Wednesday, June 18, 2008
"Move America Forward" hosts huge telethon on 26 June
Historic pro-troop effort underway.
A team of patriotic leaders are working together in a historic undertaking with the goal of sending the largest single shipment of care packages to U.S. troops in American history. The care package drive will result in the shipment of not just 1,000 care packages—a feat accomplished by the Grand Ole Opry in October 2007 (Source Link). Organizers similarly won’t settle for just the 10,000 packages shipped as part of an impressive effort undertaken by the Nevada Girl Scouts (Source Link). And they plan to surpass the efforts of the terrific organization, Operation Gratitude, which undertook a multi-day effort to pack and ship 50,000 care packages last year (Source Link).
Move America Forward, the nation’s largest pro-troop organization, has launched this historic drive to rally Americans to show our troops in Iraq & Afghanistan just how much support they have from the American people back home.
The grand finale for the push will take place on June 26th when a Jerry Lewis style 8-hour Internet Telethon ("From the Frontlines") will take place. This cutting edge production “From The Frontlines” will be broadcast live online by UStream.tv and hosted by Melanie Morgan & Michelle Malkin. Live and taped reports will be broadcast from our troops serving in Iraq & Afghanistan during the historic 8-hour event.
Americans can sponsor the care packages from Move America Forward’s by ordering via this link from MAF’s online webstore partner: TheCampaignStore.com
The Jelly Belly candy company (maker of President Ronald Reagan’s favorite candy) has donated 100,000 bags of their gourmet jelly beans that will be included in the care packages to assist in the effort. While the jelly beans shipped in the past were warmly received by the troops, military members say their real value comes in being able to hand out the candy to the children of the war-torn nations in which they are serving. These 100,000 bags of gourmet jelly beans are now being used to launch a “Candy Diplomacy” program as gifts to Iraqi and Afghani children. Each bag is printed with the following message (in both English & Arabic): “A gift from the American people in hope that your country will one day enjoy the freedom and opportunities that we have in the United States.”
______________________________________
Note: You can sponsor packages to help this drive, and ask others to join this effort by visiting our care package drive sponsorship page:
http://www.thecampaignstore.com/store/default.asp?parentid=409
Additional information will be continuously posted in the days to come at the Move America Forward website: www.MoveAmericaForward.org
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Department of Defense
DIRECTIVE
NUMBER 1344.10
February 19, 2008
USD(P&R)
SUBJECT: Political Activities by Members of the Armed Forces
References: (a) DoD Directive 1344.10, “Political Activities by Members of the Armed
Forces on Active Duty,” August 2, 2004 (hereby canceled)
(b) Sections 973, 888, 101, and Chapter 47 of title 10, United States Code
(c) DoD Instruction 1334.1, “Wearing of the Uniform,” October 26, 2005
(d) Section 441a of title 2, United States Code
(e) through (i), see Enclosure 1
1. PURPOSE
This Directive:
1.1. Reissues Reference (a) to update policies on political activities of members of the
Armed Forces.
1.2. Implements section 973(b) through (d) of Reference (b).
2. APPLICABILITY
This Directive applies to the Office of the Secretary of Defense, the Military Departments
(including the Coast Guard at all times, including when it is a Service in the Department of
Homeland Security by agreement with that Department), the Office of the Chairman of the Joint
Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the
Department of Defense, the Defense Agencies, the DoD Field Activities, and all other
organizational entities in the Department of Defense (hereafter referred to collectively as the
“DoD Components”). Paragraph 4.3. applies to members of the National Guard, even when in a
non-Federal status. Other provisions apply to members of the National Guard while on active
duty, which, for purposes of this Directive only, also includes full-time National Guard duty.
DoDD 1344.10, February 19, 2008
3. DEFINITIONS
The terms used in this Directive are defined in Enclosure 2.
4. POLICY
It is DoD policy to encourage members of the Armed Forces (hereafter referred to as
“members”) (including members on active duty, members of the Reserve Components not on
active duty, members of the National Guard even when in a non-Federal status, and retired
members) to carry out the obligations of citizenship. In keeping with the traditional concept that
members on active duty should not engage in partisan political activity, and that members not on
active duty should avoid inferences that their political activities imply or appear to imply official
sponsorship, approval, or endorsement, the following policy shall apply:
4.1. General
4.1.1. A member of the Armed Forces on active duty may:
4.1.1.1. Register, vote, and express a personal opinion on political candidates and
issues, but not as a representative of the Armed Forces.
4.1.1.2. Promote and encourage others to exercise their voting franchise, if such
promotion does not constitute use of their official authority or influence to interfere with the
outcome of any election.
4.1.1.3. Join a partisan or nonpartisan political club and attend its meetings when not
in uniform, subject to the restrictions of subparagraph 4.1.2.4. (See DoD Instruction 1334.1
(Reference (c).)
4.1.1.4. Serve as an election official, if such service is not as a representative of a
partisan political party, does not interfere with the performance of military duties, is performed
when not in uniform, and the Secretary concerned has given prior approval. The Secretary
concerned may NOT delegate the authority to grant or deny such permission.
4.1.1.5. Sign a petition for a specific legislative action or a petition to place a
candidate’s name on an official election ballot, if the signing does not obligate the member to
engage in partisan political activity and is done as a private citizen and not as a representative of
the Armed Forces.
4.1.1.6. Write a letter to the editor of a newspaper expressing the member’s personal
views on public issues or political candidates, if such action is not part of an organized letter-
writing campaign or a solicitation of votes for or against a political party or partisan political
cause or candidate. If the letter identifies the member as on active duty (or if the member is
otherwise reasonably identifiable as a member of the Armed Forces), the letter should clearly
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DoDD 1344.10, February 19, 2008
state that the views expressed are those of the individual only and not those of the Department of
Defense (or Department of Homeland Security for members of the Coast Guard).
4.1.1.7. Make monetary contributions to a political organization, party, or committee
favoring a particular candidate or slate of candidates, subject to the limitations under section
441a of title 2, United States Code (U.S.C.) (Reference (d)); section 607 of title 18, U.S.C.
(Reference (e)); and other applicable law.
4.1.1.8. Display a political bumper sticker on the member’s private vehicle.
4.1.1.9. Attend partisan and nonpartisan political fundraising activities, meetings,
rallies, debates, conventions, or activities as a spectator when not in uniform and when no
inference or appearance of official sponsorship, approval, or endorsement can reasonably be
drawn.
4.1.1.10. Participate fully in the Federal Voting Assistance Program.
4.1.2. A member of the Armed Forces on active duty shall not:
4.1.2.1. Participate in partisan political fundraising activities (except as permitted in
subparagraph 4.1.1.7.), rallies, conventions (including making speeches in the course thereof),
management of campaigns, or debates, either on one’s own behalf or on that of another, without
respect to uniform or inference or appearance of official sponsorship, approval, or endorsement.
Participation includes more than mere attendance as a spectator. (See subparagraph 4.1.1.9.)
4.1.2.2. Use official authority or influence to interfere with an election, affect the
course or outcome of an election, solicit votes for a particular candidate or issue, or require or
solicit political contributions from others.
4.1.2.3. Allow or cause to be published partisan political articles, letters, or
endorsements signed or written by the member that solicits votes for or against a partisan
political party, candidate, or cause. This is distinguished from a letter to the editor as permitted
under the conditions noted in subparagraph 4.1.1.6.
4.1.2.4. Serve in any official capacity with or be listed as a sponsor of a partisan
political club.
4.1.2.5. Speak before a partisan political gathering, including any gathering that
promotes a partisan political party, candidate, or cause.
4.1.2.6. Participate in any radio, television, or other program or group discussion as
an advocate for or against a partisan political party, candidate, or cause.
4.1.2.7. Conduct a political opinion survey under the auspices of a partisan political
club or group or distribute partisan political literature.
3
DoDD 1344.10, February 19, 2008
4.1.2.8. Perform clerical or other duties for a partisan political committee or
candidate during a campaign, on an election day, or after an election day during the process of
closing out a campaign.
4.1.2.9. Solicit or otherwise engage in fundraising activities in Federal offices or
facilities, including military reservations, for any political cause or candidate.
4.1.2.10. March or ride in a partisan political parade.
4.1.2.11. Display a large political sign, banner, or poster (as distinguished from a
bumper sticker) on a private vehicle.
4.1.2.12. Display a partisan political sign, poster, banner, or similar device visible to
the public at one’s residence on a military installation, even if that residence is part of a
privatized housing development.
4.1.2.13. Participate in any organized effort to provide voters with transportation to
the polls if the effort is organized by or associated with a partisan political party, cause, or
candidate.
4.1.2.14. Sell tickets for or otherwise actively promote partisan political dinners and
similar fundraising events.
4.1.2.15. Attend partisan political events as an official representative of the Armed
Forces, except as a member of a joint Armed Forces color guard at the opening ceremonies of the
national conventions of the Republican, Democratic, or other political parties recognized by the
Federal Elections Committee or as otherwise authorized by the Secretary concerned.
4.1.2.16. Make a campaign contribution to, or receive or solicit (on one’s own
behalf) a campaign contribution from, any other member of the Armed Forces on active duty.
Any contributions not prohibited by this subparagraph remain subject to the gift provisions of
sections 2635.301-2635.304 of title 5, Code of Federal Regulations (Reference (f)). See
subparagraph 4.1.2.1. for general prohibitions on partisan fundraising activity.
4.1.3. Commissioned officers shall not use contemptuous words as prohibited by section
888 of Reference (b) or participate in activities proscribed by DoD Directives 5200.2 and 1325.6
(References (g) and (h), respectively).
4.1.4. Subject to any other restrictions in law, a member of the Armed Forces not on
active duty may take the actions or participate in the activities permitted in subparagraph 4.1.1.,
and may take the actions and participate in the activities prohibited in subparagraph 4.1.2,
provided the member is not in uniform and does not otherwise act in a manner that could
reasonably give rise to the inference or appearance of official sponsorship, approval, or
endorsement.
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DoDD 1344.10, February 19, 2008
4.1.5. Activities not expressly prohibited may be contrary to the spirit and intent of this
Directive. Any activity that may be reasonably viewed as directly or indirectly associating the
Department of Defense or the Department of Homeland Security (in the case of the Coast Guard)
or any component of these Departments with a partisan political activity or is otherwise contrary
to the spirit and intention of this Directive shall be avoided.
4.2. Nomination or Candidacy for Civil Office in the U.S. Government or State or Other
Non-U.S. Government Offices
4.2.1. Paragraph 4.2. applies to:
4.2.1.1. A civil office in the U.S. Government that:
4.2.1.1.1. Is an elective office;
4.2.1.1.2. Requires an appointment by the President; or
4.2.1.1.3. Is a position on the executive schedule under sections 5312-5317 of
title 5, U.S.C. (Reference (i)).
4.2.1.2. A civil office in a State; the District of Columbia; a territory, possession, or
commonwealth of the United States; or any political subdivision thereof.
4.2.2. A regular member, or a retired regular or Reserve Component member on active
duty under a call or order to active duty for more than 270 days, may not be a nominee or
candidate for the offices described in subparagraph 4.2.1., except when the Secretary concerned
grants permission.
4.2.2.1. The Secretary concerned may NOT delegate the authority to grant or deny
such permission.
4.2.2.2. Such permission shall not authorize activity while on active duty that is
otherwise prohibited by other provisions of law or this Directive.
4.2.2.3. Such permission is required regardless of whether evidence of nomination or
candidacy for civil office is filed prior to commencing active duty service or whether the
member is an incumbent.
4.2.2.4. If a member covered by the prohibition in subparagraph 4.2.2. becomes a
nominee or candidate for civil office prior to commencing active duty, then the member must
request permission in writing and submit the request to the Secretary concerned before entering
active duty. The member must understand that if the Secretary concerned does not grant
permission, then the member must immediately decline the nomination or withdraw as a
candidate.
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DoDD 1344.10, February 19, 2008
4.2.3. A retired regular member or Reserve Component member on active duty under a
call or order to active duty for 270 days or fewer may remain or become a nominee or candidate
for the offices set out in subparagraph 4.2.1. provided there is no interference with the
performance of military duty.
4.2.4. Notwithstanding any other provision of this Instruction:
4.2.4.1. Any enlisted member on active duty may seek, hold, and exercise the
functions of a nonpartisan civil office as a notary public or member of a school board,
neighborhood planning commission, or similar local agency, provided that the office is held in a
non-military capacity and there is no interference with the performance of military duties.
4.2.4.2. Any warrant or commissioned officer on active duty may seek, hold, and
exercise the functions of a nonpartisan civil office on an independent school board that is located
exclusively on a military reservation, provided that the office is held in a non-military capacity
and there is no interference with the performance of military duties.
4.3. Additional Limitations on Nomination or Candidacy and Campaigning
4.3.1. Members not on active duty who are nominees or candidates for the offices
described in subparagraph 4.2.1. may, in their campaign literature (including Web sites, videos,
television, and conventional print advertisements):
4.3.1.1. Use or mention, or permit the use or mention of, their military rank or grade
and military service affiliation; BUT they must clearly indicate their retired or reserve status.
4.3.1.2. Include or permit the inclusion of their current or former specific military
duty, title, or position, or photographs in military uniform, when displayed with other non-
military biographical details. Any such military information must be accompanied by a
prominent and clearly displayed disclaimer that neither the military information nor photographs
imply endorsement by the Department of Defense or their particular Military Department (or the
Department of Homeland Security for members of the Coast Guard); e.g., “John Doe is a
member of the Army National Guard. Use of his military rank, job titles, and photographs in
uniform does not imply endorsement by the Department of the Army or the Department of
Defense.”
4.3.2. Members included in subparagraph 4.3.1. may NOT, in campaign literature
(including Web sites, videos, television, and conventional print advertisements):
4.3.2.1. Use or allow the use of photographs, drawings, and other similar media
formats of themselves in uniform as the primary graphic representation in any campaign media,
such as a billboard, brochure, flyer, Web site, or television commercial. For the purposes of this
policy, “photographs” include video images, drawings, and all other similar formats of
representational media.
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DoDD 1344.10, February 19, 2008
4.3.2.2. Depict or allow the depiction of themselves in uniform in a manner that does
not accurately reflect their actual performance of duty. For the purpose of this policy,
“photographs” include video images, drawings, and all other similar formats of representational
media.
4.3.3. Any member on active duty who is permitted to be, or otherwise not prohibited
from being, a nominee or candidate for office as described in subparagraph 4.2.1. may NOT
participate in any campaign activities. This includes open and active campaigning and all
behind-the-scene activities. For example, such members described in this paragraph who are
candidates or nominees may not:
4.3.3.1. Direct, control, manage, or otherwise participate in their campaign, including
behind-the-scene activities.
4.3.3.2. Make statements to or answer questions from the news media regarding
political issues or regarding government policies or activities unless specifically authorized to do
so by an appropriate supervisor or commander.
4.3.3.3. Publish or allow to be published partisan political articles, literature, or
documents that they have signed, written, or approved that solicit votes for or against a partisan
political party, candidate, issue, or cause.
4.3.4. Those members included in subparagraph 4.3.3. who are nominees or candidates
for office must:
4.3.4.1. Take affirmative, documented efforts to inform those who work for them and
those whom they control that they (the nominees or candidates) may not direct, control, manage,
or otherwise participate in campaign activities on their own behalf.
4.3.4.2. Take all reasonable efforts to prevent current or anticipated advertisements
that they (the nominees or candidates) control from being publicly displayed or running in any
media. This includes Web sites devoted to the nomination or candidacy. Web sites created
before entry on active duty may not be updated or revised and may be ordered shut down as the
Secretary concerned may direct.
4.3.5. Those who require permission to be nominees or candidates under the provisions
of subparagraph 4.2.2., or who are on active duty and are not otherwise prohibited from being a
nominee or a candidate under the provisions of subparagraph 4.2.3., must complete the
acknowledgment of limitations at Enclosure 4. Those who require permission must complete the
acknowledgment before permission may be granted. Those who do not require permission must
complete the acknowledgment within 15 days of becoming a nominee or candidate or within 15
days of entry on active duty if already a nominee or candidate. The acknowledgment must be
forwarded through the nominee’s or candidate’s immediate supervisor to the first general officer
in the chain of command.
7
DoDD 1344.10, February 19, 2008
4.4. Holding and Exercising the Functions of a U.S. Government Civil Office Attained by
Election or Appointment
4.4.1. Paragraph 4.4. applies to a civil office in the U.S. Government that:
4.4.1.1. Is an elective office;
4.4.1.2. Requires an appointment by the President; or
4.4.1.3. Is in a position on the executive schedule under sections 5312-5317 of
Reference (i).
4.4.2. A regular member, or retired regular or Reserve Component member on active
duty under a call or order to active duty for more than 270 days, may not hold or exercise the
functions of civil office set out in subparagraph 4.4.1. unless otherwise authorized in paragraph
4.4. or by law.
4.4.3. A retired regular member, or a Reserve Component member on active duty under
a call or order to active duty for 270 days or fewer, may hold and exercise the functions of a civil
office provided there is no interference with the performance of military duty.
4.4.4. A member on active duty may hold and exercise the functions of a civil office
under paragraph 4.4. when assigned or detailed (while on active duty) to such office to perform
such functions, provided the assignment or detail does not interfere with military duties.
4.4.5. Any member on active duty authorized to hold or exercise or not prohibited from
holding or exercising the functions of office under paragraph 4.4. are still subject to the
prohibitions of subparagraph 4.1.2.
4.5. Holding and Exercising the Functions of a State or Other Non-U.S. Government Office
Attained by Election or Appointment
4.5.1. Paragraph 4.5. applies to a civil office in a State; the District of Columbia; a
territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.5.2. A regular member may not hold or exercise the functions of civil office unless
otherwise authorized in paragraph 4.5. or by law.
4.5.3. A retired regular or Reserve Component member on active duty under a call or
order to active duty for more than 270 days may hold─but shall NOT exercise─the functions of a
civil office as set out in subparagraph 4.5.1., as long as:
4.5.3.1. The holding of such office is not prohibited under the laws of the State; the
District of Columbia; a territory, possession, or commonwealth of the United States; or any
political subdivision thereof.
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DoDD 1344.10, February 19, 2008
4.5.3.2. The Secretary concerned grants permission after determining that holding
such office does not interfere with the performance of military duties. The Secretary concerned
may NOT delegate the authority to grant or deny such permission.
4.5.4. A retired regular or Reserve Component member on active duty under a call or
order to active duty for 270 days or fewer may hold and exercise the functions of civil office
provided there is no interference with the performance of military duties.
4.5.5. Any member on active duty authorized to hold or exercise, or not prohibited from
holding or exercising, the functions of office under paragraph 4.5. are still subject to the
prohibitions of subparagraph 4.1.2.
4.6. Actions When Prohibitions Apply
4.6.1. Members affected by the prohibitions against being a nominee or candidate or
holding or exercising the functions of a civil office may request retirement (if eligible),
discharge, or release from active duty. The Secretary concerned may approve these requests,
consistent with the needs of the Service, unless the member is:
4.6.1.1. Obligated to fulfill an active duty service commitment.
4.6.1.2. Serving or has been issued orders to serve afloat or in an area that is
overseas, remote, a combat zone, or a hostile pay fire area.
4.6.1.3. Ordered to remain on active duty while the subject of an investigation or
inquiry.
4.6.1.4. Accused of an offense under Chapter 47 of Reference (b) or serving a
sentence or punishment for such an offense.
4.6.1.5. Pending other administrative separation action or proceedings.
4.6.1.6. Indebted to the United States.
4.6.1.7. In a Reserve Component and serving involuntarily under a call or order to
active duty that specifies a period of active duty of more that 270 days during a period of
declared war or national emergency; or other period when a unit or individual of the National
Guard or other Reserve Component has been involuntarily called or ordered to active duty as
authorized by law.
4.6.1.8. In violation of this Directive or an order or regulation prohibiting such
member from assuming or exercising the functions of civil office.
4.6.2. Subparagraph 4.6.1. does not preclude a member’s involuntary discharge or
release from active duty.
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DoDD 1344.10, February 19, 2008
4.6.3. No actions undertaken by a member in carrying out assigned military duties shall
be invalidated solely by virtue of such member having been a candidate or nominee for a civil
office in violation of the prohibition of paragraph 4.2. or having held or exercised the functions
of a civil office in violation of the prohibitions of paragraphs 4.4. or 4.5.
4.6.4. This is a lawful general regulation. Violations of paragraphs 4.1. through 4.5. of
this Directive by persons subject to the Uniform Code of Military Justice are punishable under
Article 92, “Failure to Obey Order or Regulation,” Chapter 47 of Reference (b).
5. RESPONSIBILITIES
5.1. The Under Secretary of Defense for Personnel and Readiness shall administer this
Directive.
5.2. The Secretaries of the Military Departments shall issue appropriate implementing
documents for their respective Departments.
6. RELEASABILITY
UNLIMITED. This Directive is approved for public release. Copies may be obtained through the
Internet from the DoD Issuances Web Site at http://www.dtic.mil/whs/directives.
7. EFFECTIVE DATE
This Directive is effective immediately.
Enclosures - 4
E1. References, continued
E2. Definitions
E3. Nonpartisan Activities and Other Miscellaneous Guidance
E4. Candidacy or Nomination for Political Office Counseling Statement
10
DoDD 1344.10, February 19, 2008
E1. ENCLOSURE 1
REFERENCES, continued
(e) Section 607 of title 18, United States Code
(f) Sections 2635.301-2635.304 of title 5, Code of Federal Regulations
(g) DoD Directive 5200.2, “DoD Personnel Security Program,” April 9, 1999
(h) DoD Directive 1325.6, “Guidelines for Handling Dissident and Protest Activities Among
Members of the Armed Forces,” October 1, 1996
(i) Sections 5312-5317 of title 5, United States Code
ENCLOSURE 1 11
DoDD 1344.10, February 19, 2008
E2. ENCLOSURE 2
DEFINITIONS
E2.1. Active Duty. Full-time duty in the active military service of the United States regardless
of duration or purpose. Active duty includes full-time training duty; annual training duty; and
attendance, while in the active military service, at a school designated as a Service school by law
or by the Secretary concerned. For purposes of this Directive only, active duty also includes full-
time National Guard duty.
E2.2. Call or Order to Active Duty for More Than 270 Days. Any prohibitions or limitations
this Directive triggers by a call or order to active duty for more than 270 days begins on the first
day of the active duty.
E2.3. Civil Office. A non-military office involving the exercise of the powers or authority of
civil government, to include elective and appointed office in the U.S. Government, a U.S.
territory or possession, State, county, municipality, or official subdivision thereof. This term
does not include a non-elective position as a regular or reserve member of civilian law
enforcement, fire, or rescue squad.
E2.4. Nonpartisan Political Activity. Activity supporting or relating to candidates not
representing, or issues not specifically identified with, national or State political parties and
associated or ancillary organizations or clubs. Issues relating to State constitutional amendments
or referendums, approval of municipal ordinances, and others of similar character are not
considered under this Instruction as specifically identified with national or State political parties.
E2.5. Partisan Political Activity. Activity supporting or relating to candidates representing, or
issues specifically identified with, national or State political parties and associated or ancillary
organizations or clubs.
E2.6. Secretary Concerned. See section 101(a)(9) of Reference (b).
ENCLOSURE 2 12
DoDD 1344.10, February 19, 2008
E3. ENCLOSURE 3
NONPARTISAN ACTIVITIES AND OTHER MISCELLANEOUS GUIDANCE
E3.1. LOCAL NONPARTISAN POLITICAL ACTIVITIES
This Directive does not preclude participation in local nonpartisan political campaigns,
initiatives, or referendums. A member taking part in local nonpartisan political activity,
however, shall not:
E3.1.1. Wear a uniform or use any Government property or facilities while participating.
E3.1.2. Allow such participation to interfere with or prejudice the member’s performance of
military duties.
E3.1.3. Engage in conduct that in any way may reasonably imply that the Military
Department concerned or any component of such Department has taken an official position on,
or is otherwise involved in, the local political campaign or issue.
E3.2. ADDITIONAL REQUIREMENTS
Members of the Armed Forces on active duty engaging in permissible political activities shall:
E3.2.1. Give full time and attention to the performance of military duties during prescribed
duty hours.
E3.2.2. Avoid any outside activities that may be prejudicial to the performance of military
duties or likely to bring discredit upon the Armed Forces.
E3.2.3. Refrain from participating in any political activity while in military uniform, as
proscribed by Reference (c), or using Government facilities or resources for furthering political
activities.
ENCLOSURE 3 13
DoDD 1344.10, February 19, 2008
E4. ENCLOSURE 4
CANDIDACY OR NOMINATION FOR POLITICAL OFFICE
ACKNOWLEDGMENT OF LIMITATIONS
[To be prepared by any member on active duty (or who is about to enter active duty) who is:
Alternate A: Granted permission to remain or to become a candidate or nominee for civil office,
(subparagraph 4.2.2.); or
Alternate B: Not otherwise prohibited from remaining or becoming a candidate or nominee for
civil office (subparagraph 4.2.3.).
(Prepare as a letter or memorandum, signed by the member and addressed through the member’s
immediate supervisor (if known) to the first general or flag officer in the member’s chain of
command.)]
(Date)
[Select the appropriate paragraph 1].
Alternate A (over 270 days)
1. I understand that for me to remain or to become a nominee or a candidate for the civil office
of [specifically identify the civil office] while on active duty, I must have the permission of the
[name of the Secretary concerned] as required by subparagraph 4.2.2. of DoD Directive (DoDD)
1344.10, “Political Activities by Members of the Armed Forces.” I understand that such
permission will be granted sparingly because it runs counter to the traditional concept that
Service members on active duty should not engage in partisan political activity. Furthermore, I
understand that if I am already a candidate or nominee, I must submit my request for permission
from [specifically identify the Secretary concerned] before I enter active duty. If I am already on
active duty and wish to become a candidate or nominee, I must receive permission first.
Alternate B (270 days or fewer)
1. I understand that I am authorized to remain or to become a candidate or nominee for the civil
office of [specifically identify the civil office] while on active duty. This is authorized by
subparagraph 4.2.3. of DoD Directive (DoDD) 1344.10, “Political Activities by Members of the
Armed Forces,” because I am under a call or order to active duty for 270 days or fewer. I
understand that I may remain a candidate or nominee only as long as my candidacy or
nomination does not interfere with the performance of my military duty.
2. I have read and fully understand that DoDD 1344.10, paragraphs 4.2. and 4.3. severely limit
my ability to participate as a nominee or candidate in the political process. I specifically
understand that if I am granted permission to be a candidate or nominee or am not otherwise
prohibited from becoming a candidate or nominee, I may not direct, control, endorse, or
ENCLOSURE 4 14
DoDD 1344.10, February 19, 2008
otherwise participate in campaign activities on my behalf (including behind-the-scene activities).
Furthermore, I must:
a. Take affirmative, documented efforts to inform those who work for me and those
whom I control that I may not direct, control, manage, or otherwise participate in campaign
activities on my own behalf.
b. Take all reasonable efforts to prevent current or anticipated advertisements that I
control from being publicly displayed or running in any media. This includes Web sites devoted
to the nomination or candidacy. Such Web sites created before my entry on active duty must
otherwise comply with subparagraph 4.3.1. and may not be updated or revised while I am on
active duty. Furthermore, I understand that the Secretary concerned may direct that the Web site
be removed.
3. I have read and understand the prohibitions found in DoDD 1344.10, paragraphs 4.2 and 4.3.
4. I understand that DoDI 1334.1, “Wearing of the Uniform,” prohibits the wearing of a military
uniform during or in connection with the furtherance of any political or commercial interests not
otherwise prohibited or limited above.
5. Finally, I understand that should I be elected to this civil office while on active duty, I will be
subject to the policies concerning holding and exercising the function of civil office also found in
DoDD 1344.10.
[Include signature block of nominee or candidate.]
ENCLOSURE 4 15
Department of Defense
DIRECTIVE
NUMBER 1344.10
February 19, 2008
USD(P&R)
SUBJECT: Political Activities by Members of the Armed Forces
References: (a) DoD Directive 1344.10, “Political Activities by Members of the Armed
Forces on Active Duty,” August 2, 2004 (hereby canceled)
(b) Sections 973, 888, 101, and Chapter 47 of title 10, United States Code
(c) DoD Instruction 1334.1, “Wearing of the Uniform,” October 26, 2005
(d) Section 441a of title 2, United States Code
(e) through (i), see Enclosure 1
1. PURPOSE
This Directive:
1.1. Reissues Reference (a) to update policies on political activities of members of the
Armed Forces.
1.2. Implements section 973(b) through (d) of Reference (b).
2. APPLICABILITY
This Directive applies to the Office of the Secretary of Defense, the Military Departments
(including the Coast Guard at all times, including when it is a Service in the Department of
Homeland Security by agreement with that Department), the Office of the Chairman of the Joint
Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the
Department of Defense, the Defense Agencies, the DoD Field Activities, and all other
organizational entities in the Department of Defense (hereafter referred to collectively as the
“DoD Components”). Paragraph 4.3. applies to members of the National Guard, even when in a
non-Federal status. Other provisions apply to members of the National Guard while on active
duty, which, for purposes of this Directive only, also includes full-time National Guard duty.
DoDD 1344.10, February 19, 2008
3. DEFINITIONS
The terms used in this Directive are defined in Enclosure 2.
4. POLICY
It is DoD policy to encourage members of the Armed Forces (hereafter referred to as
“members”) (including members on active duty, members of the Reserve Components not on
active duty, members of the National Guard even when in a non-Federal status, and retired
members) to carry out the obligations of citizenship. In keeping with the traditional concept that
members on active duty should not engage in partisan political activity, and that members not on
active duty should avoid inferences that their political activities imply or appear to imply official
sponsorship, approval, or endorsement, the following policy shall apply:
4.1. General
4.1.1. A member of the Armed Forces on active duty may:
4.1.1.1. Register, vote, and express a personal opinion on political candidates and
issues, but not as a representative of the Armed Forces.
4.1.1.2. Promote and encourage others to exercise their voting franchise, if such
promotion does not constitute use of their official authority or influence to interfere with the
outcome of any election.
4.1.1.3. Join a partisan or nonpartisan political club and attend its meetings when not
in uniform, subject to the restrictions of subparagraph 4.1.2.4. (See DoD Instruction 1334.1
(Reference (c).)
4.1.1.4. Serve as an election official, if such service is not as a representative of a
partisan political party, does not interfere with the performance of military duties, is performed
when not in uniform, and the Secretary concerned has given prior approval. The Secretary
concerned may NOT delegate the authority to grant or deny such permission.
4.1.1.5. Sign a petition for a specific legislative action or a petition to place a
candidate’s name on an official election ballot, if the signing does not obligate the member to
engage in partisan political activity and is done as a private citizen and not as a representative of
the Armed Forces.
4.1.1.6. Write a letter to the editor of a newspaper expressing the member’s personal
views on public issues or political candidates, if such action is not part of an organized letter-
writing campaign or a solicitation of votes for or against a political party or partisan political
cause or candidate. If the letter identifies the member as on active duty (or if the member is
otherwise reasonably identifiable as a member of the Armed Forces), the letter should clearly
2
DoDD 1344.10, February 19, 2008
state that the views expressed are those of the individual only and not those of the Department of
Defense (or Department of Homeland Security for members of the Coast Guard).
4.1.1.7. Make monetary contributions to a political organization, party, or committee
favoring a particular candidate or slate of candidates, subject to the limitations under section
441a of title 2, United States Code (U.S.C.) (Reference (d)); section 607 of title 18, U.S.C.
(Reference (e)); and other applicable law.
4.1.1.8. Display a political bumper sticker on the member’s private vehicle.
4.1.1.9. Attend partisan and nonpartisan political fundraising activities, meetings,
rallies, debates, conventions, or activities as a spectator when not in uniform and when no
inference or appearance of official sponsorship, approval, or endorsement can reasonably be
drawn.
4.1.1.10. Participate fully in the Federal Voting Assistance Program.
4.1.2. A member of the Armed Forces on active duty shall not:
4.1.2.1. Participate in partisan political fundraising activities (except as permitted in
subparagraph 4.1.1.7.), rallies, conventions (including making speeches in the course thereof),
management of campaigns, or debates, either on one’s own behalf or on that of another, without
respect to uniform or inference or appearance of official sponsorship, approval, or endorsement.
Participation includes more than mere attendance as a spectator. (See subparagraph 4.1.1.9.)
4.1.2.2. Use official authority or influence to interfere with an election, affect the
course or outcome of an election, solicit votes for a particular candidate or issue, or require or
solicit political contributions from others.
4.1.2.3. Allow or cause to be published partisan political articles, letters, or
endorsements signed or written by the member that solicits votes for or against a partisan
political party, candidate, or cause. This is distinguished from a letter to the editor as permitted
under the conditions noted in subparagraph 4.1.1.6.
4.1.2.4. Serve in any official capacity with or be listed as a sponsor of a partisan
political club.
4.1.2.5. Speak before a partisan political gathering, including any gathering that
promotes a partisan political party, candidate, or cause.
4.1.2.6. Participate in any radio, television, or other program or group discussion as
an advocate for or against a partisan political party, candidate, or cause.
4.1.2.7. Conduct a political opinion survey under the auspices of a partisan political
club or group or distribute partisan political literature.
3
DoDD 1344.10, February 19, 2008
4.1.2.8. Perform clerical or other duties for a partisan political committee or
candidate during a campaign, on an election day, or after an election day during the process of
closing out a campaign.
4.1.2.9. Solicit or otherwise engage in fundraising activities in Federal offices or
facilities, including military reservations, for any political cause or candidate.
4.1.2.10. March or ride in a partisan political parade.
4.1.2.11. Display a large political sign, banner, or poster (as distinguished from a
bumper sticker) on a private vehicle.
4.1.2.12. Display a partisan political sign, poster, banner, or similar device visible to
the public at one’s residence on a military installation, even if that residence is part of a
privatized housing development.
4.1.2.13. Participate in any organized effort to provide voters with transportation to
the polls if the effort is organized by or associated with a partisan political party, cause, or
candidate.
4.1.2.14. Sell tickets for or otherwise actively promote partisan political dinners and
similar fundraising events.
4.1.2.15. Attend partisan political events as an official representative of the Armed
Forces, except as a member of a joint Armed Forces color guard at the opening ceremonies of the
national conventions of the Republican, Democratic, or other political parties recognized by the
Federal Elections Committee or as otherwise authorized by the Secretary concerned.
4.1.2.16. Make a campaign contribution to, or receive or solicit (on one’s own
behalf) a campaign contribution from, any other member of the Armed Forces on active duty.
Any contributions not prohibited by this subparagraph remain subject to the gift provisions of
sections 2635.301-2635.304 of title 5, Code of Federal Regulations (Reference (f)). See
subparagraph 4.1.2.1. for general prohibitions on partisan fundraising activity.
4.1.3. Commissioned officers shall not use contemptuous words as prohibited by section
888 of Reference (b) or participate in activities proscribed by DoD Directives 5200.2 and 1325.6
(References (g) and (h), respectively).
4.1.4. Subject to any other restrictions in law, a member of the Armed Forces not on
active duty may take the actions or participate in the activities permitted in subparagraph 4.1.1.,
and may take the actions and participate in the activities prohibited in subparagraph 4.1.2,
provided the member is not in uniform and does not otherwise act in a manner that could
reasonably give rise to the inference or appearance of official sponsorship, approval, or
endorsement.
4
DoDD 1344.10, February 19, 2008
4.1.5. Activities not expressly prohibited may be contrary to the spirit and intent of this
Directive. Any activity that may be reasonably viewed as directly or indirectly associating the
Department of Defense or the Department of Homeland Security (in the case of the Coast Guard)
or any component of these Departments with a partisan political activity or is otherwise contrary
to the spirit and intention of this Directive shall be avoided.
4.2. Nomination or Candidacy for Civil Office in the U.S. Government or State or Other
Non-U.S. Government Offices
4.2.1. Paragraph 4.2. applies to:
4.2.1.1. A civil office in the U.S. Government that:
4.2.1.1.1. Is an elective office;
4.2.1.1.2. Requires an appointment by the President; or
4.2.1.1.3. Is a position on the executive schedule under sections 5312-5317 of
title 5, U.S.C. (Reference (i)).
4.2.1.2. A civil office in a State; the District of Columbia; a territory, possession, or
commonwealth of the United States; or any political subdivision thereof.
4.2.2. A regular member, or a retired regular or Reserve Component member on active
duty under a call or order to active duty for more than 270 days, may not be a nominee or
candidate for the offices described in subparagraph 4.2.1., except when the Secretary concerned
grants permission.
4.2.2.1. The Secretary concerned may NOT delegate the authority to grant or deny
such permission.
4.2.2.2. Such permission shall not authorize activity while on active duty that is
otherwise prohibited by other provisions of law or this Directive.
4.2.2.3. Such permission is required regardless of whether evidence of nomination or
candidacy for civil office is filed prior to commencing active duty service or whether the
member is an incumbent.
4.2.2.4. If a member covered by the prohibition in subparagraph 4.2.2. becomes a
nominee or candidate for civil office prior to commencing active duty, then the member must
request permission in writing and submit the request to the Secretary concerned before entering
active duty. The member must understand that if the Secretary concerned does not grant
permission, then the member must immediately decline the nomination or withdraw as a
candidate.
5
DoDD 1344.10, February 19, 2008
4.2.3. A retired regular member or Reserve Component member on active duty under a
call or order to active duty for 270 days or fewer may remain or become a nominee or candidate
for the offices set out in subparagraph 4.2.1. provided there is no interference with the
performance of military duty.
4.2.4. Notwithstanding any other provision of this Instruction:
4.2.4.1. Any enlisted member on active duty may seek, hold, and exercise the
functions of a nonpartisan civil office as a notary public or member of a school board,
neighborhood planning commission, or similar local agency, provided that the office is held in a
non-military capacity and there is no interference with the performance of military duties.
4.2.4.2. Any warrant or commissioned officer on active duty may seek, hold, and
exercise the functions of a nonpartisan civil office on an independent school board that is located
exclusively on a military reservation, provided that the office is held in a non-military capacity
and there is no interference with the performance of military duties.
4.3. Additional Limitations on Nomination or Candidacy and Campaigning
4.3.1. Members not on active duty who are nominees or candidates for the offices
described in subparagraph 4.2.1. may, in their campaign literature (including Web sites, videos,
television, and conventional print advertisements):
4.3.1.1. Use or mention, or permit the use or mention of, their military rank or grade
and military service affiliation; BUT they must clearly indicate their retired or reserve status.
4.3.1.2. Include or permit the inclusion of their current or former specific military
duty, title, or position, or photographs in military uniform, when displayed with other non-
military biographical details. Any such military information must be accompanied by a
prominent and clearly displayed disclaimer that neither the military information nor photographs
imply endorsement by the Department of Defense or their particular Military Department (or the
Department of Homeland Security for members of the Coast Guard); e.g., “John Doe is a
member of the Army National Guard. Use of his military rank, job titles, and photographs in
uniform does not imply endorsement by the Department of the Army or the Department of
Defense.”
4.3.2. Members included in subparagraph 4.3.1. may NOT, in campaign literature
(including Web sites, videos, television, and conventional print advertisements):
4.3.2.1. Use or allow the use of photographs, drawings, and other similar media
formats of themselves in uniform as the primary graphic representation in any campaign media,
such as a billboard, brochure, flyer, Web site, or television commercial. For the purposes of this
policy, “photographs” include video images, drawings, and all other similar formats of
representational media.
6
DoDD 1344.10, February 19, 2008
4.3.2.2. Depict or allow the depiction of themselves in uniform in a manner that does
not accurately reflect their actual performance of duty. For the purpose of this policy,
“photographs” include video images, drawings, and all other similar formats of representational
media.
4.3.3. Any member on active duty who is permitted to be, or otherwise not prohibited
from being, a nominee or candidate for office as described in subparagraph 4.2.1. may NOT
participate in any campaign activities. This includes open and active campaigning and all
behind-the-scene activities. For example, such members described in this paragraph who are
candidates or nominees may not:
4.3.3.1. Direct, control, manage, or otherwise participate in their campaign, including
behind-the-scene activities.
4.3.3.2. Make statements to or answer questions from the news media regarding
political issues or regarding government policies or activities unless specifically authorized to do
so by an appropriate supervisor or commander.
4.3.3.3. Publish or allow to be published partisan political articles, literature, or
documents that they have signed, written, or approved that solicit votes for or against a partisan
political party, candidate, issue, or cause.
4.3.4. Those members included in subparagraph 4.3.3. who are nominees or candidates
for office must:
4.3.4.1. Take affirmative, documented efforts to inform those who work for them and
those whom they control that they (the nominees or candidates) may not direct, control, manage,
or otherwise participate in campaign activities on their own behalf.
4.3.4.2. Take all reasonable efforts to prevent current or anticipated advertisements
that they (the nominees or candidates) control from being publicly displayed or running in any
media. This includes Web sites devoted to the nomination or candidacy. Web sites created
before entry on active duty may not be updated or revised and may be ordered shut down as the
Secretary concerned may direct.
4.3.5. Those who require permission to be nominees or candidates under the provisions
of subparagraph 4.2.2., or who are on active duty and are not otherwise prohibited from being a
nominee or a candidate under the provisions of subparagraph 4.2.3., must complete the
acknowledgment of limitations at Enclosure 4. Those who require permission must complete the
acknowledgment before permission may be granted. Those who do not require permission must
complete the acknowledgment within 15 days of becoming a nominee or candidate or within 15
days of entry on active duty if already a nominee or candidate. The acknowledgment must be
forwarded through the nominee’s or candidate’s immediate supervisor to the first general officer
in the chain of command.
7
DoDD 1344.10, February 19, 2008
4.4. Holding and Exercising the Functions of a U.S. Government Civil Office Attained by
Election or Appointment
4.4.1. Paragraph 4.4. applies to a civil office in the U.S. Government that:
4.4.1.1. Is an elective office;
4.4.1.2. Requires an appointment by the President; or
4.4.1.3. Is in a position on the executive schedule under sections 5312-5317 of
Reference (i).
4.4.2. A regular member, or retired regular or Reserve Component member on active
duty under a call or order to active duty for more than 270 days, may not hold or exercise the
functions of civil office set out in subparagraph 4.4.1. unless otherwise authorized in paragraph
4.4. or by law.
4.4.3. A retired regular member, or a Reserve Component member on active duty under
a call or order to active duty for 270 days or fewer, may hold and exercise the functions of a civil
office provided there is no interference with the performance of military duty.
4.4.4. A member on active duty may hold and exercise the functions of a civil office
under paragraph 4.4. when assigned or detailed (while on active duty) to such office to perform
such functions, provided the assignment or detail does not interfere with military duties.
4.4.5. Any member on active duty authorized to hold or exercise or not prohibited from
holding or exercising the functions of office under paragraph 4.4. are still subject to the
prohibitions of subparagraph 4.1.2.
4.5. Holding and Exercising the Functions of a State or Other Non-U.S. Government Office
Attained by Election or Appointment
4.5.1. Paragraph 4.5. applies to a civil office in a State; the District of Columbia; a
territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.5.2. A regular member may not hold or exercise the functions of civil office unless
otherwise authorized in paragraph 4.5. or by law.
4.5.3. A retired regular or Reserve Component member on active duty under a call or
order to active duty for more than 270 days may hold─but shall NOT exercise─the functions of a
civil office as set out in subparagraph 4.5.1., as long as:
4.5.3.1. The holding of such office is not prohibited under the laws of the State; the
District of Columbia; a territory, possession, or commonwealth of the United States; or any
political subdivision thereof.
8
DoDD 1344.10, February 19, 2008
4.5.3.2. The Secretary concerned grants permission after determining that holding
such office does not interfere with the performance of military duties. The Secretary concerned
may NOT delegate the authority to grant or deny such permission.
4.5.4. A retired regular or Reserve Component member on active duty under a call or
order to active duty for 270 days or fewer may hold and exercise the functions of civil office
provided there is no interference with the performance of military duties.
4.5.5. Any member on active duty authorized to hold or exercise, or not prohibited from
holding or exercising, the functions of office under paragraph 4.5. are still subject to the
prohibitions of subparagraph 4.1.2.
4.6. Actions When Prohibitions Apply
4.6.1. Members affected by the prohibitions against being a nominee or candidate or
holding or exercising the functions of a civil office may request retirement (if eligible),
discharge, or release from active duty. The Secretary concerned may approve these requests,
consistent with the needs of the Service, unless the member is:
4.6.1.1. Obligated to fulfill an active duty service commitment.
4.6.1.2. Serving or has been issued orders to serve afloat or in an area that is
overseas, remote, a combat zone, or a hostile pay fire area.
4.6.1.3. Ordered to remain on active duty while the subject of an investigation or
inquiry.
4.6.1.4. Accused of an offense under Chapter 47 of Reference (b) or serving a
sentence or punishment for such an offense.
4.6.1.5. Pending other administrative separation action or proceedings.
4.6.1.6. Indebted to the United States.
4.6.1.7. In a Reserve Component and serving involuntarily under a call or order to
active duty that specifies a period of active duty of more that 270 days during a period of
declared war or national emergency; or other period when a unit or individual of the National
Guard or other Reserve Component has been involuntarily called or ordered to active duty as
authorized by law.
4.6.1.8. In violation of this Directive or an order or regulation prohibiting such
member from assuming or exercising the functions of civil office.
4.6.2. Subparagraph 4.6.1. does not preclude a member’s involuntary discharge or
release from active duty.
9
DoDD 1344.10, February 19, 2008
4.6.3. No actions undertaken by a member in carrying out assigned military duties shall
be invalidated solely by virtue of such member having been a candidate or nominee for a civil
office in violation of the prohibition of paragraph 4.2. or having held or exercised the functions
of a civil office in violation of the prohibitions of paragraphs 4.4. or 4.5.
4.6.4. This is a lawful general regulation. Violations of paragraphs 4.1. through 4.5. of
this Directive by persons subject to the Uniform Code of Military Justice are punishable under
Article 92, “Failure to Obey Order or Regulation,” Chapter 47 of Reference (b).
5. RESPONSIBILITIES
5.1. The Under Secretary of Defense for Personnel and Readiness shall administer this
Directive.
5.2. The Secretaries of the Military Departments shall issue appropriate implementing
documents for their respective Departments.
6. RELEASABILITY
UNLIMITED. This Directive is approved for public release. Copies may be obtained through the
Internet from the DoD Issuances Web Site at http://www.dtic.mil/whs/directives.
7. EFFECTIVE DATE
This Directive is effective immediately.
Enclosures - 4
E1. References, continued
E2. Definitions
E3. Nonpartisan Activities and Other Miscellaneous Guidance
E4. Candidacy or Nomination for Political Office Counseling Statement
10
DoDD 1344.10, February 19, 2008
E1. ENCLOSURE 1
REFERENCES, continued
(e) Section 607 of title 18, United States Code
(f) Sections 2635.301-2635.304 of title 5, Code of Federal Regulations
(g) DoD Directive 5200.2, “DoD Personnel Security Program,” April 9, 1999
(h) DoD Directive 1325.6, “Guidelines for Handling Dissident and Protest Activities Among
Members of the Armed Forces,” October 1, 1996
(i) Sections 5312-5317 of title 5, United States Code
ENCLOSURE 1 11
DoDD 1344.10, February 19, 2008
E2. ENCLOSURE 2
DEFINITIONS
E2.1. Active Duty. Full-time duty in the active military service of the United States regardless
of duration or purpose. Active duty includes full-time training duty; annual training duty; and
attendance, while in the active military service, at a school designated as a Service school by law
or by the Secretary concerned. For purposes of this Directive only, active duty also includes full-
time National Guard duty.
E2.2. Call or Order to Active Duty for More Than 270 Days. Any prohibitions or limitations
this Directive triggers by a call or order to active duty for more than 270 days begins on the first
day of the active duty.
E2.3. Civil Office. A non-military office involving the exercise of the powers or authority of
civil government, to include elective and appointed office in the U.S. Government, a U.S.
territory or possession, State, county, municipality, or official subdivision thereof. This term
does not include a non-elective position as a regular or reserve member of civilian law
enforcement, fire, or rescue squad.
E2.4. Nonpartisan Political Activity. Activity supporting or relating to candidates not
representing, or issues not specifically identified with, national or State political parties and
associated or ancillary organizations or clubs. Issues relating to State constitutional amendments
or referendums, approval of municipal ordinances, and others of similar character are not
considered under this Instruction as specifically identified with national or State political parties.
E2.5. Partisan Political Activity. Activity supporting or relating to candidates representing, or
issues specifically identified with, national or State political parties and associated or ancillary
organizations or clubs.
E2.6. Secretary Concerned. See section 101(a)(9) of Reference (b).
ENCLOSURE 2 12
DoDD 1344.10, February 19, 2008
E3. ENCLOSURE 3
NONPARTISAN ACTIVITIES AND OTHER MISCELLANEOUS GUIDANCE
E3.1. LOCAL NONPARTISAN POLITICAL ACTIVITIES
This Directive does not preclude participation in local nonpartisan political campaigns,
initiatives, or referendums. A member taking part in local nonpartisan political activity,
however, shall not:
E3.1.1. Wear a uniform or use any Government property or facilities while participating.
E3.1.2. Allow such participation to interfere with or prejudice the member’s performance of
military duties.
E3.1.3. Engage in conduct that in any way may reasonably imply that the Military
Department concerned or any component of such Department has taken an official position on,
or is otherwise involved in, the local political campaign or issue.
E3.2. ADDITIONAL REQUIREMENTS
Members of the Armed Forces on active duty engaging in permissible political activities shall:
E3.2.1. Give full time and attention to the performance of military duties during prescribed
duty hours.
E3.2.2. Avoid any outside activities that may be prejudicial to the performance of military
duties or likely to bring discredit upon the Armed Forces.
E3.2.3. Refrain from participating in any political activity while in military uniform, as
proscribed by Reference (c), or using Government facilities or resources for furthering political
activities.
ENCLOSURE 3 13
DoDD 1344.10, February 19, 2008
E4. ENCLOSURE 4
CANDIDACY OR NOMINATION FOR POLITICAL OFFICE
ACKNOWLEDGMENT OF LIMITATIONS
[To be prepared by any member on active duty (or who is about to enter active duty) who is:
Alternate A: Granted permission to remain or to become a candidate or nominee for civil office,
(subparagraph 4.2.2.); or
Alternate B: Not otherwise prohibited from remaining or becoming a candidate or nominee for
civil office (subparagraph 4.2.3.).
(Prepare as a letter or memorandum, signed by the member and addressed through the member’s
immediate supervisor (if known) to the first general or flag officer in the member’s chain of
command.)]
(Date)
[Select the appropriate paragraph 1].
Alternate A (over 270 days)
1. I understand that for me to remain or to become a nominee or a candidate for the civil office
of [specifically identify the civil office] while on active duty, I must have the permission of the
[name of the Secretary concerned] as required by subparagraph 4.2.2. of DoD Directive (DoDD)
1344.10, “Political Activities by Members of the Armed Forces.” I understand that such
permission will be granted sparingly because it runs counter to the traditional concept that
Service members on active duty should not engage in partisan political activity. Furthermore, I
understand that if I am already a candidate or nominee, I must submit my request for permission
from [specifically identify the Secretary concerned] before I enter active duty. If I am already on
active duty and wish to become a candidate or nominee, I must receive permission first.
Alternate B (270 days or fewer)
1. I understand that I am authorized to remain or to become a candidate or nominee for the civil
office of [specifically identify the civil office] while on active duty. This is authorized by
subparagraph 4.2.3. of DoD Directive (DoDD) 1344.10, “Political Activities by Members of the
Armed Forces,” because I am under a call or order to active duty for 270 days or fewer. I
understand that I may remain a candidate or nominee only as long as my candidacy or
nomination does not interfere with the performance of my military duty.
2. I have read and fully understand that DoDD 1344.10, paragraphs 4.2. and 4.3. severely limit
my ability to participate as a nominee or candidate in the political process. I specifically
understand that if I am granted permission to be a candidate or nominee or am not otherwise
prohibited from becoming a candidate or nominee, I may not direct, control, endorse, or
ENCLOSURE 4 14
DoDD 1344.10, February 19, 2008
otherwise participate in campaign activities on my behalf (including behind-the-scene activities).
Furthermore, I must:
a. Take affirmative, documented efforts to inform those who work for me and those
whom I control that I may not direct, control, manage, or otherwise participate in campaign
activities on my own behalf.
b. Take all reasonable efforts to prevent current or anticipated advertisements that I
control from being publicly displayed or running in any media. This includes Web sites devoted
to the nomination or candidacy. Such Web sites created before my entry on active duty must
otherwise comply with subparagraph 4.3.1. and may not be updated or revised while I am on
active duty. Furthermore, I understand that the Secretary concerned may direct that the Web site
be removed.
3. I have read and understand the prohibitions found in DoDD 1344.10, paragraphs 4.2 and 4.3.
4. I understand that DoDI 1334.1, “Wearing of the Uniform,” prohibits the wearing of a military
uniform during or in connection with the furtherance of any political or commercial interests not
otherwise prohibited or limited above.
5. Finally, I understand that should I be elected to this civil office while on active duty, I will be
subject to the policies concerning holding and exercising the function of civil office also found in
DoDD 1344.10.
[Include signature block of nominee or candidate.]
ENCLOSURE 4 15
YOU ARE IN VIOLATION OF THIS DOD DIRECTIVE!!
Department of Defense
DIRECTIVE
NUMBER 1344.10
February 19, 2008
USD(P&R)
SUBJECT: Political Activities by Members of the Armed Forces
References: (a) DoD Directive 1344.10, “Political Activities by Members of the Armed
Forces on Active Duty,” August 2, 2004 (hereby canceled)
(b) Sections 973, 888, 101, and Chapter 47 of title 10, United States Code
(c) DoD Instruction 1334.1, “Wearing of the Uniform,” October 26, 2005
(d) Section 441a of title 2, United States Code
(e) through (i), see Enclosure 1
1. PURPOSE
This Directive:
1.1. Reissues Reference (a) to update policies on political activities of members of the Armed Forces.
1.2. Implements section 973(b) through (d) of Reference (b).
2. APPLICABILITY
This Directive applies to the Office of the Secretary of Defense, the Military Departments (including the Coast Guard at all times, including when it is a Service in the Department of Homeland Security by agreement with that Department), the Office of the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as the “DoD Components”). Paragraph 4.3. applies to members of the National Guard, even when in a non-Federal status. Other provisions apply to members of the National Guard while on active duty, which, for purposes of this Directive only, also includes full-time National Guard duty.
DoDD 1344.10, February 19, 2008
3. DEFINITIONS
The terms used in this Directive are defined in Enclosure 2.
4. POLICY
It is DoD policy to encourage members of the Armed Forces (hereafter referred to as “members”) (including members on active duty, members of the Reserve Components not on active duty, members of the National Guard even when in a non-Federal status, and retired members) to carry out the obligations of citizenship. In keeping with the traditional concept that members on active duty should not engage in partisan political activity, and that members not on active duty should avoid inferences that their political activities imply or appear to imply official sponsorship, approval, or endorsement, the following policy shall apply:
4.1. General
4.1.1. A member of the Armed Forces on active duty may:
4.1.1.1. Register, vote, and express a personal opinion on political candidates and issues, but not as a representative of the Armed Forces.
4.1.1.2. Promote and encourage others to exercise their voting franchise, if such promotion does not constitute use of their official authority or influence to interfere with the outcome of any election.
4.1.1.3. Join a partisan or nonpartisan political club and attend its meetings when not in uniform, subject to the restrictions of subparagraph 4.1.2.4. (See DoD Instruction 1334.1 (Reference (c).)
4.1.1.4. Serve as an election official, if such service is not as a representative of a partisan political party, does not interfere with the performance of military duties, is performed when not in uniform, and the Secretary concerned has given prior approval. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.1.1.5. Sign a petition for a specific legislative action or a petition to place a candidate’s name on an official election ballot, if the signing does not obligate the member to engage in partisan political activity and is done as a private citizen and not as a representative of the Armed Forces.
4.1.1.6. Write a letter to the editor of a newspaper expressing the member’s personal views on public issues or political candidates, if such action is not part of an organized letter- writing campaign or a solicitation of votes for or against a political party or partisan political cause or candidate. If the letter identifies the member as on active duty (or if the member is otherwise reasonably identifiable as a member of the Armed Forces), the letter should clearly state that the views expressed are those of the individual only and not those of the Department of Defense (or Department of Homeland Security for members of the Coast Guard).
4.1.1.7. Make monetary contributions to a political organization, party, or committee favoring a particular candidate or slate of candidates, subject to the limitations under section 441a of title 2, United States Code (U.S.C.) (Reference (d)); section 607 of title 18, U.S.C. (Reference (e)); and other applicable law.
4.1.1.8. Display a political bumper sticker on the member’s private vehicle.
4.1.1.9. Attend partisan and nonpartisan political fundraising activities, meetings, rallies, debates, conventions, or activities as a spectator when not in uniform and when no inference or appearance of official sponsorship, approval, or endorsement can reasonably be drawn.
4.1.1.10. Participate fully in the Federal Voting Assistance Program.
4.1.2. A member of the Armed Forces on active duty shall not:
4.1.2.1. Participate in partisan political fundraising activities (except as permitted in subparagraph 4.1.1.7.), rallies, conventions (including making speeches in the course thereof), management of campaigns, or debates, either on one’s own behalf or on that of another, without respect to uniform or inference or appearance of official sponsorship, approval, or endorsement. Participation includes more than mere attendance as a spectator. (See subparagraph 4.1.1.9.)
4.1.2.2. Use official authority or influence to interfere with an election, affect the course or outcome of an election, solicit votes for a particular candidate or issue, or require or solicit political contributions from others.
4.1.2.3. Allow or cause to be published partisan political articles, letters, or endorsements signed or written by the member that solicits votes for or against a partisan political party, candidate, or cause. This is distinguished from a letter to the editor as permitted under the conditions noted in subparagraph 4.1.1.6.
4.1.2.4. Serve in any official capacity with or be listed as a sponsor of a partisan political club.
4.1.2.5. Speak before a partisan political gathering, including any gathering that promotes a partisan political party, candidate, or cause.
4.1.2.6. Participate in any radio, television, or other program or group discussion as an advocate for or against a partisan political party, candidate, or cause.
4.1.2.7. Conduct a political opinion survey under the auspices of a partisan political club or group or distribute partisan political literature.
4.1.2.8. Perform clerical or other duties for a partisan political committee or candidate during a campaign, on an election day, or after an election day during the process of closing out a campaign.
4.1.2.9. Solicit or otherwise engage in fundraising activities in Federal offices or facilities, including military reservations, for any political cause or candidate.
4.1.2.10. March or ride in a partisan political parade.
4.1.2.11. Display a large political sign, banner, or poster (as distinguished from a bumper sticker) on a private vehicle.
4.1.2.12. Display a partisan political sign, poster, banner, or similar device visible to the public at one’s residence on a military installation, even if that residence is part of a privatized housing development.
4.1.2.13. Participate in any organized effort to provide voters with transportation to the polls if the effort is organized by or associated with a partisan political party, cause, or candidate.
4.1.2.14. Sell tickets for or otherwise actively promote partisan political dinners and similar fundraising events.
4.1.2.15. Attend partisan political events as an official representative of the Armed Forces, except as a member of a joint Armed Forces color guard at the opening ceremonies of the national conventions of the Republican, Democratic, or other political parties recognized by the Federal Elections Committee or as otherwise authorized by the Secretary concerned.
4.1.2.16. Make a campaign contribution to, or receive or solicit (on one’s own behalf) a campaign contribution from, any other member of the Armed Forces on active duty. Any contributions not prohibited by this subparagraph remain subject to the gift provisions of sections 2635.301-2635.304 of title 5, Code of Federal Regulations (Reference (f)). See subparagraph 4.1.2.1. for general prohibitions on partisan fundraising activity.
4.1.3. Commissioned officers shall not use contemptuous words as prohibited by section
888 of Reference (b) or participate in activities proscribed by DoD Directives 5200.2 and 1325.6 (References (g) and (h), respectively).
4.1.4. Subject to any other restrictions in law, a member of the Armed Forces not on active duty may take the actions or participate in the activities permitted in subparagraph 4.1.1., and may take the actions and participate in the activities prohibited in subparagraph 4.1.2, provided the member is not in uniform and does not otherwise act in a manner that could reasonably give rise to the inference or appearance of official sponsorship, approval, or endorsement.
4.1.5. Activities not expressly prohibited may be contrary to the spirit and intent of this Directive. Any activity that may be reasonably viewed as directly or indirectly associating the Department of Defense or the Department of Homeland Security (in the case of the Coast Guard) or any component of these Departments with a partisan political activity or is otherwise contrary to the spirit and intention of this Directive shall be avoided.
4.2. Nomination or Candidacy for Civil Office in the U.S. Government or State or Other Non-U.S. Government Offices
4.2.1. Paragraph 4.2. applies to:
4.2.1.1. A civil office in the U.S. Government that:
4.2.1.1.1. Is an elective office;
4.2.1.1.2. Requires an appointment by the President; or
4.2.1.1.3. Is a position on the executive schedule under sections 5312-5317 of title 5, U.S.C. (Reference (i)).
4.2.1.2. A civil office in a State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.2.2. A regular member, or a retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days, may not be a nominee or candidate for the offices described in subparagraph 4.2.1., except when the Secretary concerned grants permission.
4.2.2.1. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.2.2.2. Such permission shall not authorize activity while on active duty that is otherwise prohibited by other provisions of law or this Directive.
4.2.2.3. Such permission is required regardless of whether evidence of nomination or candidacy for civil office is filed prior to commencing active duty service or whether the member is an incumbent.
4.2.2.4. If a member covered by the prohibition in subparagraph 4.2.2. becomes a nominee or candidate for civil office prior to commencing active duty, then the member must request permission in writing and submit the request to the Secretary concerned before entering active duty. The member must understand that if the Secretary concerned does not grant permission, then the member must immediately decline the nomination or withdraw as a candidate.
4.2.3. A retired regular member or Reserve Component member on active duty under a call or order to active duty for 270 days or fewer may remain or become a nominee or candidate for the offices set out in subparagraph 4.2.1. provided there is no interference with the performance of military duty.
4.2.4. Notwithstanding any other provision of this Instruction:
4.2.4.1. Any enlisted member on active duty may seek, hold, and exercise the functions of a nonpartisan civil office as a notary public or member of a school board, neighborhood planning commission, or similar local agency, provided that the office is held in a non-military capacity and there is no interference with the performance of military duties.
4.2.4.2. Any warrant or commissioned officer on active duty may seek, hold, and exercise the functions of a nonpartisan civil office on an independent school board that is located exclusively on a military reservation, provided that the office is held in a non-military capacity and there is no interference with the performance of military duties.
4.3. Additional Limitations on Nomination or Candidacy and Campaigning
4.3.1. Members not on active duty who are nominees or candidates for the offices described in subparagraph 4.2.1. may, in their campaign literature (including Web sites, videos, television, and conventional print advertisements):
4.3.1.1. Use or mention, or permit the use or mention of, their military rank or grade and military service affiliation; BUT they must clearly indicate their retired or reserve status.
4.3.1.2. Include or permit the inclusion of their current or former specific military duty, title, or position, or photographs in military uniform, when displayed with other non- military biographical details. Any such military information must be accompanied by a prominent and clearly displayed disclaimer that neither the military information nor photographs imply endorsement by the Department of Defense or their particular Military Department (or the Department of Homeland Security for members of the Coast Guard); e.g., “John Doe is a member of the Army National Guard. Use of his military rank, job titles, and photographs in uniform does not imply endorsement by the Department of the Army or the Department of Defense.”
4.3.2. Members included in subparagraph 4.3.1. may NOT, in campaign literature (including Web sites, videos, television, and conventional print advertisements):
4.3.2.1. Use or allow the use of photographs, drawings, and other similar media formats of themselves in uniform as the primary graphic representation in any campaign media, such as a billboard, brochure, flyer, Web site, or television commercial. For the purposes of this policy, “photographs” include video images, drawings, and all other similar formats of representational media.
4.3.2.2. Depict or allow the depiction of themselves in uniform in a manner that does not accurately reflect their actual performance of duty. For the purpose of this policy, “photographs” include video images, drawings, and all other similar formats of representational media.
4.3.3. Any member on active duty who is permitted to be, or otherwise not prohibited from being, a nominee or candidate for office as described in subparagraph 4.2.1. may NOT participate in any campaign activities. This includes open and active campaigning and all behind-the-scene activities. For example, such members described in this paragraph who are candidates or nominees may not:
4.3.3.1. Direct, control, manage, or otherwise participate in their campaign, including behind-the-scene activities.
4.3.3.2. Make statements to or answer questions from the news media regarding political issues or regarding government policies or activities unless specifically authorized to do so by an appropriate supervisor or commander.
4.3.3.3. Publish or allow to be published partisan political articles, literature, or documents that they have signed, written, or approved that solicit votes for or against a partisan political party, candidate, issue, or cause.
4.3.4. Those members included in subparagraph 4.3.3. who are nominees or candidates
for office must:
4.3.4.1. Take affirmative, documented efforts to inform those who work for them and
those whom they control that they (the nominees or candidates) may not direct, control, manage, or otherwise participate in campaign activities on their own behalf.
4.3.4.2. Take all reasonable efforts to prevent current or anticipated advertisements that they (the nominees or candidates) control from being publicly displayed or running in any media. This includes Web sites devoted to the nomination or candidacy. Web sites created before entry on active duty may not be updated or revised and may be ordered shut down as the Secretary concerned may direct.
4.3.5. Those who require permission to be nominees or candidates under the provisions of subparagraph 4.2.2., or who are on active duty and are not otherwise prohibited from being a nominee or a candidate under the provisions of subparagraph 4.2.3., must complete the acknowledgment of limitations at Enclosure 4. Those who require permission must complete the acknowledgment before permission may be granted. Those who do not require permission must complete the acknowledgment within 15 days of becoming a nominee or candidate or within 15 days of entry on active duty if already a nominee or candidate. The acknowledgment must be forwarded through the nominee’s or candidate’s immediate supervisor to the first general officer in the chain of command.
4.4. Holding and Exercising the Functions of a U.S. Government Civil Office Attained by Election or Appointment
4.4.1. Paragraph 4.4. applies to a civil office in the U.S. Government that:
4.4.1.1. Is an elective office;
4.4.1.2. Requires an appointment by the President; or
4.4.1.3. Is in a position on the executive schedule under sections 5312-5317 of Reference (i).
4.4.2. A regular member, or retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days, may not hold or exercise the functions of civil office set out in subparagraph 4.4.1. unless otherwise authorized in paragraph 4.4. or by law.
4.4.3. A retired regular member, or a Reserve Component member on active duty under a call or order to active duty for 270 days or fewer, may hold and exercise the functions of a civil office provided there is no interference with the performance of military duty.
4.4.4. A member on active duty may hold and exercise the functions of a civil office under paragraph 4.4. when assigned or detailed (while on active duty) to such office to perform such functions, provided the assignment or detail does not interfere with military duties.
4.4.5. Any member on active duty authorized to hold or exercise or not prohibited from holding or exercising the functions of office under paragraph 4.4. are still subject to the prohibitions of subparagraph 4.1.2.
4.5. Holding and Exercising the Functions of a State or Other Non-U.S. Government Office Attained by Election or Appointment
4.5.1. Paragraph 4.5. applies to a civil office in a State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.5.2. A regular member may not hold or exercise the functions of civil office unless otherwise authorized in paragraph 4.5. or by law.
4.5.3. A retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days may hold─but shall NOT exercise─the functions of a civil office as set out in subparagraph 4.5.1., as long as:
4.5.3.1. The holding of such office is not prohibited under the laws of the State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.5.3.2. The Secretary concerned grants permission after determining that holding such office does not interfere with the performance of military duties. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.5.4. A retired regular or Reserve Component member on active duty under a call or order to active duty for 270 days or fewer may hold and exercise the functions of civil office provided there is no interference with the performance of military duties.
4.5.5. Any member on active duty authorized to hold or exercise, or not prohibited from holding or exercising, the functions of office under paragraph 4.5. are still subject to the prohibitions of subparagraph 4.1.2.
4.6. Actions When Prohibitions Apply
4.6.1. Members affected by the prohibitions against being a nominee or candidate or holding or exercising the functions of a civil office may request retirement (if eligible), discharge, or release from active duty. The Secretary concerned may approve these requests, consistent with the needs of the Service, unless the member is:
4.6.1.1. Obligated to fulfill an active duty service commitment.
4.6.1.2. Serving or has been issued orders to serve afloat or in an area that is overseas, remote, a combat zone, or a hostile pay fire area.
4.6.1.3. Ordered to remain on active duty while the subject of an investigation or inquiry.
4.6.1.4. Accused of an offense under Chapter 47 of Reference (b) or serving a sentence or punishment for such an offense.
4.6.1.5. Pending other administrative separation action or proceedings.
4.6.1.6. Indebted to the United States.
4.6.1.7. In a Reserve Component and serving involuntarily under a call or order to active duty that specifies a period of active duty of more that 270 days during a period of declared war or national emergency; or other period when a unit or individual of the National Guard or other Reserve Component has been involuntarily called or ordered to active duty as authorized by law.
4.6.1.8. In violation of this Directive or an order or regulation prohibiting such member from assuming or exercising the functions of civil office.
4.6.2. Subparagraph 4.6.1. does not preclude a member’s involuntary discharge or release from active duty.
4.6.3. No actions undertaken by a member in carrying out assigned military duties shall be invalidated solely by virtue of such member having been a candidate or nominee for a civil office in violation of the prohibition of paragraph 4.2. or having held or exercised the functions of a civil office in violation of the prohibitions of paragraphs 4.4. or 4.5.
4.6.4. This is a lawful general regulation. Violations of paragraphs 4.1. through 4.5. of this Directive by persons subject to the Uniform Code of Military Justice are punishable under Article 92, “Failure to Obey Order or Regulation,” Chapter 47 of Reference (b).
5. RESPONSIBILITIES
5.1. The Under Secretary of Defense for Personnel and Readiness shall administer this Directive.
5.2. The Secretaries of the Military Departments shall issue appropriate implementing documents for their respective Departments.
6. RELEASABILITY
UNLIMITED. This Directive is approved for public release. Copies may be obtained through the Internet from the DoD Issuances Web Site at http://www.dtic.mil/whs/directives.
7. EFFECTIVE DATE
This Directive is effective immediately.
Enclosures - 4
E1. References, continued
E2. Definitions
E3. Nonpartisan Activities and Other Miscellaneous Guidance
E4. Candidacy or Nomination for Political Office Counseling Statement
10
DoDD 1344.10, February 19, 2008
E1. ENCLOSURE 1
REFERENCES, continued
(e) Section 607 of title 18, United States Code
(f) Sections 2635.301-2635.304 of title 5, Code of Federal Regulations
(g) DoD Directive 5200.2, “DoD Personnel Security Program,” April 9, 1999
(h) DoD Directive 1325.6, “Guidelines for Handling Dissident and Protest Activities Among
Members of the Armed Forces,” October 1, 1996
(i) Sections 5312-5317 of title 5, United States Code
ENCLOSURE 1 11
DoDD 1344.10, February 19, 2008
E2. ENCLOSURE 2
DEFINITIONS
E2.1. Active Duty. Full-time duty in the active military service of the United States regardless of duration or purpose. Active duty includes full-time training duty; annual training duty; and attendance, while in the active military service, at a school designated as a Service school by law or by the Secretary concerned. For purposes of this Directive only, active duty also includes full- time National Guard duty.
E2.2. Call or Order to Active Duty for More Than 270 Days. Any prohibitions or limitations this Directive triggers by a call or order to active duty for more than 270 days begins on the first day of the active duty.
E2.3. Civil Office. A non-military office involving the exercise of the powers or authority of civil government, to include elective and appointed office in the U.S. Government, a U.S. territory or possession, State, county, municipality, or official subdivision thereof. This term does not include a non-elective position as a regular or reserve member of civilian law enforcement, fire, or rescue squad.
E2.4. Nonpartisan Political Activity. Activity supporting or relating to candidates not representing, or issues not specifically identified with, national or State political parties and associated or ancillary organizations or clubs. Issues relating to State constitutional amendments or referendums, approval of municipal ordinances, and others of similar character are not considered under this Instruction as specifically identified with national or State political parties.
E2.5. Partisan Political Activity. Activity supporting or relating to candidates representing, or issues specifically identified with, national or State political parties and associated or ancillary organizations or clubs.
E2.6. Secretary Concerned. See section 101(a)(9) of Reference (b).
ENCLOSURE 2 12
DoDD 1344.10, February 19, 2008
E3. ENCLOSURE 3
NONPARTISAN ACTIVITIES AND OTHER MISCELLANEOUS GUIDANCE
E3.1. LOCAL NONPARTISAN POLITICAL ACTIVITIES
This Directive does not preclude participation in local nonpartisan political campaigns, initiatives, or referendums. A member taking part in local nonpartisan political activity, however, shall not:
E3.1.1. Wear a uniform or use any Government property or facilities while participating.
E3.1.2. Allow such participation to interfere with or prejudice the member’s performance of military duties.
E3.1.3. Engage in conduct that in any way may reasonably imply that the Military Department concerned or any component of such Department has taken an official position on, or is otherwise involved in, the local political campaign or issue.
E3.2. ADDITIONAL REQUIREMENTS
Members of the Armed Forces on active duty engaging in permissible political activities shall:
E3.2.1. Give full time and attention to the performance of military duties during prescribed duty hours.
E3.2.2. Avoid any outside activities that may be prejudicial to the performance of military duties or likely to bring discredit upon the Armed Forces.
E3.2.3. Refrain from participating in any political activity while in military uniform, as proscribed by Reference (c), or using Government facilities or resources for furthering political activities.
ENCLOSURE 3 13
DoDD 1344.10, February 19, 2008
E4. ENCLOSURE 4
CANDIDACY OR NOMINATION FOR POLITICAL OFFICE
ACKNOWLEDGMENT OF LIMITATIONS
[To be prepared by any member on active duty (or who is about to enter active duty) who is:
Alternate A: Granted permission to remain or to become a candidate or nominee for civil office, (subparagraph 4.2.2.); or Alternate B: Not otherwise prohibited from remaining or becoming a candidate or nominee for civil office (subparagraph 4.2.3.). (Prepare as a letter or memorandum, signed by the member and addressed through the member’s immediate supervisor (if known) to the first general or flag officer in the member’s chain of command.)]
(Date)
[Select the appropriate paragraph 1].
Alternate A (over 270 days)
1. I understand that for me to remain or to become a nominee or a candidate for the civil office of [specifically identify the civil office] while on active duty, I must have the permission of the [name of the Secretary concerned] as required by subparagraph 4.2.2. of DoD Directive (DoDD)
1344.10, “Political Activities by Members of the Armed Forces.” I understand that such permission will be granted sparingly because it runs counter to the traditional concept that Service members on active duty should not engage in partisan political activity. Furthermore, I understand that if I am already a candidate or nominee, I must submit my request for permission from [specifically identify the Secretary concerned] before I enter active duty. If I am already on active duty and wish to become a candidate or nominee, I must receive permission first.
Alternate B (270 days or fewer)
1. I understand that I am authorized to remain or to become a candidate or nominee for the civil office of [specifically identify the civil office] while on active duty. This is authorized by subparagraph 4.2.3. of DoD Directive (DoDD) 1344.10, “Political Activities by Members of the Armed Forces,” because I am under a call or order to active duty for 270 days or fewer. I understand that I may remain a candidate or nominee only as long as my candidacy or nomination does not interfere with the performance of my military duty.
2. I have read and fully understand that DoDD 1344.10, paragraphs 4.2. and 4.3. severely limit my ability to participate as a nominee or candidate in the political process. I specifically understand that if I am granted permission to be a candidate or nominee or am not otherwise prohibited from becoming a candidate or nominee, I may not direct, control, endorse, or otherwise participate in campaign activities on my behalf (including behind-the-scene activities).
Furthermore, I must:
a. Take affirmative, documented efforts to inform those who work for me and those whom I control that I may not direct, control, manage, or otherwise participate in campaign activities on my own behalf.
b. Take all reasonable efforts to prevent current or anticipated advertisements that I control from being publicly displayed or running in any media. This includes Web sites devoted to the nomination or candidacy. Such Web sites created before my entry on active duty must
otherwise comply with subparagraph 4.3.1. and may not be updated or revised while I am on active duty. Furthermore, I understand that the Secretary concerned may direct that the Web site be removed.
3. I have read and understand the prohibitions found in DoDD 1344.10, paragraphs 4.2 and 4.3.
4. I understand that DoDI 1334.1, “Wearing of the Uniform,” prohibits the wearing of a military uniform during or in connection with the furtherance of any political or commercial interests not otherwise prohibited or limited above.
5. Finally, I understand that should I be elected to this civil office while on active duty, I will be subject to the policies concerning holding and exercising the function of civil office also found in DoDD 1344.10.
[Include signature block of nominee or candidate.]
ENCLOSURE 4 15
YOU ARE IN VIOLATION OF THIS DOD DIRECTIVE!!
Department of Defense
DIRECTIVE
NUMBER 1344.10
February 19, 2008
USD(P&R)
SUBJECT: Political Activities by Members of the Armed Forces
References: (a) DoD Directive 1344.10, “Political Activities by Members of the Armed
Forces on Active Duty,” August 2, 2004 (hereby canceled)
(b) Sections 973, 888, 101, and Chapter 47 of title 10, United States Code
(c) DoD Instruction 1334.1, “Wearing of the Uniform,” October 26, 2005
(d) Section 441a of title 2, United States Code
(e) through (i), see Enclosure 1
1. PURPOSE
This Directive:
1.1. Reissues Reference (a) to update policies on political activities of members of the Armed Forces.
1.2. Implements section 973(b) through (d) of Reference (b).
2. APPLICABILITY
This Directive applies to the Office of the Secretary of Defense, the Military Departments (including the Coast Guard at all times, including when it is a Service in the Department of Homeland Security by agreement with that Department), the Office of the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as the “DoD Components”). Paragraph 4.3. applies to members of the National Guard, even when in a non-Federal status. Other provisions apply to members of the National Guard while on active duty, which, for purposes of this Directive only, also includes full-time National Guard duty.
DoDD 1344.10, February 19, 2008
3. DEFINITIONS
The terms used in this Directive are defined in Enclosure 2.
4. POLICY
It is DoD policy to encourage members of the Armed Forces (hereafter referred to as “members”) (including members on active duty, members of the Reserve Components not on active duty, members of the National Guard even when in a non-Federal status, and retired members) to carry out the obligations of citizenship. In keeping with the traditional concept that members on active duty should not engage in partisan political activity, and that members not on active duty should avoid inferences that their political activities imply or appear to imply official sponsorship, approval, or endorsement, the following policy shall apply:
4.1. General
4.1.1. A member of the Armed Forces on active duty may:
4.1.1.1. Register, vote, and express a personal opinion on political candidates and issues, but not as a representative of the Armed Forces.
4.1.1.2. Promote and encourage others to exercise their voting franchise, if such promotion does not constitute use of their official authority or influence to interfere with the outcome of any election.
4.1.1.3. Join a partisan or nonpartisan political club and attend its meetings when not in uniform, subject to the restrictions of subparagraph 4.1.2.4. (See DoD Instruction 1334.1 (Reference (c).)
4.1.1.4. Serve as an election official, if such service is not as a representative of a partisan political party, does not interfere with the performance of military duties, is performed when not in uniform, and the Secretary concerned has given prior approval. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.1.1.5. Sign a petition for a specific legislative action or a petition to place a candidate’s name on an official election ballot, if the signing does not obligate the member to engage in partisan political activity and is done as a private citizen and not as a representative of the Armed Forces.
4.1.1.6. Write a letter to the editor of a newspaper expressing the member’s personal views on public issues or political candidates, if such action is not part of an organized letter- writing campaign or a solicitation of votes for or against a political party or partisan political cause or candidate. If the letter identifies the member as on active duty (or if the member is otherwise reasonably identifiable as a member of the Armed Forces), the letter should clearly state that the views expressed are those of the individual only and not those of the Department of Defense (or Department of Homeland Security for members of the Coast Guard).
4.1.1.7. Make monetary contributions to a political organization, party, or committee favoring a particular candidate or slate of candidates, subject to the limitations under section 441a of title 2, United States Code (U.S.C.) (Reference (d)); section 607 of title 18, U.S.C. (Reference (e)); and other applicable law.
4.1.1.8. Display a political bumper sticker on the member’s private vehicle.
4.1.1.9. Attend partisan and nonpartisan political fundraising activities, meetings, rallies, debates, conventions, or activities as a spectator when not in uniform and when no inference or appearance of official sponsorship, approval, or endorsement can reasonably be drawn.
4.1.1.10. Participate fully in the Federal Voting Assistance Program.
4.1.2. A member of the Armed Forces on active duty shall not:
4.1.2.1. Participate in partisan political fundraising activities (except as permitted in subparagraph 4.1.1.7.), rallies, conventions (including making speeches in the course thereof), management of campaigns, or debates, either on one’s own behalf or on that of another, without respect to uniform or inference or appearance of official sponsorship, approval, or endorsement. Participation includes more than mere attendance as a spectator. (See subparagraph 4.1.1.9.)
4.1.2.2. Use official authority or influence to interfere with an election, affect the course or outcome of an election, solicit votes for a particular candidate or issue, or require or solicit political contributions from others.
4.1.2.3. Allow or cause to be published partisan political articles, letters, or endorsements signed or written by the member that solicits votes for or against a partisan political party, candidate, or cause. This is distinguished from a letter to the editor as permitted under the conditions noted in subparagraph 4.1.1.6.
4.1.2.4. Serve in any official capacity with or be listed as a sponsor of a partisan political club.
4.1.2.5. Speak before a partisan political gathering, including any gathering that promotes a partisan political party, candidate, or cause.
4.1.2.6. Participate in any radio, television, or other program or group discussion as an advocate for or against a partisan political party, candidate, or cause.
4.1.2.7. Conduct a political opinion survey under the auspices of a partisan political club or group or distribute partisan political literature.
4.1.2.8. Perform clerical or other duties for a partisan political committee or candidate during a campaign, on an election day, or after an election day during the process of closing out a campaign.
4.1.2.9. Solicit or otherwise engage in fundraising activities in Federal offices or facilities, including military reservations, for any political cause or candidate.
4.1.2.10. March or ride in a partisan political parade.
4.1.2.11. Display a large political sign, banner, or poster (as distinguished from a bumper sticker) on a private vehicle.
4.1.2.12. Display a partisan political sign, poster, banner, or similar device visible to the public at one’s residence on a military installation, even if that residence is part of a privatized housing development.
4.1.2.13. Participate in any organized effort to provide voters with transportation to the polls if the effort is organized by or associated with a partisan political party, cause, or candidate.
4.1.2.14. Sell tickets for or otherwise actively promote partisan political dinners and similar fundraising events.
4.1.2.15. Attend partisan political events as an official representative of the Armed Forces, except as a member of a joint Armed Forces color guard at the opening ceremonies of the national conventions of the Republican, Democratic, or other political parties recognized by the Federal Elections Committee or as otherwise authorized by the Secretary concerned.
4.1.2.16. Make a campaign contribution to, or receive or solicit (on one’s own behalf) a campaign contribution from, any other member of the Armed Forces on active duty. Any contributions not prohibited by this subparagraph remain subject to the gift provisions of sections 2635.301-2635.304 of title 5, Code of Federal Regulations (Reference (f)). See subparagraph 4.1.2.1. for general prohibitions on partisan fundraising activity.
4.1.3. Commissioned officers shall not use contemptuous words as prohibited by section
888 of Reference (b) or participate in activities proscribed by DoD Directives 5200.2 and 1325.6 (References (g) and (h), respectively).
4.1.4. Subject to any other restrictions in law, a member of the Armed Forces not on active duty may take the actions or participate in the activities permitted in subparagraph 4.1.1., and may take the actions and participate in the activities prohibited in subparagraph 4.1.2, provided the member is not in uniform and does not otherwise act in a manner that could reasonably give rise to the inference or appearance of official sponsorship, approval, or endorsement.
4.1.5. Activities not expressly prohibited may be contrary to the spirit and intent of this Directive. Any activity that may be reasonably viewed as directly or indirectly associating the Department of Defense or the Department of Homeland Security (in the case of the Coast Guard) or any component of these Departments with a partisan political activity or is otherwise contrary to the spirit and intention of this Directive shall be avoided.
4.2. Nomination or Candidacy for Civil Office in the U.S. Government or State or Other Non-U.S. Government Offices
4.2.1. Paragraph 4.2. applies to:
4.2.1.1. A civil office in the U.S. Government that:
4.2.1.1.1. Is an elective office;
4.2.1.1.2. Requires an appointment by the President; or
4.2.1.1.3. Is a position on the executive schedule under sections 5312-5317 of title 5, U.S.C. (Reference (i)).
4.2.1.2. A civil office in a State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.2.2. A regular member, or a retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days, may not be a nominee or candidate for the offices described in subparagraph 4.2.1., except when the Secretary concerned grants permission.
4.2.2.1. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.2.2.2. Such permission shall not authorize activity while on active duty that is otherwise prohibited by other provisions of law or this Directive.
4.2.2.3. Such permission is required regardless of whether evidence of nomination or candidacy for civil office is filed prior to commencing active duty service or whether the member is an incumbent.
4.2.2.4. If a member covered by the prohibition in subparagraph 4.2.2. becomes a nominee or candidate for civil office prior to commencing active duty, then the member must request permission in writing and submit the request to the Secretary concerned before entering active duty. The member must understand that if the Secretary concerned does not grant permission, then the member must immediately decline the nomination or withdraw as a candidate.
4.2.3. A retired regular member or Reserve Component member on active duty under a call or order to active duty for 270 days or fewer may remain or become a nominee or candidate for the offices set out in subparagraph 4.2.1. provided there is no interference with the performance of military duty.
4.2.4. Notwithstanding any other provision of this Instruction:
4.2.4.1. Any enlisted member on active duty may seek, hold, and exercise the functions of a nonpartisan civil office as a notary public or member of a school board, neighborhood planning commission, or similar local agency, provided that the office is held in a non-military capacity and there is no interference with the performance of military duties.
4.2.4.2. Any warrant or commissioned officer on active duty may seek, hold, and exercise the functions of a nonpartisan civil office on an independent school board that is located exclusively on a military reservation, provided that the office is held in a non-military capacity and there is no interference with the performance of military duties.
4.3. Additional Limitations on Nomination or Candidacy and Campaigning
4.3.1. Members not on active duty who are nominees or candidates for the offices described in subparagraph 4.2.1. may, in their campaign literature (including Web sites, videos, television, and conventional print advertisements):
4.3.1.1. Use or mention, or permit the use or mention of, their military rank or grade and military service affiliation; BUT they must clearly indicate their retired or reserve status.
4.3.1.2. Include or permit the inclusion of their current or former specific military duty, title, or position, or photographs in military uniform, when displayed with other non- military biographical details. Any such military information must be accompanied by a prominent and clearly displayed disclaimer that neither the military information nor photographs imply endorsement by the Department of Defense or their particular Military Department (or the Department of Homeland Security for members of the Coast Guard); e.g., “John Doe is a member of the Army National Guard. Use of his military rank, job titles, and photographs in uniform does not imply endorsement by the Department of the Army or the Department of Defense.”
4.3.2. Members included in subparagraph 4.3.1. may NOT, in campaign literature (including Web sites, videos, television, and conventional print advertisements):
4.3.2.1. Use or allow the use of photographs, drawings, and other similar media formats of themselves in uniform as the primary graphic representation in any campaign media, such as a billboard, brochure, flyer, Web site, or television commercial. For the purposes of this policy, “photographs” include video images, drawings, and all other similar formats of representational media.
4.3.2.2. Depict or allow the depiction of themselves in uniform in a manner that does not accurately reflect their actual performance of duty. For the purpose of this policy, “photographs” include video images, drawings, and all other similar formats of representational media.
4.3.3. Any member on active duty who is permitted to be, or otherwise not prohibited from being, a nominee or candidate for office as described in subparagraph 4.2.1. may NOT participate in any campaign activities. This includes open and active campaigning and all behind-the-scene activities. For example, such members described in this paragraph who are candidates or nominees may not:
4.3.3.1. Direct, control, manage, or otherwise participate in their campaign, including behind-the-scene activities.
4.3.3.2. Make statements to or answer questions from the news media regarding political issues or regarding government policies or activities unless specifically authorized to do so by an appropriate supervisor or commander.
4.3.3.3. Publish or allow to be published partisan political articles, literature, or documents that they have signed, written, or approved that solicit votes for or against a partisan political party, candidate, issue, or cause.
4.3.4. Those members included in subparagraph 4.3.3. who are nominees or candidates
for office must:
4.3.4.1. Take affirmative, documented efforts to inform those who work for them and
those whom they control that they (the nominees or candidates) may not direct, control, manage, or otherwise participate in campaign activities on their own behalf.
4.3.4.2. Take all reasonable efforts to prevent current or anticipated advertisements that they (the nominees or candidates) control from being publicly displayed or running in any media. This includes Web sites devoted to the nomination or candidacy. Web sites created before entry on active duty may not be updated or revised and may be ordered shut down as the Secretary concerned may direct.
4.3.5. Those who require permission to be nominees or candidates under the provisions of subparagraph 4.2.2., or who are on active duty and are not otherwise prohibited from being a nominee or a candidate under the provisions of subparagraph 4.2.3., must complete the acknowledgment of limitations at Enclosure 4. Those who require permission must complete the acknowledgment before permission may be granted. Those who do not require permission must complete the acknowledgment within 15 days of becoming a nominee or candidate or within 15 days of entry on active duty if already a nominee or candidate. The acknowledgment must be forwarded through the nominee’s or candidate’s immediate supervisor to the first general officer in the chain of command.
4.4. Holding and Exercising the Functions of a U.S. Government Civil Office Attained by Election or Appointment
4.4.1. Paragraph 4.4. applies to a civil office in the U.S. Government that:
4.4.1.1. Is an elective office;
4.4.1.2. Requires an appointment by the President; or
4.4.1.3. Is in a position on the executive schedule under sections 5312-5317 of Reference (i).
4.4.2. A regular member, or retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days, may not hold or exercise the functions of civil office set out in subparagraph 4.4.1. unless otherwise authorized in paragraph 4.4. or by law.
4.4.3. A retired regular member, or a Reserve Component member on active duty under a call or order to active duty for 270 days or fewer, may hold and exercise the functions of a civil office provided there is no interference with the performance of military duty.
4.4.4. A member on active duty may hold and exercise the functions of a civil office under paragraph 4.4. when assigned or detailed (while on active duty) to such office to perform such functions, provided the assignment or detail does not interfere with military duties.
4.4.5. Any member on active duty authorized to hold or exercise or not prohibited from holding or exercising the functions of office under paragraph 4.4. are still subject to the prohibitions of subparagraph 4.1.2.
4.5. Holding and Exercising the Functions of a State or Other Non-U.S. Government Office Attained by Election or Appointment
4.5.1. Paragraph 4.5. applies to a civil office in a State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.5.2. A regular member may not hold or exercise the functions of civil office unless otherwise authorized in paragraph 4.5. or by law.
4.5.3. A retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days may hold─but shall NOT exercise─the functions of a civil office as set out in subparagraph 4.5.1., as long as:
4.5.3.1. The holding of such office is not prohibited under the laws of the State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.5.3.2. The Secretary concerned grants permission after determining that holding such office does not interfere with the performance of military duties. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.5.4. A retired regular or Reserve Component member on active duty under a call or order to active duty for 270 days or fewer may hold and exercise the functions of civil office provided there is no interference with the performance of military duties.
4.5.5. Any member on active duty authorized to hold or exercise, or not prohibited from holding or exercising, the functions of office under paragraph 4.5. are still subject to the prohibitions of subparagraph 4.1.2.
4.6. Actions When Prohibitions Apply
4.6.1. Members affected by the prohibitions against being a nominee or candidate or holding or exercising the functions of a civil office may request retirement (if eligible), discharge, or release from active duty. The Secretary concerned may approve these requests, consistent with the needs of the Service, unless the member is:
4.6.1.1. Obligated to fulfill an active duty service commitment.
4.6.1.2. Serving or has been issued orders to serve afloat or in an area that is overseas, remote, a combat zone, or a hostile pay fire area.
4.6.1.3. Ordered to remain on active duty while the subject of an investigation or inquiry.
4.6.1.4. Accused of an offense under Chapter 47 of Reference (b) or serving a sentence or punishment for such an offense.
4.6.1.5. Pending other administrative separation action or proceedings.
4.6.1.6. Indebted to the United States.
4.6.1.7. In a Reserve Component and serving involuntarily under a call or order to active duty that specifies a period of active duty of more that 270 days during a period of declared war or national emergency; or other period when a unit or individual of the National Guard or other Reserve Component has been involuntarily called or ordered to active duty as authorized by law.
4.6.1.8. In violation of this Directive or an order or regulation prohibiting such member from assuming or exercising the functions of civil office.
4.6.2. Subparagraph 4.6.1. does not preclude a member’s involuntary discharge or release from active duty.
4.6.3. No actions undertaken by a member in carrying out assigned military duties shall be invalidated solely by virtue of such member having been a candidate or nominee for a civil office in violation of the prohibition of paragraph 4.2. or having held or exercised the functions of a civil office in violation of the prohibitions of paragraphs 4.4. or 4.5.
4.6.4. This is a lawful general regulation. Violations of paragraphs 4.1. through 4.5. of this Directive by persons subject to the Uniform Code of Military Justice are punishable under Article 92, “Failure to Obey Order or Regulation,” Chapter 47 of Reference (b).
5. RESPONSIBILITIES
5.1. The Under Secretary of Defense for Personnel and Readiness shall administer this Directive.
5.2. The Secretaries of the Military Departments shall issue appropriate implementing documents for their respective Departments.
6. RELEASABILITY
UNLIMITED. This Directive is approved for public release. Copies may be obtained through the Internet from the DoD Issuances Web Site at http://www.dtic.mil/whs/directives.
7. EFFECTIVE DATE
This Directive is effective immediately.
Enclosures - 4
E1. References, continued
E2. Definitions
E3. Nonpartisan Activities and Other Miscellaneous Guidance
E4. Candidacy or Nomination for Political Office Counseling Statement
10
DoDD 1344.10, February 19, 2008
E1. ENCLOSURE 1
REFERENCES, continued
(e) Section 607 of title 18, United States Code
(f) Sections 2635.301-2635.304 of title 5, Code of Federal Regulations
(g) DoD Directive 5200.2, “DoD Personnel Security Program,” April 9, 1999
(h) DoD Directive 1325.6, “Guidelines for Handling Dissident and Protest Activities Among
Members of the Armed Forces,” October 1, 1996
(i) Sections 5312-5317 of title 5, United States Code
ENCLOSURE 1 11
DoDD 1344.10, February 19, 2008
E2. ENCLOSURE 2
DEFINITIONS
E2.1. Active Duty. Full-time duty in the active military service of the United States regardless of duration or purpose. Active duty includes full-time training duty; annual training duty; and attendance, while in the active military service, at a school designated as a Service school by law or by the Secretary concerned. For purposes of this Directive only, active duty also includes full- time National Guard duty.
E2.2. Call or Order to Active Duty for More Than 270 Days. Any prohibitions or limitations this Directive triggers by a call or order to active duty for more than 270 days begins on the first day of the active duty.
E2.3. Civil Office. A non-military office involving the exercise of the powers or authority of civil government, to include elective and appointed office in the U.S. Government, a U.S. territory or possession, State, county, municipality, or official subdivision thereof. This term does not include a non-elective position as a regular or reserve member of civilian law enforcement, fire, or rescue squad.
E2.4. Nonpartisan Political Activity. Activity supporting or relating to candidates not representing, or issues not specifically identified with, national or State political parties and associated or ancillary organizations or clubs. Issues relating to State constitutional amendments or referendums, approval of municipal ordinances, and others of similar character are not considered under this Instruction as specifically identified with national or State political parties.
E2.5. Partisan Political Activity. Activity supporting or relating to candidates representing, or issues specifically identified with, national or State political parties and associated or ancillary organizations or clubs.
E2.6. Secretary Concerned. See section 101(a)(9) of Reference (b).
ENCLOSURE 2 12
DoDD 1344.10, February 19, 2008
E3. ENCLOSURE 3
NONPARTISAN ACTIVITIES AND OTHER MISCELLANEOUS GUIDANCE
E3.1. LOCAL NONPARTISAN POLITICAL ACTIVITIES
This Directive does not preclude participation in local nonpartisan political campaigns, initiatives, or referendums. A member taking part in local nonpartisan political activity, however, shall not:
E3.1.1. Wear a uniform or use any Government property or facilities while participating.
E3.1.2. Allow such participation to interfere with or prejudice the member’s performance of military duties.
E3.1.3. Engage in conduct that in any way may reasonably imply that the Military Department concerned or any component of such Department has taken an official position on, or is otherwise involved in, the local political campaign or issue.
E3.2. ADDITIONAL REQUIREMENTS
Members of the Armed Forces on active duty engaging in permissible political activities shall:
E3.2.1. Give full time and attention to the performance of military duties during prescribed duty hours.
E3.2.2. Avoid any outside activities that may be prejudicial to the performance of military duties or likely to bring discredit upon the Armed Forces.
E3.2.3. Refrain from participating in any political activity while in military uniform, as proscribed by Reference (c), or using Government facilities or resources for furthering political activities.
ENCLOSURE 3 13
DoDD 1344.10, February 19, 2008
E4. ENCLOSURE 4
CANDIDACY OR NOMINATION FOR POLITICAL OFFICE
ACKNOWLEDGMENT OF LIMITATIONS
[To be prepared by any member on active duty (or who is about to enter active duty) who is:
Alternate A: Granted permission to remain or to become a candidate or nominee for civil office, (subparagraph 4.2.2.); or Alternate B: Not otherwise prohibited from remaining or becoming a candidate or nominee for civil office (subparagraph 4.2.3.). (Prepare as a letter or memorandum, signed by the member and addressed through the member’s immediate supervisor (if known) to the first general or flag officer in the member’s chain of command.)]
(Date)
[Select the appropriate paragraph 1].
Alternate A (over 270 days)
1. I understand that for me to remain or to become a nominee or a candidate for the civil office of [specifically identify the civil office] while on active duty, I must have the permission of the [name of the Secretary concerned] as required by subparagraph 4.2.2. of DoD Directive (DoDD)
1344.10, “Political Activities by Members of the Armed Forces.” I understand that such permission will be granted sparingly because it runs counter to the traditional concept that Service members on active duty should not engage in partisan political activity. Furthermore, I understand that if I am already a candidate or nominee, I must submit my request for permission from [specifically identify the Secretary concerned] before I enter active duty. If I am already on active duty and wish to become a candidate or nominee, I must receive permission first.
Alternate B (270 days or fewer)
1. I understand that I am authorized to remain or to become a candidate or nominee for the civil office of [specifically identify the civil office] while on active duty. This is authorized by subparagraph 4.2.3. of DoD Directive (DoDD) 1344.10, “Political Activities by Members of the Armed Forces,” because I am under a call or order to active duty for 270 days or fewer. I understand that I may remain a candidate or nominee only as long as my candidacy or nomination does not interfere with the performance of my military duty.
2. I have read and fully understand that DoDD 1344.10, paragraphs 4.2. and 4.3. severely limit my ability to participate as a nominee or candidate in the political process. I specifically understand that if I am granted permission to be a candidate or nominee or am not otherwise prohibited from becoming a candidate or nominee, I may not direct, control, endorse, or otherwise participate in campaign activities on my behalf (including behind-the-scene activities).
Furthermore, I must:
a. Take affirmative, documented efforts to inform those who work for me and those whom I control that I may not direct, control, manage, or otherwise participate in campaign activities on my own behalf.
b. Take all reasonable efforts to prevent current or anticipated advertisements that I control from being publicly displayed or running in any media. This includes Web sites devoted to the nomination or candidacy. Such Web sites created before my entry on active duty must
otherwise comply with subparagraph 4.3.1. and may not be updated or revised while I am on active duty. Furthermore, I understand that the Secretary concerned may direct that the Web site be removed.
3. I have read and understand the prohibitions found in DoDD 1344.10, paragraphs 4.2 and 4.3.
4. I understand that DoDI 1334.1, “Wearing of the Uniform,” prohibits the wearing of a military uniform during or in connection with the furtherance of any political or commercial interests not otherwise prohibited or limited above.
5. Finally, I understand that should I be elected to this civil office while on active duty, I will be subject to the policies concerning holding and exercising the function of civil office also found in DoDD 1344.10.
[Include signature block of nominee or candidate.]
ENCLOSURE 4 15
YOU ARE IN VIOLATION OF THIS DOD DIRECTIVE!!
Department of Defense
DIRECTIVE
NUMBER 1344.10
February 19, 2008
USD(P&R)
SUBJECT: Political Activities by Members of the Armed Forces
References: (a) DoD Directive 1344.10, “Political Activities by Members of the Armed
Forces on Active Duty,” August 2, 2004 (hereby canceled)
(b) Sections 973, 888, 101, and Chapter 47 of title 10, United States Code
(c) DoD Instruction 1334.1, “Wearing of the Uniform,” October 26, 2005
(d) Section 441a of title 2, United States Code
(e) through (i), see Enclosure 1
1. PURPOSE
This Directive:
1.1. Reissues Reference (a) to update policies on political activities of members of the Armed Forces.
1.2. Implements section 973(b) through (d) of Reference (b).
2. APPLICABILITY
This Directive applies to the Office of the Secretary of Defense, the Military Departments (including the Coast Guard at all times, including when it is a Service in the Department of Homeland Security by agreement with that Department), the Office of the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as the “DoD Components”). Paragraph 4.3. applies to members of the National Guard, even when in a non-Federal status. Other provisions apply to members of the National Guard while on active duty, which, for purposes of this Directive only, also includes full-time National Guard duty.
DoDD 1344.10, February 19, 2008
3. DEFINITIONS
The terms used in this Directive are defined in Enclosure 2.
4. POLICY
It is DoD policy to encourage members of the Armed Forces (hereafter referred to as “members”) (including members on active duty, members of the Reserve Components not on active duty, members of the National Guard even when in a non-Federal status, and retired members) to carry out the obligations of citizenship. In keeping with the traditional concept that members on active duty should not engage in partisan political activity, and that members not on active duty should avoid inferences that their political activities imply or appear to imply official sponsorship, approval, or endorsement, the following policy shall apply:
4.1. General
4.1.1. A member of the Armed Forces on active duty may:
4.1.1.1. Register, vote, and express a personal opinion on political candidates and issues, but not as a representative of the Armed Forces.
4.1.1.2. Promote and encourage others to exercise their voting franchise, if such promotion does not constitute use of their official authority or influence to interfere with the outcome of any election.
4.1.1.3. Join a partisan or nonpartisan political club and attend its meetings when not in uniform, subject to the restrictions of subparagraph 4.1.2.4. (See DoD Instruction 1334.1 (Reference (c).)
4.1.1.4. Serve as an election official, if such service is not as a representative of a partisan political party, does not interfere with the performance of military duties, is performed when not in uniform, and the Secretary concerned has given prior approval. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.1.1.5. Sign a petition for a specific legislative action or a petition to place a candidate’s name on an official election ballot, if the signing does not obligate the member to engage in partisan political activity and is done as a private citizen and not as a representative of the Armed Forces.
4.1.1.6. Write a letter to the editor of a newspaper expressing the member’s personal views on public issues or political candidates, if such action is not part of an organized letter- writing campaign or a solicitation of votes for or against a political party or partisan political cause or candidate. If the letter identifies the member as on active duty (or if the member is otherwise reasonably identifiable as a member of the Armed Forces), the letter should clearly state that the views expressed are those of the individual only and not those of the Department of Defense (or Department of Homeland Security for members of the Coast Guard).
4.1.1.7. Make monetary contributions to a political organization, party, or committee favoring a particular candidate or slate of candidates, subject to the limitations under section 441a of title 2, United States Code (U.S.C.) (Reference (d)); section 607 of title 18, U.S.C. (Reference (e)); and other applicable law.
4.1.1.8. Display a political bumper sticker on the member’s private vehicle.
4.1.1.9. Attend partisan and nonpartisan political fundraising activities, meetings, rallies, debates, conventions, or activities as a spectator when not in uniform and when no inference or appearance of official sponsorship, approval, or endorsement can reasonably be drawn.
4.1.1.10. Participate fully in the Federal Voting Assistance Program.
4.1.2. A member of the Armed Forces on active duty shall not:
4.1.2.1. Participate in partisan political fundraising activities (except as permitted in subparagraph 4.1.1.7.), rallies, conventions (including making speeches in the course thereof), management of campaigns, or debates, either on one’s own behalf or on that of another, without respect to uniform or inference or appearance of official sponsorship, approval, or endorsement. Participation includes more than mere attendance as a spectator. (See subparagraph 4.1.1.9.)
4.1.2.2. Use official authority or influence to interfere with an election, affect the course or outcome of an election, solicit votes for a particular candidate or issue, or require or solicit political contributions from others.
4.1.2.3. Allow or cause to be published partisan political articles, letters, or endorsements signed or written by the member that solicits votes for or against a partisan political party, candidate, or cause. This is distinguished from a letter to the editor as permitted under the conditions noted in subparagraph 4.1.1.6.
4.1.2.4. Serve in any official capacity with or be listed as a sponsor of a partisan political club.
4.1.2.5. Speak before a partisan political gathering, including any gathering that promotes a partisan political party, candidate, or cause.
4.1.2.6. Participate in any radio, television, or other program or group discussion as an advocate for or against a partisan political party, candidate, or cause.
4.1.2.7. Conduct a political opinion survey under the auspices of a partisan political club or group or distribute partisan political literature.
4.1.2.8. Perform clerical or other duties for a partisan political committee or candidate during a campaign, on an election day, or after an election day during the process of closing out a campaign.
4.1.2.9. Solicit or otherwise engage in fundraising activities in Federal offices or facilities, including military reservations, for any political cause or candidate.
4.1.2.10. March or ride in a partisan political parade.
4.1.2.11. Display a large political sign, banner, or poster (as distinguished from a bumper sticker) on a private vehicle.
4.1.2.12. Display a partisan political sign, poster, banner, or similar device visible to the public at one’s residence on a military installation, even if that residence is part of a privatized housing development.
4.1.2.13. Participate in any organized effort to provide voters with transportation to the polls if the effort is organized by or associated with a partisan political party, cause, or candidate.
4.1.2.14. Sell tickets for or otherwise actively promote partisan political dinners and similar fundraising events.
4.1.2.15. Attend partisan political events as an official representative of the Armed Forces, except as a member of a joint Armed Forces color guard at the opening ceremonies of the national conventions of the Republican, Democratic, or other political parties recognized by the Federal Elections Committee or as otherwise authorized by the Secretary concerned.
4.1.2.16. Make a campaign contribution to, or receive or solicit (on one’s own behalf) a campaign contribution from, any other member of the Armed Forces on active duty. Any contributions not prohibited by this subparagraph remain subject to the gift provisions of sections 2635.301-2635.304 of title 5, Code of Federal Regulations (Reference (f)). See subparagraph 4.1.2.1. for general prohibitions on partisan fundraising activity.
4.1.3. Commissioned officers shall not use contemptuous words as prohibited by section
888 of Reference (b) or participate in activities proscribed by DoD Directives 5200.2 and 1325.6 (References (g) and (h), respectively).
4.1.4. Subject to any other restrictions in law, a member of the Armed Forces not on active duty may take the actions or participate in the activities permitted in subparagraph 4.1.1., and may take the actions and participate in the activities prohibited in subparagraph 4.1.2, provided the member is not in uniform and does not otherwise act in a manner that could reasonably give rise to the inference or appearance of official sponsorship, approval, or endorsement.
4.1.5. Activities not expressly prohibited may be contrary to the spirit and intent of this Directive. Any activity that may be reasonably viewed as directly or indirectly associating the Department of Defense or the Department of Homeland Security (in the case of the Coast Guard) or any component of these Departments with a partisan political activity or is otherwise contrary to the spirit and intention of this Directive shall be avoided.
4.2. Nomination or Candidacy for Civil Office in the U.S. Government or State or Other Non-U.S. Government Offices
4.2.1. Paragraph 4.2. applies to:
4.2.1.1. A civil office in the U.S. Government that:
4.2.1.1.1. Is an elective office;
4.2.1.1.2. Requires an appointment by the President; or
4.2.1.1.3. Is a position on the executive schedule under sections 5312-5317 of title 5, U.S.C. (Reference (i)).
4.2.1.2. A civil office in a State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.2.2. A regular member, or a retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days, may not be a nominee or candidate for the offices described in subparagraph 4.2.1., except when the Secretary concerned grants permission.
4.2.2.1. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.2.2.2. Such permission shall not authorize activity while on active duty that is otherwise prohibited by other provisions of law or this Directive.
4.2.2.3. Such permission is required regardless of whether evidence of nomination or candidacy for civil office is filed prior to commencing active duty service or whether the member is an incumbent.
4.2.2.4. If a member covered by the prohibition in subparagraph 4.2.2. becomes a nominee or candidate for civil office prior to commencing active duty, then the member must request permission in writing and submit the request to the Secretary concerned before entering active duty. The member must understand that if the Secretary concerned does not grant permission, then the member must immediately decline the nomination or withdraw as a candidate.
4.2.3. A retired regular member or Reserve Component member on active duty under a call or order to active duty for 270 days or fewer may remain or become a nominee or candidate for the offices set out in subparagraph 4.2.1. provided there is no interference with the performance of military duty.
4.2.4. Notwithstanding any other provision of this Instruction:
4.2.4.1. Any enlisted member on active duty may seek, hold, and exercise the functions of a nonpartisan civil office as a notary public or member of a school board, neighborhood planning commission, or similar local agency, provided that the office is held in a non-military capacity and there is no interference with the performance of military duties.
4.2.4.2. Any warrant or commissioned officer on active duty may seek, hold, and exercise the functions of a nonpartisan civil office on an independent school board that is located exclusively on a military reservation, provided that the office is held in a non-military capacity and there is no interference with the performance of military duties.
4.3. Additional Limitations on Nomination or Candidacy and Campaigning
4.3.1. Members not on active duty who are nominees or candidates for the offices described in subparagraph 4.2.1. may, in their campaign literature (including Web sites, videos, television, and conventional print advertisements):
4.3.1.1. Use or mention, or permit the use or mention of, their military rank or grade and military service affiliation; BUT they must clearly indicate their retired or reserve status.
4.3.1.2. Include or permit the inclusion of their current or former specific military duty, title, or position, or photographs in military uniform, when displayed with other non- military biographical details. Any such military information must be accompanied by a prominent and clearly displayed disclaimer that neither the military information nor photographs imply endorsement by the Department of Defense or their particular Military Department (or the Department of Homeland Security for members of the Coast Guard); e.g., “John Doe is a member of the Army National Guard. Use of his military rank, job titles, and photographs in uniform does not imply endorsement by the Department of the Army or the Department of Defense.”
4.3.2. Members included in subparagraph 4.3.1. may NOT, in campaign literature (including Web sites, videos, television, and conventional print advertisements):
4.3.2.1. Use or allow the use of photographs, drawings, and other similar media formats of themselves in uniform as the primary graphic representation in any campaign media, such as a billboard, brochure, flyer, Web site, or television commercial. For the purposes of this policy, “photographs” include video images, drawings, and all other similar formats of representational media.
4.3.2.2. Depict or allow the depiction of themselves in uniform in a manner that does not accurately reflect their actual performance of duty. For the purpose of this policy, “photographs” include video images, drawings, and all other similar formats of representational media.
4.3.3. Any member on active duty who is permitted to be, or otherwise not prohibited from being, a nominee or candidate for office as described in subparagraph 4.2.1. may NOT participate in any campaign activities. This includes open and active campaigning and all behind-the-scene activities. For example, such members described in this paragraph who are candidates or nominees may not:
4.3.3.1. Direct, control, manage, or otherwise participate in their campaign, including behind-the-scene activities.
4.3.3.2. Make statements to or answer questions from the news media regarding political issues or regarding government policies or activities unless specifically authorized to do so by an appropriate supervisor or commander.
4.3.3.3. Publish or allow to be published partisan political articles, literature, or documents that they have signed, written, or approved that solicit votes for or against a partisan political party, candidate, issue, or cause.
4.3.4. Those members included in subparagraph 4.3.3. who are nominees or candidates
for office must:
4.3.4.1. Take affirmative, documented efforts to inform those who work for them and
those whom they control that they (the nominees or candidates) may not direct, control, manage, or otherwise participate in campaign activities on their own behalf.
4.3.4.2. Take all reasonable efforts to prevent current or anticipated advertisements that they (the nominees or candidates) control from being publicly displayed or running in any media. This includes Web sites devoted to the nomination or candidacy. Web sites created before entry on active duty may not be updated or revised and may be ordered shut down as the Secretary concerned may direct.
4.3.5. Those who require permission to be nominees or candidates under the provisions of subparagraph 4.2.2., or who are on active duty and are not otherwise prohibited from being a nominee or a candidate under the provisions of subparagraph 4.2.3., must complete the acknowledgment of limitations at Enclosure 4. Those who require permission must complete the acknowledgment before permission may be granted. Those who do not require permission must complete the acknowledgment within 15 days of becoming a nominee or candidate or within 15 days of entry on active duty if already a nominee or candidate. The acknowledgment must be forwarded through the nominee’s or candidate’s immediate supervisor to the first general officer in the chain of command.
4.4. Holding and Exercising the Functions of a U.S. Government Civil Office Attained by Election or Appointment
4.4.1. Paragraph 4.4. applies to a civil office in the U.S. Government that:
4.4.1.1. Is an elective office;
4.4.1.2. Requires an appointment by the President; or
4.4.1.3. Is in a position on the executive schedule under sections 5312-5317 of Reference (i).
4.4.2. A regular member, or retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days, may not hold or exercise the functions of civil office set out in subparagraph 4.4.1. unless otherwise authorized in paragraph 4.4. or by law.
4.4.3. A retired regular member, or a Reserve Component member on active duty under a call or order to active duty for 270 days or fewer, may hold and exercise the functions of a civil office provided there is no interference with the performance of military duty.
4.4.4. A member on active duty may hold and exercise the functions of a civil office under paragraph 4.4. when assigned or detailed (while on active duty) to such office to perform such functions, provided the assignment or detail does not interfere with military duties.
4.4.5. Any member on active duty authorized to hold or exercise or not prohibited from holding or exercising the functions of office under paragraph 4.4. are still subject to the prohibitions of subparagraph 4.1.2.
4.5. Holding and Exercising the Functions of a State or Other Non-U.S. Government Office Attained by Election or Appointment
4.5.1. Paragraph 4.5. applies to a civil office in a State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.5.2. A regular member may not hold or exercise the functions of civil office unless otherwise authorized in paragraph 4.5. or by law.
4.5.3. A retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days may hold─but shall NOT exercise─the functions of a civil office as set out in subparagraph 4.5.1., as long as:
4.5.3.1. The holding of such office is not prohibited under the laws of the State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.5.3.2. The Secretary concerned grants permission after determining that holding such office does not interfere with the performance of military duties. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.5.4. A retired regular or Reserve Component member on active duty under a call or order to active duty for 270 days or fewer may hold and exercise the functions of civil office provided there is no interference with the performance of military duties.
4.5.5. Any member on active duty authorized to hold or exercise, or not prohibited from holding or exercising, the functions of office under paragraph 4.5. are still subject to the prohibitions of subparagraph 4.1.2.
4.6. Actions When Prohibitions Apply
4.6.1. Members affected by the prohibitions against being a nominee or candidate or holding or exercising the functions of a civil office may request retirement (if eligible), discharge, or release from active duty. The Secretary concerned may approve these requests, consistent with the needs of the Service, unless the member is:
4.6.1.1. Obligated to fulfill an active duty service commitment.
4.6.1.2. Serving or has been issued orders to serve afloat or in an area that is overseas, remote, a combat zone, or a hostile pay fire area.
4.6.1.3. Ordered to remain on active duty while the subject of an investigation or inquiry.
4.6.1.4. Accused of an offense under Chapter 47 of Reference (b) or serving a sentence or punishment for such an offense.
4.6.1.5. Pending other administrative separation action or proceedings.
4.6.1.6. Indebted to the United States.
4.6.1.7. In a Reserve Component and serving involuntarily under a call or order to active duty that specifies a period of active duty of more that 270 days during a period of declared war or national emergency; or other period when a unit or individual of the National Guard or other Reserve Component has been involuntarily called or ordered to active duty as authorized by law.
4.6.1.8. In violation of this Directive or an order or regulation prohibiting such member from assuming or exercising the functions of civil office.
4.6.2. Subparagraph 4.6.1. does not preclude a member’s involuntary discharge or release from active duty.
4.6.3. No actions undertaken by a member in carrying out assigned military duties shall be invalidated solely by virtue of such member having been a candidate or nominee for a civil office in violation of the prohibition of paragraph 4.2. or having held or exercised the functions of a civil office in violation of the prohibitions of paragraphs 4.4. or 4.5.
4.6.4. This is a lawful general regulation. Violations of paragraphs 4.1. through 4.5. of this Directive by persons subject to the Uniform Code of Military Justice are punishable under Article 92, “Failure to Obey Order or Regulation,” Chapter 47 of Reference (b).
5. RESPONSIBILITIES
5.1. The Under Secretary of Defense for Personnel and Readiness shall administer this Directive.
5.2. The Secretaries of the Military Departments shall issue appropriate implementing documents for their respective Departments.
6. RELEASABILITY
UNLIMITED. This Directive is approved for public release. Copies may be obtained through the Internet from the DoD Issuances Web Site at http://www.dtic.mil/whs/directives.
7. EFFECTIVE DATE
This Directive is effective immediately.
Enclosures - 4
E1. References, continued
E2. Definitions
E3. Nonpartisan Activities and Other Miscellaneous Guidance
E4. Candidacy or Nomination for Political Office Counseling Statement
10
DoDD 1344.10, February 19, 2008
E1. ENCLOSURE 1
REFERENCES, continued
(e) Section 607 of title 18, United States Code
(f) Sections 2635.301-2635.304 of title 5, Code of Federal Regulations
(g) DoD Directive 5200.2, “DoD Personnel Security Program,” April 9, 1999
(h) DoD Directive 1325.6, “Guidelines for Handling Dissident and Protest Activities Among
Members of the Armed Forces,” October 1, 1996
(i) Sections 5312-5317 of title 5, United States Code
ENCLOSURE 1 11
DoDD 1344.10, February 19, 2008
E2. ENCLOSURE 2
DEFINITIONS
E2.1. Active Duty. Full-time duty in the active military service of the United States regardless of duration or purpose. Active duty includes full-time training duty; annual training duty; and attendance, while in the active military service, at a school designated as a Service school by law or by the Secretary concerned. For purposes of this Directive only, active duty also includes full- time National Guard duty.
E2.2. Call or Order to Active Duty for More Than 270 Days. Any prohibitions or limitations this Directive triggers by a call or order to active duty for more than 270 days begins on the first day of the active duty.
E2.3. Civil Office. A non-military office involving the exercise of the powers or authority of civil government, to include elective and appointed office in the U.S. Government, a U.S. territory or possession, State, county, municipality, or official subdivision thereof. This term does not include a non-elective position as a regular or reserve member of civilian law enforcement, fire, or rescue squad.
E2.4. Nonpartisan Political Activity. Activity supporting or relating to candidates not representing, or issues not specifically identified with, national or State political parties and associated or ancillary organizations or clubs. Issues relating to State constitutional amendments or referendums, approval of municipal ordinances, and others of similar character are not considered under this Instruction as specifically identified with national or State political parties.
E2.5. Partisan Political Activity. Activity supporting or relating to candidates representing, or issues specifically identified with, national or State political parties and associated or ancillary organizations or clubs.
E2.6. Secretary Concerned. See section 101(a)(9) of Reference (b).
ENCLOSURE 2 12
DoDD 1344.10, February 19, 2008
E3. ENCLOSURE 3
NONPARTISAN ACTIVITIES AND OTHER MISCELLANEOUS GUIDANCE
E3.1. LOCAL NONPARTISAN POLITICAL ACTIVITIES
This Directive does not preclude participation in local nonpartisan political campaigns, initiatives, or referendums. A member taking part in local nonpartisan political activity, however, shall not:
E3.1.1. Wear a uniform or use any Government property or facilities while participating.
E3.1.2. Allow such participation to interfere with or prejudice the member’s performance of military duties.
E3.1.3. Engage in conduct that in any way may reasonably imply that the Military Department concerned or any component of such Department has taken an official position on, or is otherwise involved in, the local political campaign or issue.
E3.2. ADDITIONAL REQUIREMENTS
Members of the Armed Forces on active duty engaging in permissible political activities shall:
E3.2.1. Give full time and attention to the performance of military duties during prescribed duty hours.
E3.2.2. Avoid any outside activities that may be prejudicial to the performance of military duties or likely to bring discredit upon the Armed Forces.
E3.2.3. Refrain from participating in any political activity while in military uniform, as proscribed by Reference (c), or using Government facilities or resources for furthering political activities.
ENCLOSURE 3 13
DoDD 1344.10, February 19, 2008
E4. ENCLOSURE 4
CANDIDACY OR NOMINATION FOR POLITICAL OFFICE
ACKNOWLEDGMENT OF LIMITATIONS
[To be prepared by any member on active duty (or who is about to enter active duty) who is:
Alternate A: Granted permission to remain or to become a candidate or nominee for civil office, (subparagraph 4.2.2.); or Alternate B: Not otherwise prohibited from remaining or becoming a candidate or nominee for civil office (subparagraph 4.2.3.). (Prepare as a letter or memorandum, signed by the member and addressed through the member’s immediate supervisor (if known) to the first general or flag officer in the member’s chain of command.)]
(Date)
[Select the appropriate paragraph 1].
Alternate A (over 270 days)
1. I understand that for me to remain or to become a nominee or a candidate for the civil office of [specifically identify the civil office] while on active duty, I must have the permission of the [name of the Secretary concerned] as required by subparagraph 4.2.2. of DoD Directive (DoDD)
1344.10, “Political Activities by Members of the Armed Forces.” I understand that such permission will be granted sparingly because it runs counter to the traditional concept that Service members on active duty should not engage in partisan political activity. Furthermore, I understand that if I am already a candidate or nominee, I must submit my request for permission from [specifically identify the Secretary concerned] before I enter active duty. If I am already on active duty and wish to become a candidate or nominee, I must receive permission first.
Alternate B (270 days or fewer)
1. I understand that I am authorized to remain or to become a candidate or nominee for the civil office of [specifically identify the civil office] while on active duty. This is authorized by subparagraph 4.2.3. of DoD Directive (DoDD) 1344.10, “Political Activities by Members of the Armed Forces,” because I am under a call or order to active duty for 270 days or fewer. I understand that I may remain a candidate or nominee only as long as my candidacy or nomination does not interfere with the performance of my military duty.
2. I have read and fully understand that DoDD 1344.10, paragraphs 4.2. and 4.3. severely limit my ability to participate as a nominee or candidate in the political process. I specifically understand that if I am granted permission to be a candidate or nominee or am not otherwise prohibited from becoming a candidate or nominee, I may not direct, control, endorse, or otherwise participate in campaign activities on my behalf (including behind-the-scene activities).
Furthermore, I must:
a. Take affirmative, documented efforts to inform those who work for me and those whom I control that I may not direct, control, manage, or otherwise participate in campaign activities on my own behalf.
b. Take all reasonable efforts to prevent current or anticipated advertisements that I control from being publicly displayed or running in any media. This includes Web sites devoted to the nomination or candidacy. Such Web sites created before my entry on active duty must
otherwise comply with subparagraph 4.3.1. and may not be updated or revised while I am on active duty. Furthermore, I understand that the Secretary concerned may direct that the Web site be removed.
3. I have read and understand the prohibitions found in DoDD 1344.10, paragraphs 4.2 and 4.3.
4. I understand that DoDI 1334.1, “Wearing of the Uniform,” prohibits the wearing of a military uniform during or in connection with the furtherance of any political or commercial interests not otherwise prohibited or limited above.
5. Finally, I understand that should I be elected to this civil office while on active duty, I will be subject to the policies concerning holding and exercising the function of civil office also found in DoDD 1344.10.
[Include signature block of nominee or candidate.]
ENCLOSURE 4 15
YOU ARE IN VIOLATION OF THIS DOD DIRECTIVE!!
Department of Defense
DIRECTIVE
NUMBER 1344.10
February 19, 2008
USD(P&R)
SUBJECT: Political Activities by Members of the Armed Forces
References: (a) DoD Directive 1344.10, “Political Activities by Members of the Armed
Forces on Active Duty,” August 2, 2004 (hereby canceled)
(b) Sections 973, 888, 101, and Chapter 47 of title 10, United States Code
(c) DoD Instruction 1334.1, “Wearing of the Uniform,” October 26, 2005
(d) Section 441a of title 2, United States Code
(e) through (i), see Enclosure 1
1. PURPOSE
This Directive:
1.1. Reissues Reference (a) to update policies on political activities of members of the Armed Forces.
1.2. Implements section 973(b) through (d) of Reference (b).
2. APPLICABILITY
This Directive applies to the Office of the Secretary of Defense, the Military Departments (including the Coast Guard at all times, including when it is a Service in the Department of Homeland Security by agreement with that Department), the Office of the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as the “DoD Components”). Paragraph 4.3. applies to members of the National Guard, even when in a non-Federal status. Other provisions apply to members of the National Guard while on active duty, which, for purposes of this Directive only, also includes full-time National Guard duty.
DoDD 1344.10, February 19, 2008
3. DEFINITIONS
The terms used in this Directive are defined in Enclosure 2.
4. POLICY
It is DoD policy to encourage members of the Armed Forces (hereafter referred to as “members”) (including members on active duty, members of the Reserve Components not on active duty, members of the National Guard even when in a non-Federal status, and retired members) to carry out the obligations of citizenship. In keeping with the traditional concept that members on active duty should not engage in partisan political activity, and that members not on active duty should avoid inferences that their political activities imply or appear to imply official sponsorship, approval, or endorsement, the following policy shall apply:
4.1. General
4.1.1. A member of the Armed Forces on active duty may:
4.1.1.1. Register, vote, and express a personal opinion on political candidates and issues, but not as a representative of the Armed Forces.
4.1.1.2. Promote and encourage others to exercise their voting franchise, if such promotion does not constitute use of their official authority or influence to interfere with the outcome of any election.
4.1.1.3. Join a partisan or nonpartisan political club and attend its meetings when not in uniform, subject to the restrictions of subparagraph 4.1.2.4. (See DoD Instruction 1334.1 (Reference (c).)
4.1.1.4. Serve as an election official, if such service is not as a representative of a partisan political party, does not interfere with the performance of military duties, is performed when not in uniform, and the Secretary concerned has given prior approval. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.1.1.5. Sign a petition for a specific legislative action or a petition to place a candidate’s name on an official election ballot, if the signing does not obligate the member to engage in partisan political activity and is done as a private citizen and not as a representative of the Armed Forces.
4.1.1.6. Write a letter to the editor of a newspaper expressing the member’s personal views on public issues or political candidates, if such action is not part of an organized letter- writing campaign or a solicitation of votes for or against a political party or partisan political cause or candidate. If the letter identifies the member as on active duty (or if the member is otherwise reasonably identifiable as a member of the Armed Forces), the letter should clearly state that the views expressed are those of the individual only and not those of the Department of Defense (or Department of Homeland Security for members of the Coast Guard).
4.1.1.7. Make monetary contributions to a political organization, party, or committee favoring a particular candidate or slate of candidates, subject to the limitations under section 441a of title 2, United States Code (U.S.C.) (Reference (d)); section 607 of title 18, U.S.C. (Reference (e)); and other applicable law.
4.1.1.8. Display a political bumper sticker on the member’s private vehicle.
4.1.1.9. Attend partisan and nonpartisan political fundraising activities, meetings, rallies, debates, conventions, or activities as a spectator when not in uniform and when no inference or appearance of official sponsorship, approval, or endorsement can reasonably be drawn.
4.1.1.10. Participate fully in the Federal Voting Assistance Program.
4.1.2. A member of the Armed Forces on active duty shall not:
4.1.2.1. Participate in partisan political fundraising activities (except as permitted in subparagraph 4.1.1.7.), rallies, conventions (including making speeches in the course thereof), management of campaigns, or debates, either on one’s own behalf or on that of another, without respect to uniform or inference or appearance of official sponsorship, approval, or endorsement. Participation includes more than mere attendance as a spectator. (See subparagraph 4.1.1.9.)
4.1.2.2. Use official authority or influence to interfere with an election, affect the course or outcome of an election, solicit votes for a particular candidate or issue, or require or solicit political contributions from others.
4.1.2.3. Allow or cause to be published partisan political articles, letters, or endorsements signed or written by the member that solicits votes for or against a partisan political party, candidate, or cause. This is distinguished from a letter to the editor as permitted under the conditions noted in subparagraph 4.1.1.6.
4.1.2.4. Serve in any official capacity with or be listed as a sponsor of a partisan political club.
4.1.2.5. Speak before a partisan political gathering, including any gathering that promotes a partisan political party, candidate, or cause.
4.1.2.6. Participate in any radio, television, or other program or group discussion as an advocate for or against a partisan political party, candidate, or cause.
4.1.2.7. Conduct a political opinion survey under the auspices of a partisan political club or group or distribute partisan political literature.
4.1.2.8. Perform clerical or other duties for a partisan political committee or candidate during a campaign, on an election day, or after an election day during the process of closing out a campaign.
4.1.2.9. Solicit or otherwise engage in fundraising activities in Federal offices or facilities, including military reservations, for any political cause or candidate.
4.1.2.10. March or ride in a partisan political parade.
4.1.2.11. Display a large political sign, banner, or poster (as distinguished from a bumper sticker) on a private vehicle.
4.1.2.12. Display a partisan political sign, poster, banner, or similar device visible to the public at one’s residence on a military installation, even if that residence is part of a privatized housing development.
4.1.2.13. Participate in any organized effort to provide voters with transportation to the polls if the effort is organized by or associated with a partisan political party, cause, or candidate.
4.1.2.14. Sell tickets for or otherwise actively promote partisan political dinners and similar fundraising events.
4.1.2.15. Attend partisan political events as an official representative of the Armed Forces, except as a member of a joint Armed Forces color guard at the opening ceremonies of the national conventions of the Republican, Democratic, or other political parties recognized by the Federal Elections Committee or as otherwise authorized by the Secretary concerned.
4.1.2.16. Make a campaign contribution to, or receive or solicit (on one’s own behalf) a campaign contribution from, any other member of the Armed Forces on active duty. Any contributions not prohibited by this subparagraph remain subject to the gift provisions of sections 2635.301-2635.304 of title 5, Code of Federal Regulations (Reference (f)). See subparagraph 4.1.2.1. for general prohibitions on partisan fundraising activity.
4.1.3. Commissioned officers shall not use contemptuous words as prohibited by section
888 of Reference (b) or participate in activities proscribed by DoD Directives 5200.2 and 1325.6 (References (g) and (h), respectively).
4.1.4. Subject to any other restrictions in law, a member of the Armed Forces not on active duty may take the actions or participate in the activities permitted in subparagraph 4.1.1., and may take the actions and participate in the activities prohibited in subparagraph 4.1.2, provided the member is not in uniform and does not otherwise act in a manner that could reasonably give rise to the inference or appearance of official sponsorship, approval, or endorsement.
4.1.5. Activities not expressly prohibited may be contrary to the spirit and intent of this Directive. Any activity that may be reasonably viewed as directly or indirectly associating the Department of Defense or the Department of Homeland Security (in the case of the Coast Guard) or any component of these Departments with a partisan political activity or is otherwise contrary to the spirit and intention of this Directive shall be avoided.
4.2. Nomination or Candidacy for Civil Office in the U.S. Government or State or Other Non-U.S. Government Offices
4.2.1. Paragraph 4.2. applies to:
4.2.1.1. A civil office in the U.S. Government that:
4.2.1.1.1. Is an elective office;
4.2.1.1.2. Requires an appointment by the President; or
4.2.1.1.3. Is a position on the executive schedule under sections 5312-5317 of title 5, U.S.C. (Reference (i)).
4.2.1.2. A civil office in a State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.2.2. A regular member, or a retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days, may not be a nominee or candidate for the offices described in subparagraph 4.2.1., except when the Secretary concerned grants permission.
4.2.2.1. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.2.2.2. Such permission shall not authorize activity while on active duty that is otherwise prohibited by other provisions of law or this Directive.
4.2.2.3. Such permission is required regardless of whether evidence of nomination or candidacy for civil office is filed prior to commencing active duty service or whether the member is an incumbent.
4.2.2.4. If a member covered by the prohibition in subparagraph 4.2.2. becomes a nominee or candidate for civil office prior to commencing active duty, then the member must request permission in writing and submit the request to the Secretary concerned before entering active duty. The member must understand that if the Secretary concerned does not grant permission, then the member must immediately decline the nomination or withdraw as a candidate.
4.2.3. A retired regular member or Reserve Component member on active duty under a call or order to active duty for 270 days or fewer may remain or become a nominee or candidate for the offices set out in subparagraph 4.2.1. provided there is no interference with the performance of military duty.
4.2.4. Notwithstanding any other provision of this Instruction:
4.2.4.1. Any enlisted member on active duty may seek, hold, and exercise the functions of a nonpartisan civil office as a notary public or member of a school board, neighborhood planning commission, or similar local agency, provided that the office is held in a non-military capacity and there is no interference with the performance of military duties.
4.2.4.2. Any warrant or commissioned officer on active duty may seek, hold, and exercise the functions of a nonpartisan civil office on an independent school board that is located exclusively on a military reservation, provided that the office is held in a non-military capacity and there is no interference with the performance of military duties.
4.3. Additional Limitations on Nomination or Candidacy and Campaigning
4.3.1. Members not on active duty who are nominees or candidates for the offices described in subparagraph 4.2.1. may, in their campaign literature (including Web sites, videos, television, and conventional print advertisements):
4.3.1.1. Use or mention, or permit the use or mention of, their military rank or grade and military service affiliation; BUT they must clearly indicate their retired or reserve status.
4.3.1.2. Include or permit the inclusion of their current or former specific military duty, title, or position, or photographs in military uniform, when displayed with other non- military biographical details. Any such military information must be accompanied by a prominent and clearly displayed disclaimer that neither the military information nor photographs imply endorsement by the Department of Defense or their particular Military Department (or the Department of Homeland Security for members of the Coast Guard); e.g., “John Doe is a member of the Army National Guard. Use of his military rank, job titles, and photographs in uniform does not imply endorsement by the Department of the Army or the Department of Defense.”
4.3.2. Members included in subparagraph 4.3.1. may NOT, in campaign literature (including Web sites, videos, television, and conventional print advertisements):
4.3.2.1. Use or allow the use of photographs, drawings, and other similar media formats of themselves in uniform as the primary graphic representation in any campaign media, such as a billboard, brochure, flyer, Web site, or television commercial. For the purposes of this policy, “photographs” include video images, drawings, and all other similar formats of representational media.
4.3.2.2. Depict or allow the depiction of themselves in uniform in a manner that does not accurately reflect their actual performance of duty. For the purpose of this policy, “photographs” include video images, drawings, and all other similar formats of representational media.
4.3.3. Any member on active duty who is permitted to be, or otherwise not prohibited from being, a nominee or candidate for office as described in subparagraph 4.2.1. may NOT participate in any campaign activities. This includes open and active campaigning and all behind-the-scene activities. For example, such members described in this paragraph who are candidates or nominees may not:
4.3.3.1. Direct, control, manage, or otherwise participate in their campaign, including behind-the-scene activities.
4.3.3.2. Make statements to or answer questions from the news media regarding political issues or regarding government policies or activities unless specifically authorized to do so by an appropriate supervisor or commander.
4.3.3.3. Publish or allow to be published partisan political articles, literature, or documents that they have signed, written, or approved that solicit votes for or against a partisan political party, candidate, issue, or cause.
4.3.4. Those members included in subparagraph 4.3.3. who are nominees or candidates
for office must:
4.3.4.1. Take affirmative, documented efforts to inform those who work for them and
those whom they control that they (the nominees or candidates) may not direct, control, manage, or otherwise participate in campaign activities on their own behalf.
4.3.4.2. Take all reasonable efforts to prevent current or anticipated advertisements that they (the nominees or candidates) control from being publicly displayed or running in any media. This includes Web sites devoted to the nomination or candidacy. Web sites created before entry on active duty may not be updated or revised and may be ordered shut down as the Secretary concerned may direct.
4.3.5. Those who require permission to be nominees or candidates under the provisions of subparagraph 4.2.2., or who are on active duty and are not otherwise prohibited from being a nominee or a candidate under the provisions of subparagraph 4.2.3., must complete the acknowledgment of limitations at Enclosure 4. Those who require permission must complete the acknowledgment before permission may be granted. Those who do not require permission must complete the acknowledgment within 15 days of becoming a nominee or candidate or within 15 days of entry on active duty if already a nominee or candidate. The acknowledgment must be forwarded through the nominee’s or candidate’s immediate supervisor to the first general officer in the chain of command.
4.4. Holding and Exercising the Functions of a U.S. Government Civil Office Attained by Election or Appointment
4.4.1. Paragraph 4.4. applies to a civil office in the U.S. Government that:
4.4.1.1. Is an elective office;
4.4.1.2. Requires an appointment by the President; or
4.4.1.3. Is in a position on the executive schedule under sections 5312-5317 of Reference (i).
4.4.2. A regular member, or retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days, may not hold or exercise the functions of civil office set out in subparagraph 4.4.1. unless otherwise authorized in paragraph 4.4. or by law.
4.4.3. A retired regular member, or a Reserve Component member on active duty under a call or order to active duty for 270 days or fewer, may hold and exercise the functions of a civil office provided there is no interference with the performance of military duty.
4.4.4. A member on active duty may hold and exercise the functions of a civil office under paragraph 4.4. when assigned or detailed (while on active duty) to such office to perform such functions, provided the assignment or detail does not interfere with military duties.
4.4.5. Any member on active duty authorized to hold or exercise or not prohibited from holding or exercising the functions of office under paragraph 4.4. are still subject to the prohibitions of subparagraph 4.1.2.
4.5. Holding and Exercising the Functions of a State or Other Non-U.S. Government Office Attained by Election or Appointment
4.5.1. Paragraph 4.5. applies to a civil office in a State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.5.2. A regular member may not hold or exercise the functions of civil office unless otherwise authorized in paragraph 4.5. or by law.
4.5.3. A retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days may hold─but shall NOT exercise─the functions of a civil office as set out in subparagraph 4.5.1., as long as:
4.5.3.1. The holding of such office is not prohibited under the laws of the State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.5.3.2. The Secretary concerned grants permission after determining that holding such office does not interfere with the performance of military duties. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.5.4. A retired regular or Reserve Component member on active duty under a call or order to active duty for 270 days or fewer may hold and exercise the functions of civil office provided there is no interference with the performance of military duties.
4.5.5. Any member on active duty authorized to hold or exercise, or not prohibited from holding or exercising, the functions of office under paragraph 4.5. are still subject to the prohibitions of subparagraph 4.1.2.
4.6. Actions When Prohibitions Apply
4.6.1. Members affected by the prohibitions against being a nominee or candidate or holding or exercising the functions of a civil office may request retirement (if eligible), discharge, or release from active duty. The Secretary concerned may approve these requests, consistent with the needs of the Service, unless the member is:
4.6.1.1. Obligated to fulfill an active duty service commitment.
4.6.1.2. Serving or has been issued orders to serve afloat or in an area that is overseas, remote, a combat zone, or a hostile pay fire area.
4.6.1.3. Ordered to remain on active duty while the subject of an investigation or inquiry.
4.6.1.4. Accused of an offense under Chapter 47 of Reference (b) or serving a sentence or punishment for such an offense.
4.6.1.5. Pending other administrative separation action or proceedings.
4.6.1.6. Indebted to the United States.
4.6.1.7. In a Reserve Component and serving involuntarily under a call or order to active duty that specifies a period of active duty of more that 270 days during a period of declared war or national emergency; or other period when a unit or individual of the National Guard or other Reserve Component has been involuntarily called or ordered to active duty as authorized by law.
4.6.1.8. In violation of this Directive or an order or regulation prohibiting such member from assuming or exercising the functions of civil office.
4.6.2. Subparagraph 4.6.1. does not preclude a member’s involuntary discharge or release from active duty.
4.6.3. No actions undertaken by a member in carrying out assigned military duties shall be invalidated solely by virtue of such member having been a candidate or nominee for a civil office in violation of the prohibition of paragraph 4.2. or having held or exercised the functions of a civil office in violation of the prohibitions of paragraphs 4.4. or 4.5.
4.6.4. This is a lawful general regulation. Violations of paragraphs 4.1. through 4.5. of this Directive by persons subject to the Uniform Code of Military Justice are punishable under Article 92, “Failure to Obey Order or Regulation,” Chapter 47 of Reference (b).
5. RESPONSIBILITIES
5.1. The Under Secretary of Defense for Personnel and Readiness shall administer this Directive.
5.2. The Secretaries of the Military Departments shall issue appropriate implementing documents for their respective Departments.
6. RELEASABILITY
UNLIMITED. This Directive is approved for public release. Copies may be obtained through the Internet from the DoD Issuances Web Site at http://www.dtic.mil/whs/directives.
7. EFFECTIVE DATE
This Directive is effective immediately.
Enclosures - 4
E1. References, continued
E2. Definitions
E3. Nonpartisan Activities and Other Miscellaneous Guidance
E4. Candidacy or Nomination for Political Office Counseling Statement
10
DoDD 1344.10, February 19, 2008
E1. ENCLOSURE 1
REFERENCES, continued
(e) Section 607 of title 18, United States Code
(f) Sections 2635.301-2635.304 of title 5, Code of Federal Regulations
(g) DoD Directive 5200.2, “DoD Personnel Security Program,” April 9, 1999
(h) DoD Directive 1325.6, “Guidelines for Handling Dissident and Protest Activities Among
Members of the Armed Forces,” October 1, 1996
(i) Sections 5312-5317 of title 5, United States Code
ENCLOSURE 1 11
DoDD 1344.10, February 19, 2008
E2. ENCLOSURE 2
DEFINITIONS
E2.1. Active Duty. Full-time duty in the active military service of the United States regardless of duration or purpose. Active duty includes full-time training duty; annual training duty; and attendance, while in the active military service, at a school designated as a Service school by law or by the Secretary concerned. For purposes of this Directive only, active duty also includes full- time National Guard duty.
E2.2. Call or Order to Active Duty for More Than 270 Days. Any prohibitions or limitations this Directive triggers by a call or order to active duty for more than 270 days begins on the first day of the active duty.
E2.3. Civil Office. A non-military office involving the exercise of the powers or authority of civil government, to include elective and appointed office in the U.S. Government, a U.S. territory or possession, State, county, municipality, or official subdivision thereof. This term does not include a non-elective position as a regular or reserve member of civilian law enforcement, fire, or rescue squad.
E2.4. Nonpartisan Political Activity. Activity supporting or relating to candidates not representing, or issues not specifically identified with, national or State political parties and associated or ancillary organizations or clubs. Issues relating to State constitutional amendments or referendums, approval of municipal ordinances, and others of similar character are not considered under this Instruction as specifically identified with national or State political parties.
E2.5. Partisan Political Activity. Activity supporting or relating to candidates representing, or issues specifically identified with, national or State political parties and associated or ancillary organizations or clubs.
E2.6. Secretary Concerned. See section 101(a)(9) of Reference (b).
ENCLOSURE 2 12
DoDD 1344.10, February 19, 2008
E3. ENCLOSURE 3
NONPARTISAN ACTIVITIES AND OTHER MISCELLANEOUS GUIDANCE
E3.1. LOCAL NONPARTISAN POLITICAL ACTIVITIES
This Directive does not preclude participation in local nonpartisan political campaigns, initiatives, or referendums. A member taking part in local nonpartisan political activity, however, shall not:
E3.1.1. Wear a uniform or use any Government property or facilities while participating.
E3.1.2. Allow such participation to interfere with or prejudice the member’s performance of military duties.
E3.1.3. Engage in conduct that in any way may reasonably imply that the Military Department concerned or any component of such Department has taken an official position on, or is otherwise involved in, the local political campaign or issue.
E3.2. ADDITIONAL REQUIREMENTS
Members of the Armed Forces on active duty engaging in permissible political activities shall:
E3.2.1. Give full time and attention to the performance of military duties during prescribed duty hours.
E3.2.2. Avoid any outside activities that may be prejudicial to the performance of military duties or likely to bring discredit upon the Armed Forces.
E3.2.3. Refrain from participating in any political activity while in military uniform, as proscribed by Reference (c), or using Government facilities or resources for furthering political activities.
ENCLOSURE 3 13
DoDD 1344.10, February 19, 2008
E4. ENCLOSURE 4
CANDIDACY OR NOMINATION FOR POLITICAL OFFICE
ACKNOWLEDGMENT OF LIMITATIONS
[To be prepared by any member on active duty (or who is about to enter active duty) who is:
Alternate A: Granted permission to remain or to become a candidate or nominee for civil office, (subparagraph 4.2.2.); or Alternate B: Not otherwise prohibited from remaining or becoming a candidate or nominee for civil office (subparagraph 4.2.3.). (Prepare as a letter or memorandum, signed by the member and addressed through the member’s immediate supervisor (if known) to the first general or flag officer in the member’s chain of command.)]
(Date)
[Select the appropriate paragraph 1].
Alternate A (over 270 days)
1. I understand that for me to remain or to become a nominee or a candidate for the civil office of [specifically identify the civil office] while on active duty, I must have the permission of the [name of the Secretary concerned] as required by subparagraph 4.2.2. of DoD Directive (DoDD)
1344.10, “Political Activities by Members of the Armed Forces.” I understand that such permission will be granted sparingly because it runs counter to the traditional concept that Service members on active duty should not engage in partisan political activity. Furthermore, I understand that if I am already a candidate or nominee, I must submit my request for permission from [specifically identify the Secretary concerned] before I enter active duty. If I am already on active duty and wish to become a candidate or nominee, I must receive permission first.
Alternate B (270 days or fewer)
1. I understand that I am authorized to remain or to become a candidate or nominee for the civil office of [specifically identify the civil office] while on active duty. This is authorized by subparagraph 4.2.3. of DoD Directive (DoDD) 1344.10, “Political Activities by Members of the Armed Forces,” because I am under a call or order to active duty for 270 days or fewer. I understand that I may remain a candidate or nominee only as long as my candidacy or nomination does not interfere with the performance of my military duty.
2. I have read and fully understand that DoDD 1344.10, paragraphs 4.2. and 4.3. severely limit my ability to participate as a nominee or candidate in the political process. I specifically understand that if I am granted permission to be a candidate or nominee or am not otherwise prohibited from becoming a candidate or nominee, I may not direct, control, endorse, or otherwise participate in campaign activities on my behalf (including behind-the-scene activities).
Furthermore, I must:
a. Take affirmative, documented efforts to inform those who work for me and those whom I control that I may not direct, control, manage, or otherwise participate in campaign activities on my own behalf.
b. Take all reasonable efforts to prevent current or anticipated advertisements that I control from being publicly displayed or running in any media. This includes Web sites devoted to the nomination or candidacy. Such Web sites created before my entry on active duty must
otherwise comply with subparagraph 4.3.1. and may not be updated or revised while I am on active duty. Furthermore, I understand that the Secretary concerned may direct that the Web site be removed.
3. I have read and understand the prohibitions found in DoDD 1344.10, paragraphs 4.2 and 4.3.
4. I understand that DoDI 1334.1, “Wearing of the Uniform,” prohibits the wearing of a military uniform during or in connection with the furtherance of any political or commercial interests not otherwise prohibited or limited above.
5. Finally, I understand that should I be elected to this civil office while on active duty, I will be subject to the policies concerning holding and exercising the function of civil office also found in DoDD 1344.10.
[Include signature block of nominee or candidate.]
ENCLOSURE 4 15
YOU ARE IN VIOLATION OF THIS DOD DIRECTIVE!!
Department of Defense
DIRECTIVE
NUMBER 1344.10
February 19, 2008
USD(P&R)
SUBJECT: Political Activities by Members of the Armed Forces
References: (a) DoD Directive 1344.10, “Political Activities by Members of the Armed
Forces on Active Duty,” August 2, 2004 (hereby canceled)
(b) Sections 973, 888, 101, and Chapter 47 of title 10, United States Code
(c) DoD Instruction 1334.1, “Wearing of the Uniform,” October 26, 2005
(d) Section 441a of title 2, United States Code
(e) through (i), see Enclosure 1
1. PURPOSE
This Directive:
1.1. Reissues Reference (a) to update policies on political activities of members of the Armed Forces.
1.2. Implements section 973(b) through (d) of Reference (b).
2. APPLICABILITY
This Directive applies to the Office of the Secretary of Defense, the Military Departments (including the Coast Guard at all times, including when it is a Service in the Department of Homeland Security by agreement with that Department), the Office of the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as the “DoD Components”). Paragraph 4.3. applies to members of the National Guard, even when in a non-Federal status. Other provisions apply to members of the National Guard while on active duty, which, for purposes of this Directive only, also includes full-time National Guard duty.
DoDD 1344.10, February 19, 2008
3. DEFINITIONS
The terms used in this Directive are defined in Enclosure 2.
4. POLICY
It is DoD policy to encourage members of the Armed Forces (hereafter referred to as “members”) (including members on active duty, members of the Reserve Components not on active duty, members of the National Guard even when in a non-Federal status, and retired members) to carry out the obligations of citizenship. In keeping with the traditional concept that members on active duty should not engage in partisan political activity, and that members not on active duty should avoid inferences that their political activities imply or appear to imply official sponsorship, approval, or endorsement, the following policy shall apply:
4.1. General
4.1.1. A member of the Armed Forces on active duty may:
4.1.1.1. Register, vote, and express a personal opinion on political candidates and issues, but not as a representative of the Armed Forces.
4.1.1.2. Promote and encourage others to exercise their voting franchise, if such promotion does not constitute use of their official authority or influence to interfere with the outcome of any election.
4.1.1.3. Join a partisan or nonpartisan political club and attend its meetings when not in uniform, subject to the restrictions of subparagraph 4.1.2.4. (See DoD Instruction 1334.1 (Reference (c).)
4.1.1.4. Serve as an election official, if such service is not as a representative of a partisan political party, does not interfere with the performance of military duties, is performed when not in uniform, and the Secretary concerned has given prior approval. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.1.1.5. Sign a petition for a specific legislative action or a petition to place a candidate’s name on an official election ballot, if the signing does not obligate the member to engage in partisan political activity and is done as a private citizen and not as a representative of the Armed Forces.
4.1.1.6. Write a letter to the editor of a newspaper expressing the member’s personal views on public issues or political candidates, if such action is not part of an organized letter- writing campaign or a solicitation of votes for or against a political party or partisan political cause or candidate. If the letter identifies the member as on active duty (or if the member is otherwise reasonably identifiable as a member of the Armed Forces), the letter should clearly state that the views expressed are those of the individual only and not those of the Department of Defense (or Department of Homeland Security for members of the Coast Guard).
4.1.1.7. Make monetary contributions to a political organization, party, or committee favoring a particular candidate or slate of candidates, subject to the limitations under section 441a of title 2, United States Code (U.S.C.) (Reference (d)); section 607 of title 18, U.S.C. (Reference (e)); and other applicable law.
4.1.1.8. Display a political bumper sticker on the member’s private vehicle.
4.1.1.9. Attend partisan and nonpartisan political fundraising activities, meetings, rallies, debates, conventions, or activities as a spectator when not in uniform and when no inference or appearance of official sponsorship, approval, or endorsement can reasonably be drawn.
4.1.1.10. Participate fully in the Federal Voting Assistance Program.
4.1.2. A member of the Armed Forces on active duty shall not:
4.1.2.1. Participate in partisan political fundraising activities (except as permitted in subparagraph 4.1.1.7.), rallies, conventions (including making speeches in the course thereof), management of campaigns, or debates, either on one’s own behalf or on that of another, without respect to uniform or inference or appearance of official sponsorship, approval, or endorsement. Participation includes more than mere attendance as a spectator. (See subparagraph 4.1.1.9.)
4.1.2.2. Use official authority or influence to interfere with an election, affect the course or outcome of an election, solicit votes for a particular candidate or issue, or require or solicit political contributions from others.
4.1.2.3. Allow or cause to be published partisan political articles, letters, or endorsements signed or written by the member that solicits votes for or against a partisan political party, candidate, or cause. This is distinguished from a letter to the editor as permitted under the conditions noted in subparagraph 4.1.1.6.
4.1.2.4. Serve in any official capacity with or be listed as a sponsor of a partisan political club.
4.1.2.5. Speak before a partisan political gathering, including any gathering that promotes a partisan political party, candidate, or cause.
4.1.2.6. Participate in any radio, television, or other program or group discussion as an advocate for or against a partisan political party, candidate, or cause.
4.1.2.7. Conduct a political opinion survey under the auspices of a partisan political club or group or distribute partisan political literature.
4.1.2.8. Perform clerical or other duties for a partisan political committee or candidate during a campaign, on an election day, or after an election day during the process of closing out a campaign.
4.1.2.9. Solicit or otherwise engage in fundraising activities in Federal offices or facilities, including military reservations, for any political cause or candidate.
