Boumediene, Lakhdar v. Bush, George

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 8, 2005 Decided February 20, 2007

No. 05-5062

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

v.

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

Consolidated with
05-5063

Appeals from the United States District Court
for the District of Columbia
(No. 04cv01142)
(No. 04cv01166)

No. 05-5064

KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI KHALID
ABDULLAH FAHAD AL ODAH ET AL.,
APPELLEES/CROSS-APPELLANTS

v.
 2

UNITED STATES OF AMERICA, ET AL.,
APPELLANTS/CROSS-APPELLEES

Consolidated with
05-5095, 05-5096, 05-5097, 05-5098, 05-5099, 05-5100,
05-5101, 05-5102, 05-5103, 05-5104, 05-5105, 05-5106,
05-5107, 05-5108, 05-5109, 05-5110, 05-5111, 05-5112,
05-5113, 05-5114, 05-5115, 05-5116

______

Appeals from the United States District Court
for the District of Columbia
(No. 02cv00828)
(No. 02cv00299)
(No. 02cv01130)
(No. 02cv01135)
(No. 02cv01136)
(No. 02cv01137)
(No. 02cv01144)
(No. 02cv01164)
(No. 02cv01194)
(No. 02cv01227)
(No. 02cv01254)

Stephen H. Oleskey argued the causes for appellants in
Nos. 05-5062, et al. With him on the briefs were Louis R.
Cohen, Robert C. Kirsch, Douglas F. Curtis, Mark C. Fleming,
Wesley R. Powell, Julia Symon, and Christopher Land.

James F. Fitzpatrick, Leslie M. Hill, and Graham J.
 3

Jenkins were on the brief for amicus curiae Global Rights in
support of appellants in Nos. 05-5062, et al.

Thomas B. Wilner argued the causes for the
appellees/cross-appellants in Nos. 05-5064, et al. With him on
the briefs were Barbara J. Olshansky, Joe Margulies, Neil H.
Koslowe, Jared A. Goldstein, L. Barrett Boss, Adrian Lee Steel,
Jr., Baher Azmy, Shayana Devendra Kadidal, Barry J. Pollak,
Eric M. Freedman, Richard J. Wilson, George Brent Mickum,
IV, Douglas James Behr, Erwin Chemerinsky, Jonathan L.
Hafetz, Muneer I. Ahmad, Pamela Rogers Chepiga, Ralph A.
Taylor, Seth B. Waxman, Kevin B. Bedell, David H. Remes,
Marc Falkoff, Marc A. Goldman, David J. Cynamon, and
Osman Handoo.

Wesley R. Powell and Christopher C. Land were on the
brief of amicus curiae Omar Deghayes in support of the
detainees.

Morton Sklar was on the brief of amicus curiae The
World Organization for Human Rights USA in support of the
detainees.

David Overlock Stewart was on the brief of amici curiae
Legal and Historical Scholars in support of the detainees.

Jonathan L. Hafetz was on the brief of amici curiae
British and American Habeas Scholars in support of the
detainees.

Steven T. Wax, Federal Public Defender, Stephen R.
Sady, Ruben L. Iniguez, and Amy Baggio, Chief Deputies
Federal Public Defender, Federal Public Defender for the
District of Oregon, and A.J. Kramer, Federal Public Defender,
Federal Public Defender for the District of Columbia, were on
 4

the brief for amicus curiae Federal Public Defender Habeas
Corpus Counsel in support of the detainees.

Eugene R. Fidell and Ronald W. Meister were on the
brief for amicus curiae the National Institute of Military Justice
in support of the detainees.

Gregory G. Katsas, Deputy Assistant Attorney General,
U.S. Department of Justice, argued the cause for the United
States of America, et al. in Nos. 05-5062, et al. and 05-5064, et
al. With him on the briefs were Paul D. Clement, Solicitor
General, Peter D. Keisler, Assistant Attorney General, and
Douglas N. Letter, Robert M. Loeb, Eric D. Miller, and
Catherine Y. Hancock, Attorneys. Kenneth L. Wainstein, U.S.
Attorney at the time the briefs were filed, entered an appearance.

Daniel J. Popeo and Richard A. Samp were on the brief
of amici curiae Washington Legal Foundation and Allied
Educational Foundation in support of the United States of
America.

Before: SENTELLE, RANDOLPH and ROGERS, Circuit
Judges.

Opinion for the court filed by Circuit Judge RANDOLPH.

Dissenting opinion filed by Circuit Judge ROGERS.

RANDOLPH, Circuit Judge: Do federal courts have
jurisdiction over petitions for writs of habeas corpus filed by
aliens captured abroad and detained as enemy combatants at the
Guantanamo Bay Naval Base in Cuba? The question has been
the recurring subject of legislation and litigation. In these
consolidated appeals, foreign nationals held at Guantanamo filed
petitions for writs of habeas corpus alleging violations of the
 5

Constitution, treaties, statutes, regulations, the common law, and
the law of nations. Some detainees also raised non-habeas
claims under the federal question statute, 28 U.S.C. § 1331, and
the Alien Tort Act, id. § 1350. In the “Al Odah” cases (Nos.
05-5064, 05-5095 through 05-5116), which consist of eleven
cases involving fifty-six detainees, Judge Green denied the
government’s motion to dismiss with respect to the claims
arising from alleged violations of the Fifth Amendment’s Due
Process Clause and the Third Geneva Convention, but dismissed
all other claims. See In re Guantanamo Detainee Cases, 355 F.
Supp. 2d 443 (D.D.C. 2005). After Judge Green certified the
order for interlocutory appeal under 28 U.S.C. § 1292(b), the
government appealed and the detainees cross-appealed. In the
“Boumediene” cases (Nos. 05-5062 and 05-5063) – two cases
involving seven detainees – Judge Leon granted the
government’s motion and dismissed the cases in their entirety.
See Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005).

In the two years since the district court’s decisions the
law has undergone several changes. As a result, we have had
two oral arguments and four rounds of briefing in these cases
during that period. The developments that have brought us to
this point are as follows.

In Al Odah v. United States, 321 F.3d 1134 (D.C. Cir.
2003), rev’d sub nom. Rasul v. Bush, 542 U.S. 466 (2004), we
affirmed the district court’s dismissal of various claims – habeas
and non-habeas – raised by Guantanamo detainees. With
respect to the habeas claims, we held that “no court in this
country has jurisdiction to grant habeas relief, under 28 U.S.C.
§ 2241, to the Guantanamo detainees.” 321 F.3d at 1141. The
habeas statute then stated that “Writs of habeas corpus may be
granted by the Supreme Court, any justice thereof, the district
courts and any circuit judge within their respective
jurisdictions.” 28 U.S.C. § 2241(a) (2004). Because
 6

Guantanamo Bay was not part of the sovereign territory of the
United States, but rather land the United States leases from
Cuba, see Al Odah, 321 F.3d at 1142-43, we determined it was
not within the “respective jurisdictions” of the district court or
any other court in the United States. We therefore held that
§ 2241 did not provide statutory jurisdiction to consider habeas
relief for any alien – enemy or not – held at Guantanamo. Id. at
1141. Regarding the non-habeas claims, we noted that “‘the
privilege of litigation’ does not extend to aliens in military
custody who have no presence in ‘any territory over which the
United States is sovereign,’” id. at 1144 (quoting Johnson v.
Eisentrager, 339 U.S. 763, 777-78 (1950)), and held that the
district court properly dismissed those claims.

The Supreme Court reversed in Rasul v. Bush, 542 U.S.
466 (2004), holding that the habeas statute extended to aliens at
Guantanamo. Although the detainees themselves were beyond
the district court’s jurisdiction, the Court determined that the
district court’s jurisdiction over the detainees’ custodians was
sufficient to provide subject-matter jurisdiction under § 2241.
See Rasul, 542 U.S. at 483-84. The Court further held that the
district court had jurisdiction over the detainees’ non-habeas
claims because nothing in the federal question statute or the
Alien Tort Act categorically excluded aliens outside the United
States from bringing such claims. See Rasul, 542 U.S. at 484-
85. The Court remanded the cases to us, and we remanded them
to the district court.

In the meantime Congress responded with the Detainee
Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2680
(2005) (DTA), which the President signed into law on
December 30, 2005. The DTA added a subsection (e) to the
habeas statute. This new provision stated that, “[e]xcept as
provided in section 1005 of the [DTA], no court, justice, or
judge” may exercise jurisdiction over
 7

(1) an application for a writ of habeas corpus filed by or
on behalf of an alien detained by the Department of
Defense at Guantanamo Bay, Cuba; or

(2) any other action against the United States or its
agents relating to any aspect of the detention by the
Department of Defense of an alien at Guantanamo Bay,
Cuba, who

(A) is currently in military custody; or

(B) has been determined by the United States Court
of Appeals for the District of Columbia Circuit . . .
to have been properly detained as an enemy
combatant.

DTA § 1005(e)(1) (internal quotation marks omitted). The
“except as provided” referred to subsections (e)(2) and (e)(3) of
section 1005 of the DTA, which provided for exclusive judicial
review of Combatant Status Review Tribunal determinations
and military commission decisions in the D.C. Circuit. See
DTA § 1005(e)(2), (e)(3).

The following June, the Supreme Court decided Hamdan
v. Rumsfeld, 126 S. Ct. 2749 (2006). Among other things, the
Court held that the DTA did not strip federal courts of
jurisdiction over habeas cases pending at the time of the DTA’s
enactment. The Court pointed to a provision of the DTA stating
that subsections (e)(2) and (e)(3) of section 1005 “shall apply
with respect to any claim . . . that is pending on or after the date
of the enactment of this Act.” DTA § 1005(h). In contrast, no
provision of the DTA stated whether subsection (e)(1) applied
to pending cases. Finding that Congress “chose not to so
provide . . . after having been presented with the option,” the
 8

Court concluded “[t]he omission [wa]s an integral part of the
statutory scheme.” Hamdan, 126 S. Ct. at 2769.

In response to Hamdan, Congress passed the Military
Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600
(2006) (MCA), which the President signed into law on
October 17, 2006. Section 7 of the MCA is entitled “Habeas
Corpus Matters.” In subsection (a), Congress again amended
§ 2241(e). The new amendment reads:

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

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

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

The amendment made by subsection (a) shall take effect
on the date of the enactment of this Act, and shall apply
to all cases, without exception, pending on or after the
date of the enactment of this Act which relate to any
aspect of the detention, transfer, treatment, trial, or
 9

conditions of detention of an alien detained by the
United States since September 11, 2001.

MCA § 7(b) (emphasis added).

The first question is whether the MCA applies to the
detainees’ habeas petitions. If the MCA does apply, the second
question is whether the statute is an unconstitutional suspension
of the writ of habeas corpus.1

I.

As to the application of the MCA to these lawsuits,
section 7(b) states that the amendment to the habeas corpus
statute, 28 U.S.C. § 2241(e), “shall apply to all cases, without
exception, pending on or after the date of the enactment” that
relate to certain subjects. The detainees’ lawsuits fall within the
subject matter covered by the amended § 2241(e); each case
relates to an “aspect” of detention and each deals with the
detention of an “alien” after September 11, 2001. The MCA
brings all such “cases, without exception” within the new law.

