OPINION OF THE COURT BOUMEDIENE V. BUSH 553 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NOS. 06-1195 AND 06-1196 LAKHDAR BOUMEDIENE, et al., PETITIONERS

															06–1195 v. GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES,
et al. KHALED A. F. AL ODAH, next friend of FAWZI
KHALID ABDULLAH FAHAD AL ODAH, et al., PETITIONERS

															06–1196 v. UNITED STATES et al. on writs of certiorari to the united states
court of appeals for the district of columbia circuit [June 12, 2008] Justice Kennedy delivered the opinion of the Court.

															   Petitioners are aliens designated
as enemy combatants and detained at the United States Naval Station
at Guantanamo Bay, Cuba. There are others detained there, also
aliens, who are not parties to this suit.

															   Petitioners present a question not resolved by
our earlier cases relating to the detention of aliens at
Guantanamo: whether they have the constitutional privilege of
habeas corpus, a privilege not to be withdrawn except in
conformance with the Suspension Clause, Art. I, §9, cl. 2. We
hold these petitioners do have the habeas corpus privilege.
Congress has enacted a statute, the Detainee Treatment Act of 2005
(DTA), 119 Stat. 2739, that provides certain procedures for review
of the detainees’ status. We hold that those procedures are not an
adequate and effective substitute for habeas corpus. Therefore §7
of the Military Commissions Act of 2006 (MCA), 28 U.
S. C. A. §2241(e) (Supp. 2007), operates as an
unconstitutional suspension of the writ. We do not address whether
the President has authority to detain these petitioners nor do we
hold that the writ must issue. These and other questions regarding
the legality of the detention are to be resolved in the first
instance by the District Court.

															I

															   Under the Authorization for Use
of Military Force (AUMF), §2(a), 115 Stat. 224, note following 50
U. S. C. §1541 (2000 ed., Supp. V), the President is
authorized “to use all necessary and appropriate force against
those nations, organizations, or persons he determines planned,
authorized, committed, or aided the terrorist attacks that occurred
on September 11, 2001, or harbored such organizations or persons,
in order to prevent any future acts of international terrorism
against the United States by such nations, organizations or
persons.”

															   In Hamdi v. Rumsfeld , 542 U. S. 507 (2004),
five Members of the Court recognized that detention of individuals
who fought against the United States in Afghanistan “for the
duration of the particular conflict in which they were captured, is
so fundamental and accepted an incident to war as to be an exercise
of the ‘necessary and appropriate force’ Congress has authorized
the President to use.” Id. , at 518 (plurality opinion of
O’Connor, J.), id ., at 588–589 (Thomas, J.,
dissenting). After Hamdi , the Deputy Secretary of Defense
established Combatant Status Review Tribunals (CSRTs) to determine
whether individuals detained at Guantanamo were “enemy combatants,”
as the Department defines that term. See App. to Pet. for Cert. in
No. 06–1195, p. 81a. A later memorandum established procedures to
implement the CSRTs. See App. to Pet. for Cert. in No. 06–1196, p.
147. The Government maintains these procedures were designed to
comply with the due process requirements identified by the
plurality in Hamdi . See Brief for Respondents 10.

															   Interpreting the AUMF, the Department of
Defense ordered the detention of these petitioners, and they were
transferred to Guantanamo. Some of these individuals were
apprehended on the battlefield in Afghanistan, others in places as
far away from there as Bosnia and Gambia. All are foreign
nationals, but none is a citizen of a nation now at war with the
United States. Each denies he is a member of the al Qaeda terrorist
network that carried out the September 11 attacks or of the Taliban
regime that provided sanctuary for al Qaeda. Each petitioner
appeared before a separate CSRT; was determined to be an enemy
combatant; and has sought a writ of habeas corpus in the United
States District Court for the District of Columbia.

															   The first actions commenced in February 2002.
The District Court ordered the cases dismissed for lack of
jurisdiction because the naval station is outside the sovereign
territory of the United States. See Rasul v. Bush , 215 F. Supp. 2d 55 (2002). The Court of Appeals
for the District of Columbia Circuit affirmed. See Al Odah v. United States , 321 F. 3d 1134, 1145 (2003). We
granted certiorari and reversed, holding that 28 U. S. C.
§2241 extended statutory habeas corpus jurisdiction to Guantanamo.
See Rasul v. Bush , 542 U. S. 466 , 473
(2004). The constitutional issue presented in the instant cases was
not reached in Rasul . Id. , at 476.

															   After Rasul , petitioners’ cases were
consolidated and entertained in two separate proceedings. In the
first set of cases, Judge Richard J. Leon granted the Government’s
motion to dismiss, holding that the detainees had no rights that
could be vindicated in a habeas corpus action. In the second set of
cases Judge Joyce Hens Green reached the opposite conclusion,
holding the detainees had rights under the Due Process Clause of
the Fifth Amendment. See Khalid v. Bush , 355
F. Supp. 2d 311, 314 (DC 2005); In re Guantanamo
Detainee Cases , 355 F. Supp. 2d 443, 464 (DC 2005).

															   While appeals were pending from the District
Court decisions, Congress passed the DTA. Subsection (e) of §1005
of the DTA amended 28 U. S. C. §2241 to provide that “no
court, justice, or judge shall have jurisdiction to hear or
consider … an application for a writ of habeas corpus filed by or
on behalf of an alien detained by the Department of Defense at
Guantanamo Bay, Cuba.” 119 Stat. 2742. Section 1005 further
provides that the Court of Appeals for the District of Columbia
Circuit shall have “exclusive” jurisdiction to review decisions of
the CSRTs. Ibid. In Hamdan v. Rumsfeld , 548 U. S. 557 ,
576–577 (2006), the Court held this provision did not apply to
cases (like petitioners’) pending when the DTA was enacted.
Congress responded by passing the MCA, 10 U. S. C. A.
§948a et seq. (Supp. 2007), which again amended §2241. The
text of the statutory amendment is discussed below. See Part II, infra . (Four Members of the Hamdan majority noted
that “[n]othing prevent[ed] the President from returning to
Congress to seek the authority he believes necessary.” 548 U. S.,
at 636 (Breyer, J., concurring). The authority to which the
concurring opinion referred was the authority to “create military
commissions of the kind at issue” in the case. Ibid .
Nothing in that opinion can be construed as an invitation for
Congress to suspend the writ.)

															   Petitioners’ cases were consolidated on
appeal, and the parties filed supplemental briefs in light of our
decision in Hamdan . The Court of Appeals’ ruling, 476
F. 3d 981 (CADC 2007), is the subject of our present review
and today’s decision.

															   The Court of Appeals concluded that MCA §7
must be read to strip from it, and all federal courts, jurisdiction
to consider petitioners’ habeas corpus applications, id .,
at 987; that petitioners are not entitled to the privilege of the
writ or the protections of the Suspension Clause, id. , at
990–991; and, as a result, that it was unnecessary to consider
whether Congress provided an adequate and effective substitute for
habeas corpus in the DTA.

															   We granted certiorari. 551 U. S. ___
(2007).

															II

															   As a threshold matter, we must
decide whether MCA §7 denies the federal courts jurisdiction to
hear habeas corpus actions pending at the time of its enactment. We
hold the statute does deny that jurisdiction, so that, if the
statute is valid, petitioners’ cases must be dismissed.

															   As amended by the terms of the
MCA, 28 U. S. C. A. §2241(e) (Supp. 2007) now
provides:

															   “(1) No court, justice, or judge
shall have jurisdiction to hear or consider an application for a
writ of habeas corpus filed by or on behalf of an alien detained by
the United States who has been determined by the United States to
have been properly detained as an enemy combatant or is awaiting
such determination.

															   “(2) Except as provided in [§§1005(e)(2) and
(e)(3) of the DTA] no court, justice, or judge shall have
jurisdiction to hear or consider any other action against the
United States or its agents relating to any aspect of the
detention, transfer, treatment, trial, or conditions of confinement
of an alien who is or was detained by the United States and has
been determined by the United States to have been properly detained
as an enemy combatant or is awaiting such determination.”

															   Section 7(b) of the MCA provides
the effective date for the amendment of §2241(e). It states:

															“The amendment made by [MCA §7(a)] shall take
effect on the date of the enactment of this Act, and shall apply to
all cases, without exception, pending on or after the date of the
enactment of this Act which relate to any aspect of the detention,
transfer, treatment, trial, or conditions of detention of an alien
detained by the United States since September 11, 2001.” 120 Stat.
2636.

															   There is little doubt that the
effective date provision applies to habeas corpus actions. Those
actions, by definition, are cases “which relate to … detention.”
See Black’s Law Dictionary 728 (8th ed. 2004) (defining habeas
corpus as “[a] writ employed to bring a person before a court, most
frequently to ensure that the party’s imprisonment or detention is
not illegal”). Petitioners argue, nevertheless, that MCA §7(b) is
not a sufficiently clear statement of congressional intent to strip
the federal courts of jurisdiction in pending cases. See Ex
parte Yerger , 8 Wall. 85, 102–103 (1869). We disagree.

															   Their argument is as follows: Section
2241(e)(1) refers to “a writ of habeas corpus.” The next paragraph,
§2241(e)(2), refers to “any other action … relating to any aspect
of the detention, transfer, treatment, trial, or conditions of
confinement of an alien who … [has] been properly detained as an
enemy combatant or is awaiting such determination.” There are two
separate paragraphs, the argument continues, so there must be two
distinct classes of cases. And the effective date subsection, MCA
§7(b), it is said, refers only to the second class of cases, for it
largely repeats the language of §2241(e)(2) by referring to “cases
… which relate to any aspect of the detention, transfer, treatment,
trial, or conditions of detention of an alien detained by the
United States.”

															   Petitioners’ textual argument would have more
force were it not for the phrase “other action” in §2241(e)(2). The
phrase cannot be understood without referring back to the paragraph
that precedes it, §2241(e)(1), which explicitly mentions the term
“writ of habeas corpus.” The structure of the two paragraphs
implies that habeas actions are a type of action “relating to any
aspect of the detention, transfer, treatment, trial, or conditions
of confinement of an alien who is or was detained … as an enemy
combatant.” Pending habeas actions, then, are in the category of
cases subject to the statute’s jurisdictional bar.

															   We acknowledge, moreover, the litigation
history that prompted Congress to enact the MCA. In Hamdan the Court found it unnecessary to address the petitioner’s
Suspension Clause arguments but noted the relevance of the clear
statement rule in deciding whether Congress intended to reach
pending habeas corpus cases. See 548 U. S., at 575 (Congress should
“not be presumed to have effected such denial [of habeas relief]
absent an unmistakably clear statement to the contrary”). This
interpretive rule facilitates a dialogue between Congress and the
Court. Cf. Hilton v. South Carolina Public Railways
Comm’n , 502 U.
S. 197 , 206 (1991); H. Hart & A. Sacks, The Legal Process:
Basic Problems in the Making and Application of Law 1209–1210 (W.
Eskridge & P. Frickey eds. 1994). If the Court invokes a clear
statement rule to advise that certain statutory interpretations are
favored in order to avoid constitutional difficulties, Congress can
make an informed legislative choice either to amend the statute or
to retain its existing text. If Congress amends, its intent must be
respected even if a difficult constitutional question is presented.
The usual presumption is that Members of Congress, in accord with
their oath of office, considered the constitutional issue and
determined the amended statute to be a lawful one; and the
Judiciary, in light of that determination, proceeds to its own
independent judgment on the constitutional question when required
to do so in a proper case.

															   If this ongoing dialogue between and among the
branches of Government is to be respected, we cannot ignore that
the MCA was a direct response to Hamdan ’s holding that the
DTA’s jurisdiction-stripping provision had no application to
pending cases. The Court of Appeals was correct to take note of the
legislative history when construing the statute, see 476
F. 3d, at 986, n. 2 (citing relevant floor statements);
and we agree with its conclusion that the MCA deprives the federal
courts of jurisdiction to entertain the habeas corpus actions now
before us.

															III

															   In deciding the constitutional
questions now presented we must determine whether petitioners are
barred from seeking the writ or invoking the protections of the
Suspension Clause either because of their status, i.e. ,
petitioners’ designation by the Executive Branch as enemy
combatants, or their physical location, i.e. , their
presence at Guantanamo Bay. The Government contends that
noncitizens designated as enemy combatants and detained in
territory located outside our Nation’s borders have no
constitutional rights and no privilege of habeas corpus.
Petitioners contend they do have cognizable constitutional rights
and that Congress, in seeking to eliminate recourse to habeas
corpus as a means to assert those rights, acted in violation of the
Suspension Clause.

															   We begin with a brief account of
the history and origins of the writ. Our account proceeds from two
propositions. First, protection for the privilege of habeas corpus
was one of the few safeguards of liberty specified in a
Constitution that, at the outset, had no Bill of Rights. In the
system conceived by the Framers the writ had a centrality that must
inform proper interpretation of the Suspension Clause. Second, to
the extent there were settled precedents or legal commentaries in
1789 regarding the extraterritorial scope of the writ or its
application to enemy aliens, those authorities can be instructive
for the present cases.

															A

															   The Framers viewed freedom from
unlawful restraint as a fundamental precept of liberty, and they
understood the writ of habeas corpus as a vital instrument to
secure that freedom. Experience taught, however, that the
common-law writ all too often had been insufficient to guard
against the abuse of monarchial power. That history counseled the
necessity for specific language in the Constitution to secure the
writ and ensure its place in our legal system.

															   Magna Carta decreed that no man
would be imprisoned contrary to the law of the land. Art. 39, in
Sources of Our Liberties 17 (R. Perry & J. Cooper eds. 1959)
(“No free man shall be taken or imprisoned or dispossessed, or
outlawed, or banished, or in any way destroyed, nor will we go upon
him, nor send upon him, except by the legal judgment of his peers
or by the law of the land”). Important as the principle was, the
Barons at Runnymede prescribed no specific legal process to enforce
it. Holdsworth tells us, however, that gradually the writ of habeas
corpus became the means by which the promise of Magna Carta was
fulfilled. 9 W. Holdsworth, A History of English Law 112 (1926)
(hereinafter Holdsworth).

															   The development was painstaking, even by the
centuries-long measures of English constitutional history. The writ
was known and used in some form at least as early as the reign of
Edward I. Id. , at 108–125. Yet at the outset it was used
to protect not the rights of citizens but those of the King and his
courts. The early courts were considered agents of the Crown,
designed to assist the King in the exercise of his power. See J.
Baker, An Introduction to English Legal History 38–39 (4th ed.
2002). Thus the writ, while it would become part of the foundation
of liberty for the King’s subjects, was in its earliest use a
mechanism for securing compliance with the King’s laws. See
Halliday & White, The Suspension Clause: English Text, Imperial
Contexts, and American Implications, 94 Va. L. Rev. (forthcoming
2008) (hereinafter Halliday & White) (manuscript, at 11, online
at http://papers.ssrn.com/sol3 /papers.cfm?abstract_id=1008252
(all Internet materials as visited June 9, 2008, and available in
Clerk of Court’s case file) (noting that “conceptually the writ
arose from a theory of power rather than a theory of liberty”)).
Over time it became clear that by issuing the writ of habeas corpus
common-law courts sought to enforce the King’s prerogative to
inquire into the authority of a jailer to hold a prisoner. See M.
Hale, Prerogatives of the King 229 (D. Yale ed. 1976); 2 J. Story,
Commentaries on the Constitution of the United States §1341, p. 237
(3d ed. 1858) (noting that the writ ran “into all parts of the
king’s dominions; for it is said, that the king is entitled, at all
times, to have an account, why the liberty of any of his subjects
is restrained”).

															   Even so, from an early date it was understood
that the King, too, was subject to the law. As the writers said of
Magna Carta, “it means this, that the king is and shall be below
the law.” 1 F. Pollock & F. Maitland, History of English Law
173 (2d ed. 1909); see also 2 Bracton On the Laws and Customs of
England 33 (S. Thorne transl. 1968) (“The king must not be under
man but under God and under the law, because law makes the king”).
And, by the 1600’s, the writ was deemed less an instrument of the
King’s power and more a restraint upon it. See Collings, Habeas
Corpus for Convicts—Constitutional Right or Legislative Grace, 40
Calif. L. Rev. 335, 336 (1952) (noting that by this point the
writ was “the appropriate process for checking illegal imprisonment
by public officials”).

															   Still, the writ proved to be an imperfect
check. Even when the importance of the writ was well understood in
England, habeas relief often was denied by the courts or suspended
by Parliament. Denial or suspension occurred in times of political
unrest, to the anguish of the imprisoned and the outrage of those
in sympathy with them.

															   A notable example from this period was Darnel’s Case , 3 How. St. Tr. 1 (K. B. 1627). The events
giving rise to the case began when, in a display of the Stuart
penchant for authoritarian excess, Charles I demanded that Darnel
and at least four others lend him money. Upon their refusal, they
were imprisoned. The prisoners sought a writ of habeas corpus; and
the King filed a return in the form of a warrant signed by the
Attorney General. Ibid . The court held this was a
sufficient answer and justified the subjects’ continued
imprisonment. Id ., at 59.

															   There was an immediate outcry of protest. The
House of Commons promptly passed the Petition of Right, 3 Car. 1,
ch. 1 (1627), 5 Statutes of the Realm 23, 24 (reprint 1963), which
condemned executive “imprison[ment] without any cause” shown, and
declared that “no freeman in any such manner as is before mencioned
[shall] be imprisoned or deteined.” Yet a full legislative response
was long delayed. The King soon began to abuse his authority again,
and Parliament was dissolved. See W. Hall & R. Albion, A
History of England and the British Empire 328 (3d ed. 1953)
(hereinafter Hall & Albion). When Parliament reconvened in
1640, it sought to secure access to the writ by statute. The Act of
1640, 16 Car. 1, ch. 10, 5 Statutes of the Realm, at 110, expressly
authorized use of the writ to test the legality of commitment by
command or warrant of the King or the Privy Council. Civil strife
and the Interregnum soon followed, and not until 1679 did
Parliament try once more to secure the writ, this time through the
Habeas Corpus Act of 1679, 31 Car. 2, ch. 2, id., at 935.
The Act, which later would be described by Blackstone as the
“stable bulwark of our liberties,” 1 W. Blackstone, Commentaries
*137 (hereinafter Blackstone), established procedures for issuing
the writ; and it was the model upon which the habeas statutes of
the 13 American Colonies were based, see Collings, supra ,
at 338–339.

															   This history was known to the Framers. It no
doubt confirmed their view that pendular swings to and away from
individual liberty were endemic to undivided, uncontrolled power.
The Framers’ inherent distrust of governmental power was the
driving force behind the constitutional plan that allocated powers
among three independent branches. This design serves not only to
make Government accountable but also to secure individual liberty.
See Loving v. United States , 517 U. S. 748 , 756
(1996) (noting that “[e]ven before the birth of this country,
separation of powers was known to be a defense against tyranny”);
cf. Youngstown Sheet & Tube Co. v. Sawyer , 343 U. S. 579 ,
635 (1952) (Jackson, J., concurring) (“[T]he Constitution diffuses
power the better to secure liberty”); Clinton v. City
of New York , 524 U. S. 417 , 450
(1998) (Kennedy, J., concurring) (“Liberty is always at stake when
one or more of the branches seek to transgress the separation of
powers”). Because the Constitution’s separation-of-powers
structure, like the substantive guarantees of the Fifth and
Fourteenth Amendments, see Yick Wo v. Hopkins , 118 U. S. 356 ,
374 (1886), protects persons as well as citizens, foreign nationals
who have the privilege of litigating in our courts can seek to
enforce separation-of-powers principles, see, e.g. , INS v. Chadha , 462 U. S. 919 , 958–959
(1983).

															   That the Framers considered the writ a vital
instrument for the protection of individual liberty is evident from
the care taken to specify the limited grounds for its suspension:
“The Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may
require it.” Art. I, §9, cl. 2; see Amar, Of Sovereignty and
Federalism, 96 Yale L. J. 1425, 1509, n. 329 (1987) (“[T]he
non-suspension clause is the original Constitution’s most explicit
reference to remedies”). The word “privilege” was used, perhaps, to
avoid mentioning some rights to the exclusion of others. (Indeed,
the only mention of the term “right” in the Constitution, as
ratified, is in its clause giving Congress the power to protect the
rights of authors and inventors. See Art. I, §8, cl. 8.)

															   Surviving accounts of the ratification debates
provide additional evidence that the Framers deemed the writ to be
an essential mechanism in the separation-of-powers scheme. In a
critical exchange with Patrick Henry at the Virginia ratifying
convention Edmund Randolph referred to the Suspension Clause as an
“exception” to the “power given to Congress to regulate courts.”
See 3 Debates in the Several State Conventions on the Adoption of
the Federal Constitution 460–464 (J. Elliot 2d ed. 1876)
(hereinafter Elliot’s Debates). A resolution passed by the New York
ratifying convention made clear its understanding that the Clause
not only protects against arbitrary suspensions of the writ but
also guarantees an affirmative right to judicial inquiry into the
causes of detention. See Resolution of the New York Ratifying
Convention (July 26, 1788), in 1 Elliot’s Debates 328 (noting the
convention’s understanding “[t]hat every person restrained of his
liberty is entitled to an inquiry into the lawfulness of such
restraint, and to a removal thereof if unlawful; and that such
inquiry or removal ought not to be denied or delayed, except when,
on account of public danger, the Congress shall suspend the
privilege of the writ of habeas corpus ”). Alexander
Hamilton likewise explained that by providing the detainee a
judicial forum to challenge detention, the writ preserves limited
government. As he explained in The Federalist No. 84:

															“[T]he practice of arbitrary imprisonments, have
been, in all ages, the favorite and most formidable instruments of
tyranny. The observations of the judicious Blackstone … are well
worthy of recital: ‘To bereave a man of life … or by violence to
confiscate his estate, without accusation or trial, would be so
gross and notorious an act of despotism as must at once convey the
alarm of tyranny throughout the whole nation; but confinement of
the person, by secretly hurrying him to jail, where his sufferings
are unknown or forgotten, is a less public, a less striking, and
therefore a more dangerous engine of arbitrary
government.’ And as a remedy for this fatal evil he is everywhere
peculiarly emphatical in his encomiums on the habeas
corpus act, which in one place he calls ‘the bulwark of the
British Constitution.’ ” C. Rossiter ed., p. 512 (1961)
(quoting 1 Blackstone *136, 4 id., at *438).

															   Post-1789 habeas developments in
England, though not bearing upon the Framers’ intent, do verify
their foresight. Those later events would underscore the need for
structural barriers against arbitrary suspensions of the writ. Just
as the writ had been vulnerable to executive and parliamentary
encroachment on both sides of the Atlantic before the American
Revolution, despite the Habeas Corpus Act of 1679, the writ was
suspended with frequency in England during times of political
unrest after 1789. Parliament suspended the writ for much of the
period from 1792 to 1801, resulting in rampant arbitrary
imprisonment. See Hall & Albion 550. Even as late as World War
I, at least one prominent English jurist complained that the
Defence of the Realm Act, 1914, 4 & 5 Geo. 5, ch. 29(1)(a),
effectively had suspended the privilege of habeas corpus for any
person suspected of “communicating with the enemy.” See King v. Halliday, [1917] A. C. 260, 299 (Lord
Shaw, dissenting); see generally A. Simpson, In the Highest Degree
Odious: Detention Without Trial in Wartime Britain 6–7, 24–25
(1992).

															   In our own system the Suspension Clause is
designed to protect against these cyclical abuses. The Clause
protects the rights of the detained by a means consistent with the
essential design of the Constitution. It ensures that, except
during periods of formal suspension, the Judiciary will have a
time-tested device, the writ, to maintain the “delicate balance of
governance” that is itself the surest safeguard of liberty. See Hamdi, 542 U. S., at 536 (plurality opinion). The Clause
protects the rights of the detained by affirming the duty and
authority of the Judiciary to call the jailer to account. See Preiser v. Rodriguez , 411 U. S. 475 , 484
(1973) (“[T]he essence of habeas corpus is an attack by a person in
custody upon the legality of that custody”); cf. In re
Jackson , 15 Mich. 417, 439–440 (1867) (Cooley, J., concurring)
(“The important fact to be observed in regard to the mode of
procedure upon this [habeas] writ is, that it is directed to, and
served upon, not the person confined, but his jailer”). The
separation-of-powers doctrine, and the history that influenced its
design, therefore must inform the reach and purpose of the
Suspension Clause.

															B

															   The broad historical narrative of
the writ and its function is central to our analysis, but we seek
guidance as well from founding-era authorities addressing the
specific question before us: whether foreign nationals, apprehended
and detained in distant countries during a time of serious threats
to our Nation’s security, may assert the privilege of the writ and
seek its protection. The Court has been careful not to foreclose
the possibility that the protections of the Suspension Clause have
expanded along with post-1789 developments that define the present
scope of the writ. See INS v. St. Cyr , 533 U. S. 289 , 300–301
(2001). But the analysis may begin with precedents as of 1789, for
the Court has said that “at the absolute minimum” the Clause
protects the writ as it existed when the Constitution was drafted
and ratified. Id ., at 301.

															   To support their arguments, the
parties in these cases have examined historical sources to
construct a view of the common-law writ as it existed in 1789—as
have amici whose expertise in legal history the Court has
relied upon in the past. See Brief for Legal Historians as Amici Curiae; see also St. Cyr , supra ,
at 302, n. 16. The Government argues the common-law writ ran
only to those territories over which the Crown was sovereign. See
Brief for Respondents 27. Petitioners argue that jurisdiction
followed the King’s officers. See Brief for Petitioner Boumediene
et al. 11. Diligent search by all parties reveals no certain
conclusions. In none of the cases cited do we find that a
common-law court would or would not have granted, or refused to
hear for lack of jurisdiction, a petition for a writ of habeas
corpus brought by a prisoner deemed an enemy combatant, under a
standard like the one the Department of Defense has used in these
cases, and when held in a territory, like Guantanamo, over which
the Government has total military and civil control.