4.1.2.10. March or ride in a partisan political parade.
4.1.2.11. Display a large political sign, banner, or poster (as distinguished from a bumper sticker) on a private vehicle.
4.1.2.12. Display a partisan political sign, poster, banner, or similar device visible to the public at one’s residence on a military installation, even if that residence is part of a privatized housing development.
4.1.2.13. Participate in any organized effort to provide voters with transportation to the polls if the effort is organized by or associated with a partisan political party, cause, or candidate.
4.1.2.14. Sell tickets for or otherwise actively promote partisan political dinners and similar fundraising events.
4.1.2.15. Attend partisan political events as an official representative of the Armed Forces, except as a member of a joint Armed Forces color guard at the opening ceremonies of the national conventions of the Republican, Democratic, or other political parties recognized by the Federal Elections Committee or as otherwise authorized by the Secretary concerned.
4.1.2.16. Make a campaign contribution to, or receive or solicit (on one’s own behalf) a campaign contribution from, any other member of the Armed Forces on active duty. Any contributions not prohibited by this subparagraph remain subject to the gift provisions of sections 2635.301-2635.304 of title 5, Code of Federal Regulations (Reference (f)). See subparagraph 4.1.2.1. for general prohibitions on partisan fundraising activity.
4.1.3. Commissioned officers shall not use contemptuous words as prohibited by section
888 of Reference (b) or participate in activities proscribed by DoD Directives 5200.2 and 1325.6 (References (g) and (h), respectively).
4.1.4. Subject to any other restrictions in law, a member of the Armed Forces not on active duty may take the actions or participate in the activities permitted in subparagraph 4.1.1., and may take the actions and participate in the activities prohibited in subparagraph 4.1.2, provided the member is not in uniform and does not otherwise act in a manner that could reasonably give rise to the inference or appearance of official sponsorship, approval, or endorsement.
4.1.5. Activities not expressly prohibited may be contrary to the spirit and intent of this Directive. Any activity that may be reasonably viewed as directly or indirectly associating the Department of Defense or the Department of Homeland Security (in the case of the Coast Guard) or any component of these Departments with a partisan political activity or is otherwise contrary to the spirit and intention of this Directive shall be avoided.
4.2. Nomination or Candidacy for Civil Office in the U.S. Government or State or Other Non-U.S. Government Offices
4.2.1. Paragraph 4.2. applies to:
4.2.1.1. A civil office in the U.S. Government that:
4.2.1.1.1. Is an elective office;
4.2.1.1.2. Requires an appointment by the President; or
4.2.1.1.3. Is a position on the executive schedule under sections 5312-5317 of title 5, U.S.C. (Reference (i)).
4.2.1.2. A civil office in a State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.2.2. A regular member, or a retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days, may not be a nominee or candidate for the offices described in subparagraph 4.2.1., except when the Secretary concerned grants permission.
4.2.2.1. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.2.2.2. Such permission shall not authorize activity while on active duty that is otherwise prohibited by other provisions of law or this Directive.
4.2.2.3. Such permission is required regardless of whether evidence of nomination or candidacy for civil office is filed prior to commencing active duty service or whether the member is an incumbent.
4.2.2.4. If a member covered by the prohibition in subparagraph 4.2.2. becomes a nominee or candidate for civil office prior to commencing active duty, then the member must request permission in writing and submit the request to the Secretary concerned before entering active duty. The member must understand that if the Secretary concerned does not grant permission, then the member must immediately decline the nomination or withdraw as a candidate.
4.2.3. A retired regular member or Reserve Component member on active duty under a call or order to active duty for 270 days or fewer may remain or become a nominee or candidate for the offices set out in subparagraph 4.2.1. provided there is no interference with the performance of military duty.
4.2.4. Notwithstanding any other provision of this Instruction:
4.2.4.1. Any enlisted member on active duty may seek, hold, and exercise the functions of a nonpartisan civil office as a notary public or member of a school board, neighborhood planning commission, or similar local agency, provided that the office is held in a non-military capacity and there is no interference with the performance of military duties.
4.2.4.2. Any warrant or commissioned officer on active duty may seek, hold, and exercise the functions of a nonpartisan civil office on an independent school board that is located exclusively on a military reservation, provided that the office is held in a non-military capacity and there is no interference with the performance of military duties.
4.3. Additional Limitations on Nomination or Candidacy and Campaigning
4.3.1. Members not on active duty who are nominees or candidates for the offices described in subparagraph 4.2.1. may, in their campaign literature (including Web sites, videos, television, and conventional print advertisements):
4.3.1.1. Use or mention, or permit the use or mention of, their military rank or grade and military service affiliation; BUT they must clearly indicate their retired or reserve status.
4.3.1.2. Include or permit the inclusion of their current or former specific military duty, title, or position, or photographs in military uniform, when displayed with other non- military biographical details. Any such military information must be accompanied by a prominent and clearly displayed disclaimer that neither the military information nor photographs imply endorsement by the Department of Defense or their particular Military Department (or the Department of Homeland Security for members of the Coast Guard); e.g., “John Doe is a member of the Army National Guard. Use of his military rank, job titles, and photographs in uniform does not imply endorsement by the Department of the Army or the Department of Defense.”
4.3.2. Members included in subparagraph 4.3.1. may NOT, in campaign literature (including Web sites, videos, television, and conventional print advertisements):
4.3.2.1. Use or allow the use of photographs, drawings, and other similar media formats of themselves in uniform as the primary graphic representation in any campaign media, such as a billboard, brochure, flyer, Web site, or television commercial. For the purposes of this policy, “photographs” include video images, drawings, and all other similar formats of representational media.
4.3.2.2. Depict or allow the depiction of themselves in uniform in a manner that does not accurately reflect their actual performance of duty. For the purpose of this policy, “photographs” include video images, drawings, and all other similar formats of representational media.
4.3.3. Any member on active duty who is permitted to be, or otherwise not prohibited from being, a nominee or candidate for office as described in subparagraph 4.2.1. may NOT participate in any campaign activities. This includes open and active campaigning and all behind-the-scene activities. For example, such members described in this paragraph who are candidates or nominees may not:
4.3.3.1. Direct, control, manage, or otherwise participate in their campaign, including behind-the-scene activities.
4.3.3.2. Make statements to or answer questions from the news media regarding political issues or regarding government policies or activities unless specifically authorized to do so by an appropriate supervisor or commander.
4.3.3.3. Publish or allow to be published partisan political articles, literature, or documents that they have signed, written, or approved that solicit votes for or against a partisan political party, candidate, issue, or cause.
4.3.4. Those members included in subparagraph 4.3.3. who are nominees or candidates
for office must:
4.3.4.1. Take affirmative, documented efforts to inform those who work for them and
those whom they control that they (the nominees or candidates) may not direct, control, manage, or otherwise participate in campaign activities on their own behalf.
4.3.4.2. Take all reasonable efforts to prevent current or anticipated advertisements that they (the nominees or candidates) control from being publicly displayed or running in any media. This includes Web sites devoted to the nomination or candidacy. Web sites created before entry on active duty may not be updated or revised and may be ordered shut down as the Secretary concerned may direct.
4.3.5. Those who require permission to be nominees or candidates under the provisions of subparagraph 4.2.2., or who are on active duty and are not otherwise prohibited from being a nominee or a candidate under the provisions of subparagraph 4.2.3., must complete the acknowledgment of limitations at Enclosure 4. Those who require permission must complete the acknowledgment before permission may be granted. Those who do not require permission must complete the acknowledgment within 15 days of becoming a nominee or candidate or within 15 days of entry on active duty if already a nominee or candidate. The acknowledgment must be forwarded through the nominee’s or candidate’s immediate supervisor to the first general officer in the chain of command.
4.4. Holding and Exercising the Functions of a U.S. Government Civil Office Attained by Election or Appointment
4.4.1. Paragraph 4.4. applies to a civil office in the U.S. Government that:
4.4.1.1. Is an elective office;
4.4.1.2. Requires an appointment by the President; or
4.4.1.3. Is in a position on the executive schedule under sections 5312-5317 of Reference (i).
4.4.2. A regular member, or retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days, may not hold or exercise the functions of civil office set out in subparagraph 4.4.1. unless otherwise authorized in paragraph 4.4. or by law.
4.4.3. A retired regular member, or a Reserve Component member on active duty under a call or order to active duty for 270 days or fewer, may hold and exercise the functions of a civil office provided there is no interference with the performance of military duty.
4.4.4. A member on active duty may hold and exercise the functions of a civil office under paragraph 4.4. when assigned or detailed (while on active duty) to such office to perform such functions, provided the assignment or detail does not interfere with military duties.
4.4.5. Any member on active duty authorized to hold or exercise or not prohibited from holding or exercising the functions of office under paragraph 4.4. are still subject to the prohibitions of subparagraph 4.1.2.
4.5. Holding and Exercising the Functions of a State or Other Non-U.S. Government Office Attained by Election or Appointment
4.5.1. Paragraph 4.5. applies to a civil office in a State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.5.2. A regular member may not hold or exercise the functions of civil office unless otherwise authorized in paragraph 4.5. or by law.
4.5.3. A retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days may hold─but shall NOT exercise─the functions of a civil office as set out in subparagraph 4.5.1., as long as:
4.5.3.1. The holding of such office is not prohibited under the laws of the State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.5.3.2. The Secretary concerned grants permission after determining that holding such office does not interfere with the performance of military duties. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.5.4. A retired regular or Reserve Component member on active duty under a call or order to active duty for 270 days or fewer may hold and exercise the functions of civil office provided there is no interference with the performance of military duties.
4.5.5. Any member on active duty authorized to hold or exercise, or not prohibited from holding or exercising, the functions of office under paragraph 4.5. are still subject to the prohibitions of subparagraph 4.1.2.
4.6. Actions When Prohibitions Apply
4.6.1. Members affected by the prohibitions against being a nominee or candidate or holding or exercising the functions of a civil office may request retirement (if eligible), discharge, or release from active duty. The Secretary concerned may approve these requests, consistent with the needs of the Service, unless the member is:
4.6.1.1. Obligated to fulfill an active duty service commitment.
4.6.1.2. Serving or has been issued orders to serve afloat or in an area that is overseas, remote, a combat zone, or a hostile pay fire area.
4.6.1.3. Ordered to remain on active duty while the subject of an investigation or inquiry.
4.6.1.4. Accused of an offense under Chapter 47 of Reference (b) or serving a sentence or punishment for such an offense.
4.6.1.5. Pending other administrative separation action or proceedings.
4.6.1.6. Indebted to the United States.
4.6.1.7. In a Reserve Component and serving involuntarily under a call or order to active duty that specifies a period of active duty of more that 270 days during a period of declared war or national emergency; or other period when a unit or individual of the National Guard or other Reserve Component has been involuntarily called or ordered to active duty as authorized by law.
4.6.1.8. In violation of this Directive or an order or regulation prohibiting such member from assuming or exercising the functions of civil office.
4.6.2. Subparagraph 4.6.1. does not preclude a member’s involuntary discharge or release from active duty.
4.6.3. No actions undertaken by a member in carrying out assigned military duties shall be invalidated solely by virtue of such member having been a candidate or nominee for a civil office in violation of the prohibition of paragraph 4.2. or having held or exercised the functions of a civil office in violation of the prohibitions of paragraphs 4.4. or 4.5.
4.6.4. This is a lawful general regulation. Violations of paragraphs 4.1. through 4.5. of this Directive by persons subject to the Uniform Code of Military Justice are punishable under Article 92, “Failure to Obey Order or Regulation,” Chapter 47 of Reference (b).
5. RESPONSIBILITIES
5.1. The Under Secretary of Defense for Personnel and Readiness shall administer this Directive.
5.2. The Secretaries of the Military Departments shall issue appropriate implementing documents for their respective Departments.
6. RELEASABILITY
UNLIMITED. This Directive is approved for public release. Copies may be obtained through the Internet from the DoD Issuances Web Site at http://www.dtic.mil/whs/directives.
7. EFFECTIVE DATE
This Directive is effective immediately.
Enclosures - 4
E1. References, continued
E2. Definitions
E3. Nonpartisan Activities and Other Miscellaneous Guidance
E4. Candidacy or Nomination for Political Office Counseling Statement
10
DoDD 1344.10, February 19, 2008
E1. ENCLOSURE 1
REFERENCES, continued
(e) Section 607 of title 18, United States Code
(f) Sections 2635.301-2635.304 of title 5, Code of Federal Regulations
(g) DoD Directive 5200.2, “DoD Personnel Security Program,” April 9, 1999
(h) DoD Directive 1325.6, “Guidelines for Handling Dissident and Protest Activities Among
Members of the Armed Forces,” October 1, 1996
(i) Sections 5312-5317 of title 5, United States Code
ENCLOSURE 1 11
DoDD 1344.10, February 19, 2008
E2. ENCLOSURE 2
DEFINITIONS
E2.1. Active Duty. Full-time duty in the active military service of the United States regardless of duration or purpose. Active duty includes full-time training duty; annual training duty; and attendance, while in the active military service, at a school designated as a Service school by law or by the Secretary concerned. For purposes of this Directive only, active duty also includes full- time National Guard duty.
E2.2. Call or Order to Active Duty for More Than 270 Days. Any prohibitions or limitations this Directive triggers by a call or order to active duty for more than 270 days begins on the first day of the active duty.
E2.3. Civil Office. A non-military office involving the exercise of the powers or authority of civil government, to include elective and appointed office in the U.S. Government, a U.S. territory or possession, State, county, municipality, or official subdivision thereof. This term does not include a non-elective position as a regular or reserve member of civilian law enforcement, fire, or rescue squad.
E2.4. Nonpartisan Political Activity. Activity supporting or relating to candidates not representing, or issues not specifically identified with, national or State political parties and associated or ancillary organizations or clubs. Issues relating to State constitutional amendments or referendums, approval of municipal ordinances, and others of similar character are not considered under this Instruction as specifically identified with national or State political parties.
E2.5. Partisan Political Activity. Activity supporting or relating to candidates representing, or issues specifically identified with, national or State political parties and associated or ancillary organizations or clubs.
E2.6. Secretary Concerned. See section 101(a)(9) of Reference (b).
ENCLOSURE 2 12
DoDD 1344.10, February 19, 2008
E3. ENCLOSURE 3
NONPARTISAN ACTIVITIES AND OTHER MISCELLANEOUS GUIDANCE
E3.1. LOCAL NONPARTISAN POLITICAL ACTIVITIES
This Directive does not preclude participation in local nonpartisan political campaigns, initiatives, or referendums. A member taking part in local nonpartisan political activity, however, shall not:
E3.1.1. Wear a uniform or use any Government property or facilities while participating.
E3.1.2. Allow such participation to interfere with or prejudice the member’s performance of military duties.
E3.1.3. Engage in conduct that in any way may reasonably imply that the Military Department concerned or any component of such Department has taken an official position on, or is otherwise involved in, the local political campaign or issue.
E3.2. ADDITIONAL REQUIREMENTS
Members of the Armed Forces on active duty engaging in permissible political activities shall:
E3.2.1. Give full time and attention to the performance of military duties during prescribed duty hours.
E3.2.2. Avoid any outside activities that may be prejudicial to the performance of military duties or likely to bring discredit upon the Armed Forces.
E3.2.3. Refrain from participating in any political activity while in military uniform, as proscribed by Reference (c), or using Government facilities or resources for furthering political activities.
ENCLOSURE 3 13
DoDD 1344.10, February 19, 2008
E4. ENCLOSURE 4
CANDIDACY OR NOMINATION FOR POLITICAL OFFICE
ACKNOWLEDGMENT OF LIMITATIONS
[To be prepared by any member on active duty (or who is about to enter active duty) who is:
Alternate A: Granted permission to remain or to become a candidate or nominee for civil office, (subparagraph 4.2.2.); or Alternate B: Not otherwise prohibited from remaining or becoming a candidate or nominee for civil office (subparagraph 4.2.3.). (Prepare as a letter or memorandum, signed by the member and addressed through the member’s immediate supervisor (if known) to the first general or flag officer in the member’s chain of command.)]
(Date)
[Select the appropriate paragraph 1].
Alternate A (over 270 days)
1. I understand that for me to remain or to become a nominee or a candidate for the civil office of [specifically identify the civil office] while on active duty, I must have the permission of the [name of the Secretary concerned] as required by subparagraph 4.2.2. of DoD Directive (DoDD)
1344.10, “Political Activities by Members of the Armed Forces.” I understand that such permission will be granted sparingly because it runs counter to the traditional concept that Service members on active duty should not engage in partisan political activity. Furthermore, I understand that if I am already a candidate or nominee, I must submit my request for permission from [specifically identify the Secretary concerned] before I enter active duty. If I am already on active duty and wish to become a candidate or nominee, I must receive permission first.
Alternate B (270 days or fewer)
1. I understand that I am authorized to remain or to become a candidate or nominee for the civil office of [specifically identify the civil office] while on active duty. This is authorized by subparagraph 4.2.3. of DoD Directive (DoDD) 1344.10, “Political Activities by Members of the Armed Forces,” because I am under a call or order to active duty for 270 days or fewer. I understand that I may remain a candidate or nominee only as long as my candidacy or nomination does not interfere with the performance of my military duty.
2. I have read and fully understand that DoDD 1344.10, paragraphs 4.2. and 4.3. severely limit my ability to participate as a nominee or candidate in the political process. I specifically understand that if I am granted permission to be a candidate or nominee or am not otherwise prohibited from becoming a candidate or nominee, I may not direct, control, endorse, or otherwise participate in campaign activities on my behalf (including behind-the-scene activities).
Furthermore, I must:
a. Take affirmative, documented efforts to inform those who work for me and those whom I control that I may not direct, control, manage, or otherwise participate in campaign activities on my own behalf.
b. Take all reasonable efforts to prevent current or anticipated advertisements that I control from being publicly displayed or running in any media. This includes Web sites devoted to the nomination or candidacy. Such Web sites created before my entry on active duty must
otherwise comply with subparagraph 4.3.1. and may not be updated or revised while I am on active duty. Furthermore, I understand that the Secretary concerned may direct that the Web site be removed.
3. I have read and understand the prohibitions found in DoDD 1344.10, paragraphs 4.2 and 4.3.
4. I understand that DoDI 1334.1, “Wearing of the Uniform,” prohibits the wearing of a military uniform during or in connection with the furtherance of any political or commercial interests not otherwise prohibited or limited above.
5. Finally, I understand that should I be elected to this civil office while on active duty, I will be subject to the policies concerning holding and exercising the function of civil office also found in DoDD 1344.10.
[Include signature block of nominee or candidate.]
ENCLOSURE 4 15
YOU ARE IN VIOLATION OF THIS DOD DIRECTIVE!!
Department of Defense
DIRECTIVE
NUMBER 1344.10
February 19, 2008
USD(P&R)
SUBJECT: Political Activities by Members of the Armed Forces
References: (a) DoD Directive 1344.10, “Political Activities by Members of the Armed
Forces on Active Duty,” August 2, 2004 (hereby canceled)
(b) Sections 973, 888, 101, and Chapter 47 of title 10, United States Code
(c) DoD Instruction 1334.1, “Wearing of the Uniform,” October 26, 2005
(d) Section 441a of title 2, United States Code
(e) through (i), see Enclosure 1
1. PURPOSE
This Directive:
1.1. Reissues Reference (a) to update policies on political activities of members of the Armed Forces.
1.2. Implements section 973(b) through (d) of Reference (b).
2. APPLICABILITY
This Directive applies to the Office of the Secretary of Defense, the Military Departments (including the Coast Guard at all times, including when it is a Service in the Department of Homeland Security by agreement with that Department), the Office of the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as the “DoD Components”). Paragraph 4.3. applies to members of the National Guard, even when in a non-Federal status. Other provisions apply to members of the National Guard while on active duty, which, for purposes of this Directive only, also includes full-time National Guard duty.
DoDD 1344.10, February 19, 2008
3. DEFINITIONS
The terms used in this Directive are defined in Enclosure 2.
4. POLICY
It is DoD policy to encourage members of the Armed Forces (hereafter referred to as “members”) (including members on active duty, members of the Reserve Components not on active duty, members of the National Guard even when in a non-Federal status, and retired members) to carry out the obligations of citizenship. In keeping with the traditional concept that members on active duty should not engage in partisan political activity, and that members not on active duty should avoid inferences that their political activities imply or appear to imply official sponsorship, approval, or endorsement, the following policy shall apply:
4.1. General
4.1.1. A member of the Armed Forces on active duty may:
4.1.1.1. Register, vote, and express a personal opinion on political candidates and issues, but not as a representative of the Armed Forces.
4.1.1.2. Promote and encourage others to exercise their voting franchise, if such promotion does not constitute use of their official authority or influence to interfere with the outcome of any election.
4.1.1.3. Join a partisan or nonpartisan political club and attend its meetings when not in uniform, subject to the restrictions of subparagraph 4.1.2.4. (See DoD Instruction 1334.1 (Reference (c).)
4.1.1.4. Serve as an election official, if such service is not as a representative of a partisan political party, does not interfere with the performance of military duties, is performed when not in uniform, and the Secretary concerned has given prior approval. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.1.1.5. Sign a petition for a specific legislative action or a petition to place a candidate’s name on an official election ballot, if the signing does not obligate the member to engage in partisan political activity and is done as a private citizen and not as a representative of the Armed Forces.
4.1.1.6. Write a letter to the editor of a newspaper expressing the member’s personal views on public issues or political candidates, if such action is not part of an organized letter- writing campaign or a solicitation of votes for or against a political party or partisan political cause or candidate. If the letter identifies the member as on active duty (or if the member is otherwise reasonably identifiable as a member of the Armed Forces), the letter should clearly state that the views expressed are those of the individual only and not those of the Department of Defense (or Department of Homeland Security for members of the Coast Guard).
4.1.1.7. Make monetary contributions to a political organization, party, or committee favoring a particular candidate or slate of candidates, subject to the limitations under section 441a of title 2, United States Code (U.S.C.) (Reference (d)); section 607 of title 18, U.S.C. (Reference (e)); and other applicable law.
4.1.1.8. Display a political bumper sticker on the member’s private vehicle.
4.1.1.9. Attend partisan and nonpartisan political fundraising activities, meetings, rallies, debates, conventions, or activities as a spectator when not in uniform and when no inference or appearance of official sponsorship, approval, or endorsement can reasonably be drawn.
4.1.1.10. Participate fully in the Federal Voting Assistance Program.
4.1.2. A member of the Armed Forces on active duty shall not:
4.1.2.1. Participate in partisan political fundraising activities (except as permitted in subparagraph 4.1.1.7.), rallies, conventions (including making speeches in the course thereof), management of campaigns, or debates, either on one’s own behalf or on that of another, without respect to uniform or inference or appearance of official sponsorship, approval, or endorsement. Participation includes more than mere attendance as a spectator. (See subparagraph 4.1.1.9.)
4.1.2.2. Use official authority or influence to interfere with an election, affect the course or outcome of an election, solicit votes for a particular candidate or issue, or require or solicit political contributions from others.
4.1.2.3. Allow or cause to be published partisan political articles, letters, or endorsements signed or written by the member that solicits votes for or against a partisan political party, candidate, or cause. This is distinguished from a letter to the editor as permitted under the conditions noted in subparagraph 4.1.1.6.
4.1.2.4. Serve in any official capacity with or be listed as a sponsor of a partisan political club.
4.1.2.5. Speak before a partisan political gathering, including any gathering that promotes a partisan political party, candidate, or cause.
4.1.2.6. Participate in any radio, television, or other program or group discussion as an advocate for or against a partisan political party, candidate, or cause.
4.1.2.7. Conduct a political opinion survey under the auspices of a partisan political club or group or distribute partisan political literature.
4.1.2.8. Perform clerical or other duties for a partisan political committee or candidate during a campaign, on an election day, or after an election day during the process of closing out a campaign.
4.1.2.9. Solicit or otherwise engage in fundraising activities in Federal offices or facilities, including military reservations, for any political cause or candidate.
4.1.2.10. March or ride in a partisan political parade.
4.1.2.11. Display a large political sign, banner, or poster (as distinguished from a bumper sticker) on a private vehicle.
4.1.2.12. Display a partisan political sign, poster, banner, or similar device visible to the public at one’s residence on a military installation, even if that residence is part of a privatized housing development.
4.1.2.13. Participate in any organized effort to provide voters with transportation to the polls if the effort is organized by or associated with a partisan political party, cause, or candidate.
4.1.2.14. Sell tickets for or otherwise actively promote partisan political dinners and similar fundraising events.
4.1.2.15. Attend partisan political events as an official representative of the Armed Forces, except as a member of a joint Armed Forces color guard at the opening ceremonies of the national conventions of the Republican, Democratic, or other political parties recognized by the Federal Elections Committee or as otherwise authorized by the Secretary concerned.
4.1.2.16. Make a campaign contribution to, or receive or solicit (on one’s own behalf) a campaign contribution from, any other member of the Armed Forces on active duty. Any contributions not prohibited by this subparagraph remain subject to the gift provisions of sections 2635.301-2635.304 of title 5, Code of Federal Regulations (Reference (f)). See subparagraph 4.1.2.1. for general prohibitions on partisan fundraising activity.
4.1.3. Commissioned officers shall not use contemptuous words as prohibited by section
888 of Reference (b) or participate in activities proscribed by DoD Directives 5200.2 and 1325.6 (References (g) and (h), respectively).
4.1.4. Subject to any other restrictions in law, a member of the Armed Forces not on active duty may take the actions or participate in the activities permitted in subparagraph 4.1.1., and may take the actions and participate in the activities prohibited in subparagraph 4.1.2, provided the member is not in uniform and does not otherwise act in a manner that could reasonably give rise to the inference or appearance of official sponsorship, approval, or endorsement.
4.1.5. Activities not expressly prohibited may be contrary to the spirit and intent of this Directive. Any activity that may be reasonably viewed as directly or indirectly associating the Department of Defense or the Department of Homeland Security (in the case of the Coast Guard) or any component of these Departments with a partisan political activity or is otherwise contrary to the spirit and intention of this Directive shall be avoided.
4.2. Nomination or Candidacy for Civil Office in the U.S. Government or State or Other Non-U.S. Government Offices
4.2.1. Paragraph 4.2. applies to:
4.2.1.1. A civil office in the U.S. Government that:
4.2.1.1.1. Is an elective office;
4.2.1.1.2. Requires an appointment by the President; or
4.2.1.1.3. Is a position on the executive schedule under sections 5312-5317 of title 5, U.S.C. (Reference (i)).
4.2.1.2. A civil office in a State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.2.2. A regular member, or a retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days, may not be a nominee or candidate for the offices described in subparagraph 4.2.1., except when the Secretary concerned grants permission.
4.2.2.1. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.2.2.2. Such permission shall not authorize activity while on active duty that is otherwise prohibited by other provisions of law or this Directive.
4.2.2.3. Such permission is required regardless of whether evidence of nomination or candidacy for civil office is filed prior to commencing active duty service or whether the member is an incumbent.
4.2.2.4. If a member covered by the prohibition in subparagraph 4.2.2. becomes a nominee or candidate for civil office prior to commencing active duty, then the member must request permission in writing and submit the request to the Secretary concerned before entering active duty. The member must understand that if the Secretary concerned does not grant permission, then the member must immediately decline the nomination or withdraw as a candidate.
4.2.3. A retired regular member or Reserve Component member on active duty under a call or order to active duty for 270 days or fewer may remain or become a nominee or candidate for the offices set out in subparagraph 4.2.1. provided there is no interference with the performance of military duty.
4.2.4. Notwithstanding any other provision of this Instruction:
4.2.4.1. Any enlisted member on active duty may seek, hold, and exercise the functions of a nonpartisan civil office as a notary public or member of a school board, neighborhood planning commission, or similar local agency, provided that the office is held in a non-military capacity and there is no interference with the performance of military duties.
4.2.4.2. Any warrant or commissioned officer on active duty may seek, hold, and exercise the functions of a nonpartisan civil office on an independent school board that is located exclusively on a military reservation, provided that the office is held in a non-military capacity and there is no interference with the performance of military duties.
4.3. Additional Limitations on Nomination or Candidacy and Campaigning
4.3.1. Members not on active duty who are nominees or candidates for the offices described in subparagraph 4.2.1. may, in their campaign literature (including Web sites, videos, television, and conventional print advertisements):
4.3.1.1. Use or mention, or permit the use or mention of, their military rank or grade and military service affiliation; BUT they must clearly indicate their retired or reserve status.
4.3.1.2. Include or permit the inclusion of their current or former specific military duty, title, or position, or photographs in military uniform, when displayed with other non- military biographical details. Any such military information must be accompanied by a prominent and clearly displayed disclaimer that neither the military information nor photographs imply endorsement by the Department of Defense or their particular Military Department (or the Department of Homeland Security for members of the Coast Guard); e.g., “John Doe is a member of the Army National Guard. Use of his military rank, job titles, and photographs in uniform does not imply endorsement by the Department of the Army or the Department of Defense.”
4.3.2. Members included in subparagraph 4.3.1. may NOT, in campaign literature (including Web sites, videos, television, and conventional print advertisements):
4.3.2.1. Use or allow the use of photographs, drawings, and other similar media formats of themselves in uniform as the primary graphic representation in any campaign media, such as a billboard, brochure, flyer, Web site, or television commercial. For the purposes of this policy, “photographs” include video images, drawings, and all other similar formats of representational media.
4.3.2.2. Depict or allow the depiction of themselves in uniform in a manner that does not accurately reflect their actual performance of duty. For the purpose of this policy, “photographs” include video images, drawings, and all other similar formats of representational media.
4.3.3. Any member on active duty who is permitted to be, or otherwise not prohibited from being, a nominee or candidate for office as described in subparagraph 4.2.1. may NOT participate in any campaign activities. This includes open and active campaigning and all behind-the-scene activities. For example, such members described in this paragraph who are candidates or nominees may not:
4.3.3.1. Direct, control, manage, or otherwise participate in their campaign, including behind-the-scene activities.
4.3.3.2. Make statements to or answer questions from the news media regarding political issues or regarding government policies or activities unless specifically authorized to do so by an appropriate supervisor or commander.
4.3.3.3. Publish or allow to be published partisan political articles, literature, or documents that they have signed, written, or approved that solicit votes for or against a partisan political party, candidate, issue, or cause.
4.3.4. Those members included in subparagraph 4.3.3. who are nominees or candidates
for office must:
4.3.4.1. Take affirmative, documented efforts to inform those who work for them and
those whom they control that they (the nominees or candidates) may not direct, control, manage, or otherwise participate in campaign activities on their own behalf.
4.3.4.2. Take all reasonable efforts to prevent current or anticipated advertisements that they (the nominees or candidates) control from being publicly displayed or running in any media. This includes Web sites devoted to the nomination or candidacy. Web sites created before entry on active duty may not be updated or revised and may be ordered shut down as the Secretary concerned may direct.
4.3.5. Those who require permission to be nominees or candidates under the provisions of subparagraph 4.2.2., or who are on active duty and are not otherwise prohibited from being a nominee or a candidate under the provisions of subparagraph 4.2.3., must complete the acknowledgment of limitations at Enclosure 4. Those who require permission must complete the acknowledgment before permission may be granted. Those who do not require permission must complete the acknowledgment within 15 days of becoming a nominee or candidate or within 15 days of entry on active duty if already a nominee or candidate. The acknowledgment must be forwarded through the nominee’s or candidate’s immediate supervisor to the first general officer in the chain of command.
4.4. Holding and Exercising the Functions of a U.S. Government Civil Office Attained by Election or Appointment
4.4.1. Paragraph 4.4. applies to a civil office in the U.S. Government that:
4.4.1.1. Is an elective office;
4.4.1.2. Requires an appointment by the President; or
4.4.1.3. Is in a position on the executive schedule under sections 5312-5317 of Reference (i).
4.4.2. A regular member, or retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days, may not hold or exercise the functions of civil office set out in subparagraph 4.4.1. unless otherwise authorized in paragraph 4.4. or by law.
4.4.3. A retired regular member, or a Reserve Component member on active duty under a call or order to active duty for 270 days or fewer, may hold and exercise the functions of a civil office provided there is no interference with the performance of military duty.
4.4.4. A member on active duty may hold and exercise the functions of a civil office under paragraph 4.4. when assigned or detailed (while on active duty) to such office to perform such functions, provided the assignment or detail does not interfere with military duties.
4.4.5. Any member on active duty authorized to hold or exercise or not prohibited from holding or exercising the functions of office under paragraph 4.4. are still subject to the prohibitions of subparagraph 4.1.2.
4.5. Holding and Exercising the Functions of a State or Other Non-U.S. Government Office Attained by Election or Appointment
4.5.1. Paragraph 4.5. applies to a civil office in a State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.5.2. A regular member may not hold or exercise the functions of civil office unless otherwise authorized in paragraph 4.5. or by law.
4.5.3. A retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days may hold─but shall NOT exercise─the functions of a civil office as set out in subparagraph 4.5.1., as long as:
4.5.3.1. The holding of such office is not prohibited under the laws of the State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.5.3.2. The Secretary concerned grants permission after determining that holding such office does not interfere with the performance of military duties. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.5.4. A retired regular or Reserve Component member on active duty under a call or order to active duty for 270 days or fewer may hold and exercise the functions of civil office provided there is no interference with the performance of military duties.
4.5.5. Any member on active duty authorized to hold or exercise, or not prohibited from holding or exercising, the functions of office under paragraph 4.5. are still subject to the prohibitions of subparagraph 4.1.2.
4.6. Actions When Prohibitions Apply
4.6.1. Members affected by the prohibitions against being a nominee or candidate or holding or exercising the functions of a civil office may request retirement (if eligible), discharge, or release from active duty. The Secretary concerned may approve these requests, consistent with the needs of the Service, unless the member is:
4.6.1.1. Obligated to fulfill an active duty service commitment.
4.6.1.2. Serving or has been issued orders to serve afloat or in an area that is overseas, remote, a combat zone, or a hostile pay fire area.
4.6.1.3. Ordered to remain on active duty while the subject of an investigation or inquiry.
4.6.1.4. Accused of an offense under Chapter 47 of Reference (b) or serving a sentence or punishment for such an offense.
4.6.1.5. Pending other administrative separation action or proceedings.
4.6.1.6. Indebted to the United States.
4.6.1.7. In a Reserve Component and serving involuntarily under a call or order to active duty that specifies a period of active duty of more that 270 days during a period of declared war or national emergency; or other period when a unit or individual of the National Guard or other Reserve Component has been involuntarily called or ordered to active duty as authorized by law.
4.6.1.8. In violation of this Directive or an order or regulation prohibiting such member from assuming or exercising the functions of civil office.
4.6.2. Subparagraph 4.6.1. does not preclude a member’s involuntary discharge or release from active duty.
4.6.3. No actions undertaken by a member in carrying out assigned military duties shall be invalidated solely by virtue of such member having been a candidate or nominee for a civil office in violation of the prohibition of paragraph 4.2. or having held or exercised the functions of a civil office in violation of the prohibitions of paragraphs 4.4. or 4.5.
4.6.4. This is a lawful general regulation. Violations of paragraphs 4.1. through 4.5. of this Directive by persons subject to the Uniform Code of Military Justice are punishable under Article 92, “Failure to Obey Order or Regulation,” Chapter 47 of Reference (b).
5. RESPONSIBILITIES
5.1. The Under Secretary of Defense for Personnel and Readiness shall administer this Directive.
5.2. The Secretaries of the Military Departments shall issue appropriate implementing documents for their respective Departments.
6. RELEASABILITY
UNLIMITED. This Directive is approved for public release. Copies may be obtained through the Internet from the DoD Issuances Web Site at http://www.dtic.mil/whs/directives.
7. EFFECTIVE DATE
This Directive is effective immediately.
Enclosures - 4
E1. References, continued
E2. Definitions
E3. Nonpartisan Activities and Other Miscellaneous Guidance
E4. Candidacy or Nomination for Political Office Counseling Statement
10
DoDD 1344.10, February 19, 2008
E1. ENCLOSURE 1
REFERENCES, continued
(e) Section 607 of title 18, United States Code
(f) Sections 2635.301-2635.304 of title 5, Code of Federal Regulations
(g) DoD Directive 5200.2, “DoD Personnel Security Program,” April 9, 1999
(h) DoD Directive 1325.6, “Guidelines for Handling Dissident and Protest Activities Among
Members of the Armed Forces,” October 1, 1996
(i) Sections 5312-5317 of title 5, United States Code
ENCLOSURE 1 11
DoDD 1344.10, February 19, 2008
E2. ENCLOSURE 2
DEFINITIONS
E2.1. Active Duty. Full-time duty in the active military service of the United States regardless of duration or purpose. Active duty includes full-time training duty; annual training duty; and attendance, while in the active military service, at a school designated as a Service school by law or by the Secretary concerned. For purposes of this Directive only, active duty also includes full- time National Guard duty.
E2.2. Call or Order to Active Duty for More Than 270 Days. Any prohibitions or limitations this Directive triggers by a call or order to active duty for more than 270 days begins on the first day of the active duty.
E2.3. Civil Office. A non-military office involving the exercise of the powers or authority of civil government, to include elective and appointed office in the U.S. Government, a U.S. territory or possession, State, county, municipality, or official subdivision thereof. This term does not include a non-elective position as a regular or reserve member of civilian law enforcement, fire, or rescue squad.
E2.4. Nonpartisan Political Activity. Activity supporting or relating to candidates not representing, or issues not specifically identified with, national or State political parties and associated or ancillary organizations or clubs. Issues relating to State constitutional amendments or referendums, approval of municipal ordinances, and others of similar character are not considered under this Instruction as specifically identified with national or State political parties.
E2.5. Partisan Political Activity. Activity supporting or relating to candidates representing, or issues specifically identified with, national or State political parties and associated or ancillary organizations or clubs.
E2.6. Secretary Concerned. See section 101(a)(9) of Reference (b).
ENCLOSURE 2 12
DoDD 1344.10, February 19, 2008
E3. ENCLOSURE 3
NONPARTISAN ACTIVITIES AND OTHER MISCELLANEOUS GUIDANCE
E3.1. LOCAL NONPARTISAN POLITICAL ACTIVITIES
This Directive does not preclude participation in local nonpartisan political campaigns, initiatives, or referendums. A member taking part in local nonpartisan political activity, however, shall not:
E3.1.1. Wear a uniform or use any Government property or facilities while participating.
E3.1.2. Allow such participation to interfere with or prejudice the member’s performance of military duties.
E3.1.3. Engage in conduct that in any way may reasonably imply that the Military Department concerned or any component of such Department has taken an official position on, or is otherwise involved in, the local political campaign or issue.
E3.2. ADDITIONAL REQUIREMENTS
Members of the Armed Forces on active duty engaging in permissible political activities shall:
E3.2.1. Give full time and attention to the performance of military duties during prescribed duty hours.
E3.2.2. Avoid any outside activities that may be prejudicial to the performance of military duties or likely to bring discredit upon the Armed Forces.
E3.2.3. Refrain from participating in any political activity while in military uniform, as proscribed by Reference (c), or using Government facilities or resources for furthering political activities.
ENCLOSURE 3 13
DoDD 1344.10, February 19, 2008
E4. ENCLOSURE 4
CANDIDACY OR NOMINATION FOR POLITICAL OFFICE
ACKNOWLEDGMENT OF LIMITATIONS
[To be prepared by any member on active duty (or who is about to enter active duty) who is:
Alternate A: Granted permission to remain or to become a candidate or nominee for civil office, (subparagraph 4.2.2.); or Alternate B: Not otherwise prohibited from remaining or becoming a candidate or nominee for civil office (subparagraph 4.2.3.). (Prepare as a letter or memorandum, signed by the member and addressed through the member’s immediate supervisor (if known) to the first general or flag officer in the member’s chain of command.)]
(Date)
[Select the appropriate paragraph 1].
Alternate A (over 270 days)
1. I understand that for me to remain or to become a nominee or a candidate for the civil office of [specifically identify the civil office] while on active duty, I must have the permission of the [name of the Secretary concerned] as required by subparagraph 4.2.2. of DoD Directive (DoDD)
1344.10, “Political Activities by Members of the Armed Forces.” I understand that such permission will be granted sparingly because it runs counter to the traditional concept that Service members on active duty should not engage in partisan political activity. Furthermore, I understand that if I am already a candidate or nominee, I must submit my request for permission from [specifically identify the Secretary concerned] before I enter active duty. If I am already on active duty and wish to become a candidate or nominee, I must receive permission first.
Alternate B (270 days or fewer)
1. I understand that I am authorized to remain or to become a candidate or nominee for the civil office of [specifically identify the civil office] while on active duty. This is authorized by subparagraph 4.2.3. of DoD Directive (DoDD) 1344.10, “Political Activities by Members of the Armed Forces,” because I am under a call or order to active duty for 270 days or fewer. I understand that I may remain a candidate or nominee only as long as my candidacy or nomination does not interfere with the performance of my military duty.
2. I have read and fully understand that DoDD 1344.10, paragraphs 4.2. and 4.3. severely limit my ability to participate as a nominee or candidate in the political process. I specifically understand that if I am granted permission to be a candidate or nominee or am not otherwise prohibited from becoming a candidate or nominee, I may not direct, control, endorse, or otherwise participate in campaign activities on my behalf (including behind-the-scene activities).
Furthermore, I must:
a. Take affirmative, documented efforts to inform those who work for me and those whom I control that I may not direct, control, manage, or otherwise participate in campaign activities on my own behalf.
b. Take all reasonable efforts to prevent current or anticipated advertisements that I control from being publicly displayed or running in any media. This includes Web sites devoted to the nomination or candidacy. Such Web sites created before my entry on active duty must
otherwise comply with subparagraph 4.3.1. and may not be updated or revised while I am on active duty. Furthermore, I understand that the Secretary concerned may direct that the Web site be removed.
3. I have read and understand the prohibitions found in DoDD 1344.10, paragraphs 4.2 and 4.3.
4. I understand that DoDI 1334.1, “Wearing of the Uniform,” prohibits the wearing of a military uniform during or in connection with the furtherance of any political or commercial interests not otherwise prohibited or limited above.
5. Finally, I understand that should I be elected to this civil office while on active duty, I will be subject to the policies concerning holding and exercising the function of civil office also found in DoDD 1344.10.
[Include signature block of nominee or candidate.]
ENCLOSURE 4 15
YOU ARE IN VIOLATION OF THIS DOD DIRECTIVE!!
Department of Defense
DIRECTIVE
NUMBER 1344.10
February 19, 2008
USD(P&R)
SUBJECT: Political Activities by Members of the Armed Forces
References: (a) DoD Directive 1344.10, “Political Activities by Members of the Armed
Forces on Active Duty,” August 2, 2004 (hereby canceled)
(b) Sections 973, 888, 101, and Chapter 47 of title 10, United States Code
(c) DoD Instruction 1334.1, “Wearing of the Uniform,” October 26, 2005
(d) Section 441a of title 2, United States Code
(e) through (i), see Enclosure 1
1. PURPOSE
This Directive:
1.1. Reissues Reference (a) to update policies on political activities of members of the Armed Forces.
1.2. Implements section 973(b) through (d) of Reference (b).
2. APPLICABILITY
This Directive applies to the Office of the Secretary of Defense, the Military Departments (including the Coast Guard at all times, including when it is a Service in the Department of Homeland Security by agreement with that Department), the Office of the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as the “DoD Components”). Paragraph 4.3. applies to members of the National Guard, even when in a non-Federal status. Other provisions apply to members of the National Guard while on active duty, which, for purposes of this Directive only, also includes full-time National Guard duty.
DoDD 1344.10, February 19, 2008
3. DEFINITIONS
The terms used in this Directive are defined in Enclosure 2.
4. POLICY
It is DoD policy to encourage members of the Armed Forces (hereafter referred to as “members”) (including members on active duty, members of the Reserve Components not on active duty, members of the National Guard even when in a non-Federal status, and retired members) to carry out the obligations of citizenship. In keeping with the traditional concept that members on active duty should not engage in partisan political activity, and that members not on active duty should avoid inferences that their political activities imply or appear to imply official sponsorship, approval, or endorsement, the following policy shall apply:
4.1. General
4.1.1. A member of the Armed Forces on active duty may:
4.1.1.1. Register, vote, and express a personal opinion on political candidates and issues, but not as a representative of the Armed Forces.
4.1.1.2. Promote and encourage others to exercise their voting franchise, if such promotion does not constitute use of their official authority or influence to interfere with the outcome of any election.
4.1.1.3. Join a partisan or nonpartisan political club and attend its meetings when not in uniform, subject to the restrictions of subparagraph 4.1.2.4. (See DoD Instruction 1334.1 (Reference (c).)
4.1.1.4. Serve as an election official, if such service is not as a representative of a partisan political party, does not interfere with the performance of military duties, is performed when not in uniform, and the Secretary concerned has given prior approval. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.1.1.5. Sign a petition for a specific legislative action or a petition to place a candidate’s name on an official election ballot, if the signing does not obligate the member to engage in partisan political activity and is done as a private citizen and not as a representative of the Armed Forces.
4.1.1.6. Write a letter to the editor of a newspaper expressing the member’s personal views on public issues or political candidates, if such action is not part of an organized letter- writing campaign or a solicitation of votes for or against a political party or partisan political cause or candidate. If the letter identifies the member as on active duty (or if the member is otherwise reasonably identifiable as a member of the Armed Forces), the letter should clearly state that the views expressed are those of the individual only and not those of the Department of Defense (or Department of Homeland Security for members of the Coast Guard).
4.1.1.7. Make monetary contributions to a political organization, party, or committee favoring a particular candidate or slate of candidates, subject to the limitations under section 441a of title 2, United States Code (U.S.C.) (Reference (d)); section 607 of title 18, U.S.C. (Reference (e)); and other applicable law.
4.1.1.8. Display a political bumper sticker on the member’s private vehicle.
4.1.1.9. Attend partisan and nonpartisan political fundraising activities, meetings, rallies, debates, conventions, or activities as a spectator when not in uniform and when no inference or appearance of official sponsorship, approval, or endorsement can reasonably be drawn.
4.1.1.10. Participate fully in the Federal Voting Assistance Program.
4.1.2. A member of the Armed Forces on active duty shall not:
4.1.2.1. Participate in partisan political fundraising activities (except as permitted in subparagraph 4.1.1.7.), rallies, conventions (including making speeches in the course thereof), management of campaigns, or debates, either on one’s own behalf or on that of another, without respect to uniform or inference or appearance of official sponsorship, approval, or endorsement. Participation includes more than mere attendance as a spectator. (See subparagraph 4.1.1.9.)
4.1.2.2. Use official authority or influence to interfere with an election, affect the course or outcome of an election, solicit votes for a particular candidate or issue, or require or solicit political contributions from others.
4.1.2.3. Allow or cause to be published partisan political articles, letters, or endorsements signed or written by the member that solicits votes for or against a partisan political party, candidate, or cause. This is distinguished from a letter to the editor as permitted under the conditions noted in subparagraph 4.1.1.6.
4.1.2.4. Serve in any official capacity with or be listed as a sponsor of a partisan political club.
4.1.2.5. Speak before a partisan political gathering, including any gathering that promotes a partisan political party, candidate, or cause.
4.1.2.6. Participate in any radio, television, or other program or group discussion as an advocate for or against a partisan political party, candidate, or cause.
4.1.2.7. Conduct a political opinion survey under the auspices of a partisan political club or group or distribute partisan political literature.
4.1.2.8. Perform clerical or other duties for a partisan political committee or candidate during a campaign, on an election day, or after an election day during the process of closing out a campaign.
4.1.2.9. Solicit or otherwise engage in fundraising activities in Federal offices or facilities, including military reservations, for any political cause or candidate.
4.1.2.10. March or ride in a partisan political parade.
4.1.2.11. Display a large political sign, banner, or poster (as distinguished from a bumper sticker) on a private vehicle.
4.1.2.12. Display a partisan political sign, poster, banner, or similar device visible to the public at one’s residence on a military installation, even if that residence is part of a privatized housing development.
4.1.2.13. Participate in any organized effort to provide voters with transportation to the polls if the effort is organized by or associated with a partisan political party, cause, or candidate.
4.1.2.14. Sell tickets for or otherwise actively promote partisan political dinners and similar fundraising events.
4.1.2.15. Attend partisan political events as an official representative of the Armed Forces, except as a member of a joint Armed Forces color guard at the opening ceremonies of the national conventions of the Republican, Democratic, or other political parties recognized by the Federal Elections Committee or as otherwise authorized by the Secretary concerned.
4.1.2.16. Make a campaign contribution to, or receive or solicit (on one’s own behalf) a campaign contribution from, any other member of the Armed Forces on active duty. Any contributions not prohibited by this subparagraph remain subject to the gift provisions of sections 2635.301-2635.304 of title 5, Code of Federal Regulations (Reference (f)). See subparagraph 4.1.2.1. for general prohibitions on partisan fundraising activity.
4.1.3. Commissioned officers shall not use contemptuous words as prohibited by section
888 of Reference (b) or participate in activities proscribed by DoD Directives 5200.2 and 1325.6 (References (g) and (h), respectively).
4.1.4. Subject to any other restrictions in law, a member of the Armed Forces not on active duty may take the actions or participate in the activities permitted in subparagraph 4.1.1., and may take the actions and participate in the activities prohibited in subparagraph 4.1.2, provided the member is not in uniform and does not otherwise act in a manner that could reasonably give rise to the inference or appearance of official sponsorship, approval, or endorsement.
4.1.5. Activities not expressly prohibited may be contrary to the spirit and intent of this Directive. Any activity that may be reasonably viewed as directly or indirectly associating the Department of Defense or the Department of Homeland Security (in the case of the Coast Guard) or any component of these Departments with a partisan political activity or is otherwise contrary to the spirit and intention of this Directive shall be avoided.
4.2. Nomination or Candidacy for Civil Office in the U.S. Government or State or Other Non-U.S. Government Offices
4.2.1. Paragraph 4.2. applies to:
4.2.1.1. A civil office in the U.S. Government that:
4.2.1.1.1. Is an elective office;
4.2.1.1.2. Requires an appointment by the President; or
4.2.1.1.3. Is a position on the executive schedule under sections 5312-5317 of title 5, U.S.C. (Reference (i)).
4.2.1.2. A civil office in a State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.2.2. A regular member, or a retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days, may not be a nominee or candidate for the offices described in subparagraph 4.2.1., except when the Secretary concerned grants permission.
4.2.2.1. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.2.2.2. Such permission shall not authorize activity while on active duty that is otherwise prohibited by other provisions of law or this Directive.
4.2.2.3. Such permission is required regardless of whether evidence of nomination or candidacy for civil office is filed prior to commencing active duty service or whether the member is an incumbent.
4.2.2.4. If a member covered by the prohibition in subparagraph 4.2.2. becomes a nominee or candidate for civil office prior to commencing active duty, then the member must request permission in writing and submit the request to the Secretary concerned before entering active duty. The member must understand that if the Secretary concerned does not grant permission, then the member must immediately decline the nomination or withdraw as a candidate.
4.2.3. A retired regular member or Reserve Component member on active duty under a call or order to active duty for 270 days or fewer may remain or become a nominee or candidate for the offices set out in subparagraph 4.2.1. provided there is no interference with the performance of military duty.
4.2.4. Notwithstanding any other provision of this Instruction:
4.2.4.1. Any enlisted member on active duty may seek, hold, and exercise the functions of a nonpartisan civil office as a notary public or member of a school board, neighborhood planning commission, or similar local agency, provided that the office is held in a non-military capacity and there is no interference with the performance of military duties.
4.2.4.2. Any warrant or commissioned officer on active duty may seek, hold, and exercise the functions of a nonpartisan civil office on an independent school board that is located exclusively on a military reservation, provided that the office is held in a non-military capacity and there is no interference with the performance of military duties.
4.3. Additional Limitations on Nomination or Candidacy and Campaigning
4.3.1. Members not on active duty who are nominees or candidates for the offices described in subparagraph 4.2.1. may, in their campaign literature (including Web sites, videos, television, and conventional print advertisements):
4.3.1.1. Use or mention, or permit the use or mention of, their military rank or grade and military service affiliation; BUT they must clearly indicate their retired or reserve status.
4.3.1.2. Include or permit the inclusion of their current or former specific military duty, title, or position, or photographs in military uniform, when displayed with other non- military biographical details. Any such military information must be accompanied by a prominent and clearly displayed disclaimer that neither the military information nor photographs imply endorsement by the Department of Defense or their particular Military Department (or the Department of Homeland Security for members of the Coast Guard); e.g., “John Doe is a member of the Army National Guard. Use of his military rank, job titles, and photographs in uniform does not imply endorsement by the Department of the Army or the Department of Defense.”
4.3.2. Members included in subparagraph 4.3.1. may NOT, in campaign literature (including Web sites, videos, television, and conventional print advertisements):
4.3.2.1. Use or allow the use of photographs, drawings, and other similar media formats of themselves in uniform as the primary graphic representation in any campaign media, such as a billboard, brochure, flyer, Web site, or television commercial. For the purposes of this policy, “photographs” include video images, drawings, and all other similar formats of representational media.
4.3.2.2. Depict or allow the depiction of themselves in uniform in a manner that does not accurately reflect their actual performance of duty. For the purpose of this policy, “photographs” include video images, drawings, and all other similar formats of representational media.
4.3.3. Any member on active duty who is permitted to be, or otherwise not prohibited from being, a nominee or candidate for office as described in subparagraph 4.2.1. may NOT participate in any campaign activities. This includes open and active campaigning and all behind-the-scene activities. For example, such members described in this paragraph who are candidates or nominees may not:
4.3.3.1. Direct, control, manage, or otherwise participate in their campaign, including behind-the-scene activities.
4.3.3.2. Make statements to or answer questions from the news media regarding political issues or regarding government policies or activities unless specifically authorized to do so by an appropriate supervisor or commander.
4.3.3.3. Publish or allow to be published partisan political articles, literature, or documents that they have signed, written, or approved that solicit votes for or against a partisan political party, candidate, issue, or cause.
4.3.4. Those members included in subparagraph 4.3.3. who are nominees or candidates
for office must:
4.3.4.1. Take affirmative, documented efforts to inform those who work for them and
those whom they control that they (the nominees or candidates) may not direct, control, manage, or otherwise participate in campaign activities on their own behalf.
4.3.4.2. Take all reasonable efforts to prevent current or anticipated advertisements that they (the nominees or candidates) control from being publicly displayed or running in any media. This includes Web sites devoted to the nomination or candidacy. Web sites created before entry on active duty may not be updated or revised and may be ordered shut down as the Secretary concerned may direct.
4.3.5. Those who require permission to be nominees or candidates under the provisions of subparagraph 4.2.2., or who are on active duty and are not otherwise prohibited from being a nominee or a candidate under the provisions of subparagraph 4.2.3., must complete the acknowledgment of limitations at Enclosure 4. Those who require permission must complete the acknowledgment before permission may be granted. Those who do not require permission must complete the acknowledgment within 15 days of becoming a nominee or candidate or within 15 days of entry on active duty if already a nominee or candidate. The acknowledgment must be forwarded through the nominee’s or candidate’s immediate supervisor to the first general officer in the chain of command.
4.4. Holding and Exercising the Functions of a U.S. Government Civil Office Attained by Election or Appointment
4.4.1. Paragraph 4.4. applies to a civil office in the U.S. Government that:
4.4.1.1. Is an elective office;
4.4.1.2. Requires an appointment by the President; or
4.4.1.3. Is in a position on the executive schedule under sections 5312-5317 of Reference (i).
4.4.2. A regular member, or retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days, may not hold or exercise the functions of civil office set out in subparagraph 4.4.1. unless otherwise authorized in paragraph 4.4. or by law.
4.4.3. A retired regular member, or a Reserve Component member on active duty under a call or order to active duty for 270 days or fewer, may hold and exercise the functions of a civil office provided there is no interference with the performance of military duty.
4.4.4. A member on active duty may hold and exercise the functions of a civil office under paragraph 4.4. when assigned or detailed (while on active duty) to such office to perform such functions, provided the assignment or detail does not interfere with military duties.
4.4.5. Any member on active duty authorized to hold or exercise or not prohibited from holding or exercising the functions of office under paragraph 4.4. are still subject to the prohibitions of subparagraph 4.1.2.
4.5. Holding and Exercising the Functions of a State or Other Non-U.S. Government Office Attained by Election or Appointment
4.5.1. Paragraph 4.5. applies to a civil office in a State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.5.2. A regular member may not hold or exercise the functions of civil office unless otherwise authorized in paragraph 4.5. or by law.
4.5.3. A retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days may hold─but shall NOT exercise─the functions of a civil office as set out in subparagraph 4.5.1., as long as:
4.5.3.1. The holding of such office is not prohibited under the laws of the State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.5.3.2. The Secretary concerned grants permission after determining that holding such office does not interfere with the performance of military duties. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.5.4. A retired regular or Reserve Component member on active duty under a call or order to active duty for 270 days or fewer may hold and exercise the functions of civil office provided there is no interference with the performance of military duties.
4.5.5. Any member on active duty authorized to hold or exercise, or not prohibited from holding or exercising, the functions of office under paragraph 4.5. are still subject to the prohibitions of subparagraph 4.1.2.
4.6. Actions When Prohibitions Apply
4.6.1. Members affected by the prohibitions against being a nominee or candidate or holding or exercising the functions of a civil office may request retirement (if eligible), discharge, or release from active duty. The Secretary concerned may approve these requests, consistent with the needs of the Service, unless the member is:
4.6.1.1. Obligated to fulfill an active duty service commitment.
4.6.1.2. Serving or has been issued orders to serve afloat or in an area that is overseas, remote, a combat zone, or a hostile pay fire area.
4.6.1.3. Ordered to remain on active duty while the subject of an investigation or inquiry.
4.6.1.4. Accused of an offense under Chapter 47 of Reference (b) or serving a sentence or punishment for such an offense.
4.6.1.5. Pending other administrative separation action or proceedings.
4.6.1.6. Indebted to the United States.
4.6.1.7. In a Reserve Component and serving involuntarily under a call or order to active duty that specifies a period of active duty of more that 270 days during a period of declared war or national emergency; or other period when a unit or individual of the National Guard or other Reserve Component has been involuntarily called or ordered to active duty as authorized by law.
4.6.1.8. In violation of this Directive or an order or regulation prohibiting such member from assuming or exercising the functions of civil office.
4.6.2. Subparagraph 4.6.1. does not preclude a member’s involuntary discharge or release from active duty.
4.6.3. No actions undertaken by a member in carrying out assigned military duties shall be invalidated solely by virtue of such member having been a candidate or nominee for a civil office in violation of the prohibition of paragraph 4.2. or having held or exercised the functions of a civil office in violation of the prohibitions of paragraphs 4.4. or 4.5.
4.6.4. This is a lawful general regulation. Violations of paragraphs 4.1. through 4.5. of this Directive by persons subject to the Uniform Code of Military Justice are punishable under Article 92, “Failure to Obey Order or Regulation,” Chapter 47 of Reference (b).
5. RESPONSIBILITIES
5.1. The Under Secretary of Defense for Personnel and Readiness shall administer this Directive.
5.2. The Secretaries of the Military Departments shall issue appropriate implementing documents for their respective Departments.
6. RELEASABILITY
UNLIMITED. This Directive is approved for public release. Copies may be obtained through the Internet from the DoD Issuances Web Site at http://www.dtic.mil/whs/directives.
7. EFFECTIVE DATE
This Directive is effective immediately.
Enclosures - 4
E1. References, continued
E2. Definitions
E3. Nonpartisan Activities and Other Miscellaneous Guidance
E4. Candidacy or Nomination for Political Office Counseling Statement
10
DoDD 1344.10, February 19, 2008
E1. ENCLOSURE 1
REFERENCES, continued
(e) Section 607 of title 18, United States Code
(f) Sections 2635.301-2635.304 of title 5, Code of Federal Regulations
(g) DoD Directive 5200.2, “DoD Personnel Security Program,” April 9, 1999
(h) DoD Directive 1325.6, “Guidelines for Handling Dissident and Protest Activities Among
Members of the Armed Forces,” October 1, 1996
(i) Sections 5312-5317 of title 5, United States Code
ENCLOSURE 1 11
DoDD 1344.10, February 19, 2008
E2. ENCLOSURE 2
DEFINITIONS
E2.1. Active Duty. Full-time duty in the active military service of the United States regardless of duration or purpose. Active duty includes full-time training duty; annual training duty; and attendance, while in the active military service, at a school designated as a Service school by law or by the Secretary concerned. For purposes of this Directive only, active duty also includes full- time National Guard duty.
E2.2. Call or Order to Active Duty for More Than 270 Days. Any prohibitions or limitations this Directive triggers by a call or order to active duty for more than 270 days begins on the first day of the active duty.
E2.3. Civil Office. A non-military office involving the exercise of the powers or authority of civil government, to include elective and appointed office in the U.S. Government, a U.S. territory or possession, State, county, municipality, or official subdivision thereof. This term does not include a non-elective position as a regular or reserve member of civilian law enforcement, fire, or rescue squad.
E2.4. Nonpartisan Political Activity. Activity supporting or relating to candidates not representing, or issues not specifically identified with, national or State political parties and associated or ancillary organizations or clubs. Issues relating to State constitutional amendments or referendums, approval of municipal ordinances, and others of similar character are not considered under this Instruction as specifically identified with national or State political parties.
E2.5. Partisan Political Activity. Activity supporting or relating to candidates representing, or issues specifically identified with, national or State political parties and associated or ancillary organizations or clubs.
E2.6. Secretary Concerned. See section 101(a)(9) of Reference (b).
ENCLOSURE 2 12
DoDD 1344.10, February 19, 2008
E3. ENCLOSURE 3
NONPARTISAN ACTIVITIES AND OTHER MISCELLANEOUS GUIDANCE
E3.1. LOCAL NONPARTISAN POLITICAL ACTIVITIES
This Directive does not preclude participation in local nonpartisan political campaigns, initiatives, or referendums. A member taking part in local nonpartisan political activity, however, shall not:
E3.1.1. Wear a uniform or use any Government property or facilities while participating.
E3.1.2. Allow such participation to interfere with or prejudice the member’s performance of military duties.
E3.1.3. Engage in conduct that in any way may reasonably imply that the Military Department concerned or any component of such Department has taken an official position on, or is otherwise involved in, the local political campaign or issue.
E3.2. ADDITIONAL REQUIREMENTS
Members of the Armed Forces on active duty engaging in permissible political activities shall:
E3.2.1. Give full time and attention to the performance of military duties during prescribed duty hours.
E3.2.2. Avoid any outside activities that may be prejudicial to the performance of military duties or likely to bring discredit upon the Armed Forces.
E3.2.3. Refrain from participating in any political activity while in military uniform, as proscribed by Reference (c), or using Government facilities or resources for furthering political activities.
ENCLOSURE 3 13
DoDD 1344.10, February 19, 2008
E4. ENCLOSURE 4
CANDIDACY OR NOMINATION FOR POLITICAL OFFICE
ACKNOWLEDGMENT OF LIMITATIONS
[To be prepared by any member on active duty (or who is about to enter active duty) who is:
Alternate A: Granted permission to remain or to become a candidate or nominee for civil office, (subparagraph 4.2.2.); or Alternate B: Not otherwise prohibited from remaining or becoming a candidate or nominee for civil office (subparagraph 4.2.3.). (Prepare as a letter or memorandum, signed by the member and addressed through the member’s immediate supervisor (if known) to the first general or flag officer in the member’s chain of command.)]
(Date)
[Select the appropriate paragraph 1].
Alternate A (over 270 days)
1. I understand that for me to remain or to become a nominee or a candidate for the civil office of [specifically identify the civil office] while on active duty, I must have the permission of the [name of the Secretary concerned] as required by subparagraph 4.2.2. of DoD Directive (DoDD)
1344.10, “Political Activities by Members of the Armed Forces.” I understand that such permission will be granted sparingly because it runs counter to the traditional concept that Service members on active duty should not engage in partisan political activity. Furthermore, I understand that if I am already a candidate or nominee, I must submit my request for permission from [specifically identify the Secretary concerned] before I enter active duty. If I am already on active duty and wish to become a candidate or nominee, I must receive permission first.
Alternate B (270 days or fewer)
1. I understand that I am authorized to remain or to become a candidate or nominee for the civil office of [specifically identify the civil office] while on active duty. This is authorized by subparagraph 4.2.3. of DoD Directive (DoDD) 1344.10, “Political Activities by Members of the Armed Forces,” because I am under a call or order to active duty for 270 days or fewer. I understand that I may remain a candidate or nominee only as long as my candidacy or nomination does not interfere with the performance of my military duty.
2. I have read and fully understand that DoDD 1344.10, paragraphs 4.2. and 4.3. severely limit my ability to participate as a nominee or candidate in the political process. I specifically understand that if I am granted permission to be a candidate or nominee or am not otherwise prohibited from becoming a candidate or nominee, I may not direct, control, endorse, or otherwise participate in campaign activities on my behalf (including behind-the-scene activities).
Furthermore, I must:
a. Take affirmative, documented efforts to inform those who work for me and those whom I control that I may not direct, control, manage, or otherwise participate in campaign activities on my own behalf.
b. Take all reasonable efforts to prevent current or anticipated advertisements that I control from being publicly displayed or running in any media. This includes Web sites devoted to the nomination or candidacy. Such Web sites created before my entry on active duty must
otherwise comply with subparagraph 4.3.1. and may not be updated or revised while I am on active duty. Furthermore, I understand that the Secretary concerned may direct that the Web site be removed.
3. I have read and understand the prohibitions found in DoDD 1344.10, paragraphs 4.2 and 4.3.
4. I understand that DoDI 1334.1, “Wearing of the Uniform,” prohibits the wearing of a military uniform during or in connection with the furtherance of any political or commercial interests not otherwise prohibited or limited above.
5. Finally, I understand that should I be elected to this civil office while on active duty, I will be subject to the policies concerning holding and exercising the function of civil office also found in DoDD 1344.10.
[Include signature block of nominee or candidate.]
ENCLOSURE 4 15
YOU ARE IN VIOLATION OF THIS DOD DIRECTIVE!!
Department of Defense
DIRECTIVE
NUMBER 1344.10
February 19, 2008
USD(P&R)
SUBJECT: Political Activities by Members of the Armed Forces
References: (a) DoD Directive 1344.10, “Political Activities by Members of the Armed
Forces on Active Duty,” August 2, 2004 (hereby canceled)
(b) Sections 973, 888, 101, and Chapter 47 of title 10, United States Code
(c) DoD Instruction 1334.1, “Wearing of the Uniform,” October 26, 2005
(d) Section 441a of title 2, United States Code
(e) through (i), see Enclosure 1
1. PURPOSE
This Directive:
1.1. Reissues Reference (a) to update policies on political activities of members of the Armed Forces.
1.2. Implements section 973(b) through (d) of Reference (b).
2. APPLICABILITY
This Directive applies to the Office of the Secretary of Defense, the Military Departments (including the Coast Guard at all times, including when it is a Service in the Department of Homeland Security by agreement with that Department), the Office of the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as the “DoD Components”). Paragraph 4.3. applies to members of the National Guard, even when in a non-Federal status. Other provisions apply to members of the National Guard while on active duty, which, for purposes of this Directive only, also includes full-time National Guard duty.
DoDD 1344.10, February 19, 2008
3. DEFINITIONS
The terms used in this Directive are defined in Enclosure 2.
4. POLICY
It is DoD policy to encourage members of the Armed Forces (hereafter referred to as “members”) (including members on active duty, members of the Reserve Components not on active duty, members of the National Guard even when in a non-Federal status, and retired members) to carry out the obligations of citizenship. In keeping with the traditional concept that members on active duty should not engage in partisan political activity, and that members not on active duty should avoid inferences that their political activities imply or appear to imply official sponsorship, approval, or endorsement, the following policy shall apply:
4.1. General
4.1.1. A member of the Armed Forces on active duty may:
4.1.1.1. Register, vote, and express a personal opinion on political candidates and issues, but not as a representative of the Armed Forces.
4.1.1.2. Promote and encourage others to exercise their voting franchise, if such promotion does not constitute use of their official authority or influence to interfere with the outcome of any election.
4.1.1.3. Join a partisan or nonpartisan political club and attend its meetings when not in uniform, subject to the restrictions of subparagraph 4.1.2.4. (See DoD Instruction 1334.1 (Reference (c).)
4.1.1.4. Serve as an election official, if such service is not as a representative of a partisan political party, does not interfere with the performance of military duties, is performed when not in uniform, and the Secretary concerned has given prior approval. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.1.1.5. Sign a petition for a specific legislative action or a petition to place a candidate’s name on an official election ballot, if the signing does not obligate the member to engage in partisan political activity and is done as a private citizen and not as a representative of the Armed Forces.
4.1.1.6. Write a letter to the editor of a newspaper expressing the member’s personal views on public issues or political candidates, if such action is not part of an organized letter- writing campaign or a solicitation of votes for or against a political party or partisan political cause or candidate. If the letter identifies the member as on active duty (or if the member is otherwise reasonably identifiable as a member of the Armed Forces), the letter should clearly state that the views expressed are those of the individual only and not those of the Department of Defense (or Department of Homeland Security for members of the Coast Guard).
4.1.1.7. Make monetary contributions to a political organization, party, or committee favoring a particular candidate or slate of candidates, subject to the limitations under section 441a of title 2, United States Code (U.S.C.) (Reference (d)); section 607 of title 18, U.S.C. (Reference (e)); and other applicable law.
4.1.1.8. Display a political bumper sticker on the member’s private vehicle.
4.1.1.9. Attend partisan and nonpartisan political fundraising activities, meetings, rallies, debates, conventions, or activities as a spectator when not in uniform and when no inference or appearance of official sponsorship, approval, or endorsement can reasonably be drawn.
4.1.1.10. Participate fully in the Federal Voting Assistance Program.
4.1.2. A member of the Armed Forces on active duty shall not:
4.1.2.1. Participate in partisan political fundraising activities (except as permitted in subparagraph 4.1.1.7.), rallies, conventions (including making speeches in the course thereof), management of campaigns, or debates, either on one’s own behalf or on that of another, without respect to uniform or inference or appearance of official sponsorship, approval, or endorsement. Participation includes more than mere attendance as a spectator. (See subparagraph 4.1.1.9.)
4.1.2.2. Use official authority or influence to interfere with an election, affect the course or outcome of an election, solicit votes for a particular candidate or issue, or require or solicit political contributions from others.
4.1.2.3. Allow or cause to be published partisan political articles, letters, or endorsements signed or written by the member that solicits votes for or against a partisan political party, candidate, or cause. This is distinguished from a letter to the editor as permitted under the conditions noted in subparagraph 4.1.1.6.
4.1.2.4. Serve in any official capacity with or be listed as a sponsor of a partisan political club.
4.1.2.5. Speak before a partisan political gathering, including any gathering that promotes a partisan political party, candidate, or cause.
4.1.2.6. Participate in any radio, television, or other program or group discussion as an advocate for or against a partisan political party, candidate, or cause.
4.1.2.7. Conduct a political opinion survey under the auspices of a partisan political club or group or distribute partisan political literature.
4.1.2.8. Perform clerical or other duties for a partisan political committee or candidate during a campaign, on an election day, or after an election day during the process of closing out a campaign.
4.1.2.9. Solicit or otherwise engage in fundraising activities in Federal offices or facilities, including military reservations, for any political cause or candidate.
4.1.2.10. March or ride in a partisan political parade.
4.1.2.11. Display a large political sign, banner, or poster (as distinguished from a bumper sticker) on a private vehicle.
4.1.2.12. Display a partisan political sign, poster, banner, or similar device visible to the public at one’s residence on a military installation, even if that residence is part of a privatized housing development.
4.1.2.13. Participate in any organized effort to provide voters with transportation to the polls if the effort is organized by or associated with a partisan political party, cause, or candidate.
4.1.2.14. Sell tickets for or otherwise actively promote partisan political dinners and similar fundraising events.
4.1.2.15. Attend partisan political events as an official representative of the Armed Forces, except as a member of a joint Armed Forces color guard at the opening ceremonies of the national conventions of the Republican, Democratic, or other political parties recognized by the Federal Elections Committee or as otherwise authorized by the Secretary concerned.
4.1.2.16. Make a campaign contribution to, or receive or solicit (on one’s own behalf) a campaign contribution from, any other member of the Armed Forces on active duty. Any contributions not prohibited by this subparagraph remain subject to the gift provisions of sections 2635.301-2635.304 of title 5, Code of Federal Regulations (Reference (f)). See subparagraph 4.1.2.1. for general prohibitions on partisan fundraising activity.
4.1.3. Commissioned officers shall not use contemptuous words as prohibited by section
888 of Reference (b) or participate in activities proscribed by DoD Directives 5200.2 and 1325.6 (References (g) and (h), respectively).
4.1.4. Subject to any other restrictions in law, a member of the Armed Forces not on active duty may take the actions or participate in the activities permitted in subparagraph 4.1.1., and may take the actions and participate in the activities prohibited in subparagraph 4.1.2, provided the member is not in uniform and does not otherwise act in a manner that could reasonably give rise to the inference or appearance of official sponsorship, approval, or endorsement.
4.1.5. Activities not expressly prohibited may be contrary to the spirit and intent of this Directive. Any activity that may be reasonably viewed as directly or indirectly associating the Department of Defense or the Department of Homeland Security (in the case of the Coast Guard) or any component of these Departments with a partisan political activity or is otherwise contrary to the spirit and intention of this Directive shall be avoided.
4.2. Nomination or Candidacy for Civil Office in the U.S. Government or State or Other Non-U.S. Government Offices
4.2.1. Paragraph 4.2. applies to:
4.2.1.1. A civil office in the U.S. Government that:
4.2.1.1.1. Is an elective office;
4.2.1.1.2. Requires an appointment by the President; or
4.2.1.1.3. Is a position on the executive schedule under sections 5312-5317 of title 5, U.S.C. (Reference (i)).
4.2.1.2. A civil office in a State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.2.2. A regular member, or a retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days, may not be a nominee or candidate for the offices described in subparagraph 4.2.1., except when the Secretary concerned grants permission.
4.2.2.1. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.2.2.2. Such permission shall not authorize activity while on active duty that is otherwise prohibited by other provisions of law or this Directive.
4.2.2.3. Such permission is required regardless of whether evidence of nomination or candidacy for civil office is filed prior to commencing active duty service or whether the member is an incumbent.
4.2.2.4. If a member covered by the prohibition in subparagraph 4.2.2. becomes a nominee or candidate for civil office prior to commencing active duty, then the member must request permission in writing and submit the request to the Secretary concerned before entering active duty. The member must understand that if the Secretary concerned does not grant permission, then the member must immediately decline the nomination or withdraw as a candidate.
4.2.3. A retired regular member or Reserve Component member on active duty under a call or order to active duty for 270 days or fewer may remain or become a nominee or candidate for the offices set out in subparagraph 4.2.1. provided there is no interference with the performance of military duty.
4.2.4. Notwithstanding any other provision of this Instruction:
4.2.4.1. Any enlisted member on active duty may seek, hold, and exercise the functions of a nonpartisan civil office as a notary public or member of a school board, neighborhood planning commission, or similar local agency, provided that the office is held in a non-military capacity and there is no interference with the performance of military duties.
4.2.4.2. Any warrant or commissioned officer on active duty may seek, hold, and exercise the functions of a nonpartisan civil office on an independent school board that is located exclusively on a military reservation, provided that the office is held in a non-military capacity and there is no interference with the performance of military duties.
4.3. Additional Limitations on Nomination or Candidacy and Campaigning
4.3.1. Members not on active duty who are nominees or candidates for the offices described in subparagraph 4.2.1. may, in their campaign literature (including Web sites, videos, television, and conventional print advertisements):
4.3.1.1. Use or mention, or permit the use or mention of, their military rank or grade and military service affiliation; BUT they must clearly indicate their retired or reserve status.
4.3.1.2. Include or permit the inclusion of their current or former specific military duty, title, or position, or photographs in military uniform, when displayed with other non- military biographical details. Any such military information must be accompanied by a prominent and clearly displayed disclaimer that neither the military information nor photographs imply endorsement by the Department of Defense or their particular Military Department (or the Department of Homeland Security for members of the Coast Guard); e.g., “John Doe is a member of the Army National Guard. Use of his military rank, job titles, and photographs in uniform does not imply endorsement by the Department of the Army or the Department of Defense.”
4.3.2. Members included in subparagraph 4.3.1. may NOT, in campaign literature (including Web sites, videos, television, and conventional print advertisements):
4.3.2.1. Use or allow the use of photographs, drawings, and other similar media formats of themselves in uniform as the primary graphic representation in any campaign media, such as a billboard, brochure, flyer, Web site, or television commercial. For the purposes of this policy, “photographs” include video images, drawings, and all other similar formats of representational media.
4.3.2.2. Depict or allow the depiction of themselves in uniform in a manner that does not accurately reflect their actual performance of duty. For the purpose of this policy, “photographs” include video images, drawings, and all other similar formats of representational media.
4.3.3. Any member on active duty who is permitted to be, or otherwise not prohibited from being, a nominee or candidate for office as described in subparagraph 4.2.1. may NOT participate in any campaign activities. This includes open and active campaigning and all behind-the-scene activities. For example, such members described in this paragraph who are candidates or nominees may not:
4.3.3.1. Direct, control, manage, or otherwise participate in their campaign, including behind-the-scene activities.
4.3.3.2. Make statements to or answer questions from the news media regarding political issues or regarding government policies or activities unless specifically authorized to do so by an appropriate supervisor or commander.
4.3.3.3. Publish or allow to be published partisan political articles, literature, or documents that they have signed, written, or approved that solicit votes for or against a partisan political party, candidate, issue, or cause.
4.3.4. Those members included in subparagraph 4.3.3. who are nominees or candidates
for office must:
4.3.4.1. Take affirmative, documented efforts to inform those who work for them and
those whom they control that they (the nominees or candidates) may not direct, control, manage, or otherwise participate in campaign activities on their own behalf.
4.3.4.2. Take all reasonable efforts to prevent current or anticipated advertisements that they (the nominees or candidates) control from being publicly displayed or running in any media. This includes Web sites devoted to the nomination or candidacy. Web sites created before entry on active duty may not be updated or revised and may be ordered shut down as the Secretary concerned may direct.
4.3.5. Those who require permission to be nominees or candidates under the provisions of subparagraph 4.2.2., or who are on active duty and are not otherwise prohibited from being a nominee or a candidate under the provisions of subparagraph 4.2.3., must complete the acknowledgment of limitations at Enclosure 4. Those who require permission must complete the acknowledgment before permission may be granted. Those who do not require permission must complete the acknowledgment within 15 days of becoming a nominee or candidate or within 15 days of entry on active duty if already a nominee or candidate. The acknowledgment must be forwarded through the nominee’s or candidate’s immediate supervisor to the first general officer in the chain of command.
4.4. Holding and Exercising the Functions of a U.S. Government Civil Office Attained by Election or Appointment
4.4.1. Paragraph 4.4. applies to a civil office in the U.S. Government that:
4.4.1.1. Is an elective office;
4.4.1.2. Requires an appointment by the President; or
4.4.1.3. Is in a position on the executive schedule under sections 5312-5317 of Reference (i).
4.4.2. A regular member, or retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days, may not hold or exercise the functions of civil office set out in subparagraph 4.4.1. unless otherwise authorized in paragraph 4.4. or by law.
4.4.3. A retired regular member, or a Reserve Component member on active duty under a call or order to active duty for 270 days or fewer, may hold and exercise the functions of a civil office provided there is no interference with the performance of military duty.
4.4.4. A member on active duty may hold and exercise the functions of a civil office under paragraph 4.4. when assigned or detailed (while on active duty) to such office to perform such functions, provided the assignment or detail does not interfere with military duties.
4.4.5. Any member on active duty authorized to hold or exercise or not prohibited from holding or exercising the functions of office under paragraph 4.4. are still subject to the prohibitions of subparagraph 4.1.2.
4.5. Holding and Exercising the Functions of a State or Other Non-U.S. Government Office Attained by Election or Appointment
4.5.1. Paragraph 4.5. applies to a civil office in a State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.5.2. A regular member may not hold or exercise the functions of civil office unless otherwise authorized in paragraph 4.5. or by law.
4.5.3. A retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days may hold─but shall NOT exercise─the functions of a civil office as set out in subparagraph 4.5.1., as long as:
4.5.3.1. The holding of such office is not prohibited under the laws of the State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.5.3.2. The Secretary concerned grants permission after determining that holding such office does not interfere with the performance of military duties. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.5.4. A retired regular or Reserve Component member on active duty under a call or order to active duty for 270 days or fewer may hold and exercise the functions of civil office provided there is no interference with the performance of military duties.
4.5.5. Any member on active duty authorized to hold or exercise, or not prohibited from holding or exercising, the functions of office under paragraph 4.5. are still subject to the prohibitions of subparagraph 4.1.2.
4.6. Actions When Prohibitions Apply
4.6.1. Members affected by the prohibitions against being a nominee or candidate or holding or exercising the functions of a civil office may request retirement (if eligible), discharge, or release from active duty. The Secretary concerned may approve these requests, consistent with the needs of the Service, unless the member is:
4.6.1.1. Obligated to fulfill an active duty service commitment.
4.6.1.2. Serving or has been issued orders to serve afloat or in an area that is overseas, remote, a combat zone, or a hostile pay fire area.
4.6.1.3. Ordered to remain on active duty while the subject of an investigation or inquiry.
4.6.1.4. Accused of an offense under Chapter 47 of Reference (b) or serving a sentence or punishment for such an offense.
4.6.1.5. Pending other administrative separation action or proceedings.
4.6.1.6. Indebted to the United States.
4.6.1.7. In a Reserve Component and serving involuntarily under a call or order to active duty that specifies a period of active duty of more that 270 days during a period of declared war or national emergency; or other period when a unit or individual of the National Guard or other Reserve Component has been involuntarily called or ordered to active duty as authorized by law.
4.6.1.8. In violation of this Directive or an order or regulation prohibiting such member from assuming or exercising the functions of civil office.
4.6.2. Subparagraph 4.6.1. does not preclude a member’s involuntary discharge or release from active duty.
4.6.3. No actions undertaken by a member in carrying out assigned military duties shall be invalidated solely by virtue of such member having been a candidate or nominee for a civil office in violation of the prohibition of paragraph 4.2. or having held or exercised the functions of a civil office in violation of the prohibitions of paragraphs 4.4. or 4.5.
4.6.4. This is a lawful general regulation. Violations of paragraphs 4.1. through 4.5. of this Directive by persons subject to the Uniform Code of Military Justice are punishable under Article 92, “Failure to Obey Order or Regulation,” Chapter 47 of Reference (b).
5. RESPONSIBILITIES
5.1. The Under Secretary of Defense for Personnel and Readiness shall administer this Directive.
5.2. The Secretaries of the Military Departments shall issue appropriate implementing documents for their respective Departments.
6. RELEASABILITY
UNLIMITED. This Directive is approved for public release. Copies may be obtained through the Internet from the DoD Issuances Web Site at http://www.dtic.mil/whs/directives.
7. EFFECTIVE DATE
This Directive is effective immediately.
Enclosures - 4
E1. References, continued
E2. Definitions
E3. Nonpartisan Activities and Other Miscellaneous Guidance
E4. Candidacy or Nomination for Political Office Counseling Statement
10
DoDD 1344.10, February 19, 2008
E1. ENCLOSURE 1
REFERENCES, continued
(e) Section 607 of title 18, United States Code
(f) Sections 2635.301-2635.304 of title 5, Code of Federal Regulations
(g) DoD Directive 5200.2, “DoD Personnel Security Program,” April 9, 1999
(h) DoD Directive 1325.6, “Guidelines for Handling Dissident and Protest Activities Among
Members of the Armed Forces,” October 1, 1996
(i) Sections 5312-5317 of title 5, United States Code
ENCLOSURE 1 11
DoDD 1344.10, February 19, 2008
E2. ENCLOSURE 2
DEFINITIONS
E2.1. Active Duty. Full-time duty in the active military service of the United States regardless of duration or purpose. Active duty includes full-time training duty; annual training duty; and attendance, while in the active military service, at a school designated as a Service school by law or by the Secretary concerned. For purposes of this Directive only, active duty also includes full- time National Guard duty.
E2.2. Call or Order to Active Duty for More Than 270 Days. Any prohibitions or limitations this Directive triggers by a call or order to active duty for more than 270 days begins on the first day of the active duty.
E2.3. Civil Office. A non-military office involving the exercise of the powers or authority of civil government, to include elective and appointed office in the U.S. Government, a U.S. territory or possession, State, county, municipality, or official subdivision thereof. This term does not include a non-elective position as a regular or reserve member of civilian law enforcement, fire, or rescue squad.
E2.4. Nonpartisan Political Activity. Activity supporting or relating to candidates not representing, or issues not specifically identified with, national or State political parties and associated or ancillary organizations or clubs. Issues relating to State constitutional amendments or referendums, approval of municipal ordinances, and others of similar character are not considered under this Instruction as specifically identified with national or State political parties.
E2.5. Partisan Political Activity. Activity supporting or relating to candidates representing, or issues specifically identified with, national or State political parties and associated or ancillary organizations or clubs.
E2.6. Secretary Concerned. See section 101(a)(9) of Reference (b).
ENCLOSURE 2 12
DoDD 1344.10, February 19, 2008
E3. ENCLOSURE 3
NONPARTISAN ACTIVITIES AND OTHER MISCELLANEOUS GUIDANCE
E3.1. LOCAL NONPARTISAN POLITICAL ACTIVITIES
This Directive does not preclude participation in local nonpartisan political campaigns, initiatives, or referendums. A member taking part in local nonpartisan political activity, however, shall not:
E3.1.1. Wear a uniform or use any Government property or facilities while participating.
E3.1.2. Allow such participation to interfere with or prejudice the member’s performance of military duties.
E3.1.3. Engage in conduct that in any way may reasonably imply that the Military Department concerned or any component of such Department has taken an official position on, or is otherwise involved in, the local political campaign or issue.
E3.2. ADDITIONAL REQUIREMENTS
Members of the Armed Forces on active duty engaging in permissible political activities shall:
E3.2.1. Give full time and attention to the performance of military duties during prescribed duty hours.
E3.2.2. Avoid any outside activities that may be prejudicial to the performance of military duties or likely to bring discredit upon the Armed Forces.
E3.2.3. Refrain from participating in any political activity while in military uniform, as proscribed by Reference (c), or using Government facilities or resources for furthering political activities.
ENCLOSURE 3 13
DoDD 1344.10, February 19, 2008
E4. ENCLOSURE 4
CANDIDACY OR NOMINATION FOR POLITICAL OFFICE
ACKNOWLEDGMENT OF LIMITATIONS
[To be prepared by any member on active duty (or who is about to enter active duty) who is:
Alternate A: Granted permission to remain or to become a candidate or nominee for civil office, (subparagraph 4.2.2.); or Alternate B: Not otherwise prohibited from remaining or becoming a candidate or nominee for civil office (subparagraph 4.2.3.). (Prepare as a letter or memorandum, signed by the member and addressed through the member’s immediate supervisor (if known) to the first general or flag officer in the member’s chain of command.)]
(Date)
[Select the appropriate paragraph 1].
Alternate A (over 270 days)
1. I understand that for me to remain or to become a nominee or a candidate for the civil office of [specifically identify the civil office] while on active duty, I must have the permission of the [name of the Secretary concerned] as required by subparagraph 4.2.2. of DoD Directive (DoDD)
1344.10, “Political Activities by Members of the Armed Forces.” I understand that such permission will be granted sparingly because it runs counter to the traditional concept that Service members on active duty should not engage in partisan political activity. Furthermore, I understand that if I am already a candidate or nominee, I must submit my request for permission from [specifically identify the Secretary concerned] before I enter active duty. If I am already on active duty and wish to become a candidate or nominee, I must receive permission first.
Alternate B (270 days or fewer)
1. I understand that I am authorized to remain or to become a candidate or nominee for the civil office of [specifically identify the civil office] while on active duty. This is authorized by subparagraph 4.2.3. of DoD Directive (DoDD) 1344.10, “Political Activities by Members of the Armed Forces,” because I am under a call or order to active duty for 270 days or fewer. I understand that I may remain a candidate or nominee only as long as my candidacy or nomination does not interfere with the performance of my military duty.
2. I have read and fully understand that DoDD 1344.10, paragraphs 4.2. and 4.3. severely limit my ability to participate as a nominee or candidate in the political process. I specifically understand that if I am granted permission to be a candidate or nominee or am not otherwise prohibited from becoming a candidate or nominee, I may not direct, control, endorse, or otherwise participate in campaign activities on my behalf (including behind-the-scene activities).
Furthermore, I must:
a. Take affirmative, documented efforts to inform those who work for me and those whom I control that I may not direct, control, manage, or otherwise participate in campaign activities on my own behalf.
b. Take all reasonable efforts to prevent current or anticipated advertisements that I control from being publicly displayed or running in any media. This includes Web sites devoted to the nomination or candidacy. Such Web sites created before my entry on active duty must
otherwise comply with subparagraph 4.3.1. and may not be updated or revised while I am on active duty. Furthermore, I understand that the Secretary concerned may direct that the Web site be removed.
3. I have read and understand the prohibitions found in DoDD 1344.10, paragraphs 4.2 and 4.3.
4. I understand that DoDI 1334.1, “Wearing of the Uniform,” prohibits the wearing of a military uniform during or in connection with the furtherance of any political or commercial interests not otherwise prohibited or limited above.
5. Finally, I understand that should I be elected to this civil office while on active duty, I will be subject to the policies concerning holding and exercising the function of civil office also found in DoDD 1344.10.
[Include signature block of nominee or candidate.]
ENCLOSURE 4 15
YOU ARE IN VIOLATION OF THIS DOD DIRECTIVE!!
Department of Defense
DIRECTIVE
NUMBER 1344.10
February 19, 2008
USD(P&R)
SUBJECT: Political Activities by Members of the Armed Forces
References: (a) DoD Directive 1344.10, “Political Activities by Members of the Armed
Forces on Active Duty,” August 2, 2004 (hereby canceled)
(b) Sections 973, 888, 101, and Chapter 47 of title 10, United States Code
(c) DoD Instruction 1334.1, “Wearing of the Uniform,” October 26, 2005
(d) Section 441a of title 2, United States Code
(e) through (i), see Enclosure 1
1. PURPOSE
This Directive:
1.1. Reissues Reference (a) to update policies on political activities of members of the Armed Forces.
1.2. Implements section 973(b) through (d) of Reference (b).
2. APPLICABILITY
This Directive applies to the Office of the Secretary of Defense, the Military Departments (including the Coast Guard at all times, including when it is a Service in the Department of Homeland Security by agreement with that Department), the Office of the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as the “DoD Components”). Paragraph 4.3. applies to members of the National Guard, even when in a non-Federal status. Other provisions apply to members of the National Guard while on active duty, which, for purposes of this Directive only, also includes full-time National Guard duty.
DoDD 1344.10, February 19, 2008
3. DEFINITIONS
The terms used in this Directive are defined in Enclosure 2.
4. POLICY
It is DoD policy to encourage members of the Armed Forces (hereafter referred to as “members”) (including members on active duty, members of the Reserve Components not on active duty, members of the National Guard even when in a non-Federal status, and retired members) to carry out the obligations of citizenship. In keeping with the traditional concept that members on active duty should not engage in partisan political activity, and that members not on active duty should avoid inferences that their political activities imply or appear to imply official sponsorship, approval, or endorsement, the following policy shall apply:
4.1. General
4.1.1. A member of the Armed Forces on active duty may:
4.1.1.1. Register, vote, and express a personal opinion on political candidates and issues, but not as a representative of the Armed Forces.
4.1.1.2. Promote and encourage others to exercise their voting franchise, if such promotion does not constitute use of their official authority or influence to interfere with the outcome of any election.
4.1.1.3. Join a partisan or nonpartisan political club and attend its meetings when not in uniform, subject to the restrictions of subparagraph 4.1.2.4. (See DoD Instruction 1334.1 (Reference (c).)
4.1.1.4. Serve as an election official, if such service is not as a representative of a partisan political party, does not interfere with the performance of military duties, is performed when not in uniform, and the Secretary concerned has given prior approval. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.1.1.5. Sign a petition for a specific legislative action or a petition to place a candidate’s name on an official election ballot, if the signing does not obligate the member to engage in partisan political activity and is done as a private citizen and not as a representative of the Armed Forces.
4.1.1.6. Write a letter to the editor of a newspaper expressing the member’s personal views on public issues or political candidates, if such action is not part of an organized letter- writing campaign or a solicitation of votes for or against a political party or partisan political cause or candidate. If the letter identifies the member as on active duty (or if the member is otherwise reasonably identifiable as a member of the Armed Forces), the letter should clearly state that the views expressed are those of the individual only and not those of the Department of Defense (or Department of Homeland Security for members of the Coast Guard).
4.1.1.7. Make monetary contributions to a political organization, party, or committee favoring a particular candidate or slate of candidates, subject to the limitations under section 441a of title 2, United States Code (U.S.C.) (Reference (d)); section 607 of title 18, U.S.C. (Reference (e)); and other applicable law.
4.1.1.8. Display a political bumper sticker on the member’s private vehicle.
4.1.1.9. Attend partisan and nonpartisan political fundraising activities, meetings, rallies, debates, conventions, or activities as a spectator when not in uniform and when no inference or appearance of official sponsorship, approval, or endorsement can reasonably be drawn.
4.1.1.10. Participate fully in the Federal Voting Assistance Program.
4.1.2. A member of the Armed Forces on active duty shall not:
4.1.2.1. Participate in partisan political fundraising activities (except as permitted in subparagraph 4.1.1.7.), rallies, conventions (including making speeches in the course thereof), management of campaigns, or debates, either on one’s own behalf or on that of another, without respect to uniform or inference or appearance of official sponsorship, approval, or endorsement. Participation includes more than mere attendance as a spectator. (See subparagraph 4.1.1.9.)
4.1.2.2. Use official authority or influence to interfere with an election, affect the course or outcome of an election, solicit votes for a particular candidate or issue, or require or solicit political contributions from others.
4.1.2.3. Allow or cause to be published partisan political articles, letters, or endorsements signed or written by the member that solicits votes for or against a partisan political party, candidate, or cause. This is distinguished from a letter to the editor as permitted under the conditions noted in subparagraph 4.1.1.6.
4.1.2.4. Serve in any official capacity with or be listed as a sponsor of a partisan political club.
4.1.2.5. Speak before a partisan political gathering, including any gathering that promotes a partisan political party, candidate, or cause.
4.1.2.6. Participate in any radio, television, or other program or group discussion as an advocate for or against a partisan political party, candidate, or cause.
4.1.2.7. Conduct a political opinion survey under the auspices of a partisan political club or group or distribute partisan political literature.
4.1.2.8. Perform clerical or other duties for a partisan political committee or candidate during a campaign, on an election day, or after an election day during the process of closing out a campaign.
4.1.2.9. Solicit or otherwise engage in fundraising activities in Federal offices or facilities, including military reservations, for any political cause or candidate.
4.1.2.10. March or ride in a partisan political parade.
4.1.2.11. Display a large political sign, banner, or poster (as distinguished from a bumper sticker) on a private vehicle.
4.1.2.12. Display a partisan political sign, poster, banner, or similar device visible to the public at one’s residence on a military installation, even if that residence is part of a privatized housing development.
4.1.2.13. Participate in any organized effort to provide voters with transportation to the polls if the effort is organized by or associated with a partisan political party, cause, or candidate.
4.1.2.14. Sell tickets for or otherwise actively promote partisan political dinners and similar fundraising events.
4.1.2.15. Attend partisan political events as an official representative of the Armed Forces, except as a member of a joint Armed Forces color guard at the opening ceremonies of the national conventions of the Republican, Democratic, or other political parties recognized by the Federal Elections Committee or as otherwise authorized by the Secretary concerned.
4.1.2.16. Make a campaign contribution to, or receive or solicit (on one’s own behalf) a campaign contribution from, any other member of the Armed Forces on active duty. Any contributions not prohibited by this subparagraph remain subject to the gift provisions of sections 2635.301-2635.304 of title 5, Code of Federal Regulations (Reference (f)). See subparagraph 4.1.2.1. for general prohibitions on partisan fundraising activity.
4.1.3. Commissioned officers shall not use contemptuous words as prohibited by section
888 of Reference (b) or participate in activities proscribed by DoD Directives 5200.2 and 1325.6 (References (g) and (h), respectively).
4.1.4. Subject to any other restrictions in law, a member of the Armed Forces not on active duty may take the actions or participate in the activities permitted in subparagraph 4.1.1., and may take the actions and participate in the activities prohibited in subparagraph 4.1.2, provided the member is not in uniform and does not otherwise act in a manner that could reasonably give rise to the inference or appearance of official sponsorship, approval, or endorsement.
4.1.5. Activities not expressly prohibited may be contrary to the spirit and intent of this Directive. Any activity that may be reasonably viewed as directly or indirectly associating the Department of Defense or the Department of Homeland Security (in the case of the Coast Guard) or any component of these Departments with a partisan political activity or is otherwise contrary to the spirit and intention of this Directive shall be avoided.
4.2. Nomination or Candidacy for Civil Office in the U.S. Government or State or Other Non-U.S. Government Offices
4.2.1. Paragraph 4.2. applies to:
4.2.1.1. A civil office in the U.S. Government that:
4.2.1.1.1. Is an elective office;
4.2.1.1.2. Requires an appointment by the President; or
4.2.1.1.3. Is a position on the executive schedule under sections 5312-5317 of title 5, U.S.C. (Reference (i)).
4.2.1.2. A civil office in a State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.2.2. A regular member, or a retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days, may not be a nominee or candidate for the offices described in subparagraph 4.2.1., except when the Secretary concerned grants permission.
4.2.2.1. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.2.2.2. Such permission shall not authorize activity while on active duty that is otherwise prohibited by other provisions of law or this Directive.
4.2.2.3. Such permission is required regardless of whether evidence of nomination or candidacy for civil office is filed prior to commencing active duty service or whether the member is an incumbent.
4.2.2.4. If a member covered by the prohibition in subparagraph 4.2.2. becomes a nominee or candidate for civil office prior to commencing active duty, then the member must request permission in writing and submit the request to the Secretary concerned before entering active duty. The member must understand that if the Secretary concerned does not grant permission, then the member must immediately decline the nomination or withdraw as a candidate.
4.2.3. A retired regular member or Reserve Component member on active duty under a call or order to active duty for 270 days or fewer may remain or become a nominee or candidate for the offices set out in subparagraph 4.2.1. provided there is no interference with the performance of military duty.
4.2.4. Notwithstanding any other provision of this Instruction:
4.2.4.1. Any enlisted member on active duty may seek, hold, and exercise the functions of a nonpartisan civil office as a notary public or member of a school board, neighborhood planning commission, or similar local agency, provided that the office is held in a non-military capacity and there is no interference with the performance of military duties.
4.2.4.2. Any warrant or commissioned officer on active duty may seek, hold, and exercise the functions of a nonpartisan civil office on an independent school board that is located exclusively on a military reservation, provided that the office is held in a non-military capacity and there is no interference with the performance of military duties.
4.3. Additional Limitations on Nomination or Candidacy and Campaigning
4.3.1. Members not on active duty who are nominees or candidates for the offices described in subparagraph 4.2.1. may, in their campaign literature (including Web sites, videos, television, and conventional print advertisements):
4.3.1.1. Use or mention, or permit the use or mention of, their military rank or grade and military service affiliation; BUT they must clearly indicate their retired or reserve status.
4.3.1.2. Include or permit the inclusion of their current or former specific military duty, title, or position, or photographs in military uniform, when displayed with other non- military biographical details. Any such military information must be accompanied by a prominent and clearly displayed disclaimer that neither the military information nor photographs imply endorsement by the Department of Defense or their particular Military Department (or the Department of Homeland Security for members of the Coast Guard); e.g., “John Doe is a member of the Army National Guard. Use of his military rank, job titles, and photographs in uniform does not imply endorsement by the Department of the Army or the Department of Defense.”
4.3.2. Members included in subparagraph 4.3.1. may NOT, in campaign literature (including Web sites, videos, television, and conventional print advertisements):
4.3.2.1. Use or allow the use of photographs, drawings, and other similar media formats of themselves in uniform as the primary graphic representation in any campaign media, such as a billboard, brochure, flyer, Web site, or television commercial. For the purposes of this policy, “photographs” include video images, drawings, and all other similar formats of representational media.
4.3.2.2. Depict or allow the depiction of themselves in uniform in a manner that does not accurately reflect their actual performance of duty. For the purpose of this policy, “photographs” include video images, drawings, and all other similar formats of representational media.
4.3.3. Any member on active duty who is permitted to be, or otherwise not prohibited from being, a nominee or candidate for office as described in subparagraph 4.2.1. may NOT participate in any campaign activities. This includes open and active campaigning and all behind-the-scene activities. For example, such members described in this paragraph who are candidates or nominees may not:
4.3.3.1. Direct, control, manage, or otherwise participate in their campaign, including behind-the-scene activities.
4.3.3.2. Make statements to or answer questions from the news media regarding political issues or regarding government policies or activities unless specifically authorized to do so by an appropriate supervisor or commander.
4.3.3.3. Publish or allow to be published partisan political articles, literature, or documents that they have signed, written, or approved that solicit votes for or against a partisan political party, candidate, issue, or cause.
4.3.4. Those members included in subparagraph 4.3.3. who are nominees or candidates
for office must:
4.3.4.1. Take affirmative, documented efforts to inform those who work for them and
those whom they control that they (the nominees or candidates) may not direct, control, manage, or otherwise participate in campaign activities on their own behalf.
4.3.4.2. Take all reasonable efforts to prevent current or anticipated advertisements that they (the nominees or candidates) control from being publicly displayed or running in any media. This includes Web sites devoted to the nomination or candidacy. Web sites created before entry on active duty may not be updated or revised and may be ordered shut down as the Secretary concerned may direct.
4.3.5. Those who require permission to be nominees or candidates under the provisions of subparagraph 4.2.2., or who are on active duty and are not otherwise prohibited from being a nominee or a candidate under the provisions of subparagraph 4.2.3., must complete the acknowledgment of limitations at Enclosure 4. Those who require permission must complete the acknowledgment before permission may be granted. Those who do not require permission must complete the acknowledgment within 15 days of becoming a nominee or candidate or within 15 days of entry on active duty if already a nominee or candidate. The acknowledgment must be forwarded through the nominee’s or candidate’s immediate supervisor to the first general officer in the chain of command.
4.4. Holding and Exercising the Functions of a U.S. Government Civil Office Attained by Election or Appointment
4.4.1. Paragraph 4.4. applies to a civil office in the U.S. Government that:
4.4.1.1. Is an elective office;
4.4.1.2. Requires an appointment by the President; or
4.4.1.3. Is in a position on the executive schedule under sections 5312-5317 of Reference (i).
4.4.2. A regular member, or retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days, may not hold or exercise the functions of civil office set out in subparagraph 4.4.1. unless otherwise authorized in paragraph 4.4. or by law.
4.4.3. A retired regular member, or a Reserve Component member on active duty under a call or order to active duty for 270 days or fewer, may hold and exercise the functions of a civil office provided there is no interference with the performance of military duty.
4.4.4. A member on active duty may hold and exercise the functions of a civil office under paragraph 4.4. when assigned or detailed (while on active duty) to such office to perform such functions, provided the assignment or detail does not interfere with military duties.
4.4.5. Any member on active duty authorized to hold or exercise or not prohibited from holding or exercising the functions of office under paragraph 4.4. are still subject to the prohibitions of subparagraph 4.1.2.
4.5. Holding and Exercising the Functions of a State or Other Non-U.S. Government Office Attained by Election or Appointment
4.5.1. Paragraph 4.5. applies to a civil office in a State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.5.2. A regular member may not hold or exercise the functions of civil office unless otherwise authorized in paragraph 4.5. or by law.
4.5.3. A retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days may hold─but shall NOT exercise─the functions of a civil office as set out in subparagraph 4.5.1., as long as:
4.5.3.1. The holding of such office is not prohibited under the laws of the State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.5.3.2. The Secretary concerned grants permission after determining that holding such office does not interfere with the performance of military duties. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.5.4. A retired regular or Reserve Component member on active duty under a call or order to active duty for 270 days or fewer may hold and exercise the functions of civil office provided there is no interference with the performance of military duties.
4.5.5. Any member on active duty authorized to hold or exercise, or not prohibited from holding or exercising, the functions of office under paragraph 4.5. are still subject to the prohibitions of subparagraph 4.1.2.
4.6. Actions When Prohibitions Apply
4.6.1. Members affected by the prohibitions against being a nominee or candidate or holding or exercising the functions of a civil office may request retirement (if eligible), discharge, or release from active duty. The Secretary concerned may approve these requests, consistent with the needs of the Service, unless the member is:
4.6.1.1. Obligated to fulfill an active duty service commitment.
4.6.1.2. Serving or has been issued orders to serve afloat or in an area that is overseas, remote, a combat zone, or a hostile pay fire area.
4.6.1.3. Ordered to remain on active duty while the subject of an investigation or inquiry.
4.6.1.4. Accused of an offense under Chapter 47 of Reference (b) or serving a sentence or punishment for such an offense.
4.6.1.5. Pending other administrative separation action or proceedings.
4.6.1.6. Indebted to the United States.
4.6.1.7. In a Reserve Component and serving involuntarily under a call or order to active duty that specifies a period of active duty of more that 270 days during a period of declared war or national emergency; or other period when a unit or individual of the National Guard or other Reserve Component has been involuntarily called or ordered to active duty as authorized by law.
4.6.1.8. In violation of this Directive or an order or regulation prohibiting such member from assuming or exercising the functions of civil office.
4.6.2. Subparagraph 4.6.1. does not preclude a member’s involuntary discharge or release from active duty.
4.6.3. No actions undertaken by a member in carrying out assigned military duties shall be invalidated solely by virtue of such member having been a candidate or nominee for a civil office in violation of the prohibition of paragraph 4.2. or having held or exercised the functions of a civil office in violation of the prohibitions of paragraphs 4.4. or 4.5.
4.6.4. This is a lawful general regulation. Violations of paragraphs 4.1. through 4.5. of this Directive by persons subject to the Uniform Code of Military Justice are punishable under Article 92, “Failure to Obey Order or Regulation,” Chapter 47 of Reference (b).
5. RESPONSIBILITIES
5.1. The Under Secretary of Defense for Personnel and Readiness shall administer this Directive.
5.2. The Secretaries of the Military Departments shall issue appropriate implementing documents for their respective Departments.
6. RELEASABILITY
UNLIMITED. This Directive is approved for public release. Copies may be obtained through the Internet from the DoD Issuances Web Site at http://www.dtic.mil/whs/directives.
7. EFFECTIVE DATE
This Directive is effective immediately.
Enclosures - 4
E1. References, continued
E2. Definitions
E3. Nonpartisan Activities and Other Miscellaneous Guidance
E4. Candidacy or Nomination for Political Office Counseling Statement
10
DoDD 1344.10, February 19, 2008
E1. ENCLOSURE 1
REFERENCES, continued
(e) Section 607 of title 18, United States Code
(f) Sections 2635.301-2635.304 of title 5, Code of Federal Regulations
(g) DoD Directive 5200.2, “DoD Personnel Security Program,” April 9, 1999
(h) DoD Directive 1325.6, “Guidelines for Handling Dissident and Protest Activities Among
Members of the Armed Forces,” October 1, 1996
(i) Sections 5312-5317 of title 5, United States Code
ENCLOSURE 1 11
DoDD 1344.10, February 19, 2008
E2. ENCLOSURE 2
DEFINITIONS
E2.1. Active Duty. Full-time duty in the active military service of the United States regardless of duration or purpose. Active duty includes full-time training duty; annual training duty; and attendance, while in the active military service, at a school designated as a Service school by law or by the Secretary concerned. For purposes of this Directive only, active duty also includes full- time National Guard duty.
E2.2. Call or Order to Active Duty for More Than 270 Days. Any prohibitions or limitations this Directive triggers by a call or order to active duty for more than 270 days begins on the first day of the active duty.
E2.3. Civil Office. A non-military office involving the exercise of the powers or authority of civil government, to include elective and appointed office in the U.S. Government, a U.S. territory or possession, State, county, municipality, or official subdivision thereof. This term does not include a non-elective position as a regular or reserve member of civilian law enforcement, fire, or rescue squad.
E2.4. Nonpartisan Political Activity. Activity supporting or relating to candidates not representing, or issues not specifically identified with, national or State political parties and associated or ancillary organizations or clubs. Issues relating to State constitutional amendments or referendums, approval of municipal ordinances, and others of similar character are not considered under this Instruction as specifically identified with national or State political parties.
E2.5. Partisan Political Activity. Activity supporting or relating to candidates representing, or issues specifically identified with, national or State political parties and associated or ancillary organizations or clubs.
E2.6. Secretary Concerned. See section 101(a)(9) of Reference (b).
ENCLOSURE 2 12
DoDD 1344.10, February 19, 2008
E3. ENCLOSURE 3
NONPARTISAN ACTIVITIES AND OTHER MISCELLANEOUS GUIDANCE
E3.1. LOCAL NONPARTISAN POLITICAL ACTIVITIES
This Directive does not preclude participation in local nonpartisan political campaigns, initiatives, or referendums. A member taking part in local nonpartisan political activity, however, shall not:
E3.1.1. Wear a uniform or use any Government property or facilities while participating.
E3.1.2. Allow such participation to interfere with or prejudice the member’s performance of military duties.
E3.1.3. Engage in conduct that in any way may reasonably imply that the Military Department concerned or any component of such Department has taken an official position on, or is otherwise involved in, the local political campaign or issue.
E3.2. ADDITIONAL REQUIREMENTS
Members of the Armed Forces on active duty engaging in permissible political activities shall:
E3.2.1. Give full time and attention to the performance of military duties during prescribed duty hours.
E3.2.2. Avoid any outside activities that may be prejudicial to the performance of military duties or likely to bring discredit upon the Armed Forces.
E3.2.3. Refrain from participating in any political activity while in military uniform, as proscribed by Reference (c), or using Government facilities or resources for furthering political activities.
ENCLOSURE 3 13
DoDD 1344.10, February 19, 2008
E4. ENCLOSURE 4
CANDIDACY OR NOMINATION FOR POLITICAL OFFICE
ACKNOWLEDGMENT OF LIMITATIONS
[To be prepared by any member on active duty (or who is about to enter active duty) who is:
Alternate A: Granted permission to remain or to become a candidate or nominee for civil office, (subparagraph 4.2.2.); or Alternate B: Not otherwise prohibited from remaining or becoming a candidate or nominee for civil office (subparagraph 4.2.3.). (Prepare as a letter or memorandum, signed by the member and addressed through the member’s immediate supervisor (if known) to the first general or flag officer in the member’s chain of command.)]
(Date)
[Select the appropriate paragraph 1].
Alternate A (over 270 days)
1. I understand that for me to remain or to become a nominee or a candidate for the civil office of [specifically identify the civil office] while on active duty, I must have the permission of the [name of the Secretary concerned] as required by subparagraph 4.2.2. of DoD Directive (DoDD)
1344.10, “Political Activities by Members of the Armed Forces.” I understand that such permission will be granted sparingly because it runs counter to the traditional concept that Service members on active duty should not engage in partisan political activity. Furthermore, I understand that if I am already a candidate or nominee, I must submit my request for permission from [specifically identify the Secretary concerned] before I enter active duty. If I am already on active duty and wish to become a candidate or nominee, I must receive permission first.
Alternate B (270 days or fewer)
1. I understand that I am authorized to remain or to become a candidate or nominee for the civil office of [specifically identify the civil office] while on active duty. This is authorized by subparagraph 4.2.3. of DoD Directive (DoDD) 1344.10, “Political Activities by Members of the Armed Forces,” because I am under a call or order to active duty for 270 days or fewer. I understand that I may remain a candidate or nominee only as long as my candidacy or nomination does not interfere with the performance of my military duty.
2. I have read and fully understand that DoDD 1344.10, paragraphs 4.2. and 4.3. severely limit my ability to participate as a nominee or candidate in the political process. I specifically understand that if I am granted permission to be a candidate or nominee or am not otherwise prohibited from becoming a candidate or nominee, I may not direct, control, endorse, or otherwise participate in campaign activities on my behalf (including behind-the-scene activities).
Furthermore, I must:
a. Take affirmative, documented efforts to inform those who work for me and those whom I control that I may not direct, control, manage, or otherwise participate in campaign activities on my own behalf.
b. Take all reasonable efforts to prevent current or anticipated advertisements that I control from being publicly displayed or running in any media. This includes Web sites devoted to the nomination or candidacy. Such Web sites created before my entry on active duty must
otherwise comply with subparagraph 4.3.1. and may not be updated or revised while I am on active duty. Furthermore, I understand that the Secretary concerned may direct that the Web site be removed.
3. I have read and understand the prohibitions found in DoDD 1344.10, paragraphs 4.2 and 4.3.
4. I understand that DoDI 1334.1, “Wearing of the Uniform,” prohibits the wearing of a military uniform during or in connection with the furtherance of any political or commercial interests not otherwise prohibited or limited above.
5. Finally, I understand that should I be elected to this civil office while on active duty, I will be subject to the policies concerning holding and exercising the function of civil office also found in DoDD 1344.10.
[Include signature block of nominee or candidate.]
ENCLOSURE 4 15
YOU ARE IN VIOLATION OF THIS DOD DIRECTIVE!!
Department of Defense
DIRECTIVE
NUMBER 1344.10
February 19, 2008
USD(P&R)
SUBJECT: Political Activities by Members of the Armed Forces
References: (a) DoD Directive 1344.10, “Political Activities by Members of the Armed
Forces on Active Duty,” August 2, 2004 (hereby canceled)
(b) Sections 973, 888, 101, and Chapter 47 of title 10, United States Code
(c) DoD Instruction 1334.1, “Wearing of the Uniform,” October 26, 2005
(d) Section 441a of title 2, United States Code
(e) through (i), see Enclosure 1
1. PURPOSE
This Directive:
1.1. Reissues Reference (a) to update policies on political activities of members of the Armed Forces.
1.2. Implements section 973(b) through (d) of Reference (b).
2. APPLICABILITY
This Directive applies to the Office of the Secretary of Defense, the Military Departments (including the Coast Guard at all times, including when it is a Service in the Department of Homeland Security by agreement with that Department), the Office of the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as the “DoD Components”). Paragraph 4.3. applies to members of the National Guard, even when in a non-Federal status. Other provisions apply to members of the National Guard while on active duty, which, for purposes of this Directive only, also includes full-time National Guard duty.
DoDD 1344.10, February 19, 2008
3. DEFINITIONS
The terms used in this Directive are defined in Enclosure 2.
4. POLICY
It is DoD policy to encourage members of the Armed Forces (hereafter referred to as “members”) (including members on active duty, members of the Reserve Components not on active duty, members of the National Guard even when in a non-Federal status, and retired members) to carry out the obligations of citizenship. In keeping with the traditional concept that members on active duty should not engage in partisan political activity, and that members not on active duty should avoid inferences that their political activities imply or appear to imply official sponsorship, approval, or endorsement, the following policy shall apply:
4.1. General
4.1.1. A member of the Armed Forces on active duty may:
4.1.1.1. Register, vote, and express a personal opinion on political candidates and issues, but not as a representative of the Armed Forces.
4.1.1.2. Promote and encourage others to exercise their voting franchise, if such promotion does not constitute use of their official authority or influence to interfere with the outcome of any election.
4.1.1.3. Join a partisan or nonpartisan political club and attend its meetings when not in uniform, subject to the restrictions of subparagraph 4.1.2.4. (See DoD Instruction 1334.1 (Reference (c).)
4.1.1.4. Serve as an election official, if such service is not as a representative of a partisan political party, does not interfere with the performance of military duties, is performed when not in uniform, and the Secretary concerned has given prior approval. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.1.1.5. Sign a petition for a specific legislative action or a petition to place a candidate’s name on an official election ballot, if the signing does not obligate the member to engage in partisan political activity and is done as a private citizen and not as a representative of the Armed Forces.
4.1.1.6. Write a letter to the editor of a newspaper expressing the member’s personal views on public issues or political candidates, if such action is not part of an organized letter- writing campaign or a solicitation of votes for or against a political party or partisan political cause or candidate. If the letter identifies the member as on active duty (or if the member is otherwise reasonably identifiable as a member of the Armed Forces), the letter should clearly state that the views expressed are those of the individual only and not those of the Department of Defense (or Department of Homeland Security for members of the Coast Guard).
4.1.1.7. Make monetary contributions to a political organization, party, or committee favoring a particular candidate or slate of candidates, subject to the limitations under section 441a of title 2, United States Code (U.S.C.) (Reference (d)); section 607 of title 18, U.S.C. (Reference (e)); and other applicable law.
4.1.1.8. Display a political bumper sticker on the member’s private vehicle.
4.1.1.9. Attend partisan and nonpartisan political fundraising activities, meetings, rallies, debates, conventions, or activities as a spectator when not in uniform and when no inference or appearance of official sponsorship, approval, or endorsement can reasonably be drawn.
4.1.1.10. Participate fully in the Federal Voting Assistance Program.
4.1.2. A member of the Armed Forces on active duty shall not:
4.1.2.1. Participate in partisan political fundraising activities (except as permitted in subparagraph 4.1.1.7.), rallies, conventions (including making speeches in the course thereof), management of campaigns, or debates, either on one’s own behalf or on that of another, without respect to uniform or inference or appearance of official sponsorship, approval, or endorsement. Participation includes more than mere attendance as a spectator. (See subparagraph 4.1.1.9.)
4.1.2.2. Use official authority or influence to interfere with an election, affect the course or outcome of an election, solicit votes for a particular candidate or issue, or require or solicit political contributions from others.
4.1.2.3. Allow or cause to be published partisan political articles, letters, or endorsements signed or written by the member that solicits votes for or against a partisan political party, candidate, or cause. This is distinguished from a letter to the editor as permitted under the conditions noted in subparagraph 4.1.1.6.
4.1.2.4. Serve in any official capacity with or be listed as a sponsor of a partisan political club.
4.1.2.5. Speak before a partisan political gathering, including any gathering that promotes a partisan political party, candidate, or cause.
4.1.2.6. Participate in any radio, television, or other program or group discussion as an advocate for or against a partisan political party, candidate, or cause.
4.1.2.7. Conduct a political opinion survey under the auspices of a partisan political club or group or distribute partisan political literature.
4.1.2.8. Perform clerical or other duties for a partisan political committee or candidate during a campaign, on an election day, or after an election day during the process of closing out a campaign.
4.1.2.9. Solicit or otherwise engage in fundraising activities in Federal offices or facilities, including military reservations, for any political cause or candidate.
4.1.2.10. March or ride in a partisan political parade.
4.1.2.11. Display a large political sign, banner, or poster (as distinguished from a bumper sticker) on a private vehicle.
4.1.2.12. Display a partisan political sign, poster, banner, or similar device visible to the public at one’s residence on a military installation, even if that residence is part of a privatized housing development.
4.1.2.13. Participate in any organized effort to provide voters with transportation to the polls if the effort is organized by or associated with a partisan political party, cause, or candidate.
4.1.2.14. Sell tickets for or otherwise actively promote partisan political dinners and similar fundraising events.
4.1.2.15. Attend partisan political events as an official representative of the Armed Forces, except as a member of a joint Armed Forces color guard at the opening ceremonies of the national conventions of the Republican, Democratic, or other political parties recognized by the Federal Elections Committee or as otherwise authorized by the Secretary concerned.
4.1.2.16. Make a campaign contribution to, or receive or solicit (on one’s own behalf) a campaign contribution from, any other member of the Armed Forces on active duty. Any contributions not prohibited by this subparagraph remain subject to the gift provisions of sections 2635.301-2635.304 of title 5, Code of Federal Regulations (Reference (f)). See subparagraph 4.1.2.1. for general prohibitions on partisan fundraising activity.
4.1.3. Commissioned officers shall not use contemptuous words as prohibited by section
888 of Reference (b) or participate in activities proscribed by DoD Directives 5200.2 and 1325.6 (References (g) and (h), respectively).
4.1.4. Subject to any other restrictions in law, a member of the Armed Forces not on active duty may take the actions or participate in the activities permitted in subparagraph 4.1.1., and may take the actions and participate in the activities prohibited in subparagraph 4.1.2, provided the member is not in uniform and does not otherwise act in a manner that could reasonably give rise to the inference or appearance of official sponsorship, approval, or endorsement.
4.1.5. Activities not expressly prohibited may be contrary to the spirit and intent of this Directive. Any activity that may be reasonably viewed as directly or indirectly associating the Department of Defense or the Department of Homeland Security (in the case of the Coast Guard) or any component of these Departments with a partisan political activity or is otherwise contrary to the spirit and intention of this Directive shall be avoided.
4.2. Nomination or Candidacy for Civil Office in the U.S. Government or State or Other Non-U.S. Government Offices
4.2.1. Paragraph 4.2. applies to:
4.2.1.1. A civil office in the U.S. Government that:
4.2.1.1.1. Is an elective office;
4.2.1.1.2. Requires an appointment by the President; or
4.2.1.1.3. Is a position on the executive schedule under sections 5312-5317 of title 5, U.S.C. (Reference (i)).
4.2.1.2. A civil office in a State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.2.2. A regular member, or a retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days, may not be a nominee or candidate for the offices described in subparagraph 4.2.1., except when the Secretary concerned grants permission.
4.2.2.1. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.2.2.2. Such permission shall not authorize activity while on active duty that is otherwise prohibited by other provisions of law or this Directive.
4.2.2.3. Such permission is required regardless of whether evidence of nomination or candidacy for civil office is filed prior to commencing active duty service or whether the member is an incumbent.
4.2.2.4. If a member covered by the prohibition in subparagraph 4.2.2. becomes a nominee or candidate for civil office prior to commencing active duty, then the member must request permission in writing and submit the request to the Secretary concerned before entering active duty. The member must understand that if the Secretary concerned does not grant permission, then the member must immediately decline the nomination or withdraw as a candidate.
4.2.3. A retired regular member or Reserve Component member on active duty under a call or order to active duty for 270 days or fewer may remain or become a nominee or candidate for the offices set out in subparagraph 4.2.1. provided there is no interference with the performance of military duty.
4.2.4. Notwithstanding any other provision of this Instruction:
4.2.4.1. Any enlisted member on active duty may seek, hold, and exercise the functions of a nonpartisan civil office as a notary public or member of a school board, neighborhood planning commission, or similar local agency, provided that the office is held in a non-military capacity and there is no interference with the performance of military duties.
4.2.4.2. Any warrant or commissioned officer on active duty may seek, hold, and exercise the functions of a nonpartisan civil office on an independent school board that is located exclusively on a military reservation, provided that the office is held in a non-military capacity and there is no interference with the performance of military duties.
4.3. Additional Limitations on Nomination or Candidacy and Campaigning
4.3.1. Members not on active duty who are nominees or candidates for the offices described in subparagraph 4.2.1. may, in their campaign literature (including Web sites, videos, television, and conventional print advertisements):
4.3.1.1. Use or mention, or permit the use or mention of, their military rank or grade and military service affiliation; BUT they must clearly indicate their retired or reserve status.
4.3.1.2. Include or permit the inclusion of their current or former specific military duty, title, or position, or photographs in military uniform, when displayed with other non- military biographical details. Any such military information must be accompanied by a prominent and clearly displayed disclaimer that neither the military information nor photographs imply endorsement by the Department of Defense or their particular Military Department (or the Department of Homeland Security for members of the Coast Guard); e.g., “John Doe is a member of the Army National Guard. Use of his military rank, job titles, and photographs in uniform does not imply endorsement by the Department of the Army or the Department of Defense.”
4.3.2. Members included in subparagraph 4.3.1. may NOT, in campaign literature (including Web sites, videos, television, and conventional print advertisements):
4.3.2.1. Use or allow the use of photographs, drawings, and other similar media formats of themselves in uniform as the primary graphic representation in any campaign media, such as a billboard, brochure, flyer, Web site, or television commercial. For the purposes of this policy, “photographs” include video images, drawings, and all other similar formats of representational media.
4.3.2.2. Depict or allow the depiction of themselves in uniform in a manner that does not accurately reflect their actual performance of duty. For the purpose of this policy, “photographs” include video images, drawings, and all other similar formats of representational media.
4.3.3. Any member on active duty who is permitted to be, or otherwise not prohibited from being, a nominee or candidate for office as described in subparagraph 4.2.1. may NOT participate in any campaign activities. This includes open and active campaigning and all behind-the-scene activities. For example, such members described in this paragraph who are candidates or nominees may not:
4.3.3.1. Direct, control, manage, or otherwise participate in their campaign, including behind-the-scene activities.
4.3.3.2. Make statements to or answer questions from the news media regarding political issues or regarding government policies or activities unless specifically authorized to do so by an appropriate supervisor or commander.
4.3.3.3. Publish or allow to be published partisan political articles, literature, or documents that they have signed, written, or approved that solicit votes for or against a partisan political party, candidate, issue, or cause.
4.3.4. Those members included in subparagraph 4.3.3. who are nominees or candidates
for office must:
4.3.4.1. Take affirmative, documented efforts to inform those who work for them and
those whom they control that they (the nominees or candidates) may not direct, control, manage, or otherwise participate in campaign activities on their own behalf.
4.3.4.2. Take all reasonable efforts to prevent current or anticipated advertisements that they (the nominees or candidates) control from being publicly displayed or running in any media. This includes Web sites devoted to the nomination or candidacy. Web sites created before entry on active duty may not be updated or revised and may be ordered shut down as the Secretary concerned may direct.
4.3.5. Those who require permission to be nominees or candidates under the provisions of subparagraph 4.2.2., or who are on active duty and are not otherwise prohibited from being a nominee or a candidate under the provisions of subparagraph 4.2.3., must complete the acknowledgment of limitations at Enclosure 4. Those who require permission must complete the acknowledgment before permission may be granted. Those who do not require permission must complete the acknowledgment within 15 days of becoming a nominee or candidate or within 15 days of entry on active duty if already a nominee or candidate. The acknowledgment must be forwarded through the nominee’s or candidate’s immediate supervisor to the first general officer in the chain of command.
4.4. Holding and Exercising the Functions of a U.S. Government Civil Office Attained by Election or Appointment
4.4.1. Paragraph 4.4. applies to a civil office in the U.S. Government that:
4.4.1.1. Is an elective office;
4.4.1.2. Requires an appointment by the President; or
4.4.1.3. Is in a position on the executive schedule under sections 5312-5317 of Reference (i).
4.4.2. A regular member, or retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days, may not hold or exercise the functions of civil office set out in subparagraph 4.4.1. unless otherwise authorized in paragraph 4.4. or by law.
4.4.3. A retired regular member, or a Reserve Component member on active duty under a call or order to active duty for 270 days or fewer, may hold and exercise the functions of a civil office provided there is no interference with the performance of military duty.
4.4.4. A member on active duty may hold and exercise the functions of a civil office under paragraph 4.4. when assigned or detailed (while on active duty) to such office to perform such functions, provided the assignment or detail does not interfere with military duties.
4.4.5. Any member on active duty authorized to hold or exercise or not prohibited from holding or exercising the functions of office under paragraph 4.4. are still subject to the prohibitions of subparagraph 4.1.2.
4.5. Holding and Exercising the Functions of a State or Other Non-U.S. Government Office Attained by Election or Appointment
4.5.1. Paragraph 4.5. applies to a civil office in a State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.5.2. A regular member may not hold or exercise the functions of civil office unless otherwise authorized in paragraph 4.5. or by law.
4.5.3. A retired regular or Reserve Component member on active duty under a call or order to active duty for more than 270 days may hold─but shall NOT exercise─the functions of a civil office as set out in subparagraph 4.5.1., as long as:
4.5.3.1. The holding of such office is not prohibited under the laws of the State; the District of Columbia; a territory, possession, or commonwealth of the United States; or any political subdivision thereof.
4.5.3.2. The Secretary concerned grants permission after determining that holding such office does not interfere with the performance of military duties. The Secretary concerned may NOT delegate the authority to grant or deny such permission.
4.5.4. A retired regular or Reserve Component member on active duty under a call or order to active duty for 270 days or fewer may hold and exercise the functions of civil office provided there is no interference with the performance of military duties.
4.5.5. Any member on active duty authorized to hold or exercise, or not prohibited from holding or exercising, the functions of office under paragraph 4.5. are still subject to the prohibitions of subparagraph 4.1.2.
4.6. Actions When Prohibitions Apply
4.6.1. Members affected by the prohibitions against being a nominee or candidate or holding or exercising the functions of a civil office may request retirement (if eligible), discharge, or release from active duty. The Secretary concerned may approve these requests, consistent with the needs of the Service, unless the member is:
4.6.1.1. Obligated to fulfill an active duty service commitment.
4.6.1.2. Serving or has been issued orders to serve afloat or in an area that is overseas, remote, a combat zone, or a hostile pay fire area.
4.6.1.3. Ordered to remain on active duty while the subject of an investigation or inquiry.
4.6.1.4. Accused of an offense under Chapter 47 of Reference (b) or serving a sentence or punishment for such an offense.
4.6.1.5. Pending other administrative separation action or proceedings.
4.6.1.6. Indebted to the United States.
4.6.1.7. In a Reserve Component and serving involuntarily under a call or order to active duty that specifies a period of active duty of more that 270 days during a period of declared war or national emergency; or other period when a unit or individual of the National Guard or other Reserve Component has been involuntarily called or ordered to active duty as authorized by law.
4.6.1.8. In violation of this Directive or an order or regulation prohibiting such member from assuming or exercising the functions of civil office.
4.6.2. Subparagraph 4.6.1. does not preclude a member’s involuntary discharge or release from active duty.
4.6.3. No actions undertaken by a member in carrying out assigned military duties shall be invalidated solely by virtue of such member having been a candidate or nominee for a civil office in violation of the prohibition of paragraph 4.2. or having held or exercised the functions of a civil office in violation of the prohibitions of paragraphs 4.4. or 4.5.
4.6.4. This is a lawful general regulation. Violations of paragraphs 4.1. through 4.5. of this Directive by persons subject to the Uniform Code of Military Justice are punishable under Article 92, “Failure to Obey Order or Regulation,” Chapter 47 of Reference (b).
5. RESPONSIBILITIES
5.1. The Under Secretary of Defense for Personnel and Readiness shall administer this Directive.
5.2. The Secretaries of the Military Departments shall issue appropriate implementing documents for their respective Departments.
6. RELEASABILITY
UNLIMITED. This Directive is approved for public release. Copies may be obtained through the Internet from the DoD Issuances Web Site at http://www.dtic.mil/whs/directives.
7. EFFECTIVE DATE
This Directive is effective immediately.
Enclosures - 4
E1. References, continued
E2. Definitions
E3. Nonpartisan Activities and Other Miscellaneous Guidance
E4. Candidacy or Nomination for Political Office Counseling Statement
10
DoDD 1344.10, February 19, 2008
E1. ENCLOSURE 1
REFERENCES, continued
(e) Section 607 of title 18, United States Code
(f) Sections 2635.301-2635.304 of title 5, Code of Federal Regulations
(g) DoD Directive 5200.2, “DoD Personnel Security Program,” April 9, 1999
(h) DoD Directive 1325.6, “Guidelines for Handling Dissident and Protest Activities Among
Members of the Armed Forces,” October 1, 1996
(i) Sections 5312-5317 of title 5, United States Code
ENCLOSURE 1 11
DoDD 1344.10, February 19, 2008
E2. ENCLOSURE 2
DEFINITIONS
E2.1. Active Duty. Full-time duty in the active military service of the United States regardless of duration or purpose. Active duty includes full-time training duty; annual training duty; and attendance, while in the active military service, at a school designated as a Service school by law or by the Secretary concerned. For purposes of this Directive only, active duty also includes full- time National Guard duty.
E2.2. Call or Order to Active Duty for More Than 270 Days. Any prohibitions or limitations this Directive triggers by a call or order to active duty for more than 270 days begins on the first day of the active duty.
E2.3. Civil Office. A non-military office involving the exercise of the powers or authority of civil government, to include elective and appointed office in the U.S. Government, a U.S. territory or possession, State, county, municipality, or official subdivision thereof. This term does not include a non-elective position as a regular or reserve member of civilian law enforcement, fire, or rescue squad.
E2.4. Nonpartisan Political Activity. Activity supporting or relating to candidates not representing, or issues not specifically identified with, national or State political parties and associated or ancillary organizations or clubs. Issues relating to State constitutional amendments or referendums, approval of municipal ordinances, and others of similar character are not considered under this Instruction as specifically identified with national or State political parties.
E2.5. Partisan Political Activity. Activity supporting or relating to candidates representing, or issues specifically identified with, national or State political parties and associated or ancillary organizations or clubs.
E2.6. Secretary Concerned. See section 101(a)(9) of Reference (b).
ENCLOSURE 2 12
DoDD 1344.10, February 19, 2008
E3. ENCLOSURE 3
NONPARTISAN ACTIVITIES AND OTHER MISCELLANEOUS GUIDANCE
E3.1. LOCAL NONPARTISAN POLITICAL ACTIVITIES
This Directive does not preclude participation in local nonpartisan political campaigns, initiatives, or referendums. A member taking part in local nonpartisan political activity, however, shall not:
E3.1.1. Wear a uniform or use any Government property or facilities while participating.
E3.1.2. Allow such participation to interfere with or prejudice the member’s performance of military duties.
E3.1.3. Engage in conduct that in any way may reasonably imply that the Military Department concerned or any component of such Department has taken an official position on, or is otherwise involved in, the local political campaign or issue.
E3.2. ADDITIONAL REQUIREMENTS
Members of the Armed Forces on active duty engaging in permissible political activities shall:
E3.2.1. Give full time and attention to the performance of military duties during prescribed duty hours.
E3.2.2. Avoid any outside activities that may be prejudicial to the performance of military duties or likely to bring discredit upon the Armed Forces.
E3.2.3. Refrain from participating in any political activity while in military uniform, as proscribed by Reference (c), or using Government facilities or resources for furthering political activities.
ENCLOSURE 3 13
DoDD 1344.10, February 19, 2008
E4. ENCLOSURE 4
CANDIDACY OR NOMINATION FOR POLITICAL OFFICE
ACKNOWLEDGMENT OF LIMITATIONS
[To be prepared by any member on active duty (or who is about to enter active duty) who is:
Alternate A: Granted permission to remain or to become a candidate or nominee for civil office, (subparagraph 4.2.2.); or Alternate B: Not otherwise prohibited from remaining or becoming a candidate or nominee for civil office (subparagraph 4.2.3.). (Prepare as a letter or memorandum, signed by the member and addressed through the member’s immediate supervisor (if known) to the first general or flag officer in the member’s chain of command.)]
(Date)
[Select the appropriate paragraph 1].
Alternate A (over 270 days)
1. I understand that for me to remain or to become a nominee or a candidate for the civil office of [specifically identify the civil office] while on active duty, I must have the permission of the [name of the Secretary concerned] as required by subparagraph 4.2.2. of DoD Directive (DoDD)
1344.10, “Political Activities by Members of the Armed Forces.” I understand that such permission will be granted sparingly because it runs counter to the traditional concept that Service members on active duty should not engage in partisan political activity. Furthermore, I understand that if I am already a candidate or nominee, I must submit my request for permission from [specifically identify the Secretary concerned] before I enter active duty. If I am already on active duty and wish to become a candidate or nominee, I must receive permission first.
Alternate B (270 days or fewer)
1. I understand that I am authorized to remain or to become a candidate or nominee for the civil office of [specifically identify the civil office] while on active duty. This is authorized by subparagraph 4.2.3. of DoD Directive (DoDD) 1344.10, “Political Activities by Members of the Armed Forces,” because I am under a call or order to active duty for 270 days or fewer. I understand that I may remain a candidate or nominee only as long as my candidacy or nomination does not interfere with the performance of my military duty.
2. I have read and fully understand that DoDD 1344.10, paragraphs 4.2. and 4.3. severely limit my ability to participate as a nominee or candidate in the political process. I specifically understand that if I am granted permission to be a candidate or nominee or am not otherwise prohibited from becoming a candidate or nominee, I may not direct, control, endorse, or otherwise participate in campaign activities on my behalf (including behind-the-scene activities).
Furthermore, I must:
a. Take affirmative, documented efforts to inform those who work for me and those whom I control that I may not direct, control, manage, or otherwise participate in campaign activities on my own behalf.
b. Take all reasonable efforts to prevent current or anticipated advertisements that I control from being publicly displayed or running in any media. This includes Web sites devoted to the nomination or candidacy. Such Web sites created before my entry on active duty must
otherwise comply with subparagraph 4.3.1. and may not be updated or revised while I am on active duty. Furthermore, I understand that the Secretary concerned may direct that the Web site be removed.
3. I have read and understand the prohibitions found in DoDD 1344.10, paragraphs 4.2 and 4.3.
4. I understand that DoDI 1334.1, “Wearing of the Uniform,” prohibits the wearing of a military uniform during or in connection with the furtherance of any political or commercial interests not otherwise prohibited or limited above.
5. Finally, I understand that should I be elected to this civil office while on active duty, I will be subject to the policies concerning holding and exercising the function of civil office also found in DoDD 1344.10.
[Include signature block of nominee or candidate.]
ENCLOSURE 4 15
Yeah, too bad for you libs I am in the IRR now- and as a civilian have First Amendment rights to say whatever I want..
1 (Slip Opinion) OCTOBER TERM, 2007
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BOUMEDIENE ET AL. v. BUSH, PRESIDENT OF THE
UNITED STATES, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 06–1195. Argued December 5, 2007—Decided June 12, 2008*
In the Authorization for Use of Military Force (AUMF), Congress em-
powered the President “to use all necessary and appropriate force
against those . . . he determines planned, authorized, committed, or
aided the terrorist attacks . . . on September 11, 2001.” In Hamdi v.
Rumsfeld, 542 U. S. 507, 518, 588–589, five Justices recognized that
detaining individuals captured while fighting against the United
States in Afghanistan for the duration of that conflict was a funda-
mental and accepted incident to war. Thereafter, the Defense De-
partment established Combatant Status Review Tribunals (CSRTs)
to determine whether individuals detained at the U. S. Naval Station
at Guantanamo Bay, Cuba, were “enemy combatants.”
Petitioners are aliens detained at Guantanamo after being cap-
tured in Afghanistan or elsewhere abroad and designated enemy
combatants by CSRTs. Denying membership in the al Qaeda terror-
ist network that carried out the September 11 attacks and the Tali-
ban regime that supported al Qaeda, each petitioner sought a writ of
habeas corpus in the District Court, which ordered the cases dis-
missed for lack of jurisdiction because Guantanamo is outside sover-
eign U. S. territory. The D. C. Circuit affirmed, but this Court re-
versed, holding that 28 U. S. C. §2241 extended statutory habeas
jurisdiction to Guantanamo. See Rasul v. Bush, 542 U. S. 466, 473.
Petitioners’ cases were then consolidated into two proceedings. In
the first, the district judge granted the Government’s motion to dis-
miss, holding that the detainees had no rights that could be vindi-
——————
*Together with No. 06–1196, Al Odah, Next Friend of Al Odah, et al.
v. United States et al., also on certiorari to the same court.
2 BOUMEDIENE v. BUSH
Syllabus
cated in a habeas action. In the second, the judge held that the de-
tainees had due process rights.
While appeals were pending, Congress passed the Detainee Treat-
ment Act of 2005 (DTA), §1005(e) of which amended 28 U. S. C. §2241
to provide that “no court, justice, or judge shall have jurisdiction to
. . . consider . . . an application for . . . habeas corpus filed by or on
behalf of an alien detained . . . at Guantanamo,” and gave the D. C.
Circuit “exclusive” jurisdiction to review CSRT decisions. In Ham-
dan v. Rumsfeld, 548 U. S. 557, 576–577, the Court held this provi-
sion inapplicable to cases (like petitioners’) pending when the DTA
was enacted. Congress responded with the Military Commissions Act
of 2006 (MCA), §7(a) of which amended §2241(e)(1) to deny jurisdic-
tion with respect to habeas actions by detained aliens determined to
be enemy combatants, while §2241(e)(2) denies jurisdiction as to “any
other action against the United States . . . relating to any aspect of
the detention, transfer, treatment, trial, or conditions of confinement”
of a detained alien determined to be an enemy combatant. MCA
§7(b) provides that the 2241(e) amendments “shall take effect on the
date of the enactment of this Act, and shall apply to all cases, without
exception, pending on or after [that] date . . . which relate to any as-
pect of the detention, transfer, treatment, trial, or conditions of de-
tention of an alien detained . . . since September 11, 2001.”
The D. C. Circuit concluded that MCA §7 must be read to strip
from it, and all federal courts, jurisdiction to consider petitioners’ ha-
beas applications; that petitioners are not entitled to habeas or the
protections of the Suspension Clause, U. S. Const., Art. I, §9, cl. 2,
which provides that “[t]he Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it”; and that it was therefore unneces-
sary to consider whether the DTA provided an adequate and effective
substitute for habeas.
Held:
1. MCA §7 denies the federal courts jurisdiction to hear habeas ac-
tions, like the instant cases, that were pending at the time of its en-
actment. Section §7(b)’s effective date provision undoubtedly applies
to habeas actions, which, by definition, “relate to . . . detention”
within that section’s meaning. Petitioners argue to no avail that
§7(b) does not apply to a §2241(e)(1) habeas action, but only to “any
other action” under §2241(e)(2), because it largely repeats that sec-
tion’s language. The phrase “other action” in §2241(e)(2) cannot be
understood without referring back to §2241(e)(1), which explicitly
mentions the “writ of habeas corpus.” Because the two paragraphs’
structure implies that habeas is a type of action “relating to any as-
3 Cite as: 553 U. S. ____ (2008)
Syllabus
pect of . . . detention,” etc., pending habeas actions are in the category
of cases subject to the statute’s jurisdictional bar. This is confirmed
by the MCA’s legislative history. Thus, if MCA §7 is valid, petition-
ers’ cases must be dismissed. Pp. 5–8.
2. Petitioners have the constitutional privilege of habeas corpus.
They are not barred from seeking the writ or invoking the Suspen-
sion Clause’s protections because they have been designated as en-
emy combatants or because of their presence at Guantanamo. Pp. 8–
41.
(a) A brief account of the writ’s history and origins shows that
protection for the habeas privilege was one of the few safeguards of
liberty specified in a Constitution that, at the outset, had no Bill of
Rights; in the system the Framers conceived, the writ has a central-
ity that must inform proper interpretation of the Suspension Clause.
That the Framers considered the writ a vital instrument for the pro-
tection of individual liberty is evident from the care taken in the Sus-
pension Clause to specify the limited grounds for its suspension: The
writ may be suspended only when public safety requires it in times of
rebellion or invasion. The Clause is designed to protect against cycli-
cal abuses of the writ by the Executive and Legislative Branches. It
protects detainee rights by a means consistent with the Constitu-
tion’s essential design, ensuring that, except during periods of formal
suspension, the Judiciary will have a time-tested device, the writ, to
maintain the “delicate balance of governance.” Hamdi, supra, at 536.
Separation-of-powers principles, and the history that influenced their
design, inform the Clause’s reach and purpose. Pp. 8–15.
(b) A diligent search of founding-era precedents and legal com-
mentaries reveals no certain conclusions. None of the cases the par-
ties cite reveal whether a common-law court would have granted, or
refused to hear for lack of jurisdiction, a habeas petition by a prisoner
deemed an enemy combatant, under a standard like the Defense De-
partment’s in these cases, and when held in a territory, like Guan-
tanamo, over which the Government has total military and civil con-
trol. The evidence as to the writ’s geographic scope at common law is
informative, but, again, not dispositive. Petitioners argue that the
site of their detention is analogous to two territories outside England
to which the common-law writ ran, the exempt jurisdictions and In-
dia, but critical differences between these places and Guantanamo
render these claims unpersuasive. The Government argues that
Guantanamo is more closely analogous to Scotland and Hanover,
where the writ did not run, but it is unclear whether the common-law
courts lacked the power to issue the writ there, or whether they re-
frained from doing so for prudential reasons. The parties’ arguments
that the very lack of a precedent on point supports their respective
4 BOUMEDIENE v. BUSH
Syllabus
positions are premised upon the doubtful assumptions that the his-
torical record is complete and that the common law, if properly un-
derstood, yields a definite answer to the questions before the Court.
Pp. 15–22.
(c) The Suspension Clause has full effect at Guantanamo. The
Government’s argument that the Clause affords petitioners no rights
because the United States does not claim sovereignty over the naval
station is rejected. Pp. 22–42.
(i) The Court does not question the Government’s position that
Cuba maintains sovereignty, in the legal and technical sense, over
Guantanamo, but it does not accept the Government’s premise that
de jure sovereignty is the touchstone of habeas jurisdiction. Com-
mon-law habeas’ history provides scant support for this proposition,
and it is inconsistent with the Court’s precedents and contrary to
fundamental separation-of-powers principles. Pp. 22–25.
(ii) Discussions of the Constitution’s extraterritorial applica-
tion in cases involving provisions other than the Suspension Clause
undermine the Government’s argument. Fundamental questions re-
garding the Constitution’s geographic scope first arose when the Na-
tion acquired Hawaii and the noncontiguous Territories ceded by
Spain after the Spanish-American War, and Congress discontinued
its prior practice of extending constitutional rights to territories by
statute. In the so-called Insular Cases, the Court held that the Con-
stitution had independent force in the territories that was not contin-
gent upon acts of legislative grace. See, e.g., Dorr v. United States,
195 U. S. 138. Yet because of the difficulties and disruption inherent
in transforming the former Spanish colonies’ civil-law system into an
Anglo-American system, the Court adopted the doctrine of territorial
incorporation, under which the Constitution applies in full in incor-
porated Territories surely destined for statehood but only in part in
unincorporated Territories. See, e.g., id., at 143. Practical considera-
tions likewise influenced the Court’s analysis in Reid v. Covert, 354
U. S. 1, where, in applying the jury provisions of the Fifth and Sixth
Amendments to American civilians being tried by the U. S. military
abroad, both the plurality and the concurrences noted the relevance
of practical considerations, related not to the petitioners’ citizenship,
but to the place of their confinement and trial. Finally, in holding
that habeas jurisdiction did not extend to enemy aliens, convicted of
violating the laws of war, who were detained in a German prison dur-
ing the Allied Powers’ post-World War II occupation, the Court, in
Johnson v. Eisentrager, 339 U. S. 763, stressed the practical difficul-
ties of ordering the production of the prisoners, id., at 779. The Gov-
ernment’s reading of Eisentrager as adopting a formalistic test for de-
termining the Suspension Clause’s reach is rejected because: (1) the
5 Cite as: 553 U. S. ____ (2008)
Syllabus
discussion of practical considerations in that case was integral to a
part of the Court’s opinion that came before it announced its holding,
see id., at 781; (2) it mentioned the concept of territorial sovereignty
only twice in its opinion, in contrast to its significant discussion of
practical barriers to the running of the writ; and (3) if the Govern-
ment’s reading were correct, the opinion would have marked not only
a change in, but a complete repudiation of, the Insular Cases’ (and
later Reid’s) functional approach. A constricted reading of Eisen-
trager overlooks what the Court sees as a common thread uniting all
these cases: The idea that extraterritoriality questions turn on objec-
tive factors and practical concerns, not formalism. Pp. 25–34.
(iii) The Government’s sovereignty-based test raises troubling
separation-of-powers concerns, which are illustrated by Guan-
tanamo’s political history. Although the United States has main-
tained complete and uninterrupted control of Guantanamo for over
100 years, the Government’s view is that the Constitution has no ef-
fect there, at least as to noncitizens, because the United States dis-
claimed formal sovereignty in its 1903 lease with Cuba. The Nation’s
basic charter cannot be contracted away like this. The Constitution
grants Congress and the President the power to acquire, dispose of,
and govern territory, not the power to decide when and where its
terms apply. To hold that the political branches may switch the Con-
stitution on or off at will would lead to a regime in which they, not
this Court, say “what the law is.” Marbury v. Madison, 1 Cranch
137, 177. These concerns have particular bearing upon the Suspen-
sion Clause question here, for the habeas writ is itself an indispensa-
ble mechanism for monitoring the separation of powers. Pp. 34–36.
(iv) Based on Eisentrager, supra, at 777, and the Court’s rea-
soning in its other extraterritoriality opinions, at least three factors
are relevant in determining the Suspension Clause’s reach: (1) the
detainees’ citizenship and status and the adequacy of the process
through which that status was determined; (2) the nature of the sites
where apprehension and then detention took place; and (3) the prac-
tical obstacles inherent in resolving the prisoner’s entitlement to the
writ. Application of this framework reveals, first, that petitioners’
status is in dispute: They are not American citizens, but deny they
are enemy combatants; and although they have been afforded some
process in CSRT proceedings, there has been no Eisentrager–style
trial by military commission for violations of the laws of war. Second,
while the sites of petitioners’ apprehension and detention weigh
against finding they have Suspension Clause rights, there are critical
differences between Eisentrager’s German prison, circa 1950, and the
Guantanamo Naval Station in 2008, given the Government’s absolute
and indefinite control over the naval station. Third, although the
6 BOUMEDIENE v. BUSH
Syllabus
Court is sensitive to the financial and administrative costs of holding
the Suspension Clause applicable in a case of military detention
abroad, these factors are not dispositive because the Government
presents no credible arguments that the military mission at Guan-
tanamo would be compromised if habeas courts had jurisdiction. The
situation in Eisentrager was far different, given the historical context
and nature of the military’s mission in post-War Germany. Pp. 36–
41.
(d) Petitioners are therefore entitled to the habeas privilege, and
if that privilege is to be denied them, Congress must act in accor-
dance with the Suspension Clause’s requirements. Cf. Rasul, 542
U. S., at 564. Pp. 41–42.
3. Because the DTA’s procedures for reviewing detainees’ status
are not an adequate and effective substitute for the habeas writ,
MCA §7 operates as an unconstitutional suspension of the writ. Pp.
42–64.
(a) Given its holding that the writ does not run to petitioners, the
D. C. Circuit found it unnecessary to consider whether there was an
adequate substitute for habeas. This Court usually remands for con-
sideration of questions not decided below, but departure from this
rule is appropriate in “exceptional” circumstances, see, e.g., Cooper
Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 169, here, the
grave separation-of-powers issues raised by these cases and the fact
that petitioners have been denied meaningful access to a judicial fo-
rum for years. Pp. 42–44.
(b) Historically, Congress has taken care to avoid suspensions of
the writ. For example, the statutes at issue in the Court’s two lead-
ing cases addressing habeas substitutes, Swain v. Pressley, 430 U. S.
372, and United States v. Hayman, 342 U. S. 205, were attempts to
streamline habeas relief, not to cut it back. Those cases provide little
guidance here because, inter alia, the statutes in question gave the
courts broad remedial powers to secure the historic office of the writ,
and included saving clauses to preserve habeas review as an avenue
of last resort. In contrast, Congress intended the DTA and the MCA
to circumscribe habeas review, as is evident from the unequivocal na-
ture of MCA §7’s jurisdiction-stripping language, from the DTA’s text
limiting the Court of Appeals’ jurisdiction to assessing whether the
CSRT complied with the “standards and procedures specified by the
Secretary of Defense,” DTA §1005(e)(2)(C), and from the absence of a
saving clause in either Act. That Congress intended to create a more
limited procedure is also confirmed by the legislative history and by a
comparison of the DTA and the habeas statute that would govern in
MCA §7’s absence, 28 U. S. C. §2241. In §2241, Congress authorized
“any justice” or “circuit judge” to issue the writ, thereby accommodat-
7 Cite as: 553 U. S. ____ (2008)
Syllabus
ing the necessity for factfinding that will arise in some cases by al-
lowing the appellate judge or Justice to transfer the case to a district
court. See §2241(b). However, by granting the D. C. Circuit “exclu-
sive” jurisdiction over petitioners’ cases, see DTA §1005(e)(2)(A),
Congress has foreclosed that option in these cases. Pp. 44–49.
(c) This Court does not endeavor to offer a comprehensive sum-
mary of the requisites for an adequate habeas substitute. It is un-
controversial, however, that the habeas privilege entitles the prisoner
to a meaningful opportunity to demonstrate that he is being held pur-
suant to “the erroneous application or interpretation” of relevant law,
INS v. St. Cyr, 533 U. S. 289, 302, and the habeas court must have
the power to order the conditional release of an individual unlawfully
detained. But more may be required depending on the circum-
stances. Petitioners identify what they see as myriad deficiencies in
the CSRTs, the most relevant being the constraints upon the de-
tainee’s ability to rebut the factual basis for the Government’s asser-
tion that he is an enemy combatant. At the CSRT stage the detainee
has limited means to find or present evidence to challenge the Gov-
ernment’s case, does not have the assistance of counsel, and may not
be aware of the most critical allegations that the Government relied
upon to order his detention. His opportunity to confront witnesses is
likely to be more theoretical than real, given that there are no limits
on the admission of hearsay. The Court therefore agrees with peti-
tioners that there is considerable risk of error in the tribunal’s find-
ings of fact. And given that the consequence of error may be deten-
tion for the duration of hostilities that may last a generation or more,
the risk is too significant to ignore. Accordingly, for the habeas writ,
or its substitute, to function as an effective and meaningful remedy in
this context, the court conducting the collateral proceeding must have
some ability to correct any errors, to assess the sufficiency of the
Government’s evidence, and to admit and consider relevant exculpa-
tory evidence that was not introduced during the earlier proceeding.