Everyone who has followed the interaction between
Congress and the Supreme Court knows full well that one of the
primary purposes of the MCA was to overrule Hamdan.2

1
Section 7(a) of the MCA eliminates jurisdiction over non-
habeas claims by aliens detained as enemy combatants. That alone is
sufficient to require dismissal even of pending non-habeas claims. See
Bruner v. United States, 343 U.S. 112, 116-17 (1952). Section 7(b)
reinforces this result.
2
Without exception, both the proponents and opponents of
section 7 understood the provision to eliminate habeas jurisdiction
over pending cases. See, e.g., 152 Cong. Rec. S10357 (daily ed. Sept.
28, 2006) (statement of Sen. Leahy) (“The habeas stripping provisions
 10

Everyone, that is, except the detainees. Their cases, they argue,
are not covered. The arguments are creative but not cogent. To
accept them would be to defy the will of Congress. Section 7(b)
could not be clearer. It states that “the amendment made by
subsection (a)” – which repeals habeas jurisdiction – applies to
“all cases, without exception” relating to any aspect of
detention. It is almost as if the proponents of these words were

in the bill go far beyond what Congress did in the Detainee Treatment
Act . . . . This new bill strips habeas jurisdiction retroactively, even
for pending cases.”); id. at S10367 (statement of Sen. Graham) (“The
only reason we are here is because of the Hamdan decision. The
Hamdan decision did not apply . . . the [DTA] retroactively, so we
have about 200 and some habeas cases left unattended and we are
going to attend to them now.”); id. at S10403 (statement of Sen.
Cornyn) (“[O]nce . . . section 7 is effective, Congress will finally
accomplish what it sought to do through the [DTA] last year. It will
finally get the lawyers out of Guantanamo Bay. It will substitute the
blizzard of litigation instigated by Rasul v. Bush with a narrow DC
Circuit-only review of the [CSRT] hearings.”); id. at S10404
(statement of Sen. Sessions) (“It certainly was not my intent, when I
voted for the DTA, to exempt all of the pending Guantanamo lawsuits
from the provisions of that act. * * * Section 7 of the [MCA] fixes
this feature of the DTA and ensures that there is no possibility of
confusion in the future. . . . I don’t see how there could be any
confusion as to the effect of this act on the pending Guantanamo
litigation. The MCA’s jurisdictional bar applies to that litigation
‘without exception.’”); 152 Cong. Rec. H7938 (daily ed. Sept. 29,
2006) (statement of Rep. Hunter) (“The practical effect of [section 7]
will be to eliminate the hundreds of detainee lawsuits that are pending
in courts throughout the country and to consolidate all detainee
treatment cases in the D.C. Circuit.”); id. at H7942 (Rep. Jackson-Lee)
(“The habeas provisions in the legislation are contrary to
congressional intent in the [DTA]. In that act, Congress did not intend
to strip the courts of jurisdiction over the pending habeas [cases].”).
 11

slamming their fists on the table shouting “When we say ‘all,’
we mean all – without exception!”3

The detainees of course do not see it that way. They say
Congress should have expressly stated in section 7(b) that
habeas cases were included among “all cases, without exception,
pending on or after” the MCA became law. Otherwise, the
MCA does not represent an “unambiguous statutory directive[]”
to repeal habeas corpus jurisdiction. INS v. St. Cyr, 533 U.S.
289, 299 (2001). This is nonsense. Section 7(b) specifies the
effective date of section 7(a). The detainees’ argument means
that Congress, in amending the habeas statute (28 U.S.C. §
2241), specified an effective date only for non-habeas cases. Of
course Congress did nothing of the sort. Habeas cases are
simply a subset of cases dealing with detention. See, e.g.,
Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).4 Congress did
not have to say that “the amendment made by subsection (a)” –
which already expressly includes habeas cases – shall take effect
on the date of enactment and shall apply to “all cases, without
exception, including habeas cases.” The St. Cyr rule of

3
Congress has rarely found it necessary to emphasize the
absence of exceptions to a clear rule. Indeed, the use of “without
exception” to emphasize the word “all” occurs in only one other
provision of the U.S. Code. See 48 U.S.C. § 526(a).
4
If section 7(b) did not include habeas cases among cases
“which relate to any aspect of the detention, transfer, treatment, trial,
or conditions of detention,” it would be inconsistent with section 7(a).
Section 7(a) of the MCA first repeals jurisdiction “to hear or consider
an application for a writ of habeas corpus” by detainees. 28 U.S.C.
§ 2241(e)(1). It then repeals jurisdiction over “any other action . . .
relating to any aspect of the detention, transfer, treatment, trial, or
conditions of confinement” of a detainee, id. § 2241(e)(2) (emphasis
added), thus signifying that Congress considered habeas cases as cases
relating to detention, as indeed they are.
 12

interpretation the detainees invoke demands clarity, not
redundancy.

The detainees also ask us to compare the language of
section 7(b) to that of section 3 of the MCA. Section 3, entitled
“Military Commissions,” creates jurisdiction in the D.C. Circuit
for review of military commission decisions, see 10 U.S.C.
§ 950g. It then adds 10 U.S.C. § 950j, which deals with the
finality of military commission decisions. Section 950j strips
federal courts of jurisdiction over any pending or future cases
that would involve review of such decisions:

Except as otherwise provided in this chapter and
notwithstanding any other provision of law (including
section 2241 of title 28 or any other habeas corpus
provision), no court, justice, or judge shall have
jurisdiction to hear or consider any claim or cause of
action whatsoever, including any action pending on or
filed after the date of the enactment of the Military
Commissions Act of 2006, relating to the prosecution,
trial, or judgment of a military commission under this
chapter, including challenges to the lawfulness of
procedures of military commissions under this chapter.

10 U.S.C. § 950j(b) (emphasis added). The detainees maintain
that § 950j calls into question Congress’s intention to apply
section 7(b) to pending habeas cases.

The argument goes nowhere. Section 7(b), read in
conjunction with section 7(a), is no less explicit than § 950j.
Section 7(a) strips jurisdiction over detainee cases, including
habeas cases, and section 7(b) makes section 7(a) applicable to
pending cases. Section 950j accomplishes the same thing, but
in one sentence. A drafting decision to separate section 7 into
two subsections – one addressing the scope of the jurisdictional
 13

bar, the other addressing how the bar applies to pending cases –
makes no legal difference.5

II.

This brings us to the constitutional issue: whether the
MCA, in depriving the courts of jurisdiction over the detainees’
habeas petitions, violates the Suspension Clause of the
Constitution, U.S. CONST. art. I, § 9, cl. 2, which states that “The
Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety
may require it.”

5
The detainees suggest that federal courts retain some form
of residual common law jurisdiction over habeas petitions. Ex parte
Bollman, 8 U.S. (4 Cranch) 75, 95 (1807), holds the opposite. See Ex
parte McCardle, 74 U.S. 506 (1868). “Jurisdiction of the lower
federal courts is . . . limited to those subjects encompassed within a
statutory grant of jurisdiction.” Ins. Corp. of Ireland, Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 701 (1982). The
observations about common law habeas in Rasul, 542 U.S. at 481-82,
referred to the practice in England. Even if there were such a thing
as common law jurisdiction in the federal courts, § 2241(e)(1) quite
clearly eliminates all “jurisdiction to hear or consider an application
for a writ of habeas corpus” by a detainee, whatever the source of that
jurisdiction.

In order to avoid “serious ‘due process,’ Suspension Clause,
and Article III problems,” the detainees also urge us not to read
section 7 of the MCA to eliminate habeas jurisdiction over Geneva
Convention claims. But that reading is unavoidable. Section 7 is
unambiguous, as is section 5(a), which states that “No person may
invoke the Geneva Conventions or any protocols thereto in any habeas
corpus or other civil action or proceeding . . . as a source of rights in
any court of the United States.”
 14

The Supreme Court has stated the Suspension Clause
protects the writ “as it existed in 1789,” when the first Judiciary
Act created the federal courts and granted jurisdiction to issue
writs of habeas corpus. St. Cyr, 533 U.S. at 301; cf. Henry J.
Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal
Judgments, 38 U. CHI. L. REV. 142, 170 (1970). The detainees
rely mainly on three cases to claim that in 1789 the privilege of
the writ extended to aliens outside the sovereign’s territory. In
Lockington’s Case, Bright. (N.P.) 269 (Pa. 1813), a British
resident of Philadelphia had been imprisoned after failing to
comply with a federal marshal’s order to relocate. The War of
1812 made Lockington an “enemy alien” under the Alien
Enemies Act of 1798. Although he lost on the merits of his
petition for habeas corpus before the Pennsylvania Supreme
Court, two of three Pennsylvania justices held that he was
entitled to review of his detention.6 In The Case of Three
Spanish Sailors, 96 Eng. Rep. 775 (C.P. 1779), three Spanish
seamen had boarded a merchant vessel bound for England with
a promise of wages on arrival. After arriving in England, the
English captain refused to pay their wages and turned them over
to a warship as prisoners of war. The King’s Bench denied the
sailors’ petitions because they were “alien enemies and prisoners
of war, and therefore not entitled to any of the privileges of
Englishmen; much less to be set at liberty on a habeas corpus.”
Id. at 776. The detainees claim that, as in Lockington’s Case,
the King’s Bench exercised jurisdiction and reached the merits.
The third case – Rex v. Schiever, 97 Eng. Rep. 551 (K.B.
1759) – involved a citizen of Sweden intent on entering the
English merchant trade. While at sea on an English merchant’s

6
During this period, state courts often employed the writ of
habeas corpus to inquire into the legality of federal detention. The
Supreme Court later held in Ableman v. Booth, 62 U.S. (21 How.) 506
(1859), and Tarble’s Case, 80 U.S. (13 Wall.) 397 (1871), that state
courts had no such power.
 15

ship, a French privateer took Schiever along with the rest of the
crew as prisoners, transferred the crew to another French ship,
and let the English prisoners go free. An English ship thereafter
captured the French ship and its crew, and carried them to
Liverpool where Schiever was imprisoned. From Liverpool
Schiever petitioned for habeas corpus, claiming he was a citizen
of Sweden and only by force entered the service of the French.
The court denied him relief because it found ample evidence that
he was a prisoner of war. Id. at 552.

None of these cases involved an alien outside the
territory of the sovereign. Lockington was a resident of
Philadelphia. And the three Spanish sailors and Schiever were
all held within English sovereign territory.7 The detainees cite
no case and no historical treatise showing that the English
common law writ of habeas corpus extended to aliens beyond
the Crown’s dominions. Our review shows the contrary. See
WILLIAM F. DUKER, A CONSTITUTIONAL HISTORY OF HABEAS
CORPUS 53 (1980); 9 WILLIAM HOLDSWORTH, A HISTORY OF
ENGLISH LAW 116-17, 124 (1982 ed.); 3 BLACKSTONE,
COMMENTARIES 131 (1768); see also 1 Op. Att’y Gen. 47
(1794); In re Ning Yi-Ching, 56 T. L. R. 3, 5 (Vacation Ct. 1939)
(noting prior judge “had listened in vain for a case in which the
writ of habeas corpus had issued in respect of a foreigner
detained in a part of the world which was not a part of the
King’s dominions or realm”). Robert Chambers, the successor
to Blackstone at Oxford, wrote in his lectures that the writ of

7
The dissent claims that the difference between Schiever and
the detainees is “exceedingly narrow,” Dissent at 14, because Schiever
was brought involuntarily to Liverpool. For this proposition, the
dissent cites United States v. Verdugo-Urquidez, 494 U.S. 259, 271
(1990). Verdugo-Urquidez was a Fourth Amendment case.
Obviously, it had nothing to say about habeas corpus in Eighteenth
Century England.
 16

habeas corpus extended only to the King’s dominions. 2
ROBERT CHAMBERS, A COURSE OF LECTURES ON THE ENGLISH
LAW DELIVERED AT OXFORD 1767-1773 (composed in
association with Samuel Johnson), at 7-8 (Thomas M. Curley
ed., 1986). Chambers cited Rex v. Cowle, 97 Eng. Rep. (2 Burr.)
587 (K.B. 1759), in which Lord Mansfield stated that “[t]o
foreign dominions . . . this Court has no power to send any writ
of any kind. We cannot send a habeas corpus to Scotland, or to
the electorate; but to Ireland, the Isle of Man, the plantations
[American colonies] . . . we may.” Every territory that
Mansfield, Blackstone, and Chambers cited as a jurisdiction to
which the writ extended (e.g., Ireland, the Isle of Man, the
colonies, the Cinque Ports, and Wales) was a sovereign territory
of the Crown.

When agents of the Crown detained prisoners outside the
Crown’s dominions, it was understood that they were outside the
jurisdiction of the writ. See HOLDSWORTH, supra, at 116-17.
Even British citizens imprisoned in “remote islands, garrisons,
and other places” were “prevent[ed] from the benefit of the
law,” 2 HENRY HALLAM, THE CONSTITUTIONAL HISTORY OF
ENGLAND 127-28 (William S. Hein Co. 1989) (1827), which
included access to habeas corpus, see DUKER, supra, at 51-53;
HOLDSWORTH, supra, at 116; see also Johan Steyn,
Guantanamo Bay: The Legal Black Hole, 53 INT’L & COMP.
L.Q. 1, 8 (2004) (“the writ of habeas corpus would not be
available” in “remote islands, garrisons, and other places”
(internal quotation marks omitted)). Compliance with a writ
from overseas was also completely impractical given the habeas
law at the time. In Cowle, Lord Mansfield explained that even
in the far off territories “annexed to the Crown,” the Court
would not send the writ, “notwithstanding the power.” 97 Eng.
Rep. at 600. This is doubtless because of the Habeas Corpus
Act of 1679. The great innovation of this statute was in setting
time limits for producing the prisoner and imposing fines on the
 17

custodian if those limits were not met. See CHAMBERS, supra,
at 11. For a prisoner detained over 100 miles from the court, the
detaining officer had twenty days after receiving the writ to
produce the body before the court. See id. If he did not produce
the body, he incurred a fine. One can easily imagine the
practical problems this would have entailed if the writ had run
outside the sovereign territory of the Crown and reached British
soldiers holding foreign prisoners in overseas conflicts, such as
the War of 1812. The short of the matter is that given the
history of the writ in England prior to the founding, habeas
corpus would not have been available in 1789 to aliens without
presence or property within the United States.