															   We know that at common law a petitioner’s
status as an alien was not a categorical bar to habeas corpus
relief. See, e.g. , Sommersett’s Case , 20 How. St.
Tr. 1, 80–82 (1772) (ordering an African slave freed upon finding
the custodian’s return insufficient); see generally Khera v. Secretary of State for the Home Dept. , [1984] A. C. 74,
111 (“Habeas corpus protection is often expressed as limited to
‘British subjects.’ Is it really limited to British nationals?
Suffice it to say that the case law has given an emphatic ‘no’ to
the question”). We know as well that common-law courts entertained
habeas petitions brought by enemy aliens detained in
England—“entertained” at least in the sense that the courts held
hearings to determine the threshold question of entitlement to the
writ. See Case of Three Spanish Sailors , 2 Black. W. 1324,
96 Eng. Rep. 775 (C. P. 1779); King v. Schiever ,
2 Burr. 765, 97 Eng. Rep. 551 (K. B. 1759); Du Castro’s
Case , Fort. 195, 92 Eng. Rep. 816 (K. B. 1697).

															   In Schiever and the Spanish
Sailors ’ case, the courts denied relief to the petitioners.
Whether the holdings in these cases were jurisdictional or based
upon the courts’ ruling that the petitioners were detained lawfully
as prisoners of war is unclear. See Spanish Sailors , supra , at 1324, 96 Eng. Rep., at 776; Schiever , supra , at 766, 97 Eng. Rep., at 552. In Du
Castro ’s Case, the court granted relief, but that
case is not analogous to petitioners’ because the prisoner there
appears to have been detained in England. See Halliday & White
27, n. 72. To the extent these authorities suggest the common-law
courts abstained altogether from matters involving prisoners of
war, there was greater justification for doing so in the context of
declared wars with other nation states. Judicial intervention might
have complicated the military’s ability to negotiate exchange of
prisoners with the enemy, a wartime practice well known to the
Framers. See Resolution of Mar. 30, 1778, 10 Journals of the
Continental Congress 1774–1789, p. 295 (W. Ford ed. 1908)
(directing General Washington not to exchange prisoners with the
British unless the enemy agreed to exempt citizens from
capture).

															   We find the evidence as to the geographic
scope of the writ at common law informative, but, again, not
dispositive. Petitioners argue the site of their detention is
analogous to two territories outside of England to which the writ
did run: the so-called “exempt jurisdictions,” like the Channel
Islands; and (in former times) India. There are critical
differences between these places and Guantanamo, however.

															   As the Court noted in Rasul , 542 U.
S., at 481–482, and nn. 11–12, common-law courts granted
habeas corpus relief to prisoners detained in the exempt
jurisdictions. But these areas, while not in theory part of the
realm of England, were nonetheless under the Crown’s control. See 2
H. Hallam, Constitutional History of England: From the Accession of
Henry VII to the Death of George II, pp. 232–233 (reprint 1989).
And there is some indication that these jurisdictions were
considered sovereign territory. King v. Cowle , 2
Burr. 834, 854, 855, 97 Eng. Rep. 587, 599 (K. B. 1759) (describing
one of the exempt jurisdictions, Berwick-upon-Tweed, as under the
“sovereign jurisdiction” and “subjection of the Crown of England”).
Because the United States does not maintain formal sovereignty over
Guantanamo Bay, see Part IV, infra , the naval station
there and the exempt jurisdictions discussed in the English
authorities are not similarly situated.