In re Yamashita, 327 U. S. 1, 5, 8, and Ex parte Quirin, 317 U. S. 1,
23–25, distinguished. Pp. 49–57.
(d) Petitioners have met their burden of establishing that the
DTA review process is, on its face, an inadequate substitute for ha-
beas. Among the constitutional infirmities from which the DTA po-
tentially suffers are the absence of provisions allowing petitioners to
challenge the President’s authority under the AUMF to detain them
indefinitely, to contest the CSRT’s findings of fact, to supplement the
record on review with exculpatory evidence discovered after the
CSRT proceedings, and to request release. The statute cannot be
read to contain each of these constitutionally required procedures.
MCA §7 thus effects an unconstitutional suspension of the writ.
8 BOUMEDIENE v. BUSH
Syllabus
There is no jurisdictional bar to the District Court’s entertaining pe-
titioners’ claims. Pp. 57–64.
4. Nor are there prudential barriers to habeas review. Pp. 64–70.
(a) Petitioners need not seek review of their CSRT determina-
tions in the D. C. Circuit before proceeding with their habeas actions
in the District Court. If these cases involved detainees held for only a
short time while awaiting their CSRT determinations, or were it
probable that the Court of Appeals could complete a prompt review of
their applications, the case for requiring temporary abstention or ex-
haustion of alternative remedies would be much stronger. But these
qualifications no longer pertain here. In some instances six years
have elapsed without the judicial oversight that habeas corpus or an
adequate substitute demands. To require these detainees to pursue
the limited structure of DTA review before proceeding with habeas
actions would be to require additional months, if not years, of delay.
This holding should not be read to imply that a habeas court should
intervene the moment an enemy combatant steps foot in a territory
where the writ runs. Except in cases of undue delay, such as the pre-
sent, federal courts should refrain from entertaining an enemy com-
batant’s habeas petition at least until after the CSRT has had a
chance to review his status. Pp. 64–67.
(b) In effectuating today’s holding, certain accommodations—
including channeling future cases to a single district court and re-
quiring that court to use its discretion to accommodate to the greatest
extent possible the Government’s legitimate interest in protecting
sources and intelligence gathering methods—should be made to re-
duce the burden habeas proceedings will place on the military, with-
out impermissibly diluting the writ’s protections. Pp. 67–68.
5. In considering both the procedural and substantive standards
used to impose detention to prevent acts of terrorism, the courts must
accord proper deference to the political branches. However, security
subsists, too, in fidelity to freedom’s first principles, chief among
them being freedom from arbitrary and unlawful restraint and the
personal liberty that is secured by adherence to the separation of
powers. Pp. 68–70.
476 F. 3d 981, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which STEVENS,
SOUTER, GINSBURG, and BREYER, JJ., joined. SOUTER, J., filed a concur-
ring opinion, in which GINSBURG and BREYER, JJ., joined. ROBERTS,
C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO,
JJ., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS,
C. J., and THOMAS and ALITO, JJ., joined.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
JUSTICE KENNEDY delivered the opinion of the Court.
Petitioners are aliens designated as enemy combatants
and detained at the United States Naval Station at Guan
tanamo Bay, Cuba. There are others detained there, also
aliens, who are not parties to this suit.
Petitioners present a question not resolved by our ear
lier cases relating to the detention of aliens at Guan
tanamo: whether they have the constitutional privilege of
habeas corpus, a privilege not to be withdrawn except in
conformance with the Suspension Clause, Art. I, §9, cl. 2.
We hold these petitioners do have the habeas corpus
privilege. Congress has enacted a statute, the Detainee
Treatment Act of 2005 (DTA), 119 Stat. 2739, that pro
2 BOUMEDIENE v. BUSH
Opinion of the Court
vides certain procedures for review of the detainees’
status. We hold that those procedures are not an ade
quate and effective substitute for habeas corpus. There
fore §7 of the Military Commissions Act of 2006 (MCA), 28
U. S. C. A. §2241(e) (Supp. 2007), operates as an unconsti
tutional suspension of the writ. We do not address
whether the President has authority to detain these peti
tioners nor do we hold that the writ must issue. These
and other questions regarding the legality of the detention
are to be resolved in the first instance by the District
Court.
I
Under the Authorization for Use of Military Force
(AUMF), §2(a), 115 Stat. 224, note following 50 U. S. C.
§1541 (2000 ed., Supp. V), the President is authorized “to
use all necessary and appropriate force against those
nations, organizations, or persons he determines planned,
authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001, or harbored such organi
zations or persons, in order to prevent any future acts of
international terrorism against the United States by such
nations, organizations or persons.”
In Hamdi v. Rumsfeld, 542 U. S. 507 (2004), five Mem
bers of the Court recognized that detention of individuals
who fought against the United States in Afghanistan “for
the duration of the particular conflict in which they were
captured, is so fundamental and accepted an incident to
war as to be an exercise of the ‘necessary and appropriate
force’ Congress has authorized the President to use.” Id.,
at 518 (plurality opinion of O’Connor, J.), id., at 588–589
(THOMAS, J., dissenting). After Hamdi, the Deputy Secre
tary of Defense established Combatant Status Review
Tribunals (CSRTs) to determine whether individuals
detained at Guantanamo were “enemy combatants,” as the
Department defines that term. See App. to Pet. for Cert.
3 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
in No. 06–1195, p. 81a. A later memorandum established
procedures to implement the CSRTs. See App. to Pet. for
Cert. in No. 06–1196, p. 147. The Government maintains
these procedures were designed to comply with the due
process requirements identified by the plurality in Hamdi.
See Brief for Respondents 10.
Interpreting the AUMF, the Department of Defense
ordered the detention of these petitioners, and they were
transferred to Guantanamo. Some of these individuals
were apprehended on the battlefield in Afghanistan, oth
ers in places as far away from there as Bosnia and Gam
bia. All are foreign nationals, but none is a citizen of a
nation now at war with the United States. Each denies he
is a member of the al Qaeda terrorist network that carried
out the September 11 attacks or of the Taliban regime
that provided sanctuary for al Qaeda. Each petitioner
appeared before a separate CSRT; was determined to be
an enemy combatant; and has sought a writ of habeas
corpus in the United States District Court for the District
of Columbia.
The first actions commenced in February 2002. The
District Court ordered the cases dismissed for lack of
jurisdiction because the naval station is outside the sover
eign territory of the United States. See Rasul v. Bush, 215
F. Supp. 2d 55 (2002). The Court of Appeals for the Dis
trict of Columbia Circuit affirmed. See Al Odah v. United
States, 321 F. 3d 1134, 1145 (2003). We granted certiorari
and reversed, holding that 28 U. S. C. §2241 extended
statutory habeas corpus jurisdiction to Guantanamo. See
Rasul v. Bush, 542 U. S. 466, 473 (2004). The constitu
tional issue presented in the instant cases was not reached
in Rasul. Id., at 476.
After Rasul, petitioners’ cases were consolidated and
entertained in two separate proceedings. In the first set of
cases, Judge Richard J. Leon granted the Government’s
motion to dismiss, holding that the detainees had no
4 BOUMEDIENE v. BUSH
Opinion of the Court
rights that could be vindicated in a habeas corpus action.
In the second set of cases Judge Joyce Hens Green reached
the opposite conclusion, holding the detainees had rights
under the Due Process Clause of the Fifth Amendment.
See Khalid v. Bush, 355 F. Supp. 2d 311, 314 (DC 2005);
In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443,
464 (DC 2005).
While appeals were pending from the District Court
decisions, Congress passed the DTA. Subsection (e) of
§1005 of the DTA amended 28 U. S. C. §2241 to provide
that “no court, justice, or judge shall have jurisdiction to
hear or consider . . . an application for a writ of habeas
corpus filed by or on behalf of an alien detained by the
Department of Defense at Guantanamo Bay, Cuba.” 119
Stat. 2742. Section 1005 further provides that the Court
of Appeals for the District of Columbia Circuit shall have
“exclusive” jurisdiction to review decisions of the CSRTs.
Ibid.
In Hamdan v. Rumsfeld, 548 U. S. 557, 576–577 (2006),
the Court held this provision did not apply to cases (like
petitioners’) pending when the DTA was enacted. Con
gress responded by passing the MCA, 10 U. S. C. A. §948a
et seq. (Supp. 2007), which again amended §2241. The
text of the statutory amendment is discussed below. See
Part II, infra. (Four Members of the Hamdan majority
noted that “[n]othing prevent[ed] the President from
returning to Congress to seek the authority he believes
necessary.” 548 U. S., at 636 (BREYER, J., concurring).
The authority to which the concurring opinion referred
was the authority to “create military commissions of the
kind at issue” in the case. Ibid. Nothing in that opinion
can be construed as an invitation for Congress to suspend
the writ.)
Petitioners’ cases were consolidated on appeal, and the
parties filed supplemental briefs in light of our decision in
Hamdan. The Court of Appeals’ ruling, 476 F. 3d 981
5 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
(CADC 2007), is the subject of our present review and
today’s decision.
The Court of Appeals concluded that MCA §7 must be
read to strip from it, and all federal courts, jurisdiction to
consider petitioners’ habeas corpus applications, id., at
987; that petitioners are not entitled to the privilege of the
writ or the protections of the Suspension Clause, id., at
990–991; and, as a result, that it was unnecessary to
consider whether Congress provided an adequate and
effective substitute for habeas corpus in the DTA.
We granted certiorari. 551 U. S. ___ (2007).
II
As a threshold matter, we must decide whether MCA §7
denies the federal courts jurisdiction to hear habeas cor
pus actions pending at the time of its enactment. We hold
the statute does deny that jurisdiction, so that, if the
statute is valid, petitioners’ cases must be dismissed.
As amended by the terms of the MCA, 28 U. S. C. A.
§2241(e) (Supp. 2007) now provides:
“(1) No court, justice, or judge shall have jurisdic
tion to hear or consider an application for a writ of
habeas corpus filed by or on behalf of an alien de
tained by the United States who has been deter
mined by the United States to have been properly de
tained as an enemy combatant or is awaiting such
determination.
“(2) Except as provided in [§§1005(e)(2) and (e)(3)
of the DTA] no court, justice, or judge shall have ju
risdiction to hear or consider any other action
against the United States or its agents relating to
any aspect of the detention, transfer, treatment,
trial, or conditions of confinement of an alien who is
or was detained by the United States and has been
determined by the United States to have been prop
erly detained as an enemy combatant or is awaiting
6 BOUMEDIENE v. BUSH
Opinion of the Court
such determination.”
Section 7(b) of the MCA provides the effective date for
the amendment of §2241(e). It states:
“The amendment made by [MCA §7(a)] shall take ef
fect on the date of the enactment of this Act, and shall
apply to all cases, without exception, pending on or af
ter the date of the enactment of this Act which relate
to any aspect of the detention, transfer, treatment,
trial, or conditions of detention of an alien detained by
the United States since September 11, 2001.” 120
Stat. 2636.
There is little doubt that the effective date provision
applies to habeas corpus actions. Those actions, by defini
tion, are cases “which relate to . . . detention.” See Black’s
Law Dictionary 728 (8th ed. 2004) (defining habeas corpus
as “[a] writ employed to bring a person before a court,
most frequently to ensure that the party’s imprisonment
or detention is not illegal”). Petitioners argue, neverthe
less, that MCA §7(b) is not a sufficiently clear statement of
congressional intent to strip the federal courts of jurisdic
tion in pending cases. See Ex parte Yerger, 8 Wall. 85,
102–103 (1869). We disagree.
Their argument is as follows: Section 2241(e)(1) refers to
“a writ of habeas corpus.” The next paragraph,
§2241(e)(2), refers to “any other action . . . relating to any
aspect of the detention, transfer, treatment, trial, or condi
tions of confinement of an alien who . . . [has] been prop
erly detained as an enemy combatant or is awaiting such
determination.” There are two separate paragraphs, the
argument continues, so there must be two distinct classes
of cases. And the effective date subsection, MCA §7(b), it
is said, refers only to the second class of cases, for it
largely repeats the language of §2241(e)(2) by referring to
“cases . . . which relate to any aspect of the detention,
transfer, treatment, trial, or conditions of detention of an
7 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
alien detained by the United States.”
Petitioners’ textual argument would have more force
were it not for the phrase “other action” in §2241(e)(2).
The phrase cannot be understood without referring back
to the paragraph that precedes it, §2241(e)(1), which
explicitly mentions the term “writ of habeas corpus.” The
structure of the two paragraphs implies that habeas ac
tions are a type of action “relating to any aspect of the
detention, transfer, treatment, trial, or conditions of con
finement of an alien who is or was detained . . . as an
enemy combatant.” Pending habeas actions, then, are in
the category of cases subject to the statute’s jurisdictional
bar.
We acknowledge, moreover, the litigation history that
prompted Congress to enact the MCA. In Hamdan the
Court found it unnecessary to address the petitioner’s
Suspension Clause arguments but noted the relevance of
the clear statement rule in deciding whether Congress
intended to reach pending habeas corpus cases. See 548
U. S., at 575 (Congress should “not be presumed to have
effected such denial [of habeas relief] absent an unmis
takably clear statement to the contrary”). This interpre
tive rule facilitates a dialogue between Congress and the
Court. Cf. Hilton v. South Carolina Public Railways
Comm’n, 502 U. S. 197, 206 (1991); H. Hart & A. Sacks,
The Legal Process: Basic Problems in the Making and
Application of Law 1209–1210 (W. Eskridge & P. Frickey
eds. 1994). If the Court invokes a clear statement rule to
advise that certain statutory interpretations are favored
in order to avoid constitutional difficulties, Congress can
make an informed legislative choice either to amend the
statute or to retain its existing text. If Congress amends,
its intent must be respected even if a difficult constitu
tional question is presented. The usual presumption is
that Members of Congress, in accord with their oath of
office, considered the constitutional issue and determined
8 BOUMEDIENE v. BUSH
Opinion of the Court
the amended statute to be a lawful one; and the Judiciary,
in light of that determination, proceeds to its own inde
pendent judgment on the constitutional question when
required to do so in a proper case.
If this ongoing dialogue between and among the
branches of Government is to be respected, we cannot
ignore that the MCA was a direct response to Hamdan’s
holding that the DTA’s jurisdiction-stripping provision
had no application to pending cases. The Court of Appeals
was correct to take note of the legislative history when
construing the statute, see 476 F. 3d, at 986, n. 2 (citing
relevant floor statements); and we agree with its conclu
sion that the MCA deprives the federal courts of jurisdic
tion to entertain the habeas corpus actions now before us.
III
In deciding the constitutional questions now presented
we must determine whether petitioners are barred from
seeking the writ or invoking the protections of the Suspen
sion Clause either because of their status, i.e., petitioners’
designation by the Executive Branch as enemy combat
ants, or their physical location, i.e., their presence at
Guantanamo Bay. The Government contends that non
citizens designated as enemy combatants and detained in
territory located outside our Nation’s borders have no
constitutional rights and no privilege of habeas corpus.
Petitioners contend they do have cognizable constitutional
rights and that Congress, in seeking to eliminate recourse
to habeas corpus as a means to assert those rights, acted
in violation of the Suspension Clause.
We begin with a brief account of the history and origins
of the writ. Our account proceeds from two propositions.
First, protection for the privilege of habeas corpus was one
of the few safeguards of liberty specified in a Constitution
that, at the outset, had no Bill of Rights. In the system
conceived by the Framers the writ had a centrality that
9 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
must inform proper interpretation of the Suspension
Clause. Second, to the extent there were settled prece
dents or legal commentaries in 1789 regarding the extra
territorial scope of the writ or its application to enemy
aliens, those authorities can be instructive for the present
cases.
A
The Framers viewed freedom from unlawful restraint as
a fundamental precept of liberty, and they understood the
writ of habeas corpus as a vital instrument to secure that
freedom. Experience taught, however, that the common-
law writ all too often had been insufficient to guard
against the abuse of monarchial power. That history
counseled the necessity for specific language in the Consti
tution to secure the writ and ensure its place in our legal
system.
Magna Carta decreed that no man would be imprisoned
contrary to the law of the land. Art. 39, in Sources of Our
Liberties 17 (R. Perry & J. Cooper eds. 1959) (“No free
man shall be taken or imprisoned or dispossessed, or
outlawed, or banished, or in any way destroyed, nor will
we go upon him, nor send upon him, except by the legal
judgment of his peers or by the law of the land”). Impor
tant as the principle was, the Barons at Runnymede pre
scribed no specific legal process to enforce it. Holdsworth
tells us, however, that gradually the writ of habeas corpus
became the means by which the promise of Magna Carta
was fulfilled. 9 W. Holdsworth, A History of English Law
112 (1926) (hereinafter Holdsworth).
The development was painstaking, even by the centu
ries-long measures of English constitutional history. The
writ was known and used in some form at least as early as
the reign of Edward I. Id., at 108–125. Yet at the outset
it was used to protect not the rights of citizens but those of
the King and his courts. The early courts were considered
10 BOUMEDIENE v. BUSH
Opinion of the Court
agents of the Crown, designed to assist the King in the
exercise of his power. See J. Baker, An Introduction to
English Legal History 38–39 (4th ed. 2002). Thus the
writ, while it would become part of the foundation of
liberty for the King’s subjects, was in its earliest use a
mechanism for securing compliance with the King’s
laws. See Halliday & White, The Suspension Clause:
English Text, Imperial Contexts, and American Impli
cations, 94 Va. L. Rev. (forthcoming 2008) (hereinafter
Halliday & White) (manuscript, at 11, online at
http://papers.ssrn.com/sol3 /papers.cfm?abstract_id=100
8252 (all Internet materials as visited June 9, 2008, and
available in Clerk of Court’s case file) (noting that “concep
tually the writ arose from a theory of power rather than a
theory of liberty”)). Over time it became clear that by
issuing the writ of habeas corpus common-law courts
sought to enforce the King’s prerogative to inquire into the
authority of a jailer to hold a prisoner. See M. Hale, Pre
rogatives of the King 229 (D. Yale ed. 1976); 2 J. Story,
Commentaries on the Constitution of the United States
§1341, p. 237 (3d ed. 1858) (noting that the writ ran “into
all parts of the king’s dominions; for it is said, that the
king is entitled, at all times, to have an account, why the
liberty of any of his subjects is restrained”).
Even so, from an early date it was understood that the
King, too, was subject to the law. As the writers said of
Magna Carta, “it means this, that the king is and shall be
below the law.” 1 F. Pollock & F. Maitland, History of
English Law 173 (2d ed. 1909); see also 2 Bracton On the
Laws and Customs of England 33 (S. Thorne transl. 1968)
(“The king must not be under man but under God and
under the law, because law makes the king”). And, by the
1600’s, the writ was deemed less an instrument of the
King’s power and more a restraint upon it. See Collings,
Habeas Corpus for Convicts—Constitutional Right or
Legislative Grace, 40 Calif. L. Rev. 335, 336 (1952) (noting
11 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
that by this point the writ was “the appropriate process for
checking illegal imprisonment by public officials”).
Still, the writ proved to be an imperfect check. Even
when the importance of the writ was well understood in
England, habeas relief often was denied by the courts or
suspended by Parliament. Denial or suspension occurred
in times of political unrest, to the anguish of the impris
oned and the outrage of those in sympathy with them.
A notable example from this period was Darnel’s Case, 3
How. St. Tr. 1 (K. B. 1627). The events giving rise to the
case began when, in a display of the Stuart penchant for
authoritarian excess, Charles I demanded that Darnel and
at least four others lend him money. Upon their refusal,
they were imprisoned. The prisoners sought a writ of
habeas corpus; and the King filed a return in the form of a
warrant signed by the Attorney General. Ibid. The court
held this was a sufficient answer and justified the sub
jects’ continued imprisonment. Id., at 59.
There was an immediate outcry of protest. The House of
Commons promptly passed the Petition of Right, 3 Car. 1,
ch. 1 (1627), 5 Statutes of the Realm 23, 24 (reprint 1963),
which condemned executive “imprison[ment] without any
cause” shown, and declared that “no freeman in any such
manner as is before mencioned [shall] be imprisoned or
deteined.” Yet a full legislative response was long de
layed. The King soon began to abuse his authority again,
and Parliament was dissolved. See W. Hall & R. Albion, A
History of England and the British Empire 328 (3d ed.
1953) (hereinafter Hall & Albion). When Parliament
reconvened in 1640, it sought to secure access to the writ
by statute. The Act of 1640, 16 Car. 1, ch. 10, 5 Statutes of
the Realm, at 110, expressly authorized use of the writ to
test the legality of commitment by command or warrant of
the King or the Privy Council. Civil strife and the Inter
regnum soon followed, and not until 1679 did Parliament
try once more to secure the writ, this time through the
12 BOUMEDIENE v. BUSH
Opinion of the Court
Habeas Corpus Act of 1679, 31 Car. 2, ch. 2, id., at 935.
The Act, which later would be described by Blackstone as
the “stable bulwark of our liberties,” 1 W. Blackstone,
Commentaries *137 (hereinafter Blackstone), established
procedures for issuing the writ; and it was the model upon
which the habeas statutes of the 13 American Colonies
were based, see Collings, supra, at 338–339.
This history was known to the Framers. It no doubt
confirmed their view that pendular swings to and away
from individual liberty were endemic to undivided, uncon
trolled power. The Framers’ inherent distrust of govern
mental power was the driving force behind the constitu
tional plan that allocated powers among three
independent branches. This design serves not only to
make Government accountable but also to secure individ
ual liberty. See Loving v. United States, 517 U. S. 748,
756 (1996) (noting that “[e]ven before the birth of this
country, separation of powers was known to be a defense
against tyranny”); cf. Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring)
(“[T]he Constitution diffuses power the better to secure
liberty”); Clinton v. City of New York, 524 U. S. 417, 450
(1998) (KENNEDY, J., concurring) (“Liberty is always at
stake when one or more of the branches seek to transgress
the separation of powers”). Because the Constitution’s
separation-of-powers structure, like the substantive guar
antees of the Fifth and Fourteenth Amendments, see Yick
Wo v. Hopkins, 118 U. S. 356, 374 (1886), protects persons
as well as citizens, foreign nationals who have the privi
lege of litigating in our courts can seek to enforce separa
tion-of-powers principles, see, e.g., INS v. Chadha, 462
U. S. 919, 958–959 (1983).
That the Framers considered the writ a vital instrument
for the protection of individual liberty is evident from the
care taken to specify the limited grounds for its suspen
sion: “The Privilege of the Writ of Habeas Corpus shall not
13 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
be suspended, unless when in Cases of Rebellion or Inva
sion the public Safety may require it.” Art. I, §9, cl. 2; see
Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425,
1509, n. 329 (1987) (“[T]he non-suspension clause is the
original Constitution’s most explicit reference to reme
dies”). The word “privilege” was used, perhaps, to avoid
mentioning some rights to the exclusion of others. (In
deed, the only mention of the term “right” in the Constitu
tion, as ratified, is in its clause giving Congress the power
to protect the rights of authors and inventors. See Art. I,
§8, cl. 8.)
Surviving accounts of the ratification debates provide
additional evidence that the Framers deemed the writ to
be an essential mechanism in the separation-of-powers
scheme. In a critical exchange with Patrick Henry at the
Virginia ratifying convention Edmund Randolph referred
to the Suspension Clause as an “exception” to the “power
given to Congress to regulate courts.” See 3 Debates in
the Several State Conventions on the Adoption of the
Federal Constitution 460–464 (J. Elliot 2d ed. 1876) (here
inafter Elliot’s Debates). A resolution passed by the New
York ratifying convention made clear its understanding
that the Clause not only protects against arbitrary sus
pensions of the writ but also guarantees an affirmative
right to judicial inquiry into the causes of detention. See
Resolution of the New York Ratifying Convention (July 26,
1788), in 1 Elliot’s Debates 328 (noting the convention’s
understanding “[t]hat every person restrained of his lib
erty is entitled to an inquiry into the lawfulness of such
restraint, and to a removal thereof if unlawful; and that
such inquiry or removal ought not to be denied or delayed,
except when, on account of public danger, the Congress
shall suspend the privilege of the writ of habeas corpus”).
Alexander Hamilton likewise explained that by providing
the detainee a judicial forum to challenge detention, the
writ preserves limited government. As he explained in
14 BOUMEDIENE v. BUSH
Opinion of the Court
The Federalist No. 84:
“[T]he practice of arbitrary imprisonments, have been,
in all ages, the favorite and most formidable instru
ments of tyranny. The observations of the judicious
Blackstone . . . are well worthy of recital: ‘To bereave
a man of life . . . or by violence to confiscate his estate,
without accusation or trial, would be so gross and no
torious an act of despotism as must at once convey the
alarm of tyranny throughout the whole nation; but
confinement of the person, by secretly hurrying him to
jail, where his sufferings are unknown or forgotten, is
a less public, a less striking, and therefore a more
dangerous engine of arbitrary government.’ And as a
remedy for this fatal evil he is everywhere peculiarly
emphatical in his encomiums on the habeas corpus
act, which in one place he calls ‘the BULWARK of the
British Constitution.’” C. Rossiter ed., p. 512 (1961)
(quoting 1 Blackstone *136, 4 id., at *438).
Post-1789 habeas developments in England, though not
bearing upon the Framers’ intent, do verify their foresight.
Those later events would underscore the need for struc
tural barriers against arbitrary suspensions of the writ.
Just as the writ had been vulnerable to executive and
parliamentary encroachment on both sides of the Atlantic
before the American Revolution, despite the Habeas Cor
pus Act of 1679, the writ was suspended with frequency in
England during times of political unrest after 1789. Par
liament suspended the writ for much of the period from
1792 to 1801, resulting in rampant arbitrary imprison
ment. See Hall & Albion 550. Even as late as World War
I, at least one prominent English jurist complained that
the Defence of the Realm Act, 1914, 4 & 5 Geo. 5, ch.
29(1)(a), effectively had suspended the privilege of habeas
corpus for any person suspected of “communicating with
the enemy.” See King v. Halliday, [1917] A. C. 260, 299
15 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
(Lord Shaw, dissenting); see generally A. Simpson, In the
Highest Degree Odious: Detention Without Trial in War
time Britain 6–7, 24–25 (1992).
In our own system the Suspension Clause is designed to
protect against these cyclical abuses. The Clause protects
the rights of the detained by a means consistent with the
essential design of the Constitution. It ensures that,
except during periods of formal suspension, the Judiciary
will have a time-tested device, the writ, to maintain the
“delicate balance of governance” that is itself the surest
safeguard of liberty. See Hamdi, 542 U. S., at 536 (plural
ity opinion). The Clause protects the rights of the de
tained by affirming the duty and authority of the Judici
ary to call the jailer to account. See Preiser v. Rodriguez,
411 U. S. 475, 484 (1973) (“[T]he essence of habeas corpus
is an attack by a person in custody upon the legality of
that custody”); cf. In re Jackson, 15 Mich. 417, 439–440
(1867) (Cooley, J., concurring) (“The important fact to be
observed in regard to the mode of procedure upon this
[habeas] writ is, that it is directed to, and served upon, not
the person confined, but his jailer”). The separation-of
powers doctrine, and the history that influenced its de
sign, therefore must inform the reach and purpose of the
Suspension Clause.
B
The broad historical narrative of the writ and its func
tion is central to our analysis, but we seek guidance as
well from founding-era authorities addressing the specific
question before us: whether foreign nationals, appre
hended and detained in distant countries during a time of
serious threats to our Nation’s security, may assert the
privilege of the writ and seek its protection. The Court
has been careful not to foreclose the possibility that the
protections of the Suspension Clause have expanded along
with post-1789 developments that define the present scope
16 BOUMEDIENE v. BUSH
Opinion of the Court
of the writ. See INS v. St. Cyr, 533 U. S. 289, 300–301
(2001). But the analysis may begin with precedents as of
1789, for the Court has said that “at the absolute mini
mum” the Clause protects the writ as it existed when the
Constitution was drafted and ratified. Id., at 301.
To support their arguments, the parties in these cases
have examined historical sources to construct a view of the
common-law writ as it existed in 1789—as have amici
whose expertise in legal history the Court has relied upon
in the past. See Brief for Legal Historians as Amici Cu-
riae; see also St. Cyr, supra, at 302, n. 16. The Govern
ment argues the common-law writ ran only to those terri
tories over which the Crown was sovereign. See Brief for
Respondents 27. Petitioners argue that jurisdiction fol
lowed the King’s officers. See Brief for Petitioner Boume
diene et al. 11. Diligent search by all parties reveals no
certain conclusions. In none of the cases cited do we find
that a common-law court would or would not have
granted, or refused to hear for lack of jurisdiction, a peti
tion for a writ of habeas corpus brought by a prisoner
deemed an enemy combatant, under a standard like the
one the Department of Defense has used in these cases,
and when held in a territory, like Guantanamo, over
which the Government has total military and civil control.
We know that at common law a petitioner’s status as an
alien was not a categorical bar to habeas corpus relief.
See, e.g., Sommersett’s Case, 20 How. St. Tr. 1, 80–82
(1772) (ordering an African slave freed upon finding the
custodian’s return insufficient); see generally Khera v.
Secretary of State for the Home Dept., [1984] A. C. 74, 111
(“Habeas corpus protection is often expressed as limited to
‘British subjects.’ Is it really limited to British nationals?
Suffice it to say that the case law has given an emphatic
‘no’ to the question”). We know as well that common-law
courts entertained habeas petitions brought by enemy
aliens detained in England—“entertained” at least in the
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Opinion of the Court
sense that the courts held hearings to determine the
threshold question of entitlement to the writ. See Case of
Three Spanish Sailors, 2 Black. W. 1324, 96 Eng. Rep. 775
(C. P. 1779); King v. Schiever, 2 Burr. 765, 97 Eng. Rep.
551 (K. B. 1759); Du Castro’s Case, Fort. 195, 92 Eng. Rep.
816 (K. B. 1697).
In Schiever and the Spanish Sailors’ case, the courts
denied relief to the petitioners. Whether the holdings in
these cases were jurisdictional or based upon the courts’
ruling that the petitioners were detained lawfully as
prisoners of war is unclear. See Spanish Sailors, supra, at
1324, 96 Eng. Rep., at 776; Schiever, supra, at 766, 97
Eng. Rep., at 552. In Du Castro’s Case, the court granted
relief, but that case is not analogous to petitioners’ be
cause the prisoner there appears to have been detained in
England. See Halliday & White 27, n. 72. To the extent
these authorities suggest the common-law courts ab
stained altogether from matters involving prisoners of
war, there was greater justification for doing so in the
context of declared wars with other nation states. Judicial
intervention might have complicated the military’s ability
to negotiate exchange of prisoners with the enemy, a
wartime practice well known to the Framers. See Resolu
tion of Mar. 30, 1778, 10 Journals of the Continental
Congress 1774–1789, p. 295 (W. Ford ed. 1908) (directing
General Washington not to exchange prisoners with the
British unless the enemy agreed to exempt citizens from
capture).
We find the evidence as to the geographic scope of the
writ at common law informative, but, again, not disposi
tive. Petitioners argue the site of their detention is analo
gous to two territories outside of England to which the
writ did run: the so-called “exempt jurisdictions,” like the
Channel Islands; and (in former times) India. There are
critical differences between these places and Guantanamo,
however.
18 BOUMEDIENE v. BUSH
Opinion of the Court
As the Court noted in Rasul, 542 U. S., at 481–482, and
nn. 11–12, common-law courts granted habeas corpus
relief to prisoners detained in the exempt jurisdictions.
But these areas, while not in theory part of the realm of
England, were nonetheless under the Crown’s control. See
2 H. Hallam, Constitutional History of England: From the
Accession of Henry VII to the Death of George II, pp. 232–
233 (reprint 1989). And there is some indication that
these jurisdictions were considered sovereign territory.
King v. Cowle, 2 Burr. 834, 854, 855, 97 Eng. Rep. 587,
599 (K. B. 1759) (describing one of the exempt jurisdic
tions, Berwick-upon-Tweed, as under the “sovereign juris
diction” and “subjection of the Crown of England”). Be
cause the United States does not maintain formal
sovereignty over Guantanamo Bay, see Part IV, infra, the
naval station there and the exempt jurisdictions discussed
in the English authorities are not similarly situated.
Petitioners and their amici further rely on cases in
which British courts in India granted writs of habeas
corpus to noncitizens detained in territory over which the
Moghul Emperor retained formal sovereignty and control.
See supra, at 12–13; Brief for Legal Historians as Amici
Curiae 12–13. The analogy to the present cases breaks
down, however, because of the geographic location of the
courts in the Indian example. The Supreme Court of
Judicature (the British Court) sat in Calcutta; but no
federal court sits at Guantanamo. The Supreme Court of
Judicature was, moreover, a special court set up by Par
liament to monitor certain conduct during the British Raj.
See Regulating Act of 1773, 13 Geo. 3, §§13–14. That it
had the power to issue the writ in nonsovereign territory
does not prove that common-law courts sitting in England
had the same power. If petitioners were to have the better
of the argument on this point, we would need some dem
onstration of a consistent practice of common-law courts
sitting in England and entertaining petitions brought by
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Opinion of the Court
alien prisoners detained abroad. We find little support for
this conclusion.
The Government argues, in turn, that Guantanamo is
more closely analogous to Scotland and Hanover, territo
ries that were not part of England but nonetheless con
trolled by the English monarch (in his separate capacities
as King of Scotland and Elector of Hanover). See Cowle, 2
Burr., at 856, 97 Eng. Rep., at 600. Lord Mansfield can be
cited for the proposition that, at the time of the founding,
English courts lacked the “power” to issue the writ to
Scotland and Hanover, territories Lord Mansfield referred
to as “foreign.” Ibid. But what matters for our purposes is
why common-law courts lacked this power. Given the
English Crown’s delicate and complicated relationships
with Scotland and Hanover in the 1700’s, we cannot disre
gard the possibility that the common-law courts’ refusal to
issue the writ to these places was motivated not by formal
legal constructs but by what we would think of as pruden
tial concerns. This appears to have been the case with
regard to other British territories where the writ did not
run. See 2 R. Chambers, A Course of Lectures on English
Law 1767–1773, p. 8 (T. Curley ed. 1986) (quoting the
view of Lord Mansfield in Cowle that “[n]otwithstanding
the power which the judges have, yet where they cannot
judge of the cause, or give relief upon it, they would not
think proper to interpose; and therefore in the case of
imprisonments in Guernsey, Jersey, Minorca, or the plan-
tations, the most usual way is to complain to the king in
Council” (internal quotation marks omitted)). And after
the Act of Union in 1707, through which the kingdoms of
England and Scotland were merged politically, Queen
Anne and her successors, in their new capacity as sover
eign of Great Britain, ruled the entire island as one king
dom. Accordingly, by the time Lord Mansfield penned his
opinion in Cowle in 1759, Scotland was no longer a “for
eign” country vis-à-vis England—at least not in the sense
20 BOUMEDIENE v. BUSH
Opinion of the Court
in which Cuba is a foreign country vis-à-vis the United
States.
Scotland remained “foreign” in Lord Mansfield’s day in
at least one important respect, however. Even after the
Act of Union, Scotland (like Hanover) continued to main
tain its own laws and court system. See 1 Blackstone *98,
*109. Under these circumstances prudential considera
tions would have weighed heavily when courts sitting in
England received habeas petitions from Scotland or the
Electorate. Common-law decisions withholding the writ
from prisoners detained in these places easily could be
explained as efforts to avoid either or both of two embar
rassments: conflict with the judgments of another court of
competent jurisdiction; or the practical inability, by reason
of distance, of the English courts to enforce their judg
ments outside their territorial jurisdiction. Cf. Munaf v.
Geren, ante, at 15 (opinion of the Court) (recognizing that
“‘prudential concerns’ . . . such as comity and the orderly
administration of criminal justice” affect the appropriate
exercise of habeas jurisdiction).
By the mid-19th century, British courts could issue the
writ to Canada, notwithstanding the fact that Canadian
courts also had the power to do so. See 9 Holdsworth 124
(citing Ex parte Anderson, 3 El. and El. 487 (1861)). This
might be seen as evidence that the existence of a separate
court system was no barrier to the running of the common-
law writ. The Canada of the 1800’s, however, was in
many respects more analogous to the exempt jurisdictions
or to Ireland, where the writ ran, than to Scotland or
Hanover in the 1700’s, where it did not. Unlike Scotland
and Hanover, Canada followed English law. See B.
Laskin, The British Tradition in Canadian Law 50–51
(1969).
In the end a categorical or formal conception of sover
eignty does not provide a comprehensive or altogether
satisfactory explanation for the general understanding
21 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
that prevailed when Lord Mansfield considered issuance of
the writ outside England. In 1759 the writ did not run to
Scotland but did run to Ireland, even though, at that
point, Scotland and England had merged under the rule of
a single sovereign, whereas the Crowns of Great Britain
and Ireland remained separate (at least in theory). See
Cowle, supra, at 856–857, 97 Eng. Rep., 600; 1 Blackstone
*100–101. But there was at least one major difference
between Scotland’s and Ireland’s relationship with Eng
land during this period that might explain why the writ
ran to Ireland but not to Scotland. English law did not
generally apply in Scotland (even after the Act of Union)
but it did apply in Ireland. Blackstone put it as follows:
“[A]s Scotland and England are now one and the same
kingdom, and yet differ in their municipal laws; so Eng
land and Ireland are, on the other hand, distinct king
doms, and yet in general agree in their laws.” Id., at *100.
This distinction, and not formal notions of sovereignty,
may well explain why the writ did not run to Scotland
(and Hanover) but would run to Ireland.
The prudential barriers that may have prevented the
English courts from issuing the writ to Scotland and
Hanover are not relevant here. We have no reason to
believe an order from a federal court would be disobeyed
at Guantanamo. No Cuban court has jurisdiction to hear
these petitioners’ claims, and no law other than the laws
of the United States applies at the naval station. The
modern-day relations between the United States and
Guantanamo thus differ in important respects from the
18th-century relations between England and the kingdoms
of Scotland and Hanover. This is reason enough for us to
discount the relevance of the Government’s analogy.
Each side in the present matter argues that the very
lack of a precedent on point supports its position. The
Government points out there is no evidence that a court
sitting in England granted habeas relief to an enemy alien
22 BOUMEDIENE v. BUSH
Opinion of the Court
detained abroad; petitioners respond there is no evidence
that a court refused to do so for lack of jurisdiction.
Both arguments are premised, however, upon the as
sumption that the historical record is complete and that
the common law, if properly understood, yields a definite
answer to the questions before us. There are reasons to
doubt both assumptions. Recent scholarship points to the
inherent shortcomings in the historical record. See Halli
day & White 14–15 (noting that most reports of 18th
century habeas proceedings were not printed). And given
the unique status of Guantanamo Bay and the particular
dangers of terrorism in the modern age, the common-law
courts simply may not have confronted cases with close
parallels to this one. We decline, therefore, to infer too
much, one way or the other, from the lack of historical
evidence on point. Cf. Brown v. Board of Education, 347
U. S. 483, 489 (1954) (noting evidence concerning the
circumstances surrounding the adoption of the Fourteenth
Amendment, discussed in the parties’ briefs and uncov
ered through the Court’s own investigation, “convince us
that, although these sources cast some light, it is not
enough to resolve the problem with which we are faced.
At best, they are inconclusive”); Reid v. Covert, 354 U. S.
1, 64 (1957) (Frankfurter, J., concurring in result) (argu
ing constitutional adjudication should not be based upon
evidence that is “too episodic, too meager, to form a solid
basis in history, preceding and contemporaneous with the
framing of the Constitution”).
IV
Drawing from its position that at common law the writ
ran only to territories over which the Crown was sover
eign, the Government says the Suspension Clause affords
petitioners no rights because the United States does not
claim sovereignty over the place of detention.
Guantanamo Bay is not formally part of the United
23 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
States. See DTA §1005(g), 119 Stat. 2743. And under the
terms of the lease between the United States and Cuba,
Cuba retains “ultimate sovereignty” over the territory
while the United States exercises “complete jurisdiction
and control.” See Lease of Lands for Coaling and Naval
Stations, Feb. 23, 1903, U. S.-Cuba, Art. III, T. S. No. 418
(hereinafter 1903 Lease Agreement); Rasul, 542 U. S., at
471. Under the terms of the 1934 Treaty, however, Cuba
effectively has no rights as a sovereign until the parties
agree to modification of the 1903 Lease Agreement or the
United States abandons the base. See Treaty Defining
Relations with Cuba, May 29, 1934, U. S.-Cuba, Art. III,
48 Stat. 1683, T. S. No. 866.
The United States contends, nevertheless, that Guan
tanamo is not within its sovereign control. This was the
Government’s position well before the events of September
11, 2001. See, e.g., Brief for Petitioners in Sale v. Haitian
Centers Council, Inc., O. T. 1992, No. 92–344, p. 31 (argu
ing that Guantanamo is territory “outside the United
States”). And in other contexts the Court has held that
questions of sovereignty are for the political branches to
decide. See Vermilya-Brown Co. v. Connell, 335 U. S. 377,
380 (1948) (“[D]etermination of sovereignty over an area is
for the legislative and executive departments”); see also
Jones v. United States, 137 U. S. 202 (1890); Williams v.
Suffolk Ins. Co., 13 Pet. 415, 420 (1839). Even if this were
a treaty interpretation case that did not involve a political
question, the President’s construction of the lease agree
ment would be entitled to great respect. See Sumitomo
Shoji America, Inc. v. Avagliano, 457 U. S. 176, 184–185
(1982).
We therefore do not question the Government’s position
that Cuba, not the United States, maintains sovereignty,
in the legal and technical sense of the term, over Guan
tanamo Bay. But this does not end the analysis. Our
cases do not hold it is improper for us to inquire into the
24 BOUMEDIENE v. BUSH
Opinion of the Court
objective degree of control the Nation asserts over foreign
territory. As commentators have noted, “‘[s]overeignty’ is
a term used in many senses and is much abused.” See 1
Restatement (Third) of Foreign Relations Law of the
United States §206, Comment b, p. 94 (1986). When we
have stated that sovereignty is a political question, we
have referred not to sovereignty in the general, colloquial
sense, meaning the exercise of dominion or power, see
Webster’s New International Dictionary 2406 (2d ed.
1934) (“sovereignty,” definition 3), but sovereignty in the
narrow, legal sense of the term, meaning a claim of right,
see 1 Restatement (Third) of Foreign Relations, supra,
§206, Comment b, at 94 (noting that sovereignty “implies
a state’s lawful control over its territory generally to the
exclusion of other states, authority to govern in that terri
tory, and authority to apply law there”). Indeed, it is not
altogether uncommon for a territory to be under the de
jure sovereignty of one nation, while under the plenary
control, or practical sovereignty, of another. This condi
tion can occur when the territory is seized during war, as
Guantanamo was during the Spanish-American War. See,
e.g., Fleming v. Page, 9 How. 603, 614 (1850) (noting that
the port of Tampico, conquered by the United States dur
ing the war with Mexico, was “undoubtedly . . . subject to
the sovereignty and dominion of the United States,” but
that it “does not follow that it was a part of the United
States, or that it ceased to be a foreign country”); King v.
Earl of Crewe ex parte Sekgome, [1910] 2 K. B. 576, 603–
604 (C. A.) (opinion of Williams, L. J.) (arguing that the
Bechuanaland Protectorate in South Africa was “under
His Majesty’s dominion in the sense of power and jurisdic
tion, but is not under his dominion in the sense of territo
rial dominion”). Accordingly, for purposes of our analysis,
we accept the Government’s position that Cuba, and not
the United States, retains de jure sovereignty over Guan
tanamo Bay. As we did in Rasul, however, we take notice
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Opinion of the Court
of the obvious and uncontested fact that the United States,
by virtue of its complete jurisdiction and control over the
base, maintains de facto sovereignty over this territory.
See 542 U. S., at 480; id., at 487 (KENNEDY, J., concurring
in judgment).
Were we to hold that the present cases turn on the
political question doctrine, we would be required first to
accept the Government’s premise that de jure sovereignty
is the touchstone of habeas corpus jurisdiction. This
premise, however, is unfounded. For the reasons indi
cated above, the history of common-law habeas corpus
provides scant support for this proposition; and, for the
reasons indicated below, that position would be inconsis
tent with our precedents and contrary to fundamental
separation-of-powers principles.
A
The Court has discussed the issue of the Constitution’s
extraterritorial application on many occasions. These
decisions undermine the Government’s argument that, at
least as applied to noncitizens, the Constitution necessar
ily stops where de jure sovereignty ends.
The Framers foresaw that the United States would
expand and acquire new territories. See American Ins. Co.
v. 356 Bales of Cotton, 1 Pet. 511, 542 (1828). Article IV,
§3, cl. 1, grants Congress the power to admit new States.
Clause 2 of the same section grants Congress the “Power
to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the
United States.” Save for a few notable (and notorious)
exceptions, e.g., Dred Scott v. Sandford, 19 How. 393
(1857), throughout most of our history there was little
need to explore the outer boundaries of the Constitution’s
geographic reach. When Congress exercised its power to
create new territories, it guaranteed constitutional protec
tions to the inhabitants by statute. See, e.g., An Act: to
26 BOUMEDIENE v. BUSH
Opinion of the Court
establish a Territorial Government for Utah, 9 Stat. 458
(“[T]he Constitution and laws of the United States are
hereby extended over and declared to be in force in said
Territory of Utah”); Rev. Stat. §1891 (“The Constitution
and all laws of the United States which are not locally
inapplicable shall have the same force and effect within all
the organized Territories, and in every Territory hereafter
organized as elsewhere within the United States”); see
generally Burnett, Untied States: American Expansion
and Territorial Deannexation, 72 U. Chi. L. Rev. 797, 825–
827 (2005). In particular, there was no need to test the
limits of the Suspension Clause because, as early as 1789,
Congress extended the writ to the Territories. See Act of
Aug. 7, 1789, 1 Stat. 52 (reaffirming Art. II of Northwest
Ordinance of 1787, which provided that “[t]he inhabitants
of the said territory, shall always be entitled to the bene
fits of the writ of habeas corpus”).
Fundamental questions regarding the Constitution’s
geographic scope first arose at the dawn of the 20th cen
tury when the Nation acquired noncontiguous Territories:
Puerto Rico, Guam, and the Philippines—ceded to the
United States by Spain at the conclusion of the Spanish-
American War—and Hawaii—annexed by the United
States in 1898. At this point Congress chose to discon
tinue its previous practice of extending constitutional
rights to the territories by statute. See, e.g., An Act Tem
porarily to provide for the administration of the affairs of
civil government in the Philippine Islands, and for other
purposes, 32 Stat. 692 (noting that Rev. Stat. §1891 did
not apply to the Philippines).
In a series of opinions later known as the Insular Cases,
the Court addressed whether the Constitution, by its own
force, applies in any territory that is not a State. See De
Lima v. Bidwell, 182 U. S. 1 (1901); Dooley v. United
States, 182 U. S. 222 (1901); Armstrong v. United States,
182 U. S. 243 (1901); Downes v. Bidwell, 182 U. S. 244
27 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
(1901); Hawaii v. Mankichi, 190 U. S. 197 (1903); Dorr v.
United States, 195 U. S. 138 (1904). The Court held that
the Constitution has independent force in these territo
ries, a force not contingent upon acts of legislative grace.
Yet it took note of the difficulties inherent in that position.
Prior to their cession to the United States, the former
Spanish colonies operated under a civil-law system, with
out experience in the various aspects of the Anglo-
American legal tradition, for instance the use of grand and
petit juries. At least with regard to the Philippines, a
complete transformation of the prevailing legal culture
would have been not only disruptive but also unnecessary,
as the United States intended to grant independence to
that Territory. See An Act To declare the purpose of the
people of the United States as to the future political status
of the people of the Philippine Islands, and to provide a
more autonomous government for those islands (Jones
Act), 39 Stat. 545 (noting that “it was never the intention
of the people of the United States in the incipiency of the
War with Spain to make it a war of conquest or for territo
rial aggrandizement” and that “it is, as it has always been,
the purpose of the people of the United States to withdraw
their sovereignty over the Philippine Islands and to recog
nize their independence as soon as a stable government
can be established therein”). The Court thus was reluc
tant to risk the uncertainty and instability that could
result from a rule that displaced altogether the existing
legal systems in these newly acquired Territories. See
Downes, supra, at 282 (“It is obvious that in the annexa
tion of outlying and distant possessions grave questions
will arise from differences of race, habits, laws and cus
toms of the people, and from differences of soil, climate
and production . . . ”).
These considerations resulted in the doctrine of territo
rial incorporation, under which the Constitution applies in
full in incorporated Territories surely destined for state
28 BOUMEDIENE v. BUSH
Opinion of the Court
hood but only in part in unincorporated Territories. See
Dorr, supra, at 143 (“Until Congress shall see fit to incor
porate territory ceded by treaty into the United States, . . .
the territory is to be governed under the power existing in
Congress to make laws for such territories and subject to
such constitutional restrictions upon the powers of that
body as are applicable to the situation”); Downes, supra, at
293 (White, J., concurring) (“[T]he determination of what
particular provision of the Constitution is applicable,
generally speaking, in all cases, involves an inquiry into
the situation of the territory and its relations to the
United States”). As the Court later made clear, “the real
issue in the Insular Cases was not whether the Constitu
tion extended to the Philippines or Porto Rico when we
went there, but which of its provisions were applicable by
way of limitation upon the exercise of executive and legis
lative power in dealing with new conditions and require
ments.” Balzac v. Porto Rico, 258 U. S. 298, 312 (1922). It
may well be that over time the ties between the United
States and any of its unincorporated Territories
strengthen in ways that are of constitutional significance.
Cf. Torres v. Puerto Rico, 442 U. S. 465, 475–476 (1979)
(Brennan, J., concurring in judgment) (“Whatever the
validity of the [Insular Cases] in the particular historical
context in which they were decided, those cases are clearly
not authority for questioning the application of the Fourth
Amendment—or any other provision of the Bill of Rights—
to the Commonwealth of Puerto Rico in the 1970’s”). But,
as early as Balzac in 1922, the Court took for granted that
even in unincorporated Territories the Government of the
United States was bound to provide to noncitizen inhabi
tants “guaranties of certain fundamental personal rights
declared in the Constitution.” 258 U. S., at 312; see also
Late Corp. of Church of Jesus Christ of Latter-day Saints
v. United States, 136 U. S. 1, 44 (1890) (“Doubtless Con
gress, in legislating for the Territories would be subject to
29 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
those fundamental limitations in favor of personal rights
which are formulated in the Constitution and its amend
ments”). Yet noting the inherent practical difficulties of
enforcing all constitutional provisions “always and every
where,” Balzac, supra, at 312, the Court devised in the
Insular Cases a doctrine that allowed it to use its power
sparingly and where it would be most needed. This cen
tury-old doctrine informs our analysis in the present
matter.
Practical considerations likewise influenced the Court’s
analysis a half-century later in Reid, 354 U. S. 1. The
petitioners there, spouses of American servicemen, lived
on American military bases in England and Japan. They
were charged with crimes committed in those countries
and tried before military courts, consistent with executive
agreements the United States had entered into with the
British and Japanese governments. Id., at 15–16, and nn.
29–30 (plurality opinion). Because the petitioners were
not themselves military personnel, they argued they were
entitled to trial by jury.
Justice Black, writing for the plurality, contrasted the
cases before him with the Insular Cases, which involved
territories “with wholly dissimilar traditions and institu
tions” that Congress intended to govern only “temporar
ily.” Id., at 14. Justice Frankfurter argued that the “spe
cific circumstances of each particular case” are relevant in
determining the geographic scope of the Constitution. Id.,
at 54 (opinion concurring in result). And Justice Harlan,
who had joined an opinion reaching the opposite result in
the case in the previous Term, Reid v. Covert, 351 U. S.
487 (1956), was most explicit in rejecting a “rigid and
abstract rule” for determining where constitutional guar
antees extend. Reid, 354 U. S., at 74 (opinion concurring
in result). He read the Insular Cases to teach that
whether a constitutional provision has extraterritorial
effect depends upon the “particular circumstances, the
30 BOUMEDIENE v. BUSH
Opinion of the Court
practical necessities, and the possible alternatives which
Congress had before it” and, in particular, whether judi
cial enforcement of the provision would be “impracticable
and anomalous.” Id., at 74–75; see also United States v.
Verdugo-Urquidez, 494 U. S. 259, 277–278 (1990)
(KENNEDY, J., concurring) (applying the “impracticable
and anomalous” extraterritoriality test in the Fourth
Amendment context).
That the petitioners in Reid were American citizens was
a key factor in the case and was central to the plurality’s
conclusion that the Fifth and Sixth Amendments apply to
American civilians tried outside the United States. But
practical considerations, related not to the petitioners’
citizenship but to the place of their confinement and trial,
were relevant to each Member of the Reid majority. And
to Justices Harlan and Frankfurter (whose votes were
necessary to the Court’s disposition) these considerations
were the decisive factors in the case.
Indeed the majority splintered on this very point. The
key disagreement between the plurality and the concur
ring Justices in Reid was over the continued precedential
value of the Court’s previous opinion in In re Ross, 140
U. S. 453 (1891), which the Reid Court understood as
holding that under some circumstances Americans abroad
have no right to indictment and trial by jury. The peti
tioner in Ross was a sailor serving on an American mer
chant vessel in Japanese waters who was tried before an
American consular tribunal for the murder of a fellow
crewman. 140 U. S., at 459, 479. The Ross Court held
that the petitioner, who was a British subject, had no
rights under the Fifth and Sixth Amendments. Id., at 464.
The petitioner’s citizenship played no role in the disposi
tion of the case, however. The Court assumed (consistent
with the maritime custom of the time) that Ross had all
the rights of a similarly situated American citizen. Id., at
479 (noting that Ross was “under the protection and sub
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Opinion of the Court
ject to the laws of the United States equally with the
seaman who was native born”). The Justices in Reid
therefore properly understood Ross as standing for the
proposition that, at least in some circumstances, the jury
provisions of the Fifth and Sixth Amendments have no
application to American citizens tried by American au
thorities abroad. See 354 U. S., at 11–12 (plurality opin
ion) (describing Ross as holding that “constitutional pro
tections applied ‘only to citizens and others within the
United States . . . and not to residents or temporary so
journers abroad’” (quoting Ross, supra, at 464)); 354 U. S.,
at 64 (Frankfurter, J., concurring in result) (noting that
the consular tribunals upheld in Ross “w[ere] based on
long-established custom and they were justified as the
best possible means for securing justice for the few Ameri
cans present in [foreign] countries”); 354 U. S., at 75
(Harlan, J., concurring in result) (“what Ross and the
Insular Cases hold is that the particular local setting, the
practical necessities, and the possible alternatives are
relevant to a question of judgment, namely, whether jury
trial should be deemed a necessary condition of the exer
cise of Congress’ power to provide for the trial of Ameri
cans overseas”).
The Reid plurality doubted that Ross was rightly de
cided, precisely because it believed the opinion was insuf
ficiently protective of the rights of American citizens. See
354 U. S., at 10–12; see also id., at 78 (Clark, J., dissent
ing) (noting that “four of my brothers would specifically
overrule and two would impair the long-recognized vitality
of an old and respected precedent in our law, the case of In
re Ross, 140 U. S. 453 (1891)”). But Justices Harlan and
Frankfurter, while willing to hold that the American
citizen petitioners in the cases before them were entitled
to the protections of Fifth and Sixth Amendments, were
unwilling to overturn Ross. 354 U. S., at 64 (Frankfurter,
J., concurring in result); id., at 75 (Harlan, J., concurring
32 BOUMEDIENE v. BUSH
Opinion of the Court
in result). Instead, the two concurring Justices distin
guished Ross from the cases before them, not on the basis
of the citizenship of the petitioners, but on practical con
siderations that made jury trial a more feasible option for
them than it was for the petitioner in Ross. If citizenship
had been the only relevant factor in the case, it would
have been necessary for the Court to overturn Ross, some
thing Justices Harlan and Frankfurter were unwilling to
do. See Verdugo-Urquidez, supra, at 277 (KENNEDY, J.,
concurring) (noting that Ross had not been overruled).
Practical considerations weighed heavily as well in
Johnson v. Eisentrager, 339 U. S. 763 (1950), where the
Court addressed whether habeas corpus jurisdiction ex
tended to enemy aliens who had been convicted of violat
ing the laws of war. The prisoners were detained at
Landsberg Prison in Germany during the Allied Powers’
postwar occupation. The Court stressed the difficulties of
ordering the Government to produce the prisoners in a
habeas corpus proceeding. It “would require allocation of
shipping space, guarding personnel, billeting and rations”
and would damage the prestige of military commanders at
a sensitive time. Id., at 779. In considering these factors
the Court sought to balance the constraints of military
occupation with constitutional necessities. Id., at 769–
779; see Rasul, 542 U. S., at 475–476 (discussing the
factors relevant to Eisentrager’s constitutional holding);
542 U. S., at 486 (KENNEDY, J., concurring in judgment)
(same).
True, the Court in Eisentrager denied access to the writ,
and it noted the prisoners “at no relevant time were
within any territory over which the United States is sov
ereign, and [that] the scenes of their offense, their capture,
their trial and their punishment were all beyond the
territorial jurisdiction of any court of the United States.”
339 U. S., at 778. The Government seizes upon this lan
guage as proof positive that the Eisentrager Court adopted
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Opinion of the Court
a formalistic, sovereignty-based test for determining the
reach of the Suspension Clause. See Brief for Respon
dents 18–20. We reject this reading for three reasons.
First, we do not accept the idea that the above-quoted
passage from Eisentrager is the only authoritative lan
guage in the opinion and that all the rest is dicta. The
Court’s further determinations, based on practical consid
erations, were integral to Part II of its opinion and came
before the decision announced its holding. See 339 U. S.,
at 781.
Second, because the United States lacked both de jure
sovereignty and plenary control over Landsberg Prison,
see infra, at 34–35, it is far from clear that the Eisentrager
Court used the term sovereignty only in the narrow tech
nical sense and not to connote the degree of control the
military asserted over the facility. See supra, at 21. The
Justices who decided Eisentrager would have understood
sovereignty as a multifaceted concept. See Black’s Law
Dictionary 1568 (4th ed. 1951) (defining “sovereignty” as
“[t]he supreme, absolute, and uncontrollable power by
which any independent state is governed”; “the interna
tional independence of a state, combined with the right
and power of regulating its internal affairs without foreign
dictation”; and “[t]he power to do everything in a state
without accountability”); Ballentine’s Law Dictionary with
Pronunciations 1216 (2d ed. 1948) (defining “sovereignty”
as “[t]hat public authority which commands in civil soci
ety, and orders and directs what each citizen is to perform
to obtain the end of its institution”). In its principal brief
in Eisentrager, the Government advocated a bright-line
test for determining the scope of the writ, similar to the
one it advocates in these cases. See Brief for Petitioners in
Johnson v. Eisentrager, O. T. 1949, No. 306, pp. 74–75.
Yet the Court mentioned the concept of territorial sover
eignty only twice in its opinion. See Eisentrager, supra, at
778, 780. That the Court devoted a significant portion of
34 BOUMEDIENE v. BUSH
Opinion of the Court
Part II to a discussion of practical barriers to the running
of the writ suggests that the Court was not concerned
exclusively with the formal legal status of Landsberg
Prison but also with the objective degree of control the
United States asserted over it. Even if we assume the
Eisentrager Court considered the United States’ lack of
formal legal sovereignty over Landsberg Prison as the
decisive factor in that case, its holding is not inconsistent
with a functional approach to questions of extraterritorial
ity. The formal legal status of a given territory affects, at
least to some extent, the political branches’ control over
that territory. De jure sovereignty is a factor that bears
upon which constitutional guarantees apply there.
Third, if the Government’s reading of Eisentrager were
correct, the opinion would have marked not only a change
in, but a complete repudiation of, the Insular Cases’ (and
later Reid’s) functional approach to questions of extrater
ritoriality. We cannot accept the Government’s view.
Nothing in Eisentrager says that de jure sovereignty is or
has ever been the only relevant consideration in determin
ing the geographic reach of the Constitution or of habeas
corpus. Were that the case, there would be considerable
tension between Eisentrager, on the one hand, and the
Insular Cases and Reid, on the other. Our cases need not
be read to conflict in this manner. A constricted reading of
Eisentrager overlooks what we see as a common thread
uniting the Insular Cases, Eisentrager, and Reid: the idea
that questions of extraterritoriality turn on objective
factors and practical concerns, not formalism.
B
The Government’s formal sovereignty-based test raises
troubling separation-of-powers concerns as well. The
political history of Guantanamo illustrates the deficiencies
of this approach. The United States has maintained
complete and uninterrupted control of the bay for over 100
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Opinion of the Court
years. At the close of the Spanish-American War, Spain
ceded control over the entire island of Cuba to the United
States and specifically “relinquishe[d] all claim[s] of sover
eignty . . . and title.” See Treaty of Paris, Dec. 10, 1898,
U. S.-Spain, Art. I, 30 Stat. 1755, T. S. No. 343. From the
date the treaty with Spain was signed until the Cuban
Republic was established on May 20, 1902, the United
States governed the territory “in trust” for the benefit of
the Cuban people. Neely v. Henkel, 180 U. S. 109, 120
(1901); H. Thomas, Cuba or The Pursuit of Freedom 436,
460 (1998). And although it recognized, by entering into
the 1903 Lease Agreement, that Cuba retained “ultimate
sovereignty” over Guantanamo, the United States contin
ued to maintain the same plenary control it had enjoyed
since 1898. Yet the Government’s view is that the Consti
tution had no effect there, at least as to noncitizens, be
cause the United States disclaimed sovereignty in the
formal sense of the term. The necessary implication of the
argument is that by surrendering formal sovereignty over
any unincorporated territory to a third party, while at the
same time entering into a lease that grants total control
over the territory back to the United States, it would be
possible for the political branches to govern without legal
constraint.
Our basic charter cannot be contracted away like this.
The Constitution grants Congress and the President the
power to acquire, dispose of, and govern territory, not the
power to decide when and where its terms apply. Even
when the United States acts outside its borders, its powers
are not “absolute and unlimited” but are subject “to such
restrictions as are expressed in the Constitution.” Murphy
v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from ques
tions involving formal sovereignty and territorial govern
ance is one thing. To hold the political branches have the
power to switch the Constitution on or off at will is quite
another. The former position reflects this Court’s recogni
36 BOUMEDIENE v. BUSH
Opinion of the Court
tion that certain matters requiring political judgments are
best left to the political branches. The latter would permit
a striking anomaly in our tripartite system of government,
leading to a regime in which Congress and the President,
not this Court, say “what the law is.” Marbury v. Madi-
son, 1 Cranch 137, 177 (1803).
These concerns have particular bearing upon the Sus
pension Clause question in the cases now before us, for the
writ of habeas corpus is itself an indispensable mechanism
for monitoring the separation of powers. The test for
determining the scope of this provision must not be subject
to manipulation by those whose power it is designed to
restrain.
C
As we recognized in Rasul, 542 U. S., at 476; id., at 487
(KENNEDY, J., concurring in judgment), the outlines of a
framework for determining the reach of the Suspension
Clause are suggested by the factors the Court relied upon
in Eisentrager. In addition to the practical concerns dis
cussed above, the Eisentrager Court found relevant that
each petitioner:
“(a) is an enemy alien; (b) has never been or resided in
the United States; (c) was captured outside of our ter
ritory and there held in military custody as a prisoner
of war; (d) was tried and convicted by a Military
Commission sitting outside the United States; (e) for
offenses against laws of war committed outside the
United States; (f) and is at all times imprisoned out
side the United States.” 339 U. S., at 777.
Based on this language from Eisentrager, and the reason
ing in our other extraterritoriality opinions, we conclude
that at least three factors are relevant in determining the
reach of the Suspension Clause: (1) the citizenship and
status of the detainee and the adequacy of the process
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Opinion of the Court
through which that status determination was made; (2)
the nature of the sites where apprehension and then
detention took place; and (3) the practical obstacles inher
ent in resolving the prisoner’s entitlement to the writ.
Applying this framework, we note at the onset that the
status of these detainees is a matter of dispute. The peti
tioners, like those in Eisentrager, are not American citi
zens. But the petitioners in Eisentrager did not contest, it
seems, the Court’s assertion that they were “enemy
alien[s].” Ibid. In the instant cases, by contrast, the
detainees deny they are enemy combatants. They have
been afforded some process in CSRT proceedings to de
termine their status; but, unlike in Eisentrager, supra, at
766, there has been no trial by military commission for
violations of the laws of war. The difference is not trivial.
The records from the Eisentrager trials suggest that, well
before the petitioners brought their case to this Court,
there had been a rigorous adversarial process to test the
legality of their detention. The Eisentrager petitioners
were charged by a bill of particulars that made detailed
factual allegations against them. See 14 United Nations
War Crimes Commission, Law Reports of Trials of War
Criminals 8–10 (1949) (reprint 1997). To rebut the accu
sations, they were entitled to representation by counsel,
allowed to introduce evidence on their own behalf, and
permitted to cross-examine the prosecution’s witnesses.
See Memorandum by Command of Lt. Gen. Wedemeyer,
Jan. 21, 1946 (establishing “Regulations Governing the
Trial of War Criminals” in the China Theater), in Tr. of
Record in Johnson v. Eisentrager, O. T. 1949, No. 306, pp.
34–40.
In comparison the procedural protections afforded to the
detainees in the CSRT hearings are far more limited, and,
we conclude, fall well short of the procedures and adver
sarial mechanisms that would eliminate the need for
habeas corpus review. Although the detainee is assigned a
38 BOUMEDIENE v. BUSH
Opinion of the Court
“Personal Representative” to assist him during CSRT
proceedings, the Secretary of the Navy’s memorandum
makes clear that person is not the detainee’s lawyer or
even his “advocate.” See App. to Pet. for Cert. in No. 06–
1196, at 155, 172. The Government’s evidence is accorded
a presumption of validity. Id., at 159. The detainee is
allowed to present “reasonably available” evidence, id., at
155, but his ability to rebut the Government’s evidence
against him is limited by the circumstances of his con
finement and his lack of counsel at this stage. And al
though the detainee can seek review of his status deter
mination in the Court of Appeals, that review process
cannot cure all defects in the earlier proceedings. See Part
V, infra.
As to the second factor relevant to this analysis, the
detainees here are similarly situated to the Eisentrager
petitioners in that the sites of their apprehension and
detention are technically outside the sovereign territory of
the United States. As noted earlier, this is a factor that
weighs against finding they have rights under the Sus
pension Clause. But there are critical differences between
Landsberg Prison, circa 1950, and the United States Na
val Station at Guantanamo Bay in 2008. Unlike its pre
sent control over the naval station, the United States’
control over the prison in Germany was neither absolute
nor indefinite. Like all parts of occupied Germany, the
prison was under the jurisdiction of the combined Allied
Forces. See Declaration Regarding the Defeat of Germany
and the Assumption of Supreme Authority with Respect to
Germany, June 5, 1945, U. S.-U. S. S. R.-U. K.-Fr., 60
Stat. 1649, T. I. A. S. No. 1520. The United States was
therefore answerable to its Allies for all activities occur
ring there. Cf. Hirota v. MacArthur, 338 U. S. 197, 198
(1948) (per curiam) (military tribunal set up by Gen.
Douglas MacArthur, acting as “the agent of the Allied
Powers,” was not a “tribunal of the United States”). The
39 Cite as: 553 U. S. ____ (2008)
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Allies had not planned a long-term occupation of Ger
many, nor did they intend to displace all German institu
tions even during the period of occupation. See Agree
ments Respecting Basic Principles for Merger of the Three
Western German Zones of Occupation, and Other Matters,
Apr. 8, 1949, U. S.-U. K.-Fr., Art. 1, 63 Stat. 2819,
T. I. A. S. No. 2066 (establishing a governing framework
“[d]uring the period in which it is necessary that the occu
pation continue” and expressing the desire “that the Ger
man people shall enjoy self-government to the maximum
possible degree consistent with such occupation”). The
Court’s holding in Eisentrager was thus consistent with
the Insular Cases, where it had held there was no need to
extend full constitutional protections to territories the
United States did not intend to govern indefinitely. Guan
tanamo Bay, on the other hand, is no transient possession.
In every practical sense Guantanamo is not abroad; it is
within the constant jurisdiction of the United States. See
Rasul, 542 U. S., at 480; id., at 487 (KENNEDY, J., concur
ring in judgment).
As to the third factor, we recognize, as the Court did in
Eisentrager, that there are costs to holding the Suspension
Clause applicable in a case of military detention abroad.
Habeas corpus proceedings may require expenditure of
funds by the Government and may divert the attention of
military personnel from other pressing tasks. While we
are sensitive to these concerns, we do not find them dispo
sitive. Compliance with any judicial process requires
some incremental expenditure of resources. Yet civilian
courts and the Armed Forces have functioned along side
each other at various points in our history. See, e.g.,
Duncan v. Kahanamoku, 327 U. S. 304 (1946); Ex parte
Milligan, 4 Wall. 2 (1866). The Government presents no
credible arguments that the military mission at Guan
tanamo would be compromised if habeas corpus courts had
jurisdiction to hear the detainees’ claims. And in light of
40 BOUMEDIENE v. BUSH
Opinion of the Court
the plenary control the United States asserts over the
base, none are apparent to us.
The situation in Eisentrager was far different, given the
historical context and nature of the military’s mission in
post-War Germany. When hostilities in the European
Theater came to an end, the United States became respon
sible for an occupation zone encompassing over 57,000
square miles with a population of 18 million. See Letter
from President Truman to Secretary of State Byrnes,
(Nov. 28, 1945), in 8 Documents on American Foreign
Relations 257 (R. Dennett & R. Turner eds. 1948); Pollock,
A Territorial Pattern for the Military Occupation of Ger
many, 38 Am. Pol. Sci. Rev. 970, 975 (1944). In addition to
supervising massive reconstruction and aid efforts the
American forces stationed in Germany faced potential
security threats from a defeated enemy. In retrospect the
post-War occupation may seem uneventful. But at the
time Eisentrager was decided, the Court was right to be
concerned about judicial interference with the military’s
efforts to contain “enemy elements, guerrilla fighters, and
‘were-wolves.’” 339 U. S., at 784.
Similar threats are not apparent here; nor does the
Government argue that they are. The United States
Naval Station at Guantanamo Bay consists of 45 square
miles of land and water. The base has been used, at vari
ous points, to house migrants and refugees temporarily.
At present, however, other than the detainees themselves,
the only long-term residents are American military per
sonnel, their families, and a small number of workers. See
History of Guantanamo Bay online at https://www.cnic.
navy.mil/Guantanamo/AboutGTMO/gtmohistorygeneral/
gtmohistgeneral. The detainees have been deemed ene
mies of the United States. At present, dangerous as they
may be if released, they are contained in a secure prison
facility located on an isolated and heavily fortified military
base.
41 Cite as: 553 U. S. ____ (2008)
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There is no indication, furthermore, that adjudicating a
habeas corpus petition would cause friction with the host
government. No Cuban court has jurisdiction over Ameri
can military personnel at Guantanamo or the enemy
combatants detained there. While obligated to abide by
the terms of the lease, the United States is, for all practi
cal purposes, answerable to no other sovereign for its acts
on the base. Were that not the case, or if the detention
facility were located in an active theater of war, argu
ments that issuing the writ would be “impracticable or
anomalous” would have more weight. See Reid, 354 U. S.,
at 74 (Harlan, J., concurring in result). Under the facts
presented here, however, there are few practical barriers
to the running of the writ. To the extent barriers arise,
habeas corpus procedures likely can be modified to ad
dress them. See Part VI–B, infra.
It is true that before today the Court has never held
that noncitizens detained by our Government in territory
over which another country maintains de jure sovereignty
have any rights under our Constitution. But the cases
before us lack any precise historical parallel. They involve
individuals detained by executive order for the duration of
a conflict that, if measured from September 11, 2001, to
the present, is already among the longest wars in Ameri
can history. See Oxford Companion to American Military
History 849 (1999). The detainees, moreover, are held in a
territory that, while technically not part of the United
States, is under the complete and total control of our
Government. Under these circumstances the lack of a
precedent on point is no barrier to our holding.
We hold that Art. I, §9, cl. 2, of the Constitution has full
effect at Guantanamo Bay. If the privilege of habeas
corpus is to be denied to the detainees now before us,
Congress must act in accordance with the requirements of
the Suspension Clause. Cf. Hamdi, 542 U. S., at 564
(SCALIA, J., dissenting) (“[I]ndefinite imprisonment on
42 BOUMEDIENE v. BUSH
Opinion of the Court
reasonable suspicion is not an available option of treat
ment for those accused of aiding the enemy, absent a
suspension of the writ”). This Court may not impose a de
facto suspension by abstaining from these controversies.
See Hamdan, 548 U. S., at 585, n. 16 (“[A]bstention is not
appropriate in cases . . . in which the legal challenge
‘turn[s] on the status of the persons as to whom the mili
tary asserted its power’” (quoting Schlesinger v. Council-
man, 420 U. S. 738, 759 (1975))). The MCA does not
purport to be a formal suspension of the writ; and the
Government, in its submissions to us, has not argued that
it is. Petitioners, therefore, are entitled to the privilege of
habeas corpus to challenge the legality of their detention.
V
In light of this holding the question becomes whether
the statute stripping jurisdiction to issue the writ avoids
the Suspension Clause mandate because Congress has
provided adequate substitute procedures for habeas cor
pus. The Government submits there has been compliance
with the Suspension Clause because the DTA review
process in the Court of Appeals, see DTA §1005(e), pro
vides an adequate substitute. Congress has granted that
court jurisdiction to consider
“(i) whether the status determination of the [CSRT]
. . . was consistent with the standards and procedures
specified by the Secretary of Defense . . . and (ii) to the
extent the Constitution and laws of the United States
are applicable, whether the use of such standards and
procedures to make the determination is consistent
with the Constitution and laws of the United States.”
§1005(e)(2)(C), 119 Stat. 2742.
The Court of Appeals, having decided that the writ does
not run to the detainees in any event, found it unneces
sary to consider whether an adequate substitute has been
43 Cite as: 553 U. S. ____ (2008)
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provided. In the ordinary course we would remand to the
Court of Appeals to consider this question in the first
instance. See Youakim v. Miller, 425 U. S. 231, 234 (1976)
(per curiam). It is well settled, however, that the Court’s
practice of declining to address issues left unresolved in
earlier proceedings is not an inflexible rule. Ibid. Depar
ture from the rule is appropriate in “exceptional” circum
stances. See Cooper Industries, Inc. v. Aviall Services,
Inc., 543 U. S. 157, 169 (2004); Duignan v. United States,
274 U. S. 195, 200 (1927).
The gravity of the separation-of-powers issues raised by
these cases and the fact that these detainees have been
denied meaningful access to a judicial forum for a period of
years render these cases exceptional. The parties before
us have addressed the adequacy issue. While we would
have found it informative to consider the reasoning of the
Court of Appeals on this point, we must weigh that
against the harms petitioners may endure from additional
delay. And, given there are few precedents addressing
what features an adequate substitute for habeas corpus
must contain, in all likelihood a remand simply would
delay ultimate resolution of the issue by this Court.
We do have the benefit of the Court of Appeals’ con
struction of key provisions of the DTA. When we granted
certiorari in these cases, we noted “it would be of material
assistance to consult any decision” in the parallel DTA
review proceedings pending in the Court of Appeals, spe
cifically any rulings in the matter of Bismullah v. Gates.
551 U. S. ___ (2007). Although the Court of Appeals has
yet to complete a DTA review proceeding, the three-judge
panel in Bismullah has issued an interim order giving
guidance as to what evidence can be made part of the
record on review and what access the detainees can have
to counsel and to classified information. See 501 F. 3d 178
(CADC) (Bismullah I), reh’g denied, 503 F. 3d 137 (CADC
2007) (Bismullah II). In that matter the full court denied
44 BOUMEDIENE v. BUSH
Opinion of the Court
the Government’s motion for rehearing en banc, see Bis-
mullah v. Gates, 514 F. 3d 1291 (CADC 2008) (Bismullah
III). The order denying rehearing was accompanied by
five separate statements from members of the court, which
offer differing views as to scope of the judicial review
Congress intended these detainees to have. Ibid.
Under the circumstances we believe the costs of further
delay substantially outweigh any benefits of remanding to
the Court of Appeals to consider the issue it did not ad
dress in these cases.
A
Our case law does not contain extensive discussion of
standards defining suspension of the writ or of circum
stances under which suspension has occurred. This sim
ply confirms the care Congress has taken throughout our
Nation’s history to preserve the writ and its function.
Indeed, most of the major legislative enactments pertain
ing to habeas corpus have acted not to contract the writ’s
protection but to expand it or to hasten resolution of pris
oners’ claims. See, e.g., Habeas Corpus Act of 1867, ch. 28,
§1, 14 Stat. 385 (current version codified at 28 U. S. C.
§2241 (2000 ed. and Supp. V) (extending the federal writ
to state prisoners)); Cf. Harris v. Nelson, 394 U. S. 286,
299–300 (1969) (interpreting the All Writs Act, 28 U. S. C.
§1651, to allow discovery in habeas corpus proceedings);
Peyton v. Rowe, 391 U. S. 54, 64–65 (1968) (interpreting
the then-existing version of §2241 to allow petitioner to
proceed with his habeas corpus action, even though he had
not yet begun to serve his sentence).
There are exceptions, of course. Title I of the Antiterror
ism and Effective Death Penalty Act of 1996 (AEDPA),
§106, 110 Stat. 1220, contains certain gatekeeping provi
sions that restrict a prisoner’s ability to bring new and
repetitive claims in “second or successive” habeas corpus
actions. We upheld these provisions against a Suspension
45 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
Clause challenge in Felker v. Turpin, 518 U. S. 651, 662–
664 (1996). The provisions at issue in Felker, however, did
not constitute a substantial departure from common-law
habeas procedures. The provisions, for the most part,
codified the longstanding abuse-of-the-writ doctrine. Id.,
at 664; see also McCleskey v. Zant, 499 U. S. 467, 489
(1991). AEDPA applies, moreover, to federal, postconvic
tion review after criminal proceedings in state court have
taken place. As of this point, cases discussing the imple
mentation of that statute give little helpful instruction
(save perhaps by contrast) for the instant cases, where no
trial has been held.
The two leading cases addressing habeas substitutes,
Swain v. Pressley, 430 U. S. 372 (1977), and United States
v. Hayman, 342 U. S. 205 (1952), likewise provide little
guidance here. The statutes at issue were attempts to
streamline habeas corpus relief, not to cut it back.
The statute discussed in Hayman was 28 U. S. C. §2255.
It replaced traditional habeas corpus for federal prisoners
(at least in the first instance) with a process that allowed
the prisoner to file a motion with the sentencing court on
the ground that his sentence was, inter alia, “‘imposed in
violation of the Constitution or laws of the United States.’”
342 U. S., at 207, n. 1. The purpose and effect of the stat
ute was not to restrict access to the writ but to make
postconviction proceedings more efficient. It directed
claims not to the court that had territorial jurisdiction
over the place of the petitioner’s confinement but to the
sentencing court, a court already familiar with the facts of
the case. As the Hayman Court explained
“Section 2255 . . . was passed at the instance of the
Judicial Conference to meet practical difficulties that
had arisen in administering the habeas corpus juris
diction of the federal courts. Nowhere in the history
of Section 2255 do we find any purpose to impinge
46 BOUMEDIENE v. BUSH
Opinion of the Court
upon prisoners’ rights of collateral attack upon their
convictions. On the contrary, the sole purpose was to
minimize the difficulties encountered in habeas cor
pus hearings by affording the same rights in another
and more convenient forum.” Id., at 219.
See also Hill v. United States, 368 U. S. 424, 427, 428, and
n. 5 (1962) (noting that §2255 provides a remedy in the
sentencing court that is “exactly commensurate” with the
pre-existing federal habeas corpus remedy).
The statute in Swain, D. C. Code Ann. §23–110(g)
(1973), applied to prisoners in custody under sentence of
the Superior Court of the District of Columbia. Before
enactment of the District of Columbia Court Reform and
Criminal Procedure Act of 1970 (D. C. Court Reform Act),
84 Stat. 473, those prisoners could file habeas petitions in
the United States District Court for the District of Colum
bia. The Act, which was patterned on §2255, substituted a
new collateral process in the Superior Court for the pre
existing habeas corpus procedure in the District Court.
See Swain, 430 U. S., at 374–378. But, again, the purpose
and effect of the statute was to expedite consideration of
the prisoner’s claims, not to delay or frustrate it. See id.,
at 375, n. 4 (noting that the purpose of the D. C. Court
Reform Act was to “alleviate” administrative burdens on
the District Court).
That the statutes in Hayman and Swain were designed
to strengthen, rather than dilute, the writ’s protections
was evident, furthermore, from this significant fact: Nei
ther statute eliminated traditional habeas corpus relief.
In both cases the statute at issue had a saving clause,
providing that a writ of habeas corpus would be available
if the alternative process proved inadequate or ineffective.
Swain, supra, at 381; Hayman, supra, at 223. The Court
placed explicit reliance upon these provisions in upholding
the statutes against constitutional challenges. See Swain,
47 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
supra, at 381 (noting that the provision “avoid[ed] any
serious question about the constitutionality of the stat
ute”); Hayman, supra, at 223 (noting that, because habeas
remained available as a last resort, it was unnecessary to
“reach constitutional questions”).
Unlike in Hayman and Swain, here we confront stat
utes, the DTA and the MCA, that were intended to cir
cumscribe habeas review. Congress’ purpose is evident
not only from the unequivocal nature of MCA §7’s jurisdic
tion-stripping language, 28 U. S. C. A. §2241(e)(1) (Supp.
2007) (“No court, justice, or judge shall have jurisdiction to
hear or consider an application for a writ of habeas corpus
. . .”), but also from a comparison of the DTA to the stat
utes at issue in Hayman and Swain. When interpreting a
statute, we examine related provisions in other parts of
the U. S. Code. See, e.g., West Virginia Univ. Hospitals,
Inc. v. Casey, 499 U. S. 83, 88–97 (1991); Babbitt v. Sweet
Home Chapter, Communities for Great Ore., 515 U. S. 687,
717–718 (1995) (SCALIA, J., dissenting); see generally W.
Eskridge, P. Frickey, & E. Garrett, Cases and Materials
on Legislation: Statutes and the Creation of Public Policy
1039 (3d ed. 2001). When Congress has intended to re
place traditional habeas corpus with habeas-like substi
tutes, as was the case in Hayman and Swain, it has
granted to the courts broad remedial powers to secure the
historic office of the writ. In the §2255 context, for exam
ple, Congress has granted to the reviewing court power to
“determine the issues and make findings of fact and con
clusions of law” with respect to whether “the judgment [of
conviction] was rendered without jurisdiction, or . . . the
sentence imposed was not authorized by law or otherwise
open to collateral attack.” 28 U. S. C. A. §2255(b) (Supp.
2008). The D. C. Court Reform Act, the statute upheld in
Swain, contained a similar provision. §23–110(g), 84 Stat.
609.
In contrast the DTA’s jurisdictional grant is quite lim
48 BOUMEDIENE v. BUSH
Opinion of the Court
ited. The Court of Appeals has jurisdiction not to inquire
into the legality of the detention generally but only to
assess whether the CSRT complied with the “standards
and procedures specified by the Secretary of Defense” and
whether those standards and procedures are lawful. DTA
§1005(e)(2)(C), 119 Stat. 2742. If Congress had envisioned
DTA review as coextensive with traditional habeas corpus,
it would not have drafted the statute in this manner.
Instead, it would have used language similar to what it
used in the statutes at issue in Hayman and Swain. Cf.
Russello v. United States, 464 U. S. 16, 23 (1983)
(“‘[W]here Congress includes particular language in one
section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion’” (quoting United States v. Wong Kim Bo, 472
F. 2d 720, 722 (CA5 1972))). Unlike in Hayman and
Swain, moreover, there has been no effort to preserve
habeas corpus review as an avenue of last resort. No
saving clause exists in either the MCA or the DTA. And
MCA §7 eliminates habeas review for these petitioners.
The differences between the DTA and the habeas stat
ute that would govern in MCA §7’s absence, 28 U. S. C.
§2241 (2000 ed. and Supp. V), are likewise telling. In
§2241 (2000 ed.) Congress confirmed the authority of “any
justice” or “circuit judge” to issue the writ. Cf. Felker, 518
U. S., at 660–661 (interpreting Title I of AEDPA to not
strip from this Court the power to entertain original ha
beas corpus petitions). That statute accommodates the
necessity for factfinding that will arise in some cases by
allowing the appellate judge or Justice to transfer the case
to a district court of competent jurisdiction, whose institu
tional capacity for factfinding is superior to his or her own.
See 28 U. S. C. §2241(b). By granting the Court of Ap
peals “exclusive” jurisdiction over petitioners’ cases, see
DTA §1005(e)(2)(A), 119 Stat. 2742, Congress has fore
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closed that option. This choice indicates Congress in
tended the Court of Appeals to have a more limited role in
enemy combatant status determinations than a district
court has in habeas corpus proceedings. The DTA should
be interpreted to accord some latitude to the Court of
Appeals to fashion procedures necessary to make its re
view function a meaningful one, but, if congressional
intent is to be respected, the procedures adopted cannot be
as extensive or as protective of the rights of the detainees
as they would be in a §2241 proceeding. Otherwise there
would have been no, or very little, purpose for enacting the
DTA.
To the extent any doubt remains about Congress’ intent,
the legislative history confirms what the plain text
strongly suggests: In passing the DTA Congress did not
intend to create a process that differs from traditional
habeas corpus process in name only. It intended to create
a more limited procedure. See, e.g., 151 Cong. Rec. S14263
(Dec. 21, 2005) (statement of Sen. Graham) (noting that
the DTA “extinguish[es] these habeas and other actions in
order to effect a transfer of jurisdiction over these cases to
the DC Circuit Court” and agreeing that the bill “create[s]
in their place a very limited judicial review of certain
military administrative decisions”); id., at S14268 (state
ment of Sen. Kyl) (“It is important to note that the limited
judicial review authorized by paragraphs 2 and 3 of sub
section (e) [of DTA §1005] are not habeas-corpus review.
It is a limited judicial review of its own nature”).
It is against this background that we must interpret the
DTA and assess its adequacy as a substitute for habeas
corpus. The present cases thus test the limits of the Sus
pension Clause in ways that Hayman and Swain did not.
B
We do not endeavor to offer a comprehensive summary
of the requisites for an adequate substitute for habeas
50 BOUMEDIENE v. BUSH
Opinion of the Court
corpus. We do consider it uncontroversial, however, that
the privilege of habeas corpus entitles the prisoner to a
meaningful opportunity to demonstrate that he is being
held pursuant to “the erroneous application or interpreta
tion” of relevant law. St. Cyr, 533 U. S., at 302. And the
habeas court must have the power to order the conditional
release of an individual unlawfully detained—though
release need not be the exclusive remedy and is not the
appropriate one in every case in which the writ is granted.
See Ex parte Bollman, 4 Cranch 75, 136 (1807) (where
imprisonment is unlawful, the court “can only direct [the
prisoner] to be discharged”); R. Hurd, Treatise on the
Right of Personal Liberty, and On the Writ of Habeas
Corpus and the Practice Connected with It: With a View of
the Law of Extradition of Fugitives 222 (2d ed. 1876) (“It
cannot be denied where ‘a probable ground is shown that
the party is imprisoned without just cause, and therefore,
hath a right to be delivered,’ for the writ then becomes a
‘writ of right, which may not be denied but ought to be
granted to every man that is committed or detained in
prison or otherwise restrained of his liberty’”). But see
Chessman v. Teets, 354 U. S. 156, 165–166 (1957) (re
manding in a habeas case for retrial within a “reasonable
time”). These are the easily identified attributes of any
constitutionally adequate habeas corpus proceeding.
But, depending on the circumstances, more may be
required.
Indeed, common-law habeas corpus was, above all, an
adaptable remedy. Its precise application and scope
changed depending upon the circumstances. See 3 Black-
stone *131 (describing habeas as “the great and efficacious
writ, in all manner of illegal confinement”); see also
Schlup v. Delo, 513 U. S. 298, 319 (1995) (Habeas “is, at
its core, an equitable remedy”); Jones v. Cunningham, 371
U. S. 236, 243 (1963) (Habeas is not “a static, narrow,
formalistic remedy; its scope has grown to achieve its
51 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
grand purpose”). It appears the common-law habeas
court’s role was most extensive in cases of pretrial and
noncriminal detention, where there had been little or no
previous judicial review of the cause for detention. Nota
bly, the black-letter rule that prisoners could not contro
vert facts in the jailer’s return was not followed (or at least
not with consistency) in such cases. Hurd, supra, at 271
(noting that the general rule was “subject to exceptions”
including cases of bail and impressment); Oakes, Legal
History in the High Court—Habeas Corpus, 64 Mich. L.
Rev. 451, 457 (1966) (“[W]hen a prisoner applied for ha
beas corpus before indictment or trial, some courts exam
ined the written depositions on which he had been ar
rested or committed, and others even heard oral testimony
to determine whether the evidence was sufficient to justi
fying holding him for trial” (footnotes omitted)); Fallon &
Meltzer, Habeas Corpus Jurisdiction, Substantive Rights,
and the War on Terror, 120 Harv. L. Rev. 2029, 2102
(2007) (“[T]he early practice was not consistent: courts
occasionally permitted factual inquiries when no other
opportunity for judicial review existed”).
There is evidence from 19th-century American sources
indicating that, even in States that accorded strong res
judicata effect to prior adjudications, habeas courts in this
country routinely allowed prisoners to introduce exculpa
tory evidence that was either unknown or previously
unavailable to the prisoner. See, e.g., Ex parte Pattison,
56 Miss. 161, 164 (1878) (noting that “[w]hile the former
adjudication must be considered as conclusive on the
testimony then adduced” “newly developed exculpatory
evidence . . . may authorize the admission to bail”); Ex
parte Foster, 5 Tex. Ct. App. 625, 644 (1879) (construing
the State’s habeas statute to allow for the introduction of
new evidence “where important testimony has been ob
tained, which, though not newly discovered, or which,
though known to [the petitioner], it was not in his power
52 BOUMEDIENE v. BUSH
Opinion of the Court
to produce at the former hearing; [and] where the evidence
was newly discovered”); People v. Martin, 7 N. Y. Leg. Obs.
49, 56 (1848) (“If in custody on criminal process before
indictment, the prisoner has an absolute right to demand
that the original depositions be looked into to see whether
any crime is in fact imputed to him, and the inquiry will
by no means be confined to the return. Facts out of the
return may be gone into to ascertain whether the commit
ting magistrate may not have arrived at an illogical con
clusion upon the evidence given before him . . .”); see
generally W. Church, Treatise on the Writ of Habeas
Corpus §182, p. 235 1886) (hereinafter Church) (noting
that habeas courts would “hear evidence anew if justice
require it”). Justice McLean, on Circuit in 1855, expressed
his view that a habeas court should consider a prior judg
ment conclusive “where there was clearly jurisdiction and
a full and fair hearing; but that it might not be so consid
ered when any of these requisites were wanting.” Ex parte
Robinson, 20 F. Cas. 969, 971, (No. 11,935) (CC Ohio
1855). To illustrate the circumstances in which the prior
adjudication did not bind the habeas court, he gave the
example of a case in which “[s]everal unimpeached wit
nesses” provided new evidence to exculpate the prisoner.
Ibid.
The idea that the necessary scope of habeas review in
part depends upon the rigor of any earlier proceedings
accords with our test for procedural adequacy in the due
process context. See Mathews v. Eldridge, 424 U. S. 319,
335 (1976) (noting that the Due Process Clause requires
an assessment of, inter alia, “the risk of an erroneous
deprivation of [a liberty interest;] and the probable value,
if any, of additional or substitute procedural safeguards”).
This principle has an established foundation in habeas
corpus jurisprudence as well, as Chief Justice Marshall’s
opinion in Ex parte Watkins, 3 Pet. 193 (1830), demon
strates. Like the petitioner in Swain, Watkins sought a
53 Cite as: 553 U. S. ____ (2008)
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writ of habeas corpus after being imprisoned pursuant to a
judgment of a District of Columbia court. In holding that
the judgment stood on “high ground,” 3 Pet., at 209, the
Chief Justice emphasized the character of the court that
rendered the original judgment, noting it was a “court of
record, having general jurisdiction over criminal cases.”
Id., at 203. In contrast to “inferior” tribunals of limited
jurisdiction, ibid., courts of record had broad remedial
powers, which gave the habeas court greater confidence in
the judgment’s validity. See generally Neuman, Habeas
Corpus, Executive Detention, and the Removal of Aliens,
98 Colum. L. Rev. 961, 982–983 (1998).
Accordingly, where relief is sought from a sentence that
resulted from the judgment of a court of record, as was the
case in Watkins and indeed in most federal habeas cases,
considerable deference is owed to the court that ordered
confinement. See Brown v. Allen, 344 U. S. 443, 506
(1953) (opinion of Frankfurter, J.) (noting that a federal
habeas court should accept a state court’s factual findings
unless “a vital flaw be found in the process of ascertaining
such facts in the State court”). Likewise in those cases the
prisoner should exhaust adequate alternative remedies
before filing for the writ in federal court. See Ex parte
Royall, 117 U. S. 241, 251–252 (1886) (requiring exhaus
tion of state collateral processes). Both aspects of federal
habeas corpus review are justified because it can be as
sumed that, in the usual course, a court of record provides
defendants with a fair, adversary proceeding. In cases
involving state convictions this framework also respects
federalism; and in federal cases it has added justification
because the prisoner already has had a chance to seek
review of his conviction in a federal forum through a direct
appeal. The present cases fall outside these categories,
however; for here the detention is by executive order.
Where a person is detained by executive order, rather
than, say, after being tried and convicted in a court, the
54 BOUMEDIENE v. BUSH
Opinion of the Court
need for collateral review is most pressing. A criminal
conviction in the usual course occurs after a judicial hear
ing before a tribunal disinterested in the outcome and
committed to procedures designed to ensure its own inde
pendence. These dynamics are not inherent in executive
detention orders or executive review procedures. In this
context the need for habeas corpus is more urgent. The
intended duration of the detention and the reasons for it
bear upon the precise scope of the inquiry. Habeas corpus
proceedings need not resemble a criminal trial, even when
the detention is by executive order. But the writ must be
effective. The habeas court must have sufficient authority
to conduct a meaningful review of both the cause for de
tention and the Executive’s power to detain.
To determine the necessary scope of habeas corpus
review, therefore, we must assess the CSRT process, the
mechanism through which petitioners’ designation as
enemy combatants became final. Whether one character
izes the CSRT process as direct review of the Executive’s
battlefield determination that the detainee is an enemy
combatant—as the parties have and as we do—or as the
first step in the collateral review of a battlefield determi
nation makes no difference in a proper analysis of whether
the procedures Congress put in place are an adequate
substitute for habeas corpus. What matters is the sum
total of procedural protections afforded to the detainee at
all stages, direct and collateral.
Petitioners identify what they see as myriad deficiencies
in the CSRTs. The most relevant for our purposes are the
constraints upon the detainee’s ability to rebut the factual
basis for the Government’s assertion that he is an enemy
combatant. As already noted, see Part IV–C, supra, at the
CSRT stage the detainee has limited means to find or
present evidence to challenge the Government’s case
against him. He does not have the assistance of counsel
and may not be aware of the most critical allegations that
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the Government relied upon to order his detention. See
App. to Pet. for Cert. in No. 06–1196, at 156, ¶F(8) (noting
that the detainee can access only the “unclassified portion
of the Government Information”). The detainee can con
front witnesses that testify during the CSRT proceedings.
Id., at 144, ¶g(8). But given that there are in effect no
limits on the admission of hearsay evidence—the only
requirement is that the tribunal deem the evidence “rele
vant and helpful,” ibid., ¶g(9)—the detainee’s opportunity
to question witnesses is likely to be more theoretical than
real.
The Government defends the CSRT process, arguing
that it was designed to conform to the procedures sug
gested by the plurality in Hamdi. See 542 U. S., at 538.
Setting aside the fact that the relevant language in Hamdi
did not garner a majority of the Court, it does not control
the matter at hand. None of the parties in Hamdi argued
there had been a suspension of the writ. Nor could they.
The §2241 habeas corpus process remained in place, id., at
525. Accordingly, the plurality concentrated on whether
the Executive had the authority to detain and, if so, what
rights the detainee had under the Due Process Clause.
True, there are places in the Hamdi plurality opinion
where it is difficult to tell where its extrapolation of §2241
ends and its analysis of the petitioner’s Due Process rights
begins. But the Court had no occasion to define the neces
sary scope of habeas review, for Suspension Clause pur
poses, in the context of enemy combatant detentions. The
closest the plurality came to doing so was in discussing
whether, in light of separation-of-powers concerns, §2241
should be construed to forbid the District Court from
inquiring beyond the affidavit Hamdi’s custodian provided
in answer to the detainee’s habeas petition. The plurality
answered this question with an emphatic “no.” Id., at 527
(labeling this argument as “extreme”); id., at 535–536.
Even if we were to assume that the CSRTs satisfy due
56 BOUMEDIENE v. BUSH
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process standards, it would not end our inquiry. Habeas
corpus is a collateral process that exists, in Justice
Holmes’ words, to “cu[t] through all forms and g[o] to the
very tissue of the structure. It comes in from the outside,
not in subordination to the proceedings, and although
every form may have been preserved opens the inquiry
whether they have been more than an empty shell.”
Frank v. Mangum, 237 U. S. 309, 346 (1915) (dissenting
opinion). Even when the procedures authorizing detention
are structurally sound, the Suspension Clause remains
applicable and the writ relevant. See 2 Chambers, Course
of Lectures on English Law 1767–1773, at 6 (“Liberty may
be violated either by arbitrary imprisonment without law
or the appearance of law, or by a lawful magistrate for an
unlawful reason”). This is so, as Hayman and Swain
make clear, even where the prisoner is detained after a
criminal trial conducted in full accordance with the protec
tions of the Bill of Rights. Were this not the case, there
would have been no reason for the Court to inquire into
the adequacy of substitute habeas procedures in Hayman
and Swain. That the prisoners were detained pursuant to
the most rigorous proceedings imaginable, a full criminal
trial, would have been enough to render any habeas sub
stitute acceptable per se.
Although we make no judgment as to whether the
CSRTs, as currently constituted, satisfy due process stan
dards, we agree with petitioners that, even when all the
parties involved in this process act with diligence and in
good faith, there is considerable risk of error in the tribu
nal’s findings of fact. This is a risk inherent in any proc
ess that, in the words of the former Chief Judge of the
Court of Appeals, is “closed and accusatorial.” See Bis-
mullah III, 514 F. 3d, at 1296 (Ginsburg, C. J., concurring
in denial of rehearing en banc). And given that the conse
quence of error may be detention of persons for the dura
tion of hostilities that may last a generation or more, this
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is a risk too significant to ignore.
For the writ of habeas corpus, or its substitute, to func
tion as an effective and proper remedy in this context, the
court that conducts the habeas proceeding must have the
means to correct errors that occurred during the CSRT
proceedings. This includes some authority to assess the
sufficiency of the Government’s evidence against the
detainee. It also must have the authority to admit and
consider relevant exculpatory evidence that was not intro
duced during the earlier proceeding. Federal habeas
petitioners long have had the means to supplement the
record on review, even in the postconviction habeas set
ting. See Townsend v. Sain, 372 U. S. 293, 313 (1963),
overruled in part by Keeney v. Tamayo-Reyes, 504 U. S. 1,
5 (1992). Here that opportunity is constitutionally
required.
Consistent with the historic function and province of the
writ, habeas corpus review may be more circumscribed if
the underlying detention proceedings are more thorough
than they were here. In two habeas cases involving enemy
aliens tried for war crimes, In re Yamashita, 327 U. S. 1
(1946), and Ex parte Quirin, 317 U. S. 1 (1942), for exam
ple, this Court limited its review to determining whether
the Executive had legal authority to try the petitioners by
military commission. See Yamashita, supra, at 8 (“[O]n
application for habeas corpus we are not concerned with
the guilt or innocence of the petitioners. We consider here
only the lawful power of the commission to try the peti
tioner for the offense charged”); Quirin, supra, at 25 (“We
are not here concerned with any question of the guilt or
innocence of petitioners”). Military courts are not courts of
record. See Watkins, 3 Pet., at 209; Church 513. And the
procedures used to try General Yamashita have been
sharply criticized by Members of this Court. See Hamdan,
548 U. S., at 617; Yamashita, supra, at 41–81 (Rutledge,
J., dissenting). We need not revisit these cases, however.
58 BOUMEDIENE v. BUSH
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For on their own terms, the proceedings in Yamashita and
Quirin, like those in Eisentrager, had an adversarial
structure that is lacking here. See Yamashita, supra, at 5
(noting that General Yamashita was represented by six
military lawyers and that “[t]hroughout the proceedings
. . . defense counsel . . . demonstrated their professional
skill and resourcefulness and their proper zeal for the
defense with which they were charged”); Quirin, supra, at
23–24; Exec. Order No. 9185, 7 Fed. Reg. 5103 (1942)
(appointing counsel to represent the German saboteurs).
The extent of the showing required of the Government
in these cases is a matter to be determined. We need not
explore it further at this stage. We do hold that when the
judicial power to issue habeas corpus properly is invoked
the judicial officer must have adequate authority to make
a determination in light of the relevant law and facts and
to formulate and issue appropriate orders for relief, in
cluding, if necessary, an order directing the prisoner’s
release.
C
We now consider whether the DTA allows the Court of
Appeals to conduct a proceeding meeting these standards.
“[W]e are obligated to construe the statute to avoid [con
stitutional] problems” if it is “‘fairly possible’” to do so. St.
Cyr, 533 U. S., at 299–300 (quoting Crowell v. Benson, 285
U. S. 22, 62 (1932)). There are limits to this principle,
however. The canon of constitutional avoidance does not
supplant traditional modes of statutory interpretation.
See Clark v. Martinez, 543 U. S. 371, 385 (2005) (“The
canon of constitutional avoidance comes into play only
when, after the application of ordinary textual analysis,
the statute is found to be susceptible of more than one
construction; and the canon functions as a means of choos-
ing between them”). We cannot ignore the text and pur
pose of a statute in order to save it.
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The DTA does not explicitly empower the Court of Ap
peals to order the applicant in a DTA review proceeding
released should the court find that the standards and
procedures used at his CSRT hearing were insufficient to
justify detention. This is troubling. Yet, for present pur
poses, we can assume congressional silence permits a
constitutionally required remedy. In that case it would be
possible to hold that a remedy of release is impliedly
provided for. The DTA might be read, furthermore, to
allow the petitioners to assert most, if not all, of the legal
claims they seek to advance, including their most basic
claim: that the President has no authority under the
AUMF to detain them indefinitely. (Whether the Presi
dent has such authority turns on whether the AUMF
authorizes—and the Constitution permits—the indefinite
detention of “enemy combatants” as the Department of
Defense defines that term. Thus a challenge to the Presi
dent’s authority to detain is, in essence, a challenge to the
Department’s definition of enemy combatant, a “standard”
used by the CSRTs in petitioners’ cases.) At oral argu
ment, the Solicitor General urged us to adopt both these
constructions, if doing so would allow MCA §7 to remain
intact. See Tr. of Oral Arg. 37, 53.
The absence of a release remedy and specific language
allowing AUMF challenges are not the only constitutional
infirmities from which the statute potentially suffers,
however. The more difficult question is whether the DTA
permits the Court of Appeals to make requisite findings of
fact. The DTA enables petitioners to request “review” of
their CSRT determination in the Court of Appeals, DTA
§1005(e)(2)(B)(i), 119 Stat. 2742; but the “Scope of Review”
provision confines the Court of Appeals’ role to reviewing
whether the CSRT followed the “standards and proce
dures” issued by the Department of Defense and assessing
whether those “standards and procedures” are lawful.
§1005(e)(C), ibid. Among these standards is “the require
60 BOUMEDIENE v. BUSH
Opinion of the Court
ment that the conclusion of the Tribunal be supported by a
preponderance of the evidence . . . allowing a rebuttable
presumption in favor of the Government’s evidence.”
§1005(e)(C)(i), ibid.
Assuming the DTA can be construed to allow the Court
of Appeals to review or correct the CSRT’s factual deter
minations, as opposed to merely certifying that the tribu
nal applied the correct standard of proof, we see no way to
construe the statute to allow what is also constitutionally
required in this context: an opportunity for the detainee to
present relevant exculpatory evidence that was not made
part of the record in the earlier proceedings.
On its face the statute allows the Court of Appeals to
consider no evidence outside the CSRT record. In the
parallel litigation, however, the Court of Appeals deter
mined that the DTA allows it to order the production of all
“‘reasonably available information in the possession of the
U. S. Government bearing on the issue of whether the
detainee meets the criteria to be designated as an enemy
combatant,’” regardless of whether this evidence was put
before the CSRT. See Bismullah I, 501 F. 3d, at 180. The
Government, see Pet. for Cert. pending in Gates v. Bismul-
lah, No. 07–1054 (hereinafter Bismullah Pet.), with sup
port from five members of the Court of Appeals, see Bis-
mullah III, 514 F. 3d, at 1299 (Henderson, J., dissenting
from denial of rehearing en banc); id., at 1302 (opinion of
Randolph, J.) (same); id., at 1306 (opinion of Brown, J.)
(same), disagrees with this interpretation. For present
purposes, however, we can assume that the Court of Ap
peals was correct that the DTA allows introduction and
consideration of relevant exculpatory evidence that was
“reasonably available” to the Government at the time of
the CSRT but not made part of the record. Even so, the
DTA review proceeding falls short of being a constitution
ally adequate substitute, for the detainee still would have
no opportunity to present evidence discovered after the
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CSRT proceedings concluded.
Under the DTA the Court of Appeals has the power to
review CSRT determinations by assessing the legality of
standards and procedures. This implies the power to
inquire into what happened at the CSRT hearing and,
perhaps, to remedy certain deficiencies in that proceeding.
But should the Court of Appeals determine that the CSRT
followed appropriate and lawful standards and proce
dures, it will have reached the limits of its jurisdiction.
There is no language in the DTA that can be construed to
allow the Court of Appeals to admit and consider newly
discovered evidence that could not have been made part of
the CSRT record because it was unavailable to either the
Government or the detainee when the CSRT made its
findings. This evidence, however, may be critical to the
detainee’s argument that he is not an enemy combatant
and there is no cause to detain him.
This is not a remote hypothetical. One of the petition
ers, Mohamed Nechla, requested at his CSRT hearing that
the Government contact his employer. The petitioner
claimed the employer would corroborate Nechla’s conten
tion he had no affiliation with al Qaeda. Although the
CSRT determined this testimony would be relevant, it also
found the witness was not reasonably available to testify
at the time of the hearing. Petitioner’s counsel, however,
now represents the witness is available to be heard. See
Brief for Boumediene Petitioners 5. If a detainee can
present reasonably available evidence demonstrating
there is no basis for his continued detention, he must have
the opportunity to present this evidence to a habeas cor
pus court. Even under the Court of Appeals’ generous
construction of the DTA, however, the evidence identified
by Nechla would be inadmissible in a DTA review proceed
ing. The role of an Article III court in the exercise of its
habeas corpus function cannot be circumscribed in this
manner.
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By foreclosing consideration of evidence not presented or
reasonably available to the detainee at the CSRT proceed
ings, the DTA disadvantages the detainee by limiting the
scope of collateral review to a record that may not be
accurate or complete. In other contexts, e.g., in post-trial
habeas cases where the prisoner already has had a full
and fair opportunity to develop the factual predicate of his
claims, similar limitations on the scope of habeas review
may be appropriate. See Williams v. Taylor, 529 U. S.
420, 436–437 (2000) (noting that §2254 “does not equate
prisoners who exercise diligence in pursuing their claims
with those who do not”). In this context, however, where
the underlying detention proceedings lack the necessary
adversarial character, the detainee cannot be held respon
sible for all deficiencies in the record.
The Government does not make the alternative argu
ment that the DTA allows for the introduction of previ
ously unavailable exculpatory evidence on appeal. It does
point out, however, that if a detainee obtains such evi
dence, he can request that the Deputy Secretary of De
fense convene a new CSRT. See Supp. Brief for Respon
dents 4. Whatever the merits of this procedure, it is an
insufficient replacement for the factual review these de
tainees are entitled to receive through habeas corpus. The
Deputy Secretary’s determination whether to initiate new
proceedings is wholly a discretionary one. See Dept. of
Defense, Office for the Administrative Review of the De
tention of Enemy Combatants, Instruction 5421.1, Proce
dure for Review of “New Evidence” Relating to Enemy
Combatant (EC) Status ¶5(d) (May 7, 2007) (Instruction
5421.1) (“The decision to convene a CSRT to reconsider the
basis of the detainee’s [enemy combatant] status in light of
‘new evidence’ is a matter vested in the unreviewable
discretion of the [Deputy Secretary of Defense]”). And we
see no way to construe the DTA to allow a detainee to
challenge the Deputy Secretary’s decision not to open a
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new CSRT pursuant to Instruction 5421.1. Congress
directed the Secretary of Defense to devise procedures for
considering new evidence, see DTA §1005(a)(3), but the
detainee has no mechanism for ensuring that those proce
dures are followed. DTA §1005(e)(2)(C), 119 Stat. 2742,
makes clear that the Court of Appeals’ jurisdiction is
“limited to consideration of . . . whether the status deter
mination of the Combatant Status Review Tribunal with
regard to such alien was consistent with the standards
and procedures specified by the Secretary of Defense . . .
and . . . whether the use of such standards and procedures
to make the determination is consistent with the Constitu
tion and laws of the United States.” DTA §1005(e)(2)(A),
ibid., further narrows the Court of Appeals’ jurisdiction to
reviewing “any final decision of a Combatant Status Re
view Tribunal that an alien is properly detained as an
enemy combatant.” The Deputy Secretary’s determination
whether to convene a new CSRT is not a “status determi
nation of the Combatant Status Review Tribunal,” much
less a “final decision” of that body.
We do not imply DTA review would be a constitutionally
sufficient replacement for habeas corpus but for these
limitations on the detainee’s ability to present exculpatory
evidence. For even if it were possible, as a textual matter,
to read into the statute each of the necessary procedures
we have identified, we could not overlook the cumulative
effect of our doing so. To hold that the detainees at Guan
tanamo may, under the DTA, challenge the President’s
legal authority to detain them, contest the CSRT’s find
ings of fact, supplement the record on review with excul
patory evidence, and request an order of release would
come close to reinstating the §2241 habeas corpus process
Congress sought to deny them. The language of the stat
ute, read in light of Congress’ reasons for enacting it,
cannot bear this interpretation. Petitioners have met
their burden of establishing that the DTA review process
64 BOUMEDIENE v. BUSH
Opinion of the Court
is, on its face, an inadequate substitute for habeas corpus.
Although we do not hold that an adequate substitute
must duplicate §2241 in all respects, it suffices that the
Government has not established that the detainees’ access
to the statutory review provisions at issue is an adequate
substitute for the writ of habeas corpus. MCA §7 thus
effects an unconstitutional suspension of the writ. In view
of our holding we need not discuss the reach of the writ
with respect to claims of unlawful conditions of treatment
or confinement.
VI
A
In light of our conclusion that there is no jurisdictional
bar to the District Court’s entertaining petitioners’ claims
the question remains whether there are prudential barri
ers to habeas corpus review under these circumstances.
The Government argues petitioners must seek review of
their CSRT determinations in the Court of Appeals before
they can proceed with their habeas corpus actions in the
District Court. As noted earlier, in other contexts and for
prudential reasons this Court has required exhaustion of
alternative remedies before a prisoner can seek federal
habeas relief. Most of these cases were brought by prison
ers in state custody, e.g., Ex parte Royall, 117 U. S. 241,
and thus involved federalism concerns that are not rele
vant here. But we have extended this rule to require
defendants in courts-martial to exhaust their military
appeals before proceeding with a federal habeas corpus
action. See Schlesinger, 420 U. S., at 758.
The real risks, the real threats, of terrorist attacks are
constant and not likely soon to abate. The ways to disrupt
our life and laws are so many and unforeseen that the
Court should not attempt even some general catalogue of
crises that might occur. Certain principles are apparent,
however. Practical considerations and exigent circum
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stances inform the definition and reach of the law’s writs,
including habeas corpus. The cases and our tradition
reflect this precept.
In cases involving foreign citizens detained abroad by
the Executive, it likely would be both an impractical and
unprecedented extension of judicial power to assume that
habeas corpus would be available at the moment the
prisoner is taken into custody. If and when habeas corpus
jurisdiction applies, as it does in these cases, then proper
deference can be accorded to reasonable procedures for
screening and initial detention under lawful and proper
conditions of confinement and treatment for a reasonable
period of time. Domestic exigencies, furthermore, might
also impose such onerous burdens on the Government that
here, too, the Judicial Branch would be required to devise
sensible rules for staying habeas corpus proceedings until
the Government can comply with its requirements in a
responsible way. Cf. Ex parte Milligan, 4 Wall., at 127
(“If, in foreign invasion or civil war, the courts are actually
closed, and it is impossible to administer criminal justice
according to law, then, on the theatre of active military
operations, where war really prevails, there is a necessity
to furnish a substitute for the civil authority, thus over
thrown, to preserve the safety of the army and society; and
as no power is left but the military, it is allowed to govern
by martial rule until the laws can have their free course”).
Here, as is true with detainees apprehended abroad, a
relevant consideration in determining the courts’ role is
whether there are suitable alternative processes in place
to protect against the arbitrary exercise of governmental
power.
The cases before us, however, do not involve detainees
who have been held for a short period of time while await
ing their CSRT determinations. Were that the case, or
were it probable that the Court of Appeals could complete
a prompt review of their applications, the case for requir
66 BOUMEDIENE v. BUSH
Opinion of the Court
ing temporary abstention or exhaustion of alternative
remedies would be much stronger. These qualifications no
longer pertain here. In some of these cases six years have
elapsed without the judicial oversight that habeas corpus
or an adequate substitute demands. And there has been
no showing that the Executive faces such onerous burdens
that it cannot respond to habeas corpus actions. To re
quire these detainees to complete DTA review before
proceeding with their habeas corpus actions would be to
require additional months, if not years, of delay. The first
DTA review applications were filed over a year ago, but no
decisions on the merits have been issued. While some
delay in fashioning new procedures is unavoidable, the
costs of delay can no longer be borne by those who are held
in custody. The detainees in these cases are entitled to a
prompt habeas corpus hearing.
Our decision today holds only that the petitioners before
us are entitled to seek the writ; that the DTA review
procedures are an inadequate substitute for habeas cor
pus; and that the petitioners in these cases need not ex
haust the review procedures in the Court of Appeals before
proceeding with their habeas actions in the District Court.
The only law we identify as unconstitutional is MCA §7,
28 U. S. C. A. §2241(e) (Supp. 2007). Accordingly, both the
DTA and the CSRT process remain intact. Our holding
with regard to exhaustion should not be read to imply that
a habeas court should intervene the moment an enemy
combatant steps foot in a territory where the writ runs.
The Executive is entitled to a reasonable period of time to
determine a detainee’s status before a court entertains
that detainee’s habeas corpus petition. The CSRT process
is the mechanism Congress and the President set up to
deal with these issues. Except in cases of undue delay,
federal courts should refrain from entertaining an enemy
combatant’s habeas corpus petition at least until after the
Department, acting via the CSRT, has had a chance to
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review his status.
B
Although we hold that the DTA is not an adequate and
effective substitute for habeas corpus, it does not follow
that a habeas corpus court may disregard the dangers the
detention in these cases was intended to prevent. Felker,
Swain, and Hayman stand for the proposition that the
Suspension Clause does not resist innovation in the field
of habeas corpus. Certain accommodations can be made to
reduce the burden habeas corpus proceedings will place on
the military without impermissibly diluting the protec
tions of the writ.
In the DTA Congress sought to consolidate review of
petitioners’ claims in the Court of Appeals. Channeling
future cases to one district court would no doubt reduce
administrative burdens on the Government. This is a
legitimate objective that might be advanced even without
an amendment to §2241. If, in a future case, a detainee
files a habeas petition in another judicial district in which
a proper respondent can be served, see Rumsfeld v.
Padilla, 542 U. S. 426, 435–436 (2004), the Government
can move for change of venue to the court that will hear
these petitioners’ cases, the United States District Court
for the District of Columbia. See 28 U. S. C. §1404(a);
Braden v. 30th Judicial Circuit Court of Ky., 410 U. S.
484, 499, n. 15 (1973).
Another of Congress’ reasons for vesting exclusive juris
diction in the Court of Appeals, perhaps, was to avoid the
widespread dissemination of classified information. The
Government has raised similar concerns here and else
where. See Brief for Respondents 55–56; Bismullah Pet.
30. We make no attempt to anticipate all of the eviden
tiary and access-to-counsel issues that will arise during
the course of the detainees’ habeas corpus proceedings.
We recognize, however, that the Government has a legiti
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Opinion of the Court
mate interest in protecting sources and methods of intelli
gence gathering; and we expect that the District Court will
use its discretion to accommodate this interest to the
greatest extent possible. Cf. United States v. Reynolds,
345 U. S. 1, 10 (1953) (recognizing an evidentiary privilege
in a civil damages case where “there is a reasonable dan
ger that compulsion of the evidence will expose military
matters which, in the interest of national security, should
not be divulged”).
These and the other remaining questions are within the
expertise and competence of the District Court to address
in the first instance.
* * *
In considering both the procedural and substantive
standards used to impose detention to prevent acts of
terrorism, proper deference must be accorded to the politi
cal branches. See United States v. Curtiss-Wright Export
Corp., 299 U. S. 304, 320 (1936). Unlike the President and
some designated Members of Congress, neither the Mem
bers of this Court nor most federal judges begin the day
with briefings that may describe new and serious threats
to our Nation and its people. The law must accord the
Executive substantial authority to apprehend and detain
those who pose a real danger to our security.
Officials charged with daily operational responsibility
for our security may consider a judicial discourse on the
history of the Habeas Corpus Act of 1679 and like matters
to be far removed from the Nation’s present, urgent con
cerns. Established legal doctrine, however, must be con
sulted for its teaching. Remote in time it may be; irrele
vant to the present it is not. Security depends upon a
sophisticated intelligence apparatus and the ability of our
Armed Forces to act and to interdict. There are further
considerations, however. Security subsists, too, in fidelity
to freedom’s first principles. Chief among these are free
69 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
dom from arbitrary and unlawful restraint and the per
sonal liberty that is secured by adherence to the separa
tion of powers. It is from these principles that the judicial
authority to consider petitions for habeas corpus relief
derives.
Our opinion does not undermine the Executive’s powers
as Commander in Chief. On the contrary, the exercise of
those powers is vindicated, not eroded, when confirmed by
the Judicial Branch. Within the Constitution’s separa
tion-of-powers structure, few exercises of judicial power
are as legitimate or as necessary as the responsibility to
hear challenges to the authority of the Executive to im
prison a person. Some of these petitioners have been in
custody for six years with no definitive judicial determina
tion as to the legality of their detention. Their access to
the writ is a necessity to determine the lawfulness of their
status, even if, in the end, they do not obtain the relief
they seek.
Because our Nation’s past military conflicts have been of
limited duration, it has been possible to leave the outer
boundaries of war powers undefined. If, as some fear,
terrorism continues to pose dangerous threats to us for
years to come, the Court might not have this luxury. This
result is not inevitable, however. The political branches,
consistent with their independent obligations to interpret
and uphold the Constitution, can engage in a genuine
debate about how best to preserve constitutional values
while protecting the Nation from terrorism. Cf. Hamdan,
548 U. S., at 636 (BREYER, J., concurring) (“[J]udicial
insistence upon that consultation does not weaken our
Nation’s ability to deal with danger. To the contrary, that
insistence strengthens the Nation’s ability to determine—
through democratic means—how best to do so”).
It bears repeating that our opinion does not address the
content of the law that governs petitioners’ detention.
That is a matter yet to be determined. We hold that peti
70 BOUMEDIENE v. BUSH
Opinion of the Court
tioners may invoke the fundamental procedural protec
tions of habeas corpus. The laws and Constitution are
designed to survive, and remain in force, in extraordinary
times. Liberty and security can be reconciled; and in our
system they are reconciled within the framework of the
law. The Framers decided that habeas corpus, a right of
first importance, must be a part of that framework, a part
of that law.
The determination by the Court of Appeals that the
Suspension Clause and its protections are inapplicable to
petitioners was in error. The judgment of the Court of
Appeals is reversed. The cases are remanded to the Court
of Appeals with instructions that it remand the cases to
the District Court for proceedings consistent with this
opinion.
It is so ordered.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
SOUTER, J., concurring
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
JUSTICE SOUTER, with whom JUSTICE GINSBURG and
JUSTICE BREYER join, concurring.
I join the Court’s opinion in its entirety and add this
afterword only to emphasize two things one might over-
look after reading the dissents.
Four years ago, this Court in Rasul v. Bush, 542 U. S.
466 (2004) held that statutory habeas jurisdiction ex-
tended to claims of foreign nationals imprisoned by the
United States at Guantanamo Bay, “to determine the
legality of the Executive’s potentially indefinite detention”
of them, id., at 485. Subsequent legislation eliminated the
statutory habeas jurisdiction over these claims, so that
now there must be constitutionally based jurisdiction or
none at all. JUSTICE SCALIA is thus correct that here, for
the first time, this Court holds there is (he says “confers”)
constitutional habeas jurisdiction over aliens imprisoned
2 BOUMEDIENE v. BUSH
SOUTER, J., concurring
by the military outside an area of de jure national sover-
eignty, see post, at 1 (dissenting opinion). But no one who
reads the Court’s opinion in Rasul could seriously doubt
that the jurisdictional question must be answered the
same way in purely constitutional cases, given the Court’s
reliance on the historical background of habeas generally
in answering the statutory question. See, e.g., 542 U. S.,
at 473, 481–483, and nn. 11–14. Indeed, the Court in
Rasul directly answered the very historical question that
JUSTICE SCALIA says is dispositive, see post, at 18; it wrote
that “[a]pplication of the habeas statute to persons de-
tained at [Guantanamo] is consistent with the historical
reach of the writ of habeas corpus,” 542 U. S., at 481.
JUSTICE SCALIA dismisses the statement as dictum, see
post, at 21, but if dictum it was, it was dictum well consid-
ered, and it stated the view of five Members of this Court
on the historical scope of the writ. Of course, it takes more
than a quotation from Rasul, however much on point, to
resolve the constitutional issue before us here, which the
majority opinion has explored afresh in the detail it de-
serves. But whether one agrees or disagrees with today’s
decision, it is no bolt out of the blue.
A second fact insufficiently appreciated by the dissents
is the length of the disputed imprisonments, some of the
prisoners represented here today having been locked up
for six years, ante, at 66 (opinion of the Court). Hence the
hollow ring when the dissenters suggest that the Court is
somehow precipitating the judiciary into reviewing claims
that the military (subject to appeal to the Court of Appeals
for the District of Columbia Circuit) could handle within
some reasonable period of time. See, e.g., post, at 3 (opin-
ion of ROBERTS, C. J.) (“[T]he Court should have declined
to intervene until the D. C. Circuit had assessed the na-
ture and validity of the congressionally mandated proceed-
ings in a given detainee’s case”); post, at 6 (“[I]t is not
necessary to consider the availability of the writ until the
3 Cite as: 553 U. S. ____ (2008)
SOUTER, J., concurring
statutory remedies have been shown to be inadequate”);
post, at 8 (“[The Court] rushes to decide the fundamental
question of the reach of habeas corpus when the function-
ing of the DTA may make that decision entirely unneces-
sary”). These suggestions of judicial haste are all the more
out of place given the Court’s realistic acknowledgment
that in periods of exigency the tempo of any habeas review
must reflect the immediate peril facing the country. See
ante, at 64–65.
It is in fact the very lapse of four years from the time
Rasul put everyone on notice that habeas process was
available to Guantanamo prisoners, and the lapse of six
years since some of these prisoners were captured and
incarcerated, that stand at odds with the repeated sugges-
tions of the dissenters that these cases should be seen as a
judicial victory in a contest for power between the Court
and the political branches. See post, at 2, 3, 28 (ROBERTS,
C. J., dissenting); post, at 5, 6, 17, 18, 25 (SCALIA, J., dis-
senting). The several answers to the charge of triumphal-
ism might start with a basic fact of Anglo-American con-
stitutional history: that the power, first of the Crown and
now of the Executive Branch of the United States, is nec-
essarily limited by habeas corpus jurisdiction to enquire
into the legality of executive detention. And one could
explain that in this Court’s exercise of responsibility to
preserve habeas corpus something much more significant
is involved than pulling and hauling between the judicial
and political branches. Instead, though, it is enough to
repeat that some of these petitioners have spent six years
behind bars. After six years of sustained executive deten-
tions in Guantanamo, subject to habeas jurisdiction but
without any actual habeas scrutiny, today’s decision is no
judicial victory, but an act of perseverance in trying to
make habeas review, and the obligation of the courts to
provide it, mean something of value both to prisoners and
to the Nation. See ante, at 69.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA,
JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
Today the Court strikes down as inadequate the most
generous set of procedural protections ever afforded aliens
detained by this country as enemy combatants. The po
litical branches crafted these procedures amidst an ongo
ing military conflict, after much careful investigation and
thorough debate. The Court rejects them today out of
hand, without bothering to say what due process rights
the detainees possess, without explaining how the statute
fails to vindicate those rights, and before a single peti
tioner has even attempted to avail himself of the law’s
operation. And to what effect? The majority merely re
places a review system designed by the people’s represen
tatives with a set of shapeless procedures to be defined by
federal courts at some future date. One cannot help but
2 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
think, after surveying the modest practical results of the
majority’s ambitious opinion, that this decision is not
really about the detainees at all, but about control of
federal policy regarding enemy combatants.
The majority is adamant that the Guantanamo detain
ees are entitled to the protections of habeas corpus—its
opinion begins by deciding that question. I regard the
issue as a difficult one, primarily because of the unique
and unusual jurisdictional status of Guantanamo Bay. I
nonetheless agree with JUSTICE SCALIA’s analysis of our
precedents and the pertinent history of the writ, and
accordingly join his dissent. The important point for me,
however, is that the Court should have resolved these
cases on other grounds. Habeas is most fundamentally a
procedural right, a mechanism for contesting the legality
of executive detention. The critical threshold question in
these cases, prior to any inquiry about the writ’s scope, is
whether the system the political branches designed pro
tects whatever rights the detainees may possess. If so,
there is no need for any additional process, whether called
“habeas” or something else.
Congress entrusted that threshold question in the first
instance to the Court of Appeals for the District of Colum
bia Circuit, as the Constitution surely allows Congress to do.
See Detainee Treatment Act of 2005 (DTA), §1005(e)(2)(A),
119 Stat. 2742. But before the D. C. Circuit has addressed
the issue, the Court cashiers the statute, and without
answering this critical threshold question itself. The
Court does eventually get around to asking whether re
view under the DTA is, as the Court frames it, an “ade
quate substitute” for habeas, ante, at 42, but even then its
opinion fails to determine what rights the detainees pos
sess and whether the DTA system satisfies them. The
majority instead compares the undefined DTA process to
an equally undefined habeas right—one that is to be given
shape only in the future by district courts on a case-by
3 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
case basis. This whole approach is misguided.
It is also fruitless. How the detainees’ claims will be
decided now that the DTA is gone is anybody’s guess. But
the habeas process the Court mandates will most likely
end up looking a lot like the DTA system it replaces, as
the district court judges shaping it will have to reconcile
review of the prisoners’ detention with the undoubted
need to protect the American people from the terrorist
threat—precisely the challenge Congress undertook in
drafting the DTA. All that today’s opinion has done is
shift responsibility for those sensitive foreign policy and
national security decisions from the elected branches to
the Federal Judiciary.
I believe the system the political branches constructed
adequately protects any constitutional rights aliens cap
tured abroad and detained as enemy combatants may
enjoy. I therefore would dismiss these cases on that
ground. With all respect for the contrary views of the
majority, I must dissent.
I
The Court’s opinion makes plain that certiorari to re
view these cases should never have been granted. As two
Members of today’s majority once recognized, “traditional
rules governing our decision of constitutional questions
and our practice of requiring the exhaustion of available
remedies . . . make it appropriate to deny these petitions.”
Boumediene v. Bush, 549 U. S. ___ (2007) (slip op., at 1)
(citation omitted) (statement of STEVENS and KENNEDY,
JJ., respecting denial of certiorari). Just so. Given the
posture in which these cases came to us, the Court should
have declined to intervene until the D. C. Circuit had
assessed the nature and validity of the congressionally
mandated proceedings in a given detainee’s case.
The political branches created a two-part, collateral
review procedure for testing the legality of the prisoners’
4 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
detention: It begins with a hearing before a Combatant
Status Review Tribunal (CSRT) followed by review in the
D. C. Circuit. As part of that review, Congress authorized
the D. C. Circuit to decide whether the CSRT proceedings
are consistent with “the Constitution and laws of the
United States.” DTA §1005(e)(2)(C), 119 Stat. 2742. No
petitioner, however, has invoked the D. C. Circuit review
the statute specifies. See 476 F. 3d 981, 994, and n. 16
(CADC 2007); Brief for Federal Respondents 41–43. As a
consequence, that court has had no occasion to decide
whether the CSRT hearings, followed by review in the
Court of Appeals, vindicate whatever constitutional and
statutory rights petitioners may possess. See 476 F. 3d, at
994, and n. 16.
Remarkably, this Court does not require petitioners to
exhaust their remedies under the statute; it does not wait
to see whether those remedies will prove sufficient to
protect petitioners’ rights. Instead, it not only denies the
D. C. Circuit the opportunity to assess the statute’s reme
dies, it refuses to do so itself: the majority expressly de
clines to decide whether the CSRT procedures, coupled
with Article III review, satisfy due process. See ante, at
54.
It is grossly premature to pronounce on the detainees’
right to habeas without first assessing whether the reme
dies the DTA system provides vindicate whatever rights
petitioners may claim. The plurality in Hamdi v. Rums-
feld, 542 U. S. 507, 533 (2004), explained that the Consti
tution guaranteed an American citizen challenging his
detention as an enemy combatant the right to “notice of
the factual basis for his classification, and a fair opportu
nity to rebut the Government’s factual assertions before a
neutral decisionmaker.” The plurality specifically stated
that constitutionally adequate collateral process could be
provided “by an appropriately authorized and properly
constituted military tribunal,” given the “uncommon
5 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
potential to burden the Executive at a time of ongoing
military conflict.” Id., at 533, 538. This point is directly
pertinent here, for surely the Due Process Clause does not
afford non-citizens in such circumstances greater protec
tion than citizens are due.
If the CSRT procedures meet the minimal due process
requirements outlined in Hamdi, and if an Article III
court is available to ensure that these procedures are
followed in future cases, see id., at 536; INS v. St. Cyr, 533
U. S. 289, 304 (2001); Heikkila v. Barber, 345 U. S. 229,
236 (1953), there is no need to reach the Suspension
Clause question. Detainees will have received all the
process the Constitution could possibly require, whether
that process is called “habeas” or something else. The
question of the writ’s reach need not be addressed.
This is why the Court should have required petitioners
to exhaust their remedies under the statute. As we ex
plained in Gusik v. Schilder, 340 U. S. 128, 132 (1950), “If
an available procedure has not been employed to rectify
the alleged error” petitioners complain of, “any interfer
ence by [a] federal court may be wholly needless. The
procedure established to police the errors of the tribunal
whose judgment is challenged may be adequate for the
occasion.” Because the majority refuses to assess whether
the CSRTs comport with the Constitution, it ends up
razing a system of collateral review that it admits may in
fact satisfy the Due Process Clause and be “structurally
sound.” Ante, at 56. But if the collateral review proce
dures Congress has provided—CSRT review coupled with
Article III scrutiny—are sound, interference by a federal
habeas court may be entirely unnecessary.
The only way to know is to require petitioners to use the
alternative procedures Congress designed. Mandating
that the petitioners exhaust their statutory remedies “is in
no sense a suspension of the writ of habeas corpus. It is
merely a deferment of resort to the writ until other correc
6 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
tive procedures are shown to be futile.” Gusik, supra, at
132. So too here, it is not necessary to consider the avail
ability of the writ until the statutory remedies have been
shown to be inadequate to protect the detainees’ rights.
Cf. 28 U. S. C. §2254(b)(1)(A) (“An application for a writ of
habeas corpus . . . shall not be granted unless it appears
that . . . the applicant has exhausted the remedies avail
able in the courts of the State”). Respect for the judg
ments of Congress—whose Members take the same oath
we do to uphold the Constitution—requires no less.
In the absence of any assessment of the DTA’s remedies,
the question whether detainees are entitled to habeas is
an entirely speculative one. Our precedents have long
counseled us to avoid deciding such hypothetical questions
of constitutional law. See Spector Motor Service, Inc. v.
McLaughlin, 323 U. S. 101, 105 (1944) (“If there is one
doctrine more deeply rooted than any other in the process
of constitutional adjudication, it is that we ought not to
pass on questions of constitutionality . . . unless such
[questions are] unavoidable”); see also Ashwander v. TVA,
297 U. S. 288, 347 (1936) (Brandeis, J., concurring) (Con
stitutional questions should not be decided unless “ ‘abso
lutely necessary to a decision of the case’” (quoting Burton
v. United States, 196 U. S. 283, 295 (1905))). This is a
“fundamental rule of judicial restraint.” Three Affiliated
Tribes of Fort Berthold Reservation v. Wold Engineering,
P. C., 467 U. S. 138, 157 (1984).
The Court acknowledges that “the ordinary course”
would be not to decide the constitutionality of the DTA at
this stage, but abandons that “ordinary course” in light of
the “gravity” of the constitutional issues presented and the
prospect of additional delay. Ante, at 43. It is, however,
precisely when the issues presented are grave that adher
ence to the ordinary course is most important. A principle
applied only when unimportant is not much of a principle
at all, and charges of judicial activism are most effectively
7 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
rebutted when courts can fairly argue they are following
normal practices.
The Court is also concerned that requiring petitioners to
pursue “DTA review before proceeding with their habeas
corpus actions” could involve additional delay. Ante, at 66.
The nature of the habeas remedy the Court instructs
lower courts to craft on remand, however, is far more
unsettled than the process Congress provided in the DTA.
See ante, at 69 (“[O]ur opinion does not address the con
tent of the law that governs petitioners’ detention. That is
a matter yet to be determined”). There is no reason to
suppose that review according to procedures the Federal
Judiciary will design, case by case, will proceed any faster
than the DTA process petitioners disdained.
On the contrary, the system the Court has launched
(and directs lower courts to elaborate) promises to take
longer. The Court assures us that before bringing their
habeas petitions, detainees must usually complete the
CSRT process. See ante, at 66. Then they may seek re
view in federal district court. Either success or failure
there will surely result in an appeal to the D. C. Circuit—
exactly where judicial review starts under Congress’s
system. The effect of the Court’s decision is to add addi
tional layers of quite possibly redundant review. And
because nobody knows how these new layers of “habeas”
review will operate, or what new procedures they will
require, their contours will undoubtedly be subject to fresh
bouts of litigation. If the majority were truly concerned
about delay, it would have required petitioners to use the
DTA process that has been available to them for 21⁄2 years,
with its Article III review in the D. C. Circuit. That sys
tem might well have provided petitioners all the relief to
which they are entitled long before the Court’s newly
installed habeas review could hope to do so.1
——————
1
In light of the foregoing, the concurrence is wrong to suggest that I
8 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
The Court’s refusal to require petitioners to exhaust the
remedies provided by Congress violates the “traditional
rules governing our decision of constitutional questions.”
Boumediene, 549 U. S., at ___ (slip op., at 1) (statement of
STEVENS and KENNEDY, JJ., respecting denial of certio
rari). The Court’s disrespect for these rules makes its
decision an awkward business. It rushes to decide the
fundamental question of the reach of habeas corpus when
the functioning of the DTA may make that decision entirely
unnecessary, and it does so with scant idea of how DTA
judicial review will actually operate.
II
The majority’s overreaching is particularly egregious
given the weakness of its objections to the DTA. Simply
put, the Court’s opinion fails on its own terms. The major
ity strikes down the statute because it is not an “adequate
substitute” for habeas review, ante, at 42, but fails to show
what rights the detainees have that cannot be vindicated
by the DTA system.
Because the central purpose of habeas corpus is to test
the legality of executive detention, the writ requires most
fundamentally an Article III court able to hear the pris
——————
“insufficiently appreciat[e]” the issue of delay in these cases. See ante,
at 2 (opinion of SOUTER, J.). This Court issued its decisions in Rasul v.
Bush, 542 U. S. 466, and Hamdi v. Rumsfeld 542 U. S. 507, in 2004.
The concurrence makes it sound as if the political branches have done
nothing in the interim. In fact, Congress responded 18 months later by
enacting the DTA. Congress cannot be faulted for taking that time to
consider how best to accommodate both the detainees’ interests and the
need to keep the American people safe. Since the DTA became law,
petitioners have steadfastly refused to avail themselves of the statute’s
review mechanisms. It is unfair to complain that the DTA system
involves too much delay when petitioners have consistently refused to
use it, preferring to litigate instead. Today’s decision obligating district
courts to craft new procedures to replace those in the DTA will only
prolong the process—and delay relief.
9 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
oner’s claims and, when necessary, order release. See
Brown v. Allen, 344 U. S. 443, 533 (1953) (Jackson, J.,
concurring in result). Beyond that, the process a given
prisoner is entitled to receive depends on the circum
stances and the rights of the prisoner. See Mathews v.
Eldridge, 424 U. S. 319, 335 (1976). After much hemming
and hawing, the majority appears to concede that the DTA
provides an Article III court competent to order release.
See ante, at 61. The only issue in dispute is the process
the Guantanamo prisoners are entitled to use to test the
legality of their detention. Hamdi concluded that Ameri
can citizens detained as enemy combatants are entitled to
only limited process, and that much of that process could
be supplied by a military tribunal, with review to follow in
an Article III court. That is precisely the system we have
here. It is adequate to vindicate whatever due process
rights petitioners may have.
A
The Court reaches the opposite conclusion partly be
cause it misreads the statute. The majority appears not to
understand how the review system it invalidates actually
works—specifically, how CSRT review and review by the
D. C. Circuit fit together. After briefly acknowledging in
its recitation of the facts that the Government designed
the CSRTs “to comply with the due process requirements
identified by the plurality in Hamdi,” ante, at 3, the Court
proceeds to dismiss the tribunal proceedings as no more
than a suspect method used by the Executive for deter
mining the status of the detainees in the first instance, see
ante, at 43. This leads the Court to treat the review the
DTA provides in the D. C. Circuit as the only opportunity
detainees have to challenge their status determination.
See ante, at 49.
The Court attempts to explain its glancing treatment of
the CSRTs by arguing that “[w]hether one characterizes
10 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
the CSRT process as direct review of the Executive’s bat
tlefield determination . . . or as the first step in the collat
eral review of a battlefield determination makes no differ
ence.” Ante, at 54. First of all, the majority is quite wrong
to dismiss the Executive’s determination of detainee
status as no more than a “battlefield” judgment, as if it
were somehow provisional and made in great haste. In
fact, detainees are designated “enemy combatants” only
after “multiple levels of review by military officers and
officials of the Department of Defense.” Memorandum of
the Secretary of the Navy, Implementation of Combatant
Status Review Tribunal Procedures for Enemy Combat
ants Detained at Guantanamo Bay Naval Base (July 29,
2004), App. J to Pet. for Cert. in No. 06–1196, p. 150 (here
inafter Implementation Memo).
The majority is equally wrong to characterize the
CSRTs as part of that initial determination process. They
are instead a means for detainees to challenge the Gov
ernment’s determination. The Executive designed the
CSRTs to mirror Army Regulation 190–8, see Brief for
Federal Respondents 48, the very procedural model the
plurality in Hamdi said provided the type of process an
enemy combatant could expect from a habeas court, see
542 U. S., at 538 (plurality opinion). The CSRTs operate
much as habeas courts would if hearing the detainee’s
collateral challenge for the first time: They gather evi
dence, call witnesses, take testimony, and render a deci
sion on the legality of the Government’s detention. See
Implementation Memo, App. J to Pet. for Cert. in No. 06–
1196, at 153–162. If the CSRT finds a particular detainee
has been improperly held, it can order release. See id., at
164.
The majority insists that even if “the CSRTs satisf[ied]
due process standards,” full habeas review would still be
necessary, because habeas is a collateral remedy available
even to prisoners “detained pursuant to the most rigorous
11 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
proceedings imaginable.” Ante, at 55, 56. This comment
makes sense only if the CSRTs are incorrectly viewed as a
method used by the Executive for determining the prison
ers’ status, and not as themselves part of the collateral
review to test the validity of that determination. See
Gusik, 340 U. S., at 132. The majority can deprecate the
importance of the CSRTs only by treating them as some
thing they are not.
The use of a military tribunal such as the CSRTs to
review the aliens’ detention should be familiar to this
Court in light of the Hamdi plurality, which said that the
due process rights enjoyed by American citizens detained
as enemy combatants could be vindicated “by an appropri
ately authorized and properly constituted military tribu
nal.” 542 U. S., at 538. The DTA represents Congress’
considered attempt to provide the accused alien combat
ants detained at Guantanamo a constitutionally adequate
opportunity to contest their detentions before just such a
tribunal.
But Congress went further in the DTA. CSRT review is
just the first tier of collateral review in the DTA system.
The statute provides additional review in an Article III
court. Given the rationale of today’s decision, it is well
worth recalling exactly what the DTA provides in this
respect. The statute directs the D. C. Circuit to consider
whether a particular alien’s status determination “was
consistent with the standards and procedures specified by
the Secretary of Defense” and “whether the use of such
standards and procedures to make the determination is
consistent with the Constitution and laws of the United
States.” DTA §1005(e)(2)(C), 119 Stat. 2742. That is, a
court determines whether the CSRT procedures are consti
tutional, and a court determines whether those procedures
were followed in a particular case.
In short, the Hamdi plurality concluded that this type of
review would be enough to satisfy due process, even for
12 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
citizens. See 542 U. S., at 538. Congress followed the
Court’s lead, only to find itself the victim of a constitu
tional bait and switch.
Hamdi merits scant attention from the Court—a re
markable omission, as Hamdi bears directly on the issues
before us. The majority attempts to dismiss Hamdi’s
relevance by arguing that because the availability of
§2241 federal habeas was never in doubt in that case, “the
Court had no occasion to define the necessary scope of
habeas review . . . in the context of enemy combatant
detentions.” Ante, at 55. Hardly. Hamdi was all about
the scope of habeas review in the context of enemy com
batant detentions. The petitioner, an American citizen
held within the United States as an enemy combatant,
invoked the writ to challenge his detention. 542 U. S., at
510–511. After “a careful examination both of the writ . . .
and of the Due Process Clause,” this Court enunciated the
“basic process” the Constitution entitled Hamdi to expect
from a habeas court under §2241. Id., at 525, 534. That
process consisted of the right to “receive notice of the
factual basis for his classification, and a fair opportunity
to rebut the Government’s factual assertions before a
neutral decisionmaker.” Id., at 533. In light of the Gov
ernment’s national security responsibilities, the plurality
found the process could be “tailored to alleviate [the]
uncommon potential to burden the Executive at a time of
ongoing military conflict.” Ibid. For example, the Gov
ernment could rely on hearsay and could claim a presump
tion in favor of its own evidence. See id., at 533–534.
Hamdi further suggested that this “basic process” on
collateral review could be provided by a military tribunal.
It pointed to prisoner-of-war tribunals as a model that
would satisfy the Constitution’s requirements. See id., at
538. Only “[i]n the absence of such process” before a mili
tary tribunal, the Court held, would Article III courts need
to conduct full-dress habeas proceedings to “ensure that
13 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
the minimum requirements of due process are achieved.”
Ibid. (emphasis added). And even then, the petitioner
would be entitled to no more process than he would have
received from a properly constituted military review panel,
given his limited due process rights and the Government’s
weighty interests. See id., at 533–534, 538.
Contrary to the majority, Hamdi is of pressing relevance
because it establishes the procedures American citizens
detained as enemy combatants can expect from a habeas
court proceeding under §2241. The DTA system of military
tribunal hearings followed by Article III review looks a lot
like the procedure Hamdi blessed. If nothing else, it is
plain from the design of the DTA that Congress, the
President, and this Nation’s military leaders have made a
good-faith effort to follow our precedent.
The Court, however, will not take “yes” for an answer.
The majority contends that “[i]f Congress had envisioned
DTA review as coextensive with traditional habeas corpus,”
it would have granted the D. C. Circuit far broader review
authority. Ante, at 48. Maybe so, but that comment reveals
the majority’s misunderstanding. “[T]raditional habeas
corpus” takes no account of what Hamdi recognized as the
“uncommon potential to burden the Executive at a time of
ongoing military conflict.” 542 U. S., at 533. Besides, Con
gress and the Executive did not envision “DTA review”—
by which I assume the Court means D. C. Circuit review,
see ante, at 48—as the detainees’ only opportunity to
challenge their detentions. Instead, the political branches
crafted CSRT and D. C. Circuit review to operate together,
with the goal of providing noncitizen detainees the level of
collateral process Hamdi said would satisfy the due proc
ess rights of American citizens. See Brief for Federal
Respondents 48–53.
B
Given the statutory scheme the political branches
14 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
adopted, and given Hamdi, it simply will not do for the
majority to dismiss the CSRT procedures as “far more
limited” than those used in military trials, and therefore
beneath the level of process “that would eliminate the
need for habeas corpus review.” Ante, at 37. The question
is not how much process the CSRTs provide in comparison
to other modes of adjudication. The question is whether
the CSRT procedures—coupled with the judicial review
specified by the DTA—provide the “basic process” Hamdi
said the Constitution affords American citizens detained
as enemy combatants. See 542 U. S., at 534.
By virtue of its refusal to allow the D. C. Circuit to
assess petitioners’ statutory remedies, and by virtue of its
own refusal to consider, at the outset, the fit between
those remedies and due process, the majority now finds
itself in the position of evaluating whether the DTA sys
tem is an adequate substitute for habeas review without
knowing what rights either habeas or the DTA is supposed
to protect. The majority attempts to elide this problem by
holding that petitioners have a right to habeas corpus and
then comparing the DTA against the “historic office” of the
writ. Ante, at 47. But habeas is, as the majority acknowl
edges, a flexible remedy rather than a substantive right.
Its “precise application . . . change[s] depending upon the
circumstances.” Ante, at 50. The shape of habeas review
ultimately depends on the nature of the rights a petitioner
may assert. See, e.g., Reid v. Covert, 354 U. S. 1, 75 (1957)
(Harlan, J., concurring in result) (“[T]he question of which
specific safeguards of the Constitution are appropriately to
be applied in a particular context . . . can be reduced to the
issue of what process is ‘due’ a defendant in the particular
circumstances of a particular case”).
The scope of federal habeas review is traditionally more
limited in some contexts than in others, depending on the
status of the detainee and the rights he may assert. See
St. Cyr, 533 U. S., at 306 (“In [immigration cases], other
15 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
than the question whether there was some evidence to
support the [deportation] order, the courts generally did
not review factual determinations made by the Executive”
(footnote omitted)); Burns v. Wilson, 346 U. S. 137, 139
(1953) (plurality opinion) (“[I]n military habeas corpus the
inquiry, the scope of matters open for review, has always
been more narrow than in civil cases”); In re Yamashita,
327 U. S. 1, 8 (1946) (“The courts may inquire whether the
detention complained of is within the authority of those
detaining the petitioner. If the military tribunals have
lawful authority to hear, decide and condemn, their action
is not subject to judicial review”); Ex parte Quirin, 317 U. S.
1, 25 (1942) (federal habeas review of military commission
verdict limited to determining commission’s jurisdiction).
Declaring that petitioners have a right to habeas in no
way excuses the Court from explaining why the DTA does
not protect whatever due process or statutory rights peti
tioners may have. Because if the DTA provides a means
for vindicating petitioners’ rights, it is necessarily an
adequate substitute for habeas corpus. See Swain v.
Pressley, 430 U. S. 372, 381 (1977); United States v. Hay-
man, 342 U. S. 205, 223 (1952).
For my part, I will assume that any due process rights
petitioners may possess are no greater than those of
American citizens detained as enemy combatants. It is
worth noting again that the Hamdi controlling opinion
said the Constitution guarantees citizen detainees only
“basic” procedural rights, and that the process for securing
those rights can “be tailored to alleviate [the] uncommon
potential to burden the Executive at a time of ongoing
military conflict.” 542 U. S., at 533. The majority, how
ever, objects that “the procedural protections afforded to
the detainees in the CSRT hearings are . . . limited.” Ante,
at 37. But the evidentiary and other limitations the Court
complains of reflect the nature of the issue in contest,
namely, the status of aliens captured by our Armed Forces
16 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
abroad and alleged to be enemy combatants. Contrary to
the repeated suggestions of the majority, DTA review need
not parallel the habeas privileges enjoyed by noncombat
ant American citizens, as set out in 28 U. S. C. §2241
(2000 ed. and Supp V). Cf. ante, at 46–47. It need only
provide process adequate for noncitizens detained as
alleged combatants.
To what basic process are these detainees due as habeas
petitioners? We have said that “at the absolute mini
mum,” the Suspension Clause protects the writ “‘as it
existed in 1789.’” St. Cyr, supra, at 301 (quoting Felker v.
Turpin, 518 U. S. 651, 663–664 (1996)). The majority
admits that a number of historical authorities suggest
that at the time of the Constitution’s ratification, “com
mon-law courts abstained altogether from matters involv
ing prisoners of war.” Ante, at 17. If this is accurate, the
process provided prisoners under the DTA is plainly more
than sufficient—it allows alleged combatants to challenge
both the factual and legal bases of their detentions.
Assuming the constitutional baseline is more robust, the
DTA still provides adequate process, and by the majority’s
own standards. Today’s Court opines that the Suspension
Clause guarantees prisoners such as the detainees “a
meaningful opportunity to demonstrate that [they are]
being held pursuant to the erroneous application or inter
pretation of relevant law.” Ante, at 50 (internal quotation
marks omitted). Further, the Court holds that to be an
adequate substitute, any tribunal reviewing the detainees’
cases “must have the power to order the conditional re
lease of an individual unlawfully detained.” Ibid. The
DTA system—CSRT review of the Executive’s determina
tion followed by D. C. Circuit review for sufficiency of the
evidence and the constitutionality of the CSRT process—
meets these criteria.
17 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
C
At the CSRT stage, every petitioner has the right to
present evidence that he has been wrongfully detained.
This includes the right to call witnesses who are reasona
bly available, question witnesses called by the tribunal,
introduce documentary evidence, and testify before the
tribunal. See Implementation Memo, App. J to Pet. for
Cert. in No. 06–1196, at 154–156, 158–159, 161.
While the Court concedes detainees may confront all
witnesses called before the tribunal, it suggests this right
is “more theoretical than real” because “there are in effect
no limits on the admission of hearsay evidence.” Ante, at
55. The Court further complains that petitioners lack “the
assistance of counsel,” and—given the limits on their
access to classified information—“may not be aware of the
most critical allegations” against them. Ante, at 54. None
of these complaints is persuasive.
Detainees not only have the opportunity to confront any
witness who appears before the tribunal, they may call
witnesses of their own. The Implementation Memo re
quires only that detainees’ witnesses be “reasonably avail
able,” App. J to Pet. for Cert. in No. 06–1196, at 155, a
requirement drawn from Army Regulation 190–8, ch. 1,
§1–6(e)(6), and entirely consistent with the Government’s
interest in avoiding “a futile search for evidence” that
might burden warmaking responsibilities, Hamdi, supra,
at 532. The dangerous mission assigned to our forces
abroad is to fight terrorists, not serve subpoenas. The
Court is correct that some forms of hearsay evidence are
admissible before the CSRT, but Hamdi expressly ap
proved this use of hearsay by habeas courts. 542 U. S.,
at 533–534 (“Hearsay, for example, may need to be ac
cepted as the most reliable available evidence from the
Government”).
As to classified information, while detainees are not
permitted access to it themselves, the Implementation
18 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
Memo provides each detainee with a “Personal Represen
tative” who may review classified documents at the CSRT
stage and summarize them for the detainee. Implementa
tion Memo, supra, at 152, 154–155, 156; Brief for Federal
Respondents 54–55. The prisoner’s counsel enjoys the
same privilege on appeal before the D. C. Circuit. That is
more access to classified material for alleged alien enemy
combatants than ever before provided. I am not aware of
a single instance—and certainly the majority cites none—
in which detainees such as petitioners have been provided
access to classified material in any form. Indeed, prison
ers of war who challenge their status determinations
under the Geneva Convention are afforded no such access,
see Army Regulation 190–8, ch. 1, §§1–6(e)(3) and (5), and
the prisoner-of-war model is the one Hamdi cited as con
sistent with the demands of due process for citizens, see
542 U. S., at 538.
What alternative does the Court propose? Allow free
access to classified information and ignore the risk the
prisoner may eventually convey what he learns to parties
hostile to this country, with deadly consequences for those
who helped apprehend the detainee? If the Court can
design a better system for communicating to detainees the
substance of any classified information relevant to their
cases, without fatally compromising national security
interests and sources, the majority should come forward
with it. Instead, the majority fobs that vexing question off
on district courts to answer down the road.