Johnson v. Eisentrager, 339 U.S. 763 (1950), ends any
doubt about the scope of common law habeas. “We are cited to
no instance where a court, in this or any other country where the
writ is known, has issued it on behalf of an alien enemy who, at
no relevant time and in no stage of his captivity, has been within
its territorial jurisdiction. Nothing in the text of the Constitution
extends such a right, nor does anything in our statutes.” Id. at
768; see also Note, Habeas Corpus Protection Against Illegal
Extraterritorial Detention, 51 COLUM. L. REV. 368, 368 (1951).
The detainees claim they are in a different position than the
prisoners in Eisentrager, and that this difference is material for
purposes of common law habeas.8 They point to dicta in Rasul,
542 U.S. 481-82, in which the Court discussed English habeas
cases and the “historical reach of the writ.” Rasul refers to
several English and American cases involving varying
combinations of territories of the Crown and relationships

8
The detainees are correct that they are not “enemy aliens.”
That term refers to citizens of a country with which the United States
is at war. See Al Odah, 321 F.3d at 1139-40. But under the common
law, the dispositive fact was not a petitioner’s enemy alien status, but
his lack of presence within any sovereign territory.
 18

between the petitioner and the country in which the writ was
sought. See id. But as Judge Robertson found in Hamdan,
“[n]ot one of the cases mentioned in Rasul held that an alien
captured abroad and detained outside the United States – or in
‘territory over which the United States exercises exclusive
jurisdiction and control,’ Rasul, 542 U.S. at 475 – had a
common law or constitutionally protected right to the writ of
habeas corpus.” Hamdan v. Rumsfeld, No. 04-1519, 2006 WL
3625015, at *7 (D.D.C. Dec. 13, 2006). Justice Scalia made the
same point in his Rasul dissent, see Rasul, 542 U.S. at 502-05 &
n.5 (Scalia, J., dissenting) (noting the absence of “a single case
holding that aliens held outside the territory of the sovereign
were within reach of the writ”), and the dissent acknowledges it
here, see Dissent at 12. We are aware of no case prior to 1789
going the detainees’ way,9 and we are convinced that the writ in
1789 would not have been available to aliens held at an overseas
military base leased from a foreign government.

The detainees encounter another difficulty with their
Suspension Clause claim. Precedent in this court and the
Supreme Court holds that the Constitution does not confer rights
on aliens without property or presence within the United States.
As we explained in Al Odah, 321 F.3d at 1140-41, the
controlling case is Johnson v. Eisentrager. There twenty-one
German nationals confined in custody of the U.S. Army in

9
The dissent claims the lack of any case on point is a result
of the unique combination of circumstances in this case. But
extraterritorial detention was not unknown in Eighteenth Century
England. See HOLDSWORTH, supra, at 116-17; DUKER, supra, at 51-
53. As noted, supra, these prisoners were beyond the protection of the
law, which included access to habeas corpus. And Eisentrager (and
the two hundred other alien petitioners the court noted, see 339 U.S.
at 768 n.1) involved both extraterritorial detention and alien
petitioners.
 19

Germany filed habeas corpus petitions. Although the German
prisoners alleged they were civilian agents of the German
government, a military commission convicted them of war
crimes arising from military activity against the United States in
China after Germany’s surrender. They claimed their
convictions and imprisonment violated various constitutional
provisions and the Geneva Conventions. The Supreme Court
rejected the proposition “that the Fifth Amendment confers
rights upon all persons, whatever their nationality, wherever
they are located and whatever their offenses,” 339 U.S. at 783.
The Court continued: “If the Fifth Amendment confers its rights
on all the world . . . [it] would mean that during military
occupation irreconcilable enemy elements, guerrilla fighters, and
‘werewolves’ could require the American Judiciary to assure
them freedoms of speech, press, and assembly as in the First
Amendment, right to bear arms as in the Second, security
against ‘unreasonable’ searches and seizures as in the Fourth, as
well as rights to jury trial as in the Fifth and Sixth
Amendments.” Id. at 784. (Shortly before Germany’s
surrender, the Nazis began training covert forces called
“werewolves” to conduct terrorist activities during the Allied
occupation. See http://www.archives.gov/iwg/
declassified_records/oss_ records_263_wilhelm_hoettl.html.)

Later Supreme Court decisions have followed
Eisentrager. In 1990, for instance, the Court stated that
Eisentrager “rejected the claim that aliens are entitled to Fifth
Amendment rights outside the sovereign territory of the United
States.” United States v. Verdugo-Urquidez, 494 U.S. 259, 269
(1990). After describing the facts of Eisentrager and quoting
from the opinion, the Court concluded that with respect to
aliens, “our rejection of extraterritorial application of the Fifth
Amendment was emphatic.” Id. By analogy, the Court held that
the Fourth Amendment did not protect nonresident aliens against
unreasonable searches or seizures conducted outside the
 20

sovereign territory of the United States. Id. at 274-75. Citing
Eisentrager again, the Court explained that to extend the Fourth
Amendment to aliens abroad “would have significant and
deleterious consequences for the United States in conducting
activities beyond its boundaries,” particularly since the
government “frequently employs Armed Forces outside this
country,” id. at 273. A decade after Verdugo-Urquidez, the
Court – again citing Eisentrager – found it “well established that
certain constitutional protections available to persons inside the
United States are unavailable to aliens outside of our geographic
borders.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001).10

Any distinction between the naval base at Guantanamo
Bay and the prison in Landsberg, Germany, where the
petitioners in Eisentrager were held, is immaterial to the
application of the Suspension Clause. The United States
occupies the Guantanamo Bay Naval Base under an indefinite
lease it entered into in 1903. See Al Odah, 321 F.3d at 1142.
The text of the lease and decisions of circuit courts and the
Supreme Court all make clear that Cuba – not the United
States – has sovereignty over Guantanamo Bay. See Vermilya-
Brown Co. v. Connell, 335 U.S. 377, 381 (1948); Cuban Am.
Bar Ass’n v. Christopher, 43 F.3d 1412 (11th Cir. 1995). The
“determination of sovereignty over an area,” the Supreme Court
has held, “is for the legislative and executive departments.”
Vermilya-Brown, 335 U.S. at 380. Here the political
departments have firmly and clearly spoken: “‘United States,’

10
The Rasul decision, resting as it did on statutory
interpretation, see 542 U.S. at 475, 483-84, could not possibly have
affected the constitutional holding of Eisentrager. Even if Rasul
somehow calls Eisentrager’s constitutional holding into question, as
the detainees suppose, we would be bound to follow Eisentrager. See
Rodriguez de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477,
484-85 (1989).
 21

when used in a geographic sense . . . does not include the United
States Naval Station, Guantanamo Bay, Cuba.” DTA § 1005(g).

The detainees cite the Insular Cases in which
“fundamental personal rights” extended to U.S. territories. See
Balzac v. Porto Rico, 258 U.S. 298, 312-13 (1922); Dorr v.
United States, 195 U.S. 138, 148 (1904); see also Ralpho v. Bell,
569 F.2d 607 (D.C. Cir. 1977). But in each of those cases,
Congress had exercised its power under Article IV, Section 3 of
the Constitution to regulate “Territory or other Property
belonging to the United States,” U.S. CONST., art. IV, § 3, cl. 2.
These cases do not establish anything regarding the sort of de
facto sovereignty the detainees say exists at Guantanamo. Here
Congress and the President have specifically disclaimed the sort
of territorial jurisdiction they asserted in Puerto Rico, the
Philippines, and Guam.

Precedent in this circuit also forecloses the detainees’
claims to constitutional rights. In Harbury v. Deutch, 233 F.3d
596, 604 (D.C. Cir. 2000), rev’d on other grounds sub nom.
Christopher v. Harbury, 536 U.S. 403 (2002), we quoted
extensively from Verdugo-Urquidez and held that the Court’s
description of Eisentrager was “firm and considered dicta that
binds this court.” Other decisions of this court are firmer still.
Citing Eisentrager, we held in Pauling v. McElroy, 278 F.2d
252, 254 n.3 (D.C. Cir. 1960) (per curiam), that “non-resident
aliens . . . plainly cannot appeal to the protection of the
Constitution or laws of the United States.” The law of this
circuit is that a “foreign entity without property or presence in
this country has no constitutional rights, under the due process
clause or otherwise.” People’s Mojahedin Org. of Iran v. U.S.
Dep’t of State, 182 F.3d 17, 22 (D.C. Cir. 1999); see also 32
 22

County Sovereignty Comm. v. U.S. Dep’t of State, 292 F.3d 797,
799 (D.C. Cir. 2002).11

As against this line of authority, the dissent offers the
distinction that the Suspension Clause is a limitation on
congressional power rather than a constitutional right. But this
is no distinction at all. Constitutional rights are rights against the
government and, as such, are restrictions on governmental
power. See H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525,
534 (1949) (“Even the Bill of Rights amendments were framed
only as a limitation upon the powers of Congress.”).12 Consider
the First Amendment. (In contrasting the Suspension Clause
with provisions in the Bill of Rights, see Dissent at 3, the dissent
is careful to ignore the First Amendment.) Like the Suspension
Clause, the First Amendment is framed as a limitation on
Congress: “Congress shall make no law . . ..” Yet no one would
deny that the First Amendment protects the rights to free speech
and religion and assembly.

11
The text of the Suspension Clause also does not lend itself
freely to extraterritorial application. The Clause permits suspension
of the writ only in cases of “Rebellion or Invasion,” neither of which
is applicable to foreign military conflicts. See Hamdi v. Rumsfeld,
542 U.S. 507, 593-94 (2004) (Thomas, J., dissenting); see also J.
Andrew Kent, A Textual and Historical Case Against a Global
Constitution, 95 GEO. L.J. (forthcoming 2007) (manuscript at 59-60,
available at http://ssrn.com/abstract=888602).
12
James Madison’s plan was to insert almost the entire Bill
of Rights into the Constitution rather than wait for amendment. His
proposed location of the Bill of Rights? Article I, Section 9 – next to
the Suspension Clause. See Thomas Y. Davies, Recovering the
Original Fourth Amendment, 98 MICH. L. REV. 547, 700-01 & n.437
(1999).
 23

The dissent’s other arguments are also filled with holes.
It is enough to point out three of the larger ones.

There is the notion that the Suspension Clause is
different from the Fourth, Fifth, and Sixth Amendments because
it does not mention individuals and those amendments do
(respectively, “people,” “person,” and “the accused”). See
Dissent at 3. Why the dissent thinks this is significant eludes us.
Is the point that if a provision does not mention individuals there
is no constitutional right? That cannot be right. The First
Amendment’s guarantees of freedom of speech and free exercise
of religion do not mention individuals; nor does the Eighth
Amendment’s prohibition on cruel and unusual punishment or
the Seventh Amendment’s guarantee of a civil jury. Of course
it is fair to assume that these provisions apply to individuals, just
as it is fair to assume that petitions for writs of habeas corpus are
filed by individuals.

The dissent also looks to the Bill of Attainder and Ex
Post Facto Clauses, both located next to the Suspension Clause
in Article I, Section 9. We do not understand what the dissent
is trying to make of this juxtaposition. The citation to United
States v. Lovett, 328 U.S. 303 (1946), is particularly baffling.
Lovett held only that the Bill of Attainder Clause was justiciable.
The dissent’s point cannot be that the Bill of Attainder Clause
and the Ex Post Facto Clause do not protect individual rights.
Numerous courts have held the opposite.13 “The fact that the

13
See South Carolina v. Katzenbach, 383 U.S. 301, 323-24
(1966) (“[C]ourts have consistently regarded the Bill of Attainder
Clause of Article I and the principle of the separation of powers only
as protections for individual persons and private groups . . ..”) (citing
United States v. Brown, 381 U.S. 437 (1965); Ex parte Garland, 71
U.S. (4 Wall.) 333 (1866)); see also Wilkinson v. Dotson, 544 U.S. 74,
82 (2005); Weaver v. Graham, 450 U.S. 24, 28-29 (1981); Nixon v.
 24

Suspension Clause abuts the prohibitions on bills of attainder
and ex post facto laws, provisions well-accepted to protect
individual liberty, further supports viewing the habeas privilege
as a core individual right.” Amanda L. Tyler, Is Suspension a
Political Question?, 59 STAN. L. REV. 333, 374 & n.227 (2006)
(emphasis added).14

Why is the dissent so fixated on how to characterize the
Suspension Clause? The unstated assumption must be that the
reasoning of our decisions and the Supreme Court’s in denying
constitutional rights to aliens outside the United States would
not apply if a constitutional provision could be characterized as
protecting something other than a “right.” On this theory, for
example, aliens outside the United States are entitled to the
protection of the Separation of Powers because they have no
individual rights under the Separation of Powers. Where the
dissent gets this strange idea is a mystery, as is the reasoning
behind it.