															   Petitioners and their amici further
rely on cases in which British courts in India granted writs of
habeas corpus to noncitizens detained in territory over which the
Moghul Emperor retained formal sovereignty and control. See supra, at 12–13; Brief for Legal Historians as Amici
Curiae 12–13. The analogy to the present cases
breaks down, however, because of the geographic location of the
courts in the Indian example. The Supreme Court of Judicature (the
British Court) sat in Calcutta; but no federal court sits at
Guantanamo. The Supreme Court of Judicature was, moreover, a
special court set up by Parliament to monitor certain conduct
during the British Raj. See Regulating Act of 1773, 13 Geo. 3,
§§13–14. That it had the power to issue the writ in nonsovereign
territory does not prove that common-law courts sitting in England
had the same power. If petitioners were to have the better of the
argument on this point, we would need some demonstration of a
consistent practice of common-law courts sitting in England and
entertaining petitions brought by alien prisoners detained abroad.
We find little support for this conclusion. The Government argues, in turn,
that Guantanamo is more closely analogous to Scotland and Hanover,
territories that were not part of England but nonetheless
controlled by the English monarch (in his separate capacities as
King of Scotland and Elector of Hanover). See Cowle, 2
Burr., at 856, 97 Eng. Rep., at 600. Lord Mansfield can be cited
for the proposition that, at the time of the founding, English
courts lacked the “power” to issue the writ to Scotland and
Hanover, territories Lord Mansfield referred to as “foreign.” Ibid . But what matters for our purposes is why common-law
courts lacked this power. Given the English Crown’s delicate and
complicated relationships with Scotland and Hanover in the 1700’s,
we cannot disregard the possibility that the common-law courts’
refusal to issue the writ to these places was motivated not by
formal legal constructs but by what we would think of as prudential
concerns. This appears to have been the case with regard to other
British territories where the writ did not run. See 2 R. Chambers,
A Course of Lectures on English Law 1767–1773, p. 8 (T. Curley ed.
1986) (quoting the view of Lord Mansfield in Cowle that
“[n]otwithstanding the power which the judges have, yet
where they cannot judge of the cause, or give relief upon it, they
would not think proper to interpose; and therefore in the
case of imprisonments in Guernsey , Jersey , Minorca , or the plantations , the most usual way
is to complain to the king in Council ” (internal quotation
marks omitted)). And after the Act of Union in 1707, through which
the kingdoms of England and Scotland were merged politically, Queen
Anne and her successors, in their new capacity as sovereign of
Great Britain, ruled the entire island as one kingdom. Accordingly,
by the time Lord Mansfield penned his opinion in Cowle in
1759, Scotland was no longer a “foreign” country vis-À-vis
England—at least not in the sense in which Cuba is a foreign
country vis-À-vis the United States. Scotland remained “foreign” in
Lord Mansfield’s day in at least one important respect, however.
Even after the Act of Union, Scotland (like Hanover) continued to
maintain its own laws and court system. See 1 Blackstone *98, *109.
Under these circumstances prudential considerations would have
weighed heavily when courts sitting in England received habeas
petitions from Scotland or the Electorate. Common-law decisions
withholding the writ from prisoners detained in these places easily
could be explained as efforts to avoid either or both of two
embarrassments: conflict with the judgments of another court of
competent jurisdiction; or the practical inability, by reason of
distance, of the English courts to enforce their judgments outside
their territorial jurisdiction. Cf. Munaf v. Geren , ante , at 15 (opinion of the Court)
(recognizing that “ ‘prudential concerns’ … such as comity and
the orderly administration of criminal justice” affect the
appropriate exercise of habeas jurisdiction). By the mid-19th century, British
courts could issue the writ to Canada, notwithstanding the fact
that Canadian courts also had the power to do so. See 9 Holdsworth
124 (citing Ex parte Anderson , 3 El. and El. 487 (1861)).
This might be seen as evidence that the existence of a separate
court system was no barrier to the running of the common-law writ.
The Canada of the 1800’s, however, was in many respects more
analogous to the exempt jurisdictions or to Ireland, where the writ
ran, than to Scotland or Hanover in the 1700’s, where it did not.
Unlike Scotland and Hanover, Canada followed English law. See B.
Laskin, The British Tradition in Canadian Law 50–51
(1969). In the end a categorical or formal
conception of sovereignty does not provide a comprehensive or
altogether satisfactory explanation for the general understanding
that prevailed when Lord Mansfield considered issuance of the writ
outside England. In 1759 the writ did not run to Scotland but did
run to Ireland, even though, at that point, Scotland and England
had merged under the rule of a single sovereign, whereas the Crowns
of Great Britain and Ireland remained separate (at least in
theory). See Cowle , supra , at 856–857, 97 Eng.
Rep., 600; 1 Blackstone *100–101. But there was at least one major
difference between Scotland’s and Ireland’s relationship with
England during this period that might explain why the writ ran to
Ireland but not to Scotland. English law did not generally apply in
Scotland (even after the Act of Union) but it did apply in Ireland.
Blackstone put it as follows: “[A]s Scotland and England are now
one and the same kingdom, and yet differ in their municipal laws;
so England and Ireland are, on the other hand, distinct kingdoms,
and yet in general agree in their laws.” Id., at *100.
This distinction, and not formal notions of sovereignty, may well
explain why the writ did not run to Scotland (and Hanover) but
would run to Ireland. The prudential barriers that may
have prevented the English courts from issuing the writ to Scotland
and Hanover are not relevant here. We have no reason to believe an
order from a federal court would be disobeyed at Guantanamo. No
Cuban court has jurisdiction to hear these petitioners’ claims, and
no law other than the laws of the United States applies at the
naval station. The modern-day relations between the United States
and Guantanamo thus differ in important respects from the
18th-century relations between England and the kingdoms of Scotland
and Hanover. This is reason enough for us to discount the relevance
of the Government’s analogy. Each side in the present matter
argues that the very lack of a precedent on point supports its
position. The Government points out there is no evidence that a
court sitting in England granted habeas relief to an enemy alien
detained abroad; petitioners respond there is no evidence that a
court refused to do so for lack of jurisdiction. Both arguments are premised,
however, upon the assumption that the historical record is complete
and that the common law, if properly understood, yields a definite
answer to the questions before us. There are reasons to doubt both
assumptions. Recent scholarship points to the inherent shortcomings
in the historical record. See Halliday & White 14–15 (noting
that most reports of 18th-century habeas proceedings were not
printed). And given the unique status of Guantanamo Bay and the
particular dangers of terrorism in the modern age, the common-law
courts simply may not have confronted cases with close parallels to
this one. We decline, therefore, to infer too much, one way or the
other, from the lack of historical evidence on point. Cf. Brown v. Board of Education , 347 U. S. 483 , 489
(1954) (noting evidence concerning the circumstances surrounding
the adoption of the Fourteenth Amendment, discussed in the parties’
briefs and uncovered through the Court’s own investigation,
“convince us that, although these sources cast some light, it is
not enough to resolve the problem with which we are faced. At best,
they are inconclusive”); Reid v. Covert , 354 U. S. 1 , 64 (1957) (Frankfurter, J.,
concurring in result) (arguing constitutional adjudication should
not be based upon evidence that is “too episodic, too meager, to
form a solid basis in history, preceding and contemporaneous with
the framing of the Constitution”). IV Drawing from its
position that at common law the writ ran only to territories over
which the Crown was sovereign, the Government says the Suspension
Clause affords petitioners no rights because the United States does
not claim sovereignty over the place of detention. Guantanamo Bay is not
formally part of the United States. See DTA §1005(g), 119 Stat.
2743. And under the terms of the lease between the United States
and Cuba, Cuba retains “ultimate sovereignty” over the territory
while the United States exercises “complete jurisdiction and
control.” See Lease of Lands for Coaling and Naval Stations, Feb.
23, 1903, U. S.-Cuba, Art. III, T. S. No. 418 (hereinafter
1903 Lease Agreement); Rasul , 542 U. S., at 471. Under the
terms of the 1934 Treaty, however, Cuba effectively has no rights
as a sovereign until the parties agree to modification of the 1903
Lease Agreement or the United States abandons the base. See Treaty
Defining Relations with Cuba, May 29, 1934, U. S.-Cuba,
Art. III, 48 Stat. 1683, T. S. No. 866. The United States contends,
nevertheless, that Guantanamo is not within its sovereign control.
This was the Government’s position well before the events of
September 11, 2001. See, e.g. , Brief for Petitioners in Sale v. Haitian Centers Council, Inc. , O. T.
1992, No. 92–344, p. 31 (arguing that Guantanamo is territory
“ outside the United States”). And in other contexts the
Court has held that questions of sovereignty are for the political
branches to decide. See Vermilya-Brown Co . v. Connell , 335 U. S. 377 , 380
(1948) (“[D]etermination of sovereignty over an area is for the
legislative and executive departments”); see also Jones v. United States , 137 U. S. 202 (1890); Williams v. Suffolk Ins. Co. , 13 Pet. 415, 420
(1839). Even if this were a treaty interpretation case that did not
involve a political question, the President’s construction of the
lease agreement would be entitled to great respect. See Sumitomo Shoji America, Inc. v. Avagliano , 457 U. S. 176 ,
184–185 (1982). We therefore do not question the
Government’s position that Cuba, not the United States, maintains
sovereignty, in the legal and technical sense of the term, over
Guantanamo Bay. But this does not end the analysis. Our cases do
not hold it is improper for us to inquire into the objective degree
of control the Nation asserts over foreign territory. As
commentators have noted, “ ‘[s]overeignty’ is a term used in
many senses and is much abused. ” See 1 Restatement (Third) of
Foreign Relations Law of the United States §206, Comment b, p. 94 (1986). When we have stated that sovereignty
is a political question, we have referred not to sovereignty in the
general, colloquial sense, meaning the exercise of dominion or
power, see Webster’s New International Dictionary 2406 (2d ed.
1934) (“sovereignty,” definition 3), but sovereignty in the narrow,
legal sense of the term, meaning a claim of right, see 1
Restatement (Third) of Foreign Relations, supra, §206,
Comment b, at 94 (noting that sovereignty “implies a
state’s lawful control over its territory generally to the
exclusion of other states, authority to govern in that territory,
and authority to apply law there”). Indeed, it is not altogether
uncommon for a territory to be under the de jure sovereignty of one nation, while under the plenary control, or
practical sovereignty, of another. This condition can occur when
the territory is seized during war, as Guantanamo was during the
Spanish-American War. See, e.g. , Fleming v. Page , 9 How. 603, 614 (1850) (noting that the port of
Tampico, conquered by the United States during the war with Mexico,
was “undoubtedly … subject to the sovereignty and dominion of the
United States,” but that it “does not follow that it was a part of
the United States, or that it ceased to be a foreign country”); King v. Earl of Crewe ex parte Sekgome , [1910] 2
K. B. 576, 603–604 (C. A.) (opinion of Williams, L. J.)
(arguing that the Bechuanaland Protectorate in South Africa was
“under His Majesty’s dominion in the sense of power and
jurisdiction, but is not under his dominion in the sense of
territorial dominion”). Accordingly, for purposes of our analysis,
we accept the Government’s position that Cuba, and not the United
States, retains de jure sovereignty over Guantanamo Bay.
As we did in Rasul , however, we take notice of the obvious
and uncontested fact that the United States, by virtue of its
complete jurisdiction and control over the base, maintains de
facto sovereignty over this territory. See 542 U. S., at 480; id. , at 487 (Kennedy, J., concurring in
judgment). Were we to hold that the present
cases turn on the political question doctrine, we would be required
first to accept the Government’s premise that de jure sovereignty is the touchstone of habeas corpus jurisdiction. This
premise, however, is unfounded. For the reasons indicated above,
the history of common-law habeas corpus provides scant support for
this proposition; and, for the reasons indicated below, that
position would be inconsistent with our precedents and contrary to
fundamental separation-of-powers principles. A The Court has
discussed the issue of the Constitution’s extraterritorial
application on many occasions. These decisions undermine the
Government’s argument that, at least as applied to noncitizens, the
Constitution necessarily stops where de jure sovereignty
ends. The Framers foresaw
that the United States would expand and acquire new territories.
See American Ins. Co. v. 356 Bales of Cotton , 1
Pet. 511, 542 (1828). Article IV, §3, cl. 1, grants Congress
the power to admit new States. Clause 2 of the same section grants
Congress the “Power to dispose of and make all needful Rules and
Regulations respecting the Territory or other Property belonging to
the United States.” Save for a few notable (and notorious)
exceptions, e.g. , Dred Scott v. Sandford , 19 How. 393 (1857), throughout most of our
history there was little need to explore the outer boundaries of
the Constitution’s geographic reach. When Congress exercised its
power to create new territories, it guaranteed constitutional
protections to the inhabitants by statute. See, e.g. , An
Act: to establish a Territorial Government for Utah, 9 Stat. 458
(“[T]he Constitution and laws of the United States are hereby
extended over and declared to be in force in said Territory of
Utah”); Rev. Stat. §1891 (“The Constitution and all laws of the
United States which are not locally inapplicable shall have the
same force and effect within all the organized Territories, and in
every Territory hereafter organized as elsewhere within the United
States”); see generally Burnett, Untied States: American
Expansion and Territorial Deannexation, 72 U. Chi. L. Rev.
797, 825–827 (2005). In particular, there was no need to test the
limits of the Suspension Clause because, as early as 1789, Congress
extended the writ to the Territories. See Act of Aug. 7, 1789, 1
Stat. 52 (reaffirming Art. II of Northwest Ordinance of 1787, which
provided that “[t]he inhabitants of the said territory, shall
always be entitled to the benefits of the writ of habeas
corpus”). Fundamental questions regarding
the Constitution’s geographic scope first arose at the dawn of the
20th century when the Nation acquired noncontiguous Territories:
Puerto Rico, Guam, and the Philippines—ceded to the United States
by Spain at the conclusion of the Spanish-American War—and
Hawaii—annexed by the United States in 1898. At this point Congress
chose to discontinue its previous practice of extending
constitutional rights to the territories by statute. See, e.g. , An Act Temporarily to provide for the administration
of the affairs of civil government in the Philippine Islands, and
for other purposes, 32 Stat. 692 (noting that Rev. Stat. §1891 did
not apply to the Philippines). In a series of opinions later
known as the Insular Cases, the Court addressed whether the
Constitution, by its own force, applies in any territory that is
not a State. See De Lima v. Bidwell , 182 U. S. 1 (1901); Dooley v. United States , 182 U. S. 222 (1901); Armstrong v. United States , 182 U. S. 243 (1901); Downes v. Bidwell , 182 U. S. 244 (1901); Hawaii v. Mankichi , 190 U. S. 197 (1903); Dorr v. United States , 195 U. S. 138 (1904).
The Court held that the Constitution has independent force in these
territories, a force not contingent upon acts of legislative grace.
Yet it took note of the difficulties inherent in that
position. Prior to their cession to the
United States, the former Spanish colonies operated under a
civil-law system, without experience in the various aspects of the
Anglo-American legal tradition, for instance the use of grand and
petit juries. At least with regard to the Philippines, a complete
transformation of the prevailing legal culture would have been not
only disruptive but also unnecessary, as the United States intended
to grant independence to that Territory. See An Act To declare the
purpose of the people of the United States as to the future
political status of the people of the Philippine Islands, and to
provide a more autonomous government for those islands (Jones Act),
39 Stat. 545 (noting that “it was never the intention of the people
of the United States in the incipiency of the War with Spain to
make it a war of conquest or for territorial aggrandizement” and
that “it is, as it has always been, the purpose of the people of
the United States to withdraw their sovereignty over the Philippine
Islands and to recognize their independence as soon as a stable
government can be established therein”). The Court thus was
reluctant to risk the uncertainty and instability that could result
from a rule that displaced altogether the existing legal systems in
these newly acquired Territories. See Downes , supra , at 282 (“It is obvious that in the annexation of
outlying and distant possessions grave questions will arise from
differences of race, habits, laws and customs of the people, and
from differences of soil, climate and production
… ”). These considerations resulted in
the doctrine of territorial incorporation, under which the
Constitution applies in full in incorporated Territories surely
destined for statehood but only in part in unincorporated
Territories. See Dorr , supra , at 143 (“Until
Congress shall see fit to incorporate territory ceded by treaty
into the United States, … the territory is to be governed under the
power existing in Congress to make laws for such territories and
subject to such constitutional restrictions upon the powers of that
body as are applicable to the situation”); Downes , supra , at 293 (White, J., concurring) (“[T]he
determination of what particular provision of the Constitution is
applicable, generally speaking, in all cases, involves an inquiry
into the situation of the territory and its relations to the United
States”). As the Court later made clear, “the real issue in the Insular Cases was not whether the Constitution extended to
the Philippines or Porto Rico when we went there, but which of its
provisions were applicable by way of limitation upon the exercise
of executive and legislative power in dealing with new conditions
and requirements.” Balzac v. Porto Rico , 258 U. S. 298 , 312
(1922). It may well be that over time the ties between the United
States and any of its unincorporated Territories strengthen in ways
that are of constitutional significance. Cf. Torres v. Puerto Rico , 442 U. S. 465 , 475–476
(1979) (Brennan, J., concurring in judgment) (“Whatever the
validity of the [Insular Cases] in the particular historical
context in which they were decided, those cases are clearly not
authority for questioning the application of the Fourth
Amendment—or any other provision of the Bill of Rights—to the
Commonwealth of Puerto Rico in the 1970’s”). But, as early as Balzac in 1922, the Court took for granted that even in
unincorporated Territories the Government of the United States was
bound to provide to noncitizen inhabitants “guaranties of certain
fundamental personal rights declared in the Constitution.” 258 U.
S., at 312; see also Late Corp. of Church of Jesus Christ of
Latter-day Saints v. United States , 136 U. S. 1 , 44 (1890)
(“Doubtless Congress, in legislating for the Territories would be
subject to those fundamental limitations in favor of personal
rights which are formulated in the Constitution and its
amendments”). Yet noting the inherent practical difficulties of
enforcing all constitutional provisions “always and everywhere,” Balzac, supra , at 312, the Court devised in the Insular
Cases a doctrine that allowed it to use its power sparingly and
where it would be most needed. This century-old doctrine informs
our analysis in the present matter. Practical considerations likewise
influenced the Court’s analysis a half-century later in Reid , 354 U. S. 1 . The petitioners there,
spouses of American servicemen, lived on American military bases in
England and Japan. They were charged with crimes committed in those
countries and tried before military courts, consistent with
executive agreements the United States had entered into with the
British and Japanese governments. Id. , at 15–16, and nn.
29–30 (plurality opinion). Because the petitioners were not
themselves military personnel, they argued they were entitled to
trial by jury. Justice Black, writing for the
plurality, contrasted the cases before him with the Insular Cases,
which involved territories “with wholly dissimilar traditions and
institutions” that Congress intended to govern only “temporarily.” Id., at 14. Justice Frankfurter argued that the “specific
circumstances of each particular case” are relevant in determining
the geographic scope of the Constitution. Id. , at 54
(opinion concurring in result). And Justice Harlan, who had joined
an opinion reaching the opposite result in the case in the previous
Term, Reid v. Covert , 351 U. S. 487 (1956),
was most explicit in rejecting a “rigid and abstract rule” for
determining where constitutional guarantees extend. Reid, 354 U. S., at 74 (opinion concurring in result). He read the
Insular Cases to teach that whether a constitutional provision has
extraterritorial effect depends upon the “particular circumstances,
the practical necessities, and the possible alternatives which
Congress had before it” and, in particular, whether judicial
enforcement of the provision would be “impracticable and
anomalous.” Id. , at 74–75; see also United States v. Verdugo-Urquidez , 494 U. S. 259 , 277–278
(1990) (Kennedy, J., concurring) (applying the “impracticable and
anomalous” extraterritoriality test in the Fourth Amendment
context). That the petitioners in Reid were American citizens was a key factor in the case
and was central to the plurality’s conclusion that the Fifth and
Sixth Amendments apply to American civilians tried outside the
United States. But practical considerations, related not to the
petitioners’ citizenship but to the place of their confinement and
trial, were relevant to each Member of the Reid majority.
And to Justices Harlan and Frankfurter (whose votes were necessary
to the Court’s disposition) these considerations were the decisive
factors in the case. Indeed the majority splintered on
this very point. The key disagreement between the plurality and the
concurring Justices in Reid was over the continued
precedential value of the Court’s previous opinion in In re
Ross , 140 U. S. 453 (1891), which the Reid Court understood as holding that under some
circumstances Americans abroad have no right to indictment and
trial by jury. The petitioner in Ross was a sailor serving
on an American merchant vessel in Japanese waters who was tried
before an American consular tribunal for the murder of a fellow
crewman. 140 U. S., at 459, 479. The Ross Court held that
the petitioner, who was a British subject, had no rights under the
Fifth and Sixth Amendments. Id. , at 464. The petitioner’s
citizenship played no role in the disposition of the case, however.
The Court assumed (consistent with the maritime custom of the time)
that Ross had all the rights of a similarly situated American
citizen. Id. , at 479 (noting that Ross was “under the
protection and subject to the laws of the United States equally
with the seaman who was native born”). The Justices in Reid therefore properly understood Ross as
standing for the proposition that, at least in some circumstances,
the jury provisions of the Fifth and Sixth Amendments have no
application to American citizens tried by American authorities
abroad. See 354 U. S., at 11–12 (plurality opinion) (describing Ross as holding that “constitutional protections applied
‘only to citizens and others within the United States … and not to
residents or temporary sojourners abroad’ ” (quoting Ross , supra , at 464)); 354 U. S., at 64
(Frankfurter, J., concurring in result) (noting that the consular
tribunals upheld in Ross “w[ere] based on long-established
custom and they were justified as the best possible means for
securing justice for the few Americans present in [foreign]
countries”); 354 U. S., at 75 (Harlan, J., concurring in result)
(“what Ross and the Insular Cases hold is that
the particular local setting, the practical necessities, and the
possible alternatives are relevant to a question of judgment,
namely, whether jury trial should be deemed a necessary
condition of the exercise of Congress’ power to provide for the
trial of Americans overseas”). The Reid plurality
doubted that Ross was rightly decided, precisely because
it believed the opinion was insufficiently protective of the rights
of American citizens. See 354 U. S., at 10–12; see also id. , at 78 (Clark, J., dissenting) (noting that “four of
my brothers would specifically overrule and two would impair the
long-recognized vitality of an old and respected precedent in our
law, the case of In re Ross , 140 U. S. 453 (1891)”). But Justices
Harlan and Frankfurter, while willing to hold that the American
citizen petitioners in the cases before them were entitled to the
protections of Fifth and Sixth Amendments, were unwilling to
overturn Ross . 354 U. S., at 64 (Frankfurter, J.,
concurring in result); id. , at 75 (Harlan, J., concurring
in result). Instead, the two concurring Justices distinguished Ross from the cases before them, not on the basis of the
citizenship of the petitioners, but on practical considerations
that made jury trial a more feasible option for them than it was
for the petitioner in Ross . If citizenship had been the
only relevant factor in the case, it would have been necessary for
the Court to overturn Ross , something Justices Harlan and
Frankfurter were unwilling to do. See Verdugo-Urquidez , supra , at 277 (Kennedy, J., concurring) (noting that Ross had not been overruled). Practical considerations weighed
heavily as well in Johnson v. Eisentrager , 339 U. S. 763 (1950), where the Court addressed whether habeas corpus
jurisdiction extended to enemy aliens who had been convicted of
violating the laws of war. The prisoners were detained at Landsberg
Prison in Germany during the Allied Powers’ postwar occupation. The
Court stressed the difficulties of ordering the Government to
produce the prisoners in a habeas corpus proceeding. It “would
require allocation of shipping space, guarding personnel, billeting
and rations” and would damage the prestige of military commanders
at a sensitive time. Id. , at 779. In considering these
factors the Court sought to balance the constraints of military
occupation with constitutional necessities. Id. , at
769–779; see Rasul , 542 U. S., at 475–476 (discussing the
factors relevant to Eisentrager ’s constitutional holding);
542 U. S., at 486 (Kennedy, J., concurring in judgment)
(same). True, the Court in Eisentrager denied access to the writ, and it noted the
prisoners “at no relevant time were within any territory over which
the United States is sovereign, and [that] the scenes of their
offense, their capture, their trial and their punishment were all
beyond the territorial jurisdiction of any court of the United
States.” 339 U. S., at 778. The Government seizes upon this
language as proof positive that the Eisentrager Court
adopted a formalistic, sovereignty-based test for determining the
reach of the Suspension Clause. See Brief for Respondents 18–20. We
reject this reading for three reasons. First, we do not
accept the idea that the above-quoted passage from Eisentrager is the only authoritative language in the
opinion and that all the rest is dicta. The Court’s further
determinations, based on practical considerations, were integral to
Part II of its opinion and came before the decision announced its
holding. See 339 U. S., at 781. Second, because the
United States lacked both de jure sovereignty and plenary
control over Landsberg Prison, see infra , at 34–35, it is
far from clear that the Eisentrager Court used the term
sovereignty only in the narrow technical sense and not to connote
the degree of control the military asserted over the facility. See supra , at 21. The Justices who decided Eisentrager would have understood sovereignty as a
multifaceted concept. See Black’s Law Dictionary 1568 (4th ed.
1951) (defining “sovereignty” as “[t]he supreme, absolute, and
uncontrollable power by which any independent state is governed”;
“the international independence of a state, combined with the right
and power of regulating its internal affairs without foreign
dictation”; and “[t]he power to do everything in a state without
accountability”); Ballentine’s Law Dictionary with Pronunciations
1216 (2d ed. 1948) (defining “sovereignty” as “[t]hat public
authority which commands in civil society, and orders and directs
what each citizen is to perform to obtain the end of its
institution”). In its principal brief in Eisentrager , the
Government advocated a bright-line test for determining the scope
of the writ, similar to the one it advocates in these cases. See
Brief for Petitioners in Johnson v. Eisentrager, O. T. 1949, No. 306, pp. 74–75. Yet the Court mentioned the concept
of territorial sovereignty only twice in its opinion. See Eisentrager , supra , at 778, 780. That the Court
devoted a significant portion of Part II to a discussion of
practical barriers to the running of the writ suggests that the
Court was not concerned exclusively with the formal legal status of
Landsberg Prison but also with the objective degree of control the
United States asserted over it. Even if we assume the Eisentrager Court considered the United States’ lack of
formal legal sovereignty over Landsberg Prison as the decisive
factor in that case, its holding is not inconsistent with a
functional approach to questions of extraterritoriality. The formal
legal status of a given territory affects, at least to some extent,
the political branches’ control over that territory. De
jure sovereignty is a factor that bears upon which
constitutional guarantees apply there. Third, if the
Government’s reading of Eisentrager were correct, the
opinion would have marked not only a change in, but a complete
repudiation of, the Insular Cases’ (and later Reid ’s)
functional approach to questions of extraterritoriality. We cannot
accept the Government’s view. Nothing in Eisentrager says
that de jure sovereignty is or has ever been the only
relevant consideration in determining the geographic reach of the
Constitution or of habeas corpus. Were that the case, there would
be considerable tension between Eisentrager , on the one
hand, and the Insular Cases and Reid , on the other. Our
cases need not be read to conflict in this manner. A constricted
reading of Eisentrager overlooks what we see as a common
thread uniting the Insular Cases, Eisentrager , and Reid: the idea that questions of extraterritoriality turn
on objective factors and practical concerns, not
formalism. B The
Government’s formal sovereignty-based test raises troubling
separation-of-powers concerns as well. The political history of
Guantanamo illustrates the deficiencies of this approach. The
United States has maintained complete and uninterrupted control of
the bay for over 100 years. At the close of the Spanish-American
War, Spain ceded control over the entire island of Cuba to the
United States and specifically “relinquishe[d] all claim[s] of
sovereignty … and title.” See Treaty of Paris, Dec. 10, 1898, U.
S.-Spain, Art. I, 30 Stat. 1755, T. S. No. 343. From the date
the treaty with Spain was signed until the Cuban Republic was
established on May 20, 1902, the United States governed the
territory “in trust” for the benefit of the Cuban people. Neely v. Henkel , 180 U. S. 109 , 120
(1901); H. Thomas, Cuba or The Pursuit of Freedom 436, 460 (1998).
And although it recognized, by entering into the 1903 Lease
Agreement, that Cuba retained “ultimate sovereignty” over
Guantanamo, the United States continued to maintain the same
plenary control it had enjoyed since 1898. Yet the Government’s
view is that the Constitution had no effect there, at least as to
noncitizens, because the United States disclaimed sovereignty in
the formal sense of the term. The necessary implication of the
argument is that by surrendering formal sovereignty over any
unincorporated territory to a third party, while at the same time
entering into a lease that grants total control over the territory
back to the United States, it would be possible for the political
branches to govern without legal constraint. Our basic
charter cannot be contracted away like this. The Constitution
grants Congress and the President the power to acquire, dispose of,
and govern territory, not the power to decide when and where its
terms apply. Even when the United States acts outside its borders,
its powers are not “absolute and unlimited” but are subject “to
such restrictions as are expressed in the Constitution.” Murphy v. Ramsey , 114 U. S. 15 , 44 (1885).
Abstaining from questions involving formal sovereignty and
territorial governance is one thing. To hold the political branches
have the power to switch the Constitution on or off at will is
quite another. The former position reflects this Court’s
recognition that certain matters requiring political judgments are
best left to the political branches. The latter would permit a
striking anomaly in our tripartite system of government, leading to
a regime in which Congress and the President, not this Court, say
“what the law is.” Marbury v. Madison , 1 Cranch
137, 177 (1803). These concerns have
particular bearing upon the Suspension Clause question in the cases
now before us, for the writ of habeas corpus is itself an
indispensable mechanism for monitoring the separation of powers.
The test for determining the scope of this provision must not be
subject to manipulation by those whose power it is designed to
restrain. C As we
recognized in Rasul , 542 U. S., at 476; id. , at
487 (Kennedy, J., concurring in judgment), the outlines of a
framework for determining the reach of the Suspension Clause are
suggested by the factors the Court relied upon in Eisentrager . In addition to the practical concerns
discussed above, the Eisentrager Court found relevant that
each petitioner: “(a) is an enemy alien; (b)
has never been or resided in the United States; (c) was captured
outside of our territory and there held in military custody as a
prisoner of war; (d) was tried and convicted by a Military
Commission sitting outside the United States; (e) for offenses
against laws of war committed outside the United States; (f) and is
at all times imprisoned outside the United States.” 339 U. S., at
777. Based on this language from Eisentrager , and the reasoning in our other
extraterritoriality opinions, we conclude that at least three
factors are relevant in determining the reach of the Suspension
Clause: (1) the citizenship and status of the detainee and the
adequacy of the process through which that status determination was
made; (2) the nature of the sites where apprehension and then
detention took place; and (3) the practical obstacles inherent in
resolving the prisoner’s entitlement to the writ. Applying this
framework, we note at the onset that the status of these detainees
is a matter of dispute. The petitioners, like those in Eisentrager , are not American citizens. But the
petitioners in Eisentrager did not contest, it seems, the
Court’s assertion that they were “enemy alien[s].” Ibid. In the instant cases, by contrast, the detainees deny they are
enemy combatants. They have been afforded some process in CSRT
proceedings to determine their status; but, unlike in Eisentrager, supra , at 766, there has been no trial by
military commission for violations of the laws of war. The
difference is not trivial. The records from the Eisentrager trials suggest that, well before the
petitioners brought their case to this Court, there had been a
rigorous adversarial process to test the legality of their
detention. The Eisentrager petitioners were charged by a
bill of particulars that made detailed factual allegations against
them. See 14 United Nations War Crimes Commission, Law Reports of
Trials of War Criminals 8–10 (1949) (reprint 1997). To rebut the
accusations, they were entitled to representation by counsel,
allowed to introduce evidence on their own behalf, and permitted to
cross-examine the prosecution’s witnesses. See Memorandum by
Command of Lt. Gen. Wedemeyer, Jan. 21, 1946 (establishing
“Regulations Governing the Trial of War Criminals” in the China
Theater), in Tr. of Record in Johnson v. Eisentrager, O. T. 1949, No. 306, pp.
34–40. In comparison the
procedural protections afforded to the detainees in the CSRT
hearings are far more limited, and, we conclude, fall well short of
the procedures and adversarial mechanisms that would eliminate the
need for habeas corpus review. Although the detainee is assigned a
“Personal Representative” to assist him during CSRT proceedings,
the Secretary of the Navy’s memorandum makes clear that person is
not the detainee’s lawyer or even his “advocate.” See App. to Pet.
for Cert. in No. 06–1196, at 155, 172. The Government’s evidence is
accorded a presumption of validity. Id. , at 159. The
detainee is allowed to present “reasonably available” evidence, id. , at 155, but his ability to rebut the Government’s
evidence against him is limited by the circumstances of his
confinement and his lack of counsel at this stage. And although the
detainee can seek review of his status determination in the Court
of Appeals, that review process cannot cure all defects in the
earlier proceedings. See Part V, infra . As to the second
factor relevant to this analysis, the detainees here are similarly
situated to the Eisentrager petitioners in that the sites
of their apprehension and detention are technically outside the
sovereign territory of the United States. As noted earlier, this is
a factor that weighs against finding they have rights under the
Suspension Clause. But there are critical differences between
Landsberg Prison, circa 1950, and the United States Naval Station
at Guantanamo Bay in 2008. Unlike its present control over the
naval station, the United States’ control over the prison in
Germany was neither absolute nor indefinite. Like all parts of
occupied Germany, the prison was under the jurisdiction of the
combined Allied Forces. See Declaration Regarding the Defeat of
Germany and the Assumption of Supreme Authority with Respect to
Germany, June 5, 1945, U. S.-U. S. S. R.-U. K.-Fr.,
60 Stat. 1649, T. I. A. S. No. 1520. The United States was
therefore answerable to its Allies for all activities occurring
there. Cf. Hirota v. MacArthur , 338 U. S. 197 , 198
(1948) (per curiam) (military tribunal set up by Gen.
Douglas MacArthur, acting as “the agent of the Allied Powers,” was
not a “tribunal of the United States”). The Allies had not planned
a long-term occupation of Germany, nor did they intend to displace
all German institutions even during the period of occupation. See
Agreements Respecting Basic Principles for Merger of the Three
Western German Zones of Occupation, and Other Matters, Apr. 8,
1949, U. S.-U. K.-Fr., Art. 1, 63 Stat. 2819,
T. I. A. S. No. 2066 (establishing a governing
framework “[d]uring the period in which it is necessary that the
occupation continue” and expressing the desire “that the German
people shall enjoy self-government to the maximum possible degree
consistent with such occupation”). The Court’s holding in Eisentrager was thus consistent with the Insular Cases,
where it had held there was no need to extend full constitutional
protections to territories the United States did not intend to
govern indefinitely. Guantanamo Bay, on the other hand, is no
transient possession. In every practical sense Guantanamo is not
abroad; it is within the constant jurisdiction of the United
States. See Rasul , 542 U. S., at 480; id. , at 487
(Kennedy, J., concurring in judgment). As to the third
factor, we recognize, as the Court did in Eisentrager ,
that there are costs to holding the Suspension Clause applicable in
a case of military detention abroad. Habeas corpus proceedings may
require expenditure of funds by the Government and may divert the
attention of military personnel from other pressing tasks. While we
are sensitive to these concerns, we do not find them dispositive.
Compliance with any judicial process requires some incremental
expenditure of resources. Yet civilian courts and the Armed Forces
have functioned along side each other at various points in our
history. See, e.g., Duncan v. Kahanamoku , 327 U. S. 304 (1946); Ex parte Milligan , 4 Wall. 2 (1866). The Government
presents no credible arguments that the military mission at
Guantanamo would be compromised if habeas corpus courts had
jurisdiction to hear the detainees’ claims. And in light of the
plenary control the United States asserts over the base, none are
apparent to us. The situation in Eisentrager was far different, given the historical
context and nature of the military’s mission in post-War Germany.
When hostilities in the European Theater came to an end, the United
States became responsible for an occupation zone encompassing over
57,000 square miles with a population of 18 million. See Letter
from President Truman to Secretary of State Byrnes, (Nov. 28,
1945), in 8 Documents on American Foreign Relations 257 (R. Dennett
& R. Turner eds. 1948); Pollock, A Territorial Pattern for the
Military Occupation of Germany, 38 Am. Pol. Sci. Rev. 970, 975
(1944). In addition to supervising massive reconstruction and aid
efforts the American forces stationed in Germany faced potential
security threats from a defeated enemy. In retrospect the post-War
occupation may seem uneventful. But at the time Eisentrager was decided, the Court was right to be
concerned about judicial interference with the military’s efforts
to contain “enemy elements, guerilla fighters, and
‘were-wolves.’ ” 339 U. S., at 784. Similar threats are
not apparent here; nor does the Government argue that they are. The
United States Naval Station at Guantanamo Bay consists of 45 square
miles of land and water. The base has been used, at various points,
to house migrants and refugees temporarily. At present, however,
other than the detainees themselves, the only long-term residents
are American military personnel, their families, and a small number
of workers. See History of Guantanamo Bay online at
https://www.cnic. navy.mil/Guantanamo/AboutGTMO/gtmohistorygeneral/
gtmohistgeneral. The detainees have been deemed enemies of the
United States. At present, dangerous as they may be if released,
they are contained in a secure prison facility located on an
isolated and heavily fortified military base. There is no
indication, furthermore, that adjudicating a habeas corpus petition
would cause friction with the host government. No Cuban court has
jurisdiction over American military personnel at Guantanamo or the
enemy combatants detained there. While obligated to abide by the
terms of the lease, the United States is, for all practical
purposes, answerable to no other sovereign for its acts on the
base. Were that not the case, or if the detention facility were
located in an active theater of war, arguments that issuing the
writ would be “impracticable or anomalous” would have more weight.
See Reid , 354 U. S., at 74 (Harlan, J., concurring in
result). Under the facts presented here, however, there are few
practical barriers to the running of the writ. To the extent
barriers arise, habeas corpus procedures likely can be modified to
address them. See Part VI–B, infra . It is true that before
today the Court has never held that noncitizens detained by our
Government in territory over which another country maintains de
jure sovereignty have any rights under our Constitution. But
the cases before us lack any precise historical parallel. They
involve individuals detained by executive order for the duration of
a conflict that, if measured from September 11, 2001, to the
present, is already among the longest wars in American history. See
Oxford Companion to American Military History 849 (1999). The
detainees, moreover, are held in a territory that, while
technically not part of the United States, is under the complete
and total control of our Government. Under these circumstances the
lack of a precedent on point is no barrier to our
holding. We hold that Art. I,
§9, cl. 2, of the Constitution has full effect at Guantanamo
Bay. If the privilege of habeas corpus is to be denied to the
detainees now before us, Congress must act in accordance with the
requirements of the Suspension Clause. Cf. Hamdi, 542 U.
S., at 564 (Scalia, J., dissenting) (“[I]ndefinite imprisonment on
reasonable suspicion is not an available option of treatment for
those accused of aiding the enemy, absent a suspension of the
writ”). This Court may not impose a de facto suspension by
abstaining from these controversies. See Hamdan , 548 U.
S., at 585, n. 16 (“[A]bstention is not appropriate in cases …
in which the legal challenge ‘turn[s] on the status of the persons
as to whom the military asserted its power’ ” (quoting Schlesinger v. Councilman , 420 U. S. 738 , 759
(1975))). The MCA does not purport to be a formal suspension of the
writ; and the Government, in its submissions to us, has not argued
that it is. Petitioners, therefore, are entitled to the privilege
of habeas corpus to challenge the legality of their
detention. V In light
of this holding the question becomes whether the statute stripping
jurisdiction to issue the writ avoids the Suspension Clause mandate
because Congress has provided adequate substitute procedures for
habeas corpus. The Government submits there has been compliance
with the Suspension Clause because the DTA review process in the
Court of Appeals, see DTA §1005(e), provides an adequate
substitute. Congress has granted that court jurisdiction to
consider “(i) whether the status
determination of the [CSRT] … was consistent with the standards and
procedures specified by the Secretary of Defense … and (ii) to the
extent the Constitution and laws of the United States are
applicable, whether the use of such standards and procedures to
make the determination is consistent with the Constitution and laws
of the United States.” §1005(e)(2)(C), 119 Stat.
2742. The Court
of Appeals, having decided that the writ does not run to the
detainees in any event, found it unnecessary to consider whether an
adequate substitute has been provided. In the ordinary course we
would remand to the Court of Appeals to consider this question in
the first instance. See Youakim v. Miller , 425 U. S. 231 ,
234 (1976) (per curiam) . It is well settled, however, that
the Court’s practice of declining to address issues left unresolved
in earlier proceedings is not an inflexible rule. Ibid. Departure from the rule is appropriate in “exceptional”
circumstances. See Cooper Industries, Inc. v. Aviall
Services, Inc. , 543 U. S. 157 , 169
(2004); Duignan v. United States , 274 U. S. 195 , 200
(1927). The gravity of the
separation-of-powers issues raised by these cases and the fact that
these detainees have been denied meaningful access to a judicial
forum for a period of years render these cases exceptional. The
parties before us have addressed the adequacy issue. While we would
have found it informative to consider the reasoning of the Court of
Appeals on this point, we must weigh that against the harms
petitioners may endure from additional delay. And, given there are
few precedents addressing what features an adequate substitute for
habeas corpus must contain, in all likelihood a remand simply would
delay ultimate resolution of the issue by this
Court. We do have the benefit
of the Court of Appeals’ construction of key provisions of the DTA.
When we granted certiorari in these cases, we noted “it would be of
material assistance to consult any decision” in the parallel DTA
review proceedings pending in the Court of Appeals, specifically
any rulings in the matter of Bismullah v. Gates .
551 U. S. ___ (2007). Although the Court of Appeals has yet to
complete a DTA review proceeding, the three-judge panel in Bismullah has issued an interim order giving guidance as
to what evidence can be made part of the record on review and what
access the detainees can have to counsel and to classified
information. See 501 F. 3d 178 (CADC) (Bismullah I) ,
reh’g denied, 503 F. 3d 137 (CADC 2007) (Bismullah
II) . In that matter the full court denied the Government’s
motion for rehearing en banc, see Bismullah v. Gates , 514 F. 3d 1291 (CADC 2008) (Bismullah
III) . The order denying rehearing was accompanied by five
separate statements from members of the court, which offer
differing views as to scope of the judicial review Congress
intended these detainees to have. Ibid . Under the
circumstances we believe the costs of further delay substantially
outweigh any benefits of remanding to the Court of Appeals to
consider the issue it did not address in these
cases. A Our case
law does not contain extensive discussion of standards defining
suspension of the writ or of circumstances under which suspension
has occurred. This simply confirms the care Congress has taken
throughout our Nation’s history to preserve the writ and its