Prisoners of war are not permitted access to classified
information, and neither are they permitted access to
counsel, another supposed failing of the CSRT process.
And yet the Guantanamo detainees are hardly denied all
legal assistance. They are provided a “Personal Represen
tative” who, as previously noted, may access classified
information, help the detainee arrange for witnesses,
assist the detainee’s preparation of his case, and even aid
19 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
the detainee in presenting his evidence to the tribunal.
See Implementation Memo, supra, at 161. The provision
for a personal representative on this order is one of several
ways in which the CSRT procedures are more generous
than those provided prisoners of war under Army Regula
tion 190–8.
Keep in mind that all this is just at the CSRT stage.
Detainees receive additional process before the D. C.
Circuit, including full access to appellate counsel and the
right to challenge the factual and legal bases of their
detentions. DTA §1005(e)(2)(C) empowers the Court of
Appeals to determine not only whether the CSRT observed
the “procedures specified by the Secretary of Defense,” but
also “whether the use of such standards and procedures
. . . is consistent with the Constitution and laws of the
United States.” 119 Stat. 2742. These provisions permit
detainees to dispute the sufficiency of the evidence against
them. They allow detainees to challenge a CSRT panel’s
interpretation of any relevant law, and even the constitu
tionality of the CSRT proceedings themselves. This in
cludes, as the Solicitor General acknowledges, the ability
to dispute the Government’s right to detain alleged com
batants in the first place, and to dispute the Government’s
definition of “enemy combatant.” Brief for Federal Re
spondents 59. All this before an Article III court—plainly
a neutral decisionmaker.
All told, the DTA provides the prisoners held at Guan
tanamo Bay adequate opportunity to contest the bases of
their detentions, which is all habeas corpus need allow.
The DTA provides more opportunity and more process, in
fact, than that afforded prisoners of war or any other
alleged enemy combatants in history.
D
Despite these guarantees, the Court finds the DTA
system an inadequate habeas substitute, for one central
20 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
reason: Detainees are unable to introduce at the appeal
stage exculpatory evidence discovered after the conclusion
of their CSRT proceedings. See ante, at 58. The Court
hints darkly that the DTA may suffer from other infirmi
ties, see ante, at 63 (“We do not imply DTA review would
be a constitutionally sufficient replacement for habeas
corpus but for these limitations on the detainee’s ability to
present exculpatory evidence”), but it does not bother to
name them, making a response a bit difficult. As it
stands, I can only assume the Court regards the supposed
defect it did identify as the gravest of the lot.
If this is the most the Court can muster, the ice beneath
its feet is thin indeed. As noted, the CSRT procedures
provide ample opportunity for detainees to introduce
exculpatory evidence—whether documentary in nature or
from live witnesses—before the military tribunals. See
infra, at 21–23; Implementation Memo, App. J to Pet. for
Cert. in No. 06–196, at 155–156. And if their ability to
introduce such evidence is denied contrary to the Consti
tution or laws of the United States, the D. C. Circuit has
the authority to say so on review.
Nevertheless, the Court asks us to imagine an instance
in which evidence is discovered after the CSRT panel
renders its decision, but before the Court of Appeals re
views the detainee’s case. This scenario, which of course
has not yet come to pass as no review in the D. C. Circuit
has occurred, provides no basis for rejecting the DTA as a
habeas substitute. While the majority is correct that the
DTA does not contemplate the introduction of “newly
discovered” evidence before the Court of Appeals, petition
ers and the Solicitor General agree that the DTA does
permit the D. C. Circuit to remand a detainee’s case for a
new CSRT determination. Brief for Petitioner Boumedi
ene et al. in No. 06–1195, at 30; Brief for Federal Respon
dents 60–61. In the event a detainee alleges that he has
obtained new and persuasive exculpatory evidence that
21 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
would have been considered by the tribunal below had it
only been available, the D. C. Circuit could readily remand
the case to the tribunal to allow that body to consider the
evidence in the first instance. The Court of Appeals could
later review any new or reinstated decision in light of the
supplemented record.
If that sort of procedure sounds familiar, it should.
Federal appellate courts reviewing factual determinations
follow just such a procedure in a variety of circumstances.
See, e.g., United States v. White, 492 F. 3d 380, 413 (CA6
2007) (remanding new-evidence claim to the district court
for a Brady evidentiary hearing); Avila v. Roe, 298 F. 3d
750, 754 (CA9 2002) (remanding habeas claim to the
district court for evidentiary hearing to clarify factual
record); United States v. Leone, 215 F. 3d 253, 256 (CA2
2000) (observing that when faced on direct appeal with an
underdeveloped claim for ineffective assistance of counsel,
the appellate court may remand to the district court for
necessary factfinding).
A remand is not the only relief available for detainees
caught in the Court’s hypothetical conundrum. The DTA
expressly directs the Secretary of Defense to “provide for
periodic review of any new evidence that may become
available relating to the enemy combatant status of a
detainee.” DTA §1005(a)(3). Regulations issued by the
Department of Defense provide that when a detainee puts
forward new, material evidence “not previously presented
to the detainee’s CSRT,” the Deputy Secretary of Defense
“‘will direct that a CSRT convene to reconsider the basis of
the detainee’s . . . status in light of the new information.’”
Office for the Administrative Review of the Detention of
Enemy Combatants, Instruction 5421.1, Procedure for
Review of “New Evidence” Relating to Enemy Combatant
(EC) Status ¶¶4(a)(1), 5(b) (May 7, 2007); Brief for Federal
Respondents 56, n. 30. Pursuant to DTA §1005(e)(2)(A),
the resulting CSRT determination is again reviewable in
22 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
full by the D. C. Circuit.2
In addition, DTA §1005(d)(1) further requires the De
partment of Defense to conduct a yearly review of the
status of each prisoner. See 119 Stat. 2741. The Deputy
Secretary of Defense has promulgated concomitant regula
tions establishing an Administrative Review Board to
assess “annually the need to continue to detain each en
emy combatant.” Deputy Secretary of Defense Order OSD
06942–04 (May 11, 2004), App. K to Pet. for Cert. in No.
06–1196, p. 189. In the words of the implementing order,
the purpose of this annual review is to afford every de
tainee the opportunity “to explain why he is no longer a
threat to the United States” and should be released. Ibid.
The Board’s findings are forwarded to a presidentially
appointed, Senate-confirmed civilian within the Depart
ment of Defense whom the Secretary of Defense has des
ignated to administer the review process. This designated
civilian official has the authority to order release upon the
Board’s recommendation. Id., at 201.
The Court’s hand wringing over the DTA’s treatment of
later-discovered exculpatory evidence is the most it has to
show after a roving search for constitutionally problematic
scenarios. But “[t]he delicate power of pronouncing an Act
of Congress unconstitutional,” we have said, “is not to be
exercised with reference to hypothetical cases thus imag
ined.” United States v. Raines, 362 U. S. 17, 22 (1960).
The Court today invents a sort of reverse facial challenge
——————
2
The Court wonders what might happen if the detainee puts forward
new material evidence but the Deputy Secretary refuses to convene a
new CSRT. See ante, at 62–63. The answer is that the detainee can
petition the D. C. Circuit for review. The DTA directs that the proce
dures for review of new evidence be included among “[t]he procedures
submitted under paragraph (1)(A)” governing CSRT review of enemy
combatant status §1405(a)(3), 119 Stat. 3476. It is undisputed that the
D. C. Circuit has statutory authority to review and enforce these
procedures. See DTA §1005(e)(2)(C)(i), id., at 2742.
23 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
and applies it with gusto: If there is any scenario in which
the statute might be constitutionally infirm, the law must
be struck down. Cf. United States v. Salerno, 481 U. S.
739, 745 (1987) (“A facial challenge . . . must establish that
no set of circumstances exists under which the Act would
be valid”); see also Washington v. Glucksberg, 521 U. S.
702, 739–740, and n. 7 (1997) (STEVENS, J., concurring in
judgments) (facial challenge must fail where the statute
has “‘plainly legitimate sweep’” (quoting Broadrick v.
Oklahoma, 413 U. S. 601, 615 (1973))). The Court’s new
method of constitutional adjudication only underscores its
failure to follow our usual procedures and require peti
tioners to demonstrate that they have been harmed by the
statute they challenge. In the absence of such a concrete
showing, the Court is unable to imagine a plausible hypo
thetical in which the DTA is unconstitutional.
E
The Court’s second criterion for an adequate substitute
is the “power to order the conditional release of an indi
vidual unlawfully detained.” Ante, at 50. As the Court
basically admits, the DTA can be read to permit the D. C.
Circuit to order release in light of our traditional princi
ples of construing statutes to avoid difficult constitutional
issues, when reasonably possible. See ante, at 56–57.
The Solicitor General concedes that remedial authority
of some sort must be implied in the statute, given that the
DTA—like the general habeas law itself, see 28 U. S. C.
§2243—provides no express remedy of any kind. Brief for
Federal Respondents 60–61. The parties agree that at the
least, the DTA empowers the D. C. Circuit to remand a
prisoner’s case to the CSRT with instructions to perform a
new status assessment. Brief for Petitioner Boumediene
et al. in No. 06–1195, at 30; Brief for Federal Respondents
60–61. To avoid constitutional infirmity, it is reasonable
to imply more, see Ashwander, 297 U. S., at 348 (Brandeis,
24 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
J., concurring) (“When the validity of an act of the Con
gress is drawn in question . . . it is a cardinal principle
that this Court will . . . ascertain whether a construction of
the statute is fairly possible by which the [constitutional]
question may be avoided” (internal quotation marks omit
ted)); see also St. Cyr, 533 U. S., at 299–300, especially in
view of the Solicitor General’s concession at oral argument
and in his Supplemental Brief that authority to release
might be read in the statute, see Tr. of Oral Arg. 37; Sup
plemental Brief for Federal Respondents 9.
The Court grudgingly suggests that “Congress’ silence
on the question of remedies suggests acquiescence to any
constitutionally required remedy.” Ante, at 58. But the
argument in favor of statutorily authorized release is
stronger than that. The DTA’s parallels to 28 U. S. C.
§2243 on this score are noteworthy. By way of remedy,
the general federal habeas statute provides only that the
court, having heard and determined the facts, shall “dis
pose of the matter as law and justice require.” Ibid. We
have long held, and no party here disputes, that this
includes the power to order release. See Wilkinson v.
Dotson, 544 U. S. 74, 79 (2005) (“[T]he writ’s history
makes clear that it traditionally has been accepted as the
specific instrument to obtain release from [unlawful]
confinement” (internal quotation marks omitted)).
The DTA can be similarly read. Because Congress
substituted DTA review for habeas corpus and because
the “unique purpose” of the writ is “to release the appli
cant . . . from unlawful confinement,” Allen v. McCurry,
449 U. S. 90, 98, n. 12 (1980), DTA §1005(e)(2) can and
should be read to confer on the Court of Appeals the
authority to order release in appropriate circumstances.
Section 1005(e)(2)(D) plainly contemplates release, ad
dressing the effect “release of [an] alien from the custody
of the Department of Defense” will have on the jurisdiction
of the court. 119 Stat. 2742–2743. This reading avoids
25 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
serious constitutional difficulty and is consistent with the
text of the statute.
The D. C. Circuit can thus order release, the CSRTs can
order release, and the head of the Administrative Review
Boards can, at the recommendation of those panels, order
release. These multiple release provisions within the DTA
system more than satisfy the majority’s requirement that
any tribunal substituting for a habeas court have the
authority to release the prisoner.
The basis for the Court’s contrary conclusion is summed
up in the following sentence near the end of its opinion:
“To hold that the detainees at Guantanamo may, under
the DTA, challenge the President’s legal authority to
detain them, contest the CSRT’s findings of fact, supple
ment the record on review with newly discovered or previ
ously unavailable evidence, and request an order of re
lease would come close to reinstating the §2241 habeas
corpus process Congress sought to deny them.” Ante, at
63. In other words, any interpretation of the statute that
would make it an adequate substitute for habeas must be
rejected, because Congress could not possibly have in
tended to enact an adequate substitute for habeas. The
Court could have saved itself a lot of trouble if it had
simply announced this Catch-22 approach at the begin
ning rather than the end of its opinion.
III
For all its eloquence about the detainees’ right to the
writ, the Court makes no effort to elaborate how exactly
the remedy it prescribes will differ from the procedural
protections detainees enjoy under the DTA. The Court
objects to the detainees’ limited access to witnesses and
classified material, but proposes no alternatives of its own.
Indeed, it simply ignores the many difficult questions its
holding presents. What, for example, will become of the
CSRT process? The majority says federal courts should
26 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
generally refrain from entertaining detainee challenges
until after the petitioner’s CSRT proceeding has finished.
See ante, at 66 (“[e]xcept in cases of undue delay”). But
to what deference, if any, is that CSRT determination
entitled?
There are other problems. Take witness availability.
What makes the majority think witnesses will become
magically available when the review procedure is labeled
“habeas”? Will the location of most of these witnesses
change—will they suddenly become easily susceptible to
service of process? Or will subpoenas issued by American
habeas courts run to Basra? And if they did, how would
they be enforced? Speaking of witnesses, will detainees be
able to call active-duty military officers as witnesses? If
not, why not?
The majority has no answers for these difficulties. What
it does say leaves open the distinct possibility that its
“habeas” remedy will, when all is said and done, end up
looking a great deal like the DTA review it rejects. See
ante, at 66 (opinion of the court) (“We recognize, however,
that the Government has a legitimate interest in protect
ing sources and methods of intelligence gathering, and we
expect that the District Court will use its discretion to
accommodate this interest to the greatest extent possi
ble”). But “[t]he role of the judiciary is limited to deter
mining whether the procedures meet the essential stan
dard of fairness under the Due Process Clause and does
not extend to imposing procedures that merely displace
congressional choices of policy.” Landon v. Plasencia, 459
U. S. 21, 34–35 (1982).
The majority rests its decision on abstract and hypo
thetical concerns. Step back and consider what, in the
real world, Congress and the Executive have actually
granted aliens captured by our Armed Forces overseas and
found to be enemy combatants:
• The right to hear the bases of the charges against
27 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
them, including a summary of any classified
evidence.
• The ability to challenge the bases of their detention
before military tribunals modeled after Geneva
Convention procedures. Some 38 detainees have
been released as a result of this process. Brief for
Federal Respondents 57, 60.
• The right, before the CSRT, to testify, introduce
evidence, call witnesses, question those the Gov
ernment calls, and secure release, if and when
appropriate.
• The right to the aid of a personal representative in
arranging and presenting their cases before a
CSRT.
• Before the D. C. Circuit, the right to employ coun
sel, challenge the factual record, contest the lower
tribunal’s legal determinations, ensure compliance
with the Constitution and laws, and secure release,
if any errors below establish their entitlement to
such relief.
In sum, the DTA satisfies the majority’s own criteria
for assessing adequacy. This statutory scheme provides
the combatants held at Guantanamo greater procedural
protections than have ever been afforded alleged enemy
detainees—whether citizens or aliens—in our national
history.
* * *
So who has won? Not the detainees. The Court’s analy
sis leaves them with only the prospect of further litigation
to determine the content of their new habeas right, fol
lowed by further litigation to resolve their particular cases,
followed by further litigation before the D. C. Circuit—
where they could have started had they invoked the DTA
procedure. Not Congress, whose attempt to “determine—
through democratic means—how best” to balance the
28 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
security of the American people with the detainees’ liberty
interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636
(2006) (BREYER, J., concurring), has been unceremoniously
brushed aside. Not the Great Writ, whose majesty is
hardly enhanced by its extension to a jurisdictionally
quirky outpost, with no tangible benefit to anyone. Not the
rule of law, unless by that is meant the rule of lawyers,
who will now arguably have a greater role than military
and intelligence officials in shaping policy for alien enemy
combatants. And certainly not the American people, who
today lose a bit more control over the conduct of this Na
tion’s foreign policy to unelected, politically unaccountable
judges.
I respectfully dissent.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
JUSTICE SCALIA, with whom THE CHIEF JUSTICE,
JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
Today, for the first time in our Nation’s history, the
Court confers a constitutional right to habeas corpus on
alien enemies detained abroad by our military forces in
the course of an ongoing war. THE CHIEF JUSTICE’s dis-
sent, which I join, shows that the procedures prescribed by
Congress in the Detainee Treatment Act provide the es-
sential protections that habeas corpus guarantees; there
has thus been no suspension of the writ, and no basis
exists for judicial intervention beyond what the Act allows.
My problem with today’s opinion is more fundamental
still: The writ of habeas corpus does not, and never has,
run in favor of aliens abroad; the Suspension Clause thus
has no application, and the Court’s intervention in this
military matter is entirely ultra vires.
2 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
I shall devote most of what will be a lengthy opinion to
the legal errors contained in the opinion of the Court.
Contrary to my usual practice, however, I think it appro-
priate to begin with a description of the disastrous conse-
quences of what the Court has done today.
I
America is at war with radical Islamists. The enemy
began by killing Americans and American allies abroad:
241 at the Marine barracks in Lebanon, 19 at the Khobar
Towers in Dhahran, 224 at our embassies in Dar es Sa-
laam and Nairobi, and 17 on the USS Cole in Yemen. See
National Commission on Terrorist Attacks upon the
United States, The 9/11 Commission Report, pp. 60–61,
70, 190 (2004). On September 11, 2001, the enemy
brought the battle to American soil, killing 2,749 at the
Twin Towers in New York City, 184 at the Pentagon in
Washington, D. C., and 40 in Pennsylvania. See id., at
552, n. 9. It has threatened further attacks against our
homeland; one need only walk about buttressed and barri-
caded Washington, or board a plane anywhere in the
country, to know that the threat is a serious one. Our
Armed Forces are now in the field against the enemy, in
Afghanistan and Iraq. Last week, 13 of our countrymen in
arms were killed.
The game of bait-and-switch that today’s opinion plays
upon the Nation’s Commander in Chief will make the war
harder on us. It will almost certainly cause more Ameri-
cans to be killed. That consequence would be tolerable if
necessary to preserve a time-honored legal principle vital
to our constitutional Republic. But it is this Court’s bla-
tant abandonment of such a principle that produces the
decision today. The President relied on our settled prece-
dent in Johnson v. Eisentrager, 339 U. S. 763 (1950), when
he established the prison at Guantanamo Bay for enemy
aliens. Citing that case, the President’s Office of Legal
3 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
Counsel advised him “that the great weight of legal au-
thority indicates that a federal district court could not
properly exercise habeas jurisdiction over an alien de-
tained at [Guantanamo Bay].” Memorandum from Patrick
F. Philbin and John C. Yoo, Deputy Assistant Attorneys
General, Office of Legal Counsel, to William J. Haynes II,
General Counsel, Dept. of Defense (Dec. 28, 2001). Had
the law been otherwise, the military surely would not have
transported prisoners there, but would have kept them in
Afghanistan, transferred them to another of our foreign
military bases, or turned them over to allies for detention.
Those other facilities might well have been worse for the
detainees themselves.
In the long term, then, the Court’s decision today ac-
complishes little, except perhaps to reduce the well-being
of enemy combatants that the Court ostensibly seeks to
protect. In the short term, however, the decision is devas-
tating. At least 30 of those prisoners hitherto released
from Guantanamo Bay have returned to the battlefield.
See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Views
of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn)
(hereinafter Minority Report). Some have been captured
or killed. See ibid.; see also Mintz, Released Detainees
Rejoining the Fight, Washington Post, Oct. 22, 2004, pp.
A1, A12. But others have succeeded in carrying on their
atrocities against innocent civilians. In one case, a de-
tainee released from Guantanamo Bay masterminded the
kidnapping of two Chinese dam workers, one of whom was
later shot to death when used as a human shield against
Pakistani commandoes. See Khan & Lancaster, Paki-
stanis Rescue Hostage; 2nd Dies, Washington Post, Oct.
15, 2004, p. A18. Another former detainee promptly re-
sumed his post as a senior Taliban commander and mur-
dered a United Nations engineer and three Afghan sol-
diers. Mintz, supra. Still another murdered an Afghan
judge. See Minority Report 13. It was reported only last
4 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
month that a released detainee carried out a suicide bomb-
ing against Iraqi soldiers in Mosul, Iraq. See White, Ex-
Guantanamo Detainee Joined Iraq Suicide Attack, Wash-
ington Post, May 8, 2008, p. A18.
These, mind you, were detainees whom the military had
concluded were not enemy combatants. Their return to
the kill illustrates the incredible difficulty of assessing
who is and who is not an enemy combatant in a foreign
theater of operations where the environment does not lend
itself to rigorous evidence collection. Astoundingly, the
Court today raises the bar, requiring military officials to
appear before civilian courts and defend their decisions
under procedural and evidentiary rules that go beyond
what Congress has specified. As THE CHIEF JUSTICE’s
dissent makes clear, we have no idea what those proce-
dural and evidentiary rules are, but they will be deter-
mined by civil courts and (in the Court’s contemplation at
least) will be more detainee-friendly than those now ap-
plied, since otherwise there would be no reason to hold the
congressionally prescribed procedures unconstitutional. If
they impose a higher standard of proof (from foreign bat-
tlefields) than the current procedures require, the number
of the enemy returned to combat will obviously increase.
But even when the military has evidence that it can
bring forward, it is often foolhardy to release that evidence
to the attorneys representing our enemies. And one esca-
lation of procedures that the Court is clear about is afford-
ing the detainees increased access to witnesses (perhaps
troops serving in Afghanistan?) and to classified informa-
tion. See ante, at 54–55. During the 1995 prosecution of
Omar Abdel Rahman, federal prosecutors gave the names
of 200 unindicted co-conspirators to the “Blind Sheik’s”
defense lawyers; that information was in the hands of
Osama Bin Laden within two weeks. See Minority Report
14–15. In another case, trial testimony revealed to the
enemy that the United States had been monitoring their
5 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
cellular network, whereupon they promptly stopped using
it, enabling more of them to evade capture and continue
their atrocities. See id., at 15.
And today it is not just the military that the Court
elbows aside. A mere two Terms ago in Hamdan v. Rums-
feld, 548 U. S. 557 (2006), when the Court held (quite
amazingly) that the Detainee Treatment Act of 2005 had
not stripped habeas jurisdiction over Guantanamo peti-
tioners’ claims, four Members of today’s five-Justice major-
ity joined an opinion saying the following:
“Nothing prevents the President from returning to
Congress to seek the authority [for trial by military
commission] he believes necessary.
“Where, as here, no emergency prevents consulta-
tion with Congress, judicial insistence upon that con-
sultation does not weaken our Nation’s ability to deal
with danger. To the contrary, that insistence
strengthens the Nation’s ability to determine—
through democratic means—how best to do so. The
Constitution places its faith in those democratic
means.” Id., at 636 (BREYER, J., concurring).1
Turns out they were just kidding. For in response, Con-
gress, at the President’s request, quickly enacted the
Military Commissions Act, emphatically reasserting that
it did not want these prisoners filing habeas petitions. It
is therefore clear that Congress and the Executive—both
political branches—have determined that limiting the role
——————
1
Even today, the Court cannot resist striking a pose of faux deference
to Congress and the President. Citing the above quoted passage, the
Court says: “The political branches, consistent with their independent
obligations to interpret and uphold the Constitution, can engage in a
genuine debate about how best to preserve constitutional values while
protecting the Nation from terrorism.” Ante, at 69. Indeed. What the
Court apparently means is that the political branches can debate, after
which the Third Branch will decide.
6 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
of civilian courts in adjudicating whether prisoners cap-
tured abroad are properly detained is important to success
in the war that some 190,000 of our men and women are
now fighting. As the Solicitor General argued, “the Mili-
tary Commissions Act and the Detainee Treatment Act . . .
represent an effort by the political branches to strike an
appropriate balance between the need to preserve liberty
and the need to accommodate the weighty and sensitive
governmental interests in ensuring that those who have in
fact fought with the enemy during a war do not return to
battle against the United States.” Brief for Respondents
10–11 (internal quotation marks omitted).
But it does not matter. The Court today decrees that no
good reason to accept the judgment of the other two
branches is “apparent.” Ante, at 40. “The Government,” it
declares, “presents no credible arguments that the mili-
tary mission at Guantanamo would be compromised if
habeas corpus courts had jurisdiction to hear the detain-
ees’ claims.” Id., at 39. What competence does the Court
have to second-guess the judgment of Congress and the
President on such a point? None whatever. But the Court
blunders in nonetheless. Henceforth, as today’s opinion
makes unnervingly clear, how to handle enemy prisoners
in this war will ultimately lie with the branch that knows
least about the national security concerns that the subject
entails.
II
A
The Suspension Clause of the Constitution provides:
“The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it.” Art. I, §9, cl. 2. As a
court of law operating under a written Constitution, our
role is to determine whether there is a conflict between
that Clause and the Military Commissions Act. A conflict
7 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
arises only if the Suspension Clause preserves the privi-
lege of the writ for aliens held by the United States mili-
tary as enemy combatants at the base in Guantanamo
Bay, located within the sovereign territory of Cuba.
We have frequently stated that we owe great deference
to Congress’s view that a law it has passed is constitu-
tional. See, e.g., Department of Labor v. Triplett, 494 U. S.
715, 721 (1990); United States v. National Dairy Products
Corp., 372 U. S. 29, 32 (1963); see also American Commu-
nications Assn. v. Douds, 339 U. S. 382, 435 (1950) (Jack-
son, J., concurring in part and dissenting in part). That is
especially so in the area of foreign and military affairs;
“perhaps in no other area has the Court accorded Congress
greater deference.” Rostker v. Goldberg, 453 U. S. 57, 64–
65 (1981). Indeed, we accord great deference even when
the President acts alone in this area. See Department of
Navy v. Egan, 484 U. S. 518, 529–530 (1988); Regan v.
Wald, 468 U. S. 222, 243 (1984).
In light of those principles of deference, the Court’s
conclusion that “the common law [does not] yiel[d] a defi-
nite answer to the questions before us,” ante, at 22, leaves
it no choice but to affirm the Court of Appeals. The writ
as preserved in the Constitution could not possibly extend
farther than the common law provided when that Clause
was written. See Part III, infra. The Court admits that it
cannot determine whether the writ historically extended
to aliens held abroad, and it concedes (necessarily) that
Guantanamo Bay lies outside the sovereign territory of
the United States. See ante, at 22–23; Rasul v. Bush, 542
U. S. 466, 500–501 (2004) (SCALIA, J., dissenting). To-
gether, these two concessions establish that it is (in the
Court’s view) perfectly ambiguous whether the common-
law writ would have provided a remedy for these petition-
ers. If that is so, the Court has no basis to strike down the
Military Commissions Act, and must leave undisturbed
8 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
the considered judgment of the coequal branches.2
How, then, does the Court weave a clear constitutional
prohibition out of pure interpretive equipoise? The Court
resorts to “fundamental separation-of-powers principles”
to interpret the Suspension Clause. Ante, at 25. Accord-
ing to the Court, because “the writ of habeas corpus is
itself an indispensable mechanism for monitoring the
separation of powers,” the test of its extraterritorial reach
“must not be subject to manipulation by those whose
power it is designed to restrain.” Ante, at 36.
That approach distorts the nature of the separation of
powers and its role in the constitutional structure. The
“fundamental separation-of-powers principles” that the
Constitution embodies are to be derived not from some
judicially imagined matrix, but from the sum total of the
individual separation-of-powers provisions that the Con-
stitution sets forth. Only by considering them one-by-one
does the full shape of the Constitution’s separation-of-
powers principles emerge. It is nonsensical to interpret
those provisions themselves in light of some general
“separation-of-powers principles” dreamed up by the
Court. Rather, they must be interpreted to mean what
they were understood to mean when the people ratified
them. And if the understood scope of the writ of habeas
corpus was “designed to restrain” (as the Court says) the
actions of the Executive, the understood limits upon that
——————
2
The opinion seeks to avoid this straightforward conclusion by saying
that the Court has been “careful not to foreclose the possibility that the
protections of the Suspension Clause have expanded along with post-
1789 developments that define the present scope of the writ.” Ante, at
15–16 (citing INS v. St. Cyr, 533 U. S. 289 300–301 (2001)). But not
foreclosing the possibility that they have expanded is not the same as
demonstrating (or at least holding without demonstration, which seems
to suffice for today’s majority) that they have expanded. The Court
must either hold that the Suspension Clause has “expanded” in its
application to aliens abroad, or acknowledge that it has no basis to set
aside the actions of Congress and the President. It does neither.
9 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
scope were (as the Court seems not to grasp) just as much
“designed to restrain” the incursions of the Third Branch.
“Manipulation” of the territorial reach of the writ by the
Judiciary poses just as much a threat to the proper sepa-
ration of powers as “manipulation” by the Executive. As I
will show below, manipulation is what is afoot here. The
understood limits upon the writ deny our jurisdiction over
the habeas petitions brought by these enemy aliens, and
entrust the President with the crucial wartime determina-
tions about their status and continued confinement.
B
The Court purports to derive from our precedents a
“functional” test for the extraterritorial reach of the writ,
ante, at 34, which shows that the Military Commissions
Act unconstitutionally restricts the scope of habeas. That
is remarkable because the most pertinent of those prece-
dents, Johnson v. Eisentrager, 339 U. S. 763, conclusively
establishes the opposite. There we were confronted with
the claims of 21 Germans held at Landsberg Prison, an
American military facility located in the American Zone of
occupation in postwar Germany. They had been captured
in China, and an American military commission sitting
there had convicted them of war crimes—collaborating
with the Japanese after Germany’s surrender. Id., at 765–
766. Like the petitioners here, the Germans claimed that
their detentions violated the Constitution and interna-
tional law, and sought a writ of habeas corpus. Writing
for the Court, Justice Jackson held that American courts
lacked habeas jurisdiction:
“We are cited to [sic] no instance where a court, in
this or any other country where the writ is known, has
issued it on behalf of an alien enemy who, at no rele-
vant time and in no stage of his captivity, has been
within its territorial jurisdiction. Nothing in the text
of the Constitution extends such a right, nor does any-
10 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
thing in our statutes.” Id., at 768.
Justice Jackson then elaborated on the historical scope
of the writ:
“The alien, to whom the United States has been tra-
ditionally hospitable, has been accorded a generous
and ascending scale of rights as he increases his iden-
tity with our society. . . .
“But, in extending constitutional protections beyond
the citizenry, the Court has been at pains to point out
that it was the alien’s presence within its territorial
jurisdiction that gave the Judiciary power to act.” Id.,
at 770–771.
Lest there be any doubt about the primacy of territorial
sovereignty in determining the jurisdiction of a habeas
court over an alien, Justice Jackson distinguished two
cases in which aliens had been permitted to seek habeas
relief, on the ground that the prisoners in those cases were
in custody within the sovereign territory of the United
States. Id., at 779–780 (discussing Ex parte Quirin, 317
U. S. 1 (1942), and In re Yamashita, 327 U. S. 1 (1946)).
“By reason of our sovereignty at that time over [the Phil-
ippines],” Jackson wrote, “Yamashita stood much as did
Quirin before American courts.” 339 U. S., at 780.
Eisentrager thus held—held beyond any doubt—that the
Constitution does not ensure habeas for aliens held by the
United States in areas over which our Government is not
sovereign.3
——————
3
In its failed attempt to distinguish Eisentrager, the Court comes up
with the notion that “de jure sovereignty” is simply an additional factor
that can be added to (presumably) “de facto sovereignty” (i.e., practical
control) to determine the availability of habeas for aliens, but that it is
not a necessary factor, whereas de facto sovereignty is. It is perhaps in
this de facto sense, the Court speculates, that Eisentrager found “sover-
eignty” lacking. See ante, at 23–25. If that were so, one would have
expected Eisentrager to explain in some detail why the United States
11 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
The Court would have us believe that Eisentrager rested
on “[p]ractical considerations,” such as the “difficulties of
ordering the Government to produce the prisoners in a
habeas corpus proceeding.” Ante, at 32. Formal sover-
eignty, says the Court, is merely one consideration “that
bears upon which constitutional guarantees apply” in a
given location. Ante, at 34. This is a sheer rewriting of
the case. Eisentrager mentioned practical concerns, to be
sure—but not for the purpose of determining under what
circumstances American courts could issue writs of habeas
corpus for aliens abroad. It cited them to support its
holding that the Constitution does not empower courts to
issue writs of habeas corpus to aliens abroad in any cir-
cumstances. As Justice Black accurately said in dissent,
“the Court’s opinion inescapably denies courts power to
afford the least bit of protection for any alien who is sub-
ject to our occupation government abroad, even if he is
neither enemy nor belligerent and even after peace is
officially declared.” 339 U. S., at 796.
The Court also tries to change Eisentrager into a “func-
——————
did not have practical control over the American zone of occupation. It
did not (and probably could not). Of course this novel de facto-de jure
approach does not explain why the writ never issued to Scotland, which
was assuredly within the de facto control of the English crown. See
infra, at 22.
To support its holding that de facto sovereignty is relevant to the
reach of habeas corpus, the Court cites our decision in Fleming v. Page,
9 How. 603 (1850), a case about the application of a customs statute to
a foreign port occupied by U. S. forces. See ante, at 24. The case used
the phrase “subject to the sovereignty and dominion of the United
States” to refer to the United States’ practical control over a “foreign
country.” 9 How., at 614. But Fleming went on to explain that because
the port remained part of the “enemy’s country,” even though under
U. S. military occupation, “its subjugation did not compel the United
States, while they held it, to regard it as part of their dominions, nor to
give to it any form of civil government, nor to extend to it our laws.”
Id., at 618. If Fleming is relevant to these cases at all, it undermines
the Court’s holding.
12 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
tional” test by quoting a paragraph that lists the charac-
teristics of the German petitioners:
“To support [the] assumption [of a constitutional right
to habeas corpus] we must hold that a prisoner of our
military authorities is constitutionally entitled to the
writ, even though he (a) is an enemy alien; (b) has
never been or resided in the United States; (c) was
captured outside of our territory and there held in
military custody as a prisoner of war; (d) was tried
and convicted by a Military Commission sitting out-
side the United States; (e) for offenses against laws of
war committed outside the United States; (f) and is at
all times imprisoned outside the United States.” Id.,
at 777 (quoted in part, ante, at 36).
But that paragraph is introduced by a sentence stating
that “[t]he foregoing demonstrates how much further we
must go if we are to invest these enemy aliens, resident,
captured and imprisoned abroad, with standing to demand
access to our courts.” 339 U. S., at 777 (emphasis added).
How much further than what? Further than the rule set
forth in the prior section of the opinion, which said that “in
extending constitutional protections beyond the citizenry,
the Court has been at pains to point out that it was the
alien’s presence within its territorial jurisdiction that gave
the Judiciary power to act.” Id., at 771. In other words,
the characteristics of the German prisoners were set forth,
not in application of some “functional” test, but to show
that the case before the Court represented an a fortiori
application of the ordinary rule. That is reaffirmed by the
sentences that immediately follow the listing of the Ger-
mans’ characteristics:
“We have pointed out that the privilege of litigation
has been extended to aliens, whether friendly or en-
emy, only because permitting their presence in the
country implied protection. No such basis can be in-
13 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
voked here, for these prisoners at no relevant time
were within any territory over which the United
States is sovereign, and the scenes of their offense,
their capture, their trial and their punishment were
all beyond the territorial jurisdiction of any court of
the United States.” Id., at 777–778.
Eisentrager nowhere mentions a “functional” test, and the
notion that it is based upon such a principle is patently
false.4
The Court also reasons that Eisentrager must be read as
a “functional” opinion because of our prior decisions in the
Insular Cases. See ante, at 26–29. It cites our statement
in Balzac v. Porto Rico, 258 U. S. 298, 312 (1922), that
“‘the real issue in the Insular Cases was not whether the
Constitution extended to the Philippines or Porto Rico
when we went there, but which of its provisions were
——————
4
JUSTICE SOUTER’s concurrence relies on our decision four Terms ago
in Rasul v. Bush, 542 U. S. 466 (2004), where the Court interpreted the
habeas statute to extend to aliens held at Guantanamo Bay. He thinks
that “no one who reads the Court’s opinion in Rasul could seriously
doubt that the jurisdictional question must be answered the same way
in purely constitutional cases.” Ante, at 1–2. But Rasul was devoted
primarily to an explanation of why Eisentrager’s statutory holding no
longer controlled given our subsequent decision in Braden v. 30th
Judicial Circuit Court of Ky., 410 U. S. 484 (1973). See Rasul, supra, at
475–479. And the opinion of the Court today—which JUSTICE SOUTER
joins—expressly rejects the historical evidence cited in Rasul to support
its conclusion about the reach of habeas corpus. Compare id., at 481–
482, with ante, at 18. Moreover, even if one were to accept as true what
JUSTICE SOUTER calls Rasul’s “well-considered” dictum, that does not
explain why Eisentrager’s constitutional holding must be overruled or
how it can be distinguished. (After all, Rasul distinguished Eisen-
trager’s statutory holding on a ground inapplicable to its constitutional
holding.) In other words, even if the Court were to conclude that
Eisentrager’s rule was incorrect as an original matter, the Court would
have to explain the justification for departing from that precedent. It
therefore cannot possibly be true that Rasul controls this case, as
JUSTICE SOUTER suggests.
14 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
applicable by way of limitation upon the exercise of execu-
tive and legislative power in dealing with new conditions
and requirements.’” Ante, at 28. But the Court conven-
iently omits Balzac’s predicate to that statement: “The
Constitution of the United States is in force in Porto Rico
as it is wherever and whenever the sovereign power of that
government is exerted.” 258 U. S., at 312 (emphasis
added). The Insular Cases all concerned territories ac-
quired by Congress under its Article IV authority and
indisputably part of the sovereign territory of the United
States. See United States v. Verdugo-Urquidez, 494 U. S.
259, 268 (1990); Reid v. Covert, 354 U. S. 1, 13 (1957)
(plurality opinion of Black, J.). None of the Insular Cases
stands for the proposition that aliens located outside U. S.
sovereign territory have constitutional rights, and Eisen-
trager held just the opposite with respect to habeas corpus.
As I have said, Eisentrager distinguished Yamashita on
the ground of “our sovereignty [over the Philippines],” 339
U. S., at 780.
The Court also relies on the “[p]ractical considerations”
that influenced our decision in Reid v. Covert, supra. See
ante, at 29–32. But all the Justices in the majority except
Justice Frankfurter limited their analysis to the rights of
citizens abroad. See Reid, supra, at 5–6 (plurality opinion
of Black, J.); id., at 74–75 (Harlan, J., concurring in re-
sult). (Frankfurter limited his analysis to the even nar-
rower class of civilian dependents of American military
personnel abroad, see id., at 45 (opinion concurring in
result).) In trying to wring some kind of support out of
Reid for today’s novel holding, the Court resorts to a chain
of logic that does not hold. The members of the Reid
majority, the Court says, were divided over whether In re
Ross, 140 U. S. 453 (1891), which had (according to the
Court) held that under certain circumstances American
citizens abroad do not have indictment and jury-trial
rights, should be overruled. In the Court’s view, the Reid
15 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
plurality would have overruled Ross, but Justices Frank-
furter and Harlan preferred to distinguish it. The upshot:
“If citizenship had been the only relevant factor in the
case, it would have been necessary for the Court to over-
turn Ross, something Justices Harlan and Frankfurter
were unwilling to do.” Ante, at 32. What, exactly, is this
point supposed to prove? To say that “practical considera-
tions” determine the precise content of the constitutional
protections American citizens enjoy when they are abroad
is quite different from saying that “practical considera-
tions” determine whether aliens abroad enjoy any consti-
tutional protections whatever, including habeas. In other
words, merely because citizenship is not a sufficient factor
to extend constitutional rights abroad does not mean that
it is not a necessary one.
The Court tries to reconcile Eisentrager with its holding
today by pointing out that in postwar Germany, the
United States was “answerable to its Allies” and did not
“pla[n] a long-term occupation.” Ante, at 38, 39. Those
factors were not mentioned in Eisentrager. Worse still, it
is impossible to see how they relate to the Court’s asserted
purpose in creating this “functional” test—namely, to
ensure a judicial inquiry into detention and prevent the
political branches from acting with impunity. Can it
possibly be that the Court trusts the political branches
more when they are beholden to foreign powers than when
they act alone?
After transforming the a fortiori elements discussed
above into a “functional” test, the Court is still left with
the difficulty that most of those elements exist here as
well with regard to all the detainees. To make the appli-
cation of the newly crafted “functional” test produce a
different result in the present cases, the Court must rely
upon factors (d) and (e): The Germans had been tried by a
military commission for violations of the laws of war; the
present petitioners, by contrast, have been tried by a
16 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
Combatant Status Review Tribunal (CSRT) whose proce-
dural protections, according to the Court’s ipse dixit, “fall
well short of the procedures and adversarial mechanisms
that would eliminate the need for habeas corpus review.”
Ante, at 37. But no one looking for “functional” equiva-
lents would put Eisentrager and the present cases in the
same category, much less place the present cases in a
preferred category. The difference between them cries out
for lesser procedures in the present cases. The prisoners
in Eisentrager were prosecuted for crimes after the cessa-
tion of hostilities; the prisoners here are enemy combat-
ants detained during an ongoing conflict. See Hamdi v.
Rumsfeld, 542 U. S. 507, 538 (2004) (plurality opinion)
(suggesting, as an adequate substitute for habeas corpus,
the use of a tribunal akin to a CSRT to authorize the
detention of American citizens as enemy combatants dur-
ing the course of the present conflict).
The category of prisoner comparable to these detainees
are not the Eisentrager criminal defendants, but the more
than 400,000 prisoners of war detained in the United
States alone during World War II. Not a single one was
accorded the right to have his detention validated by a
habeas corpus action in federal court—and that despite
the fact that they were present on U. S. soil. See Bradley,
The Military Commissions Act, Habeas Corpus, and the
Geneva Conventions, 101 Am. J. Int’l L. 322, 338 (2007).
The Court’s analysis produces a crazy result: Whereas
those convicted and sentenced to death for war crimes are
without judicial remedy, all enemy combatants detained
during a war, at least insofar as they are confined in an
area away from the battlefield over which the United
States exercises “absolute and indefinite” control, may
seek a writ of habeas corpus in federal court. And, as an
even more bizarre implication from the Court’s reasoning,
those prisoners whom the military plans to try by full-
dress Commission at a future date may file habeas peti-
17 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
tions and secure release before their trials take place.
There is simply no support for the Court’s assertion that
constitutional rights extend to aliens held outside U. S.
sovereign territory, see Verdugo-Urquidez, 494 U. S., at
271, and Eisentrager could not be clearer that the privilege
of habeas corpus does not extend to aliens abroad. By
blatantly distorting Eisentrager, the Court avoids the
difficulty of explaining why it should be overruled. See
Planned Parenthood of Southeastern Pa. v. Casey, 505
U. S. 833, 854–855 (1992) (identifying stare decisis fac-
tors). The rule that aliens abroad are not constitutionally
entitled to habeas corpus has not proved unworkable in
practice; if anything, it is the Court’s “functional” test that
does not (and never will) provide clear guidance for the
future. Eisentrager forms a coherent whole with the ac-
cepted proposition that aliens abroad have no substantive
rights under our Constitution. Since it was announced, no
relevant factual premises have changed. It has engen-
dered considerable reliance on the part of our military.
And, as the Court acknowledges, text and history do not
clearly compel a contrary ruling. It is a sad day for the
rule of law when such an important constitutional pre-
cedent is discarded without an apologia, much less an
apology.
C
What drives today’s decision is neither the meaning of
the Suspension Clause, nor the principles of our prece-
dents, but rather an inflated notion of judicial supremacy.
The Court says that if the extraterritorial applicability of
the Suspension Clause turned on formal notions of sover-
eignty, “it would be possible for the political branches to
govern without legal constraint” in areas beyond the
sovereign territory of the United States. Ante, at 35. That
cannot be, the Court says, because it is the duty of this
Court to say what the law is. Id., at 35–36. It would be
18 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
difficult to imagine a more question-begging analysis.
“The very foundation of the power of the federal courts to
declare Acts of Congress unconstitutional lies in the power
and duty of those courts to decide cases and controversies
properly before them.” United States v. Raines, 362 U. S.
17, 20–21 (1960) (citing Marbury v. Madison, 1 Cranch
137 (1803); emphasis added). Our power “to say what the
law is” is circumscribed by the limits of our statutorily and
constitutionally conferred jurisdiction. See Lujan v. De-
fenders of Wildlife, 504 U. S. 555, 573–578 (1992). And
that is precisely the question in these cases: whether the
Constitution confers habeas jurisdiction on federal courts
to decide petitioners’ claims. It is both irrational and
arrogant to say that the answer must be yes, because
otherwise we would not be supreme.
But so long as there are some places to which habeas
does not run—so long as the Court’s new “functional” test
will not be satisfied in every case—then there will be cir-
cumstances in which “it would be possible for the political
branches to govern without legal constraint.” Or, to put it
more impartially, areas in which the legal determinations
of the other branches will be (shudder!) supreme. In other
words, judicial supremacy is not really assured by the
constitutional rule that the Court creates. The gap be-
tween rationale and rule leads me to conclude that the
Court’s ultimate, unexpressed goal is to preserve the
power to review the confinement of enemy prisoners held
by the Executive anywhere in the world. The “functional”
test usefully evades the precedential landmine of Eisen-
trager but is so inherently subjective that it clears a wide
path for the Court to traverse in the years to come.
III
Putting aside the conclusive precedent of Eisentrager, it
is clear that the original understanding of the Suspension
Clause was that habeas corpus was not available to aliens
19 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
abroad, as Judge Randolph’s thorough opinion for the
court below detailed. See 476 F. 3d 981, 988–990 (CADC
2007).
The Suspension Clause reads: “The Privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may
require it.” U. S. Const., Art. I, §9, cl. 2. The proper
course of constitutional interpretation is to give the text
the meaning it was understood to have at the time of its
adoption by the people. See, e.g., Crawford v. Washington,
541 U. S. 36, 54 (2004). That course is especially de-
manded when (as here) the Constitution limits the power
of Congress to infringe upon a pre-existing common-law
right. The nature of the writ of habeas corpus that cannot
be suspended must be defined by the common-law writ
that was available at the time of the founding. See
McNally v. Hill, 293 U. S. 131, 135–136 (1934); see also
INS v. St. Cyr, 533 U. S. 289, 342 (2001) (SCALIA, J., dis-
senting); D’Oench, Duhme & Co. v. FDIC, 315 U. S. 447,
471, n. 9 (1942) (Jackson, J., concurring).
It is entirely clear that, at English common law, the writ
of habeas corpus did not extend beyond the sovereign
territory of the Crown. To be sure, the writ had an “ex-
traordinary territorial ambit,” because it was a so-called
“prerogative writ,” which, unlike other writs, could extend
beyond the realm of England to other places where the
Crown was sovereign. R. Sharpe, The Law of Habeas
Corpus 188 (2d ed. 1989) (hereinafter Sharpe); see also
Note on the Power of the English Courts to Issue the Writ
of Habeas to Places Within the Dominions of the Crown,
But Out of England, and On the Position of Scotland in
Relation to that Power, 8 Jurid. Rev. 157 (1896) (hereinaf-
ter Note on Habeas); King v. Cowle, 2 Burr. 834, 855–856,
97 Eng. Rep. 587, 599 (K. B. 1759).
But prerogative writs could not issue to foreign coun-
tries, even for British subjects; they were confined to the
20 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
King’s dominions—those areas over which the Crown was
sovereign. See Sharpe 188; 2 R. Chambers, A Course of
Lectures on the English Law 1767–1773, pp. 7–8 (Curley
ed. 1986); 3 W. Blackstone, Commentaries on the Laws of
England 131 (1768) (hereinafter Blackstone). Thus, the
writ has never extended to Scotland, which, although
united to England when James I succeeded to the English
throne in 1603, was considered a foreign dominion under a
different Crown—that of the King of Scotland. Sharpe
191; Note on Habeas 158.5 That is why Lord Mansfield
wrote that “[t]o foreign dominions, which belong to a
prince who succeeds to the throne of England, this Court
has no power to send any writ of any kind. We cannot
send a habeas corpus to Scotland . . . .” Cowle, supra, at
856, 97 Eng. Rep., at 599–600.
The common-law writ was codified by the Habeas Cor-
pus Act of 1679, which “stood alongside Magna Charta and
the English Bill of Rights of 1689 as a towering common
law lighthouse of liberty—a beacon by which framing
lawyers in America consciously steered their course.”
Amar, Sixth Amendment First Principles, 84 Geo. L. J.
641, 663 (1996). The writ was established in the Colonies
beginning in the 1690’s and at least one colony adopted
the 1679 Act almost verbatim. See Dept. of Political Sci-
ence, Okla. State Univ., Research Reports, No. 1, R.
Walker, The American Reception of the Writ of Liberty
12–16 (1961). Section XI of the Act stated where the writ
could run. It “may be directed and run into any county
palatine, the cinque-ports, or other privileged places
within the kingdom of England, dominion of Wales, or
town of Berwick upon Tweed, and the islands of Jersey or
Guernsey.” 31 Car. 2, ch. 2. The cinque-ports and county
palatine were so-called “exempt jurisdictions”—franchises
——————
5
My dissent in Rasul v. Bush, 542 U. S. 466, 503 (2004), mistakenly
included Scotland among the places to which the writ could run.
21 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
granted by the Crown in which local authorities would
manage municipal affairs, including the court system, but
over which the Crown maintained ultimate sovereignty.
See 3 Blackstone 78–79. The other places listed—Wales,
Berwick-upon-Tweed, Jersey, and Guernsey—were terri-
tories of the Crown even though not part England proper.
See Cowle, supra, at 853–854, 97 Eng. Rep., at 598 (Wales
and Berwick-upon-Tweed); 1 Blackstone 104 (Jersey and
Guernsey); Sharpe 192 (same).
The Act did not extend the writ elsewhere, even though
the existence of other places to which British prisoners
could be sent was recognized by the Act. The possibility of
evading judicial review through such spiriting-away was
eliminated, not by expanding the writ abroad, but by
forbidding (in Article XII of the Act) the shipment of pris-
oners to places where the writ did not run or where its
execution would be difficult. See 31 Car. 2, ch. 2; see
generally Nutting, The Most Wholesome Law—The Ha-
beas Corpus Act of 1679, 65 Am. Hist. Rev. 527 (1960).
The Habeas Corpus Act, then, confirms the consensus
view of scholars and jurists that the writ did not run
outside the sovereign territory of the Crown. The Court
says that the idea that “jurisdiction followed the King’s
officers” is an equally credible view. Ante, at 16. It is not
credible at all. The only support the Court cites for it is a
page in Boumediene’s brief, which in turn cites this
Court’s dicta in Rasul, 542 U. S., at 482, mischaracterizing
Lord Mansfield’s statement that the writ ran to any place
that was “under the subjection of the Crown,” Cowle,
supra, at 856, 97 Eng. Rep., at 599. It is clear that Lord
Mansfield was saying that the writ extended outside the
realm of England proper, not outside the sovereign terri-
tory of the Crown.6
——————
6
The dicta in Rasul also cited Ex parte Mwenya, [1960] 1 Q. B. 241,
(C. A.), but as I explained in dissent, “[e]ach judge [in Mwenya] made
22 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
The Court dismisses the example of Scotland on the
grounds that Scotland had its own judicial system and
that the writ could not, as a practical matter, have been
enforced there. Ante, at 20. Those explanations are to-
tally unpersuasive. The existence of a separate court
system was never a basis for denying the power of a court
to issue the writ. See 9 W. Holdsworth, A History of Eng-
lish Law 124 (3d ed. 1944) (citing Ex parte Anderson, 3 El.
and El. 487 (1861)). And as for logistical problems, the
same difficulties were present for places like the Channel
Islands, where the writ did run. The Court attempts to
draw an analogy between the prudential limitations on
issuing the writ to such remote areas within the sovereign
territory of the Crown and the jurisdictional prohibition on
issuing the writ to Scotland. See ante, at 19–20. But the
very authority that the Court cites, Lord Mansfield, ex-
pressly distinguished between these two concepts, stating
that English courts had the “power” to send the writ to
places within the Crown’s sovereignty, the “only question”
being the “propriety,” while they had “no power to send
any writ of any kind” to Scotland and other “foreign do-
minions.” Cowle, supra, at 856, 97 Eng. Rep., at 599–600.
The writ did not run to Scotland because, even after the
Union, “Scotland remained a foreign dominion of the
prince who succeeded to the English throne,” and “union
did not extend the prerogative of the English crown to
Scotland.” Sharpe 191; see also Sir Matthew Hale’s The
Prerogatives of the King 19 (D. Yale ed. 1976).7
——————
clear that the detainee’s status as a subject was material to the resolu-
tion of the case,” 542 U. S., at 504.
7
The Court also argues that the fact that the writ could run to Ire-
land, even though it was ruled under a “separate” crown, shows that
formal sovereignty was not the touchstone of habeas jurisdiction. Ante,
at 21. The passage from Blackstone that the Court cites, however,
describes Ireland as “a dependent, subordinate kingdom” that was part
of the “king’s dominions.” 1 Blackstone 98, 100 (internal quotation
23 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
In sum, all available historical evidence points to the
conclusion that the writ would not have been available at
common law for aliens captured and held outside the
sovereign territory of the Crown. Despite three opening
briefs, three reply briefs, and support from a legion of
amici, petitioners have failed to identify a single case in
the history of Anglo-American law that supports their
claim to jurisdiction. The Court finds it significant that
there is no recorded case denying jurisdiction to such
prisoners either. See ante, at 21–22. But a case standing
for the remarkable proposition that the writ could issue to
a foreign land would surely have been reported, whereas a
case denying such a writ for lack of jurisdiction would
likely not. At a minimum, the absence of a reported case
either way leaves unrefuted the voluminous commentary
stating that habeas was confined to the dominions of the
Crown.
What history teaches is confirmed by the nature of the
limitations that the Constitution places upon suspension
of the common-law writ. It can be suspended only “in
Cases of Rebellion or Invasion.” Art. I, §9, cl. 2. The latter
case (invasion) is plainly limited to the territory of the
United States; and while it is conceivable that a rebellion
could be mounted by American citizens abroad, surely the
overwhelming majority of its occurrences would be domes-
tic. If the extraterritorial scope of habeas turned on flexi-
ble, “functional” considerations, as the Court holds, why
would the Constitution limit its suspension almost en-
tirely to instances of domestic crisis? Surely there is an
even greater justification for suspension in foreign lands
where the United States might hold prisoners of war
——————
marks omitted). And Lord Mansfield’s opinion in Cowle plainly under-
stood Ireland to be “a dominion of the Crown of England,” in contrast to
the “foreign dominio[n]” of Scotland, and thought that distinction
dispositive of the question of habeas jurisdiction. Cowle, supra, at 856,
97 Eng. Rep., at 599–600.
24 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
during an ongoing conflict. And correspondingly, there is
less threat to liberty when the Government suspends the
writ’s (supposed) application in foreign lands, where even
on the most extreme view prisoners are entitled to fewer
constitutional rights. It makes no sense, therefore, for the
Constitution generally to forbid suspension of the writ
abroad if indeed the writ has application there.
It may be objected that the foregoing analysis proves too
much, since this Court has already suggested that the writ
of habeas corpus does run abroad for the benefit of United
States citizens. “[T]he position that United States citizens
throughout the world may be entitled to habeas corpus
rights . . . is precisely the position that this Court adopted
in Eisentrager, see 339 U. S., at 769–770, even while
holding that aliens abroad did not have habeas corpus
rights.” Rasul, 542 U. S., at 501, 502 (SCALIA, J., dissent-
ing) (emphasis deleted). The reason for that divergence is
not difficult to discern. The common-law writ, as received
into the law of the new constitutional Republic, took on
such changes as were demanded by a system in which rule
is derived from the consent of the governed, and in which
citizens (not “subjects”) are afforded defined protections
against the Government. As Justice Story wrote for the
Court,
“The common law of England is not to be taken in all
respects to be that of America. Our ancestors brought
with them its general principles, and claimed it as
their birthright; but they brought with them and
adopted only that portion which was applicable to
their situation.” Van Ness v. Pacard, 2 Pet. 137, 144
(1829).
See also Hall, The Common Law: An Account of its Recep-
tion in the United States, 4 Vand. L. Rev. 791 (1951). It
accords with that principle to say, as the plurality opinion
said in Reid: “When the Government reaches out to punish
25 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
a citizen who is abroad, the shield which the Bill of Rights
and other parts of the Constitution provide to protect his
life and liberty should not be stripped away just because
he happens to be in another land.” 354 U. S., at 6; see also
Verdugo-Urquidez, 494 U. S., at 269–270. On that analy-
sis, “[t]he distinction between citizens and aliens follows
from the undoubted proposition that the Constitution does
not create, nor do general principles of law create, any
juridical relation between our country and some unde-
fined, limitless class of noncitizens who are beyond our
territory.” Id., at 275 (KENNEDY, J., concurring).
In sum, because I conclude that the text and history of
the Suspension Clause provide no basis for our jurisdic-
tion, I would affirm the Court of Appeals even if Eisen-
trager did not govern these cases.
* * *
Today the Court warps our Constitution in a way that
goes beyond the narrow issue of the reach of the Suspen-
sion Clause, invoking judicially brainstormed separation-
of-powers principles to establish a manipulable “func-
tional” test for the extraterritorial reach of habeas corpus
(and, no doubt, for the extraterritorial reach of other
constitutional protections as well). It blatantly misde-
scribes important precedents, most conspicuously Justice
Jackson’s opinion for the Court in Johnson v. Eisentrager.
It breaks a chain of precedent as old as the common law
that prohibits judicial inquiry into detentions of aliens
abroad absent statutory authorization. And, most tragi-
cally, it sets our military commanders the impossible task
of proving to a civilian court, under whatever standards
this Court devises in the future, that evidence supports
the confinement of each and every enemy prisoner.
The Nation will live to regret what the Court has done
today. I dissent.
PRESIDENT LOSES ANOTHER SUPREME COURT DECISION-ENOUGH ALREADY!!!!!
1 (Slip Opinion) OCTOBER TERM, 2007
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BOUMEDIENE ET AL. v. BUSH, PRESIDENT OF THE
UNITED STATES, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 06–1195. Argued December 5, 2007—Decided June 12, 2008*
In the Authorization for Use of Military Force (AUMF), Congress em-
powered the President “to use all necessary and appropriate force
against those . . . he determines planned, authorized, committed, or
aided the terrorist attacks . . . on September 11, 2001.” In Hamdi v.
Rumsfeld, 542 U. S. 507, 518, 588–589, five Justices recognized that
detaining individuals captured while fighting against the United
States in Afghanistan for the duration of that conflict was a funda-
mental and accepted incident to war. Thereafter, the Defense De-
partment established Combatant Status Review Tribunals (CSRTs)
to determine whether individuals detained at the U. S. Naval Station
at Guantanamo Bay, Cuba, were “enemy combatants.”
Petitioners are aliens detained at Guantanamo after being cap-
tured in Afghanistan or elsewhere abroad and designated enemy
combatants by CSRTs. Denying membership in the al Qaeda terror-
ist network that carried out the September 11 attacks and the Tali-
ban regime that supported al Qaeda, each petitioner sought a writ of
habeas corpus in the District Court, which ordered the cases dis-
missed for lack of jurisdiction because Guantanamo is outside sover-
eign U. S. territory. The D. C. Circuit affirmed, but this Court re-
versed, holding that 28 U. S. C. §2241 extended statutory habeas
jurisdiction to Guantanamo. See Rasul v. Bush, 542 U. S. 466, 473.
Petitioners’ cases were then consolidated into two proceedings. In
the first, the district judge granted the Government’s motion to dis-
miss, holding that the detainees had no rights that could be vindi-
——————
*Together with No. 06–1196, Al Odah, Next Friend of Al Odah, et al.
v. United States et al., also on certiorari to the same court.
2 BOUMEDIENE v. BUSH
Syllabus
cated in a habeas action. In the second, the judge held that the de-
tainees had due process rights.
While appeals were pending, Congress passed the Detainee Treat-
ment Act of 2005 (DTA), §1005(e) of which amended 28 U. S. C. §2241
to provide that “no court, justice, or judge shall have jurisdiction to
. . . consider . . . an application for . . . habeas corpus filed by or on
behalf of an alien detained . . . at Guantanamo,” and gave the D. C.
Circuit “exclusive” jurisdiction to review CSRT decisions. In Ham-
dan v. Rumsfeld, 548 U. S. 557, 576–577, the Court held this provi-
sion inapplicable to cases (like petitioners’) pending when the DTA
was enacted. Congress responded with the Military Commissions Act
of 2006 (MCA), §7(a) of which amended §2241(e)(1) to deny jurisdic-
tion with respect to habeas actions by detained aliens determined to
be enemy combatants, while §2241(e)(2) denies jurisdiction as to “any
other action against the United States . . . relating to any aspect of
the detention, transfer, treatment, trial, or conditions of confinement”
of a detained alien determined to be an enemy combatant. MCA
§7(b) provides that the 2241(e) amendments “shall take effect on the
date of the enactment of this Act, and shall apply to all cases, without
exception, pending on or after [that] date . . . which relate to any as-
pect of the detention, transfer, treatment, trial, or conditions of de-
tention of an alien detained . . . since September 11, 2001.”
The D. C. Circuit concluded that MCA §7 must be read to strip
from it, and all federal courts, jurisdiction to consider petitioners’ ha-
beas applications; that petitioners are not entitled to habeas or the
protections of the Suspension Clause, U. S. Const., Art. I, §9, cl. 2,
which provides that “[t]he Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it”; and that it was therefore unneces-
sary to consider whether the DTA provided an adequate and effective
substitute for habeas.
Held:
1. MCA §7 denies the federal courts jurisdiction to hear habeas ac-
tions, like the instant cases, that were pending at the time of its en-
actment. Section §7(b)’s effective date provision undoubtedly applies
to habeas actions, which, by definition, “relate to . . . detention”
within that section’s meaning. Petitioners argue to no avail that
§7(b) does not apply to a §2241(e)(1) habeas action, but only to “any
other action” under §2241(e)(2), because it largely repeats that sec-
tion’s language. The phrase “other action” in §2241(e)(2) cannot be
understood without referring back to §2241(e)(1), which explicitly
mentions the “writ of habeas corpus.” Because the two paragraphs’
structure implies that habeas is a type of action “relating to any as-
3 Cite as: 553 U. S. ____ (2008)
Syllabus
pect of . . . detention,” etc., pending habeas actions are in the category
of cases subject to the statute’s jurisdictional bar. This is confirmed
by the MCA’s legislative history. Thus, if MCA §7 is valid, petition-
ers’ cases must be dismissed. Pp. 5–8.
2. Petitioners have the constitutional privilege of habeas corpus.
They are not barred from seeking the writ or invoking the Suspen-
sion Clause’s protections because they have been designated as en-
emy combatants or because of their presence at Guantanamo. Pp. 8–
41.
(a) A brief account of the writ’s history and origins shows that
protection for the habeas privilege was one of the few safeguards of
liberty specified in a Constitution that, at the outset, had no Bill of
Rights; in the system the Framers conceived, the writ has a central-
ity that must inform proper interpretation of the Suspension Clause.
That the Framers considered the writ a vital instrument for the pro-
tection of individual liberty is evident from the care taken in the Sus-
pension Clause to specify the limited grounds for its suspension: The
writ may be suspended only when public safety requires it in times of
rebellion or invasion. The Clause is designed to protect against cycli-
cal abuses of the writ by the Executive and Legislative Branches. It
protects detainee rights by a means consistent with the Constitu-
tion’s essential design, ensuring that, except during periods of formal
suspension, the Judiciary will have a time-tested device, the writ, to
maintain the “delicate balance of governance.” Hamdi, supra, at 536.
Separation-of-powers principles, and the history that influenced their
design, inform the Clause’s reach and purpose. Pp. 8–15.
(b) A diligent search of founding-era precedents and legal com-
mentaries reveals no certain conclusions. None of the cases the par-
ties cite reveal whether a common-law court would have granted, or
refused to hear for lack of jurisdiction, a habeas petition by a prisoner
deemed an enemy combatant, under a standard like the Defense De-
partment’s in these cases, and when held in a territory, like Guan-
tanamo, over which the Government has total military and civil con-
trol. The evidence as to the writ’s geographic scope at common law is
informative, but, again, not dispositive. Petitioners argue that the
site of their detention is analogous to two territories outside England
to which the common-law writ ran, the exempt jurisdictions and In-
dia, but critical differences between these places and Guantanamo
render these claims unpersuasive. The Government argues that
Guantanamo is more closely analogous to Scotland and Hanover,
where the writ did not run, but it is unclear whether the common-law
courts lacked the power to issue the writ there, or whether they re-
frained from doing so for prudential reasons. The parties’ arguments
that the very lack of a precedent on point supports their respective
4 BOUMEDIENE v. BUSH
Syllabus
positions are premised upon the doubtful assumptions that the his-
torical record is complete and that the common law, if properly un-
derstood, yields a definite answer to the questions before the Court.
Pp. 15–22.
(c) The Suspension Clause has full effect at Guantanamo. The
Government’s argument that the Clause affords petitioners no rights
because the United States does not claim sovereignty over the naval
station is rejected. Pp. 22–42.
(i) The Court does not question the Government’s position that
Cuba maintains sovereignty, in the legal and technical sense, over
Guantanamo, but it does not accept the Government’s premise that
de jure sovereignty is the touchstone of habeas jurisdiction. Com-
mon-law habeas’ history provides scant support for this proposition,
and it is inconsistent with the Court’s precedents and contrary to
fundamental separation-of-powers principles. Pp. 22–25.
(ii) Discussions of the Constitution’s extraterritorial applica-
tion in cases involving provisions other than the Suspension Clause
undermine the Government’s argument. Fundamental questions re-
garding the Constitution’s geographic scope first arose when the Na-
tion acquired Hawaii and the noncontiguous Territories ceded by
Spain after the Spanish-American War, and Congress discontinued
its prior practice of extending constitutional rights to territories by
statute. In the so-called Insular Cases, the Court held that the Con-
stitution had independent force in the territories that was not contin-
gent upon acts of legislative grace. See, e.g., Dorr v. United States,
195 U. S. 138. Yet because of the difficulties and disruption inherent
in transforming the former Spanish colonies’ civil-law system into an
Anglo-American system, the Court adopted the doctrine of territorial
incorporation, under which the Constitution applies in full in incor-
porated Territories surely destined for statehood but only in part in
unincorporated Territories. See, e.g., id., at 143. Practical considera-
tions likewise influenced the Court’s analysis in Reid v. Covert, 354
U. S. 1, where, in applying the jury provisions of the Fifth and Sixth
Amendments to American civilians being tried by the U. S. military
abroad, both the plurality and the concurrences noted the relevance
of practical considerations, related not to the petitioners’ citizenship,
but to the place of their confinement and trial. Finally, in holding
that habeas jurisdiction did not extend to enemy aliens, convicted of
violating the laws of war, who were detained in a German prison dur-
ing the Allied Powers’ post-World War II occupation, the Court, in
Johnson v. Eisentrager, 339 U. S. 763, stressed the practical difficul-
ties of ordering the production of the prisoners, id., at 779. The Gov-
ernment’s reading of Eisentrager as adopting a formalistic test for de-
termining the Suspension Clause’s reach is rejected because: (1) the
5 Cite as: 553 U. S. ____ (2008)
Syllabus
discussion of practical considerations in that case was integral to a
part of the Court’s opinion that came before it announced its holding,
see id., at 781; (2) it mentioned the concept of territorial sovereignty
only twice in its opinion, in contrast to its significant discussion of
practical barriers to the running of the writ; and (3) if the Govern-
ment’s reading were correct, the opinion would have marked not only
a change in, but a complete repudiation of, the Insular Cases’ (and
later Reid’s) functional approach. A constricted reading of Eisen-
trager overlooks what the Court sees as a common thread uniting all
these cases: The idea that extraterritoriality questions turn on objec-
tive factors and practical concerns, not formalism. Pp. 25–34.
(iii) The Government’s sovereignty-based test raises troubling
separation-of-powers concerns, which are illustrated by Guan-
tanamo’s political history. Although the United States has main-
tained complete and uninterrupted control of Guantanamo for over
100 years, the Government’s view is that the Constitution has no ef-
fect there, at least as to noncitizens, because the United States dis-
claimed formal sovereignty in its 1903 lease with Cuba. The Nation’s
basic charter cannot be contracted away like this. The Constitution
grants Congress and the President the power to acquire, dispose of,
and govern territory, not the power to decide when and where its
terms apply. To hold that the political branches may switch the Con-
stitution on or off at will would lead to a regime in which they, not
this Court, say “what the law is.” Marbury v. Madison, 1 Cranch
137, 177. These concerns have particular bearing upon the Suspen-
sion Clause question here, for the habeas writ is itself an indispensa-
ble mechanism for monitoring the separation of powers. Pp. 34–36.
(iv) Based on Eisentrager, supra, at 777, and the Court’s rea-
soning in its other extraterritoriality opinions, at least three factors
are relevant in determining the Suspension Clause’s reach: (1) the
detainees’ citizenship and status and the adequacy of the process
through which that status was determined; (2) the nature of the sites
where apprehension and then detention took place; and (3) the prac-
tical obstacles inherent in resolving the prisoner’s entitlement to the
writ. Application of this framework reveals, first, that petitioners’
status is in dispute: They are not American citizens, but deny they
are enemy combatants; and although they have been afforded some
process in CSRT proceedings, there has been no Eisentrager–style
trial by military commission for violations of the laws of war. Second,
while the sites of petitioners’ apprehension and detention weigh
against finding they have Suspension Clause rights, there are critical
differences between Eisentrager’s German prison, circa 1950, and the
Guantanamo Naval Station in 2008, given the Government’s absolute
and indefinite control over the naval station. Third, although the
6 BOUMEDIENE v. BUSH
Syllabus
Court is sensitive to the financial and administrative costs of holding
the Suspension Clause applicable in a case of military detention
abroad, these factors are not dispositive because the Government
presents no credible arguments that the military mission at Guan-
tanamo would be compromised if habeas courts had jurisdiction. The
situation in Eisentrager was far different, given the historical context
and nature of the military’s mission in post-War Germany. Pp. 36–
41.
(d) Petitioners are therefore entitled to the habeas privilege, and
if that privilege is to be denied them, Congress must act in accor-
dance with the Suspension Clause’s requirements. Cf. Rasul, 542
U. S., at 564. Pp. 41–42.
3. Because the DTA’s procedures for reviewing detainees’ status
are not an adequate and effective substitute for the habeas writ,
MCA §7 operates as an unconstitutional suspension of the writ. Pp.
42–64.
(a) Given its holding that the writ does not run to petitioners, the
D. C. Circuit found it unnecessary to consider whether there was an
adequate substitute for habeas. This Court usually remands for con-
sideration of questions not decided below, but departure from this
rule is appropriate in “exceptional” circumstances, see, e.g., Cooper
Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 169, here, the
grave separation-of-powers issues raised by these cases and the fact
that petitioners have been denied meaningful access to a judicial fo-
rum for years. Pp. 42–44.
(b) Historically, Congress has taken care to avoid suspensions of
the writ. For example, the statutes at issue in the Court’s two lead-
ing cases addressing habeas substitutes, Swain v. Pressley, 430 U. S.
372, and United States v. Hayman, 342 U. S. 205, were attempts to
streamline habeas relief, not to cut it back. Those cases provide little
guidance here because, inter alia, the statutes in question gave the
courts broad remedial powers to secure the historic office of the writ,
and included saving clauses to preserve habeas review as an avenue
of last resort. In contrast, Congress intended the DTA and the MCA
to circumscribe habeas review, as is evident from the unequivocal na-
ture of MCA §7’s jurisdiction-stripping language, from the DTA’s text
limiting the Court of Appeals’ jurisdiction to assessing whether the
CSRT complied with the “standards and procedures specified by the
Secretary of Defense,” DTA §1005(e)(2)(C), and from the absence of a
saving clause in either Act. That Congress intended to create a more
limited procedure is also confirmed by the legislative history and by a
comparison of the DTA and the habeas statute that would govern in
MCA §7’s absence, 28 U. S. C. §2241. In §2241, Congress authorized
“any justice” or “circuit judge” to issue the writ, thereby accommodat-
7 Cite as: 553 U. S. ____ (2008)
Syllabus
ing the necessity for factfinding that will arise in some cases by al-
lowing the appellate judge or Justice to transfer the case to a district
court. See §2241(b). However, by granting the D. C. Circuit “exclu-
sive” jurisdiction over petitioners’ cases, see DTA §1005(e)(2)(A),
Congress has foreclosed that option in these cases. Pp. 44–49.
(c) This Court does not endeavor to offer a comprehensive sum-
mary of the requisites for an adequate habeas substitute. It is un-
controversial, however, that the habeas privilege entitles the prisoner
to a meaningful opportunity to demonstrate that he is being held pur-
suant to “the erroneous application or interpretation” of relevant law,
INS v. St. Cyr, 533 U. S. 289, 302, and the habeas court must have
the power to order the conditional release of an individual unlawfully
detained. But more may be required depending on the circum-
stances. Petitioners identify what they see as myriad deficiencies in
the CSRTs, the most relevant being the constraints upon the de-
tainee’s ability to rebut the factual basis for the Government’s asser-
tion that he is an enemy combatant. At the CSRT stage the detainee
has limited means to find or present evidence to challenge the Gov-
ernment’s case, does not have the assistance of counsel, and may not
be aware of the most critical allegations that the Government relied
upon to order his detention. His opportunity to confront witnesses is
likely to be more theoretical than real, given that there are no limits
on the admission of hearsay. The Court therefore agrees with peti-
tioners that there is considerable risk of error in the tribunal’s find-
ings of fact. And given that the consequence of error may be deten-
tion for the duration of hostilities that may last a generation or more,
the risk is too significant to ignore. Accordingly, for the habeas writ,
or its substitute, to function as an effective and meaningful remedy in
this context, the court conducting the collateral proceeding must have
some ability to correct any errors, to assess the sufficiency of the
Government’s evidence, and to admit and consider relevant exculpa-
tory evidence that was not introduced during the earlier proceeding.
In re Yamashita, 327 U. S. 1, 5, 8, and Ex parte Quirin, 317 U. S. 1,
23–25, distinguished. Pp. 49–57.
(d) Petitioners have met their burden of establishing that the
DTA review process is, on its face, an inadequate substitute for ha-
beas. Among the constitutional infirmities from which the DTA po-
tentially suffers are the absence of provisions allowing petitioners to
challenge the President’s authority under the AUMF to detain them
indefinitely, to contest the CSRT’s findings of fact, to supplement the
record on review with exculpatory evidence discovered after the
CSRT proceedings, and to request release. The statute cannot be
read to contain each of these constitutionally required procedures.
MCA §7 thus effects an unconstitutional suspension of the writ.
8 BOUMEDIENE v. BUSH
Syllabus
There is no jurisdictional bar to the District Court’s entertaining pe-
titioners’ claims. Pp. 57–64.
4. Nor are there prudential barriers to habeas review. Pp. 64–70.
(a) Petitioners need not seek review of their CSRT determina-
tions in the D. C. Circuit before proceeding with their habeas actions
in the District Court. If these cases involved detainees held for only a
short time while awaiting their CSRT determinations, or were it
probable that the Court of Appeals could complete a prompt review of
their applications, the case for requiring temporary abstention or ex-
haustion of alternative remedies would be much stronger. But these
qualifications no longer pertain here. In some instances six years
have elapsed without the judicial oversight that habeas corpus or an
adequate substitute demands. To require these detainees to pursue
the limited structure of DTA review before proceeding with habeas
actions would be to require additional months, if not years, of delay.
This holding should not be read to imply that a habeas court should
intervene the moment an enemy combatant steps foot in a territory
where the writ runs. Except in cases of undue delay, such as the pre-
sent, federal courts should refrain from entertaining an enemy com-
batant’s habeas petition at least until after the CSRT has had a
chance to review his status. Pp. 64–67.
(b) In effectuating today’s holding, certain accommodations—
including channeling future cases to a single district court and re-
quiring that court to use its discretion to accommodate to the greatest
extent possible the Government’s legitimate interest in protecting
sources and intelligence gathering methods—should be made to re-
duce the burden habeas proceedings will place on the military, with-
out impermissibly diluting the writ’s protections. Pp. 67–68.
5. In considering both the procedural and substantive standards
used to impose detention to prevent acts of terrorism, the courts must
accord proper deference to the political branches. However, security
subsists, too, in fidelity to freedom’s first principles, chief among
them being freedom from arbitrary and unlawful restraint and the
personal liberty that is secured by adherence to the separation of
powers. Pp. 68–70.
476 F. 3d 981, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which STEVENS,
SOUTER, GINSBURG, and BREYER, JJ., joined. SOUTER, J., filed a concur-
ring opinion, in which GINSBURG and BREYER, JJ., joined. ROBERTS,
C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO,
JJ., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS,
C. J., and THOMAS and ALITO, JJ., joined.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
JUSTICE KENNEDY delivered the opinion of the Court.
Petitioners are aliens designated as enemy combatants
and detained at the United States Naval Station at Guan
tanamo Bay, Cuba. There are others detained there, also
aliens, who are not parties to this suit.
Petitioners present a question not resolved by our ear
lier cases relating to the detention of aliens at Guan
tanamo: whether they have the constitutional privilege of
habeas corpus, a privilege not to be withdrawn except in
conformance with the Suspension Clause, Art. I, §9, cl. 2.
We hold these petitioners do have the habeas corpus
privilege. Congress has enacted a statute, the Detainee
Treatment Act of 2005 (DTA), 119 Stat. 2739, that pro
2 BOUMEDIENE v. BUSH
Opinion of the Court
vides certain procedures for review of the detainees’
status. We hold that those procedures are not an ade
quate and effective substitute for habeas corpus. There
fore §7 of the Military Commissions Act of 2006 (MCA), 28
U. S. C. A. §2241(e) (Supp. 2007), operates as an unconsti
tutional suspension of the writ. We do not address
whether the President has authority to detain these peti
tioners nor do we hold that the writ must issue. These
and other questions regarding the legality of the detention
are to be resolved in the first instance by the District
Court.
I
Under the Authorization for Use of Military Force
(AUMF), §2(a), 115 Stat. 224, note following 50 U. S. C.
§1541 (2000 ed., Supp. V), the President is authorized “to
use all necessary and appropriate force against those
nations, organizations, or persons he determines planned,
authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001, or harbored such organi
zations or persons, in order to prevent any future acts of
international terrorism against the United States by such
nations, organizations or persons.”
In Hamdi v. Rumsfeld, 542 U. S. 507 (2004), five Mem
bers of the Court recognized that detention of individuals
who fought against the United States in Afghanistan “for
the duration of the particular conflict in which they were
captured, is so fundamental and accepted an incident to
war as to be an exercise of the ‘necessary and appropriate
force’ Congress has authorized the President to use.” Id.,
at 518 (plurality opinion of O’Connor, J.), id., at 588–589
(THOMAS, J., dissenting). After Hamdi, the Deputy Secre
tary of Defense established Combatant Status Review
Tribunals (CSRTs) to determine whether individuals
detained at Guantanamo were “enemy combatants,” as the
Department defines that term. See App. to Pet. for Cert.
3 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
in No. 06–1195, p. 81a. A later memorandum established
procedures to implement the CSRTs. See App. to Pet. for
Cert. in No. 06–1196, p. 147. The Government maintains
these procedures were designed to comply with the due
process requirements identified by the plurality in Hamdi.
See Brief for Respondents 10.
Interpreting the AUMF, the Department of Defense
ordered the detention of these petitioners, and they were
transferred to Guantanamo. Some of these individuals
were apprehended on the battlefield in Afghanistan, oth
ers in places as far away from there as Bosnia and Gam
bia. All are foreign nationals, but none is a citizen of a
nation now at war with the United States. Each denies he
is a member of the al Qaeda terrorist network that carried
out the September 11 attacks or of the Taliban regime
that provided sanctuary for al Qaeda. Each petitioner
appeared before a separate CSRT; was determined to be
an enemy combatant; and has sought a writ of habeas
corpus in the United States District Court for the District
of Columbia.
The first actions commenced in February 2002. The
District Court ordered the cases dismissed for lack of
jurisdiction because the naval station is outside the sover
eign territory of the United States. See Rasul v. Bush, 215
F. Supp. 2d 55 (2002). The Court of Appeals for the Dis
trict of Columbia Circuit affirmed. See Al Odah v. United
States, 321 F. 3d 1134, 1145 (2003). We granted certiorari
and reversed, holding that 28 U. S. C. §2241 extended
statutory habeas corpus jurisdiction to Guantanamo. See
Rasul v. Bush, 542 U. S. 466, 473 (2004). The constitu
tional issue presented in the instant cases was not reached
in Rasul. Id., at 476.
After Rasul, petitioners’ cases were consolidated and
entertained in two separate proceedings. In the first set of
cases, Judge Richard J. Leon granted the Government’s
motion to dismiss, holding that the detainees had no
4 BOUMEDIENE v. BUSH
Opinion of the Court
rights that could be vindicated in a habeas corpus action.
In the second set of cases Judge Joyce Hens Green reached
the opposite conclusion, holding the detainees had rights
under the Due Process Clause of the Fifth Amendment.
See Khalid v. Bush, 355 F. Supp. 2d 311, 314 (DC 2005);
In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443,
464 (DC 2005).
While appeals were pending from the District Court
decisions, Congress passed the DTA. Subsection (e) of
§1005 of the DTA amended 28 U. S. C. §2241 to provide
that “no court, justice, or judge shall have jurisdiction to
hear or consider . . . an application for a writ of habeas
corpus filed by or on behalf of an alien detained by the
Department of Defense at Guantanamo Bay, Cuba.” 119
Stat. 2742. Section 1005 further provides that the Court
of Appeals for the District of Columbia Circuit shall have
“exclusive” jurisdiction to review decisions of the CSRTs.
Ibid.
In Hamdan v. Rumsfeld, 548 U. S. 557, 576–577 (2006),
the Court held this provision did not apply to cases (like
petitioners’) pending when the DTA was enacted. Con
gress responded by passing the MCA, 10 U. S. C. A. §948a
et seq. (Supp. 2007), which again amended §2241. The
text of the statutory amendment is discussed below. See
Part II, infra. (Four Members of the Hamdan majority
noted that “[n]othing prevent[ed] the President from
returning to Congress to seek the authority he believes
necessary.” 548 U. S., at 636 (BREYER, J., concurring).
The authority to which the concurring opinion referred
was the authority to “create military commissions of the
kind at issue” in the case. Ibid. Nothing in that opinion
can be construed as an invitation for Congress to suspend
the writ.)
Petitioners’ cases were consolidated on appeal, and the
parties filed supplemental briefs in light of our decision in
Hamdan. The Court of Appeals’ ruling, 476 F. 3d 981
5 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
(CADC 2007), is the subject of our present review and
today’s decision.
The Court of Appeals concluded that MCA §7 must be
read to strip from it, and all federal courts, jurisdiction to
consider petitioners’ habeas corpus applications, id., at
987; that petitioners are not entitled to the privilege of the
writ or the protections of the Suspension Clause, id., at
990–991; and, as a result, that it was unnecessary to
consider whether Congress provided an adequate and
effective substitute for habeas corpus in the DTA.
We granted certiorari. 551 U. S. ___ (2007).
II
As a threshold matter, we must decide whether MCA §7
denies the federal courts jurisdiction to hear habeas cor
pus actions pending at the time of its enactment. We hold
the statute does deny that jurisdiction, so that, if the
statute is valid, petitioners’ cases must be dismissed.
As amended by the terms of the MCA, 28 U. S. C. A.
§2241(e) (Supp. 2007) now provides:
“(1) No court, justice, or judge shall have jurisdic
tion to hear or consider an application for a writ of
habeas corpus filed by or on behalf of an alien de
tained by the United States who has been deter
mined by the United States to have been properly de
tained as an enemy combatant or is awaiting such
determination.
“(2) Except as provided in [§§1005(e)(2) and (e)(3)
of the DTA] no court, justice, or judge shall have ju
risdiction to hear or consider any other action
against the United States or its agents relating to
any aspect of the detention, transfer, treatment,
trial, or conditions of confinement of an alien who is
or was detained by the United States and has been
determined by the United States to have been prop
erly detained as an enemy combatant or is awaiting
6 BOUMEDIENE v. BUSH
Opinion of the Court
such determination.”
Section 7(b) of the MCA provides the effective date for
the amendment of §2241(e). It states:
“The amendment made by [MCA §7(a)] shall take ef
fect on the date of the enactment of this Act, and shall
apply to all cases, without exception, pending on or af
ter the date of the enactment of this Act which relate
to any aspect of the detention, transfer, treatment,
trial, or conditions of detention of an alien detained by
the United States since September 11, 2001.” 120
Stat. 2636.
There is little doubt that the effective date provision
applies to habeas corpus actions. Those actions, by defini
tion, are cases “which relate to . . . detention.” See Black’s
Law Dictionary 728 (8th ed. 2004) (defining habeas corpus
as “[a] writ employed to bring a person before a court,
most frequently to ensure that the party’s imprisonment
or detention is not illegal”). Petitioners argue, neverthe
less, that MCA §7(b) is not a sufficiently clear statement of
congressional intent to strip the federal courts of jurisdic
tion in pending cases. See Ex parte Yerger, 8 Wall. 85,
102–103 (1869). We disagree.
Their argument is as follows: Section 2241(e)(1) refers to
“a writ of habeas corpus.” The next paragraph,
§2241(e)(2), refers to “any other action . . . relating to any
aspect of the detention, transfer, treatment, trial, or condi
tions of confinement of an alien who . . . [has] been prop
erly detained as an enemy combatant or is awaiting such
determination.” There are two separate paragraphs, the
argument continues, so there must be two distinct classes
of cases. And the effective date subsection, MCA §7(b), it
is said, refers only to the second class of cases, for it
largely repeats the language of §2241(e)(2) by referring to
“cases . . . which relate to any aspect of the detention,
transfer, treatment, trial, or conditions of detention of an
7 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
alien detained by the United States.”
Petitioners’ textual argument would have more force
were it not for the phrase “other action” in §2241(e)(2).
The phrase cannot be understood without referring back
to the paragraph that precedes it, §2241(e)(1), which
explicitly mentions the term “writ of habeas corpus.” The
structure of the two paragraphs implies that habeas ac
tions are a type of action “relating to any aspect of the
detention, transfer, treatment, trial, or conditions of con
finement of an alien who is or was detained . . . as an
enemy combatant.” Pending habeas actions, then, are in
the category of cases subject to the statute’s jurisdictional
bar.
We acknowledge, moreover, the litigation history that
prompted Congress to enact the MCA. In Hamdan the
Court found it unnecessary to address the petitioner’s
Suspension Clause arguments but noted the relevance of
the clear statement rule in deciding whether Congress
intended to reach pending habeas corpus cases. See 548
U. S., at 575 (Congress should “not be presumed to have
effected such denial [of habeas relief] absent an unmis
takably clear statement to the contrary”). This interpre
tive rule facilitates a dialogue between Congress and the
Court. Cf. Hilton v. South Carolina Public Railways
Comm’n, 502 U. S. 197, 206 (1991); H. Hart & A. Sacks,
The Legal Process: Basic Problems in the Making and
Application of Law 1209–1210 (W. Eskridge & P. Frickey
eds. 1994). If the Court invokes a clear statement rule to
advise that certain statutory interpretations are favored
in order to avoid constitutional difficulties, Congress can
make an informed legislative choice either to amend the
statute or to retain its existing text. If Congress amends,
its intent must be respected even if a difficult constitu
tional question is presented. The usual presumption is
that Members of Congress, in accord with their oath of
office, considered the constitutional issue and determined
8 BOUMEDIENE v. BUSH
Opinion of the Court
the amended statute to be a lawful one; and the Judiciary,
in light of that determination, proceeds to its own inde
pendent judgment on the constitutional question when
required to do so in a proper case.
If this ongoing dialogue between and among the
branches of Government is to be respected, we cannot
ignore that the MCA was a direct response to Hamdan’s
holding that the DTA’s jurisdiction-stripping provision
had no application to pending cases. The Court of Appeals
was correct to take note of the legislative history when
construing the statute, see 476 F. 3d, at 986, n. 2 (citing
relevant floor statements); and we agree with its conclu
sion that the MCA deprives the federal courts of jurisdic
tion to entertain the habeas corpus actions now before us.
III
In deciding the constitutional questions now presented
we must determine whether petitioners are barred from
seeking the writ or invoking the protections of the Suspen
sion Clause either because of their status, i.e., petitioners’
designation by the Executive Branch as enemy combat
ants, or their physical location, i.e., their presence at
Guantanamo Bay. The Government contends that non
citizens designated as enemy combatants and detained in
territory located outside our Nation’s borders have no
constitutional rights and no privilege of habeas corpus.
Petitioners contend they do have cognizable constitutional
rights and that Congress, in seeking to eliminate recourse
to habeas corpus as a means to assert those rights, acted
in violation of the Suspension Clause.
We begin with a brief account of the history and origins
of the writ. Our account proceeds from two propositions.
First, protection for the privilege of habeas corpus was one
of the few safeguards of liberty specified in a Constitution
that, at the outset, had no Bill of Rights. In the system
conceived by the Framers the writ had a centrality that
9 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
must inform proper interpretation of the Suspension
Clause. Second, to the extent there were settled prece
dents or legal commentaries in 1789 regarding the extra
territorial scope of the writ or its application to enemy
aliens, those authorities can be instructive for the present
cases.
A
The Framers viewed freedom from unlawful restraint as
a fundamental precept of liberty, and they understood the
writ of habeas corpus as a vital instrument to secure that
freedom. Experience taught, however, that the common-
law writ all too often had been insufficient to guard
against the abuse of monarchial power. That history
counseled the necessity for specific language in the Consti
tution to secure the writ and ensure its place in our legal
system.
Magna Carta decreed that no man would be imprisoned
contrary to the law of the land. Art. 39, in Sources of Our
Liberties 17 (R. Perry & J. Cooper eds. 1959) (“No free
man shall be taken or imprisoned or dispossessed, or
outlawed, or banished, or in any way destroyed, nor will
we go upon him, nor send upon him, except by the legal
judgment of his peers or by the law of the land”). Impor
tant as the principle was, the Barons at Runnymede pre
scribed no specific legal process to enforce it. Holdsworth
tells us, however, that gradually the writ of habeas corpus
became the means by which the promise of Magna Carta
was fulfilled. 9 W. Holdsworth, A History of English Law
112 (1926) (hereinafter Holdsworth).
The development was painstaking, even by the centu
ries-long measures of English constitutional history. The
writ was known and used in some form at least as early as
the reign of Edward I. Id., at 108–125. Yet at the outset
it was used to protect not the rights of citizens but those of
the King and his courts. The early courts were considered
10 BOUMEDIENE v. BUSH
Opinion of the Court
agents of the Crown, designed to assist the King in the
exercise of his power. See J. Baker, An Introduction to
English Legal History 38–39 (4th ed. 2002). Thus the
writ, while it would become part of the foundation of
liberty for the King’s subjects, was in its earliest use a
mechanism for securing compliance with the King’s
laws. See Halliday & White, The Suspension Clause:
English Text, Imperial Contexts, and American Impli
cations, 94 Va. L. Rev. (forthcoming 2008) (hereinafter
Halliday & White) (manuscript, at 11, online at
http://papers.ssrn.com/sol3 /papers.cfm?abstract_id=100
8252 (all Internet materials as visited June 9, 2008, and
available in Clerk of Court’s case file) (noting that “concep
tually the writ arose from a theory of power rather than a
theory of liberty”)). Over time it became clear that by
issuing the writ of habeas corpus common-law courts
sought to enforce the King’s prerogative to inquire into the
authority of a jailer to hold a prisoner. See M. Hale, Pre
rogatives of the King 229 (D. Yale ed. 1976); 2 J. Story,
Commentaries on the Constitution of the United States
§1341, p. 237 (3d ed. 1858) (noting that the writ ran “into
all parts of the king’s dominions; for it is said, that the
king is entitled, at all times, to have an account, why the
liberty of any of his subjects is restrained”).
Even so, from an early date it was understood that the
King, too, was subject to the law. As the writers said of
Magna Carta, “it means this, that the king is and shall be
below the law.” 1 F. Pollock & F. Maitland, History of
English Law 173 (2d ed. 1909); see also 2 Bracton On the
Laws and Customs of England 33 (S. Thorne transl. 1968)
(“The king must not be under man but under God and
under the law, because law makes the king”). And, by the
1600’s, the writ was deemed less an instrument of the
King’s power and more a restraint upon it. See Collings,
Habeas Corpus for Convicts—Constitutional Right or
Legislative Grace, 40 Calif. L. Rev. 335, 336 (1952) (noting
11 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
that by this point the writ was “the appropriate process for
checking illegal imprisonment by public officials”).
Still, the writ proved to be an imperfect check. Even
when the importance of the writ was well understood in
England, habeas relief often was denied by the courts or
suspended by Parliament. Denial or suspension occurred
in times of political unrest, to the anguish of the impris
oned and the outrage of those in sympathy with them.
A notable example from this period was Darnel’s Case, 3
How. St. Tr. 1 (K. B. 1627). The events giving rise to the
case began when, in a display of the Stuart penchant for
authoritarian excess, Charles I demanded that Darnel and
at least four others lend him money. Upon their refusal,
they were imprisoned. The prisoners sought a writ of
habeas corpus; and the King filed a return in the form of a
warrant signed by the Attorney General. Ibid. The court
held this was a sufficient answer and justified the sub
jects’ continued imprisonment. Id., at 59.
There was an immediate outcry of protest. The House of
Commons promptly passed the Petition of Right, 3 Car. 1,
ch. 1 (1627), 5 Statutes of the Realm 23, 24 (reprint 1963),
which condemned executive “imprison[ment] without any
cause” shown, and declared that “no freeman in any such
manner as is before mencioned [shall] be imprisoned or
deteined.” Yet a full legislative response was long de
layed. The King soon began to abuse his authority again,
and Parliament was dissolved. See W. Hall & R. Albion, A
History of England and the British Empire 328 (3d ed.
1953) (hereinafter Hall & Albion). When Parliament
reconvened in 1640, it sought to secure access to the writ
by statute. The Act of 1640, 16 Car. 1, ch. 10, 5 Statutes of
the Realm, at 110, expressly authorized use of the writ to
test the legality of commitment by command or warrant of
the King or the Privy Council. Civil strife and the Inter
regnum soon followed, and not until 1679 did Parliament
try once more to secure the writ, this time through the
12 BOUMEDIENE v. BUSH
Opinion of the Court
Habeas Corpus Act of 1679, 31 Car. 2, ch. 2, id., at 935.
The Act, which later would be described by Blackstone as
the “stable bulwark of our liberties,” 1 W. Blackstone,
Commentaries *137 (hereinafter Blackstone), established
procedures for issuing the writ; and it was the model upon
which the habeas statutes of the 13 American Colonies
were based, see Collings, supra, at 338–339.
This history was known to the Framers. It no doubt
confirmed their view that pendular swings to and away
from individual liberty were endemic to undivided, uncon
trolled power. The Framers’ inherent distrust of govern
mental power was the driving force behind the constitu
tional plan that allocated powers among three
independent branches. This design serves not only to
make Government accountable but also to secure individ
ual liberty. See Loving v. United States, 517 U. S. 748,
756 (1996) (noting that “[e]ven before the birth of this
country, separation of powers was known to be a defense
against tyranny”); cf. Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring)
(“[T]he Constitution diffuses power the better to secure
liberty”); Clinton v. City of New York, 524 U. S. 417, 450
(1998) (KENNEDY, J., concurring) (“Liberty is always at
stake when one or more of the branches seek to transgress
the separation of powers”). Because the Constitution’s
separation-of-powers structure, like the substantive guar
antees of the Fifth and Fourteenth Amendments, see Yick
Wo v. Hopkins, 118 U. S. 356, 374 (1886), protects persons
as well as citizens, foreign nationals who have the privi
lege of litigating in our courts can seek to enforce separa
tion-of-powers principles, see, e.g., INS v. Chadha, 462
U. S. 919, 958–959 (1983).
That the Framers considered the writ a vital instrument
for the protection of individual liberty is evident from the
care taken to specify the limited grounds for its suspen
sion: “The Privilege of the Writ of Habeas Corpus shall not
13 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
be suspended, unless when in Cases of Rebellion or Inva
sion the public Safety may require it.” Art. I, §9, cl. 2; see
Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425,
1509, n. 329 (1987) (“[T]he non-suspension clause is the
original Constitution’s most explicit reference to reme
dies”). The word “privilege” was used, perhaps, to avoid
mentioning some rights to the exclusion of others. (In
deed, the only mention of the term “right” in the Constitu
tion, as ratified, is in its clause giving Congress the power
to protect the rights of authors and inventors. See Art. I,
§8, cl. 8.)
Surviving accounts of the ratification debates provide
additional evidence that the Framers deemed the writ to
be an essential mechanism in the separation-of-powers
scheme. In a critical exchange with Patrick Henry at the
Virginia ratifying convention Edmund Randolph referred
to the Suspension Clause as an “exception” to the “power
given to Congress to regulate courts.” See 3 Debates in
the Several State Conventions on the Adoption of the
Federal Constitution 460–464 (J. Elliot 2d ed. 1876) (here
inafter Elliot’s Debates). A resolution passed by the New
York ratifying convention made clear its understanding
that the Clause not only protects against arbitrary sus
pensions of the writ but also guarantees an affirmative
right to judicial inquiry into the causes of detention. See
Resolution of the New York Ratifying Convention (July 26,
1788), in 1 Elliot’s Debates 328 (noting the convention’s
understanding “[t]hat every person restrained of his lib
erty is entitled to an inquiry into the lawfulness of such
restraint, and to a removal thereof if unlawful; and that
such inquiry or removal ought not to be denied or delayed,
except when, on account of public danger, the Congress
shall suspend the privilege of the writ of habeas corpus”).
Alexander Hamilton likewise explained that by providing
the detainee a judicial forum to challenge detention, the
writ preserves limited government. As he explained in
14 BOUMEDIENE v. BUSH
Opinion of the Court
The Federalist No. 84:
“[T]he practice of arbitrary imprisonments, have been,
in all ages, the favorite and most formidable instru
ments of tyranny. The observations of the judicious
Blackstone . . . are well worthy of recital: ‘To bereave
a man of life . . . or by violence to confiscate his estate,
without accusation or trial, would be so gross and no
torious an act of despotism as must at once convey the
alarm of tyranny throughout the whole nation; but
confinement of the person, by secretly hurrying him to
jail, where his sufferings are unknown or forgotten, is
a less public, a less striking, and therefore a more
dangerous engine of arbitrary government.’ And as a
remedy for this fatal evil he is everywhere peculiarly
emphatical in his encomiums on the habeas corpus
act, which in one place he calls ‘the BULWARK of the
British Constitution.’” C. Rossiter ed., p. 512 (1961)
(quoting 1 Blackstone *136, 4 id., at *438).
Post-1789 habeas developments in England, though not
bearing upon the Framers’ intent, do verify their foresight.
Those later events would underscore the need for struc
tural barriers against arbitrary suspensions of the writ.
Just as the writ had been vulnerable to executive and
parliamentary encroachment on both sides of the Atlantic
before the American Revolution, despite the Habeas Cor
pus Act of 1679, the writ was suspended with frequency in
England during times of political unrest after 1789. Par
liament suspended the writ for much of the period from
1792 to 1801, resulting in rampant arbitrary imprison
ment. See Hall & Albion 550. Even as late as World War
I, at least one prominent English jurist complained that
the Defence of the Realm Act, 1914, 4 & 5 Geo. 5, ch.
29(1)(a), effectively had suspended the privilege of habeas
corpus for any person suspected of “communicating with
the enemy.” See King v. Halliday, [1917] A. C. 260, 299
15 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
(Lord Shaw, dissenting); see generally A. Simpson, In the
Highest Degree Odious: Detention Without Trial in War
time Britain 6–7, 24–25 (1992).
In our own system the Suspension Clause is designed to
protect against these cyclical abuses. The Clause protects
the rights of the detained by a means consistent with the
essential design of the Constitution. It ensures that,
except during periods of formal suspension, the Judiciary
will have a time-tested device, the writ, to maintain the
“delicate balance of governance” that is itself the surest
safeguard of liberty. See Hamdi, 542 U. S., at 536 (plural
ity opinion). The Clause protects the rights of the de
tained by affirming the duty and authority of the Judici
ary to call the jailer to account. See Preiser v. Rodriguez,
411 U. S. 475, 484 (1973) (“[T]he essence of habeas corpus
is an attack by a person in custody upon the legality of
that custody”); cf. In re Jackson, 15 Mich. 417, 439–440
(1867) (Cooley, J., concurring) (“The important fact to be
observed in regard to the mode of procedure upon this
[habeas] writ is, that it is directed to, and served upon, not
the person confined, but his jailer”). The separation-of
powers doctrine, and the history that influenced its de
sign, therefore must inform the reach and purpose of the
Suspension Clause.
B
The broad historical narrative of the writ and its func
tion is central to our analysis, but we seek guidance as
well from founding-era authorities addressing the specific
question before us: whether foreign nationals, appre
hended and detained in distant countries during a time of
serious threats to our Nation’s security, may assert the
privilege of the writ and seek its protection. The Court
has been careful not to foreclose the possibility that the
protections of the Suspension Clause have expanded along
with post-1789 developments that define the present scope
16 BOUMEDIENE v. BUSH
Opinion of the Court
of the writ. See INS v. St. Cyr, 533 U. S. 289, 300–301
(2001). But the analysis may begin with precedents as of
1789, for the Court has said that “at the absolute mini
mum” the Clause protects the writ as it existed when the
Constitution was drafted and ratified. Id., at 301.
To support their arguments, the parties in these cases
have examined historical sources to construct a view of the
common-law writ as it existed in 1789—as have amici
whose expertise in legal history the Court has relied upon
in the past. See Brief for Legal Historians as Amici Cu-
riae; see also St. Cyr, supra, at 302, n. 16. The Govern
ment argues the common-law writ ran only to those terri
tories over which the Crown was sovereign. See Brief for
Respondents 27. Petitioners argue that jurisdiction fol
lowed the King’s officers. See Brief for Petitioner Boume
diene et al. 11. Diligent search by all parties reveals no
certain conclusions. In none of the cases cited do we find
that a common-law court would or would not have
granted, or refused to hear for lack of jurisdiction, a peti
tion for a writ of habeas corpus brought by a prisoner
deemed an enemy combatant, under a standard like the
one the Department of Defense has used in these cases,
and when held in a territory, like Guantanamo, over
which the Government has total military and civil control.
We know that at common law a petitioner’s status as an
alien was not a categorical bar to habeas corpus relief.
See, e.g., Sommersett’s Case, 20 How. St. Tr. 1, 80–82
(1772) (ordering an African slave freed upon finding the
custodian’s return insufficient); see generally Khera v.
Secretary of State for the Home Dept., [1984] A. C. 74, 111
(“Habeas corpus protection is often expressed as limited to
‘British subjects.’ Is it really limited to British nationals?
Suffice it to say that the case law has given an emphatic
‘no’ to the question”). We know as well that common-law
courts entertained habeas petitions brought by enemy
aliens detained in England—“entertained” at least in the
17 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
sense that the courts held hearings to determine the
threshold question of entitlement to the writ. See Case of
Three Spanish Sailors, 2 Black. W. 1324, 96 Eng. Rep. 775
(C. P. 1779); King v. Schiever, 2 Burr. 765, 97 Eng. Rep.
551 (K. B. 1759); Du Castro’s Case, Fort. 195, 92 Eng. Rep.
816 (K. B. 1697).
In Schiever and the Spanish Sailors’ case, the courts
denied relief to the petitioners. Whether the holdings in
these cases were jurisdictional or based upon the courts’
ruling that the petitioners were detained lawfully as
prisoners of war is unclear. See Spanish Sailors, supra, at
1324, 96 Eng. Rep., at 776; Schiever, supra, at 766, 97
Eng. Rep., at 552. In Du Castro’s Case, the court granted
relief, but that case is not analogous to petitioners’ be
cause the prisoner there appears to have been detained in
England. See Halliday & White 27, n. 72. To the extent
these authorities suggest the common-law courts ab
stained altogether from matters involving prisoners of
war, there was greater justification for doing so in the
context of declared wars with other nation states. Judicial
intervention might have complicated the military’s ability
to negotiate exchange of prisoners with the enemy, a
wartime practice well known to the Framers. See Resolu
tion of Mar. 30, 1778, 10 Journals of the Continental
Congress 1774–1789, p. 295 (W. Ford ed. 1908) (directing
General Washington not to exchange prisoners with the
British unless the enemy agreed to exempt citizens from
capture).
We find the evidence as to the geographic scope of the
writ at common law informative, but, again, not disposi
tive. Petitioners argue the site of their detention is analo
gous to two territories outside of England to which the
writ did run: the so-called “exempt jurisdictions,” like the
Channel Islands; and (in former times) India. There are
critical differences between these places and Guantanamo,
however.
18 BOUMEDIENE v. BUSH
Opinion of the Court
As the Court noted in Rasul, 542 U. S., at 481–482, and
nn. 11–12, common-law courts granted habeas corpus
relief to prisoners detained in the exempt jurisdictions.
But these areas, while not in theory part of the realm of
England, were nonetheless under the Crown’s control. See
2 H. Hallam, Constitutional History of England: From the
Accession of Henry VII to the Death of George II, pp. 232–
233 (reprint 1989). And there is some indication that
these jurisdictions were considered sovereign territory.
King v. Cowle, 2 Burr. 834, 854, 855, 97 Eng. Rep. 587,
599 (K. B. 1759) (describing one of the exempt jurisdic
tions, Berwick-upon-Tweed, as under the “sovereign juris
diction” and “subjection of the Crown of England”). Be
cause the United States does not maintain formal
sovereignty over Guantanamo Bay, see Part IV, infra, the
naval station there and the exempt jurisdictions discussed
in the English authorities are not similarly situated.
Petitioners and their amici further rely on cases in
which British courts in India granted writs of habeas
corpus to noncitizens detained in territory over which the
Moghul Emperor retained formal sovereignty and control.
See supra, at 12–13; Brief for Legal Historians as Amici
Curiae 12–13. The analogy to the present cases breaks
down, however, because of the geographic location of the
courts in the Indian example. The Supreme Court of
Judicature (the British Court) sat in Calcutta; but no
federal court sits at Guantanamo. The Supreme Court of
Judicature was, moreover, a special court set up by Par
liament to monitor certain conduct during the British Raj.
See Regulating Act of 1773, 13 Geo. 3, §§13–14. That it
had the power to issue the writ in nonsovereign territory
does not prove that common-law courts sitting in England
had the same power. If petitioners were to have the better
of the argument on this point, we would need some dem
onstration of a consistent practice of common-law courts
sitting in England and entertaining petitions brought by
19 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
alien prisoners detained abroad. We find little support for
this conclusion.
The Government argues, in turn, that Guantanamo is
more closely analogous to Scotland and Hanover, territo
ries that were not part of England but nonetheless con
trolled by the English monarch (in his separate capacities
as King of Scotland and Elector of Hanover). See Cowle, 2
Burr., at 856, 97 Eng. Rep., at 600. Lord Mansfield can be
cited for the proposition that, at the time of the founding,
English courts lacked the “power” to issue the writ to
Scotland and Hanover, territories Lord Mansfield referred
to as “foreign.” Ibid. But what matters for our purposes is
why common-law courts lacked this power. Given the
English Crown’s delicate and complicated relationships
with Scotland and Hanover in the 1700’s, we cannot disre
gard the possibility that the common-law courts’ refusal to
issue the writ to these places was motivated not by formal
legal constructs but by what we would think of as pruden
tial concerns. This appears to have been the case with
regard to other British territories where the writ did not
run. See 2 R. Chambers, A Course of Lectures on English
Law 1767–1773, p. 8 (T. Curley ed. 1986) (quoting the
view of Lord Mansfield in Cowle that “[n]otwithstanding
the power which the judges have, yet where they cannot
judge of the cause, or give relief upon it, they would not
think proper to interpose; and therefore in the case of
imprisonments in Guernsey, Jersey, Minorca, or the plan-
tations, the most usual way is to complain to the king in
Council” (internal quotation marks omitted)). And after
the Act of Union in 1707, through which the kingdoms of
England and Scotland were merged politically, Queen
Anne and her successors, in their new capacity as sover
eign of Great Britain, ruled the entire island as one king
dom. Accordingly, by the time Lord Mansfield penned his
opinion in Cowle in 1759, Scotland was no longer a “for
eign” country vis-à-vis England—at least not in the sense
20 BOUMEDIENE v. BUSH
Opinion of the Court
in which Cuba is a foreign country vis-à-vis the United
States.
Scotland remained “foreign” in Lord Mansfield’s day in
at least one important respect, however. Even after the
Act of Union, Scotland (like Hanover) continued to main
tain its own laws and court system. See 1 Blackstone *98,
*109. Under these circumstances prudential considera
tions would have weighed heavily when courts sitting in
England received habeas petitions from Scotland or the
Electorate. Common-law decisions withholding the writ
from prisoners detained in these places easily could be
explained as efforts to avoid either or both of two embar
rassments: conflict with the judgments of another court of
competent jurisdiction; or the practical inability, by reason
of distance, of the English courts to enforce their judg
ments outside their territorial jurisdiction. Cf. Munaf v.
Geren, ante, at 15 (opinion of the Court) (recognizing that
“‘prudential concerns’ . . . such as comity and the orderly
administration of criminal justice” affect the appropriate
exercise of habeas jurisdiction).
By the mid-19th century, British courts could issue the
writ to Canada, notwithstanding the fact that Canadian
courts also had the power to do so. See 9 Holdsworth 124
(citing Ex parte Anderson, 3 El. and El. 487 (1861)). This
might be seen as evidence that the existence of a separate
court system was no barrier to the running of the common-
law writ. The Canada of the 1800’s, however, was in
many respects more analogous to the exempt jurisdictions
or to Ireland, where the writ ran, than to Scotland or
Hanover in the 1700’s, where it did not. Unlike Scotland
and Hanover, Canada followed English law. See B.
Laskin, The British Tradition in Canadian Law 50–51
(1969).
In the end a categorical or formal conception of sover
eignty does not provide a comprehensive or altogether
satisfactory explanation for the general understanding
21 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
that prevailed when Lord Mansfield considered issuance of
the writ outside England. In 1759 the writ did not run to
Scotland but did run to Ireland, even though, at that
point, Scotland and England had merged under the rule of
a single sovereign, whereas the Crowns of Great Britain
and Ireland remained separate (at least in theory). See
Cowle, supra, at 856–857, 97 Eng. Rep., 600; 1 Blackstone
*100–101. But there was at least one major difference
between Scotland’s and Ireland’s relationship with Eng
land during this period that might explain why the writ
ran to Ireland but not to Scotland. English law did not
generally apply in Scotland (even after the Act of Union)
but it did apply in Ireland. Blackstone put it as follows:
“[A]s Scotland and England are now one and the same
kingdom, and yet differ in their municipal laws; so Eng
land and Ireland are, on the other hand, distinct king
doms, and yet in general agree in their laws.” Id., at *100.
This distinction, and not formal notions of sovereignty,
may well explain why the writ did not run to Scotland
(and Hanover) but would run to Ireland.
The prudential barriers that may have prevented the
English courts from issuing the writ to Scotland and
Hanover are not relevant here. We have no reason to
believe an order from a federal court would be disobeyed
at Guantanamo. No Cuban court has jurisdiction to hear
these petitioners’ claims, and no law other than the laws
of the United States applies at the naval station. The
modern-day relations between the United States and
Guantanamo thus differ in important respects from the
18th-century relations between England and the kingdoms
of Scotland and Hanover. This is reason enough for us to
discount the relevance of the Government’s analogy.
Each side in the present matter argues that the very
lack of a precedent on point supports its position. The
Government points out there is no evidence that a court
sitting in England granted habeas relief to an enemy alien
22 BOUMEDIENE v. BUSH
Opinion of the Court
detained abroad; petitioners respond there is no evidence
that a court refused to do so for lack of jurisdiction.
Both arguments are premised, however, upon the as
sumption that the historical record is complete and that
the common law, if properly understood, yields a definite
answer to the questions before us. There are reasons to
doubt both assumptions. Recent scholarship points to the
inherent shortcomings in the historical record. See Halli
day & White 14–15 (noting that most reports of 18th
century habeas proceedings were not printed). And given
the unique status of Guantanamo Bay and the particular
dangers of terrorism in the modern age, the common-law
courts simply may not have confronted cases with close
parallels to this one. We decline, therefore, to infer too
much, one way or the other, from the lack of historical
evidence on point. Cf. Brown v. Board of Education, 347
U. S. 483, 489 (1954) (noting evidence concerning the
circumstances surrounding the adoption of the Fourteenth
Amendment, discussed in the parties’ briefs and uncov
ered through the Court’s own investigation, “convince us
that, although these sources cast some light, it is not
enough to resolve the problem with which we are faced.
At best, they are inconclusive”); Reid v. Covert, 354 U. S.
1, 64 (1957) (Frankfurter, J., concurring in result) (argu
ing constitutional adjudication should not be based upon
evidence that is “too episodic, too meager, to form a solid
basis in history, preceding and contemporaneous with the
framing of the Constitution”).
IV
Drawing from its position that at common law the writ
ran only to territories over which the Crown was sover
eign, the Government says the Suspension Clause affords
petitioners no rights because the United States does not
claim sovereignty over the place of detention.
Guantanamo Bay is not formally part of the United
23 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
States. See DTA §1005(g), 119 Stat. 2743. And under the
terms of the lease between the United States and Cuba,
Cuba retains “ultimate sovereignty” over the territory
while the United States exercises “complete jurisdiction
and control.” See Lease of Lands for Coaling and Naval
Stations, Feb. 23, 1903, U. S.-Cuba, Art. III, T. S. No. 418
(hereinafter 1903 Lease Agreement); Rasul, 542 U. S., at
471. Under the terms of the 1934 Treaty, however, Cuba
effectively has no rights as a sovereign until the parties
agree to modification of the 1903 Lease Agreement or the
United States abandons the base. See Treaty Defining
Relations with Cuba, May 29, 1934, U. S.-Cuba, Art. III,
48 Stat. 1683, T. S. No. 866.
The United States contends, nevertheless, that Guan
tanamo is not within its sovereign control. This was the
Government’s position well before the events of September
11, 2001. See, e.g., Brief for Petitioners in Sale v. Haitian
Centers Council, Inc., O. T. 1992, No. 92–344, p. 31 (argu
ing that Guantanamo is territory “outside the United
States”). And in other contexts the Court has held that
questions of sovereignty are for the political branches to
decide. See Vermilya-Brown Co. v. Connell, 335 U. S. 377,
380 (1948) (“[D]etermination of sovereignty over an area is
for the legislative and executive departments”); see also
Jones v. United States, 137 U. S. 202 (1890); Williams v.
Suffolk Ins. Co., 13 Pet. 415, 420 (1839). Even if this were
a treaty interpretation case that did not involve a political
question, the President’s construction of the lease agree
ment would be entitled to great respect. See Sumitomo
Shoji America, Inc. v. Avagliano, 457 U. S. 176, 184–185
(1982).
We therefore do not question the Government’s position
that Cuba, not the United States, maintains sovereignty,
in the legal and technical sense of the term, over Guan
tanamo Bay. But this does not end the analysis. Our
cases do not hold it is improper for us to inquire into the
24 BOUMEDIENE v. BUSH
Opinion of the Court
objective degree of control the Nation asserts over foreign
territory. As commentators have noted, “‘[s]overeignty’ is
a term used in many senses and is much abused.” See 1
Restatement (Third) of Foreign Relations Law of the
United States §206, Comment b, p. 94 (1986). When we
have stated that sovereignty is a political question, we
have referred not to sovereignty in the general, colloquial
sense, meaning the exercise of dominion or power, see
Webster’s New International Dictionary 2406 (2d ed.
1934) (“sovereignty,” definition 3), but sovereignty in the
narrow, legal sense of the term, meaning a claim of right,
see 1 Restatement (Third) of Foreign Relations, supra,
§206, Comment b, at 94 (noting that sovereignty “implies
a state’s lawful control over its territory generally to the
exclusion of other states, authority to govern in that terri
tory, and authority to apply law there”). Indeed, it is not
altogether uncommon for a territory to be under the de
jure sovereignty of one nation, while under the plenary
control, or practical sovereignty, of another. This condi
tion can occur when the territory is seized during war, as
Guantanamo was during the Spanish-American War. See,
e.g., Fleming v. Page, 9 How. 603, 614 (1850) (noting that
the port of Tampico, conquered by the United States dur
ing the war with Mexico, was “undoubtedly . . . subject to
the sovereignty and dominion of the United States,” but
that it “does not follow that it was a part of the United
States, or that it ceased to be a foreign country”); King v.
Earl of Crewe ex parte Sekgome, [1910] 2 K. B. 576, 603–
604 (C. A.) (opinion of Williams, L. J.) (arguing that the
Bechuanaland Protectorate in South Africa was “under
His Majesty’s dominion in the sense of power and jurisdic
tion, but is not under his dominion in the sense of territo
rial dominion”). Accordingly, for purposes of our analysis,
we accept the Government’s position that Cuba, and not
the United States, retains de jure sovereignty over Guan
tanamo Bay. As we did in Rasul, however, we take notice
25 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
of the obvious and uncontested fact that the United States,
by virtue of its complete jurisdiction and control over the
base, maintains de facto sovereignty over this territory.
See 542 U. S., at 480; id., at 487 (KENNEDY, J., concurring
in judgment).
Were we to hold that the present cases turn on the
political question doctrine, we would be required first to
accept the Government’s premise that de jure sovereignty
is the touchstone of habeas corpus jurisdiction. This
premise, however, is unfounded. For the reasons indi
cated above, the history of common-law habeas corpus
provides scant support for this proposition; and, for the
reasons indicated below, that position would be inconsis
tent with our precedents and contrary to fundamental
separation-of-powers principles.
A
The Court has discussed the issue of the Constitution’s
extraterritorial application on many occasions. These
decisions undermine the Government’s argument that, at
least as applied to noncitizens, the Constitution necessar
ily stops where de jure sovereignty ends.
The Framers foresaw that the United States would
expand and acquire new territories. See American Ins. Co.
v. 356 Bales of Cotton, 1 Pet. 511, 542 (1828). Article IV,
§3, cl. 1, grants Congress the power to admit new States.
Clause 2 of the same section grants Congress the “Power
to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the
United States.” Save for a few notable (and notorious)
exceptions, e.g., Dred Scott v. Sandford, 19 How. 393
(1857), throughout most of our history there was little
need to explore the outer boundaries of the Constitution’s
geographic reach. When Congress exercised its power to
create new territories, it guaranteed constitutional protec
tions to the inhabitants by statute. See, e.g., An Act: to
26 BOUMEDIENE v. BUSH
Opinion of the Court
establish a Territorial Government for Utah, 9 Stat. 458
(“[T]he Constitution and laws of the United States are
hereby extended over and declared to be in force in said
Territory of Utah”); Rev. Stat. §1891 (“The Constitution
and all laws of the United States which are not locally
inapplicable shall have the same force and effect within all
the organized Territories, and in every Territory hereafter
organized as elsewhere within the United States”); see
generally Burnett, Untied States: American Expansion
and Territorial Deannexation, 72 U. Chi. L. Rev. 797, 825–
827 (2005). In particular, there was no need to test the
limits of the Suspension Clause because, as early as 1789,
Congress extended the writ to the Territories. See Act of
Aug. 7, 1789, 1 Stat. 52 (reaffirming Art. II of Northwest
Ordinance of 1787, which provided that “[t]he inhabitants
of the said territory, shall always be entitled to the bene
fits of the writ of habeas corpus”).
Fundamental questions regarding the Constitution’s
geographic scope first arose at the dawn of the 20th cen
tury when the Nation acquired noncontiguous Territories:
Puerto Rico, Guam, and the Philippines—ceded to the
United States by Spain at the conclusion of the Spanish-
American War—and Hawaii—annexed by the United
States in 1898. At this point Congress chose to discon
tinue its previous practice of extending constitutional
rights to the territories by statute. See, e.g., An Act Tem
porarily to provide for the administration of the affairs of
civil government in the Philippine Islands, and for other
purposes, 32 Stat. 692 (noting that Rev. Stat. §1891 did
not apply to the Philippines).
In a series of opinions later known as the Insular Cases,
the Court addressed whether the Constitution, by its own
force, applies in any territory that is not a State. See De
Lima v. Bidwell, 182 U. S. 1 (1901); Dooley v. United
States, 182 U. S. 222 (1901); Armstrong v. United States,
182 U. S. 243 (1901); Downes v. Bidwell, 182 U. S. 244
27 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
(1901); Hawaii v. Mankichi, 190 U. S. 197 (1903); Dorr v.
United States, 195 U. S. 138 (1904). The Court held that
the Constitution has independent force in these territo
ries, a force not contingent upon acts of legislative grace.
Yet it took note of the difficulties inherent in that position.
Prior to their cession to the United States, the former
Spanish colonies operated under a civil-law system, with
out experience in the various aspects of the Anglo-
American legal tradition, for instance the use of grand and
petit juries. At least with regard to the Philippines, a
complete transformation of the prevailing legal culture
would have been not only disruptive but also unnecessary,
as the United States intended to grant independence to
that Territory. See An Act To declare the purpose of the
people of the United States as to the future political status
of the people of the Philippine Islands, and to provide a
more autonomous government for those islands (Jones
Act), 39 Stat. 545 (noting that “it was never the intention
of the people of the United States in the incipiency of the
War with Spain to make it a war of conquest or for territo
rial aggrandizement” and that “it is, as it has always been,
the purpose of the people of the United States to withdraw
their sovereignty over the Philippine Islands and to recog
nize their independence as soon as a stable government
can be established therein”). The Court thus was reluc
tant to risk the uncertainty and instability that could
result from a rule that displaced altogether the existing
legal systems in these newly acquired Territories. See
Downes, supra, at 282 (“It is obvious that in the annexa
tion of outlying and distant possessions grave questions
will arise from differences of race, habits, laws and cus
toms of the people, and from differences of soil, climate
and production . . . ”).
These considerations resulted in the doctrine of territo
rial incorporation, under which the Constitution applies in
full in incorporated Territories surely destined for state
28 BOUMEDIENE v. BUSH
Opinion of the Court
hood but only in part in unincorporated Territories. See
Dorr, supra, at 143 (“Until Congress shall see fit to incor
porate territory ceded by treaty into the United States, . . .
the territory is to be governed under the power existing in
Congress to make laws for such territories and subject to
such constitutional restrictions upon the powers of that
body as are applicable to the situation”); Downes, supra, at
293 (White, J., concurring) (“[T]he determination of what
particular provision of the Constitution is applicable,
generally speaking, in all cases, involves an inquiry into
the situation of the territory and its relations to the
United States”). As the Court later made clear, “the real
issue in the Insular Cases was not whether the Constitu
tion extended to the Philippines or Porto Rico when we
went there, but which of its provisions were applicable by
way of limitation upon the exercise of executive and legis
lative power in dealing with new conditions and require
ments.” Balzac v. Porto Rico, 258 U. S. 298, 312 (1922). It
may well be that over time the ties between the United
States and any of its unincorporated Territories
strengthen in ways that are of constitutional significance.
Cf. Torres v. Puerto Rico, 442 U. S. 465, 475–476 (1979)
(Brennan, J., concurring in judgment) (“Whatever the
validity of the [Insular Cases] in the particular historical
context in which they were decided, those cases are clearly
not authority for questioning the application of the Fourth
Amendment—or any other provision of the Bill of Rights—
to the Commonwealth of Puerto Rico in the 1970’s”). But,
as early as Balzac in 1922, the Court took for granted that
even in unincorporated Territories the Government of the
United States was bound to provide to noncitizen inhabi
tants “guaranties of certain fundamental personal rights
declared in the Constitution.” 258 U. S., at 312; see also
Late Corp. of Church of Jesus Christ of Latter-day Saints
v. United States, 136 U. S. 1, 44 (1890) (“Doubtless Con
gress, in legislating for the Territories would be subject to
29 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
those fundamental limitations in favor of personal rights
which are formulated in the Constitution and its amend
ments”). Yet noting the inherent practical difficulties of
enforcing all constitutional provisions “always and every
where,” Balzac, supra, at 312, the Court devised in the
Insular Cases a doctrine that allowed it to use its power
sparingly and where it would be most needed. This cen
tury-old doctrine informs our analysis in the present
matter.
Practical considerations likewise influenced the Court’s
analysis a half-century later in Reid, 354 U. S. 1. The
petitioners there, spouses of American servicemen, lived
on American military bases in England and Japan. They
were charged with crimes committed in those countries
and tried before military courts, consistent with executive
agreements the United States had entered into with the
British and Japanese governments. Id., at 15–16, and nn.
29–30 (plurality opinion). Because the petitioners were
not themselves military personnel, they argued they were
entitled to trial by jury.
Justice Black, writing for the plurality, contrasted the
cases before him with the Insular Cases, which involved
territories “with wholly dissimilar traditions and institu
tions” that Congress intended to govern only “temporar
ily.” Id., at 14. Justice Frankfurter argued that the “spe
cific circumstances of each particular case” are relevant in
determining the geographic scope of the Constitution. Id.,
at 54 (opinion concurring in result). And Justice Harlan,
who had joined an opinion reaching the opposite result in
the case in the previous Term, Reid v. Covert, 351 U. S.
487 (1956), was most explicit in rejecting a “rigid and
abstract rule” for determining where constitutional guar
antees extend. Reid, 354 U. S., at 74 (opinion concurring
in result). He read the Insular Cases to teach that
whether a constitutional provision has extraterritorial
effect depends upon the “particular circumstances, the
30 BOUMEDIENE v. BUSH
Opinion of the Court
practical necessities, and the possible alternatives which
Congress had before it” and, in particular, whether judi
cial enforcement of the provision would be “impracticable
and anomalous.” Id., at 74–75; see also United States v.
Verdugo-Urquidez, 494 U. S. 259, 277–278 (1990)
(KENNEDY, J., concurring) (applying the “impracticable
and anomalous” extraterritoriality test in the Fourth
Amendment context).
That the petitioners in Reid were American citizens was
a key factor in the case and was central to the plurality’s
conclusion that the Fifth and Sixth Amendments apply to
American civilians tried outside the United States. But
practical considerations, related not to the petitioners’
citizenship but to the place of their confinement and trial,
were relevant to each Member of the Reid majority. And
to Justices Harlan and Frankfurter (whose votes were
necessary to the Court’s disposition) these considerations
were the decisive factors in the case.
Indeed the majority splintered on this very point. The
key disagreement between the plurality and the concur
ring Justices in Reid was over the continued precedential
value of the Court’s previous opinion in In re Ross, 140
U. S. 453 (1891), which the Reid Court understood as
holding that under some circumstances Americans abroad
have no right to indictment and trial by jury. The peti
tioner in Ross was a sailor serving on an American mer
chant vessel in Japanese waters who was tried before an
American consular tribunal for the murder of a fellow
crewman. 140 U. S., at 459, 479. The Ross Court held
that the petitioner, who was a British subject, had no
rights under the Fifth and Sixth Amendments. Id., at 464.
The petitioner’s citizenship played no role in the disposi
tion of the case, however. The Court assumed (consistent
with the maritime custom of the time) that Ross had all
the rights of a similarly situated American citizen. Id., at
479 (noting that Ross was “under the protection and sub
31 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
ject to the laws of the United States equally with the
seaman who was native born”). The Justices in Reid
therefore properly understood Ross as standing for the
proposition that, at least in some circumstances, the jury
provisions of the Fifth and Sixth Amendments have no
application to American citizens tried by American au
thorities abroad. See 354 U. S., at 11–12 (plurality opin
ion) (describing Ross as holding that “constitutional pro
tections applied ‘only to citizens and others within the
United States . . . and not to residents or temporary so
journers abroad’” (quoting Ross, supra, at 464)); 354 U. S.,
at 64 (Frankfurter, J., concurring in result) (noting that
the consular tribunals upheld in Ross “w[ere] based on
long-established custom and they were justified as the
best possible means for securing justice for the few Ameri
cans present in [foreign] countries”); 354 U. S., at 75
(Harlan, J., concurring in result) (“what Ross and the
Insular Cases hold is that the particular local setting, the
practical necessities, and the possible alternatives are
relevant to a question of judgment, namely, whether jury
trial should be deemed a necessary condition of the exer
cise of Congress’ power to provide for the trial of Ameri
cans overseas”).
The Reid plurality doubted that Ross was rightly de
cided, precisely because it believed the opinion was insuf
ficiently protective of the rights of American citizens. See
354 U. S., at 10–12; see also id., at 78 (Clark, J., dissent
ing) (noting that “four of my brothers would specifically
overrule and two would impair the long-recognized vitality
of an old and respected precedent in our law, the case of In
re Ross, 140 U. S. 453 (1891)”). But Justices Harlan and
Frankfurter, while willing to hold that the American
citizen petitioners in the cases before them were entitled
to the protections of Fifth and Sixth Amendments, were
unwilling to overturn Ross. 354 U. S., at 64 (Frankfurter,
J., concurring in result); id., at 75 (Harlan, J., concurring
32 BOUMEDIENE v. BUSH
Opinion of the Court
in result). Instead, the two concurring Justices distin
guished Ross from the cases before them, not on the basis
of the citizenship of the petitioners, but on practical con
siderations that made jury trial a more feasible option for
them than it was for the petitioner in Ross. If citizenship
had been the only relevant factor in the case, it would
have been necessary for the Court to overturn Ross, some
thing Justices Harlan and Frankfurter were unwilling to
do. See Verdugo-Urquidez, supra, at 277 (KENNEDY, J.,
concurring) (noting that Ross had not been overruled).
Practical considerations weighed heavily as well in
Johnson v. Eisentrager, 339 U. S. 763 (1950), where the
Court addressed whether habeas corpus jurisdiction ex
tended to enemy aliens who had been convicted of violat
ing the laws of war. The prisoners were detained at
Landsberg Prison in Germany during the Allied Powers’
postwar occupation. The Court stressed the difficulties of
ordering the Government to produce the prisoners in a
habeas corpus proceeding. It “would require allocation of
shipping space, guarding personnel, billeting and rations”
and would damage the prestige of military commanders at
a sensitive time. Id., at 779. In considering these factors
the Court sought to balance the constraints of military
occupation with constitutional necessities. Id., at 769–
779; see Rasul, 542 U. S., at 475–476 (discussing the
factors relevant to Eisentrager’s constitutional holding);
542 U. S., at 486 (KENNEDY, J., concurring in judgment)
(same).
True, the Court in Eisentrager denied access to the writ,
and it noted the prisoners “at no relevant time were
within any territory over which the United States is sov
ereign, and [that] the scenes of their offense, their capture,
their trial and their punishment were all beyond the
territorial jurisdiction of any court of the United States.”
339 U. S., at 778. The Government seizes upon this lan
guage as proof positive that the Eisentrager Court adopted
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Opinion of the Court
a formalistic, sovereignty-based test for determining the
reach of the Suspension Clause. See Brief for Respon
dents 18–20. We reject this reading for three reasons.
First, we do not accept the idea that the above-quoted
passage from Eisentrager is the only authoritative lan
guage in the opinion and that all the rest is dicta. The
Court’s further determinations, based on practical consid
erations, were integral to Part II of its opinion and came
before the decision announced its holding. See 339 U. S.,
at 781.
Second, because the United States lacked both de jure
sovereignty and plenary control over Landsberg Prison,
see infra, at 34–35, it is far from clear that the Eisentrager
Court used the term sovereignty only in the narrow tech
nical sense and not to connote the degree of control the
military asserted over the facility. See supra, at 21. The
Justices who decided Eisentrager would have understood
sovereignty as a multifaceted concept. See Black’s Law
Dictionary 1568 (4th ed. 1951) (defining “sovereignty” as
“[t]he supreme, absolute, and uncontrollable power by
which any independent state is governed”; “the interna
tional independence of a state, combined with the right
and power of regulating its internal affairs without foreign
dictation”; and “[t]he power to do everything in a state
without accountability”); Ballentine’s Law Dictionary with
Pronunciations 1216 (2d ed. 1948) (defining “sovereignty”
as “[t]hat public authority which commands in civil soci
ety, and orders and directs what each citizen is to perform
to obtain the end of its institution”). In its principal brief
in Eisentrager, the Government advocated a bright-line
test for determining the scope of the writ, similar to the
one it advocates in these cases. See Brief for Petitioners in
Johnson v. Eisentrager, O. T. 1949, No. 306, pp. 74–75.
Yet the Court mentioned the concept of territorial sover
eignty only twice in its opinion. See Eisentrager, supra, at
778, 780. That the Court devoted a significant portion of
34 BOUMEDIENE v. BUSH
Opinion of the Court
Part II to a discussion of practical barriers to the running
of the writ suggests that the Court was not concerned
exclusively with the formal legal status of Landsberg
Prison but also with the objective degree of control the
United States asserted over it. Even if we assume the
Eisentrager Court considered the United States’ lack of
formal legal sovereignty over Landsberg Prison as the
decisive factor in that case, its holding is not inconsistent
with a functional approach to questions of extraterritorial
ity. The formal legal status of a given territory affects, at
least to some extent, the political branches’ control over
that territory. De jure sovereignty is a factor that bears
upon which constitutional guarantees apply there.
Third, if the Government’s reading of Eisentrager were
correct, the opinion would have marked not only a change
in, but a complete repudiation of, the Insular Cases’ (and
later Reid’s) functional approach to questions of extrater
ritoriality. We cannot accept the Government’s view.
Nothing in Eisentrager says that de jure sovereignty is or
has ever been the only relevant consideration in determin
ing the geographic reach of the Constitution or of habeas
corpus. Were that the case, there would be considerable
tension between Eisentrager, on the one hand, and the
Insular Cases and Reid, on the other. Our cases need not
be read to conflict in this manner. A constricted reading of
Eisentrager overlooks what we see as a common thread
uniting the Insular Cases, Eisentrager, and Reid: the idea
that questions of extraterritoriality turn on objective
factors and practical concerns, not formalism.
B
The Government’s formal sovereignty-based test raises
troubling separation-of-powers concerns as well. The
political history of Guantanamo illustrates the deficiencies
of this approach. The United States has maintained
complete and uninterrupted control of the bay for over 100
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Opinion of the Court
years. At the close of the Spanish-American War, Spain
ceded control over the entire island of Cuba to the United
States and specifically “relinquishe[d] all claim[s] of sover
eignty . . . and title.” See Treaty of Paris, Dec. 10, 1898,
U. S.-Spain, Art. I, 30 Stat. 1755, T. S. No. 343. From the
date the treaty with Spain was signed until the Cuban
Republic was established on May 20, 1902, the United
States governed the territory “in trust” for the benefit of
the Cuban people. Neely v. Henkel, 180 U. S. 109, 120
(1901); H. Thomas, Cuba or The Pursuit of Freedom 436,
460 (1998). And although it recognized, by entering into
the 1903 Lease Agreement, that Cuba retained “ultimate
sovereignty” over Guantanamo, the United States contin
ued to maintain the same plenary control it had enjoyed
since 1898. Yet the Government’s view is that the Consti
tution had no effect there, at least as to noncitizens, be
cause the United States disclaimed sovereignty in the
formal sense of the term. The necessary implication of the
argument is that by surrendering formal sovereignty over
any unincorporated territory to a third party, while at the
same time entering into a lease that grants total control
over the territory back to the United States, it would be
possible for the political branches to govern without legal
constraint.
Our basic charter cannot be contracted away like this.
The Constitution grants Congress and the President the
power to acquire, dispose of, and govern territory, not the
power to decide when and where its terms apply. Even
when the United States acts outside its borders, its powers
are not “absolute and unlimited” but are subject “to such
restrictions as are expressed in the Constitution.” Murphy
v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from ques
tions involving formal sovereignty and territorial govern
ance is one thing. To hold the political branches have the
power to switch the Constitution on or off at will is quite
another. The former position reflects this Court’s recogni
36 BOUMEDIENE v. BUSH
Opinion of the Court
tion that certain matters requiring political judgments are
best left to the political branches. The latter would permit
a striking anomaly in our tripartite system of government,
leading to a regime in which Congress and the President,
not this Court, say “what the law is.” Marbury v. Madi-
son, 1 Cranch 137, 177 (1803).
These concerns have particular bearing upon the Sus
pension Clause question in the cases now before us, for the
writ of habeas corpus is itself an indispensable mechanism
for monitoring the separation of powers. The test for
determining the scope of this provision must not be subject
to manipulation by those whose power it is designed to
restrain.
C
As we recognized in Rasul, 542 U. S., at 476; id., at 487
(KENNEDY, J., concurring in judgment), the outlines of a
framework for determining the reach of the Suspension
Clause are suggested by the factors the Court relied upon
in Eisentrager. In addition to the practical concerns dis
cussed above, the Eisentrager Court found relevant that
each petitioner:
“(a) is an enemy alien; (b) has never been or resided in
the United States; (c) was captured outside of our ter
ritory and there held in military custody as a prisoner
of war; (d) was tried and convicted by a Military
Commission sitting outside the United States; (e) for
offenses against laws of war committed outside the
United States; (f) and is at all times imprisoned out
side the United States.” 339 U. S., at 777.
Based on this language from Eisentrager, and the reason
ing in our other extraterritoriality opinions, we conclude
that at least three factors are relevant in determining the
reach of the Suspension Clause: (1) the citizenship and
status of the detainee and the adequacy of the process
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Opinion of the Court
through which that status determination was made; (2)
the nature of the sites where apprehension and then
detention took place; and (3) the practical obstacles inher
ent in resolving the prisoner’s entitlement to the writ.
Applying this framework, we note at the onset that the
status of these detainees is a matter of dispute. The peti
tioners, like those in Eisentrager, are not American citi
zens. But the petitioners in Eisentrager did not contest, it
seems, the Court’s assertion that they were “enemy
alien[s].” Ibid. In the instant cases, by contrast, the
detainees deny they are enemy combatants. They have
been afforded some process in CSRT proceedings to de
termine their status; but, unlike in Eisentrager, supra, at
766, there has been no trial by military commission for
violations of the laws of war. The difference is not trivial.
The records from the Eisentrager trials suggest that, well
before the petitioners brought their case to this Court,
there had been a rigorous adversarial process to test the
legality of their detention. The Eisentrager petitioners
were charged by a bill of particulars that made detailed
factual allegations against them. See 14 United Nations
War Crimes Commission, Law Reports of Trials of War
Criminals 8–10 (1949) (reprint 1997). To rebut the accu
sations, they were entitled to representation by counsel,
allowed to introduce evidence on their own behalf, and
permitted to cross-examine the prosecution’s witnesses.
See Memorandum by Command of Lt. Gen. Wedemeyer,
Jan. 21, 1946 (establishing “Regulations Governing the
Trial of War Criminals” in the China Theater), in Tr. of
Record in Johnson v. Eisentrager, O. T. 1949, No. 306, pp.
34–40.
In comparison the procedural protections afforded to the
detainees in the CSRT hearings are far more limited, and,
we conclude, fall well short of the procedures and adver
sarial mechanisms that would eliminate the need for
habeas corpus review. Although the detainee is assigned a
38 BOUMEDIENE v. BUSH
Opinion of the Court
“Personal Representative” to assist him during CSRT
proceedings, the Secretary of the Navy’s memorandum
makes clear that person is not the detainee’s lawyer or
even his “advocate.” See App. to Pet. for Cert. in No. 06–
1196, at 155, 172. The Government’s evidence is accorded
a presumption of validity. Id., at 159. The detainee is
allowed to present “reasonably available” evidence, id., at
155, but his ability to rebut the Government’s evidence
against him is limited by the circumstances of his con
finement and his lack of counsel at this stage. And al
though the detainee can seek review of his status deter
mination in the Court of Appeals, that review process
cannot cure all defects in the earlier proceedings. See Part
V, infra.
As to the second factor relevant to this analysis, the
detainees here are similarly situated to the Eisentrager
petitioners in that the sites of their apprehension and
detention are technically outside the sovereign territory of
the United States. As noted earlier, this is a factor that
weighs against finding they have rights under the Sus
pension Clause. But there are critical differences between
Landsberg Prison, circa 1950, and the United States Na
val Station at Guantanamo Bay in 2008. Unlike its pre
sent control over the naval station, the United States’
control over the prison in Germany was neither absolute
nor indefinite. Like all parts of occupied Germany, the
prison was under the jurisdiction of the combined Allied
Forces. See Declaration Regarding the Defeat of Germany
and the Assumption of Supreme Authority with Respect to
Germany, June 5, 1945, U. S.-U. S. S. R.-U. K.-Fr., 60
Stat. 1649, T. I. A. S. No. 1520. The United States was
therefore answerable to its Allies for all activities occur
ring there. Cf. Hirota v. MacArthur, 338 U. S. 197, 198
(1948) (per curiam) (military tribunal set up by Gen.
Douglas MacArthur, acting as “the agent of the Allied
Powers,” was not a “tribunal of the United States”). The
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Opinion of the Court
Allies had not planned a long-term occupation of Ger
many, nor did they intend to displace all German institu
tions even during the period of occupation. See Agree
ments Respecting Basic Principles for Merger of the Three
Western German Zones of Occupation, and Other Matters,
Apr. 8, 1949, U. S.-U. K.-Fr., Art. 1, 63 Stat. 2819,
T. I. A. S. No. 2066 (establishing a governing framework
“[d]uring the period in which it is necessary that the occu
pation continue” and expressing the desire “that the Ger
man people shall enjoy self-government to the maximum
possible degree consistent with such occupation”). The
Court’s holding in Eisentrager was thus consistent with
the Insular Cases, where it had held there was no need to
extend full constitutional protections to territories the
United States did not intend to govern indefinitely. Guan
tanamo Bay, on the other hand, is no transient possession.
In every practical sense Guantanamo is not abroad; it is
within the constant jurisdiction of the United States. See
Rasul, 542 U. S., at 480; id., at 487 (KENNEDY, J., concur
ring in judgment).
As to the third factor, we recognize, as the Court did in
Eisentrager, that there are costs to holding the Suspension
Clause applicable in a case of military detention abroad.
Habeas corpus proceedings may require expenditure of
funds by the Government and may divert the attention of
military personnel from other pressing tasks. While we
are sensitive to these concerns, we do not find them dispo
sitive. Compliance with any judicial process requires
some incremental expenditure of resources. Yet civilian
courts and the Armed Forces have functioned along side
each other at various points in our history. See, e.g.,
Duncan v. Kahanamoku, 327 U. S. 304 (1946); Ex parte
Milligan, 4 Wall. 2 (1866). The Government presents no
credible arguments that the military mission at Guan
tanamo would be compromised if habeas corpus courts had
jurisdiction to hear the detainees’ claims. And in light of
40 BOUMEDIENE v. BUSH
Opinion of the Court
the plenary control the United States asserts over the
base, none are apparent to us.
The situation in Eisentrager was far different, given the
historical context and nature of the military’s mission in
post-War Germany. When hostilities in the European
Theater came to an end, the United States became respon
sible for an occupation zone encompassing over 57,000
square miles with a population of 18 million. See Letter
from President Truman to Secretary of State Byrnes,
(Nov. 28, 1945), in 8 Documents on American Foreign
Relations 257 (R. Dennett & R. Turner eds. 1948); Pollock,
A Territorial Pattern for the Military Occupation of Ger
many, 38 Am. Pol. Sci. Rev. 970, 975 (1944). In addition to
supervising massive reconstruction and aid efforts the
American forces stationed in Germany faced potential
security threats from a defeated enemy. In retrospect the
post-War occupation may seem uneventful. But at the
time Eisentrager was decided, the Court was right to be
concerned about judicial interference with the military’s
efforts to contain “enemy elements, guerrilla fighters, and
‘were-wolves.’” 339 U. S., at 784.
Similar threats are not apparent here; nor does the
Government argue that they are. The United States
Naval Station at Guantanamo Bay consists of 45 square
miles of land and water. The base has been used, at vari
ous points, to house migrants and refugees temporarily.
At present, however, other than the detainees themselves,
the only long-term residents are American military per
sonnel, their families, and a small number of workers. See
History of Guantanamo Bay online at https://www.cnic.
navy.mil/Guantanamo/AboutGTMO/gtmohistorygeneral/
gtmohistgeneral. The detainees have been deemed ene
mies of the United States. At present, dangerous as they
may be if released, they are contained in a secure prison
facility located on an isolated and heavily fortified military
base.
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There is no indication, furthermore, that adjudicating a
habeas corpus petition would cause friction with the host
government. No Cuban court has jurisdiction over Ameri
can military personnel at Guantanamo or the enemy
combatants detained there. While obligated to abide by
the terms of the lease, the United States is, for all practi
cal purposes, answerable to no other sovereign for its acts
on the base. Were that not the case, or if the detention
facility were located in an active theater of war, argu
ments that issuing the writ would be “impracticable or
anomalous” would have more weight. See Reid, 354 U. S.,
at 74 (Harlan, J., concurring in result). Under the facts
presented here, however, there are few practical barriers
to the running of the writ. To the extent barriers arise,
habeas corpus procedures likely can be modified to ad
dress them. See Part VI–B, infra.
It is true that before today the Court has never held
that noncitizens detained by our Government in territory
over which another country maintains de jure sovereignty
have any rights under our Constitution. But the cases
before us lack any precise historical parallel. They involve
individuals detained by executive order for the duration of
a conflict that, if measured from September 11, 2001, to
the present, is already among the longest wars in Ameri
can history. See Oxford Companion to American Military
History 849 (1999). The detainees, moreover, are held in a
territory that, while technically not part of the United
States, is under the complete and total control of our
Government. Under these circumstances the lack of a
precedent on point is no barrier to our holding.
We hold that Art. I, §9, cl. 2, of the Constitution has full
effect at Guantanamo Bay. If the privilege of habeas
corpus is to be denied to the detainees now before us,
Congress must act in accordance with the requirements of
the Suspension Clause. Cf. Hamdi, 542 U. S., at 564
(SCALIA, J., dissenting) (“[I]ndefinite imprisonment on
42 BOUMEDIENE v. BUSH
Opinion of the Court
reasonable suspicion is not an available option of treat
ment for those accused of aiding the enemy, absent a
suspension of the writ”). This Court may not impose a de
facto suspension by abstaining from these controversies.
See Hamdan, 548 U. S., at 585, n. 16 (“[A]bstention is not
appropriate in cases . . . in which the legal challenge
‘turn[s] on the status of the persons as to whom the mili
tary asserted its power’” (quoting Schlesinger v. Council-
man, 420 U. S. 738, 759 (1975))). The MCA does not
purport to be a formal suspension of the writ; and the
Government, in its submissions to us, has not argued that
it is. Petitioners, therefore, are entitled to the privilege of
habeas corpus to challenge the legality of their detention.
V
In light of this holding the question becomes whether
the statute stripping jurisdiction to issue the writ avoids
the Suspension Clause mandate because Congress has
provided adequate substitute procedures for habeas cor
pus. The Government submits there has been compliance
with the Suspension Clause because the DTA review
process in the Court of Appeals, see DTA §1005(e), pro
vides an adequate substitute. Congress has granted that
court jurisdiction to consider
“(i) whether the status determination of the [CSRT]
. . . was consistent with the standards and procedures
specified by the Secretary of Defense . . . and (ii) to the
extent the Constitution and laws of the United States
are applicable, whether the use of such standards and
procedures to make the determination is consistent
with the Constitution and laws of the United States.”
§1005(e)(2)(C), 119 Stat. 2742.
The Court of Appeals, having decided that the writ does
not run to the detainees in any event, found it unneces
sary to consider whether an adequate substitute has been
43 Cite as: 553 U. S. ____ (2008)
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provided. In the ordinary course we would remand to the
Court of Appeals to consider this question in the first
instance. See Youakim v. Miller, 425 U. S. 231, 234 (1976)
(per curiam). It is well settled, however, that the Court’s
practice of declining to address issues left unresolved in
earlier proceedings is not an inflexible rule. Ibid. Depar
ture from the rule is appropriate in “exceptional” circum
stances. See Cooper Industries, Inc. v. Aviall Services,
Inc., 543 U. S. 157, 169 (2004); Duignan v. United States,
274 U. S. 195, 200 (1927).
The gravity of the separation-of-powers issues raised by
these cases and the fact that these detainees have been
denied meaningful access to a judicial forum for a period of
years render these cases exceptional. The parties before
us have addressed the adequacy issue. While we would
have found it informative to consider the reasoning of the
Court of Appeals on this point, we must weigh that
against the harms petitioners may endure from additional
delay. And, given there are few precedents addressing
what features an adequate substitute for habeas corpus
must contain, in all likelihood a remand simply would
delay ultimate resolution of the issue by this Court.
We do have the benefit of the Court of Appeals’ con
struction of key provisions of the DTA. When we granted
certiorari in these cases, we noted “it would be of material
assistance to consult any decision” in the parallel DTA
review proceedings pending in the Court of Appeals, spe
cifically any rulings in the matter of Bismullah v. Gates.
551 U. S. ___ (2007). Although the Court of Appeals has
yet to complete a DTA review proceeding, the three-judge
panel in Bismullah has issued an interim order giving
guidance as to what evidence can be made part of the
record on review and what access the detainees can have
to counsel and to classified information. See 501 F. 3d 178
(CADC) (Bismullah I), reh’g denied, 503 F. 3d 137 (CADC
2007) (Bismullah II). In that matter the full court denied
44 BOUMEDIENE v. BUSH
Opinion of the Court
the Government’s motion for rehearing en banc, see Bis-
mullah v. Gates, 514 F. 3d 1291 (CADC 2008) (Bismullah
III). The order denying rehearing was accompanied by
five separate statements from members of the court, which
offer differing views as to scope of the judicial review
Congress intended these detainees to have. Ibid.
Under the circumstances we believe the costs of further
delay substantially outweigh any benefits of remanding to
the Court of Appeals to consider the issue it did not ad
dress in these cases.
A
Our case law does not contain extensive discussion of
standards defining suspension of the writ or of circum
stances under which suspension has occurred. This sim
ply confirms the care Congress has taken throughout our
Nation’s history to preserve the writ and its function.
Indeed, most of the major legislative enactments pertain
ing to habeas corpus have acted not to contract the writ’s
protection but to expand it or to hasten resolution of pris
oners’ claims. See, e.g., Habeas Corpus Act of 1867, ch. 28,
§1, 14 Stat. 385 (current version codified at 28 U. S. C.
§2241 (2000 ed. and Supp. V) (extending the federal writ
to state prisoners)); Cf. Harris v. Nelson, 394 U. S. 286,
299–300 (1969) (interpreting the All Writs Act, 28 U. S. C.
§1651, to allow discovery in habeas corpus proceedings);
Peyton v. Rowe, 391 U. S. 54, 64–65 (1968) (interpreting
the then-existing version of §2241 to allow petitioner to
proceed with his habeas corpus action, even though he had
not yet begun to serve his sentence).
There are exceptions, of course. Title I of the Antiterror
ism and Effective Death Penalty Act of 1996 (AEDPA),
§106, 110 Stat. 1220, contains certain gatekeeping provi
sions that restrict a prisoner’s ability to bring new and
repetitive claims in “second or successive” habeas corpus
actions. We upheld these provisions against a Suspension
45 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
Clause challenge in Felker v. Turpin, 518 U. S. 651, 662–
664 (1996). The provisions at issue in Felker, however, did
not constitute a substantial departure from common-law
habeas procedures. The provisions, for the most part,
codified the longstanding abuse-of-the-writ doctrine. Id.,
at 664; see also McCleskey v. Zant, 499 U. S. 467, 489
(1991). AEDPA applies, moreover, to federal, postconvic
tion review after criminal proceedings in state court have
taken place. As of this point, cases discussing the imple
mentation of that statute give little helpful instruction
(save perhaps by contrast) for the instant cases, where no
trial has been held.
The two leading cases addressing habeas substitutes,
Swain v. Pressley, 430 U. S. 372 (1977), and United States
v. Hayman, 342 U. S. 205 (1952), likewise provide little
guidance here. The statutes at issue were attempts to
streamline habeas corpus relief, not to cut it back.
The statute discussed in Hayman was 28 U. S. C. §2255.
It replaced traditional habeas corpus for federal prisoners
(at least in the first instance) with a process that allowed
the prisoner to file a motion with the sentencing court on
the ground that his sentence was, inter alia, “‘imposed in
violation of the Constitution or laws of the United States.’”
342 U. S., at 207, n. 1. The purpose and effect of the stat
ute was not to restrict access to the writ but to make
postconviction proceedings more efficient. It directed
claims not to the court that had territorial jurisdiction
over the place of the petitioner’s confinement but to the
sentencing court, a court already familiar with the facts of
the case. As the Hayman Court explained
“Section 2255 . . . was passed at the instance of the
Judicial Conference to meet practical difficulties that
had arisen in administering the habeas corpus juris
diction of the federal courts. Nowhere in the history
of Section 2255 do we find any purpose to impinge
46 BOUMEDIENE v. BUSH
Opinion of the Court
upon prisoners’ rights of collateral attack upon their
convictions. On the contrary, the sole purpose was to
minimize the difficulties encountered in habeas cor
pus hearings by affording the same rights in another
and more convenient forum.” Id., at 219.
See also Hill v. United States, 368 U. S. 424, 427, 428, and
n. 5 (1962) (noting that §2255 provides a remedy in the
sentencing court that is “exactly commensurate” with the
pre-existing federal habeas corpus remedy).
