boumediene bush argued decided june petitions writs certiorari denied statement justice stevens justice kennedy respecting denial certiorari despite obvious importance issues raised cases persuaded traditional rules governing decision constitutional questions see ashwander tva brandeis concurring practice requiring exhaustion available remedies precondition accepting jurisdiction applications writ habeas corpus cf ex parte hawk per curiam make appropriate deny petitions time however frequently recognized policy underlying doctrine require exhaustion inadequate remedies marino ragen rutledge concurring petitioners later seek establish government unreasonably delayed proceedings detainee treatment act tit stat ongoing injury alternative means exist us consider jurisdiction allegations made petitioners appeals see government take additional steps prejudice position petitioners seeking review courts competent jurisdiction including act promptly ensure office purposes writ habeas corpus compromised padilla hanft kennedy concurring denial certiorari always denial certiorari constitute expression opinion merits see rasul bush majority opinion stevens kennedy concurring judgment lakhdar boumediene et al george bush president et al khaled al odah next friend fawzi khalid abdullah fahad al odah et al et al petitions writs certiorari appeals district columbia circuit nos decided april justice breyer justice souter joins justice ginsburg joins part dissenting denial certiorari grant petitions certiorari expedite argument cases petitioners foreign citizens imprisoned guantanamo bay cuba raise important question whether military commissions act pub stat deprives courts jurisdiction consider habeas claims whether deprivation constitutional believe questions deserve immediate attention first province great writ shaped guarantee fundamental rights provide effective speedy instrument judicial inquiry may legality detention person carafas lavallee emphasis added omitted yet petitioners held five years obtained judicial review habeas claims petitioners right law immediate review may avoid additional year imprisonment wrong review nevertheless appropriate help establish boundaries constitutional provision writ habeas corpus cf carafas supra finally whether petitioners right wrong prompt review diminish legal uncertainty surrounds application guantanamo detainees fundamental constitutional principle brief senator arlen specter amicus curiae see generally ibid favoring expedited consideration cases bring increased clarity turn speed review cases second petitioners plausibly argue lower reasoning contrary precedent previously held federal jurisdiction lay consider petitioners habeas claims rasul bush providing several petitioners right habeas review law stood analysis proceeded statute petitioners urge reasoning applies scope constitutional habeas right well holding writ extended petitioners rasul said guantanamo complete control jurisdiction kennedy concurring judgment guantanamo bay every practical respect territory observed writ common law extended petitioners application habeas statute persons detained base consistent historical reach writ habeas corpus common law courts exercised habeas jurisdiction claims aliens detained within sovereign territory realm well claims persons detained exempt jurisdictions ordinary writs run dominions sovereign control ven territory part realm doubt power issue writs habeas corpus territory subjection crown internal quotation marks footnotes omitted reasoning may applicable lower holding petitioners urge disregards statements reasoning petitioners boumediene natives algeria citizens bosnia seized bosnia pet cert detainees including several petitioners al odah also citizens friendly nations including australia canada kuwait turkey kingdom many seized outside theater hostility places like pakistan thailand zambia pet cert pp cadc rogers dissenting possible circumstances make difference respect resolution constitutional questions presented cf hamdi rumsfeld plurality opinion joined rehnquist kennedy breyer jj holding military authority detain citizen enemy combatant captured zone active combat foreign theater conflict specifically afghanistan stressing narrow holding ctive combat operations taliban fighters ongoing afghanistan emphasis added government course contests petitioners arguments merits say petitioners correct say questions presented significant ones warranting review petitioners right access habeas corpus federal courts consider whether congress provision detainee treatment act dta tit stat providing review appeals circuit proceedings constitutionally adequate substitute habeas corpus see swain pressley government argues therefore wait case unlike petitioners detainee seeking certiorari actually sought received review alternative means brief opposition petitioners respond however proceedings appeals dta possibly remedy constitutional violation lower expressly indicated constitutional rights merely right habeas extend guantanamo detainees rejecting petitioners arguments precedent fundamental rights afforded constitution extend guantanamo noting recedent circuit also forecloses detainees claims constitutional rights therefore irrelevant petitioners dta provides review circuit constitutional infirmities proceedings act ii stat lower already rendered provision nullity percolation question presented offer elucidation either threshold question whether petitioners right habeas question whether dta provides constitutionally adequate substitute unreasonable suggest circuit future proceedings dta provide review affords petitioners rights circuit already concluded ordinarily habeas petitioners need exhaust remedy inadequate vindicate asserted right see wilwording swenson per curiam government hamdan rumsfeld similarly argued delay slip government objects consideration procedural challenge stage grounds petitioner able raise challenge following decision dta case presented questions scope guantanamo detainees right review procedures rejected government argument delay unsound slip ontrary government assertion presume procedures violate law circumstances review advance decision appropriate hamdan petitioners argue tribunals already subjected infirm inter alia denying petitioners counsel access evidence pet cert hamdan supra slip hamdan petitioners assert procedural infirmities corrected review dta provides augmentation record appeal noted provide remedy constitutional violation see dta stat rogers dissenting hamdan supra slip petitioners compelling interest assuring advance procedures subject lawful unlike hamdan military tribunals guantanamo completed work remains appeals reasons grant petitions ii moreover expedite consideration past expedited cases important issues need speedy consideration stake ex parte quirin decided grant expedited consideration view public importance questions raised petitions duty rests courts time war well time peace preserve unimpaired constitutional safeguards civil liberty opinion public interest required consider decide questions without avoidable delay see also felker turpin new york times per curiam youngstown sheet tube sawyer reasons grant petitions certiorari motions expedite cases accordance schedule deemed acceptable alternative government boumediene et al bush president et al certiorari appeals district columbia circuit argued december decided june authorization use military force aumf congress empowered president use necessary appropriate force determines planned authorized committed aided terrorist attacks september hamdi rumsfeld five justices recognized detaining individuals captured fighting afghanistan duration conflict fundamental accepted incident war thereafter defense department established combatant status review tribunals csrts determine whether individuals detained naval station guantanamo bay cuba enemy combatants petitioners aliens detained guantanamo captured afghanistan elsewhere abroad designated enemy combatants csrts denying membership al qaeda terrorist network carried september attacks taliban regime supported al qaeda petitioner sought writ habeas corpus district ordered cases dismissed lack jurisdiction guantanamo outside sovereign territory circuit affirmed reversed holding extended statutory habeas jurisdiction guantanamo see rasul bush petitioners cases consolidated two proceedings first district judge granted government motion dismiss holding detainees rights vindicated habeas action second judge held detainees due process rights appeals pending congress passed detainee treatment act dta amended provide justice judge shall jurisdiction consider application habeas corpus filed behalf alien detained guantanamo gave appeals exclusive jurisdiction review csrt decisions hamdan rumsfeld held provision inapplicable cases like petitioners pending dta enacted congress responded military commissions act mca amended deny jurisdiction respect habeas actions detained aliens determined enemy combatants denies jurisdiction action relating aspect detention transfer treatment trial conditions confinement detained alien determined enemy combatant mca provides amendments shall take effect date enactment act shall apply cases without exception pending date relate aspect detention transfer treatment trial conditions detention alien detained since september appeals concluded mca must read strip federal courts jurisdiction consider petitioners habeas applications petitioners entitled habeas protections suspension clause art cl provides privilege writ habeas corpus shall suspended unless cases rebellion invasion public safety may require therefore unnecessary consider whether dta provided adequate effective substitute habeas held mca denies federal courts jurisdiction hear habeas actions like instant cases pending time enactment section effective date provision undoubtedly applies habeas actions definition relate detention within section meaning petitioners argue avail apply habeas action action largely repeats section language phrase action understood without referring back explicitly mentions writ habeas corpus two paragraphs structure implies habeas type action relating aspect detention pending habeas actions category cases subject statute jurisdictional bar confirmed mca legislative history thus mca valid petitioners cases must dismissed pp petitioners constitutional privilege habeas corpus barred seeking writ invoking suspension clause protections designated enemy combatants presence guantanamo pp brief account writ history origins shows protection habeas privilege one safeguards liberty specified constitution outset bill rights system framers conceived writ centrality must inform proper interpretation suspension clause framers considered writ vital instrument protection individual liberty evident care taken suspension clause specify limited grounds suspension writ may suspended public safety requires times rebellion invasion clause designed protect cyclical abuses writ executive legislative branches protects detainee rights means consistent constitution essential design ensuring except periods formal suspension judiciary device writ maintain delicate balance governance hamdi supra principles history influenced design inform clause reach purpose pp diligent search precedents legal commentaries reveals certain conclusions none cases parties cite reveal whether granted refused hear lack jurisdiction habeas petition prisoner deemed enemy combatant standard like defense department cases held territory like guantanamo government total military civil control evidence writ geographic scope common law informative dispositive petitioners argue site detention analogous two territories outside england writ ran exempt jurisdictions india critical differences places guantanamo render claims unpersuasive government argues guantanamo closely analogous scotland hanover writ run unclear whether courts lacked power issue writ whether refrained prudential reasons parties arguments lack precedent point supports respective positions premised upon doubtful assumptions historical record complete common law properly understood yields definite answer questions pp suspension clause full effect guantanamo government argument clause affords petitioners rights claim sovereignty naval station rejected pp question government position cuba maintains sovereignty legal technical sense guantanamo accept government premise de jure sovereignty touchstone habeas jurisdiction habeas history provides scant support proposition inconsistent precedents contrary fundamental principles pp ii discussions constitution extraterritorial application cases involving provisions suspension clause undermine government argument fundamental questions regarding constitution geographic scope first arose nation acquired hawaii noncontiguous territories ceded spain war congress discontinued prior practice extending constitutional rights territories statute insular cases held constitution independent force territories contingent upon acts legislative grace see dorr yet difficulties disruption inherent transforming former spanish colonies system system adopted doctrine territorial incorporation constitution applies full incorporated territories surely destined statehood part unincorporated territories see practical considerations likewise influenced analysis reid covert applying jury provisions fifth sixth amendments american civilians tried military abroad plurality concurrences noted relevance practical considerations related petitioners citizenship place confinement trial finally holding habeas jurisdiction extend enemy aliens convicted violating laws war detained german prison allied powers war ii occupation johnson eisentrager stressed practical difficulties ordering production prisoners government reading eisentrager adopting formalistic test determining suspension clause reach rejected discussion practical considerations case integral part opinion came announced holding see mentioned concept territorial sovereignty twice opinion contrast significant discussion practical barriers running writ government reading correct opinion marked change complete repudiation insular cases later reid functional approach constricted reading eisentrager overlooks sees common thread uniting cases idea extraterritoriality questions turn objective factors practical concerns formalism pp iii government test raises troubling concerns illustrated guantanamo political history although maintained complete uninterrupted control guantanamo years government view constitution effect least noncitizens disclaimed formal sovereignty lease cuba nation basic charter contracted away like constitution grants congress president power acquire dispose govern territory power decide terms apply hold political branches may switch constitution lead regime say law marbury madison cranch concerns particular bearing upon suspension clause question habeas writ indispensable mechanism monitoring separation powers pp iv based eisentrager supra reasoning extraterritoriality opinions least three factors relevant determining suspension clause reach detainees citizenship status adequacy process status determined nature sites apprehension detention took place practical obstacles inherent resolving prisoner entitlement writ application framework reveals first petitioners status dispute american citizens deny enemy combatants although afforded process csrt proceedings trial military commission violations laws war second sites petitioners apprehension detention weigh finding suspension clause rights critical differences eisentrager german prison circa guantanamo naval station given government absolute indefinite control naval station third although sensitive financial administrative costs holding suspension clause applicable case military detention abroad factors dispositive government presents credible arguments military mission guantanamo compromised habeas courts jurisdiction situation eisentrager far different given historical context nature military mission germany pp petitioners therefore entitled habeas privilege privilege denied congress must act accordance suspension clause requirements cf rasul pp dta procedures reviewing detainees status adequate effective substitute habeas writ mca operates unconstitutional suspension writ pp given holding writ run petitioners circuit found unnecessary consider whether adequate substitute habeas usually remands consideration questions decided departure rule appropriate exceptional circumstances see cooper industries aviall services grave issues raised cases fact petitioners denied meaningful access judicial forum years pp historically congress taken care avoid suspensions writ example statutes issue two leading cases addressing habeas substitutes swain pressley hayman attempts streamline habeas relief cut back cases provide little guidance inter alia statutes question gave courts broad remedial powers secure historic office writ included saving clauses preserve habeas review avenue last resort contrast congress intended dta mca circumscribe habeas review evident unequivocal nature mca language dta text limiting appeals jurisdiction assessing whether csrt complied standards procedures specified secretary defense dta absence saving clause either act congress intended create limited procedure also confirmed legislative history comparison dta habeas statute govern mca absence congress authorized justice circuit judge issue writ thereby accommodating necessity factfinding arise cases allowing appellate judge justice transfer case district see however granting circuit exclusive jurisdiction petitioners cases see dta congress foreclosed option cases pp endeavor offer comprehensive summary requisites adequate habeas substitute uncontroversial however habeas privilege entitles prisoner meaningful opportunity demonstrate held pursuant erroneous application interpretation relevant law ins cyr habeas must power order conditional release individual unlawfully detained may required depending circumstances petitioners identify see myriad deficiencies csrts relevant constraints upon detainee ability rebut factual basis government assertion enemy combatant csrt stage detainee limited means find present evidence challenge government case assistance counsel may aware critical allegations government relied upon order detention opportunity confront witnesses likely theoretical real given limits admission hearsay therefore agrees petitioners considerable risk error tribunal findings fact given consequence error may detention duration hostilities may last generation risk significant ignore accordingly habeas writ substitute function effective meaningful remedy context conducting collateral proceeding must ability correct errors assess sufficiency government evidence admit consider relevant exculpatory evidence introduced earlier proceeding yamashita ex parte quirin distinguished pp petitioners met burden establishing dta review process face inadequate substitute habeas among constitutional infirmities dta potentially suffers absence provisions allowing petitioners challenge president authority aumf detain indefinitely contest csrt findings fact supplement record review exculpatory evidence discovered csrt proceedings request release statute read contain constitutionally required procedures mca thus effects unconstitutional suspension writ jurisdictional bar district entertaining petitioners claims pp prudential barriers habeas review pp petitioners need seek review csrt determinations circuit proceeding habeas actions district cases involved detainees held short time awaiting csrt determinations probable appeals complete prompt review applications case requiring temporary abstention exhaustion alternative remedies much stronger qualifications longer pertain instances six years elapsed without judicial oversight habeas corpus adequate substitute demands require detainees pursue limited structure dta review proceeding habeas actions require additional months years delay holding read imply habeas intervene moment enemy combatant steps foot territory writ runs except cases undue delay present federal courts refrain entertaining enemy combatant habeas petition least csrt chance review status pp effectuating today holding certain accommodations including channeling future cases single district requiring use discretion accommodate greatest extent possible government legitimate interest protecting sources intelligence gathering methods made reduce burden habeas proceedings place military without impermissibly diluting writ protections pp considering procedural substantive standards used impose detention prevent acts terrorism courts must accord proper deference political branches however security subsists fidelity freedom first principles chief among freedom arbitrary unlawful restraint personal liberty secured adherence separation powers pp reversed remanded kennedy delivered opinion stevens souter ginsburg breyer joined souter filed concurring opinion ginsburg breyer joined roberts filed dissenting opinion scalia thomas alito joined scalia filed dissenting opinion roberts thomas alito joined lakhdar boumediene et petitioners george bush president et al khaled al odah next friend fawzi khalid abdullah fahad al odah et petitioners et al writs certiorari appeals district columbia circuit