function. Indeed, most of the major legislative enactments
pertaining to habeas corpus have acted not to contract the writ’s
protection but to expand it or to hasten resolution of prisoners’
claims. See, e.g. , Habeas Corpus Act of 1867, ch. 28, §1,
14 Stat. 385 (current version codified at 28 U. S. C. §2241
(2000 ed. and Supp. V) (extending the federal writ to state
prisoners)); Cf. Harris v. Nelson , 394 U. S. 286 , 299–300
(1969) (interpreting the All Writs Act, 28 U. S. C. §1651, to
allow discovery in habeas corpus proceedings); Peyton v. Rowe , 391 U.
S. 54 , 64–65 (1968) (interpreting the then-existing version of
§2241 to allow petitioner to proceed with his habeas corpus action,
even though he had not yet begun to serve his
sentence). There are
exceptions, of course. Title I of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), §106, 110 Stat. 1220, contains
certain gatekeeping provisions that restrict a prisoner’s ability
to bring new and repetitive claims in “second or successive” habeas
corpus actions. We upheld these provisions against a Suspension
Clause challenge in Felker v. Turpin , 518 U. S. 651 , 662–664
(1996). The provisions at issue in Felker , however, did
not constitute a substantial departure from common-law habeas
procedures. The provisions, for the most part, codified the
longstanding abuse-of-the-writ doctrine. Id. , at 664; see
also McCleskey v. Zant , 499 U. S. 467 , 489
(1991). AEDPA applies, moreover, to federal, postconviction review
after criminal proceedings in state court have taken place. As of
this point, cases discussing the implementation of that statute
give little helpful instruction (save perhaps by contrast) for the
instant cases, where no trial has been held. The two leading cases
addressing habeas substitutes, Swain v. Pressley , 430 U. S. 372 (1977), and United States v. Hayman , 342 U. S. 205 (1952),
likewise provide little guidance here. The statutes at issue were
attempts to streamline habeas corpus relief, not to cut it
back. The statute discussed
in Hayman was 28 U. S. C. §2255. It replaced
traditional habeas corpus for federal prisoners (at least in the
first instance) with a process that allowed the prisoner to file a
motion with the sentencing court on the ground that his sentence
was, inter alia , “ ‘imposed in violation of the
Constitution or laws of the United States.’ ” 342 U. S., at
207, n. 1. The purpose and effect of the statute was not to
restrict access to the writ but to make postconviction proceedings
more efficient. It directed claims not to the court that had
territorial jurisdiction over the place of the petitioner’s
confinement but to the sentencing court, a court already familiar
with the facts of the case. As the Hayman Court
explained “Section 2255 … was passed
at the instance of the Judicial Conference to meet practical
difficulties that had arisen in administering the habeas corpus
jurisdiction of the federal courts. Nowhere in the history of
Section 2255 do we find any purpose to impinge upon prisoners’
rights of collateral attack upon their convictions. On the
contrary, the sole purpose was to minimize the difficulties
encountered in habeas corpus hearings by affording the same rights
in another and more convenient forum.” Id. , at
219. See also Hill v. United States , 368 U. S. 424 , 427, 428,
and n. 5 (1962) (noting that §2255 provides a remedy in the
sentencing court that is “exactly commensurate” with the
pre-existing federal habeas corpus remedy). The statute in Swain , D. C. Code Ann. §23–110(g) (1973), applied to
prisoners in custody under sentence of the Superior Court of the
District of Columbia. Before enactment of the District of Columbia
Court Reform and Criminal Procedure Act of 1970 (D. C. Court
Reform Act), 84 Stat. 473, those prisoners could file habeas
petitions in the United States District Court for the District of
Columbia. The Act, which was patterned on §2255, substituted a new
collateral process in the Superior Court for the pre-existing
habeas corpus procedure in the District Court. See Swain ,
430 U. S., at 374–378. But, again, the purpose and effect of the
statute was to expedite consideration of the prisoner’s claims, not
to delay or frustrate it. See id ., at 375, n. 4
(noting that the purpose of the D. C. Court Reform Act was to
“alleviate” administrative burdens on the District
Court). That the statutes in Hayman and Swain were designed to strengthen,
rather than dilute, the writ’s protections was evident,
furthermore, from this significant fact: Neither statute eliminated
traditional habeas corpus relief. In both cases the statute at
issue had a saving clause, providing that a writ of habeas corpus
would be available if the alternative process proved inadequate or
ineffective. Swain , supra , at 381; Hayman , supra , at 223. The Court placed explicit
reliance upon these provisions in upholding the statutes against
constitutional challenges. See Swain , supra , at
381 (noting that the provision “avoid[ed] any serious question
about the constitutionality of the statute”); Hayman , supra , at 223 (noting that, because habeas remained
available as a last resort, it was unnecessary to “reach
constitutional questions”). Unlike in Hayman and Swain , here we confront statutes, the
DTA and the MCA, that were intended to circumscribe habeas review.
Congress’ purpose is evident not only from the unequivocal nature
of MCA §7’s jurisdiction-stripping language, 28 U.
S. C. A. §2241(e)(1) (Supp. 2007) (“No court, justice, or
judge shall have jurisdiction to hear or consider an application
for a writ of habeas corpus . . .”), but also from a comparison of
the DTA to the statutes at issue in Hayman and Swain. When interpreting a statute, we examine related
provisions in other parts of the U. S. Code. See, e.g., West
Virginia Univ. Hospitals, Inc. v. Casey , 499 U. S. 83 , 88–97
(1991); Babbitt v. Sweet Home Chapter, Communities for
Great Ore. , 515
U. S. 687 , 717–718 (1995) (Scalia, J., dissenting); see
generally W. Eskridge, P. Frickey, & E. Garrett, Cases and
Materials on Legislation: Statutes and the Creation of Public
Policy 1039 (3d ed. 2001). When Congress has intended to replace
traditional habeas corpus with habeas-like substitutes, as was the
case in Hayman and Swain , it has granted to the
courts broad remedial powers to secure the historic office of the
writ. In the §2255 context, for example, Congress has granted to
the reviewing court power to “determine the issues and make
findings of fact and conclusions of law” with respect to whether
“the judgment [of conviction] was rendered without jurisdiction, or
… the sentence imposed was not authorized by law or otherwise open
to collateral attack.” 28 U. S. C. A. §2255(b) (Supp.
2008). The D. C. Court Reform Act, the statute upheld in Swain , contained a similar provision. §23–110(g), 84 Stat.
609. In contrast the DTA’s
jurisdictional grant is quite limited. The Court of Appeals has
jurisdiction not to inquire into the legality of the detention
generally but only to assess whether the CSRT complied with the
“standards and procedures specified by the Secretary of Defense”
and whether those standards and procedures are lawful. DTA
§1005(e)(2)(C), 119 Stat. 2742. If Congress had envisioned DTA
review as coextensive with traditional habeas corpus, it would not
have drafted the statute in this manner. Instead, it would have
used language similar to what it used in the statutes at issue in Hayman and Swain . Cf. Russello v. United States , 464 U. S. 16 , 23 (1983)
(“ ‘[W]here Congress includes particular language in one
section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion’ ” (quoting United States v. Wong Kim Bo , 472 F. 2d 720,
722 (CA5 1972))). Unlike in Hayman and Swain ,
moreover, there has been no effort to preserve habeas corpus review
as an avenue of last resort. No saving clause exists in either the
MCA or the DTA. And MCA §7 eliminates habeas review for these
petitioners. The differences
between the DTA and the habeas statute that would govern in MCA
§7’s absence, 28 U. S. C. §2241 (2000 ed. and Supp. V), are
likewise telling. In §2241 (2000 ed.) Congress confirmed the
authority of “any justice” or “circuit judge” to issue the writ.
Cf. Felker , 518 U. S., at 660–661 (interpreting Title I of
AEDPA to not strip from this Court the power to entertain original
habeas corpus petitions). That statute accommodates the necessity
for factfinding that will arise in some cases by allowing the
appellate judge or Justice to transfer the case to a district court
of competent jurisdiction, whose institutional capacity for
factfinding is superior to his or her own. See 28 U. S. C.
§2241(b). By granting the Court of Appeals “exclusive” jurisdiction
over petitioners’ cases, see DTA §1005(e)(2)(A), 119 Stat. 2742,
Congress has foreclosed that option. This choice indicates Congress
intended the Court of Appeals to have a more limited role in enemy
combatant status determinations than a district court has in habeas
corpus proceedings. The DTA should be interpreted to accord some
latitude to the Court of Appeals to fashion procedures necessary to
make its review function a meaningful one, but, if congressional
intent is to be respected, the procedures adopted cannot be as
extensive or as protective of the rights of the detainees as they
would be in a §2241 proceeding. Otherwise there would have been no,
or very little, purpose for enacting the DTA. To the extent any
doubt remains about Congress’ intent, the legislative history
confirms what the plain text strongly suggests: In passing the DTA
Congress did not intend to create a process that differs from
traditional habeas corpus process in name only. It intended to
create a more limited procedure. See, e.g. , 151 Cong. Rec.
S14263 (Dec. 21, 2005) (statement of Sen. Graham) (noting that the
DTA “extinguish[es] these habeas and other actions in order to
effect a transfer of jurisdiction over these cases to the DC
Circuit Court” and agreeing that the bill “create[s] in their place
a very limited judicial review of certain military administrative
decisions”); id. , at S14268 (statement of Sen. Kyl) (“It
is important to note that the limited judicial review authorized by
paragraphs 2 and 3 of subsection (e) [of DTA §1005] are not
habeas-corpus review. It is a limited judicial review of its own
nature”). It is against this
background that we must interpret the DTA and assess its adequacy
as a substitute for habeas corpus. The present cases thus test the
limits of the Suspension Clause in ways that Hayman and Swain did not. B We do not
endeavor to offer a comprehensive summary of the requisites for an
adequate substitute for habeas corpus. We do consider it
uncontroversial, however, that the privilege of habeas corpus
entitles the prisoner to a meaningful opportunity to demonstrate
that he is being held pursuant to “the erroneous application or
interpretation” of relevant law. St. Cyr , 533 U. S., at
302. And the habeas court must have the power to order the
conditional release of an individual unlawfully detained—though
release need not be the exclusive remedy and is not the appropriate
one in every case in which the writ is granted. See Ex parte Bollman , 4 Cranch 75, 136 (1807) (where imprisonment
is unlawful, the court “can only direct [the prisoner] to be
discharged”); R. Hurd, Treatise on the Right of Personal Liberty,
and On the Writ of Habeas Corpus and the Practice Connected with
It: With a View of the Law of Extradition of Fugitives 222 (2d ed.
1876) (“It cannot be denied where ‘a probable ground is shown that
the party is imprisoned without just cause, and therefore, hath a
right to be delivered,’ for the writ then becomes a ‘writ of right,
which may not be denied but ought to be granted to every man that
is committed or detained in prison or otherwise restrained of his
liberty’ ”). But see Chessman v. Teets , 354 U. S. 1 56, 165–166 (1957) (remanding
in a habeas case for retrial within a “reasonable time”). These are
the easily identified attributes of any constitutionally adequate
habeas corpus proceeding. But, depending on the circumstances, more
may be required. Indeed,
common-law habeas corpus was, above all, an adaptable remedy. Its
precise application and scope changed depending upon the
circumstances. See 3 Blackstone *131 (describing habeas as “the
great and efficacious writ, in all manner of illegal confinement”);
see also Schlup v. Delo , 513 U. S. 298 , 319
(1995) (Habeas “is, at its core, an equitable remedy”); Jones v. Cunningham , 371 U. S. 236 , 243
(1963) (Habeas is not “a static, narrow, formalistic remedy; its
scope has grown to achieve its grand purpose”). It appears the
common-law habeas court’s role was most extensive in cases of
pretrial and noncriminal detention, where there had been little or
no previous judicial review of the cause for detention. Notably,
the black-letter rule that prisoners could not controvert facts in
the jailer’s return was not followed (or at least not with
consistency) in such cases. Hurd, supra , at 271 (noting
that the general rule was “subject to exceptions” including cases
of bail and impressment); Oakes, Legal History in the High
Court—Habeas Corpus, 64 Mich. L. Rev. 451, 457 (1966) (“[W]hen a
prisoner applied for habeas corpus before indictment or trial, some
courts examined the written depositions on which he had been
arrested or committed, and others even heard oral testimony to
determine whether the evidence was sufficient to justifying holding
him for trial” (footnotes omitted)); Fallon & Meltzer, Habeas
Corpus Jurisdiction, Substantive Rights, and the War on Terror, 120
Harv. L. Rev. 2029, 2102 (2007) (“[T]he early practice was not
consistent: courts occasionally permitted factual inquiries when no
other opportunity for judicial review existed”). There is evidence from
19th-century American sources indicating that, even in States that
accorded strong res judicata effect to prior adjudications, habeas
courts in this country routinely allowed prisoners to introduce
exculpatory evidence that was either unknown or previously
unavailable to the prisoner. See, e.g. , Ex parte
Pattison , 56 Miss. 161, 164 (1878) (noting that “[w]hile the
former adjudication must be considered as conclusive on the
testimony then adduced” “newly developed exculpatory evidence … may
authorize the admission to bail”); Ex parte Foster , 5 Tex.
Ct. App. 625, 644 (1879) (construing the State’s habeas statute to
allow for the introduction of new evidence “where important
testimony has been obtained, which, though not newly discovered, or
which, though known to [the petitioner], it was not in his power to
produce at the former hearing; [and] where the evidence was newly
discovered”); People v. Martin , 7 N. Y. Leg.
Obs. 49, 56 (1848) (“If in custody on criminal process before
indictment, the prisoner has an absolute right to demand that the
original depositions be looked into to see whether any crime is in
fact imputed to him, and the inquiry will by no means be confined
to the return. Facts out of the return may be gone into to
ascertain whether the committing magistrate may not have arrived at
an illogical conclusion upon the evidence given before him …”); see
generally W. Church, Treatise on the Writ of Habeas Corpus §182, p.
235 1886) (hereinafter Church) (noting that habeas courts would
“hear evidence anew if justice require it”). Justice McLean, on
Circuit in 1855, expressed his view that a habeas court should
consider a prior judgment conclusive “where there was clearly
jurisdiction and a full and fair hearing; but that it might not be
so considered when any of these requisites were wanting.” Ex
parte Robinson , 20 F. Cas. 969, 971, (No. 11,935) (CC
Ohio 1855). To illustrate the circumstances in which the prior
adjudication did not bind the habeas court, he gave the example of
a case in which “[s]everal unimpeached witnesses” provided new
evidence to exculpate the prisoner. Ibid . The idea that the
necessary scope of habeas review in part depends upon the rigor of
any earlier proceedings accords with our test for procedural
adequacy in the due process context. See Mathews v. Eldridge , 424 U. S. 319 , 335
(1976) (noting that the Due Process Clause requires an assessment
of, inter alia , “the risk of an erroneous deprivation of
[a liberty interest;] and the probable value, if any, of additional
or substitute procedural safeguards”). This principle has an
established foundation in habeas corpus jurisprudence as well, as
Chief Justice Marshall’s opinion in Ex parte Watkins , 3
Pet. 193 (1830), demonstrates. Like the petitioner in Swain , Watkins sought a writ of habeas corpus after being
imprisoned pursuant to a judgment of a District of Columbia court.
In holding that the judgment stood on “high ground,” 3 Pet., at
209, the Chief Justice emphasized the character of the court that
rendered the original judgment, noting it was a “court of record,
having general jurisdiction over criminal cases.” Id. , at
203. In contrast to “inferior” tribunals of limited jurisdiction, ibid. , courts of record had broad remedial powers, which
gave the habeas court greater confidence in the judgment’s
validity. See generally Neuman, Habeas Corpus, Executive Detention,
and the Removal of Aliens, 98 Colum. L. Rev. 961, 982–983
(1998). Accordingly, where
relief is sought from a sentence that resulted from the judgment of
a court of record, as was the case in Watkins and indeed
in most federal habeas cases, considerable deference is owed to the
court that ordered confinement. See Brown v. Allen , 344
U. S. 443 , 506 (1953) (opinion of Frankfurter, J.) (noting that
a federal habeas court should accept a state court’s factual
findings unless “a vital flaw be found in the process of
ascertaining such facts in the State court”). Likewise in those
cases the prisoner should exhaust adequate alternative remedies
before filing for the writ in federal court. See Ex parte
Royall , 117 U. S. 241 , 251–252 (1886)
(requiring exhaustion of state collateral processes). Both aspects
of federal habeas corpus review are justified because it can be
assumed that, in the usual course, a court of record provides
defendants with a fair, adversary proceeding. In cases involving
state convictions this framework also respects federalism; and in
federal cases it has added justification because the prisoner
already has had a chance to seek review of his conviction in a
federal forum through a direct appeal. The present cases fall
outside these categories, however; for here the detention is by
executive order. Where a person is
detained by executive order, rather than, say, after being tried
and convicted in a court, the need for collateral review is most
pressing. A criminal conviction in the usual course occurs after a
judicial hearing before a tribunal disinterested in the outcome and
committed to procedures designed to ensure its own independence.
These dynamics are not inherent in executive detention orders or
executive review procedures. In this context the need for habeas
corpus is more urgent. The intended duration of the detention and
the reasons for it bear upon the precise scope of the inquiry.
Habeas corpus proceedings need not resemble a criminal trial, even
when the detention is by executive order. But the writ must be
effective. The habeas court must have sufficient authority to
conduct a meaningful review of both the cause for detention and the
Executive’s power to detain. To determine the
necessary scope of habeas corpus review, therefore, we must assess
the CSRT process, the mechanism through which petitioners’
designation as enemy combatants became final. Whether one
characterizes the CSRT process as direct review of the Executive’s
battlefield determination that the detainee is an enemy
combatant—as the parties have and as we do—or as the first step in
the collateral review of a battlefield determination makes no
difference in a proper analysis of whether the procedures Congress
put in place are an adequate substitute for habeas corpus. What
matters is the sum total of procedural protections afforded to the
detainee at all stages, direct and collateral. Petitioners identify
what they see as myriad deficiencies in the CSRTs. The most
relevant for our purposes are the constraints upon the detainee’s
ability to rebut the factual basis for the Government’s assertion
that he is an enemy combatant. As already noted, see Part IV–C, supra , at the CSRT stage the detainee has limited means to
find or present evidence to challenge the Government’s case against
him. He does not have the assistance of counsel and may not be
aware of the most critical allegations that the Government relied
upon to order his detention. See App. to Pet. for Cert. in No.
06–1196, at 156, ¶F(8) (noting that the detainee can access only
the “unclassified portion of the Government Information”). The
detainee can confront witnesses that testify during the CSRT
proceedings. Id. , at 144, ¶ g (8). But given that
there are in effect no limits on the admission of hearsay
evidence—the only requirement is that the tribunal deem the
evidence “relevant and helpful,” ibid., ¶ g (9)—the
detainee’s opportunity to question witnesses is likely to be more
theoretical than real. The Government defends
the CSRT process, arguing that it was designed to conform to the
procedures suggested by the plurality in Hamdi . See 542 U.
S., at 538. Setting aside the fact that the relevant language in Hamdi did not garner a majority of the Court, it does not
control the matter at hand. None of the parties in Hamdi argued there had been a suspension of the writ. Nor could they. The
§2241 habeas corpus process remained in place, id. , at
525. Accordingly, the plurality concentrated on whether the
Executive had the authority to detain and, if so, what rights the
detainee had under the Due Process Clause. True, there are places
in the Hamdi plurality opinion where it is difficult to
tell where its extrapolation of §2241 ends and its analysis of the
petitioner’s Due Process rights begins. But the Court had no
occasion to define the necessary scope of habeas review, for
Suspension Clause purposes, in the context of enemy combatant
detentions. The closest the plurality came to doing so was in
discussing whether, in light of separation-of-powers concerns,
§2241 should be construed to forbid the District Court from
inquiring beyond the affidavit Hamdi’s custodian provided in answer
to the detainee’s habeas petition. The plurality answered this
question with an emphatic “no.” Id ., at 527 (labeling this
argument as “extreme”); id ., at 535–536. Even if we were to
assume that the CSRTs satisfy due process standards, it would not
end our inquiry. Habeas corpus is a collateral process that exists,
in Justice Holmes’ words, to “cu[t] through all forms and g[o] to
the very tissue of the structure. It comes in from the outside, not
in subordination to the proceedings, and although every form may
have been preserved opens the inquiry whether they have been more
than an empty shell.” Frank v. Mangum , 237 U. S. 309 , 346
(1915) (dissenting opinion). Even when the procedures authorizing
detention are structurally sound, the Suspension Clause remains
applicable and the writ relevant. See 2 Chambers, Course of
Lectures on English Law 1767–1773, at 6 (“Liberty may be violated
either by arbitrary imprisonment without law or the
appearance of law, or by a lawful magistrate for an unlawful
reason”). This is so, as Hayman and Swain make
clear, even where the prisoner is detained after a criminal trial
conducted in full accordance with the protections of the Bill of
Rights. Were this not the case, there would have been no reason for
the Court to inquire into the adequacy of substitute habeas
procedures in Hayman and Swain . That the
prisoners were detained pursuant to the most rigorous proceedings
imaginable, a full criminal trial, would have been enough to render
any habeas substitute acceptable per se . Although we make no
judgment as to whether the CSRTs, as currently constituted, satisfy
due process standards, we agree with petitioners that, even when
all the parties involved in this process act with diligence and in
good faith, there is considerable risk of error in the tribunal’s
findings of fact. This is a risk inherent in any process that, in
the words of the former Chief Judge of the Court of Appeals, is
“closed and accusatorial.” See Bismullah III , 514
F. 3d, at 1296 (Ginsburg, C. J., concurring in denial of
rehearing en banc). And given that the consequence of error may be
detention of persons for the duration of hostilities that may last
a generation or more, this is a risk too significant to
ignore. For the writ of habeas
corpus, or its substitute, to function as an effective and proper
remedy in this context, the court that conducts the habeas
proceeding must have the means to correct errors that occurred
during the CSRT proceedings. This includes some authority to assess
the sufficiency of the Government’s evidence against the detainee.
It also must have the authority to admit and consider relevant
exculpatory evidence that was not introduced during the earlier
proceeding. Federal habeas petitioners long have had the means to
supplement the record on review, even in the postconviction habeas
setting. See Townsend v. Sain , 372 U. S. 293 , 313
(1963), overruled in part by Keeney v. Tamayo-Reyes , 504 U. S. 1 , 5 (1992).
Here that opportunity is constitutionally
required. Consistent with the
historic function and province of the writ, habeas corpus review
may be more circumscribed if the underlying detention proceedings
are more thorough than they were here. In two habeas cases
involving enemy aliens tried for war crimes, In re
Yamashita , 327 U.
S. 1 (1946), and Ex parte Quirin , 317 U. S. 1 (1942), for
example, this Court limited its review to determining whether the
Executive had legal authority to try the petitioners by military
commission. See Yamashita , supra , at 8 (“[O]n
application for habeas corpus we are not concerned with the guilt
or innocence of the petitioners. We consider here only the lawful
power of the commission to try the petitioner for the offense
charged”); Quirin , supra , at 25 (“We are not here
concerned with any question of the guilt or innocence of
petitioners”). Military courts are not courts of record. See Watkins , 3 Pet., at 209; Church 513. And the procedures
used to try General Yamashita have been sharply criticized by
Members of this Court. See Hamdan , 548 U. S., at 617; Yamashita , supra , at 41–81 (Rutledge, J.,
dissenting). We need not revisit these cases, however. For on their
own terms, the proceedings in Yamashita and Quirin , like those in Eisentrager , had an
adversarial structure that is lacking here. See Yamashita , supra , at 5 (noting that General Yamashita was represented
by six military lawyers and that “[t]hroughout the proceedings …
defense counsel … demonstrated their professional skill and
resourcefulness and their proper zeal for the defense with which
they were charged”); Quirin , supra , at 23–24;
Exec. Order No. 9185, 7 Fed. Reg. 5103 (1942) (appointing counsel
to represent the German saboteurs). The extent of the
showing required of the Government in these cases is a matter to be
determined. We need not explore it further at this stage. We do
hold that when the judicial power to issue habeas corpus properly
is invoked the judicial officer must have adequate authority to
make a determination in light of the relevant law and facts and to
formulate and issue appropriate orders for relief, including, if
necessary, an order directing the prisoner’s
release. C We now
consider whether the DTA allows the Court of Appeals to conduct a
proceeding meeting these standards. “[W]e are obligated to construe
the statute to avoid [constitutional] problems” if it is
“ ‘fairly possible’ ” to do so. St. Cyr , 533 U.
S., at 299–300 (quoting Crowell v. Benson , 285 U. S. 22 , 62
(1932)). There are limits to this principle, however. The canon of
constitutional avoidance does not supplant traditional modes of
statutory interpretation. See Clark v. Martinez , 543 U. S. 371 ,
385 (2005) (“The canon of constitutional avoidance comes into play
only when, after the application of ordinary textual analysis, the
statute is found to be susceptible of more than one construction;
and the canon functions as a means of choosing between
them ”). We cannot ignore the text and purpose of a statute in
order to save it. The DTA
does not explicitly empower the Court of Appeals to order the
applicant in a DTA review proceeding released should the court find
that the standards and procedures used at his CSRT hearing were
insufficient to justify detention. This is troubling. Yet, for
present purposes, we can assume congressional silence permits a
constitutionally required remedy. In that case it would be possible
to hold that a remedy of release is impliedly provided for. The DTA
might be read, furthermore, to allow the petitioners to assert
most, if not all, of the legal claims they seek to advance,
including their most basic claim: that the President has no
authority under the AUMF to detain them indefinitely. (Whether the
President has such authority turns on whether the AUMF
authorizes—and the Constitution permits—the indefinite detention of
“enemy combatants” as the Department of Defense defines that term.
Thus a challenge to the President’s authority to detain is, in
essence, a challenge to the Department’s definition of enemy
combatant, a “standard” used by the CSRTs in petitioners’ cases.)
At oral argument, the Solicitor General urged us to adopt both
these constructions, if doing so would allow MCA §7 to remain
intact. See Tr. of Oral Arg. 37, 53. The absence of a
release remedy and specific language allowing AUMF challenges are
not the only constitutional infirmities from which the statute
potentially suffers, however. The more difficult question is
whether the DTA permits the Court of Appeals to make requisite
findings of fact. The DTA enables petitioners to request “review”
of their CSRT determination in the Court of Appeals, DTA
§1005(e)(2)(B)(i), 119 Stat. 2742; but the “Scope of Review”
provision confines the Court of Appeals’ role to reviewing whether
the CSRT followed the “standards and procedures” issued by the
Department of Defense and assessing whether those “standards and
procedures” are lawful. §1005(e)(C), ibid. Among these
standards is “the requirement that the conclusion of the Tribunal
be supported by a preponderance of the evidence … allowing a
rebuttable presumption in favor of the Government’s evidence.”
§1005(e)(C)(i), ibid. Assuming the DTA can
be construed to allow the Court of Appeals to review or correct the
CSRT’s factual determinations, as opposed to merely certifying that
the tribunal applied the correct standard of proof, we see no way
to construe the statute to allow what is also constitutionally
required in this context: an opportunity for the detainee to
present relevant exculpatory evidence that was not made part of the
record in the earlier proceedings. On its face the
statute allows the Court of Appeals to consider no evidence outside
the CSRT record. In the parallel litigation, however, the Court of
Appeals determined that the DTA allows it to order the production
of all “ ‘reasonably available information in the possession
of the U. S. Government bearing on the issue of whether the
detainee meets the criteria to be designated as an enemy
combatant,’ ” regardless of whether this evidence was put
before the CSRT. See Bismullah I , 501 F. 3d, at 180.
The Government, see Pet. for Cert. pending in Gates v. Bismullah , No. 07–1054 (hereinafter Bismullah Pet.), with support from five members of the Court of Appeals, see Bismullah III , 514 F. 3d, at 1299 (Henderson, J.,
dissenting from denial of rehearing en banc); id. , at 1302
(opinion of Randolph, J.) (same); id. , at 1306 (opinion of
Brown, J.) (same), disagrees with this interpretation. For present
purposes, however, we can assume that the Court of Appeals was
correct that the DTA allows introduction and consideration of
relevant exculpatory evidence that was “reasonably available” to
the Government at the time of the CSRT but not made part of the
record. Even so, the DTA review proceeding falls short of being a
constitutionally adequate substitute, for the detainee still would
have no opportunity to present evidence discovered after the CSRT
proceedings concluded. Under the DTA the
Court of Appeals has the power to review CSRT determinations by
assessing the legality of standards and procedures. This implies
the power to inquire into what happened at the CSRT hearing and,
perhaps, to remedy certain deficiencies in that proceeding. But
should the Court of Appeals determine that the CSRT followed
appropriate and lawful standards and procedures, it will have
reached the limits of its jurisdiction. There is no language in the
DTA that can be construed to allow the Court of Appeals to admit
and consider newly discovered evidence that could not have been
made part of the CSRT record because it was unavailable to either
the Government or the detainee when the CSRT made its findings.
This evidence, however, may be critical to the detainee’s argument
that he is not an enemy combatant and there is no cause to detain
him. This is not a remote
hypothetical. One of the petitioners, Mohamed Nechla, requested at
his CSRT hearing that the Government contact his employer. The
petitioner claimed the employer would corroborate Nechla’s
contention he had no affiliation with al Qaeda. Although the CSRT
determined this testimony would be relevant, it also found the
witness was not reasonably available to testify at the time of the
hearing. Petitioner’s counsel, however, now represents the witness
is available to be heard. See Brief for Boumediene Petitioners 5.
If a detainee can present reasonably available evidence
demonstrating there is no basis for his continued detention, he
must have the opportunity to present this evidence to a habeas
corpus court. Even under the Court of Appeals’ generous
construction of the DTA, however, the evidence identified by Nechla
would be inadmissible in a DTA review proceeding. The role of an
Article III court in the exercise of its habeas corpus function
cannot be circumscribed in this manner. By foreclosing
consideration of evidence not presented or reasonably available to
the detainee at the CSRT proceedings, the DTA disadvantages the
detainee by limiting the scope of collateral review to a record
that may not be accurate or complete. In other contexts, e.g. , in post-trial habeas cases where the prisoner
already has had a full and fair opportunity to develop the factual
predicate of his claims, similar limitations on the scope of habeas
review may be appropriate. See Williams v. Taylor , 529
U. S. 420 , 436–437 (2000) (noting that §2254 “does not equate
prisoners who exercise diligence in pursuing their claims with
those who do not”). In this context, however, where the underlying
detention proceedings lack the necessary adversarial character, the
detainee cannot be held responsible for all deficiencies in the
record. The Government does
not make the alternative argument that the DTA allows for the
introduction of previously unavailable exculpatory evidence on
appeal. It does point out, however, that if a detainee obtains such
evidence, he can request that the Deputy Secretary of Defense
convene a new CSRT. See Supp. Brief for Respondents 4. Whatever the
merits of this procedure, it is an insufficient replacement for the
factual review these detainees are entitled to receive through
habeas corpus. The Deputy Secretary’s determination whether to
initiate new proceedings is wholly a discretionary one. See Dept.
of Defense, Office for the Administrative Review of the Detention
of Enemy Combatants, Instruction 5421.1, Procedure for Review of
“New Evidence” Relating to Enemy Combatant (EC) Status ¶5(d) (May
7, 2007) (Instruction 5421.1) (“The decision to convene a CSRT to
reconsider the basis of the detainee’s [enemy combatant] status in
light of ‘new evidence’ is a matter vested in the unreviewable
discretion of the [Deputy Secretary of Defense]”). And we see no
way to construe the DTA to allow a detainee to challenge the Deputy
Secretary’s decision not to open a new CSRT pursuant to Instruction
5421.1. Congress directed the Secretary of Defense to devise
procedures for considering new evidence, see DTA §1005(a)(3), but
the detainee has no mechanism for ensuring that those procedures
are followed. DTA §1005(e)(2)(C), 119 Stat. 2742, makes clear that
the Court of Appeals’ jurisdiction is “limited to consideration of
… whether the status determination of the Combatant Status Review
Tribunal with regard to such alien was consistent with the
standards and procedures specified by the Secretary of Defense …
and … whether the use of such standards and procedures to make the
determination is consistent with the Constitution and laws of the
United States.” DTA §1005(e)(2)(A), ibid., further narrows
the Court of Appeals’ jurisdiction to reviewing “any final decision
of a Combatant Status Review Tribunal that an alien is properly
detained as an enemy combatant.” The Deputy Secretary’s
determination whether to convene a new CSRT is not a “status
determination of the Combatant Status Review Tribunal,” much less a
“final decision” of that body. We do not imply DTA
review would be a constitutionally sufficient replacement for
habeas corpus but for these limitations on the detainee’s ability
to present exculpatory evidence. For even if it were possible, as a
textual matter, to read into the statute each of the necessary
procedures we have identified, we could not overlook the cumulative
effect of our doing so. To hold that the detainees at Guantanamo
may, under the DTA, challenge the President’s legal authority to
detain them, contest the CSRT’s findings of fact, supplement the
record on review with exculpatory evidence, and request an order of
release would come close to reinstating the §2241 habeas corpus
process Congress sought to deny them. The language of the statute,
read in light of Congress’ reasons for enacting it, cannot bear
this interpretation. Petitioners have met their burden of
establishing that the DTA review process is, on its face, an
inadequate substitute for habeas corpus. Although we do not
hold that an adequate substitute must duplicate §2241 in all
respects, it suffices that the Government has not established that
the detainees’ access to the statutory review provisions at issue
is an adequate substitute for the writ of habeas corpus. MCA §7
thus effects an unconstitutional suspension of the writ. In view of
our holding we need not discuss the reach of the writ with respect
to claims of unlawful conditions of treatment or
confinement. VI A In light
of our conclusion that there is no jurisdictional bar to the
District Court’s entertaining petitioners’ claims the question
remains whether there are prudential barriers to habeas corpus
review under these circumstances. The
Government argues petitioners must seek review of their CSRT
determinations in the Court of Appeals before they can proceed with
their habeas corpus actions in the District Court. As noted
earlier, in other contexts and for prudential reasons this Court
has required exhaustion of alternative remedies before a prisoner
can seek federal habeas relief. Most of these cases were brought by
prisoners in state custody, e.g. , Ex parte
Royall , 117 U. S. 241 , and thus involved
federalism concerns that are not relevant here. But we have
extended this rule to require defendants in courts-martial to
exhaust their military appeals before proceeding with a federal
habeas corpus action. See Schlesinger , 420 U. S., at
758. The real risks, the
real threats, of terrorist attacks are constant and not likely soon
to abate. The ways to disrupt our life and laws are so many and
unforeseen that the Court should not attempt even some general
catalogue of crises that might occur. Certain principles are
apparent, however. Practical considerations and exigent
circumstances inform the definition and reach of the law’s writs,
including habeas corpus. The cases and our tradition reflect this
precept. In cases involving
foreign citizens detained abroad by the Executive, it likely would
be both an impractical and unprecedented extension of judicial
power to assume that habeas corpus would be available at the moment
the prisoner is taken into custody. If and when habeas corpus
jurisdiction applies, as it does in these cases, then proper
deference can be accorded to reasonable procedures for screening
and initial detention under lawful and proper conditions of
confinement and treatment for a reasonable period of time. Domestic
exigencies, furthermore, might also impose such onerous burdens on
the Government that here, too, the Judicial Branch would be
required to devise sensible rules for staying habeas corpus
proceedings until the Government can comply with its requirements
in a responsible way. Cf. Ex parte Milligan , 4 Wall., at
127 (“If, in foreign invasion or civil war, the courts are actually
closed, and it is impossible to administer criminal justice
according to law, then , on the theatre of active military
operations, where war really prevails, there is a necessity to
furnish a substitute for the civil authority, thus overthrown, to
preserve the safety of the army and society; and as no power is
left but the military, it is allowed to govern by martial rule
until the laws can have their free course”). Here, as is true with
detainees apprehended abroad, a relevant consideration in
determining the courts’ role is whether there are suitable
alternative processes in place to protect against the arbitrary
exercise of governmental power. The cases before us,
however, do not involve detainees who have been held for a short
period of time while awaiting their CSRT determinations. Were that
the case, or were it probable that the Court of Appeals could
complete a prompt review of their applications, the case for
requiring temporary abstention or exhaustion of alternative
remedies would be much stronger. These qualifications no longer
pertain here. In some of these cases six years have elapsed without
the judicial oversight that habeas corpus or an adequate substitute
demands. And there has been no showing that the Executive faces
such onerous burdens that it cannot respond to habeas corpus
actions. To require these detainees to complete DTA review before
proceeding with their habeas corpus actions would be to require
additional months, if not years, of delay. The first DTA review
applications were filed over a year ago, but no decisions on the
merits have been issued. While some delay in fashioning new
procedures is unavoidable, the costs of delay can no longer be
borne by those who are held in custody. The detainees in these
cases are entitled to a prompt habeas corpus
hearing. Our decision today
holds only that the petitioners before us are entitled to seek the
writ; that the DTA review procedures are an inadequate substitute
for habeas corpus; and that the petitioners in these cases need not
exhaust the review procedures in the Court of Appeals before
proceeding with their habeas actions in the District Court. The
only law we identify as unconstitutional is MCA §7, 28 U.
S. C. A. §2241(e) (Supp. 2007). Accordingly, both the DTA
and the CSRT process remain intact. Our holding with regard to
exhaustion should not be read to imply that a habeas court should
intervene the moment an enemy combatant steps foot in a territory
where the writ runs. The Executive is entitled to a reasonable
period of time to determine a detainee’s status before a court
entertains that detainee’s habeas corpus petition. The CSRT process
is the mechanism Congress and the President set up to deal with
these issues. Except in cases of undue delay, federal courts should
refrain from entertaining an enemy combatant’s habeas corpus
petition at least until after the Department, acting via the CSRT,
has had a chance to review his status. B Although
we hold that the DTA is not an adequate and effective substitute
for habeas corpus, it does not follow that a habeas corpus court
may disregard the dangers the detention in these cases was intended
to prevent. Felker , Swain , and Hayman stand for the proposition that the Suspension Clause does not
resist innovation in the field of habeas corpus. Certain
accommodations can be made to reduce the burden habeas corpus
proceedings will place on the military without impermissibly
diluting the protections of the writ. In the
DTA Congress sought to consolidate review of petitioners’ claims in
the Court of Appeals. Channeling future cases to one district court
would no doubt reduce administrative burdens on the Government.
This is a legitimate objective that might be advanced even without
an amendment to §2241. If, in a future case, a detainee files a
habeas petition in another judicial district in which a proper
respondent can be served, see Rumsfeld v. Padilla , 542 U. S. 426 , 435–436
(2004), the Government can move for change of venue to the court
that will hear these petitioners’ cases, the United States District
Court for the District of Columbia. See 28 U. S. C. §1404(a); Braden v. 30th Judicial Circuit Court of Ky. , 410 U. S. 484 ,
499, n. 15 (1973). Another of Congress’
reasons for vesting exclusive jurisdiction in the Court of Appeals,
perhaps, was to avoid the widespread dissemination of classified
information. The Government has raised similar concerns here and
elsewhere. See Brief for Respondents 55–56; Bismullah Pet.
30. We make no attempt to anticipate all of the evidentiary and
access-to-counsel issues that will arise during the course of the
detainees’ habeas corpus proceedings. We recognize, however, that
the Government has a legitimate interest in protecting sources and
methods of intelligence gathering; and we expect that the District
Court will use its discretion to accommodate this interest to the
greatest extent possible. Cf. United States v. Reynolds , 345
U. S. 1 , 10 (1953) (recognizing an evidentiary privilege in a
civil damages case where “there is a reasonable danger that
compulsion of the evidence will expose military matters which, in
the interest of national security, should not be
divulged”). These and the other
remaining questions are within the expertise and competence of the
District Court to address in the first instance. *  *  * In
considering both the procedural and substantive standards used to
impose detention to prevent acts of terrorism, proper deference
must be accorded to the political branches. See United
States v. Curtiss-Wright Export Corp. , 299 U. S. 304 , 320
(1936). Unlike the President and some designated Members of
Congress, neither the Members of this Court nor most federal judges
begin the day with briefings that may describe new and serious
threats to our Nation and its people. The law must accord the
Executive substantial authority to apprehend and detain those who
pose a real danger to our security. Officials
charged with daily operational responsibility for our security may
consider a judicial discourse on the history of the Habeas Corpus
Act of 1679 and like matters to be far removed from the Nation’s
present, urgent concerns. Established legal doctrine, however, must
be consulted for its teaching. Remote in time it may be; irrelevant
to the present it is not. Security depends upon a sophisticated
intelligence apparatus and the ability of our Armed Forces to act
and to interdict. There are further considerations, however.
Security subsists, too, in fidelity to freedom’s first principles.
Chief among these are freedom from arbitrary and unlawful restraint
and the personal liberty that is secured by adherence to the
separation of powers. It is from these principles that the judicial
authority to consider petitions for habeas corpus relief
derives. Our opinion does not
undermine the Executive’s powers as Commander in Chief. On the
contrary, the exercise of those powers is vindicated, not eroded,
when confirmed by the Judicial Branch. Within the Constitution’s
separation-of-powers structure, few exercises of judicial power are
as legitimate or as necessary as the responsibility to hear
challenges to the authority of the Executive to imprison a person.
Some of these petitioners have been in custody for six years with
no definitive judicial determination as to the legality of their
detention. Their access to the writ is a necessity to determine the
lawfulness of their status, even if, in the end, they do not obtain
the relief they seek. Because our Nation’s
past military conflicts have been of limited duration, it has been
possible to leave the outer boundaries of war powers undefined. If,
as some fear, terrorism continues to pose dangerous threats to us
for years to come, the Court might not have this luxury. This
result is not inevitable, however. The political branches,
consistent with their independent obligations to interpret and
uphold the Constitution, can engage in a genuine debate about how
best to preserve constitutional values while protecting the Nation
from terrorism. Cf. Hamdan , 548 U. S., at 636 (Breyer, J.,
concurring) (“[J]udicial insistence upon that consultation does not
weaken our Nation’s ability to deal with danger. To the contrary,
that insistence strengthens the Nation’s ability to
determine—through democratic means—how best to do
so”). It bears repeating
that our opinion does not address the content of the law that
governs petitioners’ detention. That is a matter yet to be
determined. We hold that petitioners may invoke the fundamental
procedural protections of habeas corpus. The laws and Constitution
are designed to survive, and remain in force, in extraordinary
times. Liberty and security can be reconciled; and in our system
they are reconciled within the framework of the law. The Framers
decided that habeas corpus, a right of first importance, must be a
part of that framework, a part of that law. The determination by
the Court of Appeals that the Suspension Clause and its protections
are inapplicable to petitioners was in error. The judgment of the
Court of Appeals is reversed. The cases are remanded to the Court
of Appeals with instructions that it remand the cases to the
District Court for proceedings consistent with this
opinion. It is so
ordered. SOUTER, J., CONCURRING BOUMEDIENE V. BUSH 553 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NOS. 06-1195 AND 06-1196 LAKHDAR BOUMEDIENE, et al., PETITIONERS