The statute in Swain, D. C. Code Ann. §23–110(g)
(1973), applied to prisoners in custody under sentence of
the Superior Court of the District of Columbia. Before
enactment of the District of Columbia Court Reform and
Criminal Procedure Act of 1970 (D. C. Court Reform Act),
84 Stat. 473, those prisoners could file habeas petitions in
the United States District Court for the District of Colum
bia. The Act, which was patterned on §2255, substituted a
new collateral process in the Superior Court for the pre
existing habeas corpus procedure in the District Court.
See Swain, 430 U. S., at 374–378. But, again, the purpose
and effect of the statute was to expedite consideration of
the prisoner’s claims, not to delay or frustrate it. See id.,
at 375, n. 4 (noting that the purpose of the D. C. Court
Reform Act was to “alleviate” administrative burdens on
the District Court).
That the statutes in Hayman and Swain were designed
to strengthen, rather than dilute, the writ’s protections
was evident, furthermore, from this significant fact: Nei
ther statute eliminated traditional habeas corpus relief.
In both cases the statute at issue had a saving clause,
providing that a writ of habeas corpus would be available
if the alternative process proved inadequate or ineffective.
Swain, supra, at 381; Hayman, supra, at 223. The Court
placed explicit reliance upon these provisions in upholding
the statutes against constitutional challenges. See Swain,
47 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
supra, at 381 (noting that the provision “avoid[ed] any
serious question about the constitutionality of the stat
ute”); Hayman, supra, at 223 (noting that, because habeas
remained available as a last resort, it was unnecessary to
“reach constitutional questions”).
Unlike in Hayman and Swain, here we confront stat
utes, the DTA and the MCA, that were intended to cir
cumscribe habeas review. Congress’ purpose is evident
not only from the unequivocal nature of MCA §7’s jurisdic
tion-stripping language, 28 U. S. C. A. §2241(e)(1) (Supp.
2007) (“No court, justice, or judge shall have jurisdiction to
hear or consider an application for a writ of habeas corpus
. . .”), but also from a comparison of the DTA to the stat
utes at issue in Hayman and Swain. When interpreting a
statute, we examine related provisions in other parts of
the U. S. Code. See, e.g., West Virginia Univ. Hospitals,
Inc. v. Casey, 499 U. S. 83, 88–97 (1991); Babbitt v. Sweet
Home Chapter, Communities for Great Ore., 515 U. S. 687,
717–718 (1995) (SCALIA, J., dissenting); see generally W.
Eskridge, P. Frickey, & E. Garrett, Cases and Materials
on Legislation: Statutes and the Creation of Public Policy
1039 (3d ed. 2001). When Congress has intended to re
place traditional habeas corpus with habeas-like substi
tutes, as was the case in Hayman and Swain, it has
granted to the courts broad remedial powers to secure the
historic office of the writ. In the §2255 context, for exam
ple, Congress has granted to the reviewing court power to
“determine the issues and make findings of fact and con
clusions of law” with respect to whether “the judgment [of
conviction] was rendered without jurisdiction, or . . . the
sentence imposed was not authorized by law or otherwise
open to collateral attack.” 28 U. S. C. A. §2255(b) (Supp.
2008). The D. C. Court Reform Act, the statute upheld in
Swain, contained a similar provision. §23–110(g), 84 Stat.
609.
In contrast the DTA’s jurisdictional grant is quite lim
48 BOUMEDIENE v. BUSH
Opinion of the Court
ited. The Court of Appeals has jurisdiction not to inquire
into the legality of the detention generally but only to
assess whether the CSRT complied with the “standards
and procedures specified by the Secretary of Defense” and
whether those standards and procedures are lawful. DTA
§1005(e)(2)(C), 119 Stat. 2742. If Congress had envisioned
DTA review as coextensive with traditional habeas corpus,
it would not have drafted the statute in this manner.
Instead, it would have used language similar to what it
used in the statutes at issue in Hayman and Swain. Cf.
Russello v. United States, 464 U. S. 16, 23 (1983)
(“‘[W]here Congress includes particular language in one
section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion’” (quoting United States v. Wong Kim Bo, 472
F. 2d 720, 722 (CA5 1972))). Unlike in Hayman and
Swain, moreover, there has been no effort to preserve
habeas corpus review as an avenue of last resort. No
saving clause exists in either the MCA or the DTA. And
MCA §7 eliminates habeas review for these petitioners.
The differences between the DTA and the habeas stat
ute that would govern in MCA §7’s absence, 28 U. S. C.
§2241 (2000 ed. and Supp. V), are likewise telling. In
§2241 (2000 ed.) Congress confirmed the authority of “any
justice” or “circuit judge” to issue the writ. Cf. Felker, 518
U. S., at 660–661 (interpreting Title I of AEDPA to not
strip from this Court the power to entertain original ha
beas corpus petitions). That statute accommodates the
necessity for factfinding that will arise in some cases by
allowing the appellate judge or Justice to transfer the case
to a district court of competent jurisdiction, whose institu
tional capacity for factfinding is superior to his or her own.
See 28 U. S. C. §2241(b). By granting the Court of Ap
peals “exclusive” jurisdiction over petitioners’ cases, see
DTA §1005(e)(2)(A), 119 Stat. 2742, Congress has fore
49 Cite as: 553 U. S. ____ (2008)
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closed that option. This choice indicates Congress in
tended the Court of Appeals to have a more limited role in
enemy combatant status determinations than a district
court has in habeas corpus proceedings. The DTA should
be interpreted to accord some latitude to the Court of
Appeals to fashion procedures necessary to make its re
view function a meaningful one, but, if congressional
intent is to be respected, the procedures adopted cannot be
as extensive or as protective of the rights of the detainees
as they would be in a §2241 proceeding. Otherwise there
would have been no, or very little, purpose for enacting the
DTA.
To the extent any doubt remains about Congress’ intent,
the legislative history confirms what the plain text
strongly suggests: In passing the DTA Congress did not
intend to create a process that differs from traditional
habeas corpus process in name only. It intended to create
a more limited procedure. See, e.g., 151 Cong. Rec. S14263
(Dec. 21, 2005) (statement of Sen. Graham) (noting that
the DTA “extinguish[es] these habeas and other actions in
order to effect a transfer of jurisdiction over these cases to
the DC Circuit Court” and agreeing that the bill “create[s]
in their place a very limited judicial review of certain
military administrative decisions”); id., at S14268 (state
ment of Sen. Kyl) (“It is important to note that the limited
judicial review authorized by paragraphs 2 and 3 of sub
section (e) [of DTA §1005] are not habeas-corpus review.
It is a limited judicial review of its own nature”).
It is against this background that we must interpret the
DTA and assess its adequacy as a substitute for habeas
corpus. The present cases thus test the limits of the Sus
pension Clause in ways that Hayman and Swain did not.
B
We do not endeavor to offer a comprehensive summary
of the requisites for an adequate substitute for habeas
50 BOUMEDIENE v. BUSH
Opinion of the Court
corpus. We do consider it uncontroversial, however, that
the privilege of habeas corpus entitles the prisoner to a
meaningful opportunity to demonstrate that he is being
held pursuant to “the erroneous application or interpreta
tion” of relevant law. St. Cyr, 533 U. S., at 302. And the
habeas court must have the power to order the conditional
release of an individual unlawfully detained—though
release need not be the exclusive remedy and is not the
appropriate one in every case in which the writ is granted.
See Ex parte Bollman, 4 Cranch 75, 136 (1807) (where
imprisonment is unlawful, the court “can only direct [the
prisoner] to be discharged”); R. Hurd, Treatise on the
Right of Personal Liberty, and On the Writ of Habeas
Corpus and the Practice Connected with It: With a View of
the Law of Extradition of Fugitives 222 (2d ed. 1876) (“It
cannot be denied where ‘a probable ground is shown that
the party is imprisoned without just cause, and therefore,
hath a right to be delivered,’ for the writ then becomes a
‘writ of right, which may not be denied but ought to be
granted to every man that is committed or detained in
prison or otherwise restrained of his liberty’”). But see
Chessman v. Teets, 354 U. S. 156, 165–166 (1957) (re
manding in a habeas case for retrial within a “reasonable
time”). These are the easily identified attributes of any
constitutionally adequate habeas corpus proceeding.
But, depending on the circumstances, more may be
required.
Indeed, common-law habeas corpus was, above all, an
adaptable remedy. Its precise application and scope
changed depending upon the circumstances. See 3 Black-
stone *131 (describing habeas as “the great and efficacious
writ, in all manner of illegal confinement”); see also
Schlup v. Delo, 513 U. S. 298, 319 (1995) (Habeas “is, at
its core, an equitable remedy”); Jones v. Cunningham, 371
U. S. 236, 243 (1963) (Habeas is not “a static, narrow,
formalistic remedy; its scope has grown to achieve its
51 Cite as: 553 U. S. ____ (2008)
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grand purpose”). It appears the common-law habeas
court’s role was most extensive in cases of pretrial and
noncriminal detention, where there had been little or no
previous judicial review of the cause for detention. Nota
bly, the black-letter rule that prisoners could not contro
vert facts in the jailer’s return was not followed (or at least
not with consistency) in such cases. Hurd, supra, at 271
(noting that the general rule was “subject to exceptions”
including cases of bail and impressment); Oakes, Legal
History in the High Court—Habeas Corpus, 64 Mich. L.
Rev. 451, 457 (1966) (“[W]hen a prisoner applied for ha
beas corpus before indictment or trial, some courts exam
ined the written depositions on which he had been ar
rested or committed, and others even heard oral testimony
to determine whether the evidence was sufficient to justi
fying holding him for trial” (footnotes omitted)); Fallon &
Meltzer, Habeas Corpus Jurisdiction, Substantive Rights,
and the War on Terror, 120 Harv. L. Rev. 2029, 2102
(2007) (“[T]he early practice was not consistent: courts
occasionally permitted factual inquiries when no other
opportunity for judicial review existed”).
There is evidence from 19th-century American sources
indicating that, even in States that accorded strong res
judicata effect to prior adjudications, habeas courts in this
country routinely allowed prisoners to introduce exculpa
tory evidence that was either unknown or previously
unavailable to the prisoner. See, e.g., Ex parte Pattison,
56 Miss. 161, 164 (1878) (noting that “[w]hile the former
adjudication must be considered as conclusive on the
testimony then adduced” “newly developed exculpatory
evidence . . . may authorize the admission to bail”); Ex
parte Foster, 5 Tex. Ct. App. 625, 644 (1879) (construing
the State’s habeas statute to allow for the introduction of
new evidence “where important testimony has been ob
tained, which, though not newly discovered, or which,
though known to [the petitioner], it was not in his power
52 BOUMEDIENE v. BUSH
Opinion of the Court
to produce at the former hearing; [and] where the evidence
was newly discovered”); People v. Martin, 7 N. Y. Leg. Obs.
49, 56 (1848) (“If in custody on criminal process before
indictment, the prisoner has an absolute right to demand
that the original depositions be looked into to see whether
any crime is in fact imputed to him, and the inquiry will
by no means be confined to the return. Facts out of the
return may be gone into to ascertain whether the commit
ting magistrate may not have arrived at an illogical con
clusion upon the evidence given before him . . .”); see
generally W. Church, Treatise on the Writ of Habeas
Corpus §182, p. 235 1886) (hereinafter Church) (noting
that habeas courts would “hear evidence anew if justice
require it”). Justice McLean, on Circuit in 1855, expressed
his view that a habeas court should consider a prior judg
ment conclusive “where there was clearly jurisdiction and
a full and fair hearing; but that it might not be so consid
ered when any of these requisites were wanting.” Ex parte
Robinson, 20 F. Cas. 969, 971, (No. 11,935) (CC Ohio
1855). To illustrate the circumstances in which the prior
adjudication did not bind the habeas court, he gave the
example of a case in which “[s]everal unimpeached wit
nesses” provided new evidence to exculpate the prisoner.
Ibid.
The idea that the necessary scope of habeas review in
part depends upon the rigor of any earlier proceedings
accords with our test for procedural adequacy in the due
process context. See Mathews v. Eldridge, 424 U. S. 319,
335 (1976) (noting that the Due Process Clause requires
an assessment of, inter alia, “the risk of an erroneous
deprivation of [a liberty interest;] and the probable value,
if any, of additional or substitute procedural safeguards”).
This principle has an established foundation in habeas
corpus jurisprudence as well, as Chief Justice Marshall’s
opinion in Ex parte Watkins, 3 Pet. 193 (1830), demon
strates. Like the petitioner in Swain, Watkins sought a
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writ of habeas corpus after being imprisoned pursuant to a
judgment of a District of Columbia court. In holding that
the judgment stood on “high ground,” 3 Pet., at 209, the
Chief Justice emphasized the character of the court that
rendered the original judgment, noting it was a “court of
record, having general jurisdiction over criminal cases.”
Id., at 203. In contrast to “inferior” tribunals of limited
jurisdiction, ibid., courts of record had broad remedial
powers, which gave the habeas court greater confidence in
the judgment’s validity. See generally Neuman, Habeas
Corpus, Executive Detention, and the Removal of Aliens,
98 Colum. L. Rev. 961, 982–983 (1998).
Accordingly, where relief is sought from a sentence that
resulted from the judgment of a court of record, as was the
case in Watkins and indeed in most federal habeas cases,
considerable deference is owed to the court that ordered
confinement. See Brown v. Allen, 344 U. S. 443, 506
(1953) (opinion of Frankfurter, J.) (noting that a federal
habeas court should accept a state court’s factual findings
unless “a vital flaw be found in the process of ascertaining
such facts in the State court”). Likewise in those cases the
prisoner should exhaust adequate alternative remedies
before filing for the writ in federal court. See Ex parte
Royall, 117 U. S. 241, 251–252 (1886) (requiring exhaus
tion of state collateral processes). Both aspects of federal
habeas corpus review are justified because it can be as
sumed that, in the usual course, a court of record provides
defendants with a fair, adversary proceeding. In cases
involving state convictions this framework also respects
federalism; and in federal cases it has added justification
because the prisoner already has had a chance to seek
review of his conviction in a federal forum through a direct
appeal. The present cases fall outside these categories,
however; for here the detention is by executive order.
Where a person is detained by executive order, rather
than, say, after being tried and convicted in a court, the
54 BOUMEDIENE v. BUSH
Opinion of the Court
need for collateral review is most pressing. A criminal
conviction in the usual course occurs after a judicial hear
ing before a tribunal disinterested in the outcome and
committed to procedures designed to ensure its own inde
pendence. These dynamics are not inherent in executive
detention orders or executive review procedures. In this
context the need for habeas corpus is more urgent. The
intended duration of the detention and the reasons for it
bear upon the precise scope of the inquiry. Habeas corpus
proceedings need not resemble a criminal trial, even when
the detention is by executive order. But the writ must be
effective. The habeas court must have sufficient authority
to conduct a meaningful review of both the cause for de
tention and the Executive’s power to detain.
To determine the necessary scope of habeas corpus
review, therefore, we must assess the CSRT process, the
mechanism through which petitioners’ designation as
enemy combatants became final. Whether one character
izes the CSRT process as direct review of the Executive’s
battlefield determination that the detainee is an enemy
combatant—as the parties have and as we do—or as the
first step in the collateral review of a battlefield determi
nation makes no difference in a proper analysis of whether
the procedures Congress put in place are an adequate
substitute for habeas corpus. What matters is the sum
total of procedural protections afforded to the detainee at
all stages, direct and collateral.
Petitioners identify what they see as myriad deficiencies
in the CSRTs. The most relevant for our purposes are the
constraints upon the detainee’s ability to rebut the factual
basis for the Government’s assertion that he is an enemy
combatant. As already noted, see Part IV–C, supra, at the
CSRT stage the detainee has limited means to find or
present evidence to challenge the Government’s case
against him. He does not have the assistance of counsel
and may not be aware of the most critical allegations that
55 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
the Government relied upon to order his detention. See
App. to Pet. for Cert. in No. 06–1196, at 156, ¶F(8) (noting
that the detainee can access only the “unclassified portion
of the Government Information”). The detainee can con
front witnesses that testify during the CSRT proceedings.
Id., at 144, ¶g(8). But given that there are in effect no
limits on the admission of hearsay evidence—the only
requirement is that the tribunal deem the evidence “rele
vant and helpful,” ibid., ¶g(9)—the detainee’s opportunity
to question witnesses is likely to be more theoretical than
real.
The Government defends the CSRT process, arguing
that it was designed to conform to the procedures sug
gested by the plurality in Hamdi. See 542 U. S., at 538.
Setting aside the fact that the relevant language in Hamdi
did not garner a majority of the Court, it does not control
the matter at hand. None of the parties in Hamdi argued
there had been a suspension of the writ. Nor could they.
The §2241 habeas corpus process remained in place, id., at
525. Accordingly, the plurality concentrated on whether
the Executive had the authority to detain and, if so, what
rights the detainee had under the Due Process Clause.
True, there are places in the Hamdi plurality opinion
where it is difficult to tell where its extrapolation of §2241
ends and its analysis of the petitioner’s Due Process rights
begins. But the Court had no occasion to define the neces
sary scope of habeas review, for Suspension Clause pur
poses, in the context of enemy combatant detentions. The
closest the plurality came to doing so was in discussing
whether, in light of separation-of-powers concerns, §2241
should be construed to forbid the District Court from
inquiring beyond the affidavit Hamdi’s custodian provided
in answer to the detainee’s habeas petition. The plurality
answered this question with an emphatic “no.” Id., at 527
(labeling this argument as “extreme”); id., at 535–536.
Even if we were to assume that the CSRTs satisfy due
56 BOUMEDIENE v. BUSH
Opinion of the Court
process standards, it would not end our inquiry. Habeas
corpus is a collateral process that exists, in Justice
Holmes’ words, to “cu[t] through all forms and g[o] to the
very tissue of the structure. It comes in from the outside,
not in subordination to the proceedings, and although
every form may have been preserved opens the inquiry
whether they have been more than an empty shell.”
Frank v. Mangum, 237 U. S. 309, 346 (1915) (dissenting
opinion). Even when the procedures authorizing detention
are structurally sound, the Suspension Clause remains
applicable and the writ relevant. See 2 Chambers, Course
of Lectures on English Law 1767–1773, at 6 (“Liberty may
be violated either by arbitrary imprisonment without law
or the appearance of law, or by a lawful magistrate for an
unlawful reason”). This is so, as Hayman and Swain
make clear, even where the prisoner is detained after a
criminal trial conducted in full accordance with the protec
tions of the Bill of Rights. Were this not the case, there
would have been no reason for the Court to inquire into
the adequacy of substitute habeas procedures in Hayman
and Swain. That the prisoners were detained pursuant to
the most rigorous proceedings imaginable, a full criminal
trial, would have been enough to render any habeas sub
stitute acceptable per se.
Although we make no judgment as to whether the
CSRTs, as currently constituted, satisfy due process stan
dards, we agree with petitioners that, even when all the
parties involved in this process act with diligence and in
good faith, there is considerable risk of error in the tribu
nal’s findings of fact. This is a risk inherent in any proc
ess that, in the words of the former Chief Judge of the
Court of Appeals, is “closed and accusatorial.” See Bis-
mullah III, 514 F. 3d, at 1296 (Ginsburg, C. J., concurring
in denial of rehearing en banc). And given that the conse
quence of error may be detention of persons for the dura
tion of hostilities that may last a generation or more, this
57 Cite as: 553 U. S. ____ (2008)
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is a risk too significant to ignore.
For the writ of habeas corpus, or its substitute, to func
tion as an effective and proper remedy in this context, the
court that conducts the habeas proceeding must have the
means to correct errors that occurred during the CSRT
proceedings. This includes some authority to assess the
sufficiency of the Government’s evidence against the
detainee. It also must have the authority to admit and
consider relevant exculpatory evidence that was not intro
duced during the earlier proceeding. Federal habeas
petitioners long have had the means to supplement the
record on review, even in the postconviction habeas set
ting. See Townsend v. Sain, 372 U. S. 293, 313 (1963),
overruled in part by Keeney v. Tamayo-Reyes, 504 U. S. 1,
5 (1992). Here that opportunity is constitutionally
required.
Consistent with the historic function and province of the
writ, habeas corpus review may be more circumscribed if
the underlying detention proceedings are more thorough
than they were here. In two habeas cases involving enemy
aliens tried for war crimes, In re Yamashita, 327 U. S. 1
(1946), and Ex parte Quirin, 317 U. S. 1 (1942), for exam
ple, this Court limited its review to determining whether
the Executive had legal authority to try the petitioners by
military commission. See Yamashita, supra, at 8 (“[O]n
application for habeas corpus we are not concerned with
the guilt or innocence of the petitioners. We consider here
only the lawful power of the commission to try the peti
tioner for the offense charged”); Quirin, supra, at 25 (“We
are not here concerned with any question of the guilt or
innocence of petitioners”). Military courts are not courts of
record. See Watkins, 3 Pet., at 209; Church 513. And the
procedures used to try General Yamashita have been
sharply criticized by Members of this Court. See Hamdan,
548 U. S., at 617; Yamashita, supra, at 41–81 (Rutledge,
J., dissenting). We need not revisit these cases, however.
58 BOUMEDIENE v. BUSH
Opinion of the Court
For on their own terms, the proceedings in Yamashita and
Quirin, like those in Eisentrager, had an adversarial
structure that is lacking here. See Yamashita, supra, at 5
(noting that General Yamashita was represented by six
military lawyers and that “[t]hroughout the proceedings
. . . defense counsel . . . demonstrated their professional
skill and resourcefulness and their proper zeal for the
defense with which they were charged”); Quirin, supra, at
23–24; Exec. Order No. 9185, 7 Fed. Reg. 5103 (1942)
(appointing counsel to represent the German saboteurs).
The extent of the showing required of the Government
in these cases is a matter to be determined. We need not
explore it further at this stage. We do hold that when the
judicial power to issue habeas corpus properly is invoked
the judicial officer must have adequate authority to make
a determination in light of the relevant law and facts and
to formulate and issue appropriate orders for relief, in
cluding, if necessary, an order directing the prisoner’s
release.
C
We now consider whether the DTA allows the Court of
Appeals to conduct a proceeding meeting these standards.
“[W]e are obligated to construe the statute to avoid [con
stitutional] problems” if it is “‘fairly possible’” to do so. St.
Cyr, 533 U. S., at 299–300 (quoting Crowell v. Benson, 285
U. S. 22, 62 (1932)). There are limits to this principle,
however. The canon of constitutional avoidance does not
supplant traditional modes of statutory interpretation.
See Clark v. Martinez, 543 U. S. 371, 385 (2005) (“The
canon of constitutional avoidance comes into play only
when, after the application of ordinary textual analysis,
the statute is found to be susceptible of more than one
construction; and the canon functions as a means of choos-
ing between them”). We cannot ignore the text and pur
pose of a statute in order to save it.
59 Cite as: 553 U. S. ____ (2008)
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The DTA does not explicitly empower the Court of Ap
peals to order the applicant in a DTA review proceeding
released should the court find that the standards and
procedures used at his CSRT hearing were insufficient to
justify detention. This is troubling. Yet, for present pur
poses, we can assume congressional silence permits a
constitutionally required remedy. In that case it would be
possible to hold that a remedy of release is impliedly
provided for. The DTA might be read, furthermore, to
allow the petitioners to assert most, if not all, of the legal
claims they seek to advance, including their most basic
claim: that the President has no authority under the
AUMF to detain them indefinitely. (Whether the Presi
dent has such authority turns on whether the AUMF
authorizes—and the Constitution permits—the indefinite
detention of “enemy combatants” as the Department of
Defense defines that term. Thus a challenge to the Presi
dent’s authority to detain is, in essence, a challenge to the
Department’s definition of enemy combatant, a “standard”
used by the CSRTs in petitioners’ cases.) At oral argu
ment, the Solicitor General urged us to adopt both these
constructions, if doing so would allow MCA §7 to remain
intact. See Tr. of Oral Arg. 37, 53.
The absence of a release remedy and specific language
allowing AUMF challenges are not the only constitutional
infirmities from which the statute potentially suffers,
however. The more difficult question is whether the DTA
permits the Court of Appeals to make requisite findings of
fact. The DTA enables petitioners to request “review” of
their CSRT determination in the Court of Appeals, DTA
§1005(e)(2)(B)(i), 119 Stat. 2742; but the “Scope of Review”
provision confines the Court of Appeals’ role to reviewing
whether the CSRT followed the “standards and proce
dures” issued by the Department of Defense and assessing
whether those “standards and procedures” are lawful.
§1005(e)(C), ibid. Among these standards is “the require
60 BOUMEDIENE v. BUSH
Opinion of the Court
ment that the conclusion of the Tribunal be supported by a
preponderance of the evidence . . . allowing a rebuttable
presumption in favor of the Government’s evidence.”
§1005(e)(C)(i), ibid.
Assuming the DTA can be construed to allow the Court
of Appeals to review or correct the CSRT’s factual deter
minations, as opposed to merely certifying that the tribu
nal applied the correct standard of proof, we see no way to
construe the statute to allow what is also constitutionally
required in this context: an opportunity for the detainee to
present relevant exculpatory evidence that was not made
part of the record in the earlier proceedings.
On its face the statute allows the Court of Appeals to
consider no evidence outside the CSRT record. In the
parallel litigation, however, the Court of Appeals deter
mined that the DTA allows it to order the production of all
“‘reasonably available information in the possession of the
U. S. Government bearing on the issue of whether the
detainee meets the criteria to be designated as an enemy
combatant,’” regardless of whether this evidence was put
before the CSRT. See Bismullah I, 501 F. 3d, at 180. The
Government, see Pet. for Cert. pending in Gates v. Bismul-
lah, No. 07–1054 (hereinafter Bismullah Pet.), with sup
port from five members of the Court of Appeals, see Bis-
mullah III, 514 F. 3d, at 1299 (Henderson, J., dissenting
from denial of rehearing en banc); id., at 1302 (opinion of
Randolph, J.) (same); id., at 1306 (opinion of Brown, J.)
(same), disagrees with this interpretation. For present
purposes, however, we can assume that the Court of Ap
peals was correct that the DTA allows introduction and
consideration of relevant exculpatory evidence that was
“reasonably available” to the Government at the time of
the CSRT but not made part of the record. Even so, the
DTA review proceeding falls short of being a constitution
ally adequate substitute, for the detainee still would have
no opportunity to present evidence discovered after the
61 Cite as: 553 U. S. ____ (2008)
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CSRT proceedings concluded.
Under the DTA the Court of Appeals has the power to
review CSRT determinations by assessing the legality of
standards and procedures. This implies the power to
inquire into what happened at the CSRT hearing and,
perhaps, to remedy certain deficiencies in that proceeding.
But should the Court of Appeals determine that the CSRT
followed appropriate and lawful standards and proce
dures, it will have reached the limits of its jurisdiction.
There is no language in the DTA that can be construed to
allow the Court of Appeals to admit and consider newly
discovered evidence that could not have been made part of
the CSRT record because it was unavailable to either the
Government or the detainee when the CSRT made its
findings. This evidence, however, may be critical to the
detainee’s argument that he is not an enemy combatant
and there is no cause to detain him.
This is not a remote hypothetical. One of the petition
ers, Mohamed Nechla, requested at his CSRT hearing that
the Government contact his employer. The petitioner
claimed the employer would corroborate Nechla’s conten
tion he had no affiliation with al Qaeda. Although the
CSRT determined this testimony would be relevant, it also
found the witness was not reasonably available to testify
at the time of the hearing. Petitioner’s counsel, however,
now represents the witness is available to be heard. See
Brief for Boumediene Petitioners 5. If a detainee can
present reasonably available evidence demonstrating
there is no basis for his continued detention, he must have
the opportunity to present this evidence to a habeas cor
pus court. Even under the Court of Appeals’ generous
construction of the DTA, however, the evidence identified
by Nechla would be inadmissible in a DTA review proceed
ing. The role of an Article III court in the exercise of its
habeas corpus function cannot be circumscribed in this
manner.
62 BOUMEDIENE v. BUSH
Opinion of the Court
By foreclosing consideration of evidence not presented or
reasonably available to the detainee at the CSRT proceed
ings, the DTA disadvantages the detainee by limiting the
scope of collateral review to a record that may not be
accurate or complete. In other contexts, e.g., in post-trial
habeas cases where the prisoner already has had a full
and fair opportunity to develop the factual predicate of his
claims, similar limitations on the scope of habeas review
may be appropriate. See Williams v. Taylor, 529 U. S.
420, 436–437 (2000) (noting that §2254 “does not equate
prisoners who exercise diligence in pursuing their claims
with those who do not”). In this context, however, where
the underlying detention proceedings lack the necessary
adversarial character, the detainee cannot be held respon
sible for all deficiencies in the record.
The Government does not make the alternative argu
ment that the DTA allows for the introduction of previ
ously unavailable exculpatory evidence on appeal. It does
point out, however, that if a detainee obtains such evi
dence, he can request that the Deputy Secretary of De
fense convene a new CSRT. See Supp. Brief for Respon
dents 4. Whatever the merits of this procedure, it is an
insufficient replacement for the factual review these de
tainees are entitled to receive through habeas corpus. The
Deputy Secretary’s determination whether to initiate new
proceedings is wholly a discretionary one. See Dept. of
Defense, Office for the Administrative Review of the De
tention of Enemy Combatants, Instruction 5421.1, Proce
dure for Review of “New Evidence” Relating to Enemy
Combatant (EC) Status ¶5(d) (May 7, 2007) (Instruction
5421.1) (“The decision to convene a CSRT to reconsider the
basis of the detainee’s [enemy combatant] status in light of
‘new evidence’ is a matter vested in the unreviewable
discretion of the [Deputy Secretary of Defense]”). And we
see no way to construe the DTA to allow a detainee to
challenge the Deputy Secretary’s decision not to open a
63 Cite as: 553 U. S. ____ (2008)
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new CSRT pursuant to Instruction 5421.1. Congress
directed the Secretary of Defense to devise procedures for
considering new evidence, see DTA §1005(a)(3), but the
detainee has no mechanism for ensuring that those proce
dures are followed. DTA §1005(e)(2)(C), 119 Stat. 2742,
makes clear that the Court of Appeals’ jurisdiction is
“limited to consideration of . . . whether the status deter
mination of the Combatant Status Review Tribunal with
regard to such alien was consistent with the standards
and procedures specified by the Secretary of Defense . . .
and . . . whether the use of such standards and procedures
to make the determination is consistent with the Constitu
tion and laws of the United States.” DTA §1005(e)(2)(A),
ibid., further narrows the Court of Appeals’ jurisdiction to
reviewing “any final decision of a Combatant Status Re
view Tribunal that an alien is properly detained as an
enemy combatant.” The Deputy Secretary’s determination
whether to convene a new CSRT is not a “status determi
nation of the Combatant Status Review Tribunal,” much
less a “final decision” of that body.
We do not imply DTA review would be a constitutionally
sufficient replacement for habeas corpus but for these
limitations on the detainee’s ability to present exculpatory
evidence. For even if it were possible, as a textual matter,
to read into the statute each of the necessary procedures
we have identified, we could not overlook the cumulative
effect of our doing so. To hold that the detainees at Guan
tanamo may, under the DTA, challenge the President’s
legal authority to detain them, contest the CSRT’s find
ings of fact, supplement the record on review with excul
patory evidence, and request an order of release would
come close to reinstating the §2241 habeas corpus process
Congress sought to deny them. The language of the stat
ute, read in light of Congress’ reasons for enacting it,
cannot bear this interpretation. Petitioners have met
their burden of establishing that the DTA review process
64 BOUMEDIENE v. BUSH
Opinion of the Court
is, on its face, an inadequate substitute for habeas corpus.
Although we do not hold that an adequate substitute
must duplicate §2241 in all respects, it suffices that the
Government has not established that the detainees’ access
to the statutory review provisions at issue is an adequate
substitute for the writ of habeas corpus. MCA §7 thus
effects an unconstitutional suspension of the writ. In view
of our holding we need not discuss the reach of the writ
with respect to claims of unlawful conditions of treatment
or confinement.
VI
A
In light of our conclusion that there is no jurisdictional
bar to the District Court’s entertaining petitioners’ claims
the question remains whether there are prudential barri
ers to habeas corpus review under these circumstances.
The Government argues petitioners must seek review of
their CSRT determinations in the Court of Appeals before
they can proceed with their habeas corpus actions in the
District Court. As noted earlier, in other contexts and for
prudential reasons this Court has required exhaustion of
alternative remedies before a prisoner can seek federal
habeas relief. Most of these cases were brought by prison
ers in state custody, e.g., Ex parte Royall, 117 U. S. 241,
and thus involved federalism concerns that are not rele
vant here. But we have extended this rule to require
defendants in courts-martial to exhaust their military
appeals before proceeding with a federal habeas corpus
action. See Schlesinger, 420 U. S., at 758.
The real risks, the real threats, of terrorist attacks are
constant and not likely soon to abate. The ways to disrupt
our life and laws are so many and unforeseen that the
Court should not attempt even some general catalogue of
crises that might occur. Certain principles are apparent,
however. Practical considerations and exigent circum
65 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
stances inform the definition and reach of the law’s writs,
including habeas corpus. The cases and our tradition
reflect this precept.
In cases involving foreign citizens detained abroad by
the Executive, it likely would be both an impractical and
unprecedented extension of judicial power to assume that
habeas corpus would be available at the moment the
prisoner is taken into custody. If and when habeas corpus
jurisdiction applies, as it does in these cases, then proper
deference can be accorded to reasonable procedures for
screening and initial detention under lawful and proper
conditions of confinement and treatment for a reasonable
period of time. Domestic exigencies, furthermore, might
also impose such onerous burdens on the Government that
here, too, the Judicial Branch would be required to devise
sensible rules for staying habeas corpus proceedings until
the Government can comply with its requirements in a
responsible way. Cf. Ex parte Milligan, 4 Wall., at 127
(“If, in foreign invasion or civil war, the courts are actually
closed, and it is impossible to administer criminal justice
according to law, then, on the theatre of active military
operations, where war really prevails, there is a necessity
to furnish a substitute for the civil authority, thus over
thrown, to preserve the safety of the army and society; and
as no power is left but the military, it is allowed to govern
by martial rule until the laws can have their free course”).
Here, as is true with detainees apprehended abroad, a
relevant consideration in determining the courts’ role is
whether there are suitable alternative processes in place
to protect against the arbitrary exercise of governmental
power.
The cases before us, however, do not involve detainees
who have been held for a short period of time while await
ing their CSRT determinations. Were that the case, or
were it probable that the Court of Appeals could complete
a prompt review of their applications, the case for requir
66 BOUMEDIENE v. BUSH
Opinion of the Court
ing temporary abstention or exhaustion of alternative
remedies would be much stronger. These qualifications no
longer pertain here. In some of these cases six years have
elapsed without the judicial oversight that habeas corpus
or an adequate substitute demands. And there has been
no showing that the Executive faces such onerous burdens
that it cannot respond to habeas corpus actions. To re
quire these detainees to complete DTA review before
proceeding with their habeas corpus actions would be to
require additional months, if not years, of delay. The first
DTA review applications were filed over a year ago, but no
decisions on the merits have been issued. While some
delay in fashioning new procedures is unavoidable, the
costs of delay can no longer be borne by those who are held
in custody. The detainees in these cases are entitled to a
prompt habeas corpus hearing.
Our decision today holds only that the petitioners before
us are entitled to seek the writ; that the DTA review
procedures are an inadequate substitute for habeas cor
pus; and that the petitioners in these cases need not ex
haust the review procedures in the Court of Appeals before
proceeding with their habeas actions in the District Court.
The only law we identify as unconstitutional is MCA §7,
28 U. S. C. A. §2241(e) (Supp. 2007). Accordingly, both the
DTA and the CSRT process remain intact. Our holding
with regard to exhaustion should not be read to imply that
a habeas court should intervene the moment an enemy
combatant steps foot in a territory where the writ runs.
The Executive is entitled to a reasonable period of time to
determine a detainee’s status before a court entertains
that detainee’s habeas corpus petition. The CSRT process
is the mechanism Congress and the President set up to
deal with these issues. Except in cases of undue delay,
federal courts should refrain from entertaining an enemy
combatant’s habeas corpus petition at least until after the
Department, acting via the CSRT, has had a chance to
67 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
review his status.
B
Although we hold that the DTA is not an adequate and
effective substitute for habeas corpus, it does not follow
that a habeas corpus court may disregard the dangers the
detention in these cases was intended to prevent. Felker,
Swain, and Hayman stand for the proposition that the
Suspension Clause does not resist innovation in the field
of habeas corpus. Certain accommodations can be made to
reduce the burden habeas corpus proceedings will place on
the military without impermissibly diluting the protec
tions of the writ.
In the DTA Congress sought to consolidate review of
petitioners’ claims in the Court of Appeals. Channeling
future cases to one district court would no doubt reduce
administrative burdens on the Government. This is a
legitimate objective that might be advanced even without
an amendment to §2241. If, in a future case, a detainee
files a habeas petition in another judicial district in which
a proper respondent can be served, see Rumsfeld v.
Padilla, 542 U. S. 426, 435–436 (2004), the Government
can move for change of venue to the court that will hear
these petitioners’ cases, the United States District Court
for the District of Columbia. See 28 U. S. C. §1404(a);
Braden v. 30th Judicial Circuit Court of Ky., 410 U. S.
484, 499, n. 15 (1973).
Another of Congress’ reasons for vesting exclusive juris
diction in the Court of Appeals, perhaps, was to avoid the
widespread dissemination of classified information. The
Government has raised similar concerns here and else
where. See Brief for Respondents 55–56; Bismullah Pet.
30. We make no attempt to anticipate all of the eviden
tiary and access-to-counsel issues that will arise during
the course of the detainees’ habeas corpus proceedings.
We recognize, however, that the Government has a legiti
68 BOUMEDIENE v. BUSH
Opinion of the Court
mate interest in protecting sources and methods of intelli
gence gathering; and we expect that the District Court will
use its discretion to accommodate this interest to the
greatest extent possible. Cf. United States v. Reynolds,
345 U. S. 1, 10 (1953) (recognizing an evidentiary privilege
in a civil damages case where “there is a reasonable dan
ger that compulsion of the evidence will expose military
matters which, in the interest of national security, should
not be divulged”).
These and the other remaining questions are within the
expertise and competence of the District Court to address
in the first instance.
* * *
In considering both the procedural and substantive
standards used to impose detention to prevent acts of
terrorism, proper deference must be accorded to the politi
cal branches. See United States v. Curtiss-Wright Export
Corp., 299 U. S. 304, 320 (1936). Unlike the President and
some designated Members of Congress, neither the Mem
bers of this Court nor most federal judges begin the day
with briefings that may describe new and serious threats
to our Nation and its people. The law must accord the
Executive substantial authority to apprehend and detain
those who pose a real danger to our security.
Officials charged with daily operational responsibility
for our security may consider a judicial discourse on the
history of the Habeas Corpus Act of 1679 and like matters
to be far removed from the Nation’s present, urgent con
cerns. Established legal doctrine, however, must be con
sulted for its teaching. Remote in time it may be; irrele
vant to the present it is not. Security depends upon a
sophisticated intelligence apparatus and the ability of our
Armed Forces to act and to interdict. There are further
considerations, however. Security subsists, too, in fidelity
to freedom’s first principles. Chief among these are free
69 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
dom from arbitrary and unlawful restraint and the per
sonal liberty that is secured by adherence to the separa
tion of powers. It is from these principles that the judicial
authority to consider petitions for habeas corpus relief
derives.
Our opinion does not undermine the Executive’s powers
as Commander in Chief. On the contrary, the exercise of
those powers is vindicated, not eroded, when confirmed by
the Judicial Branch. Within the Constitution’s separa
tion-of-powers structure, few exercises of judicial power
are as legitimate or as necessary as the responsibility to
hear challenges to the authority of the Executive to im
prison a person. Some of these petitioners have been in
custody for six years with no definitive judicial determina
tion as to the legality of their detention. Their access to
the writ is a necessity to determine the lawfulness of their
status, even if, in the end, they do not obtain the relief
they seek.
Because our Nation’s past military conflicts have been of
limited duration, it has been possible to leave the outer
boundaries of war powers undefined. If, as some fear,
terrorism continues to pose dangerous threats to us for
years to come, the Court might not have this luxury. This
result is not inevitable, however. The political branches,
consistent with their independent obligations to interpret
and uphold the Constitution, can engage in a genuine
debate about how best to preserve constitutional values
while protecting the Nation from terrorism. Cf. Hamdan,
548 U. S., at 636 (BREYER, J., concurring) (“[J]udicial
insistence upon that consultation does not weaken our
Nation’s ability to deal with danger. To the contrary, that
insistence strengthens the Nation’s ability to determine—
through democratic means—how best to do so”).
It bears repeating that our opinion does not address the
content of the law that governs petitioners’ detention.
That is a matter yet to be determined. We hold that peti
70 BOUMEDIENE v. BUSH
Opinion of the Court
tioners may invoke the fundamental procedural protec
tions of habeas corpus. The laws and Constitution are
designed to survive, and remain in force, in extraordinary
times. Liberty and security can be reconciled; and in our
system they are reconciled within the framework of the
law. The Framers decided that habeas corpus, a right of
first importance, must be a part of that framework, a part
of that law.
The determination by the Court of Appeals that the
Suspension Clause and its protections are inapplicable to
petitioners was in error. The judgment of the Court of
Appeals is reversed. The cases are remanded to the Court
of Appeals with instructions that it remand the cases to
the District Court for proceedings consistent with this
opinion.
It is so ordered.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
SOUTER, J., concurring
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
JUSTICE SOUTER, with whom JUSTICE GINSBURG and
JUSTICE BREYER join, concurring.
I join the Court’s opinion in its entirety and add this
afterword only to emphasize two things one might over-
look after reading the dissents.
Four years ago, this Court in Rasul v. Bush, 542 U. S.
466 (2004) held that statutory habeas jurisdiction ex-
tended to claims of foreign nationals imprisoned by the
United States at Guantanamo Bay, “to determine the
legality of the Executive’s potentially indefinite detention”
of them, id., at 485. Subsequent legislation eliminated the
statutory habeas jurisdiction over these claims, so that
now there must be constitutionally based jurisdiction or
none at all. JUSTICE SCALIA is thus correct that here, for
the first time, this Court holds there is (he says “confers”)
constitutional habeas jurisdiction over aliens imprisoned
2 BOUMEDIENE v. BUSH
SOUTER, J., concurring
by the military outside an area of de jure national sover-
eignty, see post, at 1 (dissenting opinion). But no one who
reads the Court’s opinion in Rasul could seriously doubt
that the jurisdictional question must be answered the
same way in purely constitutional cases, given the Court’s
reliance on the historical background of habeas generally
in answering the statutory question. See, e.g., 542 U. S.,
at 473, 481–483, and nn. 11–14. Indeed, the Court in
Rasul directly answered the very historical question that
JUSTICE SCALIA says is dispositive, see post, at 18; it wrote
that “[a]pplication of the habeas statute to persons de-
tained at [Guantanamo] is consistent with the historical
reach of the writ of habeas corpus,” 542 U. S., at 481.
JUSTICE SCALIA dismisses the statement as dictum, see
post, at 21, but if dictum it was, it was dictum well consid-
ered, and it stated the view of five Members of this Court
on the historical scope of the writ. Of course, it takes more
than a quotation from Rasul, however much on point, to
resolve the constitutional issue before us here, which the
majority opinion has explored afresh in the detail it de-
serves. But whether one agrees or disagrees with today’s
decision, it is no bolt out of the blue.
A second fact insufficiently appreciated by the dissents
is the length of the disputed imprisonments, some of the
prisoners represented here today having been locked up
for six years, ante, at 66 (opinion of the Court). Hence the
hollow ring when the dissenters suggest that the Court is
somehow precipitating the judiciary into reviewing claims
that the military (subject to appeal to the Court of Appeals
for the District of Columbia Circuit) could handle within
some reasonable period of time. See, e.g., post, at 3 (opin-
ion of ROBERTS, C. J.) (“[T]he Court should have declined
to intervene until the D. C. Circuit had assessed the na-
ture and validity of the congressionally mandated proceed-
ings in a given detainee’s case”); post, at 6 (“[I]t is not
necessary to consider the availability of the writ until the
3 Cite as: 553 U. S. ____ (2008)
SOUTER, J., concurring
statutory remedies have been shown to be inadequate”);
post, at 8 (“[The Court] rushes to decide the fundamental
question of the reach of habeas corpus when the function-
ing of the DTA may make that decision entirely unneces-
sary”). These suggestions of judicial haste are all the more
out of place given the Court’s realistic acknowledgment
that in periods of exigency the tempo of any habeas review
must reflect the immediate peril facing the country. See
ante, at 64–65.
It is in fact the very lapse of four years from the time
Rasul put everyone on notice that habeas process was
available to Guantanamo prisoners, and the lapse of six
years since some of these prisoners were captured and
incarcerated, that stand at odds with the repeated sugges-
tions of the dissenters that these cases should be seen as a
judicial victory in a contest for power between the Court
and the political branches. See post, at 2, 3, 28 (ROBERTS,
C. J., dissenting); post, at 5, 6, 17, 18, 25 (SCALIA, J., dis-
senting). The several answers to the charge of triumphal-
ism might start with a basic fact of Anglo-American con-
stitutional history: that the power, first of the Crown and
now of the Executive Branch of the United States, is nec-
essarily limited by habeas corpus jurisdiction to enquire
into the legality of executive detention. And one could
explain that in this Court’s exercise of responsibility to
preserve habeas corpus something much more significant
is involved than pulling and hauling between the judicial
and political branches. Instead, though, it is enough to
repeat that some of these petitioners have spent six years
behind bars. After six years of sustained executive deten-
tions in Guantanamo, subject to habeas jurisdiction but
without any actual habeas scrutiny, today’s decision is no
judicial victory, but an act of perseverance in trying to
make habeas review, and the obligation of the courts to
provide it, mean something of value both to prisoners and
to the Nation. See ante, at 69.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA,
JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
Today the Court strikes down as inadequate the most
generous set of procedural protections ever afforded aliens
detained by this country as enemy combatants. The po
litical branches crafted these procedures amidst an ongo
ing military conflict, after much careful investigation and
thorough debate. The Court rejects them today out of
hand, without bothering to say what due process rights
the detainees possess, without explaining how the statute
fails to vindicate those rights, and before a single peti
tioner has even attempted to avail himself of the law’s
operation. And to what effect? The majority merely re
places a review system designed by the people’s represen
tatives with a set of shapeless procedures to be defined by
federal courts at some future date. One cannot help but
2 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
think, after surveying the modest practical results of the
majority’s ambitious opinion, that this decision is not
really about the detainees at all, but about control of
federal policy regarding enemy combatants.
The majority is adamant that the Guantanamo detain
ees are entitled to the protections of habeas corpus—its
opinion begins by deciding that question. I regard the
issue as a difficult one, primarily because of the unique
and unusual jurisdictional status of Guantanamo Bay. I
nonetheless agree with JUSTICE SCALIA’s analysis of our
precedents and the pertinent history of the writ, and
accordingly join his dissent. The important point for me,
however, is that the Court should have resolved these
cases on other grounds. Habeas is most fundamentally a
procedural right, a mechanism for contesting the legality
of executive detention. The critical threshold question in
these cases, prior to any inquiry about the writ’s scope, is
whether the system the political branches designed pro
tects whatever rights the detainees may possess. If so,
there is no need for any additional process, whether called
“habeas” or something else.
Congress entrusted that threshold question in the first
instance to the Court of Appeals for the District of Colum
bia Circuit, as the Constitution surely allows Congress to do.
See Detainee Treatment Act of 2005 (DTA), §1005(e)(2)(A),
119 Stat. 2742. But before the D. C. Circuit has addressed
the issue, the Court cashiers the statute, and without
answering this critical threshold question itself. The
Court does eventually get around to asking whether re
view under the DTA is, as the Court frames it, an “ade
quate substitute” for habeas, ante, at 42, but even then its
opinion fails to determine what rights the detainees pos
sess and whether the DTA system satisfies them. The
majority instead compares the undefined DTA process to
an equally undefined habeas right—one that is to be given
shape only in the future by district courts on a case-by
3 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
case basis. This whole approach is misguided.
It is also fruitless. How the detainees’ claims will be
decided now that the DTA is gone is anybody’s guess. But
the habeas process the Court mandates will most likely
end up looking a lot like the DTA system it replaces, as
the district court judges shaping it will have to reconcile
review of the prisoners’ detention with the undoubted
need to protect the American people from the terrorist
threat—precisely the challenge Congress undertook in
drafting the DTA. All that today’s opinion has done is
shift responsibility for those sensitive foreign policy and
national security decisions from the elected branches to
the Federal Judiciary.
I believe the system the political branches constructed
adequately protects any constitutional rights aliens cap
tured abroad and detained as enemy combatants may
enjoy. I therefore would dismiss these cases on that
ground. With all respect for the contrary views of the
majority, I must dissent.
I
The Court’s opinion makes plain that certiorari to re
view these cases should never have been granted. As two
Members of today’s majority once recognized, “traditional
rules governing our decision of constitutional questions
and our practice of requiring the exhaustion of available
remedies . . . make it appropriate to deny these petitions.”
Boumediene v. Bush, 549 U. S. ___ (2007) (slip op., at 1)
(citation omitted) (statement of STEVENS and KENNEDY,
JJ., respecting denial of certiorari). Just so. Given the
posture in which these cases came to us, the Court should
have declined to intervene until the D. C. Circuit had
assessed the nature and validity of the congressionally
mandated proceedings in a given detainee’s case.
The political branches created a two-part, collateral
review procedure for testing the legality of the prisoners’
4 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
detention: It begins with a hearing before a Combatant
Status Review Tribunal (CSRT) followed by review in the
D. C. Circuit. As part of that review, Congress authorized
the D. C. Circuit to decide whether the CSRT proceedings
are consistent with “the Constitution and laws of the
United States.” DTA §1005(e)(2)(C), 119 Stat. 2742. No
petitioner, however, has invoked the D. C. Circuit review
the statute specifies. See 476 F. 3d 981, 994, and n. 16
(CADC 2007); Brief for Federal Respondents 41–43. As a
consequence, that court has had no occasion to decide
whether the CSRT hearings, followed by review in the
Court of Appeals, vindicate whatever constitutional and
statutory rights petitioners may possess. See 476 F. 3d, at
994, and n. 16.
Remarkably, this Court does not require petitioners to
exhaust their remedies under the statute; it does not wait
to see whether those remedies will prove sufficient to
protect petitioners’ rights. Instead, it not only denies the
D. C. Circuit the opportunity to assess the statute’s reme
dies, it refuses to do so itself: the majority expressly de
clines to decide whether the CSRT procedures, coupled
with Article III review, satisfy due process. See ante, at
54.
It is grossly premature to pronounce on the detainees’
right to habeas without first assessing whether the reme
dies the DTA system provides vindicate whatever rights
petitioners may claim. The plurality in Hamdi v. Rums-
feld, 542 U. S. 507, 533 (2004), explained that the Consti
tution guaranteed an American citizen challenging his
detention as an enemy combatant the right to “notice of
the factual basis for his classification, and a fair opportu
nity to rebut the Government’s factual assertions before a
neutral decisionmaker.” The plurality specifically stated
that constitutionally adequate collateral process could be
provided “by an appropriately authorized and properly
constituted military tribunal,” given the “uncommon
5 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
potential to burden the Executive at a time of ongoing
military conflict.” Id., at 533, 538. This point is directly
pertinent here, for surely the Due Process Clause does not
afford non-citizens in such circumstances greater protec
tion than citizens are due.
If the CSRT procedures meet the minimal due process
requirements outlined in Hamdi, and if an Article III
court is available to ensure that these procedures are
followed in future cases, see id., at 536; INS v. St. Cyr, 533
U. S. 289, 304 (2001); Heikkila v. Barber, 345 U. S. 229,
236 (1953), there is no need to reach the Suspension
Clause question. Detainees will have received all the
process the Constitution could possibly require, whether
that process is called “habeas” or something else. The
question of the writ’s reach need not be addressed.
This is why the Court should have required petitioners
to exhaust their remedies under the statute. As we ex
plained in Gusik v. Schilder, 340 U. S. 128, 132 (1950), “If
an available procedure has not been employed to rectify
the alleged error” petitioners complain of, “any interfer
ence by [a] federal court may be wholly needless. The
procedure established to police the errors of the tribunal
whose judgment is challenged may be adequate for the
occasion.” Because the majority refuses to assess whether
the CSRTs comport with the Constitution, it ends up
razing a system of collateral review that it admits may in
fact satisfy the Due Process Clause and be “structurally
sound.” Ante, at 56. But if the collateral review proce
dures Congress has provided—CSRT review coupled with
Article III scrutiny—are sound, interference by a federal
habeas court may be entirely unnecessary.
The only way to know is to require petitioners to use the
alternative procedures Congress designed. Mandating
that the petitioners exhaust their statutory remedies “is in
no sense a suspension of the writ of habeas corpus. It is
merely a deferment of resort to the writ until other correc
6 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
tive procedures are shown to be futile.” Gusik, supra, at
132. So too here, it is not necessary to consider the avail
ability of the writ until the statutory remedies have been
shown to be inadequate to protect the detainees’ rights.
Cf. 28 U. S. C. §2254(b)(1)(A) (“An application for a writ of
habeas corpus . . . shall not be granted unless it appears
that . . . the applicant has exhausted the remedies avail
able in the courts of the State”). Respect for the judg
ments of Congress—whose Members take the same oath
we do to uphold the Constitution—requires no less.
In the absence of any assessment of the DTA’s remedies,
the question whether detainees are entitled to habeas is
an entirely speculative one. Our precedents have long
counseled us to avoid deciding such hypothetical questions
of constitutional law. See Spector Motor Service, Inc. v.
McLaughlin, 323 U. S. 101, 105 (1944) (“If there is one
doctrine more deeply rooted than any other in the process
of constitutional adjudication, it is that we ought not to
pass on questions of constitutionality . . . unless such
[questions are] unavoidable”); see also Ashwander v. TVA,
297 U. S. 288, 347 (1936) (Brandeis, J., concurring) (Con
stitutional questions should not be decided unless “ ‘abso
lutely necessary to a decision of the case’” (quoting Burton
v. United States, 196 U. S. 283, 295 (1905))). This is a
“fundamental rule of judicial restraint.” Three Affiliated
Tribes of Fort Berthold Reservation v. Wold Engineering,
P. C., 467 U. S. 138, 157 (1984).
The Court acknowledges that “the ordinary course”
would be not to decide the constitutionality of the DTA at
this stage, but abandons that “ordinary course” in light of
the “gravity” of the constitutional issues presented and the
prospect of additional delay. Ante, at 43. It is, however,
precisely when the issues presented are grave that adher
ence to the ordinary course is most important. A principle
applied only when unimportant is not much of a principle
at all, and charges of judicial activism are most effectively
7 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
rebutted when courts can fairly argue they are following
normal practices.
The Court is also concerned that requiring petitioners to
pursue “DTA review before proceeding with their habeas
corpus actions” could involve additional delay. Ante, at 66.
The nature of the habeas remedy the Court instructs
lower courts to craft on remand, however, is far more
unsettled than the process Congress provided in the DTA.
See ante, at 69 (“[O]ur opinion does not address the con
tent of the law that governs petitioners’ detention. That is
a matter yet to be determined”). There is no reason to
suppose that review according to procedures the Federal
Judiciary will design, case by case, will proceed any faster
than the DTA process petitioners disdained.
On the contrary, the system the Court has launched
(and directs lower courts to elaborate) promises to take
longer. The Court assures us that before bringing their
habeas petitions, detainees must usually complete the
CSRT process. See ante, at 66. Then they may seek re
view in federal district court. Either success or failure
there will surely result in an appeal to the D. C. Circuit—
exactly where judicial review starts under Congress’s
system. The effect of the Court’s decision is to add addi
tional layers of quite possibly redundant review. And
because nobody knows how these new layers of “habeas”
review will operate, or what new procedures they will
require, their contours will undoubtedly be subject to fresh
bouts of litigation. If the majority were truly concerned
about delay, it would have required petitioners to use the
DTA process that has been available to them for 21⁄2 years,
with its Article III review in the D. C. Circuit. That sys
tem might well have provided petitioners all the relief to
which they are entitled long before the Court’s newly
installed habeas review could hope to do so.1
——————
1
In light of the foregoing, the concurrence is wrong to suggest that I
8 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
The Court’s refusal to require petitioners to exhaust the
remedies provided by Congress violates the “traditional
rules governing our decision of constitutional questions.”
Boumediene, 549 U. S., at ___ (slip op., at 1) (statement of
STEVENS and KENNEDY, JJ., respecting denial of certio
rari). The Court’s disrespect for these rules makes its
decision an awkward business. It rushes to decide the
fundamental question of the reach of habeas corpus when
the functioning of the DTA may make that decision entirely
unnecessary, and it does so with scant idea of how DTA
judicial review will actually operate.
II
The majority’s overreaching is particularly egregious
given the weakness of its objections to the DTA. Simply
put, the Court’s opinion fails on its own terms. The major
ity strikes down the statute because it is not an “adequate
substitute” for habeas review, ante, at 42, but fails to show
what rights the detainees have that cannot be vindicated
by the DTA system.
Because the central purpose of habeas corpus is to test
the legality of executive detention, the writ requires most
fundamentally an Article III court able to hear the pris
——————
“insufficiently appreciat[e]” the issue of delay in these cases. See ante,
at 2 (opinion of SOUTER, J.). This Court issued its decisions in Rasul v.
Bush, 542 U. S. 466, and Hamdi v. Rumsfeld 542 U. S. 507, in 2004.
The concurrence makes it sound as if the political branches have done
nothing in the interim. In fact, Congress responded 18 months later by
enacting the DTA. Congress cannot be faulted for taking that time to
consider how best to accommodate both the detainees’ interests and the
need to keep the American people safe. Since the DTA became law,
petitioners have steadfastly refused to avail themselves of the statute’s
review mechanisms. It is unfair to complain that the DTA system
involves too much delay when petitioners have consistently refused to
use it, preferring to litigate instead. Today’s decision obligating district
courts to craft new procedures to replace those in the DTA will only
prolong the process—and delay relief.
9 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
oner’s claims and, when necessary, order release. See
Brown v. Allen, 344 U. S. 443, 533 (1953) (Jackson, J.,
concurring in result). Beyond that, the process a given
prisoner is entitled to receive depends on the circum
stances and the rights of the prisoner. See Mathews v.
Eldridge, 424 U. S. 319, 335 (1976). After much hemming
and hawing, the majority appears to concede that the DTA
provides an Article III court competent to order release.
See ante, at 61. The only issue in dispute is the process
the Guantanamo prisoners are entitled to use to test the
legality of their detention. Hamdi concluded that Ameri
can citizens detained as enemy combatants are entitled to
only limited process, and that much of that process could
be supplied by a military tribunal, with review to follow in
an Article III court. That is precisely the system we have
here. It is adequate to vindicate whatever due process
rights petitioners may have.
A
The Court reaches the opposite conclusion partly be
cause it misreads the statute. The majority appears not to
understand how the review system it invalidates actually
works—specifically, how CSRT review and review by the
D. C. Circuit fit together. After briefly acknowledging in
its recitation of the facts that the Government designed
the CSRTs “to comply with the due process requirements
identified by the plurality in Hamdi,” ante, at 3, the Court
proceeds to dismiss the tribunal proceedings as no more
than a suspect method used by the Executive for deter
mining the status of the detainees in the first instance, see
ante, at 43. This leads the Court to treat the review the
DTA provides in the D. C. Circuit as the only opportunity
detainees have to challenge their status determination.
See ante, at 49.
The Court attempts to explain its glancing treatment of
the CSRTs by arguing that “[w]hether one characterizes
10 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
the CSRT process as direct review of the Executive’s bat
tlefield determination . . . or as the first step in the collat
eral review of a battlefield determination makes no differ
ence.” Ante, at 54. First of all, the majority is quite wrong
to dismiss the Executive’s determination of detainee
status as no more than a “battlefield” judgment, as if it
were somehow provisional and made in great haste. In
fact, detainees are designated “enemy combatants” only
after “multiple levels of review by military officers and
officials of the Department of Defense.” Memorandum of
the Secretary of the Navy, Implementation of Combatant
Status Review Tribunal Procedures for Enemy Combat
ants Detained at Guantanamo Bay Naval Base (July 29,
2004), App. J to Pet. for Cert. in No. 06–1196, p. 150 (here
inafter Implementation Memo).
The majority is equally wrong to characterize the
CSRTs as part of that initial determination process. They
are instead a means for detainees to challenge the Gov
ernment’s determination. The Executive designed the
CSRTs to mirror Army Regulation 190–8, see Brief for
Federal Respondents 48, the very procedural model the
plurality in Hamdi said provided the type of process an
enemy combatant could expect from a habeas court, see
542 U. S., at 538 (plurality opinion). The CSRTs operate
much as habeas courts would if hearing the detainee’s
collateral challenge for the first time: They gather evi
dence, call witnesses, take testimony, and render a deci
sion on the legality of the Government’s detention. See
Implementation Memo, App. J to Pet. for Cert. in No. 06–
1196, at 153–162. If the CSRT finds a particular detainee
has been improperly held, it can order release. See id., at
164.
The majority insists that even if “the CSRTs satisf[ied]
due process standards,” full habeas review would still be
necessary, because habeas is a collateral remedy available
even to prisoners “detained pursuant to the most rigorous
11 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
proceedings imaginable.” Ante, at 55, 56. This comment
makes sense only if the CSRTs are incorrectly viewed as a
method used by the Executive for determining the prison
ers’ status, and not as themselves part of the collateral
review to test the validity of that determination. See
Gusik, 340 U. S., at 132. The majority can deprecate the
importance of the CSRTs only by treating them as some
thing they are not.
The use of a military tribunal such as the CSRTs to
review the aliens’ detention should be familiar to this
Court in light of the Hamdi plurality, which said that the
due process rights enjoyed by American citizens detained
as enemy combatants could be vindicated “by an appropri
ately authorized and properly constituted military tribu
nal.” 542 U. S., at 538. The DTA represents Congress’
considered attempt to provide the accused alien combat
ants detained at Guantanamo a constitutionally adequate
opportunity to contest their detentions before just such a
tribunal.
But Congress went further in the DTA. CSRT review is
just the first tier of collateral review in the DTA system.
The statute provides additional review in an Article III
court. Given the rationale of today’s decision, it is well
worth recalling exactly what the DTA provides in this
respect. The statute directs the D. C. Circuit to consider
whether a particular alien’s status determination “was
consistent with the standards and procedures specified by
the Secretary of Defense” and “whether the use of such
standards and procedures to make the determination is
consistent with the Constitution and laws of the United
States.” DTA §1005(e)(2)(C), 119 Stat. 2742. That is, a
court determines whether the CSRT procedures are consti
tutional, and a court determines whether those procedures
were followed in a particular case.
In short, the Hamdi plurality concluded that this type of
review would be enough to satisfy due process, even for
12 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
citizens. See 542 U. S., at 538. Congress followed the
Court’s lead, only to find itself the victim of a constitu
tional bait and switch.
Hamdi merits scant attention from the Court—a re
markable omission, as Hamdi bears directly on the issues
before us. The majority attempts to dismiss Hamdi’s
relevance by arguing that because the availability of
§2241 federal habeas was never in doubt in that case, “the
Court had no occasion to define the necessary scope of
habeas review . . . in the context of enemy combatant
detentions.” Ante, at 55. Hardly. Hamdi was all about
the scope of habeas review in the context of enemy com
batant detentions. The petitioner, an American citizen
held within the United States as an enemy combatant,
invoked the writ to challenge his detention. 542 U. S., at
510–511. After “a careful examination both of the writ . . .
and of the Due Process Clause,” this Court enunciated the
“basic process” the Constitution entitled Hamdi to expect
from a habeas court under §2241. Id., at 525, 534. That
process consisted of the right to “receive notice of the
factual basis for his classification, and a fair opportunity
to rebut the Government’s factual assertions before a
neutral decisionmaker.” Id., at 533. In light of the Gov
ernment’s national security responsibilities, the plurality
found the process could be “tailored to alleviate [the]
uncommon potential to burden the Executive at a time of
ongoing military conflict.” Ibid. For example, the Gov
ernment could rely on hearsay and could claim a presump
tion in favor of its own evidence. See id., at 533–534.
Hamdi further suggested that this “basic process” on
collateral review could be provided by a military tribunal.
It pointed to prisoner-of-war tribunals as a model that
would satisfy the Constitution’s requirements. See id., at
538. Only “[i]n the absence of such process” before a mili
tary tribunal, the Court held, would Article III courts need
to conduct full-dress habeas proceedings to “ensure that
13 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
the minimum requirements of due process are achieved.”
Ibid. (emphasis added). And even then, the petitioner
would be entitled to no more process than he would have
received from a properly constituted military review panel,
given his limited due process rights and the Government’s
weighty interests. See id., at 533–534, 538.
Contrary to the majority, Hamdi is of pressing relevance
because it establishes the procedures American citizens
detained as enemy combatants can expect from a habeas
court proceeding under §2241. The DTA system of military
tribunal hearings followed by Article III review looks a lot
like the procedure Hamdi blessed. If nothing else, it is
plain from the design of the DTA that Congress, the
President, and this Nation’s military leaders have made a
good-faith effort to follow our precedent.
The Court, however, will not take “yes” for an answer.
The majority contends that “[i]f Congress had envisioned
DTA review as coextensive with traditional habeas corpus,”
it would have granted the D. C. Circuit far broader review
authority. Ante, at 48. Maybe so, but that comment reveals
the majority’s misunderstanding. “[T]raditional habeas
corpus” takes no account of what Hamdi recognized as the
“uncommon potential to burden the Executive at a time of
ongoing military conflict.” 542 U. S., at 533. Besides, Con
gress and the Executive did not envision “DTA review”—
by which I assume the Court means D. C. Circuit review,
see ante, at 48—as the detainees’ only opportunity to
challenge their detentions. Instead, the political branches
crafted CSRT and D. C. Circuit review to operate together,
with the goal of providing noncitizen detainees the level of
collateral process Hamdi said would satisfy the due proc
ess rights of American citizens. See Brief for Federal
Respondents 48–53.
B
Given the statutory scheme the political branches
14 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
adopted, and given Hamdi, it simply will not do for the
majority to dismiss the CSRT procedures as “far more
limited” than those used in military trials, and therefore
beneath the level of process “that would eliminate the
need for habeas corpus review.” Ante, at 37. The question
is not how much process the CSRTs provide in comparison
to other modes of adjudication. The question is whether
the CSRT procedures—coupled with the judicial review
specified by the DTA—provide the “basic process” Hamdi
said the Constitution affords American citizens detained
as enemy combatants. See 542 U. S., at 534.
By virtue of its refusal to allow the D. C. Circuit to
assess petitioners’ statutory remedies, and by virtue of its
own refusal to consider, at the outset, the fit between
those remedies and due process, the majority now finds
itself in the position of evaluating whether the DTA sys
tem is an adequate substitute for habeas review without
knowing what rights either habeas or the DTA is supposed
to protect. The majority attempts to elide this problem by
holding that petitioners have a right to habeas corpus and
then comparing the DTA against the “historic office” of the
writ. Ante, at 47. But habeas is, as the majority acknowl
edges, a flexible remedy rather than a substantive right.
Its “precise application . . . change[s] depending upon the
circumstances.” Ante, at 50. The shape of habeas review
ultimately depends on the nature of the rights a petitioner
may assert. See, e.g., Reid v. Covert, 354 U. S. 1, 75 (1957)
(Harlan, J., concurring in result) (“[T]he question of which
specific safeguards of the Constitution are appropriately to
be applied in a particular context . . . can be reduced to the
issue of what process is ‘due’ a defendant in the particular
circumstances of a particular case”).
The scope of federal habeas review is traditionally more
limited in some contexts than in others, depending on the
status of the detainee and the rights he may assert. See
St. Cyr, 533 U. S., at 306 (“In [immigration cases], other
15 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
than the question whether there was some evidence to
support the [deportation] order, the courts generally did
not review factual determinations made by the Executive”
(footnote omitted)); Burns v. Wilson, 346 U. S. 137, 139
(1953) (plurality opinion) (“[I]n military habeas corpus the
inquiry, the scope of matters open for review, has always
been more narrow than in civil cases”); In re Yamashita,
327 U. S. 1, 8 (1946) (“The courts may inquire whether the
detention complained of is within the authority of those
detaining the petitioner. If the military tribunals have
lawful authority to hear, decide and condemn, their action
is not subject to judicial review”); Ex parte Quirin, 317 U. S.
1, 25 (1942) (federal habeas review of military commission
verdict limited to determining commission’s jurisdiction).
Declaring that petitioners have a right to habeas in no
way excuses the Court from explaining why the DTA does
not protect whatever due process or statutory rights peti
tioners may have. Because if the DTA provides a means
for vindicating petitioners’ rights, it is necessarily an
adequate substitute for habeas corpus. See Swain v.
Pressley, 430 U. S. 372, 381 (1977); United States v. Hay-
man, 342 U. S. 205, 223 (1952).
For my part, I will assume that any due process rights
petitioners may possess are no greater than those of
American citizens detained as enemy combatants. It is
worth noting again that the Hamdi controlling opinion
said the Constitution guarantees citizen detainees only
“basic” procedural rights, and that the process for securing
those rights can “be tailored to alleviate [the] uncommon
potential to burden the Executive at a time of ongoing
military conflict.” 542 U. S., at 533. The majority, how
ever, objects that “the procedural protections afforded to
the detainees in the CSRT hearings are . . . limited.” Ante,
at 37. But the evidentiary and other limitations the Court
complains of reflect the nature of the issue in contest,
namely, the status of aliens captured by our Armed Forces
16 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
abroad and alleged to be enemy combatants. Contrary to
the repeated suggestions of the majority, DTA review need
not parallel the habeas privileges enjoyed by noncombat
ant American citizens, as set out in 28 U. S. C. §2241
(2000 ed. and Supp V). Cf. ante, at 46–47. It need only
provide process adequate for noncitizens detained as
alleged combatants.
To what basic process are these detainees due as habeas
petitioners? We have said that “at the absolute mini
mum,” the Suspension Clause protects the writ “‘as it
existed in 1789.’” St. Cyr, supra, at 301 (quoting Felker v.
Turpin, 518 U. S. 651, 663–664 (1996)). The majority
admits that a number of historical authorities suggest
that at the time of the Constitution’s ratification, “com
mon-law courts abstained altogether from matters involv
ing prisoners of war.” Ante, at 17. If this is accurate, the
process provided prisoners under the DTA is plainly more
than sufficient—it allows alleged combatants to challenge
both the factual and legal bases of their detentions.
Assuming the constitutional baseline is more robust, the
DTA still provides adequate process, and by the majority’s
own standards. Today’s Court opines that the Suspension
Clause guarantees prisoners such as the detainees “a
meaningful opportunity to demonstrate that [they are]
being held pursuant to the erroneous application or inter
pretation of relevant law.” Ante, at 50 (internal quotation
marks omitted). Further, the Court holds that to be an
adequate substitute, any tribunal reviewing the detainees’
cases “must have the power to order the conditional re
lease of an individual unlawfully detained.” Ibid. The
DTA system—CSRT review of the Executive’s determina
tion followed by D. C. Circuit review for sufficiency of the
evidence and the constitutionality of the CSRT process—
meets these criteria.
17 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
C
At the CSRT stage, every petitioner has the right to
present evidence that he has been wrongfully detained.
This includes the right to call witnesses who are reasona
bly available, question witnesses called by the tribunal,
introduce documentary evidence, and testify before the
tribunal. See Implementation Memo, App. J to Pet. for
Cert. in No. 06–1196, at 154–156, 158–159, 161.
While the Court concedes detainees may confront all
witnesses called before the tribunal, it suggests this right
is “more theoretical than real” because “there are in effect
no limits on the admission of hearsay evidence.” Ante, at
55. The Court further complains that petitioners lack “the
assistance of counsel,” and—given the limits on their
access to classified information—“may not be aware of the
most critical allegations” against them. Ante, at 54. None
of these complaints is persuasive.
Detainees not only have the opportunity to confront any
witness who appears before the tribunal, they may call
witnesses of their own. The Implementation Memo re
quires only that detainees’ witnesses be “reasonably avail
able,” App. J to Pet. for Cert. in No. 06–1196, at 155, a
requirement drawn from Army Regulation 190–8, ch. 1,
§1–6(e)(6), and entirely consistent with the Government’s
interest in avoiding “a futile search for evidence” that
might burden warmaking responsibilities, Hamdi, supra,
at 532. The dangerous mission assigned to our forces
abroad is to fight terrorists, not serve subpoenas. The
Court is correct that some forms of hearsay evidence are
admissible before the CSRT, but Hamdi expressly ap
proved this use of hearsay by habeas courts. 542 U. S.,
at 533–534 (“Hearsay, for example, may need to be ac
cepted as the most reliable available evidence from the
Government”).
As to classified information, while detainees are not
permitted access to it themselves, the Implementation
18 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
Memo provides each detainee with a “Personal Represen
tative” who may review classified documents at the CSRT
stage and summarize them for the detainee. Implementa
tion Memo, supra, at 152, 154–155, 156; Brief for Federal
Respondents 54–55. The prisoner’s counsel enjoys the
same privilege on appeal before the D. C. Circuit. That is
more access to classified material for alleged alien enemy
combatants than ever before provided. I am not aware of
a single instance—and certainly the majority cites none—
in which detainees such as petitioners have been provided
access to classified material in any form. Indeed, prison
ers of war who challenge their status determinations
under the Geneva Convention are afforded no such access,
see Army Regulation 190–8, ch. 1, §§1–6(e)(3) and (5), and
the prisoner-of-war model is the one Hamdi cited as con
sistent with the demands of due process for citizens, see
542 U. S., at 538.
What alternative does the Court propose? Allow free
access to classified information and ignore the risk the
prisoner may eventually convey what he learns to parties
hostile to this country, with deadly consequences for those
who helped apprehend the detainee? If the Court can
design a better system for communicating to detainees the
substance of any classified information relevant to their
cases, without fatally compromising national security
interests and sources, the majority should come forward
with it. Instead, the majority fobs that vexing question off
on district courts to answer down the road.
Prisoners of war are not permitted access to classified
information, and neither are they permitted access to
counsel, another supposed failing of the CSRT process.
And yet the Guantanamo detainees are hardly denied all
legal assistance. They are provided a “Personal Represen
tative” who, as previously noted, may access classified
information, help the detainee arrange for witnesses,
assist the detainee’s preparation of his case, and even aid
19 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
the detainee in presenting his evidence to the tribunal.
See Implementation Memo, supra, at 161. The provision
for a personal representative on this order is one of several
ways in which the CSRT procedures are more generous
than those provided prisoners of war under Army Regula
tion 190–8.
Keep in mind that all this is just at the CSRT stage.
Detainees receive additional process before the D. C.
Circuit, including full access to appellate counsel and the
right to challenge the factual and legal bases of their
detentions. DTA §1005(e)(2)(C) empowers the Court of
Appeals to determine not only whether the CSRT observed
the “procedures specified by the Secretary of Defense,” but
also “whether the use of such standards and procedures
. . . is consistent with the Constitution and laws of the
United States.” 119 Stat. 2742. These provisions permit
detainees to dispute the sufficiency of the evidence against
them. They allow detainees to challenge a CSRT panel’s
interpretation of any relevant law, and even the constitu
tionality of the CSRT proceedings themselves. This in
cludes, as the Solicitor General acknowledges, the ability
to dispute the Government’s right to detain alleged com
batants in the first place, and to dispute the Government’s
definition of “enemy combatant.” Brief for Federal Re
spondents 59. All this before an Article III court—plainly
a neutral decisionmaker.
All told, the DTA provides the prisoners held at Guan
tanamo Bay adequate opportunity to contest the bases of
their detentions, which is all habeas corpus need allow.
The DTA provides more opportunity and more process, in
fact, than that afforded prisoners of war or any other
alleged enemy combatants in history.
D
Despite these guarantees, the Court finds the DTA
system an inadequate habeas substitute, for one central
20 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
reason: Detainees are unable to introduce at the appeal
stage exculpatory evidence discovered after the conclusion
of their CSRT proceedings. See ante, at 58. The Court
hints darkly that the DTA may suffer from other infirmi
ties, see ante, at 63 (“We do not imply DTA review would
be a constitutionally sufficient replacement for habeas
corpus but for these limitations on the detainee’s ability to
present exculpatory evidence”), but it does not bother to
name them, making a response a bit difficult. As it
stands, I can only assume the Court regards the supposed
defect it did identify as the gravest of the lot.
If this is the most the Court can muster, the ice beneath
its feet is thin indeed. As noted, the CSRT procedures
provide ample opportunity for detainees to introduce
exculpatory evidence—whether documentary in nature or
from live witnesses—before the military tribunals. See
infra, at 21–23; Implementation Memo, App. J to Pet. for
Cert. in No. 06–196, at 155–156. And if their ability to
introduce such evidence is denied contrary to the Consti
tution or laws of the United States, the D. C. Circuit has
the authority to say so on review.
Nevertheless, the Court asks us to imagine an instance
in which evidence is discovered after the CSRT panel
renders its decision, but before the Court of Appeals re
views the detainee’s case. This scenario, which of course
has not yet come to pass as no review in the D. C. Circuit
has occurred, provides no basis for rejecting the DTA as a
habeas substitute. While the majority is correct that the
DTA does not contemplate the introduction of “newly
discovered” evidence before the Court of Appeals, petition
ers and the Solicitor General agree that the DTA does
permit the D. C. Circuit to remand a detainee’s case for a
new CSRT determination. Brief for Petitioner Boumedi
ene et al. in No. 06–1195, at 30; Brief for Federal Respon
dents 60–61. In the event a detainee alleges that he has
obtained new and persuasive exculpatory evidence that
21 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
would have been considered by the tribunal below had it
only been available, the D. C. Circuit could readily remand
the case to the tribunal to allow that body to consider the
evidence in the first instance. The Court of Appeals could
later review any new or reinstated decision in light of the
supplemented record.
If that sort of procedure sounds familiar, it should.
Federal appellate courts reviewing factual determinations
follow just such a procedure in a variety of circumstances.
See, e.g., United States v. White, 492 F. 3d 380, 413 (CA6
2007) (remanding new-evidence claim to the district court
for a Brady evidentiary hearing); Avila v. Roe, 298 F. 3d
750, 754 (CA9 2002) (remanding habeas claim to the
district court for evidentiary hearing to clarify factual
record); United States v. Leone, 215 F. 3d 253, 256 (CA2
2000) (observing that when faced on direct appeal with an
underdeveloped claim for ineffective assistance of counsel,
the appellate court may remand to the district court for
necessary factfinding).
A remand is not the only relief available for detainees
caught in the Court’s hypothetical conundrum. The DTA
expressly directs the Secretary of Defense to “provide for
periodic review of any new evidence that may become
available relating to the enemy combatant status of a
detainee.” DTA §1005(a)(3). Regulations issued by the
Department of Defense provide that when a detainee puts
forward new, material evidence “not previously presented
to the detainee’s CSRT,” the Deputy Secretary of Defense
“‘will direct that a CSRT convene to reconsider the basis of
the detainee’s . . . status in light of the new information.’”
Office for the Administrative Review of the Detention of
Enemy Combatants, Instruction 5421.1, Procedure for
Review of “New Evidence” Relating to Enemy Combatant
(EC) Status ¶¶4(a)(1), 5(b) (May 7, 2007); Brief for Federal
Respondents 56, n. 30. Pursuant to DTA §1005(e)(2)(A),
the resulting CSRT determination is again reviewable in
22 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
full by the D. C. Circuit.2
In addition, DTA §1005(d)(1) further requires the De
partment of Defense to conduct a yearly review of the
status of each prisoner. See 119 Stat. 2741. The Deputy
Secretary of Defense has promulgated concomitant regula
tions establishing an Administrative Review Board to
assess “annually the need to continue to detain each en
emy combatant.” Deputy Secretary of Defense Order OSD
06942–04 (May 11, 2004), App. K to Pet. for Cert. in No.
06–1196, p. 189. In the words of the implementing order,
the purpose of this annual review is to afford every de
tainee the opportunity “to explain why he is no longer a
threat to the United States” and should be released. Ibid.
The Board’s findings are forwarded to a presidentially
appointed, Senate-confirmed civilian within the Depart
ment of Defense whom the Secretary of Defense has des
ignated to administer the review process. This designated
civilian official has the authority to order release upon the
Board’s recommendation. Id., at 201.
The Court’s hand wringing over the DTA’s treatment of
later-discovered exculpatory evidence is the most it has to
show after a roving search for constitutionally problematic
scenarios. But “[t]he delicate power of pronouncing an Act
of Congress unconstitutional,” we have said, “is not to be
exercised with reference to hypothetical cases thus imag
ined.” United States v. Raines, 362 U. S. 17, 22 (1960).
The Court today invents a sort of reverse facial challenge
——————
2
The Court wonders what might happen if the detainee puts forward
new material evidence but the Deputy Secretary refuses to convene a
new CSRT. See ante, at 62–63. The answer is that the detainee can
petition the D. C. Circuit for review. The DTA directs that the proce
dures for review of new evidence be included among “[t]he procedures
submitted under paragraph (1)(A)” governing CSRT review of enemy
combatant status §1405(a)(3), 119 Stat. 3476. It is undisputed that the
D. C. Circuit has statutory authority to review and enforce these
procedures. See DTA §1005(e)(2)(C)(i), id., at 2742.
23 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
and applies it with gusto: If there is any scenario in which
the statute might be constitutionally infirm, the law must
be struck down. Cf. United States v. Salerno, 481 U. S.
739, 745 (1987) (“A facial challenge . . . must establish that
no set of circumstances exists under which the Act would
be valid”); see also Washington v. Glucksberg, 521 U. S.
702, 739–740, and n. 7 (1997) (STEVENS, J., concurring in
judgments) (facial challenge must fail where the statute
has “‘plainly legitimate sweep’” (quoting Broadrick v.
Oklahoma, 413 U. S. 601, 615 (1973))). The Court’s new
method of constitutional adjudication only underscores its
failure to follow our usual procedures and require peti
tioners to demonstrate that they have been harmed by the
statute they challenge. In the absence of such a concrete
showing, the Court is unable to imagine a plausible hypo
thetical in which the DTA is unconstitutional.
E
The Court’s second criterion for an adequate substitute
is the “power to order the conditional release of an indi
vidual unlawfully detained.” Ante, at 50. As the Court
basically admits, the DTA can be read to permit the D. C.
Circuit to order release in light of our traditional princi
ples of construing statutes to avoid difficult constitutional
issues, when reasonably possible. See ante, at 56–57.
The Solicitor General concedes that remedial authority
of some sort must be implied in the statute, given that the
DTA—like the general habeas law itself, see 28 U. S. C.
§2243—provides no express remedy of any kind. Brief for
Federal Respondents 60–61. The parties agree that at the
least, the DTA empowers the D. C. Circuit to remand a
prisoner’s case to the CSRT with instructions to perform a
new status assessment. Brief for Petitioner Boumediene
et al. in No. 06–1195, at 30; Brief for Federal Respondents
60–61. To avoid constitutional infirmity, it is reasonable
to imply more, see Ashwander, 297 U. S., at 348 (Brandeis,
24 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
J., concurring) (“When the validity of an act of the Con
gress is drawn in question . . . it is a cardinal principle
that this Court will . . . ascertain whether a construction of
the statute is fairly possible by which the [constitutional]
question may be avoided” (internal quotation marks omit
ted)); see also St. Cyr, 533 U. S., at 299–300, especially in
view of the Solicitor General’s concession at oral argument
and in his Supplemental Brief that authority to release
might be read in the statute, see Tr. of Oral Arg. 37; Sup
plemental Brief for Federal Respondents 9.
The Court grudgingly suggests that “Congress’ silence
on the question of remedies suggests acquiescence to any
constitutionally required remedy.” Ante, at 58. But the
argument in favor of statutorily authorized release is
stronger than that. The DTA’s parallels to 28 U. S. C.
§2243 on this score are noteworthy. By way of remedy,
the general federal habeas statute provides only that the
court, having heard and determined the facts, shall “dis
pose of the matter as law and justice require.” Ibid. We
have long held, and no party here disputes, that this
includes the power to order release. See Wilkinson v.
Dotson, 544 U. S. 74, 79 (2005) (“[T]he writ’s history
makes clear that it traditionally has been accepted as the
specific instrument to obtain release from [unlawful]
confinement” (internal quotation marks omitted)).
The DTA can be similarly read. Because Congress
substituted DTA review for habeas corpus and because
the “unique purpose” of the writ is “to release the appli
cant . . . from unlawful confinement,” Allen v. McCurry,
449 U. S. 90, 98, n. 12 (1980), DTA §1005(e)(2) can and
should be read to confer on the Court of Appeals the
authority to order release in appropriate circumstances.
Section 1005(e)(2)(D) plainly contemplates release, ad
dressing the effect “release of [an] alien from the custody
of the Department of Defense” will have on the jurisdiction
of the court. 119 Stat. 2742–2743. This reading avoids
25 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
serious constitutional difficulty and is consistent with the
text of the statute.
The D. C. Circuit can thus order release, the CSRTs can
order release, and the head of the Administrative Review
Boards can, at the recommendation of those panels, order
release. These multiple release provisions within the DTA
system more than satisfy the majority’s requirement that
any tribunal substituting for a habeas court have the
authority to release the prisoner.
The basis for the Court’s contrary conclusion is summed
up in the following sentence near the end of its opinion:
“To hold that the detainees at Guantanamo may, under
the DTA, challenge the President’s legal authority to
detain them, contest the CSRT’s findings of fact, supple
ment the record on review with newly discovered or previ
ously unavailable evidence, and request an order of re
lease would come close to reinstating the §2241 habeas
corpus process Congress sought to deny them.” Ante, at
63. In other words, any interpretation of the statute that
would make it an adequate substitute for habeas must be
rejected, because Congress could not possibly have in
tended to enact an adequate substitute for habeas. The
Court could have saved itself a lot of trouble if it had
simply announced this Catch-22 approach at the begin
ning rather than the end of its opinion.
III
For all its eloquence about the detainees’ right to the
writ, the Court makes no effort to elaborate how exactly
the remedy it prescribes will differ from the procedural
protections detainees enjoy under the DTA. The Court
objects to the detainees’ limited access to witnesses and
classified material, but proposes no alternatives of its own.
Indeed, it simply ignores the many difficult questions its
holding presents. What, for example, will become of the
CSRT process? The majority says federal courts should
26 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
generally refrain from entertaining detainee challenges
until after the petitioner’s CSRT proceeding has finished.
See ante, at 66 (“[e]xcept in cases of undue delay”). But
to what deference, if any, is that CSRT determination
entitled?
There are other problems. Take witness availability.
What makes the majority think witnesses will become
magically available when the review procedure is labeled
“habeas”? Will the location of most of these witnesses
change—will they suddenly become easily susceptible to
service of process? Or will subpoenas issued by American
habeas courts run to Basra? And if they did, how would
they be enforced? Speaking of witnesses, will detainees be
able to call active-duty military officers as witnesses? If
not, why not?
The majority has no answers for these difficulties. What
it does say leaves open the distinct possibility that its
“habeas” remedy will, when all is said and done, end up
looking a great deal like the DTA review it rejects. See
ante, at 66 (opinion of the court) (“We recognize, however,
that the Government has a legitimate interest in protect
ing sources and methods of intelligence gathering, and we
expect that the District Court will use its discretion to
accommodate this interest to the greatest extent possi
ble”). But “[t]he role of the judiciary is limited to deter
mining whether the procedures meet the essential stan
dard of fairness under the Due Process Clause and does
not extend to imposing procedures that merely displace
congressional choices of policy.” Landon v. Plasencia, 459
U. S. 21, 34–35 (1982).
The majority rests its decision on abstract and hypo
thetical concerns. Step back and consider what, in the
real world, Congress and the Executive have actually
granted aliens captured by our Armed Forces overseas and
found to be enemy combatants:
• The right to hear the bases of the charges against
27 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
them, including a summary of any classified
evidence.
• The ability to challenge the bases of their detention
before military tribunals modeled after Geneva
Convention procedures. Some 38 detainees have
been released as a result of this process. Brief for
Federal Respondents 57, 60.
• The right, before the CSRT, to testify, introduce
evidence, call witnesses, question those the Gov
ernment calls, and secure release, if and when
appropriate.
• The right to the aid of a personal representative in
arranging and presenting their cases before a
CSRT.
• Before the D. C. Circuit, the right to employ coun
sel, challenge the factual record, contest the lower
tribunal’s legal determinations, ensure compliance
with the Constitution and laws, and secure release,
if any errors below establish their entitlement to
such relief.
In sum, the DTA satisfies the majority’s own criteria
for assessing adequacy. This statutory scheme provides
the combatants held at Guantanamo greater procedural
protections than have ever been afforded alleged enemy
detainees—whether citizens or aliens—in our national
history.
* * *
So who has won? Not the detainees. The Court’s analy
sis leaves them with only the prospect of further litigation
to determine the content of their new habeas right, fol
lowed by further litigation to resolve their particular cases,
followed by further litigation before the D. C. Circuit—
where they could have started had they invoked the DTA
procedure. Not Congress, whose attempt to “determine—
through democratic means—how best” to balance the
28 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
security of the American people with the detainees’ liberty
interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636
(2006) (BREYER, J., concurring), has been unceremoniously
brushed aside. Not the Great Writ, whose majesty is
hardly enhanced by its extension to a jurisdictionally
quirky outpost, with no tangible benefit to anyone. Not the
rule of law, unless by that is meant the rule of lawyers,
who will now arguably have a greater role than military
and intelligence officials in shaping policy for alien enemy
combatants. And certainly not the American people, who
today lose a bit more control over the conduct of this Na
tion’s foreign policy to unelected, politically unaccountable
judges.
I respectfully dissent.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
JUSTICE SCALIA, with whom THE CHIEF JUSTICE,
JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
Today, for the first time in our Nation’s history, the
Court confers a constitutional right to habeas corpus on
alien enemies detained abroad by our military forces in
the course of an ongoing war. THE CHIEF JUSTICE’s dis-
sent, which I join, shows that the procedures prescribed by
Congress in the Detainee Treatment Act provide the es-
sential protections that habeas corpus guarantees; there
has thus been no suspension of the writ, and no basis
exists for judicial intervention beyond what the Act allows.
My problem with today’s opinion is more fundamental
still: The writ of habeas corpus does not, and never has,
run in favor of aliens abroad; the Suspension Clause thus
has no application, and the Court’s intervention in this
military matter is entirely ultra vires.
2 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
I shall devote most of what will be a lengthy opinion to
the legal errors contained in the opinion of the Court.
Contrary to my usual practice, however, I think it appro-
priate to begin with a description of the disastrous conse-
quences of what the Court has done today.
I
America is at war with radical Islamists. The enemy
began by killing Americans and American allies abroad:
241 at the Marine barracks in Lebanon, 19 at the Khobar
Towers in Dhahran, 224 at our embassies in Dar es Sa-
laam and Nairobi, and 17 on the USS Cole in Yemen. See
National Commission on Terrorist Attacks upon the
United States, The 9/11 Commission Report, pp. 60–61,
70, 190 (2004). On September 11, 2001, the enemy
brought the battle to American soil, killing 2,749 at the
Twin Towers in New York City, 184 at the Pentagon in
Washington, D. C., and 40 in Pennsylvania. See id., at
552, n. 9. It has threatened further attacks against our
homeland; one need only walk about buttressed and barri-
caded Washington, or board a plane anywhere in the
country, to know that the threat is a serious one. Our
Armed Forces are now in the field against the enemy, in
Afghanistan and Iraq. Last week, 13 of our countrymen in
arms were killed.
The game of bait-and-switch that today’s opinion plays
upon the Nation’s Commander in Chief will make the war
harder on us. It will almost certainly cause more Ameri-
cans to be killed. That consequence would be tolerable if
necessary to preserve a time-honored legal principle vital
to our constitutional Republic. But it is this Court’s bla-
tant abandonment of such a principle that produces the
decision today. The President relied on our settled prece-
dent in Johnson v. Eisentrager, 339 U. S. 763 (1950), when
he established the prison at Guantanamo Bay for enemy
aliens. Citing that case, the President’s Office of Legal
3 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
Counsel advised him “that the great weight of legal au-
thority indicates that a federal district court could not
properly exercise habeas jurisdiction over an alien de-
tained at [Guantanamo Bay].” Memorandum from Patrick
F. Philbin and John C. Yoo, Deputy Assistant Attorneys
General, Office of Legal Counsel, to William J. Haynes II,
General Counsel, Dept. of Defense (Dec. 28, 2001). Had
the law been otherwise, the military surely would not have
transported prisoners there, but would have kept them in
Afghanistan, transferred them to another of our foreign
military bases, or turned them over to allies for detention.
Those other facilities might well have been worse for the
detainees themselves.
In the long term, then, the Court’s decision today ac-
complishes little, except perhaps to reduce the well-being
of enemy combatants that the Court ostensibly seeks to
protect. In the short term, however, the decision is devas-
tating. At least 30 of those prisoners hitherto released
from Guantanamo Bay have returned to the battlefield.
See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Views
of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn)
(hereinafter Minority Report). Some have been captured
or killed. See ibid.; see also Mintz, Released Detainees
Rejoining the Fight, Washington Post, Oct. 22, 2004, pp.
A1, A12. But others have succeeded in carrying on their
atrocities against innocent civilians. In one case, a de-
tainee released from Guantanamo Bay masterminded the
kidnapping of two Chinese dam workers, one of whom was
later shot to death when used as a human shield against
Pakistani commandoes. See Khan & Lancaster, Paki-
stanis Rescue Hostage; 2nd Dies, Washington Post, Oct.
15, 2004, p. A18. Another former detainee promptly re-
sumed his post as a senior Taliban commander and mur-
dered a United Nations engineer and three Afghan sol-
diers. Mintz, supra. Still another murdered an Afghan
judge. See Minority Report 13. It was reported only last
4 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
month that a released detainee carried out a suicide bomb-
ing against Iraqi soldiers in Mosul, Iraq. See White, Ex-
Guantanamo Detainee Joined Iraq Suicide Attack, Wash-
ington Post, May 8, 2008, p. A18.
These, mind you, were detainees whom the military had
concluded were not enemy combatants. Their return to
the kill illustrates the incredible difficulty of assessing
who is and who is not an enemy combatant in a foreign
theater of operations where the environment does not lend
itself to rigorous evidence collection. Astoundingly, the
Court today raises the bar, requiring military officials to
appear before civilian courts and defend their decisions
under procedural and evidentiary rules that go beyond
what Congress has specified. As THE CHIEF JUSTICE’s
dissent makes clear, we have no idea what those proce-
dural and evidentiary rules are, but they will be deter-
mined by civil courts and (in the Court’s contemplation at
least) will be more detainee-friendly than those now ap-
plied, since otherwise there would be no reason to hold the
congressionally prescribed procedures unconstitutional. If
they impose a higher standard of proof (from foreign bat-
tlefields) than the current procedures require, the number
of the enemy returned to combat will obviously increase.
But even when the military has evidence that it can
bring forward, it is often foolhardy to release that evidence
to the attorneys representing our enemies. And one esca-
lation of procedures that the Court is clear about is afford-
ing the detainees increased access to witnesses (perhaps
troops serving in Afghanistan?) and to classified informa-
tion. See ante, at 54–55. During the 1995 prosecution of
Omar Abdel Rahman, federal prosecutors gave the names
of 200 unindicted co-conspirators to the “Blind Sheik’s”
defense lawyers; that information was in the hands of
Osama Bin Laden within two weeks. See Minority Report
14–15. In another case, trial testimony revealed to the
enemy that the United States had been monitoring their
5 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
cellular network, whereupon they promptly stopped using
it, enabling more of them to evade capture and continue
their atrocities. See id., at 15.
And today it is not just the military that the Court
elbows aside. A mere two Terms ago in Hamdan v. Rums-
feld, 548 U. S. 557 (2006), when the Court held (quite
amazingly) that the Detainee Treatment Act of 2005 had
not stripped habeas jurisdiction over Guantanamo peti-
tioners’ claims, four Members of today’s five-Justice major-
ity joined an opinion saying the following:
“Nothing prevents the President from returning to
Congress to seek the authority [for trial by military
commission] he believes necessary.
“Where, as here, no emergency prevents consulta-
tion with Congress, judicial insistence upon that con-
sultation does not weaken our Nation’s ability to deal
with danger. To the contrary, that insistence
strengthens the Nation’s ability to determine—
through democratic means—how best to do so. The
Constitution places its faith in those democratic
means.” Id., at 636 (BREYER, J., concurring).1
Turns out they were just kidding. For in response, Con-
gress, at the President’s request, quickly enacted the
Military Commissions Act, emphatically reasserting that
it did not want these prisoners filing habeas petitions. It
is therefore clear that Congress and the Executive—both
political branches—have determined that limiting the role
——————
1
Even today, the Court cannot resist striking a pose of faux deference
to Congress and the President. Citing the above quoted passage, the
Court says: “The political branches, consistent with their independent
obligations to interpret and uphold the Constitution, can engage in a
genuine debate about how best to preserve constitutional values while
protecting the Nation from terrorism.” Ante, at 69. Indeed. What the
Court apparently means is that the political branches can debate, after
which the Third Branch will decide.
6 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
of civilian courts in adjudicating whether prisoners cap-
tured abroad are properly detained is important to success
in the war that some 190,000 of our men and women are
now fighting. As the Solicitor General argued, “the Mili-
tary Commissions Act and the Detainee Treatment Act . . .
represent an effort by the political branches to strike an
appropriate balance between the need to preserve liberty
and the need to accommodate the weighty and sensitive
governmental interests in ensuring that those who have in
fact fought with the enemy during a war do not return to
battle against the United States.” Brief for Respondents
10–11 (internal quotation marks omitted).
But it does not matter. The Court today decrees that no
good reason to accept the judgment of the other two
branches is “apparent.” Ante, at 40. “The Government,” it
declares, “presents no credible arguments that the mili-
tary mission at Guantanamo would be compromised if
habeas corpus courts had jurisdiction to hear the detain-
ees’ claims.” Id., at 39. What competence does the Court
have to second-guess the judgment of Congress and the
President on such a point? None whatever. But the Court
blunders in nonetheless. Henceforth, as today’s opinion
makes unnervingly clear, how to handle enemy prisoners
in this war will ultimately lie with the branch that knows
least about the national security concerns that the subject
entails.
II
A
The Suspension Clause of the Constitution provides:
“The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it.” Art. I, §9, cl. 2. As a
court of law operating under a written Constitution, our
role is to determine whether there is a conflict between
that Clause and the Military Commissions Act. A conflict
7 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
arises only if the Suspension Clause preserves the privi-
lege of the writ for aliens held by the United States mili-
tary as enemy combatants at the base in Guantanamo
Bay, located within the sovereign territory of Cuba.
We have frequently stated that we owe great deference
to Congress’s view that a law it has passed is constitu-
tional. See, e.g., Department of Labor v. Triplett, 494 U. S.
715, 721 (1990); United States v. National Dairy Products
Corp., 372 U. S. 29, 32 (1963); see also American Commu-
nications Assn. v. Douds, 339 U. S. 382, 435 (1950) (Jack-
son, J., concurring in part and dissenting in part). That is
especially so in the area of foreign and military affairs;
“perhaps in no other area has the Court accorded Congress
greater deference.” Rostker v. Goldberg, 453 U. S. 57, 64–
65 (1981). Indeed, we accord great deference even when
the President acts alone in this area. See Department of
Navy v. Egan, 484 U. S. 518, 529–530 (1988); Regan v.
Wald, 468 U. S. 222, 243 (1984).
In light of those principles of deference, the Court’s
conclusion that “the common law [does not] yiel[d] a defi-
nite answer to the questions before us,” ante, at 22, leaves
it no choice but to affirm the Court of Appeals. The writ
as preserved in the Constitution could not possibly extend
farther than the common law provided when that Clause
was written. See Part III, infra. The Court admits that it
cannot determine whether the writ historically extended
to aliens held abroad, and it concedes (necessarily) that
Guantanamo Bay lies outside the sovereign territory of
the United States. See ante, at 22–23; Rasul v. Bush, 542
U. S. 466, 500–501 (2004) (SCALIA, J., dissenting). To-
gether, these two concessions establish that it is (in the
Court’s view) perfectly ambiguous whether the common-
law writ would have provided a remedy for these petition-
ers. If that is so, the Court has no basis to strike down the
Military Commissions Act, and must leave undisturbed
8 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
the considered judgment of the coequal branches.2
How, then, does the Court weave a clear constitutional
prohibition out of pure interpretive equipoise? The Court
resorts to “fundamental separation-of-powers principles”
to interpret the Suspension Clause. Ante, at 25. Accord-
ing to the Court, because “the writ of habeas corpus is
itself an indispensable mechanism for monitoring the
separation of powers,” the test of its extraterritorial reach
“must not be subject to manipulation by those whose
power it is designed to restrain.” Ante, at 36.
That approach distorts the nature of the separation of
powers and its role in the constitutional structure. The
“fundamental separation-of-powers principles” that the
Constitution embodies are to be derived not from some
judicially imagined matrix, but from the sum total of the
individual separation-of-powers provisions that the Con-
stitution sets forth. Only by considering them one-by-one
does the full shape of the Constitution’s separation-of-
powers principles emerge. It is nonsensical to interpret
those provisions themselves in light of some general
“separation-of-powers principles” dreamed up by the
Court. Rather, they must be interpreted to mean what
they were understood to mean when the people ratified
them. And if the understood scope of the writ of habeas
corpus was “designed to restrain” (as the Court says) the
actions of the Executive, the understood limits upon that
——————
2
The opinion seeks to avoid this straightforward conclusion by saying
that the Court has been “careful not to foreclose the possibility that the
protections of the Suspension Clause have expanded along with post-
1789 developments that define the present scope of the writ.” Ante, at
15–16 (citing INS v. St. Cyr, 533 U. S. 289 300–301 (2001)). But not
foreclosing the possibility that they have expanded is not the same as
demonstrating (or at least holding without demonstration, which seems
to suffice for today’s majority) that they have expanded. The Court
must either hold that the Suspension Clause has “expanded” in its
application to aliens abroad, or acknowledge that it has no basis to set
aside the actions of Congress and the President. It does neither.
9 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
scope were (as the Court seems not to grasp) just as much
“designed to restrain” the incursions of the Third Branch.
“Manipulation” of the territorial reach of the writ by the
Judiciary poses just as much a threat to the proper sepa-
ration of powers as “manipulation” by the Executive. As I
will show below, manipulation is what is afoot here. The
understood limits upon the writ deny our jurisdiction over
the habeas petitions brought by these enemy aliens, and
entrust the President with the crucial wartime determina-
tions about their status and continued confinement.
B
The Court purports to derive from our precedents a
“functional” test for the extraterritorial reach of the writ,
ante, at 34, which shows that the Military Commissions
Act unconstitutionally restricts the scope of habeas. That
is remarkable because the most pertinent of those prece-
dents, Johnson v. Eisentrager, 339 U. S. 763, conclusively
establishes the opposite. There we were confronted with
the claims of 21 Germans held at Landsberg Prison, an
American military facility located in the American Zone of
occupation in postwar Germany. They had been captured
in China, and an American military commission sitting
there had convicted them of war crimes—collaborating
with the Japanese after Germany’s surrender. Id., at 765–
766. Like the petitioners here, the Germans claimed that
their detentions violated the Constitution and interna-
tional law, and sought a writ of habeas corpus. Writing
for the Court, Justice Jackson held that American courts
lacked habeas jurisdiction:
“We are cited to [sic] no instance where a court, in
this or any other country where the writ is known, has
issued it on behalf of an alien enemy who, at no rele-
vant time and in no stage of his captivity, has been
within its territorial jurisdiction. Nothing in the text
of the Constitution extends such a right, nor does any-
10 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
thing in our statutes.” Id., at 768.
Justice Jackson then elaborated on the historical scope
of the writ:
“The alien, to whom the United States has been tra-
ditionally hospitable, has been accorded a generous
and ascending scale of rights as he increases his iden-
tity with our society. . . .
“But, in extending constitutional protections beyond
the citizenry, the Court has been at pains to point out
that it was the alien’s presence within its territorial
jurisdiction that gave the Judiciary power to act.” Id.,
at 770–771.
Lest there be any doubt about the primacy of territorial
sovereignty in determining the jurisdiction of a habeas
court over an alien, Justice Jackson distinguished two
cases in which aliens had been permitted to seek habeas
relief, on the ground that the prisoners in those cases were
in custody within the sovereign territory of the United
States. Id., at 779–780 (discussing Ex parte Quirin, 317
U. S. 1 (1942), and In re Yamashita, 327 U. S. 1 (1946)).
“By reason of our sovereignty at that time over [the Phil-
ippines],” Jackson wrote, “Yamashita stood much as did
Quirin before American courts.” 339 U. S., at 780.
Eisentrager thus held—held beyond any doubt—that the
Constitution does not ensure habeas for aliens held by the
United States in areas over which our Government is not
sovereign.3
——————
3
In its failed attempt to distinguish Eisentrager, the Court comes up
with the notion that “de jure sovereignty” is simply an additional factor
that can be added to (presumably) “de facto sovereignty” (i.e., practical
control) to determine the availability of habeas for aliens, but that it is
not a necessary factor, whereas de facto sovereignty is. It is perhaps in
this de facto sense, the Court speculates, that Eisentrager found “sover-
eignty” lacking. See ante, at 23–25. If that were so, one would have
expected Eisentrager to explain in some detail why the United States
11 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
The Court would have us believe that Eisentrager rested
on “[p]ractical considerations,” such as the “difficulties of
ordering the Government to produce the prisoners in a
habeas corpus proceeding.” Ante, at 32. Formal sover-
eignty, says the Court, is merely one consideration “that
bears upon which constitutional guarantees apply” in a
given location. Ante, at 34. This is a sheer rewriting of
the case. Eisentrager mentioned practical concerns, to be
sure—but not for the purpose of determining under what
circumstances American courts could issue writs of habeas
corpus for aliens abroad. It cited them to support its
holding that the Constitution does not empower courts to
issue writs of habeas corpus to aliens abroad in any cir-
cumstances. As Justice Black accurately said in dissent,
“the Court’s opinion inescapably denies courts power to
afford the least bit of protection for any alien who is sub-
ject to our occupation government abroad, even if he is
neither enemy nor belligerent and even after peace is
officially declared.” 339 U. S., at 796.
The Court also tries to change Eisentrager into a “func-
——————
did not have practical control over the American zone of occupation. It
did not (and probably could not). Of course this novel de facto-de jure
approach does not explain why the writ never issued to Scotland, which
was assuredly within the de facto control of the English crown. See
infra, at 22.
To support its holding that de facto sovereignty is relevant to the
reach of habeas corpus, the Court cites our decision in Fleming v. Page,
9 How. 603 (1850), a case about the application of a customs statute to
a foreign port occupied by U. S. forces. See ante, at 24. The case used
the phrase “subject to the sovereignty and dominion of the United
States” to refer to the United States’ practical control over a “foreign
country.” 9 How., at 614. But Fleming went on to explain that because
the port remained part of the “enemy’s country,” even though under
U. S. military occupation, “its subjugation did not compel the United
States, while they held it, to regard it as part of their dominions, nor to
give to it any form of civil government, nor to extend to it our laws.”
Id., at 618. If Fleming is relevant to these cases at all, it undermines
the Court’s holding.
12 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
tional” test by quoting a paragraph that lists the charac-
teristics of the German petitioners:
“To support [the] assumption [of a constitutional right
to habeas corpus] we must hold that a prisoner of our
military authorities is constitutionally entitled to the
writ, even though he (a) is an enemy alien; (b) has
never been or resided in the United States; (c) was
captured outside of our territory and there held in
military custody as a prisoner of war; (d) was tried
and convicted by a Military Commission sitting out-
side the United States; (e) for offenses against laws of
war committed outside the United States; (f) and is at
all times imprisoned outside the United States.” Id.,
at 777 (quoted in part, ante, at 36).
But that paragraph is introduced by a sentence stating
that “[t]he foregoing demonstrates how much further we
must go if we are to invest these enemy aliens, resident,
captured and imprisoned abroad, with standing to demand
access to our courts.” 339 U. S., at 777 (emphasis added).
How much further than what? Further than the rule set
forth in the prior section of the opinion, which said that “in
extending constitutional protections beyond the citizenry,
the Court has been at pains to point out that it was the
alien’s presence within its territorial jurisdiction that gave
the Judiciary power to act.” Id., at 771. In other words,
the characteristics of the German prisoners were set forth,
not in application of some “functional” test, but to show
that the case before the Court represented an a fortiori
application of the ordinary rule. That is reaffirmed by the
sentences that immediately follow the listing of the Ger-
mans’ characteristics:
“We have pointed out that the privilege of litigation
has been extended to aliens, whether friendly or en-
emy, only because permitting their presence in the
country implied protection. No such basis can be in-
13 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
voked here, for these prisoners at no relevant time
were within any territory over which the United
States is sovereign, and the scenes of their offense,
their capture, their trial and their punishment were
all beyond the territorial jurisdiction of any court of
the United States.” Id., at 777–778.
Eisentrager nowhere mentions a “functional” test, and the
notion that it is based upon such a principle is patently
false.4
The Court also reasons that Eisentrager must be read as
a “functional” opinion because of our prior decisions in the
Insular Cases. See ante, at 26–29. It cites our statement
in Balzac v. Porto Rico, 258 U. S. 298, 312 (1922), that
“‘the real issue in the Insular Cases was not whether the
Constitution extended to the Philippines or Porto Rico
when we went there, but which of its provisions were
——————
4
JUSTICE SOUTER’s concurrence relies on our decision four Terms ago
in Rasul v. Bush, 542 U. S. 466 (2004), where the Court interpreted the
habeas statute to extend to aliens held at Guantanamo Bay. He thinks
that “no one who reads the Court’s opinion in Rasul could seriously
doubt that the jurisdictional question must be answered the same way
in purely constitutional cases.” Ante, at 1–2. But Rasul was devoted
primarily to an explanation of why Eisentrager’s statutory holding no
longer controlled given our subsequent decision in Braden v. 30th
Judicial Circuit Court of Ky., 410 U. S. 484 (1973). See Rasul, supra, at
475–479. And the opinion of the Court today—which JUSTICE SOUTER
joins—expressly rejects the historical evidence cited in Rasul to support
its conclusion about the reach of habeas corpus. Compare id., at 481–
482, with ante, at 18. Moreover, even if one were to accept as true what
JUSTICE SOUTER calls Rasul’s “well-considered” dictum, that does not
explain why Eisentrager’s constitutional holding must be overruled or
how it can be distinguished. (After all, Rasul distinguished Eisen-
trager’s statutory holding on a ground inapplicable to its constitutional
holding.) In other words, even if the Court were to conclude that
Eisentrager’s rule was incorrect as an original matter, the Court would
have to explain the justification for departing from that precedent. It
therefore cannot possibly be true that Rasul controls this case, as
JUSTICE SOUTER suggests.
14 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
applicable by way of limitation upon the exercise of execu-
tive and legislative power in dealing with new conditions
and requirements.’” Ante, at 28. But the Court conven-
iently omits Balzac’s predicate to that statement: “The
Constitution of the United States is in force in Porto Rico
as it is wherever and whenever the sovereign power of that
government is exerted.” 258 U. S., at 312 (emphasis
added). The Insular Cases all concerned territories ac-
quired by Congress under its Article IV authority and
indisputably part of the sovereign territory of the United
States. See United States v. Verdugo-Urquidez, 494 U. S.
259, 268 (1990); Reid v. Covert, 354 U. S. 1, 13 (1957)
(plurality opinion of Black, J.). None of the Insular Cases
stands for the proposition that aliens located outside U. S.
sovereign territory have constitutional rights, and Eisen-
trager held just the opposite with respect to habeas corpus.
As I have said, Eisentrager distinguished Yamashita on
the ground of “our sovereignty [over the Philippines],” 339
U. S., at 780.
The Court also relies on the “[p]ractical considerations”
that influenced our decision in Reid v. Covert, supra. See
ante, at 29–32. But all the Justices in the majority except
Justice Frankfurter limited their analysis to the rights of
citizens abroad. See Reid, supra, at 5–6 (plurality opinion
of Black, J.); id., at 74–75 (Harlan, J., concurring in re-
sult). (Frankfurter limited his analysis to the even nar-
rower class of civilian dependents of American military
personnel abroad, see id., at 45 (opinion concurring in
result).) In trying to wring some kind of support out of
Reid for today’s novel holding, the Court resorts to a chain
of logic that does not hold. The members of the Reid
majority, the Court says, were divided over whether In re
Ross, 140 U. S. 453 (1891), which had (according to the
Court) held that under certain circumstances American
citizens abroad do not have indictment and jury-trial
rights, should be overruled. In the Court’s view, the Reid
15 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
plurality would have overruled Ross, but Justices Frank-
furter and Harlan preferred to distinguish it. The upshot:
“If citizenship had been the only relevant factor in the
case, it would have been necessary for the Court to over-
turn Ross, something Justices Harlan and Frankfurter
were unwilling to do.” Ante, at 32. What, exactly, is this
point supposed to prove? To say that “practical considera-
tions” determine the precise content of the constitutional
protections American citizens enjoy when they are abroad
is quite different from saying that “practical considera-
tions” determine whether aliens abroad enjoy any consti-
tutional protections whatever, including habeas. In other
words, merely because citizenship is not a sufficient factor
to extend constitutional rights abroad does not mean that
it is not a necessary one.
The Court tries to reconcile Eisentrager with its holding
today by pointing out that in postwar Germany, the
United States was “answerable to its Allies” and did not
“pla[n] a long-term occupation.” Ante, at 38, 39. Those
factors were not mentioned in Eisentrager. Worse still, it
is impossible to see how they relate to the Court’s asserted
purpose in creating this “functional” test—namely, to
ensure a judicial inquiry into detention and prevent the
political branches from acting with impunity. Can it
possibly be that the Court trusts the political branches
more when they are beholden to foreign powers than when
they act alone?
After transforming the a fortiori elements discussed
above into a “functional” test, the Court is still left with
the difficulty that most of those elements exist here as
well with regard to all the detainees. To make the appli-
cation of the newly crafted “functional” test produce a
different result in the present cases, the Court must rely
upon factors (d) and (e): The Germans had been tried by a
military commission for violations of the laws of war; the
present petitioners, by contrast, have been tried by a
16 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
Combatant Status Review Tribunal (CSRT) whose proce-
dural protections, according to the Court’s ipse dixit, “fall
well short of the procedures and adversarial mechanisms
that would eliminate the need for habeas corpus review.”
Ante, at 37. But no one looking for “functional” equiva-
lents would put Eisentrager and the present cases in the
same category, much less place the present cases in a
preferred category. The difference between them cries out
for lesser procedures in the present cases. The prisoners
in Eisentrager were prosecuted for crimes after the cessa-
tion of hostilities; the prisoners here are enemy combat-
ants detained during an ongoing conflict. See Hamdi v.
Rumsfeld, 542 U. S. 507, 538 (2004) (plurality opinion)
(suggesting, as an adequate substitute for habeas corpus,
the use of a tribunal akin to a CSRT to authorize the
detention of American citizens as enemy combatants dur-
ing the course of the present conflict).
The category of prisoner comparable to these detainees
are not the Eisentrager criminal defendants, but the more
than 400,000 prisoners of war detained in the United
States alone during World War II. Not a single one was
accorded the right to have his detention validated by a
habeas corpus action in federal court—and that despite
the fact that they were present on U. S. soil. See Bradley,
The Military Commissions Act, Habeas Corpus, and the
Geneva Conventions, 101 Am. J. Int’l L. 322, 338 (2007).
The Court’s analysis produces a crazy result: Whereas
those convicted and sentenced to death for war crimes are
without judicial remedy, all enemy combatants detained
during a war, at least insofar as they are confined in an
area away from the battlefield over which the United
States exercises “absolute and indefinite” control, may
seek a writ of habeas corpus in federal court. And, as an
even more bizarre implication from the Court’s reasoning,
those prisoners whom the military plans to try by full-
dress Commission at a future date may file habeas peti-
17 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
tions and secure release before their trials take place.
There is simply no support for the Court’s assertion that
constitutional rights extend to aliens held outside U. S.
sovereign territory, see Verdugo-Urquidez, 494 U. S., at
271, and Eisentrager could not be clearer that the privilege
of habeas corpus does not extend to aliens abroad. By
blatantly distorting Eisentrager, the Court avoids the
difficulty of explaining why it should be overruled. See
Planned Parenthood of Southeastern Pa. v. Casey, 505
U. S. 833, 854–855 (1992) (identifying stare decisis fac-
tors). The rule that aliens abroad are not constitutionally
entitled to habeas corpus has not proved unworkable in
practice; if anything, it is the Court’s “functional” test that
does not (and never will) provide clear guidance for the
future. Eisentrager forms a coherent whole with the ac-
cepted proposition that aliens abroad have no substantive
rights under our Constitution. Since it was announced, no
relevant factual premises have changed. It has engen-
dered considerable reliance on the part of our military.
And, as the Court acknowledges, text and history do not
clearly compel a contrary ruling. It is a sad day for the
rule of law when such an important constitutional pre-
cedent is discarded without an apologia, much less an
apology.
C
What drives today’s decision is neither the meaning of
the Suspension Clause, nor the principles of our prece-
dents, but rather an inflated notion of judicial supremacy.
The Court says that if the extraterritorial applicability of
the Suspension Clause turned on formal notions of sover-
eignty, “it would be possible for the political branches to
govern without legal constraint” in areas beyond the
sovereign territory of the United States. Ante, at 35. That
cannot be, the Court says, because it is the duty of this
Court to say what the law is. Id., at 35–36. It would be
18 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
difficult to imagine a more question-begging analysis.
“The very foundation of the power of the federal courts to
declare Acts of Congress unconstitutional lies in the power
and duty of those courts to decide cases and controversies
properly before them.” United States v. Raines, 362 U. S.
17, 20–21 (1960) (citing Marbury v. Madison, 1 Cranch
137 (1803); emphasis added). Our power “to say what the
law is” is circumscribed by the limits of our statutorily and
constitutionally conferred jurisdiction. See Lujan v. De-
fenders of Wildlife, 504 U. S. 555, 573–578 (1992). And
that is precisely the question in these cases: whether the
Constitution confers habeas jurisdiction on federal courts
to decide petitioners’ claims. It is both irrational and
arrogant to say that the answer must be yes, because
otherwise we would not be supreme.
But so long as there are some places to which habeas
does not run—so long as the Court’s new “functional” test
will not be satisfied in every case—then there will be cir-
cumstances in which “it would be possible for the political
branches to govern without legal constraint.” Or, to put it
more impartially, areas in which the legal determinations
of the other branches will be (shudder!) supreme. In other
words, judicial supremacy is not really assured by the
constitutional rule that the Court creates. The gap be-
tween rationale and rule leads me to conclude that the
Court’s ultimate, unexpressed goal is to preserve the
power to review the confinement of enemy prisoners held
by the Executive anywhere in the world. The “functional”
test usefully evades the precedential landmine of Eisen-
trager but is so inherently subjective that it clears a wide
path for the Court to traverse in the years to come.
III
Putting aside the conclusive precedent of Eisentrager, it
is clear that the original understanding of the Suspension
Clause was that habeas corpus was not available to aliens
19 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
abroad, as Judge Randolph’s thorough opinion for the
court below detailed. See 476 F. 3d 981, 988–990 (CADC
2007).
The Suspension Clause reads: “The Privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may
require it.” U. S. Const., Art. I, §9, cl. 2. The proper
course of constitutional interpretation is to give the text
the meaning it was understood to have at the time of its
adoption by the people. See, e.g., Crawford v. Washington,
541 U. S. 36, 54 (2004). That course is especially de-
manded when (as here) the Constitution limits the power
of Congress to infringe upon a pre-existing common-law
right. The nature of the writ of habeas corpus that cannot
be suspended must be defined by the common-law writ
that was available at the time of the founding. See
McNally v. Hill, 293 U. S. 131, 135–136 (1934); see also
INS v. St. Cyr, 533 U. S. 289, 342 (2001) (SCALIA, J., dis-
senting); D’Oench, Duhme & Co. v. FDIC, 315 U. S. 447,
471, n. 9 (1942) (Jackson, J., concurring).
It is entirely clear that, at English common law, the writ
of habeas corpus did not extend beyond the sovereign
territory of the Crown. To be sure, the writ had an “ex-
traordinary territorial ambit,” because it was a so-called
“prerogative writ,” which, unlike other writs, could extend
beyond the realm of England to other places where the
Crown was sovereign. R. Sharpe, The Law of Habeas
Corpus 188 (2d ed. 1989) (hereinafter Sharpe); see also
Note on the Power of the English Courts to Issue the Writ
of Habeas to Places Within the Dominions of the Crown,
But Out of England, and On the Position of Scotland in
Relation to that Power, 8 Jurid. Rev. 157 (1896) (hereinaf-
ter Note on Habeas); King v. Cowle, 2 Burr. 834, 855–856,
97 Eng. Rep. 587, 599 (K. B. 1759).
But prerogative writs could not issue to foreign coun-
tries, even for British subjects; they were confined to the
20 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
King’s dominions—those areas over which the Crown was
sovereign. See Sharpe 188; 2 R. Chambers, A Course of
Lectures on the English Law 1767–1773, pp. 7–8 (Curley
ed. 1986); 3 W. Blackstone, Commentaries on the Laws of
England 131 (1768) (hereinafter Blackstone). Thus, the
writ has never extended to Scotland, which, although
united to England when James I succeeded to the English
throne in 1603, was considered a foreign dominion under a
different Crown—that of the King of Scotland. Sharpe
191; Note on Habeas 158.5 That is why Lord Mansfield
wrote that “[t]o foreign dominions, which belong to a
prince who succeeds to the throne of England, this Court
has no power to send any writ of any kind. We cannot
send a habeas corpus to Scotland . . . .” Cowle, supra, at
856, 97 Eng. Rep., at 599–600.
The common-law writ was codified by the Habeas Cor-
pus Act of 1679, which “stood alongside Magna Charta and
the English Bill of Rights of 1689 as a towering common
law lighthouse of liberty—a beacon by which framing
lawyers in America consciously steered their course.”
Amar, Sixth Amendment First Principles, 84 Geo. L. J.
641, 663 (1996). The writ was established in the Colonies
beginning in the 1690’s and at least one colony adopted
the 1679 Act almost verbatim. See Dept. of Political Sci-
ence, Okla. State Univ., Research Reports, No. 1, R.
Walker, The American Reception of the Writ of Liberty
12–16 (1961). Section XI of the Act stated where the writ
could run. It “may be directed and run into any county
palatine, the cinque-ports, or other privileged places
within the kingdom of England, dominion of Wales, or
town of Berwick upon Tweed, and the islands of Jersey or
Guernsey.” 31 Car. 2, ch. 2. The cinque-ports and county
palatine were so-called “exempt jurisdictions”—franchises
——————
5
My dissent in Rasul v. Bush, 542 U. S. 466, 503 (2004), mistakenly
included Scotland among the places to which the writ could run.
21 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
granted by the Crown in which local authorities would
manage municipal affairs, including the court system, but
over which the Crown maintained ultimate sovereignty.
See 3 Blackstone 78–79. The other places listed—Wales,
Berwick-upon-Tweed, Jersey, and Guernsey—were terri-
tories of the Crown even though not part England proper.
See Cowle, supra, at 853–854, 97 Eng. Rep., at 598 (Wales
and Berwick-upon-Tweed); 1 Blackstone 104 (Jersey and
Guernsey); Sharpe 192 (same).
The Act did not extend the writ elsewhere, even though
the existence of other places to which British prisoners
could be sent was recognized by the Act. The possibility of
evading judicial review through such spiriting-away was
eliminated, not by expanding the writ abroad, but by
forbidding (in Article XII of the Act) the shipment of pris-
oners to places where the writ did not run or where its
execution would be difficult. See 31 Car. 2, ch. 2; see
generally Nutting, The Most Wholesome Law—The Ha-
beas Corpus Act of 1679, 65 Am. Hist. Rev. 527 (1960).
The Habeas Corpus Act, then, confirms the consensus
view of scholars and jurists that the writ did not run
outside the sovereign territory of the Crown. The Court
says that the idea that “jurisdiction followed the King’s
officers” is an equally credible view. Ante, at 16. It is not
credible at all. The only support the Court cites for it is a
page in Boumediene’s brief, which in turn cites this
Court’s dicta in Rasul, 542 U. S., at 482, mischaracterizing
Lord Mansfield’s statement that the writ ran to any place
that was “under the subjection of the Crown,” Cowle,
supra, at 856, 97 Eng. Rep., at 599. It is clear that Lord
Mansfield was saying that the writ extended outside the
realm of England proper, not outside the sovereign terri-
tory of the Crown.6
——————
6
The dicta in Rasul also cited Ex parte Mwenya, [1960] 1 Q. B. 241,
(C. A.), but as I explained in dissent, “[e]ach judge [in Mwenya] made
22 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
The Court dismisses the example of Scotland on the
grounds that Scotland had its own judicial system and
that the writ could not, as a practical matter, have been
enforced there. Ante, at 20. Those explanations are to-
tally unpersuasive. The existence of a separate court
system was never a basis for denying the power of a court
to issue the writ. See 9 W. Holdsworth, A History of Eng-
lish Law 124 (3d ed. 1944) (citing Ex parte Anderson, 3 El.
and El. 487 (1861)). And as for logistical problems, the
same difficulties were present for places like the Channel
Islands, where the writ did run. The Court attempts to
draw an analogy between the prudential limitations on
issuing the writ to such remote areas within the sovereign
territory of the Crown and the jurisdictional prohibition on
issuing the writ to Scotland. See ante, at 19–20. But the
very authority that the Court cites, Lord Mansfield, ex-
pressly distinguished between these two concepts, stating
that English courts had the “power” to send the writ to
places within the Crown’s sovereignty, the “only question”
being the “propriety,” while they had “no power to send
any writ of any kind” to Scotland and other “foreign do-
minions.” Cowle, supra, at 856, 97 Eng. Rep., at 599–600.
The writ did not run to Scotland because, even after the
Union, “Scotland remained a foreign dominion of the
prince who succeeded to the English throne,” and “union
did not extend the prerogative of the English crown to
Scotland.” Sharpe 191; see also Sir Matthew Hale’s The
Prerogatives of the King 19 (D. Yale ed. 1976).7
——————
clear that the detainee’s status as a subject was material to the resolu-
tion of the case,” 542 U. S., at 504.
7
The Court also argues that the fact that the writ could run to Ire-
land, even though it was ruled under a “separate” crown, shows that
formal sovereignty was not the touchstone of habeas jurisdiction. Ante,
at 21. The passage from Blackstone that the Court cites, however,
describes Ireland as “a dependent, subordinate kingdom” that was part
of the “king’s dominions.” 1 Blackstone 98, 100 (internal quotation
23 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
In sum, all available historical evidence points to the
conclusion that the writ would not have been available at
common law for aliens captured and held outside the
sovereign territory of the Crown. Despite three opening
briefs, three reply briefs, and support from a legion of
amici, petitioners have failed to identify a single case in
the history of Anglo-American law that supports their
claim to jurisdiction. The Court finds it significant that
there is no recorded case denying jurisdiction to such
prisoners either. See ante, at 21–22. But a case standing
for the remarkable proposition that the writ could issue to
a foreign land would surely have been reported, whereas a
case denying such a writ for lack of jurisdiction would
likely not. At a minimum, the absence of a reported case
either way leaves unrefuted the voluminous commentary
stating that habeas was confined to the dominions of the
Crown.
What history teaches is confirmed by the nature of the
limitations that the Constitution places upon suspension
of the common-law writ. It can be suspended only “in
Cases of Rebellion or Invasion.” Art. I, §9, cl. 2. The latter
case (invasion) is plainly limited to the territory of the
United States; and while it is conceivable that a rebellion
could be mounted by American citizens abroad, surely the
overwhelming majority of its occurrences would be domes-
tic. If the extraterritorial scope of habeas turned on flexi-
ble, “functional” considerations, as the Court holds, why
would the Constitution limit its suspension almost en-
tirely to instances of domestic crisis? Surely there is an
even greater justification for suspension in foreign lands
where the United States might hold prisoners of war
——————
marks omitted). And Lord Mansfield’s opinion in Cowle plainly under-
stood Ireland to be “a dominion of the Crown of England,” in contrast to
the “foreign dominio[n]” of Scotland, and thought that distinction
dispositive of the question of habeas jurisdiction. Cowle, supra, at 856,
97 Eng. Rep., at 599–600.
24 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
during an ongoing conflict. And correspondingly, there is
less threat to liberty when the Government suspends the
writ’s (supposed) application in foreign lands, where even
on the most extreme view prisoners are entitled to fewer
constitutional rights. It makes no sense, therefore, for the
Constitution generally to forbid suspension of the writ
abroad if indeed the writ has application there.
It may be objected that the foregoing analysis proves too
much, since this Court has already suggested that the writ
of habeas corpus does run abroad for the benefit of United
States citizens. “[T]he position that United States citizens
throughout the world may be entitled to habeas corpus
rights . . . is precisely the position that this Court adopted
in Eisentrager, see 339 U. S., at 769–770, even while
holding that aliens abroad did not have habeas corpus
rights.” Rasul, 542 U. S., at 501, 502 (SCALIA, J., dissent-
ing) (emphasis deleted). The reason for that divergence is
not difficult to discern. The common-law writ, as received
into the law of the new constitutional Republic, took on
such changes as were demanded by a system in which rule
is derived from the consent of the governed, and in which
citizens (not “subjects”) are afforded defined protections
against the Government. As Justice Story wrote for the
Court,
“The common law of England is not to be taken in all
respects to be that of America. Our ancestors brought
with them its general principles, and claimed it as
their birthright; but they brought with them and
adopted only that portion which was applicable to
their situation.” Van Ness v. Pacard, 2 Pet. 137, 144
(1829).
See also Hall, The Common Law: An Account of its Recep-
tion in the United States, 4 Vand. L. Rev. 791 (1951). It
accords with that principle to say, as the plurality opinion
said in Reid: “When the Government reaches out to punish
25 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
a citizen who is abroad, the shield which the Bill of Rights
and other parts of the Constitution provide to protect his
life and liberty should not be stripped away just because
he happens to be in another land.” 354 U. S., at 6; see also
Verdugo-Urquidez, 494 U. S., at 269–270. On that analy-
sis, “[t]he distinction between citizens and aliens follows
from the undoubted proposition that the Constitution does
not create, nor do general principles of law create, any
juridical relation between our country and some unde-
fined, limitless class of noncitizens who are beyond our
territory.” Id., at 275 (KENNEDY, J., concurring).
In sum, because I conclude that the text and history of
the Suspension Clause provide no basis for our jurisdic-
tion, I would affirm the Court of Appeals even if Eisen-
trager did not govern these cases.
* * *
Today the Court warps our Constitution in a way that
goes beyond the narrow issue of the reach of the Suspen-
sion Clause, invoking judicially brainstormed separation-
of-powers principles to establish a manipulable “func-
tional” test for the extraterritorial reach of habeas corpus
(and, no doubt, for the extraterritorial reach of other
constitutional protections as well). It blatantly misde-
scribes important precedents, most conspicuously Justice
Jackson’s opinion for the Court in Johnson v. Eisentrager.
It breaks a chain of precedent as old as the common law
that prohibits judicial inquiry into detentions of aliens
abroad absent statutory authorization. And, most tragi-
cally, it sets our military commanders the impossible task
of proving to a civilian court, under whatever standards
this Court devises in the future, that evidence supports
the confinement of each and every enemy prisoner.
The Nation will live to regret what the Court has done
today. I dissent.
PRESIDENT LOSES ANOTHER SUPREME COURT DECISION-ENOUGH ALREADY!!!!!
1 (Slip Opinion) OCTOBER TERM, 2007
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BOUMEDIENE ET AL. v. BUSH, PRESIDENT OF THE
UNITED STATES, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 06–1195. Argued December 5, 2007—Decided June 12, 2008*
In the Authorization for Use of Military Force (AUMF), Congress em-
powered the President “to use all necessary and appropriate force
against those . . . he determines planned, authorized, committed, or
aided the terrorist attacks . . . on September 11, 2001.” In Hamdi v.
Rumsfeld, 542 U. S. 507, 518, 588–589, five Justices recognized that
detaining individuals captured while fighting against the United
States in Afghanistan for the duration of that conflict was a funda-
mental and accepted incident to war. Thereafter, the Defense De-
partment established Combatant Status Review Tribunals (CSRTs)
to determine whether individuals detained at the U. S. Naval Station
at Guantanamo Bay, Cuba, were “enemy combatants.”
Petitioners are aliens detained at Guantanamo after being cap-
tured in Afghanistan or elsewhere abroad and designated enemy
combatants by CSRTs. Denying membership in the al Qaeda terror-
ist network that carried out the September 11 attacks and the Tali-
ban regime that supported al Qaeda, each petitioner sought a writ of
habeas corpus in the District Court, which ordered the cases dis-
missed for lack of jurisdiction because Guantanamo is outside sover-
eign U. S. territory. The D. C. Circuit affirmed, but this Court re-
versed, holding that 28 U. S. C. §2241 extended statutory habeas
jurisdiction to Guantanamo. See Rasul v. Bush, 542 U. S. 466, 473.
Petitioners’ cases were then consolidated into two proceedings. In
the first, the district judge granted the Government’s motion to dis-
miss, holding that the detainees had no rights that could be vindi-
——————
*Together with No. 06–1196, Al Odah, Next Friend of Al Odah, et al.
v. United States et al., also on certiorari to the same court.
2 BOUMEDIENE v. BUSH
Syllabus
cated in a habeas action. In the second, the judge held that the de-
tainees had due process rights.
While appeals were pending, Congress passed the Detainee Treat-
ment Act of 2005 (DTA), §1005(e) of which amended 28 U. S. C. §2241
to provide that “no court, justice, or judge shall have jurisdiction to
. . . consider . . . an application for . . . habeas corpus filed by or on
behalf of an alien detained . . . at Guantanamo,” and gave the D. C.
Circuit “exclusive” jurisdiction to review CSRT decisions. In Ham-
dan v. Rumsfeld, 548 U. S. 557, 576–577, the Court held this provi-
sion inapplicable to cases (like petitioners’) pending when the DTA
was enacted. Congress responded with the Military Commissions Act
of 2006 (MCA), §7(a) of which amended §2241(e)(1) to deny jurisdic-
tion with respect to habeas actions by detained aliens determined to
be enemy combatants, while §2241(e)(2) denies jurisdiction as to “any
other action against the United States . . . relating to any aspect of
the detention, transfer, treatment, trial, or conditions of confinement”
of a detained alien determined to be an enemy combatant. MCA
§7(b) provides that the 2241(e) amendments “shall take effect on the
date of the enactment of this Act, and shall apply to all cases, without
exception, pending on or after [that] date . . . which relate to any as-
pect of the detention, transfer, treatment, trial, or conditions of de-
tention of an alien detained . . . since September 11, 2001.”
The D. C. Circuit concluded that MCA §7 must be read to strip
from it, and all federal courts, jurisdiction to consider petitioners’ ha-
beas applications; that petitioners are not entitled to habeas or the
protections of the Suspension Clause, U. S. Const., Art. I, §9, cl. 2,
which provides that “[t]he Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it”; and that it was therefore unneces-
sary to consider whether the DTA provided an adequate and effective
substitute for habeas.
Held:
1. MCA §7 denies the federal courts jurisdiction to hear habeas ac-
tions, like the instant cases, that were pending at the time of its en-
actment. Section §7(b)’s effective date provision undoubtedly applies
to habeas actions, which, by definition, “relate to . . . detention”
within that section’s meaning. Petitioners argue to no avail that
§7(b) does not apply to a §2241(e)(1) habeas action, but only to “any
other action” under §2241(e)(2), because it largely repeats that sec-
tion’s language. The phrase “other action” in §2241(e)(2) cannot be
understood without referring back to §2241(e)(1), which explicitly
mentions the “writ of habeas corpus.” Because the two paragraphs’
structure implies that habeas is a type of action “relating to any as-
3 Cite as: 553 U. S. ____ (2008)
Syllabus
pect of . . . detention,” etc., pending habeas actions are in the category
of cases subject to the statute’s jurisdictional bar. This is confirmed
by the MCA’s legislative history. Thus, if MCA §7 is valid, petition-
ers’ cases must be dismissed. Pp. 5–8.
2. Petitioners have the constitutional privilege of habeas corpus.
They are not barred from seeking the writ or invoking the Suspen-
sion Clause’s protections because they have been designated as en-
emy combatants or because of their presence at Guantanamo. Pp. 8–
41.
(a) A brief account of the writ’s history and origins shows that
protection for the habeas privilege was one of the few safeguards of
liberty specified in a Constitution that, at the outset, had no Bill of
Rights; in the system the Framers conceived, the writ has a central-
ity that must inform proper interpretation of the Suspension Clause.
That the Framers considered the writ a vital instrument for the pro-
tection of individual liberty is evident from the care taken in the Sus-
pension Clause to specify the limited grounds for its suspension: The
writ may be suspended only when public safety requires it in times of
rebellion or invasion. The Clause is designed to protect against cycli-
cal abuses of the writ by the Executive and Legislative Branches. It
protects detainee rights by a means consistent with the Constitu-
tion’s essential design, ensuring that, except during periods of formal
suspension, the Judiciary will have a time-tested device, the writ, to
maintain the “delicate balance of governance.” Hamdi, supra, at 536.
Separation-of-powers principles, and the history that influenced their
design, inform the Clause’s reach and purpose. Pp. 8–15.
(b) A diligent search of founding-era precedents and legal com-
mentaries reveals no certain conclusions. None of the cases the par-
ties cite reveal whether a common-law court would have granted, or
refused to hear for lack of jurisdiction, a habeas petition by a prisoner
deemed an enemy combatant, under a standard like the Defense De-
partment’s in these cases, and when held in a territory, like Guan-
tanamo, over which the Government has total military and civil con-
trol. The evidence as to the writ’s geographic scope at common law is
informative, but, again, not dispositive. Petitioners argue that the
site of their detention is analogous to two territories outside England
to which the common-law writ ran, the exempt jurisdictions and In-
dia, but critical differences between these places and Guantanamo
render these claims unpersuasive. The Government argues that
Guantanamo is more closely analogous to Scotland and Hanover,
where the writ did not run, but it is unclear whether the common-law
courts lacked the power to issue the writ there, or whether they re-
frained from doing so for prudential reasons. The parties’ arguments
that the very lack of a precedent on point supports their respective
4 BOUMEDIENE v. BUSH
Syllabus
positions are premised upon the doubtful assumptions that the his-
torical record is complete and that the common law, if properly un-
derstood, yields a definite answer to the questions before the Court.
Pp. 15–22.
(c) The Suspension Clause has full effect at Guantanamo. The
Government’s argument that the Clause affords petitioners no rights
because the United States does not claim sovereignty over the naval
station is rejected. Pp. 22–42.
(i) The Court does not question the Government’s position that
Cuba maintains sovereignty, in the legal and technical sense, over
Guantanamo, but it does not accept the Government’s premise that
de jure sovereignty is the touchstone of habeas jurisdiction. Com-
mon-law habeas’ history provides scant support for this proposition,
and it is inconsistent with the Court’s precedents and contrary to
fundamental separation-of-powers principles. Pp. 22–25.
(ii) Discussions of the Constitution’s extraterritorial applica-
tion in cases involving provisions other than the Suspension Clause
undermine the Government’s argument. Fundamental questions re-
garding the Constitution’s geographic scope first arose when the Na-
tion acquired Hawaii and the noncontiguous Territories ceded by
Spain after the Spanish-American War, and Congress discontinued
its prior practice of extending constitutional rights to territories by
statute. In the so-called Insular Cases, the Court held that the Con-
stitution had independent force in the territories that was not contin-
gent upon acts of legislative grace. See, e.g., Dorr v. United States,
195 U. S. 138. Yet because of the difficulties and disruption inherent
in transforming the former Spanish colonies’ civil-law system into an
Anglo-American system, the Court adopted the doctrine of territorial
incorporation, under which the Constitution applies in full in incor-
porated Territories surely destined for statehood but only in part in
unincorporated Territories. See, e.g., id., at 143. Practical considera-
tions likewise influenced the Court’s analysis in Reid v. Covert, 354
U. S. 1, where, in applying the jury provisions of the Fifth and Sixth
Amendments to American civilians being tried by the U. S. military
abroad, both the plurality and the concurrences noted the relevance
of practical considerations, related not to the petitioners’ citizenship,
but to the place of their confinement and trial. Finally, in holding
that habeas jurisdiction did not extend to enemy aliens, convicted of
violating the laws of war, who were detained in a German prison dur-
ing the Allied Powers’ post-World War II occupation, the Court, in
Johnson v. Eisentrager, 339 U. S. 763, stressed the practical difficul-
ties of ordering the production of the prisoners, id., at 779. The Gov-
ernment’s reading of Eisentrager as adopting a formalistic test for de-
termining the Suspension Clause’s reach is rejected because: (1) the
5 Cite as: 553 U. S. ____ (2008)
Syllabus
discussion of practical considerations in that case was integral to a
part of the Court’s opinion that came before it announced its holding,
see id., at 781; (2) it mentioned the concept of territorial sovereignty
only twice in its opinion, in contrast to its significant discussion of
practical barriers to the running of the writ; and (3) if the Govern-
ment’s reading were correct, the opinion would have marked not only
a change in, but a complete repudiation of, the Insular Cases’ (and
later Reid’s) functional approach. A constricted reading of Eisen-
trager overlooks what the Court sees as a common thread uniting all
these cases: The idea that extraterritoriality questions turn on objec-
tive factors and practical concerns, not formalism. Pp. 25–34.
(iii) The Government’s sovereignty-based test raises troubling
separation-of-powers concerns, which are illustrated by Guan-
tanamo’s political history. Although the United States has main-
tained complete and uninterrupted control of Guantanamo for over
100 years, the Government’s view is that the Constitution has no ef-
fect there, at least as to noncitizens, because the United States dis-
claimed formal sovereignty in its 1903 lease with Cuba. The Nation’s
basic charter cannot be contracted away like this. The Constitution
grants Congress and the President the power to acquire, dispose of,
and govern territory, not the power to decide when and where its
terms apply. To hold that the political branches may switch the Con-
stitution on or off at will would lead to a regime in which they, not
this Court, say “what the law is.” Marbury v. Madison, 1 Cranch
137, 177. These concerns have particular bearing upon the Suspen-
sion Clause question here, for the habeas writ is itself an indispensa-
ble mechanism for monitoring the separation of powers. Pp. 34–36.
(iv) Based on Eisentrager, supra, at 777, and the Court’s rea-
soning in its other extraterritoriality opinions, at least three factors
are relevant in determining the Suspension Clause’s reach: (1) the
detainees’ citizenship and status and the adequacy of the process
through which that status was determined; (2) the nature of the sites
where apprehension and then detention took place; and (3) the prac-
tical obstacles inherent in resolving the prisoner’s entitlement to the
writ. Application of this framework reveals, first, that petitioners’
status is in dispute: They are not American citizens, but deny they
are enemy combatants; and although they have been afforded some
process in CSRT proceedings, there has been no Eisentrager–style
trial by military commission for violations of the laws of war. Second,
while the sites of petitioners’ apprehension and detention weigh
against finding they have Suspension Clause rights, there are critical
differences between Eisentrager’s German prison, circa 1950, and the
Guantanamo Naval Station in 2008, given the Government’s absolute
and indefinite control over the naval station. Third, although the
6 BOUMEDIENE v. BUSH
Syllabus
Court is sensitive to the financial and administrative costs of holding
the Suspension Clause applicable in a case of military detention
abroad, these factors are not dispositive because the Government
presents no credible arguments that the military mission at Guan-
tanamo would be compromised if habeas courts had jurisdiction. The
situation in Eisentrager was far different, given the historical context
and nature of the military’s mission in post-War Germany. Pp. 36–
41.
(d) Petitioners are therefore entitled to the habeas privilege, and
if that privilege is to be denied them, Congress must act in accor-
dance with the Suspension Clause’s requirements. Cf. Rasul, 542
U. S., at 564. Pp. 41–42.
3. Because the DTA’s procedures for reviewing detainees’ status
are not an adequate and effective substitute for the habeas writ,
MCA §7 operates as an unconstitutional suspension of the writ. Pp.
42–64.
(a) Given its holding that the writ does not run to petitioners, the
D. C. Circuit found it unnecessary to consider whether there was an
adequate substitute for habeas. This Court usually remands for con-
sideration of questions not decided below, but departure from this
rule is appropriate in “exceptional” circumstances, see, e.g., Cooper
Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 169, here, the
grave separation-of-powers issues raised by these cases and the fact
that petitioners have been denied meaningful access to a judicial fo-
rum for years. Pp. 42–44.
(b) Historically, Congress has taken care to avoid suspensions of
the writ. For example, the statutes at issue in the Court’s two lead-
ing cases addressing habeas substitutes, Swain v. Pressley, 430 U. S.
372, and United States v. Hayman, 342 U. S. 205, were attempts to
streamline habeas relief, not to cut it back. Those cases provide little
guidance here because, inter alia, the statutes in question gave the
courts broad remedial powers to secure the historic office of the writ,
and included saving clauses to preserve habeas review as an avenue
of last resort. In contrast, Congress intended the DTA and the MCA
to circumscribe habeas review, as is evident from the unequivocal na-
ture of MCA §7’s jurisdiction-stripping language, from the DTA’s text
limiting the Court of Appeals’ jurisdiction to assessing whether the
CSRT complied with the “standards and procedures specified by the
Secretary of Defense,” DTA §1005(e)(2)(C), and from the absence of a
saving clause in either Act. That Congress intended to create a more
limited procedure is also confirmed by the legislative history and by a
comparison of the DTA and the habeas statute that would govern in
MCA §7’s absence, 28 U. S. C. §2241. In §2241, Congress authorized
“any justice” or “circuit judge” to issue the writ, thereby accommodat-
7 Cite as: 553 U. S. ____ (2008)
Syllabus
ing the necessity for factfinding that will arise in some cases by al-
lowing the appellate judge or Justice to transfer the case to a district
court. See §2241(b). However, by granting the D. C. Circuit “exclu-
sive” jurisdiction over petitioners’ cases, see DTA §1005(e)(2)(A),
Congress has foreclosed that option in these cases. Pp. 44–49.
(c) This Court does not endeavor to offer a comprehensive sum-
mary of the requisites for an adequate habeas substitute. It is un-
controversial, however, that the habeas privilege entitles the prisoner
to a meaningful opportunity to demonstrate that he is being held pur-
suant to “the erroneous application or interpretation” of relevant law,
INS v. St. Cyr, 533 U. S. 289, 302, and the habeas court must have
the power to order the conditional release of an individual unlawfully
detained. But more may be required depending on the circum-
stances. Petitioners identify what they see as myriad deficiencies in
the CSRTs, the most relevant being the constraints upon the de-
tainee’s ability to rebut the factual basis for the Government’s asser-
tion that he is an enemy combatant. At the CSRT stage the detainee
has limited means to find or present evidence to challenge the Gov-
ernment’s case, does not have the assistance of counsel, and may not
be aware of the most critical allegations that the Government relied
upon to order his detention. His opportunity to confront witnesses is
likely to be more theoretical than real, given that there are no limits
on the admission of hearsay. The Court therefore agrees with peti-
tioners that there is considerable risk of error in the tribunal’s find-
ings of fact. And given that the consequence of error may be deten-
tion for the duration of hostilities that may last a generation or more,
the risk is too significant to ignore. Accordingly, for the habeas writ,
or its substitute, to function as an effective and meaningful remedy in
this context, the court conducting the collateral proceeding must have
some ability to correct any errors, to assess the sufficiency of the
Government’s evidence, and to admit and consider relevant exculpa-
tory evidence that was not introduced during the earlier proceeding.
In re Yamashita, 327 U. S. 1, 5, 8, and Ex parte Quirin, 317 U. S. 1,
23–25, distinguished. Pp. 49–57.
(d) Petitioners have met their burden of establishing that the
DTA review process is, on its face, an inadequate substitute for ha-
beas. Among the constitutional infirmities from which the DTA po-
tentially suffers are the absence of provisions allowing petitioners to
challenge the President’s authority under the AUMF to detain them
indefinitely, to contest the CSRT’s findings of fact, to supplement the
record on review with exculpatory evidence discovered after the
CSRT proceedings, and to request release. The statute cannot be
read to contain each of these constitutionally required procedures.
MCA §7 thus effects an unconstitutional suspension of the writ.
8 BOUMEDIENE v. BUSH
Syllabus
There is no jurisdictional bar to the District Court’s entertaining pe-
titioners’ claims. Pp. 57–64.
4. Nor are there prudential barriers to habeas review. Pp. 64–70.
(a) Petitioners need not seek review of their CSRT determina-
tions in the D. C. Circuit before proceeding with their habeas actions
in the District Court. If these cases involved detainees held for only a
short time while awaiting their CSRT determinations, or were it
probable that the Court of Appeals could complete a prompt review of
their applications, the case for requiring temporary abstention or ex-
haustion of alternative remedies would be much stronger. But these
qualifications no longer pertain here. In some instances six years
have elapsed without the judicial oversight that habeas corpus or an
adequate substitute demands. To require these detainees to pursue
the limited structure of DTA review before proceeding with habeas
actions would be to require additional months, if not years, of delay.
This holding should not be read to imply that a habeas court should
intervene the moment an enemy combatant steps foot in a territory
where the writ runs. Except in cases of undue delay, such as the pre-
sent, federal courts should refrain from entertaining an enemy com-
batant’s habeas petition at least until after the CSRT has had a
chance to review his status. Pp. 64–67.
(b) In effectuating today’s holding, certain accommodations—
including channeling future cases to a single district court and re-
quiring that court to use its discretion to accommodate to the greatest
extent possible the Government’s legitimate interest in protecting
sources and intelligence gathering methods—should be made to re-
duce the burden habeas proceedings will place on the military, with-
out impermissibly diluting the writ’s protections. Pp. 67–68.
5. In considering both the procedural and substantive standards
used to impose detention to prevent acts of terrorism, the courts must
accord proper deference to the political branches. However, security
subsists, too, in fidelity to freedom’s first principles, chief among
them being freedom from arbitrary and unlawful restraint and the
personal liberty that is secured by adherence to the separation of
powers. Pp. 68–70.
476 F. 3d 981, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which STEVENS,
SOUTER, GINSBURG, and BREYER, JJ., joined. SOUTER, J., filed a concur-
ring opinion, in which GINSBURG and BREYER, JJ., joined. ROBERTS,
C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO,
JJ., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS,
C. J., and THOMAS and ALITO, JJ., joined.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
JUSTICE KENNEDY delivered the opinion of the Court.
Petitioners are aliens designated as enemy combatants
and detained at the United States Naval Station at Guan
tanamo Bay, Cuba. There are others detained there, also
aliens, who are not parties to this suit.
Petitioners present a question not resolved by our ear
lier cases relating to the detention of aliens at Guan
tanamo: whether they have the constitutional privilege of
habeas corpus, a privilege not to be withdrawn except in
conformance with the Suspension Clause, Art. I, §9, cl. 2.
We hold these petitioners do have the habeas corpus
privilege. Congress has enacted a statute, the Detainee
Treatment Act of 2005 (DTA), 119 Stat. 2739, that pro
2 BOUMEDIENE v. BUSH
Opinion of the Court
vides certain procedures for review of the detainees’
status. We hold that those procedures are not an ade
quate and effective substitute for habeas corpus. There
fore §7 of the Military Commissions Act of 2006 (MCA), 28
U. S. C. A. §2241(e) (Supp. 2007), operates as an unconsti
tutional suspension of the writ. We do not address
whether the President has authority to detain these peti
tioners nor do we hold that the writ must issue. These
and other questions regarding the legality of the detention
are to be resolved in the first instance by the District
Court.
I
Under the Authorization for Use of Military Force
(AUMF), §2(a), 115 Stat. 224, note following 50 U. S. C.
§1541 (2000 ed., Supp. V), the President is authorized “to
use all necessary and appropriate force against those
nations, organizations, or persons he determines planned,
authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001, or harbored such organi
zations or persons, in order to prevent any future acts of
international terrorism against the United States by such
nations, organizations or persons.”
In Hamdi v. Rumsfeld, 542 U. S. 507 (2004), five Mem
bers of the Court recognized that detention of individuals
who fought against the United States in Afghanistan “for
the duration of the particular conflict in which they were
captured, is so fundamental and accepted an incident to
war as to be an exercise of the ‘necessary and appropriate
force’ Congress has authorized the President to use.” Id.,
at 518 (plurality opinion of O’Connor, J.), id., at 588–589
(THOMAS, J., dissenting). After Hamdi, the Deputy Secre
tary of Defense established Combatant Status Review
Tribunals (CSRTs) to determine whether individuals
detained at Guantanamo were “enemy combatants,” as the
Department defines that term. See App. to Pet. for Cert.
3 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
in No. 06–1195, p. 81a. A later memorandum established
procedures to implement the CSRTs. See App. to Pet. for
Cert. in No. 06–1196, p. 147. The Government maintains
these procedures were designed to comply with the due
process requirements identified by the plurality in Hamdi.