III.

Federal courts have no jurisdiction in these cases. In
supplemental briefing after enactment of the DTA, the
government asked us not only to decide the habeas jurisdiction
question, but also to review the merits of the detainees’
designation as enemy combatants by their Combatant Status

Adm’r of Gen. Servs., 433 U.S. 425, 468-69 (1977); Shabazz v. Gabry,
123 F.3d 909, 912 (6th Cir. 1997).
14
Accord Jay S. Bybee, Common Ground: Robert Jackson,
Antonin Scalia, and a Power Theory of the First Amendment, 75 TUL.
L. REV. 251, 318, 321 (2000) (“[W]e could easily describe [Article I,]
Section 9 as a bill of rights for the people of the United States.”).
 25

Review Tribunals. See DTA § 1005(e)(2).15 The detainees
objected to converting their habeas appeals to appeals from their
Tribunals. In briefs filed after the DTA became law and after
the Supreme Court decided Hamdan, they argued that we were
without authority to do so.16 Even if we have authority to
convert the habeas appeals over the petitioners’ objections, the
record does not have sufficient information to perform the
review the DTA allows. Our only recourse is to vacate the
district courts’ decisions and dismiss the cases for lack of
jurisdiction.

So ordered.

15
See Supplemental Br. of the Federal Parties Addressing the
Detainee Treatment Act of 2005 53-54 (“This Court can and should
convert the pending appeals into petitions for review under [DTA
section] 1005(e)(2).”).
16
See The Guantanamo Detainees’ Supplemental Br.
Addressing the Effect of the Supreme Ct.’s Op. in Hamdan v.
Rumsfeld, 126 S. Ct. 2749 (2006), on the Pending Appeals 8-9 (“The
detainees in the pending petitions challenge the lawfulness of their
detentions – not the subsequent CSRT decisions . . ..”); Corrected
Supplemental Br. of Pet’rs Boumediene, et al., & Khalid Regarding
Section 1005 of the Detainee Treatment Act of 2005 56-59 (“Nothing
in the [DTA] authorizes the Court to ‘convert’ Petitioners’ notices of
appeal of the district court’s judgment into original petitions for
review of CSRT decisions under section 1005(e)(2) of the Act.”); The
Guantanamo Detainees’ Corrected Second Supplemental Br.
Addressing the Effect of the Detainee Treatment Act of 2005 on this
Ct.’s Jurisdiction over the Pending Appeals 43-44 (“[T]his court
should not convert these petitions into petitions for review under the
DTA as the government suggests.”).
 ROGERS, Circuit Judge, dissenting: I can join neither the
reasoning of the court nor its conclusion that the federal courts
lack power to consider the detainees’ petitions. While I agree
that Congress intended to withdraw federal jurisdiction through
the Military Commissions Act of 2006, Pub. L. No. 109-366,
120 Stat. 2600 (“MCA”), the court’s holding that the MCA is
consistent with the Suspension Clause of Article I, section 9, of
the Constitution does not withstand analysis. By concluding that
this court must reject “the detainees’ claims to constitutional
rights,” Op. at 21, the court fundamentally misconstrues the
nature of suspension: Far from conferring an individual right
that might pertain only to persons substantially connected to the
United States, see United States v. Verdugo-Urquidez, 494 U.S.
259, 271 (1990), the Suspension Clause is a limitation on the
powers of Congress. Consequently, it is only by misreading the
historical record and ignoring the Supreme Court’s well-
considered and binding dictum in Rasul v. Bush, 542 U.S. 466,
481-82 (2004), that the writ at common law would have
extended to the detainees, that the court can conclude that
neither this court nor the district courts have jurisdiction to
consider the detainees’ habeas claims.

A review of the text and operation of the Suspension Clause
shows that, by nature, it operates to constrain the powers of
Congress. Prior to the enactment of the MCA, the Supreme
Court acknowledged that the detainees held at Guantanamo had
a statutory right to habeas corpus. Rasul, 542 U.S. at 483-84.
The MCA purports to withdraw that right but does so in a
manner that offends the constitutional constraint on suspension.
The Suspension Clause limits the removal of habeas corpus, at
least as the writ was understood at common law, to times of
rebellion or invasion unless Congress provides an adequate
alternative remedy. The writ would have reached the detainees
at common law, and Congress has neither provided an adequate
alternative remedy, through the Detainee Treatment Act of 2005,
Pub. L. No. 109-148, Div. A, tit. X, 119 Stat. 2680, 2739
 2

(“DTA”), nor invoked the exception to the Clause by making the
required findings to suspend the writ. The MCA is therefore
void and does not deprive this court or the district courts of
jurisdiction.

On the merits of the detainees’ appeal in Khalid v. Bush,
355 F. Supp. 2d 311 (D.D.C. 2005) and the cross-appeals in In
re Guantanamo Detainee Cases, 355 F. Supp. 2d 443 (D.D.C.
2005), I would affirm in part in Guantanamo Detainee Cases
and reverse in Khalid and remand the cases to the district courts.

I.

Where a court has no jurisdiction it is powerless to act. See,
e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-74 (1803).
But a statute enacted by Congress purporting to deprive a court
of jurisdiction binds that court only when Congress acts
pursuant to the powers it derives from the Constitution. The
court today concludes that the Suspension Clause is an
individual right that cannot be invoked by the detainees. See
Op. at 22. The text of the Suspension Clause and the structure
of the Constitution belie this conclusion. The court further
concludes that the detainees would have had no access to the
writ of habeas corpus at common law. See Op. at 14-17. The
historical record and the guidance of the Supreme Court
disprove this conclusion.

In this Part, I address the nature of the Suspension Clause,
the retroactive effect of Congress’s recent enactment on habeas
corpus — the MCA — and conclude with an assessment of the
effect of the MCA in light of the dictates of the Constitution.

A.
The court holds that Congress may suspend habeas corpus
as to the detainees because they have no individual rights under
 3

the Constitution. It is unclear where the court finds that the limit
on suspension of the writ of habeas corpus is an individual
entitlement. The Suspension Clause itself makes no reference
to citizens or even persons. Instead, it directs that “[t]he
Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety
may require it.” U.S. CONST. art. I, § 9, cl. 2. This mandate
appears in the ninth section of Article I, which enumerates those
actions expressly excluded from Congress’s powers. Although
the Clause does not specifically say so, it is settled that only
Congress may do the suspending. Ex parte Bollman, 8 U.S. (4
Cranch) 75, 101 (1807); see Hamdi v. Rumsfeld, 542 U.S. 507,
562 (2004) (Scalia, J., dissenting); Ex parte Merryman, 17 F.
Cas. 144, 151-152 (No. 9487) (Taney, Circuit Justice, C.C.D.
Md. 1861); 2 JOSEPH STORY, COMMENTARIES ON THE
CONSTITUTION OF THE UNITED STATES § 1342 (5th ed. 1891).
In this manner, by both its plain text and inclusion in section 9,
the Suspension Clause differs from the Fourth Amendment,
which establishes a “right of the people,” the Fifth Amendment,
which limits how a “person shall be held,” and the Sixth
Amendment, which provides rights to “the accused.” These
provisions confer rights to the persons listed .1

1
The Suspension Clause is also distinct from the First
Amendment, which has been interpreted as a guarantor of individual
rights. See, e.g., United States v. Robel, 389 U.S. 258, 263 (1967);
Gitlow v. New York, 268 U.S. 652, 666 (1925). The court cannot
seriously maintain that the two provisions are alike while
acknowledging that the First Amendment confers an individual right
enforceable by the courts and simultaneously claiming that the
Suspension Clause does not, see Op. at 13 n.5 (citing Bollman, 8 U.S.
(4 Cranch) at 95); see also In re Barry, 42 F. 113, 122 (C.C.S.D.N.Y.
1844), error dismissed sub nom. Barry v. Mercein, 46 U.S. 103 (1847)
(“The ninth section of the first article of the constitution, par. 2,
declaring that ‘the privilege of the writ of habeas corpus shall not be
suspended unless, when in cases of rebellion or invasion, the public
 4

The other provisions of Article I, section 9, indicate how to
read the Suspension Clause. The clause immediately following
provides that “[n]o Bill of Attainder or ex post facto Law shall
be passed.”2 The Supreme Court has construed the Attainder
Clause as establishing a “category of Congressional actions
which the Constitution barred.” United States v. Lovett, 328
U.S. 303, 315 (1946). In Lovett, the Court dismissed the
possibility that an Act of Congress in violation of the Attainder
Clause was non-justiciable, remarking:

Our Constitution did not contemplate such a result. To
quote Alexander Hamilton,

* * * a limited constitution * * * [is] one which
contains certain specified exceptions to the
legislative authority; such, for instance, as that it
shall pass no bills of attainder, no ex post facto
laws, and the like. Limitations of this kind can be
preserved in practice no other way than through
the medium of the courts of justice; whose duty it
must be to declare all acts contrary to the manifest
tenor of the Constitution void. Without this, all
the reservations of particular rights or privileges

safety may require it,’ does not purport to convey power or
jurisdiction to the judiciary. It is in restraint of executive and
legislative powers, and no further affects the judiciary than to impose
on them the necessity, if the privilege of habeas corpus is suspended
by any authority, to decide whether the exigency demanded by the
constitution exists to sanction the act.”).
2
Suspensions and bills of attainder have a shared history.
In England, suspensions occasionally named specific individuals and
therefore amounted to bills of attainder. See Rex A. Collings, Jr.,
Habeas Corpus for Convicts — Constitutional Right or Legislative
Grace?, 40 CAL. L. REV. 335, 339 (1952).
 5

would amount to nothing.

Id. at 314 (quoting THE FEDERALIST NO. 78) (emphasis added)
(alteration and omissions in original). So too, in Weaver v.
Graham, 450 U.S. 24, 28-29 & n.10 (1981), where the Court
noted that the ban on ex post facto legislation “restricts
governmental power by restraining arbitrary and potentially
vindictive legislation” and acknowledged that the clause
“confin[es] the legislature to penal decisions with prospective
effect.” See also Marbury, 5 U.S. (1 Cranch) at 179-80;
Foretich v. United States, 351 F.3d 1198, 1216-26 (D.C. Cir.
2003). For like reasons, any act in violation of the Suspension
Clause is void, cf. Lovett, 328 U.S. at 316, and cannot operate to
divest a court of jurisdiction.3

3
The court cites a number of cases for the proposition that
the Attainder Clause confers an individual right instead of operating
as a structural limitation on Congress. See Op. at 23 n.13. None of
these cases makes the court’s point. In South Carolina v. Katzenbach,
383 U.S. 301, 323-24 (1966), the Supreme Court held that it is not a
bill of attainder for Congress to punish a state. This speaks to the
definition of a bill of attainder and says nothing about the operation of
the Attainder Clause. Weaver v. Graham, 450 U.S. 24, 30 (1981),
says the opposite of what the court asserts. In Weaver, the Supreme
Court emphasized that the Ex Post Facto Clause is not intended to
protect individual rights but governs the operation of government
institutions:

The presence or absence of an affirmative, enforceable right
is not relevant, however, to the ex post facto prohibition,
which forbids the imposition of punishment more severe than
the punishment assigned by law when the act to be punished
occurred. Critical to relief under the Ex Post Facto Clause is
not an individual’s right to less punishment, but the lack of
fair notice and governmental restraint when the legislature
increases punishment beyond what was prescribed when the
 6

The court dismisses the distinction between individual
rights and limitations on Congress’s powers. It chooses to make
no affirmative argument of its own, instead hoping to rebut the
sizable body of conflicting authorities.

The court appears to believe that the Suspension Clause is
just like the constitutional amendments that form the Bill of
Rights.4 It is a truism, of course, that individual rights like those
found in the first ten amendments work to limit Congress.
However, individual rights are merely a subset of those matters
that constrain the legislature. These two sets cannot be
understood as coextensive unless the court is prepared to
recognize such awkward individual rights as Commerce Clause
rights, see U.S. CONST. art. I, § 8, cl. 3, or the personal right not

crime was consummated. Thus, even if a statute merely alters
penal provisions accorded by the grace of the legislature, it
violates the Clause if it is both retrospective and more onerous
than the law in effect on the date of the offense.