june justice kennedy delivered opinion petitioners aliens designated enemy combatants detained naval station guantanamo bay cuba others detained also aliens parties suit petitioners present question resolved earlier cases relating detention aliens guantanamo whether constitutional privilege habeas corpus privilege withdrawn except conformance suspension clause art cl hold petitioners habeas corpus privilege congress enacted statute detainee treatment act dta stat provides certain procedures review detainees status hold procedures adequate effective substitute habeas corpus therefore military commissions act mca supp operates unconstitutional suspension writ address whether president authority detain petitioners hold writ must issue questions regarding legality detention resolved first instance district authorization use military force aumf stat note following supp president authorized use necessary appropriate force nations organizations persons determines planned authorized committed aided terrorist attacks occurred september harbored organizations persons order prevent future acts international terrorism nations organizations persons hamdi rumsfeld five members recognized detention individuals fought afghanistan duration particular conflict captured fundamental accepted incident war exercise appropriate force congress authorized president use plurality opinion thomas dissenting hamdi deputy secretary defense established combatant status review tribunals csrts determine whether individuals detained guantanamo enemy combatants department defines term see app pet cert later memorandum established procedures implement csrts see app pet cert government maintains procedures designed comply due process requirements identified plurality hamdi see brief respondents interpreting aumf department defense ordered detention petitioners transferred guantanamo individuals apprehended battlefield afghanistan others places far away bosnia gambia foreign nationals none citizen nation war denies member al qaeda terrorist network carried september attacks taliban regime provided sanctuary al qaeda petitioner appeared separate csrt determined enemy combatant sought writ habeas corpus district district columbia first actions commenced february district ordered cases dismissed lack jurisdiction naval station outside sovereign territory see rasul bush supp appeals district columbia circuit affirmed see al odah granted certiorari reversed holding extended statutory habeas corpus jurisdiction guantanamo see rasul bush constitutional issue presented instant cases reached rasul rasul petitioners cases consolidated entertained two separate proceedings first set cases judge richard leon granted government motion dismiss holding detainees rights vindicated habeas corpus action second set cases judge joyce hens green reached opposite conclusion holding detainees rights due process clause fifth amendment see khalid bush supp dc guantanamo detainee cases supp dc appeals pending district decisions congress passed dta subsection dta amended provide justice judge shall jurisdiction hear consider application writ habeas corpus filed behalf alien detained department defense guantanamo bay cuba stat section provides appeals district columbia circuit shall exclusive jurisdiction review decisions csrts ibid hamdan rumsfeld held provision apply cases like petitioners pending dta enacted congress responded passing mca et seq supp amended text statutory amendment discussed see part ii infra four members hamdan majority noted othing prevent ed president returning congress seek authority believes necessary breyer concurring authority concurring opinion referred authority create military commissions kind issue case ibid nothing opinion construed invitation congress suspend writ petitioners cases consolidated appeal parties filed supplemental briefs light decision hamdan appeals ruling cadc subject present review today decision appeals concluded mca must read strip federal courts jurisdiction consider petitioners habeas corpus applications petitioners entitled privilege writ protections suspension clause result unnecessary consider whether congress provided adequate effective substitute habeas corpus dta granted certiorari ii threshold matter must decide whether mca denies federal courts jurisdiction hear habeas corpus actions pending time enactment hold statute deny jurisdiction statute valid petitioners cases must dismissed amended terms mca supp provides justice judge shall jurisdiction hear consider application writ habeas corpus filed behalf alien detained determined properly detained enemy combatant awaiting determination except provided dta justice judge shall jurisdiction hear consider action agents relating aspect detention transfer treatment trial conditions confinement alien detained determined properly detained enemy combatant awaiting determination section mca provides effective date amendment amendment made mca shall take effect date enactment act shall apply cases without exception pending date enactment act relate aspect detention transfer treatment trial conditions detention alien detained since september stat little doubt effective date provision applies habeas corpus actions actions definition cases relate detention see black law dictionary ed defining habeas corpus writ employed bring person frequently ensure party imprisonment detention illegal petitioners argue nevertheless mca sufficiently clear statement congressional intent strip federal courts jurisdiction pending cases see ex parte yerger wall disagree argument follows section refers writ habeas corpus next paragraph refers action relating aspect detention transfer treatment trial conditions confinement alien properly detained enemy combatant awaiting determination two separate paragraphs argument continues must two distinct classes cases effective date subsection mca said refers second class cases largely repeats language referring cases relate aspect detention transfer treatment trial conditions detention alien detained petitioners textual argument force phrase action phrase understood without referring back paragraph precedes explicitly mentions term writ habeas corpus structure two paragraphs implies habeas actions type action relating aspect detention transfer treatment trial conditions confinement alien detained enemy combatant pending habeas actions category cases subject statute jurisdictional bar acknowledge moreover litigation history prompted congress enact mca hamdan found unnecessary address petitioner suspension clause arguments noted relevance clear statement rule deciding whether congress intended reach pending habeas corpus cases see congress presumed effected denial habeas relief absent unmistakably clear statement contrary interpretive rule facilitates dialogue congress cf hilton south carolina public railways hart sacks legal process basic problems making application law eskridge frickey eds invokes clear statement rule advise certain statutory interpretations favored order avoid constitutional difficulties congress make informed legislative choice either amend statute retain existing text congress amends intent must respected even difficult constitutional question presented usual presumption members congress accord oath office considered constitutional issue determined amended statute lawful one judiciary light determination proceeds independent judgment constitutional question required proper case ongoing dialogue among branches government respected ignore mca direct response hamdan holding dta provision application pending cases appeals correct take note legislative history construing statute see citing relevant floor statements agree conclusion mca deprives federal courts jurisdiction entertain habeas corpus actions us iii deciding constitutional questions presented must determine whether petitioners barred seeking writ invoking protections suspension clause either status petitioners designation executive branch enemy combatants physical location presence guantanamo bay government contends noncitizens designated enemy combatants detained territory located outside nation borders constitutional rights privilege habeas corpus petitioners contend cognizable constitutional rights congress seeking eliminate recourse habeas corpus means assert rights acted violation suspension clause begin brief account history origins writ account proceeds two propositions first protection privilege habeas corpus one safeguards liberty specified constitution outset bill rights system conceived framers writ centrality must inform proper interpretation suspension clause second extent settled precedents legal commentaries regarding extraterritorial scope writ application enemy aliens authorities instructive present cases framers viewed freedom unlawful restraint fundamental precept liberty understood writ habeas corpus vital instrument secure freedom experience taught however writ often insufficient guard abuse monarchial power history counseled necessity specific language constitution secure writ ensure place legal system magna carta decreed man imprisoned contrary law land art sources liberties perry cooper eds free man shall taken imprisoned dispossessed outlawed banished way destroyed go upon send upon except legal judgment peers law land important principle barons runnymede prescribed specific legal process enforce holdsworth tells us however gradually writ habeas corpus became means promise magna carta fulfilled holdsworth history english law hereinafter holdsworth development painstaking even measures english constitutional history writ known used form least early reign edward yet outset used protect rights citizens king courts early courts considered agents crown designed assist king exercise power see baker introduction english legal history ed thus writ become part foundation liberty king subjects earliest use mechanism securing compliance king laws see halliday white suspension clause english text imperial contexts american implications rev forthcoming hereinafter halliday white manuscript online http internet materials visited june available clerk case file noting conceptually writ arose theory power rather theory liberty time became clear issuing writ habeas corpus courts sought enforce king prerogative inquire authority jailer hold prisoner see hale prerogatives king yale ed story commentaries constitution ed noting writ ran parts king dominions said king entitled times account liberty subjects restrained even early date understood king subject law writers said magna carta means king shall law pollock maitland history english law ed see also bracton laws customs england thorne transl king must man god law law makes king writ deemed less instrument king power restraint upon see collings habeas corpus convicts constitutional right legislative grace rev noting point writ appropriate process checking illegal imprisonment public officials still writ proved imperfect check even importance writ well understood england habeas relief often denied courts suspended parliament denial suspension occurred times political unrest anguish imprisoned outrage sympathy notable example period darnel case tr events giving rise case began display stuart penchant authoritarian excess charles demanded darnel least four others lend money upon refusal imprisoned prisoners sought writ habeas corpus king filed return form warrant signed attorney general ibid held sufficient answer justified subjects continued imprisonment immediate outcry protest house commons promptly passed petition right car ch statutes realm reprint condemned executive imprison ment without cause shown declared freeman manner mencioned shall imprisoned deteined yet full legislative response long delayed king soon began abuse authority parliament dissolved see hall albion history england british empire ed hereinafter hall albion parliament reconvened sought secure access writ statute act car ch statutes realm expressly authorized use writ test legality commitment command warrant king privy council civil strife interregnum soon followed parliament try secure writ time habeas corpus act car ch act later described blackstone stable bulwark liberties blackstone commentaries hereinafter blackstone established procedures issuing writ model upon habeas statutes american colonies based see collings supra history known framers doubt confirmed view pendular swings away individual liberty endemic undivided uncontrolled power framers inherent distrust governmental power driving force behind constitutional plan allocated powers among three independent branches design serves make government accountable also secure individual liberty see loving noting ven birth country separation powers known defense tyranny cf youngstown sheet tube sawyer jackson concurring constitution diffuses power better secure liberty clinton city new york kennedy concurring liberty always stake one branches seek transgress separation powers constitution structure like substantive guarantees fifth fourteenth amendments see yick wo hopkins protects persons well citizens foreign nationals privilege litigating courts seek enforce principles see ins chadha framers considered writ vital instrument protection individual liberty evident care taken specify limited grounds suspension privilege writ habeas corpus shall suspended unless cases rebellion invasion public safety may require art cl see amar sovereignty federalism yale clause original constitution explicit reference remedies word privilege used perhaps avoid mentioning rights exclusion others indeed mention term right constitution ratified clause giving congress power protect rights authors inventors see art cl surviving accounts ratification debates provide additional evidence framers deemed writ essential mechanism scheme critical exchange patrick henry virginia ratifying convention edmund randolph referred suspension clause exception power given congress regulate courts see debates several state conventions adoption federal constitution elliot ed hereinafter elliot debates resolution passed new york ratifying convention made clear understanding clause protects arbitrary suspensions writ also guarantees affirmative right judicial inquiry causes detention see resolution new york ratifying convention july elliot debates noting convention understanding hat every person restrained liberty entitled inquiry lawfulness restraint removal thereof unlawful inquiry removal denied delayed except account public danger congress shall suspend privilege writ habeas corpus alexander hamilton likewise explained providing detainee judicial forum challenge detention writ preserves limited government explained federalist practice arbitrary imprisonments ages favorite formidable instruments tyranny observations judicious blackstone well worthy recital bereave man life violence confiscate estate without accusation trial gross notorious act despotism must convey alarm tyranny throughout whole nation confinement person secretly hurrying jail sufferings unknown forgotten less public less striking therefore dangerous engine arbitrary government remedy fatal evil everywhere peculiarly emphatical encomiums habeas corpus act one place calls bulwark british constitution rossiter quoting blackstone habeas developments england though bearing upon framers intent verify foresight later events underscore need structural barriers arbitrary suspensions writ writ vulnerable executive parliamentary encroachment sides atlantic american revolution despite habeas corpus act writ suspended frequency england times political unrest parliament suspended writ much period resulting rampant arbitrary imprisonment see hall albion even late world war least one prominent english jurist complained defence realm act geo ch effectively suspended privilege habeas corpus person suspected communicating enemy see king halliday lord shaw dissenting see generally simpson highest degree odious detention without trial wartime britain system suspension clause designed protect cyclical abuses clause protects rights detained means consistent essential design constitution ensures except periods formal suspension judiciary device writ maintain delicate balance governance surest safeguard liberty see hamdi plurality opinion clause protects rights detained affirming duty authority judiciary call jailer account see preiser rodriguez essence habeas corpus attack person custody upon legality custody cf jackson cooley concurring important fact observed regard mode procedure upon habeas writ directed served upon person confined jailer doctrine history influenced design therefore must inform reach purpose suspension clause broad historical narrative writ function central analysis seek guidance well authorities addressing specific question us whether foreign nationals apprehended detained distant countries time serious threats nation security may assert privilege writ seek protection careful foreclose possibility protections suspension clause expanded along developments define present scope writ see ins cyr analysis may begin precedents said absolute minimum clause protects writ existed constitution drafted ratified support arguments parties cases examined historical sources construct view writ existed amici whose expertise legal history relied upon past see brief legal historians amici curiae see also cyr supra government argues writ ran territories crown sovereign see brief respondents petitioners argue jurisdiction followed king officers see brief petitioner boumediene et al diligent search parties reveals certain conclusions none cases cited find granted refused hear lack jurisdiction petition writ habeas corpus brought prisoner deemed enemy combatant standard like one department defense used cases held territory like guantanamo government total military civil control know common law petitioner status alien categorical bar habeas corpus relief see sommersett case tr ordering african slave freed upon finding custodian return insufficient see generally khera secretary state home habeas corpus protection often expressed limited subjects really limited british nationals suffice say case law given emphatic question know well courts entertained habeas petitions brought enemy aliens detained england entertained least sense courts held hearings determine threshold question entitlement writ see case three spanish sailors black eng king schiever burr eng du castro case fort eng schiever spanish sailors case courts denied relief petitioners whether holdings cases jurisdictional based upon courts ruling petitioners detained lawfully prisoners war unclear see spanish sailors supra eng schiever supra eng du castro case granted relief case analogous petitioners prisoner appears detained england see halliday white extent authorities suggest courts abstained altogether matters involving prisoners war greater justification context declared wars nation judicial intervention might complicated military ability negotiate exchange prisoners enemy wartime practice well known framers see resolution mar journals continental congress ford ed directing general washington exchange prisoners british unless enemy agreed exempt citizens capture find evidence geographic scope writ common law informative dispositive petitioners argue site detention analogous two territories outside england writ run exempt jurisdictions like channel islands former times india critical differences places guantanamo however noted rasul nn courts granted habeas corpus relief prisoners detained exempt jurisdictions areas theory part realm england nonetheless crown control see hallam constitutional history england accession henry vii death george ii pp reprint indication jurisdictions considered sovereign territory king cowle burr eng describing one exempt jurisdictions sovereign jurisdiction subjection crown england maintain formal sovereignty guantanamo bay see part iv infra naval station exempt jurisdictions discussed english authorities similarly situated petitioners amici rely cases british courts india granted writs habeas corpus noncitizens detained territory moghul emperor retained formal sovereignty control see supra brief legal historians amici curiae analogy present cases breaks however geographic location courts indian example judicature british sat calcutta federal sits guantanamo judicature moreover special set parliament monitor certain conduct british raj see regulating act geo power issue writ nonsovereign territory prove courts sitting england power petitioners better argument point need demonstration consistent practice courts sitting england entertaining petitions brought alien prisoners detained abroad find little support conclusion government argues turn guantanamo closely analogous scotland hanover territories part england nonetheless controlled english monarch separate capacities king scotland elector hanover see cowle eng lord mansfield cited proposition time founding english courts lacked power issue writ scotland hanover territories lord mansfield referred foreign ibid matters purposes courts lacked power given english crown delicate complicated relationships scotland hanover disregard possibility courts refusal issue writ places motivated formal legal constructs think prudential concerns appears case regard british territories writ run see chambers