held that the federal district

courts had jurisdiction to hear petitions for writs of habeas

corpus filed pursuant to 28 U.S.C. § 2241 by persons detained

as “enemy combatants” by the United States at the Guantanamo

Bay Naval Base. At the time, the habeas statute provided, in

9

relevant part, that upon the filing of such a petition, the district

court would promptly determine whether the petitioner was

being held under the laws, Constitution, and treaties of the

United States, utilizing the common-law procedure of a return

filed by the government and a traverse filed by the petitioner.

See 28 U.S.C. §§ 2242-2253. After Rasul, Congress enacted the

DTA, which purported to deprive the federal courts of habeas

jurisdiction. DTA § 1005(e), 118 Stat. at 2741-43. The

Supreme Court held in Hamdan v. Rumsfeld, 126 S. Ct. 2749,

2764-69 (2006), however, that the DTA does not apply

retroactively, and so it does not disturb this court’s jurisdiction

over the instant appeals, which were already pending when the

DTA became law.

As for the MCA, I concur in the court’s conclusion that,

notwithstanding the requirements that Congress speak clearly

when it intends its action to apply retroactively, see Landgraf v.

USI Film Prods., 511 U.S. 244, 265-73 (1994), and when

withdrawing habeas jurisdiction from the courts, see INS v. St.

Cyr, 533 U.S. 289, 299 (2001); Ex parte Yerger, 75 U.S. (8

Wall.) 85, 102 (1869), Congress sought in the MCA to revoke

all federal jurisdiction retroactively as to the habeas petitions of

detainees held at Guantanamo Bay. See Op. at 9-12. I do not

join the court’s reasoning. The court stresses Congress’s

emphasis that the provision setting the effective date for the

jurisdictional change “shall apply to all cases, without

exception.” However, the absence of exceptions does not

establish the scope of the provision itself. The entire provision

reads:

(b)—EFFECTIVE DATE. The amendment made by

subsection (a) shall take effect on the date of the

enactment of this Act, and shall apply to all cases,

without exception, pending on or after the date of the

enactment of this Act which relate to any aspect of the

10

detention, transfer, treatment, trial, or conditions of

detention of an alien detained by the United States

since September 11, 2001.

MCA § 7(b), 120 Stat. at 2636 (emphasis added). Subsection

(a), in turn, amends 28 U.S.C. § 2241(e), which confers habeas

jurisdiction on the federal courts. New section 2241(e)(1)

repeals “jurisdiction to hear or consider an application for a writ

of habeas corpus.” New section 2241(e)(2) repeals “jurisdiction

to hear or consider any other action . . . relating to any aspect of

the detention, transfer, treatment, trial, or conditions of

confinement.”

The detainees suggest that by singling out habeas corpus in

§ 2241(e)(1) and by failing to do so in section 7(b) — and

instead repeating the same list (“detention, transfer, treatment,

trial, or conditions of confinement”) that appears in § 2241(e)(2)

— Congress was expressing its intent to make the MCA

retroactive only as to § 2241(e)(2). This argument hinges on

their view that a petition for a writ of habeas corpus is not

“relating to any aspect of . . . detention.” But, by the plain text

of section 7, it is clear that the detainees suggest ambiguity

where there is none. As the court notes, see Op. at 11 n. 4,

whereas § 2241(e)(1) refers to habeas corpus, § 2241(e)(2) deals

with “any other action . . . relating to any aspect of the

detention, transfer, treatment, trial, or conditions of

confinement.” (Emphasis added). By omitting the word “other”

in section 7(b), and by cross-referencing section 7(a) in its

entirety, Congress signaled its intent for the retroactivity

provision to apply to habeas corpus cases. This conclusion has

nothing to do with Congress’s emphasis that there are no

exceptions and everything to do with the intent it expressed

through the substantive provisions of the statute.

11

C.

The question, then, is whether by attempting to eliminate all

federal court jurisdiction to consider petitions for writs of habeas

corpus, Congress has overstepped the boundary established by

the Suspension Clause. The Supreme Court has stated on

several occasions that “at the absolute minimum, the Suspension

Clause protects the writ ‘as it existed in 1789.’” St. Cyr, 533

U.S. at 301 (quoting Felker v. Turpin, 518 U.S. 651, 663-64

(1996)) (emphasis added). Therefore, at least insofar as habeas

corpus exists and existed in 1789, Congress cannot suspend the

writ without providing an adequate alternative except in the

narrow exception specified in the Constitution.5 This pro-

scription applies equally to removing the writ itself and to

removing all jurisdiction to issue the writ. See United States v.

Klein, 80 U.S. (13 Wall.) 128 (1872). See generally ERWIN

CHEMERINSKY, FEDERAL JURISDICTION § 3.2 (4th ed. 2003).

5

It is unnecessary to resolve the question of whether the

Constitution provides for an affirmative right to habeas corpus —

either through the Suspension Clause, the Fifth Amendment guarantee

of due process, or the Sixth Amendment — or presumed the continued

vitality of this “writ antecedent to statute,” Williams v. Kaiser, 323

U.S. 471, 484 n.2 (1945) (internal quotation marks omitted). Because

the Supreme Court in Rasul held that the writ existed in 2004 and that

there was, therefore, something to suspend, it is sufficient to assess

whether the writ sought here existed in 1789. Given my conclusion,

see infra Part C.1, it is also unnecessary to resolve the question of

whether the Suspension Clause protects the writ of habeas corpus as

it has developed since 1789. Compare St. Cyr, 533 U.S. at 304-05,

and LaGuerre v. Reno, 164 F.3d 1035, 1038 (7th Cir. 1998), with

Felker, 518 U.S. at 663-64, and Gerald L. Neuman, Habeas Corpus,

Executive Detention, and the Removal of Aliens, 98 COLUM. L. REV.

961, 970 (1998). The court oddly chooses to ignore the issue by

truncating its reference to St. Cyr, without comment, and omitting the

qualifier “at the absolute minimum.” See Op. at 14.

12

1.