															06–1195 v. GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES,
et al. KHALED A. F. AL ODAH, next friend of FAWZI
KHALID ABDULLAH FAHAD AL ODAH, et al., PETITIONERS

															06–1196 v. UNITED STATES et al. on writs of certiorari to the united states
court of appeals for the district of columbia circuit [June 12, 2008] Justice Souter , with
whom Justice Ginsburg and Justice Breyer join, concurring.

															   I join the Court’s opinion in its
entirety and add this afterword only to emphasize two things one
might overlook after reading the dissents.

															   Four years ago, this Court in Rasul v. Bush , 542 U. S. 466 (2004)
held that statutory habeas jurisdiction extended to claims of
foreign nationals imprisoned by the United States at Guantanamo
Bay, “to determine the legality of the Executive’s potentially
indefinite detention” of them, id., at 485. Subsequent
legislation eliminated the statutory habeas jurisdiction over these
claims, so that now there must be constitutionally based
jurisdiction or none at all. Justice Scalia is thus correct that
here, for the first time, this Court holds there is (he says
“confers”) constitutional habeas jurisdiction over aliens
imprisoned by the military outside an area of de jure national sovereignty, see post, at 1 (dissenting opinion).
But no one who reads the Court’s opinion in Rasul could
seriously doubt that the jurisdictional question must be answered
the same way in purely constitutional cases, given the Court’s
reliance on the historical background of habeas generally in
answering the statutory question. See, e.g., 542 U. S., at
473, 481–483, and nn. 11–14. Indeed, the Court in Rasul directly answered the very historical question that Justice Scalia
says is dispositive, see post, at 18; it wrote that
“[a]pplication of the habeas statute to persons detained at
[Guantanamo] is consistent with the historical reach of the writ of
habeas corpus,” 542 U. S., at 481. Justice Scalia dismisses the
statement as dictum, see post, at 21, but if dictum it
was, it was dictum well considered, and it stated the view of five
Members of this Court on the historical scope of the writ. Of
course, it takes more than a quotation from Rasul, however
much on point, to resolve the constitutional issue before us here,
which the majority opinion has explored afresh in the detail it
deserves. But whether one agrees or disagrees with today’s
decision, it is no bolt out of the blue.

															   A second fact insufficiently appreciated by
the dissents is the length of the disputed imprisonments, some of
the prisoners represented here today having been locked up for six
years, ante, at 66 (opinion of the Court). Hence the
hollow ring when the dissenters suggest that the Court is somehow
precipitating the judiciary into reviewing claims that the military
(subject to appeal to the Court of Appeals for the District of
Columbia Circuit) could handle within some reasonable period of
time. See, e.g., post, at 3 (opinion of Roberts,
C. J.) (“[T]he Court should have declined to intervene until
the D. C. Circuit had assessed the nature and validity of the
congressionally mandated proceedings in a given detainee’s case”); post, at 6 (“[I]t is not necessary to consider the
availability of the writ until the statutory remedies have been
shown to be inadequate”); post, at 8 (“[The Court] rushes
to decide the fundamental question of the reach of habeas corpus
when the functioning of the DTA may make that decision entirely
unnecessary”). These suggestions of judicial haste are all the more
out of place given the Court’s realistic acknowledgment that in
periods of exigency the tempo of any habeas review must reflect the
immediate peril facing the country. See ante, at
64–65.

															   It is in fact the very lapse of four years
from the time Rasul put everyone on notice that habeas
process was available to Guantanamo prisoners, and the lapse of six
years since some of these prisoners were captured and incarcerated,
that stand at odds with the repeated suggestions of the dissenters
that these cases should be seen as a judicial victory in a contest
for power between the Court and the political branches. See post, at 2, 3, 28 (Roberts, C. J., dissenting); post, at 5, 6, 17, 18, 25 (Scalia, J., dissenting). The
several answers to the charge of triumphalism might start with a
basic fact of Anglo-American constitutional history: that the
power, first of the Crown and now of the Executive Branch of the
United States, is necessarily limited by habeas corpus jurisdiction
to enquire into the legality of executive detention. And one could
explain that in this Court’s exercise of responsibility to preserve
habeas corpus something much more significant is involved than
pulling and hauling between the judicial and political branches.
Instead, though, it is enough to repeat that some of these
petitioners have spent six years behind bars. After six years of
sustained executive detentions in Guantanamo, subject to habeas
jurisdiction but without any actual habeas scrutiny, today’s decision is no judicial victory, but an act of
perseverance in trying to make habeas review, and the obligation of
the courts to provide it, mean something of value both to prisoners
and to the Nation. See ante, at 69. ROBERTS, C. J., DISSENTING BOUMEDIENE V. BUSH 553 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NOS. 06-1195 AND 06-1196 LAKHDAR BOUMEDIENE, et al., PETITIONERS

															06–1195 v. GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES,
et al. KHALED A. F. AL ODAH, next friend of FAWZI
KHALID ABDULLAH FAHAD AL ODAH, et al., PETITIONERS

															06–1196 v. UNITED STATES et al. on writs of certiorari to the united states
court of appeals for the district of columbia circuit [June 12, 2008] Chief Justice Roberts ,
with whom Justice Scalia, Justice Thomas, and Justice Alito join,
dissenting.

															   Today the Court strikes down as
inadequate the most generous set of procedural protections ever
afforded aliens detained by this country as enemy combatants. The
political branches crafted these procedures amidst an ongoing
military conflict, after much careful investigation and thorough
debate. The Court rejects them today out of hand, without bothering
to say what due process rights the detainees possess, without
explaining how the statute fails to vindicate those rights, and
before a single petitioner has even attempted to avail himself of
the law’s operation. And to what effect? The majority merely
replaces a review system designed by the people’s representatives
with a set of shapeless procedures to be defined by federal courts
at some future date. One cannot help but think, after surveying the
modest practical results of the majority’s ambitious opinion, that
this decision is not really about the detainees at all, but about
control of federal policy regarding enemy combatants.

															   The majority is adamant that the Guantanamo
detainees are entitled to the protections of habeas corpus—its
opinion begins by deciding that question. I regard the issue as a
difficult one, primarily because of the unique and unusual
jurisdictional status of Guantanamo Bay. I nonetheless agree with
Justice Scalia’s analysis of our precedents and the pertinent
history of the writ, and accordingly join his dissent. The
important point for me, however, is that the Court should have
resolved these cases on other grounds. Habeas is most fundamentally
a procedural right, a mechanism for contesting the legality of
executive detention. The critical threshold question in these
cases, prior to any inquiry about the writ’s scope, is whether the
system the political branches designed protects whatever rights the
detainees may possess. If so, there is no need for any additional
process, whether called “habeas” or something else.

															   Congress entrusted that threshold question in
the first instance to the Court of Appeals for the District of
Columbia Circuit, as the Constitution surely allows Congress to do.
See Detainee Treatment Act of 2005 (DTA), §1005(e)(2)(A), 119 Stat.
2742. But before the D. C. Circuit has addressed the issue,
the Court cashiers the statute, and without answering this critical
threshold question itself. The Court does eventually get around to
asking whether review under the DTA is, as the Court frames it, an
“adequate substitute” for habeas, ante , at 42, but even
then its opinion fails to determine what rights the detainees
possess and whether the DTA system satisfies them. The majority
instead compares the undefined DTA process to an equally undefined
habeas right—one that is to be given shape only in the future by
district courts on a case-by-case basis. This whole approach is
misguided.

															   It is also fruitless. How the detainees’
claims will be decided now that the DTA is gone is anybody’s guess.
But the habeas process the Court mandates will most likely end up
looking a lot like the DTA system it replaces, as the district
court judges shaping it will have to reconcile review of the
prisoners’ detention with the undoubted need to protect the
American people from the terrorist threat—precisely the challenge
Congress undertook in drafting the DTA. All that today’s opinion
has done is shift responsibility for those sensitive foreign policy
and national security decisions from the elected branches to the
Federal Judiciary.

															   I believe the system the political branches
constructed adequately protects any constitutional rights aliens
captured abroad and detained as enemy combatants may enjoy. I
therefore would dismiss these cases on that ground. With all
respect for the contrary views of the majority, I must dissent.

															I

															   The Court’s opinion makes plain
that certiorari to review these cases should never have been
granted. As two Members of today’s majority once recognized,
“traditional rules governing our decision of constitutional
questions and our practice of requiring the exhaustion of available
remedies … make it appropriate to deny these petitions.” Boumediene v. Bush , 549 U. S. ___ (2007) (slip
op., at 1) (citation omitted) (statement of Stevens and Kennedy,
JJ., respecting denial of certiorari). Just so. Given the posture
in which these cases came to us, the Court should have declined to
intervene until the D. C. Circuit had assessed the nature and
validity of the congressionally mandated proceedings in a given
detainee’s case.

															   The political branches created a
two-part, collateral review procedure for testing the legality of
the prisoners’ detention: It begins with a hearing before a
Combatant Status Review Tribunal (CSRT) followed by review in the
D. C. Circuit. As part of that review, Congress authorized the
D. C. Circuit to decide whether the CSRT proceedings are
consistent with “the Constitution and laws of the United States.”
DTA §1005(e)(2)(C), 119 Stat. 2742. No petitioner, however, has
invoked the D. C. Circuit review the statute specifies. See
476 F. 3d 981, 994, and n. 16 (CADC 2007); Brief for
Federal Respondents 41–43. As a consequence, that court has had no
occasion to decide whether the CSRT hearings, followed by review in
the Court of Appeals, vindicate whatever constitutional and
statutory rights petitioners may possess. See 476 F. 3d, at
994, and n. 16.

															   Remarkably, this Court does not require
petitioners to exhaust their remedies under the statute; it does
not wait to see whether those remedies will prove sufficient to
protect petitioners’ rights. Instead, it not only denies the
D. C. Circuit the opportunity to assess the statute’s
remedies, it refuses to do so itself: the majority expressly
declines to decide whether the CSRT procedures, coupled with
Article III review, satisfy due process. See ante , at
54.

															   It is grossly premature to pronounce on the
detainees’ right to habeas without first assessing whether the
remedies the DTA system provides vindicate whatever rights
petitioners may claim. The plurality in Hamdi v. Rumsfeld , 542 U. S. 507 , 533 (2004), explained
that the Constitution guaranteed an American citizen challenging his detention as an enemy combatant the right to
“notice of the factual basis for his classification, and a fair
opportunity to rebut the Government’s factual assertions before a
neutral decisionmaker.” The plurality specifically stated that
constitutionally adequate collateral process could be provided “by
an appropriately authorized and properly constituted military
tribunal,” given the “uncommon potential to burden the Executive at
a time of ongoing military conflict.” Id ., at 533, 538.
This point is directly pertinent here, for surely the Due Process
Clause does not afford non -citizens in such circumstances
greater protection than citizens are due.

															   If the CSRT procedures meet the minimal due
process requirements outlined in Hamdi , and if an Article
III court is available to ensure that these procedures are followed
in future cases, see id., at 536; INS v. St.
Cyr , 533 U. S.
289 , 304 (2001); Heikkila v. Barber , 345 U. S. 229 , 236
(1953), there is no need to reach the Suspension Clause question.
Detainees will have received all the process the Constitution could
possibly require, whether that process is called “habeas” or
something else. The question of the writ’s reach need not be
addressed.

															   This is why the Court should have required
petitioners to exhaust their remedies under the statute. As we
explained in Gusik v. Schilder , 340 U. S. 128 , 132
(1950), “If an available procedure has not been employed to rectify
the alleged error” petitioners complain of, “any interference by
[a] federal court may be wholly needless. The procedure established
to police the errors of the tribunal whose judgment is challenged
may be adequate for the occasion.” Because the majority refuses to
assess whether the CSRTs comport with the Constitution, it ends up
razing a system of collateral review that it admits may in fact
satisfy the Due Process Clause and be “structurally sound.” Ante , at 56. But if the collateral review procedures
Congress has provided—CSRT review coupled with Article III
scrutiny—are sound, interference by a federal habeas court may be
entirely unnecessary.

															   The only way to know is to require petitioners
to use the alternative procedures Congress designed. Mandating that
the petitioners exhaust their statutory remedies “is in no sense a
suspension of the writ of habeas corpus. It is merely a deferment
of resort to the writ until other corrective procedures are shown
to be futile.” Gusik , supra , at 132. So too here,
it is not necessary to consider the availability of the writ until
the statutory remedies have been shown to be inadequate to protect
the detainees’ rights. Cf. 28 U. S. C. §2254(b)(1)(A) (“An
application for a writ of habeas corpus … shall not be granted
unless it appears that … the applicant has exhausted the remedies
available in the courts of the State”). Respect for the judgments
of Congress—whose Members take the same oath we do to uphold the
Constitution—requires no less.

															   In the absence of any assessment of the DTA’s
remedies, the question whether detainees are entitled to habeas is
an entirely speculative one. Our precedents have long counseled us
to avoid deciding such hypothetical questions of constitutional
law. See Spector Motor Service, Inc . v. McLaughlin , 323 U. S. 101 , 105
(1944) (“If there is one doctrine more deeply rooted than any other
in the process of constitutional adjudication, it is that we ought
not to pass on questions of constitutionality … unless such
[questions are] unavoidable”); see also Ashwander v. TVA , 297 U.
S. 288 , 347 (1936) (Brandeis, J., concurring) (Constitutional
questions should not be decided unless “ ‘absolutely necessary
to a decision of the case’ ” (quoting Burton v. United States , 196 U. S. 283 , 295
(1905))). This is a “fundamental rule of judicial restraint.” Three Affiliated Tribes of Fort Berthold
Reservation v. Wold Engineering, P. C. , 467 U. S. 138 , 157
(1984).