course lectures english law curley ed quoting view lord mansfield cowle otwithstanding power judges yet judge cause give relief upon think proper interpose therefore case imprisonments guernsey jersey minorca plantations usual way complain king council internal quotation marks omitted act union kingdoms england scotland merged politically queen anne successors new capacity sovereign great britain ruled entire island one kingdom accordingly time lord mansfield penned opinion cowle scotland longer foreign country england least sense cuba foreign country scotland remained foreign lord mansfield day least one important respect however even act union scotland like hanover continued maintain laws system see blackstone circumstances prudential considerations weighed heavily courts sitting england received habeas petitions scotland electorate decisions withholding writ prisoners detained places easily explained efforts avoid either two embarrassments conflict judgments another competent jurisdiction practical inability reason distance english courts enforce judgments outside territorial jurisdiction cf munaf geren ante opinion recognizing concerns comity orderly administration criminal justice affect appropriate exercise habeas jurisdiction century british courts issue writ canada notwithstanding fact canadian courts also power see holdsworth citing ex parte anderson el el might seen evidence existence separate system barrier running writ canada however many respects analogous exempt jurisdictions ireland writ ran scotland hanover unlike scotland hanover canada followed english law see laskin british tradition canadian law end categorical formal conception sovereignty provide comprehensive altogether satisfactory explanation general understanding prevailed lord mansfield considered issuance writ outside england writ run scotland run ireland even though point scotland england merged rule single sovereign whereas crowns great britain ireland remained separate least theory see cowle supra eng blackstone least one major difference scotland ireland relationship england period might explain writ ran ireland scotland english law generally apply scotland even act union apply ireland blackstone put follows scotland england one kingdom yet differ municipal laws england ireland hand distinct kingdoms yet general agree laws distinction formal notions sovereignty may well explain writ run scotland hanover run ireland prudential barriers may prevented english courts issuing writ scotland hanover relevant reason believe order federal disobeyed guantanamo cuban jurisdiction hear petitioners claims law laws applies naval station relations guantanamo thus differ important respects relations england kingdoms scotland hanover reason enough us discount relevance government analogy side present matter argues lack precedent point supports position government points evidence sitting england granted habeas relief enemy alien detained abroad petitioners respond evidence refused lack jurisdiction arguments premised however upon assumption historical record complete common law properly understood yields definite answer questions us reasons doubt assumptions recent scholarship points inherent shortcomings historical record see halliday white noting reports habeas proceedings printed given unique status guantanamo bay particular dangers terrorism modern age courts simply may confronted cases close parallels one decline therefore infer much one way lack historical evidence point cf brown board education noting evidence concerning circumstances surrounding adoption fourteenth amendment discussed parties briefs uncovered investigation convince us although sources cast light enough resolve problem faced best inconclusive reid covert frankfurter concurring result arguing constitutional adjudication based upon evidence episodic meager form solid basis history preceding contemporaneous framing constitution iv drawing position common law writ ran territories crown sovereign government says suspension clause affords petitioners rights claim sovereignty place detention guantanamo bay formally part see dta stat terms lease cuba cuba retains ultimate sovereignty territory exercises complete jurisdiction control see lease lands coaling naval stations art iii hereinafter lease agreement rasul terms treaty however cuba effectively rights sovereign parties agree modification lease agreement abandons base see treaty defining relations cuba may art iii stat contends nevertheless guantanamo within sovereign control government position well events september see brief petitioners sale haitian centers council arguing guantanamo territory outside contexts held questions sovereignty political branches decide see connell etermination sovereignty area legislative executive departments see also jones williams suffolk ins pet even treaty interpretation case involve political question president construction lease agreement entitled great respect see sumitomo shoji america avagliano therefore question government position cuba maintains sovereignty legal technical sense term guantanamo bay end analysis cases hold improper us inquire objective degree control nation asserts foreign territory commentators noted overeignty term used many senses much see restatement third foreign relations law comment stated sovereignty political question referred sovereignty general colloquial sense meaning exercise dominion power see webster new international dictionary ed sovereignty definition sovereignty narrow legal sense term meaning claim right see restatement third foreign relations supra comment noting sovereignty implies state lawful control territory generally exclusion authority govern territory authority apply law indeed altogether uncommon territory de jure sovereignty one nation plenary control practical sovereignty another condition occur territory seized war guantanamo war see fleming page noting port tampico conquered war mexico undoubtedly subject sovereignty dominion follow part ceased foreign country king earl crewe ex parte sekgome opinion williams arguing bechuanaland protectorate south africa majesty dominion sense power jurisdiction dominion sense territorial dominion accordingly purposes analysis accept government position cuba retains de jure sovereignty guantanamo bay rasul however take notice obvious uncontested fact virtue complete jurisdiction control base maintains de facto sovereignty territory see kennedy concurring judgment hold present cases turn political question doctrine required first accept government premise de jure sovereignty touchstone habeas corpus jurisdiction premise however unfounded reasons indicated history habeas corpus provides scant support proposition reasons indicated position inconsistent precedents contrary fundamental principles discussed issue constitution extraterritorial application many occasions decisions undermine government argument least applied noncitizens constitution necessarily stops de jure sovereignty ends framers foresaw expand acquire new territories see american ins bales cotton pet article iv cl grants congress power admit new clause section grants congress power dispose make needful rules regulations respecting territory property belonging save notable notorious exceptions dred scott sandford throughout history little need explore outer boundaries constitution geographic reach congress exercised power create new territories guaranteed constitutional protections inhabitants statute see act establish territorial government utah stat constitution laws hereby extended declared force said territory utah rev stat constitution laws locally inapplicable shall force effect within organized territories every territory hereafter organized elsewhere within see generally burnett untied american expansion territorial deannexation chi rev particular need test limits suspension clause early congress extended writ territories see act stat reaffirming art ii northwest ordinance provided inhabitants said territory shall always entitled benefits writ habeas corpus fundamental questions regarding constitution geographic scope first arose dawn century nation acquired noncontiguous territories puerto rico guam philippines ceded spain conclusion war hawaii annexed point congress chose discontinue previous practice extending constitutional rights territories statute see act temporarily provide administration affairs civil government philippine islands purposes stat noting rev stat apply philippines series opinions later known insular cases addressed whether constitution force applies territory state see de lima bidwell dooley armstrong downes bidwell hawaii mankichi dorr held constitution independent force territories force contingent upon acts legislative grace yet took note difficulties inherent position prior cession former spanish colonies operated system without experience various aspects legal tradition instance use grand petit juries least regard philippines complete transformation prevailing legal culture disruptive also unnecessary intended grant independence territory see act declare purpose people future political status people philippine islands provide autonomous government islands jones act stat noting never intention people incipiency war spain make war conquest territorial aggrandizement always purpose people withdraw sovereignty philippine islands recognize independence soon stable government established therein thus reluctant risk uncertainty instability result rule displaced altogether existing legal systems newly acquired territories see downes supra obvious annexation outlying distant possessions grave questions arise differences race habits laws customs people differences soil climate production considerations resulted doctrine territorial incorporation constitution applies full incorporated territories surely destined statehood part unincorporated territories see dorr supra congress shall see fit incorporate territory ceded treaty territory governed power existing congress make laws territories subject constitutional restrictions upon powers body applicable situation downes supra white concurring determination particular provision constitution applicable generally speaking cases involves inquiry situation territory relations later made clear real issue insular cases whether constitution extended philippines porto rico went provisions applicable way limitation upon exercise executive legislative power dealing new conditions requirements balzac porto rico may well time ties unincorporated territories strengthen ways constitutional significance cf torres puerto rico brennan concurring judgment whatever validity insular cases particular historical context decided cases clearly authority questioning application fourth amendment provision bill rights commonwealth puerto rico early balzac took granted even unincorporated territories government bound provide noncitizen inhabitants guaranties certain fundamental personal rights declared constitution see also late church jesus christ saints doubtless congress legislating territories subject fundamental limitations favor personal rights formulated constitution amendments yet noting inherent practical difficulties enforcing constitutional provisions always everywhere balzac supra devised insular cases doctrine allowed use power sparingly needed doctrine informs analysis present matter practical considerations likewise influenced analysis later reid petitioners spouses american servicemen lived american military bases england japan charged crimes committed countries tried military courts consistent executive agreements entered british japanese governments nn plurality opinion petitioners military personnel argued entitled trial jury justice black writing plurality contrasted cases insular cases involved territories wholly dissimilar traditions institutions congress intended govern temporarily justice frankfurter argued specific circumstances particular case relevant determining geographic scope constitution opinion concurring result justice harlan joined opinion reaching opposite result case previous term reid covert explicit rejecting rigid abstract rule determining constitutional guarantees extend reid opinion concurring result read insular cases teach whether constitutional provision extraterritorial effect depends upon particular circumstances practical necessities possible alternatives congress particular whether judicial enforcement provision impracticable anomalous see also kennedy concurring applying impracticable anomalous extraterritoriality test fourth amendment context petitioners reid american citizens key factor case central plurality conclusion fifth sixth amendments apply american civilians tried outside practical considerations related petitioners citizenship place confinement trial relevant member reid majority justices harlan frankfurter whose votes necessary disposition considerations decisive factors case indeed majority splintered point key disagreement plurality concurring justices reid continued precedential value previous opinion ross reid understood holding circumstances americans abroad right indictment trial jury petitioner ross sailor serving american merchant vessel japanese waters tried american consular tribunal murder fellow crewman ross held petitioner british subject rights fifth sixth amendments petitioner citizenship played role disposition case however assumed consistent maritime custom time ross rights similarly situated american citizen noting ross protection subject laws equally seaman native born justices reid therefore properly understood ross standing proposition least circumstances jury provisions fifth sixth amendments application american citizens tried american authorities abroad see plurality opinion describing ross holding constitutional protections applied citizens others within residents temporary sojourners quoting ross supra frankfurter concurring result noting consular tribunals upheld ross ere based custom justified best possible means securing justice americans present foreign countries harlan concurring result ross insular cases hold particular local setting practical necessities possible alternatives relevant question judgment namely whether jury trial deemed necessary condition exercise congress power provide trial americans overseas reid plurality doubted ross rightly decided precisely believed opinion insufficiently protective rights american citizens see see also clark dissenting noting four brothers specifically overrule two impair vitality old respected precedent law case ross justices harlan frankfurter willing hold american citizen petitioners cases entitled protections fifth sixth amendments unwilling overturn ross frankfurter concurring result harlan concurring result instead two concurring justices distinguished ross cases basis citizenship petitioners practical considerations made jury trial feasible option petitioner ross citizenship relevant factor case necessary overturn ross something justices harlan frankfurter unwilling see supra kennedy concurring noting ross overruled practical considerations weighed heavily well johnson eisentrager addressed whether habeas corpus jurisdiction extended enemy aliens convicted violating laws war prisoners detained landsberg prison germany allied powers postwar occupation stressed difficulties ordering government produce prisoners habeas corpus proceeding require allocation shipping space guarding personnel billeting rations damage prestige military commanders sensitive time considering factors sought balance constraints military occupation constitutional necessities see rasul discussing factors relevant eisentrager constitutional holding kennedy concurring judgment true eisentrager denied access writ noted prisoners relevant time within territory sovereign scenes offense capture trial punishment beyond territorial jurisdiction government seizes upon language proof positive eisentrager adopted formalistic test determining reach suspension clause see brief respondents reject reading three reasons first accept idea passage eisentrager authoritative language opinion rest dicta determinations based practical considerations integral part ii opinion came decision announced holding see second lacked de jure sovereignty plenary control landsberg prison see infra far clear eisentrager used term sovereignty narrow technical sense connote degree control military asserted facility see supra justices decided eisentrager understood sovereignty multifaceted concept see black law dictionary ed defining sovereignty absolute uncontrollable power independent state governed international independence state combined right power regulating internal affairs without foreign dictation power everything state without accountability ballentine law dictionary pronunciations ed defining sovereignty hat public authority commands civil society orders directs citizen perform obtain end institution principal brief eisentrager government advocated test determining scope writ similar one advocates cases see brief petitioners johnson eisentrager pp yet mentioned concept territorial sovereignty twice opinion see eisentrager supra devoted significant portion part ii discussion practical barriers running writ suggests concerned exclusively formal legal status landsberg prison also objective degree control asserted even assume eisentrager considered lack formal legal sovereignty landsberg prison decisive factor case holding inconsistent functional approach questions extraterritoriality formal legal status given territory affects least extent political branches control territory de jure sovereignty factor bears upon constitutional guarantees apply third government reading eisentrager correct opinion marked change complete repudiation insular cases later reid functional approach questions extraterritoriality accept government view nothing eisentrager says de jure sovereignty ever relevant consideration determining geographic reach constitution habeas corpus case considerable tension eisentrager one hand insular cases reid cases need read conflict manner constricted reading eisentrager overlooks see common thread uniting insular cases eisentrager reid idea questions extraterritoriality turn objective factors practical concerns formalism government formal test raises troubling concerns well political history guantanamo illustrates deficiencies approach maintained complete uninterrupted control bay years close war spain ceded control entire island cuba specifically relinquishe claim sovereignty title see treaty paris art stat date treaty spain signed cuban republic established may governed territory trust benefit cuban people neely henkel thomas cuba pursuit freedom although recognized entering lease agreement cuba retained ultimate sovereignty guantanamo continued maintain plenary control enjoyed since yet government view constitution effect least noncitizens disclaimed sovereignty formal sense term necessary implication argument surrendering formal sovereignty unincorporated territory third party time entering lease grants total control territory back possible political branches govern without legal constraint basic charter contracted away like constitution grants congress president power acquire dispose govern territory power decide terms apply even acts outside borders powers absolute unlimited subject restrictions expressed constitution murphy ramsey abstaining questions involving formal sovereignty territorial governance one thing hold political branches power switch constitution quite another former position reflects recognition certain matters requiring political judgments best left political branches latter permit striking anomaly tripartite system government leading regime congress president say law marbury madison cranch concerns particular bearing upon suspension clause question cases us writ habeas corpus indispensable mechanism monitoring separation powers test determining scope provision must subject manipulation whose power designed restrain recognized rasul kennedy concurring judgment outlines framework determining reach suspension clause suggested factors relied upon eisentrager addition practical concerns discussed eisentrager found relevant petitioner enemy alien never resided captured outside territory held military custody prisoner war tried convicted military commission sitting outside offenses laws war committed outside times imprisoned outside based language eisentrager reasoning extraterritoriality opinions conclude least three factors relevant determining reach suspension clause citizenship status detainee adequacy process status determination made nature sites apprehension detention took place practical obstacles inherent resolving prisoner entitlement writ applying framework note onset status detainees matter dispute petitioners like eisentrager american citizens petitioners eisentrager contest seems assertion enemy alien ibid instant cases contrast detainees deny enemy combatants afforded process csrt proceedings determine status unlike eisentrager supra trial military commission violations laws war difference trivial records eisentrager trials suggest well petitioners brought case rigorous adversarial process test legality detention eisentrager petitioners charged bill particulars made detailed factual allegations see