Assessing the state of the law in 1789 is no trivial feat, and

the court’s analysis today demonstrates how quickly a few

missteps can obscure history. In conducting its historical

review, the court emphasizes that no English cases predating

1789 award the relief that the detainees seek in their petitions.

Op. at 15-17. “The short of the matter,” the court concludes, is

that “habeas corpus would not have been available in 1789 to

aliens without presence or property within the United States.”

Op. at 17. But this misses the mark. There may well be no case

at common law in which a court exercises jurisdiction over the

habeas corpus claim of an alien from a friendly nation, who may

himself be an enemy, who is captured abroad and held outside

the sovereign territory of England but within the Crown’s

exclusive control without being charged with a crime or

violation of the Laws of War. On the other hand, the court can

point to no case where an English court has refused to exercise

habeas jurisdiction because the enemy being held, while under

the control of the Crown, was not within the Crown’s

dominions.6 The paucity of direct precedent is a consequence of

6

The court’s assertion that “extraterritorial detention was

not unknown in Eighteenth Century England,” Op. at 18 n.9, is of no

moment. The court references the 1667 impeachment of the Earl of

Clarendon, Lord High Chancellor of England. See id. at 16, 18 n.9.

Clarendon was accused of sending enemies to faraway lands to

deprive them of effective legal process. The court makes the

unsupported inference that habeas corpus was therefore unavailable

abroad. Nothing in the Clarendon affair suggests that habeas corpus

was sought and refused. Instead, as remains the case today, legal

process can be evaded when prisoners are detained without access to

the courts. That the detainees at Guantanamo were able to procure

next friends and attorneys to pursue their petitions whereas

seventeenth-century Englishmen would have found this difficult, if not

impossible, says nothing about the availability of the writ at common

law. The court’s obfuscation as to the distinction between

13

the unique confluence of events that defines the situation of

these detainees and not a commentary on the reach of the writ at

common law.

The question is whether by the process of inference from

similar, if not identical, situations the reach of the writ at

common law would have extended to the detainees’ petitions.

At common law, we know that “the reach of the writ depended

not on formal notions of territorial sovereignty, but rather on the

practical question of ‘the exact extent and nature of the

jurisdiction or dominion exercised in fact by the Crown.’”

Rasul, 542 U.S. at 482 (quoting Ex parte Mwenya, [1960] 1 Q.B.

241, 303 (C.A.) (Lord Evershed, M.R.)). We also know that the

writ extended not only to citizens of the realm, but to aliens, see

id. at 481 & n.11, even in wartime, see id. at 474-75; Case of

Three Spanish Sailors, 2 Black. W. 1324, 96 Eng. Rep. 775

(C.P. 1779); Rex v. Schiever, 2 Burr. 765, 97 Eng. Rep. 551

(K.B. 1759). A War of 1812-era case in which Chief Justice

John Marshall granted a habeas writ to a British subject

establishes that even conceded enemies of the United States

could test in its courts detention that they claimed was

unauthorized. See Gerald L. Neuman & Charles F. Hobson,

John Marshall and the Enemy Alien: A Case Missing from the

Canon, 9 GREEN BAG 2D 39 (2005) (reporting United States v.

Williams (C.C.D. Va. Dec. 4, 1813)).

To draw the ultimate conclusion as to whether the writ at

common law would have extended to aliens under the control (if

not within the sovereign territory) of the Crown requires piecing

together the considerable circumstantial evidence, a step that the

court is unwilling to take. Analysis of one of these cases, the

1759 English case of Rex v. Schiever, shows just how small this

final inference is. Barnard Schiever was the subject of a neutral

impracticality and unavailability is further addressed infra.

14

nation (Sweden), who was detained by the Crown when England

was at war with France. Schiever, 2 Burr. at 765, 97 Eng. Rep.

at 551. He claimed that his classification as a “prisoner of war”

was factually inaccurate, because he “was desirous of entering

into the service of the merchants of England” until he was seized

on the high seas by a French privateer, which in turn was

captured by the British Navy. Id. In an affidavit, he swore that

his French captor “detained him[] against his will and

inclination . . . and treated him with so much severity[] that [his

captor] would not suffer him to go on shore when in port . . . but

closely confined him to duty [on board the ship].” Id. at 765-66,

97 Eng. Rep. at 551. The habeas court ultimately determined,

on the basis of Schiever’s own testimony, that he was properly

categorized and thus lawfully detained. Id. at 766, 97 Eng. Rep.

at 551-52.

The court discounts Schiever because, after England

captured the French privateer while en route to Norway, it was

carried into Liverpool, England, where Schiever was held in the

town jail. Id., 97 Eng. Rep. at 551. As such, the case did not

involve “an alien outside the territory of the sovereign.” Op. at

14-15. However, Schiever surely was not voluntarily brought

into England, so his mere presence conferred no additional

rights. As the Supreme Court observed in Verdugo-Urquidez,

“involuntary [presence] is not the sort to indicate any substantial

connection with our country.” 494 U.S. at 271. Any gap

between Schiever and the detainees’ detention at Guantanamo

Bay is thus exceedingly narrow.

This court need not make the final inference. It has already

been made for us. In Rasul, the Supreme Court stated that

“[a]pplication of the habeas statute to persons detained at the

[Guantanamo] base is consistent with the historical reach of the

writ of habeas corpus.” 542 U.S. at 481. By reaching a contrary

conclusion, the court ignores the settled principle that “carefully

15

considered language of the Supreme Court, even if technically

dictum, generally must be treated as authoritative.” Sierra Club

v. EPA, 322 F.3d 718, 724 (D.C. Cir. 2003) (quoting United

States v. Oakar, 111 F.3d 146, 153 (D.C. Cir. 1997)) (internal

quotation marks omitted). Even setting aside this principle, the

court offers no convincing analysis to compel the contrary

conclusion. The court makes three assertions: First, Lord

Mansfield’s opinion in Rex v. Cowle, 2 Burr. 834, 97 Eng. Rep.