															   The Court acknowledges that “the ordinary
course” would be not to decide the constitutionality of the DTA at
this stage, but abandons that “ordinary course” in light of the
“gravity” of the constitutional issues presented and the prospect
of additional delay. Ante , at 43. It is, however,
precisely when the issues presented are grave that adherence to the
ordinary course is most important. A principle applied only when
unimportant is not much of a principle at all, and charges of
judicial activism are most effectively rebutted when courts can
fairly argue they are following normal practices.

															   The Court is also concerned that requiring
petitioners to pursue “DTA review before proceeding with their
habeas corpus actions” could involve additional delay. Ante , at 66. The nature of the habeas remedy the Court
instructs lower courts to craft on remand, however, is far more
unsettled than the process Congress provided in the DTA. See ante , at 69 (“[O]ur opinion does not address the content
of the law that governs petitioners’ detention. That is a matter
yet to be determined”). There is no reason to suppose that review
according to procedures the Federal Judiciary will design, case by
case, will proceed any faster than the DTA process petitioners
disdained.

															   On the contrary, the system the Court has
launched (and directs lower courts to elaborate) promises to take
longer. The Court assures us that before bringing their habeas
petitions, detainees must usually complete the CSRT process. See ante , at 66. Then they may seek review in federal district
court. Either success or failure there will surely result in an
appeal to the D. C. Circuit—exactly where judicial review starts under Congress’s system. The effect of the Court’s
decision is to add additional layers of quite possibly redundant
review. And because nobody knows how these new layers of “habeas”
review will operate, or what new procedures they will require,
their contours will undoubtedly be subject to fresh bouts of
litigation. If the majority were truly concerned about delay, it
would have required petitioners to use the DTA process that has
been available to them for 2 1 2
years, with its Article III review in the D. C. Circuit. That
system might well have provided petitioners all the relief to which
they are entitled long before the Court’s newly installed habeas
review could hope to do so.[ Footnote 1 ] The Court’s
refusal to require petitioners to exhaust the remedies provided by
Congress violates the “traditional rules governing our decision of
constitutional questions.” Boumediene , 549 U. S., at ___
(slip op., at 1) (statement of Stevens and Kennedy, JJ., respecting
denial of certiorari). The Court’s disrespect for these rules makes
its decision an awkward business. It rushes to decide the
fundamental question of the reach of habeas corpus when the
functioning of the DTA may make that decision entirely unnecessary,
and it does so with scant idea of how DTA judicial review will
actually operate. II The majority’s overreaching is particularly
egregious given the weakness of its objections to the DTA. Simply
put, the Court’s opinion fails on its own terms. The majority
strikes down the statute because it is not an “adequate substitute”
for habeas review, ante , at 42, but fails to show what
rights the detainees have that cannot be vindicated by the DTA
system. Because the central purpose of habeas corpus
is to test the legality of executive detention, the writ requires
most fundamentally an Article III court able to hear the prisoner’s
claims and, when necessary, order release. See Brown v. Allen , 344
U. S. 443 , 533 (1953) (Jackson, J., concurring in result).
Beyond that, the process a given prisoner is entitled to receive
depends on the circumstances and the rights of the prisoner. See Mathews v. Eldridge , 424 U. S. 319 , 335
(1976). After much hemming and hawing, the majority appears to
concede that the DTA provides an Article III court competent to
order release. See ante , at 61. The only issue in dispute
is the process the Guantanamo prisoners are entitled to use to test
the legality of their detention. Hamdi concluded that
American citizens detained as enemy combatants are entitled to only
limited process, and that much of that process could be supplied by
a military tribunal, with review to follow in an Article III court.
That is precisely the system we have here. It is adequate to
vindicate whatever due process rights petitioners may
have. A The Court reaches the opposite conclusion
partly because it misreads the statute. The majority appears not to
understand how the review system it invalidates actually
works—specifically, how CSRT review and review by the D. C.
Circuit fit together. After briefly acknowledging in its recitation
of the facts that the Government designed the CSRTs “to comply with
the due process requirements identified by the plurality in Hamdi ,” ante , at 3, the Court proceeds to dismiss
the tribunal proceedings as no more than a suspect method used by
the Executive for determining the status of the detainees in the
first instance, see ante , at 43. This leads the Court to
treat the review the DTA provides in the D. C. Circuit as the
only opportunity detainees have to challenge their status
determination. See ante , at 49. The Court attempts to explain its glancing
treatment of the CSRTs by arguing that “[w]hether one characterizes
the CSRT process as direct review of the Executive’s battlefield
determination . . . or as the first step in the collateral review
of a battlefield determination makes no difference.” Ante ,
at 54. First of all, the majority is quite wrong to dismiss the
Executive’s determination of detainee status as no more than a
“battlefield” judgment, as if it were somehow provisional and made
in great haste. In fact, detainees are designated “enemy
combatants” only after “multiple levels of review by military
officers and officials of the Department of Defense.” Memorandum of
the Secretary of the Navy, Implementation of Combatant Status
Review Tribunal Procedures for Enemy Combatants Detained at
Guantanamo Bay Naval Base (July 29, 2004), App. J to Pet. for Cert.
in No. 06–1196, p. 150 (hereinafter Implementation
Memo). The majority
is equally wrong to characterize the CSRTs as part of that initial
determination process. They are instead a means for detainees to challenge the Government’s determination. The Executive
designed the CSRTs to mirror Army Regulation 190–8, see Brief for
Federal Respondents 48, the very procedural model the plurality in Hamdi said provided the type of process an enemy combatant
could expect from a habeas court, see 542 U. S., at 538 (plurality
opinion). The CSRTs operate much as habeas courts would if hearing
the detainee’s collateral challenge for the first time: They gather
evidence, call witnesses, take testimony, and render a decision on
the legality of the Government’s detention. See Implementation
Memo, App. J to Pet. for Cert. in No. 06–1196, at 153–162. If
the CSRT finds a particular detainee has been improperly held, it
can order release. See id ., at 164. The majority
insists that even if “the CSRTs satisf[ied] due process standards,”
full habeas review would still be necessary, because habeas is a
collateral remedy available even to prisoners “detained pursuant to
the most rigorous proceedings imaginable.” Ante , at 55,
56. This comment makes sense only if the CSRTs are incorrectly
viewed as a method used by the Executive for determining the
prisoners’ status, and not as themselves part of the collateral
review to test the validity of that determination. See Gusik , 340 U. S., at 132. The majority can deprecate the
importance of the CSRTs only by treating them as something they are
not. The use of a
military tribunal such as the CSRTs to review the aliens’ detention
should be familiar to this Court in light of the Hamdi plurality, which said that the due process rights enjoyed by American citizens detained as enemy combatants
could be vindicated “by an appropriately authorized and properly
constituted military tribunal.” 542 U. S., at 538. The DTA
represents Congress’ considered attempt to provide the accused
alien combatants detained at Guantanamo a constitutionally adequate
opportunity to contest their detentions before just such a
tribunal. But Congress
went further in the DTA. CSRT review is just the first tier of
collateral review in the DTA system. The statute provides
additional review in an Article III court. Given the rationale of
today’s decision, it is well worth recalling exactly what the DTA
provides in this respect. The statute directs the D. C.
Circuit to consider whether a particular alien’s status
determination “was consistent with the standards and procedures
specified by the Secretary of Defense” and “whether the
use of such standards and procedures to make the determination is
consistent with the Constitution and laws of the United States.”
DTA §1005(e)(2)(C), 119 Stat. 2742. That is, a court determines whether the CSRT procedures are constitutional, and a court determines whether those procedures were followed in
a particular case. In short, the Hamdi plurality concluded that this type of review would
be enough to satisfy due process, even for citizens. See 542 U. S.,
at 538. Congress followed the Court’s lead, only to find itself the
victim of a constitutional bait and switch. Hamdi merits scant attention from
the Court—a remarkable omission, as Hamdi bears directly
on the issues before us. The majority attempts to dismiss Hamdi’ s relevance by arguing that because the availability
of §2241 federal habeas was never in doubt in that case, “the Court
had no occasion to define the necessary scope of habeas review . .
. in the context of enemy combatant detentions.” Ante , at
55. Hardly. Hamdi was all about the scope of habeas review
in the context of enemy combatant detentions. The petitioner, an
American citizen held within the United States as an enemy
combatant, invoked the writ to challenge his detention. 542 U. S.,
at 510–511. After “a careful examination both of the writ … and of
the Due Process Clause,” this Court enunciated the “basic process”
the Constitution entitled Hamdi to expect from a habeas court under
§2241. Id ., at 525, 534. That process consisted of the
right to “receive notice of the factual basis for his
classification, and a fair opportunity to rebut the Government’s
factual assertions before a neutral decisionmaker.” Id .,
at 533. In light of the Government’s national security
responsibilities, the plurality found the process could be
“tailored to alleviate [the] uncommon potential to burden the
Executive at a time of ongoing military conflict.” Ibid .
For example, the Government could rely on hearsay and could claim a
presumption in favor of its own evidence. See id. , at
533–534 . Hamdi further suggested that this
“basic process” on collateral review could be provided by a
military tribunal. It pointed to prisoner-of-war tribunals as a
model that would satisfy the Constitution’s requirements. See id ., at 538. Only “[i]n the absence of such
process” before a military tribunal, the Court held, would Article
III courts need to conduct full-dress habeas proceedings to “ensure
that the minimum requirements of due process are achieved.” Ibid . (emphasis added). And even then, the petitioner
would be entitled to no more process than he would have received
from a properly constituted military review panel, given his
limited due process rights and the Government’s weighty interests.
See id ., at 533–534, 538. Contrary to
the majority, Hamdi is of pressing relevance because it
establishes the procedures American citizens detained as
enemy combatants can expect from a habeas court proceeding under
§2241. The DTA system of military tribunal hearings followed by
Article III review looks a lot like the procedure Hamdi blessed. If nothing else, it is plain from the design of the DTA
that Congress, the President, and this Nation’s military leaders
have made a good-faith effort to follow our
precedent. The Court,
however, will not take “yes” for an answer. The majority contends
that “[i]f Congress had envisioned DTA review as coextensive with
traditional habeas corpus,” it would have granted the D. C.
Circuit far broader review authority. Ante , at 48. Maybe
so, but that comment reveals the majority’s misunderstanding.
“[T]raditional habeas corpus” takes no account of what Hamdi recognized as the “uncommon potential to burden the
Executive at a time of ongoing military conflict.” 542 U. S., at
533. Besides, Congress and the Executive did not envision “DTA
review”—by which I assume the Court means D. C. Circuit
review, see ante , at 48—as the detainees’ only opportunity
to challenge their detentions. Instead, the political branches
crafted CSRT and D. C. Circuit review to operate
together, with the goal of providing noncitizen detainees the level
of collateral process Hamdi said would satisfy the due
process rights of American citizens . See Brief for Federal
Respondents 48–53. B Given the statutory scheme the political
branches adopted, and given Hamdi , it simply will not do
for the majority to dismiss the CSRT procedures as “far more
limited” than those used in military trials, and therefore beneath
the level of process “that would eliminate the need for habeas
corpus review.” Ante , at 37. The question is not how much
process the CSRTs provide in comparison to other modes of
adjudication. The question is whether the CSRT procedures—coupled
with the judicial review specified by the DTA—provide the “basic
process” Hamdi said the Constitution affords American
citizens detained as enemy combatants. See 542 U. S., at
534. By virtue of its refusal to allow the
D. C. Circuit to assess petitioners’ statutory remedies, and
by virtue of its own refusal to consider, at the outset, the fit
between those remedies and due process, the majority now finds
itself in the position of evaluating whether the DTA system is an
adequate substitute for habeas review without knowing what rights
either habeas or the DTA is supposed to protect. The majority
attempts to elide this problem by holding that petitioners have a
right to habeas corpus and then comparing the DTA against the
“historic office” of the writ. Ante , at 47. But habeas is,
as the majority acknowledges, a flexible remedy rather than a
substantive right. Its “precise application … change[s] depending
upon the circumstances.” Ante , at 50. The shape of habeas
review ultimately depends on the nature of the rights a petitioner
may assert. See, e.g., Reid v. Covert , 354 U. S. 1 , 75
(1957) (Harlan, J., concurring in result) (“[T]he question of which
specific safeguards of the Constitution are appropriately to be
applied in a particular context … can be reduced to the issue of
what process is ‘due’ a defendant in the particular circumstances
of a particular case”). The scope of
federal habeas review is traditionally more limited in some
contexts than in others, depending on the status of the detainee
and the rights he may assert. See St. Cyr , 533 U. S., at
306 (“In [immigration cases], other than the question whether there
was some evidence to support the [deportation] order, the courts
generally did not review factual determinations made by the
Executive” (footnote omitted)); Burns v. Wilson , 346 U. S. 137 ,
139 (1953) (plurality opinion) (“[I]n military habeas corpus the
inquiry, the scope of matters open for review, has always been more
narrow than in civil cases”); In re Yamashita , 327 U. S. 1 , 8 (1946)
(“The courts may inquire whether the detention complained of is
within the authority of those detaining the petitioner. If the
military tribunals have lawful authority to hear, decide and
condemn, their action is not subject to judicial review”); Ex
parte Quirin , 317
U. S. 1 , 25 (1942) (federal habeas review of military
commission verdict limited to determining commission’s
jurisdiction). Declaring
that petitioners have a right to habeas in no way excuses the Court
from explaining why the DTA does not protect whatever due process
or statutory rights petitioners may have. Because if the DTA
provides a means for vindicating petitioners’ rights, it is
necessarily an adequate substitute for habeas corpus. See Swain v. Pressley , 430 U. S. 372 , 381
(1977); United States v. Hayman , 342 U. S. 205 ,
223 (1952). For my part,
I will assume that any due process rights petitioners may possess
are no greater than those of American citizens detained as enemy
combatants. It is worth noting again that the Hamdi controlling opinion said the Constitution guarantees citizen
detainees only “basic” procedural rights, and that the process for
securing those rights can “be tailored to alleviate [the] uncommon
potential to burden the Executive at a time of ongoing military
conflict.” 542 U. S., at 533. The majority, however, objects that
“the procedural protections afforded to the detainees in the CSRT
hearings are … limited.” Ante , at 37. But the evidentiary
and other limitations the Court complains of reflect the nature of
the issue in contest, namely, the status of aliens captured by our
Armed Forces abroad and alleged to be enemy combatants. Contrary to
the repeated suggestions of the majority, DTA review need not
parallel the habeas privileges enjoyed by noncombatant American
citizens, as set out in 28 U. S. C. §2241 (2000 ed. and Supp
V). Cf. ante , at 46–47. It need only provide process
adequate for noncitizens detained as alleged
combatants. To what basic
process are these detainees due as habeas petitioners? We have said
that “at the absolute minimum,” the Suspension Clause protects the
writ “ ‘as it existed in 1789.’ ” St. Cyr , supra , at 301 (quoting Felker v. Turpin , 518 U. S. 651 ,
663–664 (1996)). The majority admits that a number of historical
authorities suggest that at the time of the Constitution’s
ratification, “common-law courts abstained altogether from matters
involving prisoners of war.” Ante , at 17. If this is
accurate, the process provided prisoners under the DTA is plainly
more than sufficient—it allows alleged combatants to challenge both
the factual and legal bases of their detentions. Assuming the
constitutional baseline is more robust, the DTA still provides
adequate process, and by the majority’s own standards. Today’s
Court opines that the Suspension Clause guarantees prisoners such
as the detainees “a meaningful opportunity to demonstrate that
[they are] being held pursuant to the erroneous application or
interpretation of relevant law.” Ante , at 50 (internal
quotation marks omitted). Further, the Court holds that to be an
adequate substitute, any tribunal reviewing the detainees’ cases
“must have the power to order the conditional release of an
individual unlawfully detained.” Ibid . The DTA system—CSRT
review of the Executive’s determination followed by D. C. Circuit
review for sufficiency of the evidence and the constitutionality of
the CSRT process—meets these criteria. C At the CSRT stage, every petitioner has the
right to present evidence that he has been wrongfully detained.
This includes the right to call witnesses who are reasonably
available, question witnesses called by the tribunal, introduce
documentary evidence, and testify before the tribunal. See
Implementation Memo, App. J to Pet. for Cert. in No. 06–1196, at
154–156, 158–159, 161. While the Court concedes detainees may
confront all witnesses called before the tribunal, it suggests this
right is “more theoretical than real” because “there are in effect
no limits on the admission of hearsay evidence.” Ante , at
55. The Court further complains that petitioners lack “the
assistance of counsel,” and—given the limits on their access to
classified information—“may not be aware of the most critical
allegations” against them. Ante , at 54. None of these
complaints is persuasive. Detainees not
only have the opportunity to confront any witness who appears
before the tribunal, they may call witnesses of their own. The
Implementation Memo requires only that detainees’ witnesses be
“reasonably available,” App. J to Pet. for Cert. in No. 06–1196, at
155, a requirement drawn from Army Regulation 190–8, ch. 1,
§1–6( e )(6), and entirely consistent with the Government’s
interest in avoiding “a futile search for evidence” that might
burden warmaking responsibilities, Hamdi , supra ,
at 532. The dangerous mission assigned to our forces abroad is to
fight terrorists, not serve subpoenas. The Court is correct that
some forms of hearsay evidence are admissible before the CSRT, but Hamdi expressly approved this use of hearsay by habeas
courts. 542 U. S., at 533–534 (“Hearsay, for example, may need to
be accepted as the most reliable available evidence from the
Government”). As to
classified information, while detainees are not permitted access to
it themselves, the Implementation Memo provides each detainee with
a “Personal Representative” who may review classified documents at
the CSRT stage and summarize them for the detainee. Implementation
Memo, supra , at 152, 154–155, 156; Brief for Federal
Respondents 54–55. The prisoner’s counsel enjoys the same privilege
on appeal before the D. C. Circuit. That is more access to
classified material for alleged alien enemy combatants than ever
before provided. I am not aware of a single instance—and certainly
the majority cites none—in which detainees such as petitioners have
been provided access to classified material in any form.
Indeed, prisoners of war who challenge their status determinations
under the Geneva Convention are afforded no such access, see Army
Regulation 190–8, ch. 1, §§1–6( e )(3) and (5), and the
prisoner-of-war model is the one Hamdi cited as consistent
with the demands of due process for citizens , see 542 U.
S., at 538. What
alternative does the Court propose? Allow free access to classified
information and ignore the risk the prisoner may eventually convey
what he learns to parties hostile to this country, with deadly
consequences for those who helped apprehend the detainee? If the
Court can design a better system for communicating to detainees the
substance of any classified information relevant to their cases,
without fatally compromising national security interests and
sources, the majority should come forward with it. Instead, the
majority fobs that vexing question off on district courts to answer
down the road. Prisoners of
war are not permitted access to classified information, and neither
are they permitted access to counsel, another supposed failing of
the CSRT process. And yet the Guantanamo detainees are hardly
denied all legal assistance. They are provided a “Personal
Representative” who, as previously noted, may access classified
information, help the detainee arrange for witnesses, assist the
detainee’s preparation of his case, and even aid the detainee in
presenting his evidence to the tribunal. See Implementation Memo, supra , at 161. The provision for a personal representative
on this order is one of several ways in which the CSRT procedures
are more generous than those provided prisoners of war
under Army Regulation 190–8. Keep in mind
that all this is just at the CSRT stage. Detainees receive
additional process before the D. C. Circuit, including full
access to appellate counsel and the right to challenge the factual
and legal bases of their detentions. DTA §1005(e)(2)(C) empowers
the Court of Appeals to determine not only whether the CSRT
observed the “procedures specified by the Secretary of Defense,”
but also “whether the use of such standards and procedures … is
consistent with the Constitution and laws of the United States.”
119 Stat. 2742. These provisions permit detainees to dispute the
sufficiency of the evidence against them. They allow detainees to
challenge a CSRT panel’s interpretation of any relevant law, and
even the constitutionality of the CSRT proceedings themselves. This
includes, as the Solicitor General acknowledges, the ability to
dispute the Government’s right to detain alleged combatants in the
first place, and to dispute the Government’s definition of “enemy
combatant.” Brief for Federal Respondents 59. All this before an
Article III court—plainly a neutral
decisionmaker. All told, the
DTA provides the prisoners held at Guantanamo Bay adequate
opportunity to contest the bases of their detentions, which is all
habeas corpus need allow. The DTA provides more opportunity and
more process, in fact, than that afforded prisoners of war or any
other alleged enemy combatants in history. D Despite these guarantees, the Court finds the
DTA system an inadequate habeas substitute, for one central reason:
Detainees are unable to introduce at the appeal stage exculpatory
evidence discovered after the conclusion of their CSRT proceedings.
See ante , at 58. The Court hints darkly that the DTA may
suffer from other infirmities, see ante , at 63 (“We do not
imply DTA review would be a constitutionally sufficient replacement
for habeas corpus but for these limitations on the detainee’s
ability to present exculpatory evidence”), but it does not bother
to name them, making a response a bit difficult. As it stands, I
can only assume the Court regards the supposed defect it did
identify as the gravest of the lot. If this is the most the Court can muster, the
ice beneath its feet is thin indeed. As noted, the CSRT procedures
provide ample opportunity for detainees to introduce exculpatory
evidence—whether documentary in nature or from live
witnesses—before the military tribunals. See infra , at
21–23; Implementation Memo, App. J to Pet. for Cert. in No. 06–196,
at 155–156. And if their ability to introduce such evidence is
denied contrary to the Constitution or laws of the United States,
the D. C. Circuit has the authority to say so on
review. Nevertheless, the Court asks us to imagine an
instance in which evidence is discovered after the CSRT
panel renders its decision, but before the Court of
Appeals reviews the detainee’s case. This scenario, which of course
has not yet come to pass as no review in the D. C. Circuit has
occurred, provides no basis for rejecting the DTA as a habeas
substitute. While the majority is correct that the DTA does not
contemplate the introduction of “newly discovered” evidence before
the Court of Appeals, petitioners and the Solicitor General agree
that the DTA does permit the D. C. Circuit to remand
a detainee’s case for a new CSRT determination. Brief for
Petitioner Boumediene et al. in No. 06–1195, at 30; Brief for
Federal Respondents 60–61. In the event a detainee alleges that he
has obtained new and persuasive exculpatory evidence that would
have been considered by the tribunal below had it only been
available, the D. C. Circuit could readily remand the case to
the tribunal to allow that body to consider the evidence in the
first instance. The Court of Appeals could later review any new or
reinstated decision in light of the supplemented
record. If that sort of procedure sounds familiar, it
should. Federal appellate courts reviewing factual determinations
follow just such a procedure in a variety of circumstances. See, e.g., United States v. White , 492
F. 3d 380, 413 (CA6 2007) (remanding new-evidence claim to the
district court for a Brady evidentiary hearing); Avila v. Roe , 298 F. 3d 750, 754 (CA9 2002)
(remanding habeas claim to the district court for evidentiary
hearing to clarify factual record); United States v. Leone , 215 F. 3d 253, 256 (CA2 2000) (observing that
when faced on direct appeal with an underdeveloped claim for
ineffective assistance of counsel, the appellate court may remand
to the district court for necessary
factfinding). A remand is not the only relief available for
detainees caught in the Court’s hypothetical conundrum. The DTA
expressly directs the Secretary of Defense to “provide for periodic
review of any new evidence that may become available relating to
the enemy combatant status of a detainee.” DTA §1005(a)(3).
Regulations issued by the Department of Defense provide that when a
detainee puts forward new, material evidence “not previously
presented to the detainee’s CSRT,” the Deputy Secretary of Defense
“ ‘will direct that a CSRT convene to reconsider the basis of
the detainee’s … status in light of the new information.’ ”
Office for the Administrative Review of the Detention of Enemy
Combatants, Instruction 5421.1, Procedure for Review of “New
Evidence” Relating to Enemy Combatant (EC) Status ¶¶4(a)(1), 5(b)
(May 7, 2007); Brief for Federal Respondents 56, n. 30. Pursuant to
DTA §1005(e)(2)(A), the resulting CSRT determination is again
reviewable in full by the D. C. Circuit.[ Footnote 2 ] In addition, DTA §1005(d)(1) further requires
the Department of Defense to conduct a yearly review of the status
of each prisoner. See 119 Stat. 2741. The Deputy Secretary of
Defense has promulgated concomitant regulations establishing an
Administrative Review Board to assess “annually the need to
continue to detain each enemy combatant.” Deputy Secretary of
Defense Order OSD 06942–04 (May 11, 2004), App. K to Pet. for Cert.
in No. 06–1196, p. 189. In the words of the implementing order, the
purpose of this annual review is to afford every detainee the
opportunity “to explain why he is no longer a threat to the United
States” and should be released. Ibid . The Board’s findings
are forwarded to a presidentially appointed, Senate-confirmed
civilian within the Department of Defense whom the Secretary of
Defense has designated to administer the review process. This
designated civilian official has the authority to order release
upon the Board’s recommendation. Id ., at
201. The Court’s hand wringing over the DTA’s
treatment of later-discovered exculpatory evidence is the most it
has to show after a roving search for constitutionally problematic
scenarios. But “[t]he delicate power of pronouncing an Act of
Congress unconstitutional,” we have said, “is not to be exercised
with reference to hypothetical cases thus imagined.” United
States v. Raines , 362 U. S. 17 , 22 (1960).
The Court today invents a sort of reverse facial challenge and
applies it with gusto: If there is any scenario in which
the statute might be constitutionally infirm, the law must
be struck down. Cf. United States v. Salerno , 481 U. S. 739 ,
745 (1987) (“A facial challenge … must establish that no set of
circumstances exists under which the Act would be valid”); see also Washington v. Glucksberg , 521 U. S. 702 , 739–740,
and n. 7 (1997) (Stevens, J., concurring in judgments) (facial
challenge must fail where the statute has “ ‘plainly
legitimate sweep’ ” (quoting Broadrick v. Oklahoma , 413 U. S. 601 , 615
(1973))). The Court’s new method of constitutional adjudication
only underscores its failure to follow our usual procedures and
require petitioners to demonstrate that they have been
harmed by the statute they challenge. In the absence of such a
concrete showing, the Court is unable to imagine a plausible
hypothetical in which the DTA is
unconstitutional. E The Court’s second criterion for
an adequate substitute is the “power to order the conditional
release of an individual unlawfully detained.” Ante , at
50. As the Court basically admits, the DTA can be read to permit
the D. C. Circuit to order release in light of our traditional
principles of construing statutes to avoid difficult constitutional
issues, when reasonably possible. See ante , at
56–57. The Solicitor General concedes
that remedial authority of some sort must be implied in the
statute, given that the DTA—like the general habeas law itself, see
28 U. S. C. §2243—provides no express remedy of any kind.
Brief for Federal Respondents 60–61. The parties agree that at the
least, the DTA empowers the D. C. Circuit to remand a
prisoner’s case to the CSRT with instructions to perform a new
status assessment. Brief for Petitioner Boumediene et al. in
No. 06–1195, at 30; Brief for Federal Respondents 60–61. To avoid
constitutional infirmity, it is reasonable to imply more, see Ashwander , 297 U. S., at 348 (Brandeis, J., concurring)
(“When the validity of an act of the Congress is drawn in question
… it is a cardinal principle that this Court will … ascertain
whether a construction of the statute is fairly possible by which
the [constitutional] question may be avoided” (internal quotation
marks omitted)); see also St. Cyr , 533 U. S., at 299–300,
especially in view of the Solicitor General’s concession at oral
argument and in his Supplemental Brief that authority to release
might be read in the statute, see Tr. of Oral Arg. 37; Supplemental
Brief for Federal Respondents 9. The Court grudgingly suggests that “Congress’
silence on the question of remedies suggests acquiescence to any
constitutionally required remedy.” Ante , at 58. But the
argument in favor of statutorily authorized release is stronger
than that. The DTA’s parallels to 28 U. S. C. §2243 on this
score are noteworthy. By way of remedy, the general federal habeas
statute provides only that the court, having heard and determined
the facts, shall “dispose of the matter as law and justice
require.” Ibid . We have long held, and no party here
disputes, that this includes the power to order release. See Wilkinson v. Dotson , 544 U. S. 74 , 79 (2005)
(“[T]he writ’s history makes clear that it traditionally has been
accepted as the specific instrument to obtain release from
[unlawful] confinement” (internal quotation marks
omitted)). The DTA can be similarly read. Because
Congress substituted DTA review for habeas corpus and because the
“unique purpose” of the writ is “to release the applicant … from
unlawful confinement,” Allen v. McCurry , 449 U. S. 90 , 98,
n. 12 (1980), DTA §1005(e)(2) can and should be read to confer
on the Court of Appeals the authority to order release in
appropriate circumstances. Section 1005(e)(2)(D) plainly
contemplates release, addressing the effect “release of [an] alien
from the custody of the Department of Defense” will have on the
jurisdiction of the court. 119 Stat. 2742–2743. This reading avoids
serious constitutional difficulty and is consistent with the text
of the statute. The D. C. Circuit can thus order
release, the CSRTs can order release, and the head of the
Administrative Review Boards can, at the recommendation of those
panels, order release. These multiple release provisions within the
DTA system more than satisfy the majority’s requirement that any
tribunal substituting for a habeas court have the authority to
release the prisoner. The basis for the Court’s contrary conclusion
is summed up in the following sentence near the end of its opinion:
“To hold that the detainees at Guantanamo may, under the DTA,
challenge the President’s legal authority to detain them, contest
the CSRT’s findings of fact, supplement the record on review with
newly discovered or previously unavailable evidence, and request an
order of release would come close to reinstating the §2241 habeas
corpus process Congress sought to deny them.” Ante , at 63.
In other words, any interpretation of the statute that would make
it an adequate substitute for habeas must be rejected, because
Congress could not possibly have intended to enact an adequate
substitute for habeas. The Court could have saved itself a lot of
trouble if it had simply announced this Catch-22 approach at the
beginning rather than the end of its
opinion. III For all its eloquence about the
detainees’ right to the writ, the Court makes no effort to
elaborate how exactly the remedy it prescribes will differ from the
procedural protections detainees enjoy under the DTA. The Court
objects to the detainees’ limited access to witnesses and
classified material, but proposes no alternatives of its own.
Indeed, it simply ignores the many difficult questions its holding
presents. What, for example, will become of the CSRT process? The
majority says federal courts should generally refrain from
entertaining detainee challenges until after the petitioner’s CSRT
proceeding has finished. See ante , at 66 (“[e]xcept in
cases of undue delay”). But to what deference, if any, is that CSRT
determination entitled? There are other problems. Take
witness availability. What makes the majority think witnesses will
become magically available when the review procedure is labeled
“habeas”? Will the location of most of these witnesses change—will
they suddenly become easily susceptible to service of process? Or
will subpoenas issued by American habeas courts run to Basra? And
if they did, how would they be enforced? Speaking of witnesses,
will detainees be able to call active-duty military officers as
witnesses? If not, why not? The majority has no answers for these
difficulties. What it does say leaves open the distinct possibility
that its “habeas” remedy will, when all is said and done, end up
looking a great deal like the DTA review it rejects. See ante , at 66 (opinion of the court) (“We recognize,
however, that the Government has a legitimate interest in
protecting sources and methods of intelligence gathering, and we
expect that the District Court will use its discretion to
accommodate this interest to the greatest extent possible”). But
“[t]he role of the judiciary is limited to determining whether the
procedures meet the essential standard of fairness under the Due
Process Clause and does not extend to imposing procedures that
merely displace congressional choices of policy.” Landon v. Plasencia , 459 U. S. 21 , 34–35
(1982). The majority rests its decision on abstract
and hypothetical concerns. Step back and consider what, in the real
world, Congress and the Executive have actually granted aliens
captured by our Armed Forces overseas and found to be enemy
combatants: The right to hear the bases of the charges
against them, including a summary of any classified
evidence. The ability to challenge the bases of their
detention before military tribunals modeled after Geneva Convention
procedures. Some 38 detainees have been released as a result of
this process. Brief for Federal Respondents 57,
60. The right, before the CSRT, to testify,
introduce evidence, call witnesses, question those the Government
calls, and secure release, if and when
appropriate. The right to the aid of a personal
representative in arranging and presenting their cases before a
CSRT. Before the D. C. Circuit, the right to
employ counsel, challenge the factual record, contest the lower
tribunal’s legal determinations, ensure compliance with the
Constitution and laws, and secure release, if any errors below
establish their entitlement to such
relief. In sum, the DTA satisfies the majority’s own
criteria for assessing adequacy. This statutory scheme provides the
combatants held at Guantanamo greater procedural protections than
have ever been afforded alleged enemy detainees—whether citizens or
aliens—in our national history. *  *  * So who has won? Not the
detainees. The Court’s analysis leaves them with only the prospect
of further litigation to determine the content of their new habeas
right, followed by further litigation to resolve their particular
cases, followed by further litigation before the D. C.
Circuit—where they could have started had they invoked the DTA
procedure. Not Congress, whose attempt to “determine—through
democratic means—how best” to balance the security of the American
people with the detainees’ liberty interests, see Hamdan v. Rumsfeld , 548 U. S. 557 , 636
(2006) (Breyer, J., concurring), has been unceremoniously brushed
aside. Not the Great Writ, whose majesty is hardly enhanced by its
extension to a jurisdictionally quirky outpost, with no tangible
benefit to anyone. Not the rule of law, unless by that is meant the
rule of lawyers, who will now arguably have a greater role than
military and intelligence officials in shaping policy for alien
enemy combatants. And certainly not the American people, who today
lose a bit more control over the conduct of this Nation’s foreign
policy to unelected, politically unaccountable
judges. I respectfully
dissent. Footnote 1 In light of the foregoing, the concurrence is
wrong to suggest that I “insufficiently appreciat[e]” the issue of
delay in these cases. See ante , at 2 (opinion of Souter,
J.). This Court issued its decisions in Rasul v. Bush , 542
U. S. 466 , and Hamdi v. Rumsfeld 542 U. S. 507 , in 2004. The
concurrence makes it sound as if the political branches have done
nothing in the interim. In fact, Congress responded 18 months later
by enacting the DTA. Congress cannot be faulted for taking that
time to consider how best to accommodate both the detainees’
interests and the need to keep the American people safe. Since the
DTA became law, petitioners have steadfastly refused to avail
themselves of the statute’s review mechanisms. It is unfair to
complain that the DTA system involves too much delay when
petitioners have consistently refused to use it, preferring to
litigate instead. Today’s decision obligating district courts to
craft new procedures to replace those in the DTA will only prolong
the process—and delay relief. Footnote 2 The Court wonders what might happen if the
detainee puts forward new material evidence but the Deputy
Secretary refuses to convene a new CSRT. See ante , at
62–63. The answer is that the detainee can petition the D. C.
Circuit for review. The DTA directs that the procedures for review
of new evidence be included among “[t]he procedures submitted under
paragraph (1)(A)” governing CSRT review of enemy combatant status
§1405(a)(3), 119 Stat. 3476. It is undisputed that the D. C.
Circuit has statutory authority to review and enforce these
procedures. See DTA §1005(e)(2)(C)(i), id., at
2742. SCALIA, J., DISSENTING BOUMEDIENE V. BUSH 553 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NOS. 06-1195 AND 06-1196 LAKHDAR BOUMEDIENE, et al., PETITIONERS