The Court also emphasized the structural nature of the limitations of
Article I, section 9, in Nixon v. Adm’r of Gen. Servs., 433 U.S. 425,
469 (1977) (noting that “the Bill of Attainder Clause [is] . . . one of the
organizing principles of our system of government”). Unsurprisingly,
the court cites no authority that would support its novel construction
of section 9 by providing that certain individuals lack Attainder Clause
or Ex Post Facto Clause rights.
4
For this point, the court quotes, without context, from H.P.
Hood & Sons, Inc. v. Du Mond, 336 U.S. 525 (1949), see Op. at 22.
In that case, the Supreme Court emphasized that the Bill of Rights
limited the powers of Congress and did not affect the powers of the
individual states, H.P. Hood & Sons, 336 U.S. at 534, at least until
certain amendments were incorporated after ratification of the
Fourteenth Amendment. This says nothing about the distinction,
relevant here, between individual rights and limitations on Congress.
 7

to have a bill raising revenue that originates in the Senate, see
U.S. CONST. art. I, § 7, cl. 1; see also Schlesinger v. Reservists
Comm. to Stop the War, 418 U.S. 208, 224 (1974) (finding no
individual right under the Ineligibility Clause).

That the Suspension Clause appears in Article I, section 9,
is not happenstance. In Charles Pinckney’s original proposal,
suspension would have been part of the judiciary provision. It
was moved in September 1789 by the Committee on Style and
Arrangement, which gathered the restrictions on Congress’s
power in one location. See WILLIAM F. DUKER, A
CONSTITUTIONAL HISTORY OF HABEAS CORPUS 128-32 (1980);
2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 596
(Max Farrand ed., rev. ed. 1966). By the court’s reasoning, the
Framers placed the Suspension Clause in Article I merely
because there were no similar individual rights to accompany it.
It is implausible that the Framers would have viewed the
Suspension Clause, as the court implies, as a budding Bill of
Rights but would not have assigned the provision its own section
of the Constitution, much as they did with the only crime
specified in the document, treason, which appears alone in
Article III, section 3. Instead, the court must treat the
Suspension Clause’s placement in Article I, section 9, as a
conscious determination of a limit on Congress’s powers. The
Supreme Court has found similar meaning in the placement of
constitutional clauses ever since McCulloch v. Maryland, 17
U.S. (4 Wheat.) 316, 419-21 (1819) (Necessary and Proper
Clause); see also, e.g., Skinner v. Mid-America Pipeline Co.,
490 U.S. 212, 220-21 (1989) (Taxing Clause).

The court also alludes to the idea that the Suspension
Clause cannot apply to foreign military conflicts because the
exception extends only to cases of “Rebellion or Invasion.” Op.
at 21 n.11. The Framers understood that the privilege of the writ
was of such great significance that its suspension should be
 8

strictly limited to circumstances where the peace and security of
the Nation were jeopardized. Only after considering alternative
proposals authorizing suspension “on the most urgent
occasions” or forbidding suspension outright did the Framers
agree to a narrow exception upon a finding of rebellion or
invasion. See 2 THE RECORDS OF THE FEDERAL CONVENTION OF
1787, supra, at 438. Indeed, it would be curious if the Framers
were implicitly sanctioning Executive-ordered detention abroad
without judicial review by limiting suspension — and by the
court’s reasoning therefore limiting habeas corpus — to
domestic events. To the contrary, as Alexander Hamilton
foresaw in The Federalist No. 84, invoking William Blackstone,

To bereave a man of life (says he), or by violence to
confiscate his estate, without accusation or trial, would
be so gross and notorious an act of despotism, as must
at once convey the alarm of tyranny throughout the
whole nation; but confinement of the person, by
secretly hurrying him to jail, where his sufferings are
unknown or forgotten, is a less public, a less striking,
and therefore a more dangerous engine of arbitrary
government.

THE FEDERALIST NO. 84, at 468 (E.H. Scott ed. 1898) (quoting
WILLIAM BLACKSTONE, 1 COMMENTARIES *131-32); see also Ex
parte Milligan, 71 U.S. (4 Wall.) 2, 125 (1866).

B.
This court would have jurisdiction to address the detainees’
claims but for Congress’s enactment of the MCA. In Rasul, 542
U.S. at 483-84, the Supreme Court held that the federal district
courts had jurisdiction to hear petitions for writs of habeas
corpus filed pursuant to 28 U.S.C. § 2241 by persons detained
as “enemy combatants” by the United States at the Guantanamo
Bay Naval Base. At the time, the habeas statute provided, in
 9

relevant part, that upon the filing of such a petition, the district
court would promptly determine whether the petitioner was
being held under the laws, Constitution, and treaties of the
United States, utilizing the common-law procedure of a return
filed by the government and a traverse filed by the petitioner.
See 28 U.S.C. §§ 2242-2253. After Rasul, Congress enacted the
DTA, which purported to deprive the federal courts of habeas
jurisdiction. DTA § 1005(e), 118 Stat. at 2741-43. The
Supreme Court held in Hamdan v. Rumsfeld, 126 S. Ct. 2749,
2764-69 (2006), however, that the DTA does not apply
retroactively, and so it does not disturb this court’s jurisdiction
over the instant appeals, which were already pending when the
DTA became law.

As for the MCA, I concur in the court’s conclusion that,
notwithstanding the requirements that Congress speak clearly
when it intends its action to apply retroactively, see Landgraf v.
USI Film Prods., 511 U.S. 244, 265-73 (1994), and when
withdrawing habeas jurisdiction from the courts, see INS v. St.
Cyr, 533 U.S. 289, 299 (2001); Ex parte Yerger, 75 U.S. (8
Wall.) 85, 102 (1869), Congress sought in the MCA to revoke
all federal jurisdiction retroactively as to the habeas petitions of
detainees held at Guantanamo Bay. See Op. at 9-12. I do not
join the court’s reasoning. The court stresses Congress’s
emphasis that the provision setting the effective date for the
jurisdictional change “shall apply to all cases, without
exception.” However, the absence of exceptions does not
establish the scope of the provision itself. The entire provision
reads:

(b)—EFFECTIVE DATE. The amendment made by
subsection (a) shall take effect on the date of the
enactment of this Act, and shall apply to all cases,
without exception, pending on or after the date of the
enactment of this Act which relate to any aspect of the
 10

detention, transfer, treatment, trial, or conditions of
detention of an alien detained by the United States
since September 11, 2001.

MCA § 7(b), 120 Stat. at 2636 (emphasis added). Subsection
(a), in turn, amends 28 U.S.C. § 2241(e), which confers habeas
jurisdiction on the federal courts. New section 2241(e)(1)
repeals “jurisdiction to hear or consider an application for a writ
of habeas corpus.” New section 2241(e)(2) repeals “jurisdiction
to hear or consider any other action . . . relating to any aspect of
the detention, transfer, treatment, trial, or conditions of
confinement.”

The detainees suggest that by singling out habeas corpus in
§ 2241(e)(1) and by failing to do so in section 7(b) — and
instead repeating the same list (“detention, transfer, treatment,
trial, or conditions of confinement”) that appears in § 2241(e)(2)
— Congress was expressing its intent to make the MCA
retroactive only as to § 2241(e)(2). This argument hinges on
their view that a petition for a writ of habeas corpus is not
“relating to any aspect of . . . detention.” But, by the plain text
of section 7, it is clear that the detainees suggest ambiguity
where there is none. As the court notes, see Op. at 11 n. 4,
whereas § 2241(e)(1) refers to habeas corpus, § 2241(e)(2) deals
with “any other action . . . relating to any aspect of the
detention, transfer, treatment, trial, or conditions of
confinement.” (Emphasis added). By omitting the word “other”
in section 7(b), and by cross-referencing section 7(a) in its
entirety, Congress signaled its intent for the retroactivity
provision to apply to habeas corpus cases. This conclusion has
nothing to do with Congress’s emphasis that there are no
exceptions and everything to do with the intent it expressed
through the substantive provisions of the statute.
 11

C.
The question, then, is whether by attempting to eliminate all
federal court jurisdiction to consider petitions for writs of habeas
corpus, Congress has overstepped the boundary established by
the Suspension Clause. The Supreme Court has stated on
several occasions that “at the absolute minimum, the Suspension
Clause protects the writ ‘as it existed in 1789.’” St. Cyr, 533
U.S. at 301 (quoting Felker v. Turpin, 518 U.S. 651, 663-64
(1996)) (emphasis added). Therefore, at least insofar as habeas
corpus exists and existed in 1789, Congress cannot suspend the
writ without providing an adequate alternative except in the
narrow exception specified in the Constitution.5 This pro-
scription applies equally to removing the writ itself and to
removing all jurisdiction to issue the writ. See United States v.
Klein, 80 U.S. (13 Wall.) 128 (1872). See generally ERWIN
CHEMERINSKY, FEDERAL JURISDICTION § 3.2 (4th ed. 2003).

5
It is unnecessary to resolve the question of whether the
Constitution provides for an affirmative right to habeas corpus —
either through the Suspension Clause, the Fifth Amendment guarantee
of due process, or the Sixth Amendment — or presumed the continued
vitality of this “writ antecedent to statute,” Williams v. Kaiser, 323
U.S. 471, 484 n.2 (1945) (internal quotation marks omitted). Because
the Supreme Court in Rasul held that the writ existed in 2004 and that
there was, therefore, something to suspend, it is sufficient to assess
whether the writ sought here existed in 1789. Given my conclusion,
see infra Part C.1, it is also unnecessary to resolve the question of
whether the Suspension Clause protects the writ of habeas corpus as
it has developed since 1789. Compare St. Cyr, 533 U.S. at 304-05,
and LaGuerre v. Reno, 164 F.3d 1035, 1038 (7th Cir. 1998), with
Felker, 518 U.S. at 663-64, and Gerald L. Neuman, Habeas Corpus,
Executive Detention, and the Removal of Aliens, 98 COLUM. L. REV.
961, 970 (1998). The court oddly chooses to ignore the issue by
truncating its reference to St. Cyr, without comment, and omitting the
qualifier “at the absolute minimum.” See Op. at 14.
 12

1.
Assessing the state of the law in 1789 is no trivial feat, and
the court’s analysis today demonstrates how quickly a few
missteps can obscure history. In conducting its historical
review, the court emphasizes that no English cases predating
1789 award the relief that the detainees seek in their petitions.
Op. at 15-17. “The short of the matter,” the court concludes, is
that “habeas corpus would not have been available in 1789 to
aliens without presence or property within the United States.”
Op. at 17. But this misses the mark. There may well be no case
at common law in which a court exercises jurisdiction over the
habeas corpus claim of an alien from a friendly nation, who may
himself be an enemy, who is captured abroad and held outside
the sovereign territory of England but within the Crown’s
exclusive control without being charged with a crime or
violation of the Laws of War. On the other hand, the court can
point to no case where an English court has refused to exercise
habeas jurisdiction because the enemy being held, while under
the control of the Crown, was not within the Crown’s
dominions.6 The paucity of direct precedent is a consequence of

6
The court’s assertion that “extraterritorial detention was
not unknown in Eighteenth Century England,” Op. at 18 n.9, is of no
moment. The court references the 1667 impeachment of the Earl of
Clarendon, Lord High Chancellor of England. See id. at 16, 18 n.9.
Clarendon was accused of sending enemies to faraway lands to
deprive them of effective legal process. The court makes the
unsupported inference that habeas corpus was therefore unavailable
abroad. Nothing in the Clarendon affair suggests that habeas corpus
was sought and refused. Instead, as remains the case today, legal
process can be evaded when prisoners are detained without access to
the courts. That the detainees at Guantanamo were able to procure
next friends and attorneys to pursue their petitions whereas
seventeenth-century Englishmen would have found this difficult, if not
impossible, says nothing about the availability of the writ at common
law. The court’s obfuscation as to the distinction between
 13

the unique confluence of events that defines the situation of
these detainees and not a commentary on the reach of the writ at
common law.

The question is whether by the process of inference from
similar, if not identical, situations the reach of the writ at
common law would have extended to the detainees’ petitions.
At common law, we know that “the reach of the writ depended
not on formal notions of territorial sovereignty, but rather on the
practical question of ‘the exact extent and nature of the
jurisdiction or dominion exercised in fact by the Crown.’”
Rasul, 542 U.S. at 482 (quoting Ex parte Mwenya, [1960] 1 Q.B.
241, 303 (C.A.) (Lord Evershed, M.R.)). We also know that the
writ extended not only to citizens of the realm, but to aliens, see
id. at 481 & n.11, even in wartime, see id. at 474-75; Case of
Three Spanish Sailors, 2 Black. W. 1324, 96 Eng. Rep. 775
(C.P. 1779); Rex v. Schiever, 2 Burr. 765, 97 Eng. Rep. 551
(K.B. 1759). A War of 1812-era case in which Chief Justice
John Marshall granted a habeas writ to a British subject
establishes that even conceded enemies of the United States
could test in its courts detention that they claimed was
unauthorized. See Gerald L. Neuman & Charles F. Hobson,
John Marshall and the Enemy Alien: A Case Missing from the
Canon, 9 GREEN BAG 2D 39 (2005) (reporting United States v.
Williams (C.C.D. Va. Dec. 4, 1813)).