587 (K.B. 1759), disavows the right claimed by the detainees.

Second, it would have been impractical for English courts to

extend the writ extraterritorially. Third, Johnson v.

Eisentrager, 339 U.S. 763 (1949), is controlling. None of these

assertions withstands scrutiny.

In Cowle, Lord Mansfield wrote that “[t]here is no doubt as

to the power of this Court; where the place is under the

subjection of the Crown of England; the only question is, as to

the propriety.” 2 Burr. at 856, 97 Eng. Rep. at 599. He noted

thereafter, by way of qualification, that the writ would not

extend “[t]o foreign dominions, which belong to a prince who

succeeds to the throne of England.” Id., 97 Eng. Rep. at 599-

600. Through the use of ellipsis marks, the court excises the

qualification and concludes that the writ does not extend “[t]o

foreign dominions.” Op. at 16. This masks two problems in its

analysis. A “foreign dominion” is not a foreign country, as the

court’s reasoning implies, but rather “a country which at some

time formed part of the dominions of a foreign state or potentate,

but which by conquest or cession has become a part of the

dominions of the Crown of England.” Ex parte Brown, 5 B. &

S. 280, 122 Eng. Rep. 835 (K.B. 1864). And the exception

noted in Lord Mansfield’s qualification has nothing to do with

extraterritoriality: Instead, habeas from mainland courts was

unnecessary for territories like Scotland that were controlled by

princes in the line of succession because they had independent

court systems. See WILLIAM BLACKSTONE, 1 COMMENTARIES

16

*95-98; James E. Pfander, The Limits of Habeas Jurisdiction

and the Global War on Terror, 91 CORNELL L. REV. 497, 512-

13 (2006). In the modern-day parallel, where a suitable

alternative for habeas exists, the writ need not extend. See 2

ROBERT CHAMBERS, A COURSE OF LECTURES ON THE ENGLISH

LAW DELIVERED AT OXFORD 1767-1773, at 8 (Thomas M.

Curley, ed., 1986) (quoting Cowle as indicating that,

notwithstanding the power to issue the writ “in Guernsey,

Jersey, Minorca, or the plantations,” courts would not think it

“proper to interpose” because “the most usual way is to

complain to the king in Council, the supreme court of appeal

from those provincial governments”); see also infra Part C.2.

The relationship between England and principalities was the

only instance where it was “found necessary to restrict the scope

of the writ.” 9 WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH

LAW 124 (1938). Cowle, by its plain language, then, must be

read as recognizing that the writ of habeas corpus ran even to

places that were “no part of the realm,” where the Crown’s other

writs did not run, nor did its laws apply. 2 Burr. at 835-36, 853-

55, 97 Eng. Rep. at 587-88, 598-99. The Supreme Court has

adopted this logical reading. See Rasul, 542 U.S. at 481-82; see

also Mitchell B. Malachowski, From Gitmo with Love:

Redefining Habeas Corpus Jurisdiction in the Wake of the

Enemy Combatant Cases of 2004, 52 NAVAL L. REV. 118, 122-

23 (2005).7

7

The significance of a 1794 opinion by the U.S. Attorney

General, see Op. at 15, which expresses the view that the writ should

issue to the foreign commander of a foreign ship-of-war in U.S. ports,

reasoning that the foreign ship has “no exemption from the jurisdiction

of the country into which he comes,” 1 Op. Att’y Gen. 47 (1794), is

unclear. Nor is it clear what point the court is making by referencing

In re Ning Yi-Ching, 56 T.L.R. 3 (K.B. Vacation Ct. 1939). In Rasul,

the Supreme Court noted that Ning Yi-Ching “made quite clear that

‘the remedy of habeas corpus was not confined to British subjects,’

17

The court next disposes of Cowle and the historical record

by suggesting that the “power” to issue the writ acknowledged

by Lord Mansfield can be explained by the Habeas Corpus Act

of 1679, 31 Car. 2, c. 2. See Op. at 16. The Supreme Court has

stated that the Habeas Corpus Act “enforces the common law,”

Ex parte Watkins, 28 U.S. (3 Pet.) 193, 202 (1730), thus hardly

suggesting that the “power” recognized by Lord Mansfield was

statutory and not included within the 1789 scope of the

common-law writ. To the extent that the court makes the

curious argument that the Habeas Corpus Act would have made

it too impractical to produce prisoners if applied

extraterritorially because it imposed fines on jailers who did not

quickly produce the body, Op. at 16-17, the court cites no

precedent that suggests that “practical problems” eviscerate “the

precious safeguard of personal liberty [for which] there is no

higher duty than to maintain it unimpaired,” Bowen v. Johnston,

306 U.S. 19, 26 (1939). This line of reasoning employed by the

court fails for two main reasons:

First, the Habeas Corpus Act of 1679 was expressly limited

to those who “have beene committed for criminall or supposed

criminall Matters.” 31 Car. 2, c. 2, § 1. Hence, the burden of

expediency imposed by the Act could scarcely have prevented

common-law courts from exercising habeas jurisdiction in non-

criminal matters such as the petitions in these appeals. Statutory

habeas in English courts did not extend to non-criminal

detention until the Habeas Corpus Act of 1816, 56 Geo. 3, c.

but would extend to ‘any person . . . detained’ within the reach of the

writ,” 542 U.S. at 483 n.13 (quoting Ning Yi-Ching, 56 T.L.R. at 5),

and that the case does not support a “narrow view of the territorial

reach of the writ,” id. Here, the court provides a parenthetical

quotation for Ning Yi-Ching that recalls a dissenting position from a

prior case that was later repudiated. See Rasul, 542 U.S. at 483 n.14;

Mwenya, [1960] 1 Q.B. at 295 (Lord Evershed, M.R.).

18

100, although courts continued to exercise their common-law

powers in the interim. See 2 CHAMBERS, supra, at 11; 9

HOLDSWORTH, supra, at 121.

Second, there is ample evidence that the writ did issue to

faraway lands. In Ex parte Anderson, 3 El. & El. 487, 121 Eng.