nations war crimes commission law reports trials war criminals reprint rebut accusations entitled representation counsel allowed introduce evidence behalf permitted prosecution witnesses see memorandum command wedemeyer establishing regulations governing trial war criminals china theater tr record johnson eisentrager pp comparison procedural protections afforded detainees csrt hearings far limited conclude fall well short procedures adversarial mechanisms eliminate need habeas corpus review although detainee assigned personal representative assist csrt proceedings secretary navy memorandum makes clear person detainee lawyer even advocate see app pet cert government evidence accorded presumption validity detainee allowed present reasonably available evidence ability rebut government evidence limited circumstances confinement lack counsel stage although detainee seek review status determination appeals review process cure defects earlier proceedings see part infra second factor relevant analysis detainees similarly situated eisentrager petitioners sites apprehension detention technically outside sovereign territory noted earlier factor weighs finding rights suspension clause critical differences landsberg prison circa naval station guantanamo bay unlike present control naval station control prison germany neither absolute indefinite like parts occupied germany prison jurisdiction combined allied forces see declaration regarding defeat germany assumption authority respect germany june stat therefore answerable allies activities occurring cf hirota macarthur per curiam military tribunal set douglas macarthur acting agent allied powers tribunal allies planned occupation germany intend displace german institutions even period occupation see agreements respecting basic principles merger three western german zones occupation matters apr art stat establishing governing framework uring period necessary occupation continue expressing desire german people shall enjoy maximum possible degree consistent occupation holding eisentrager thus consistent insular cases held need extend full constitutional protections territories intend govern indefinitely guantanamo bay hand transient possession every practical sense guantanamo abroad within constant jurisdiction see rasul kennedy concurring judgment third factor recognize eisentrager costs holding suspension clause applicable case military detention abroad habeas corpus proceedings may require expenditure funds government may divert attention military personnel pressing tasks sensitive concerns find dispositive compliance judicial process requires incremental expenditure resources yet civilian courts armed forces functioned along side various points history see duncan kahanamoku ex parte milligan wall government presents credible arguments military mission guantanamo compromised habeas corpus courts jurisdiction hear detainees claims light plenary control asserts base none apparent us situation eisentrager far different given historical context nature military mission germany hostilities european theater came end became responsible occupation zone encompassing square miles population million see letter president truman secretary state byrnes documents american foreign relations dennett turner eds pollock territorial pattern military occupation germany pol sci rev addition supervising massive reconstruction aid efforts american forces stationed germany faced potential security threats defeated enemy retrospect occupation may seem uneventful time eisentrager decided right concerned judicial interference military efforts contain enemy elements guerilla fighters similar threats apparent government argue naval station guantanamo bay consists square miles land water base used various points house migrants refugees temporarily present however detainees residents american military personnel families small number workers see history guantanamo bay online https gtmohistgeneral detainees deemed enemies present dangerous may released contained secure prison facility located isolated heavily fortified military base indication furthermore adjudicating habeas corpus petition cause friction host government cuban jurisdiction american military personnel guantanamo enemy combatants detained obligated abide terms lease practical purposes answerable sovereign acts base case detention facility located active theater war arguments issuing writ impracticable anomalous weight see reid harlan concurring result facts presented however practical barriers running writ extent barriers arise habeas corpus procedures likely modified address see part infra true today never held noncitizens detained government territory another country maintains de jure sovereignty rights constitution cases us lack precise historical parallel involve individuals detained executive order duration conflict measured september present already among longest wars american history see oxford companion american military history detainees moreover held territory technically part complete total control government circumstances lack precedent point barrier holding hold art cl constitution full effect guantanamo bay privilege habeas corpus denied detainees us congress must act accordance requirements suspension clause cf hamdi scalia dissenting ndefinite imprisonment reasonable suspicion available option treatment accused aiding enemy absent suspension writ may impose de facto suspension abstaining controversies see hamdan bstention appropriate cases legal challenge status persons military asserted quoting schlesinger councilman mca purport formal suspension writ government submissions us argued petitioners therefore entitled privilege habeas corpus challenge legality detention light holding question becomes whether statute stripping jurisdiction issue writ avoids suspension clause mandate congress provided adequate substitute procedures habeas corpus government submits compliance suspension clause dta review process appeals see dta provides adequate substitute congress granted jurisdiction consider whether status determination csrt consistent standards procedures specified secretary defense ii extent constitution laws applicable whether use standards procedures make determination consistent constitution laws stat appeals decided writ run detainees event found unnecessary consider whether adequate substitute provided ordinary course remand appeals consider question first instance see youakim miller per curiam well settled however practice declining address issues left unresolved earlier proceedings inflexible rule ibid departure rule appropriate exceptional circumstances see cooper industries aviall services duignan gravity issues raised cases fact detainees denied meaningful access judicial forum period years render cases exceptional parties us addressed adequacy issue found informative consider reasoning appeals point must weigh harms petitioners may endure additional delay given precedents addressing features adequate substitute habeas corpus must contain likelihood remand simply delay ultimate resolution issue benefit appeals construction key provisions dta granted certiorari cases noted material assistance consult decision parallel dta review proceedings pending appeals specifically rulings matter bismullah gates although appeals yet complete dta review proceeding panel bismullah issued interim order giving guidance evidence made part record review access detainees counsel classified information see cadc bismullah denied cadc bismullah ii matter full denied government motion rehearing en banc see bismullah gates cadc bismullah iii order denying rehearing accompanied five separate statements members offer differing views scope judicial review congress intended detainees ibid circumstances believe costs delay substantially outweigh benefits remanding appeals consider issue address cases case law contain extensive discussion standards defining suspension writ circumstances suspension occurred simply confirms care congress taken throughout nation history preserve writ function indeed major legislative enactments pertaining habeas corpus acted contract writ protection expand hasten resolution prisoners claims see habeas corpus act ch stat current version codified ed supp extending federal writ state prisoners cf harris nelson interpreting writs act allow discovery habeas corpus proceedings peyton rowe interpreting version allow petitioner proceed habeas corpus action even though yet begun serve sentence exceptions course title antiterrorism effective death penalty act aedpa stat contains certain gatekeeping provisions restrict prisoner ability bring new repetitive claims second successive habeas corpus actions upheld provisions suspension clause challenge felker turpin provisions issue felker however constitute substantial departure habeas procedures provisions part codified longstanding doctrine see also mccleskey zant aedpa applies moreover federal postconviction review criminal proceedings state taken place point cases discussing implementation statute give little helpful instruction save perhaps contrast instant cases trial held two leading cases addressing habeas substitutes swain pressley hayman likewise provide little guidance statutes issue attempts streamline habeas corpus relief cut back statute discussed hayman replaced traditional habeas corpus federal prisoners least first instance process allowed prisoner file motion sentencing ground sentence inter alia violation constitution laws purpose effect statute restrict access writ make postconviction proceedings efficient directed claims territorial jurisdiction place petitioner confinement sentencing already familiar facts case hayman explained section passed instance judicial conference meet practical difficulties arisen administering habeas corpus jurisdiction federal courts nowhere history section find purpose impinge upon prisoners rights collateral attack upon convictions contrary sole purpose minimize difficulties encountered habeas corpus hearings affording rights another convenient forum see also hill noting provides remedy sentencing exactly commensurate federal habeas corpus remedy statute swain code ann applied prisoners custody sentence superior district columbia enactment district columbia reform criminal procedure act reform act stat prisoners file habeas petitions district district columbia act patterned substituted new collateral process superior habeas corpus procedure district see swain purpose effect statute expedite consideration prisoner claims delay frustrate see noting purpose reform act alleviate administrative burdens district statutes hayman swain designed strengthen rather dilute writ protections evident furthermore significant fact neither statute eliminated traditional habeas corpus relief cases statute issue saving clause providing writ habeas corpus available alternative process proved inadequate ineffective swain supra hayman supra placed explicit reliance upon provisions upholding statutes constitutional challenges see swain supra noting provision avoid ed serious question constitutionality statute hayman supra noting habeas remained available last resort unnecessary reach constitutional questions unlike hayman swain confront statutes dta mca intended circumscribe habeas review congress purpose evident unequivocal nature mca language supp justice judge shall jurisdiction hear consider application writ habeas corpus also comparison dta statutes issue hayman swain interpreting statute examine related provisions parts code see west virginia univ hospitals casey babbitt sweet home chapter communities great scalia dissenting see generally eskridge frickey garrett cases materials legislation statutes creation public policy ed congress intended replace traditional habeas corpus substitutes case hayman swain granted courts broad remedial powers secure historic office writ context example congress granted reviewing power determine issues make findings fact conclusions law respect whether judgment conviction rendered without jurisdiction sentence imposed authorized law otherwise open collateral attack supp reform act statute upheld swain contained similar provision stat contrast dta jurisdictional grant quite limited appeals jurisdiction inquire legality detention generally assess whether csrt complied standards procedures specified secretary defense whether standards procedures lawful dta stat congress envisioned dta review coextensive traditional habeas corpus drafted statute manner instead used language similar used statutes issue hayman swain cf russello congress includes particular language one section statute omits another section act generally presumed congress acts intentionally purposely disparate inclusion quoting wong kim bo unlike hayman swain moreover effort preserve habeas corpus review avenue last resort saving clause exists either mca dta mca eliminates habeas review petitioners differences dta habeas statute govern mca absence ed supp likewise telling ed congress confirmed authority justice circuit judge issue writ cf felker interpreting title aedpa strip power entertain original habeas corpus petitions statute accommodates necessity factfinding arise cases allowing appellate judge justice transfer case district competent jurisdiction whose institutional capacity factfinding superior see granting appeals exclusive jurisdiction petitioners cases see dta stat congress foreclosed option choice indicates congress intended appeals limited role enemy combatant status determinations district habeas corpus proceedings dta interpreted accord latitude appeals fashion procedures necessary make review function meaningful one congressional intent respected procedures adopted extensive protective rights detainees proceeding otherwise little purpose enacting dta extent doubt remains congress intent legislative history confirms plain text strongly suggests passing dta congress intend create process differs traditional habeas corpus process name intended create limited procedure see cong rec statement graham noting dta extinguish es habeas actions order effect transfer jurisdiction cases dc circuit agreeing bill create place limited judicial review certain military administrative decisions statement kyl important note limited judicial review authorized paragraphs subsection dta review limited judicial review nature background must interpret dta assess adequacy substitute habeas corpus present cases thus test limits suspension clause ways hayman swain endeavor offer comprehensive summary requisites adequate substitute habeas corpus consider uncontroversial however privilege habeas corpus entitles prisoner meaningful opportunity demonstrate held pursuant erroneous application interpretation relevant law cyr habeas must power order conditional release individual unlawfully detained though release need exclusive remedy appropriate one every case writ granted see ex parte bollman cranch imprisonment unlawful direct prisoner discharged hurd treatise right personal liberty writ habeas corpus practice connected view law extradition fugitives ed denied probable ground shown party imprisoned without cause therefore hath right delivered writ becomes right may denied granted every man committed detained prison otherwise restrained see chessman teets remanding habeas case retrial within reasonable time easily identified attributes constitutionally adequate habeas corpus proceeding depending circumstances may required indeed habeas corpus adaptable remedy precise application scope changed depending upon circumstances see blackstone describing habeas great efficacious writ manner illegal confinement see also schlup delo habeas core equitable remedy jones cunningham habeas static narrow formalistic remedy scope grown achieve grand purpose appears habeas role extensive cases pretrial noncriminal detention little previous judicial review cause detention notably rule prisoners controvert facts jailer return followed least consistency cases hurd supra noting general rule subject exceptions including cases bail impressment oakes legal history high habeas corpus rev hen prisoner applied habeas corpus indictment trial courts examined written depositions arrested committed others even heard oral testimony determine whether evidence sufficient justifying holding trial footnotes omitted fallon meltzer habeas corpus jurisdiction substantive rights war terror harv rev early practice consistent courts occasionally permitted factual inquiries opportunity judicial review existed evidence american sources indicating even accorded strong res judicata effect prior adjudications habeas courts country routinely allowed prisoners introduce exculpatory evidence either unknown previously unavailable prisoner see ex parte pattison miss noting hile former adjudication must considered conclusive testimony adduced newly developed exculpatory evidence may authorize admission bail ex parte foster tex app construing state habeas statute allow introduction new evidence important testimony obtained though newly discovered though known petitioner power produce former hearing evidence newly discovered people martin leg obs custody criminal process indictment prisoner absolute right demand original depositions looked see whether crime fact imputed inquiry means confined return facts return may gone ascertain whether committing magistrate may arrived illogical conclusion upon evidence given see generally church treatise writ habeas corpus hereinafter church noting habeas courts hear evidence anew justice require justice mclean circuit expressed view habeas consider prior judgment conclusive clearly jurisdiction full fair hearing might considered requisites wanting ex parte robinson cas cc ohio illustrate circumstances prior adjudication bind habeas gave example case everal unimpeached witnesses provided new evidence exculpate prisoner ibid idea necessary scope habeas review part depends upon rigor earlier proceedings accords test procedural adequacy due process context see mathews eldridge noting due process clause requires assessment inter alia risk erroneous deprivation liberty interest probable value additional substitute procedural safeguards principle established foundation habeas corpus jurisprudence well chief justice marshall opinion ex parte watkins pet demonstrates like petitioner swain watkins sought writ habeas corpus imprisoned pursuant judgment district columbia holding judgment stood high ground chief justice emphasized character rendered original judgment noting record general jurisdiction criminal cases contrast inferior tribunals limited jurisdiction courts record broad remedial powers gave habeas greater confidence judgment validity see generally neuman habeas corpus executive detention removal aliens colum rev accordingly relief sought sentence resulted judgment record case watkins indeed federal habeas cases considerable deference owed ordered confinement see brown allen opinion frankfurter noting federal habeas accept state factual findings unless vital flaw found process ascertaining facts state likewise cases prisoner exhaust adequate alternative remedies filing writ federal see ex parte royall requiring exhaustion state collateral processes aspects federal habeas corpus review justified assumed usual course record provides defendants fair adversary proceeding cases involving state convictions framework also respects federalism federal cases added justification prisoner already chance seek review conviction federal forum direct appeal present cases fall outside categories however detention executive order person detained executive order rather say tried convicted need collateral review pressing criminal conviction usual course occurs judicial hearing tribunal disinterested outcome committed procedures designed ensure independence dynamics inherent executive detention orders executive review procedures context need habeas corpus urgent intended duration detention reasons bear upon precise scope inquiry habeas corpus proceedings need resemble criminal trial even detention executive order writ must effective habeas must sufficient authority conduct meaningful review cause detention executive power detain determine necessary scope habeas corpus review therefore must assess csrt process mechanism petitioners designation enemy combatants became final whether one characterizes csrt process direct review executive battlefield determination detainee enemy combatant parties first step collateral review battlefield determination makes difference proper analysis whether procedures congress put place adequate substitute habeas corpus matters sum total procedural protections afforded detainee stages direct collateral petitioners identify see myriad deficiencies csrts relevant purposes constraints upon detainee ability rebut factual basis government assertion enemy combatant already noted see part supra csrt stage detainee limited means find present evidence challenge government case assistance counsel may aware critical allegations government relied upon order detention see app pet cert noting detainee access unclassified portion government information detainee confront witnesses testify csrt proceedings given effect limits admission hearsay evidence requirement tribunal deem evidence relevant helpful detainee opportunity question