															06–1195 v. GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES,
et al. KHALED A. F. AL ODAH, next friend of FAWZI
KHALID ABDULLAH FAHAD AL ODAH, et al., PETITIONERS

															06–1196 v. UNITED STATES et al. on writs of certiorari to the united states
court of appeals for the district of columbia circuit [June 12, 2008] Justice Scalia , with
whom The Chief Justice, Justice Thomas, and Justice Alito join,
dissenting.

															   Today, for the first time in our
Nation’s history, the Court confers a constitutional right to
habeas corpus on alien enemies detained abroad by our military
forces in the course of an ongoing war. The Chief Justice’s
dissent, which I join, shows that the procedures prescribed by
Congress in the Detainee Treatment Act provide the essential
protections that habeas corpus guarantees; there has thus been no
suspension of the writ, and no basis exists for judicial
intervention beyond what the Act allows. My problem with today’s
opinion is more fundamental still: The writ of habeas corpus does
not, and never has, run in favor of aliens abroad; the Suspension
Clause thus has no application, and the Court’s intervention in
this military matter is entirely ultra vires. I shall devote most of what
will be a lengthy opinion to the legal errors contained in the
opinion of the Court. Contrary to my usual practice, however, I
think it appropriate to begin with a description of the disastrous
consequences of what the Court has done today. I America is at war with
radical Islamists. The enemy began by killing Americans and
American allies abroad: 241 at the Marine barracks in Lebanon, 19
at the Khobar Towers in Dhahran, 224 at our embassies in Dar es
Salaam and Nairobi, and 17 on the USS Cole in Yemen. See National
Commission on Terrorist Attacks upon the United States, The 9/11
Commission Report, pp. 60–61, 70, 190 (2004). On September 11,
2001, the enemy brought the battle to American soil, killing 2,749
at the Twin Towers in New York City, 184 at the Pentagon in
Washington, D. C., and 40 in Pennsylvania. See id. , at 552,
n. 9. It has threatened further attacks against our homeland;
one need only walk about buttressed and barricaded Washington, or
board a plane anywhere in the country, to know that the threat is a
serious one. Our Armed Forces are now in the field against the
enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in
arms were killed.

															   The game of bait-and-switch that
today’s opinion plays upon the Nation’s Commander in Chief will
make the war harder on us. It will almost certainly cause more
Americans to be killed. That consequence would be tolerable if
necessary to preserve a time-honored legal principle vital to our
constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision
today. The President relied on our settled precedent in Johnson v. Eisentrager , 339 U. S. 763 (1950), when he
established the prison at Guantanamo Bay for enemy aliens. Citing
that case, the President’s Office of Legal Counsel advised him
“that the great weight of legal authority indicates that a federal
district court could not properly exercise habeas jurisdiction over
an alien detained at [Guantanamo Bay].” Memorandum from Patrick F.
Philbin and John C. Yoo, Deputy Assistant Attorneys General, Office
of Legal Counsel, to William J. Haynes II, General Counsel, Dept.
of Defense (Dec. 28, 2001). Had the law been otherwise, the
military surely would not have transported prisoners there, but
would have kept them in Afghanistan, transferred them to another of
our foreign military bases, or turned them over to allies for
detention. Those other facilities might well have been worse for
the detainees themselves.

															   In the long term, then, the Court’s decision
today accomplishes little, except perhaps to reduce the well-being
of enemy combatants that the Court ostensibly seeks to protect. In
the short term, however, the decision is devastating. At least 30
of those prisoners hitherto released from Guantanamo Bay have
returned to the battlefield. See S. Rep. No. 110–90, pt. 7,
p. 13 (2007) (Minority Views of Sens. Kyl, Sessions, Graham,
Cornyn, and Coburn) (hereinafter Minority Report). Some have been
captured or killed. See ibid.; see also Mintz, Released
Detainees Rejoining the Fight, Washington Post, Oct. 22, 2004, pp.
A1, A12. But others have succeeded in carrying on their atrocities
against innocent civilians. In one case, a detainee released from
Guantanamo Bay masterminded the kidnapping of two Chinese dam
workers, one of whom was later shot to death when used as a human
shield against Pakistani commandoes. See Khan & Lancaster,
Pakistanis Rescue Hostage; 2nd Dies, Washington Post, Oct. 15,
2004, p. A18. Another former detainee promptly resumed his post as
a senior Taliban commander and murdered a United Nations engineer
and three Afghan soldiers. Mintz, supra . Still another
murdered an Afghan judge. See Minority Report 13. It was reported
only last month that a released detainee carried out a suicide
bombing against Iraqi soldiers in Mosul, Iraq. See White,
Ex-Guantanamo Detainee Joined Iraq Suicide Attack, Washington Post,
May 8, 2008, p. A18.

															   These, mind you, were detainees whom the
military had concluded were not enemy combatants. Their return
to the kill illustrates the incredible difficulty of assessing who
is and who is not an enemy combatant in a foreign theater of
operations where the environment does not lend itself to rigorous
evidence collection. Astoundingly, the Court today raises the bar,
requiring military officials to appear before civilian courts and
defend their decisions under procedural and evidentiary rules that
go beyond what Congress has specified. As The Chief Justice’s
dissent makes clear, we have no idea what those procedural and
evidentiary rules are, but they will be determined by civil courts
and (in the Court’s contemplation at least) will be more
detainee-friendly than those now applied, since otherwise there
would no reason to hold the congressionally prescribed procedures
unconstitutional. If they impose a higher standard of proof (from
foreign battlefields) than the current procedures require, the
number of the enemy returned to combat will obviously increase.

															   But even when the military has evidence that
it can bring forward, it is often foolhardy to release that
evidence to the attorneys representing our enemies. And one
escalation of procedures that the Court is clear about is
affording the detainees increased access to witnesses (perhaps
troops serving in Afghanistan?) and to classified information. See ante , at 54–55. During the 1995 prosecution of Omar Abdel
Rahman, federal prosecutors gave the names of 200 unindicted
co-conspirators to the “Blind Sheik’s” defense lawyers; that
information was in the hands of Osama Bin Laden within two weeks.
See Minority Report 14–15. In another case, trial testimony
revealed to the enemy that the United States had been monitoring
their cellular network, whereupon they promptly stopped using it,
enabling more of them to evade capture and continue their
atrocities. See id. , at 15.

															   And today it is not just the military that the
Court elbows aside. A mere two Terms ago in Hamdan v. Rumsfeld , 548 U. S. 557 (2006),
when the Court held (quite amazingly) that the Detainee Treatment
Act of 2005 had not stripped habeas jurisdiction over Guantanamo
petitioners’ claims, four Members of today’s five-Justice majority
joined an opinion saying the following:

															“Nothing prevents the President from returning to
Congress to seek the authority [for trial by military commission]
he believes necessary.

															   “Where, as here, no emergency prevents
consultation with Congress, judicial insistence upon that
consultation does not weaken our Nation’s ability to deal with
danger. To the contrary, that insistence strengthens the Nation’s
ability to determine—through democratic means—how best to do so.
The Constitution places its faith in those democratic means.” Id., at 636 (Breyer, J., concurring).[ Footnote 1 ]

															Turns out they were just kidding. For in response,
Congress, at the President’s request, quickly enacted the Military
Commissions Act, emphatically reasserting that it did not want
these prisoners filing habeas petitions. It is therefore clear that
Congress and the Executive— both political branches—have
determined that limiting the role of civilian courts in
adjudicating whether prisoners captured abroad are properly
detained is important to success in the war that some 190,000 of
our men and women are now fighting. As the Solicitor General
argued, “the Military Commissions Act and the Detainee Treatment
Act … represent an effort by the political branches to strike an
appropriate balance between the need to preserve liberty and the
need to accommodate the weighty and sensitive governmental
interests in ensuring that those who have in fact fought with the
enemy during a war do not return to battle against the United
States.” Brief for Respondents 10–11 (internal quotation marks
omitted).

															   But it does not matter. The Court today
decrees that no good reason to accept the judgment of the other two
branches is “apparent.” Ante , at 40. “The Government,” it
declares, “presents no credible arguments that the military mission
at Guantanamo would be compromised if habeas corpus courts had
jurisdiction to hear the detainees’ claims.” Id., at 39.
What competence does the Court have to second-guess the judgment of
Congress and the President on such a point? None whatever. But the
Court blunders in nonetheless. Henceforth, as today’s opinion makes
unnervingly clear, how to handle enemy prisoners in this war will
ultimately lie with the branch that knows least about the national
security concerns that the subject entails.

															II

															A

															   The Suspension Clause of the
Constitution provides: “The Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or
Invasion the public Safety may require it.” Art. I, §9, cl. 2.
As a court of law operating under a written Constitution, our role
is to determine whether there is a conflict between that Clause and
the Military Commissions Act. A conflict arises only if the
Suspension Clause preserves the privilege of the writ for aliens
held by the United States military as enemy combatants at the base
in Guantanamo Bay, located within the sovereign territory of
Cuba.

															   We have frequently stated that we
owe great deference to Congress’s view that a law it has passed is
constitutional. See, e.g. , Department of Labor v. Triplett , 494 U. S. 715 , 721
(1990); United States v. National Dairy Products
Corp. , 372 U. S.
29 , 32 (1963); see also American Communications Assn. v. Douds , 339 U. S. 382 , 435
(1950) (Jackson, J., concurring in part and dissenting in part).
That is especially so in the area of foreign and military affairs;
“perhaps in no other area has the Court accorded Congress greater
deference.” Rostker v. Goldberg , 453 U. S. 57 , 64–65
(1981). Indeed, we accord great deference even when the President
acts alone in this area. See Department of Navy v. Egan , 484
U. S. 518 , 529–530 (1988); Regan v. Wald , 468 U. S. 222 ,
243 (1984).

															   In light of those principles of deference, the
Court’s conclusion that “the common law [does not] yiel[d] a
definite answer to the questions before us,” ante , at 22,
leaves it no choice but to affirm the Court of Appeals. The writ as
preserved in the Constitution could not possibly extend farther
than the common law provided when that Clause was written. See Part
III, infra. The Court admits that it cannot determine
whether the writ historically extended to aliens held abroad, and
it concedes (necessarily) that Guantanamo Bay lies outside the
sovereign territory of the United States. See ante , at
22–23; Rasul v. Bush , 542
U. S. 466 , 500–501 (2004) (Scalia, J., dissenting). Together,
these two concessions establish that it is (in the Court’s view)
perfectly ambiguous whether the common-law writ would have provided
a remedy for these petitioners. If that is so, the Court has no
basis to strike down the Military Commissions Act, and must leave
undisturbed the considered judgment of the coequal
branches.[ Footnote 2 ]

															   How, then, does the Court weave a clear
constitutional prohibition out of pure interpretive equipoise? The
Court resorts to “fundamental separation-of-powers principles” to
interpret the Suspension Clause. Ante , at 25. According to
the Court, because “the writ of habeas corpus is itself an
indispensable mechanism for monitoring the separation of powers,”
the test of its extraterritorial reach “must not be subject to
manipulation by those whose power it is designed to restrain.” Ante, at 36.

															   That approach distorts the nature of the
separation of powers and its role in the constitutional structure.
The “fundamental separation-of-powers principles” that the
Constitution embodies are to be derived not from some judicially
imagined matrix, but from the sum total of the individual
separation-of-powers provisions that the Constitution sets forth.
Only by considering them one-by-one does the full shape of the Constitution’s separation-of-powers principles emerge. It
is nonsensical to interpret those provisions themselves in light of
some general “separation-of-powers principles” dreamed up by the
Court. Rather, they must be interpreted to mean what they were
understood to mean when the people ratified them. And if the
understood scope of the writ of habeas corpus was “designed to
restrain” (as the Court says) the actions of the Executive, the
understood limits upon that scope were (as the Court seems
not to grasp) just as much “designed to restrain” the incursions of
the Third Branch. “Manipulation” of the territorial reach of the
writ by the Judiciary poses just as much a threat to the proper
separation of powers as “manipulation” by the Executive. As I will
show below, manipulation is what is afoot here. The understood
limits upon the writ deny our jurisdiction over the habeas
petitions brought by these enemy aliens, and entrust the President
with the crucial wartime determinations about their status and
continued confinement.

															B

															   The Court purports to derive from
our precedents a “functional” test for the extraterritorial reach
of the writ, ante , at 34, which shows that the Military
Commissions Act unconstitutionally restricts the scope of habeas.
That is remarkable because the most pertinent of those precedents, Johnson v. Eisentrager , 339 U. S. 763 , conclusively
establishes the opposite. There we were confronted with the claims
of 21 Germans held at Landsberg Prison, an American military
facility located in the American Zone of occupation in postwar
Germany. They had been captured in China, and an American military
commission sitting there had convicted them of war
crimes—collaborating with the Japanese after Germany’s surrender. Id. , at 765–766. Like the petitioners here, the Germans
claimed that their detentions violated the Constitution and
international law, and sought a writ of habeas corpus. Writing for
the Court, Justice Jackson held that American courts lacked habeas
jurisdiction:

															   “We are cited to [sic] no instance where a court, in this or any other country where the
writ is known, has issued it on behalf of an alien enemy who, at no
relevant time and in no stage of his captivity, has been within its
territorial jurisdiction. Nothing in the text of the Constitution
extends such a right, nor does anything in our statutes.” Id. , at 768.

															   Justice Jackson then elaborated
on the historical scope of the writ:

															   “The alien, to whom the United
States has been traditionally hospitable, has been accorded a
generous and ascending scale of rights as he increases his identity
with our society… .

															   “But, in extending constitutional protections
beyond the citizenry, the Court has been at pains to point out that
it was the alien’s presence within its territorial jurisdiction
that gave the Judiciary power to act.” Id. , at
770–771.

															   Lest there be any doubt about the
primacy of territorial sovereignty in determining the jurisdiction
of a habeas court over an alien, Justice Jackson distinguished two
cases in which aliens had been permitted to seek habeas relief, on
the ground that the prisoners in those cases were in custody within
the sovereign territory of the United States. Id ., at
779–780 (discussing Ex parte Quirin , 317 U. S. 1 (1942), and In re Yamashita , 327 U. S. 1 (1946)). “By
reason of our sovereignty at that time over [the Philippines],”
Jackson wrote, “Yamashita stood much as did Quirin before American
courts.” 339 U. S., at 780. Eisentrager thus held— held beyond any doubt—that the Constitution does not ensure habeas for
aliens held by the United States in areas over which our Government
is not sovereign.[ Footnote
3 ]

															   The Court would have us believe that Eisentrager rested on “[p]ractical considerations,” such
as the “difficulties of ordering the Government to produce the
prisoners in a habeas corpus proceeding.” Ante , at 32.
Formal sovereignty, says the Court, is merely one consideration
“that bears upon which constitutional guarantees apply” in a given
location. Ante , at 34. This is a sheer rewriting of the
case. Eisentrager mentioned practical concerns, to be
sure—but not for the purpose of determining under what
circumstances American courts could issue writs of habeas
corpus for aliens abroad. It cited them to support its
holding that the Constitution does not empower courts to issue
writs of habeas corpus to aliens abroad in any
circumstances . As Justice Black accurately said in dissent,
“the Court’s opinion inescapably denies courts power to afford the
least bit of protection for any alien who is subject to our
occupation government abroad, even if he is neither enemy nor
belligerent and even after peace is officially declared.” 339 U.
S., at 796.

															   The Court also tries to change Eisentrager into a “functional” test by quoting a
paragraph that lists the characteristics of the German
petitioners:

															“To support [the] assumption [of a constitutional
right to habeas corpus] we must hold that a prisoner of our
military authorities is constitutionally entitled to the writ, even
though he (a) is an enemy alien; (b) has never been or resided in
the United States; (c) was captured outside of our territory and
there held in military custody as a prisoner of war; (d) was tried
and convicted by a Military Commission sitting outside the United
States; (e) for offenses against laws of war committed outside the
United States; (f) and is at all times imprisoned outside the
United States.” Id. , at 777 (quoted in part, ante , at 36).