Rep. 525 (Q.B. 1861), superseded by statute, 25 & 26 Vict., c.

20, § 1, the Court of Queen’s Bench exercised its common-law

powers to issue a writ of habeas corpus to Quebec in Upper

Canada after expressly acknowledging that it was “sensible of

the inconvenience which may result from such a step.” Id. at

494-95, 121 Eng. Rep. at 527-28; see also Brown, 5 B. & S. 280,

122 Eng. Rep. 835 (issuing a writ to the Isle of Man in the sea

between England and Ireland). English common-law courts also

recognized the power to issue habeas corpus in India, even to

non-subjects, and did so notwithstanding competition from local

courts, well before England recognized its sovereignty in India.

See B.N. PANDEY, THE INTRODUCTION OF ENGLISH LAW INTO

INDIA 112, 149, 151 (1967); see also Rex v. Mitter, Morton 210

(Sup. Ct., Calcutta 1781), reprinted in 1 THE INDIAN DECISIONS

(OLD SERIES) 1008 (T.A. Venkasawmy Row ed., 1911); Rex v.

Hastings, Morton 206, 208-09 (Sup. Ct., Calcutta 1775) (opinion

of Chambers, J.), reprinted in 1 THE INDIAN DECISIONS, supra,

at 1005, 1007; id. at 209 (opinion of Impey, C.J.); Kal Raustiala,

The Geography of Justice, 73 FORDHAM L. REV. 2501, 2530

n.156 (2005).

Finally, the court reasons that Eisentrager requires the

conclusion that there is no constitutional right to habeas for

those in the detainees’ posture. See Op. at 17-18. In

Eisentrager, the detainees claimed that they were “entitled, as a

constitutional right, to sue in some court of the United States for

a writ of habeas corpus.” 339 U.S. at 777. Thus Eisentrager

19

presented a far different question than confronts this court.8 The

detainees do not here contend that the Constitution accords them

a positive right to the writ but rather that the Suspension Clause

restricts Congress’s power to eliminate a preexisting statutory

right. To answer that question does not entail looking to the

extent of the detainees’ ties to the United States but rather

requires understanding the scope of the writ of habeas corpus at

common law in 1789. The court’s reliance on Eisentrager is

misplaced.

2.

This brings me to the question of whether, absent the writ,

Congress has provided an adequate alternative procedure for

challenging detention. If it so chooses, Congress may replace

the privilege of habeas corpus with a commensurate procedure

without overreaching its constitutional ambit. However, as the

Supreme Court has cautioned, if a subject of Executive detention

“were subject to any substantial procedural hurdles which

ma[k]e his remedy . . . less swift and imperative than federal

habeas corpus, the gravest constitutional doubts would be

engendered [under the Suspension Clause].” Sanders v. United

States, 373 U.S. 1, 14 (1963).

The Supreme Court has, on three occasions, found a

replacement to habeas corpus to be adequate. In United States

v. Hayman, 342 U.S. 205 (1952), the Court reviewed 42 U.S.C.

§ 2255, which extinguished the writ as to those convicted of

federal crimes before Article III judges in exchange for recourse

before the sentencing court. Prior to the enactment of section

2255, the writ was available in the jurisdiction of detention, not

the jurisdiction of conviction. The Court concluded that this

8

To the extent that the court relies on Eisentrager as proof

of its historical theory, the Supreme Court rejected that approach in

Rasul, see 542 U.S. at 475-79.

20

substitute was acceptable in part because the traditional habeas

remedy remained available by statute where section 2255 proved

“inadequate or ineffective.” Id. at 223. The Court came to a

similar conclusion in Swain v. Pressley, 430 U.S. 372 (1977),

reviewing a statute with a similar “inadequate or ineffective”

escape hatch, id. at 381 (reviewing D.C. CODE § 23-110). In that

case, the Court concluded that a procedure for hearing habeas in

the District of Columbia’s courts, as distinct from the federal

courts, was an adequate alternative. Finally, in Felker, 518 U.S.

at 663-64, the Court found no Suspension Clause violation in the

restrictions on successive petitions for the writ under the

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.

No. 104-132, 110 Stat. 1217, concluding that these were “well

within the compass of [the] evolutionary process” of the habeas

corpus protocol for abuse of the writ and did not impose upon

the writ itself.

These cases provide little cover for the government. As the

Supreme Court has stated, “[a]t its historical core, the writ of

habeas corpus has served as a means of reviewing the legality of

Executive detention, and it is in that context that its protections

have been strongest.” St. Cyr, 533 U.S. at 301. With this in

mind, the government is mistaken in contending that the

combatant status review tribunals (“CSRTs”) established by the

DTA suitably test the legitimacy of Executive detention. Far

from merely adjusting the mechanism for vindicating the habeas

right, the DTA imposes a series of hurdles while saddling each

Guantanamo detainee with an assortment of handicaps that make

the obstacles insurmountable.

At the core of the Great Writ is the ability to “inquire into

illegal detention with a view to an order releasing the

petitioner.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)

(internal quotation marks and alteration omitted). An

examination of the CSRT procedure and this court’s CSRT

21

review powers reveals that these alternatives are neither

adequate to test whether detention is unlawful nor directed

toward releasing those who are unlawfully held.

“Petitioners in habeas corpus proceedings . . . are entitled to

careful consideration and plenary processing of their claims

including full opportunity for the presentation of the relevant

facts.” Harris v. Nelson, 394 U.S. 286, 298 (1969). The

offerings of CSRTs fall far short of this mark. Under the

common law, when a detainee files a habeas petition, the burden

shifts to the government to justify the detention in its return of

the writ. When not facing an imminent trial,9 the detainee then

must be afforded an opportunity to traverse the writ, explaining

why the grounds for detention are inadequate in fact or in law.

See, e.g., 28 U.S.C. §§ 2243, 2248; Bollman, 8 U.S. (4 Cranch)

at 125; Ex parte Beeching, 4 B. & C. 137, 107 Eng. Rep. 1010

(K.B. 1825); Schiever, 2 Burr. 765, 97 Eng. Rep. 551; cf.