See Brief for Respondents 10.
Interpreting the AUMF, the Department of Defense
ordered the detention of these petitioners, and they were
transferred to Guantanamo. Some of these individuals
were apprehended on the battlefield in Afghanistan, oth
ers in places as far away from there as Bosnia and Gam
bia. All are foreign nationals, but none is a citizen of a
nation now at war with the United States. Each denies he
is a member of the al Qaeda terrorist network that carried
out the September 11 attacks or of the Taliban regime
that provided sanctuary for al Qaeda. Each petitioner
appeared before a separate CSRT; was determined to be
an enemy combatant; and has sought a writ of habeas
corpus in the United States District Court for the District
of Columbia.
The first actions commenced in February 2002. The
District Court ordered the cases dismissed for lack of
jurisdiction because the naval station is outside the sover
eign territory of the United States. See Rasul v. Bush, 215
F. Supp. 2d 55 (2002). The Court of Appeals for the Dis
trict of Columbia Circuit affirmed. See Al Odah v. United
States, 321 F. 3d 1134, 1145 (2003). We granted certiorari
and reversed, holding that 28 U. S. C. §2241 extended
statutory habeas corpus jurisdiction to Guantanamo. See
Rasul v. Bush, 542 U. S. 466, 473 (2004). The constitu
tional issue presented in the instant cases was not reached
in Rasul. Id., at 476.
After Rasul, petitioners’ cases were consolidated and
entertained in two separate proceedings. In the first set of
cases, Judge Richard J. Leon granted the Government’s
motion to dismiss, holding that the detainees had no
4 BOUMEDIENE v. BUSH
Opinion of the Court
rights that could be vindicated in a habeas corpus action.
In the second set of cases Judge Joyce Hens Green reached
the opposite conclusion, holding the detainees had rights
under the Due Process Clause of the Fifth Amendment.
See Khalid v. Bush, 355 F. Supp. 2d 311, 314 (DC 2005);
In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443,
464 (DC 2005).
While appeals were pending from the District Court
decisions, Congress passed the DTA. Subsection (e) of
§1005 of the DTA amended 28 U. S. C. §2241 to provide
that “no court, justice, or judge shall have jurisdiction to
hear or consider . . . an application for a writ of habeas
corpus filed by or on behalf of an alien detained by the
Department of Defense at Guantanamo Bay, Cuba.” 119
Stat. 2742. Section 1005 further provides that the Court
of Appeals for the District of Columbia Circuit shall have
“exclusive” jurisdiction to review decisions of the CSRTs.
Ibid.
In Hamdan v. Rumsfeld, 548 U. S. 557, 576–577 (2006),
the Court held this provision did not apply to cases (like
petitioners’) pending when the DTA was enacted. Con
gress responded by passing the MCA, 10 U. S. C. A. §948a
et seq. (Supp. 2007), which again amended §2241. The
text of the statutory amendment is discussed below. See
Part II, infra. (Four Members of the Hamdan majority
noted that “[n]othing prevent[ed] the President from
returning to Congress to seek the authority he believes
necessary.” 548 U. S., at 636 (BREYER, J., concurring).
The authority to which the concurring opinion referred
was the authority to “create military commissions of the
kind at issue” in the case. Ibid. Nothing in that opinion
can be construed as an invitation for Congress to suspend
the writ.)
Petitioners’ cases were consolidated on appeal, and the
parties filed supplemental briefs in light of our decision in
Hamdan. The Court of Appeals’ ruling, 476 F. 3d 981
5 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
(CADC 2007), is the subject of our present review and
today’s decision.
The Court of Appeals concluded that MCA §7 must be
read to strip from it, and all federal courts, jurisdiction to
consider petitioners’ habeas corpus applications, id., at
987; that petitioners are not entitled to the privilege of the
writ or the protections of the Suspension Clause, id., at
990–991; and, as a result, that it was unnecessary to
consider whether Congress provided an adequate and
effective substitute for habeas corpus in the DTA.
We granted certiorari. 551 U. S. ___ (2007).
II
As a threshold matter, we must decide whether MCA §7
denies the federal courts jurisdiction to hear habeas cor
pus actions pending at the time of its enactment. We hold
the statute does deny that jurisdiction, so that, if the
statute is valid, petitioners’ cases must be dismissed.
As amended by the terms of the MCA, 28 U. S. C. A.
§2241(e) (Supp. 2007) now provides:
“(1) No court, justice, or judge shall have jurisdic
tion to hear or consider an application for a writ of
habeas corpus filed by or on behalf of an alien de
tained by the United States who has been deter
mined by the United States to have been properly de
tained as an enemy combatant or is awaiting such
determination.
“(2) Except as provided in [§§1005(e)(2) and (e)(3)
of the DTA] no court, justice, or judge shall have ju
risdiction to hear or consider any other action
against the United States or its agents relating to
any aspect of the detention, transfer, treatment,
trial, or conditions of confinement of an alien who is
or was detained by the United States and has been
determined by the United States to have been prop
erly detained as an enemy combatant or is awaiting
6 BOUMEDIENE v. BUSH
Opinion of the Court
such determination.”
Section 7(b) of the MCA provides the effective date for
the amendment of §2241(e). It states:
“The amendment made by [MCA §7(a)] shall take ef
fect on the date of the enactment of this Act, and shall
apply to all cases, without exception, pending on or af
ter the date of the enactment of this Act which relate
to any aspect of the detention, transfer, treatment,
trial, or conditions of detention of an alien detained by
the United States since September 11, 2001.” 120
Stat. 2636.
There is little doubt that the effective date provision
applies to habeas corpus actions. Those actions, by defini
tion, are cases “which relate to . . . detention.” See Black’s
Law Dictionary 728 (8th ed. 2004) (defining habeas corpus
as “[a] writ employed to bring a person before a court,
most frequently to ensure that the party’s imprisonment
or detention is not illegal”). Petitioners argue, neverthe
less, that MCA §7(b) is not a sufficiently clear statement of
congressional intent to strip the federal courts of jurisdic
tion in pending cases. See Ex parte Yerger, 8 Wall. 85,
102–103 (1869). We disagree.
Their argument is as follows: Section 2241(e)(1) refers to
“a writ of habeas corpus.” The next paragraph,
§2241(e)(2), refers to “any other action . . . relating to any
aspect of the detention, transfer, treatment, trial, or condi
tions of confinement of an alien who . . . [has] been prop
erly detained as an enemy combatant or is awaiting such
determination.” There are two separate paragraphs, the
argument continues, so there must be two distinct classes
of cases. And the effective date subsection, MCA §7(b), it
is said, refers only to the second class of cases, for it
largely repeats the language of §2241(e)(2) by referring to
“cases . . . which relate to any aspect of the detention,
transfer, treatment, trial, or conditions of detention of an
7 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
alien detained by the United States.”
Petitioners’ textual argument would have more force
were it not for the phrase “other action” in §2241(e)(2).
The phrase cannot be understood without referring back
to the paragraph that precedes it, §2241(e)(1), which
explicitly mentions the term “writ of habeas corpus.” The
structure of the two paragraphs implies that habeas ac
tions are a type of action “relating to any aspect of the
detention, transfer, treatment, trial, or conditions of con
finement of an alien who is or was detained . . . as an
enemy combatant.” Pending habeas actions, then, are in
the category of cases subject to the statute’s jurisdictional
bar.
We acknowledge, moreover, the litigation history that
prompted Congress to enact the MCA. In Hamdan the
Court found it unnecessary to address the petitioner’s
Suspension Clause arguments but noted the relevance of
the clear statement rule in deciding whether Congress
intended to reach pending habeas corpus cases. See 548
U. S., at 575 (Congress should “not be presumed to have
effected such denial [of habeas relief] absent an unmis
takably clear statement to the contrary”). This interpre
tive rule facilitates a dialogue between Congress and the
Court. Cf. Hilton v. South Carolina Public Railways
Comm’n, 502 U. S. 197, 206 (1991); H. Hart & A. Sacks,
The Legal Process: Basic Problems in the Making and
Application of Law 1209–1210 (W. Eskridge & P. Frickey
eds. 1994). If the Court invokes a clear statement rule to
advise that certain statutory interpretations are favored
in order to avoid constitutional difficulties, Congress can
make an informed legislative choice either to amend the
statute or to retain its existing text. If Congress amends,
its intent must be respected even if a difficult constitu
tional question is presented. The usual presumption is
that Members of Congress, in accord with their oath of
office, considered the constitutional issue and determined
8 BOUMEDIENE v. BUSH
Opinion of the Court
the amended statute to be a lawful one; and the Judiciary,
in light of that determination, proceeds to its own inde
pendent judgment on the constitutional question when
required to do so in a proper case.
If this ongoing dialogue between and among the
branches of Government is to be respected, we cannot
ignore that the MCA was a direct response to Hamdan’s
holding that the DTA’s jurisdiction-stripping provision
had no application to pending cases. The Court of Appeals
was correct to take note of the legislative history when
construing the statute, see 476 F. 3d, at 986, n. 2 (citing
relevant floor statements); and we agree with its conclu
sion that the MCA deprives the federal courts of jurisdic
tion to entertain the habeas corpus actions now before us.
III
In deciding the constitutional questions now presented
we must determine whether petitioners are barred from
seeking the writ or invoking the protections of the Suspen
sion Clause either because of their status, i.e., petitioners’
designation by the Executive Branch as enemy combat
ants, or their physical location, i.e., their presence at
Guantanamo Bay. The Government contends that non
citizens designated as enemy combatants and detained in
territory located outside our Nation’s borders have no
constitutional rights and no privilege of habeas corpus.
Petitioners contend they do have cognizable constitutional
rights and that Congress, in seeking to eliminate recourse
to habeas corpus as a means to assert those rights, acted
in violation of the Suspension Clause.
We begin with a brief account of the history and origins
of the writ. Our account proceeds from two propositions.
First, protection for the privilege of habeas corpus was one
of the few safeguards of liberty specified in a Constitution
that, at the outset, had no Bill of Rights. In the system
conceived by the Framers the writ had a centrality that
9 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
must inform proper interpretation of the Suspension
Clause. Second, to the extent there were settled prece
dents or legal commentaries in 1789 regarding the extra
territorial scope of the writ or its application to enemy
aliens, those authorities can be instructive for the present
cases.
A
The Framers viewed freedom from unlawful restraint as
a fundamental precept of liberty, and they understood the
writ of habeas corpus as a vital instrument to secure that
freedom. Experience taught, however, that the common-
law writ all too often had been insufficient to guard
against the abuse of monarchial power. That history
counseled the necessity for specific language in the Consti
tution to secure the writ and ensure its place in our legal
system.
Magna Carta decreed that no man would be imprisoned
contrary to the law of the land. Art. 39, in Sources of Our
Liberties 17 (R. Perry & J. Cooper eds. 1959) (“No free
man shall be taken or imprisoned or dispossessed, or
outlawed, or banished, or in any way destroyed, nor will
we go upon him, nor send upon him, except by the legal
judgment of his peers or by the law of the land”). Impor
tant as the principle was, the Barons at Runnymede pre
scribed no specific legal process to enforce it. Holdsworth
tells us, however, that gradually the writ of habeas corpus
became the means by which the promise of Magna Carta
was fulfilled. 9 W. Holdsworth, A History of English Law
112 (1926) (hereinafter Holdsworth).
The development was painstaking, even by the centu
ries-long measures of English constitutional history. The
writ was known and used in some form at least as early as
the reign of Edward I. Id., at 108–125. Yet at the outset
it was used to protect not the rights of citizens but those of
the King and his courts. The early courts were considered
10 BOUMEDIENE v. BUSH
Opinion of the Court
agents of the Crown, designed to assist the King in the
exercise of his power. See J. Baker, An Introduction to
English Legal History 38–39 (4th ed. 2002). Thus the
writ, while it would become part of the foundation of
liberty for the King’s subjects, was in its earliest use a
mechanism for securing compliance with the King’s
laws. See Halliday & White, The Suspension Clause:
English Text, Imperial Contexts, and American Impli
cations, 94 Va. L. Rev. (forthcoming 2008) (hereinafter
Halliday & White) (manuscript, at 11, online at
http://papers.ssrn.com/sol3 /papers.cfm?abstract_id=100
8252 (all Internet materials as visited June 9, 2008, and
available in Clerk of Court’s case file) (noting that “concep
tually the writ arose from a theory of power rather than a
theory of liberty”)). Over time it became clear that by
issuing the writ of habeas corpus common-law courts
sought to enforce the King’s prerogative to inquire into the
authority of a jailer to hold a prisoner. See M. Hale, Pre
rogatives of the King 229 (D. Yale ed. 1976); 2 J. Story,
Commentaries on the Constitution of the United States
§1341, p. 237 (3d ed. 1858) (noting that the writ ran “into
all parts of the king’s dominions; for it is said, that the
king is entitled, at all times, to have an account, why the
liberty of any of his subjects is restrained”).
Even so, from an early date it was understood that the
King, too, was subject to the law. As the writers said of
Magna Carta, “it means this, that the king is and shall be
below the law.” 1 F. Pollock & F. Maitland, History of
English Law 173 (2d ed. 1909); see also 2 Bracton On the
Laws and Customs of England 33 (S. Thorne transl. 1968)
(“The king must not be under man but under God and
under the law, because law makes the king”). And, by the
1600’s, the writ was deemed less an instrument of the
King’s power and more a restraint upon it. See Collings,
Habeas Corpus for Convicts—Constitutional Right or
Legislative Grace, 40 Calif. L. Rev. 335, 336 (1952) (noting
11 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
that by this point the writ was “the appropriate process for
checking illegal imprisonment by public officials”).
Still, the writ proved to be an imperfect check. Even
when the importance of the writ was well understood in
England, habeas relief often was denied by the courts or
suspended by Parliament. Denial or suspension occurred
in times of political unrest, to the anguish of the impris
oned and the outrage of those in sympathy with them.
A notable example from this period was Darnel’s Case, 3
How. St. Tr. 1 (K. B. 1627). The events giving rise to the
case began when, in a display of the Stuart penchant for
authoritarian excess, Charles I demanded that Darnel and
at least four others lend him money. Upon their refusal,
they were imprisoned. The prisoners sought a writ of
habeas corpus; and the King filed a return in the form of a
warrant signed by the Attorney General. Ibid. The court
held this was a sufficient answer and justified the sub
jects’ continued imprisonment. Id., at 59.
There was an immediate outcry of protest. The House of
Commons promptly passed the Petition of Right, 3 Car. 1,
ch. 1 (1627), 5 Statutes of the Realm 23, 24 (reprint 1963),
which condemned executive “imprison[ment] without any
cause” shown, and declared that “no freeman in any such
manner as is before mencioned [shall] be imprisoned or
deteined.” Yet a full legislative response was long de
layed. The King soon began to abuse his authority again,
and Parliament was dissolved. See W. Hall & R. Albion, A
History of England and the British Empire 328 (3d ed.
1953) (hereinafter Hall & Albion). When Parliament
reconvened in 1640, it sought to secure access to the writ
by statute. The Act of 1640, 16 Car. 1, ch. 10, 5 Statutes of
the Realm, at 110, expressly authorized use of the writ to
test the legality of commitment by command or warrant of
the King or the Privy Council. Civil strife and the Inter
regnum soon followed, and not until 1679 did Parliament
try once more to secure the writ, this time through the
12 BOUMEDIENE v. BUSH
Opinion of the Court
Habeas Corpus Act of 1679, 31 Car. 2, ch. 2, id., at 935.
The Act, which later would be described by Blackstone as
the “stable bulwark of our liberties,” 1 W. Blackstone,
Commentaries *137 (hereinafter Blackstone), established
procedures for issuing the writ; and it was the model upon
which the habeas statutes of the 13 American Colonies
were based, see Collings, supra, at 338–339.
This history was known to the Framers. It no doubt
confirmed their view that pendular swings to and away
from individual liberty were endemic to undivided, uncon
trolled power. The Framers’ inherent distrust of govern
mental power was the driving force behind the constitu
tional plan that allocated powers among three
independent branches. This design serves not only to
make Government accountable but also to secure individ
ual liberty. See Loving v. United States, 517 U. S. 748,
756 (1996) (noting that “[e]ven before the birth of this
country, separation of powers was known to be a defense
against tyranny”); cf. Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring)
(“[T]he Constitution diffuses power the better to secure
liberty”); Clinton v. City of New York, 524 U. S. 417, 450
(1998) (KENNEDY, J., concurring) (“Liberty is always at
stake when one or more of the branches seek to transgress
the separation of powers”). Because the Constitution’s
separation-of-powers structure, like the substantive guar
antees of the Fifth and Fourteenth Amendments, see Yick
Wo v. Hopkins, 118 U. S. 356, 374 (1886), protects persons
as well as citizens, foreign nationals who have the privi
lege of litigating in our courts can seek to enforce separa
tion-of-powers principles, see, e.g., INS v. Chadha, 462
U. S. 919, 958–959 (1983).
That the Framers considered the writ a vital instrument
for the protection of individual liberty is evident from the
care taken to specify the limited grounds for its suspen
sion: “The Privilege of the Writ of Habeas Corpus shall not
13 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
be suspended, unless when in Cases of Rebellion or Inva
sion the public Safety may require it.” Art. I, §9, cl. 2; see
Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425,
1509, n. 329 (1987) (“[T]he non-suspension clause is the
original Constitution’s most explicit reference to reme
dies”). The word “privilege” was used, perhaps, to avoid
mentioning some rights to the exclusion of others. (In
deed, the only mention of the term “right” in the Constitu
tion, as ratified, is in its clause giving Congress the power
to protect the rights of authors and inventors. See Art. I,
§8, cl. 8.)
Surviving accounts of the ratification debates provide
additional evidence that the Framers deemed the writ to
be an essential mechanism in the separation-of-powers
scheme. In a critical exchange with Patrick Henry at the
Virginia ratifying convention Edmund Randolph referred
to the Suspension Clause as an “exception” to the “power
given to Congress to regulate courts.” See 3 Debates in
the Several State Conventions on the Adoption of the
Federal Constitution 460–464 (J. Elliot 2d ed. 1876) (here
inafter Elliot’s Debates). A resolution passed by the New
York ratifying convention made clear its understanding
that the Clause not only protects against arbitrary sus
pensions of the writ but also guarantees an affirmative
right to judicial inquiry into the causes of detention. See
Resolution of the New York Ratifying Convention (July 26,
1788), in 1 Elliot’s Debates 328 (noting the convention’s
understanding “[t]hat every person restrained of his lib
erty is entitled to an inquiry into the lawfulness of such
restraint, and to a removal thereof if unlawful; and that
such inquiry or removal ought not to be denied or delayed,
except when, on account of public danger, the Congress
shall suspend the privilege of the writ of habeas corpus”).
Alexander Hamilton likewise explained that by providing
the detainee a judicial forum to challenge detention, the
writ preserves limited government. As he explained in
14 BOUMEDIENE v. BUSH
Opinion of the Court
The Federalist No. 84:
“[T]he practice of arbitrary imprisonments, have been,
in all ages, the favorite and most formidable instru
ments of tyranny. The observations of the judicious
Blackstone . . . are well worthy of recital: ‘To bereave
a man of life . . . or by violence to confiscate his estate,
without accusation or trial, would be so gross and no
torious an act of despotism as must at once convey the
alarm of tyranny throughout the whole nation; but
confinement of the person, by secretly hurrying him to
jail, where his sufferings are unknown or forgotten, is
a less public, a less striking, and therefore a more
dangerous engine of arbitrary government.’ And as a
remedy for this fatal evil he is everywhere peculiarly
emphatical in his encomiums on the habeas corpus
act, which in one place he calls ‘the BULWARK of the
British Constitution.’” C. Rossiter ed., p. 512 (1961)
(quoting 1 Blackstone *136, 4 id., at *438).
Post-1789 habeas developments in England, though not
bearing upon the Framers’ intent, do verify their foresight.
Those later events would underscore the need for struc
tural barriers against arbitrary suspensions of the writ.
Just as the writ had been vulnerable to executive and
parliamentary encroachment on both sides of the Atlantic
before the American Revolution, despite the Habeas Cor
pus Act of 1679, the writ was suspended with frequency in
England during times of political unrest after 1789. Par
liament suspended the writ for much of the period from
1792 to 1801, resulting in rampant arbitrary imprison
ment. See Hall & Albion 550. Even as late as World War
I, at least one prominent English jurist complained that
the Defence of the Realm Act, 1914, 4 & 5 Geo. 5, ch.
29(1)(a), effectively had suspended the privilege of habeas
corpus for any person suspected of “communicating with
the enemy.” See King v. Halliday, [1917] A. C. 260, 299
15 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
(Lord Shaw, dissenting); see generally A. Simpson, In the
Highest Degree Odious: Detention Without Trial in War
time Britain 6–7, 24–25 (1992).
In our own system the Suspension Clause is designed to
protect against these cyclical abuses. The Clause protects
the rights of the detained by a means consistent with the
essential design of the Constitution. It ensures that,
except during periods of formal suspension, the Judiciary
will have a time-tested device, the writ, to maintain the
“delicate balance of governance” that is itself the surest
safeguard of liberty. See Hamdi, 542 U. S., at 536 (plural
ity opinion). The Clause protects the rights of the de
tained by affirming the duty and authority of the Judici
ary to call the jailer to account. See Preiser v. Rodriguez,
411 U. S. 475, 484 (1973) (“[T]he essence of habeas corpus
is an attack by a person in custody upon the legality of
that custody”); cf. In re Jackson, 15 Mich. 417, 439–440
(1867) (Cooley, J., concurring) (“The important fact to be
observed in regard to the mode of procedure upon this
[habeas] writ is, that it is directed to, and served upon, not
the person confined, but his jailer”). The separation-of
powers doctrine, and the history that influenced its de
sign, therefore must inform the reach and purpose of the
Suspension Clause.
B
The broad historical narrative of the writ and its func
tion is central to our analysis, but we seek guidance as
well from founding-era authorities addressing the specific
question before us: whether foreign nationals, appre
hended and detained in distant countries during a time of
serious threats to our Nation’s security, may assert the
privilege of the writ and seek its protection. The Court
has been careful not to foreclose the possibility that the
protections of the Suspension Clause have expanded along
with post-1789 developments that define the present scope
16 BOUMEDIENE v. BUSH
Opinion of the Court
of the writ. See INS v. St. Cyr, 533 U. S. 289, 300–301
(2001). But the analysis may begin with precedents as of
1789, for the Court has said that “at the absolute mini
mum” the Clause protects the writ as it existed when the
Constitution was drafted and ratified. Id., at 301.
To support their arguments, the parties in these cases
have examined historical sources to construct a view of the
common-law writ as it existed in 1789—as have amici
whose expertise in legal history the Court has relied upon
in the past. See Brief for Legal Historians as Amici Cu-
riae; see also St. Cyr, supra, at 302, n. 16. The Govern
ment argues the common-law writ ran only to those terri
tories over which the Crown was sovereign. See Brief for
Respondents 27. Petitioners argue that jurisdiction fol
lowed the King’s officers. See Brief for Petitioner Boume
diene et al. 11. Diligent search by all parties reveals no
certain conclusions. In none of the cases cited do we find
that a common-law court would or would not have
granted, or refused to hear for lack of jurisdiction, a peti
tion for a writ of habeas corpus brought by a prisoner
deemed an enemy combatant, under a standard like the
one the Department of Defense has used in these cases,
and when held in a territory, like Guantanamo, over
which the Government has total military and civil control.
We know that at common law a petitioner’s status as an
alien was not a categorical bar to habeas corpus relief.
See, e.g., Sommersett’s Case, 20 How. St. Tr. 1, 80–82
(1772) (ordering an African slave freed upon finding the
custodian’s return insufficient); see generally Khera v.
Secretary of State for the Home Dept., [1984] A. C. 74, 111
(“Habeas corpus protection is often expressed as limited to
‘British subjects.’ Is it really limited to British nationals?
Suffice it to say that the case law has given an emphatic
‘no’ to the question”). We know as well that common-law
courts entertained habeas petitions brought by enemy
aliens detained in England—“entertained” at least in the
17 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
sense that the courts held hearings to determine the
threshold question of entitlement to the writ. See Case of
Three Spanish Sailors, 2 Black. W. 1324, 96 Eng. Rep. 775
(C. P. 1779); King v. Schiever, 2 Burr. 765, 97 Eng. Rep.
551 (K. B. 1759); Du Castro’s Case, Fort. 195, 92 Eng. Rep.
816 (K. B. 1697).
In Schiever and the Spanish Sailors’ case, the courts
denied relief to the petitioners. Whether the holdings in
these cases were jurisdictional or based upon the courts’
ruling that the petitioners were detained lawfully as
prisoners of war is unclear. See Spanish Sailors, supra, at
1324, 96 Eng. Rep., at 776; Schiever, supra, at 766, 97
Eng. Rep., at 552. In Du Castro’s Case, the court granted
relief, but that case is not analogous to petitioners’ be
cause the prisoner there appears to have been detained in
England. See Halliday & White 27, n. 72. To the extent
these authorities suggest the common-law courts ab
stained altogether from matters involving prisoners of
war, there was greater justification for doing so in the
context of declared wars with other nation states. Judicial
intervention might have complicated the military’s ability
to negotiate exchange of prisoners with the enemy, a
wartime practice well known to the Framers. See Resolu
tion of Mar. 30, 1778, 10 Journals of the Continental
Congress 1774–1789, p. 295 (W. Ford ed. 1908) (directing
General Washington not to exchange prisoners with the
British unless the enemy agreed to exempt citizens from
capture).
We find the evidence as to the geographic scope of the
writ at common law informative, but, again, not disposi
tive. Petitioners argue the site of their detention is analo
gous to two territories outside of England to which the
writ did run: the so-called “exempt jurisdictions,” like the
Channel Islands; and (in former times) India. There are
critical differences between these places and Guantanamo,
however.
18 BOUMEDIENE v. BUSH
Opinion of the Court
As the Court noted in Rasul, 542 U. S., at 481–482, and
nn. 11–12, common-law courts granted habeas corpus
relief to prisoners detained in the exempt jurisdictions.
But these areas, while not in theory part of the realm of
England, were nonetheless under the Crown’s control. See
2 H. Hallam, Constitutional History of England: From the
Accession of Henry VII to the Death of George II, pp. 232–
233 (reprint 1989). And there is some indication that
these jurisdictions were considered sovereign territory.
King v. Cowle, 2 Burr. 834, 854, 855, 97 Eng. Rep. 587,
599 (K. B. 1759) (describing one of the exempt jurisdic
tions, Berwick-upon-Tweed, as under the “sovereign juris
diction” and “subjection of the Crown of England”). Be
cause the United States does not maintain formal
sovereignty over Guantanamo Bay, see Part IV, infra, the
naval station there and the exempt jurisdictions discussed
in the English authorities are not similarly situated.
Petitioners and their amici further rely on cases in
which British courts in India granted writs of habeas
corpus to noncitizens detained in territory over which the
Moghul Emperor retained formal sovereignty and control.
See supra, at 12–13; Brief for Legal Historians as Amici
Curiae 12–13. The analogy to the present cases breaks
down, however, because of the geographic location of the
courts in the Indian example. The Supreme Court of
Judicature (the British Court) sat in Calcutta; but no
federal court sits at Guantanamo. The Supreme Court of
Judicature was, moreover, a special court set up by Par
liament to monitor certain conduct during the British Raj.
See Regulating Act of 1773, 13 Geo. 3, §§13–14. That it
had the power to issue the writ in nonsovereign territory
does not prove that common-law courts sitting in England
had the same power. If petitioners were to have the better
of the argument on this point, we would need some dem
onstration of a consistent practice of common-law courts
sitting in England and entertaining petitions brought by
19 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
alien prisoners detained abroad. We find little support for
this conclusion.
The Government argues, in turn, that Guantanamo is
more closely analogous to Scotland and Hanover, territo
ries that were not part of England but nonetheless con
trolled by the English monarch (in his separate capacities
as King of Scotland and Elector of Hanover). See Cowle, 2
Burr., at 856, 97 Eng. Rep., at 600. Lord Mansfield can be
cited for the proposition that, at the time of the founding,
English courts lacked the “power” to issue the writ to
Scotland and Hanover, territories Lord Mansfield referred
to as “foreign.” Ibid. But what matters for our purposes is
why common-law courts lacked this power. Given the
English Crown’s delicate and complicated relationships
with Scotland and Hanover in the 1700’s, we cannot disre
gard the possibility that the common-law courts’ refusal to
issue the writ to these places was motivated not by formal
legal constructs but by what we would think of as pruden
tial concerns. This appears to have been the case with
regard to other British territories where the writ did not
run. See 2 R. Chambers, A Course of Lectures on English
Law 1767–1773, p. 8 (T. Curley ed. 1986) (quoting the
view of Lord Mansfield in Cowle that “[n]otwithstanding
the power which the judges have, yet where they cannot
judge of the cause, or give relief upon it, they would not
think proper to interpose; and therefore in the case of
imprisonments in Guernsey, Jersey, Minorca, or the plan-
tations, the most usual way is to complain to the king in
Council” (internal quotation marks omitted)). And after
the Act of Union in 1707, through which the kingdoms of
England and Scotland were merged politically, Queen
Anne and her successors, in their new capacity as sover
eign of Great Britain, ruled the entire island as one king
dom. Accordingly, by the time Lord Mansfield penned his
opinion in Cowle in 1759, Scotland was no longer a “for
eign” country vis-à-vis England—at least not in the sense
20 BOUMEDIENE v. BUSH
Opinion of the Court
in which Cuba is a foreign country vis-à-vis the United
States.
Scotland remained “foreign” in Lord Mansfield’s day in
at least one important respect, however. Even after the
Act of Union, Scotland (like Hanover) continued to main
tain its own laws and court system. See 1 Blackstone *98,
*109. Under these circumstances prudential considera
tions would have weighed heavily when courts sitting in
England received habeas petitions from Scotland or the
Electorate. Common-law decisions withholding the writ
from prisoners detained in these places easily could be
explained as efforts to avoid either or both of two embar
rassments: conflict with the judgments of another court of
competent jurisdiction; or the practical inability, by reason
of distance, of the English courts to enforce their judg
ments outside their territorial jurisdiction. Cf. Munaf v.
Geren, ante, at 15 (opinion of the Court) (recognizing that
“‘prudential concerns’ . . . such as comity and the orderly
administration of criminal justice” affect the appropriate
exercise of habeas jurisdiction).
By the mid-19th century, British courts could issue the
writ to Canada, notwithstanding the fact that Canadian
courts also had the power to do so. See 9 Holdsworth 124
(citing Ex parte Anderson, 3 El. and El. 487 (1861)). This
might be seen as evidence that the existence of a separate
court system was no barrier to the running of the common-
law writ. The Canada of the 1800’s, however, was in
many respects more analogous to the exempt jurisdictions
or to Ireland, where the writ ran, than to Scotland or
Hanover in the 1700’s, where it did not. Unlike Scotland
and Hanover, Canada followed English law. See B.
Laskin, The British Tradition in Canadian Law 50–51
(1969).
In the end a categorical or formal conception of sover
eignty does not provide a comprehensive or altogether
satisfactory explanation for the general understanding
21 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
that prevailed when Lord Mansfield considered issuance of
the writ outside England. In 1759 the writ did not run to
Scotland but did run to Ireland, even though, at that
point, Scotland and England had merged under the rule of
a single sovereign, whereas the Crowns of Great Britain
and Ireland remained separate (at least in theory). See
Cowle, supra, at 856–857, 97 Eng. Rep., 600; 1 Blackstone
*100–101. But there was at least one major difference
between Scotland’s and Ireland’s relationship with Eng
land during this period that might explain why the writ
ran to Ireland but not to Scotland. English law did not
generally apply in Scotland (even after the Act of Union)
but it did apply in Ireland. Blackstone put it as follows:
“[A]s Scotland and England are now one and the same
kingdom, and yet differ in their municipal laws; so Eng
land and Ireland are, on the other hand, distinct king
doms, and yet in general agree in their laws.” Id., at *100.
This distinction, and not formal notions of sovereignty,
may well explain why the writ did not run to Scotland
(and Hanover) but would run to Ireland.
The prudential barriers that may have prevented the
English courts from issuing the writ to Scotland and
Hanover are not relevant here. We have no reason to
believe an order from a federal court would be disobeyed
at Guantanamo. No Cuban court has jurisdiction to hear
these petitioners’ claims, and no law other than the laws
of the United States applies at the naval station. The
modern-day relations between the United States and
Guantanamo thus differ in important respects from the
18th-century relations between England and the kingdoms
of Scotland and Hanover. This is reason enough for us to
discount the relevance of the Government’s analogy.
Each side in the present matter argues that the very
lack of a precedent on point supports its position. The
Government points out there is no evidence that a court
sitting in England granted habeas relief to an enemy alien
22 BOUMEDIENE v. BUSH
Opinion of the Court
detained abroad; petitioners respond there is no evidence
that a court refused to do so for lack of jurisdiction.
Both arguments are premised, however, upon the as
sumption that the historical record is complete and that
the common law, if properly understood, yields a definite
answer to the questions before us. There are reasons to
doubt both assumptions. Recent scholarship points to the
inherent shortcomings in the historical record. See Halli
day & White 14–15 (noting that most reports of 18th
century habeas proceedings were not printed). And given
the unique status of Guantanamo Bay and the particular
dangers of terrorism in the modern age, the common-law
courts simply may not have confronted cases with close
parallels to this one. We decline, therefore, to infer too
much, one way or the other, from the lack of historical
evidence on point. Cf. Brown v. Board of Education, 347
U. S. 483, 489 (1954) (noting evidence concerning the
circumstances surrounding the adoption of the Fourteenth
Amendment, discussed in the parties’ briefs and uncov
ered through the Court’s own investigation, “convince us
that, although these sources cast some light, it is not
enough to resolve the problem with which we are faced.
At best, they are inconclusive”); Reid v. Covert, 354 U. S.
1, 64 (1957) (Frankfurter, J., concurring in result) (argu
ing constitutional adjudication should not be based upon
evidence that is “too episodic, too meager, to form a solid
basis in history, preceding and contemporaneous with the
framing of the Constitution”).
IV
Drawing from its position that at common law the writ
ran only to territories over which the Crown was sover
eign, the Government says the Suspension Clause affords
petitioners no rights because the United States does not
claim sovereignty over the place of detention.
Guantanamo Bay is not formally part of the United
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Opinion of the Court
States. See DTA §1005(g), 119 Stat. 2743. And under the
terms of the lease between the United States and Cuba,
Cuba retains “ultimate sovereignty” over the territory
while the United States exercises “complete jurisdiction
and control.” See Lease of Lands for Coaling and Naval
Stations, Feb. 23, 1903, U. S.-Cuba, Art. III, T. S. No. 418
(hereinafter 1903 Lease Agreement); Rasul, 542 U. S., at
471. Under the terms of the 1934 Treaty, however, Cuba
effectively has no rights as a sovereign until the parties
agree to modification of the 1903 Lease Agreement or the
United States abandons the base. See Treaty Defining
Relations with Cuba, May 29, 1934, U. S.-Cuba, Art. III,
48 Stat. 1683, T. S. No. 866.
The United States contends, nevertheless, that Guan
tanamo is not within its sovereign control. This was the
Government’s position well before the events of September
11, 2001. See, e.g., Brief for Petitioners in Sale v. Haitian
Centers Council, Inc., O. T. 1992, No. 92–344, p. 31 (argu
ing that Guantanamo is territory “outside the United
States”). And in other contexts the Court has held that
questions of sovereignty are for the political branches to
decide. See Vermilya-Brown Co. v. Connell, 335 U. S. 377,
380 (1948) (“[D]etermination of sovereignty over an area is
for the legislative and executive departments”); see also
Jones v. United States, 137 U. S. 202 (1890); Williams v.
Suffolk Ins. Co., 13 Pet. 415, 420 (1839). Even if this were
a treaty interpretation case that did not involve a political
question, the President’s construction of the lease agree
ment would be entitled to great respect. See Sumitomo
Shoji America, Inc. v. Avagliano, 457 U. S. 176, 184–185
(1982).
We therefore do not question the Government’s position
that Cuba, not the United States, maintains sovereignty,
in the legal and technical sense of the term, over Guan
tanamo Bay. But this does not end the analysis. Our
cases do not hold it is improper for us to inquire into the
24 BOUMEDIENE v. BUSH
Opinion of the Court
objective degree of control the Nation asserts over foreign
territory. As commentators have noted, “‘[s]overeignty’ is
a term used in many senses and is much abused.” See 1
Restatement (Third) of Foreign Relations Law of the
United States §206, Comment b, p. 94 (1986). When we
have stated that sovereignty is a political question, we
have referred not to sovereignty in the general, colloquial
sense, meaning the exercise of dominion or power, see
Webster’s New International Dictionary 2406 (2d ed.
1934) (“sovereignty,” definition 3), but sovereignty in the
narrow, legal sense of the term, meaning a claim of right,
see 1 Restatement (Third) of Foreign Relations, supra,
§206, Comment b, at 94 (noting that sovereignty “implies
a state’s lawful control over its territory generally to the
exclusion of other states, authority to govern in that terri
tory, and authority to apply law there”). Indeed, it is not
altogether uncommon for a territory to be under the de
jure sovereignty of one nation, while under the plenary
control, or practical sovereignty, of another. This condi
tion can occur when the territory is seized during war, as
Guantanamo was during the Spanish-American War. See,
e.g., Fleming v. Page, 9 How. 603, 614 (1850) (noting that
the port of Tampico, conquered by the United States dur
ing the war with Mexico, was “undoubtedly . . . subject to
the sovereignty and dominion of the United States,” but
that it “does not follow that it was a part of the United
States, or that it ceased to be a foreign country”); King v.
Earl of Crewe ex parte Sekgome, [1910] 2 K. B. 576, 603–
604 (C. A.) (opinion of Williams, L. J.) (arguing that the
Bechuanaland Protectorate in South Africa was “under
His Majesty’s dominion in the sense of power and jurisdic
tion, but is not under his dominion in the sense of territo
rial dominion”). Accordingly, for purposes of our analysis,
we accept the Government’s position that Cuba, and not
the United States, retains de jure sovereignty over Guan
tanamo Bay. As we did in Rasul, however, we take notice
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Opinion of the Court
of the obvious and uncontested fact that the United States,
by virtue of its complete jurisdiction and control over the
base, maintains de facto sovereignty over this territory.
See 542 U. S., at 480; id., at 487 (KENNEDY, J., concurring
in judgment).
Were we to hold that the present cases turn on the
political question doctrine, we would be required first to
accept the Government’s premise that de jure sovereignty
is the touchstone of habeas corpus jurisdiction. This
premise, however, is unfounded. For the reasons indi
cated above, the history of common-law habeas corpus
provides scant support for this proposition; and, for the
reasons indicated below, that position would be inconsis
tent with our precedents and contrary to fundamental
separation-of-powers principles.
A
The Court has discussed the issue of the Constitution’s
extraterritorial application on many occasions. These
decisions undermine the Government’s argument that, at
least as applied to noncitizens, the Constitution necessar
ily stops where de jure sovereignty ends.
The Framers foresaw that the United States would
expand and acquire new territories. See American Ins. Co.
v. 356 Bales of Cotton, 1 Pet. 511, 542 (1828). Article IV,
§3, cl. 1, grants Congress the power to admit new States.
Clause 2 of the same section grants Congress the “Power
to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the
United States.” Save for a few notable (and notorious)
exceptions, e.g., Dred Scott v. Sandford, 19 How. 393
(1857), throughout most of our history there was little
need to explore the outer boundaries of the Constitution’s
geographic reach. When Congress exercised its power to
create new territories, it guaranteed constitutional protec
tions to the inhabitants by statute. See, e.g., An Act: to
26 BOUMEDIENE v. BUSH
Opinion of the Court
establish a Territorial Government for Utah, 9 Stat. 458
(“[T]he Constitution and laws of the United States are
hereby extended over and declared to be in force in said
Territory of Utah”); Rev. Stat. §1891 (“The Constitution
and all laws of the United States which are not locally
inapplicable shall have the same force and effect within all
the organized Territories, and in every Territory hereafter
organized as elsewhere within the United States”); see
generally Burnett, Untied States: American Expansion
and Territorial Deannexation, 72 U. Chi. L. Rev. 797, 825–
827 (2005). In particular, there was no need to test the
limits of the Suspension Clause because, as early as 1789,
Congress extended the writ to the Territories. See Act of
Aug. 7, 1789, 1 Stat. 52 (reaffirming Art. II of Northwest
Ordinance of 1787, which provided that “[t]he inhabitants
of the said territory, shall always be entitled to the bene
fits of the writ of habeas corpus”).
Fundamental questions regarding the Constitution’s
geographic scope first arose at the dawn of the 20th cen
tury when the Nation acquired noncontiguous Territories:
Puerto Rico, Guam, and the Philippines—ceded to the
United States by Spain at the conclusion of the Spanish-
American War—and Hawaii—annexed by the United
States in 1898. At this point Congress chose to discon
tinue its previous practice of extending constitutional
rights to the territories by statute. See, e.g., An Act Tem
porarily to provide for the administration of the affairs of
civil government in the Philippine Islands, and for other
purposes, 32 Stat. 692 (noting that Rev. Stat. §1891 did
not apply to the Philippines).
In a series of opinions later known as the Insular Cases,
the Court addressed whether the Constitution, by its own
force, applies in any territory that is not a State. See De
Lima v. Bidwell, 182 U. S. 1 (1901); Dooley v. United
States, 182 U. S. 222 (1901); Armstrong v. United States,
182 U. S. 243 (1901); Downes v. Bidwell, 182 U. S. 244
27 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
(1901); Hawaii v. Mankichi, 190 U. S. 197 (1903); Dorr v.
United States, 195 U. S. 138 (1904). The Court held that
the Constitution has independent force in these territo
ries, a force not contingent upon acts of legislative grace.
Yet it took note of the difficulties inherent in that position.
Prior to their cession to the United States, the former
Spanish colonies operated under a civil-law system, with
out experience in the various aspects of the Anglo-
American legal tradition, for instance the use of grand and
petit juries. At least with regard to the Philippines, a
complete transformation of the prevailing legal culture
would have been not only disruptive but also unnecessary,
as the United States intended to grant independence to
that Territory. See An Act To declare the purpose of the
people of the United States as to the future political status
of the people of the Philippine Islands, and to provide a
more autonomous government for those islands (Jones
Act), 39 Stat. 545 (noting that “it was never the intention
of the people of the United States in the incipiency of the
War with Spain to make it a war of conquest or for territo
rial aggrandizement” and that “it is, as it has always been,
the purpose of the people of the United States to withdraw
their sovereignty over the Philippine Islands and to recog
nize their independence as soon as a stable government
can be established therein”). The Court thus was reluc
tant to risk the uncertainty and instability that could
result from a rule that displaced altogether the existing
legal systems in these newly acquired Territories. See
Downes, supra, at 282 (“It is obvious that in the annexa
tion of outlying and distant possessions grave questions
will arise from differences of race, habits, laws and cus
toms of the people, and from differences of soil, climate
and production . . . ”).
These considerations resulted in the doctrine of territo
rial incorporation, under which the Constitution applies in
full in incorporated Territories surely destined for state
28 BOUMEDIENE v. BUSH
Opinion of the Court
hood but only in part in unincorporated Territories. See
Dorr, supra, at 143 (“Until Congress shall see fit to incor
porate territory ceded by treaty into the United States, . . .
the territory is to be governed under the power existing in
Congress to make laws for such territories and subject to
such constitutional restrictions upon the powers of that
body as are applicable to the situation”); Downes, supra, at
293 (White, J., concurring) (“[T]he determination of what
particular provision of the Constitution is applicable,
generally speaking, in all cases, involves an inquiry into
the situation of the territory and its relations to the
United States”). As the Court later made clear, “the real
issue in the Insular Cases was not whether the Constitu
tion extended to the Philippines or Porto Rico when we
went there, but which of its provisions were applicable by
way of limitation upon the exercise of executive and legis
lative power in dealing with new conditions and require
ments.” Balzac v. Porto Rico, 258 U. S. 298, 312 (1922). It
may well be that over time the ties between the United
States and any of its unincorporated Territories
strengthen in ways that are of constitutional significance.
Cf. Torres v. Puerto Rico, 442 U. S. 465, 475–476 (1979)
(Brennan, J., concurring in judgment) (“Whatever the
validity of the [Insular Cases] in the particular historical
context in which they were decided, those cases are clearly
not authority for questioning the application of the Fourth
Amendment—or any other provision of the Bill of Rights—
to the Commonwealth of Puerto Rico in the 1970’s”). But,
as early as Balzac in 1922, the Court took for granted that
even in unincorporated Territories the Government of the
United States was bound to provide to noncitizen inhabi
tants “guaranties of certain fundamental personal rights
declared in the Constitution.” 258 U. S., at 312; see also
Late Corp. of Church of Jesus Christ of Latter-day Saints
v. United States, 136 U. S. 1, 44 (1890) (“Doubtless Con
gress, in legislating for the Territories would be subject to
29 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
those fundamental limitations in favor of personal rights
which are formulated in the Constitution and its amend
ments”). Yet noting the inherent practical difficulties of
enforcing all constitutional provisions “always and every
where,” Balzac, supra, at 312, the Court devised in the
Insular Cases a doctrine that allowed it to use its power
sparingly and where it would be most needed. This cen
tury-old doctrine informs our analysis in the present
matter.
Practical considerations likewise influenced the Court’s
analysis a half-century later in Reid, 354 U. S. 1. The
petitioners there, spouses of American servicemen, lived
on American military bases in England and Japan. They
were charged with crimes committed in those countries
and tried before military courts, consistent with executive
agreements the United States had entered into with the
British and Japanese governments. Id., at 15–16, and nn.
29–30 (plurality opinion). Because the petitioners were
not themselves military personnel, they argued they were
entitled to trial by jury.
Justice Black, writing for the plurality, contrasted the
cases before him with the Insular Cases, which involved
territories “with wholly dissimilar traditions and institu
tions” that Congress intended to govern only “temporar
ily.” Id., at 14. Justice Frankfurter argued that the “spe
cific circumstances of each particular case” are relevant in
determining the geographic scope of the Constitution. Id.,
at 54 (opinion concurring in result). And Justice Harlan,
who had joined an opinion reaching the opposite result in
the case in the previous Term, Reid v. Covert, 351 U. S.
487 (1956), was most explicit in rejecting a “rigid and
abstract rule” for determining where constitutional guar
antees extend. Reid, 354 U. S., at 74 (opinion concurring
in result). He read the Insular Cases to teach that
whether a constitutional provision has extraterritorial
effect depends upon the “particular circumstances, the
30 BOUMEDIENE v. BUSH
Opinion of the Court
practical necessities, and the possible alternatives which
Congress had before it” and, in particular, whether judi
cial enforcement of the provision would be “impracticable
and anomalous.” Id., at 74–75; see also United States v.
Verdugo-Urquidez, 494 U. S. 259, 277–278 (1990)
(KENNEDY, J., concurring) (applying the “impracticable
and anomalous” extraterritoriality test in the Fourth
Amendment context).
That the petitioners in Reid were American citizens was
a key factor in the case and was central to the plurality’s
conclusion that the Fifth and Sixth Amendments apply to
American civilians tried outside the United States. But
practical considerations, related not to the petitioners’
citizenship but to the place of their confinement and trial,
were relevant to each Member of the Reid majority. And
to Justices Harlan and Frankfurter (whose votes were
necessary to the Court’s disposition) these considerations
were the decisive factors in the case.
Indeed the majority splintered on this very point. The
key disagreement between the plurality and the concur
ring Justices in Reid was over the continued precedential
value of the Court’s previous opinion in In re Ross, 140
U. S. 453 (1891), which the Reid Court understood as
holding that under some circumstances Americans abroad
have no right to indictment and trial by jury. The peti
tioner in Ross was a sailor serving on an American mer
chant vessel in Japanese waters who was tried before an
American consular tribunal for the murder of a fellow
crewman. 140 U. S., at 459, 479. The Ross Court held
that the petitioner, who was a British subject, had no
rights under the Fifth and Sixth Amendments. Id., at 464.
The petitioner’s citizenship played no role in the disposi
tion of the case, however. The Court assumed (consistent
with the maritime custom of the time) that Ross had all
the rights of a similarly situated American citizen. Id., at
479 (noting that Ross was “under the protection and sub
31 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
ject to the laws of the United States equally with the
seaman who was native born”). The Justices in Reid
therefore properly understood Ross as standing for the
proposition that, at least in some circumstances, the jury
provisions of the Fifth and Sixth Amendments have no
application to American citizens tried by American au
thorities abroad. See 354 U. S., at 11–12 (plurality opin
ion) (describing Ross as holding that “constitutional pro
tections applied ‘only to citizens and others within the
United States . . . and not to residents or temporary so
journers abroad’” (quoting Ross, supra, at 464)); 354 U. S.,
at 64 (Frankfurter, J., concurring in result) (noting that
the consular tribunals upheld in Ross “w[ere] based on
long-established custom and they were justified as the
best possible means for securing justice for the few Ameri
cans present in [foreign] countries”); 354 U. S., at 75
(Harlan, J., concurring in result) (“what Ross and the
Insular Cases hold is that the particular local setting, the
practical necessities, and the possible alternatives are
relevant to a question of judgment, namely, whether jury
trial should be deemed a necessary condition of the exer
cise of Congress’ power to provide for the trial of Ameri
cans overseas”).
The Reid plurality doubted that Ross was rightly de
cided, precisely because it believed the opinion was insuf
ficiently protective of the rights of American citizens. See
354 U. S., at 10–12; see also id., at 78 (Clark, J., dissent
ing) (noting that “four of my brothers would specifically
overrule and two would impair the long-recognized vitality
of an old and respected precedent in our law, the case of In
re Ross, 140 U. S. 453 (1891)”). But Justices Harlan and
Frankfurter, while willing to hold that the American
citizen petitioners in the cases before them were entitled
to the protections of Fifth and Sixth Amendments, were
unwilling to overturn Ross. 354 U. S., at 64 (Frankfurter,
J., concurring in result); id., at 75 (Harlan, J., concurring
32 BOUMEDIENE v. BUSH
Opinion of the Court
in result). Instead, the two concurring Justices distin
guished Ross from the cases before them, not on the basis
of the citizenship of the petitioners, but on practical con
siderations that made jury trial a more feasible option for
them than it was for the petitioner in Ross. If citizenship
had been the only relevant factor in the case, it would
have been necessary for the Court to overturn Ross, some
thing Justices Harlan and Frankfurter were unwilling to
do. See Verdugo-Urquidez, supra, at 277 (KENNEDY, J.,
concurring) (noting that Ross had not been overruled).
Practical considerations weighed heavily as well in
Johnson v. Eisentrager, 339 U. S. 763 (1950), where the
Court addressed whether habeas corpus jurisdiction ex
tended to enemy aliens who had been convicted of violat
ing the laws of war. The prisoners were detained at
Landsberg Prison in Germany during the Allied Powers’
postwar occupation. The Court stressed the difficulties of
ordering the Government to produce the prisoners in a
habeas corpus proceeding. It “would require allocation of
shipping space, guarding personnel, billeting and rations”
and would damage the prestige of military commanders at
a sensitive time. Id., at 779. In considering these factors
the Court sought to balance the constraints of military
occupation with constitutional necessities. Id., at 769–
779; see Rasul, 542 U. S., at 475–476 (discussing the
factors relevant to Eisentrager’s constitutional holding);
542 U. S., at 486 (KENNEDY, J., concurring in judgment)
(same).
True, the Court in Eisentrager denied access to the writ,
and it noted the prisoners “at no relevant time were
within any territory over which the United States is sov
ereign, and [that] the scenes of their offense, their capture,
their trial and their punishment were all beyond the
territorial jurisdiction of any court of the United States.”
339 U. S., at 778. The Government seizes upon this lan
guage as proof positive that the Eisentrager Court adopted
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Opinion of the Court
a formalistic, sovereignty-based test for determining the
reach of the Suspension Clause. See Brief for Respon
dents 18–20. We reject this reading for three reasons.
First, we do not accept the idea that the above-quoted
passage from Eisentrager is the only authoritative lan
guage in the opinion and that all the rest is dicta. The
Court’s further determinations, based on practical consid
erations, were integral to Part II of its opinion and came
before the decision announced its holding. See 339 U. S.,
at 781.
Second, because the United States lacked both de jure
sovereignty and plenary control over Landsberg Prison,
see infra, at 34–35, it is far from clear that the Eisentrager
Court used the term sovereignty only in the narrow tech
nical sense and not to connote the degree of control the
military asserted over the facility. See supra, at 21. The
Justices who decided Eisentrager would have understood
sovereignty as a multifaceted concept. See Black’s Law
Dictionary 1568 (4th ed. 1951) (defining “sovereignty” as
“[t]he supreme, absolute, and uncontrollable power by
which any independent state is governed”; “the interna
tional independence of a state, combined with the right
and power of regulating its internal affairs without foreign
dictation”; and “[t]he power to do everything in a state
without accountability”); Ballentine’s Law Dictionary with
Pronunciations 1216 (2d ed. 1948) (defining “sovereignty”
as “[t]hat public authority which commands in civil soci
ety, and orders and directs what each citizen is to perform
to obtain the end of its institution”). In its principal brief
in Eisentrager, the Government advocated a bright-line
test for determining the scope of the writ, similar to the
one it advocates in these cases. See Brief for Petitioners in
Johnson v. Eisentrager, O. T. 1949, No. 306, pp. 74–75.
Yet the Court mentioned the concept of territorial sover
eignty only twice in its opinion. See Eisentrager, supra, at
778, 780. That the Court devoted a significant portion of
34 BOUMEDIENE v. BUSH
Opinion of the Court
Part II to a discussion of practical barriers to the running
of the writ suggests that the Court was not concerned
exclusively with the formal legal status of Landsberg
Prison but also with the objective degree of control the
United States asserted over it. Even if we assume the
Eisentrager Court considered the United States’ lack of
formal legal sovereignty over Landsberg Prison as the
decisive factor in that case, its holding is not inconsistent
with a functional approach to questions of extraterritorial
ity. The formal legal status of a given territory affects, at
least to some extent, the political branches’ control over
that territory. De jure sovereignty is a factor that bears
upon which constitutional guarantees apply there.
Third, if the Government’s reading of Eisentrager were
correct, the opinion would have marked not only a change
in, but a complete repudiation of, the Insular Cases’ (and
later Reid’s) functional approach to questions of extrater
ritoriality. We cannot accept the Government’s view.
Nothing in Eisentrager says that de jure sovereignty is or
has ever been the only relevant consideration in determin
ing the geographic reach of the Constitution or of habeas
corpus. Were that the case, there would be considerable
tension between Eisentrager, on the one hand, and the
Insular Cases and Reid, on the other. Our cases need not
be read to conflict in this manner. A constricted reading of
Eisentrager overlooks what we see as a common thread
uniting the Insular Cases, Eisentrager, and Reid: the idea
that questions of extraterritoriality turn on objective
factors and practical concerns, not formalism.
B
The Government’s formal sovereignty-based test raises
troubling separation-of-powers concerns as well. The
political history of Guantanamo illustrates the deficiencies
of this approach. The United States has maintained
complete and uninterrupted control of the bay for over 100
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Opinion of the Court
years. At the close of the Spanish-American War, Spain
ceded control over the entire island of Cuba to the United
States and specifically “relinquishe[d] all claim[s] of sover
eignty . . . and title.” See Treaty of Paris, Dec. 10, 1898,
U. S.-Spain, Art. I, 30 Stat. 1755, T. S. No. 343. From the
date the treaty with Spain was signed until the Cuban
Republic was established on May 20, 1902, the United
States governed the territory “in trust” for the benefit of
the Cuban people. Neely v. Henkel, 180 U. S. 109, 120
(1901); H. Thomas, Cuba or The Pursuit of Freedom 436,
460 (1998). And although it recognized, by entering into
the 1903 Lease Agreement, that Cuba retained “ultimate
sovereignty” over Guantanamo, the United States contin
ued to maintain the same plenary control it had enjoyed
since 1898. Yet the Government’s view is that the Consti
tution had no effect there, at least as to noncitizens, be
cause the United States disclaimed sovereignty in the
formal sense of the term. The necessary implication of the
argument is that by surrendering formal sovereignty over
any unincorporated territory to a third party, while at the
same time entering into a lease that grants total control
over the territory back to the United States, it would be
possible for the political branches to govern without legal
constraint.
Our basic charter cannot be contracted away like this.
The Constitution grants Congress and the President the
power to acquire, dispose of, and govern territory, not the
power to decide when and where its terms apply. Even
when the United States acts outside its borders, its powers
are not “absolute and unlimited” but are subject “to such
restrictions as are expressed in the Constitution.” Murphy
v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from ques
tions involving formal sovereignty and territorial govern
ance is one thing. To hold the political branches have the
power to switch the Constitution on or off at will is quite
another. The former position reflects this Court’s recogni
36 BOUMEDIENE v. BUSH
Opinion of the Court
tion that certain matters requiring political judgments are
best left to the political branches. The latter would permit
a striking anomaly in our tripartite system of government,
leading to a regime in which Congress and the President,
not this Court, say “what the law is.” Marbury v. Madi-
son, 1 Cranch 137, 177 (1803).
These concerns have particular bearing upon the Sus
pension Clause question in the cases now before us, for the
writ of habeas corpus is itself an indispensable mechanism
for monitoring the separation of powers. The test for
determining the scope of this provision must not be subject
to manipulation by those whose power it is designed to
restrain.
C
As we recognized in Rasul, 542 U. S., at 476; id., at 487
(KENNEDY, J., concurring in judgment), the outlines of a
framework for determining the reach of the Suspension
Clause are suggested by the factors the Court relied upon
in Eisentrager. In addition to the practical concerns dis
cussed above, the Eisentrager Court found relevant that
each petitioner:
“(a) is an enemy alien; (b) has never been or resided in
the United States; (c) was captured outside of our ter
ritory and there held in military custody as a prisoner
of war; (d) was tried and convicted by a Military
Commission sitting outside the United States; (e) for
offenses against laws of war committed outside the
United States; (f) and is at all times imprisoned out
side the United States.” 339 U. S., at 777.
Based on this language from Eisentrager, and the reason
ing in our other extraterritoriality opinions, we conclude
that at least three factors are relevant in determining the
reach of the Suspension Clause: (1) the citizenship and
status of the detainee and the adequacy of the process
37 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
through which that status determination was made; (2)
the nature of the sites where apprehension and then
detention took place; and (3) the practical obstacles inher
ent in resolving the prisoner’s entitlement to the writ.
Applying this framework, we note at the onset that the
status of these detainees is a matter of dispute. The peti
tioners, like those in Eisentrager, are not American citi
zens. But the petitioners in Eisentrager did not contest, it
seems, the Court’s assertion that they were “enemy
alien[s].” Ibid. In the instant cases, by contrast, the
detainees deny they are enemy combatants. They have
been afforded some process in CSRT proceedings to de
termine their status; but, unlike in Eisentrager, supra, at
766, there has been no trial by military commission for
violations of the laws of war. The difference is not trivial.
The records from the Eisentrager trials suggest that, well
before the petitioners brought their case to this Court,
there had been a rigorous adversarial process to test the
legality of their detention. The Eisentrager petitioners
were charged by a bill of particulars that made detailed
factual allegations against them. See 14 United Nations
War Crimes Commission, Law Reports of Trials of War
Criminals 8–10 (1949) (reprint 1997). To rebut the accu
sations, they were entitled to representation by counsel,
allowed to introduce evidence on their own behalf, and
permitted to cross-examine the prosecution’s witnesses.
See Memorandum by Command of Lt. Gen. Wedemeyer,
Jan. 21, 1946 (establishing “Regulations Governing the
Trial of War Criminals” in the China Theater), in Tr. of
Record in Johnson v. Eisentrager, O. T. 1949, No. 306, pp.
34–40.
In comparison the procedural protections afforded to the
detainees in the CSRT hearings are far more limited, and,
we conclude, fall well short of the procedures and adver
sarial mechanisms that would eliminate the need for
habeas corpus review. Although the detainee is assigned a
38 BOUMEDIENE v. BUSH
Opinion of the Court
“Personal Representative” to assist him during CSRT
proceedings, the Secretary of the Navy’s memorandum
makes clear that person is not the detainee’s lawyer or
even his “advocate.” See App. to Pet. for Cert. in No. 06–
1196, at 155, 172. The Government’s evidence is accorded
a presumption of validity. Id., at 159. The detainee is
allowed to present “reasonably available” evidence, id., at
155, but his ability to rebut the Government’s evidence
against him is limited by the circumstances of his con
finement and his lack of counsel at this stage. And al
though the detainee can seek review of his status deter
mination in the Court of Appeals, that review process
cannot cure all defects in the earlier proceedings. See Part
V, infra.
As to the second factor relevant to this analysis, the
detainees here are similarly situated to the Eisentrager
petitioners in that the sites of their apprehension and
detention are technically outside the sovereign territory of
the United States. As noted earlier, this is a factor that
weighs against finding they have rights under the Sus
pension Clause. But there are critical differences between
Landsberg Prison, circa 1950, and the United States Na
val Station at Guantanamo Bay in 2008. Unlike its pre
sent control over the naval station, the United States’
control over the prison in Germany was neither absolute
nor indefinite. Like all parts of occupied Germany, the
prison was under the jurisdiction of the combined Allied
Forces. See Declaration Regarding the Defeat of Germany
and the Assumption of Supreme Authority with Respect to
Germany, June 5, 1945, U. S.-U. S. S. R.-U. K.-Fr., 60
Stat. 1649, T. I. A. S. No. 1520. The United States was
therefore answerable to its Allies for all activities occur
ring there. Cf. Hirota v. MacArthur, 338 U. S. 197, 198
(1948) (per curiam) (military tribunal set up by Gen.
Douglas MacArthur, acting as “the agent of the Allied
Powers,” was not a “tribunal of the United States”). The
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Opinion of the Court
Allies had not planned a long-term occupation of Ger
many, nor did they intend to displace all German institu
tions even during the period of occupation. See Agree
ments Respecting Basic Principles for Merger of the Three
Western German Zones of Occupation, and Other Matters,
Apr. 8, 1949, U. S.-U. K.-Fr., Art. 1, 63 Stat. 2819,
T. I. A. S. No. 2066 (establishing a governing framework
“[d]uring the period in which it is necessary that the occu
pation continue” and expressing the desire “that the Ger
man people shall enjoy self-government to the maximum
possible degree consistent with such occupation”). The
Court’s holding in Eisentrager was thus consistent with
the Insular Cases, where it had held there was no need to
extend full constitutional protections to territories the
United States did not intend to govern indefinitely. Guan
tanamo Bay, on the other hand, is no transient possession.
In every practical sense Guantanamo is not abroad; it is
within the constant jurisdiction of the United States. See
Rasul, 542 U. S., at 480; id., at 487 (KENNEDY, J., concur
ring in judgment).
As to the third factor, we recognize, as the Court did in
Eisentrager, that there are costs to holding the Suspension
Clause applicable in a case of military detention abroad.
Habeas corpus proceedings may require expenditure of
funds by the Government and may divert the attention of
military personnel from other pressing tasks. While we
are sensitive to these concerns, we do not find them dispo
sitive. Compliance with any judicial process requires
some incremental expenditure of resources. Yet civilian
courts and the Armed Forces have functioned along side
each other at various points in our history. See, e.g.,
Duncan v. Kahanamoku, 327 U. S. 304 (1946); Ex parte
Milligan, 4 Wall. 2 (1866). The Government presents no
credible arguments that the military mission at Guan
tanamo would be compromised if habeas corpus courts had
jurisdiction to hear the detainees’ claims. And in light of
40 BOUMEDIENE v. BUSH
Opinion of the Court
the plenary control the United States asserts over the
base, none are apparent to us.
The situation in Eisentrager was far different, given the
historical context and nature of the military’s mission in
post-War Germany. When hostilities in the European
Theater came to an end, the United States became respon
sible for an occupation zone encompassing over 57,000
square miles with a population of 18 million. See Letter
from President Truman to Secretary of State Byrnes,
(Nov. 28, 1945), in 8 Documents on American Foreign
Relations 257 (R. Dennett & R. Turner eds. 1948); Pollock,
A Territorial Pattern for the Military Occupation of Ger
many, 38 Am. Pol. Sci. Rev. 970, 975 (1944). In addition to
supervising massive reconstruction and aid efforts the
American forces stationed in Germany faced potential
security threats from a defeated enemy. In retrospect the
post-War occupation may seem uneventful. But at the
time Eisentrager was decided, the Court was right to be
concerned about judicial interference with the military’s
efforts to contain “enemy elements, guerrilla fighters, and
‘were-wolves.’” 339 U. S., at 784.
Similar threats are not apparent here; nor does the
Government argue that they are. The United States
Naval Station at Guantanamo Bay consists of 45 square
miles of land and water. The base has been used, at vari
ous points, to house migrants and refugees temporarily.
At present, however, other than the detainees themselves,
the only long-term residents are American military per
sonnel, their families, and a small number of workers. See
History of Guantanamo Bay online at https://www.cnic.
navy.mil/Guantanamo/AboutGTMO/gtmohistorygeneral/
gtmohistgeneral. The detainees have been deemed ene
mies of the United States. At present, dangerous as they
may be if released, they are contained in a secure prison
facility located on an isolated and heavily fortified military
base.
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There is no indication, furthermore, that adjudicating a
habeas corpus petition would cause friction with the host
government. No Cuban court has jurisdiction over Ameri
can military personnel at Guantanamo or the enemy
combatants detained there. While obligated to abide by
the terms of the lease, the United States is, for all practi
cal purposes, answerable to no other sovereign for its acts
on the base. Were that not the case, or if the detention
facility were located in an active theater of war, argu
ments that issuing the writ would be “impracticable or
anomalous” would have more weight. See Reid, 354 U. S.,
at 74 (Harlan, J., concurring in result). Under the facts
presented here, however, there are few practical barriers
to the running of the writ. To the extent barriers arise,
habeas corpus procedures likely can be modified to ad
dress them. See Part VI–B, infra.
It is true that before today the Court has never held
that noncitizens detained by our Government in territory
over which another country maintains de jure sovereignty
have any rights under our Constitution. But the cases
before us lack any precise historical parallel. They involve
individuals detained by executive order for the duration of
a conflict that, if measured from September 11, 2001, to
the present, is already among the longest wars in Ameri
can history. See Oxford Companion to American Military
History 849 (1999). The detainees, moreover, are held in a
territory that, while technically not part of the United
States, is under the complete and total control of our
Government. Under these circumstances the lack of a
precedent on point is no barrier to our holding.
We hold that Art. I, §9, cl. 2, of the Constitution has full
effect at Guantanamo Bay. If the privilege of habeas
corpus is to be denied to the detainees now before us,
Congress must act in accordance with the requirements of
the Suspension Clause. Cf. Hamdi, 542 U. S., at 564
(SCALIA, J., dissenting) (“[I]ndefinite imprisonment on
42 BOUMEDIENE v. BUSH
Opinion of the Court
reasonable suspicion is not an available option of treat
ment for those accused of aiding the enemy, absent a
suspension of the writ”). This Court may not impose a de
facto suspension by abstaining from these controversies.
See Hamdan, 548 U. S., at 585, n. 16 (“[A]bstention is not
appropriate in cases . . . in which the legal challenge
‘turn[s] on the status of the persons as to whom the mili
tary asserted its power’” (quoting Schlesinger v. Council-
man, 420 U. S. 738, 759 (1975))). The MCA does not
purport to be a formal suspension of the writ; and the
Government, in its submissions to us, has not argued that
it is. Petitioners, therefore, are entitled to the privilege of
habeas corpus to challenge the legality of their detention.
V
In light of this holding the question becomes whether
the statute stripping jurisdiction to issue the writ avoids
the Suspension Clause mandate because Congress has
provided adequate substitute procedures for habeas cor
pus. The Government submits there has been compliance
with the Suspension Clause because the DTA review
process in the Court of Appeals, see DTA §1005(e), pro
vides an adequate substitute. Congress has granted that
court jurisdiction to consider
“(i) whether the status determination of the [CSRT]
. . . was consistent with the standards and procedures
specified by the Secretary of Defense . . . and (ii) to the
extent the Constitution and laws of the United States
are applicable, whether the use of such standards and
procedures to make the determination is consistent
with the Constitution and laws of the United States.”
§1005(e)(2)(C), 119 Stat. 2742.
The Court of Appeals, having decided that the writ does
not run to the detainees in any event, found it unneces
sary to consider whether an adequate substitute has been
43 Cite as: 553 U. S. ____ (2008)
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provided. In the ordinary course we would remand to the
Court of Appeals to consider this question in the first
instance. See Youakim v. Miller, 425 U. S. 231, 234 (1976)
(per curiam). It is well settled, however, that the Court’s
practice of declining to address issues left unresolved in
earlier proceedings is not an inflexible rule. Ibid. Depar
ture from the rule is appropriate in “exceptional” circum
stances. See Cooper Industries, Inc. v. Aviall Services,
Inc., 543 U. S. 157, 169 (2004); Duignan v. United States,
274 U. S. 195, 200 (1927).
The gravity of the separation-of-powers issues raised by
these cases and the fact that these detainees have been
denied meaningful access to a judicial forum for a period of
years render these cases exceptional. The parties before
us have addressed the adequacy issue. While we would
have found it informative to consider the reasoning of the
Court of Appeals on this point, we must weigh that
against the harms petitioners may endure from additional
delay. And, given there are few precedents addressing
what features an adequate substitute for habeas corpus
must contain, in all likelihood a remand simply would
delay ultimate resolution of the issue by this Court.
We do have the benefit of the Court of Appeals’ con
struction of key provisions of the DTA. When we granted
certiorari in these cases, we noted “it would be of material
assistance to consult any decision” in the parallel DTA
review proceedings pending in the Court of Appeals, spe
cifically any rulings in the matter of Bismullah v. Gates.
551 U. S. ___ (2007). Although the Court of Appeals has
yet to complete a DTA review proceeding, the three-judge
panel in Bismullah has issued an interim order giving
guidance as to what evidence can be made part of the
record on review and what access the detainees can have
to counsel and to classified information. See 501 F. 3d 178
(CADC) (Bismullah I), reh’g denied, 503 F. 3d 137 (CADC
2007) (Bismullah II). In that matter the full court denied
44 BOUMEDIENE v. BUSH
Opinion of the Court
the Government’s motion for rehearing en banc, see Bis-
mullah v. Gates, 514 F. 3d 1291 (CADC 2008) (Bismullah
III). The order denying rehearing was accompanied by
five separate statements from members of the court, which
offer differing views as to scope of the judicial review
Congress intended these detainees to have. Ibid.
Under the circumstances we believe the costs of further
delay substantially outweigh any benefits of remanding to
the Court of Appeals to consider the issue it did not ad
dress in these cases.
A
Our case law does not contain extensive discussion of
standards defining suspension of the writ or of circum
stances under which suspension has occurred. This sim
ply confirms the care Congress has taken throughout our
Nation’s history to preserve the writ and its function.
Indeed, most of the major legislative enactments pertain
ing to habeas corpus have acted not to contract the writ’s
protection but to expand it or to hasten resolution of pris
oners’ claims. See, e.g., Habeas Corpus Act of 1867, ch. 28,
§1, 14 Stat. 385 (current version codified at 28 U. S. C.
§2241 (2000 ed. and Supp. V) (extending the federal writ
to state prisoners)); Cf. Harris v. Nelson, 394 U. S. 286,
299–300 (1969) (interpreting the All Writs Act, 28 U. S. C.
§1651, to allow discovery in habeas corpus proceedings);
Peyton v. Rowe, 391 U. S. 54, 64–65 (1968) (interpreting
the then-existing version of §2241 to allow petitioner to
proceed with his habeas corpus action, even though he had
not yet begun to serve his sentence).
There are exceptions, of course. Title I of the Antiterror
ism and Effective Death Penalty Act of 1996 (AEDPA),
§106, 110 Stat. 1220, contains certain gatekeeping provi
sions that restrict a prisoner’s ability to bring new and
repetitive claims in “second or successive” habeas corpus
actions. We upheld these provisions against a Suspension
45 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
Clause challenge in Felker v. Turpin, 518 U. S. 651, 662–
664 (1996). The provisions at issue in Felker, however, did
not constitute a substantial departure from common-law
habeas procedures. The provisions, for the most part,
codified the longstanding abuse-of-the-writ doctrine. Id.,
at 664; see also McCleskey v. Zant, 499 U. S. 467, 489
(1991). AEDPA applies, moreover, to federal, postconvic
tion review after criminal proceedings in state court have
taken place. As of this point, cases discussing the imple
mentation of that statute give little helpful instruction
(save perhaps by contrast) for the instant cases, where no
trial has been held.
The two leading cases addressing habeas substitutes,
Swain v. Pressley, 430 U. S. 372 (1977), and United States
v. Hayman, 342 U. S. 205 (1952), likewise provide little
guidance here. The statutes at issue were attempts to
streamline habeas corpus relief, not to cut it back.
The statute discussed in Hayman was 28 U. S. C. §2255.
It replaced traditional habeas corpus for federal prisoners
(at least in the first instance) with a process that allowed
the prisoner to file a motion with the sentencing court on
the ground that his sentence was, inter alia, “‘imposed in
violation of the Constitution or laws of the United States.’”
342 U. S., at 207, n. 1. The purpose and effect of the stat
ute was not to restrict access to the writ but to make
postconviction proceedings more efficient. It directed
claims not to the court that had territorial jurisdiction
over the place of the petitioner’s confinement but to the
sentencing court, a court already familiar with the facts of
the case. As the Hayman Court explained
“Section 2255 . . . was passed at the instance of the
Judicial Conference to meet practical difficulties that
had arisen in administering the habeas corpus juris
diction of the federal courts. Nowhere in the history
of Section 2255 do we find any purpose to impinge
46 BOUMEDIENE v. BUSH
Opinion of the Court
upon prisoners’ rights of collateral attack upon their
convictions. On the contrary, the sole purpose was to
minimize the difficulties encountered in habeas cor
pus hearings by affording the same rights in another
and more convenient forum.” Id., at 219.
See also Hill v. United States, 368 U. S. 424, 427, 428, and
n. 5 (1962) (noting that §2255 provides a remedy in the
sentencing court that is “exactly commensurate” with the
pre-existing federal habeas corpus remedy).
The statute in Swain, D. C. Code Ann. §23–110(g)
(1973), applied to prisoners in custody under sentence of
the Superior Court of the District of Columbia. Before
enactment of the District of Columbia Court Reform and
Criminal Procedure Act of 1970 (D. C. Court Reform Act),
84 Stat. 473, those prisoners could file habeas petitions in
the United States District Court for the District of Colum
bia. The Act, which was patterned on §2255, substituted a
new collateral process in the Superior Court for the pre
existing habeas corpus procedure in the District Court.
See Swain, 430 U. S., at 374–378. But, again, the purpose
and effect of the statute was to expedite consideration of
the prisoner’s claims, not to delay or frustrate it. See id.,
at 375, n. 4 (noting that the purpose of the D. C. Court
Reform Act was to “alleviate” administrative burdens on
the District Court).
That the statutes in Hayman and Swain were designed
to strengthen, rather than dilute, the writ’s protections
was evident, furthermore, from this significant fact: Nei
ther statute eliminated traditional habeas corpus relief.
In both cases the statute at issue had a saving clause,
providing that a writ of habeas corpus would be available
if the alternative process proved inadequate or ineffective.
Swain, supra, at 381; Hayman, supra, at 223. The Court
placed explicit reliance upon these provisions in upholding
the statutes against constitutional challenges. See Swain,
47 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
supra, at 381 (noting that the provision “avoid[ed] any
serious question about the constitutionality of the stat
ute”); Hayman, supra, at 223 (noting that, because habeas
remained available as a last resort, it was unnecessary to
“reach constitutional questions”).
Unlike in Hayman and Swain, here we confront stat
utes, the DTA and the MCA, that were intended to cir
cumscribe habeas review. Congress’ purpose is evident
not only from the unequivocal nature of MCA §7’s jurisdic
tion-stripping language, 28 U. S. C. A. §2241(e)(1) (Supp.
2007) (“No court, justice, or judge shall have jurisdiction to
hear or consider an application for a writ of habeas corpus
. . .”), but also from a comparison of the DTA to the stat
utes at issue in Hayman and Swain. When interpreting a
statute, we examine related provisions in other parts of
the U. S. Code. See, e.g., West Virginia Univ. Hospitals,
Inc. v. Casey, 499 U. S. 83, 88–97 (1991); Babbitt v. Sweet
Home Chapter, Communities for Great Ore., 515 U. S. 687,
717–718 (1995) (SCALIA, J., dissenting); see generally W.
Eskridge, P. Frickey, & E. Garrett, Cases and Materials
on Legislation: Statutes and the Creation of Public Policy
1039 (3d ed. 2001). When Congress has intended to re
place traditional habeas corpus with habeas-like substi
tutes, as was the case in Hayman and Swain, it has
granted to the courts broad remedial powers to secure the
historic office of the writ. In the §2255 context, for exam
ple, Congress has granted to the reviewing court power to
“determine the issues and make findings of fact and con
clusions of law” with respect to whether “the judgment [of
conviction] was rendered without jurisdiction, or . . . the
sentence imposed was not authorized by law or otherwise
open to collateral attack.” 28 U. S. C. A. §2255(b) (Supp.
2008). The D. C. Court Reform Act, the statute upheld in
Swain, contained a similar provision. §23–110(g), 84 Stat.
609.
In contrast the DTA’s jurisdictional grant is quite lim
48 BOUMEDIENE v. BUSH
Opinion of the Court
ited. The Court of Appeals has jurisdiction not to inquire
into the legality of the detention generally but only to
assess whether the CSRT complied with the “standards
and procedures specified by the Secretary of Defense” and
whether those standards and procedures are lawful. DTA
§1005(e)(2)(C), 119 Stat. 2742. If Congress had envisioned
DTA review as coextensive with traditional habeas corpus,
it would not have drafted the statute in this manner.
Instead, it would have used language similar to what it
used in the statutes at issue in Hayman and Swain. Cf.
Russello v. United States, 464 U. S. 16, 23 (1983)
(“‘[W]here Congress includes particular language in one
section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion’” (quoting United States v. Wong Kim Bo, 472
F. 2d 720, 722 (CA5 1972))). Unlike in Hayman and
Swain, moreover, there has been no effort to preserve
habeas corpus review as an avenue of last resort. No
saving clause exists in either the MCA or the DTA. And
MCA §7 eliminates habeas review for these petitioners.
The differences between the DTA and the habeas stat
ute that would govern in MCA §7’s absence, 28 U. S. C.
§2241 (2000 ed. and Supp. V), are likewise telling. In
§2241 (2000 ed.) Congress confirmed the authority of “any
justice” or “circuit judge” to issue the writ. Cf. Felker, 518
U. S., at 660–661 (interpreting Title I of AEDPA to not
strip from this Court the power to entertain original ha
beas corpus petitions). That statute accommodates the
necessity for factfinding that will arise in some cases by
allowing the appellate judge or Justice to transfer the case
to a district court of competent jurisdiction, whose institu
tional capacity for factfinding is superior to his or her own.
See 28 U. S. C. §2241(b). By granting the Court of Ap
peals “exclusive” jurisdiction over petitioners’ cases, see
DTA §1005(e)(2)(A), 119 Stat. 2742, Congress has fore
49 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
closed that option. This choice indicates Congress in
tended the Court of Appeals to have a more limited role in
enemy combatant status determinations than a district
court has in habeas corpus proceedings. The DTA should
be interpreted to accord some latitude to the Court of
Appeals to fashion procedures necessary to make its re
view function a meaningful one, but, if congressional
intent is to be respected, the procedures adopted cannot be
as extensive or as protective of the rights of the detainees
as they would be in a §2241 proceeding. Otherwise there
would have been no, or very little, purpose for enacting the
DTA.
To the extent any doubt remains about Congress’ intent,
the legislative history confirms what the plain text
strongly suggests: In passing the DTA Congress did not
intend to create a process that differs from traditional
habeas corpus process in name only. It intended to create
a more limited procedure. See, e.g., 151 Cong. Rec. S14263
(Dec. 21, 2005) (statement of Sen. Graham) (noting that
the DTA “extinguish[es] these habeas and other actions in
order to effect a transfer of jurisdiction over these cases to
the DC Circuit Court” and agreeing that the bill “create[s]
in their place a very limited judicial review of certain
military administrative decisions”); id., at S14268 (state
ment of Sen. Kyl) (“It is important to note that the limited
judicial review authorized by paragraphs 2 and 3 of sub
section (e) [of DTA §1005] are not habeas-corpus review.
It is a limited judicial review of its own nature”).
It is against this background that we must interpret the
DTA and assess its adequacy as a substitute for habeas
corpus. The present cases thus test the limits of the Sus
pension Clause in ways that Hayman and Swain did not.
B
We do not endeavor to offer a comprehensive summary
of the requisites for an adequate substitute for habeas
50 BOUMEDIENE v. BUSH
Opinion of the Court
corpus. We do consider it uncontroversial, however, that
the privilege of habeas corpus entitles the prisoner to a
meaningful opportunity to demonstrate that he is being
held pursuant to “the erroneous application or interpreta
tion” of relevant law. St. Cyr, 533 U. S., at 302. And the
habeas court must have the power to order the conditional
release of an individual unlawfully detained—though
release need not be the exclusive remedy and is not the
appropriate one in every case in which the writ is granted.
See Ex parte Bollman, 4 Cranch 75, 136 (1807) (where
imprisonment is unlawful, the court “can only direct [the
prisoner] to be discharged”); R. Hurd, Treatise on the
Right of Personal Liberty, and On the Writ of Habeas
Corpus and the Practice Connected with It: With a View of
the Law of Extradition of Fugitives 222 (2d ed. 1876) (“It
cannot be denied where ‘a probable ground is shown that
the party is imprisoned without just cause, and therefore,
hath a right to be delivered,’ for the writ then becomes a
‘writ of right, which may not be denied but ought to be
granted to every man that is committed or detained in
prison or otherwise restrained of his liberty’”). But see
Chessman v. Teets, 354 U. S. 156, 165–166 (1957) (re
manding in a habeas case for retrial within a “reasonable
time”). These are the easily identified attributes of any
constitutionally adequate habeas corpus proceeding.
But, depending on the circumstances, more may be
required.
Indeed, common-law habeas corpus was, above all, an
adaptable remedy. Its precise application and scope
changed depending upon the circumstances. See 3 Black-
stone *131 (describing habeas as “the great and efficacious
writ, in all manner of illegal confinement”); see also
Schlup v. Delo, 513 U. S. 298, 319 (1995) (Habeas “is, at
its core, an equitable remedy”); Jones v. Cunningham, 371
U. S. 236, 243 (1963) (Habeas is not “a static, narrow,
formalistic remedy; its scope has grown to achieve its
51 Cite as: 553 U. S. ____ (2008)
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grand purpose”). It appears the common-law habeas
court’s role was most extensive in cases of pretrial and
noncriminal detention, where there had been little or no
previous judicial review of the cause for detention. Nota
bly, the black-letter rule that prisoners could not contro
vert facts in the jailer’s return was not followed (or at least
not with consistency) in such cases. Hurd, supra, at 271
(noting that the general rule was “subject to exceptions”
including cases of bail and impressment); Oakes, Legal
History in the High Court—Habeas Corpus, 64 Mich. L.
Rev. 451, 457 (1966) (“[W]hen a prisoner applied for ha
beas corpus before indictment or trial, some courts exam
ined the written depositions on which he had been ar
rested or committed, and others even heard oral testimony
to determine whether the evidence was sufficient to justi
fying holding him for trial” (footnotes omitted)); Fallon &
Meltzer, Habeas Corpus Jurisdiction, Substantive Rights,
and the War on Terror, 120 Harv. L. Rev. 2029, 2102
(2007) (“[T]he early practice was not consistent: courts
occasionally permitted factual inquiries when no other
opportunity for judicial review existed”).
There is evidence from 19th-century American sources
indicating that, even in States that accorded strong res
judicata effect to prior adjudications, habeas courts in this
country routinely allowed prisoners to introduce exculpa
tory evidence that was either unknown or previously
unavailable to the prisoner. See, e.g., Ex parte Pattison,
56 Miss. 161, 164 (1878) (noting that “[w]hile the former
adjudication must be considered as conclusive on the
testimony then adduced” “newly developed exculpatory
evidence . . . may authorize the admission to bail”); Ex
parte Foster, 5 Tex. Ct. App. 625, 644 (1879) (construing
the State’s habeas statute to allow for the introduction of
new evidence “where important testimony has been ob
tained, which, though not newly discovered, or which,
though known to [the petitioner], it was not in his power
52 BOUMEDIENE v. BUSH
Opinion of the Court
to produce at the former hearing; [and] where the evidence
was newly discovered”); People v. Martin, 7 N. Y. Leg. Obs.
49, 56 (1848) (“If in custody on criminal process before
indictment, the prisoner has an absolute right to demand
that the original depositions be looked into to see whether
any crime is in fact imputed to him, and the inquiry will
by no means be confined to the return. Facts out of the
return may be gone into to ascertain whether the commit
ting magistrate may not have arrived at an illogical con
clusion upon the evidence given before him . . .”); see
generally W. Church, Treatise on the Writ of Habeas
Corpus §182, p. 235 1886) (hereinafter Church) (noting
that habeas courts would “hear evidence anew if justice
require it”). Justice McLean, on Circuit in 1855, expressed
his view that a habeas court should consider a prior judg
ment conclusive “where there was clearly jurisdiction and
a full and fair hearing; but that it might not be so consid
ered when any of these requisites were wanting.” Ex parte
Robinson, 20 F. Cas. 969, 971, (No. 11,935) (CC Ohio
1855). To illustrate the circumstances in which the prior
adjudication did not bind the habeas court, he gave the
example of a case in which “[s]everal unimpeached wit
nesses” provided new evidence to exculpate the prisoner.
Ibid.
The idea that the necessary scope of habeas review in
part depends upon the rigor of any earlier proceedings
accords with our test for procedural adequacy in the due
process context. See Mathews v. Eldridge, 424 U. S. 319,
335 (1976) (noting that the Due Process Clause requires
an assessment of, inter alia, “the risk of an erroneous
deprivation of [a liberty interest;] and the probable value,
if any, of additional or substitute procedural safeguards”).
This principle has an established foundation in habeas
corpus jurisprudence as well, as Chief Justice Marshall’s
opinion in Ex parte Watkins, 3 Pet. 193 (1830), demon
strates. Like the petitioner in Swain, Watkins sought a
53 Cite as: 553 U. S. ____ (2008)
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writ of habeas corpus after being imprisoned pursuant to a
judgment of a District of Columbia court. In holding that
the judgment stood on “high ground,” 3 Pet., at 209, the
Chief Justice emphasized the character of the court that
rendered the original judgment, noting it was a “court of
record, having general jurisdiction over criminal cases.”
Id., at 203. In contrast to “inferior” tribunals of limited
jurisdiction, ibid., courts of record had broad remedial
powers, which gave the habeas court greater confidence in
the judgment’s validity. See generally Neuman, Habeas
Corpus, Executive Detention, and the Removal of Aliens,
98 Colum. L. Rev. 961, 982–983 (1998).
Accordingly, where relief is sought from a sentence that
resulted from the judgment of a court of record, as was the
case in Watkins and indeed in most federal habeas cases,
considerable deference is owed to the court that ordered
confinement. See Brown v. Allen, 344 U. S. 443, 506
(1953) (opinion of Frankfurter, J.) (noting that a federal
habeas court should accept a state court’s factual findings
unless “a vital flaw be found in the process of ascertaining
such facts in the State court”). Likewise in those cases the
prisoner should exhaust adequate alternative remedies
before filing for the writ in federal court. See Ex parte
Royall, 117 U. S. 241, 251–252 (1886) (requiring exhaus
tion of state collateral processes). Both aspects of federal
habeas corpus review are justified because it can be as
sumed that, in the usual course, a court of record provides
defendants with a fair, adversary proceeding. In cases
involving state convictions this framework also respects
federalism; and in federal cases it has added justification
because the prisoner already has had a chance to seek
review of his conviction in a federal forum through a direct
appeal. The present cases fall outside these categories,
however; for here the detention is by executive order.
Where a person is detained by executive order, rather
than, say, after being tried and convicted in a court, the
54 BOUMEDIENE v. BUSH
Opinion of the Court
need for collateral review is most pressing. A criminal
conviction in the usual course occurs after a judicial hear
ing before a tribunal disinterested in the outcome and
committed to procedures designed to ensure its own inde
pendence. These dynamics are not inherent in executive
detention orders or executive review procedures. In this
context the need for habeas corpus is more urgent. The
intended duration of the detention and the reasons for it
bear upon the precise scope of the inquiry. Habeas corpus
proceedings need not resemble a criminal trial, even when
the detention is by executive order. But the writ must be
effective. The habeas court must have sufficient authority
to conduct a meaningful review of both the cause for de
tention and the Executive’s power to detain.
To determine the necessary scope of habeas corpus
review, therefore, we must assess the CSRT process, the
mechanism through which petitioners’ designation as
enemy combatants became final. Whether one character
izes the CSRT process as direct review of the Executive’s
battlefield determination that the detainee is an enemy
combatant—as the parties have and as we do—or as the
first step in the collateral review of a battlefield determi
nation makes no difference in a proper analysis of whether
the procedures Congress put in place are an adequate
substitute for habeas corpus. What matters is the sum
total of procedural protections afforded to the detainee at
all stages, direct and collateral.
Petitioners identify what they see as myriad deficiencies
in the CSRTs. The most relevant for our purposes are the
constraints upon the detainee’s ability to rebut the factual
basis for the Government’s assertion that he is an enemy
combatant. As already noted, see Part IV–C, supra, at the
CSRT stage the detainee has limited means to find or
present evidence to challenge the Government’s case
against him. He does not have the assistance of counsel
and may not be aware of the most critical allegations that
55 Cite as: 553 U. S. ____ (2008)
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the Government relied upon to order his detention. See
App. to Pet. for Cert. in No. 06–1196, at 156, ¶F(8) (noting
that the detainee can access only the “unclassified portion
of the Government Information”). The detainee can con
front witnesses that testify during the CSRT proceedings.
Id., at 144, ¶g(8). But given that there are in effect no
limits on the admission of hearsay evidence—the only
requirement is that the tribunal deem the evidence “rele
vant and helpful,” ibid., ¶g(9)—the detainee’s opportunity
to question witnesses is likely to be more theoretical than
real.
The Government defends the CSRT process, arguing
that it was designed to conform to the procedures sug
gested by the plurality in Hamdi. See 542 U. S., at 538.
Setting aside the fact that the relevant language in Hamdi
did not garner a majority of the Court, it does not control
the matter at hand. None of the parties in Hamdi argued
there had been a suspension of the writ. Nor could they.
The §2241 habeas corpus process remained in place, id., at
525. Accordingly, the plurality concentrated on whether
the Executive had the authority to detain and, if so, what
rights the detainee had under the Due Process Clause.
True, there are places in the Hamdi plurality opinion
where it is difficult to tell where its extrapolation of §2241
ends and its analysis of the petitioner’s Due Process rights
begins. But the Court had no occasion to define the neces
sary scope of habeas review, for Suspension Clause pur
poses, in the context of enemy combatant detentions. The
closest the plurality came to doing so was in discussing
whether, in light of separation-of-powers concerns, §2241
should be construed to forbid the District Court from
inquiring beyond the affidavit Hamdi’s custodian provided
in answer to the detainee’s habeas petition. The plurality
answered this question with an emphatic “no.” Id., at 527
(labeling this argument as “extreme”); id., at 535–536.
Even if we were to assume that the CSRTs satisfy due
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Opinion of the Court
process standards, it would not end our inquiry. Habeas
corpus is a collateral process that exists, in Justice
Holmes’ words, to “cu[t] through all forms and g[o] to the
very tissue of the structure. It comes in from the outside,
not in subordination to the proceedings, and although
every form may have been preserved opens the inquiry
whether they have been more than an empty shell.”
Frank v. Mangum, 237 U. S. 309, 346 (1915) (dissenting
opinion). Even when the procedures authorizing detention
are structurally sound, the Suspension Clause remains
applicable and the writ relevant. See 2 Chambers, Course
of Lectures on English Law 1767–1773, at 6 (“Liberty may
be violated either by arbitrary imprisonment without law
or the appearance of law, or by a lawful magistrate for an
unlawful reason”). This is so, as Hayman and Swain
make clear, even where the prisoner is detained after a
criminal trial conducted in full accordance with the protec
tions of the Bill of Rights. Were this not the case, there
would have been no reason for the Court to inquire into
the adequacy of substitute habeas procedures in Hayman
and Swain. That the prisoners were detained pursuant to
the most rigorous proceedings imaginable, a full criminal
trial, would have been enough to render any habeas sub
stitute acceptable per se.
Although we make no judgment as to whether the
CSRTs, as currently constituted, satisfy due process stan
dards, we agree with petitioners that, even when all the
parties involved in this process act with diligence and in
good faith, there is considerable risk of error in the tribu
nal’s findings of fact. This is a risk inherent in any proc
ess that, in the words of the former Chief Judge of the
Court of Appeals, is “closed and accusatorial.” See Bis-
mullah III, 514 F. 3d, at 1296 (Ginsburg, C. J., concurring
in denial of rehearing en banc). And given that the conse
quence of error may be detention of persons for the dura
tion of hostilities that may last a generation or more, this
57 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
is a risk too significant to ignore.
For the writ of habeas corpus, or its substitute, to func
tion as an effective and proper remedy in this context, the
court that conducts the habeas proceeding must have the
means to correct errors that occurred during the CSRT
proceedings. This includes some authority to assess the
sufficiency of the Government’s evidence against the
detainee. It also must have the authority to admit and
consider relevant exculpatory evidence that was not intro
duced during the earlier proceeding. Federal habeas
petitioners long have had the means to supplement the
record on review, even in the postconviction habeas set
ting. See Townsend v. Sain, 372 U. S. 293, 313 (1963),
overruled in part by Keeney v. Tamayo-Reyes, 504 U. S. 1,
5 (1992). Here that opportunity is constitutionally
required.
Consistent with the historic function and province of the
writ, habeas corpus review may be more circumscribed if
the underlying detention proceedings are more thorough
than they were here. In two habeas cases involving enemy
aliens tried for war crimes, In re Yamashita, 327 U. S. 1
(1946), and Ex parte Quirin, 317 U. S. 1 (1942), for exam
ple, this Court limited its review to determining whether
the Executive had legal authority to try the petitioners by
military commission. See Yamashita, supra, at 8 (“[O]n
application for habeas corpus we are not concerned with
the guilt or innocence of the petitioners. We consider here
only the lawful power of the commission to try the peti
tioner for the offense charged”); Quirin, supra, at 25 (“We
are not here concerned with any question of the guilt or
innocence of petitioners”). Military courts are not courts of
record. See Watkins, 3 Pet., at 209; Church 513. And the
procedures used to try General Yamashita have been
sharply criticized by Members of this Court. See Hamdan,
548 U. S., at 617; Yamashita, supra, at 41–81 (Rutledge,
J., dissenting). We need not revisit these cases, however.
58 BOUMEDIENE v. BUSH
Opinion of the Court
For on their own terms, the proceedings in Yamashita and
Quirin, like those in Eisentrager, had an adversarial
structure that is lacking here. See Yamashita, supra, at 5
(noting that General Yamashita was represented by six
military lawyers and that “[t]hroughout the proceedings
. . . defense counsel . . . demonstrated their professional
skill and resourcefulness and their proper zeal for the
defense with which they were charged”); Quirin, supra, at
23–24; Exec. Order No. 9185, 7 Fed. Reg. 5103 (1942)
(appointing counsel to represent the German saboteurs).
The extent of the showing required of the Government
in these cases is a matter to be determined. We need not
explore it further at this stage. We do hold that when the
judicial power to issue habeas corpus properly is invoked
the judicial officer must have adequate authority to make
a determination in light of the relevant law and facts and
to formulate and issue appropriate orders for relief, in
cluding, if necessary, an order directing the prisoner’s
release.
C
We now consider whether the DTA allows the Court of
Appeals to conduct a proceeding meeting these standards.
“[W]e are obligated to construe the statute to avoid [con
stitutional] problems” if it is “‘fairly possible’” to do so. St.
Cyr, 533 U. S., at 299–300 (quoting Crowell v. Benson, 285
U. S. 22, 62 (1932)). There are limits to this principle,
however. The canon of constitutional avoidance does not
supplant traditional modes of statutory interpretation.
See Clark v. Martinez, 543 U. S. 371, 385 (2005) (“The
canon of constitutional avoidance comes into play only
when, after the application of ordinary textual analysis,
the statute is found to be susceptible of more than one
construction; and the canon functions as a means of choos-
ing between them”). We cannot ignore the text and pur
pose of a statute in order to save it.
59 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
The DTA does not explicitly empower the Court of Ap
peals to order the applicant in a DTA review proceeding
released should the court find that the standards and
procedures used at his CSRT hearing were insufficient to
justify detention. This is troubling. Yet, for present pur
poses, we can assume congressional silence permits a
constitutionally required remedy. In that case it would be
possible to hold that a remedy of release is impliedly
provided for. The DTA might be read, furthermore, to
allow the petitioners to assert most, if not all, of the legal
claims they seek to advance, including their most basic
claim: that the President has no authority under the
AUMF to detain them indefinitely. (Whether the Presi
dent has such authority turns on whether the AUMF
authorizes—and the Constitution permits—the indefinite
detention of “enemy combatants” as the Department of
Defense defines that term. Thus a challenge to the Presi
dent’s authority to detain is, in essence, a challenge to the
Department’s definition of enemy combatant, a “standard”
used by the CSRTs in petitioners’ cases.) At oral argu
ment, the Solicitor General urged us to adopt both these
constructions, if doing so would allow MCA §7 to remain
intact. See Tr. of Oral Arg. 37, 53.
The absence of a release remedy and specific language
allowing AUMF challenges are not the only constitutional
infirmities from which the statute potentially suffers,
however. The more difficult question is whether the DTA
permits the Court of Appeals to make requisite findings of
fact. The DTA enables petitioners to request “review” of
their CSRT determination in the Court of Appeals, DTA
§1005(e)(2)(B)(i), 119 Stat. 2742; but the “Scope of Review”
provision confines the Court of Appeals’ role to reviewing
whether the CSRT followed the “standards and proce
dures” issued by the Department of Defense and assessing
whether those “standards and procedures” are lawful.
§1005(e)(C), ibid. Among these standards is “the require
60 BOUMEDIENE v. BUSH
Opinion of the Court
ment that the conclusion of the Tribunal be supported by a
preponderance of the evidence . . . allowing a rebuttable
presumption in favor of the Government’s evidence.”
§1005(e)(C)(i), ibid.
Assuming the DTA can be construed to allow the Court
of Appeals to review or correct the CSRT’s factual deter
minations, as opposed to merely certifying that the tribu
nal applied the correct standard of proof, we see no way to
construe the statute to allow what is also constitutionally
required in this context: an opportunity for the detainee to
present relevant exculpatory evidence that was not made
part of the record in the earlier proceedings.
On its face the statute allows the Court of Appeals to
consider no evidence outside the CSRT record. In the
parallel litigation, however, the Court of Appeals deter
mined that the DTA allows it to order the production of all
“‘reasonably available information in the possession of the
U. S. Government bearing on the issue of whether the
detainee meets the criteria to be designated as an enemy
combatant,’” regardless of whether this evidence was put
before the CSRT. See Bismullah I, 501 F. 3d, at 180. The
Government, see Pet. for Cert. pending in Gates v. Bismul-
lah, No. 07–1054 (hereinafter Bismullah Pet.), with sup
port from five members of the Court of Appeals, see Bis-
mullah III, 514 F. 3d, at 1299 (Henderson, J., dissenting
from denial of rehearing en banc); id., at 1302 (opinion of
Randolph, J.) (same); id., at 1306 (opinion of Brown, J.)
(same), disagrees with this interpretation. For present
purposes, however, we can assume that the Court of Ap
peals was correct that the DTA allows introduction and
consideration of relevant exculpatory evidence that was
“reasonably available” to the Government at the time of
the CSRT but not made part of the record. Even so, the
DTA review proceeding falls short of being a constitution
ally adequate substitute, for the detainee still would have
no opportunity to present evidence discovered after the
61 Cite as: 553 U. S. ____ (2008)
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CSRT proceedings concluded.
Under the DTA the Court of Appeals has the power to
review CSRT determinations by assessing the legality of
standards and procedures. This implies the power to
inquire into what happened at the CSRT hearing and,
perhaps, to remedy certain deficiencies in that proceeding.
But should the Court of Appeals determine that the CSRT
followed appropriate and lawful standards and proce
dures, it will have reached the limits of its jurisdiction.
There is no language in the DTA that can be construed to
allow the Court of Appeals to admit and consider newly
discovered evidence that could not have been made part of
the CSRT record because it was unavailable to either the
Government or the detainee when the CSRT made its
findings. This evidence, however, may be critical to the
detainee’s argument that he is not an enemy combatant
and there is no cause to detain him.
This is not a remote hypothetical. One of the petition
ers, Mohamed Nechla, requested at his CSRT hearing that
the Government contact his employer. The petitioner
claimed the employer would corroborate Nechla’s conten
tion he had no affiliation with al Qaeda. Although the
CSRT determined this testimony would be relevant, it also
found the witness was not reasonably available to testify
at the time of the hearing. Petitioner’s counsel, however,
now represents the witness is available to be heard. See
Brief for Boumediene Petitioners 5. If a detainee can
present reasonably available evidence demonstrating
there is no basis for his continued detention, he must have
the opportunity to present this evidence to a habeas cor
pus court. Even under the Court of Appeals’ generous
construction of the DTA, however, the evidence identified
by Nechla would be inadmissible in a DTA review proceed
ing. The role of an Article III court in the exercise of its
habeas corpus function cannot be circumscribed in this
manner.
62 BOUMEDIENE v. BUSH
Opinion of the Court
By foreclosing consideration of evidence not presented or
reasonably available to the detainee at the CSRT proceed
ings, the DTA disadvantages the detainee by limiting the
scope of collateral review to a record that may not be
accurate or complete. In other contexts, e.g., in post-trial
habeas cases where the prisoner already has had a full
and fair opportunity to develop the factual predicate of his
claims, similar limitations on the scope of habeas review
may be appropriate. See Williams v. Taylor, 529 U. S.
420, 436–437 (2000) (noting that §2254 “does not equate
prisoners who exercise diligence in pursuing their claims
with those who do not”). In this context, however, where
the underlying detention proceedings lack the necessary
adversarial character, the detainee cannot be held respon
sible for all deficiencies in the record.
The Government does not make the alternative argu
ment that the DTA allows for the introduction of previ
ously unavailable exculpatory evidence on appeal. It does
point out, however, that if a detainee obtains such evi
dence, he can request that the Deputy Secretary of De
fense convene a new CSRT. See Supp. Brief for Respon
dents 4. Whatever the merits of this procedure, it is an
insufficient replacement for the factual review these de
tainees are entitled to receive through habeas corpus. The
Deputy Secretary’s determination whether to initiate new
proceedings is wholly a discretionary one. See Dept. of
Defense, Office for the Administrative Review of the De
tention of Enemy Combatants, Instruction 5421.1, Proce
dure for Review of “New Evidence” Relating to Enemy
Combatant (EC) Status ¶5(d) (May 7, 2007) (Instruction
5421.1) (“The decision to convene a CSRT to reconsider the
basis of the detainee’s [enemy combatant] status in light of
‘new evidence’ is a matter vested in the unreviewable
discretion of the [Deputy Secretary of Defense]”). And we
see no way to construe the DTA to allow a detainee to
challenge the Deputy Secretary’s decision not to open a
63 Cite as: 553 U. S. ____ (2008)
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new CSRT pursuant to Instruction 5421.1. Congress
directed the Secretary of Defense to devise procedures for
considering new evidence, see DTA §1005(a)(3), but the
detainee has no mechanism for ensuring that those proce
dures are followed. DTA §1005(e)(2)(C), 119 Stat. 2742,
makes clear that the Court of Appeals’ jurisdiction is
“limited to consideration of . . . whether the status deter
mination of the Combatant Status Review Tribunal with
regard to such alien was consistent with the standards
and procedures specified by the Secretary of Defense . . .
and . . . whether the use of such standards and procedures
to make the determination is consistent with the Constitu
tion and laws of the United States.” DTA §1005(e)(2)(A),
ibid., further narrows the Court of Appeals’ jurisdiction to
reviewing “any final decision of a Combatant Status Re
view Tribunal that an alien is properly detained as an
enemy combatant.” The Deputy Secretary’s determination
whether to convene a new CSRT is not a “status determi
nation of the Combatant Status Review Tribunal,” much
less a “final decision” of that body.
We do not imply DTA review would be a constitutionally
sufficient replacement for habeas corpus but for these
limitations on the detainee’s ability to present exculpatory
evidence. For even if it were possible, as a textual matter,
to read into the statute each of the necessary procedures
we have identified, we could not overlook the cumulative
effect of our doing so. To hold that the detainees at Guan
tanamo may, under the DTA, challenge the President’s
legal authority to detain them, contest the CSRT’s find
ings of fact, supplement the record on review with excul
patory evidence, and request an order of release would
come close to reinstating the §2241 habeas corpus process
Congress sought to deny them. The language of the stat
ute, read in light of Congress’ reasons for enacting it,
cannot bear this interpretation. Petitioners have met
their burden of establishing that the DTA review process
64 BOUMEDIENE v. BUSH
Opinion of the Court
is, on its face, an inadequate substitute for habeas corpus.
Although we do not hold that an adequate substitute
must duplicate §2241 in all respects, it suffices that the
Government has not established that the detainees’ access
to the statutory review provisions at issue is an adequate
substitute for the writ of habeas corpus. MCA §7 thus
effects an unconstitutional suspension of the writ. In view
of our holding we need not discuss the reach of the writ
with respect to claims of unlawful conditions of treatment
or confinement.
VI
A
In light of our conclusion that there is no jurisdictional
bar to the District Court’s entertaining petitioners’ claims
the question remains whether there are prudential barri
ers to habeas corpus review under these circumstances.
The Government argues petitioners must seek review of
their CSRT determinations in the Court of Appeals before
they can proceed with their habeas corpus actions in the
District Court. As noted earlier, in other contexts and for
prudential reasons this Court has required exhaustion of
alternative remedies before a prisoner can seek federal
habeas relief. Most of these cases were brought by prison
ers in state custody, e.g., Ex parte Royall, 117 U. S. 241,
and thus involved federalism concerns that are not rele
vant here. But we have extended this rule to require
defendants in courts-martial to exhaust their military
appeals before proceeding with a federal habeas corpus
action. See Schlesinger, 420 U. S., at 758.
The real risks, the real threats, of terrorist attacks are
constant and not likely soon to abate. The ways to disrupt
our life and laws are so many and unforeseen that the
Court should not attempt even some general catalogue of
crises that might occur. Certain principles are apparent,
however. Practical considerations and exigent circum
65 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
stances inform the definition and reach of the law’s writs,
including habeas corpus. The cases and our tradition
reflect this precept.
In cases involving foreign citizens detained abroad by
the Executive, it likely would be both an impractical and
unprecedented extension of judicial power to assume that
habeas corpus would be available at the moment the
prisoner is taken into custody. If and when habeas corpus
jurisdiction applies, as it does in these cases, then proper
deference can be accorded to reasonable procedures for
screening and initial detention under lawful and proper
conditions of confinement and treatment for a reasonable
period of time. Domestic exigencies, furthermore, might
also impose such onerous burdens on the Government that
here, too, the Judicial Branch would be required to devise
sensible rules for staying habeas corpus proceedings until
the Government can comply with its requirements in a
responsible way. Cf. Ex parte Milligan, 4 Wall., at 127
(“If, in foreign invasion or civil war, the courts are actually
closed, and it is impossible to administer criminal justice
according to law, then, on the theatre of active military
operations, where war really prevails, there is a necessity
to furnish a substitute for the civil authority, thus over
thrown, to preserve the safety of the army and society; and
as no power is left but the military, it is allowed to govern
by martial rule until the laws can have their free course”).
Here, as is true with detainees apprehended abroad, a
relevant consideration in determining the courts’ role is
whether there are suitable alternative processes in place
to protect against the arbitrary exercise of governmental
power.
The cases before us, however, do not involve detainees
who have been held for a short period of time while await
ing their CSRT determinations. Were that the case, or
were it probable that the Court of Appeals could complete
a prompt review of their applications, the case for requir
66 BOUMEDIENE v. BUSH
Opinion of the Court
ing temporary abstention or exhaustion of alternative
remedies would be much stronger. These qualifications no
longer pertain here. In some of these cases six years have
elapsed without the judicial oversight that habeas corpus
or an adequate substitute demands. And there has been
no showing that the Executive faces such onerous burdens
that it cannot respond to habeas corpus actions. To re
quire these detainees to complete DTA review before
proceeding with their habeas corpus actions would be to
require additional months, if not years, of delay. The first
DTA review applications were filed over a year ago, but no
decisions on the merits have been issued. While some
delay in fashioning new procedures is unavoidable, the
costs of delay can no longer be borne by those who are held
in custody. The detainees in these cases are entitled to a
prompt habeas corpus hearing.
Our decision today holds only that the petitioners before
us are entitled to seek the writ; that the DTA review
procedures are an inadequate substitute for habeas cor
pus; and that the petitioners in these cases need not ex
haust the review procedures in the Court of Appeals before
proceeding with their habeas actions in the District Court.
The only law we identify as unconstitutional is MCA §7,
28 U. S. C. A. §2241(e) (Supp. 2007). Accordingly, both the
DTA and the CSRT process remain intact. Our holding
with regard to exhaustion should not be read to imply that
a habeas court should intervene the moment an enemy
combatant steps foot in a territory where the writ runs.
The Executive is entitled to a reasonable period of time to
determine a detainee’s status before a court entertains
that detainee’s habeas corpus petition. The CSRT process
is the mechanism Congress and the President set up to
deal with these issues. Except in cases of undue delay,
federal courts should refrain from entertaining an enemy
combatant’s habeas corpus petition at least until after the
Department, acting via the CSRT, has had a chance to
67 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
review his status.
B
Although we hold that the DTA is not an adequate and
effective substitute for habeas corpus, it does not follow
that a habeas corpus court may disregard the dangers the
detention in these cases was intended to prevent. Felker,
Swain, and Hayman stand for the proposition that the
Suspension Clause does not resist innovation in the field
of habeas corpus. Certain accommodations can be made to
reduce the burden habeas corpus proceedings will place on
the military without impermissibly diluting the protec
tions of the writ.
In the DTA Congress sought to consolidate review of
petitioners’ claims in the Court of Appeals. Channeling
future cases to one district court would no doubt reduce
administrative burdens on the Government. This is a
legitimate objective that might be advanced even without
an amendment to §2241. If, in a future case, a detainee
files a habeas petition in another judicial district in which
a proper respondent can be served, see Rumsfeld v.
Padilla, 542 U. S. 426, 435–436 (2004), the Government
can move for change of venue to the court that will hear
these petitioners’ cases, the United States District Court
for the District of Columbia. See 28 U. S. C. §1404(a);
Braden v. 30th Judicial Circuit Court of Ky., 410 U. S.
484, 499, n. 15 (1973).
Another of Congress’ reasons for vesting exclusive juris
diction in the Court of Appeals, perhaps, was to avoid the
widespread dissemination of classified information. The
Government has raised similar concerns here and else
where. See Brief for Respondents 55–56; Bismullah Pet.
30. We make no attempt to anticipate all of the eviden
tiary and access-to-counsel issues that will arise during
the course of the detainees’ habeas corpus proceedings.
We recognize, however, that the Government has a legiti
68 BOUMEDIENE v. BUSH
Opinion of the Court
mate interest in protecting sources and methods of intelli
gence gathering; and we expect that the District Court will
use its discretion to accommodate this interest to the
greatest extent possible. Cf. United States v. Reynolds,
345 U. S. 1, 10 (1953) (recognizing an evidentiary privilege
in a civil damages case where “there is a reasonable dan
ger that compulsion of the evidence will expose military
matters which, in the interest of national security, should
not be divulged”).
These and the other remaining questions are within the
expertise and competence of the District Court to address
in the first instance.
* * *
In considering both the procedural and substantive
standards used to impose detention to prevent acts of
terrorism, proper deference must be accorded to the politi
cal branches. See United States v. Curtiss-Wright Export
Corp., 299 U. S. 304, 320 (1936). Unlike the President and
some designated Members of Congress, neither the Mem
bers of this Court nor most federal judges begin the day
with briefings that may describe new and serious threats
to our Nation and its people. The law must accord the
Executive substantial authority to apprehend and detain
those who pose a real danger to our security.
Officials charged with daily operational responsibility
for our security may consider a judicial discourse on the
history of the Habeas Corpus Act of 1679 and like matters
to be far removed from the Nation’s present, urgent con
cerns. Established legal doctrine, however, must be con
sulted for its teaching. Remote in time it may be; irrele
vant to the present it is not. Security depends upon a
sophisticated intelligence apparatus and the ability of our
Armed Forces to act and to interdict. There are further
considerations, however. Security subsists, too, in fidelity
to freedom’s first principles. Chief among these are free
69 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
dom from arbitrary and unlawful restraint and the per
sonal liberty that is secured by adherence to the separa
tion of powers. It is from these principles that the judicial
authority to consider petitions for habeas corpus relief
derives.
Our opinion does not undermine the Executive’s powers
as Commander in Chief. On the contrary, the exercise of
those powers is vindicated, not eroded, when confirmed by
the Judicial Branch. Within the Constitution’s separa
tion-of-powers structure, few exercises of judicial power
are as legitimate or as necessary as the responsibility to
hear challenges to the authority of the Executive to im
prison a person. Some of these petitioners have been in
custody for six years with no definitive judicial determina
tion as to the legality of their detention. Their access to
the writ is a necessity to determine the lawfulness of their
status, even if, in the end, they do not obtain the relief
they seek.
Because our Nation’s past military conflicts have been of
limited duration, it has been possible to leave the outer
boundaries of war powers undefined. If, as some fear,
terrorism continues to pose dangerous threats to us for
years to come, the Court might not have this luxury. This
result is not inevitable, however. The political branches,
consistent with their independent obligations to interpret
and uphold the Constitution, can engage in a genuine
debate about how best to preserve constitutional values
while protecting the Nation from terrorism. Cf. Hamdan,
548 U. S., at 636 (BREYER, J., concurring) (“[J]udicial
insistence upon that consultation does not weaken our
Nation’s ability to deal with danger. To the contrary, that
insistence strengthens the Nation’s ability to determine—
through democratic means—how best to do so”).
It bears repeating that our opinion does not address the
content of the law that governs petitioners’ detention.
That is a matter yet to be determined. We hold that peti
70 BOUMEDIENE v. BUSH
Opinion of the Court
tioners may invoke the fundamental procedural protec
tions of habeas corpus. The laws and Constitution are
designed to survive, and remain in force, in extraordinary
times. Liberty and security can be reconciled; and in our
system they are reconciled within the framework of the
law. The Framers decided that habeas corpus, a right of
first importance, must be a part of that framework, a part
of that law.
The determination by the Court of Appeals that the
Suspension Clause and its protections are inapplicable to
petitioners was in error. The judgment of the Court of
Appeals is reversed. The cases are remanded to the Court
of Appeals with instructions that it remand the cases to
the District Court for proceedings consistent with this
opinion.
It is so ordered.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
SOUTER, J., concurring
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
JUSTICE SOUTER, with whom JUSTICE GINSBURG and
JUSTICE BREYER join, concurring.
I join the Court’s opinion in its entirety and add this
afterword only to emphasize two things one might over-
look after reading the dissents.
Four years ago, this Court in Rasul v. Bush, 542 U. S.
466 (2004) held that statutory habeas jurisdiction ex-
tended to claims of foreign nationals imprisoned by the
United States at Guantanamo Bay, “to determine the
legality of the Executive’s potentially indefinite detention”
of them, id., at 485. Subsequent legislation eliminated the
statutory habeas jurisdiction over these claims, so that
now there must be constitutionally based jurisdiction or
none at all. JUSTICE SCALIA is thus correct that here, for
the first time, this Court holds there is (he says “confers”)
constitutional habeas jurisdiction over aliens imprisoned
2 BOUMEDIENE v. BUSH
SOUTER, J., concurring
by the military outside an area of de jure national sover-
eignty, see post, at 1 (dissenting opinion). But no one who
reads the Court’s opinion in Rasul could seriously doubt
that the jurisdictional question must be answered the
same way in purely constitutional cases, given the Court’s
reliance on the historical background of habeas generally
in answering the statutory question. See, e.g., 542 U. S.,
at 473, 481–483, and nn. 11–14. Indeed, the Court in
Rasul directly answered the very historical question that
JUSTICE SCALIA says is dispositive, see post, at 18; it wrote
that “[a]pplication of the habeas statute to persons de-
tained at [Guantanamo] is consistent with the historical
reach of the writ of habeas corpus,” 542 U. S., at 481.
JUSTICE SCALIA dismisses the statement as dictum, see
post, at 21, but if dictum it was, it was dictum well consid-
ered, and it stated the view of five Members of this Court
on the historical scope of the writ. Of course, it takes more
than a quotation from Rasul, however much on point, to
resolve the constitutional issue before us here, which the
majority opinion has explored afresh in the detail it de-
serves. But whether one agrees or disagrees with today’s
decision, it is no bolt out of the blue.
A second fact insufficiently appreciated by the dissents
is the length of the disputed imprisonments, some of the
prisoners represented here today having been locked up
for six years, ante, at 66 (opinion of the Court). Hence the
hollow ring when the dissenters suggest that the Court is
somehow precipitating the judiciary into reviewing claims
that the military (subject to appeal to the Court of Appeals
for the District of Columbia Circuit) could handle within
some reasonable period of time. See, e.g., post, at 3 (opin-
ion of ROBERTS, C. J.) (“[T]he Court should have declined
to intervene until the D. C. Circuit had assessed the na-
ture and validity of the congressionally mandated proceed-
ings in a given detainee’s case”); post, at 6 (“[I]t is not
necessary to consider the availability of the writ until the
3 Cite as: 553 U. S. ____ (2008)
SOUTER, J., concurring
statutory remedies have been shown to be inadequate”);
post, at 8 (“[The Court] rushes to decide the fundamental
question of the reach of habeas corpus when the function-
ing of the DTA may make that decision entirely unneces-
sary”). These suggestions of judicial haste are all the more
out of place given the Court’s realistic acknowledgment
that in periods of exigency the tempo of any habeas review
must reflect the immediate peril facing the country. See
ante, at 64–65.
It is in fact the very lapse of four years from the time
Rasul put everyone on notice that habeas process was
available to Guantanamo prisoners, and the lapse of six
years since some of these prisoners were captured and
incarcerated, that stand at odds with the repeated sugges-
tions of the dissenters that these cases should be seen as a
judicial victory in a contest for power between the Court
and the political branches. See post, at 2, 3, 28 (ROBERTS,
C. J., dissenting); post, at 5, 6, 17, 18, 25 (SCALIA, J., dis-
senting). The several answers to the charge of triumphal-
ism might start with a basic fact of Anglo-American con-
stitutional history: that the power, first of the Crown and
now of the Executive Branch of the United States, is nec-
essarily limited by habeas corpus jurisdiction to enquire
into the legality of executive detention. And one could
explain that in this Court’s exercise of responsibility to
preserve habeas corpus something much more significant
is involved than pulling and hauling between the judicial
and political branches. Instead, though, it is enough to
repeat that some of these petitioners have spent six years
behind bars. After six years of sustained executive deten-
tions in Guantanamo, subject to habeas jurisdiction but
without any actual habeas scrutiny, today’s decision is no
judicial victory, but an act of perseverance in trying to
make habeas review, and the obligation of the courts to
provide it, mean something of value both to prisoners and
to the Nation. See ante, at 69.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA,
JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
Today the Court strikes down as inadequate the most
generous set of procedural protections ever afforded aliens
detained by this country as enemy combatants. The po
litical branches crafted these procedures amidst an ongo
ing military conflict, after much careful investigation and
thorough debate. The Court rejects them today out of
hand, without bothering to say what due process rights
the detainees possess, without explaining how the statute
fails to vindicate those rights, and before a single peti
tioner has even attempted to avail himself of the law’s
operation. And to what effect? The majority merely re
places a review system designed by the people’s represen
tatives with a set of shapeless procedures to be defined by
federal courts at some future date. One cannot help but
2 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
think, after surveying the modest practical results of the
majority’s ambitious opinion, that this decision is not
really about the detainees at all, but about control of
federal policy regarding enemy combatants.
The majority is adamant that the Guantanamo detain
ees are entitled to the protections of habeas corpus—its
opinion begins by deciding that question. I regard the
issue as a difficult one, primarily because of the unique
and unusual jurisdictional status of Guantanamo Bay. I
nonetheless agree with JUSTICE SCALIA’s analysis of our
precedents and the pertinent history of the writ, and
accordingly join his dissent. The important point for me,
however, is that the Court should have resolved these
cases on other grounds. Habeas is most fundamentally a
procedural right, a mechanism for contesting the legality
of executive detention. The critical threshold question in
these cases, prior to any inquiry about the writ’s scope, is
whether the system the political branches designed pro
tects whatever rights the detainees may possess. If so,
there is no need for any additional process, whether called
“habeas” or something else.
Congress entrusted that threshold question in the first
instance to the Court of Appeals for the District of Colum
bia Circuit, as the Constitution surely allows Congress to do.
See Detainee Treatment Act of 2005 (DTA), §1005(e)(2)(A),
119 Stat. 2742. But before the D. C. Circuit has addressed
the issue, the Court cashiers the statute, and without
answering this critical threshold question itself. The
Court does eventually get around to asking whether re
view under the DTA is, as the Court frames it, an “ade
quate substitute” for habeas, ante, at 42, but even then its
opinion fails to determine what rights the detainees pos
sess and whether the DTA system satisfies them. The
majority instead compares the undefined DTA process to
an equally undefined habeas right—one that is to be given
shape only in the future by district courts on a case-by
3 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
case basis. This whole approach is misguided.
It is also fruitless. How the detainees’ claims will be
decided now that the DTA is gone is anybody’s guess. But
the habeas process the Court mandates will most likely
end up looking a lot like the DTA system it replaces, as
the district court judges shaping it will have to reconcile
review of the prisoners’ detention with the undoubted
need to protect the American people from the terrorist
threat—precisely the challenge Congress undertook in
drafting the DTA. All that today’s opinion has done is
shift responsibility for those sensitive foreign policy and
national security decisions from the elected branches to
the Federal Judiciary.
I believe the system the political branches constructed
adequately protects any constitutional rights aliens cap
tured abroad and detained as enemy combatants may
enjoy. I therefore would dismiss these cases on that
ground. With all respect for the contrary views of the
majority, I must dissent.
I
The Court’s opinion makes plain that certiorari to re
view these cases should never have been granted. As two
Members of today’s majority once recognized, “traditional
rules governing our decision of constitutional questions
and our practice of requiring the exhaustion of available
remedies . . . make it appropriate to deny these petitions.”
Boumediene v. Bush, 549 U. S. ___ (2007) (slip op., at 1)
(citation omitted) (statement of STEVENS and KENNEDY,
JJ., respecting denial of certiorari). Just so. Given the
posture in which these cases came to us, the Court should
have declined to intervene until the D. C. Circuit had
assessed the nature and validity of the congressionally
mandated proceedings in a given detainee’s case.
The political branches created a two-part, collateral
review procedure for testing the legality of the prisoners’
4 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
detention: It begins with a hearing before a Combatant
Status Review Tribunal (CSRT) followed by review in the
D. C. Circuit. As part of that review, Congress authorized
the D. C. Circuit to decide whether the CSRT proceedings
are consistent with “the Constitution and laws of the
United States.” DTA §1005(e)(2)(C), 119 Stat. 2742. No
petitioner, however, has invoked the D. C. Circuit review
the statute specifies. See 476 F. 3d 981, 994, and n. 16
(CADC 2007); Brief for Federal Respondents 41–43. As a
consequence, that court has had no occasion to decide
whether the CSRT hearings, followed by review in the
Court of Appeals, vindicate whatever constitutional and
statutory rights petitioners may possess. See 476 F. 3d, at
994, and n. 16.
Remarkably, this Court does not require petitioners to
exhaust their remedies under the statute; it does not wait
to see whether those remedies will prove sufficient to
protect petitioners’ rights. Instead, it not only denies the
D. C. Circuit the opportunity to assess the statute’s reme
dies, it refuses to do so itself: the majority expressly de
clines to decide whether the CSRT procedures, coupled
with Article III review, satisfy due process. See ante, at
54.
It is grossly premature to pronounce on the detainees’
right to habeas without first assessing whether the reme
dies the DTA system provides vindicate whatever rights
petitioners may claim. The plurality in Hamdi v. Rums-
feld, 542 U. S. 507, 533 (2004), explained that the Consti
tution guaranteed an American citizen challenging his
detention as an enemy combatant the right to “notice of
the factual basis for his classification, and a fair opportu
nity to rebut the Government’s factual assertions before a
neutral decisionmaker.” The plurality specifically stated
that constitutionally adequate collateral process could be
provided “by an appropriately authorized and properly
constituted military tribunal,” given the “uncommon
5 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
potential to burden the Executive at a time of ongoing
military conflict.” Id., at 533, 538. This point is directly
pertinent here, for surely the Due Process Clause does not
afford non-citizens in such circumstances greater protec
tion than citizens are due.
If the CSRT procedures meet the minimal due process
requirements outlined in Hamdi, and if an Article III
court is available to ensure that these procedures are
followed in future cases, see id., at 536; INS v. St. Cyr, 533
U. S. 289, 304 (2001); Heikkila v. Barber, 345 U. S. 229,
236 (1953), there is no need to reach the Suspension
Clause question. Detainees will have received all the
process the Constitution could possibly require, whether
that process is called “habeas” or something else. The
question of the writ’s reach need not be addressed.
This is why the Court should have required petitioners
to exhaust their remedies under the statute. As we ex
plained in Gusik v. Schilder, 340 U. S. 128, 132 (1950), “If
an available procedure has not been employed to rectify
the alleged error” petitioners complain of, “any interfer
ence by [a] federal court may be wholly needless. The
procedure established to police the errors of the tribunal
whose judgment is challenged may be adequate for the
occasion.” Because the majority refuses to assess whether
the CSRTs comport with the Constitution, it ends up
razing a system of collateral review that it admits may in
fact satisfy the Due Process Clause and be “structurally
sound.” Ante, at 56. But if the collateral review proce
dures Congress has provided—CSRT review coupled with
Article III scrutiny—are sound, interference by a federal
habeas court may be entirely unnecessary.
The only way to know is to require petitioners to use the
alternative procedures Congress designed. Mandating
that the petitioners exhaust their statutory remedies “is in
no sense a suspension of the writ of habeas corpus. It is
merely a deferment of resort to the writ until other correc
6 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
tive procedures are shown to be futile.” Gusik, supra, at
132. So too here, it is not necessary to consider the avail
ability of the writ until the statutory remedies have been
shown to be inadequate to protect the detainees’ rights.
Cf. 28 U. S. C. §2254(b)(1)(A) (“An application for a writ of
habeas corpus . . . shall not be granted unless it appears
that . . . the applicant has exhausted the remedies avail
able in the courts of the State”). Respect for the judg
ments of Congress—whose Members take the same oath
we do to uphold the Constitution—requires no less.
In the absence of any assessment of the DTA’s remedies,
the question whether detainees are entitled to habeas is
an entirely speculative one. Our precedents have long
counseled us to avoid deciding such hypothetical questions
of constitutional law. See Spector Motor Service, Inc. v.
McLaughlin, 323 U. S. 101, 105 (1944) (“If there is one
doctrine more deeply rooted than any other in the process
of constitutional adjudication, it is that we ought not to
pass on questions of constitutionality . . . unless such
[questions are] unavoidable”); see also Ashwander v. TVA,
297 U. S. 288, 347 (1936) (Brandeis, J., concurring) (Con
stitutional questions should not be decided unless “ ‘abso
lutely necessary to a decision of the case’” (quoting Burton
v. United States, 196 U. S. 283, 295 (1905))). This is a
“fundamental rule of judicial restraint.” Three Affiliated
Tribes of Fort Berthold Reservation v. Wold Engineering,
P. C., 467 U. S. 138, 157 (1984).
The Court acknowledges that “the ordinary course”
would be not to decide the constitutionality of the DTA at
this stage, but abandons that “ordinary course” in light of
the “gravity” of the constitutional issues presented and the
prospect of additional delay. Ante, at 43. It is, however,
precisely when the issues presented are grave that adher
ence to the ordinary course is most important. A principle
applied only when unimportant is not much of a principle
at all, and charges of judicial activism are most effectively
7 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
rebutted when courts can fairly argue they are following
normal practices.
The Court is also concerned that requiring petitioners to
pursue “DTA review before proceeding with their habeas
corpus actions” could involve additional delay. Ante, at 66.
The nature of the habeas remedy the Court instructs
lower courts to craft on remand, however, is far more
unsettled than the process Congress provided in the DTA.
See ante, at 69 (“[O]ur opinion does not address the con
tent of the law that governs petitioners’ detention. That is
a matter yet to be determined”). There is no reason to
suppose that review according to procedures the Federal
Judiciary will design, case by case, will proceed any faster
than the DTA process petitioners disdained.
On the contrary, the system the Court has launched
(and directs lower courts to elaborate) promises to take
longer. The Court assures us that before bringing their
habeas petitions, detainees must usually complete the
CSRT process. See ante, at 66. Then they may seek re
view in federal district court. Either success or failure
there will surely result in an appeal to the D. C. Circuit—
exactly where judicial review starts under Congress’s
system. The effect of the Court’s decision is to add addi
tional layers of quite possibly redundant review. And
because nobody knows how these new layers of “habeas”
review will operate, or what new procedures they will
require, their contours will undoubtedly be subject to fresh
bouts of litigation. If the majority were truly concerned
about delay, it would have required petitioners to use the
DTA process that has been available to them for 21⁄2 years,
with its Article III review in the D. C. Circuit. That sys
tem might well have provided petitioners all the relief to
which they are entitled long before the Court’s newly
installed habeas review could hope to do so.1
——————
1
In light of the foregoing, the concurrence is wrong to suggest that I
8 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
The Court’s refusal to require petitioners to exhaust the
remedies provided by Congress violates the “traditional
rules governing our decision of constitutional questions.”
Boumediene, 549 U. S., at ___ (slip op., at 1) (statement of
STEVENS and KENNEDY, JJ., respecting denial of certio
rari). The Court’s disrespect for these rules makes its
decision an awkward business. It rushes to decide the
fundamental question of the reach of habeas corpus when
the functioning of the DTA may make that decision entirely
unnecessary, and it does so with scant idea of how DTA
judicial review will actually operate.
II
The majority’s overreaching is particularly egregious
given the weakness of its objections to the DTA. Simply
put, the Court’s opinion fails on its own terms. The major
ity strikes down the statute because it is not an “adequate
substitute” for habeas review, ante, at 42, but fails to show
what rights the detainees have that cannot be vindicated
by the DTA system.
Because the central purpose of habeas corpus is to test
the legality of executive detention, the writ requires most
fundamentally an Article III court able to hear the pris
——————
“insufficiently appreciat[e]” the issue of delay in these cases. See ante,
at 2 (opinion of SOUTER, J.). This Court issued its decisions in Rasul v.
Bush, 542 U. S. 466, and Hamdi v. Rumsfeld 542 U. S. 507, in 2004.
The concurrence makes it sound as if the political branches have done
nothing in the interim. In fact, Congress responded 18 months later by
enacting the DTA. Congress cannot be faulted for taking that time to
consider how best to accommodate both the detainees’ interests and the
need to keep the American people safe. Since the DTA became law,
petitioners have steadfastly refused to avail themselves of the statute’s
review mechanisms. It is unfair to complain that the DTA system
involves too much delay when petitioners have consistently refused to
use it, preferring to litigate instead. Today’s decision obligating district
courts to craft new procedures to replace those in the DTA will only
prolong the process—and delay relief.
9 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
oner’s claims and, when necessary, order release. See
Brown v. Allen, 344 U. S. 443, 533 (1953) (Jackson, J.,
concurring in result). Beyond that, the process a given
prisoner is entitled to receive depends on the circum
stances and the rights of the prisoner. See Mathews v.
Eldridge, 424 U. S. 319, 335 (1976). After much hemming
and hawing, the majority appears to concede that the DTA
provides an Article III court competent to order release.
See ante, at 61. The only issue in dispute is the process
the Guantanamo prisoners are entitled to use to test the
legality of their detention. Hamdi concluded that Ameri
can citizens detained as enemy combatants are entitled to
only limited process, and that much of that process could
be supplied by a military tribunal, with review to follow in
an Article III court. That is precisely the system we have
here. It is adequate to vindicate whatever due process
rights petitioners may have.
A
The Court reaches the opposite conclusion partly be
cause it misreads the statute. The majority appears not to
understand how the review system it invalidates actually
works—specifically, how CSRT review and review by the
D. C. Circuit fit together. After briefly acknowledging in
its recitation of the facts that the Government designed
the CSRTs “to comply with the due process requirements
identified by the plurality in Hamdi,” ante, at 3, the Court
proceeds to dismiss the tribunal proceedings as no more
than a suspect method used by the Executive for deter
mining the status of the detainees in the first instance, see
ante, at 43. This leads the Court to treat the review the
DTA provides in the D. C. Circuit as the only opportunity
detainees have to challenge their status determination.
See ante, at 49.
The Court attempts to explain its glancing treatment of
the CSRTs by arguing that “[w]hether one characterizes
10 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
the CSRT process as direct review of the Executive’s bat
tlefield determination . . . or as the first step in the collat
eral review of a battlefield determination makes no differ
ence.” Ante, at 54. First of all, the majority is quite wrong
to dismiss the Executive’s determination of detainee
status as no more than a “battlefield” judgment, as if it
were somehow provisional and made in great haste. In
fact, detainees are designated “enemy combatants” only
after “multiple levels of review by military officers and
officials of the Department of Defense.” Memorandum of
the Secretary of the Navy, Implementation of Combatant
Status Review Tribunal Procedures for Enemy Combat
ants Detained at Guantanamo Bay Naval Base (July 29,
2004), App. J to Pet. for Cert. in No. 06–1196, p. 150 (here
inafter Implementation Memo).
The majority is equally wrong to characterize the
CSRTs as part of that initial determination process. They
are instead a means for detainees to challenge the Gov
ernment’s determination. The Executive designed the
CSRTs to mirror Army Regulation 190–8, see Brief for
Federal Respondents 48, the very procedural model the
plurality in Hamdi said provided the type of process an
enemy combatant could expect from a habeas court, see
542 U. S., at 538 (plurality opinion). The CSRTs operate
much as habeas courts would if hearing the detainee’s
collateral challenge for the first time: They gather evi
dence, call witnesses, take testimony, and render a deci
sion on the legality of the Government’s detention. See
Implementation Memo, App. J to Pet. for Cert. in No. 06–
1196, at 153–162. If the CSRT finds a particular detainee
has been improperly held, it can order release. See id., at
164.
The majority insists that even if “the CSRTs satisf[ied]
due process standards,” full habeas review would still be
necessary, because habeas is a collateral remedy available
even to prisoners “detained pursuant to the most rigorous
11 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
proceedings imaginable.” Ante, at 55, 56. This comment
makes sense only if the CSRTs are incorrectly viewed as a
method used by the Executive for determining the prison
ers’ status, and not as themselves part of the collateral
review to test the validity of that determination. See
Gusik, 340 U. S., at 132. The majority can deprecate the
importance of the CSRTs only by treating them as some
thing they are not.
The use of a military tribunal such as the CSRTs to
review the aliens’ detention should be familiar to this
Court in light of the Hamdi plurality, which said that the
due process rights enjoyed by American citizens detained
as enemy combatants could be vindicated “by an appropri
ately authorized and properly constituted military tribu
nal.” 542 U. S., at 538. The DTA represents Congress’
considered attempt to provide the accused alien combat
ants detained at Guantanamo a constitutionally adequate
opportunity to contest their detentions before just such a
tribunal.
But Congress went further in the DTA. CSRT review is
just the first tier of collateral review in the DTA system.
The statute provides additional review in an Article III
court. Given the rationale of today’s decision, it is well
worth recalling exactly what the DTA provides in this
respect. The statute directs the D. C. Circuit to consider
whether a particular alien’s status determination “was
consistent with the standards and procedures specified by
the Secretary of Defense” and “whether the use of such
standards and procedures to make the determination is
consistent with the Constitution and laws of the United
States.” DTA §1005(e)(2)(C), 119 Stat. 2742. That is, a
court determines whether the CSRT procedures are consti
tutional, and a court determines whether those procedures
were followed in a particular case.
In short, the Hamdi plurality concluded that this type of
review would be enough to satisfy due process, even for
12 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
citizens. See 542 U. S., at 538. Congress followed the
Court’s lead, only to find itself the victim of a constitu
tional bait and switch.
Hamdi merits scant attention from the Court—a re
markable omission, as Hamdi bears directly on the issues
before us. The majority attempts to dismiss Hamdi’s
relevance by arguing that because the availability of
§2241 federal habeas was never in doubt in that case, “the
Court had no occasion to define the necessary scope of
habeas review . . . in the context of enemy combatant
detentions.” Ante, at 55. Hardly. Hamdi was all about
the scope of habeas review in the context of enemy com
batant detentions. The petitioner, an American citizen
held within the United States as an enemy combatant,
invoked the writ to challenge his detention. 542 U. S., at
510–511. After “a careful examination both of the writ . . .
and of the Due Process Clause,” this Court enunciated the
“basic process” the Constitution entitled Hamdi to expect
from a habeas court under §2241. Id., at 525, 534. That
process consisted of the right to “receive notice of the
factual basis for his classification, and a fair opportunity
to rebut the Government’s factual assertions before a
neutral decisionmaker.” Id., at 533. In light of the Gov
ernment’s national security responsibilities, the plurality
found the process could be “tailored to alleviate [the]
uncommon potential to burden the Executive at a time of
ongoing military conflict.” Ibid. For example, the Gov
ernment could rely on hearsay and could claim a presump
tion in favor of its own evidence. See id., at 533–534.
Hamdi further suggested that this “basic process” on
collateral review could be provided by a military tribunal.
It pointed to prisoner-of-war tribunals as a model that
would satisfy the Constitution’s requirements. See id., at
538. Only “[i]n the absence of such process” before a mili
tary tribunal, the Court held, would Article III courts need
to conduct full-dress habeas proceedings to “ensure that
13 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
the minimum requirements of due process are achieved.”
Ibid. (emphasis added). And even then, the petitioner
would be entitled to no more process than he would have
received from a properly constituted military review panel,
given his limited due process rights and the Government’s
weighty interests. See id., at 533–534, 538.
Contrary to the majority, Hamdi is of pressing relevance
because it establishes the procedures American citizens
detained as enemy combatants can expect from a habeas
court proceeding under §2241. The DTA system of military
tribunal hearings followed by Article III review looks a lot
like the procedure Hamdi blessed. If nothing else, it is
plain from the design of the DTA that Congress, the
President, and this Nation’s military leaders have made a
good-faith effort to follow our precedent.
The Court, however, will not take “yes” for an answer.
The majority contends that “[i]f Congress had envisioned
DTA review as coextensive with traditional habeas corpus,”
it would have granted the D. C. Circuit far broader review
authority. Ante, at 48. Maybe so, but that comment reveals
the majority’s misunderstanding. “[T]raditional habeas
corpus” takes no account of what Hamdi recognized as the
“uncommon potential to burden the Executive at a time of
ongoing military conflict.” 542 U. S., at 533. Besides, Con
gress and the Executive did not envision “DTA review”—
by which I assume the Court means D. C. Circuit review,
see ante, at 48—as the detainees’ only opportunity to
challenge their detentions. Instead, the political branches
crafted CSRT and D. C. Circuit review to operate together,
with the goal of providing noncitizen detainees the level of
collateral process Hamdi said would satisfy the due proc
ess rights of American citizens. See Brief for Federal
Respondents 48–53.
B
Given the statutory scheme the political branches
14 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
adopted, and given Hamdi, it simply will not do for the
majority to dismiss the CSRT procedures as “far more
limited” than those used in military trials, and therefore
beneath the level of process “that would eliminate the
need for habeas corpus review.” Ante, at 37. The question
is not how much process the CSRTs provide in comparison
to other modes of adjudication. The question is whether
the CSRT procedures—coupled with the judicial review
specified by the DTA—provide the “basic process” Hamdi
said the Constitution affords American citizens detained
as enemy combatants. See 542 U. S., at 534.
By virtue of its refusal to allow the D. C. Circuit to
assess petitioners’ statutory remedies, and by virtue of its
own refusal to consider, at the outset, the fit between
those remedies and due process, the majority now finds
itself in the position of evaluating whether the DTA sys
tem is an adequate substitute for habeas review without
knowing what rights either habeas or the DTA is supposed
to protect. The majority attempts to elide this problem by
holding that petitioners have a right to habeas corpus and
then comparing the DTA against the “historic office” of the
writ. Ante, at 47. But habeas is, as the majority acknowl
edges, a flexible remedy rather than a substantive right.
Its “precise application . . . change[s] depending upon the
circumstances.” Ante, at 50. The shape of habeas review
ultimately depends on the nature of the rights a petitioner
may assert. See, e.g., Reid v. Covert, 354 U. S. 1, 75 (1957)
(Harlan, J., concurring in result) (“[T]he question of which
specific safeguards of the Constitution are appropriately to
be applied in a particular context . . . can be reduced to the
issue of what process is ‘due’ a defendant in the particular
circumstances of a particular case”).
The scope of federal habeas review is traditionally more
limited in some contexts than in others, depending on the
status of the detainee and the rights he may assert. See
St. Cyr, 533 U. S., at 306 (“In [immigration cases], other
15 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
than the question whether there was some evidence to
support the [deportation] order, the courts generally did
not review factual determinations made by the Executive”
(footnote omitted)); Burns v. Wilson, 346 U. S. 137, 139
(1953) (plurality opinion) (“[I]n military habeas corpus the
inquiry, the scope of matters open for review, has always
been more narrow than in civil cases”); In re Yamashita,
327 U. S. 1, 8 (1946) (“The courts may inquire whether the
detention complained of is within the authority of those
detaining the petitioner. If the military tribunals have
lawful authority to hear, decide and condemn, their action
is not subject to judicial review”); Ex parte Quirin, 317 U. S.
1, 25 (1942) (federal habeas review of military commission
verdict limited to determining commission’s jurisdiction).
Declaring that petitioners have a right to habeas in no
way excuses the Court from explaining why the DTA does
not protect whatever due process or statutory rights peti
tioners may have. Because if the DTA provides a means
for vindicating petitioners’ rights, it is necessarily an
adequate substitute for habeas corpus. See Swain v.
Pressley, 430 U. S. 372, 381 (1977); United States v. Hay-
man, 342 U. S. 205, 223 (1952).
For my part, I will assume that any due process rights
petitioners may possess are no greater than those of
American citizens detained as enemy combatants. It is
worth noting again that the Hamdi controlling opinion
said the Constitution guarantees citizen detainees only
“basic” procedural rights, and that the process for securing
those rights can “be tailored to alleviate [the] uncommon
potential to burden the Executive at a time of ongoing
military conflict.” 542 U. S., at 533. The majority, how
ever, objects that “the procedural protections afforded to
the detainees in the CSRT hearings are . . . limited.” Ante,
at 37. But the evidentiary and other limitations the Court
complains of reflect the nature of the issue in contest,
namely, the status of aliens captured by our Armed Forces
16 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
abroad and alleged to be enemy combatants. Contrary to
the repeated suggestions of the majority, DTA review need
not parallel the habeas privileges enjoyed by noncombat
ant American citizens, as set out in 28 U. S. C. §2241
(2000 ed. and Supp V). Cf. ante, at 46–47. It need only
provide process adequate for noncitizens detained as
alleged combatants.
To what basic process are these detainees due as habeas
petitioners? We have said that “at the absolute mini
mum,” the Suspension Clause protects the writ “‘as it
existed in 1789.’” St. Cyr, supra, at 301 (quoting Felker v.
Turpin, 518 U. S. 651, 663–664 (1996)). The majority
admits that a number of historical authorities suggest
that at the time of the Constitution’s ratification, “com
mon-law courts abstained altogether from matters involv
ing prisoners of war.” Ante, at 17. If this is accurate, the
process provided prisoners under the DTA is plainly more
than sufficient—it allows alleged combatants to challenge
both the factual and legal bases of their detentions.
Assuming the constitutional baseline is more robust, the
DTA still provides adequate process, and by the majority’s
own standards. Today’s Court opines that the Suspension
Clause guarantees prisoners such as the detainees “a
meaningful opportunity to demonstrate that [they are]
being held pursuant to the erroneous application or inter
pretation of relevant law.” Ante, at 50 (internal quotation
marks omitted). Further, the Court holds that to be an
adequate substitute, any tribunal reviewing the detainees’
cases “must have the power to order the conditional re
lease of an individual unlawfully detained.” Ibid. The
DTA system—CSRT review of the Executive’s determina
tion followed by D. C. Circuit review for sufficiency of the
evidence and the constitutionality of the CSRT process—
meets these criteria.
17 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
C
At the CSRT stage, every petitioner has the right to
present evidence that he has been wrongfully detained.
This includes the right to call witnesses who are reasona
bly available, question witnesses called by the tribunal,
introduce documentary evidence, and testify before the
tribunal. See Implementation Memo, App. J to Pet. for
Cert. in No. 06–1196, at 154–156, 158–159, 161.
While the Court concedes detainees may confront all
witnesses called before the tribunal, it suggests this right
is “more theoretical than real” because “there are in effect
no limits on the admission of hearsay evidence.” Ante, at
55. The Court further complains that petitioners lack “the
assistance of counsel,” and—given the limits on their
access to classified information—“may not be aware of the
most critical allegations” against them. Ante, at 54. None
of these complaints is persuasive.
Detainees not only have the opportunity to confront any
witness who appears before the tribunal, they may call
witnesses of their own. The Implementation Memo re
quires only that detainees’ witnesses be “reasonably avail
able,” App. J to Pet. for Cert. in No. 06–1196, at 155, a
requirement drawn from Army Regulation 190–8, ch. 1,
§1–6(e)(6), and entirely consistent with the Government’s
interest in avoiding “a futile search for evidence” that
might burden warmaking responsibilities, Hamdi, supra,
at 532. The dangerous mission assigned to our forces
abroad is to fight terrorists, not serve subpoenas. The
Court is correct that some forms of hearsay evidence are
admissible before the CSRT, but Hamdi expressly ap
proved this use of hearsay by habeas courts. 542 U. S.,
at 533–534 (“Hearsay, for example, may need to be ac
cepted as the most reliable available evidence from the
Government”).
As to classified information, while detainees are not
permitted access to it themselves, the Implementation
18 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
Memo provides each detainee with a “Personal Represen
tative” who may review classified documents at the CSRT
stage and summarize them for the detainee. Implementa
tion Memo, supra, at 152, 154–155, 156; Brief for Federal
Respondents 54–55. The prisoner’s counsel enjoys the
same privilege on appeal before the D. C. Circuit. That is
more access to classified material for alleged alien enemy
combatants than ever before provided. I am not aware of
a single instance—and certainly the majority cites none—
in which detainees such as petitioners have been provided
access to classified material in any form. Indeed, prison
ers of war who challenge their status determinations
under the Geneva Convention are afforded no such access,
see Army Regulation 190–8, ch. 1, §§1–6(e)(3) and (5), and
the prisoner-of-war model is the one Hamdi cited as con
sistent with the demands of due process for citizens, see
542 U. S., at 538.
What alternative does the Court propose? Allow free
access to classified information and ignore the risk the
prisoner may eventually convey what he learns to parties
hostile to this country, with deadly consequences for those
who helped apprehend the detainee? If the Court can
design a better system for communicating to detainees the
substance of any classified information relevant to their
cases, without fatally compromising national security
interests and sources, the majority should come forward
with it. Instead, the majority fobs that vexing question off
on district courts to answer down the road.
Prisoners of war are not permitted access to classified
information, and neither are they permitted access to
counsel, another supposed failing of the CSRT process.
And yet the Guantanamo detainees are hardly denied all
legal assistance. They are provided a “Personal Represen
tative” who, as previously noted, may access classified
information, help the detainee arrange for witnesses,
assist the detainee’s preparation of his case, and even aid
19 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
the detainee in presenting his evidence to the tribunal.
See Implementation Memo, supra, at 161. The provision
for a personal representative on this order is one of several
ways in which the CSRT procedures are more generous
than those provided prisoners of war under Army Regula
tion 190–8.
Keep in mind that all this is just at the CSRT stage.
Detainees receive additional process before the D. C.
Circuit, including full access to appellate counsel and the
right to challenge the factual and legal bases of their
detentions. DTA §1005(e)(2)(C) empowers the Court of
Appeals to determine not only whether the CSRT observed
the “procedures specified by the Secretary of Defense,” but
also “whether the use of such standards and procedures
. . . is consistent with the Constitution and laws of the
United States.” 119 Stat. 2742. These provisions permit
detainees to dispute the sufficiency of the evidence against
them. They allow detainees to challenge a CSRT panel’s
interpretation of any relevant law, and even the constitu
tionality of the CSRT proceedings themselves. This in
cludes, as the Solicitor General acknowledges, the ability
to dispute the Government’s right to detain alleged com
batants in the first place, and to dispute the Government’s
definition of “enemy combatant.” Brief for Federal Re
spondents 59. All this before an Article III court—plainly
a neutral decisionmaker.
All told, the DTA provides the prisoners held at Guan
tanamo Bay adequate opportunity to contest the bases of
their detentions, which is all habeas corpus need allow.
The DTA provides more opportunity and more process, in
fact, than that afforded prisoners of war or any other
alleged enemy combatants in history.
D
Despite these guarantees, the Court finds the DTA
system an inadequate habeas substitute, for one central
20 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
reason: Detainees are unable to introduce at the appeal
stage exculpatory evidence discovered after the conclusion
of their CSRT proceedings. See ante, at 58. The Court
hints darkly that the DTA may suffer from other infirmi
ties, see ante, at 63 (“We do not imply DTA review would
be a constitutionally sufficient replacement for habeas
corpus but for these limitations on the detainee’s ability to
present exculpatory evidence”), but it does not bother to
name them, making a response a bit difficult. As it
stands, I can only assume the Court regards the supposed
defect it did identify as the gravest of the lot.
If this is the most the Court can muster, the ice beneath
its feet is thin indeed. As noted, the CSRT procedures
provide ample opportunity for detainees to introduce
exculpatory evidence—whether documentary in nature or
from live witnesses—before the military tribunals. See
infra, at 21–23; Implementation Memo, App. J to Pet. for
Cert. in No. 06–196, at 155–156. And if their ability to
introduce such evidence is denied contrary to the Consti
tution or laws of the United States, the D. C. Circuit has
the authority to say so on review.
Nevertheless, the Court asks us to imagine an instance
in which evidence is discovered after the CSRT panel
renders its decision, but before the Court of Appeals re
views the detainee’s case. This scenario, which of course
has not yet come to pass as no review in the D. C. Circuit
has occurred, provides no basis for rejecting the DTA as a
habeas substitute. While the majority is correct that the
DTA does not contemplate the introduction of “newly
discovered” evidence before the Court of Appeals, petition
ers and the Solicitor General agree that the DTA does
permit the D. C. Circuit to remand a detainee’s case for a
new CSRT determination. Brief for Petitioner Boumedi
ene et al. in No. 06–1195, at 30; Brief for Federal Respon
dents 60–61. In the event a detainee alleges that he has
obtained new and persuasive exculpatory evidence that
21 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
would have been considered by the tribunal below had it
only been available, the D. C. Circuit could readily remand
the case to the tribunal to allow that body to consider the
evidence in the first instance. The Court of Appeals could
later review any new or reinstated decision in light of the
supplemented record.
If that sort of procedure sounds familiar, it should.
Federal appellate courts reviewing factual determinations
follow just such a procedure in a variety of circumstances.
See, e.g., United States v. White, 492 F. 3d 380, 413 (CA6
2007) (remanding new-evidence claim to the district court
for a Brady evidentiary hearing); Avila v. Roe, 298 F. 3d
750, 754 (CA9 2002) (remanding habeas claim to the
district court for evidentiary hearing to clarify factual
record); United States v. Leone, 215 F. 3d 253, 256 (CA2
2000) (observing that when faced on direct appeal with an
underdeveloped claim for ineffective assistance of counsel,
the appellate court may remand to the district court for
necessary factfinding).
A remand is not the only relief available for detainees
caught in the Court’s hypothetical conundrum. The DTA
expressly directs the Secretary of Defense to “provide for
periodic review of any new evidence that may become
available relating to the enemy combatant status of a
detainee.” DTA §1005(a)(3). Regulations issued by the
Department of Defense provide that when a detainee puts
forward new, material evidence “not previously presented
to the detainee’s CSRT,” the Deputy Secretary of Defense
“‘will direct that a CSRT convene to reconsider the basis of
the detainee’s . . . status in light of the new information.’”