To draw the ultimate conclusion as to whether the writ at
common law would have extended to aliens under the control (if
not within the sovereign territory) of the Crown requires piecing
together the considerable circumstantial evidence, a step that the
court is unwilling to take. Analysis of one of these cases, the
1759 English case of Rex v. Schiever, shows just how small this
final inference is. Barnard Schiever was the subject of a neutral

impracticality and unavailability is further addressed infra.
 14

nation (Sweden), who was detained by the Crown when England
was at war with France. Schiever, 2 Burr. at 765, 97 Eng. Rep.
at 551. He claimed that his classification as a “prisoner of war”
was factually inaccurate, because he “was desirous of entering
into the service of the merchants of England” until he was seized
on the high seas by a French privateer, which in turn was
captured by the British Navy. Id. In an affidavit, he swore that
his French captor “detained him[] against his will and
inclination . . . and treated him with so much severity[] that [his
captor] would not suffer him to go on shore when in port . . . but
closely confined him to duty [on board the ship].” Id. at 765-66,
97 Eng. Rep. at 551. The habeas court ultimately determined,
on the basis of Schiever’s own testimony, that he was properly
categorized and thus lawfully detained. Id. at 766, 97 Eng. Rep.
at 551-52.

The court discounts Schiever because, after England
captured the French privateer while en route to Norway, it was
carried into Liverpool, England, where Schiever was held in the
town jail. Id., 97 Eng. Rep. at 551. As such, the case did not
involve “an alien outside the territory of the sovereign.” Op. at
14-15. However, Schiever surely was not voluntarily brought
into England, so his mere presence conferred no additional
rights. As the Supreme Court observed in Verdugo-Urquidez,
“involuntary [presence] is not the sort to indicate any substantial
connection with our country.” 494 U.S. at 271. Any gap
between Schiever and the detainees’ detention at Guantanamo
Bay is thus exceedingly narrow.

This court need not make the final inference. It has already
been made for us. In Rasul, the Supreme Court stated that
“[a]pplication of the habeas statute to persons detained at the
[Guantanamo] base is consistent with the historical reach of the
writ of habeas corpus.” 542 U.S. at 481. By reaching a contrary
conclusion, the court ignores the settled principle that “carefully
 15

considered language of the Supreme Court, even if technically
dictum, generally must be treated as authoritative.” Sierra Club
v. EPA, 322 F.3d 718, 724 (D.C. Cir. 2003) (quoting United
States v. Oakar, 111 F.3d 146, 153 (D.C. Cir. 1997)) (internal
quotation marks omitted). Even setting aside this principle, the
court offers no convincing analysis to compel the contrary
conclusion. The court makes three assertions: First, Lord
Mansfield’s opinion in Rex v. Cowle, 2 Burr. 834, 97 Eng. Rep.
587 (K.B. 1759), disavows the right claimed by the detainees.
Second, it would have been impractical for English courts to
extend the writ extraterritorially. Third, Johnson v.
Eisentrager, 339 U.S. 763 (1949), is controlling. None of these
assertions withstands scrutiny.

In Cowle, Lord Mansfield wrote that “[t]here is no doubt as
to the power of this Court; where the place is under the
subjection of the Crown of England; the only question is, as to
the propriety.” 2 Burr. at 856, 97 Eng. Rep. at 599. He noted
thereafter, by way of qualification, that the writ would not
extend “[t]o foreign dominions, which belong to a prince who
succeeds to the throne of England.” Id., 97 Eng. Rep. at 599-
600. Through the use of ellipsis marks, the court excises the
qualification and concludes that the writ does not extend “[t]o
foreign dominions.” Op. at 16. This masks two problems in its
analysis. A “foreign dominion” is not a foreign country, as the
court’s reasoning implies, but rather “a country which at some
time formed part of the dominions of a foreign state or potentate,
but which by conquest or cession has become a part of the
dominions of the Crown of England.” Ex parte Brown, 5 B. &
S. 280, 122 Eng. Rep. 835 (K.B. 1864). And the exception
noted in Lord Mansfield’s qualification has nothing to do with
extraterritoriality: Instead, habeas from mainland courts was
unnecessary for territories like Scotland that were controlled by
princes in the line of succession because they had independent
court systems. See WILLIAM BLACKSTONE, 1 COMMENTARIES
 16

*95-98; James E. Pfander, The Limits of Habeas Jurisdiction
and the Global War on Terror, 91 CORNELL L. REV. 497, 512-
13 (2006). In the modern-day parallel, where a suitable
alternative for habeas exists, the writ need not extend. See 2
ROBERT CHAMBERS, A COURSE OF LECTURES ON THE ENGLISH
LAW DELIVERED AT OXFORD 1767-1773, at 8 (Thomas M.
Curley, ed., 1986) (quoting Cowle as indicating that,
notwithstanding the power to issue the writ “in Guernsey,
Jersey, Minorca, or the plantations,” courts would not think it
“proper to interpose” because “the most usual way is to
complain to the king in Council, the supreme court of appeal
from those provincial governments”); see also infra Part C.2.
The relationship between England and principalities was the
only instance where it was “found necessary to restrict the scope
of the writ.” 9 WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH
LAW 124 (1938). Cowle, by its plain language, then, must be
read as recognizing that the writ of habeas corpus ran even to
places that were “no part of the realm,” where the Crown’s other
writs did not run, nor did its laws apply. 2 Burr. at 835-36, 853-
55, 97 Eng. Rep. at 587-88, 598-99. The Supreme Court has
adopted this logical reading. See Rasul, 542 U.S. at 481-82; see
also Mitchell B. Malachowski, From Gitmo with Love:
Redefining Habeas Corpus Jurisdiction in the Wake of the
Enemy Combatant Cases of 2004, 52 NAVAL L. REV. 118, 122-
23 (2005).7

7
The significance of a 1794 opinion by the U.S. Attorney
General, see Op. at 15, which expresses the view that the writ should
issue to the foreign commander of a foreign ship-of-war in U.S. ports,
reasoning that the foreign ship has “no exemption from the jurisdiction
of the country into which he comes,” 1 Op. Att’y Gen. 47 (1794), is
unclear. Nor is it clear what point the court is making by referencing
In re Ning Yi-Ching, 56 T.L.R. 3 (K.B. Vacation Ct. 1939). In Rasul,
the Supreme Court noted that Ning Yi-Ching “made quite clear that
‘the remedy of habeas corpus was not confined to British subjects,’
 17

The court next disposes of Cowle and the historical record
by suggesting that the “power” to issue the writ acknowledged
by Lord Mansfield can be explained by the Habeas Corpus Act
of 1679, 31 Car. 2, c. 2. See Op. at 16. The Supreme Court has
stated that the Habeas Corpus Act “enforces the common law,”
Ex parte Watkins, 28 U.S. (3 Pet.) 193, 202 (1730), thus hardly
suggesting that the “power” recognized by Lord Mansfield was
statutory and not included within the 1789 scope of the
common-law writ. To the extent that the court makes the
curious argument that the Habeas Corpus Act would have made
it too impractical to produce prisoners if applied
extraterritorially because it imposed fines on jailers who did not
quickly produce the body, Op. at 16-17, the court cites no
precedent that suggests that “practical problems” eviscerate “the
precious safeguard of personal liberty [for which] there is no
higher duty than to maintain it unimpaired,” Bowen v. Johnston,
306 U.S. 19, 26 (1939). This line of reasoning employed by the
court fails for two main reasons:

First, the Habeas Corpus Act of 1679 was expressly limited
to those who “have beene committed for criminall or supposed
criminall Matters.” 31 Car. 2, c. 2, § 1. Hence, the burden of
expediency imposed by the Act could scarcely have prevented
common-law courts from exercising habeas jurisdiction in non-
criminal matters such as the petitions in these appeals. Statutory
habeas in English courts did not extend to non-criminal
detention until the Habeas Corpus Act of 1816, 56 Geo. 3, c.

but would extend to ‘any person . . . detained’ within the reach of the
writ,” 542 U.S. at 483 n.13 (quoting Ning Yi-Ching, 56 T.L.R. at 5),
and that the case does not support a “narrow view of the territorial
reach of the writ,” id. Here, the court provides a parenthetical
quotation for Ning Yi-Ching that recalls a dissenting position from a
prior case that was later repudiated. See Rasul, 542 U.S. at 483 n.14;
Mwenya, [1960] 1 Q.B. at 295 (Lord Evershed, M.R.).
 18

100, although courts continued to exercise their common-law
powers in the interim. See 2 CHAMBERS, supra, at 11; 9
HOLDSWORTH, supra, at 121.

Second, there is ample evidence that the writ did issue to
faraway lands. In Ex parte Anderson, 3 El. & El. 487, 121 Eng.
Rep. 525 (Q.B. 1861), superseded by statute, 25 & 26 Vict., c.
20, § 1, the Court of Queen’s Bench exercised its common-law
powers to issue a writ of habeas corpus to Quebec in Upper
Canada after expressly acknowledging that it was “sensible of
the inconvenience which may result from such a step.” Id. at
494-95, 121 Eng. Rep. at 527-28; see also Brown, 5 B. & S. 280,
122 Eng. Rep. 835 (issuing a writ to the Isle of Man in the sea
between England and Ireland). English common-law courts also
recognized the power to issue habeas corpus in India, even to
non-subjects, and did so notwithstanding competition from local
courts, well before England recognized its sovereignty in India.
See B.N. PANDEY, THE INTRODUCTION OF ENGLISH LAW INTO
INDIA 112, 149, 151 (1967); see also Rex v. Mitter, Morton 210
(Sup. Ct., Calcutta 1781), reprinted in 1 THE INDIAN DECISIONS
(OLD SERIES) 1008 (T.A. Venkasawmy Row ed., 1911); Rex v.
Hastings, Morton 206, 208-09 (Sup. Ct., Calcutta 1775) (opinion
of Chambers, J.), reprinted in 1 THE INDIAN DECISIONS, supra,
at 1005, 1007; id. at 209 (opinion of Impey, C.J.); Kal Raustiala,
The Geography of Justice, 73 FORDHAM L. REV. 2501, 2530
n.156 (2005).

Finally, the court reasons that Eisentrager requires the
conclusion that there is no constitutional right to habeas for
those in the detainees’ posture. See Op. at 17-18. In
Eisentrager, the detainees claimed that they were “entitled, as a
constitutional right, to sue in some court of the United States for
a writ of habeas corpus.” 339 U.S. at 777. Thus Eisentrager
 19

presented a far different question than confronts this court.8 The
detainees do not here contend that the Constitution accords them
a positive right to the writ but rather that the Suspension Clause
restricts Congress’s power to eliminate a preexisting statutory
right. To answer that question does not entail looking to the
extent of the detainees’ ties to the United States but rather
requires understanding the scope of the writ of habeas corpus at
common law in 1789. The court’s reliance on Eisentrager is
misplaced.

2.
This brings me to the question of whether, absent the writ,
Congress has provided an adequate alternative procedure for
challenging detention. If it so chooses, Congress may replace
the privilege of habeas corpus with a commensurate procedure
without overreaching its constitutional ambit. However, as the
Supreme Court has cautioned, if a subject of Executive detention
“were subject to any substantial procedural hurdles which
ma[k]e his remedy . . . less swift and imperative than federal
habeas corpus, the gravest constitutional doubts would be
engendered [under the Suspension Clause].” Sanders v. United
States, 373 U.S. 1, 14 (1963).

The Supreme Court has, on three occasions, found a
replacement to habeas corpus to be adequate. In United States
v. Hayman, 342 U.S. 205 (1952), the Court reviewed 42 U.S.C.
§ 2255, which extinguished the writ as to those convicted of
federal crimes before Article III judges in exchange for recourse
before the sentencing court. Prior to the enactment of section
2255, the writ was available in the jurisdiction of detention, not
the jurisdiction of conviction. The Court concluded that this

8
To the extent that the court relies on Eisentrager as proof
of its historical theory, the Supreme Court rejected that approach in
Rasul, see 542 U.S. at 475-79.
 20

substitute was acceptable in part because the traditional habeas
remedy remained available by statute where section 2255 proved
“inadequate or ineffective.” Id. at 223. The Court came to a
similar conclusion in Swain v. Pressley, 430 U.S. 372 (1977),
reviewing a statute with a similar “inadequate or ineffective”
escape hatch, id. at 381 (reviewing D.C. CODE § 23-110). In that
case, the Court concluded that a procedure for hearing habeas in
the District of Columbia’s courts, as distinct from the federal
courts, was an adequate alternative. Finally, in Felker, 518 U.S.
at 663-64, the Court found no Suspension Clause violation in the
restrictions on successive petitions for the writ under the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
No. 104-132, 110 Stat. 1217, concluding that these were “well
within the compass of [the] evolutionary process” of the habeas
corpus protocol for abuse of the writ and did not impose upon
the writ itself.