Hamdi, 542 U.S. at 537-38 (plurality opinion). A CSRT works

quite differently. See Order Establishing Combatant Status

Review Tribunal (July 7, 2004), available at

http://www.defenselink.mil/news/Jul2004/

d20040707review.pdf. The detainee bears the burden of coming

forward with evidence explaining why he should not be

detained. The detainee need not be informed of the basis for his

detention (which may be classified), need not be allowed to

9

At common law, where criminal charges were pending, a

prisoner filing a habeas writ would be remanded, although habeas

incorporated a speedy-trial guarantee. See, e.g., Ex parte Beeching, 4

B. & C. 137, 107 Eng. Rep. 1010 (K.B. 1825); Bushell’s Case, Vaugh.

135, 124 Eng. Rep. 1006, 1009-10 (C.P. 1670). But see MCA §

3(a)(1), 120 Stat. at 2602 (codified at 10 U.S.C. § 948b(d)(A)). Once

there was “a judgment of conviction rendered by a court of general

criminal jurisdiction,” release under the writ was unavailable.

Hayman, 342 U.S. at 210-11.

22

introduce rebuttal evidence (which is sometimes deemed by the

CSRT too impractical to acquire), and must proceed without the

benefit of his own counsel.10 Moreover, these proceedings occur

before a board of military judges subject to command influence,

see Hamdan, 126 S. Ct. at 2804, 2806 (Kennedy, J., concurring

in part); Weiss v. United States, 510 U.S. 163, 179-80 (1994); cf.

10 U.S.C. § 837(a). Insofar as each of these practices impedes

the process of determining the true facts underlying the

lawfulness of the challenged detention, they are inimical to the

nature of habeas review.

This court’s review of CSRT determinations, see DTA §

1005(e)(2), 119 Stat. at 2742, is not designed to cure these

inadequacies. This court may review only the record developed

by the CSRT to assess whether the CSRT has complied with its

own standards. Because a detainee still has no means to present

evidence rebutting the government’s case — even assuming the

detainee could learn of its contents — assessing whether the

government has more evidence in its favor than the detainee is

hardly the proper antidote. The fact that this court also may

consider whether the CSRT process “is consistent with the

Constitution and laws of the United States,” DTA §

1005(e)(2)(C)(ii), 119 Stat. at 2742, does not obviate the need

for habeas. Whereas a cognizable constitutional, statutory, or

treaty violation could defeat the lawfulness of the government’s

cause for detention, the writ issues whenever the Executive lacks

a lawful justification for continued detention. The provisions of

DTA § 1005(e)(2) cannot be reconciled with the purpose of

10

With a few possible exceptions, the Guantanamo detainees

before the federal courts are unlikely to be fluent in English or to be

familiar with legal procedures and, as their detentions far from home

and cut off from their families have been lengthy, they are likely ill

prepared to be able to obtain evidence to support their claims that they

are not enemies of the United States.

23

habeas corpus, as they handcuff attempts to combat “the great

engines of judicial despotism,” THE FEDERALIST NO. 83, at 456

(Alexander Hamilton) (E.H. Scott ed. 1898).

Additionally, and more significant still, continued detention

may be justified by a CSRT on the basis of evidence resulting

from torture. Testimony procured by coercion is notoriously

unreliable and unspeakably inhumane. See generally

INTELLIGENCE SCIENCE BOARD, EDUCING INFORMATION:

INTERROGATION: SCIENCE AND ART (2006), available at

http://www.fas.org/irp/dni/educing.pdf. This basic point has

long been recognized by the common law, which “has regarded

torture and its fruits with abhorrence for over 500 years.” A. v.

Sec’y of State, [2006] 2 A.C. 221 ¶ 51 (H.L.) (appeal taken from

Eng.) (Bingham, L.); see also Hamdan, 126 S. Ct. at 2786;

Jackson v. Denno, 378 U.S. 368, 386 (1964); Proceedings

Against Felton, 3 Howell’s St. Tr. 367, 371 (1628) (Eng.); JOHN

H. LANGBEIN, TORTURE AND THE LAW OF PROOF 73 (1977)

(“Already in the fifteenth and sixteenth centuries, . . . the

celebrated Renaissance ‘panegyrists’ of English law were . . .

extolling the absence of torture in England.”) (footnote omitted).

The DTA implicitly endorses holding detainees on the basis of

such evidence by including an anti-torture provision that applies

only to future CSRTs. DTA § 1005(b)(2), 119 Stat. at 2741.

Even for these future proceedings, however, the Secretary of

Defense is required only to develop procedures to assess

whether evidence obtained by torture is probative, not to require

its exclusion. Id. § 1005(b)(1), 119 Stat. at 2741.

Even if the CSRT protocol were capable of assessing

whether a detainee was unlawfully held and entitled to be

released, it is not an adequate substitute for the habeas writ

because this remedy is not guaranteed. Upon concluding that

detention is unjustified, a habeas court “can only direct [the

prisoner] to be discharged.” Bollman, 8 U.S. (4 Cranch) at 136;

24

see also 2 STORY, supra, § 1339. But neither the DTA nor the

MCA require this, and a recent report studying CSRT records

shows that when at least three detainees were found by CSRTs

not to be enemy combatants, they were subjected to a second,

and in one case a third, CSRT proceeding until they were finally

found to be properly classified as enemy combatants. Mark

Denbeaux et al., No-Hearing Hearings: CSRT: The Modern

Habeas Corpus?, at 37-39 (2006), http://law.shu.edu/news/

final_no_hearing_hearings_report.pdf.

3.

Therefore, because Congress in enacting the MCA has

revoked the privilege of the writ of habeas corpus where it

would have issued under the common law in 1789, without

providing an adequate alternative, the MCA is void unless

Congress’s action fits within the exception in the Suspension

Clause: Congress may suspend the writ “when in Cases of

Rebellion or Invasion the public Safety may require it.” U.S.