witnesses likely theoretical real government defends csrt process arguing designed conform procedures suggested plurality hamdi see setting aside fact relevant language hamdi garner majority control matter hand none parties hamdi argued suspension writ habeas corpus process remained place accordingly plurality concentrated whether executive authority detain rights detainee due process clause true places hamdi plurality opinion difficult tell extrapolation ends analysis petitioner due process rights begins occasion define necessary scope habeas review suspension clause purposes context enemy combatant detentions closest plurality came discussing whether light concerns construed forbid district inquiring beyond affidavit hamdi custodian provided answer detainee habeas petition plurality answered question emphatic labeling argument extreme even assume csrts satisfy due process standards end inquiry habeas corpus collateral process exists justice holmes words cu forms tissue structure comes outside subordination proceedings although every form may preserved opens inquiry whether empty shell frank mangum dissenting opinion even procedures authorizing detention structurally sound suspension clause remains applicable writ relevant see chambers course lectures english law liberty may violated either arbitrary imprisonment without law appearance law lawful magistrate unlawful reason hayman swain make clear even prisoner detained criminal trial conducted full accordance protections bill rights case reason inquire adequacy substitute habeas procedures hayman swain prisoners detained pursuant rigorous proceedings imaginable full criminal trial enough render habeas substitute acceptable per se although make judgment whether csrts currently constituted satisfy due process standards agree petitioners even parties involved process act diligence good faith considerable risk error tribunal findings fact risk inherent process words former chief judge appeals closed accusatorial see bismullah iii ginsburg concurring denial rehearing en banc given consequence error may detention persons duration hostilities may last generation risk significant ignore writ habeas corpus substitute function effective proper remedy context conducts habeas proceeding must means correct errors occurred csrt proceedings includes authority assess sufficiency government evidence detainee also must authority admit consider relevant exculpatory evidence introduced earlier proceeding federal habeas petitioners long means supplement record review even postconviction habeas setting see townsend sain overruled part keeney opportunity constitutionally required consistent historic function province writ habeas corpus review may circumscribed underlying detention proceedings thorough two habeas cases involving enemy aliens tried war crimes yamashita ex parte quirin example limited review determining whether executive legal authority try petitioners military commission see yamashita supra application habeas corpus concerned guilt innocence petitioners consider lawful power commission try petitioner offense charged quirin supra concerned question guilt innocence petitioners military courts courts record see watkins church procedures used try general yamashita sharply criticized members see hamdan yamashita supra rutledge dissenting need revisit cases however terms proceedings yamashita quirin like eisentrager adversarial structure lacking see yamashita supra noting general yamashita represented six military lawyers hroughout proceedings defense counsel demonstrated professional skill resourcefulness proper zeal defense charged quirin supra exec order fed reg appointing counsel represent german saboteurs extent showing required government cases matter determined need explore stage hold judicial power issue habeas corpus properly invoked judicial officer must adequate authority make determination light relevant law facts formulate issue appropriate orders relief including necessary order directing prisoner release consider whether dta allows appeals conduct proceeding meeting standards obligated construe statute avoid constitutional problems cyr quoting crowell benson limits principle however canon constitutional avoidance supplant traditional modes statutory interpretation see clark martinez canon constitutional avoidance comes play application ordinary textual analysis statute found susceptible one construction canon functions means choosing ignore text purpose statute order save dta explicitly empower appeals order applicant dta review proceeding released find standards procedures used csrt hearing insufficient justify detention troubling yet present purposes assume congressional silence permits constitutionally required remedy case possible hold remedy release impliedly provided dta might read furthermore allow petitioners assert legal claims seek advance including basic claim president authority aumf detain indefinitely whether president authority turns whether aumf authorizes constitution permits indefinite detention enemy combatants department defense defines term thus challenge president authority detain essence challenge department definition enemy combatant standard used csrts petitioners cases oral argument solicitor general urged us adopt constructions allow mca remain intact see tr oral arg absence release remedy specific language allowing aumf challenges constitutional infirmities statute potentially suffers however difficult question whether dta permits appeals make requisite findings fact dta enables petitioners request review csrt determination appeals dta stat scope review provision confines appeals role reviewing whether csrt followed standards procedures issued department defense assessing whether standards procedures lawful ibid among standards requirement conclusion tribunal supported preponderance evidence allowing rebuttable presumption favor government evidence ibid assuming dta construed allow appeals review correct csrt factual determinations opposed merely certifying tribunal applied correct standard proof see way construe statute allow also constitutionally required context opportunity detainee present relevant exculpatory evidence made part record earlier proceedings face statute allows appeals consider evidence outside csrt record parallel litigation however appeals determined dta allows order production available information possession government bearing issue whether detainee meets criteria designated enemy combatant regardless whether evidence put csrt see bismullah government see pet cert pending gates bismullah hereinafter bismullah pet support five members appeals see bismullah iii henderson dissenting denial rehearing en banc opinion randolph opinion brown disagrees interpretation present purposes however assume appeals correct dta allows introduction consideration relevant exculpatory evidence reasonably available government time csrt made part record even dta review proceeding falls short constitutionally adequate substitute detainee still opportunity present evidence discovered csrt proceedings concluded dta appeals power review csrt determinations assessing legality standards procedures implies power inquire happened csrt hearing perhaps remedy certain deficiencies proceeding appeals determine csrt followed appropriate lawful standards procedures reached limits jurisdiction language dta construed allow appeals admit consider newly discovered evidence made part csrt record unavailable either government detainee csrt made findings evidence however may critical detainee argument enemy combatant cause detain remote hypothetical one petitioners mohamed nechla requested csrt hearing government contact employer petitioner claimed employer corroborate nechla contention affiliation al qaeda although csrt determined testimony relevant also found witness reasonably available testify time hearing petitioner counsel however represents witness available heard see brief boumediene petitioners detainee present reasonably available evidence demonstrating basis continued detention must opportunity present evidence habeas corpus even appeals generous construction dta however evidence identified nechla inadmissible dta review proceeding role article iii exercise habeas corpus function circumscribed manner foreclosing consideration evidence presented reasonably available detainee csrt proceedings dta disadvantages detainee limiting scope collateral review record may accurate complete contexts habeas cases prisoner already full fair opportunity develop factual predicate claims similar limitations scope habeas review may appropriate see williams taylor noting equate prisoners exercise diligence pursuing claims context however underlying detention proceedings lack necessary adversarial character detainee held responsible deficiencies record government make alternative argument dta allows introduction previously unavailable exculpatory evidence appeal point however detainee obtains evidence request deputy secretary defense convene new csrt see supp brief respondents whatever merits procedure insufficient replacement factual review detainees entitled receive habeas corpus deputy secretary determination whether initiate new proceedings wholly discretionary one see dept defense office administrative review detention enemy combatants instruction procedure review new evidence relating enemy combatant ec status may instruction decision convene csrt reconsider basis detainee enemy combatant status light evidence matter vested unreviewable discretion deputy secretary defense see way construe dta allow detainee challenge deputy secretary decision open new csrt pursuant instruction congress directed secretary defense devise procedures considering new evidence see dta detainee mechanism ensuring procedures followed dta stat makes clear appeals jurisdiction limited consideration whether status determination combatant status review tribunal regard alien consistent standards procedures specified secretary defense whether use standards procedures make determination consistent constitution laws dta narrows appeals jurisdiction reviewing final decision combatant status review tribunal alien properly detained enemy combatant deputy secretary determination whether convene new csrt status determination combatant status review tribunal much less final decision body imply dta review constitutionally sufficient replacement habeas corpus limitations detainee ability present exculpatory evidence even possible textual matter read statute necessary procedures identified overlook cumulative effect hold detainees guantanamo may dta challenge president legal authority detain contest csrt findings fact supplement record review exculpatory evidence request order release come close reinstating habeas corpus process congress sought deny language statute read light congress reasons enacting bear interpretation petitioners met burden establishing dta review process face inadequate substitute habeas corpus although hold adequate substitute must duplicate respects suffices government established detainees access statutory review provisions issue adequate substitute writ habeas corpus mca thus effects unconstitutional suspension writ view holding need discuss reach writ respect claims unlawful conditions treatment confinement vi light conclusion jurisdictional bar district entertaining petitioners claims question remains whether prudential barriers habeas corpus review circumstances government argues petitioners must seek review csrt determinations appeals proceed habeas corpus actions district noted earlier contexts prudential reasons required exhaustion alternative remedies prisoner seek federal habeas relief cases brought prisoners state custody ex parte royall thus involved federalism concerns relevant extended rule require defendants exhaust military appeals proceeding federal habeas corpus action see schlesinger real risks real threats terrorist attacks constant likely soon abate ways disrupt life laws many unforeseen attempt even general catalogue crises might occur certain principles apparent however practical considerations exigent circumstances inform definition reach law writs including habeas corpus cases tradition reflect precept cases involving foreign citizens detained abroad executive likely impractical unprecedented extension judicial power assume habeas corpus available moment prisoner taken custody habeas corpus jurisdiction applies cases proper deference accorded reasonable procedures screening initial detention lawful proper conditions confinement treatment reasonable period time domestic exigencies furthermore might also impose onerous burdens government judicial branch required devise sensible rules staying habeas corpus proceedings government comply requirements responsible way cf ex parte milligan foreign invasion civil war courts actually closed impossible administer criminal justice according law theatre active military operations war really prevails necessity furnish substitute civil authority thus overthrown preserve safety army society power left military allowed govern martial rule laws free course true detainees apprehended abroad relevant consideration determining courts role whether suitable alternative processes place protect arbitrary exercise governmental power cases us however involve detainees held short period time awaiting csrt determinations case probable appeals complete prompt review applications case requiring temporary abstention exhaustion alternative remedies much stronger qualifications longer pertain cases six years elapsed without judicial oversight habeas corpus adequate substitute demands showing executive faces onerous burdens respond habeas corpus actions require detainees complete dta review proceeding habeas corpus actions require additional months years delay first dta review applications filed year ago decisions merits issued delay fashioning new procedures unavoidable costs delay longer borne held custody detainees cases entitled prompt habeas corpus hearing decision today holds petitioners us entitled seek writ dta review procedures inadequate substitute habeas corpus petitioners cases need exhaust review procedures appeals proceeding habeas actions district law identify unconstitutional mca supp accordingly dta csrt process remain intact holding regard exhaustion read imply habeas intervene moment enemy combatant steps foot territory writ runs executive entitled reasonable period time determine detainee status entertains detainee habeas corpus petition csrt process mechanism congress president set deal issues except cases undue delay federal courts refrain entertaining enemy combatant habeas corpus petition least department acting via csrt chance review status although hold dta adequate effective substitute habeas corpus follow habeas corpus may disregard dangers detention cases intended prevent felker swain hayman stand proposition suspension clause resist innovation field habeas corpus certain accommodations made reduce burden habeas corpus proceedings place military without impermissibly diluting protections writ dta congress sought consolidate review petitioners claims appeals channeling future cases one district doubt reduce administrative burdens government legitimate objective might advanced even without amendment future case detainee files habeas petition another judicial district proper respondent served see rumsfeld padilla government move change venue hear petitioners cases district district columbia see braden judicial circuit another congress reasons vesting exclusive jurisdiction appeals perhaps avoid widespread dissemination classified information government raised similar concerns elsewhere see brief respondents bismullah pet make attempt anticipate evidentiary issues arise course detainees habeas corpus proceedings recognize however government legitimate interest protecting sources methods intelligence gathering expect district use discretion accommodate interest greatest extent possible cf reynolds recognizing evidentiary privilege civil damages case reasonable danger compulsion evidence expose military matters interest national security divulged remaining questions within expertise competence district address first instance considering procedural substantive standards used impose detention prevent acts terrorism proper deference must accorded political branches see export unlike president designated members congress neither members federal judges begin day briefings may describe new serious threats nation people law must accord executive substantial authority apprehend detain pose real danger security officials charged daily operational responsibility security may consider judicial discourse history habeas corpus act like matters far removed nation present urgent concerns established legal doctrine however must consulted teaching remote time may irrelevant present security depends upon sophisticated intelligence apparatus ability armed forces act interdict considerations however security subsists fidelity freedom first principles chief among freedom arbitrary unlawful restraint personal liberty secured adherence separation powers principles judicial authority consider petitions habeas corpus relief derives opinion undermine executive powers commander chief contrary exercise powers vindicated eroded confirmed judicial branch within constitution structure exercises judicial power legitimate necessary responsibility hear challenges authority executive imprison person petitioners custody six years definitive judicial determination legality detention access writ necessity determine lawfulness status even end obtain relief seek nation past military conflicts limited duration possible leave outer boundaries war powers undefined fear terrorism continues pose dangerous threats us years come might luxury result inevitable however political branches consistent independent obligations interpret uphold constitution engage genuine debate best preserve constitutional values protecting nation terrorism cf hamdan breyer concurring udicial insistence upon consultation weaken nation ability deal danger contrary insistence strengthens nation ability determine democratic means best bears repeating opinion address content law governs petitioners detention matter yet determined hold petitioners may invoke fundamental procedural protections habeas corpus laws constitution designed survive remain force extraordinary times liberty security reconciled system reconciled within framework law framers decided habeas corpus right first importance must part framework part law determination appeals suspension clause protections inapplicable petitioners error judgment appeals reversed cases remanded appeals instructions remand cases district proceedings consistent opinion ordered lakhdar boumediene et petitioners george bush president et al khaled al odah next friend fawzi khalid abdullah fahad al odah et petitioners et al writs certiorari appeals district columbia circuit june justice souter justice ginsburg justice breyer join concurring join opinion entirety add afterword emphasize two things one might overlook reading dissents four years ago rasul bush held statutory habeas jurisdiction extended claims foreign nationals imprisoned guantanamo bay determine legality executive potentially indefinite detention subsequent legislation eliminated statutory habeas jurisdiction claims must constitutionally based jurisdiction none justice scalia thus correct first time holds says confers constitutional habeas jurisdiction aliens imprisoned military outside area de jure national sovereignty see post dissenting opinion one reads opinion rasul seriously doubt jurisdictional question must answered way purely constitutional cases given reliance historical background habeas generally answering statutory question see nn indeed rasul directly answered historical question justice scalia says dispositive see post wrote pplication habeas statute persons detained guantanamo consistent historical reach writ habeas corpus justice scalia dismisses statement dictum see post dictum dictum well considered stated view five members historical scope writ course takes quotation rasul however much point resolve constitutional issue us majority opinion explored afresh detail deserves whether one agrees disagrees today decision bolt blue second fact insufficiently appreciated dissents length disputed imprisonments prisoners represented today locked six years ante opinion hence hollow ring dissenters suggest somehow precipitating judiciary reviewing claims military subject appeal appeals district columbia circuit handle within reasonable period time see post opinion roberts declined intervene circuit assessed nature validity congressionally mandated proceedings given detainee case post necessary consider availability writ statutory remedies shown inadequate post rushes decide fundamental question reach habeas corpus functioning dta may make decision entirely unnecessary suggestions judicial haste place given realistic acknowledgment periods exigency tempo habeas review must reflect immediate peril facing country see ante fact lapse four years time rasul put everyone notice habeas process available guantanamo prisoners lapse six years since prisoners captured incarcerated stand odds repeated suggestions