These cases provide little cover for the government. As the
Supreme Court has stated, “[a]t its historical core, the writ of
habeas corpus has served as a means of reviewing the legality of
Executive detention, and it is in that context that its protections
have been strongest.” St. Cyr, 533 U.S. at 301. With this in
mind, the government is mistaken in contending that the
combatant status review tribunals (“CSRTs”) established by the
DTA suitably test the legitimacy of Executive detention. Far
from merely adjusting the mechanism for vindicating the habeas
right, the DTA imposes a series of hurdles while saddling each
Guantanamo detainee with an assortment of handicaps that make
the obstacles insurmountable.

At the core of the Great Writ is the ability to “inquire into
illegal detention with a view to an order releasing the
petitioner.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)
(internal quotation marks and alteration omitted). An
examination of the CSRT procedure and this court’s CSRT
 21

review powers reveals that these alternatives are neither
adequate to test whether detention is unlawful nor directed
toward releasing those who are unlawfully held.

“Petitioners in habeas corpus proceedings . . . are entitled to
careful consideration and plenary processing of their claims
including full opportunity for the presentation of the relevant
facts.” Harris v. Nelson, 394 U.S. 286, 298 (1969). The
offerings of CSRTs fall far short of this mark. Under the
common law, when a detainee files a habeas petition, the burden
shifts to the government to justify the detention in its return of
the writ. When not facing an imminent trial,9 the detainee then
must be afforded an opportunity to traverse the writ, explaining
why the grounds for detention are inadequate in fact or in law.
See, e.g., 28 U.S.C. §§ 2243, 2248; Bollman, 8 U.S. (4 Cranch)
at 125; Ex parte Beeching, 4 B. & C. 137, 107 Eng. Rep. 1010
(K.B. 1825); Schiever, 2 Burr. 765, 97 Eng. Rep. 551; cf.
Hamdi, 542 U.S. at 537-38 (plurality opinion). A CSRT works
quite differently. See Order Establishing Combatant Status
Review Tribunal (July 7, 2004), available at
http://www.defenselink.mil/news/Jul2004/
d20040707review.pdf. The detainee bears the burden of coming
forward with evidence explaining why he should not be
detained. The detainee need not be informed of the basis for his
detention (which may be classified), need not be allowed to

9
At common law, where criminal charges were pending, a
prisoner filing a habeas writ would be remanded, although habeas
incorporated a speedy-trial guarantee. See, e.g., Ex parte Beeching, 4
B. & C. 137, 107 Eng. Rep. 1010 (K.B. 1825); Bushell’s Case, Vaugh.
135, 124 Eng. Rep. 1006, 1009-10 (C.P. 1670). But see MCA §
3(a)(1), 120 Stat. at 2602 (codified at 10 U.S.C. § 948b(d)(A)). Once
there was “a judgment of conviction rendered by a court of general
criminal jurisdiction,” release under the writ was unavailable.
Hayman, 342 U.S. at 210-11.
 22

introduce rebuttal evidence (which is sometimes deemed by the
CSRT too impractical to acquire), and must proceed without the
benefit of his own counsel.10 Moreover, these proceedings occur
before a board of military judges subject to command influence,
see Hamdan, 126 S. Ct. at 2804, 2806 (Kennedy, J., concurring
in part); Weiss v. United States, 510 U.S. 163, 179-80 (1994); cf.
10 U.S.C. § 837(a). Insofar as each of these practices impedes
the process of determining the true facts underlying the
lawfulness of the challenged detention, they are inimical to the
nature of habeas review.

This court’s review of CSRT determinations, see DTA §
1005(e)(2), 119 Stat. at 2742, is not designed to cure these
inadequacies. This court may review only the record developed
by the CSRT to assess whether the CSRT has complied with its
own standards. Because a detainee still has no means to present
evidence rebutting the government’s case — even assuming the
detainee could learn of its contents — assessing whether the
government has more evidence in its favor than the detainee is
hardly the proper antidote. The fact that this court also may
consider whether the CSRT process “is consistent with the
Constitution and laws of the United States,” DTA §
1005(e)(2)(C)(ii), 119 Stat. at 2742, does not obviate the need
for habeas. Whereas a cognizable constitutional, statutory, or
treaty violation could defeat the lawfulness of the government’s
cause for detention, the writ issues whenever the Executive lacks
a lawful justification for continued detention. The provisions of
DTA § 1005(e)(2) cannot be reconciled with the purpose of

10
With a few possible exceptions, the Guantanamo detainees
before the federal courts are unlikely to be fluent in English or to be
familiar with legal procedures and, as their detentions far from home
and cut off from their families have been lengthy, they are likely ill
prepared to be able to obtain evidence to support their claims that they
are not enemies of the United States.
 23

habeas corpus, as they handcuff attempts to combat “the great
engines of judicial despotism,” THE FEDERALIST NO. 83, at 456
(Alexander Hamilton) (E.H. Scott ed. 1898).

Additionally, and more significant still, continued detention
may be justified by a CSRT on the basis of evidence resulting
from torture. Testimony procured by coercion is notoriously
unreliable and unspeakably inhumane. See generally
INTELLIGENCE SCIENCE BOARD, EDUCING INFORMATION:
INTERROGATION: SCIENCE AND ART (2006), available at
http://www.fas.org/irp/dni/educing.pdf. This basic point has
long been recognized by the common law, which “has regarded
torture and its fruits with abhorrence for over 500 years.” A. v.
Sec’y of State, [2006] 2 A.C. 221 ¶ 51 (H.L.) (appeal taken from
Eng.) (Bingham, L.); see also Hamdan, 126 S. Ct. at 2786;
Jackson v. Denno, 378 U.S. 368, 386 (1964); Proceedings
Against Felton, 3 Howell’s St. Tr. 367, 371 (1628) (Eng.); JOHN
H. LANGBEIN, TORTURE AND THE LAW OF PROOF 73 (1977)
(“Already in the fifteenth and sixteenth centuries, . . . the
celebrated Renaissance ‘panegyrists’ of English law were . . .
extolling the absence of torture in England.”) (footnote omitted).
The DTA implicitly endorses holding detainees on the basis of
such evidence by including an anti-torture provision that applies
only to future CSRTs. DTA § 1005(b)(2), 119 Stat. at 2741.
Even for these future proceedings, however, the Secretary of
Defense is required only to develop procedures to assess
whether evidence obtained by torture is probative, not to require
its exclusion. Id. § 1005(b)(1), 119 Stat. at 2741.

Even if the CSRT protocol were capable of assessing
whether a detainee was unlawfully held and entitled to be
released, it is not an adequate substitute for the habeas writ
because this remedy is not guaranteed. Upon concluding that
detention is unjustified, a habeas court “can only direct [the
prisoner] to be discharged.” Bollman, 8 U.S. (4 Cranch) at 136;
 24

see also 2 STORY, supra, § 1339. But neither the DTA nor the
MCA require this, and a recent report studying CSRT records
shows that when at least three detainees were found by CSRTs
not to be enemy combatants, they were subjected to a second,
and in one case a third, CSRT proceeding until they were finally
found to be properly classified as enemy combatants. Mark
Denbeaux et al., No-Hearing Hearings: CSRT: The Modern
Habeas Corpus?, at 37-39 (2006), http://law.shu.edu/news/
final_no_hearing_hearings_report.pdf.

3.
Therefore, because Congress in enacting the MCA has
revoked the privilege of the writ of habeas corpus where it
would have issued under the common law in 1789, without
providing an adequate alternative, the MCA is void unless
Congress’s action fits within the exception in the Suspension
Clause: Congress may suspend the writ “when in Cases of
Rebellion or Invasion the public Safety may require it.” U.S.
CONST. art. I, § 9, cl. 2. However, Congress has not invoked
this power.

Suspension has been an exceedingly rare event in the
history of the United States. On only four occasions has
Congress seen fit to suspend the writ. These examples follow a
clear pattern: Each suspension has made specific reference to a
state of “Rebellion” or “Invasion” and each suspension was
limited to the duration of that necessity. In 1863, recognizing
“the present rebellion,” Congress authorized President Lincoln
during the Civil War “whenever, in his judgment, the public
safety may require it, . . . to suspend the writ of habeas corpus.”
Act of Mar. 3, 1863, ch. 81, § 1, 12 Stat. 755, 755. As a result,
no writ was to issue “so long as said suspension by the President
shall remain in force, and said rebellion continue.” Id. In the
Ku Klux Klan Act of 1871, Congress agreed to authorize
suspension whenever “the unlawful combinations named [in the
 25

statute] shall be organized and armed, and so numerous and
powerful as to be able, by violence, to either overthrow or set at
defiance the constituted authorities of such State, and of the
United States within such State,” finding that these
circumstances “shall be deemed a rebellion against the
government of the United States.” Act of Apr. 20, 1871, ch. 22,
§ 4, 17 Stat. 13, 14-15. Suspension was also authorized “when
in cases of rebellion, insurrection, or invasion the public safety
may require it” in two territories of the United States: the
Philippines, Act of July 1, 1902, ch. 1369, § 5, 32 Stat. 691, 692,
and Hawaii, Hawaiian Organic Act, ch. 339, § 67, 31 Stat. 141,
153 (1900); see Duncan v. Kahanamoku, 327 U.S. 304, 307-08
(1946). See also DUKER, supra, at 149, 178 n.190.

Because the MCA contains neither of these hallmarks of
suspension, and because there is no indication that Congress
sought to avail itself of the exception in the Suspension Clause,
its attempt to revoke federal jurisdiction that the Supreme Court
held to exist exceeds the powers of Congress. The MCA
therefore has no effect on the jurisdiction of the federal courts to
consider these petitions and their related appeals.

II.

In In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443
(D.D.C. 2005), Judge Joyce Hens Green addressed eleven
coordinated habeas cases involving 56 aliens being detained by
the United States as “enemy combatants” at Guantanamo Bay,
id. at 445. These detainees are citizens of friendly nations —
Australia, Bahrain, Canada, Kuwait, Libya, Turkey, the United
Kingdom, and Yemen — who were seized in Afghanistan,
Bosnia and Herzegovina, The Gambia, Pakistan, Thailand, and
Zambia. Each detainee maintains that he was wrongly classified
as an “enemy combatant.” Denying in part the government’s
motion to dismiss the petitions, the district court ruled:
 26

[T]he petitioners have stated valid claims under the
Fifth Amendment to the United States Constitution
and . . . the procedures implemented by the government
to confirm that the petitioners are “enemy combatants”
subject to indefinite detention violate the petitioners’
rights to due process of law.

Id. at 445. The district court further ruled that the Taliban but
not the al Qaeda detainees were entitled to the protections of the
Third and Fourth Geneva Conventions. Id. at 478-80.

In Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005),
Judge Richard J. Leon considered the habeas petitions of five
Algerian-Bosnian citizens and one Algerian citizen with
permanent Bosnian residency. They were arrested by Bosnian
police in 2001 on suspicion of plotting to attack the United
States and British embassies in Sarajevo. After the Supreme
Court of the Federation of Bosnia and Herzegovina ordered the
six men to be released in January 2002,11 they were seized by
United States forces and transported to Guantanamo Bay. The
Khalid decision also covers the separate case of a French citizen
seized in Pakistan and transported to Guantanamo Bay.
Rejecting the petitioners’ claim that their detention is
unjustified, the district court ruled that “no viable legal theory
exists by which [the district court] could issue a writ of habeas
corpus under” the circumstances presented, id. at 314, noting the
President’s powers under Article II, Congress’s Authorization
for the Use of Military Force (“AUMF”), and the Order on
Detention (Nov. 13, 2001), see id. at 317-20. The district court
granted the government’s motion and dismissed the petitions.
Id. at 316.

11
See Supreme Court of the Federation of Bosnia and
Herzegovina, Sarajevo, Jan. 17, 2003, Ki-1001/01.
 27

The fundamental question presented by a petition for a writ
of habeas corpus is whether Executive detention is lawful. A far
more difficult question is what serves to justify Executive
detention under the law. At the margin, the precise
constitutional bounds of Executive authority are unclear, see
Hamdan, 126 S. Ct. at 2773-74; id. at 2786 (citing Ex parte
Quirin, 317 U.S. 1, 28 (1942)), and the Executive detention at
issue is the product of a unique situation in our history. Unlike
the uniformed combat that is contemplated by the laws of war,
see generally WILLIAM WINTHROP, MILITARY LAW AND
PRECEDENTS (2d ed. 1920), the Geneva Conventions, e.g.,
Geneva Convention Relative to the Treatment of Prisoners of
War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, and the
Constitution, see U.S. CONST. art. I, § 8, cl. 11, the United States
confronts a stateless enemy in the war on terror that is difficult
to identify and widely dispersed. See Hamdi, 519 U.S. at 519-
20.