CONST. art. I, § 9, cl. 2. However, Congress has not invoked

this power.

Suspension has been an exceedingly rare event in the

history of the United States. On only four occasions has

Congress seen fit to suspend the writ. These examples follow a

clear pattern: Each suspension has made specific reference to a

state of “Rebellion” or “Invasion” and each suspension was

limited to the duration of that necessity. In 1863, recognizing

“the present rebellion,” Congress authorized President Lincoln

during the Civil War “whenever, in his judgment, the public

safety may require it, . . . to suspend the writ of habeas corpus.”

Act of Mar. 3, 1863, ch. 81, § 1, 12 Stat. 755, 755. As a result,

no writ was to issue “so long as said suspension by the President

shall remain in force, and said rebellion continue.” Id. In the

Ku Klux Klan Act of 1871, Congress agreed to authorize

suspension whenever “the unlawful combinations named [in the

25

statute] shall be organized and armed, and so numerous and

powerful as to be able, by violence, to either overthrow or set at

defiance the constituted authorities of such State, and of the

United States within such State,” finding that these

circumstances “shall be deemed a rebellion against the

government of the United States.” Act of Apr. 20, 1871, ch. 22,

§ 4, 17 Stat. 13, 14-15. Suspension was also authorized “when

in cases of rebellion, insurrection, or invasion the public safety

may require it” in two territories of the United States: the

Philippines, Act of July 1, 1902, ch. 1369, § 5, 32 Stat. 691, 692,

and Hawaii, Hawaiian Organic Act, ch. 339, § 67, 31 Stat. 141,

153 (1900); see Duncan v. Kahanamoku, 327 U.S. 304, 307-08

(1946). See also DUKER, supra, at 149, 178 n.190.

Because the MCA contains neither of these hallmarks of

suspension, and because there is no indication that Congress

sought to avail itself of the exception in the Suspension Clause,

its attempt to revoke federal jurisdiction that the Supreme Court

held to exist exceeds the powers of Congress. The MCA

therefore has no effect on the jurisdiction of the federal courts to

consider these petitions and their related appeals.

II.

In In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443

(D.D.C. 2005), Judge Joyce Hens Green addressed eleven

coordinated habeas cases involving 56 aliens being detained by

the United States as “enemy combatants” at Guantanamo Bay,

id. at 445. These detainees are citizens of friendly nations —

Australia, Bahrain, Canada, Kuwait, Libya, Turkey, the United

Kingdom, and Yemen — who were seized in Afghanistan,

Bosnia and Herzegovina, The Gambia, Pakistan, Thailand, and

Zambia. Each detainee maintains that he was wrongly classified

as an “enemy combatant.” Denying in part the government’s

motion to dismiss the petitions, the district court ruled:

26

[T]he petitioners have stated valid claims under the

Fifth Amendment to the United States Constitution

and . . . the procedures implemented by the government

to confirm that the petitioners are “enemy combatants”

subject to indefinite detention violate the petitioners’

rights to due process of law.

Id. at 445. The district court further ruled that the Taliban but

not the al Qaeda detainees were entitled to the protections of the

Third and Fourth Geneva Conventions. Id. at 478-80.

In Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005),

Judge Richard J. Leon considered the habeas petitions of five

Algerian-Bosnian citizens and one Algerian citizen with

permanent Bosnian residency. They were arrested by Bosnian

police in 2001 on suspicion of plotting to attack the United

States and British embassies in Sarajevo. After the Supreme

Court of the Federation of Bosnia and Herzegovina ordered the

six men to be released in January 2002,11 they were seized by

United States forces and transported to Guantanamo Bay. The

Khalid decision also covers the separate case of a French citizen

seized in Pakistan and transported to Guantanamo Bay.

Rejecting the petitioners’ claim that their detention is

unjustified, the district court ruled that “no viable legal theory

exists by which [the district court] could issue a writ of habeas

corpus under” the circumstances presented, id. at 314, noting the

President’s powers under Article II, Congress’s Authorization

for the Use of Military Force (“AUMF”), and the Order on

Detention (Nov. 13, 2001), see id. at 317-20. The district court

granted the government’s motion and dismissed the petitions.

Id. at 316.

11

See Supreme Court of the Federation of Bosnia and

Herzegovina, Sarajevo, Jan. 17, 2003, Ki-1001/01.

27

The fundamental question presented by a petition for a writ

of habeas corpus is whether Executive detention is lawful. A far

more difficult question is what serves to justify Executive

detention under the law. At the margin, the precise

constitutional bounds of Executive authority are unclear, see

Hamdan, 126 S. Ct. at 2773-74; id. at 2786 (citing Ex parte

Quirin, 317 U.S. 1, 28 (1942)), and the Executive detention at

issue is the product of a unique situation in our history. Unlike

the uniformed combat that is contemplated by the laws of war,

see generally WILLIAM WINTHROP, MILITARY LAW AND

PRECEDENTS (2d ed. 1920), the Geneva Conventions, e.g.,

Geneva Convention Relative to the Treatment of Prisoners of

War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, and the

Constitution, see U.S. CONST. art. I, § 8, cl. 11, the United States

confronts a stateless enemy in the war on terror that is difficult

to identify and widely dispersed. See Hamdi, 519 U.S. at 519-

20.

The parties recite in their several briefs the substantial

competing interests of individual liberty and national security

that are at stake, much as did the Supreme Court in Hamdi, 542

U.S. at 529-32 (plurality opinion); see id. at 544-45 (Souter, J.,

joined by Ginsburg, J., concurring in part, dissenting in part, and

concurring in the judgment). In Hamdi, the plurality acknow-

ledged that “core strategic matters of warmaking belong in the

hands of those who are best positioned and most politically

accountable for making them.” Id. at 531. At the same time, it

acknowledged that for Hamdi “detention could last for the rest

of his life.” Id. at 520. Although Hamdi was a United States

citizen, the premise underlying the conclusion that there is a

role for the judiciary, id. at 532-33, was that “history and

common sense teach us that an unchecked system of detention

carries the potential to become a means for oppression and abuse

of others who do not present that sort of threat,” id. at 530. In

short, the nature of the conflict makes true enemies of the United

28

States more troublesome. At the same time, the risk of wrongful

detention of mere bystanders is acute, particularly where, as

here, the Executive detains individuals without trial.