dissenters cases seen judicial victory contest power political branches see post roberts dissenting post scalia dissenting several answers charge triumphalism might start basic fact constitutional history power first crown executive branch necessarily limited habeas corpus jurisdiction enquire legality executive detention one explain exercise responsibility preserve habeas corpus something much significant involved pulling hauling judicial political branches instead though enough repeat petitioners spent six years behind bars six years sustained executive detentions guantanamo subject habeas jurisdiction without actual habeas scrutiny today decision judicial victory act perseverance trying make habeas review obligation courts provide mean something value prisoners nation see ante lakhdar boumediene et petitioners george bush president et al khaled al odah next friend fawzi khalid abdullah fahad al odah et petitioners et al writs certiorari appeals district columbia circuit june chief justice roberts justice scalia justice thomas justice alito join dissenting today strikes inadequate generous set procedural protections ever afforded aliens detained country enemy combatants political branches crafted procedures amidst ongoing military conflict much careful investigation thorough debate rejects today hand without bothering say due process rights detainees possess without explaining statute fails vindicate rights single petitioner even attempted avail law operation effect majority merely replaces review system designed people representatives set shapeless procedures defined federal courts future date one help think surveying modest practical results majority ambitious opinion decision really detainees control federal policy regarding enemy combatants majority adamant guantanamo detainees entitled protections habeas corpus opinion begins deciding question regard issue difficult one primarily unique unusual jurisdictional status guantanamo bay nonetheless agree justice scalia analysis precedents pertinent history writ accordingly join dissent important point however resolved cases grounds habeas fundamentally procedural right mechanism contesting legality executive detention critical threshold question cases prior inquiry writ scope whether system political branches designed protects whatever rights detainees may possess need additional process whether called habeas something else congress entrusted threshold question first instance appeals district columbia circuit constitution surely allows congress see detainee treatment act dta stat circuit addressed issue cashiers statute without answering critical threshold question eventually get around asking whether review dta frames adequate substitute habeas ante even opinion fails determine rights detainees possess whether dta system satisfies majority instead compares undefined dta process equally undefined habeas right one given shape future district courts basis whole approach misguided also fruitless detainees claims decided dta gone anybody guess habeas process mandates likely end looking lot like dta system replaces district judges shaping reconcile review prisoners detention undoubted need protect american people terrorist threat precisely challenge congress undertook drafting dta today opinion done shift responsibility sensitive foreign policy national security decisions elected branches federal judiciary believe system political branches constructed adequately protects constitutional rights aliens captured abroad detained enemy combatants may enjoy therefore dismiss cases ground respect contrary views majority must dissent opinion makes plain certiorari review cases never granted two members today majority recognized traditional rules governing decision constitutional questions practice requiring exhaustion available remedies make appropriate deny petitions boumediene bush slip citation omitted statement stevens kennedy respecting denial certiorari given posture cases came us declined intervene circuit assessed nature validity congressionally mandated proceedings given detainee case political branches created collateral review procedure testing legality prisoners detention begins hearing combatant status review tribunal csrt followed review circuit part review congress authorized circuit decide whether csrt proceedings consistent constitution laws dta stat petitioner however invoked circuit review statute specifies see cadc brief federal respondents consequence occasion decide whether csrt hearings followed review appeals vindicate whatever constitutional statutory rights petitioners may possess see remarkably require petitioners exhaust remedies statute wait see whether remedies prove sufficient protect petitioners rights instead denies circuit opportunity assess statute remedies refuses majority expressly declines decide whether csrt procedures coupled article iii review satisfy due process see ante grossly premature pronounce detainees right habeas without first assessing whether remedies dta system provides vindicate whatever rights petitioners may claim plurality hamdi rumsfeld explained constitution guaranteed american citizen challenging detention enemy combatant right notice factual basis classification fair opportunity rebut government factual assertions neutral decisionmaker plurality specifically stated constitutionally adequate collateral process provided appropriately authorized properly constituted military tribunal given uncommon potential burden executive time ongoing military conflict point directly pertinent surely due process clause afford circumstances greater protection citizens due csrt procedures meet minimal due process requirements outlined hamdi article iii available ensure procedures followed future cases see ins cyr heikkila barber need reach suspension clause question detainees received process constitution possibly require whether process called habeas something else question writ reach need addressed required petitioners exhaust remedies statute explained gusik schilder available procedure employed rectify alleged error petitioners complain interference federal may wholly needless procedure established police errors tribunal whose judgment challenged may adequate occasion majority refuses assess whether csrts comport constitution ends razing system collateral review admits may fact satisfy due process clause structurally sound ante collateral review procedures congress provided csrt review coupled article iii scrutiny sound interference federal habeas may entirely unnecessary way know require petitioners use alternative procedures congress designed mandating petitioners exhaust statutory remedies sense suspension writ habeas corpus merely deferment resort writ corrective procedures shown futile gusik supra necessary consider availability writ statutory remedies shown inadequate protect detainees rights cf application writ habeas corpus shall granted unless appears applicant exhausted remedies available courts state respect judgments congress whose members take oath uphold constitution requires less absence assessment dta remedies question whether detainees entitled habeas entirely speculative one precedents long counseled us avoid deciding hypothetical questions constitutional law see spector motor service mclaughlin one doctrine deeply rooted process constitutional adjudication pass questions constitutionality unless questions unavoidable see also ashwander tva brandeis concurring constitutional questions decided unless necessary decision quoting burton fundamental rule judicial restraint three affiliated tribes fort berthold reservation wold engineering acknowledges ordinary course decide constitutionality dta stage abandons ordinary course light gravity constitutional issues presented prospect additional delay ante however precisely issues presented grave adherence ordinary course important principle applied unimportant much principle charges judicial activism effectively rebutted courts fairly argue following normal practices also concerned requiring petitioners pursue dta review proceeding habeas corpus actions involve additional delay ante nature habeas remedy instructs lower courts craft remand however far unsettled process congress provided dta see ante ur opinion address content law governs petitioners detention matter yet determined reason suppose review according procedures federal judiciary design case case proceed faster dta process petitioners disdained contrary system launched directs lower courts elaborate promises take longer assures us bringing habeas petitions detainees must usually complete csrt process see ante may seek review federal district either success failure surely result appeal circuit exactly judicial review starts congress system effect decision add additional layers quite possibly redundant review nobody knows new layers habeas review operate new procedures require contours undoubtedly subject fresh bouts litigation majority truly concerned delay required petitioners use dta process available years article iii review circuit system might well provided petitioners relief entitled long newly installed habeas review hope refusal require petitioners exhaust remedies provided congress violates traditional rules governing decision constitutional questions boumediene slip statement stevens kennedy respecting denial certiorari disrespect rules makes decision awkward business rushes decide fundamental question reach habeas corpus functioning dta may make decision entirely unnecessary scant idea dta judicial review actually operate ii majority overreaching particularly egregious given weakness objections dta simply put opinion fails terms majority strikes statute adequate substitute habeas review ante fails show rights detainees vindicated dta system central purpose habeas corpus test legality executive detention writ requires fundamentally article iii able hear prisoner claims necessary order release see brown allen jackson concurring result beyond process given prisoner entitled receive depends circumstances rights prisoner see mathews eldridge much hemming hawing majority appears concede dta provides article iii competent order release see ante issue dispute process guantanamo prisoners entitled use test legality detention hamdi concluded american citizens detained enemy combatants entitled limited process much process supplied military tribunal review follow article iii precisely system adequate vindicate whatever due process rights petitioners may reaches opposite conclusion partly misreads statute majority appears understand review system invalidates actually works specifically csrt review review circuit fit together briefly acknowledging recitation facts government designed csrts comply due process requirements identified plurality hamdi ante proceeds dismiss tribunal proceedings suspect method used executive determining status detainees first instance see ante leads treat review dta provides circuit opportunity detainees challenge status determination see ante attempts explain glancing treatment csrts arguing hether one characterizes csrt process direct review executive battlefield determination first step collateral review battlefield determination makes difference ante first majority quite wrong dismiss executive determination detainee status battlefield judgment somehow provisional made great haste fact detainees designated enemy combatants multiple levels review military officers officials department defense memorandum secretary navy implementation combatant status review tribunal procedures enemy combatants detained guantanamo bay naval base july app pet cert hereinafter implementation memo majority equally wrong characterize csrts part initial determination process instead means detainees challenge government determination executive designed csrts mirror army regulation see brief federal respondents procedural model plurality hamdi said provided type process enemy combatant expect habeas see plurality opinion csrts operate much habeas courts hearing detainee collateral challenge first time gather evidence call witnesses take testimony render decision legality government detention see implementation memo app pet cert csrt finds particular detainee improperly held order release see majority insists even csrts satisf ied due process standards full habeas review still necessary habeas collateral remedy available even prisoners detained pursuant rigorous proceedings imaginable ante comment makes sense csrts incorrectly viewed method used executive determining prisoners status part collateral review test validity determination see gusik majority deprecate importance csrts treating something use military tribunal csrts review aliens detention familiar light hamdi plurality said due process rights enjoyed american citizens detained enemy combatants vindicated appropriately authorized properly constituted military tribunal dta represents congress considered attempt provide accused alien combatants detained guantanamo constitutionally adequate opportunity contest detentions tribunal congress went dta csrt review first tier collateral review dta system statute provides additional review article iii given rationale today decision well worth recalling exactly dta provides respect statute directs circuit consider whether particular alien status determination consistent standards procedures specified secretary defense whether use standards procedures make determination consistent constitution laws dta stat determines whether csrt procedures constitutional determines whether procedures followed particular case short hamdi plurality concluded type review enough satisfy due process even citizens see congress followed lead find victim constitutional bait switch hamdi merits scant attention remarkable omission hamdi bears directly issues us majority attempts dismiss hamdi relevance arguing availability federal habeas never doubt case occasion define necessary scope habeas review context enemy combatant detentions ante hardly hamdi scope habeas review context enemy combatant detentions petitioner american citizen held within enemy combatant invoked writ challenge detention careful examination writ due process clause enunciated basic process constitution entitled hamdi expect habeas process consisted right receive notice factual basis classification fair opportunity rebut government factual assertions neutral decisionmaker light government national security responsibilities plurality found process tailored alleviate uncommon potential burden executive time ongoing military conflict ibid example government rely hearsay claim presumption favor evidence see hamdi suggested basic process collateral review provided military tribunal pointed tribunals model satisfy constitution requirements see absence process military tribunal held article iii courts need conduct habeas proceedings ensure minimum requirements due process achieved ibid emphasis added even petitioner entitled process received properly constituted military review panel given limited due process rights government weighty interests see contrary majority hamdi pressing relevance establishes procedures american citizens detained enemy combatants expect habeas proceeding dta system military tribunal hearings followed article iii review looks lot like procedure hamdi blessed nothing else plain design dta congress president nation military leaders made effort follow precedent however take yes answer majority contends congress envisioned dta review coextensive traditional habeas corpus granted circuit far broader review authority ante maybe comment reveals majority misunderstanding raditional habeas corpus takes account hamdi recognized uncommon potential burden executive time ongoing military conflict besides congress executive envision dta review assume means circuit review see ante detainees opportunity challenge detentions instead political branches crafted csrt circuit review operate together goal providing noncitizen detainees level collateral process hamdi said satisfy due process rights american citizens see brief federal respondents given statutory scheme political branches adopted given hamdi simply majority dismiss csrt procedures far limited used military trials therefore beneath level process eliminate need habeas corpus review ante question much process csrts provide comparison modes adjudication question whether csrt procedures coupled judicial review specified dta provide basic process hamdi said constitution affords american citizens detained enemy combatants see virtue refusal allow circuit assess petitioners statutory remedies virtue refusal consider outset fit remedies due process majority finds position evaluating whether dta system adequate substitute habeas review without knowing rights either habeas dta supposed protect majority attempts elide problem holding petitioners right habeas corpus comparing dta historic office writ ante habeas majority acknowledges flexible remedy rather substantive right precise application change depending upon circumstances ante shape habeas review ultimately depends nature rights petitioner may assert see reid covert harlan concurring result question specific safeguards constitution appropriately applied particular context reduced issue process defendant particular circumstances particular case scope federal habeas review traditionally limited contexts others depending status detainee rights may assert see cyr immigration cases question whether evidence support deportation order courts generally review factual determinations made executive omitted burns wilson plurality opinion military habeas corpus inquiry scope matters open review always narrow civil cases yamashita courts may inquire whether detention complained within authority detaining petitioner military tribunals lawful authority hear decide condemn action subject judicial review ex parte quirin federal habeas review military commission verdict limited determining commission jurisdiction declaring petitioners right habeas way excuses explaining dta protect whatever due process statutory rights petitioners may dta provides means vindicating petitioners rights necessarily adequate substitute habeas corpus see swain pressley hayman part assume due process rights petitioners may possess greater american citizens detained enemy combatants worth noting hamdi controlling opinion said constitution guarantees citizen detainees basic procedural rights process securing rights tailored alleviate uncommon potential burden executive time ongoing military conflict majority however objects procedural protections afforded detainees csrt hearings limited ante evidentiary limitations complains reflect nature issue contest namely status aliens captured armed forces abroad alleged enemy combatants contrary repeated suggestions majority dta review need parallel habeas privileges enjoyed noncombatant american citizens set ed supp cf ante need provide process adequate noncitizens detained alleged combatants basic process detainees due habeas petitioners said absolute minimum suspension clause protects writ existed cyr supra quoting felker turpin majority admits number historical authorities suggest time constitution ratification courts abstained altogether matters involving prisoners war ante accurate process provided prisoners dta plainly sufficient allows alleged combatants challenge factual legal bases detentions assuming constitutional baseline robust dta still provides adequate process majority standards today opines suspension clause guarantees prisoners detainees meaningful opportunity demonstrate held pursuant erroneous application interpretation relevant law ante internal quotation marks omitted holds adequate substitute tribunal reviewing detainees cases must power order conditional release individual unlawfully detained ibid dta system csrt review executive determination followed circuit review sufficiency evidence constitutionality csrt process meets criteria csrt stage every petitioner right present evidence wrongfully detained includes right call witnesses reasonably available question witnesses called tribunal introduce documentary evidence testify tribunal see implementation memo app pet cert concedes detainees may confront witnesses called tribunal suggests right theoretical real effect limits admission hearsay evidence ante complains petitioners lack assistance counsel given limits access classified information may aware critical allegations ante none complaints persuasive detainees opportunity confront witness appears tribunal may call witnesses implementation memo requires detainees witnesses reasonably available app pet cert requirement drawn army regulation ch entirely consistent government interest avoiding futile search evidence might burden warmaking responsibilities hamdi supra dangerous mission assigned forces abroad fight terrorists serve subpoenas correct forms hearsay evidence admissible csrt hamdi expressly approved use hearsay habeas courts hearsay example may need accepted reliable available evidence government classified information detainees permitted access implementation memo provides detainee personal representative may review classified documents csrt stage summarize detainee implementation memo supra brief federal respondents prisoner counsel enjoys privilege appeal