															But that paragraph is introduced by a sentence
stating that “[t]he foregoing demonstrates how much further we
must go if we are to invest these enemy aliens, resident,
captured and imprisoned abroad, with standing to demand access to
our courts.” 339 U. S., at 777 (emphasis added). How much further
than what ? Further than the rule set forth in the prior
section of the opinion, which said that “in extending
constitutional protections beyond the citizenry, the Court has been
at pains to point out that it was the alien’s presence within its
territorial jurisdiction that gave the Judiciary power to act.” Id. , at 771. In other words, the characteristics of the
German prisoners were set forth, not in application of some
“functional” test, but to show that the case before the Court
represented an a fortiori application of the ordinary
rule. That is reaffirmed by the sentences that immediately follow
the listing of the Germans’ characteristics:

															   “We have pointed out that the
privilege of litigation has been extended to aliens, whether
friendly or enemy, only because permitting their presence in the
country implied protection. No such basis can be invoked here, for
these prisoners at no relevant time were within any territory over
which the United States is sovereign, and the scenes of their
offense, their capture, their trial and their punishment were all
beyond the territorial jurisdiction of any court of the United
States.” Id. , at 777–778. Eisentrager nowhere mentions a
“functional” test, and the notion that it is based upon such a
principle is patently false.[ Footnote 4 ]

															   The Court also reasons that Eisentrager must be read as a “functional” opinion because
of our prior decisions in the Insular Cases. See ante , at
26–29. It cites our statement in Balzac v. Porto
Rico , 258 U. S.
298 , 312 (1922), that “ ‘the real issue in the Insular
Cases was not whether the Constitution extended to the
Philippines or Porto Rico when we went there, but which of its
provisions were applicable by way of limitation upon the exercise
of executive and legislative power in dealing with new conditions
and requirements.’ ” Ante , at 28. But the Court
conveniently omits Balzac ’s predicate to that statement:
“The Constitution of the United States is in force in Porto Rico as
it is wherever and whenever the sovereign power of that
government is exerted.” 258 U. S., at 312 (emphasis added). The
Insular Cases all concerned territories acquired by Congress under
its Article IV authority and indisputably part of the sovereign
territory of the United States. See United States v. Verdugo-Urquidez , 494 U. S. 259 , 268
(1990); Reid v. Covert , 354 U. S. 1 , 13 (1957)
(plurality opinion of Black, J.). None of the Insular Cases stands
for the proposition that aliens located outside U. S. sovereign
territory have constitutional rights, and Eisentrager held
just the opposite with respect to habeas corpus. As I have said, Eisentrager distinguished Yamashita on the ground
of “our sovereignty [over the Philippines],” 339 U. S., at 780.

															   The Court also relies on the “[p]ractical
considerations” that influenced our decision in Reid v. Covert , supra . See ante , at 29–32. But
all the Justices in the majority except Justice Frankfurter limited
their analysis to the rights of citizens abroad. See Reid, supra , at 5–6 (plurality opinion of Black, J.); id. , at 74–75 (Harlan, J., concurring in result).
(Frankfurter limited his analysis to the even narrower class of
civilian dependents of American military personnel abroad, see id. , at 45 (opinion concurring in result).) In trying to
wring some kind of support out of Reid for today’s novel
holding, the Court resorts to a chain of logic that does not hold.
The members of the Reid majority, the Court says, were
divided over whether In re Ross , 140 U. S. 453 (1891),
which had (according to the Court) held that under certain
circumstances American citizens abroad do not have indictment and
jury-trial rights, should be overruled. In the Court’s view, the Reid plurality would have overruled Ross , but
Justices Frankfurter and Harlan preferred to distinguish it. The
upshot: “If citizenship had been the only relevant factor in the
case, it would have been necessary for the Court to overturn Ross , something Justices Harlan and Frankfurter were
unwilling to do.” Ante , at 32. What, exactly, is this
point supposed to prove? To say that “practical considerations”
determine the precise content of the constitutional protections
American citizens enjoy when they are abroad is quite different
from saying that “practical considerations” determine whether
aliens abroad enjoy any constitutional protections whatever,
including habeas. In other words, merely because citizenship is not
a sufficient factor to extend constitutional rights abroad
does not mean that it is not a necessary one.

															   The Court tries to reconcile Eisentrager with its holding today by pointing out that in
postwar Germany, the United States was “answerable to its Allies”
and did not “pla[n] a long-term occupation.” Ante , at 38,
39. Those factors were not mentioned in Eisentrager . Worse
still, it is impossible to see how they relate to the Court’s
asserted purpose in creating this “functional” test—namely, to
ensure a judicial inquiry into detention and prevent the political
branches from acting with impunity. Can it possibly be that the
Court trusts the political branches more when they are beholden to
foreign powers than when they act alone?

															   After transforming the a fortiori elements discussed above into a “functional” test, the Court is
still left with the difficulty that most of those elements exist
here as well with regard to all the detainees. To make the
application of the newly crafted “functional” test produce a
different result in the present cases, the Court must rely upon
factors (d) and (e): The Germans had been tried by a military
commission for violations of the laws of war; the present
petitioners, by contrast, have been tried by a Combatant Status
Review Tribunal (CSRT) whose procedural protections, according to
the Court’s ipse dixit , “fall well short of the procedures
and adversarial mechanisms that would eliminate the need for habeas
corpus review.” Ante , at 37. But no one looking for
“functional” equivalents would put Eisentrager and the
present cases in the same category, much less place the present
cases in a preferred category. The difference between them cries
out for lesser procedures in the present cases. The prisoners in Eisentrager were prosecuted for crimes after the
cessation of hostilities; the prisoners here are enemy combatants detained during an ongoing conflict. See Hamdi v. Rumsfeld , 542 U. S. 507 , 538
(2004) (plurality opinion) (suggesting, as an adequate substitute
for habeas corpus, the use of a tribunal akin to a CSRT to
authorize the detention of American citizens as enemy
combatants during the course of the present conflict).

															   The category of prisoner comparable to these
detainees are not the Eisentrager criminal defendants, but
the more than 400,000 prisoners of war detained in the United
States alone during World War II. Not a single one was accorded the
right to have his detention validated by a habeas corpus action in
federal court—and that despite the fact that they were present on
U. S. soil. See Bradley, The Military Commissions Act, Habeas
Corpus, and the Geneva Conventions, 101 Am. J. Int’l L. 322, 338
(2007). The Court’s analysis produces a crazy result: Whereas those
convicted and sentenced to death for war crimes are without
judicial remedy, all enemy combatants detained during a war, at
least insofar as they are confined in an area away from the
battlefield over which the United States exercises “absolute and
indefinite” control, may seek a writ of habeas corpus in federal
court. And, as an even more bizarre implication from the Court’s
reasoning, those prisoners whom the military plans to try by
full-dress Commission at a future date may file habeas petitions
and secure release before their trials take place.

															   There is simply no support for the Court’s
assertion that constitutional rights extend to aliens held outside
U. S. sovereign territory, see Verdugo-Urquidez , 494 U.
S., at 271, and Eisentrager could not be clearer that the
privilege of habeas corpus does not extend to aliens abroad. By
blatantly distorting Eisentrager , the Court avoids the
difficulty of explaining why it should be overruled. See Planned Parenthood of Southeastern Pa. v. Casey , 505 U. S. 833 ,
854–855 (1992) (identifying stare decisis factors). The
rule that aliens abroad are not constitutionally entitled to habeas
corpus has not proved unworkable in practice; if anything, it is
the Court’s “functional” test that does not (and never will)
provide clear guidance for the future. Eisentrager forms a
coherent whole with the accepted proposition that aliens abroad
have no substantive rights under our Constitution. Since it was
announced, no relevant factual premises have changed. It has
engendered considerable reliance on the part of our military. And,
as the Court acknowledges, text and history do not clearly compel a
contrary ruling. It is a sad day for the rule of law when such an
important constitutional precedent is discarded without an apologia , much less an apology.

															C

															   What drives today’s decision is
neither the meaning of the Suspension Clause, nor the principles of
our precedents, but rather an inflated notion of judicial
supremacy. The Court says that if the extraterritorial
applicability of the Suspension Clause turned on formal notions of
sovereignty, “it would be possible for the political branches to
govern without legal constraint” in areas beyond the sovereign
territory of the United States. Ante , at 35. That cannot
be, the Court says, because it is the duty of this Court to say
what the law is. Id ., at 35–36. It would be difficult to
imagine a more question-begging analysis. “The very foundation of
the power of the federal courts to declare Acts of Congress
unconstitutional lies in the power and duty of those courts to
decide cases and controversies properly before them .” United States v. Raines , 362 U. S. 17 , 20–21
(1960) (citing Marbury v. Madison , 1 Cranch 137
(1803); emphasis added). Our power “to say what the law is” is
circumscribed by the limits of our statutorily and constitutionally
conferred jurisdiction. See Lujan v. Defenders of
Wildlife , 504
U. S. 555 , 573–578 (1992). And that is precisely the question
in these cases: whether the Constitution confers habeas
jurisdiction on federal courts to decide petitioners’ claims. It is
both irrational and arrogant to say that the answer must be yes,
because otherwise we would not be supreme.

															   But so long as there are some places to which habeas does not run—so long as the
Court’s new “functional” test will not be satisfied in every
case —then there will be circumstances in which “it would be
possible for the political branches to govern without legal
constraint.” Or, to put it more impartially, areas in which the
legal determinations of the other branches will be
(shudder!) supreme . In other words, judicial supremacy is
not really assured by the constitutional rule that the Court
creates. The gap between rationale and rule leads me to conclude
that the Court’s ultimate, unexpressed goal is to preserve the
power to review the confinement of enemy prisoners held by the
Executive anywhere in the world. The “functional” test usefully
evades the precedential landmine of Eisentrager but is so
inherently subjective that it clears a wide path for the Court to
traverse in the years to come.

															III

															   Putting aside the conclusive
precedent of Eisentrager , it is clear that the original
understanding of the Suspension Clause was that habeas corpus was
not available to aliens abroad, as Judge Randolph’s thorough
opinion for the court below detailed. See 476 F. 3d 981, 988–990
(CADC 2007).

															   The Suspension Clause reads: “The
Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may
require it.” U. S. Const., Art. I, §9, cl. 2. The proper
course of constitutional interpretation is to give the text the
meaning it was understood to have at the time of its adoption by
the people. See, e.g. , Crawford v. Washington , 541 U. S. 36 , 54 (2004).
That course is especially demanded when (as here) the Constitution
limits the power of Congress to infringe upon a pre-existing
common-law right. The nature of the writ of habeas corpus that
cannot be suspended must be defined by the common-law writ that was
available at the time of the founding. See McNally v. Hill , 293
U. S. 131 , 135–136 (1934); see also INS v. St.
Cyr , 533 U. S. 289 , 342 (2001) (Scalia, J.,
dissenting); D’Oench, Duhme & Co. v. FDIC , 315 U. S. 447 ,
471, n. 9 (1942) (Jackson, J., concurring).

															   It is entirely clear that, at English common
law, the writ of habeas corpus did not extend beyond the sovereign
territory of the Crown. To be sure, the writ had an “extraordinary
territorial ambit,” because it was a so-called “prerogative writ,”
which, unlike other writs, could extend beyond the realm of England
to other places where the Crown was sovereign. R. Sharpe, The Law
of Habeas Corpus 188 (2d ed. 1989) (hereinafter Sharpe); see also
Note on the Power of the English Courts to Issue the Writ of Habeas
to Places Within the Dominions of the Crown, But Out of England,
and On the Position of Scotland in Relation to that Power, 8 Jurid.
Rev. 157 (1896) (hereinafter Note on Habeas); King v. Cowle , 2 Burr. 834, 855–856, 97 Eng. Rep. 587, 599 (K. B.
1759).

															   But prerogative writs could not issue to
foreign countries, even for British subjects; they were confined to
the King’s dominions—those areas over which the Crown was
sovereign. See Sharpe 188; 2 R. Chambers, A Course of Lectures on
the English Law 1767–1773, pp. 7–8 (Curley ed. 1986); 3 W.
Blackstone, Commentaries on the Laws of England 131 (1768)
(hereinafter Blackstone). Thus, the writ has never extended to
Scotland, which, although united to England when James I succeeded
to the English throne in 1603, was considered a foreign dominion
under a different Crown—that of the King of Scotland. Sharpe 191;
Note on Habeas 158.[ Footnote 5 ]
That is why Lord Mansfield wrote that “[t]o foreign dominions,
which belong to a prince who succeeds to the throne of England,
this Court has no power to send any writ of any kind. We cannot
send a habeas corpus to Scotland . . . .” Cowle , supra , at 856, 97 Eng. Rep., at 599–600.

															   The common-law writ was codified by the Habeas
Corpus Act of 1679, which “stood alongside Magna Charta and the
English Bill of Rights of 1689 as a towering common law lighthouse
of liberty—a beacon by which framing lawyers in America consciously
steered their course.” Amar, Sixth Amendment First Principles, 84
Geo. L. J. 641, 663 (1996). The writ was established in the
Colonies beginning in the 1690’s and at least one colony adopted
the 1679 Act almost verbatim. See Dept. of Political Science, Okla.
State Univ., Research Reports, No. 1, R. Walker, The American
Reception of the Writ of Liberty 12–16 (1961). Section XI of the
Act stated where the writ could run. It “may be directed and run
into any county palatine, the cinque-ports, or other privileged
places within the kingdom of England, dominion of Wales, or town of
Berwick upon Tweed, and the islands of Jersey or Guernsey.” 31 Car.
2, ch. 2. The cinque-ports and county palatine were so-called
“exempt jurisdictions”—franchises granted by the Crown in which
local authorities would manage municipal affairs, including the
court system, but over which the Crown maintained ultimate
sovereignty. See 3 Blackstone 78–79. The other places listed—Wales,
Berwick-upon-Tweed, Jersey, and Guernsey—were territories of the
Crown even though not part England proper. See Cowle , supra , at 853–854, 97 Eng. Rep., at 598 (Wales and
Berwick-upon-Tweed); 1 Blackstone 104 (Jersey and Guernsey); Sharpe
192 (same).

															   The Act did not extend the writ elsewhere,
even though the existence of other places to which British
prisoners could be sent was recognized by the Act. The possibility
of evading judicial review through such spiriting-away was
eliminated, not by expanding the writ abroad, but by forbidding (in
Article XII of the Act) the shipment of prisoners to places where
the writ did not run or where its execution would be difficult. See
31 Car. 2, ch. 2; see generally Nutting, The Most Wholesome Law—The
Habeas Corpus Act of 1679, 65 Am. Hist. Rev. 527 (1960).

															   The Habeas Corpus Act, then, confirms the
consensus view of scholars and jurists that the writ did not run
outside the sovereign territory of the Crown. The Court says that
the idea that “jurisdiction followed the King’s officers” is an
equally credible view. Ante , at 16. It is not credible at
all. The only support the Court cites for it is a page in
Boumediene’s brief, which in turn cites this Court’s dicta in Rasul, 542 U. S., at 482, mischaracterizing Lord
Mansfield’s statement that the writ ran to any place that was
“under the subjection of the Crown,” Cowle , supra , at 856, 97 Eng. Rep., at 599. It is clear that Lord
Mansfield was saying that the writ extended outside the realm of
England proper, not outside the sovereign territory of the
Crown.[ Footnote 6 ]

															   The Court dismisses the example of Scotland on
the grounds that Scotland had its own judicial system and that the
writ could not, as a practical matter, have been enforced there. Ante , at 20. Those explanations are totally unpersuasive.
The existence of a separate court system was never a basis for
denying the power of a court to issue the writ. See 9 W.
Holdsworth, A History of English Law 124 (3d ed. 1944) (citing Ex parte Anderson , 3 El. and El. 487 (1861)). And as for
logistical problems, the same difficulties were present for places
like the Channel Islands, where the writ did run. The Court
attempts to draw an analogy between the prudential limitations on
issuing the writ to such remote areas within the sovereign
territory of the Crown and the jurisdictional prohibition on
issuing the writ to Scotland. See ante , at 19–20. But the
very authority that the Court cites, Lord Mansfield, expressly
distinguished between these two concepts, stating that English
courts had the “power” to send the writ to places within the
Crown’s sovereignty, the “only question” being the “propriety,”
while they had “no power to send any writ of any kind” to Scotland
and other “foreign dominions.” Cowle , supra , at
856, 97 Eng. Rep., at 599–600. The writ did not run to Scotland
because, even after the Union, “Scotland remained a foreign
dominion of the prince who succeeded to the English throne,” and
“union did not extend the prerogative of the English crown to
Scotland.” Sharpe 191; see also Sir Matthew Hale’s The Prerogatives
of the King 19 (D. Yale ed. 1976).[ Footnote 7 ]

															    In sum, all available historical
evidence points to the conclusion that the writ would not have been
available at common law for aliens captured and held outside the
sovereign territory of the Crown. Despite three opening briefs,
three reply briefs, and support from a legion of amici, petitioners have failed to identify a single case in the history of
Anglo-American law that supports their claim to jurisdiction. The
Court finds it significant that there is no recorded case denying jurisdiction to such prisoners either. See ante , at 21–22. But a case standing for the remarkable
proposition that the writ could issue to a foreign land would
surely have been reported, whereas a case denying such a writ for
lack of jurisdiction would likely not. At a minimum, the absence of
a reported case either way leaves unrefuted the voluminous
commentary stating that habeas was confined to the dominions of the
Crown.

															   What history teaches is confirmed by the
nature of the limitations that the Constitution places upon
suspension of the common-law writ. It can be suspended only “in
Cases of Rebellion or Invasion.” Art. I, §9, cl. 2. The
latter case (invasion) is plainly limited to the territory of the
United States; and while it is conceivable that a rebellion could
be mounted by American citizens abroad, surely the overwhelming
majority of its occurrences would be domestic. If the
extraterritorial scope of habeas turned on flexible, “functional”
considerations, as the Court holds, why would the Constitution
limit its suspension almost entirely to instances of domestic
crisis? Surely there is an even greater justification for
suspension in foreign lands where the United States might hold
prisoners of war during an ongoing conflict. And correspondingly,
there is less threat to liberty when the Government suspends the
writ’s (supposed) application in foreign lands, where even on the
most extreme view prisoners are entitled to fewer constitutional
rights. It makes no sense, therefore, for the Constitution
generally to forbid suspension of the writ abroad if indeed the
writ has application there.

															   It may be objected that the foregoing analysis
proves too much, since this Court has already suggested that the
writ of habeas corpus does run abroad for the benefit of
United States citizens. “[T]he position that United States citizens
throughout the world may be entitled to habeas corpus rights … is
precisely the position that this Court adopted in Eisentrager , see 339 U. S., at 769–770, even while holding
that aliens abroad did not have habeas corpus rights.” Rasul , 542 U. S. , at 501, 502 (Scalia, J.,
dissenting) (emphasis deleted). The reason for that divergence is
not difficult to discern. The common-law writ, as received into the
law of the new constitutional Republic, took on such changes as
were demanded by a system in which rule is derived from the consent
of the governed, and in which citizens (not “subjects”) are
afforded defined protections against the Government. As Justice
Story wrote for the Court,

															“The common law of England is not to be taken in
all respects to be that of America. Our ancestors brought with them
its general principles, and claimed it as their birthright; but
they brought with them and adopted only that portion which was
applicable to their situation.” Van Ness v. Pacard ,  2 Pet. 137, 144 (1829).

															See also Hall, The Common Law: An Account of its
Reception in the United States, 4 Vand. L. Rev. 791 (1951). It
accords with that principle to say, as the plurality opinion said
in Reid: “When the Government reaches out to punish a
citizen who is abroad, the shield which the Bill of Rights and
other parts of the Constitution provide to protect his life and
liberty should not be stripped away just because he happens to be
in another land.” 354 U. S., at 6; see also Verdugo-Urquidez ,  494 U. S., at 269–270. On that
analysis, “[t]he distinction between citizens and aliens follows
from the undoubted proposition that the Constitution does not
create, nor do general principles of law create, any juridical
relation between our country and some undefined, limitless class of
noncitizens who are beyond our territory.” Id. , at 275
(Kennedy, J., concurring).

															   In sum, because I conclude that the text and
history of the Suspension Clause provide no basis for our
jurisdiction, I would affirm the Court of Appeals even if Eisentrager did not govern these cases.

															*  *  *

															   Today the Court warps our
Constitution in a way that goes beyond the narrow issue of the
reach of the Suspension Clause, invoking judicially brainstormed
separation-of-powers principles to establish a manipulable
“functional” test for the extraterritorial reach of habeas corpus
(and, no doubt, for the extraterritorial reach of other
constitutional protections as well). It blatantly misdescribes
important precedents, most conspicuously Justice Jackson’s opinion
for the Court in Johnson v. Eisentrager . It
breaks a chain of precedent as old as the common law that prohibits
judicial inquiry into detentions of aliens abroad absent statutory
authorization. And, most tragically, it sets our military
commanders the impossible task of proving to a civilian court,
under whatever standards this Court devises in the future, that
evidence supports the confinement of each and every enemy
prisoner.

															   The Nation will live to regret what the Court
has done today. I dissent. Footnote 1 Even today, the Court cannot resist striking
a pose of faux deference to Congress and the President. Citing the
above quoted passage, the Court says: “The political branches,
consistent with their independent obligations to interpret and
uphold the Constitution, can engage in a genuine debate about how
best to preserve constitutional values while protecting the Nation
from terrorism.” Ante , at 69. Indeed. What the Court
apparently means is that the political branches can debate, after
which the Third Branch will decide. Footnote 2 The opinion seeks to avoid this
straightforward conclusion by saying that the Court has been
“careful not to foreclose the possibility that the protections of
the Suspension Clause have expanded along with post-1789
developments that define the present scope of the writ.” Ante , at 15–16 (citing INS v. St. Cyr , 533 U. S. 289 300–301 (2001)). But not
foreclosing the possibility that they have expanded is not the same
as demonstrating (or at least holding without demonstration, which
seems to suffice for today’s majority) that they have expanded. The
Court must either hold that the Suspension Clause has “expanded” in
its application to aliens abroad, or acknowledge that it has no
basis to set aside the actions of Congress and the President. It
does neither. Footnote 3 In its failed attempt to distinguish Eisentrager , the Court comes up with the notion that
“ de jure sovereignty” is simply an additional factor that
can be added to (presumably) “ de facto sovereignty”
( i.e., practical control) to determine the availability of
habeas for aliens, but that it is not a necessary factor, whereas de facto sovereignty is. It is perhaps in this de
facto sense, the Court speculates, that Eisentrager found “sovereignty” lacking. See ante , at 23–25. If that
were so, one would have expected Eisentrager to explain in
some detail why the United States did not have practical control
over the American zone of occupation. It did not (and probably
could not). Of course this novel de facto-de jure approach
does not explain why the writ never issued to Scotland, which was
assuredly within the de facto control of the English
crown. See infra , at 22.

															   To support its holding that de facto sovereignty is relevant to the reach of habeas corpus, the Court
cites our decision in Fleming v. Page , 9 How. 603
(1850), a case about the application of a customs statute to a
foreign port occupied by U. S. forces. See ante , at 24.
The case used the phrase “subject to the sovereignty and dominion
of the United States” to refer to the United States’ practical
control over a “foreign country.” 9 How., at 614. But Fleming went on to explain that because the port remained
part of the “enemy’s country,” even though under U. S. military
occupation, “its subjugation did not compel the United States,
while they held it, to regard it as part of their dominions, nor to
give to it any form of civil government, nor to extend to it our
laws.” Id. , at 618. If Fleming is relevant to
these cases at all, it undermines the Court’s holding. Footnote 4 Justice Souter’s concurrence relies on our
decision four Terms ago in Rasul v. Bush , 542
U. S. 466 (2004), where the Court interpreted the habeas
statute to extend to aliens held at Guantanamo Bay. He thinks that
“no one who reads the Court’s opinion in Rasul could
seriously doubt that the jurisdictional question must be answered
the same way in purely constitutional cases.” Ante , at
1–2. But Rasul was devoted primarily to an explanation of
why Eisentrager ’s statutory holding no longer controlled
given our subsequent decision in Braden v. 30th
Judicial Circuit Court of Ky. , 410 U. S. 484 (1973).
See Rasul , supra , at 475–479. And the opinion of
the Court today—which Justice Souter joins—expressly rejects the
historical evidence cited in Rasul to support its
conclusion about the reach of habeas corpus. Compare id. ,
at 481–482, with ante , at 18. Moreover, even if one were
to accept as true what Justice Souter calls Rasul ’s
“well-considered” dictum, that does not explain why Eisentrager ’s constitutional holding must be overruled or
how it can be distinguished. (After all, Rasul distinguished Eisentrager ’s statutory holding on a ground
inapplicable to its constitutional holding.) In other words, even
if the Court were to conclude that Eisentrager ’s rule was
incorrect as an original matter, the Court would have to explain
the justification for departing from that precedent. It therefore
cannot possibly be true that Rasul controls this case, as
Justice Souter suggests. Footnote 5 My dissent in Rasul v. Bush, 542
U. S. 466 , 503 (2004), mistakenly included Scotland among the
places to which the writ could run. Footnote 6 The dicta in Rasul also cited Ex
parte Mwenya , [1960] 1 Q. B. 241, (C. A.), but as I
explained in dissent, “[e]ach judge [in Mwenya ] made clear
that the detainee’s status as a subject was material to the
resolution of the case,” 542 U. S., at 504. Footnote 7 The Court also argues that the fact that the
writ could run to Ireland, even though it was ruled under a
“separate” crown, shows that formal sovereignty was not the
touchstone of habeas jurisdiction. Ante , at 21. The
passage from Blackstone that the Court cites, however, describes
Ireland as “a dependent, subordinate kingdom” that was part of the
“king’s dominions.” 1 Blackstone 98, 100 (internal quotation marks
omitted). And Lord Mansfield’s opinion in Cowle plainly
understood Ireland to be “a dominion of the Crown of England,” in
contrast to the “foreign dominio[n]” of Scotland, and thought that
distinction dispositive of the question of habeas jurisdiction. Cowle , supra , at 856, 97 Eng. Rep., at
599–600.

Summary: The Supreme Court ruled that aliens designated as enemy combatants and detained at Guantanamo Bay have the constitutional right to habeas corpus, and that the Detainee Treatment Act of 2005 does not provide an adequate substitute for this right. Therefore, the Military Commissions Act of 2006, which sought to strip habeas corpus rights from these detainees, was deemed an unconstitutional suspension of the writ. The Court did not address the legality of the detention itself, leaving that for the District Court to decide.