Parsing the role of the judiciary in this context is arduous.

The power of the President is at its zenith, after all, when the

President acts in the conduct of foreign affairs with the support

of Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579, 635-38 (1952) (Jackson, J., concurring). Even

assuming the AUMF and the Order on Detention provide such

support for the detentions at issue, still the President’s powers

are not unlimited in wartime. See, e.g., Milligan, 71 U.S. (4

Wall.) at 125. The Founders could have granted plenary power

to the President to confront emergency situations, but they did

not; they could have authorized the suspension of habeas corpus

during any state of war, but they limited suspension to cases of

“Rebellion or Invasion.” U.S. CONST. art. I, § 9, cl. 2; see 2

STORY, supra, § 1342; see also 2 THE RECORDS OF THE

FEDERAL CONVENTION OF 1787, supra, at 341 (proposal of

Charles Pinckney). Even in 1627, at a time when “[a]ll justice

still flowed from the king [and] the courts merely dispensed that

justice,” DUKER, supra, at 44, the idea that a court would

remand a prisoner merely because the Crown so ordered (“per

speciale mandatum Domini Regis”) was deemed to be

inconsistent with the notion of a government under law. See

Darnel’s Case, 3 Howell’s St. Tr. 1, 59 (K.B. 1627); MEADOR,

supra, at 13-19. While judgments of military necessity are

entitled to deference by the courts and while temporary custody

during wartime may be justified in order properly to process

those who have been captured, the Executive has had ample

opportunity during the past five years during which the

detainees have been held at Guantanamo Bay to determine who

is being held and for what reason. See, e.g., Hamdan, 126 S. Ct.

at 2773; cf. Hamdi, 542 U.S. at 521.

29

Throughout history, courts reviewing the Executive

detention of prisoners have engaged in searching factual review

of the Executive’s claims. In Bollman, the Supreme Court

reviewed a petition of two alleged traitors accused of levying

war against the United States. The petitioners were held in

custody by the marshal but had not yet been charged. 8 U.S. (4

Cranch) at 75-76, 125. After the “testimony on which they were

committed [was] fully examined and attentively considered,” the

Court ordered the prisoners released. Id. at 136-37. The 1759

English case of Rex v. Schiever, discussed supra Part I.C.1, also

shows that habeas courts scrutinized the factual basis for the

detention of even wartime prisoners. In Schiever, the court

reviewed the prisoner’s affidavit and took further testimony

from a witness, who “sw[ore] that Schiever was forced against

his inclination . . . to serve on board [the French privateer].” 2

Burr. at 766, 97 Eng. Rep. at 551. Nonetheless, to the court it

was clear that Schiever had, in fact, fought against England. As

such, “the Court thought this man, upon his own shewing,

clearly a prisoner of war and lawfully detained as such.

Therefore they Denied the motion.” Id., 97 Eng. Rep. at 552

(footnote omitted). Similar themes and factual inquiry appear

in Three Spanish Sailors, 2 Black. W. 1324, 96 Eng. Rep. 775,

in which three alien petitioners submitted affidavits during

wartime but failed to convince the court that they were not

enemies of the Crown, and Goldswain’s Case, 5 Black. W.

1207, 96 Eng. Rep. 711 (C.P. 1778), in which a wrongly

impressed Englishman was released from service during

wartime. See also Beeching, 4 B. & C. 137, 107 Eng. Rep.

1010.

In the early history of the United States, two cases further

suggest that factual review accompanied even writs during

wartime. In United States v. Williams (C.C.D. Va. Dec. 4,

1813), a previously unreported case researched for a recent

essay in The Green Bag, Chief Justice John Marshall, riding

30

circuit, released an enemy alien from detention by civil

authorities. The Chief Justice concluded that “the regulations

made by the President of the United States respecting alien

enemies [did] not authorize the confinement of the petitioner in

this case.” Neuman & Hobson, supra, at 42 (quoting the circuit

court’s order book). A majority of the Supreme Court of

Pennsylvania, in Lockington’s Case, 1 Brightly’s (N.P.) 269 (Pa.

1813), agreed that alien enemies were entitled to a judgment on

the merits as to whether their detention was justified,12 and

thereafter remanded the prisoners. Id. at 283-84 (Tilghman,

C.J.); id. at 285, 293 (Yeates, J.).

The government maintains that a series of World War II-era

cases undercuts the proposition that habeas review of uncharged

detainees requires a factual assessment. It cites several cases in

which courts have refused to engage in factual review of the

findings of military tribunals imposing sentences under the laws

of war. See, e.g., Eisentrager, 339 U.S. 763; In re Yamashita,

327 U.S. 1 (1945); Quirin, 317 U.S. at 25. There is good reason

to treat differently a petition by an uncharged detainee — who

could be held indefinitely without even the prospect of a trial or

meaningful process — from that of a convicted war criminal.

See Rasul, 542 U.S. at 476; Omar v. Harvey, No. 06-5126, slip

op. at 13 (D.C. Cir. Feb. 9, 2007); see also supra note 9. For

example, in Yamashita, the prisoner petitioned for a writ of

habeas corpus only after a trial before a military tribunal where

his six attorneys defended against 286 government witnesses.

327 U.S. at 5. Quirin involved a military commission, see 317

U.S. at 18-19, where the government presented “overwhelming”

proof that included confessions from the German saboteurs.

PIERCE O’DONNELL, IN TIME OF WAR 152-53, 165-66, 189

12

Prior to Ableman v. Booth, 62 U.S. (21 How.) 506 (1859),

and Tarble’s Case, 80 U.S. (13 Wall.) 397, 411-12 (1872), state courts

regularly issued writs of habeas corpus as to federal prisoners.