circuit access classified material alleged alien enemy combatants ever provided aware single instance certainly majority cites none detainees petitioners provided access classified material form indeed prisoners war challenge status determinations geneva convention afforded access see army regulation ch model one hamdi cited consistent demands due process citizens see alternative propose allow free access classified information ignore risk prisoner may eventually convey learns parties hostile country deadly consequences helped apprehend detainee design better system communicating detainees substance classified information relevant cases without fatally compromising national security interests sources majority come forward instead majority fobs vexing question district courts answer road prisoners war permitted access classified information neither permitted access counsel another supposed failing csrt process yet guantanamo detainees hardly denied legal assistance provided personal representative previously noted may access classified information help detainee arrange witnesses assist detainee preparation case even aid detainee presenting evidence tribunal see implementation memo supra provision personal representative order one several ways csrt procedures generous provided prisoners war army regulation keep mind csrt stage detainees receive additional process circuit including full access appellate counsel right challenge factual legal bases detentions dta empowers appeals determine whether csrt observed procedures specified secretary defense also whether use standards procedures consistent constitution laws stat provisions permit detainees dispute sufficiency evidence allow detainees challenge csrt panel interpretation relevant law even constitutionality csrt proceedings includes solicitor general acknowledges ability dispute government right detain alleged combatants first place dispute government definition enemy combatant brief federal respondents article iii plainly neutral decisionmaker told dta provides prisoners held guantanamo bay adequate opportunity contest bases detentions habeas corpus need allow dta provides opportunity process fact afforded prisoners war alleged enemy combatants history despite guarantees finds dta system inadequate habeas substitute one central reason detainees unable introduce appeal stage exculpatory evidence discovered conclusion csrt proceedings see ante hints darkly dta may suffer infirmities see ante imply dta review constitutionally sufficient replacement habeas corpus limitations detainee ability present exculpatory evidence bother name making response bit difficult stands assume regards supposed defect identify gravest lot muster ice beneath feet thin indeed noted csrt procedures provide ample opportunity detainees introduce exculpatory evidence whether documentary nature live witnesses military tribunals see infra implementation memo app pet cert ability introduce evidence denied contrary constitution laws circuit authority say review nevertheless asks us imagine instance evidence discovered csrt panel renders decision appeals reviews detainee case scenario course yet come pass review circuit occurred provides basis rejecting dta habeas substitute majority correct dta contemplate introduction newly discovered evidence appeals petitioners solicitor general agree dta permit circuit remand detainee case new csrt determination brief petitioner boumediene et al brief federal respondents event detainee alleges obtained new persuasive exculpatory evidence considered tribunal available circuit readily remand case tribunal allow body consider evidence first instance appeals later review new reinstated decision light supplemented record sort procedure sounds familiar federal appellate courts reviewing factual determinations follow procedure variety circumstances see white remanding claim district brady evidentiary hearing avila roe remanding habeas claim district evidentiary hearing clarify factual record leone observing faced direct appeal underdeveloped claim ineffective assistance counsel appellate may remand district necessary factfinding remand relief available detainees caught hypothetical conundrum dta expressly directs secretary defense provide periodic review new evidence may become available relating enemy combatant status detainee dta regulations issued department defense provide detainee puts forward new material evidence previously presented detainee csrt deputy secretary defense direct csrt convene reconsider basis detainee status light new information office administrative review detention enemy combatants instruction procedure review new evidence relating enemy combatant ec status may brief federal respondents pursuant dta resulting csrt determination reviewable full addition dta requires department defense conduct yearly review status prisoner see stat deputy secretary defense promulgated concomitant regulations establishing administrative review board assess annually need continue detain enemy combatant deputy secretary defense order osd may app pet cert words implementing order purpose annual review afford every detainee opportunity explain longer threat released ibid board findings forwarded presidentially appointed civilian within department defense secretary defense designated administer review process designated civilian official authority order release upon board recommendation hand wringing dta treatment exculpatory evidence show roving search constitutionally problematic scenarios delicate power pronouncing act congress unconstitutional said exercised reference hypothetical cases thus imagined raines today invents sort reverse facial challenge applies gusto scenario statute might constitutionally infirm law must struck cf salerno facial challenge must establish set circumstances exists act valid see also washington glucksberg stevens concurring judgments facial challenge must fail statute legitimate quoting broadrick oklahoma new method constitutional adjudication underscores failure follow usual procedures require petitioners demonstrate harmed statute challenge absence concrete showing unable imagine plausible hypothetical dta unconstitutional second criterion adequate substitute power order conditional release individual unlawfully detained ante basically admits dta read permit circuit order release light traditional principles construing statutes avoid difficult constitutional issues reasonably possible see ante solicitor general concedes remedial authority sort must implied statute given dta like general habeas law see provides express remedy kind brief federal respondents parties agree least dta empowers circuit remand prisoner case csrt instructions perform new status assessment brief petitioner boumediene et al brief federal respondents avoid constitutional infirmity reasonable imply see ashwander brandeis concurring validity act congress drawn question cardinal principle ascertain whether construction statute fairly possible constitutional question may avoided internal quotation marks omitted see also cyr especially view solicitor general concession oral argument supplemental brief authority release might read statute see tr oral arg supplemental brief federal respondents grudgingly suggests congress silence question remedies suggests acquiescence constitutionally required remedy ante argument favor statutorily authorized release stronger dta parallels score noteworthy way remedy general federal habeas statute provides heard determined facts shall dispose matter law justice require ibid long held party disputes includes power order release see wilkinson dotson writ history makes clear traditionally accepted specific instrument obtain release unlawful confinement internal quotation marks omitted dta similarly read congress substituted dta review habeas corpus unique purpose writ release applicant unlawful confinement allen mccurry dta read confer appeals authority order release appropriate circumstances section plainly contemplates release addressing effect release alien custody department defense jurisdiction stat reading avoids serious constitutional difficulty consistent text statute circuit thus order release csrts order release head administrative review boards recommendation panels order release multiple release provisions within dta system satisfy majority requirement tribunal substituting habeas authority release prisoner basis contrary conclusion summed following sentence near end opinion hold detainees guantanamo may dta challenge president legal authority detain contest csrt findings fact supplement record review newly discovered previously unavailable evidence request order release come close reinstating habeas corpus process congress sought deny ante words interpretation statute make adequate substitute habeas must rejected congress possibly intended enact adequate substitute habeas saved lot trouble simply announced approach beginning rather end opinion iii eloquence detainees right writ makes effort elaborate exactly remedy prescribes differ procedural protections detainees enjoy dta objects detainees limited access witnesses classified material proposes alternatives indeed simply ignores many difficult questions holding presents example become csrt process majority says federal courts generally refrain entertaining detainee challenges petitioner csrt proceeding finished see ante xcept cases undue delay deference csrt determination entitled problems take witness availability makes majority think witnesses become magically available review procedure labeled habeas location witnesses change suddenly become easily susceptible service process subpoenas issued american habeas courts run basra enforced speaking witnesses detainees able call military officers witnesses majority answers difficulties say leaves open distinct possibility habeas remedy said done end looking great deal like dta review rejects see ante opinion recognize however government legitimate interest protecting sources methods intelligence gathering expect district use discretion accommodate interest greatest extent possible role judiciary limited determining whether procedures meet essential standard fairness due process clause extend imposing procedures merely displace congressional choices policy landon plasencia majority rests decision abstract hypothetical concerns step back consider real world congress executive actually granted aliens captured armed forces overseas found enemy combatants right hear bases charges including summary classified evidence ability challenge bases detention military tribunals modeled geneva convention procedures detainees released result process brief federal respondents right csrt testify introduce evidence call witnesses question government calls secure release appropriate right aid personal representative arranging presenting cases csrt circuit right employ counsel challenge factual record contest lower tribunal legal determinations ensure compliance constitution laws secure release errors establish entitlement relief sum dta satisfies majority criteria assessing adequacy statutory scheme provides combatants held guantanamo greater procedural protections ever afforded alleged enemy detainees whether citizens aliens national history detainees analysis leaves prospect litigation determine content new habeas right followed litigation resolve particular cases followed litigation circuit started invoked dta procedure congress whose attempt determine democratic means best balance security american people detainees liberty interests see hamdan rumsfeld breyer concurring unceremoniously brushed aside great writ whose majesty hardly enhanced extension jurisdictionally quirky outpost tangible benefit anyone rule law unless meant rule lawyers arguably greater role military intelligence officials shaping policy alien enemy combatants certainly american people today lose bit control conduct nation foreign policy unelected politically unaccountable judges respectfully dissent lakhdar boumediene et petitioners george bush president et al khaled al odah next friend fawzi khalid abdullah fahad al odah et petitioners et al writs certiorari appeals district columbia circuit june justice scalia chief justice justice thomas justice alito join dissenting today first time nation history confers constitutional right habeas corpus alien enemies detained abroad military forces course ongoing war chief justice dissent join shows procedures prescribed congress detainee treatment act provide essential protections habeas corpus guarantees thus suspension writ basis exists judicial intervention beyond act allows problem today opinion fundamental still writ habeas corpus never run favor aliens abroad suspension clause thus application intervention military matter entirely ultra vires shall devote lengthy opinion legal errors contained opinion contrary usual practice however think appropriate begin description disastrous consequences done today america war radical islamists enemy began killing americans american allies abroad marine barracks lebanon khobar towers dhahran embassies dar es salaam nairobi uss cole yemen see national commission terrorist attacks upon commission report pp september enemy brought battle american soil killing twin towers new york city pentagon washington pennsylvania see threatened attacks homeland one need walk buttressed barricaded washington board plane anywhere country know threat serious one armed forces field enemy afghanistan iraq last week countrymen arms killed game today opinion plays upon nation commander chief make war harder us almost certainly cause americans killed consequence tolerable necessary preserve legal principle vital constitutional republic blatant abandonment principle produces decision today president relied settled precedent johnson eisentrager established prison guantanamo bay enemy aliens citing case president office legal counsel advised great weight legal authority indicates federal district properly exercise habeas jurisdiction alien detained guantanamo bay memorandum patrick philbin john yoo deputy assistant attorneys general office legal counsel william haynes ii general counsel dept defense law otherwise military surely transported prisoners kept afghanistan transferred another foreign military bases turned allies detention facilities might well worse detainees long term decision today accomplishes little except perhaps reduce enemy combatants ostensibly seeks protect short term however decision devastating least prisoners hitherto released guantanamo bay returned battlefield see pt minority views sens kyl sessions graham cornyn coburn hereinafter minority report captured killed see ibid see also mintz released detainees rejoining fight washington post pp others succeeded carrying atrocities innocent civilians one case detainee released guantanamo bay masterminded kidnapping two chinese dam workers one later shot death used human shield pakistani commandoes see khan lancaster pakistanis rescue hostage dies washington post another former detainee promptly resumed post senior taliban commander murdered nations engineer three afghan soldiers mintz supra still another murdered afghan judge see minority report reported last month released detainee carried suicide bombing iraqi soldiers mosul iraq see white detainee joined iraq suicide attack washington post may mind detainees military concluded enemy combatants return kill illustrates incredible difficulty assessing enemy combatant foreign theater operations environment lend rigorous evidence collection astoundingly today raises bar requiring military officials appear civilian courts defend decisions procedural evidentiary rules go beyond congress specified chief justice dissent makes clear idea procedural evidentiary rules determined civil courts contemplation least applied since otherwise reason hold congressionally prescribed procedures unconstitutional impose higher standard proof foreign battlefields current procedures require number enemy returned combat obviously increase even military evidence bring forward often foolhardy release evidence attorneys representing enemies one escalation procedures clear affording detainees increased access witnesses perhaps troops serving afghanistan classified information see ante prosecution omar abdel rahman federal prosecutors gave names unindicted blind sheik defense lawyers information hands osama bin laden within two weeks see minority report another case trial testimony revealed enemy monitoring cellular network whereupon promptly stopped using enabling evade capture continue atrocities see today military elbows aside mere two terms ago hamdan rumsfeld held quite amazingly detainee treatment act stripped habeas jurisdiction guantanamo petitioners claims four members today majority joined opinion saying following nothing prevents president returning congress seek authority trial military commission believes necessary emergency prevents consultation congress judicial insistence upon consultation weaken nation ability deal danger contrary insistence strengthens nation ability determine democratic means best constitution places faith democratic means breyer concurring turns kidding response congress president request quickly enacted military commissions act emphatically reasserting want prisoners filing habeas petitions therefore clear congress executive political branches determined limiting role civilian courts adjudicating whether prisoners captured abroad properly detained important success war men women fighting solicitor general argued military commissions act detainee treatment act represent effort political branches strike appropriate balance need preserve liberty need accommodate weighty sensitive governmental interests ensuring fact fought enemy war return battle brief respondents internal quotation marks omitted matter today decrees good reason accept judgment two branches apparent ante government declares presents credible arguments military mission guantanamo compromised habeas corpus courts jurisdiction hear detainees claims competence judgment congress president point none whatever blunders nonetheless henceforth today opinion makes unnervingly clear handle enemy prisoners war ultimately lie branch knows least national security concerns subject entails ii suspension clause constitution provides privilege writ habeas corpus shall suspended unless cases rebellion invasion public safety may require art cl law operating written constitution role determine whether conflict clause military commissions act conflict arises suspension clause preserves privilege writ aliens held military enemy combatants base guantanamo bay located within sovereign territory cuba frequently stated owe great deference congress view law passed constitutional see department labor triplett national dairy products see also american communications assn douds jackson concurring part dissenting part especially area foreign military affairs perhaps area accorded congress greater deference rostker goldberg indeed accord great deference even president acts alone area see department navy egan regan wald light principles deference conclusion common law yiel definite answer questions us ante leaves choice affirm appeals writ preserved constitution possibly extend farther common law provided clause written see part iii infra admits determine whether writ historically extended aliens held abroad concedes necessarily guantanamo bay lies outside sovereign territory see ante rasul bush scalia dissenting together two concessions establish view perfectly ambiguous whether writ provided remedy petitioners basis strike military commissions act must leave undisturbed considered judgment coequal weave clear constitutional prohibition pure interpretive equipoise resorts fundamental principles interpret suspension clause ante according writ habeas corpus indispensable mechanism monitoring separation powers test extraterritorial reach must subject manipulation whose power designed restrain ante approach distorts nature separation powers role constitutional structure fundamental principles constitution embodies derived judicially imagined matrix sum total individual provisions constitution sets forth considering full shape constitution principles emerge nonsensical interpret provisions light general principles dreamed rather must interpreted mean understood mean people ratified understood scope writ habeas corpus designed restrain says actions executive understood limits upon scope seems grasp much designed restrain incursions third branch manipulation territorial reach writ judiciary poses much threat proper separation powers manipulation executive show manipulation afoot understood limits upon writ deny jurisdiction habeas petitions brought enemy aliens entrust president crucial wartime determinations status continued confinement purports derive precedents functional test extraterritorial reach writ ante shows military commissions act unconstitutionally restricts scope habeas remarkable pertinent precedents johnson eisentrager conclusively establishes opposite confronted claims germans held landsberg prison american military facility located american zone occupation postwar germany captured china american military commission sitting convicted war crimes collaborating japanese germany