Office for the Administrative Review of the Detention of
Enemy Combatants, Instruction 5421.1, Procedure for
Review of “New Evidence” Relating to Enemy Combatant
(EC) Status ¶¶4(a)(1), 5(b) (May 7, 2007); Brief for Federal
Respondents 56, n. 30. Pursuant to DTA §1005(e)(2)(A),
the resulting CSRT determination is again reviewable in
22 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
full by the D. C. Circuit.2
In addition, DTA §1005(d)(1) further requires the De
partment of Defense to conduct a yearly review of the
status of each prisoner. See 119 Stat. 2741. The Deputy
Secretary of Defense has promulgated concomitant regula
tions establishing an Administrative Review Board to
assess “annually the need to continue to detain each en
emy combatant.” Deputy Secretary of Defense Order OSD
06942–04 (May 11, 2004), App. K to Pet. for Cert. in No.
06–1196, p. 189. In the words of the implementing order,
the purpose of this annual review is to afford every de
tainee the opportunity “to explain why he is no longer a
threat to the United States” and should be released. Ibid.
The Board’s findings are forwarded to a presidentially
appointed, Senate-confirmed civilian within the Depart
ment of Defense whom the Secretary of Defense has des
ignated to administer the review process. This designated
civilian official has the authority to order release upon the
Board’s recommendation. Id., at 201.
The Court’s hand wringing over the DTA’s treatment of
later-discovered exculpatory evidence is the most it has to
show after a roving search for constitutionally problematic
scenarios. But “[t]he delicate power of pronouncing an Act
of Congress unconstitutional,” we have said, “is not to be
exercised with reference to hypothetical cases thus imag
ined.” United States v. Raines, 362 U. S. 17, 22 (1960).
The Court today invents a sort of reverse facial challenge
——————
2
The Court wonders what might happen if the detainee puts forward
new material evidence but the Deputy Secretary refuses to convene a
new CSRT. See ante, at 62–63. The answer is that the detainee can
petition the D. C. Circuit for review. The DTA directs that the proce
dures for review of new evidence be included among “[t]he procedures
submitted under paragraph (1)(A)” governing CSRT review of enemy
combatant status §1405(a)(3), 119 Stat. 3476. It is undisputed that the
D. C. Circuit has statutory authority to review and enforce these
procedures. See DTA §1005(e)(2)(C)(i), id., at 2742.
23 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
and applies it with gusto: If there is any scenario in which
the statute might be constitutionally infirm, the law must
be struck down. Cf. United States v. Salerno, 481 U. S.
739, 745 (1987) (“A facial challenge . . . must establish that
no set of circumstances exists under which the Act would
be valid”); see also Washington v. Glucksberg, 521 U. S.
702, 739–740, and n. 7 (1997) (STEVENS, J., concurring in
judgments) (facial challenge must fail where the statute
has “‘plainly legitimate sweep’” (quoting Broadrick v.
Oklahoma, 413 U. S. 601, 615 (1973))). The Court’s new
method of constitutional adjudication only underscores its
failure to follow our usual procedures and require peti
tioners to demonstrate that they have been harmed by the
statute they challenge. In the absence of such a concrete
showing, the Court is unable to imagine a plausible hypo
thetical in which the DTA is unconstitutional.
E
The Court’s second criterion for an adequate substitute
is the “power to order the conditional release of an indi
vidual unlawfully detained.” Ante, at 50. As the Court
basically admits, the DTA can be read to permit the D. C.
Circuit to order release in light of our traditional princi
ples of construing statutes to avoid difficult constitutional
issues, when reasonably possible. See ante, at 56–57.
The Solicitor General concedes that remedial authority
of some sort must be implied in the statute, given that the
DTA—like the general habeas law itself, see 28 U. S. C.
§2243—provides no express remedy of any kind. Brief for
Federal Respondents 60–61. The parties agree that at the
least, the DTA empowers the D. C. Circuit to remand a
prisoner’s case to the CSRT with instructions to perform a
new status assessment. Brief for Petitioner Boumediene
et al. in No. 06–1195, at 30; Brief for Federal Respondents
60–61. To avoid constitutional infirmity, it is reasonable
to imply more, see Ashwander, 297 U. S., at 348 (Brandeis,
24 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
J., concurring) (“When the validity of an act of the Con
gress is drawn in question . . . it is a cardinal principle
that this Court will . . . ascertain whether a construction of
the statute is fairly possible by which the [constitutional]
question may be avoided” (internal quotation marks omit
ted)); see also St. Cyr, 533 U. S., at 299–300, especially in
view of the Solicitor General’s concession at oral argument
and in his Supplemental Brief that authority to release
might be read in the statute, see Tr. of Oral Arg. 37; Sup
plemental Brief for Federal Respondents 9.
The Court grudgingly suggests that “Congress’ silence
on the question of remedies suggests acquiescence to any
constitutionally required remedy.” Ante, at 58. But the
argument in favor of statutorily authorized release is
stronger than that. The DTA’s parallels to 28 U. S. C.
§2243 on this score are noteworthy. By way of remedy,
the general federal habeas statute provides only that the
court, having heard and determined the facts, shall “dis
pose of the matter as law and justice require.” Ibid. We
have long held, and no party here disputes, that this
includes the power to order release. See Wilkinson v.
Dotson, 544 U. S. 74, 79 (2005) (“[T]he writ’s history
makes clear that it traditionally has been accepted as the
specific instrument to obtain release from [unlawful]
confinement” (internal quotation marks omitted)).
The DTA can be similarly read. Because Congress
substituted DTA review for habeas corpus and because
the “unique purpose” of the writ is “to release the appli
cant . . . from unlawful confinement,” Allen v. McCurry,
449 U. S. 90, 98, n. 12 (1980), DTA §1005(e)(2) can and
should be read to confer on the Court of Appeals the
authority to order release in appropriate circumstances.
Section 1005(e)(2)(D) plainly contemplates release, ad
dressing the effect “release of [an] alien from the custody
of the Department of Defense” will have on the jurisdiction
of the court. 119 Stat. 2742–2743. This reading avoids
25 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
serious constitutional difficulty and is consistent with the
text of the statute.
The D. C. Circuit can thus order release, the CSRTs can
order release, and the head of the Administrative Review
Boards can, at the recommendation of those panels, order
release. These multiple release provisions within the DTA
system more than satisfy the majority’s requirement that
any tribunal substituting for a habeas court have the
authority to release the prisoner.
The basis for the Court’s contrary conclusion is summed
up in the following sentence near the end of its opinion:
“To hold that the detainees at Guantanamo may, under
the DTA, challenge the President’s legal authority to
detain them, contest the CSRT’s findings of fact, supple
ment the record on review with newly discovered or previ
ously unavailable evidence, and request an order of re
lease would come close to reinstating the §2241 habeas
corpus process Congress sought to deny them.” Ante, at
63. In other words, any interpretation of the statute that
would make it an adequate substitute for habeas must be
rejected, because Congress could not possibly have in
tended to enact an adequate substitute for habeas. The
Court could have saved itself a lot of trouble if it had
simply announced this Catch-22 approach at the begin
ning rather than the end of its opinion.
III
For all its eloquence about the detainees’ right to the
writ, the Court makes no effort to elaborate how exactly
the remedy it prescribes will differ from the procedural
protections detainees enjoy under the DTA. The Court
objects to the detainees’ limited access to witnesses and
classified material, but proposes no alternatives of its own.
Indeed, it simply ignores the many difficult questions its
holding presents. What, for example, will become of the
CSRT process? The majority says federal courts should
26 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
generally refrain from entertaining detainee challenges
until after the petitioner’s CSRT proceeding has finished.
See ante, at 66 (“[e]xcept in cases of undue delay”). But
to what deference, if any, is that CSRT determination
entitled?
There are other problems. Take witness availability.
What makes the majority think witnesses will become
magically available when the review procedure is labeled
“habeas”? Will the location of most of these witnesses
change—will they suddenly become easily susceptible to
service of process? Or will subpoenas issued by American
habeas courts run to Basra? And if they did, how would
they be enforced? Speaking of witnesses, will detainees be
able to call active-duty military officers as witnesses? If
not, why not?
The majority has no answers for these difficulties. What
it does say leaves open the distinct possibility that its
“habeas” remedy will, when all is said and done, end up
looking a great deal like the DTA review it rejects. See
ante, at 66 (opinion of the court) (“We recognize, however,
that the Government has a legitimate interest in protect
ing sources and methods of intelligence gathering, and we
expect that the District Court will use its discretion to
accommodate this interest to the greatest extent possi
ble”). But “[t]he role of the judiciary is limited to deter
mining whether the procedures meet the essential stan
dard of fairness under the Due Process Clause and does
not extend to imposing procedures that merely displace
congressional choices of policy.” Landon v. Plasencia, 459
U. S. 21, 34–35 (1982).
The majority rests its decision on abstract and hypo
thetical concerns. Step back and consider what, in the
real world, Congress and the Executive have actually
granted aliens captured by our Armed Forces overseas and
found to be enemy combatants:
• The right to hear the bases of the charges against
27 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
them, including a summary of any classified
evidence.
• The ability to challenge the bases of their detention
before military tribunals modeled after Geneva
Convention procedures. Some 38 detainees have
been released as a result of this process. Brief for
Federal Respondents 57, 60.
• The right, before the CSRT, to testify, introduce
evidence, call witnesses, question those the Gov
ernment calls, and secure release, if and when
appropriate.
• The right to the aid of a personal representative in
arranging and presenting their cases before a
CSRT.
• Before the D. C. Circuit, the right to employ coun
sel, challenge the factual record, contest the lower
tribunal’s legal determinations, ensure compliance
with the Constitution and laws, and secure release,
if any errors below establish their entitlement to
such relief.
In sum, the DTA satisfies the majority’s own criteria
for assessing adequacy. This statutory scheme provides
the combatants held at Guantanamo greater procedural
protections than have ever been afforded alleged enemy
detainees—whether citizens or aliens—in our national
history.
* * *
So who has won? Not the detainees. The Court’s analy
sis leaves them with only the prospect of further litigation
to determine the content of their new habeas right, fol
lowed by further litigation to resolve their particular cases,
followed by further litigation before the D. C. Circuit—
where they could have started had they invoked the DTA
procedure. Not Congress, whose attempt to “determine—
through democratic means—how best” to balance the
28 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
security of the American people with the detainees’ liberty
interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636
(2006) (BREYER, J., concurring), has been unceremoniously
brushed aside. Not the Great Writ, whose majesty is
hardly enhanced by its extension to a jurisdictionally
quirky outpost, with no tangible benefit to anyone. Not the
rule of law, unless by that is meant the rule of lawyers,
who will now arguably have a greater role than military
and intelligence officials in shaping policy for alien enemy
combatants. And certainly not the American people, who
today lose a bit more control over the conduct of this Na
tion’s foreign policy to unelected, politically unaccountable
judges.
I respectfully dissent.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
JUSTICE SCALIA, with whom THE CHIEF JUSTICE,
JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
Today, for the first time in our Nation’s history, the
Court confers a constitutional right to habeas corpus on
alien enemies detained abroad by our military forces in
the course of an ongoing war. THE CHIEF JUSTICE’s dis-
sent, which I join, shows that the procedures prescribed by
Congress in the Detainee Treatment Act provide the es-
sential protections that habeas corpus guarantees; there
has thus been no suspension of the writ, and no basis
exists for judicial intervention beyond what the Act allows.
My problem with today’s opinion is more fundamental
still: The writ of habeas corpus does not, and never has,
run in favor of aliens abroad; the Suspension Clause thus
has no application, and the Court’s intervention in this
military matter is entirely ultra vires.
2 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
I shall devote most of what will be a lengthy opinion to
the legal errors contained in the opinion of the Court.
Contrary to my usual practice, however, I think it appro-
priate to begin with a description of the disastrous conse-
quences of what the Court has done today.
I
America is at war with radical Islamists. The enemy
began by killing Americans and American allies abroad:
241 at the Marine barracks in Lebanon, 19 at the Khobar
Towers in Dhahran, 224 at our embassies in Dar es Sa-
laam and Nairobi, and 17 on the USS Cole in Yemen. See
National Commission on Terrorist Attacks upon the
United States, The 9/11 Commission Report, pp. 60–61,
70, 190 (2004). On September 11, 2001, the enemy
brought the battle to American soil, killing 2,749 at the
Twin Towers in New York City, 184 at the Pentagon in
Washington, D. C., and 40 in Pennsylvania. See id., at
552, n. 9. It has threatened further attacks against our
homeland; one need only walk about buttressed and barri-
caded Washington, or board a plane anywhere in the
country, to know that the threat is a serious one. Our
Armed Forces are now in the field against the enemy, in
Afghanistan and Iraq. Last week, 13 of our countrymen in
arms were killed.
The game of bait-and-switch that today’s opinion plays
upon the Nation’s Commander in Chief will make the war
harder on us. It will almost certainly cause more Ameri-
cans to be killed. That consequence would be tolerable if
necessary to preserve a time-honored legal principle vital
to our constitutional Republic. But it is this Court’s bla-
tant abandonment of such a principle that produces the
decision today. The President relied on our settled prece-
dent in Johnson v. Eisentrager, 339 U. S. 763 (1950), when
he established the prison at Guantanamo Bay for enemy
aliens. Citing that case, the President’s Office of Legal
3 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
Counsel advised him “that the great weight of legal au-
thority indicates that a federal district court could not
properly exercise habeas jurisdiction over an alien de-
tained at [Guantanamo Bay].” Memorandum from Patrick
F. Philbin and John C. Yoo, Deputy Assistant Attorneys
General, Office of Legal Counsel, to William J. Haynes II,
General Counsel, Dept. of Defense (Dec. 28, 2001). Had
the law been otherwise, the military surely would not have
transported prisoners there, but would have kept them in
Afghanistan, transferred them to another of our foreign
military bases, or turned them over to allies for detention.
Those other facilities might well have been worse for the
detainees themselves.
In the long term, then, the Court’s decision today ac-
complishes little, except perhaps to reduce the well-being
of enemy combatants that the Court ostensibly seeks to
protect. In the short term, however, the decision is devas-
tating. At least 30 of those prisoners hitherto released
from Guantanamo Bay have returned to the battlefield.
See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Views
of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn)
(hereinafter Minority Report). Some have been captured
or killed. See ibid.; see also Mintz, Released Detainees
Rejoining the Fight, Washington Post, Oct. 22, 2004, pp.
A1, A12. But others have succeeded in carrying on their
atrocities against innocent civilians. In one case, a de-
tainee released from Guantanamo Bay masterminded the
kidnapping of two Chinese dam workers, one of whom was
later shot to death when used as a human shield against
Pakistani commandoes. See Khan & Lancaster, Paki-
stanis Rescue Hostage; 2nd Dies, Washington Post, Oct.
15, 2004, p. A18. Another former detainee promptly re-
sumed his post as a senior Taliban commander and mur-
dered a United Nations engineer and three Afghan sol-
diers. Mintz, supra. Still another murdered an Afghan
judge. See Minority Report 13. It was reported only last
4 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
month that a released detainee carried out a suicide bomb-
ing against Iraqi soldiers in Mosul, Iraq. See White, Ex-
Guantanamo Detainee Joined Iraq Suicide Attack, Wash-
ington Post, May 8, 2008, p. A18.
These, mind you, were detainees whom the military had
concluded were not enemy combatants. Their return to
the kill illustrates the incredible difficulty of assessing
who is and who is not an enemy combatant in a foreign
theater of operations where the environment does not lend
itself to rigorous evidence collection. Astoundingly, the
Court today raises the bar, requiring military officials to
appear before civilian courts and defend their decisions
under procedural and evidentiary rules that go beyond
what Congress has specified. As THE CHIEF JUSTICE’s
dissent makes clear, we have no idea what those proce-
dural and evidentiary rules are, but they will be deter-
mined by civil courts and (in the Court’s contemplation at
least) will be more detainee-friendly than those now ap-
plied, since otherwise there would be no reason to hold the
congressionally prescribed procedures unconstitutional. If
they impose a higher standard of proof (from foreign bat-
tlefields) than the current procedures require, the number
of the enemy returned to combat will obviously increase.
But even when the military has evidence that it can
bring forward, it is often foolhardy to release that evidence
to the attorneys representing our enemies. And one esca-
lation of procedures that the Court is clear about is afford-
ing the detainees increased access to witnesses (perhaps
troops serving in Afghanistan?) and to classified informa-
tion. See ante, at 54–55. During the 1995 prosecution of
Omar Abdel Rahman, federal prosecutors gave the names
of 200 unindicted co-conspirators to the “Blind Sheik’s”
defense lawyers; that information was in the hands of
Osama Bin Laden within two weeks. See Minority Report
14–15. In another case, trial testimony revealed to the
enemy that the United States had been monitoring their
5 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
cellular network, whereupon they promptly stopped using
it, enabling more of them to evade capture and continue
their atrocities. See id., at 15.
And today it is not just the military that the Court
elbows aside. A mere two Terms ago in Hamdan v. Rums-
feld, 548 U. S. 557 (2006), when the Court held (quite
amazingly) that the Detainee Treatment Act of 2005 had
not stripped habeas jurisdiction over Guantanamo peti-
tioners’ claims, four Members of today’s five-Justice major-
ity joined an opinion saying the following:
“Nothing prevents the President from returning to
Congress to seek the authority [for trial by military
commission] he believes necessary.
“Where, as here, no emergency prevents consulta-
tion with Congress, judicial insistence upon that con-
sultation does not weaken our Nation’s ability to deal
with danger. To the contrary, that insistence
strengthens the Nation’s ability to determine—
through democratic means—how best to do so. The
Constitution places its faith in those democratic
means.” Id., at 636 (BREYER, J., concurring).1
Turns out they were just kidding. For in response, Con-
gress, at the President’s request, quickly enacted the
Military Commissions Act, emphatically reasserting that
it did not want these prisoners filing habeas petitions. It
is therefore clear that Congress and the Executive—both
political branches—have determined that limiting the role
——————
1
Even today, the Court cannot resist striking a pose of faux deference
to Congress and the President. Citing the above quoted passage, the
Court says: “The political branches, consistent with their independent
obligations to interpret and uphold the Constitution, can engage in a
genuine debate about how best to preserve constitutional values while
protecting the Nation from terrorism.” Ante, at 69. Indeed. What the
Court apparently means is that the political branches can debate, after
which the Third Branch will decide.
6 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
of civilian courts in adjudicating whether prisoners cap-
tured abroad are properly detained is important to success
in the war that some 190,000 of our men and women are
now fighting. As the Solicitor General argued, “the Mili-
tary Commissions Act and the Detainee Treatment Act . . .
represent an effort by the political branches to strike an
appropriate balance between the need to preserve liberty
and the need to accommodate the weighty and sensitive
governmental interests in ensuring that those who have in
fact fought with the enemy during a war do not return to
battle against the United States.” Brief for Respondents
10–11 (internal quotation marks omitted).
But it does not matter. The Court today decrees that no
good reason to accept the judgment of the other two
branches is “apparent.” Ante, at 40. “The Government,” it
declares, “presents no credible arguments that the mili-
tary mission at Guantanamo would be compromised if
habeas corpus courts had jurisdiction to hear the detain-
ees’ claims.” Id., at 39. What competence does the Court
have to second-guess the judgment of Congress and the
President on such a point? None whatever. But the Court
blunders in nonetheless. Henceforth, as today’s opinion
makes unnervingly clear, how to handle enemy prisoners
in this war will ultimately lie with the branch that knows
least about the national security concerns that the subject
entails.
II
A
The Suspension Clause of the Constitution provides:
“The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it.” Art. I, §9, cl. 2. As a
court of law operating under a written Constitution, our
role is to determine whether there is a conflict between
that Clause and the Military Commissions Act. A conflict
7 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
arises only if the Suspension Clause preserves the privi-
lege of the writ for aliens held by the United States mili-
tary as enemy combatants at the base in Guantanamo
Bay, located within the sovereign territory of Cuba.
We have frequently stated that we owe great deference
to Congress’s view that a law it has passed is constitu-
tional. See, e.g., Department of Labor v. Triplett, 494 U. S.
715, 721 (1990); United States v. National Dairy Products
Corp., 372 U. S. 29, 32 (1963); see also American Commu-
nications Assn. v. Douds, 339 U. S. 382, 435 (1950) (Jack-
son, J., concurring in part and dissenting in part). That is
especially so in the area of foreign and military affairs;
“perhaps in no other area has the Court accorded Congress
greater deference.” Rostker v. Goldberg, 453 U. S. 57, 64–
65 (1981). Indeed, we accord great deference even when
the President acts alone in this area. See Department of
Navy v. Egan, 484 U. S. 518, 529–530 (1988); Regan v.
Wald, 468 U. S. 222, 243 (1984).
In light of those principles of deference, the Court’s
conclusion that “the common law [does not] yiel[d] a defi-
nite answer to the questions before us,” ante, at 22, leaves
it no choice but to affirm the Court of Appeals. The writ
as preserved in the Constitution could not possibly extend
farther than the common law provided when that Clause
was written. See Part III, infra. The Court admits that it
cannot determine whether the writ historically extended
to aliens held abroad, and it concedes (necessarily) that
Guantanamo Bay lies outside the sovereign territory of
the United States. See ante, at 22–23; Rasul v. Bush, 542
U. S. 466, 500–501 (2004) (SCALIA, J., dissenting). To-
gether, these two concessions establish that it is (in the
Court’s view) perfectly ambiguous whether the common-
law writ would have provided a remedy for these petition-
ers. If that is so, the Court has no basis to strike down the
Military Commissions Act, and must leave undisturbed
8 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
the considered judgment of the coequal branches.2
How, then, does the Court weave a clear constitutional
prohibition out of pure interpretive equipoise? The Court
resorts to “fundamental separation-of-powers principles”
to interpret the Suspension Clause. Ante, at 25. Accord-
ing to the Court, because “the writ of habeas corpus is
itself an indispensable mechanism for monitoring the
separation of powers,” the test of its extraterritorial reach
“must not be subject to manipulation by those whose
power it is designed to restrain.” Ante, at 36.
That approach distorts the nature of the separation of
powers and its role in the constitutional structure. The
“fundamental separation-of-powers principles” that the
Constitution embodies are to be derived not from some
judicially imagined matrix, but from the sum total of the
individual separation-of-powers provisions that the Con-
stitution sets forth. Only by considering them one-by-one
does the full shape of the Constitution’s separation-of-
powers principles emerge. It is nonsensical to interpret
those provisions themselves in light of some general
“separation-of-powers principles” dreamed up by the
Court. Rather, they must be interpreted to mean what
they were understood to mean when the people ratified
them. And if the understood scope of the writ of habeas
corpus was “designed to restrain” (as the Court says) the
actions of the Executive, the understood limits upon that
——————
2
The opinion seeks to avoid this straightforward conclusion by saying
that the Court has been “careful not to foreclose the possibility that the
protections of the Suspension Clause have expanded along with post-
1789 developments that define the present scope of the writ.” Ante, at
15–16 (citing INS v. St. Cyr, 533 U. S. 289 300–301 (2001)). But not
foreclosing the possibility that they have expanded is not the same as
demonstrating (or at least holding without demonstration, which seems
to suffice for today’s majority) that they have expanded. The Court
must either hold that the Suspension Clause has “expanded” in its
application to aliens abroad, or acknowledge that it has no basis to set
aside the actions of Congress and the President. It does neither.
9 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
scope were (as the Court seems not to grasp) just as much
“designed to restrain” the incursions of the Third Branch.
“Manipulation” of the territorial reach of the writ by the
Judiciary poses just as much a threat to the proper sepa-
ration of powers as “manipulation” by the Executive. As I
will show below, manipulation is what is afoot here. The
understood limits upon the writ deny our jurisdiction over
the habeas petitions brought by these enemy aliens, and
entrust the President with the crucial wartime determina-
tions about their status and continued confinement.
B
The Court purports to derive from our precedents a
“functional” test for the extraterritorial reach of the writ,
ante, at 34, which shows that the Military Commissions
Act unconstitutionally restricts the scope of habeas. That
is remarkable because the most pertinent of those prece-
dents, Johnson v. Eisentrager, 339 U. S. 763, conclusively
establishes the opposite. There we were confronted with
the claims of 21 Germans held at Landsberg Prison, an
American military facility located in the American Zone of
occupation in postwar Germany. They had been captured
in China, and an American military commission sitting
there had convicted them of war crimes—collaborating
with the Japanese after Germany’s surrender. Id., at 765–
766. Like the petitioners here, the Germans claimed that
their detentions violated the Constitution and interna-
tional law, and sought a writ of habeas corpus. Writing
for the Court, Justice Jackson held that American courts
lacked habeas jurisdiction:
“We are cited to [sic] no instance where a court, in
this or any other country where the writ is known, has
issued it on behalf of an alien enemy who, at no rele-
vant time and in no stage of his captivity, has been
within its territorial jurisdiction. Nothing in the text
of the Constitution extends such a right, nor does any-
10 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
thing in our statutes.” Id., at 768.
Justice Jackson then elaborated on the historical scope
of the writ:
“The alien, to whom the United States has been tra-
ditionally hospitable, has been accorded a generous
and ascending scale of rights as he increases his iden-
tity with our society. . . .
“But, in extending constitutional protections beyond
the citizenry, the Court has been at pains to point out
that it was the alien’s presence within its territorial
jurisdiction that gave the Judiciary power to act.” Id.,
at 770–771.
Lest there be any doubt about the primacy of territorial
sovereignty in determining the jurisdiction of a habeas
court over an alien, Justice Jackson distinguished two
cases in which aliens had been permitted to seek habeas
relief, on the ground that the prisoners in those cases were
in custody within the sovereign territory of the United
States. Id., at 779–780 (discussing Ex parte Quirin, 317
U. S. 1 (1942), and In re Yamashita, 327 U. S. 1 (1946)).
“By reason of our sovereignty at that time over [the Phil-
ippines],” Jackson wrote, “Yamashita stood much as did
Quirin before American courts.” 339 U. S., at 780.
Eisentrager thus held—held beyond any doubt—that the
Constitution does not ensure habeas for aliens held by the
United States in areas over which our Government is not
sovereign.3
——————
3
In its failed attempt to distinguish Eisentrager, the Court comes up
with the notion that “de jure sovereignty” is simply an additional factor
that can be added to (presumably) “de facto sovereignty” (i.e., practical
control) to determine the availability of habeas for aliens, but that it is
not a necessary factor, whereas de facto sovereignty is. It is perhaps in
this de facto sense, the Court speculates, that Eisentrager found “sover-
eignty” lacking. See ante, at 23–25. If that were so, one would have
expected Eisentrager to explain in some detail why the United States
11 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
The Court would have us believe that Eisentrager rested
on “[p]ractical considerations,” such as the “difficulties of
ordering the Government to produce the prisoners in a
habeas corpus proceeding.” Ante, at 32. Formal sover-
eignty, says the Court, is merely one consideration “that
bears upon which constitutional guarantees apply” in a
given location. Ante, at 34. This is a sheer rewriting of
the case. Eisentrager mentioned practical concerns, to be
sure—but not for the purpose of determining under what
circumstances American courts could issue writs of habeas
corpus for aliens abroad. It cited them to support its
holding that the Constitution does not empower courts to
issue writs of habeas corpus to aliens abroad in any cir-
cumstances. As Justice Black accurately said in dissent,
“the Court’s opinion inescapably denies courts power to
afford the least bit of protection for any alien who is sub-
ject to our occupation government abroad, even if he is
neither enemy nor belligerent and even after peace is
officially declared.” 339 U. S., at 796.
The Court also tries to change Eisentrager into a “func-
——————
did not have practical control over the American zone of occupation. It
did not (and probably could not). Of course this novel de facto-de jure
approach does not explain why the writ never issued to Scotland, which
was assuredly within the de facto control of the English crown. See
infra, at 22.
To support its holding that de facto sovereignty is relevant to the
reach of habeas corpus, the Court cites our decision in Fleming v. Page,
9 How. 603 (1850), a case about the application of a customs statute to
a foreign port occupied by U. S. forces. See ante, at 24. The case used
the phrase “subject to the sovereignty and dominion of the United
States” to refer to the United States’ practical control over a “foreign
country.” 9 How., at 614. But Fleming went on to explain that because
the port remained part of the “enemy’s country,” even though under
U. S. military occupation, “its subjugation did not compel the United
States, while they held it, to regard it as part of their dominions, nor to
give to it any form of civil government, nor to extend to it our laws.”
Id., at 618. If Fleming is relevant to these cases at all, it undermines
the Court’s holding.
12 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
tional” test by quoting a paragraph that lists the charac-
teristics of the German petitioners:
“To support [the] assumption [of a constitutional right
to habeas corpus] we must hold that a prisoner of our
military authorities is constitutionally entitled to the
writ, even though he (a) is an enemy alien; (b) has
never been or resided in the United States; (c) was
captured outside of our territory and there held in
military custody as a prisoner of war; (d) was tried
and convicted by a Military Commission sitting out-
side the United States; (e) for offenses against laws of
war committed outside the United States; (f) and is at
all times imprisoned outside the United States.” Id.,
at 777 (quoted in part, ante, at 36).
But that paragraph is introduced by a sentence stating
that “[t]he foregoing demonstrates how much further we
must go if we are to invest these enemy aliens, resident,
captured and imprisoned abroad, with standing to demand
access to our courts.” 339 U. S., at 777 (emphasis added).
How much further than what? Further than the rule set
forth in the prior section of the opinion, which said that “in
extending constitutional protections beyond the citizenry,
the Court has been at pains to point out that it was the
alien’s presence within its territorial jurisdiction that gave
the Judiciary power to act.” Id., at 771. In other words,
the characteristics of the German prisoners were set forth,
not in application of some “functional” test, but to show
that the case before the Court represented an a fortiori
application of the ordinary rule. That is reaffirmed by the
sentences that immediately follow the listing of the Ger-
mans’ characteristics:
“We have pointed out that the privilege of litigation
has been extended to aliens, whether friendly or en-
emy, only because permitting their presence in the
country implied protection. No such basis can be in-
13 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
voked here, for these prisoners at no relevant time
were within any territory over which the United
States is sovereign, and the scenes of their offense,
their capture, their trial and their punishment were
all beyond the territorial jurisdiction of any court of
the United States.” Id., at 777–778.
Eisentrager nowhere mentions a “functional” test, and the
notion that it is based upon such a principle is patently
false.4
The Court also reasons that Eisentrager must be read as
a “functional” opinion because of our prior decisions in the
Insular Cases. See ante, at 26–29. It cites our statement
in Balzac v. Porto Rico, 258 U. S. 298, 312 (1922), that
“‘the real issue in the Insular Cases was not whether the
Constitution extended to the Philippines or Porto Rico
when we went there, but which of its provisions were
——————
4
JUSTICE SOUTER’s concurrence relies on our decision four Terms ago
in Rasul v. Bush, 542 U. S. 466 (2004), where the Court interpreted the
habeas statute to extend to aliens held at Guantanamo Bay. He thinks
that “no one who reads the Court’s opinion in Rasul could seriously
doubt that the jurisdictional question must be answered the same way
in purely constitutional cases.” Ante, at 1–2. But Rasul was devoted
primarily to an explanation of why Eisentrager’s statutory holding no
longer controlled given our subsequent decision in Braden v. 30th
Judicial Circuit Court of Ky., 410 U. S. 484 (1973). See Rasul, supra, at
475–479. And the opinion of the Court today—which JUSTICE SOUTER
joins—expressly rejects the historical evidence cited in Rasul to support
its conclusion about the reach of habeas corpus. Compare id., at 481–
482, with ante, at 18. Moreover, even if one were to accept as true what
JUSTICE SOUTER calls Rasul’s “well-considered” dictum, that does not
explain why Eisentrager’s constitutional holding must be overruled or
how it can be distinguished. (After all, Rasul distinguished Eisen-
trager’s statutory holding on a ground inapplicable to its constitutional
holding.) In other words, even if the Court were to conclude that
Eisentrager’s rule was incorrect as an original matter, the Court would
have to explain the justification for departing from that precedent. It
therefore cannot possibly be true that Rasul controls this case, as
JUSTICE SOUTER suggests.
14 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
applicable by way of limitation upon the exercise of execu-
tive and legislative power in dealing with new conditions
and requirements.’” Ante, at 28. But the Court conven-
iently omits Balzac’s predicate to that statement: “The
Constitution of the United States is in force in Porto Rico
as it is wherever and whenever the sovereign power of that
government is exerted.” 258 U. S., at 312 (emphasis
added). The Insular Cases all concerned territories ac-
quired by Congress under its Article IV authority and
indisputably part of the sovereign territory of the United
States. See United States v. Verdugo-Urquidez, 494 U. S.
259, 268 (1990); Reid v. Covert, 354 U. S. 1, 13 (1957)
(plurality opinion of Black, J.). None of the Insular Cases
stands for the proposition that aliens located outside U. S.
sovereign territory have constitutional rights, and Eisen-
trager held just the opposite with respect to habeas corpus.
As I have said, Eisentrager distinguished Yamashita on
the ground of “our sovereignty [over the Philippines],” 339
U. S., at 780.
The Court also relies on the “[p]ractical considerations”
that influenced our decision in Reid v. Covert, supra. See
ante, at 29–32. But all the Justices in the majority except
Justice Frankfurter limited their analysis to the rights of
citizens abroad. See Reid, supra, at 5–6 (plurality opinion
of Black, J.); id., at 74–75 (Harlan, J., concurring in re-
sult). (Frankfurter limited his analysis to the even nar-
rower class of civilian dependents of American military
personnel abroad, see id., at 45 (opinion concurring in
result).) In trying to wring some kind of support out of
Reid for today’s novel holding, the Court resorts to a chain
of logic that does not hold. The members of the Reid
majority, the Court says, were divided over whether In re
Ross, 140 U. S. 453 (1891), which had (according to the
Court) held that under certain circumstances American
citizens abroad do not have indictment and jury-trial
rights, should be overruled. In the Court’s view, the Reid
15 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
plurality would have overruled Ross, but Justices Frank-
furter and Harlan preferred to distinguish it. The upshot:
“If citizenship had been the only relevant factor in the
case, it would have been necessary for the Court to over-
turn Ross, something Justices Harlan and Frankfurter
were unwilling to do.” Ante, at 32. What, exactly, is this
point supposed to prove? To say that “practical considera-
tions” determine the precise content of the constitutional
protections American citizens enjoy when they are abroad
is quite different from saying that “practical considera-
tions” determine whether aliens abroad enjoy any consti-
tutional protections whatever, including habeas. In other
words, merely because citizenship is not a sufficient factor
to extend constitutional rights abroad does not mean that
it is not a necessary one.
The Court tries to reconcile Eisentrager with its holding
today by pointing out that in postwar Germany, the
United States was “answerable to its Allies” and did not
“pla[n] a long-term occupation.” Ante, at 38, 39. Those
factors were not mentioned in Eisentrager. Worse still, it
is impossible to see how they relate to the Court’s asserted
purpose in creating this “functional” test—namely, to
ensure a judicial inquiry into detention and prevent the
political branches from acting with impunity. Can it
possibly be that the Court trusts the political branches
more when they are beholden to foreign powers than when
they act alone?
After transforming the a fortiori elements discussed
above into a “functional” test, the Court is still left with
the difficulty that most of those elements exist here as
well with regard to all the detainees. To make the appli-
cation of the newly crafted “functional” test produce a
different result in the present cases, the Court must rely
upon factors (d) and (e): The Germans had been tried by a
military commission for violations of the laws of war; the
present petitioners, by contrast, have been tried by a
16 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
Combatant Status Review Tribunal (CSRT) whose proce-
dural protections, according to the Court’s ipse dixit, “fall
well short of the procedures and adversarial mechanisms
that would eliminate the need for habeas corpus review.”
Ante, at 37. But no one looking for “functional” equiva-
lents would put Eisentrager and the present cases in the
same category, much less place the present cases in a
preferred category. The difference between them cries out
for lesser procedures in the present cases. The prisoners
in Eisentrager were prosecuted for crimes after the cessa-
tion of hostilities; the prisoners here are enemy combat-
ants detained during an ongoing conflict. See Hamdi v.
Rumsfeld, 542 U. S. 507, 538 (2004) (plurality opinion)
(suggesting, as an adequate substitute for habeas corpus,
the use of a tribunal akin to a CSRT to authorize the
detention of American citizens as enemy combatants dur-
ing the course of the present conflict).
The category of prisoner comparable to these detainees
are not the Eisentrager criminal defendants, but the more
than 400,000 prisoners of war detained in the United
States alone during World War II. Not a single one was
accorded the right to have his detention validated by a
habeas corpus action in federal court—and that despite
the fact that they were present on U. S. soil. See Bradley,
The Military Commissions Act, Habeas Corpus, and the
Geneva Conventions, 101 Am. J. Int’l L. 322, 338 (2007).
The Court’s analysis produces a crazy result: Whereas
those convicted and sentenced to death for war crimes are
without judicial remedy, all enemy combatants detained
during a war, at least insofar as they are confined in an
area away from the battlefield over which the United
States exercises “absolute and indefinite” control, may
seek a writ of habeas corpus in federal court. And, as an
even more bizarre implication from the Court’s reasoning,
those prisoners whom the military plans to try by full-
dress Commission at a future date may file habeas peti-
17 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
tions and secure release before their trials take place.
There is simply no support for the Court’s assertion that
constitutional rights extend to aliens held outside U. S.
sovereign territory, see Verdugo-Urquidez, 494 U. S., at
271, and Eisentrager could not be clearer that the privilege
of habeas corpus does not extend to aliens abroad. By
blatantly distorting Eisentrager, the Court avoids the
difficulty of explaining why it should be overruled. See
Planned Parenthood of Southeastern Pa. v. Casey, 505
U. S. 833, 854–855 (1992) (identifying stare decisis fac-
tors). The rule that aliens abroad are not constitutionally
entitled to habeas corpus has not proved unworkable in
practice; if anything, it is the Court’s “functional” test that
does not (and never will) provide clear guidance for the
future. Eisentrager forms a coherent whole with the ac-
cepted proposition that aliens abroad have no substantive
rights under our Constitution. Since it was announced, no
relevant factual premises have changed. It has engen-
dered considerable reliance on the part of our military.
And, as the Court acknowledges, text and history do not
clearly compel a contrary ruling. It is a sad day for the
rule of law when such an important constitutional pre-
cedent is discarded without an apologia, much less an
apology.
C
What drives today’s decision is neither the meaning of
the Suspension Clause, nor the principles of our prece-
dents, but rather an inflated notion of judicial supremacy.
The Court says that if the extraterritorial applicability of
the Suspension Clause turned on formal notions of sover-
eignty, “it would be possible for the political branches to
govern without legal constraint” in areas beyond the
sovereign territory of the United States. Ante, at 35. That
cannot be, the Court says, because it is the duty of this
Court to say what the law is. Id., at 35–36. It would be
18 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
difficult to imagine a more question-begging analysis.
“The very foundation of the power of the federal courts to
declare Acts of Congress unconstitutional lies in the power
and duty of those courts to decide cases and controversies
properly before them.” United States v. Raines, 362 U. S.
17, 20–21 (1960) (citing Marbury v. Madison, 1 Cranch
137 (1803); emphasis added). Our power “to say what the
law is” is circumscribed by the limits of our statutorily and
constitutionally conferred jurisdiction. See Lujan v. De-
fenders of Wildlife, 504 U. S. 555, 573–578 (1992). And
that is precisely the question in these cases: whether the
Constitution confers habeas jurisdiction on federal courts
to decide petitioners’ claims. It is both irrational and
arrogant to say that the answer must be yes, because
otherwise we would not be supreme.
But so long as there are some places to which habeas
does not run—so long as the Court’s new “functional” test
will not be satisfied in every case—then there will be cir-
cumstances in which “it would be possible for the political
branches to govern without legal constraint.” Or, to put it
more impartially, areas in which the legal determinations
of the other branches will be (shudder!) supreme. In other
words, judicial supremacy is not really assured by the
constitutional rule that the Court creates. The gap be-
tween rationale and rule leads me to conclude that the
Court’s ultimate, unexpressed goal is to preserve the
power to review the confinement of enemy prisoners held
by the Executive anywhere in the world. The “functional”
test usefully evades the precedential landmine of Eisen-
trager but is so inherently subjective that it clears a wide
path for the Court to traverse in the years to come.
III
Putting aside the conclusive precedent of Eisentrager, it
is clear that the original understanding of the Suspension
Clause was that habeas corpus was not available to aliens
19 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
abroad, as Judge Randolph’s thorough opinion for the
court below detailed. See 476 F. 3d 981, 988–990 (CADC
2007).
The Suspension Clause reads: “The Privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may
require it.” U. S. Const., Art. I, §9, cl. 2. The proper
course of constitutional interpretation is to give the text
the meaning it was understood to have at the time of its
adoption by the people. See, e.g., Crawford v. Washington,
541 U. S. 36, 54 (2004). That course is especially de-
manded when (as here) the Constitution limits the power
of Congress to infringe upon a pre-existing common-law
right. The nature of the writ of habeas corpus that cannot
be suspended must be defined by the common-law writ
that was available at the time of the founding. See
McNally v. Hill, 293 U. S. 131, 135–136 (1934); see also
INS v. St. Cyr, 533 U. S. 289, 342 (2001) (SCALIA, J., dis-
senting); D’Oench, Duhme & Co. v. FDIC, 315 U. S. 447,
471, n. 9 (1942) (Jackson, J., concurring).
It is entirely clear that, at English common law, the writ
of habeas corpus did not extend beyond the sovereign
territory of the Crown. To be sure, the writ had an “ex-
traordinary territorial ambit,” because it was a so-called
“prerogative writ,” which, unlike other writs, could extend
beyond the realm of England to other places where the
Crown was sovereign. R. Sharpe, The Law of Habeas
Corpus 188 (2d ed. 1989) (hereinafter Sharpe); see also
Note on the Power of the English Courts to Issue the Writ
of Habeas to Places Within the Dominions of the Crown,
But Out of England, and On the Position of Scotland in
Relation to that Power, 8 Jurid. Rev. 157 (1896) (hereinaf-
ter Note on Habeas); King v. Cowle, 2 Burr. 834, 855–856,
97 Eng. Rep. 587, 599 (K. B. 1759).
But prerogative writs could not issue to foreign coun-
tries, even for British subjects; they were confined to the
20 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
King’s dominions—those areas over which the Crown was
sovereign. See Sharpe 188; 2 R. Chambers, A Course of
Lectures on the English Law 1767–1773, pp. 7–8 (Curley
ed. 1986); 3 W. Blackstone, Commentaries on the Laws of
England 131 (1768) (hereinafter Blackstone). Thus, the
writ has never extended to Scotland, which, although
united to England when James I succeeded to the English
throne in 1603, was considered a foreign dominion under a
different Crown—that of the King of Scotland. Sharpe
191; Note on Habeas 158.5 That is why Lord Mansfield
wrote that “[t]o foreign dominions, which belong to a
prince who succeeds to the throne of England, this Court
has no power to send any writ of any kind. We cannot
send a habeas corpus to Scotland . . . .” Cowle, supra, at
856, 97 Eng. Rep., at 599–600.
The common-law writ was codified by the Habeas Cor-
pus Act of 1679, which “stood alongside Magna Charta and
the English Bill of Rights of 1689 as a towering common
law lighthouse of liberty—a beacon by which framing
lawyers in America consciously steered their course.”
Amar, Sixth Amendment First Principles, 84 Geo. L. J.
641, 663 (1996). The writ was established in the Colonies
beginning in the 1690’s and at least one colony adopted
the 1679 Act almost verbatim. See Dept. of Political Sci-
ence, Okla. State Univ., Research Reports, No. 1, R.
Walker, The American Reception of the Writ of Liberty
12–16 (1961). Section XI of the Act stated where the writ
could run. It “may be directed and run into any county
palatine, the cinque-ports, or other privileged places
within the kingdom of England, dominion of Wales, or
town of Berwick upon Tweed, and the islands of Jersey or
Guernsey.” 31 Car. 2, ch. 2. The cinque-ports and county
palatine were so-called “exempt jurisdictions”—franchises
——————
5
My dissent in Rasul v. Bush, 542 U. S. 466, 503 (2004), mistakenly
included Scotland among the places to which the writ could run.
21 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
granted by the Crown in which local authorities would
manage municipal affairs, including the court system, but
over which the Crown maintained ultimate sovereignty.
See 3 Blackstone 78–79. The other places listed—Wales,
Berwick-upon-Tweed, Jersey, and Guernsey—were terri-
tories of the Crown even though not part England proper.
See Cowle, supra, at 853–854, 97 Eng. Rep., at 598 (Wales
and Berwick-upon-Tweed); 1 Blackstone 104 (Jersey and
Guernsey); Sharpe 192 (same).
The Act did not extend the writ elsewhere, even though
the existence of other places to which British prisoners
could be sent was recognized by the Act. The possibility of
evading judicial review through such spiriting-away was
eliminated, not by expanding the writ abroad, but by
forbidding (in Article XII of the Act) the shipment of pris-
oners to places where the writ did not run or where its
execution would be difficult. See 31 Car. 2, ch. 2; see
generally Nutting, The Most Wholesome Law—The Ha-
beas Corpus Act of 1679, 65 Am. Hist. Rev. 527 (1960).
The Habeas Corpus Act, then, confirms the consensus
view of scholars and jurists that the writ did not run
outside the sovereign territory of the Crown. The Court
says that the idea that “jurisdiction followed the King’s
officers” is an equally credible view. Ante, at 16. It is not
credible at all. The only support the Court cites for it is a
page in Boumediene’s brief, which in turn cites this
Court’s dicta in Rasul, 542 U. S., at 482, mischaracterizing
Lord Mansfield’s statement that the writ ran to any place
that was “under the subjection of the Crown,” Cowle,
supra, at 856, 97 Eng. Rep., at 599. It is clear that Lord
Mansfield was saying that the writ extended outside the
realm of England proper, not outside the sovereign terri-
tory of the Crown.6
——————
6
The dicta in Rasul also cited Ex parte Mwenya, [1960] 1 Q. B. 241,
(C. A.), but as I explained in dissent, “[e]ach judge [in Mwenya] made
22 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
The Court dismisses the example of Scotland on the
grounds that Scotland had its own judicial system and
that the writ could not, as a practical matter, have been
enforced there. Ante, at 20. Those explanations are to-
tally unpersuasive. The existence of a separate court
system was never a basis for denying the power of a court
to issue the writ. See 9 W. Holdsworth, A History of Eng-
lish Law 124 (3d ed. 1944) (citing Ex parte Anderson, 3 El.
and El. 487 (1861)). And as for logistical problems, the
same difficulties were present for places like the Channel
Islands, where the writ did run. The Court attempts to
draw an analogy between the prudential limitations on
issuing the writ to such remote areas within the sovereign
territory of the Crown and the jurisdictional prohibition on
issuing the writ to Scotland. See ante, at 19–20. But the
very authority that the Court cites, Lord Mansfield, ex-
pressly distinguished between these two concepts, stating
that English courts had the “power” to send the writ to
places within the Crown’s sovereignty, the “only question”
being the “propriety,” while they had “no power to send
any writ of any kind” to Scotland and other “foreign do-
minions.” Cowle, supra, at 856, 97 Eng. Rep., at 599–600.
The writ did not run to Scotland because, even after the
Union, “Scotland remained a foreign dominion of the
prince who succeeded to the English throne,” and “union
did not extend the prerogative of the English crown to
Scotland.” Sharpe 191; see also Sir Matthew Hale’s The
Prerogatives of the King 19 (D. Yale ed. 1976).7
——————
clear that the detainee’s status as a subject was material to the resolu-
tion of the case,” 542 U. S., at 504.
7
The Court also argues that the fact that the writ could run to Ire-
land, even though it was ruled under a “separate” crown, shows that
formal sovereignty was not the touchstone of habeas jurisdiction. Ante,
at 21. The passage from Blackstone that the Court cites, however,
describes Ireland as “a dependent, subordinate kingdom” that was part
of the “king’s dominions.” 1 Blackstone 98, 100 (internal quotation
23 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
In sum, all available historical evidence points to the
conclusion that the writ would not have been available at
common law for aliens captured and held outside the
sovereign territory of the Crown. Despite three opening
briefs, three reply briefs, and support from a legion of
amici, petitioners have failed to identify a single case in
the history of Anglo-American law that supports their
claim to jurisdiction. The Court finds it significant that
there is no recorded case denying jurisdiction to such
prisoners either. See ante, at 21–22. But a case standing
for the remarkable proposition that the writ could issue to
a foreign land would surely have been reported, whereas a
case denying such a writ for lack of jurisdiction would
likely not. At a minimum, the absence of a reported case
either way leaves unrefuted the voluminous commentary
stating that habeas was confined to the dominions of the
Crown.
What history teaches is confirmed by the nature of the
limitations that the Constitution places upon suspension
of the common-law writ. It can be suspended only “in
Cases of Rebellion or Invasion.” Art. I, §9, cl. 2. The latter
case (invasion) is plainly limited to the territory of the
United States; and while it is conceivable that a rebellion
could be mounted by American citizens abroad, surely the
overwhelming majority of its occurrences would be domes-
tic. If the extraterritorial scope of habeas turned on flexi-
ble, “functional” considerations, as the Court holds, why
would the Constitution limit its suspension almost en-
tirely to instances of domestic crisis? Surely there is an
even greater justification for suspension in foreign lands
where the United States might hold prisoners of war
——————
marks omitted). And Lord Mansfield’s opinion in Cowle plainly under-
stood Ireland to be “a dominion of the Crown of England,” in contrast to
the “foreign dominio[n]” of Scotland, and thought that distinction
dispositive of the question of habeas jurisdiction. Cowle, supra, at 856,
97 Eng. Rep., at 599–600.
24 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
during an ongoing conflict. And correspondingly, there is
less threat to liberty when the Government suspends the
writ’s (supposed) application in foreign lands, where even
on the most extreme view prisoners are entitled to fewer
constitutional rights. It makes no sense, therefore, for the
Constitution generally to forbid suspension of the writ
abroad if indeed the writ has application there.
It may be objected that the foregoing analysis proves too
much, since this Court has already suggested that the writ
of habeas corpus does run abroad for the benefit of United
States citizens. “[T]he position that United States citizens
throughout the world may be entitled to habeas corpus
rights . . . is precisely the position that this Court adopted
in Eisentrager, see 339 U. S., at 769–770, even while
holding that aliens abroad did not have habeas corpus
rights.” Rasul, 542 U. S., at 501, 502 (SCALIA, J., dissent-
ing) (emphasis deleted). The reason for that divergence is
not difficult to discern. The common-law writ, as received
into the law of the new constitutional Republic, took on
such changes as were demanded by a system in which rule
is derived from the consent of the governed, and in which
citizens (not “subjects”) are afforded defined protections
against the Government. As Justice Story wrote for the
Court,
“The common law of England is not to be taken in all
respects to be that of America. Our ancestors brought
with them its general principles, and claimed it as
their birthright; but they brought with them and
adopted only that portion which was applicable to
their situation.” Van Ness v. Pacard, 2 Pet. 137, 144
(1829).
See also Hall, The Common Law: An Account of its Recep-
tion in the United States, 4 Vand. L. Rev. 791 (1951). It
accords with that principle to say, as the plurality opinion
said in Reid: “When the Government reaches out to punish
25 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
a citizen who is abroad, the shield which the Bill of Rights
and other parts of the Constitution provide to protect his
life and liberty should not be stripped away just because
he happens to be in another land.” 354 U. S., at 6; see also
Verdugo-Urquidez, 494 U. S., at 269–270. On that analy-
sis, “[t]he distinction between citizens and aliens follows
from the undoubted proposition that the Constitution does
not create, nor do general principles of law create, any
juridical relation between our country and some unde-
fined, limitless class of noncitizens who are beyond our
territory.” Id., at 275 (KENNEDY, J., concurring).
In sum, because I conclude that the text and history of
the Suspension Clause provide no basis for our jurisdic-
tion, I would affirm the Court of Appeals even if Eisen-
trager did not govern these cases.
* * *
Today the Court warps our Constitution in a way that
goes beyond the narrow issue of the reach of the Suspen-
sion Clause, invoking judicially brainstormed separation-
of-powers principles to establish a manipulable “func-
tional” test for the extraterritorial reach of habeas corpus
(and, no doubt, for the extraterritorial reach of other
constitutional protections as well). It blatantly misde-
scribes important precedents, most conspicuously Justice
Jackson’s opinion for the Court in Johnson v. Eisentrager.
It breaks a chain of precedent as old as the common law
that prohibits judicial inquiry into detentions of aliens
abroad absent statutory authorization. And, most tragi-
cally, it sets our military commanders the impossible task
of proving to a civilian court, under whatever standards
this Court devises in the future, that evidence supports
the confinement of each and every enemy prisoner.
The Nation will live to regret what the Court has done
today. I dissent.
PRESIDENT LOSES ANOTHER SUPREME COURT DECISION-ENOUGH ALREADY!!!!!
1 (Slip Opinion) OCTOBER TERM, 2007
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BOUMEDIENE ET AL. v. BUSH, PRESIDENT OF THE
UNITED STATES, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 06–1195. Argued December 5, 2007—Decided June 12, 2008*
In the Authorization for Use of Military Force (AUMF), Congress em-
powered the President “to use all necessary and appropriate force
against those . . . he determines planned, authorized, committed, or
aided the terrorist attacks . . . on September 11, 2001.” In Hamdi v.
Rumsfeld, 542 U. S. 507, 518, 588–589, five Justices recognized that
detaining individuals captured while fighting against the United
States in Afghanistan for the duration of that conflict was a funda-
mental and accepted incident to war. Thereafter, the Defense De-
partment established Combatant Status Review Tribunals (CSRTs)
to determine whether individuals detained at the U. S. Naval Station
at Guantanamo Bay, Cuba, were “enemy combatants.”
Petitioners are aliens detained at Guantanamo after being cap-
tured in Afghanistan or elsewhere abroad and designated enemy
combatants by CSRTs. Denying membership in the al Qaeda terror-
ist network that carried out the September 11 attacks and the Tali-
ban regime that supported al Qaeda, each petitioner sought a writ of
habeas corpus in the District Court, which ordered the cases dis-
missed for lack of jurisdiction because Guantanamo is outside sover-
eign U. S. territory. The D. C. Circuit affirmed, but this Court re-
versed, holding that 28 U. S. C. §2241 extended statutory habeas
jurisdiction to Guantanamo. See Rasul v. Bush, 542 U. S. 466, 473.
Petitioners’ cases were then consolidated into two proceedings. In
the first, the district judge granted the Government’s motion to dis-
miss, holding that the detainees had no rights that could be vindi-
——————
*Together with No. 06–1196, Al Odah, Next Friend of Al Odah, et al.
v. United States et al., also on certiorari to the same court.
2 BOUMEDIENE v. BUSH
Syllabus
cated in a habeas action. In the second, the judge held that the de-
tainees had due process rights.
While appeals were pending, Congress passed the Detainee Treat-
ment Act of 2005 (DTA), §1005(e) of which amended 28 U. S. C. §2241
to provide that “no court, justice, or judge shall have jurisdiction to
. . . consider . . . an application for . . . habeas corpus filed by or on
behalf of an alien detained . . . at Guantanamo,” and gave the D. C.
Circuit “exclusive” jurisdiction to review CSRT decisions. In Ham-
dan v. Rumsfeld, 548 U. S. 557, 576–577, the Court held this provi-
sion inapplicable to cases (like petitioners’) pending when the DTA
was enacted. Congress responded with the Military Commissions Act
of 2006 (MCA), §7(a) of which amended §2241(e)(1) to deny jurisdic-
tion with respect to habeas actions by detained aliens determined to
be enemy combatants, while §2241(e)(2) denies jurisdiction as to “any
other action against the United States . . . relating to any aspect of
the detention, transfer, treatment, trial, or conditions of confinement”
of a detained alien determined to be an enemy combatant. MCA
§7(b) provides that the 2241(e) amendments “shall take effect on the
date of the enactment of this Act, and shall apply to all cases, without
exception, pending on or after [that] date . . . which relate to any as-
pect of the detention, transfer, treatment, trial, or conditions of de-
tention of an alien detained . . . since September 11, 2001.”
The D. C. Circuit concluded that MCA §7 must be read to strip
from it, and all federal courts, jurisdiction to consider petitioners’ ha-
beas applications; that petitioners are not entitled to habeas or the
protections of the Suspension Clause, U. S. Const., Art. I, §9, cl. 2,
which provides that “[t]he Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it”; and that it was therefore unneces-
sary to consider whether the DTA provided an adequate and effective
substitute for habeas.
Held:
1. MCA §7 denies the federal courts jurisdiction to hear habeas ac-
tions, like the instant cases, that were pending at the time of its en-
actment. Section §7(b)’s effective date provision undoubtedly applies
to habeas actions, which, by definition, “relate to . . . detention”
within that section’s meaning. Petitioners argue to no avail that
§7(b) does not apply to a §2241(e)(1) habeas action, but only to “any
other action” under §2241(e)(2), because it largely repeats that sec-
tion’s language. The phrase “other action” in §2241(e)(2) cannot be
understood without referring back to §2241(e)(1), which explicitly
mentions the “writ of habeas corpus.” Because the two paragraphs’
structure implies that habeas is a type of action “relating to any as-
3 Cite as: 553 U. S. ____ (2008)
Syllabus
pect of . . . detention,” etc., pending habeas actions are in the category
of cases subject to the statute’s jurisdictional bar. This is confirmed
by the MCA’s legislative history. Thus, if MCA §7 is valid, petition-
ers’ cases must be dismissed. Pp. 5–8.
2. Petitioners have the constitutional privilege of habeas corpus.
They are not barred from seeking the writ or invoking the Suspen-
sion Clause’s protections because they have been designated as en-
emy combatants or because of their presence at Guantanamo. Pp. 8–
41.
(a) A brief account of the writ’s history and origins shows that
protection for the habeas privilege was one of the few safeguards of
liberty specified in a Constitution that, at the outset, had no Bill of
Rights; in the system the Framers conceived, the writ has a central-
ity that must inform proper interpretation of the Suspension Clause.
That the Framers considered the writ a vital instrument for the pro-
tection of individual liberty is evident from the care taken in the Sus-
pension Clause to specify the limited grounds for its suspension: The
writ may be suspended only when public safety requires it in times of
rebellion or invasion. The Clause is designed to protect against cycli-
cal abuses of the writ by the Executive and Legislative Branches. It
protects detainee rights by a means consistent with the Constitu-
tion’s essential design, ensuring that, except during periods of formal
suspension, the Judiciary will have a time-tested device, the writ, to
maintain the “delicate balance of governance.” Hamdi, supra, at 536.
Separation-of-powers principles, and the history that influenced their
design, inform the Clause’s reach and purpose. Pp. 8–15.
(b) A diligent search of founding-era precedents and legal com-
mentaries reveals no certain conclusions. None of the cases the par-
ties cite reveal whether a common-law court would have granted, or
refused to hear for lack of jurisdiction, a habeas petition by a prisoner
deemed an enemy combatant, under a standard like the Defense De-
partment’s in these cases, and when held in a territory, like Guan-
tanamo, over which the Government has total military and civil con-
trol. The evidence as to the writ’s geographic scope at common law is
informative, but, again, not dispositive. Petitioners argue that the
site of their detention is analogous to two territories outside England
to which the common-law writ ran, the exempt jurisdictions and In-
dia, but critical differences between these places and Guantanamo
render these claims unpersuasive. The Government argues that
Guantanamo is more closely analogous to Scotland and Hanover,
where the writ did not run, but it is unclear whether the common-law
courts lacked the power to issue the writ there, or whether they re-
frained from doing so for prudential reasons. The parties’ arguments
that the very lack of a precedent on point supports their respective
4 BOUMEDIENE v. BUSH
Syllabus
positions are premised upon the doubtful assumptions that the his-
torical record is complete and that the common law, if properly un-
derstood, yields a definite answer to the questions before the Court.
Pp. 15–22.
(c) The Suspension Clause has full effect at Guantanamo. The
Government’s argument that the Clause affords petitioners no rights
because the United States does not claim sovereignty over the naval
station is rejected. Pp. 22–42.
(i) The Court does not question the Government’s position that
Cuba maintains sovereignty, in the legal and technical sense, over
Guantanamo, but it does not accept the Government’s premise that
de jure sovereignty is the touchstone of habeas jurisdiction. Com-
mon-law habeas’ history provides scant support for this proposition,
and it is inconsistent with the Court’s precedents and contrary to
fundamental separation-of-powers principles. Pp. 22–25.
(ii) Discussions of the Constitution’s extraterritorial applica-
tion in cases involving provisions other than the Suspension Clause
undermine the Government’s argument. Fundamental questions re-
garding the Constitution’s geographic scope first arose when the Na-
tion acquired Hawaii and the noncontiguous Territories ceded by
Spain after the Spanish-American War, and Congress discontinued
its prior practice of extending constitutional rights to territories by
statute. In the so-called Insular Cases, the Court held that the Con-
stitution had independent force in the territories that was not contin-
gent upon acts of legislative grace. See, e.g., Dorr v. United States,
195 U. S. 138. Yet because of the difficulties and disruption inherent
in transforming the former Spanish colonies’ civil-law system into an
Anglo-American system, the Court adopted the doctrine of territorial
incorporation, under which the Constitution applies in full in incor-
porated Territories surely destined for statehood but only in part in
unincorporated Territories. See, e.g., id., at 143. Practical considera-
tions likewise influenced the Court’s analysis in Reid v. Covert, 354
U. S. 1, where, in applying the jury provisions of the Fifth and Sixth
Amendments to American civilians being tried by the U. S. military
abroad, both the plurality and the concurrences noted the relevance
of practical considerations, related not to the petitioners’ citizenship,
but to the place of their confinement and trial. Finally, in holding
that habeas jurisdiction did not extend to enemy aliens, convicted of
violating the laws of war, who were detained in a German prison dur-
ing the Allied Powers’ post-World War II occupation, the Court, in
Johnson v. Eisentrager, 339 U. S. 763, stressed the practical difficul-
ties of ordering the production of the prisoners, id., at 779. The Gov-
ernment’s reading of Eisentrager as adopting a formalistic test for de-
termining the Suspension Clause’s reach is rejected because: (1) the
5 Cite as: 553 U. S. ____ (2008)
Syllabus
discussion of practical considerations in that case was integral to a
part of the Court’s opinion that came before it announced its holding,
see id., at 781; (2) it mentioned the concept of territorial sovereignty
only twice in its opinion, in contrast to its significant discussion of
practical barriers to the running of the writ; and (3) if the Govern-
ment’s reading were correct, the opinion would have marked not only
a change in, but a complete repudiation of, the Insular Cases’ (and
later Reid’s) functional approach. A constricted reading of Eisen-
trager overlooks what the Court sees as a common thread uniting all
these cases: The idea that extraterritoriality questions turn on objec-
tive factors and practical concerns, not formalism. Pp. 25–34.
(iii) The Government’s sovereignty-based test raises troubling
separation-of-powers concerns, which are illustrated by Guan-
tanamo’s political history. Although the United States has main-
tained complete and uninterrupted control of Guantanamo for over
100 years, the Government’s view is that the Constitution has no ef-
fect there, at least as to noncitizens, because the United States dis-
claimed formal sovereignty in its 1903 lease with Cuba. The Nation’s
basic charter cannot be contracted away like this. The Constitution
grants Congress and the President the power to acquire, dispose of,
and govern territory, not the power to decide when and where its
terms apply. To hold that the political branches may switch the Con-
stitution on or off at will would lead to a regime in which they, not
this Court, say “what the law is.” Marbury v. Madison, 1 Cranch
137, 177. These concerns have particular bearing upon the Suspen-
sion Clause question here, for the habeas writ is itself an indispensa-
ble mechanism for monitoring the separation of powers. Pp. 34–36.
(iv) Based on Eisentrager, supra, at 777, and the Court’s rea-
soning in its other extraterritoriality opinions, at least three factors
are relevant in determining the Suspension Clause’s reach: (1) the
detainees’ citizenship and status and the adequacy of the process
through which that status was determined; (2) the nature of the sites
where apprehension and then detention took place; and (3) the prac-
tical obstacles inherent in resolving the prisoner’s entitlement to the
writ. Application of this framework reveals, first, that petitioners’
status is in dispute: They are not American citizens, but deny they
are enemy combatants; and although they have been afforded some
process in CSRT proceedings, there has been no Eisentrager–style
trial by military commission for violations of the laws of war. Second,
while the sites of petitioners’ apprehension and detention weigh
against finding they have Suspension Clause rights, there are critical
differences between Eisentrager’s German prison, circa 1950, and the
Guantanamo Naval Station in 2008, given the Government’s absolute
and indefinite control over the naval station. Third, although the
6 BOUMEDIENE v. BUSH
Syllabus
Court is sensitive to the financial and administrative costs of holding
the Suspension Clause applicable in a case of military detention
abroad, these factors are not dispositive because the Government
presents no credible arguments that the military mission at Guan-
tanamo would be compromised if habeas courts had jurisdiction. The
situation in Eisentrager was far different, given the historical context
and nature of the military’s mission in post-War Germany. Pp. 36–
41.
(d) Petitioners are therefore entitled to the habeas privilege, and
if that privilege is to be denied them, Congress must act in accor-
dance with the Suspension Clause’s requirements. Cf. Rasul, 542
U. S., at 564. Pp. 41–42.
3. Because the DTA’s procedures for reviewing detainees’ status
are not an adequate and effective substitute for the habeas writ,
MCA §7 operates as an unconstitutional suspension of the writ. Pp.
42–64.
(a) Given its holding that the writ does not run to petitioners, the
D. C. Circuit found it unnecessary to consider whether there was an
adequate substitute for habeas. This Court usually remands for con-
sideration of questions not decided below, but departure from this
rule is appropriate in “exceptional” circumstances, see, e.g., Cooper
Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 169, here, the
grave separation-of-powers issues raised by these cases and the fact
that petitioners have been denied meaningful access to a judicial fo-
rum for years. Pp. 42–44.
(b) Historically, Congress has taken care to avoid suspensions of
the writ. For example, the statutes at issue in the Court’s two lead-
ing cases addressing habeas substitutes, Swain v. Pressley, 430 U. S.
372, and United States v. Hayman, 342 U. S. 205, were attempts to
streamline habeas relief, not to cut it back. Those cases provide little
guidance here because, inter alia, the statutes in question gave the
courts broad remedial powers to secure the historic office of the writ,
and included saving clauses to preserve habeas review as an avenue
of last resort. In contrast, Congress intended the DTA and the MCA
to circumscribe habeas review, as is evident from the unequivocal na-
ture of MCA §7’s jurisdiction-stripping language, from the DTA’s text
limiting the Court of Appeals’ jurisdiction to assessing whether the
CSRT complied with the “standards and procedures specified by the
Secretary of Defense,” DTA §1005(e)(2)(C), and from the absence of a
saving clause in either Act. That Congress intended to create a more
limited procedure is also confirmed by the legislative history and by a
comparison of the DTA and the habeas statute that would govern in
MCA §7’s absence, 28 U. S. C. §2241. In §2241, Congress authorized
“any justice” or “circuit judge” to issue the writ, thereby accommodat-
7 Cite as: 553 U. S. ____ (2008)
Syllabus
ing the necessity for factfinding that will arise in some cases by al-
lowing the appellate judge or Justice to transfer the case to a district
court. See §2241(b). However, by granting the D. C. Circuit “exclu-
sive” jurisdiction over petitioners’ cases, see DTA §1005(e)(2)(A),
Congress has foreclosed that option in these cases. Pp. 44–49.
(c) This Court does not endeavor to offer a comprehensive sum-
mary of the requisites for an adequate habeas substitute. It is un-
controversial, however, that the habeas privilege entitles the prisoner
to a meaningful opportunity to demonstrate that he is being held pur-
suant to “the erroneous application or interpretation” of relevant law,
INS v. St. Cyr, 533 U. S. 289, 302, and the habeas court must have
the power to order the conditional release of an individual unlawfully
detained. But more may be required depending on the circum-
stances. Petitioners identify what they see as myriad deficiencies in
the CSRTs, the most relevant being the constraints upon the de-
tainee’s ability to rebut the factual basis for the Government’s asser-
tion that he is an enemy combatant. At the CSRT stage the detainee
has limited means to find or present evidence to challenge the Gov-
ernment’s case, does not have the assistance of counsel, and may not
be aware of the most critical allegations that the Government relied
upon to order his detention. His opportunity to confront witnesses is
likely to be more theoretical than real, given that there are no limits
on the admission of hearsay. The Court therefore agrees with peti-
tioners that there is considerable risk of error in the tribunal’s find-
ings of fact. And given that the consequence of error may be deten-
tion for the duration of hostilities that may last a generation or more,
the risk is too significant to ignore. Accordingly, for the habeas writ,
or its substitute, to function as an effective and meaningful remedy in
this context, the court conducting the collateral proceeding must have
some ability to correct any errors, to assess the sufficiency of the
Government’s evidence, and to admit and consider relevant exculpa-
tory evidence that was not introduced during the earlier proceeding.
In re Yamashita, 327 U. S. 1, 5, 8, and Ex parte Quirin, 317 U. S. 1,
23–25, distinguished. Pp. 49–57.
(d) Petitioners have met their burden of establishing that the
DTA review process is, on its face, an inadequate substitute for ha-
beas. Among the constitutional infirmities from which the DTA po-
tentially suffers are the absence of provisions allowing petitioners to
challenge the President’s authority under the AUMF to detain them
indefinitely, to contest the CSRT’s findings of fact, to supplement the
record on review with exculpatory evidence discovered after the
CSRT proceedings, and to request release. The statute cannot be
read to contain each of these constitutionally required procedures.
MCA §7 thus effects an unconstitutional suspension of the writ.
8 BOUMEDIENE v. BUSH
Syllabus
There is no jurisdictional bar to the District Court’s entertaining pe-
titioners’ claims. Pp. 57–64.
4. Nor are there prudential barriers to habeas review. Pp. 64–70.
(a) Petitioners need not seek review of their CSRT determina-
tions in the D. C. Circuit before proceeding with their habeas actions
in the District Court. If these cases involved detainees held for only a
short time while awaiting their CSRT determinations, or were it
probable that the Court of Appeals could complete a prompt review of
their applications, the case for requiring temporary abstention or ex-
haustion of alternative remedies would be much stronger. But these
qualifications no longer pertain here. In some instances six years
have elapsed without the judicial oversight that habeas corpus or an
adequate substitute demands. To require these detainees to pursue
the limited structure of DTA review before proceeding with habeas
actions would be to require additional months, if not years, of delay.
This holding should not be read to imply that a habeas court should
intervene the moment an enemy combatant steps foot in a territory
where the writ runs. Except in cases of undue delay, such as the pre-
sent, federal courts should refrain from entertaining an enemy com-
batant’s habeas petition at least until after the CSRT has had a
chance to review his status. Pp. 64–67.
(b) In effectuating today’s holding, certain accommodations—
including channeling future cases to a single district court and re-
quiring that court to use its discretion to accommodate to the greatest
extent possible the Government’s legitimate interest in protecting
sources and intelligence gathering methods—should be made to re-
duce the burden habeas proceedings will place on the military, with-
out impermissibly diluting the writ’s protections. Pp. 67–68.
5. In considering both the procedural and substantive standards
used to impose detention to prevent acts of terrorism, the courts must
accord proper deference to the political branches. However, security
subsists, too, in fidelity to freedom’s first principles, chief among
them being freedom from arbitrary and unlawful restraint and the
personal liberty that is secured by adherence to the separation of
powers. Pp. 68–70.
476 F. 3d 981, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which STEVENS,
SOUTER, GINSBURG, and BREYER, JJ., joined. SOUTER, J., filed a concur-
ring opinion, in which GINSBURG and BREYER, JJ., joined. ROBERTS,
C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO,
JJ., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS,
C. J., and THOMAS and ALITO, JJ., joined.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
JUSTICE KENNEDY delivered the opinion of the Court.
Petitioners are aliens designated as enemy combatants
and detained at the United States Naval Station at Guan
tanamo Bay, Cuba. There are others detained there, also
aliens, who are not parties to this suit.
Petitioners present a question not resolved by our ear
lier cases relating to the detention of aliens at Guan
tanamo: whether they have the constitutional privilege of
habeas corpus, a privilege not to be withdrawn except in
conformance with the Suspension Clause, Art. I, §9, cl. 2.
We hold these petitioners do have the habeas corpus
privilege. Congress has enacted a statute, the Detainee
Treatment Act of 2005 (DTA), 119 Stat. 2739, that pro
2 BOUMEDIENE v. BUSH
Opinion of the Court
vides certain procedures for review of the detainees’
status. We hold that those procedures are not an ade
quate and effective substitute for habeas corpus. There
fore §7 of the Military Commissions Act of 2006 (MCA), 28
U. S. C. A. §2241(e) (Supp. 2007), operates as an unconsti
tutional suspension of the writ. We do not address
whether the President has authority to detain these peti
tioners nor do we hold that the writ must issue. These
and other questions regarding the legality of the detention
are to be resolved in the first instance by the District
Court.
I
Under the Authorization for Use of Military Force
(AUMF), §2(a), 115 Stat. 224, note following 50 U. S. C.
§1541 (2000 ed., Supp. V), the President is authorized “to
use all necessary and appropriate force against those
nations, organizations, or persons he determines planned,
authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001, or harbored such organi
zations or persons, in order to prevent any future acts of
international terrorism against the United States by such
nations, organizations or persons.”
In Hamdi v. Rumsfeld, 542 U. S. 507 (2004), five Mem
bers of the Court recognized that detention of individuals
who fought against the United States in Afghanistan “for
the duration of the particular conflict in which they were
captured, is so fundamental and accepted an incident to
war as to be an exercise of the ‘necessary and appropriate
force’ Congress has authorized the President to use.” Id.,
at 518 (plurality opinion of O’Connor, J.), id., at 588–589
(THOMAS, J., dissenting). After Hamdi, the Deputy Secre
tary of Defense established Combatant Status Review
Tribunals (CSRTs) to determine whether individuals
detained at Guantanamo were “enemy combatants,” as the
Department defines that term. See App. to Pet. for Cert.
3 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
in No. 06–1195, p. 81a. A later memorandum established
procedures to implement the CSRTs. See App. to Pet. for
Cert. in No. 06–1196, p. 147. The Government maintains
these procedures were designed to comply with the due
process requirements identified by the plurality in Hamdi.
See Brief for Respondents 10.
Interpreting the AUMF, the Department of Defense
ordered the detention of these petitioners, and they were
transferred to Guantanamo. Some of these individuals
were apprehended on the battlefield in Afghanistan, oth
ers in places as far away from there as Bosnia and Gam
bia. All are foreign nationals, but none is a citizen of a
nation now at war with the United States. Each denies he
is a member of the al Qaeda terrorist network that carried
out the September 11 attacks or of the Taliban regime
that provided sanctuary for al Qaeda. Each petitioner
appeared before a separate CSRT; was determined to be
an enemy combatant; and has sought a writ of habeas
corpus in the United States District Court for the District
of Columbia.
The first actions commenced in February 2002. The
District Court ordered the cases dismissed for lack of
jurisdiction because the naval station is outside the sover
eign territory of the United States. See Rasul v. Bush, 215
F. Supp. 2d 55 (2002). The Court of Appeals for the Dis
trict of Columbia Circuit affirmed. See Al Odah v. United
States, 321 F. 3d 1134, 1145 (2003). We granted certiorari
and reversed, holding that 28 U. S. C. §2241 extended
statutory habeas corpus jurisdiction to Guantanamo. See
Rasul v. Bush, 542 U. S. 466, 473 (2004). The constitu
tional issue presented in the instant cases was not reached
in Rasul. Id., at 476.
After Rasul, petitioners’ cases were consolidated and
entertained in two separate proceedings. In the first set of
cases, Judge Richard J. Leon granted the Government’s
motion to dismiss, holding that the detainees had no
4 BOUMEDIENE v. BUSH
Opinion of the Court
rights that could be vindicated in a habeas corpus action.
In the second set of cases Judge Joyce Hens Green reached
the opposite conclusion, holding the detainees had rights
under the Due Process Clause of the Fifth Amendment.
See Khalid v. Bush, 355 F. Supp. 2d 311, 314 (DC 2005);
In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443,
464 (DC 2005).
While appeals were pending from the District Court
decisions, Congress passed the DTA. Subsection (e) of
§1005 of the DTA amended 28 U. S. C. §2241 to provide
that “no court, justice, or judge shall have jurisdiction to
hear or consider . . . an application for a writ of habeas
corpus filed by or on behalf of an alien detained by the
Department of Defense at Guantanamo Bay, Cuba.” 119
Stat. 2742. Section 1005 further provides that the Court
of Appeals for the District of Columbia Circuit shall have
“exclusive” jurisdiction to review decisions of the CSRTs.
Ibid.
In Hamdan v. Rumsfeld, 548 U. S. 557, 576–577 (2006),
the Court held this provision did not apply to cases (like
petitioners’) pending when the DTA was enacted. Con
gress responded by passing the MCA, 10 U. S. C. A. §948a
et seq. (Supp. 2007), which again amended §2241. The
text of the statutory amendment is discussed below. See
Part II, infra. (Four Members of the Hamdan majority
noted that “[n]othing prevent[ed] the President from
returning to Congress to seek the authority he believes
necessary.” 548 U. S., at 636 (BREYER, J., concurring).
The authority to which the concurring opinion referred
was the authority to “create military commissions of the
kind at issue” in the case. Ibid. Nothing in that opinion
can be construed as an invitation for Congress to suspend
the writ.)
Petitioners’ cases were consolidated on appeal, and the
parties filed supplemental briefs in light of our decision in
Hamdan. The Court of Appeals’ ruling, 476 F. 3d 981
5 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
(CADC 2007), is the subject of our present review and
today’s decision.
The Court of Appeals concluded that MCA §7 must be
read to strip from it, and all federal courts, jurisdiction to
consider petitioners’ habeas corpus applications, id., at
987; that petitioners are not entitled to the privilege of the
writ or the protections of the Suspension Clause, id., at
990–991; and, as a result, that it was unnecessary to
consider whether Congress provided an adequate and
effective substitute for habeas corpus in the DTA.
We granted certiorari. 551 U. S. ___ (2007).
II
As a threshold matter, we must decide whether MCA §7
denies the federal courts jurisdiction to hear habeas cor
pus actions pending at the time of its enactment. We hold
the statute does deny that jurisdiction, so that, if the
statute is valid, petitioners’ cases must be dismissed.
As amended by the terms of the MCA, 28 U. S. C. A.
§2241(e) (Supp. 2007) now provides:
“(1) No court, justice, or judge shall have jurisdic
tion to hear or consider an application for a writ of
habeas corpus filed by or on behalf of an alien de
tained by the United States who has been deter
mined by the United States to have been properly de
tained as an enemy combatant or is awaiting such
determination.
“(2) Except as provided in [§§1005(e)(2) and (e)(3)
of the DTA] no court, justice, or judge shall have ju
risdiction to hear or consider any other action
against the United States or its agents relating to
any aspect of the detention, transfer, treatment,
trial, or conditions of confinement of an alien who is
or was detained by the United States and has been
determined by the United States to have been prop
erly detained as an enemy combatant or is awaiting
6 BOUMEDIENE v. BUSH
Opinion of the Court
such determination.”
Section 7(b) of the MCA provides the effective date for
the amendment of §2241(e). It states:
“The amendment made by [MCA §7(a)] shall take ef
fect on the date of the enactment of this Act, and shall
apply to all cases, without exception, pending on or af
ter the date of the enactment of this Act which relate
to any aspect of the detention, transfer, treatment,
trial, or conditions of detention of an alien detained by
the United States since September 11, 2001.” 120
Stat. 2636.
There is little doubt that the effective date provision
applies to habeas corpus actions. Those actions, by defini
tion, are cases “which relate to . . . detention.” See Black’s
Law Dictionary 728 (8th ed. 2004) (defining habeas corpus
as “[a] writ employed to bring a person before a court,
most frequently to ensure that the party’s imprisonment
or detention is not illegal”). Petitioners argue, neverthe
less, that MCA §7(b) is not a sufficiently clear statement of
congressional intent to strip the federal courts of jurisdic
tion in pending cases. See Ex parte Yerger, 8 Wall. 85,
102–103 (1869). We disagree.
Their argument is as follows: Section 2241(e)(1) refers to
“a writ of habeas corpus.” The next paragraph,
§2241(e)(2), refers to “any other action . . . relating to any
aspect of the detention, transfer, treatment, trial, or condi
tions of confinement of an alien who . . . [has] been prop
erly detained as an enemy combatant or is awaiting such
determination.” There are two separate paragraphs, the
argument continues, so there must be two distinct classes
of cases. And the effective date subsection, MCA §7(b), it
is said, refers only to the second class of cases, for it
largely repeats the language of §2241(e)(2) by referring to
“cases . . . which relate to any aspect of the detention,
transfer, treatment, trial, or conditions of detention of an
7 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
alien detained by the United States.”
Petitioners’ textual argument would have more force
were it not for the phrase “other action” in §2241(e)(2).
The phrase cannot be understood without referring back
to the paragraph that precedes it, §2241(e)(1), which
explicitly mentions the term “writ of habeas corpus.” The
structure of the two paragraphs implies that habeas ac
tions are a type of action “relating to any aspect of the
detention, transfer, treatment, trial, or conditions of con
finement of an alien who is or was detained . . . as an
enemy combatant.” Pending habeas actions, then, are in
the category of cases subject to the statute’s jurisdictional
bar.
We acknowledge, moreover, the litigation history that
prompted Congress to enact the MCA. In Hamdan the
Court found it unnecessary to address the petitioner’s
Suspension Clause arguments but noted the relevance of
the clear statement rule in deciding whether Congress
intended to reach pending habeas corpus cases. See 548
U. S., at 575 (Congress should “not be presumed to have
effected such denial [of habeas relief] absent an unmis
takably clear statement to the contrary”). This interpre
tive rule facilitates a dialogue between Congress and the
Court. Cf. Hilton v. South Carolina Public Railways
Comm’n, 502 U. S. 197, 206 (1991); H. Hart & A. Sacks,
The Legal Process: Basic Problems in the Making and
Application of Law 1209–1210 (W. Eskridge & P. Frickey
eds. 1994). If the Court invokes a clear statement rule to
advise that certain statutory interpretations are favored
in order to avoid constitutional difficulties, Congress can
make an informed legislative choice either to amend the
statute or to retain its existing text. If Congress amends,
its intent must be respected even if a difficult constitu
tional question is presented. The usual presumption is
that Members of Congress, in accord with their oath of
office, considered the constitutional issue and determined
8 BOUMEDIENE v. BUSH
Opinion of the Court
the amended statute to be a lawful one; and the Judiciary,
in light of that determination, proceeds to its own inde
pendent judgment on the constitutional question when
required to do so in a proper case.
If this ongoing dialogue between and among the
branches of Government is to be respected, we cannot
ignore that the MCA was a direct response to Hamdan’s
holding that the DTA’s jurisdiction-stripping provision
had no application to pending cases. The Court of Appeals
was correct to take note of the legislative history when
construing the statute, see 476 F. 3d, at 986, n. 2 (citing
relevant floor statements); and we agree with its conclu
sion that the MCA deprives the federal courts of jurisdic
tion to entertain the habeas corpus actions now before us.
III
In deciding the constitutional questions now presented
we must determine whether petitioners are barred from
seeking the writ or invoking the protections of the Suspen
sion Clause either because of their status, i.e., petitioners’
designation by the Executive Branch as enemy combat
ants, or their physical location, i.e., their presence at
Guantanamo Bay. The Government contends that non
citizens designated as enemy combatants and detained in
territory located outside our Nation’s borders have no
constitutional rights and no privilege of habeas corpus.
Petitioners contend they do have cognizable constitutional
rights and that Congress, in seeking to eliminate recourse
to habeas corpus as a means to assert those rights, acted
in violation of the Suspension Clause.
We begin with a brief account of the history and origins
of the writ. Our account proceeds from two propositions.
First, protection for the privilege of habeas corpus was one
of the few safeguards of liberty specified in a Constitution
that, at the outset, had no Bill of Rights. In the system
conceived by the Framers the writ had a centrality that
9 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
must inform proper interpretation of the Suspension
Clause. Second, to the extent there were settled prece
dents or legal commentaries in 1789 regarding the extra
territorial scope of the writ or its application to enemy
aliens, those authorities can be instructive for the present
cases.
A
The Framers viewed freedom from unlawful restraint as
a fundamental precept of liberty, and they understood the
writ of habeas corpus as a vital instrument to secure that
freedom. Experience taught, however, that the common-
law writ all too often had been insufficient to guard
against the abuse of monarchial power. That history
counseled the necessity for specific language in the Consti
tution to secure the writ and ensure its place in our legal
system.
Magna Carta decreed that no man would be imprisoned
contrary to the law of the land. Art. 39, in Sources of Our
Liberties 17 (R. Perry & J. Cooper eds. 1959) (“No free
man shall be taken or imprisoned or dispossessed, or
outlawed, or banished, or in any way destroyed, nor will
we go upon him, nor send upon him, except by the legal
judgment of his peers or by the law of the land”). Impor
tant as the principle was, the Barons at Runnymede pre
scribed no specific legal process to enforce it. Holdsworth
tells us, however, that gradually the writ of habeas corpus
became the means by which the promise of Magna Carta
was fulfilled. 9 W. Holdsworth, A History of English Law
112 (1926) (hereinafter Holdsworth).
The development was painstaking, even by the centu
ries-long measures of English constitutional history. The
writ was known and used in some form at least as early as
the reign of Edward I. Id., at 108–125. Yet at the outset
it was used to protect not the rights of citizens but those of
the King and his courts. The early courts were considered
10 BOUMEDIENE v. BUSH
Opinion of the Court
agents of the Crown, designed to assist the King in the
exercise of his power. See J. Baker, An Introduction to
English Legal History 38–39 (4th ed. 2002). Thus the
writ, while it would become part of the foundation of
liberty for the King’s subjects, was in its earliest use a
mechanism for securing compliance with the King’s
laws. See Halliday & White, The Suspension Clause:
English Text, Imperial Contexts, and American Impli
cations, 94 Va. L. Rev. (forthcoming 2008) (hereinafter
Halliday & White) (manuscript, at 11, online at
http://papers.ssrn.com/sol3 /papers.cfm?abstract_id=100
8252 (all Internet materials as visited June 9, 2008, and
available in Clerk of Court’s case file) (noting that “concep
tually the writ arose from a theory of power rather than a
theory of liberty”)). Over time it became clear that by
issuing the writ of habeas corpus common-law courts
sought to enforce the King’s prerogative to inquire into the
authority of a jailer to hold a prisoner. See M. Hale, Pre
rogatives of the King 229 (D. Yale ed. 1976); 2 J. Story,
Commentaries on the Constitution of the United States
§1341, p. 237 (3d ed. 1858) (noting that the writ ran “into
all parts of the king’s dominions; for it is said, that the
king is entitled, at all times, to have an account, why the
liberty of any of his subjects is restrained”).
Even so, from an early date it was understood that the
King, too, was subject to the law. As the writers said of
Magna Carta, “it means this, that the king is and shall be
below the law.” 1 F. Pollock & F. Maitland, History of
English Law 173 (2d ed. 1909); see also 2 Bracton On the
Laws and Customs of England 33 (S. Thorne transl. 1968)
(“The king must not be under man but under God and
under the law, because law makes the king”). And, by the
1600’s, the writ was deemed less an instrument of the
King’s power and more a restraint upon it. See Collings,
Habeas Corpus for Convicts—Constitutional Right or
Legislative Grace, 40 Calif. L. Rev. 335, 336 (1952) (noting
11 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
that by this point the writ was “the appropriate process for
checking illegal imprisonment by public officials”).
Still, the writ proved to be an imperfect check. Even
when the importance of the writ was well understood in
England, habeas relief often was denied by the courts or
suspended by Parliament. Denial or suspension occurred
in times of political unrest, to the anguish of the impris
oned and the outrage of those in sympathy with them.
A notable example from this period was Darnel’s Case, 3
How. St. Tr. 1 (K. B. 1627). The events giving rise to the
case began when, in a display of the Stuart penchant for
authoritarian excess, Charles I demanded that Darnel and
at least four others lend him money. Upon their refusal,
they were imprisoned. The prisoners sought a writ of
habeas corpus; and the King filed a return in the form of a
warrant signed by the Attorney General. Ibid. The court
held this was a sufficient answer and justified the sub
jects’ continued imprisonment. Id., at 59.
There was an immediate outcry of protest. The House of
Commons promptly passed the Petition of Right, 3 Car. 1,
ch. 1 (1627), 5 Statutes of the Realm 23, 24 (reprint 1963),
which condemned executive “imprison[ment] without any
cause” shown, and declared that “no freeman in any such
manner as is before mencioned [shall] be imprisoned or
deteined.” Yet a full legislative response was long de
layed. The King soon began to abuse his authority again,
and Parliament was dissolved. See W. Hall & R. Albion, A
History of England and the British Empire 328 (3d ed.
1953) (hereinafter Hall & Albion). When Parliament
reconvened in 1640, it sought to secure access to the writ
by statute. The Act of 1640, 16 Car. 1, ch. 10, 5 Statutes of
the Realm, at 110, expressly authorized use of the writ to
test the legality of commitment by command or warrant of
the King or the Privy Council. Civil strife and the Inter
regnum soon followed, and not until 1679 did Parliament
try once more to secure the writ, this time through the
12 BOUMEDIENE v. BUSH
Opinion of the Court
Habeas Corpus Act of 1679, 31 Car. 2, ch. 2, id., at 935.
The Act, which later would be described by Blackstone as
the “stable bulwark of our liberties,” 1 W. Blackstone,
Commentaries *137 (hereinafter Blackstone), established
procedures for issuing the writ; and it was the model upon
which the habeas statutes of the 13 American Colonies
were based, see Collings, supra, at 338–339.
This history was known to the Framers. It no doubt
confirmed their view that pendular swings to and away
from individual liberty were endemic to undivided, uncon
trolled power. The Framers’ inherent distrust of govern
mental power was the driving force behind the constitu
tional plan that allocated powers among three
independent branches. This design serves not only to
make Government accountable but also to secure individ
ual liberty. See Loving v. United States, 517 U. S. 748,
756 (1996) (noting that “[e]ven before the birth of this
country, separation of powers was known to be a defense
against tyranny”); cf. Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring)
(“[T]he Constitution diffuses power the better to secure
liberty”); Clinton v. City of New York, 524 U. S. 417, 450
(1998) (KENNEDY, J., concurring) (“Liberty is always at
stake when one or more of the branches seek to transgress
the separation of powers”). Because the Constitution’s
separation-of-powers structure, like the substantive guar
antees of the Fifth and Fourteenth Amendments, see Yick
Wo v. Hopkins, 118 U. S. 356, 374 (1886), protects persons
as well as citizens, foreign nationals who have the privi
lege of litigating in our courts can seek to enforce separa
tion-of-powers principles, see, e.g., INS v. Chadha, 462
U. S. 919, 958–959 (1983).
That the Framers considered the writ a vital instrument
for the protection of individual liberty is evident from the
care taken to specify the limited grounds for its suspen
sion: “The Privilege of the Writ of Habeas Corpus shall not
13 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
be suspended, unless when in Cases of Rebellion or Inva
sion the public Safety may require it.” Art. I, §9, cl. 2; see
Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425,
1509, n. 329 (1987) (“[T]he non-suspension clause is the
original Constitution’s most explicit reference to reme
dies”). The word “privilege” was used, perhaps, to avoid
mentioning some rights to the exclusion of others. (In
deed, the only mention of the term “right” in the Constitu
tion, as ratified, is in its clause giving Congress the power
to protect the rights of authors and inventors. See Art. I,
§8, cl. 8.)
Surviving accounts of the ratification debates provide
additional evidence that the Framers deemed the writ to
be an essential mechanism in the separation-of-powers
scheme. In a critical exchange with Patrick Henry at the
Virginia ratifying convention Edmund Randolph referred
to the Suspension Clause as an “exception” to the “power
given to Congress to regulate courts.” See 3 Debates in
the Several State Conventions on the Adoption of the
Federal Constitution 460–464 (J. Elliot 2d ed. 1876) (here
inafter Elliot’s Debates). A resolution passed by the New
York ratifying convention made clear its understanding
that the Clause not only protects against arbitrary sus
pensions of the writ but also guarantees an affirmative
right to judicial inquiry into the causes of detention. See
Resolution of the New York Ratifying Convention (July 26,
1788), in 1 Elliot’s Debates 328 (noting the convention’s
understanding “[t]hat every person restrained of his lib
erty is entitled to an inquiry into the lawfulness of such
restraint, and to a removal thereof if unlawful; and that
such inquiry or removal ought not to be denied or delayed,
except when, on account of public danger, the Congress
shall suspend the privilege of the writ of habeas corpus”).
Alexander Hamilton likewise explained that by providing
the detainee a judicial forum to challenge detention, the
writ preserves limited government. As he explained in
14 BOUMEDIENE v. BUSH
Opinion of the Court
The Federalist No. 84:
“[T]he practice of arbitrary imprisonments, have been,
in all ages, the favorite and most formidable instru
ments of tyranny. The observations of the judicious
Blackstone . . . are well worthy of recital: ‘To bereave
a man of life . . . or by violence to confiscate his estate,
without accusation or trial, would be so gross and no
torious an act of despotism as must at once convey the
alarm of tyranny throughout the whole nation; but
confinement of the person, by secretly hurrying him to
jail, where his sufferings are unknown or forgotten, is
a less public, a less striking, and therefore a more
dangerous engine of arbitrary government.’ And as a
remedy for this fatal evil he is everywhere peculiarly
emphatical in his encomiums on the habeas corpus
act, which in one place he calls ‘the BULWARK of the
British Constitution.’” C. Rossiter ed., p. 512 (1961)
(quoting 1 Blackstone *136, 4 id., at *438).
Post-1789 habeas developments in England, though not
bearing upon the Framers’ intent, do verify their foresight.
Those later events would underscore the need for struc
tural barriers against arbitrary suspensions of the writ.
Just as the writ had been vulnerable to executive and
parliamentary encroachment on both sides of the Atlantic
before the American Revolution, despite the Habeas Cor
pus Act of 1679, the writ was suspended with frequency in
England during times of political unrest after 1789. Par
liament suspended the writ for much of the period from
1792 to 1801, resulting in rampant arbitrary imprison
ment. See Hall & Albion 550. Even as late as World War
I, at least one prominent English jurist complained that
the Defence of the Realm Act, 1914, 4 & 5 Geo. 5, ch.
29(1)(a), effectively had suspended the privilege of habeas
corpus for any person suspected of “communicating with
the enemy.” See King v. Halliday, [1917] A. C. 260, 299
15 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
(Lord Shaw, dissenting); see generally A. Simpson, In the
Highest Degree Odious: Detention Without Trial in War
time Britain 6–7, 24–25 (1992).
In our own system the Suspension Clause is designed to
protect against these cyclical abuses. The Clause protects
the rights of the detained by a means consistent with the
essential design of the Constitution. It ensures that,
except during periods of formal suspension, the Judiciary
will have a time-tested device, the writ, to maintain the
“delicate balance of governance” that is itself the surest
safeguard of liberty. See Hamdi, 542 U. S., at 536 (plural
ity opinion). The Clause protects the rights of the de
tained by affirming the duty and authority of the Judici
ary to call the jailer to account. See Preiser v. Rodriguez,
411 U. S. 475, 484 (1973) (“[T]he essence of habeas corpus
is an attack by a person in custody upon the legality of
that custody”); cf. In re Jackson, 15 Mich. 417, 439–440
(1867) (Cooley, J., concurring) (“The important fact to be
observed in regard to the mode of procedure upon this
[habeas] writ is, that it is directed to, and served upon, not
the person confined, but his jailer”). The separation-of
powers doctrine, and the history that influenced its de
sign, therefore must inform the reach and purpose of the
Suspension Clause.
B
The broad historical narrative of the writ and its func
tion is central to our analysis, but we seek guidance as
well from founding-era authorities addressing the specific
question before us: whether foreign nationals, appre
hended and detained in distant countries during a time of
serious threats to our Nation’s security, may assert the
privilege of the writ and seek its protection. The Court
has been careful not to foreclose the possibility that the
protections of the Suspension Clause have expanded along
with post-1789 developments that define the present scope
16 BOUMEDIENE v. BUSH
Opinion of the Court
of the writ. See INS v. St. Cyr, 533 U. S. 289, 300–301
(2001). But the analysis may begin with precedents as of
1789, for the Court has said that “at the absolute mini
mum” the Clause protects the writ as it existed when the
Constitution was drafted and ratified. Id., at 301.
To support their arguments, the parties in these cases
have examined historical sources to construct a view of the
common-law writ as it existed in 1789—as have amici
whose expertise in legal history the Court has relied upon
in the past. See Brief for Legal Historians as Amici Cu-
riae; see also St. Cyr, supra, at 302, n. 16. The Govern
ment argues the common-law writ ran only to those terri
tories over which the Crown was sovereign. See Brief for
Respondents 27. Petitioners argue that jurisdiction fol
lowed the King’s officers. See Brief for Petitioner Boume
diene et al. 11. Diligent search by all parties reveals no
certain conclusions. In none of the cases cited do we find
that a common-law court would or would not have
granted, or refused to hear for lack of jurisdiction, a peti
tion for a writ of habeas corpus brought by a prisoner
deemed an enemy combatant, under a standard like the
one the Department of Defense has used in these cases,
and when held in a territory, like Guantanamo, over
which the Government has total military and civil control.
We know that at common law a petitioner’s status as an
alien was not a categorical bar to habeas corpus relief.
See, e.g., Sommersett’s Case, 20 How. St. Tr. 1, 80–82
(1772) (ordering an African slave freed upon finding the
custodian’s return insufficient); see generally Khera v.
Secretary of State for the Home Dept., [1984] A. C. 74, 111
(“Habeas corpus protection is often expressed as limited to
‘British subjects.’ Is it really limited to British nationals?
Suffice it to say that the case law has given an emphatic
‘no’ to the question”). We know as well that common-law
courts entertained habeas petitions brought by enemy
aliens detained in England—“entertained” at least in the
17 Cite as: 553 U. S. ____ (2008)
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sense that the courts held hearings to determine the
threshold question of entitlement to the writ. See Case of
Three Spanish Sailors, 2 Black. W. 1324, 96 Eng. Rep. 775
(C. P. 1779); King v. Schiever, 2 Burr. 765, 97 Eng. Rep.
551 (K. B. 1759); Du Castro’s Case, Fort. 195, 92 Eng. Rep.
816 (K. B. 1697).
In Schiever and the Spanish Sailors’ case, the courts
denied relief to the petitioners. Whether the holdings in
these cases were jurisdictional or based upon the courts’
ruling that the petitioners were detained lawfully as
prisoners of war is unclear. See Spanish Sailors, supra, at
1324, 96 Eng. Rep., at 776; Schiever, supra, at 766, 97
Eng. Rep., at 552. In Du Castro’s Case, the court granted
relief, but that case is not analogous to petitioners’ be
cause the prisoner there appears to have been detained in
England. See Halliday & White 27, n. 72. To the extent
these authorities suggest the common-law courts ab
stained altogether from matters involving prisoners of
war, there was greater justification for doing so in the
context of declared wars with other nation states. Judicial
intervention might have complicated the military’s ability
to negotiate exchange of prisoners with the enemy, a
wartime practice well known to the Framers. See Resolu
tion of Mar. 30, 1778, 10 Journals of the Continental
Congress 1774–1789, p. 295 (W. Ford ed. 1908) (directing
General Washington not to exchange prisoners with the
British unless the enemy agreed to exempt citizens from
capture).
We find the evidence as to the geographic scope of the
writ at common law informative, but, again, not disposi
tive. Petitioners argue the site of their detention is analo
gous to two territories outside of England to which the
writ did run: the so-called “exempt jurisdictions,” like the
Channel Islands; and (in former times) India. There are
critical differences between these places and Guantanamo,
however.
18 BOUMEDIENE v. BUSH
Opinion of the Court
As the Court noted in Rasul, 542 U. S., at 481–482, and
nn. 11–12, common-law courts granted habeas corpus
relief to prisoners detained in the exempt jurisdictions.
But these areas, while not in theory part of the realm of
England, were nonetheless under the Crown’s control. See
2 H. Hallam, Constitutional History of England: From the
Accession of Henry VII to the Death of George II, pp. 232–
233 (reprint 1989). And there is some indication that
these jurisdictions were considered sovereign territory.
King v. Cowle, 2 Burr. 834, 854, 855, 97 Eng. Rep. 587,
599 (K. B. 1759) (describing one of the exempt jurisdic
tions, Berwick-upon-Tweed, as under the “sovereign juris
diction” and “subjection of the Crown of England”). Be
cause the United States does not maintain formal
sovereignty over Guantanamo Bay, see Part IV, infra, the
naval station there and the exempt jurisdictions discussed
in the English authorities are not similarly situated.
Petitioners and their amici further rely on cases in
which British courts in India granted writs of habeas
corpus to noncitizens detained in territory over which the
Moghul Emperor retained formal sovereignty and control.
See supra, at 12–13; Brief for Legal Historians as Amici
Curiae 12–13. The analogy to the present cases breaks
down, however, because of the geographic location of the
courts in the Indian example. The Supreme Court of
Judicature (the British Court) sat in Calcutta; but no
federal court sits at Guantanamo. The Supreme Court of
Judicature was, moreover, a special court set up by Par
liament to monitor certain conduct during the British Raj.
See Regulating Act of 1773, 13 Geo. 3, §§13–14. That it
had the power to issue the writ in nonsovereign territory
does not prove that common-law courts sitting in England
had the same power. If petitioners were to have the better
of the argument on this point, we would need some dem
onstration of a consistent practice of common-law courts
sitting in England and entertaining petitions brought by
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Opinion of the Court
alien prisoners detained abroad. We find little support for
this conclusion.
The Government argues, in turn, that Guantanamo is
more closely analogous to Scotland and Hanover, territo
ries that were not part of England but nonetheless con
trolled by the English monarch (in his separate capacities
as King of Scotland and Elector of Hanover). See Cowle, 2
Burr., at 856, 97 Eng. Rep., at 600. Lord Mansfield can be
cited for the proposition that, at the time of the founding,
English courts lacked the “power” to issue the writ to
Scotland and Hanover, territories Lord Mansfield referred
to as “foreign.” Ibid. But what matters for our purposes is
why common-law courts lacked this power. Given the
English Crown’s delicate and complicated relationships
with Scotland and Hanover in the 1700’s, we cannot disre
gard the possibility that the common-law courts’ refusal to
issue the writ to these places was motivated not by formal
legal constructs but by what we would think of as pruden
tial concerns. This appears to have been the case with
regard to other British territories where the writ did not
run. See 2 R. Chambers, A Course of Lectures on English
Law 1767–1773, p. 8 (T. Curley ed. 1986) (quoting the
view of Lord Mansfield in Cowle that “[n]otwithstanding
the power which the judges have, yet where they cannot
judge of the cause, or give relief upon it, they would not
think proper to interpose; and therefore in the case of
imprisonments in Guernsey, Jersey, Minorca, or the plan-
tations, the most usual way is to complain to the king in
Council” (internal quotation marks omitted)). And after
the Act of Union in 1707, through which the kingdoms of
England and Scotland were merged politically, Queen
Anne and her successors, in their new capacity as sover
eign of Great Britain, ruled the entire island as one king
dom. Accordingly, by the time Lord Mansfield penned his
opinion in Cowle in 1759, Scotland was no longer a “for
eign” country vis-à-vis England—at least not in the sense
20 BOUMEDIENE v. BUSH
Opinion of the Court
in which Cuba is a foreign country vis-à-vis the United
States.
Scotland remained “foreign” in Lord Mansfield’s day in
at least one important respect, however. Even after the
Act of Union, Scotland (like Hanover) continued to main
tain its own laws and court system. See 1 Blackstone *98,
*109. Under these circumstances prudential considera
tions would have weighed heavily when courts sitting in
England received habeas petitions from Scotland or the
Electorate. Common-law decisions withholding the writ
from prisoners detained in these places easily could be
explained as efforts to avoid either or both of two embar
rassments: conflict with the judgments of another court of
competent jurisdiction; or the practical inability, by reason
of distance, of the English courts to enforce their judg
ments outside their territorial jurisdiction. Cf. Munaf v.
Geren, ante, at 15 (opinion of the Court) (recognizing that
“‘prudential concerns’ . . . such as comity and the orderly
administration of criminal justice” affect the appropriate
exercise of habeas jurisdiction).
By the mid-19th century, British courts could issue the
writ to Canada, notwithstanding the fact that Canadian
courts also had the power to do so. See 9 Holdsworth 124
(citing Ex parte Anderson, 3 El. and El. 487 (1861)). This
might be seen as evidence that the existence of a separate
court system was no barrier to the running of the common-
law writ. The Canada of the 1800’s, however, was in
many respects more analogous to the exempt jurisdictions
or to Ireland, where the writ ran, than to Scotland or
Hanover in the 1700’s, where it did not. Unlike Scotland
and Hanover, Canada followed English law. See B.
Laskin, The British Tradition in Canadian Law 50–51
(1969).
In the end a categorical or formal conception of sover
eignty does not provide a comprehensive or altogether
satisfactory explanation for the general understanding
21 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
that prevailed when Lord Mansfield considered issuance of
the writ outside England. In 1759 the writ did not run to
Scotland but did run to Ireland, even though, at that
point, Scotland and England had merged under the rule of
a single sovereign, whereas the Crowns of Great Britain
and Ireland remained separate (at least in theory). See
Cowle, supra, at 856–857, 97 Eng. Rep., 600; 1 Blackstone
*100–101. But there was at least one major difference
between Scotland’s and Ireland’s relationship with Eng
land during this period that might explain why the writ
ran to Ireland but not to Scotland. English law did not
generally apply in Scotland (even after the Act of Union)
but it did apply in Ireland. Blackstone put it as follows:
“[A]s Scotland and England are now one and the same
kingdom, and yet differ in their municipal laws; so Eng
land and Ireland are, on the other hand, distinct king
doms, and yet in general agree in their laws.” Id., at *100.
This distinction, and not formal notions of sovereignty,
may well explain why the writ did not run to Scotland
(and Hanover) but would run to Ireland.
The prudential barriers that may have prevented the
English courts from issuing the writ to Scotland and
Hanover are not relevant here. We have no reason to
believe an order from a federal court would be disobeyed
at Guantanamo. No Cuban court has jurisdiction to hear
these petitioners’ claims, and no law other than the laws
of the United States applies at the naval station. The
modern-day relations between the United States and
Guantanamo thus differ in important respects from the
18th-century relations between England and the kingdoms
of Scotland and Hanover. This is reason enough for us to
discount the relevance of the Government’s analogy.
Each side in the present matter argues that the very
lack of a precedent on point supports its position. The
Government points out there is no evidence that a court
sitting in England granted habeas relief to an enemy alien
22 BOUMEDIENE v. BUSH
Opinion of the Court
detained abroad; petitioners respond there is no evidence
that a court refused to do so for lack of jurisdiction.
Both arguments are premised, however, upon the as
sumption that the historical record is complete and that
the common law, if properly understood, yields a definite
answer to the questions before us. There are reasons to
doubt both assumptions. Recent scholarship points to the
inherent shortcomings in the historical record. See Halli
day & White 14–15 (noting that most reports of 18th
century habeas proceedings were not printed). And given
the unique status of Guantanamo Bay and the particular
dangers of terrorism in the modern age, the common-law
courts simply may not have confronted cases with close
parallels to this one. We decline, therefore, to infer too
much, one way or the other, from the lack of historical
evidence on point. Cf. Brown v. Board of Education, 347
U. S. 483, 489 (1954) (noting evidence concerning the
circumstances surrounding the adoption of the Fourteenth
Amendment, discussed in the parties’ briefs and uncov
ered through the Court’s own investigation, “convince us
that, although these sources cast some light, it is not
enough to resolve the problem with which we are faced.
At best, they are inconclusive”); Reid v. Covert, 354 U. S.
1, 64 (1957) (Frankfurter, J., concurring in result) (argu
ing constitutional adjudication should not be based upon
evidence that is “too episodic, too meager, to form a solid
basis in history, preceding and contemporaneous with the
framing of the Constitution”).
IV
Drawing from its position that at common law the writ
ran only to territories over which the Crown was sover
eign, the Government says the Suspension Clause affords
petitioners no rights because the United States does not
claim sovereignty over the place of detention.
Guantanamo Bay is not formally part of the United
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Opinion of the Court
States. See DTA §1005(g), 119 Stat. 2743. And under the
terms of the lease between the United States and Cuba,
Cuba retains “ultimate sovereignty” over the territory
while the United States exercises “complete jurisdiction
and control.” See Lease of Lands for Coaling and Naval
Stations, Feb. 23, 1903, U. S.-Cuba, Art. III, T. S. No. 418
(hereinafter 1903 Lease Agreement); Rasul, 542 U. S., at
471. Under the terms of the 1934 Treaty, however, Cuba
effectively has no rights as a sovereign until the parties
agree to modification of the 1903 Lease Agreement or the
United States abandons the base. See Treaty Defining
Relations with Cuba, May 29, 1934, U. S.-Cuba, Art. III,
48 Stat. 1683, T. S. No. 866.
The United States contends, nevertheless, that Guan
tanamo is not within its sovereign control. This was the
Government’s position well before the events of September
11, 2001. See, e.g., Brief for Petitioners in Sale v. Haitian
Centers Council, Inc., O. T. 1992, No. 92–344, p. 31 (argu
ing that Guantanamo is territory “outside the United
States”). And in other contexts the Court has held that
questions of sovereignty are for the political branches to
decide. See Vermilya-Brown Co. v. Connell, 335 U. S. 377,
380 (1948) (“[D]etermination of sovereignty over an area is
for the legislative and executive departments”); see also
Jones v. United States, 137 U. S. 202 (1890); Williams v.
Suffolk Ins. Co., 13 Pet. 415, 420 (1839). Even if this were
a treaty interpretation case that did not involve a political
question, the President’s construction of the lease agree
ment would be entitled to great respect. See Sumitomo
Shoji America, Inc. v. Avagliano, 457 U. S. 176, 184–185
(1982).
We therefore do not question the Government’s position
that Cuba, not the United States, maintains sovereignty,
in the legal and technical sense of the term, over Guan
tanamo Bay. But this does not end the analysis. Our
cases do not hold it is improper for us to inquire into the
24 BOUMEDIENE v. BUSH
Opinion of the Court
objective degree of control the Nation asserts over foreign
territory. As commentators have noted, “‘[s]overeignty’ is
a term used in many senses and is much abused.” See 1
Restatement (Third) of Foreign Relations Law of the
United States §206, Comment b, p. 94 (1986). When we
have stated that sovereignty is a political question, we
have referred not to sovereignty in the general, colloquial
sense, meaning the exercise of dominion or power, see
Webster’s New International Dictionary 2406 (2d ed.
1934) (“sovereignty,” definition 3), but sovereignty in the
narrow, legal sense of the term, meaning a claim of right,
see 1 Restatement (Third) of Foreign Relations, supra,
§206, Comment b, at 94 (noting that sovereignty “implies
a state’s lawful control over its territory generally to the
exclusion of other states, authority to govern in that terri
tory, and authority to apply law there”). Indeed, it is not
altogether uncommon for a territory to be under the de
jure sovereignty of one nation, while under the plenary
control, or practical sovereignty, of another. This condi
tion can occur when the territory is seized during war, as
Guantanamo was during the Spanish-American War. See,
e.g., Fleming v. Page, 9 How. 603, 614 (1850) (noting that
the port of Tampico, conquered by the United States dur
ing the war with Mexico, was “undoubtedly . . . subject to
the sovereignty and dominion of the United States,” but
that it “does not follow that it was a part of the United
States, or that it ceased to be a foreign country”); King v.
Earl of Crewe ex parte Sekgome, [1910] 2 K. B. 576, 603–
604 (C. A.) (opinion of Williams, L. J.) (arguing that the
Bechuanaland Protectorate in South Africa was “under
His Majesty’s dominion in the sense of power and jurisdic
tion, but is not under his dominion in the sense of territo
rial dominion”). Accordingly, for purposes of our analysis,
we accept the Government’s position that Cuba, and not
the United States, retains de jure sovereignty over Guan
tanamo Bay. As we did in Rasul, however, we take notice
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Opinion of the Court
of the obvious and uncontested fact that the United States,
by virtue of its complete jurisdiction and control over the
base, maintains de facto sovereignty over this territory.
See 542 U. S., at 480; id., at 487 (KENNEDY, J., concurring
in judgment).
Were we to hold that the present cases turn on the
political question doctrine, we would be required first to
accept the Government’s premise that de jure sovereignty
is the touchstone of habeas corpus jurisdiction. This
premise, however, is unfounded. For the reasons indi
cated above, the history of common-law habeas corpus
provides scant support for this proposition; and, for the
reasons indicated below, that position would be inconsis
tent with our precedents and contrary to fundamental
separation-of-powers principles.
A
The Court has discussed the issue of the Constitution’s
extraterritorial application on many occasions. These
decisions undermine the Government’s argument that, at
least as applied to noncitizens, the Constitution necessar
ily stops where de jure sovereignty ends.
The Framers foresaw that the United States would
expand and acquire new territories. See American Ins. Co.
v. 356 Bales of Cotton, 1 Pet. 511, 542 (1828). Article IV,
§3, cl. 1, grants Congress the power to admit new States.
Clause 2 of the same section grants Congress the “Power
to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the
United States.” Save for a few notable (and notorious)
exceptions, e.g., Dred Scott v. Sandford, 19 How. 393
(1857), throughout most of our history there was little
need to explore the outer boundaries of the Constitution’s
geographic reach. When Congress exercised its power to
create new territories, it guaranteed constitutional protec
tions to the inhabitants by statute. See, e.g., An Act: to
26 BOUMEDIENE v. BUSH
Opinion of the Court
establish a Territorial Government for Utah, 9 Stat. 458
(“[T]he Constitution and laws of the United States are
hereby extended over and declared to be in force in said
Territory of Utah”); Rev. Stat. §1891 (“The Constitution
and all laws of the United States which are not locally
inapplicable shall have the same force and effect within all
the organized Territories, and in every Territory hereafter
organized as elsewhere within the United States”); see
generally Burnett, Untied States: American Expansion
and Territorial Deannexation, 72 U. Chi. L. Rev. 797, 825–
827 (2005). In particular, there was no need to test the
limits of the Suspension Clause because, as early as 1789,
Congress extended the writ to the Territories. See Act of
Aug. 7, 1789, 1 Stat. 52 (reaffirming Art. II of Northwest
Ordinance of 1787, which provided that “[t]he inhabitants
of the said territory, shall always be entitled to the bene
fits of the writ of habeas corpus”).
Fundamental questions regarding the Constitution’s
geographic scope first arose at the dawn of the 20th cen
tury when the Nation acquired noncontiguous Territories:
Puerto Rico, Guam, and the Philippines—ceded to the
United States by Spain at the conclusion of the Spanish-
American War—and Hawaii—annexed by the United
States in 1898. At this point Congress chose to discon
tinue its previous practice of extending constitutional
rights to the territories by statute. See, e.g., An Act Tem
porarily to provide for the administration of the affairs of
civil government in the Philippine Islands, and for other
purposes, 32 Stat. 692 (noting that Rev. Stat. §1891 did
not apply to the Philippines).
In a series of opinions later known as the Insular Cases,
the Court addressed whether the Constitution, by its own
force, applies in any territory that is not a State. See De
Lima v. Bidwell, 182 U. S. 1 (1901); Dooley v. United
States, 182 U. S. 222 (1901); Armstrong v. United States,
182 U. S. 243 (1901); Downes v. Bidwell, 182 U. S. 244
27 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
(1901); Hawaii v. Mankichi, 190 U. S. 197 (1903); Dorr v.
United States, 195 U. S. 138 (1904). The Court held that
the Constitution has independent force in these territo
ries, a force not contingent upon acts of legislative grace.
Yet it took note of the difficulties inherent in that position.
Prior to their cession to the United States, the former
Spanish colonies operated under a civil-law system, with
out experience in the various aspects of the Anglo-
American legal tradition, for instance the use of grand and
petit juries. At least with regard to the Philippines, a
complete transformation of the prevailing legal culture
would have been not only disruptive but also unnecessary,
as the United States intended to grant independence to
that Territory. See An Act To declare the purpose of the
people of the United States as to the future political status
of the people of the Philippine Islands, and to provide a
more autonomous government for those islands (Jones
Act), 39 Stat. 545 (noting that “it was never the intention
of the people of the United States in the incipiency of the
War with Spain to make it a war of conquest or for territo
rial aggrandizement” and that “it is, as it has always been,
the purpose of the people of the United States to withdraw
their sovereignty over the Philippine Islands and to recog
nize their independence as soon as a stable government
can be established therein”). The Court thus was reluc
tant to risk the uncertainty and instability that could
result from a rule that displaced altogether the existing
legal systems in these newly acquired Territories. See
Downes, supra, at 282 (“It is obvious that in the annexa
tion of outlying and distant possessions grave questions
will arise from differences of race, habits, laws and cus
toms of the people, and from differences of soil, climate
and production . . . ”).
These considerations resulted in the doctrine of territo
rial incorporation, under which the Constitution applies in
full in incorporated Territories surely destined for state
28 BOUMEDIENE v. BUSH
Opinion of the Court
hood but only in part in unincorporated Territories. See
Dorr, supra, at 143 (“Until Congress shall see fit to incor
porate territory ceded by treaty into the United States, . . .
the territory is to be governed under the power existing in
Congress to make laws for such territories and subject to
such constitutional restrictions upon the powers of that
body as are applicable to the situation”); Downes, supra, at
293 (White, J., concurring) (“[T]he determination of what
particular provision of the Constitution is applicable,
generally speaking, in all cases, involves an inquiry into
the situation of the territory and its relations to the
United States”). As the Court later made clear, “the real
issue in the Insular Cases was not whether the Constitu
tion extended to the Philippines or Porto Rico when we
went there, but which of its provisions were applicable by
way of limitation upon the exercise of executive and legis
lative power in dealing with new conditions and require
ments.” Balzac v. Porto Rico, 258 U. S. 298, 312 (1922). It
may well be that over time the ties between the United
States and any of its unincorporated Territories
strengthen in ways that are of constitutional significance.
Cf. Torres v. Puerto Rico, 442 U. S. 465, 475–476 (1979)
(Brennan, J., concurring in judgment) (“Whatever the
validity of the [Insular Cases] in the particular historical
context in which they were decided, those cases are clearly
not authority for questioning the application of the Fourth
Amendment—or any other provision of the Bill of Rights—
to the Commonwealth of Puerto Rico in the 1970’s”). But,
as early as Balzac in 1922, the Court took for granted that
even in unincorporated Territories the Government of the
United States was bound to provide to noncitizen inhabi
tants “guaranties of certain fundamental personal rights
declared in the Constitution.” 258 U. S., at 312; see also
Late Corp. of Church of Jesus Christ of Latter-day Saints
v. United States, 136 U. S. 1, 44 (1890) (“Doubtless Con
gress, in legislating for the Territories would be subject to
29 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
those fundamental limitations in favor of personal rights
which are formulated in the Constitution and its amend
ments”). Yet noting the inherent practical difficulties of
enforcing all constitutional provisions “always and every
where,” Balzac, supra, at 312, the Court devised in the
Insular Cases a doctrine that allowed it to use its power
sparingly and where it would be most needed. This cen
tury-old doctrine informs our analysis in the present
matter.
Practical considerations likewise influenced the Court’s
analysis a half-century later in Reid, 354 U. S. 1. The
petitioners there, spouses of American servicemen, lived
on American military bases in England and Japan. They
were charged with crimes committed in those countries
and tried before military courts, consistent with executive
agreements the United States had entered into with the
British and Japanese governments. Id., at 15–16, and nn.
29–30 (plurality opinion). Because the petitioners were
not themselves military personnel, they argued they were
entitled to trial by jury.
Justice Black, writing for the plurality, contrasted the
cases before him with the Insular Cases, which involved
territories “with wholly dissimilar traditions and institu
tions” that Congress intended to govern only “temporar
ily.” Id., at 14. Justice Frankfurter argued that the “spe
cific circumstances of each particular case” are relevant in
determining the geographic scope of the Constitution. Id.,
at 54 (opinion concurring in result). And Justice Harlan,
who had joined an opinion reaching the opposite result in
the case in the previous Term, Reid v. Covert, 351 U. S.
487 (1956), was most explicit in rejecting a “rigid and
abstract rule” for determining where constitutional guar
antees extend. Reid, 354 U. S., at 74 (opinion concurring
in result). He read the Insular Cases to teach that
whether a constitutional provision has extraterritorial
effect depends upon the “particular circumstances, the
30 BOUMEDIENE v. BUSH
Opinion of the Court
practical necessities, and the possible alternatives which
Congress had before it” and, in particular, whether judi
cial enforcement of the provision would be “impracticable
and anomalous.” Id., at 74–75; see also United States v.
Verdugo-Urquidez, 494 U. S. 259, 277–278 (1990)
(KENNEDY, J., concurring) (applying the “impracticable
and anomalous” extraterritoriality test in the Fourth
Amendment context).
That the petitioners in Reid were American citizens was
a key factor in the case and was central to the plurality’s
conclusion that the Fifth and Sixth Amendments apply to
American civilians tried outside the United States. But
practical considerations, related not to the petitioners’
citizenship but to the place of their confinement and trial,
were relevant to each Member of the Reid majority. And
to Justices Harlan and Frankfurter (whose votes were
necessary to the Court’s disposition) these considerations
were the decisive factors in the case.
Indeed the majority splintered on this very point. The
key disagreement between the plurality and the concur
ring Justices in Reid was over the continued precedential
value of the Court’s previous opinion in In re Ross, 140
U. S. 453 (1891), which the Reid Court understood as
holding that under some circumstances Americans abroad
have no right to indictment and trial by jury. The peti
tioner in Ross was a sailor serving on an American mer
chant vessel in Japanese waters who was tried before an
American consular tribunal for the murder of a fellow
crewman. 140 U. S., at 459, 479. The Ross Court held
that the petitioner, who was a British subject, had no
rights under the Fifth and Sixth Amendments. Id., at 464.
The petitioner’s citizenship played no role in the disposi
tion of the case, however. The Court assumed (consistent
with the maritime custom of the time) that Ross had all
the rights of a similarly situated American citizen. Id., at
479 (noting that Ross was “under the protection and sub
31 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
ject to the laws of the United States equally with the
seaman who was native born”). The Justices in Reid
therefore properly understood Ross as standing for the
proposition that, at least in some circumstances, the jury
provisions of the Fifth and Sixth Amendments have no
application to American citizens tried by American au
thorities abroad. See 354 U. S., at 11–12 (plurality opin
ion) (describing Ross as holding that “constitutional pro
tections applied ‘only to citizens and others within the
United States . . . and not to residents or temporary so
journers abroad’” (quoting Ross, supra, at 464)); 354 U. S.,
at 64 (Frankfurter, J., concurring in result) (noting that
the consular tribunals upheld in Ross “w[ere] based on
long-established custom and they were justified as the
best possible means for securing justice for the few Ameri
cans present in [foreign] countries”); 354 U. S., at 75
(Harlan, J., concurring in result) (“what Ross and the
Insular Cases hold is that the particular local setting, the
practical necessities, and the possible alternatives are
relevant to a question of judgment, namely, whether jury
trial should be deemed a necessary condition of the exer
cise of Congress’ power to provide for the trial of Ameri
cans overseas”).
The Reid plurality doubted that Ross was rightly de
cided, precisely because it believed the opinion was insuf
ficiently protective of the rights of American citizens. See
354 U. S., at 10–12; see also id., at 78 (Clark, J., dissent
ing) (noting that “four of my brothers would specifically
overrule and two would impair the long-recognized vitality
of an old and respected precedent in our law, the case of In
re Ross, 140 U. S. 453 (1891)”). But Justices Harlan and
Frankfurter, while willing to hold that the American
citizen petitioners in the cases before them were entitled
to the protections of Fifth and Sixth Amendments, were
unwilling to overturn Ross. 354 U. S., at 64 (Frankfurter,
J., concurring in result); id., at 75 (Harlan, J., concurring
32 BOUMEDIENE v. BUSH
Opinion of the Court
in result). Instead, the two concurring Justices distin
guished Ross from the cases before them, not on the basis
of the citizenship of the petitioners, but on practical con
siderations that made jury trial a more feasible option for
them than it was for the petitioner in Ross. If citizenship
had been the only relevant factor in the case, it would
have been necessary for the Court to overturn Ross, some
thing Justices Harlan and Frankfurter were unwilling to
do. See Verdugo-Urquidez, supra, at 277 (KENNEDY, J.,
concurring) (noting that Ross had not been overruled).
Practical considerations weighed heavily as well in
Johnson v. Eisentrager, 339 U. S. 763 (1950), where the
Court addressed whether habeas corpus jurisdiction ex
tended to enemy aliens who had been convicted of violat
ing the laws of war. The prisoners were detained at
Landsberg Prison in Germany during the Allied Powers’
postwar occupation. The Court stressed the difficulties of
ordering the Government to produce the prisoners in a
habeas corpus proceeding. It “would require allocation of
shipping space, guarding personnel, billeting and rations”
and would damage the prestige of military commanders at
a sensitive time. Id., at 779. In considering these factors
the Court sought to balance the constraints of military
occupation with constitutional necessities. Id., at 769–
779; see Rasul, 542 U. S., at 475–476 (discussing the
factors relevant to Eisentrager’s constitutional holding);
542 U. S., at 486 (KENNEDY, J., concurring in judgment)
(same).
True, the Court in Eisentrager denied access to the writ,
and it noted the prisoners “at no relevant time were
within any territory over which the United States is sov
ereign, and [that] the scenes of their offense, their capture,
their trial and their punishment were all beyond the
territorial jurisdiction of any court of the United States.”
339 U. S., at 778. The Government seizes upon this lan
guage as proof positive that the Eisentrager Court adopted
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a formalistic, sovereignty-based test for determining the
reach of the Suspension Clause. See Brief for Respon
dents 18–20. We reject this reading for three reasons.
First, we do not accept the idea that the above-quoted
passage from Eisentrager is the only authoritative lan
guage in the opinion and that all the rest is dicta. The
Court’s further determinations, based on practical consid
erations, were integral to Part II of its opinion and came
before the decision announced its holding. See 339 U. S.,
at 781.
Second, because the United States lacked both de jure
sovereignty and plenary control over Landsberg Prison,
see infra, at 34–35, it is far from clear that the Eisentrager
Court used the term sovereignty only in the narrow tech
nical sense and not to connote the degree of control the
military asserted over the facility. See supra, at 21. The
Justices who decided Eisentrager would have understood
sovereignty as a multifaceted concept. See Black’s Law
Dictionary 1568 (4th ed. 1951) (defining “sovereignty” as
“[t]he supreme, absolute, and uncontrollable power by
which any independent state is governed”; “the interna
tional independence of a state, combined with the right
and power of regulating its internal affairs without foreign
dictation”; and “[t]he power to do everything in a state
without accountability”); Ballentine’s Law Dictionary with
Pronunciations 1216 (2d ed. 1948) (defining “sovereignty”
as “[t]hat public authority which commands in civil soci
ety, and orders and directs what each citizen is to perform
to obtain the end of its institution”). In its principal brief
in Eisentrager, the Government advocated a bright-line
test for determining the scope of the writ, similar to the
one it advocates in these cases. See Brief for Petitioners in
Johnson v. Eisentrager, O. T. 1949, No. 306, pp. 74–75.
Yet the Court mentioned the concept of territorial sover
eignty only twice in its opinion. See Eisentrager, supra, at
778, 780. That the Court devoted a significant portion of
34 BOUMEDIENE v. BUSH
Opinion of the Court
Part II to a discussion of practical barriers to the running
of the writ suggests that the Court was not concerned
exclusively with the formal legal status of Landsberg
Prison but also with the objective degree of control the
United States asserted over it. Even if we assume the
Eisentrager Court considered the United States’ lack of
formal legal sovereignty over Landsberg Prison as the
decisive factor in that case, its holding is not inconsistent
with a functional approach to questions of extraterritorial
ity. The formal legal status of a given territory affects, at
least to some extent, the political branches’ control over
that territory. De jure sovereignty is a factor that bears
upon which constitutional guarantees apply there.
Third, if the Government’s reading of Eisentrager were
correct, the opinion would have marked not only a change
in, but a complete repudiation of, the Insular Cases’ (and
later Reid’s) functional approach to questions of extrater
ritoriality. We cannot accept the Government’s view.
Nothing in Eisentrager says that de jure sovereignty is or
has ever been the only relevant consideration in determin
ing the geographic reach of the Constitution or of habeas
corpus. Were that the case, there would be considerable
tension between Eisentrager, on the one hand, and the
Insular Cases and Reid, on the other. Our cases need not
be read to conflict in this manner. A constricted reading of
Eisentrager overlooks what we see as a common thread
uniting the Insular Cases, Eisentrager, and Reid: the idea
that questions of extraterritoriality turn on objective
factors and practical concerns, not formalism.
B
The Government’s formal sovereignty-based test raises
troubling separation-of-powers concerns as well. The
political history of Guantanamo illustrates the deficiencies
of this approach. The United States has maintained
complete and uninterrupted control of the bay for over 100
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Opinion of the Court
years. At the close of the Spanish-American War, Spain
ceded control over the entire island of Cuba to the United
States and specifically “relinquishe[d] all claim[s] of sover
eignty . . . and title.” See Treaty of Paris, Dec. 10, 1898,
U. S.-Spain, Art. I, 30 Stat. 1755, T. S. No. 343. From the
date the treaty with Spain was signed until the Cuban
Republic was established on May 20, 1902, the United
States governed the territory “in trust” for the benefit of
the Cuban people. Neely v. Henkel, 180 U. S. 109, 120
(1901); H. Thomas, Cuba or The Pursuit of Freedom 436,
460 (1998). And although it recognized, by entering into
the 1903 Lease Agreement, that Cuba retained “ultimate
sovereignty” over Guantanamo, the United States contin
ued to maintain the same plenary control it had enjoyed
since 1898. Yet the Government’s view is that the Consti
tution had no effect there, at least as to noncitizens, be
cause the United States disclaimed sovereignty in the
formal sense of the term. The necessary implication of the
argument is that by surrendering formal sovereignty over
any unincorporated territory to a third party, while at the
same time entering into a lease that grants total control
over the territory back to the United States, it would be
possible for the political branches to govern without legal
constraint.
Our basic charter cannot be contracted away like this.
The Constitution grants Congress and the President the
power to acquire, dispose of, and govern territory, not the
power to decide when and where its terms apply. Even
when the United States acts outside its borders, its powers
are not “absolute and unlimited” but are subject “to such
restrictions as are expressed in the Constitution.” Murphy
v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from ques
tions involving formal sovereignty and territorial govern
ance is one thing. To hold the political branches have the
power to switch the Constitution on or off at will is quite
another. The former position reflects this Court’s recogni
36 BOUMEDIENE v. BUSH
Opinion of the Court
tion that certain matters requiring political judgments are
best left to the political branches. The latter would permit
a striking anomaly in our tripartite system of government,
leading to a regime in which Congress and the President,
not this Court, say “what the law is.” Marbury v. Madi-
son, 1 Cranch 137, 177 (1803).
These concerns have particular bearing upon the Sus
pension Clause question in the cases now before us, for the
writ of habeas corpus is itself an indispensable mechanism
for monitoring the separation of powers. The test for
determining the scope of this provision must not be subject
to manipulation by those whose power it is designed to
restrain.
C
As we recognized in Rasul, 542 U. S., at 476; id., at 487
(KENNEDY, J., concurring in judgment), the outlines of a
framework for determining the reach of the Suspension
Clause are suggested by the factors the Court relied upon
in Eisentrager. In addition to the practical concerns dis
cussed above, the Eisentrager Court found relevant that
each petitioner:
“(a) is an enemy alien; (b) has never been or resided in
the United States; (c) was captured outside of our ter
ritory and there held in military custody as a prisoner
of war; (d) was tried and convicted by a Military
Commission sitting outside the United States; (e) for
offenses against laws of war committed outside the
United States; (f) and is at all times imprisoned out
side the United States.” 339 U. S., at 777.
Based on this language from Eisentrager, and the reason
ing in our other extraterritoriality opinions, we conclude
that at least three factors are relevant in determining the
reach of the Suspension Clause: (1) the citizenship and
status of the detainee and the adequacy of the process
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through which that status determination was made; (2)
the nature of the sites where apprehension and then
detention took place; and (3) the practical obstacles inher
ent in resolving the prisoner’s entitlement to the writ.
Applying this framework, we note at the onset that the
status of these detainees is a matter of dispute. The peti
tioners, like those in Eisentrager, are not American citi
zens. But the petitioners in Eisentrager did not contest, it
seems, the Court’s assertion that they were “enemy
alien[s].” Ibid. In the instant cases, by contrast, the
detainees deny they are enemy combatants. They have
been afforded some process in CSRT proceedings to de
termine their status; but, unlike in Eisentrager, supra, at
766, there has been no trial by military commission for
violations of the laws of war. The difference is not trivial.
The records from the Eisentrager trials suggest that, well
before the petitioners brought their case to this Court,
there had been a rigorous adversarial process to test the
legality of their detention. The Eisentrager petitioners
were charged by a bill of particulars that made detailed
factual allegations against them. See 14 United Nations
War Crimes Commission, Law Reports of Trials of War
Criminals 8–10 (1949) (reprint 1997). To rebut the accu
sations, they were entitled to representation by counsel,
allowed to introduce evidence on their own behalf, and
permitted to cross-examine the prosecution’s witnesses.
See Memorandum by Command of Lt. Gen. Wedemeyer,
Jan. 21, 1946 (establishing “Regulations Governing the
Trial of War Criminals” in the China Theater), in Tr. of
Record in Johnson v. Eisentrager, O. T. 1949, No. 306, pp.
34–40.
In comparison the procedural protections afforded to the
detainees in the CSRT hearings are far more limited, and,
we conclude, fall well short of the procedures and adver
sarial mechanisms that would eliminate the need for
habeas corpus review. Although the detainee is assigned a
38 BOUMEDIENE v. BUSH
Opinion of the Court
“Personal Representative” to assist him during CSRT
proceedings, the Secretary of the Navy’s memorandum
makes clear that person is not the detainee’s lawyer or
even his “advocate.” See App. to Pet. for Cert. in No. 06–
1196, at 155, 172. The Government’s evidence is accorded
a presumption of validity. Id., at 159. The detainee is
allowed to present “reasonably available” evidence, id., at
155, but his ability to rebut the Government’s evidence
against him is limited by the circumstances of his con
finement and his lack of counsel at this stage. And al
though the detainee can seek review of his status deter
mination in the Court of Appeals, that review process
cannot cure all defects in the earlier proceedings. See Part
V, infra.
As to the second factor relevant to this analysis, the
detainees here are similarly situated to the Eisentrager
petitioners in that the sites of their apprehension and
detention are technically outside the sovereign territory of
the United States. As noted earlier, this is a factor that
weighs against finding they have rights under the Sus
pension Clause. But there are critical differences between
Landsberg Prison, circa 1950, and the United States Na
val Station at Guantanamo Bay in 2008. Unlike its pre
sent control over the naval station, the United States’
control over the prison in Germany was neither absolute
nor indefinite. Like all parts of occupied Germany, the
prison was under the jurisdiction of the combined Allied
Forces. See Declaration Regarding the Defeat of Germany
and the Assumption of Supreme Authority with Respect to
Germany, June 5, 1945, U. S.-U. S. S. R.-U. K.-Fr., 60
Stat. 1649, T. I. A. S. No. 1520. The United States was
therefore answerable to its Allies for all activities occur
ring there. Cf. Hirota v. MacArthur, 338 U. S. 197, 198
(1948) (per curiam) (military tribunal set up by Gen.
Douglas MacArthur, acting as “the agent of the Allied
Powers,” was not a “tribunal of the United States”). The
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Opinion of the Court
Allies had not planned a long-term occupation of Ger
many, nor did they intend to displace all German institu
tions even during the period of occupation. See Agree
ments Respecting Basic Principles for Merger of the Three
Western German Zones of Occupation, and Other Matters,
Apr. 8, 1949, U. S.-U. K.-Fr., Art. 1, 63 Stat. 2819,
T. I. A. S. No. 2066 (establishing a governing framework
“[d]uring the period in which it is necessary that the occu
pation continue” and expressing the desire “that the Ger
man people shall enjoy self-government to the maximum
possible degree consistent with such occupation”). The
Court’s holding in Eisentrager was thus consistent with
the Insular Cases, where it had held there was no need to
extend full constitutional protections to territories the
United States did not intend to govern indefinitely. Guan
tanamo Bay, on the other hand, is no transient possession.
In every practical sense Guantanamo is not abroad; it is
within the constant jurisdiction of the United States. See
Rasul, 542 U. S., at 480; id., at 487 (KENNEDY, J., concur
ring in judgment).
As to the third factor, we recognize, as the Court did in
Eisentrager, that there are costs to holding the Suspension
Clause applicable in a case of military detention abroad.
Habeas corpus proceedings may require expenditure of
funds by the Government and may divert the attention of
military personnel from other pressing tasks. While we
are sensitive to these concerns, we do not find them dispo
sitive. Compliance with any judicial process requires
some incremental expenditure of resources. Yet civilian
courts and the Armed Forces have functioned along side
each other at various points in our history. See, e.g.,
Duncan v. Kahanamoku, 327 U. S. 304 (1946); Ex parte
Milligan, 4 Wall. 2 (1866). The Government presents no
credible arguments that the military mission at Guan
tanamo would be compromised if habeas corpus courts had
jurisdiction to hear the detainees’ claims. And in light of
40 BOUMEDIENE v. BUSH
Opinion of the Court
the plenary control the United States asserts over the
base, none are apparent to us.
The situation in Eisentrager was far different, given the
historical context and nature of the military’s mission in
post-War Germany. When hostilities in the European
Theater came to an end, the United States became respon
sible for an occupation zone encompassing over 57,000
square miles with a population of 18 million. See Letter
from President Truman to Secretary of State Byrnes,
(Nov. 28, 1945), in 8 Documents on American Foreign
Relations 257 (R. Dennett & R. Turner eds. 1948); Pollock,
A Territorial Pattern for the Military Occupation of Ger
many, 38 Am. Pol. Sci. Rev. 970, 975 (1944). In addition to
supervising massive reconstruction and aid efforts the
American forces stationed in Germany faced potential
security threats from a defeated enemy. In retrospect the
post-War occupation may seem uneventful. But at the
time Eisentrager was decided, the Court was right to be
concerned about judicial interference with the military’s
efforts to contain “enemy elements, guerrilla fighters, and
‘were-wolves.’” 339 U. S., at 784.
Similar threats are not apparent here; nor does the
Government argue that they are. The United States
Naval Station at Guantanamo Bay consists of 45 square
miles of land and water. The base has been used, at vari
ous points, to house migrants and refugees temporarily.
At present, however, other than the detainees themselves,
the only long-term residents are American military per
sonnel, their families, and a small number of workers. See
History of Guantanamo Bay online at https://www.cnic.
navy.mil/Guantanamo/AboutGTMO/gtmohistorygeneral/
gtmohistgeneral. The detainees have been deemed ene
mies of the United States. At present, dangerous as they
may be if released, they are contained in a secure prison
facility located on an isolated and heavily fortified military
base.
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There is no indication, furthermore, that adjudicating a
habeas corpus petition would cause friction with the host
government. No Cuban court has jurisdiction over Ameri
can military personnel at Guantanamo or the enemy
combatants detained there. While obligated to abide by
the terms of the lease, the United States is, for all practi
cal purposes, answerable to no other sovereign for its acts
on the base. Were that not the case, or if the detention
facility were located in an active theater of war, argu
ments that issuing the writ would be “impracticable or
anomalous” would have more weight. See Reid, 354 U. S.,
at 74 (Harlan, J., concurring in result). Under the facts
presented here, however, there are few practical barriers
to the running of the writ. To the extent barriers arise,
habeas corpus procedures likely can be modified to ad
dress them. See Part VI–B, infra.
It is true that before today the Court has never held
that noncitizens detained by our Government in territory
over which another country maintains de jure sovereignty
have any rights under our Constitution. But the cases
before us lack any precise historical parallel. They involve
individuals detained by executive order for the duration of
a conflict that, if measured from September 11, 2001, to
the present, is already among the longest wars in Ameri
can history. See Oxford Companion to American Military
History 849 (1999). The detainees, moreover, are held in a
territory that, while technically not part of the United
States, is under the complete and total control of our
Government. Under these circumstances the lack of a
precedent on point is no barrier to our holding.
We hold that Art. I, §9, cl. 2, of the Constitution has full
effect at Guantanamo Bay. If the privilege of habeas
corpus is to be denied to the detainees now before us,
Congress must act in accordance with the requirements of
the Suspension Clause. Cf. Hamdi, 542 U. S., at 564
(SCALIA, J., dissenting) (“[I]ndefinite imprisonment on
42 BOUMEDIENE v. BUSH
Opinion of the Court
reasonable suspicion is not an available option of treat
ment for those accused of aiding the enemy, absent a
suspension of the writ”). This Court may not impose a de
facto suspension by abstaining from these controversies.
See Hamdan, 548 U. S., at 585, n. 16 (“[A]bstention is not
appropriate in cases . . . in which the legal challenge
‘turn[s] on the status of the persons as to whom the mili
tary asserted its power’” (quoting Schlesinger v. Council-
man, 420 U. S. 738, 759 (1975))). The MCA does not
purport to be a formal suspension of the writ; and the
Government, in its submissions to us, has not argued that
it is. Petitioners, therefore, are entitled to the privilege of
habeas corpus to challenge the legality of their detention.
V
In light of this holding the question becomes whether
the statute stripping jurisdiction to issue the writ avoids
the Suspension Clause mandate because Congress has
provided adequate substitute procedures for habeas cor
pus. The Government submits there has been compliance
with the Suspension Clause because the DTA review
process in the Court of Appeals, see DTA §1005(e), pro
vides an adequate substitute. Congress has granted that
court jurisdiction to consider
“(i) whether the status determination of the [CSRT]
. . . was consistent with the standards and procedures
specified by the Secretary of Defense . . . and (ii) to the
extent the Constitution and laws of the United States
are applicable, whether the use of such standards and
procedures to make the determination is consistent
with the Constitution and laws of the United States.”
§1005(e)(2)(C), 119 Stat. 2742.
The Court of Appeals, having decided that the writ does
not run to the detainees in any event, found it unneces
sary to consider whether an adequate substitute has been
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provided. In the ordinary course we would remand to the
Court of Appeals to consider this question in the first
instance. See Youakim v. Miller, 425 U. S. 231, 234 (1976)
(per curiam). It is well settled, however, that the Court’s
practice of declining to address issues left unresolved in
earlier proceedings is not an inflexible rule. Ibid. Depar
ture from the rule is appropriate in “exceptional” circum
stances. See Cooper Industries, Inc. v. Aviall Services,
Inc., 543 U. S. 157, 169 (2004); Duignan v. United States,
274 U. S. 195, 200 (1927).
The gravity of the separation-of-powers issues raised by
these cases and the fact that these detainees have been
denied meaningful access to a judicial forum for a period of
years render these cases exceptional. The parties before
us have addressed the adequacy issue. While we would
have found it informative to consider the reasoning of the
Court of Appeals on this point, we must weigh that
against the harms petitioners may endure from additional
delay. And, given there are few precedents addressing
what features an adequate substitute for habeas corpus
must contain, in all likelihood a remand simply would
delay ultimate resolution of the issue by this Court.
We do have the benefit of the Court of Appeals’ con
struction of key provisions of the DTA. When we granted
certiorari in these cases, we noted “it would be of material
assistance to consult any decision” in the parallel DTA
review proceedings pending in the Court of Appeals, spe
cifically any rulings in the matter of Bismullah v. Gates.
551 U. S. ___ (2007). Although the Court of Appeals has
yet to complete a DTA review proceeding, the three-judge
panel in Bismullah has issued an interim order giving
guidance as to what evidence can be made part of the
record on review and what access the detainees can have
to counsel and to classified information. See 501 F. 3d 178
(CADC) (Bismullah I), reh’g denied, 503 F. 3d 137 (CADC
2007) (Bismullah II). In that matter the full court denied
44 BOUMEDIENE v. BUSH
Opinion of the Court
the Government’s motion for rehearing en banc, see Bis-
mullah v. Gates, 514 F. 3d 1291 (CADC 2008) (Bismullah
III). The order denying rehearing was accompanied by
five separate statements from members of the court, which
offer differing views as to scope of the judicial review
Congress intended these detainees to have. Ibid.
Under the circumstances we believe the costs of further
delay substantially outweigh any benefits of remanding to
the Court of Appeals to consider the issue it did not ad
dress in these cases.
A
Our case law does not contain extensive discussion of
standards defining suspension of the writ or of circum
stances under which suspension has occurred. This sim
ply confirms the care Congress has taken throughout our
Nation’s history to preserve the writ and its function.
Indeed, most of the major legislative enactments pertain
ing to habeas corpus have acted not to contract the writ’s
protection but to expand it or to hasten resolution of pris
oners’ claims. See, e.g., Habeas Corpus Act of 1867, ch. 28,
§1, 14 Stat. 385 (current version codified at 28 U. S. C.
§2241 (2000 ed. and Supp. V) (extending the federal writ
to state prisoners)); Cf. Harris v. Nelson, 394 U. S. 286,
299–300 (1969) (interpreting the All Writs Act, 28 U. S. C.
§1651, to allow discovery in habeas corpus proceedings);
Peyton v. Rowe, 391 U. S. 54, 64–65 (1968) (interpreting
the then-existing version of §2241 to allow petitioner to
proceed with his habeas corpus action, even though he had
not yet begun to serve his sentence).
There are exceptions, of course. Title I of the Antiterror
ism and Effective Death Penalty Act of 1996 (AEDPA),
§106, 110 Stat. 1220, contains certain gatekeeping provi
sions that restrict a prisoner’s ability to bring new and
repetitive claims in “second or successive” habeas corpus
actions. We upheld these provisions against a Suspension
45 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
Clause challenge in Felker v. Turpin, 518 U. S. 651, 662–
664 (1996). The provisions at issue in Felker, however, did
not constitute a substantial departure from common-law
habeas procedures. The provisions, for the most part,
codified the longstanding abuse-of-the-writ doctrine. Id.,
at 664; see also McCleskey v. Zant, 499 U. S. 467, 489
(1991). AEDPA applies, moreover, to federal, postconvic
tion review after criminal proceedings in state court have
taken place. As of this point, cases discussing the imple
mentation of that statute give little helpful instruction
(save perhaps by contrast) for the instant cases, where no
trial has been held.
The two leading cases addressing habeas substitutes,
Swain v. Pressley, 430 U. S. 372 (1977), and United States
v. Hayman, 342 U. S. 205 (1952), likewise provide little
guidance here. The statutes at issue were attempts to
streamline habeas corpus relief, not to cut it back.
The statute discussed in Hayman was 28 U. S. C. §2255.
It replaced traditional habeas corpus for federal prisoners
(at least in the first instance) with a process that allowed
the prisoner to file a motion with the sentencing court on
the ground that his sentence was, inter alia, “‘imposed in
violation of the Constitution or laws of the United States.’”
342 U. S., at 207, n. 1. The purpose and effect of the stat
ute was not to restrict access to the writ but to make
postconviction proceedings more efficient. It directed
claims not to the court that had territorial jurisdiction
over the place of the petitioner’s confinement but to the
sentencing court, a court already familiar with the facts of
the case. As the Hayman Court explained
“Section 2255 . . . was passed at the instance of the
Judicial Conference to meet practical difficulties that
had arisen in administering the habeas corpus juris
diction of the federal courts. Nowhere in the history
of Section 2255 do we find any purpose to impinge
46 BOUMEDIENE v. BUSH
Opinion of the Court
upon prisoners’ rights of collateral attack upon their
convictions. On the contrary, the sole purpose was to
minimize the difficulties encountered in habeas cor
pus hearings by affording the same rights in another
and more convenient forum.” Id., at 219.
See also Hill v. United States, 368 U. S. 424, 427, 428, and
n. 5 (1962) (noting that §2255 provides a remedy in the
sentencing court that is “exactly commensurate” with the
pre-existing federal habeas corpus remedy).
The statute in Swain, D. C. Code Ann. §23–110(g)
(1973), applied to prisoners in custody under sentence of
the Superior Court of the District of Columbia. Before
enactment of the District of Columbia Court Reform and
Criminal Procedure Act of 1970 (D. C. Court Reform Act),
84 Stat. 473, those prisoners could file habeas petitions in
the United States District Court for the District of Colum
bia. The Act, which was patterned on §2255, substituted a
new collateral process in the Superior Court for the pre
existing habeas corpus procedure in the District Court.
See Swain, 430 U. S., at 374–378. But, again, the purpose
and effect of the statute was to expedite consideration of
the prisoner’s claims, not to delay or frustrate it. See id.,
at 375, n. 4 (noting that the purpose of the D. C. Court
Reform Act was to “alleviate” administrative burdens on
the District Court).
That the statutes in Hayman and Swain were designed
to strengthen, rather than dilute, the writ’s protections
was evident, furthermore, from this significant fact: Nei
ther statute eliminated traditional habeas corpus relief.
In both cases the statute at issue had a saving clause,
providing that a writ of habeas corpus would be available
if the alternative process proved inadequate or ineffective.
Swain, supra, at 381; Hayman, supra, at 223. The Court
placed explicit reliance upon these provisions in upholding
the statutes against constitutional challenges. See Swain,
47 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
supra, at 381 (noting that the provision “avoid[ed] any
serious question about the constitutionality of the stat
ute”); Hayman, supra, at 223 (noting that, because habeas
remained available as a last resort, it was unnecessary to
“reach constitutional questions”).
Unlike in Hayman and Swain, here we confront stat
utes, the DTA and the MCA, that were intended to cir
cumscribe habeas review. Congress’ purpose is evident
not only from the unequivocal nature of MCA §7’s jurisdic
tion-stripping language, 28 U. S. C. A. §2241(e)(1) (Supp.
2007) (“No court, justice, or judge shall have jurisdiction to
hear or consider an application for a writ of habeas corpus
. . .”), but also from a comparison of the DTA to the stat
utes at issue in Hayman and Swain. When interpreting a
statute, we examine related provisions in other parts of
the U. S. Code. See, e.g., West Virginia Univ. Hospitals,
Inc. v. Casey, 499 U. S. 83, 88–97 (1991); Babbitt v. Sweet
Home Chapter, Communities for Great Ore., 515 U. S. 687,
717–718 (1995) (SCALIA, J., dissenting); see generally W.
Eskridge, P. Frickey, & E. Garrett, Cases and Materials
on Legislation: Statutes and the Creation of Public Policy
1039 (3d ed. 2001). When Congress has intended to re
place traditional habeas corpus with habeas-like substi
tutes, as was the case in Hayman and Swain, it has
granted to the courts broad remedial powers to secure the
historic office of the writ. In the §2255 context, for exam
ple, Congress has granted to the reviewing court power to
“determine the issues and make findings of fact and con
clusions of law” with respect to whether “the judgment [of
conviction] was rendered without jurisdiction, or . . . the
sentence imposed was not authorized by law or otherwise
open to collateral attack.” 28 U. S. C. A. §2255(b) (Supp.
2008). The D. C. Court Reform Act, the statute upheld in
Swain, contained a similar provision. §23–110(g), 84 Stat.
609.
In contrast the DTA’s jurisdictional grant is quite lim
48 BOUMEDIENE v. BUSH
Opinion of the Court
ited. The Court of Appeals has jurisdiction not to inquire
into the legality of the detention generally but only to
assess whether the CSRT complied with the “standards
and procedures specified by the Secretary of Defense” and
whether those standards and procedures are lawful. DTA
§1005(e)(2)(C), 119 Stat. 2742. If Congress had envisioned
DTA review as coextensive with traditional habeas corpus,
it would not have drafted the statute in this manner.
Instead, it would have used language similar to what it
used in the statutes at issue in Hayman and Swain. Cf.
Russello v. United States, 464 U. S. 16, 23 (1983)
(“‘[W]here Congress includes particular language in one
section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion’” (quoting United States v. Wong Kim Bo, 472
F. 2d 720, 722 (CA5 1972))). Unlike in Hayman and
Swain, moreover, there has been no effort to preserve
habeas corpus review as an avenue of last resort. No
saving clause exists in either the MCA or the DTA. And
MCA §7 eliminates habeas review for these petitioners.
The differences between the DTA and the habeas stat
ute that would govern in MCA §7’s absence, 28 U. S. C.
§2241 (2000 ed. and Supp. V), are likewise telling. In
§2241 (2000 ed.) Congress confirmed the authority of “any
justice” or “circuit judge” to issue the writ. Cf. Felker, 518
U. S., at 660–661 (interpreting Title I of AEDPA to not
strip from this Court the power to entertain original ha
beas corpus petitions). That statute accommodates the
necessity for factfinding that will arise in some cases by
allowing the appellate judge or Justice to transfer the case
to a district court of competent jurisdiction, whose institu
tional capacity for factfinding is superior to his or her own.