31

(2005). In Eisentrager, 339 U.S. at 766, the military tribunal

conducted a trial lasting months. By contrast, the detainees have

been charged with no crimes, nor are charges pending. The

robustness of the review they have received to date differs by

orders of magnitude from that of the military tribunal cases.13

13

There is also good reason to distinguish between these

detainees’ cases and parallel cases where detainees have been

accorded prisoner-of-war status and the benefits of Army Regulation

190-8, which implements the Third Geneva Convention. These

provisions contemplate the end of hostilities and prisoner exchanges,

id. §§ 3-11, 3-13, and provide for more extensive process for

determining the status of prisoners, id. § 1-6. The regulations further

specify that:

Persons who have been determined by a competent tribunal

not to be entitled to prisoner of war status may not be

executed, imprisoned, or otherwise penalized without further

proceedings to determine what acts they have committed and

what penalty should be imposed. The record of every

Tribunal proceeding resulting in a determination denying

[Enemy Prisoner of War] status shall be reviewed for legal

sufficiency when the record is received at the office of the

Staff Judge Advocate for the convening authority.

Id. § 1-6g. In Hamdi, the Supreme Court recognized that it was

conceivable that procedures similar to Army Regulation 190-8 may

suffice to provide due process to a citizen-detainee. 542 U.S. at 538

(plurality opinion); id. at 550-51 (Souter, J., with whom Ginsburg, J.,

joins, concurring in part, dissenting in part, and concurring in the

judgment). Even assuming that according Guantanamo detainees

rights under Army Regulation 190-8 would provide adequate and

independent factual review of their claims sufficient to satisfy the

dictates of habeas corpus, as well as any treaty obligations that the

detainees are able to enforce, the Executive has declined to accord

such detainees prisoner-of-war status, see, e.g., The President’s News

Conference With Chairman Hamid Karzai of the Afghan Interim

32

The Supreme Court in Rasul did not address “whether and

what further proceedings may become necessary after

respondents make their responses to the merits of petitioners’

claims,” 542 U.S. at 485. The detainees cannot rest on due

process under the Fifth Amendment. Although the district court

in Guantanamo Detainee Cases, 355 F. Supp. 2d at 454, made

a contrary ruling, the Supreme Court in Eisentrager held that the

Constitution does not afford rights to aliens in this context. 339

U.S. at 770; accord Verdugo-Urquidez, 494 U.S. at 269.

Although in Rasul the Court cast doubt on the continuing vitality

of Eisentrager, 542 U.S. at 475-79, absent an explicit statement

by the Court that it intended to overrule Eisentrager’s

constitutional holding, that holding is binding on this court. See

Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S.

477, 484 (1989); Op. at 21. Rather, the process that is due

inheres in the nature of the writ and the inquiry it entails. The

Court in Rasul held that federal court jurisdiction under 28

U.S.C. § 2241 is permitted for habeas petitions filed by

detainees at Guantanamo, 542 U.S. at 485; id. at 488 (Kennedy,

J., concurring in the judgment), and this result is undisturbed

because the MCA is void. So long as the Executive can

convince an independent Article III habeas judge that it has not

acted unlawfully, it may continue to detain those alien enemy

combatants who pose a continuing threat during the active

engagement of the United States in the war on terror. See id. at

488 (Kennedy, J., concurring in the judgment); cf. Hamdi, 542

U.S. at 518-19. But it must make that showing and the detainees

must be allowed a meaningful opportunity to respond. See

MEADOR, supra, at 18; see also Hamdi, 542 U.S. at 525-26.

Therefore, I would hold that on remand the district courts

shall follow the return and traverse procedures of 28 U.S.C. §

2241 et seq. In particular, upon application for a writ of habeas

Authority, 1 PUB. PAPERS 121, 123 (Jan. 28, 2002).

33

corpus, 28 U.S.C. § 2242, the district court shall issue an order

to show cause, whereupon “[t]he person to whom the writ is or

order is directed shall make a return certifying the true cause of

the detention,” id. § 2243. So long as the government “puts

forth credible evidence that the [detainee] meets the

enemy-combatant criteria,” Hamdi, 542 U.S. at 533, the district

court must accept the return as true “if not traversed” by the

person detained. Id. § 2248. The district court may take

evidence “orally or by deposition, or, in the discretion of the

judge, by affidavit.” Id. § 2246. The district court may conduct

discovery. See Harris, 394 U.S. at 298-99; cf. Rules Governing

Section 2254 Cases, R. 6-8; Rules Governing Section 2255

Cases, R. 6-8. Thereafter, “[t]he [district] court shall summarily

hear and determine the facts, and dispose of the matter as law

and justice require.”14 District courts are well able to adjust

these proceedings in light of the government’s significant

interests in guarding national security, as suggested in

Guantanamo Detainee Cases, 355 F. Supp. 2d at 467, by use of

protective orders and ex parte and in camera review, id. at 471.

The procedural mechanisms employed in that case, see, e.g., id.

at 452 & n.12, should be employed again, as district courts must

assure the basic fairness of the habeas proceedings, see

generally id. at 468-78.

14

Because the Suspension Clause question must be decided

by the Supreme Court in the detainees’ favor in order for the district

court proceedings to occur, I leave for another day questions relating

to the evolving and unlimited definition of “enemy combatant,” see

Guantanamo Detainee Cases, 355 F. Supp. 2d at 474-75, a detainee’s

inability to rebut evidence withheld on national security grounds, see

id. at 468-72, as well as the detainees’ claims under other statutes,

international conventions, and treaties, and whether challenges to the

conditions of confinement are cognizable in habeas. Compare Khalid,

355 F. Supp. 2d at 324-25, with Miller v. Overholser, 206 F.2d 415,

419-21 (D.C. Cir. 1953). Congressional action may also clarify

matters. See, e.g., S. 185, S. 576, 110th Cong. (2007).

34

Accordingly, I respectfully dissent from the judgment

vacating the district courts’ decisions and dismissing these

appeals for lack of jurisdiction.