surrender like petitioners germans claimed detentions violated constitution international law sought writ habeas corpus writing justice jackson held american courts lacked habeas jurisdiction cited sic instance country writ known issued behalf alien enemy relevant time stage captivity within territorial jurisdiction nothing text constitution extends right anything statutes justice jackson elaborated historical scope writ alien traditionally hospitable accorded generous ascending scale rights increases identity society extending constitutional protections beyond citizenry pains point alien presence within territorial jurisdiction gave judiciary power act lest doubt primacy territorial sovereignty determining jurisdiction habeas alien justice jackson distinguished two cases aliens permitted seek habeas relief ground prisoners cases custody within sovereign territory discussing ex parte quirin yamashita reason sovereignty time philippines jackson wrote yamashita stood much quirin american courts eisentrager thus held held beyond doubt constitution ensure habeas aliens held areas government us believe eisentrager rested ractical considerations difficulties ordering government produce prisoners habeas corpus proceeding ante formal sovereignty says merely one consideration bears upon constitutional guarantees apply given location ante sheer rewriting case eisentrager mentioned practical concerns sure purpose determining circumstances american courts issue writs habeas corpus aliens abroad cited support holding constitution empower courts issue writs habeas corpus aliens abroad circumstances justice black accurately said dissent opinion inescapably denies courts power afford least bit protection alien subject occupation government abroad even neither enemy belligerent even peace officially declared also tries change eisentrager functional test quoting paragraph lists characteristics german petitioners support assumption constitutional right habeas corpus must hold prisoner military authorities constitutionally entitled writ even though enemy alien never resided captured outside territory held military custody prisoner war tried convicted military commission sitting outside offenses laws war committed outside times imprisoned outside quoted part ante paragraph introduced sentence stating foregoing demonstrates much must go invest enemy aliens resident captured imprisoned abroad standing demand access courts emphasis added much rule set forth prior section opinion said extending constitutional protections beyond citizenry pains point alien presence within territorial jurisdiction gave judiciary power act words characteristics german prisoners set forth application functional test show case represented fortiori application ordinary rule reaffirmed sentences immediately follow listing germans characteristics pointed privilege litigation extended aliens whether friendly enemy permitting presence country implied protection basis invoked prisoners relevant time within territory sovereign scenes offense capture trial punishment beyond territorial jurisdiction eisentrager nowhere mentions functional test notion based upon principle patently also reasons eisentrager must read functional opinion prior decisions insular cases see ante cites statement balzac porto rico real issue insular cases whether constitution extended philippines porto rico went provisions applicable way limitation upon exercise executive legislative power dealing new conditions requirements ante conveniently omits balzac predicate statement constitution force porto rico wherever whenever sovereign power government exerted emphasis added insular cases concerned territories acquired congress article iv authority indisputably part sovereign territory see reid covert plurality opinion black none insular cases stands proposition aliens located outside sovereign territory constitutional rights eisentrager held opposite respect habeas corpus said eisentrager distinguished yamashita ground sovereignty philippines also relies ractical considerations influenced decision reid covert supra see ante justices majority except justice frankfurter limited analysis rights citizens abroad see reid supra plurality opinion black harlan concurring result frankfurter limited analysis even narrower class civilian dependents american military personnel abroad see opinion concurring result trying wring kind support reid today novel holding resorts chain logic hold members reid majority says divided whether ross according held certain circumstances american citizens abroad indictment rights overruled view reid plurality overruled ross justices frankfurter harlan preferred distinguish upshot citizenship relevant factor case necessary overturn ross something justices harlan frankfurter unwilling ante exactly point supposed prove say practical considerations determine precise content constitutional protections american citizens enjoy abroad quite different saying practical considerations determine whether aliens abroad enjoy constitutional protections whatever including habeas words merely citizenship sufficient factor extend constitutional rights abroad mean necessary one tries reconcile eisentrager holding today pointing postwar germany answerable allies pla occupation ante factors mentioned eisentrager worse still impossible see relate asserted purpose creating functional test namely ensure judicial inquiry detention prevent political branches acting impunity possibly trusts political branches beholden foreign powers act alone transforming fortiori elements discussed functional test still left difficulty elements exist well regard detainees make application newly crafted functional test produce different result present cases must rely upon factors germans tried military commission violations laws war present petitioners contrast tried combatant status review tribunal csrt whose procedural protections according ipse dixit fall well short procedures adversarial mechanisms eliminate need habeas corpus review ante one looking functional equivalents put eisentrager present cases category much less place present cases preferred category difference cries lesser procedures present cases prisoners eisentrager prosecuted crimes cessation hostilities prisoners enemy combatants detained ongoing conflict see hamdi rumsfeld plurality opinion suggesting adequate substitute habeas corpus use tribunal akin csrt authorize detention american citizens enemy combatants course present conflict category prisoner comparable detainees eisentrager criminal defendants prisoners war detained alone world war ii single one accorded right detention validated habeas corpus action federal despite fact present soil see bradley military commissions act habeas corpus geneva conventions analysis produces crazy result whereas convicted sentenced death war crimes without judicial remedy enemy combatants detained war least insofar confined area away battlefield exercises absolute indefinite control may seek writ habeas corpus federal even bizarre implication reasoning prisoners military plans try commission future date may file habeas petitions secure release trials take place simply support assertion constitutional rights extend aliens held outside sovereign territory see eisentrager clearer privilege habeas corpus extend aliens abroad blatantly distorting eisentrager avoids difficulty explaining overruled see planned parenthood southeastern casey identifying stare decisis factors rule aliens abroad constitutionally entitled habeas corpus proved unworkable practice anything functional test never provide clear guidance future eisentrager forms coherent whole accepted proposition aliens abroad substantive rights constitution since announced relevant factual premises changed engendered considerable reliance part military acknowledges text history clearly compel contrary ruling sad day rule law important constitutional precedent discarded without apologia much less apology drives today decision neither meaning suspension clause principles precedents rather inflated notion judicial supremacy says extraterritorial applicability suspension clause turned formal notions sovereignty possible political branches govern without legal constraint areas beyond sovereign territory ante says duty say law difficult imagine analysis foundation power federal courts declare acts congress unconstitutional lies power duty courts decide cases controversies properly raines citing marbury madison cranch emphasis added power say law circumscribed limits statutorily constitutionally conferred jurisdiction see lujan defenders wildlife precisely question cases whether constitution confers habeas jurisdiction federal courts decide petitioners claims irrational arrogant say answer must yes otherwise long places habeas run long new functional test satisfied every case circumstances possible political branches govern without legal constraint put impartially areas legal determinations branches shudder words judicial supremacy really assured constitutional rule creates gap rationale rule leads conclude ultimate unexpressed goal preserve power review confinement enemy prisoners held executive anywhere world functional test usefully evades precedential landmine eisentrager inherently subjective clears wide path traverse years come iii putting aside conclusive precedent eisentrager clear original understanding suspension clause habeas corpus available aliens abroad judge randolph thorough opinion detailed see cadc suspension clause reads privilege writ habeas corpus shall suspended unless cases rebellion invasion public safety may require art cl proper course constitutional interpretation give text meaning understood time adoption people see crawford washington course especially demanded constitution limits power congress infringe upon right nature writ habeas corpus suspended must defined writ available time founding see mcnally hill see also ins cyr scalia dissenting duhme fdic jackson concurring entirely clear english common law writ habeas corpus extend beyond sovereign territory crown sure writ extraordinary territorial ambit prerogative writ unlike writs extend beyond realm england places crown sovereign sharpe law habeas corpus ed hereinafter sharpe see also note power english courts issue writ habeas places within dominions crown england position scotland relation power jurid rev hereinafter note habeas king cowle burr eng prerogative writs issue foreign countries even british subjects confined king dominions areas crown sovereign see sharpe chambers course lectures english law pp curley ed blackstone commentaries laws england hereinafter blackstone thus writ never extended scotland although england james succeeded english throne considered foreign dominion different crown king scotland sharpe note habeas lord mansfield wrote foreign dominions belong prince succeeds throne england power send writ kind send habeas corpus scotland cowle supra eng writ codified habeas corpus act stood alongside magna charta english bill rights towering common law lighthouse liberty beacon framing lawyers america consciously steered course amar sixth amendment first principles geo writ established colonies beginning least one colony adopted act almost verbatim see dept political science state research reports walker american reception writ liberty section xi act stated writ run may directed run county palatine privileged places within kingdom england dominion wales town berwick upon tweed islands jersey guernsey car ch county palatine exempt jurisdictions franchises granted crown local authorities manage municipal affairs including system crown maintained ultimate sovereignty see blackstone places listed wales jersey guernsey territories crown even though part england proper see cowle supra eng wales blackstone jersey guernsey sharpe act extend writ elsewhere even though existence places british prisoners sent recognized act possibility evading judicial review eliminated expanding writ abroad forbidding article xii act shipment prisoners places writ run execution difficult see car ch see generally nutting wholesome law habeas corpus act hist rev habeas corpus act confirms consensus view scholars jurists writ run outside sovereign territory crown says idea jurisdiction followed king officers equally credible view ante credible support cites page boumediene brief turn cites dicta rasul mischaracterizing lord mansfield statement writ ran place subjection crown cowle supra eng clear lord mansfield saying writ extended outside realm england proper outside sovereign territory dismisses example scotland grounds scotland judicial system writ practical matter enforced ante explanations totally unpersuasive existence separate system never basis denying power issue writ see holdsworth history english law ed citing ex parte anderson el el logistical problems difficulties present places like channel islands writ run attempts draw analogy prudential limitations issuing writ remote areas within sovereign territory crown jurisdictional prohibition issuing writ scotland see ante authority cites lord mansfield expressly distinguished two concepts stating english courts power send writ places within crown sovereignty question propriety power send writ kind scotland foreign dominions cowle supra eng writ run scotland even union scotland remained foreign dominion prince succeeded english throne union extend prerogative english crown scotland sharpe see also sir matthew hale prerogatives king yale ed sum available historical evidence points conclusion writ available common law aliens captured held outside sovereign territory crown despite three opening briefs three reply briefs support legion amici petitioners failed identify single case history law supports claim jurisdiction finds significant recorded case denying jurisdiction prisoners either see ante case standing remarkable proposition writ issue foreign land surely reported whereas case denying writ lack jurisdiction likely minimum absence reported case either way leaves unrefuted voluminous commentary stating habeas confined dominions crown history teaches confirmed nature limitations constitution places upon suspension writ suspended cases rebellion invasion art cl latter case invasion plainly limited territory conceivable rebellion mounted american citizens abroad surely overwhelming majority occurrences domestic extraterritorial scope habeas turned flexible functional considerations holds constitution limit suspension almost entirely instances domestic crisis surely even greater justification suspension foreign lands might hold prisoners war ongoing conflict correspondingly less threat liberty government suspends writ supposed application foreign lands even extreme view prisoners entitled fewer constitutional rights makes sense therefore constitution generally forbid suspension writ abroad indeed writ application may objected foregoing analysis proves much since already suggested writ habeas corpus run abroad benefit citizens position citizens throughout world may entitled habeas corpus rights precisely position adopted eisentrager see even holding aliens abroad habeas corpus rights rasul scalia dissenting emphasis deleted reason divergence difficult discern writ received law new constitutional republic took changes demanded system rule derived consent governed citizens subjects afforded defined protections government justice story wrote common law england taken respects america ancestors brought general principles claimed birthright brought adopted portion applicable situation van ness pacard pet see also hall common law account reception vand rev accords principle say plurality opinion said reid government reaches punish citizen abroad shield bill rights parts constitution provide protect life liberty stripped away happens another land see also analysis distinction citizens aliens follows undoubted proposition constitution create general principles law create juridical relation country undefined limitless class noncitizens beyond territory kennedy concurring sum conclude text history suspension clause provide basis jurisdiction affirm appeals even eisentrager govern cases today warps constitution way goes beyond narrow issue reach suspension clause invoking judicially brainstormed principles establish manipulable functional test extraterritorial reach habeas corpus doubt extraterritorial reach constitutional protections well blatantly misdescribes important precedents conspicuously justice jackson opinion johnson eisentrager breaks chain precedent old common law prohibits judicial inquiry detentions aliens abroad absent statutory authorization tragically sets military commanders impossible task proving civilian whatever standards devises future evidence supports confinement every enemy prisoner nation live regret done today dissent footnotes together al odah next friend al odah et al et also certiorari footnotes light foregoing concurrence wrong suggest insufficiently appreciat issue delay cases see ante opinion souter issued decisions rasul bush hamdi rumsfeld concurrence makes sound political branches done nothing interim fact congress responded months later enacting dta congress faulted taking time consider best accommodate detainees interests need keep american people safe since dta became law petitioners steadfastly refused avail statute review mechanisms unfair complain dta system involves much delay petitioners consistently refused use preferring litigate instead today decision obligating district courts craft new procedures replace dta prolong process delay relief wonders might happen detainee puts forward new material evidence deputy secretary refuses convene new csrt see ante answer detainee petition circuit review dta directs procedures review new evidence included among procedures submitted paragraph governing csrt review enemy combatant status stat undisputed circuit statutory authority review enforce procedures see dta footnotes even today resist striking pose faux deference congress president citing quoted passage says political branches consistent independent obligations interpret uphold constitution engage genuine debate best preserve constitutional values protecting nation terrorism ante indeed apparently means political branches debate third branch decide opinion seeks avoid straightforward conclusion saying careful foreclose possibility protections suspension clause expanded along developments define present scope writ ante citing ins cyr foreclosing possibility expanded demonstrating least holding without demonstration seems suffice today majority expanded must either hold suspension clause expanded application aliens abroad acknowledge basis set aside actions congress president neither failed attempt distinguish eisentrager comes notion de jure sovereignty simply additional factor added presumably de facto sovereignty practical control determine availability habeas aliens necessary factor whereas de facto sovereignty perhaps de facto sense speculates eisentrager found sovereignty lacking see ante one expected eisentrager explain detail practical control american zone occupation probably course novel de jure approach explain writ never issued scotland assuredly within de facto control english crown see infra support holding de facto sovereignty relevant reach habeas corpus cites decision fleming page case application customs statute foreign port occupied forces see ante case used phrase subject sovereignty dominion refer practical control foreign country fleming went explain port remained part enemy country even though military occupation subjugation compel held regard part dominions give form civil government extend laws fleming relevant cases undermines holding justice souter concurrence relies decision four terms ago rasul bush interpreted habeas statute extend aliens held guantanamo bay thinks one reads opinion rasul seriously doubt jurisdictional question must answered way purely constitutional cases ante rasul devoted primarily explanation eisentrager statutory holding longer controlled given subsequent decision braden judicial circuit see rasul supra opinion today justice souter joins expressly rejects historical evidence cited rasul support conclusion reach habeas corpus compare ante moreover even one accept true justice souter calls rasul dictum explain eisentrager constitutional holding must overruled distinguished rasul distinguished eisentrager statutory holding ground inapplicable constitutional holding words even conclude eisentrager rule incorrect original matter explain justification departing precedent therefore possibly true rasul controls case justice souter suggests dissent rasul bush mistakenly included scotland among places writ run dicta rasul also cited ex parte mwenya explained dissent ach judge mwenya made clear detainee status subject material resolution case also argues fact writ run ireland even though ruled separate crown shows formal sovereignty touchstone habeas jurisdiction ante passage blackstone cites however describes ireland dependent subordinate kingdom part king dominions blackstone internal quotation marks omitted lord mansfield opinion cowle plainly understood ireland dominion crown england contrast foreign dominio scotland thought distinction dispositive question habeas jurisdiction cowle supra eng