The parties recite in their several briefs the substantial
competing interests of individual liberty and national security
that are at stake, much as did the Supreme Court in Hamdi, 542
U.S. at 529-32 (plurality opinion); see id. at 544-45 (Souter, J.,
joined by Ginsburg, J., concurring in part, dissenting in part, and
concurring in the judgment). In Hamdi, the plurality acknow-
ledged that “core strategic matters of warmaking belong in the
hands of those who are best positioned and most politically
accountable for making them.” Id. at 531. At the same time, it
acknowledged that for Hamdi “detention could last for the rest
of his life.” Id. at 520. Although Hamdi was a United States
citizen, the premise underlying the conclusion that there is a
role for the judiciary, id. at 532-33, was that “history and
common sense teach us that an unchecked system of detention
carries the potential to become a means for oppression and abuse
of others who do not present that sort of threat,” id. at 530. In
short, the nature of the conflict makes true enemies of the United
 28

States more troublesome. At the same time, the risk of wrongful
detention of mere bystanders is acute, particularly where, as
here, the Executive detains individuals without trial.

Parsing the role of the judiciary in this context is arduous.
The power of the President is at its zenith, after all, when the
President acts in the conduct of foreign affairs with the support
of Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 635-38 (1952) (Jackson, J., concurring). Even
assuming the AUMF and the Order on Detention provide such
support for the detentions at issue, still the President’s powers
are not unlimited in wartime. See, e.g., Milligan, 71 U.S. (4
Wall.) at 125. The Founders could have granted plenary power
to the President to confront emergency situations, but they did
not; they could have authorized the suspension of habeas corpus
during any state of war, but they limited suspension to cases of
“Rebellion or Invasion.” U.S. CONST. art. I, § 9, cl. 2; see 2
STORY, supra, § 1342; see also 2 THE RECORDS OF THE
FEDERAL CONVENTION OF 1787, supra, at 341 (proposal of
Charles Pinckney). Even in 1627, at a time when “[a]ll justice
still flowed from the king [and] the courts merely dispensed that
justice,” DUKER, supra, at 44, the idea that a court would
remand a prisoner merely because the Crown so ordered (“per
speciale mandatum Domini Regis”) was deemed to be
inconsistent with the notion of a government under law. See
Darnel’s Case, 3 Howell’s St. Tr. 1, 59 (K.B. 1627); MEADOR,
supra, at 13-19. While judgments of military necessity are
entitled to deference by the courts and while temporary custody
during wartime may be justified in order properly to process
those who have been captured, the Executive has had ample
opportunity during the past five years during which the
detainees have been held at Guantanamo Bay to determine who
is being held and for what reason. See, e.g., Hamdan, 126 S. Ct.
at 2773; cf. Hamdi, 542 U.S. at 521.
 29

Throughout history, courts reviewing the Executive
detention of prisoners have engaged in searching factual review
of the Executive’s claims. In Bollman, the Supreme Court
reviewed a petition of two alleged traitors accused of levying
war against the United States. The petitioners were held in
custody by the marshal but had not yet been charged. 8 U.S. (4
Cranch) at 75-76, 125. After the “testimony on which they were
committed [was] fully examined and attentively considered,” the
Court ordered the prisoners released. Id. at 136-37. The 1759
English case of Rex v. Schiever, discussed supra Part I.C.1, also
shows that habeas courts scrutinized the factual basis for the
detention of even wartime prisoners. In Schiever, the court
reviewed the prisoner’s affidavit and took further testimony
from a witness, who “sw[ore] that Schiever was forced against
his inclination . . . to serve on board [the French privateer].” 2
Burr. at 766, 97 Eng. Rep. at 551. Nonetheless, to the court it
was clear that Schiever had, in fact, fought against England. As
such, “the Court thought this man, upon his own shewing,
clearly a prisoner of war and lawfully detained as such.
Therefore they Denied the motion.” Id., 97 Eng. Rep. at 552
(footnote omitted). Similar themes and factual inquiry appear
in Three Spanish Sailors, 2 Black. W. 1324, 96 Eng. Rep. 775,
in which three alien petitioners submitted affidavits during
wartime but failed to convince the court that they were not
enemies of the Crown, and Goldswain’s Case, 5 Black. W.
1207, 96 Eng. Rep. 711 (C.P. 1778), in which a wrongly
impressed Englishman was released from service during
wartime. See also Beeching, 4 B. & C. 137, 107 Eng. Rep.
1010.

In the early history of the United States, two cases further
suggest that factual review accompanied even writs during
wartime. In United States v. Williams (C.C.D. Va. Dec. 4,
1813), a previously unreported case researched for a recent
essay in The Green Bag, Chief Justice John Marshall, riding
 30

circuit, released an enemy alien from detention by civil
authorities. The Chief Justice concluded that “the regulations
made by the President of the United States respecting alien
enemies [did] not authorize the confinement of the petitioner in
this case.” Neuman & Hobson, supra, at 42 (quoting the circuit
court’s order book). A majority of the Supreme Court of
Pennsylvania, in Lockington’s Case, 1 Brightly’s (N.P.) 269 (Pa.
1813), agreed that alien enemies were entitled to a judgment on
the merits as to whether their detention was justified,12 and
thereafter remanded the prisoners. Id. at 283-84 (Tilghman,
C.J.); id. at 285, 293 (Yeates, J.).

The government maintains that a series of World War II-era
cases undercuts the proposition that habeas review of uncharged
detainees requires a factual assessment. It cites several cases in
which courts have refused to engage in factual review of the
findings of military tribunals imposing sentences under the laws
of war. See, e.g., Eisentrager, 339 U.S. 763; In re Yamashita,
327 U.S. 1 (1945); Quirin, 317 U.S. at 25. There is good reason
to treat differently a petition by an uncharged detainee — who
could be held indefinitely without even the prospect of a trial or
meaningful process — from that of a convicted war criminal.
See Rasul, 542 U.S. at 476; Omar v. Harvey, No. 06-5126, slip
op. at 13 (D.C. Cir. Feb. 9, 2007); see also supra note 9. For
example, in Yamashita, the prisoner petitioned for a writ of
habeas corpus only after a trial before a military tribunal where
his six attorneys defended against 286 government witnesses.
327 U.S. at 5. Quirin involved a military commission, see 317
U.S. at 18-19, where the government presented “overwhelming”
proof that included confessions from the German saboteurs.
PIERCE O’DONNELL, IN TIME OF WAR 152-53, 165-66, 189

12
Prior to Ableman v. Booth, 62 U.S. (21 How.) 506 (1859),
and Tarble’s Case, 80 U.S. (13 Wall.) 397, 411-12 (1872), state courts
regularly issued writs of habeas corpus as to federal prisoners.
 31

(2005). In Eisentrager, 339 U.S. at 766, the military tribunal
conducted a trial lasting months. By contrast, the detainees have
been charged with no crimes, nor are charges pending. The
robustness of the review they have received to date differs by
orders of magnitude from that of the military tribunal cases.13

13
There is also good reason to distinguish between these
detainees’ cases and parallel cases where detainees have been
accorded prisoner-of-war status and the benefits of Army Regulation
190-8, which implements the Third Geneva Convention. These
provisions contemplate the end of hostilities and prisoner exchanges,
id. §§ 3-11, 3-13, and provide for more extensive process for
determining the status of prisoners, id. § 1-6. The regulations further
specify that:

Persons who have been determined by a competent tribunal
not to be entitled to prisoner of war status may not be
executed, imprisoned, or otherwise penalized without further
proceedings to determine what acts they have committed and
what penalty should be imposed. The record of every
Tribunal proceeding resulting in a determination denying
[Enemy Prisoner of War] status shall be reviewed for legal
sufficiency when the record is received at the office of the
Staff Judge Advocate for the convening authority.

Id. § 1-6g. In Hamdi, the Supreme Court recognized that it was
conceivable that procedures similar to Army Regulation 190-8 may
suffice to provide due process to a citizen-detainee. 542 U.S. at 538
(plurality opinion); id. at 550-51 (Souter, J., with whom Ginsburg, J.,
joins, concurring in part, dissenting in part, and concurring in the
judgment). Even assuming that according Guantanamo detainees
rights under Army Regulation 190-8 would provide adequate and
independent factual review of their claims sufficient to satisfy the
dictates of habeas corpus, as well as any treaty obligations that the
detainees are able to enforce, the Executive has declined to accord
such detainees prisoner-of-war status, see, e.g., The President’s News
Conference With Chairman Hamid Karzai of the Afghan Interim
 32

The Supreme Court in Rasul did not address “whether and
what further proceedings may become necessary after
respondents make their responses to the merits of petitioners’
claims,” 542 U.S. at 485. The detainees cannot rest on due
process under the Fifth Amendment. Although the district court
in Guantanamo Detainee Cases, 355 F. Supp. 2d at 454, made
a contrary ruling, the Supreme Court in Eisentrager held that the
Constitution does not afford rights to aliens in this context. 339
U.S. at 770; accord Verdugo-Urquidez, 494 U.S. at 269.
Although in Rasul the Court cast doubt on the continuing vitality
of Eisentrager, 542 U.S. at 475-79, absent an explicit statement
by the Court that it intended to overrule Eisentrager’s
constitutional holding, that holding is binding on this court. See
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S.
477, 484 (1989); Op. at 21. Rather, the process that is due
inheres in the nature of the writ and the inquiry it entails. The
Court in Rasul held that federal court jurisdiction under 28
U.S.C. § 2241 is permitted for habeas petitions filed by
detainees at Guantanamo, 542 U.S. at 485; id. at 488 (Kennedy,
J., concurring in the judgment), and this result is undisturbed
because the MCA is void. So long as the Executive can
convince an independent Article III habeas judge that it has not
acted unlawfully, it may continue to detain those alien enemy
combatants who pose a continuing threat during the active
engagement of the United States in the war on terror. See id. at
488 (Kennedy, J., concurring in the judgment); cf. Hamdi, 542
U.S. at 518-19. But it must make that showing and the detainees
must be allowed a meaningful opportunity to respond. See
MEADOR, supra, at 18; see also Hamdi, 542 U.S. at 525-26.

Therefore, I would hold that on remand the district courts
shall follow the return and traverse procedures of 28 U.S.C. §
2241 et seq. In particular, upon application for a writ of habeas

Authority, 1 PUB. PAPERS 121, 123 (Jan. 28, 2002).
 33

corpus, 28 U.S.C. § 2242, the district court shall issue an order
to show cause, whereupon “[t]he person to whom the writ is or
order is directed shall make a return certifying the true cause of
the detention,” id. § 2243. So long as the government “puts
forth credible evidence that the [detainee] meets the
enemy-combatant criteria,” Hamdi, 542 U.S. at 533, the district
court must accept the return as true “if not traversed” by the
person detained. Id. § 2248. The district court may take
evidence “orally or by deposition, or, in the discretion of the
judge, by affidavit.” Id. § 2246. The district court may conduct
discovery. See Harris, 394 U.S. at 298-99; cf. Rules Governing
Section 2254 Cases, R. 6-8; Rules Governing Section 2255
Cases, R. 6-8. Thereafter, “[t]he [district] court shall summarily
hear and determine the facts, and dispose of the matter as law
and justice require.”14 District courts are well able to adjust
these proceedings in light of the government’s significant
interests in guarding national security, as suggested in
Guantanamo Detainee Cases, 355 F. Supp. 2d at 467, by use of
protective orders and ex parte and in camera review, id. at 471.
The procedural mechanisms employed in that case, see, e.g., id.
at 452 & n.12, should be employed again, as district courts must
assure the basic fairness of the habeas proceedings, see
generally id. at 468-78.

14
Because the Suspension Clause question must be decided
by the Supreme Court in the detainees’ favor in order for the district
court proceedings to occur, I leave for another day questions relating
to the evolving and unlimited definition of “enemy combatant,” see
Guantanamo Detainee Cases, 355 F. Supp. 2d at 474-75, a detainee’s
inability to rebut evidence withheld on national security grounds, see
id. at 468-72, as well as the detainees’ claims under other statutes,
international conventions, and treaties, and whether challenges to the
conditions of confinement are cognizable in habeas. Compare Khalid,
355 F. Supp. 2d at 324-25, with Miller v. Overholser, 206 F.2d 415,
419-21 (D.C. Cir. 1953). Congressional action may also clarify
matters. See, e.g., S. 185, S. 576, 110th Cong. (2007).
 34

Accordingly, I respectfully dissent from the judgment
vacating the district courts’ decisions and dismissing these
appeals for lack of jurisdiction.