See 28 U. S. C. §2241(b). By granting the Court of Ap
peals “exclusive” jurisdiction over petitioners’ cases, see
DTA §1005(e)(2)(A), 119 Stat. 2742, Congress has fore
49 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
closed that option. This choice indicates Congress in
tended the Court of Appeals to have a more limited role in
enemy combatant status determinations than a district
court has in habeas corpus proceedings. The DTA should
be interpreted to accord some latitude to the Court of
Appeals to fashion procedures necessary to make its re
view function a meaningful one, but, if congressional
intent is to be respected, the procedures adopted cannot be
as extensive or as protective of the rights of the detainees
as they would be in a §2241 proceeding. Otherwise there
would have been no, or very little, purpose for enacting the
DTA.
To the extent any doubt remains about Congress’ intent,
the legislative history confirms what the plain text
strongly suggests: In passing the DTA Congress did not
intend to create a process that differs from traditional
habeas corpus process in name only. It intended to create
a more limited procedure. See, e.g., 151 Cong. Rec. S14263
(Dec. 21, 2005) (statement of Sen. Graham) (noting that
the DTA “extinguish[es] these habeas and other actions in
order to effect a transfer of jurisdiction over these cases to
the DC Circuit Court” and agreeing that the bill “create[s]
in their place a very limited judicial review of certain
military administrative decisions”); id., at S14268 (state
ment of Sen. Kyl) (“It is important to note that the limited
judicial review authorized by paragraphs 2 and 3 of sub
section (e) [of DTA §1005] are not habeas-corpus review.
It is a limited judicial review of its own nature”).
It is against this background that we must interpret the
DTA and assess its adequacy as a substitute for habeas
corpus. The present cases thus test the limits of the Sus
pension Clause in ways that Hayman and Swain did not.
B
We do not endeavor to offer a comprehensive summary
of the requisites for an adequate substitute for habeas
50 BOUMEDIENE v. BUSH
Opinion of the Court
corpus. We do consider it uncontroversial, however, that
the privilege of habeas corpus entitles the prisoner to a
meaningful opportunity to demonstrate that he is being
held pursuant to “the erroneous application or interpreta
tion” of relevant law. St. Cyr, 533 U. S., at 302. And the
habeas court must have the power to order the conditional
release of an individual unlawfully detained—though
release need not be the exclusive remedy and is not the
appropriate one in every case in which the writ is granted.
See Ex parte Bollman, 4 Cranch 75, 136 (1807) (where
imprisonment is unlawful, the court “can only direct [the
prisoner] to be discharged”); R. Hurd, Treatise on the
Right of Personal Liberty, and On the Writ of Habeas
Corpus and the Practice Connected with It: With a View of
the Law of Extradition of Fugitives 222 (2d ed. 1876) (“It
cannot be denied where ‘a probable ground is shown that
the party is imprisoned without just cause, and therefore,
hath a right to be delivered,’ for the writ then becomes a
‘writ of right, which may not be denied but ought to be
granted to every man that is committed or detained in
prison or otherwise restrained of his liberty’”). But see
Chessman v. Teets, 354 U. S. 156, 165–166 (1957) (re
manding in a habeas case for retrial within a “reasonable
time”). These are the easily identified attributes of any
constitutionally adequate habeas corpus proceeding.
But, depending on the circumstances, more may be
required.
Indeed, common-law habeas corpus was, above all, an
adaptable remedy. Its precise application and scope
changed depending upon the circumstances. See 3 Black-
stone *131 (describing habeas as “the great and efficacious
writ, in all manner of illegal confinement”); see also
Schlup v. Delo, 513 U. S. 298, 319 (1995) (Habeas “is, at
its core, an equitable remedy”); Jones v. Cunningham, 371
U. S. 236, 243 (1963) (Habeas is not “a static, narrow,
formalistic remedy; its scope has grown to achieve its
51 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
grand purpose”). It appears the common-law habeas
court’s role was most extensive in cases of pretrial and
noncriminal detention, where there had been little or no
previous judicial review of the cause for detention. Nota
bly, the black-letter rule that prisoners could not contro
vert facts in the jailer’s return was not followed (or at least
not with consistency) in such cases. Hurd, supra, at 271
(noting that the general rule was “subject to exceptions”
including cases of bail and impressment); Oakes, Legal
History in the High Court—Habeas Corpus, 64 Mich. L.
Rev. 451, 457 (1966) (“[W]hen a prisoner applied for ha
beas corpus before indictment or trial, some courts exam
ined the written depositions on which he had been ar
rested or committed, and others even heard oral testimony
to determine whether the evidence was sufficient to justi
fying holding him for trial” (footnotes omitted)); Fallon &
Meltzer, Habeas Corpus Jurisdiction, Substantive Rights,
and the War on Terror, 120 Harv. L. Rev. 2029, 2102
(2007) (“[T]he early practice was not consistent: courts
occasionally permitted factual inquiries when no other
opportunity for judicial review existed”).
There is evidence from 19th-century American sources
indicating that, even in States that accorded strong res
judicata effect to prior adjudications, habeas courts in this
country routinely allowed prisoners to introduce exculpa
tory evidence that was either unknown or previously
unavailable to the prisoner. See, e.g., Ex parte Pattison,
56 Miss. 161, 164 (1878) (noting that “[w]hile the former
adjudication must be considered as conclusive on the
testimony then adduced” “newly developed exculpatory
evidence . . . may authorize the admission to bail”); Ex
parte Foster, 5 Tex. Ct. App. 625, 644 (1879) (construing
the State’s habeas statute to allow for the introduction of
new evidence “where important testimony has been ob
tained, which, though not newly discovered, or which,
though known to [the petitioner], it was not in his power
52 BOUMEDIENE v. BUSH
Opinion of the Court
to produce at the former hearing; [and] where the evidence
was newly discovered”); People v. Martin, 7 N. Y. Leg. Obs.
49, 56 (1848) (“If in custody on criminal process before
indictment, the prisoner has an absolute right to demand
that the original depositions be looked into to see whether
any crime is in fact imputed to him, and the inquiry will
by no means be confined to the return. Facts out of the
return may be gone into to ascertain whether the commit
ting magistrate may not have arrived at an illogical con
clusion upon the evidence given before him . . .”); see
generally W. Church, Treatise on the Writ of Habeas
Corpus §182, p. 235 1886) (hereinafter Church) (noting
that habeas courts would “hear evidence anew if justice
require it”). Justice McLean, on Circuit in 1855, expressed
his view that a habeas court should consider a prior judg
ment conclusive “where there was clearly jurisdiction and
a full and fair hearing; but that it might not be so consid
ered when any of these requisites were wanting.” Ex parte
Robinson, 20 F. Cas. 969, 971, (No. 11,935) (CC Ohio
1855). To illustrate the circumstances in which the prior
adjudication did not bind the habeas court, he gave the
example of a case in which “[s]everal unimpeached wit
nesses” provided new evidence to exculpate the prisoner.
Ibid.
The idea that the necessary scope of habeas review in
part depends upon the rigor of any earlier proceedings
accords with our test for procedural adequacy in the due
process context. See Mathews v. Eldridge, 424 U. S. 319,
335 (1976) (noting that the Due Process Clause requires
an assessment of, inter alia, “the risk of an erroneous
deprivation of [a liberty interest;] and the probable value,
if any, of additional or substitute procedural safeguards”).
This principle has an established foundation in habeas
corpus jurisprudence as well, as Chief Justice Marshall’s
opinion in Ex parte Watkins, 3 Pet. 193 (1830), demon
strates. Like the petitioner in Swain, Watkins sought a
53 Cite as: 553 U. S. ____ (2008)
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writ of habeas corpus after being imprisoned pursuant to a
judgment of a District of Columbia court. In holding that
the judgment stood on “high ground,” 3 Pet., at 209, the
Chief Justice emphasized the character of the court that
rendered the original judgment, noting it was a “court of
record, having general jurisdiction over criminal cases.”
Id., at 203. In contrast to “inferior” tribunals of limited
jurisdiction, ibid., courts of record had broad remedial
powers, which gave the habeas court greater confidence in
the judgment’s validity. See generally Neuman, Habeas
Corpus, Executive Detention, and the Removal of Aliens,
98 Colum. L. Rev. 961, 982–983 (1998).
Accordingly, where relief is sought from a sentence that
resulted from the judgment of a court of record, as was the
case in Watkins and indeed in most federal habeas cases,
considerable deference is owed to the court that ordered
confinement. See Brown v. Allen, 344 U. S. 443, 506
(1953) (opinion of Frankfurter, J.) (noting that a federal
habeas court should accept a state court’s factual findings
unless “a vital flaw be found in the process of ascertaining
such facts in the State court”). Likewise in those cases the
prisoner should exhaust adequate alternative remedies
before filing for the writ in federal court. See Ex parte
Royall, 117 U. S. 241, 251–252 (1886) (requiring exhaus
tion of state collateral processes). Both aspects of federal
habeas corpus review are justified because it can be as
sumed that, in the usual course, a court of record provides
defendants with a fair, adversary proceeding. In cases
involving state convictions this framework also respects
federalism; and in federal cases it has added justification
because the prisoner already has had a chance to seek
review of his conviction in a federal forum through a direct
appeal. The present cases fall outside these categories,
however; for here the detention is by executive order.
Where a person is detained by executive order, rather
than, say, after being tried and convicted in a court, the
54 BOUMEDIENE v. BUSH
Opinion of the Court
need for collateral review is most pressing. A criminal
conviction in the usual course occurs after a judicial hear
ing before a tribunal disinterested in the outcome and
committed to procedures designed to ensure its own inde
pendence. These dynamics are not inherent in executive
detention orders or executive review procedures. In this
context the need for habeas corpus is more urgent. The
intended duration of the detention and the reasons for it
bear upon the precise scope of the inquiry. Habeas corpus
proceedings need not resemble a criminal trial, even when
the detention is by executive order. But the writ must be
effective. The habeas court must have sufficient authority
to conduct a meaningful review of both the cause for de
tention and the Executive’s power to detain.
To determine the necessary scope of habeas corpus
review, therefore, we must assess the CSRT process, the
mechanism through which petitioners’ designation as
enemy combatants became final. Whether one character
izes the CSRT process as direct review of the Executive’s
battlefield determination that the detainee is an enemy
combatant—as the parties have and as we do—or as the
first step in the collateral review of a battlefield determi
nation makes no difference in a proper analysis of whether
the procedures Congress put in place are an adequate
substitute for habeas corpus. What matters is the sum
total of procedural protections afforded to the detainee at
all stages, direct and collateral.
Petitioners identify what they see as myriad deficiencies
in the CSRTs. The most relevant for our purposes are the
constraints upon the detainee’s ability to rebut the factual
basis for the Government’s assertion that he is an enemy
combatant. As already noted, see Part IV–C, supra, at the
CSRT stage the detainee has limited means to find or
present evidence to challenge the Government’s case
against him. He does not have the assistance of counsel
and may not be aware of the most critical allegations that
55 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
the Government relied upon to order his detention. See
App. to Pet. for Cert. in No. 06–1196, at 156, ¶F(8) (noting
that the detainee can access only the “unclassified portion
of the Government Information”). The detainee can con
front witnesses that testify during the CSRT proceedings.
Id., at 144, ¶g(8). But given that there are in effect no
limits on the admission of hearsay evidence—the only
requirement is that the tribunal deem the evidence “rele
vant and helpful,” ibid., ¶g(9)—the detainee’s opportunity
to question witnesses is likely to be more theoretical than
real.
The Government defends the CSRT process, arguing
that it was designed to conform to the procedures sug
gested by the plurality in Hamdi. See 542 U. S., at 538.
Setting aside the fact that the relevant language in Hamdi
did not garner a majority of the Court, it does not control
the matter at hand. None of the parties in Hamdi argued
there had been a suspension of the writ. Nor could they.
The §2241 habeas corpus process remained in place, id., at
525. Accordingly, the plurality concentrated on whether
the Executive had the authority to detain and, if so, what
rights the detainee had under the Due Process Clause.
True, there are places in the Hamdi plurality opinion
where it is difficult to tell where its extrapolation of §2241
ends and its analysis of the petitioner’s Due Process rights
begins. But the Court had no occasion to define the neces
sary scope of habeas review, for Suspension Clause pur
poses, in the context of enemy combatant detentions. The
closest the plurality came to doing so was in discussing
whether, in light of separation-of-powers concerns, §2241
should be construed to forbid the District Court from
inquiring beyond the affidavit Hamdi’s custodian provided
in answer to the detainee’s habeas petition. The plurality
answered this question with an emphatic “no.” Id., at 527
(labeling this argument as “extreme”); id., at 535–536.
Even if we were to assume that the CSRTs satisfy due
56 BOUMEDIENE v. BUSH
Opinion of the Court
process standards, it would not end our inquiry. Habeas
corpus is a collateral process that exists, in Justice
Holmes’ words, to “cu[t] through all forms and g[o] to the
very tissue of the structure. It comes in from the outside,
not in subordination to the proceedings, and although
every form may have been preserved opens the inquiry
whether they have been more than an empty shell.”
Frank v. Mangum, 237 U. S. 309, 346 (1915) (dissenting
opinion). Even when the procedures authorizing detention
are structurally sound, the Suspension Clause remains
applicable and the writ relevant. See 2 Chambers, Course
of Lectures on English Law 1767–1773, at 6 (“Liberty may
be violated either by arbitrary imprisonment without law
or the appearance of law, or by a lawful magistrate for an
unlawful reason”). This is so, as Hayman and Swain
make clear, even where the prisoner is detained after a
criminal trial conducted in full accordance with the protec
tions of the Bill of Rights. Were this not the case, there
would have been no reason for the Court to inquire into
the adequacy of substitute habeas procedures in Hayman
and Swain. That the prisoners were detained pursuant to
the most rigorous proceedings imaginable, a full criminal
trial, would have been enough to render any habeas sub
stitute acceptable per se.
Although we make no judgment as to whether the
CSRTs, as currently constituted, satisfy due process stan
dards, we agree with petitioners that, even when all the
parties involved in this process act with diligence and in
good faith, there is considerable risk of error in the tribu
nal’s findings of fact. This is a risk inherent in any proc
ess that, in the words of the former Chief Judge of the
Court of Appeals, is “closed and accusatorial.” See Bis-
mullah III, 514 F. 3d, at 1296 (Ginsburg, C. J., concurring
in denial of rehearing en banc). And given that the conse
quence of error may be detention of persons for the dura
tion of hostilities that may last a generation or more, this
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is a risk too significant to ignore.
For the writ of habeas corpus, or its substitute, to func
tion as an effective and proper remedy in this context, the
court that conducts the habeas proceeding must have the
means to correct errors that occurred during the CSRT
proceedings. This includes some authority to assess the
sufficiency of the Government’s evidence against the
detainee. It also must have the authority to admit and
consider relevant exculpatory evidence that was not intro
duced during the earlier proceeding. Federal habeas
petitioners long have had the means to supplement the
record on review, even in the postconviction habeas set
ting. See Townsend v. Sain, 372 U. S. 293, 313 (1963),
overruled in part by Keeney v. Tamayo-Reyes, 504 U. S. 1,
5 (1992). Here that opportunity is constitutionally
required.
Consistent with the historic function and province of the
writ, habeas corpus review may be more circumscribed if
the underlying detention proceedings are more thorough
than they were here. In two habeas cases involving enemy
aliens tried for war crimes, In re Yamashita, 327 U. S. 1
(1946), and Ex parte Quirin, 317 U. S. 1 (1942), for exam
ple, this Court limited its review to determining whether
the Executive had legal authority to try the petitioners by
military commission. See Yamashita, supra, at 8 (“[O]n
application for habeas corpus we are not concerned with
the guilt or innocence of the petitioners. We consider here
only the lawful power of the commission to try the peti
tioner for the offense charged”); Quirin, supra, at 25 (“We
are not here concerned with any question of the guilt or
innocence of petitioners”). Military courts are not courts of
record. See Watkins, 3 Pet., at 209; Church 513. And the
procedures used to try General Yamashita have been
sharply criticized by Members of this Court. See Hamdan,
548 U. S., at 617; Yamashita, supra, at 41–81 (Rutledge,
J., dissenting). We need not revisit these cases, however.
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Opinion of the Court
For on their own terms, the proceedings in Yamashita and
Quirin, like those in Eisentrager, had an adversarial
structure that is lacking here. See Yamashita, supra, at 5
(noting that General Yamashita was represented by six
military lawyers and that “[t]hroughout the proceedings
. . . defense counsel . . . demonstrated their professional
skill and resourcefulness and their proper zeal for the
defense with which they were charged”); Quirin, supra, at
23–24; Exec. Order No. 9185, 7 Fed. Reg. 5103 (1942)
(appointing counsel to represent the German saboteurs).
The extent of the showing required of the Government
in these cases is a matter to be determined. We need not
explore it further at this stage. We do hold that when the
judicial power to issue habeas corpus properly is invoked
the judicial officer must have adequate authority to make
a determination in light of the relevant law and facts and
to formulate and issue appropriate orders for relief, in
cluding, if necessary, an order directing the prisoner’s
release.
C
We now consider whether the DTA allows the Court of
Appeals to conduct a proceeding meeting these standards.
“[W]e are obligated to construe the statute to avoid [con
stitutional] problems” if it is “‘fairly possible’” to do so. St.
Cyr, 533 U. S., at 299–300 (quoting Crowell v. Benson, 285
U. S. 22, 62 (1932)). There are limits to this principle,
however. The canon of constitutional avoidance does not
supplant traditional modes of statutory interpretation.
See Clark v. Martinez, 543 U. S. 371, 385 (2005) (“The
canon of constitutional avoidance comes into play only
when, after the application of ordinary textual analysis,
the statute is found to be susceptible of more than one
construction; and the canon functions as a means of choos-
ing between them”). We cannot ignore the text and pur
pose of a statute in order to save it.
59 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
The DTA does not explicitly empower the Court of Ap
peals to order the applicant in a DTA review proceeding
released should the court find that the standards and
procedures used at his CSRT hearing were insufficient to
justify detention. This is troubling. Yet, for present pur
poses, we can assume congressional silence permits a
constitutionally required remedy. In that case it would be
possible to hold that a remedy of release is impliedly
provided for. The DTA might be read, furthermore, to
allow the petitioners to assert most, if not all, of the legal
claims they seek to advance, including their most basic
claim: that the President has no authority under the
AUMF to detain them indefinitely. (Whether the Presi
dent has such authority turns on whether the AUMF
authorizes—and the Constitution permits—the indefinite
detention of “enemy combatants” as the Department of
Defense defines that term. Thus a challenge to the Presi
dent’s authority to detain is, in essence, a challenge to the
Department’s definition of enemy combatant, a “standard”
used by the CSRTs in petitioners’ cases.) At oral argu
ment, the Solicitor General urged us to adopt both these
constructions, if doing so would allow MCA §7 to remain
intact. See Tr. of Oral Arg. 37, 53.
The absence of a release remedy and specific language
allowing AUMF challenges are not the only constitutional
infirmities from which the statute potentially suffers,
however. The more difficult question is whether the DTA
permits the Court of Appeals to make requisite findings of
fact. The DTA enables petitioners to request “review” of
their CSRT determination in the Court of Appeals, DTA
§1005(e)(2)(B)(i), 119 Stat. 2742; but the “Scope of Review”
provision confines the Court of Appeals’ role to reviewing
whether the CSRT followed the “standards and proce
dures” issued by the Department of Defense and assessing
whether those “standards and procedures” are lawful.
§1005(e)(C), ibid. Among these standards is “the require
60 BOUMEDIENE v. BUSH
Opinion of the Court
ment that the conclusion of the Tribunal be supported by a
preponderance of the evidence . . . allowing a rebuttable
presumption in favor of the Government’s evidence.”
§1005(e)(C)(i), ibid.
Assuming the DTA can be construed to allow the Court
of Appeals to review or correct the CSRT’s factual deter
minations, as opposed to merely certifying that the tribu
nal applied the correct standard of proof, we see no way to
construe the statute to allow what is also constitutionally
required in this context: an opportunity for the detainee to
present relevant exculpatory evidence that was not made
part of the record in the earlier proceedings.
On its face the statute allows the Court of Appeals to
consider no evidence outside the CSRT record. In the
parallel litigation, however, the Court of Appeals deter
mined that the DTA allows it to order the production of all
“‘reasonably available information in the possession of the
U. S. Government bearing on the issue of whether the
detainee meets the criteria to be designated as an enemy
combatant,’” regardless of whether this evidence was put
before the CSRT. See Bismullah I, 501 F. 3d, at 180. The
Government, see Pet. for Cert. pending in Gates v. Bismul-
lah, No. 07–1054 (hereinafter Bismullah Pet.), with sup
port from five members of the Court of Appeals, see Bis-
mullah III, 514 F. 3d, at 1299 (Henderson, J., dissenting
from denial of rehearing en banc); id., at 1302 (opinion of
Randolph, J.) (same); id., at 1306 (opinion of Brown, J.)
(same), disagrees with this interpretation. For present
purposes, however, we can assume that the Court of Ap
peals was correct that the DTA allows introduction and
consideration of relevant exculpatory evidence that was
“reasonably available” to the Government at the time of
the CSRT but not made part of the record. Even so, the
DTA review proceeding falls short of being a constitution
ally adequate substitute, for the detainee still would have
no opportunity to present evidence discovered after the
61 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
CSRT proceedings concluded.
Under the DTA the Court of Appeals has the power to
review CSRT determinations by assessing the legality of
standards and procedures. This implies the power to
inquire into what happened at the CSRT hearing and,
perhaps, to remedy certain deficiencies in that proceeding.
But should the Court of Appeals determine that the CSRT
followed appropriate and lawful standards and proce
dures, it will have reached the limits of its jurisdiction.
There is no language in the DTA that can be construed to
allow the Court of Appeals to admit and consider newly
discovered evidence that could not have been made part of
the CSRT record because it was unavailable to either the
Government or the detainee when the CSRT made its
findings. This evidence, however, may be critical to the
detainee’s argument that he is not an enemy combatant
and there is no cause to detain him.
This is not a remote hypothetical. One of the petition
ers, Mohamed Nechla, requested at his CSRT hearing that
the Government contact his employer. The petitioner
claimed the employer would corroborate Nechla’s conten
tion he had no affiliation with al Qaeda. Although the
CSRT determined this testimony would be relevant, it also
found the witness was not reasonably available to testify
at the time of the hearing. Petitioner’s counsel, however,
now represents the witness is available to be heard. See
Brief for Boumediene Petitioners 5. If a detainee can
present reasonably available evidence demonstrating
there is no basis for his continued detention, he must have
the opportunity to present this evidence to a habeas cor
pus court. Even under the Court of Appeals’ generous
construction of the DTA, however, the evidence identified
by Nechla would be inadmissible in a DTA review proceed
ing. The role of an Article III court in the exercise of its
habeas corpus function cannot be circumscribed in this
manner.
62 BOUMEDIENE v. BUSH
Opinion of the Court
By foreclosing consideration of evidence not presented or
reasonably available to the detainee at the CSRT proceed
ings, the DTA disadvantages the detainee by limiting the
scope of collateral review to a record that may not be
accurate or complete. In other contexts, e.g., in post-trial
habeas cases where the prisoner already has had a full
and fair opportunity to develop the factual predicate of his
claims, similar limitations on the scope of habeas review
may be appropriate. See Williams v. Taylor, 529 U. S.
420, 436–437 (2000) (noting that §2254 “does not equate
prisoners who exercise diligence in pursuing their claims
with those who do not”). In this context, however, where
the underlying detention proceedings lack the necessary
adversarial character, the detainee cannot be held respon
sible for all deficiencies in the record.
The Government does not make the alternative argu
ment that the DTA allows for the introduction of previ
ously unavailable exculpatory evidence on appeal. It does
point out, however, that if a detainee obtains such evi
dence, he can request that the Deputy Secretary of De
fense convene a new CSRT. See Supp. Brief for Respon
dents 4. Whatever the merits of this procedure, it is an
insufficient replacement for the factual review these de
tainees are entitled to receive through habeas corpus. The
Deputy Secretary’s determination whether to initiate new
proceedings is wholly a discretionary one. See Dept. of
Defense, Office for the Administrative Review of the De
tention of Enemy Combatants, Instruction 5421.1, Proce
dure for Review of “New Evidence” Relating to Enemy
Combatant (EC) Status ¶5(d) (May 7, 2007) (Instruction
5421.1) (“The decision to convene a CSRT to reconsider the
basis of the detainee’s [enemy combatant] status in light of
‘new evidence’ is a matter vested in the unreviewable
discretion of the [Deputy Secretary of Defense]”). And we
see no way to construe the DTA to allow a detainee to
challenge the Deputy Secretary’s decision not to open a
63 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
new CSRT pursuant to Instruction 5421.1. Congress
directed the Secretary of Defense to devise procedures for
considering new evidence, see DTA §1005(a)(3), but the
detainee has no mechanism for ensuring that those proce
dures are followed. DTA §1005(e)(2)(C), 119 Stat. 2742,
makes clear that the Court of Appeals’ jurisdiction is
“limited to consideration of . . . whether the status deter
mination of the Combatant Status Review Tribunal with
regard to such alien was consistent with the standards
and procedures specified by the Secretary of Defense . . .
and . . . whether the use of such standards and procedures
to make the determination is consistent with the Constitu
tion and laws of the United States.” DTA §1005(e)(2)(A),
ibid., further narrows the Court of Appeals’ jurisdiction to
reviewing “any final decision of a Combatant Status Re
view Tribunal that an alien is properly detained as an
enemy combatant.” The Deputy Secretary’s determination
whether to convene a new CSRT is not a “status determi
nation of the Combatant Status Review Tribunal,” much
less a “final decision” of that body.
We do not imply DTA review would be a constitutionally
sufficient replacement for habeas corpus but for these
limitations on the detainee’s ability to present exculpatory
evidence. For even if it were possible, as a textual matter,
to read into the statute each of the necessary procedures
we have identified, we could not overlook the cumulative
effect of our doing so. To hold that the detainees at Guan
tanamo may, under the DTA, challenge the President’s
legal authority to detain them, contest the CSRT’s find
ings of fact, supplement the record on review with excul
patory evidence, and request an order of release would
come close to reinstating the §2241 habeas corpus process
Congress sought to deny them. The language of the stat
ute, read in light of Congress’ reasons for enacting it,
cannot bear this interpretation. Petitioners have met
their burden of establishing that the DTA review process
64 BOUMEDIENE v. BUSH
Opinion of the Court
is, on its face, an inadequate substitute for habeas corpus.
Although we do not hold that an adequate substitute
must duplicate §2241 in all respects, it suffices that the
Government has not established that the detainees’ access
to the statutory review provisions at issue is an adequate
substitute for the writ of habeas corpus. MCA §7 thus
effects an unconstitutional suspension of the writ. In view
of our holding we need not discuss the reach of the writ
with respect to claims of unlawful conditions of treatment
or confinement.
VI
A
In light of our conclusion that there is no jurisdictional
bar to the District Court’s entertaining petitioners’ claims
the question remains whether there are prudential barri
ers to habeas corpus review under these circumstances.
The Government argues petitioners must seek review of
their CSRT determinations in the Court of Appeals before
they can proceed with their habeas corpus actions in the
District Court. As noted earlier, in other contexts and for
prudential reasons this Court has required exhaustion of
alternative remedies before a prisoner can seek federal
habeas relief. Most of these cases were brought by prison
ers in state custody, e.g., Ex parte Royall, 117 U. S. 241,
and thus involved federalism concerns that are not rele
vant here. But we have extended this rule to require
defendants in courts-martial to exhaust their military
appeals before proceeding with a federal habeas corpus
action. See Schlesinger, 420 U. S., at 758.
The real risks, the real threats, of terrorist attacks are
constant and not likely soon to abate. The ways to disrupt
our life and laws are so many and unforeseen that the
Court should not attempt even some general catalogue of
crises that might occur. Certain principles are apparent,
however. Practical considerations and exigent circum
65 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
stances inform the definition and reach of the law’s writs,
including habeas corpus. The cases and our tradition
reflect this precept.
In cases involving foreign citizens detained abroad by
the Executive, it likely would be both an impractical and
unprecedented extension of judicial power to assume that
habeas corpus would be available at the moment the
prisoner is taken into custody. If and when habeas corpus
jurisdiction applies, as it does in these cases, then proper
deference can be accorded to reasonable procedures for
screening and initial detention under lawful and proper
conditions of confinement and treatment for a reasonable
period of time. Domestic exigencies, furthermore, might
also impose such onerous burdens on the Government that
here, too, the Judicial Branch would be required to devise
sensible rules for staying habeas corpus proceedings until
the Government can comply with its requirements in a
responsible way. Cf. Ex parte Milligan, 4 Wall., at 127
(“If, in foreign invasion or civil war, the courts are actually
closed, and it is impossible to administer criminal justice
according to law, then, on the theatre of active military
operations, where war really prevails, there is a necessity
to furnish a substitute for the civil authority, thus over
thrown, to preserve the safety of the army and society; and
as no power is left but the military, it is allowed to govern
by martial rule until the laws can have their free course”).
Here, as is true with detainees apprehended abroad, a
relevant consideration in determining the courts’ role is
whether there are suitable alternative processes in place
to protect against the arbitrary exercise of governmental
power.
The cases before us, however, do not involve detainees
who have been held for a short period of time while await
ing their CSRT determinations. Were that the case, or
were it probable that the Court of Appeals could complete
a prompt review of their applications, the case for requir
66 BOUMEDIENE v. BUSH
Opinion of the Court
ing temporary abstention or exhaustion of alternative
remedies would be much stronger. These qualifications no
longer pertain here. In some of these cases six years have
elapsed without the judicial oversight that habeas corpus
or an adequate substitute demands. And there has been
no showing that the Executive faces such onerous burdens
that it cannot respond to habeas corpus actions. To re
quire these detainees to complete DTA review before
proceeding with their habeas corpus actions would be to
require additional months, if not years, of delay. The first
DTA review applications were filed over a year ago, but no
decisions on the merits have been issued. While some
delay in fashioning new procedures is unavoidable, the
costs of delay can no longer be borne by those who are held
in custody. The detainees in these cases are entitled to a
prompt habeas corpus hearing.
Our decision today holds only that the petitioners before
us are entitled to seek the writ; that the DTA review
procedures are an inadequate substitute for habeas cor
pus; and that the petitioners in these cases need not ex
haust the review procedures in the Court of Appeals before
proceeding with their habeas actions in the District Court.
The only law we identify as unconstitutional is MCA §7,
28 U. S. C. A. §2241(e) (Supp. 2007). Accordingly, both the
DTA and the CSRT process remain intact. Our holding
with regard to exhaustion should not be read to imply that
a habeas court should intervene the moment an enemy
combatant steps foot in a territory where the writ runs.
The Executive is entitled to a reasonable period of time to
determine a detainee’s status before a court entertains
that detainee’s habeas corpus petition. The CSRT process
is the mechanism Congress and the President set up to
deal with these issues. Except in cases of undue delay,
federal courts should refrain from entertaining an enemy
combatant’s habeas corpus petition at least until after the
Department, acting via the CSRT, has had a chance to
67 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
review his status.
B
Although we hold that the DTA is not an adequate and
effective substitute for habeas corpus, it does not follow
that a habeas corpus court may disregard the dangers the
detention in these cases was intended to prevent. Felker,
Swain, and Hayman stand for the proposition that the
Suspension Clause does not resist innovation in the field
of habeas corpus. Certain accommodations can be made to
reduce the burden habeas corpus proceedings will place on
the military without impermissibly diluting the protec
tions of the writ.
In the DTA Congress sought to consolidate review of
petitioners’ claims in the Court of Appeals. Channeling
future cases to one district court would no doubt reduce
administrative burdens on the Government. This is a
legitimate objective that might be advanced even without
an amendment to §2241. If, in a future case, a detainee
files a habeas petition in another judicial district in which
a proper respondent can be served, see Rumsfeld v.
Padilla, 542 U. S. 426, 435–436 (2004), the Government
can move for change of venue to the court that will hear
these petitioners’ cases, the United States District Court
for the District of Columbia. See 28 U. S. C. §1404(a);
Braden v. 30th Judicial Circuit Court of Ky., 410 U. S.
484, 499, n. 15 (1973).
Another of Congress’ reasons for vesting exclusive juris
diction in the Court of Appeals, perhaps, was to avoid the
widespread dissemination of classified information. The
Government has raised similar concerns here and else
where. See Brief for Respondents 55–56; Bismullah Pet.
30. We make no attempt to anticipate all of the eviden
tiary and access-to-counsel issues that will arise during
the course of the detainees’ habeas corpus proceedings.
We recognize, however, that the Government has a legiti
68 BOUMEDIENE v. BUSH
Opinion of the Court
mate interest in protecting sources and methods of intelli
gence gathering; and we expect that the District Court will
use its discretion to accommodate this interest to the
greatest extent possible. Cf. United States v. Reynolds,
345 U. S. 1, 10 (1953) (recognizing an evidentiary privilege
in a civil damages case where “there is a reasonable dan
ger that compulsion of the evidence will expose military
matters which, in the interest of national security, should
not be divulged”).
These and the other remaining questions are within the
expertise and competence of the District Court to address
in the first instance.
* * *
In considering both the procedural and substantive
standards used to impose detention to prevent acts of
terrorism, proper deference must be accorded to the politi
cal branches. See United States v. Curtiss-Wright Export
Corp., 299 U. S. 304, 320 (1936). Unlike the President and
some designated Members of Congress, neither the Mem
bers of this Court nor most federal judges begin the day
with briefings that may describe new and serious threats
to our Nation and its people. The law must accord the
Executive substantial authority to apprehend and detain
those who pose a real danger to our security.
Officials charged with daily operational responsibility
for our security may consider a judicial discourse on the
history of the Habeas Corpus Act of 1679 and like matters
to be far removed from the Nation’s present, urgent con
cerns. Established legal doctrine, however, must be con
sulted for its teaching. Remote in time it may be; irrele
vant to the present it is not. Security depends upon a
sophisticated intelligence apparatus and the ability of our
Armed Forces to act and to interdict. There are further
considerations, however. Security subsists, too, in fidelity
to freedom’s first principles. Chief among these are free
69 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
dom from arbitrary and unlawful restraint and the per
sonal liberty that is secured by adherence to the separa
tion of powers. It is from these principles that the judicial
authority to consider petitions for habeas corpus relief
derives.
Our opinion does not undermine the Executive’s powers
as Commander in Chief. On the contrary, the exercise of
those powers is vindicated, not eroded, when confirmed by
the Judicial Branch. Within the Constitution’s separa
tion-of-powers structure, few exercises of judicial power
are as legitimate or as necessary as the responsibility to
hear challenges to the authority of the Executive to im
prison a person. Some of these petitioners have been in
custody for six years with no definitive judicial determina
tion as to the legality of their detention. Their access to
the writ is a necessity to determine the lawfulness of their
status, even if, in the end, they do not obtain the relief
they seek.
Because our Nation’s past military conflicts have been of
limited duration, it has been possible to leave the outer
boundaries of war powers undefined. If, as some fear,
terrorism continues to pose dangerous threats to us for
years to come, the Court might not have this luxury. This
result is not inevitable, however. The political branches,
consistent with their independent obligations to interpret
and uphold the Constitution, can engage in a genuine
debate about how best to preserve constitutional values
while protecting the Nation from terrorism. Cf. Hamdan,
548 U. S., at 636 (BREYER, J., concurring) (“[J]udicial
insistence upon that consultation does not weaken our
Nation’s ability to deal with danger. To the contrary, that
insistence strengthens the Nation’s ability to determine—
through democratic means—how best to do so”).
It bears repeating that our opinion does not address the
content of the law that governs petitioners’ detention.
That is a matter yet to be determined. We hold that peti
70 BOUMEDIENE v. BUSH
Opinion of the Court
tioners may invoke the fundamental procedural protec
tions of habeas corpus. The laws and Constitution are
designed to survive, and remain in force, in extraordinary
times. Liberty and security can be reconciled; and in our
system they are reconciled within the framework of the
law. The Framers decided that habeas corpus, a right of
first importance, must be a part of that framework, a part
of that law.
The determination by the Court of Appeals that the
Suspension Clause and its protections are inapplicable to
petitioners was in error. The judgment of the Court of
Appeals is reversed. The cases are remanded to the Court
of Appeals with instructions that it remand the cases to
the District Court for proceedings consistent with this
opinion.
It is so ordered.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
SOUTER, J., concurring
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
JUSTICE SOUTER, with whom JUSTICE GINSBURG and
JUSTICE BREYER join, concurring.
I join the Court’s opinion in its entirety and add this
afterword only to emphasize two things one might over-
look after reading the dissents.
Four years ago, this Court in Rasul v. Bush, 542 U. S.
466 (2004) held that statutory habeas jurisdiction ex-
tended to claims of foreign nationals imprisoned by the
United States at Guantanamo Bay, “to determine the
legality of the Executive’s potentially indefinite detention”
of them, id., at 485. Subsequent legislation eliminated the
statutory habeas jurisdiction over these claims, so that
now there must be constitutionally based jurisdiction or
none at all. JUSTICE SCALIA is thus correct that here, for
the first time, this Court holds there is (he says “confers”)
constitutional habeas jurisdiction over aliens imprisoned
2 BOUMEDIENE v. BUSH
SOUTER, J., concurring
by the military outside an area of de jure national sover-
eignty, see post, at 1 (dissenting opinion). But no one who
reads the Court’s opinion in Rasul could seriously doubt
that the jurisdictional question must be answered the
same way in purely constitutional cases, given the Court’s
reliance on the historical background of habeas generally
in answering the statutory question. See, e.g., 542 U. S.,
at 473, 481–483, and nn. 11–14. Indeed, the Court in
Rasul directly answered the very historical question that
JUSTICE SCALIA says is dispositive, see post, at 18; it wrote
that “[a]pplication of the habeas statute to persons de-
tained at [Guantanamo] is consistent with the historical
reach of the writ of habeas corpus,” 542 U. S., at 481.
JUSTICE SCALIA dismisses the statement as dictum, see
post, at 21, but if dictum it was, it was dictum well consid-
ered, and it stated the view of five Members of this Court
on the historical scope of the writ. Of course, it takes more
than a quotation from Rasul, however much on point, to
resolve the constitutional issue before us here, which the
majority opinion has explored afresh in the detail it de-
serves. But whether one agrees or disagrees with today’s
decision, it is no bolt out of the blue.
A second fact insufficiently appreciated by the dissents
is the length of the disputed imprisonments, some of the
prisoners represented here today having been locked up
for six years, ante, at 66 (opinion of the Court). Hence the
hollow ring when the dissenters suggest that the Court is
somehow precipitating the judiciary into reviewing claims
that the military (subject to appeal to the Court of Appeals
for the District of Columbia Circuit) could handle within
some reasonable period of time. See, e.g., post, at 3 (opin-
ion of ROBERTS, C. J.) (“[T]he Court should have declined
to intervene until the D. C. Circuit had assessed the na-
ture and validity of the congressionally mandated proceed-
ings in a given detainee’s case”); post, at 6 (“[I]t is not
necessary to consider the availability of the writ until the
3 Cite as: 553 U. S. ____ (2008)
SOUTER, J., concurring
statutory remedies have been shown to be inadequate”);
post, at 8 (“[The Court] rushes to decide the fundamental
question of the reach of habeas corpus when the function-
ing of the DTA may make that decision entirely unneces-
sary”). These suggestions of judicial haste are all the more
out of place given the Court’s realistic acknowledgment
that in periods of exigency the tempo of any habeas review
must reflect the immediate peril facing the country. See
ante, at 64–65.
It is in fact the very lapse of four years from the time
Rasul put everyone on notice that habeas process was
available to Guantanamo prisoners, and the lapse of six
years since some of these prisoners were captured and
incarcerated, that stand at odds with the repeated sugges-
tions of the dissenters that these cases should be seen as a
judicial victory in a contest for power between the Court
and the political branches. See post, at 2, 3, 28 (ROBERTS,
C. J., dissenting); post, at 5, 6, 17, 18, 25 (SCALIA, J., dis-
senting). The several answers to the charge of triumphal-
ism might start with a basic fact of Anglo-American con-
stitutional history: that the power, first of the Crown and
now of the Executive Branch of the United States, is nec-
essarily limited by habeas corpus jurisdiction to enquire
into the legality of executive detention. And one could
explain that in this Court’s exercise of responsibility to
preserve habeas corpus something much more significant
is involved than pulling and hauling between the judicial
and political branches. Instead, though, it is enough to
repeat that some of these petitioners have spent six years
behind bars. After six years of sustained executive deten-
tions in Guantanamo, subject to habeas jurisdiction but
without any actual habeas scrutiny, today’s decision is no
judicial victory, but an act of perseverance in trying to
make habeas review, and the obligation of the courts to
provide it, mean something of value both to prisoners and
to the Nation. See ante, at 69.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA,
JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
Today the Court strikes down as inadequate the most
generous set of procedural protections ever afforded aliens
detained by this country as enemy combatants. The po
litical branches crafted these procedures amidst an ongo
ing military conflict, after much careful investigation and
thorough debate. The Court rejects them today out of
hand, without bothering to say what due process rights
the detainees possess, without explaining how the statute
fails to vindicate those rights, and before a single peti
tioner has even attempted to avail himself of the law’s
operation. And to what effect? The majority merely re
places a review system designed by the people’s represen
tatives with a set of shapeless procedures to be defined by
federal courts at some future date. One cannot help but
2 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
think, after surveying the modest practical results of the
majority’s ambitious opinion, that this decision is not
really about the detainees at all, but about control of
federal policy regarding enemy combatants.
The majority is adamant that the Guantanamo detain
ees are entitled to the protections of habeas corpus—its
opinion begins by deciding that question. I regard the
issue as a difficult one, primarily because of the unique
and unusual jurisdictional status of Guantanamo Bay. I
nonetheless agree with JUSTICE SCALIA’s analysis of our
precedents and the pertinent history of the writ, and
accordingly join his dissent. The important point for me,
however, is that the Court should have resolved these
cases on other grounds. Habeas is most fundamentally a
procedural right, a mechanism for contesting the legality
of executive detention. The critical threshold question in
these cases, prior to any inquiry about the writ’s scope, is
whether the system the political branches designed pro
tects whatever rights the detainees may possess. If so,
there is no need for any additional process, whether called
“habeas” or something else.
Congress entrusted that threshold question in the first
instance to the Court of Appeals for the District of Colum
bia Circuit, as the Constitution surely allows Congress to do.
See Detainee Treatment Act of 2005 (DTA), §1005(e)(2)(A),
119 Stat. 2742. But before the D. C. Circuit has addressed
the issue, the Court cashiers the statute, and without
answering this critical threshold question itself. The
Court does eventually get around to asking whether re
view under the DTA is, as the Court frames it, an “ade
quate substitute” for habeas, ante, at 42, but even then its
opinion fails to determine what rights the detainees pos
sess and whether the DTA system satisfies them. The
majority instead compares the undefined DTA process to
an equally undefined habeas right—one that is to be given
shape only in the future by district courts on a case-by
3 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
case basis. This whole approach is misguided.
It is also fruitless. How the detainees’ claims will be
decided now that the DTA is gone is anybody’s guess. But
the habeas process the Court mandates will most likely
end up looking a lot like the DTA system it replaces, as
the district court judges shaping it will have to reconcile
review of the prisoners’ detention with the undoubted
need to protect the American people from the terrorist
threat—precisely the challenge Congress undertook in
drafting the DTA. All that today’s opinion has done is
shift responsibility for those sensitive foreign policy and
national security decisions from the elected branches to
the Federal Judiciary.
I believe the system the political branches constructed
adequately protects any constitutional rights aliens cap
tured abroad and detained as enemy combatants may
enjoy. I therefore would dismiss these cases on that
ground. With all respect for the contrary views of the
majority, I must dissent.
I
The Court’s opinion makes plain that certiorari to re
view these cases should never have been granted. As two
Members of today’s majority once recognized, “traditional
rules governing our decision of constitutional questions
and our practice of requiring the exhaustion of available
remedies . . . make it appropriate to deny these petitions.”
Boumediene v. Bush, 549 U. S. ___ (2007) (slip op., at 1)
(citation omitted) (statement of STEVENS and KENNEDY,
JJ., respecting denial of certiorari). Just so. Given the
posture in which these cases came to us, the Court should
have declined to intervene until the D. C. Circuit had
assessed the nature and validity of the congressionally
mandated proceedings in a given detainee’s case.
The political branches created a two-part, collateral
review procedure for testing the legality of the prisoners’
4 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
detention: It begins with a hearing before a Combatant
Status Review Tribunal (CSRT) followed by review in the
D. C. Circuit. As part of that review, Congress authorized
the D. C. Circuit to decide whether the CSRT proceedings
are consistent with “the Constitution and laws of the
United States.” DTA §1005(e)(2)(C), 119 Stat. 2742. No
petitioner, however, has invoked the D. C. Circuit review
the statute specifies. See 476 F. 3d 981, 994, and n. 16
(CADC 2007); Brief for Federal Respondents 41–43. As a
consequence, that court has had no occasion to decide
whether the CSRT hearings, followed by review in the
Court of Appeals, vindicate whatever constitutional and
statutory rights petitioners may possess. See 476 F. 3d, at
994, and n. 16.
Remarkably, this Court does not require petitioners to
exhaust their remedies under the statute; it does not wait
to see whether those remedies will prove sufficient to
protect petitioners’ rights. Instead, it not only denies the
D. C. Circuit the opportunity to assess the statute’s reme
dies, it refuses to do so itself: the majority expressly de
clines to decide whether the CSRT procedures, coupled
with Article III review, satisfy due process. See ante, at
54.
It is grossly premature to pronounce on the detainees’
right to habeas without first assessing whether the reme
dies the DTA system provides vindicate whatever rights
petitioners may claim. The plurality in Hamdi v. Rums-
feld, 542 U. S. 507, 533 (2004), explained that the Consti
tution guaranteed an American citizen challenging his
detention as an enemy combatant the right to “notice of
the factual basis for his classification, and a fair opportu
nity to rebut the Government’s factual assertions before a
neutral decisionmaker.” The plurality specifically stated
that constitutionally adequate collateral process could be
provided “by an appropriately authorized and properly
constituted military tribunal,” given the “uncommon
5 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
potential to burden the Executive at a time of ongoing
military conflict.” Id., at 533, 538. This point is directly
pertinent here, for surely the Due Process Clause does not
afford non-citizens in such circumstances greater protec
tion than citizens are due.
If the CSRT procedures meet the minimal due process
requirements outlined in Hamdi, and if an Article III
court is available to ensure that these procedures are
followed in future cases, see id., at 536; INS v. St. Cyr, 533
U. S. 289, 304 (2001); Heikkila v. Barber, 345 U. S. 229,
236 (1953), there is no need to reach the Suspension
Clause question. Detainees will have received all the
process the Constitution could possibly require, whether
that process is called “habeas” or something else. The
question of the writ’s reach need not be addressed.
This is why the Court should have required petitioners
to exhaust their remedies under the statute. As we ex
plained in Gusik v. Schilder, 340 U. S. 128, 132 (1950), “If
an available procedure has not been employed to rectify
the alleged error” petitioners complain of, “any interfer
ence by [a] federal court may be wholly needless. The
procedure established to police the errors of the tribunal
whose judgment is challenged may be adequate for the
occasion.” Because the majority refuses to assess whether
the CSRTs comport with the Constitution, it ends up
razing a system of collateral review that it admits may in
fact satisfy the Due Process Clause and be “structurally
sound.” Ante, at 56. But if the collateral review proce
dures Congress has provided—CSRT review coupled with
Article III scrutiny—are sound, interference by a federal
habeas court may be entirely unnecessary.
The only way to know is to require petitioners to use the
alternative procedures Congress designed. Mandating
that the petitioners exhaust their statutory remedies “is in
no sense a suspension of the writ of habeas corpus. It is
merely a deferment of resort to the writ until other correc
6 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
tive procedures are shown to be futile.” Gusik, supra, at
132. So too here, it is not necessary to consider the avail
ability of the writ until the statutory remedies have been
shown to be inadequate to protect the detainees’ rights.
Cf. 28 U. S. C. §2254(b)(1)(A) (“An application for a writ of
habeas corpus . . . shall not be granted unless it appears
that . . . the applicant has exhausted the remedies avail
able in the courts of the State”). Respect for the judg
ments of Congress—whose Members take the same oath
we do to uphold the Constitution—requires no less.
In the absence of any assessment of the DTA’s remedies,
the question whether detainees are entitled to habeas is
an entirely speculative one. Our precedents have long
counseled us to avoid deciding such hypothetical questions
of constitutional law. See Spector Motor Service, Inc. v.
McLaughlin, 323 U. S. 101, 105 (1944) (“If there is one
doctrine more deeply rooted than any other in the process
of constitutional adjudication, it is that we ought not to
pass on questions of constitutionality . . . unless such
[questions are] unavoidable”); see also Ashwander v. TVA,
297 U. S. 288, 347 (1936) (Brandeis, J., concurring) (Con
stitutional questions should not be decided unless “ ‘abso
lutely necessary to a decision of the case’” (quoting Burton
v. United States, 196 U. S. 283, 295 (1905))). This is a
“fundamental rule of judicial restraint.” Three Affiliated
Tribes of Fort Berthold Reservation v. Wold Engineering,
P. C., 467 U. S. 138, 157 (1984).
The Court acknowledges that “the ordinary course”
would be not to decide the constitutionality of the DTA at
this stage, but abandons that “ordinary course” in light of
the “gravity” of the constitutional issues presented and the
prospect of additional delay. Ante, at 43. It is, however,
precisely when the issues presented are grave that adher
ence to the ordinary course is most important. A principle
applied only when unimportant is not much of a principle
at all, and charges of judicial activism are most effectively
7 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
rebutted when courts can fairly argue they are following
normal practices.
The Court is also concerned that requiring petitioners to
pursue “DTA review before proceeding with their habeas
corpus actions” could involve additional delay. Ante, at 66.
The nature of the habeas remedy the Court instructs
lower courts to craft on remand, however, is far more
unsettled than the process Congress provided in the DTA.
See ante, at 69 (“[O]ur opinion does not address the con
tent of the law that governs petitioners’ detention. That is
a matter yet to be determined”). There is no reason to
suppose that review according to procedures the Federal
Judiciary will design, case by case, will proceed any faster
than the DTA process petitioners disdained.
On the contrary, the system the Court has launched
(and directs lower courts to elaborate) promises to take
longer. The Court assures us that before bringing their
habeas petitions, detainees must usually complete the
CSRT process. See ante, at 66. Then they may seek re
view in federal district court. Either success or failure
there will surely result in an appeal to the D. C. Circuit—
exactly where judicial review starts under Congress’s
system. The effect of the Court’s decision is to add addi
tional layers of quite possibly redundant review. And
because nobody knows how these new layers of “habeas”
review will operate, or what new procedures they will
require, their contours will undoubtedly be subject to fresh
bouts of litigation. If the majority were truly concerned
about delay, it would have required petitioners to use the
DTA process that has been available to them for 21⁄2 years,
with its Article III review in the D. C. Circuit. That sys
tem might well have provided petitioners all the relief to
which they are entitled long before the Court’s newly
installed habeas review could hope to do so.1
——————
1
In light of the foregoing, the concurrence is wrong to suggest that I
8 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
The Court’s refusal to require petitioners to exhaust the
remedies provided by Congress violates the “traditional
rules governing our decision of constitutional questions.”
Boumediene, 549 U. S., at ___ (slip op., at 1) (statement of
STEVENS and KENNEDY, JJ., respecting denial of certio
rari). The Court’s disrespect for these rules makes its
decision an awkward business. It rushes to decide the
fundamental question of the reach of habeas corpus when
the functioning of the DTA may make that decision entirely
unnecessary, and it does so with scant idea of how DTA
judicial review will actually operate.
II
The majority’s overreaching is particularly egregious
given the weakness of its objections to the DTA. Simply
put, the Court’s opinion fails on its own terms. The major
ity strikes down the statute because it is not an “adequate
substitute” for habeas review, ante, at 42, but fails to show
what rights the detainees have that cannot be vindicated
by the DTA system.
Because the central purpose of habeas corpus is to test
the legality of executive detention, the writ requires most
fundamentally an Article III court able to hear the pris
——————
“insufficiently appreciat[e]” the issue of delay in these cases. See ante,
at 2 (opinion of SOUTER, J.). This Court issued its decisions in Rasul v.
Bush, 542 U. S. 466, and Hamdi v. Rumsfeld 542 U. S. 507, in 2004.
The concurrence makes it sound as if the political branches have done
nothing in the interim. In fact, Congress responded 18 months later by
enacting the DTA. Congress cannot be faulted for taking that time to
consider how best to accommodate both the detainees’ interests and the
need to keep the American people safe. Since the DTA became law,
petitioners have steadfastly refused to avail themselves of the statute’s
review mechanisms. It is unfair to complain that the DTA system
involves too much delay when petitioners have consistently refused to
use it, preferring to litigate instead. Today’s decision obligating district
courts to craft new procedures to replace those in the DTA will only
prolong the process—and delay relief.
9 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
oner’s claims and, when necessary, order release. See
Brown v. Allen, 344 U. S. 443, 533 (1953) (Jackson, J.,
concurring in result). Beyond that, the process a given
prisoner is entitled to receive depends on the circum
stances and the rights of the prisoner. See Mathews v.
Eldridge, 424 U. S. 319, 335 (1976). After much hemming
and hawing, the majority appears to concede that the DTA
provides an Article III court competent to order release.
See ante, at 61. The only issue in dispute is the process
the Guantanamo prisoners are entitled to use to test the
legality of their detention. Hamdi concluded that Ameri
can citizens detained as enemy combatants are entitled to
only limited process, and that much of that process could
be supplied by a military tribunal, with review to follow in
an Article III court. That is precisely the system we have
here. It is adequate to vindicate whatever due process
rights petitioners may have.
A
The Court reaches the opposite conclusion partly be
cause it misreads the statute. The majority appears not to
understand how the review system it invalidates actually
works—specifically, how CSRT review and review by the
D. C. Circuit fit together. After briefly acknowledging in
its recitation of the facts that the Government designed
the CSRTs “to comply with the due process requirements
identified by the plurality in Hamdi,” ante, at 3, the Court
proceeds to dismiss the tribunal proceedings as no more
than a suspect method used by the Executive for deter
mining the status of the detainees in the first instance, see
ante, at 43. This leads the Court to treat the review the
DTA provides in the D. C. Circuit as the only opportunity
detainees have to challenge their status determination.
See ante, at 49.
The Court attempts to explain its glancing treatment of
the CSRTs by arguing that “[w]hether one characterizes
10 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
the CSRT process as direct review of the Executive’s bat
tlefield determination . . . or as the first step in the collat
eral review of a battlefield determination makes no differ
ence.” Ante, at 54. First of all, the majority is quite wrong
to dismiss the Executive’s determination of detainee
status as no more than a “battlefield” judgment, as if it
were somehow provisional and made in great haste. In
fact, detainees are designated “enemy combatants” only
after “multiple levels of review by military officers and
officials of the Department of Defense.” Memorandum of
the Secretary of the Navy, Implementation of Combatant
Status Review Tribunal Procedures for Enemy Combat
ants Detained at Guantanamo Bay Naval Base (July 29,
2004), App. J to Pet. for Cert. in No. 06–1196, p. 150 (here
inafter Implementation Memo).
The majority is equally wrong to characterize the
CSRTs as part of that initial determination process. They
are instead a means for detainees to challenge the Gov
ernment’s determination. The Executive designed the
CSRTs to mirror Army Regulation 190–8, see Brief for
Federal Respondents 48, the very procedural model the
plurality in Hamdi said provided the type of process an
enemy combatant could expect from a habeas court, see
542 U. S., at 538 (plurality opinion). The CSRTs operate
much as habeas courts would if hearing the detainee’s
collateral challenge for the first time: They gather evi
dence, call witnesses, take testimony, and render a deci
sion on the legality of the Government’s detention. See
Implementation Memo, App. J to Pet. for Cert. in No. 06–
1196, at 153–162. If the CSRT finds a particular detainee
has been improperly held, it can order release. See id., at
164.
The majority insists that even if “the CSRTs satisf[ied]
due process standards,” full habeas review would still be
necessary, because habeas is a collateral remedy available
even to prisoners “detained pursuant to the most rigorous
11 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
proceedings imaginable.” Ante, at 55, 56. This comment
makes sense only if the CSRTs are incorrectly viewed as a
method used by the Executive for determining the prison
ers’ status, and not as themselves part of the collateral
review to test the validity of that determination. See
Gusik, 340 U. S., at 132. The majority can deprecate the
importance of the CSRTs only by treating them as some
thing they are not.
The use of a military tribunal such as the CSRTs to
review the aliens’ detention should be familiar to this
Court in light of the Hamdi plurality, which said that the
due process rights enjoyed by American citizens detained
as enemy combatants could be vindicated “by an appropri
ately authorized and properly constituted military tribu
nal.” 542 U. S., at 538. The DTA represents Congress’
considered attempt to provide the accused alien combat
ants detained at Guantanamo a constitutionally adequate
opportunity to contest their detentions before just such a
tribunal.
But Congress went further in the DTA. CSRT review is
just the first tier of collateral review in the DTA system.
The statute provides additional review in an Article III
court. Given the rationale of today’s decision, it is well
worth recalling exactly what the DTA provides in this
respect. The statute directs the D. C. Circuit to consider
whether a particular alien’s status determination “was
consistent with the standards and procedures specified by
the Secretary of Defense” and “whether the use of such
standards and procedures to make the determination is
consistent with the Constitution and laws of the United
States.” DTA §1005(e)(2)(C), 119 Stat. 2742. That is, a
court determines whether the CSRT procedures are consti
tutional, and a court determines whether those procedures
were followed in a particular case.
In short, the Hamdi plurality concluded that this type of
review would be enough to satisfy due process, even for
12 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
citizens. See 542 U. S., at 538. Congress followed the
Court’s lead, only to find itself the victim of a constitu
tional bait and switch.
Hamdi merits scant attention from the Court—a re
markable omission, as Hamdi bears directly on the issues
before us. The majority attempts to dismiss Hamdi’s
relevance by arguing that because the availability of
§2241 federal habeas was never in doubt in that case, “the
Court had no occasion to define the necessary scope of
habeas review . . . in the context of enemy combatant
detentions.” Ante, at 55. Hardly. Hamdi was all about
the scope of habeas review in the context of enemy com
batant detentions. The petitioner, an American citizen
held within the United States as an enemy combatant,
invoked the writ to challenge his detention. 542 U. S., at
510–511. After “a careful examination both of the writ . . .
and of the Due Process Clause,” this Court enunciated the
“basic process” the Constitution entitled Hamdi to expect
from a habeas court under §2241. Id., at 525, 534. That
process consisted of the right to “receive notice of the
factual basis for his classification, and a fair opportunity
to rebut the Government’s factual assertions before a
neutral decisionmaker.” Id., at 533. In light of the Gov
ernment’s national security responsibilities, the plurality
found the process could be “tailored to alleviate [the]
uncommon potential to burden the Executive at a time of
ongoing military conflict.” Ibid. For example, the Gov
ernment could rely on hearsay and could claim a presump
tion in favor of its own evidence. See id., at 533–534.
Hamdi further suggested that this “basic process” on
collateral review could be provided by a military tribunal.
It pointed to prisoner-of-war tribunals as a model that
would satisfy the Constitution’s requirements. See id., at
538. Only “[i]n the absence of such process” before a mili
tary tribunal, the Court held, would Article III courts need
to conduct full-dress habeas proceedings to “ensure that
13 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
the minimum requirements of due process are achieved.”
Ibid. (emphasis added). And even then, the petitioner
would be entitled to no more process than he would have
received from a properly constituted military review panel,
given his limited due process rights and the Government’s
weighty interests. See id., at 533–534, 538.
Contrary to the majority, Hamdi is of pressing relevance
because it establishes the procedures American citizens
detained as enemy combatants can expect from a habeas
court proceeding under §2241. The DTA system of military
tribunal hearings followed by Article III review looks a lot
like the procedure Hamdi blessed. If nothing else, it is
plain from the design of the DTA that Congress, the
President, and this Nation’s military leaders have made a
good-faith effort to follow our precedent.
The Court, however, will not take “yes” for an answer.
The majority contends that “[i]f Congress had envisioned
DTA review as coextensive with traditional habeas corpus,”
it would have granted the D. C. Circuit far broader review
authority. Ante, at 48. Maybe so, but that comment reveals
the majority’s misunderstanding. “[T]raditional habeas
corpus” takes no account of what Hamdi recognized as the
“uncommon potential to burden the Executive at a time of
ongoing military conflict.” 542 U. S., at 533. Besides, Con
gress and the Executive did not envision “DTA review”—
by which I assume the Court means D. C. Circuit review,
see ante, at 48—as the detainees’ only opportunity to
challenge their detentions. Instead, the political branches
crafted CSRT and D. C. Circuit review to operate together,
with the goal of providing noncitizen detainees the level of
collateral process Hamdi said would satisfy the due proc
ess rights of American citizens. See Brief for Federal
Respondents 48–53.
B
Given the statutory scheme the political branches
14 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
adopted, and given Hamdi, it simply will not do for the
majority to dismiss the CSRT procedures as “far more
limited” than those used in military trials, and therefore
beneath the level of process “that would eliminate the
need for habeas corpus review.” Ante, at 37. The question
is not how much process the CSRTs provide in comparison
to other modes of adjudication. The question is whether
the CSRT procedures—coupled with the judicial review
specified by the DTA—provide the “basic process” Hamdi
said the Constitution affords American citizens detained
as enemy combatants. See 542 U. S., at 534.
By virtue of its refusal to allow the D. C. Circuit to
assess petitioners’ statutory remedies, and by virtue of its
own refusal to consider, at the outset, the fit between
those remedies and due process, the majority now finds
itself in the position of evaluating whether the DTA sys
tem is an adequate substitute for habeas review without
knowing what rights either habeas or the DTA is supposed
to protect. The majority attempts to elide this problem by
holding that petitioners have a right to habeas corpus and
then comparing the DTA against the “historic office” of the
writ. Ante, at 47. But habeas is, as the majority acknowl
edges, a flexible remedy rather than a substantive right.
Its “precise application . . . change[s] depending upon the
circumstances.” Ante, at 50. The shape of habeas review
ultimately depends on the nature of the rights a petitioner
may assert. See, e.g., Reid v. Covert, 354 U. S. 1, 75 (1957)
(Harlan, J., concurring in result) (“[T]he question of which
specific safeguards of the Constitution are appropriately to
be applied in a particular context . . . can be reduced to the
issue of what process is ‘due’ a defendant in the particular
circumstances of a particular case”).
The scope of federal habeas review is traditionally more
limited in some contexts than in others, depending on the
status of the detainee and the rights he may assert. See
St. Cyr, 533 U. S., at 306 (“In [immigration cases], other
15 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
than the question whether there was some evidence to
support the [deportation] order, the courts generally did
not review factual determinations made by the Executive”
(footnote omitted)); Burns v. Wilson, 346 U. S. 137, 139
(1953) (plurality opinion) (“[I]n military habeas corpus the
inquiry, the scope of matters open for review, has always
been more narrow than in civil cases”); In re Yamashita,
327 U. S. 1, 8 (1946) (“The courts may inquire whether the
detention complained of is within the authority of those
detaining the petitioner. If the military tribunals have
lawful authority to hear, decide and condemn, their action
is not subject to judicial review”); Ex parte Quirin, 317 U. S.
1, 25 (1942) (federal habeas review of military commission
verdict limited to determining commission’s jurisdiction).
Declaring that petitioners have a right to habeas in no
way excuses the Court from explaining why the DTA does
not protect whatever due process or statutory rights peti
tioners may have. Because if the DTA provides a means
for vindicating petitioners’ rights, it is necessarily an
adequate substitute for habeas corpus. See Swain v.
Pressley, 430 U. S. 372, 381 (1977); United States v. Hay-
man, 342 U. S. 205, 223 (1952).
For my part, I will assume that any due process rights
petitioners may possess are no greater than those of
American citizens detained as enemy combatants. It is
worth noting again that the Hamdi controlling opinion
said the Constitution guarantees citizen detainees only
“basic” procedural rights, and that the process for securing
those rights can “be tailored to alleviate [the] uncommon
potential to burden the Executive at a time of ongoing
military conflict.” 542 U. S., at 533. The majority, how
ever, objects that “the procedural protections afforded to
the detainees in the CSRT hearings are . . . limited.” Ante,
at 37. But the evidentiary and other limitations the Court
complains of reflect the nature of the issue in contest,
namely, the status of aliens captured by our Armed Forces
16 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
abroad and alleged to be enemy combatants. Contrary to
the repeated suggestions of the majority, DTA review need
not parallel the habeas privileges enjoyed by noncombat
ant American citizens, as set out in 28 U. S. C. §2241
(2000 ed. and Supp V). Cf. ante, at 46–47. It need only
provide process adequate for noncitizens detained as
alleged combatants.
To what basic process are these detainees due as habeas
petitioners? We have said that “at the absolute mini
mum,” the Suspension Clause protects the writ “‘as it
existed in 1789.’” St. Cyr, supra, at 301 (quoting Felker v.
Turpin, 518 U. S. 651, 663–664 (1996)). The majority
admits that a number of historical authorities suggest
that at the time of the Constitution’s ratification, “com
mon-law courts abstained altogether from matters involv
ing prisoners of war.” Ante, at 17. If this is accurate, the
process provided prisoners under the DTA is plainly more
than sufficient—it allows alleged combatants to challenge
both the factual and legal bases of their detentions.
Assuming the constitutional baseline is more robust, the
DTA still provides adequate process, and by the majority’s
own standards. Today’s Court opines that the Suspension
Clause guarantees prisoners such as the detainees “a
meaningful opportunity to demonstrate that [they are]
being held pursuant to the erroneous application or inter
pretation of relevant law.” Ante, at 50 (internal quotation
marks omitted). Further, the Court holds that to be an
adequate substitute, any tribunal reviewing the detainees’
cases “must have the power to order the conditional re
lease of an individual unlawfully detained.” Ibid. The
DTA system—CSRT review of the Executive’s determina
tion followed by D. C. Circuit review for sufficiency of the
evidence and the constitutionality of the CSRT process—
meets these criteria.
17 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
C
At the CSRT stage, every petitioner has the right to
present evidence that he has been wrongfully detained.
This includes the right to call witnesses who are reasona
bly available, question witnesses called by the tribunal,
introduce documentary evidence, and testify before the
tribunal. See Implementation Memo, App. J to Pet. for
Cert. in No. 06–1196, at 154–156, 158–159, 161.
While the Court concedes detainees may confront all
witnesses called before the tribunal, it suggests this right
is “more theoretical than real” because “there are in effect
no limits on the admission of hearsay evidence.” Ante, at
55. The Court further complains that petitioners lack “the
assistance of counsel,” and—given the limits on their
access to classified information—“may not be aware of the
most critical allegations” against them. Ante, at 54. None
of these complaints is persuasive.
Detainees not only have the opportunity to confront any
witness who appears before the tribunal, they may call
witnesses of their own. The Implementation Memo re
quires only that detainees’ witnesses be “reasonably avail
able,” App. J to Pet. for Cert. in No. 06–1196, at 155, a
requirement drawn from Army Regulation 190–8, ch. 1,
§1–6(e)(6), and entirely consistent with the Government’s
interest in avoiding “a futile search for evidence” that
might burden warmaking responsibilities, Hamdi, supra,
at 532. The dangerous mission assigned to our forces
abroad is to fight terrorists, not serve subpoenas. The
Court is correct that some forms of hearsay evidence are
admissible before the CSRT, but Hamdi expressly ap
proved this use of hearsay by habeas courts. 542 U. S.,
at 533–534 (“Hearsay, for example, may need to be ac
cepted as the most reliable available evidence from the
Government”).
As to classified information, while detainees are not
permitted access to it themselves, the Implementation
18 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
Memo provides each detainee with a “Personal Represen
tative” who may review classified documents at the CSRT
stage and summarize them for the detainee. Implementa
tion Memo, supra, at 152, 154–155, 156; Brief for Federal
Respondents 54–55. The prisoner’s counsel enjoys the
same privilege on appeal before the D. C. Circuit. That is
more access to classified material for alleged alien enemy
combatants than ever before provided. I am not aware of
a single instance—and certainly the majority cites none—
in which detainees such as petitioners have been provided
access to classified material in any form. Indeed, prison
ers of war who challenge their status determinations
under the Geneva Convention are afforded no such access,
see Army Regulation 190–8, ch. 1, §§1–6(e)(3) and (5), and
the prisoner-of-war model is the one Hamdi cited as con
sistent with the demands of due process for citizens, see
542 U. S., at 538.
What alternative does the Court propose? Allow free
access to classified information and ignore the risk the
prisoner may eventually convey what he learns to parties
hostile to this country, with deadly consequences for those
who helped apprehend the detainee? If the Court can
design a better system for communicating to detainees the
substance of any classified information relevant to their
cases, without fatally compromising national security
interests and sources, the majority should come forward
with it. Instead, the majority fobs that vexing question off
on district courts to answer down the road.
Prisoners of war are not permitted access to classified
information, and neither are they permitted access to
counsel, another supposed failing of the CSRT process.
And yet the Guantanamo detainees are hardly denied all
legal assistance. They are provided a “Personal Represen
tative” who, as previously noted, may access classified
information, help the detainee arrange for witnesses,
assist the detainee’s preparation of his case, and even aid
19 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
the detainee in presenting his evidence to the tribunal.
See Implementation Memo, supra, at 161. The provision
for a personal representative on this order is one of several
ways in which the CSRT procedures are more generous
than those provided prisoners of war under Army Regula
tion 190–8.
Keep in mind that all this is just at the CSRT stage.
Detainees receive additional process before the D. C.
Circuit, including full access to appellate counsel and the
right to challenge the factual and legal bases of their
detentions. DTA §1005(e)(2)(C) empowers the Court of
Appeals to determine not only whether the CSRT observed
the “procedures specified by the Secretary of Defense,” but
also “whether the use of such standards and procedures
. . . is consistent with the Constitution and laws of the
United States.” 119 Stat. 2742. These provisions permit
detainees to dispute the sufficiency of the evidence against
them. They allow detainees to challenge a CSRT panel’s
interpretation of any relevant law, and even the constitu
tionality of the CSRT proceedings themselves. This in
cludes, as the Solicitor General acknowledges, the ability
to dispute the Government’s right to detain alleged com
batants in the first place, and to dispute the Government’s
definition of “enemy combatant.” Brief for Federal Re
spondents 59. All this before an Article III court—plainly
a neutral decisionmaker.
All told, the DTA provides the prisoners held at Guan
tanamo Bay adequate opportunity to contest the bases of
their detentions, which is all habeas corpus need allow.
The DTA provides more opportunity and more process, in
fact, than that afforded prisoners of war or any other
alleged enemy combatants in history.
D
Despite these guarantees, the Court finds the DTA
system an inadequate habeas substitute, for one central
20 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
reason: Detainees are unable to introduce at the appeal
stage exculpatory evidence discovered after the conclusion
of their CSRT proceedings. See ante, at 58. The Court
hints darkly that the DTA may suffer from other infirmi
ties, see ante, at 63 (“We do not imply DTA review would
be a constitutionally sufficient replacement for habeas
corpus but for these limitations on the detainee’s ability to
present exculpatory evidence”), but it does not bother to
name them, making a response a bit difficult. As it
stands, I can only assume the Court regards the supposed
defect it did identify as the gravest of the lot.
If this is the most the Court can muster, the ice beneath
its feet is thin indeed. As noted, the CSRT procedures
provide ample opportunity for detainees to introduce
exculpatory evidence—whether documentary in nature or
from live witnesses—before the military tribunals. See
infra, at 21–23; Implementation Memo, App. J to Pet. for
Cert. in No. 06–196, at 155–156. And if their ability to
introduce such evidence is denied contrary to the Consti
tution or laws of the United States, the D. C. Circuit has
the authority to say so on review.
Nevertheless, the Court asks us to imagine an instance
in which evidence is discovered after the CSRT panel
renders its decision, but before the Court of Appeals re
views the detainee’s case. This scenario, which of course
has not yet come to pass as no review in the D. C. Circuit
has occurred, provides no basis for rejecting the DTA as a
habeas substitute. While the majority is correct that the
DTA does not contemplate the introduction of “newly
discovered” evidence before the Court of Appeals, petition
ers and the Solicitor General agree that the DTA does
permit the D. C. Circuit to remand a detainee’s case for a
new CSRT determination. Brief for Petitioner Boumedi
ene et al. in No. 06–1195, at 30; Brief for Federal Respon
dents 60–61. In the event a detainee alleges that he has
obtained new and persuasive exculpatory evidence that
21 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
would have been considered by the tribunal below had it
only been available, the D. C. Circuit could readily remand
the case to the tribunal to allow that body to consider the
evidence in the first instance. The Court of Appeals could
later review any new or reinstated decision in light of the
supplemented record.
If that sort of procedure sounds familiar, it should.
Federal appellate courts reviewing factual determinations
follow just such a procedure in a variety of circumstances.
See, e.g., United States v. White, 492 F. 3d 380, 413 (CA6
2007) (remanding new-evidence claim to the district court
for a Brady evidentiary hearing); Avila v. Roe, 298 F. 3d
750, 754 (CA9 2002) (remanding habeas claim to the
district court for evidentiary hearing to clarify factual
record); United States v. Leone, 215 F. 3d 253, 256 (CA2
2000) (observing that when faced on direct appeal with an
underdeveloped claim for ineffective assistance of counsel,
the appellate court may remand to the district court for
necessary factfinding).
A remand is not the only relief available for detainees
caught in the Court’s hypothetical conundrum. The DTA
expressly directs the Secretary of Defense to “provide for
periodic review of any new evidence that may become
available relating to the enemy combatant status of a
detainee.” DTA §1005(a)(3). Regulations issued by the
Department of Defense provide that when a detainee puts
forward new, material evidence “not previously presented
to the detainee’s CSRT,” the Deputy Secretary of Defense
“‘will direct that a CSRT convene to reconsider the basis of
the detainee’s . . . status in light of the new information.’”
Office for the Administrative Review of the Detention of
Enemy Combatants, Instruction 5421.1, Procedure for
Review of “New Evidence” Relating to Enemy Combatant
(EC) Status ¶¶4(a)(1), 5(b) (May 7, 2007); Brief for Federal
Respondents 56, n. 30. Pursuant to DTA §1005(e)(2)(A),
the resulting CSRT determination is again reviewable in
22 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
full by the D. C. Circuit.2
In addition, DTA §1005(d)(1) further requires the De
partment of Defense to conduct a yearly review of the
status of each prisoner. See 119 Stat. 2741. The Deputy
Secretary of Defense has promulgated concomitant regula
tions establishing an Administrative Review Board to
assess “annually the need to continue to detain each en
emy combatant.” Deputy Secretary of Defense Order OSD
06942–04 (May 11, 2004), App. K to Pet. for Cert. in No.
06–1196, p. 189. In the words of the implementing order,
the purpose of this annual review is to afford every de
tainee the opportunity “to explain why he is no longer a
threat to the United States” and should be released. Ibid.
The Board’s findings are forwarded to a presidentially
appointed, Senate-confirmed civilian within the Depart
ment of Defense whom the Secretary of Defense has des
ignated to administer the review process. This designated
civilian official has the authority to order release upon the
Board’s recommendation. Id., at 201.
The Court’s hand wringing over the DTA’s treatment of
later-discovered exculpatory evidence is the most it has to
show after a roving search for constitutionally problematic
scenarios. But “[t]he delicate power of pronouncing an Act
of Congress unconstitutional,” we have said, “is not to be
exercised with reference to hypothetical cases thus imag
ined.” United States v. Raines, 362 U. S. 17, 22 (1960).
The Court today invents a sort of reverse facial challenge
——————
2
The Court wonders what might happen if the detainee puts forward
new material evidence but the Deputy Secretary refuses to convene a
new CSRT. See ante, at 62–63. The answer is that the detainee can
petition the D. C. Circuit for review. The DTA directs that the proce
dures for review of new evidence be included among “[t]he procedures
submitted under paragraph (1)(A)” governing CSRT review of enemy
combatant status §1405(a)(3), 119 Stat. 3476. It is undisputed that the
D. C. Circuit has statutory authority to review and enforce these
procedures. See DTA §1005(e)(2)(C)(i), id., at 2742.
23 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
and applies it with gusto: If there is any scenario in which
the statute might be constitutionally infirm, the law must
be struck down. Cf. United States v. Salerno, 481 U. S.
739, 745 (1987) (“A facial challenge . . . must establish that
no set of circumstances exists under which the Act would
be valid”); see also Washington v. Glucksberg, 521 U. S.
702, 739–740, and n. 7 (1997) (STEVENS, J., concurring in
judgments) (facial challenge must fail where the statute
has “‘plainly legitimate sweep’” (quoting Broadrick v.
Oklahoma, 413 U. S. 601, 615 (1973))). The Court’s new
method of constitutional adjudication only underscores its
failure to follow our usual procedures and require peti
tioners to demonstrate that they have been harmed by the
statute they challenge. In the absence of such a concrete
showing, the Court is unable to imagine a plausible hypo
thetical in which the DTA is unconstitutional.
E
The Court’s second criterion for an adequate substitute
is the “power to order the conditional release of an indi
vidual unlawfully detained.” Ante, at 50. As the Court
basically admits, the DTA can be read to permit the D. C.
Circuit to order release in light of our traditional princi
ples of construing statutes to avoid difficult constitutional
issues, when reasonably possible. See ante, at 56–57.
The Solicitor General concedes that remedial authority
of some sort must be implied in the statute, given that the
DTA—like the general habeas law itself, see 28 U. S. C.
§2243—provides no express remedy of any kind. Brief for
Federal Respondents 60–61. The parties agree that at the
least, the DTA empowers the D. C. Circuit to remand a
prisoner’s case to the CSRT with instructions to perform a
new status assessment. Brief for Petitioner Boumediene
et al. in No. 06–1195, at 30; Brief for Federal Respondents
60–61. To avoid constitutional infirmity, it is reasonable
to imply more, see Ashwander, 297 U. S., at 348 (Brandeis,
24 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
J., concurring) (“When the validity of an act of the Con
gress is drawn in question . . . it is a cardinal principle
that this Court will . . . ascertain whether a construction of
the statute is fairly possible by which the [constitutional]
question may be avoided” (internal quotation marks omit
ted)); see also St. Cyr, 533 U. S., at 299–300, especially in
view of the Solicitor General’s concession at oral argument
and in his Supplemental Brief that authority to release
might be read in the statute, see Tr. of Oral Arg. 37; Sup
plemental Brief for Federal Respondents 9.
The Court grudgingly suggests that “Congress’ silence
on the question of remedies suggests acquiescence to any
constitutionally required remedy.” Ante, at 58. But the
argument in favor of statutorily authorized release is
stronger than that. The DTA’s parallels to 28 U. S. C.
§2243 on this score are noteworthy. By way of remedy,
the general federal habeas statute provides only that the
court, having heard and determined the facts, shall “dis
pose of the matter as law and justice require.” Ibid. We
have long held, and no party here disputes, that this
includes the power to order release. See Wilkinson v.
Dotson, 544 U. S. 74, 79 (2005) (“[T]he writ’s history
makes clear that it traditionally has been accepted as the
specific instrument to obtain release from [unlawful]
confinement” (internal quotation marks omitted)).
The DTA can be similarly read. Because Congress
substituted DTA review for habeas corpus and because
the “unique purpose” of the writ is “to release the appli
cant . . . from unlawful confinement,” Allen v. McCurry,
449 U. S. 90, 98, n. 12 (1980), DTA §1005(e)(2) can and
should be read to confer on the Court of Appeals the
authority to order release in appropriate circumstances.
Section 1005(e)(2)(D) plainly contemplates release, ad
dressing the effect “release of [an] alien from the custody
of the Department of Defense” will have on the jurisdiction
of the court. 119 Stat. 2742–2743. This reading avoids
25 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
serious constitutional difficulty and is consistent with the
text of the statute.
The D. C. Circuit can thus order release, the CSRTs can
order release, and the head of the Administrative Review
Boards can, at the recommendation of those panels, order
release. These multiple release provisions within the DTA
system more than satisfy the majority’s requirement that
any tribunal substituting for a habeas court have the
authority to release the prisoner.
The basis for the Court’s contrary conclusion is summed
up in the following sentence near the end of its opinion:
“To hold that the detainees at Guantanamo may, under
the DTA, challenge the President’s legal authority to
detain them, contest the CSRT’s findings of fact, supple
ment the record on review with newly discovered or previ
ously unavailable evidence, and request an order of re
lease would come close to reinstating the §2241 habeas
corpus process Congress sought to deny them.” Ante, at
63. In other words, any interpretation of the statute that
would make it an adequate substitute for habeas must be
rejected, because Congress could not possibly have in
tended to enact an adequate substitute for habeas. The
Court could have saved itself a lot of trouble if it had
simply announced this Catch-22 approach at the begin
ning rather than the end of its opinion.
III
For all its eloquence about the detainees’ right to the
writ, the Court makes no effort to elaborate how exactly
the remedy it prescribes will differ from the procedural
protections detainees enjoy under the DTA. The Court
objects to the detainees’ limited access to witnesses and
classified material, but proposes no alternatives of its own.
Indeed, it simply ignores the many difficult questions its
holding presents. What, for example, will become of the
CSRT process? The majority says federal courts should
26 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
generally refrain from entertaining detainee challenges
until after the petitioner’s CSRT proceeding has finished.
See ante, at 66 (“[e]xcept in cases of undue delay”). But
to what deference, if any, is that CSRT determination
entitled?
There are other problems. Take witness availability.
What makes the majority think witnesses will become
magically available when the review procedure is labeled
“habeas”? Will the location of most of these witnesses
change—will they suddenly become easily susceptible to
service of process? Or will subpoenas issued by American
habeas courts run to Basra? And if they did, how would
they be enforced? Speaking of witnesses, will detainees be
able to call active-duty military officers as witnesses? If
not, why not?
The majority has no answers for these difficulties. What
it does say leaves open the distinct possibility that its
“habeas” remedy will, when all is said and done, end up
looking a great deal like the DTA review it rejects. See
ante, at 66 (opinion of the court) (“We recognize, however,
that the Government has a legitimate interest in protect
ing sources and methods of intelligence gathering, and we
expect that the District Court will use its discretion to
accommodate this interest to the greatest extent possi
ble”). But “[t]he role of the judiciary is limited to deter
mining whether the procedures meet the essential stan
dard of fairness under the Due Process Clause and does
not extend to imposing procedures that merely displace
congressional choices of policy.” Landon v. Plasencia, 459
U. S. 21, 34–35 (1982).
The majority rests its decision on abstract and hypo
thetical concerns. Step back and consider what, in the
real world, Congress and the Executive have actually
granted aliens captured by our Armed Forces overseas and
found to be enemy combatants:
• The right to hear the bases of the charges against
27 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
them, including a summary of any classified
evidence.
• The ability to challenge the bases of their detention
before military tribunals modeled after Geneva
Convention procedures. Some 38 detainees have
been released as a result of this process. Brief for
Federal Respondents 57, 60.
• The right, before the CSRT, to testify, introduce
evidence, call witnesses, question those the Gov
ernment calls, and secure release, if and when
appropriate.
• The right to the aid of a personal representative in
arranging and presenting their cases before a
CSRT.
• Before the D. C. Circuit, the right to employ coun
sel, challenge the factual record, contest the lower
tribunal’s legal determinations, ensure compliance
with the Constitution and laws, and secure release,
if any errors below establish their entitlement to
such relief.
In sum, the DTA satisfies the majority’s own criteria
for assessing adequacy. This statutory scheme provides
the combatants held at Guantanamo greater procedural
protections than have ever been afforded alleged enemy
detainees—whether citizens or aliens—in our national
history.
* * *
So who has won? Not the detainees. The Court’s analy
sis leaves them with only the prospect of further litigation
to determine the content of their new habeas right, fol
lowed by further litigation to resolve their particular cases,
followed by further litigation before the D. C. Circuit—
where they could have started had they invoked the DTA
procedure. Not Congress, whose attempt to “determine—
through democratic means—how best” to balance the
28 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
security of the American people with the detainees’ liberty
interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636
(2006) (BREYER, J., concurring), has been unceremoniously
brushed aside. Not the Great Writ, whose majesty is
hardly enhanced by its extension to a jurisdictionally
quirky outpost, with no tangible benefit to anyone. Not the
rule of law, unless by that is meant the rule of lawyers,
who will now arguably have a greater role than military
and intelligence officials in shaping policy for alien enemy
combatants. And certainly not the American people, who
today lose a bit more control over the conduct of this Na
tion’s foreign policy to unelected, politically unaccountable
judges.
I respectfully dissent.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
JUSTICE SCALIA, with whom THE CHIEF JUSTICE,
JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
Today, for the first time in our Nation’s history, the
Court confers a constitutional right to habeas corpus on
alien enemies detained abroad by our military forces in
the course of an ongoing war. THE CHIEF JUSTICE’s dis-
sent, which I join, shows that the procedures prescribed by
Congress in the Detainee Treatment Act provide the es-
sential protections that habeas corpus guarantees; there
has thus been no suspension of the writ, and no basis
exists for judicial intervention beyond what the Act allows.
My problem with today’s opinion is more fundamental
still: The writ of habeas corpus does not, and never has,
run in favor of aliens abroad; the Suspension Clause thus
has no application, and the Court’s intervention in this
military matter is entirely ultra vires.
2 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
I shall devote most of what will be a lengthy opinion to
the legal errors contained in the opinion of the Court.
Contrary to my usual practice, however, I think it appro-
priate to begin with a description of the disastrous conse-
quences of what the Court has done today.
I
America is at war with radical Islamists. The enemy
began by killing Americans and American allies abroad:
241 at the Marine barracks in Lebanon, 19 at the Khobar
Towers in Dhahran, 224 at our embassies in Dar es Sa-
laam and Nairobi, and 17 on the USS Cole in Yemen. See
National Commission on Terrorist Attacks upon the
United States, The 9/11 Commission Report, pp. 60–61,
70, 190 (2004). On September 11, 2001, the enemy
brought the battle to American soil, killing 2,749 at the
Twin Towers in New York City, 184 at the Pentagon in
Washington, D. C., and 40 in Pennsylvania. See id., at
552, n. 9. It has threatened further attacks against our
homeland; one need only walk about buttressed and barri-
caded Washington, or board a plane anywhere in the
country, to know that the threat is a serious one. Our
Armed Forces are now in the field against the enemy, in
Afghanistan and Iraq. Last week, 13 of our countrymen in
arms were killed.
The game of bait-and-switch that today’s opinion plays
upon the Nation’s Commander in Chief will make the war
harder on us. It will almost certainly cause more Ameri-
cans to be killed. That consequence would be tolerable if
necessary to preserve a time-honored legal principle vital
to our constitutional Republic. But it is this Court’s bla-
tant abandonment of such a principle that produces the
decision today. The President relied on our settled prece-
dent in Johnson v. Eisentrager, 339 U. S. 763 (1950), when
he established the prison at Guantanamo Bay for enemy
aliens. Citing that case, the President’s Office of Legal
3 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
Counsel advised him “that the great weight of legal au-
thority indicates that a federal district court could not
properly exercise habeas jurisdiction over an alien de-
tained at [Guantanamo Bay].” Memorandum from Patrick
F. Philbin and John C. Yoo, Deputy Assistant Attorneys
General, Office of Legal Counsel, to William J. Haynes II,
General Counsel, Dept. of Defense (Dec. 28, 2001). Had
the law been otherwise, the military surely would not have
transported prisoners there, but would have kept them in
Afghanistan, transferred them to another of our foreign
military bases, or turned them over to allies for detention.
Those other facilities might well have been worse for the
detainees themselves.
In the long term, then, the Court’s decision today ac-
complishes little, except perhaps to reduce the well-being
of enemy combatants that the Court ostensibly seeks to
protect. In the short term, however, the decision is devas-
tating. At least 30 of those prisoners hitherto released
from Guantanamo Bay have returned to the battlefield.
See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Views
of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn)
(hereinafter Minority Report). Some have been captured
or killed. See ibid.; see also Mintz, Released Detainees
Rejoining the Fight, Washington Post, Oct. 22, 2004, pp.
A1, A12. But others have succeeded in carrying on their
atrocities against innocent civilians. In one case, a de-
tainee released from Guantanamo Bay masterminded the
kidnapping of two Chinese dam workers, one of whom was
later shot to death when used as a human shield against
Pakistani commandoes. See Khan & Lancaster, Paki-
stanis Rescue Hostage; 2nd Dies, Washington Post, Oct.
15, 2004, p. A18. Another former detainee promptly re-
sumed his post as a senior Taliban commander and mur-
dered a United Nations engineer and three Afghan sol-
diers. Mintz, supra. Still another murdered an Afghan
judge. See Minority Report 13. It was reported only last
4 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
month that a released detainee carried out a suicide bomb-
ing against Iraqi soldiers in Mosul, Iraq. See White, Ex-
Guantanamo Detainee Joined Iraq Suicide Attack, Wash-
ington Post, May 8, 2008, p. A18.
These, mind you, were detainees whom the military had
concluded were not enemy combatants. Their return to
the kill illustrates the incredible difficulty of assessing
who is and who is not an enemy combatant in a foreign
theater of operations where the environment does not lend
itself to rigorous evidence collection. Astoundingly, the
Court today raises the bar, requiring military officials to
appear before civilian courts and defend their decisions
under procedural and evidentiary rules that go beyond
what Congress has specified. As THE CHIEF JUSTICE’s
dissent makes clear, we have no idea what those proce-
dural and evidentiary rules are, but they will be deter-
mined by civil courts and (in the Court’s contemplation at
least) will be more detainee-friendly than those now ap-
plied, since otherwise there would be no reason to hold the
congressionally prescribed procedures unconstitutional. If
they impose a higher standard of proof (from foreign bat-
tlefields) than the current procedures require, the number
of the enemy returned to combat will obviously increase.
But even when the military has evidence that it can
bring forward, it is often foolhardy to release that evidence
to the attorneys representing our enemies. And one esca-
lation of procedures that the Court is clear about is afford-
ing the detainees increased access to witnesses (perhaps
troops serving in Afghanistan?) and to classified informa-
tion. See ante, at 54–55. During the 1995 prosecution of
Omar Abdel Rahman, federal prosecutors gave the names
of 200 unindicted co-conspirators to the “Blind Sheik’s”
defense lawyers; that information was in the hands of
Osama Bin Laden within two weeks. See Minority Report
14–15. In another case, trial testimony revealed to the
enemy that the United States had been monitoring their
5 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
cellular network, whereupon they promptly stopped using
it, enabling more of them to evade capture and continue
their atrocities. See id., at 15.
And today it is not just the military that the Court
elbows aside. A mere two Terms ago in Hamdan v. Rums-
feld, 548 U. S. 557 (2006), when the Court held (quite
amazingly) that the Detainee Treatment Act of 2005 had
not stripped habeas jurisdiction over Guantanamo peti-
tioners’ claims, four Members of today’s five-Justice major-
ity joined an opinion saying the following:
“Nothing prevents the President from returning to
Congress to seek the authority [for trial by military
commission] he believes necessary.
“Where, as here, no emergency prevents consulta-
tion with Congress, judicial insistence upon that con-
sultation does not weaken our Nation’s ability to deal
with danger. To the contrary, that insistence
strengthens the Nation’s ability to determine—
through democratic means—how best to do so. The
Constitution places its faith in those democratic
means.” Id., at 636 (BREYER, J., concurring).1
Turns out they were just kidding. For in response, Con-
gress, at the President’s request, quickly enacted the
Military Commissions Act, emphatically reasserting that
it did not want these prisoners filing habeas petitions. It
is therefore clear that Congress and the Executive—both
political branches—have determined that limiting the role
——————
1
Even today, the Court cannot resist striking a pose of faux deference
to Congress and the President. Citing the above quoted passage, the
Court says: “The political branches, consistent with their independent
obligations to interpret and uphold the Constitution, can engage in a
genuine debate about how best to preserve constitutional values while
protecting the Nation from terrorism.” Ante, at 69. Indeed. What the
Court apparently means is that the political branches can debate, after
which the Third Branch will decide.
6 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
of civilian courts in adjudicating whether prisoners cap-
tured abroad are properly detained is important to success
in the war that some 190,000 of our men and women are
now fighting. As the Solicitor General argued, “the Mili-
tary Commissions Act and the Detainee Treatment Act . . .
represent an effort by the political branches to strike an
appropriate balance between the need to preserve liberty
and the need to accommodate the weighty and sensitive
governmental interests in ensuring that those who have in
fact fought with the enemy during a war do not return to
battle against the United States.” Brief for Respondents
10–11 (internal quotation marks omitted).
But it does not matter. The Court today decrees that no
good reason to accept the judgment of the other two
branches is “apparent.” Ante, at 40. “The Government,” it
declares, “presents no credible arguments that the mili-
tary mission at Guantanamo would be compromised if
habeas corpus courts had jurisdiction to hear the detain-
ees’ claims.” Id., at 39. What competence does the Court
have to second-guess the judgment of Congress and the
President on such a point? None whatever. But the Court
blunders in nonetheless. Henceforth, as today’s opinion
makes unnervingly clear, how to handle enemy prisoners
in this war will ultimately lie with the branch that knows
least about the national security concerns that the subject
entails.
II
A
The Suspension Clause of the Constitution provides:
“The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it.” Art. I, §9, cl. 2. As a
court of law operating under a written Constitution, our
role is to determine whether there is a conflict between
that Clause and the Military Commissions Act. A conflict
7 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
arises only if the Suspension Clause preserves the privi-
lege of the writ for aliens held by the United States mili-
tary as enemy combatants at the base in Guantanamo
Bay, located within the sovereign territory of Cuba.
We have frequently stated that we owe great deference
to Congress’s view that a law it has passed is constitu-
tional. See, e.g., Department of Labor v. Triplett, 494 U. S.
715, 721 (1990); United States v. National Dairy Products
Corp., 372 U. S. 29, 32 (1963); see also American Commu-
nications Assn. v. Douds, 339 U. S. 382, 435 (1950) (Jack-
son, J., concurring in part and dissenting in part). That is
especially so in the area of foreign and military affairs;
“perhaps in no other area has the Court accorded Congress
greater deference.” Rostker v. Goldberg, 453 U. S. 57, 64–
65 (1981). Indeed, we accord great deference even when
the President acts alone in this area. See Department of
Navy v. Egan, 484 U. S. 518, 529–530 (1988); Regan v.
Wald, 468 U. S. 222, 243 (1984).
In light of those principles of deference, the Court’s
conclusion that “the common law [does not] yiel[d] a defi-
nite answer to the questions before us,” ante, at 22, leaves
it no choice but to affirm the Court of Appeals. The writ
as preserved in the Constitution could not possibly extend
farther than the common law provided when that Clause
was written. See Part III, infra. The Court admits that it
cannot determine whether the writ historically extended
to aliens held abroad, and it concedes (necessarily) that
Guantanamo Bay lies outside the sovereign territory of
the United States. See ante, at 22–23; Rasul v. Bush, 542
U. S. 466, 500–501 (2004) (SCALIA, J., dissenting). To-
gether, these two concessions establish that it is (in the
Court’s view) perfectly ambiguous whether the common-
law writ would have provided a remedy for these petition-
ers. If that is so, the Court has no basis to strike down the
Military Commissions Act, and must leave undisturbed
8 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
the considered judgment of the coequal branches.2
How, then, does the Court weave a clear constitutional
prohibition out of pure interpretive equipoise? The Court
resorts to “fundamental separation-of-powers principles”
to interpret the Suspension Clause. Ante, at 25. Accord-
ing to the Court, because “the writ of habeas corpus is
itself an indispensable mechanism for monitoring the
separation of powers,” the test of its extraterritorial reach
“must not be subject to manipulation by those whose
power it is designed to restrain.” Ante, at 36.
That approach distorts the nature of the separation of
powers and its role in the constitutional structure. The
“fundamental separation-of-powers principles” that the
Constitution embodies are to be derived not from some
judicially imagined matrix, but from the sum total of the
individual separation-of-powers provisions that the Con-
stitution sets forth. Only by considering them one-by-one
does the full shape of the Constitution’s separation-of-
powers principles emerge. It is nonsensical to interpret
those provisions themselves in light of some general
“separation-of-powers principles” dreamed up by the
Court. Rather, they must be interpreted to mean what
they were understood to mean when the people ratified
them. And if the understood scope of the writ of habeas
corpus was “designed to restrain” (as the Court says) the
actions of the Executive, the understood limits upon that
——————
2
The opinion seeks to avoid this straightforward conclusion by saying
that the Court has been “careful not to foreclose the possibility that the
protections of the Suspension Clause have expanded along with post-
1789 developments that define the present scope of the writ.” Ante, at
15–16 (citing INS v. St. Cyr, 533 U. S. 289 300–301 (2001)). But not
foreclosing the possibility that they have expanded is not the same as
demonstrating (or at least holding without demonstration, which seems
to suffice for today’s majority) that they have expanded. The Court
must either hold that the Suspension Clause has “expanded” in its
application to aliens abroad, or acknowledge that it has no basis to set
aside the actions of Congress and the President. It does neither.
9 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
scope were (as the Court seems not to grasp) just as much
“designed to restrain” the incursions of the Third Branch.
“Manipulation” of the territorial reach of the writ by the
Judiciary poses just as much a threat to the proper sepa-
ration of powers as “manipulation” by the Executive. As I
will show below, manipulation is what is afoot here. The
understood limits upon the writ deny our jurisdiction over
the habeas petitions brought by these enemy aliens, and
entrust the President with the crucial wartime determina-
tions about their status and continued confinement.
B
The Court purports to derive from our precedents a
“functional” test for the extraterritorial reach of the writ,
ante, at 34, which shows that the Military Commissions
Act unconstitutionally restricts the scope of habeas. That
is remarkable because the most pertinent of those prece-
dents, Johnson v. Eisentrager, 339 U. S. 763, conclusively
establishes the opposite. There we were confronted with
the claims of 21 Germans held at Landsberg Prison, an
American military facility located in the American Zone of
occupation in postwar Germany. They had been captured
in China, and an American military commission sitting
there had convicted them of war crimes—collaborating
with the Japanese after Germany’s surrender. Id., at 765–
766. Like the petitioners here, the Germans claimed that
their detentions violated the Constitution and interna-
tional law, and sought a writ of habeas corpus. Writing
for the Court, Justice Jackson held that American courts
lacked habeas jurisdiction:
“We are cited to [sic] no instance where a court, in
this or any other country where the writ is known, has
issued it on behalf of an alien enemy who, at no rele-
vant time and in no stage of his captivity, has been
within its territorial jurisdiction. Nothing in the text
of the Constitution extends such a right, nor does any-
10 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
thing in our statutes.” Id., at 768.
Justice Jackson then elaborated on the historical scope
of the writ:
“The alien, to whom the United States has been tra-
ditionally hospitable, has been accorded a generous
and ascending scale of rights as he increases his iden-
tity with our society. . . .
“But, in extending constitutional protections beyond
the citizenry, the Court has been at pains to point out
that it was the alien’s presence within its territorial
jurisdiction that gave the Judiciary power to act.” Id.,
at 770–771.
Lest there be any doubt about the primacy of territorial
sovereignty in determining the jurisdiction of a habeas
court over an alien, Justice Jackson distinguished two
cases in which aliens had been permitted to seek habeas
relief, on the ground that the prisoners in those cases were
in custody within the sovereign territory of the United
States. Id., at 779–780 (discussing Ex parte Quirin, 317
U. S. 1 (1942), and In re Yamashita, 327 U. S. 1 (1946)).
“By reason of our sovereignty at that time over [the Phil-
ippines],” Jackson wrote, “Yamashita stood much as did
Quirin before American courts.” 339 U. S., at 780.
Eisentrager thus held—held beyond any doubt—that the
Constitution does not ensure habeas for aliens held by the
United States in areas over which our Government is not
sovereign.3
——————
3
In its failed attempt to distinguish Eisentrager, the Court comes up
with the notion that “de jure sovereignty” is simply an additional factor
that can be added to (presumably) “de facto sovereignty” (i.e., practical
control) to determine the availability of habeas for aliens, but that it is
not a necessary factor, whereas de facto sovereignty is. It is perhaps in
this de facto sense, the Court speculates, that Eisentrager found “sover-
eignty” lacking. See ante, at 23–25. If that were so, one would have
expected Eisentrager to explain in some detail why the United States
11 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
The Court would have us believe that Eisentrager rested
on “[p]ractical considerations,” such as the “difficulties of
ordering the Government to produce the prisoners in a
habeas corpus proceeding.” Ante, at 32. Formal sover-
eignty, says the Court, is merely one consideration “that
bears upon which constitutional guarantees apply” in a
given location. Ante, at 34. This is a sheer rewriting of
the case. Eisentrager mentioned practical concerns, to be
sure—but not for the purpose of determining under what
circumstances American courts could issue writs of habeas
corpus for aliens abroad. It cited them to support its
holding that the Constitution does not empower courts to
issue writs of habeas corpus to aliens abroad in any cir-
cumstances. As Justice Black accurately said in dissent,
“the Court’s opinion inescapably denies courts power to
afford the least bit of protection for any alien who is sub-
ject to our occupation government abroad, even if he is
neither enemy nor belligerent and even after peace is
officially declared.” 339 U. S., at 796.
The Court also tries to change Eisentrager into a “func-
——————
did not have practical control over the American zone of occupation. It
did not (and probably could not). Of course this novel de facto-de jure
approach does not explain why the writ never issued to Scotland, which
was assuredly within the de facto control of the English crown. See
infra, at 22.
To support its holding that de facto sovereignty is relevant to the
reach of habeas corpus, the Court cites our decision in Fleming v. Page,
9 How. 603 (1850), a case about the application of a customs statute to
a foreign port occupied by U. S. forces. See ante, at 24. The case used
the phrase “subject to the sovereignty and dominion of the United
States” to refer to the United States’ practical control over a “foreign
country.” 9 How., at 614. But Fleming went on to explain that because
the port remained part of the “enemy’s country,” even though under
U. S. military occupation, “its subjugation did not compel the United
States, while they held it, to regard it as part of their dominions, nor to
give to it any form of civil government, nor to extend to it our laws.”
Id., at 618. If Fleming is relevant to these cases at all, it undermines
the Court’s holding.
12 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
tional” test by quoting a paragraph that lists the charac-
teristics of the German petitioners:
“To support [the] assumption [of a constitutional right
to habeas corpus] we must hold that a prisoner of our
military authorities is constitutionally entitled to the
writ, even though he (a) is an enemy alien; (b) has
never been or resided in the United States; (c) was
captured outside of our territory and there held in
military custody as a prisoner of war; (d) was tried
and convicted by a Military Commission sitting out-
side the United States; (e) for offenses against laws of
war committed outside the United States; (f) and is at
all times imprisoned outside the United States.” Id.,
at 777 (quoted in part, ante, at 36).
But that paragraph is introduced by a sentence stating
that “[t]he foregoing demonstrates how much further we
must go if we are to invest these enemy aliens, resident,
captured and imprisoned abroad, with standing to demand
access to our courts.” 339 U. S., at 777 (emphasis added).
How much further than what? Further than the rule set
forth in the prior section of the opinion, which said that “in
extending constitutional protections beyond the citizenry,
the Court has been at pains to point out that it was the
alien’s presence within its territorial jurisdiction that gave
the Judiciary power to act.” Id., at 771. In other words,
the characteristics of the German prisoners were set forth,
not in application of some “functional” test, but to show
that the case before the Court represented an a fortiori
application of the ordinary rule. That is reaffirmed by the
sentences that immediately follow the listing of the Ger-
mans’ characteristics:
“We have pointed out that the privilege of litigation
has been extended to aliens, whether friendly or en-
emy, only because permitting their presence in the
country implied protection. No such basis can be in-
13 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
voked here, for these prisoners at no relevant time
were within any territory over which the United
States is sovereign, and the scenes of their offense,
their capture, their trial and their punishment were
all beyond the territorial jurisdiction of any court of
the United States.” Id., at 777–778.
Eisentrager nowhere mentions a “functional” test, and the
notion that it is based upon such a principle is patently
false.4
The Court also reasons that Eisentrager must be read as
a “functional” opinion because of our prior decisions in the
Insular Cases. See ante, at 26–29. It cites our statement
in Balzac v. Porto Rico, 258 U. S. 298, 312 (1922), that
“‘the real issue in the Insular Cases was not whether the
Constitution extended to the Philippines or Porto Rico
when we went there, but which of its provisions were
——————
4
JUSTICE SOUTER’s concurrence relies on our decision four Terms ago
in Rasul v. Bush, 542 U. S. 466 (2004), where the Court interpreted the
habeas statute to extend to aliens held at Guantanamo Bay. He thinks
that “no one who reads the Court’s opinion in Rasul could seriously
doubt that the jurisdictional question must be answered the same way
in purely constitutional cases.” Ante, at 1–2. But Rasul was devoted
primarily to an explanation of why Eisentrager’s statutory holding no
longer controlled given our subsequent decision in Braden v. 30th
Judicial Circuit Court of Ky., 410 U. S. 484 (1973). See Rasul, supra, at
475–479. And the opinion of the Court today—which JUSTICE SOUTER
joins—expressly rejects the historical evidence cited in Rasul to support
its conclusion about the reach of habeas corpus. Compare id., at 481–
482, with ante, at 18. Moreover, even if one were to accept as true what
JUSTICE SOUTER calls Rasul’s “well-considered” dictum, that does not
explain why Eisentrager’s constitutional holding must be overruled or
how it can be distinguished. (After all, Rasul distinguished Eisen-
trager’s statutory holding on a ground inapplicable to its constitutional
holding.) In other words, even if the Court were to conclude that
Eisentrager’s rule was incorrect as an original matter, the Court would
have to explain the justification for departing from that precedent. It
therefore cannot possibly be true that Rasul controls this case, as
JUSTICE SOUTER suggests.
14 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
applicable by way of limitation upon the exercise of execu-
tive and legislative power in dealing with new conditions
and requirements.’” Ante, at 28. But the Court conven-
iently omits Balzac’s predicate to that statement: “The
Constitution of the United States is in force in Porto Rico
as it is wherever and whenever the sovereign power of that
government is exerted.” 258 U. S., at 312 (emphasis
added). The Insular Cases all concerned territories ac-
quired by Congress under its Article IV authority and
indisputably part of the sovereign territory of the United
States. See United States v. Verdugo-Urquidez, 494 U. S.
259, 268 (1990); Reid v. Covert, 354 U. S. 1, 13 (1957)
(plurality opinion of Black, J.). None of the Insular Cases
stands for the proposition that aliens located outside U. S.
sovereign territory have constitutional rights, and Eisen-
trager held just the opposite with respect to habeas corpus.
As I have said, Eisentrager distinguished Yamashita on
the ground of “our sovereignty [over the Philippines],” 339
U. S., at 780.
The Court also relies on the “[p]ractical considerations”
that influenced our decision in Reid v. Covert, supra. See
ante, at 29–32. But all the Justices in the majority except
Justice Frankfurter limited their analysis to the rights of
citizens abroad. See Reid, supra, at 5–6 (plurality opinion
of Black, J.); id., at 74–75 (Harlan, J., concurring in re-
sult). (Frankfurter limited his analysis to the even nar-
rower class of civilian dependents of American military
personnel abroad, see id., at 45 (opinion concurring in
result).) In trying to wring some kind of support out of
Reid for today’s novel holding, the Court resorts to a chain
of logic that does not hold. The members of the Reid
majority, the Court says, were divided over whether In re
Ross, 140 U. S. 453 (1891), which had (according to the
Court) held that under certain circumstances American
citizens abroad do not have indictment and jury-trial
rights, should be overruled. In the Court’s view, the Reid
15 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
plurality would have overruled Ross, but Justices Frank-
furter and Harlan preferred to distinguish it. The upshot:
“If citizenship had been the only relevant factor in the
case, it would have been necessary for the Court to over-
turn Ross, something Justices Harlan and Frankfurter
were unwilling to do.” Ante, at 32. What, exactly, is this
point supposed to prove? To say that “practical considera-
tions” determine the precise content of the constitutional
protections American citizens enjoy when they are abroad
is quite different from saying that “practical considera-
tions” determine whether aliens abroad enjoy any consti-
tutional protections whatever, including habeas. In other
words, merely because citizenship is not a sufficient factor
to extend constitutional rights abroad does not mean that
it is not a necessary one.
The Court tries to reconcile Eisentrager with its holding
today by pointing out that in postwar Germany, the
United States was “answerable to its Allies” and did not
“pla[n] a long-term occupation.” Ante, at 38, 39. Those
factors were not mentioned in Eisentrager. Worse still, it
is impossible to see how they relate to the Court’s asserted
purpose in creating this “functional” test—namely, to
ensure a judicial inquiry into detention and prevent the
political branches from acting with impunity. Can it
possibly be that the Court trusts the political branches
more when they are beholden to foreign powers than when
they act alone?
After transforming the a fortiori elements discussed
above into a “functional” test, the Court is still left with
the difficulty that most of those elements exist here as
well with regard to all the detainees. To make the appli-
cation of the newly crafted “functional” test produce a
different result in the present cases, the Court must rely
upon factors (d) and (e): The Germans had been tried by a
military commission for violations of the laws of war; the
present petitioners, by contrast, have been tried by a
16 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
Combatant Status Review Tribunal (CSRT) whose proce-
dural protections, according to the Court’s ipse dixit, “fall
well short of the procedures and adversarial mechanisms
that would eliminate the need for habeas corpus review.”
Ante, at 37. But no one looking for “functional” equiva-
lents would put Eisentrager and the present cases in the
same category, much less place the present cases in a
preferred category. The difference between them cries out
for lesser procedures in the present cases. The prisoners
in Eisentrager were prosecuted for crimes after the cessa-
tion of hostilities; the prisoners here are enemy combat-
ants detained during an ongoing conflict. See Hamdi v.
Rumsfeld, 542 U. S. 507, 538 (2004) (plurality opinion)
(suggesting, as an adequate substitute for habeas corpus,
the use of a tribunal akin to a CSRT to authorize the
detention of American citizens as enemy combatants dur-
ing the course of the present conflict).
The category of prisoner comparable to these detainees
are not the Eisentrager criminal defendants, but the more
than 400,000 prisoners of war detained in the United
States alone during World War II. Not a single one was
accorded the right to have his detention validated by a
habeas corpus action in federal court—and that despite
the fact that they were present on U. S. soil. See Bradley,
The Military Commissions Act, Habeas Corpus, and the
Geneva Conventions, 101 Am. J. Int’l L. 322, 338 (2007).
The Court’s analysis produces a crazy result: Whereas
those convicted and sentenced to death for war crimes are
without judicial remedy, all enemy combatants detained
during a war, at least insofar as they are confined in an
area away from the battlefield over which the United
States exercises “absolute and indefinite” control, may
seek a writ of habeas corpus in federal court. And, as an
even more bizarre implication from the Court’s reasoning,
those prisoners whom the military plans to try by full-
dress Commission at a future date may file habeas peti-
17 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
tions and secure release before their trials take place.
There is simply no support for the Court’s assertion that
constitutional rights extend to aliens held outside U. S.
sovereign territory, see Verdugo-Urquidez, 494 U. S., at
271, and Eisentrager could not be clearer that the privilege
of habeas corpus does not extend to aliens abroad. By
blatantly distorting Eisentrager, the Court avoids the
difficulty of explaining why it should be overruled. See
Planned Parenthood of Southeastern Pa. v. Casey, 505
U. S. 833, 854–855 (1992) (identifying stare decisis fac-
tors). The rule that aliens abroad are not constitutionally
entitled to habeas corpus has not proved unworkable in
practice; if anything, it is the Court’s “functional” test that
does not (and never will) provide clear guidance for the
future. Eisentrager forms a coherent whole with the ac-
cepted proposition that aliens abroad have no substantive
rights under our Constitution. Since it was announced, no
relevant factual premises have changed. It has engen-
dered considerable reliance on the part of our military.
And, as the Court acknowledges, text and history do not
clearly compel a contrary ruling. It is a sad day for the
rule of law when such an important constitutional pre-
cedent is discarded without an apologia, much less an
apology.
C
What drives today’s decision is neither the meaning of
the Suspension Clause, nor the principles of our prece-
dents, but rather an inflated notion of judicial supremacy.
The Court says that if the extraterritorial applicability of
the Suspension Clause turned on formal notions of sover-
eignty, “it would be possible for the political branches to
govern without legal constraint” in areas beyond the
sovereign territory of the United States. Ante, at 35. That
cannot be, the Court says, because it is the duty of this
Court to say what the law is. Id., at 35–36. It would be
18 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
difficult to imagine a more question-begging analysis.
“The very foundation of the power of the federal courts to
declare Acts of Congress unconstitutional lies in the power
and duty of those courts to decide cases and controversies
properly before them.” United States v. Raines, 362 U. S.
17, 20–21 (1960) (citing Marbury v. Madison, 1 Cranch
137 (1803); emphasis added). Our power “to say what the
law is” is circumscribed by the limits of our statutorily and
constitutionally conferred jurisdiction. See Lujan v. De-
fenders of Wildlife, 504 U. S. 555, 573–578 (1992). And
that is precisely the question in these cases: whether the
Constitution confers habeas jurisdiction on federal courts
to decide petitioners’ claims. It is both irrational and
arrogant to say that the answer must be yes, because
otherwise we would not be supreme.
But so long as there are some places to which habeas
does not run—so long as the Court’s new “functional” test
will not be satisfied in every case—then there will be cir-
cumstances in which “it would be possible for the political
branches to govern without legal constraint.” Or, to put it
more impartially, areas in which the legal determinations
of the other branches will be (shudder!) supreme. In other
words, judicial supremacy is not really assured by the
constitutional rule that the Court creates. The gap be-
tween rationale and rule leads me to conclude that the
Court’s ultimate, unexpressed goal is to preserve the
power to review the confinement of enemy prisoners held
by the Executive anywhere in the world. The “functional”
test usefully evades the precedential landmine of Eisen-
trager but is so inherently subjective that it clears a wide
path for the Court to traverse in the years to come.
III
Putting aside the conclusive precedent of Eisentrager, it
is clear that the original understanding of the Suspension
Clause was that habeas corpus was not available to aliens
19 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
abroad, as Judge Randolph’s thorough opinion for the
court below detailed. See 476 F. 3d 981, 988–990 (CADC
2007).
The Suspension Clause reads: “The Privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may
require it.” U. S. Const., Art. I, §9, cl. 2. The proper
course of constitutional interpretation is to give the text
the meaning it was understood to have at the time of its
adoption by the people. See, e.g., Crawford v. Washington,
541 U. S. 36, 54 (2004). That course is especially de-
manded when (as here) the Constitution limits the power
of Congress to infringe upon a pre-existing common-law
right. The nature of the writ of habeas corpus that cannot
be suspended must be defined by the common-law writ
that was available at the time of the founding. See
McNally v. Hill, 293 U. S. 131, 135–136 (1934); see also
INS v. St. Cyr, 533 U. S. 289, 342 (2001) (SCALIA, J., dis-
senting); D’Oench, Duhme & Co. v. FDIC, 315 U. S. 447,
471, n. 9 (1942) (Jackson, J., concurring).
It is entirely clear that, at English common law, the writ
of habeas corpus did not extend beyond the sovereign
territory of the Crown. To be sure, the writ had an “ex-
traordinary territorial ambit,” because it was a so-called
“prerogative writ,” which, unlike other writs, could extend
beyond the realm of England to other places where the
Crown was sovereign. R. Sharpe, The Law of Habeas
Corpus 188 (2d ed. 1989) (hereinafter Sharpe); see also
Note on the Power of the English Courts to Issue the Writ
of Habeas to Places Within the Dominions of the Crown,
But Out of England, and On the Position of Scotland in
Relation to that Power, 8 Jurid. Rev. 157 (1896) (hereinaf-
ter Note on Habeas); King v. Cowle, 2 Burr. 834, 855–856,
97 Eng. Rep. 587, 599 (K. B. 1759).
But prerogative writs could not issue to foreign coun-
tries, even for British subjects; they were confined to the
20 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
King’s dominions—those areas over which the Crown was
sovereign. See Sharpe 188; 2 R. Chambers, A Course of
Lectures on the English Law 1767–1773, pp. 7–8 (Curley
ed. 1986); 3 W. Blackstone, Commentaries on the Laws of
England 131 (1768) (hereinafter Blackstone). Thus, the
writ has never extended to Scotland, which, although
united to England when James I succeeded to the English
throne in 1603, was considered a foreign dominion under a
different Crown—that of the King of Scotland. Sharpe
191; Note on Habeas 158.5 That is why Lord Mansfield
wrote that “[t]o foreign dominions, which belong to a
prince who succeeds to the throne of England, this Court
has no power to send any writ of any kind. We cannot
send a habeas corpus to Scotland . . . .” Cowle, supra, at
856, 97 Eng. Rep., at 599–600.
The common-law writ was codified by the Habeas Cor-
pus Act of 1679, which “stood alongside Magna Charta and
the English Bill of Rights of 1689 as a towering common
law lighthouse of liberty—a beacon by which framing
lawyers in America consciously steered their course.”
Amar, Sixth Amendment First Principles, 84 Geo. L. J.
641, 663 (1996). The writ was established in the Colonies
beginning in the 1690’s and at least one colony adopted
the 1679 Act almost verbatim. See Dept. of Political Sci-
ence, Okla. State Univ., Research Reports, No. 1, R.
Walker, The American Reception of the Writ of Liberty
12–16 (1961). Section XI of the Act stated where the writ
could run. It “may be directed and run into any county
palatine, the cinque-ports, or other privileged places
within the kingdom of England, dominion of Wales, or
town of Berwick upon Tweed, and the islands of Jersey or
Guernsey.” 31 Car. 2, ch. 2. The cinque-ports and county
palatine were so-called “exempt jurisdictions”—franchises
——————
5
My dissent in Rasul v. Bush, 542 U. S. 466, 503 (2004), mistakenly
included Scotland among the places to which the writ could run.
21 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
granted by the Crown in which local authorities would
manage municipal affairs, including the court system, but
over which the Crown maintained ultimate sovereignty.
See 3 Blackstone 78–79. The other places listed—Wales,
Berwick-upon-Tweed, Jersey, and Guernsey—were terri-
tories of the Crown even though not part England proper.
See Cowle, supra, at 853–854, 97 Eng. Rep., at 598 (Wales
and Berwick-upon-Tweed); 1 Blackstone 104 (Jersey and
Guernsey); Sharpe 192 (same).
The Act did not extend the writ elsewhere, even though
the existence of other places to which British prisoners
could be sent was recognized by the Act. The possibility of
evading judicial review through such spiriting-away was
eliminated, not by expanding the writ abroad, but by
forbidding (in Article XII of the Act) the shipment of pris-
oners to places where the writ did not run or where its
execution would be difficult. See 31 Car. 2, ch. 2; see
generally Nutting, The Most Wholesome Law—The Ha-
beas Corpus Act of 1679, 65 Am. Hist. Rev. 527 (1960).
The Habeas Corpus Act, then, confirms the consensus
view of scholars and jurists that the writ did not run
outside the sovereign territory of the Crown. The Court
says that the idea that “jurisdiction followed the King’s
officers” is an equally credible view. Ante, at 16. It is not
credible at all. The only support the Court cites for it is a
page in Boumediene’s brief, which in turn cites this
Court’s dicta in Rasul, 542 U. S., at 482, mischaracterizing
Lord Mansfield’s statement that the writ ran to any place
that was “under the subjection of the Crown,” Cowle,
supra, at 856, 97 Eng. Rep., at 599. It is clear that Lord
Mansfield was saying that the writ extended outside the
realm of England proper, not outside the sovereign terri-
tory of the Crown.6
——————
6
The dicta in Rasul also cited Ex parte Mwenya, [1960] 1 Q. B. 241,
(C. A.), but as I explained in dissent, “[e]ach judge [in Mwenya] made
22 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
The Court dismisses the example of Scotland on the
grounds that Scotland had its own judicial system and
that the writ could not, as a practical matter, have been
enforced there. Ante, at 20. Those explanations are to-
tally unpersuasive. The existence of a separate court
system was never a basis for denying the power of a court
to issue the writ. See 9 W. Holdsworth, A History of Eng-
lish Law 124 (3d ed. 1944) (citing Ex parte Anderson, 3 El.
and El. 487 (1861)). And as for logistical problems, the
same difficulties were present for places like the Channel
Islands, where the writ did run. The Court attempts to
draw an analogy between the prudential limitations on
issuing the writ to such remote areas within the sovereign
territory of the Crown and the jurisdictional prohibition on
issuing the writ to Scotland. See ante, at 19–20. But the
very authority that the Court cites, Lord Mansfield, ex-
pressly distinguished between these two concepts, stating
that English courts had the “power” to send the writ to
places within the Crown’s sovereignty, the “only question”
being the “propriety,” while they had “no power to send
any writ of any kind” to Scotland and other “foreign do-
minions.” Cowle, supra, at 856, 97 Eng. Rep., at 599–600.
The writ did not run to Scotland because, even after the
Union, “Scotland remained a foreign dominion of the
prince who succeeded to the English throne,” and “union
did not extend the prerogative of the English crown to
Scotland.” Sharpe 191; see also Sir Matthew Hale’s The
Prerogatives of the King 19 (D. Yale ed. 1976).7
——————
clear that the detainee’s status as a subject was material to the resolu-
tion of the case,” 542 U. S., at 504.
7
The Court also argues that the fact that the writ could run to Ire-
land, even though it was ruled under a “separate” crown, shows that
formal sovereignty was not the touchstone of habeas jurisdiction. Ante,
at 21. The passage from Blackstone that the Court cites, however,
describes Ireland as “a dependent, subordinate kingdom” that was part
of the “king’s dominions.” 1 Blackstone 98, 100 (internal quotation
23 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
In sum, all available historical evidence points to the
conclusion that the writ would not have been available at
common law for aliens captured and held outside the
sovereign territory of the Crown. Despite three opening
briefs, three reply briefs, and support from a legion of
amici, petitioners have failed to identify a single case in
the history of Anglo-American law that supports their
claim to jurisdiction. The Court finds it significant that
there is no recorded case denying jurisdiction to such
prisoners either. See ante, at 21–22. But a case standing
for the remarkable proposition that the writ could issue to
a foreign land would surely have been reported, whereas a
case denying such a writ for lack of jurisdiction would
likely not. At a minimum, the absence of a reported case
either way leaves unrefuted the voluminous commentary
stating that habeas was confined to the dominions of the
Crown.
What history teaches is confirmed by the nature of the
limitations that the Constitution places upon suspension
of the common-law writ. It can be suspended only “in
Cases of Rebellion or Invasion.” Art. I, §9, cl. 2. The latter
case (invasion) is plainly limited to the territory of the
United States; and while it is conceivable that a rebellion
could be mounted by American citizens abroad, surely the
overwhelming majority of its occurrences would be domes-
tic. If the extraterritorial scope of habeas turned on flexi-
ble, “functional” considerations, as the Court holds, why
would the Constitution limit its suspension almost en-
tirely to instances of domestic crisis? Surely there is an
even greater justification for suspension in foreign lands
where the United States might hold prisoners of war
——————
marks omitted). And Lord Mansfield’s opinion in Cowle plainly under-
stood Ireland to be “a dominion of the Crown of England,” in contrast to
the “foreign dominio[n]” of Scotland, and thought that distinction
dispositive of the question of habeas jurisdiction. Cowle, supra, at 856,
97 Eng. Rep., at 599–600.
24 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
during an ongoing conflict. And correspondingly, there is
less threat to liberty when the Government suspends the
writ’s (supposed) application in foreign lands, where even
on the most extreme view prisoners are entitled to fewer
constitutional rights. It makes no sense, therefore, for the
Constitution generally to forbid suspension of the writ
abroad if indeed the writ has application there.
It may be objected that the foregoing analysis proves too
much, since this Court has already suggested that the writ
of habeas corpus does run abroad for the benefit of United
States citizens. “[T]he position that United States citizens
throughout the world may be entitled to habeas corpus
rights . . . is precisely the position that this Court adopted
in Eisentrager, see 339 U. S., at 769–770, even while
holding that aliens abroad did not have habeas corpus
rights.” Rasul, 542 U. S., at 501, 502 (SCALIA, J., dissent-
ing) (emphasis deleted). The reason for that divergence is
not difficult to discern. The common-law writ, as received
into the law of the new constitutional Republic, took on
such changes as were demanded by a system in which rule
is derived from the consent of the governed, and in which
citizens (not “subjects”) are afforded defined protections
against the Government. As Justice Story wrote for the
Court,
“The common law of England is not to be taken in all
respects to be that of America. Our ancestors brought
with them its general principles, and claimed it as
their birthright; but they brought with them and
adopted only that portion which was applicable to
their situation.” Van Ness v. Pacard, 2 Pet. 137, 144
(1829).
See also Hall, The Common Law: An Account of its Recep-
tion in the United States, 4 Vand. L. Rev. 791 (1951). It
accords with that principle to say, as the plurality opinion
said in Reid: “When the Government reaches out to punish
25 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
a citizen who is abroad, the shield which the Bill of Rights
and other parts of the Constitution provide to protect his
life and liberty should not be stripped away just because
he happens to be in another land.” 354 U. S., at 6; see also
Verdugo-Urquidez, 494 U. S., at 269–270. On that analy-
sis, “[t]he distinction between citizens and aliens follows
from the undoubted proposition that the Constitution does
not create, nor do general principles of law create, any
juridical relation between our country and some unde-
fined, limitless class of noncitizens who are beyond our
territory.” Id., at 275 (KENNEDY, J., concurring).
In sum, because I conclude that the text and history of
the Suspension Clause provide no basis for our jurisdic-
tion, I would affirm the Court of Appeals even if Eisen-
trager did not govern these cases.
* * *
Today the Court warps our Constitution in a way that
goes beyond the narrow issue of the reach of the Suspen-
sion Clause, invoking judicially brainstormed separation-
of-powers principles to establish a manipulable “func-
tional” test for the extraterritorial reach of habeas corpus
(and, no doubt, for the extraterritorial reach of other
constitutional protections as well). It blatantly misde-
scribes important precedents, most conspicuously Justice
Jackson’s opinion for the Court in Johnson v. Eisentrager.
It breaks a chain of precedent as old as the common law
that prohibits judicial inquiry into detentions of aliens
abroad absent statutory authorization. And, most tragi-
cally, it sets our military commanders the impossible task
of proving to a civilian court, under whatever standards
this Court devises in the future, that evidence supports
the confinement of each and every enemy prisoner.
The Nation will live to regret what the Court has done
today. I dissent.
PRESIDENT LOSES ANOTHER SUPREME COURT DECISION-ENOUGH ALREADY!!!!!
1 (Slip Opinion) OCTOBER TERM, 2007
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BOUMEDIENE ET AL. v. BUSH, PRESIDENT OF THE
UNITED STATES, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 06–1195. Argued December 5, 2007—Decided June 12, 2008*
In the Authorization for Use of Military Force (AUMF), Congress em-
powered the President “to use all necessary and appropriate force
against those . . . he determines planned, authorized, committed, or
aided the terrorist attacks . . . on September 11, 2001.” In Hamdi v.
Rumsfeld, 542 U. S. 507, 518, 588–589, five Justices recognized that
detaining individuals captured while fighting against the United
States in Afghanistan for the duration of that conflict was a funda-
mental and accepted incident to war. Thereafter, the Defense De-
partment established Combatant Status Review Tribunals (CSRTs)
to determine whether individuals detained at the U. S. Naval Station
at Guantanamo Bay, Cuba, were “enemy combatants.”
Petitioners are aliens detained at Guantanamo after being cap-
tured in Afghanistan or elsewhere abroad and designated enemy
combatants by CSRTs. Denying membership in the al Qaeda terror-
ist network that carried out the September 11 attacks and the Tali-
ban regime that supported al Qaeda, each petitioner sought a writ of
habeas corpus in the District Court, which ordered the cases dis-
missed for lack of jurisdiction because Guantanamo is outside sover-
eign U. S. territory. The D. C. Circuit affirmed, but this Court re-
versed, holding that 28 U. S. C. §2241 extended statutory habeas
jurisdiction to Guantanamo. See Rasul v. Bush, 542 U. S. 466, 473.
Petitioners’ cases were then consolidated into two proceedings. In
the first, the district judge granted the Government’s motion to dis-
miss, holding that the detainees had no rights that could be vindi-
——————
*Together with No. 06–1196, Al Odah, Next Friend of Al Odah, et al.
v. United States et al., also on certiorari to the same court.
2 BOUMEDIENE v. BUSH
Syllabus
cated in a habeas action. In the second, the judge held that the de-
tainees had due process rights.
While appeals were pending, Congress passed the Detainee Treat-
ment Act of 2005 (DTA), §1005(e) of which amended 28 U. S. C. §2241
to provide that “no court, justice, or judge shall have jurisdiction to
. . . consider . . . an application for . . . habeas corpus filed by or on
behalf of an alien detained . . . at Guantanamo,” and gave the D. C.
Circuit “exclusive” jurisdiction to review CSRT decisions. In Ham-
dan v. Rumsfeld, 548 U. S. 557, 576–577, the Court held this provi-
sion inapplicable to cases (like petitioners’) pending when the DTA
was enacted. Congress responded with the Military Commissions Act
of 2006 (MCA), §7(a) of which amended §2241(e)(1) to deny jurisdic-
tion with respect to habeas actions by detained aliens determined to
be enemy combatants, while §2241(e)(2) denies jurisdiction as to “any
other action against the United States . . . relating to any aspect of
the detention, transfer, treatment, trial, or conditions of confinement”
of a detained alien determined to be an enemy combatant. MCA
§7(b) provides that the 2241(e) amendments “shall take effect on the
date of the enactment of this Act, and shall apply to all cases, without
exception, pending on or after [that] date . . . which relate to any as-
pect of the detention, transfer, treatment, trial, or conditions of de-
tention of an alien detained . . . since September 11, 2001.”
The D. C. Circuit concluded that MCA §7 must be read to strip
from it, and all federal courts, jurisdiction to consider petitioners’ ha-
beas applications; that petitioners are not entitled to habeas or the
protections of the Suspension Clause, U. S. Const., Art. I, §9, cl. 2,
which provides that “[t]he Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it”; and that it was therefore unneces-
sary to consider whether the DTA provided an adequate and effective
substitute for habeas.
Held:
1. MCA §7 denies the federal courts jurisdiction to hear habeas ac-
tions, like the instant cases, that were pending at the time of its en-
actment. Section §7(b)’s effective date provision undoubtedly applies
to habeas actions, which, by definition, “relate to . . . detention”
within that section’s meaning. Petitioners argue to no avail that
§7(b) does not apply to a §2241(e)(1) habeas action, but only to “any
other action” under §2241(e)(2), because it largely repeats that sec-
tion’s language. The phrase “other action” in §2241(e)(2) cannot be
understood without referring back to §2241(e)(1), which explicitly
mentions the “writ of habeas corpus.” Because the two paragraphs’
structure implies that habeas is a type of action “relating to any as-
3 Cite as: 553 U. S. ____ (2008)
Syllabus
pect of . . . detention,” etc., pending habeas actions are in the category
of cases subject to the statute’s jurisdictional bar. This is confirmed
by the MCA’s legislative history. Thus, if MCA §7 is valid, petition-
ers’ cases must be dismissed. Pp. 5–8.
2. Petitioners have the constitutional privilege of habeas corpus.
They are not barred from seeking the writ or invoking the Suspen-
sion Clause’s protections because they have been designated as en-
emy combatants or because of their presence at Guantanamo. Pp. 8–
41.
(a) A brief account of the writ’s history and origins shows that
protection for the habeas privilege was one of the few safeguards of
liberty specified in a Constitution that, at the outset, had no Bill of
Rights; in the system the Framers conceived, the writ has a central-
ity that must inform proper interpretation of the Suspension Clause.
That the Framers considered the writ a vital instrument for the pro-
tection of individual liberty is evident from the care taken in the Sus-
pension Clause to specify the limited grounds for its suspension: The
writ may be suspended only when public safety requires it in times of
rebellion or invasion. The Clause is designed to protect against cycli-
cal abuses of the writ by the Executive and Legislative Branches. It
protects detainee rights by a means consistent with the Constitu-
tion’s essential design, ensuring that, except during periods of formal
suspension, the Judiciary will have a time-tested device, the writ, to
maintain the “delicate balance of governance.” Hamdi, supra, at 536.
Separation-of-powers principles, and the history that influenced their
design, inform the Clause’s reach and purpose. Pp. 8–15.
(b) A diligent search of founding-era precedents and legal com-
mentaries reveals no certain conclusions. None of the cases the par-
ties cite reveal whether a common-law court would have granted, or
refused to hear for lack of jurisdiction, a habeas petition by a prisoner
deemed an enemy combatant, under a standard like the Defense De-
partment’s in these cases, and when held in a territory, like Guan-
tanamo, over which the Government has total military and civil con-
trol. The evidence as to the writ’s geographic scope at common law is
informative, but, again, not dispositive. Petitioners argue that the
site of their detention is analogous to two territories outside England
to which the common-law writ ran, the exempt jurisdictions and In-
dia, but critical differences between these places and Guantanamo
render these claims unpersuasive. The Government argues that
Guantanamo is more closely analogous to Scotland and Hanover,
where the writ did not run, but it is unclear whether the common-law
courts lacked the power to issue the writ there, or whether they re-
frained from doing so for prudential reasons. The parties’ arguments
that the very lack of a precedent on point supports their respective
4 BOUMEDIENE v. BUSH
Syllabus
positions are premised upon the doubtful assumptions that the his-
torical record is complete and that the common law, if properly un-
derstood, yields a definite answer to the questions before the Court.
Pp. 15–22.
(c) The Suspension Clause has full effect at Guantanamo. The
Government’s argument that the Clause affords petitioners no rights
because the United States does not claim sovereignty over the naval
station is rejected. Pp. 22–42.
(i) The Court does not question the Government’s position that
Cuba maintains sovereignty, in the legal and technical sense, over
Guantanamo, but it does not accept the Government’s premise that
de jure sovereignty is the touchstone of habeas jurisdiction. Com-
mon-law habeas’ history provides scant support for this proposition,
and it is inconsistent with the Court’s precedents and contrary to
fundamental separation-of-powers principles. Pp. 22–25.
(ii) Discussions of the Constitution’s extraterritorial applica-
tion in cases involving provisions other than the Suspension Clause
undermine the Government’s argument. Fundamental questions re-
garding the Constitution’s geographic scope first arose when the Na-
tion acquired Hawaii and the noncontiguous Territories ceded by
Spain after the Spanish-American War, and Congress discontinued
its prior practice of extending constitutional rights to territories by
statute. In the so-called Insular Cases, the Court held that the Con-
stitution had independent force in the territories that was not contin-
gent upon acts of legislative grace. See, e.g., Dorr v. United States,
195 U. S. 138. Yet because of the difficulties and disruption inherent
in transforming the former Spanish colonies’ civil-law system into an
Anglo-American system, the Court adopted the doctrine of territorial
incorporation, under which the Constitution applies in full in incor-
porated Territories surely destined for statehood but only in part in
unincorporated Territories. See, e.g., id., at 143. Practical considera-
tions likewise influenced the Court’s analysis in Reid v. Covert, 354
U. S. 1, where, in applying the jury provisions of the Fifth and Sixth
Amendments to American civilians being tried by the U. S. military
abroad, both the plurality and the concurrences noted the relevance
of practical considerations, related not to the petitioners’ citizenship,
but to the place of their confinement and trial. Finally, in holding
that habeas jurisdiction did not extend to enemy aliens, convicted of
violating the laws of war, who were detained in a German prison dur-
ing the Allied Powers’ post-World War II occupation, the Court, in
Johnson v. Eisentrager, 339 U. S. 763, stressed the practical difficul-
ties of ordering the production of the prisoners, id., at 779. The Gov-
ernment’s reading of Eisentrager as adopting a formalistic test for de-
termining the Suspension Clause’s reach is rejected because: (1) the
5 Cite as: 553 U. S. ____ (2008)
Syllabus
discussion of practical considerations in that case was integral to a
part of the Court’s opinion that came before it announced its holding,
see id., at 781; (2) it mentioned the concept of territorial sovereignty
only twice in its opinion, in contrast to its significant discussion of
practical barriers to the running of the writ; and (3) if the Govern-
ment’s reading were correct, the opinion would have marked not only
a change in, but a complete repudiation of, the Insular Cases’ (and
later Reid’s) functional approach. A constricted reading of Eisen-
trager overlooks what the Court sees as a common thread uniting all
these cases: The idea that extraterritoriality questions turn on objec-
tive factors and practical concerns, not formalism. Pp. 25–34.
(iii) The Government’s sovereignty-based test raises troubling
separation-of-powers concerns, which are illustrated by Guan-
tanamo’s political history. Although the United States has main-
tained complete and uninterrupted control of Guantanamo for over
100 years, the Government’s view is that the Constitution has no ef-
fect there, at least as to noncitizens, because the United States dis-
claimed formal sovereignty in its 1903 lease with Cuba. The Nation’s
basic charter cannot be contracted away like this. The Constitution
grants Congress and the President the power to acquire, dispose of,
and govern territory, not the power to decide when and where its
terms apply. To hold that the political branches may switch the Con-
stitution on or off at will would lead to a regime in which they, not
this Court, say “what the law is.” Marbury v. Madison, 1 Cranch
137, 177. These concerns have particular bearing upon the Suspen-
sion Clause question here, for the habeas writ is itself an indispensa-
ble mechanism for monitoring the separation of powers. Pp. 34–36.
(iv) Based on Eisentrager, supra, at 777, and the Court’s rea-
soning in its other extraterritoriality opinions, at least three factors
are relevant in determining the Suspension Clause’s reach: (1) the
detainees’ citizenship and status and the adequacy of the process
through which that status was determined; (2) the nature of the sites
where apprehension and then detention took place; and (3) the prac-
tical obstacles inherent in resolving the prisoner’s entitlement to the
writ. Application of this framework reveals, first, that petitioners’
status is in dispute: They are not American citizens, but deny they
are enemy combatants; and although they have been afforded some
process in CSRT proceedings, there has been no Eisentrager–style
trial by military commission for violations of the laws of war. Second,
while the sites of petitioners’ apprehension and detention weigh
against finding they have Suspension Clause rights, there are critical
differences between Eisentrager’s German prison, circa 1950, and the
Guantanamo Naval Station in 2008, given the Government’s absolute
and indefinite control over the naval station. Third, although the
6 BOUMEDIENE v. BUSH
Syllabus
Court is sensitive to the financial and administrative costs of holding
the Suspension Clause applicable in a case of military detention
abroad, these factors are not dispositive because the Government
presents no credible arguments that the military mission at Guan-
tanamo would be compromised if habeas courts had jurisdiction. The
situation in Eisentrager was far different, given the historical context
and nature of the military’s mission in post-War Germany. Pp. 36–
41.
(d) Petitioners are therefore entitled to the habeas privilege, and
if that privilege is to be denied them, Congress must act in accor-
dance with the Suspension Clause’s requirements. Cf. Rasul, 542
U. S., at 564. Pp. 41–42.
3. Because the DTA’s procedures for reviewing detainees’ status
are not an adequate and effective substitute for the habeas writ,
MCA §7 operates as an unconstitutional suspension of the writ. Pp.
42–64.
(a) Given its holding that the writ does not run to petitioners, the
D. C. Circuit found it unnecessary to consider whether there was an
adequate substitute for habeas. This Court usually remands for con-
sideration of questions not decided below, but departure from this
rule is appropriate in “exceptional” circumstances, see, e.g., Cooper
Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 169, here, the
grave separation-of-powers issues raised by these cases and the fact
that petitioners have been denied meaningful access to a judicial fo-
rum for years. Pp. 42–44.
(b) Historically, Congress has taken care to avoid suspensions of
the writ. For example, the statutes at issue in the Court’s two lead-
ing cases addressing habeas substitutes, Swain v. Pressley, 430 U. S.
372, and United States v. Hayman, 342 U. S. 205, were attempts to
streamline habeas relief, not to cut it back. Those cases provide little
guidance here because, inter alia, the statutes in question gave the
courts broad remedial powers to secure the historic office of the writ,
and included saving clauses to preserve habeas review as an avenue
of last resort. In contrast, Congress intended the DTA and the MCA
to circumscribe habeas review, as is evident from the unequivocal na-
ture of MCA §7’s jurisdiction-stripping language, from the DTA’s text
limiting the Court of Appeals’ jurisdiction to assessing whether the
CSRT complied with the “standards and procedures specified by the
Secretary of Defense,” DTA §1005(e)(2)(C), and from the absence of a
saving clause in either Act. That Congress intended to create a more
limited procedure is also confirmed by the legislative history and by a
comparison of the DTA and the habeas statute that would govern in
MCA §7’s absence, 28 U. S. C. §2241. In §2241, Congress authorized
“any justice” or “circuit judge” to issue the writ, thereby accommodat-
7 Cite as: 553 U. S. ____ (2008)
Syllabus
ing the necessity for factfinding that will arise in some cases by al-
lowing the appellate judge or Justice to transfer the case to a district
court. See §2241(b). However, by granting the D. C. Circuit “exclu-
sive” jurisdiction over petitioners’ cases, see DTA §1005(e)(2)(A),
Congress has foreclosed that option in these cases. Pp. 44–49.
(c) This Court does not endeavor to offer a comprehensive sum-
mary of the requisites for an adequate habeas substitute. It is un-
controversial, however, that the habeas privilege entitles the prisoner
to a meaningful opportunity to demonstrate that he is being held pur-
suant to “the erroneous application or interpretation” of relevant law,
INS v. St. Cyr, 533 U. S. 289, 302, and the habeas court must have
the power to order the conditional release of an individual unlawfully
detained. But more may be required depending on the circum-
stances. Petitioners identify what they see as myriad deficiencies in
the CSRTs, the most relevant being the constraints upon the de-
tainee’s ability to rebut the factual basis for the Government’s asser-
tion that he is an enemy combatant. At the CSRT stage the detainee
has limited means to find or present evidence to challenge the Gov-
ernment’s case, does not have the assistance of counsel, and may not
be aware of the most critical allegations that the Government relied
upon to order his detention. His opportunity to confront witnesses is
likely to be more theoretical than real, given that there are no limits
on the admission of hearsay. The Court therefore agrees with peti-
tioners that there is considerable risk of error in the tribunal’s find-
ings of fact. And given that the consequence of error may be deten-
tion for the duration of hostilities that may last a generation or more,
the risk is too significant to ignore. Accordingly, for the habeas writ,
or its substitute, to function as an effective and meaningful remedy in
this context, the court conducting the collateral proceeding must have
some ability to correct any errors, to assess the sufficiency of the
Government’s evidence, and to admit and consider relevant exculpa-
tory evidence that was not introduced during the earlier proceeding.
In re Yamashita, 327 U. S. 1, 5, 8, and Ex parte Quirin, 317 U. S. 1,
23–25, distinguished. Pp. 49–57.
(d) Petitioners have met their burden of establishing that the
DTA review process is, on its face, an inadequate substitute for ha-
beas. Among the constitutional infirmities from which the DTA po-
tentially suffers are the absence of provisions allowing petitioners to
challenge the President’s authority under the AUMF to detain them
indefinitely, to contest the CSRT’s findings of fact, to supplement the
record on review with exculpatory evidence discovered after the
CSRT proceedings, and to request release. The statute cannot be
read to contain each of these constitutionally required procedures.
MCA §7 thus effects an unconstitutional suspension of the writ.
8 BOUMEDIENE v. BUSH
Syllabus
There is no jurisdictional bar to the District Court’s entertaining pe-
titioners’ claims. Pp. 57–64.
4. Nor are there prudential barriers to habeas review. Pp. 64–70.
(a) Petitioners need not seek review of their CSRT determina-
tions in the D. C. Circuit before proceeding with their habeas actions
in the District Court. If these cases involved detainees held for only a
short time while awaiting their CSRT determinations, or were it
probable that the Court of Appeals could complete a prompt review of
their applications, the case for requiring temporary abstention or ex-
haustion of alternative remedies would be much stronger. But these
qualifications no longer pertain here. In some instances six years
have elapsed without the judicial oversight that habeas corpus or an
adequate substitute demands. To require these detainees to pursue
the limited structure of DTA review before proceeding with habeas
actions would be to require additional months, if not years, of delay.
This holding should not be read to imply that a habeas court should
intervene the moment an enemy combatant steps foot in a territory
where the writ runs. Except in cases of undue delay, such as the pre-
sent, federal courts should refrain from entertaining an enemy com-
batant’s habeas petition at least until after the CSRT has had a
chance to review his status. Pp. 64–67.
(b) In effectuating today’s holding, certain accommodations—
including channeling future cases to a single district court and re-
quiring that court to use its discretion to accommodate to the greatest
extent possible the Government’s legitimate interest in protecting
sources and intelligence gathering methods—should be made to re-
duce the burden habeas proceedings will place on the military, with-
out impermissibly diluting the writ’s protections. Pp. 67–68.
5. In considering both the procedural and substantive standards
used to impose detention to prevent acts of terrorism, the courts must
accord proper deference to the political branches. However, security
subsists, too, in fidelity to freedom’s first principles, chief among
them being freedom from arbitrary and unlawful restraint and the
personal liberty that is secured by adherence to the separation of
powers. Pp. 68–70.
476 F. 3d 981, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which STEVENS,
SOUTER, GINSBURG, and BREYER, JJ., joined. SOUTER, J., filed a concur-
ring opinion, in which GINSBURG and BREYER, JJ., joined. ROBERTS,
C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO,
JJ., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS,
C. J., and THOMAS and ALITO, JJ., joined.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
JUSTICE KENNEDY delivered the opinion of the Court.
Petitioners are aliens designated as enemy combatants
and detained at the United States Naval Station at Guan
tanamo Bay, Cuba. There are others detained there, also
aliens, who are not parties to this suit.
Petitioners present a question not resolved by our ear
lier cases relating to the detention of aliens at Guan
tanamo: whether they have the constitutional privilege of
habeas corpus, a privilege not to be withdrawn except in
conformance with the Suspension Clause, Art. I, §9, cl. 2.
We hold these petitioners do have the habeas corpus
privilege. Congress has enacted a statute, the Detainee
Treatment Act of 2005 (DTA), 119 Stat. 2739, that pro
2 BOUMEDIENE v. BUSH
Opinion of the Court
vides certain procedures for review of the detainees’
status. We hold that those procedures are not an ade
quate and effective substitute for habeas corpus. There
fore §7 of the Military Commissions Act of 2006 (MCA), 28
U. S. C. A. §2241(e) (Supp. 2007), operates as an unconsti
tutional suspension of the writ. We do not address
whether the President has authority to detain these peti
tioners nor do we hold that the writ must issue. These
and other questions regarding the legality of the detention
are to be resolved in the first instance by the District
Court.
I
Under the Authorization for Use of Military Force
(AUMF), §2(a), 115 Stat. 224, note following 50 U. S. C.
§1541 (2000 ed., Supp. V), the President is authorized “to
use all necessary and appropriate force against those
nations, organizations, or persons he determines planned,
authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001, or harbored such organi
zations or persons, in order to prevent any future acts of
international terrorism against the United States by such
nations, organizations or persons.”
In Hamdi v. Rumsfeld, 542 U. S. 507 (2004), five Mem
bers of the Court recognized that detention of individuals
who fought against the United States in Afghanistan “for
the duration of the particular conflict in which they were
captured, is so fundamental and accepted an incident to
war as to be an exercise of the ‘necessary and appropriate
force’ Congress has authorized the President to use.” Id.,
at 518 (plurality opinion of O’Connor, J.), id., at 588–589
(THOMAS, J., dissenting). After Hamdi, the Deputy Secre
tary of Defense established Combatant Status Review
Tribunals (CSRTs) to determine whether individuals
detained at Guantanamo were “enemy combatants,” as the
Department defines that term. See App. to Pet. for Cert.
3 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
in No. 06–1195, p. 81a. A later memorandum established
procedures to implement the CSRTs. See App. to Pet. for
Cert. in No. 06–1196, p. 147. The Government maintains
these procedures were designed to comply with the due
process requirements identified by the plurality in Hamdi.
See Brief for Respondents 10.
Interpreting the AUMF, the Department of Defense
ordered the detention of these petitioners, and they were
transferred to Guantanamo. Some of these individuals
were apprehended on the battlefield in Afghanistan, oth
ers in places as far away from there as Bosnia and Gam
bia. All are foreign nationals, but none is a citizen of a
nation now at war with the United States. Each denies he
is a member of the al Qaeda terrorist network that carried
out the September 11 attacks or of the Taliban regime
that provided sanctuary for al Qaeda. Each petitioner
appeared before a separate CSRT; was determined to be
an enemy combatant; and has sought a writ of habeas
corpus in the United States District Court for the District
of Columbia.
The first actions commenced in February 2002. The
District Court ordered the cases dismissed for lack of
jurisdiction because the naval station is outside the sover
eign territory of the United States. See Rasul v. Bush, 215
F. Supp. 2d 55 (2002). The Court of Appeals for the Dis
trict of Columbia Circuit affirmed. See Al Odah v. United
States, 321 F. 3d 1134, 1145 (2003). We granted certiorari
and reversed, holding that 28 U. S. C. §2241 extended
statutory habeas corpus jurisdiction to Guantanamo. See
Rasul v. Bush, 542 U. S. 466, 473 (2004). The constitu
tional issue presented in the instant cases was not reached
in Rasul. Id., at 476.
After Rasul, petitioners’ cases were consolidated and
entertained in two separate proceedings. In the first set of
cases, Judge Richard J. Leon granted the Government’s
motion to dismiss, holding that the detainees had no
4 BOUMEDIENE v. BUSH
Opinion of the Court
rights that could be vindicated in a habeas corpus action.
In the second set of cases Judge Joyce Hens Green reached
the opposite conclusion, holding the detainees had rights
under the Due Process Clause of the Fifth Amendment.
See Khalid v. Bush, 355 F. Supp. 2d 311, 314 (DC 2005);
In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443,
464 (DC 2005).
While appeals were pending from the District Court
decisions, Congress passed the DTA. Subsection (e) of
§1005 of the DTA amended 28 U. S. C. §2241 to provide
that “no court, justice, or judge shall have jurisdiction to
hear or consider . . . an application for a writ of habeas
corpus filed by or on behalf of an alien detained by the
Department of Defense at Guantanamo Bay, Cuba.” 119
Stat. 2742. Section 1005 further provides that the Court
of Appeals for the District of Columbia Circuit shall have
“exclusive” jurisdiction to review decisions of the CSRTs.
Ibid.
In Hamdan v. Rumsfeld, 548 U. S. 557, 576–577 (2006),
the Court held this provision did not apply to cases (like
petitioners’) pending when the DTA was enacted. Con
gress responded by passing the MCA, 10 U. S. C. A. §948a
et seq. (Supp. 2007), which again amended §2241. The
text of the statutory amendment is discussed below. See
Part II, infra. (Four Members of the Hamdan majority
noted that “[n]othing prevent[ed] the President from
returning to Congress to seek the authority he believes
necessary.” 548 U. S., at 636 (BREYER, J., concurring).
The authority to which the concurring opinion referred
was the authority to “create military commissions of the
kind at issue” in the case. Ibid. Nothing in that opinion
can be construed as an invitation for Congress to suspend
the writ.)
Petitioners’ cases were consolidated on appeal, and the
parties filed supplemental briefs in light of our decision in
Hamdan. The Court of Appeals’ ruling, 476 F. 3d 981
5 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
(CADC 2007), is the subject of our present review and
today’s decision.
The Court of Appeals concluded that MCA §7 must be
read to strip from it, and all federal courts, jurisdiction to
consider petitioners’ habeas corpus applications, id., at
987; that petitioners are not entitled to the privilege of the
writ or the protections of the Suspension Clause, id., at
990–991; and, as a result, that it was unnecessary to
consider whether Congress provided an adequate and
effective substitute for habeas corpus in the DTA.
We granted certiorari. 551 U. S. ___ (2007).
II
As a threshold matter, we must decide whether MCA §7
denies the federal courts jurisdiction to hear habeas cor
pus actions pending at the time of its enactment. We hold
the statute does deny that jurisdiction, so that, if the
statute is valid, petitioners’ cases must be dismissed.
As amended by the terms of the MCA, 28 U. S. C. A.
§2241(e) (Supp. 2007) now provides:
“(1) No court, justice, or judge shall have jurisdic
tion to hear or consider an application for a writ of
habeas corpus filed by or on behalf of an alien de
tained by the United States who has been deter
mined by the United States to have been properly de
tained as an enemy combatant or is awaiting such
determination.
“(2) Except as provided in [§§1005(e)(2) and (e)(3)
of the DTA] no court, justice, or judge shall have ju
risdiction to hear or consider any other action
against the United States or its agents relating to
any aspect of the detention, transfer, treatment,
trial, or conditions of confinement of an alien who is
or was detained by the United States and has been
determined by the United States to have been prop
erly detained as an enemy combatant or is awaiting
6 BOUMEDIENE v. BUSH
Opinion of the Court
such determination.”
Section 7(b) of the MCA provides the effective date for
the amendment of §2241(e). It states:
“The amendment made by [MCA §7(a)] shall take ef
fect on the date of the enactment of this Act, and shall
apply to all cases, without exception, pending on or af
ter the date of the enactment of this Act which relate
to any aspect of the detention, transfer, treatment,
trial, or conditions of detention of an alien detained by
the United States since September 11, 2001.” 120
Stat. 2636.
There is little doubt that the effective date provision
applies to habeas corpus actions. Those actions, by defini
tion, are cases “which relate to . . . detention.” See Black’s
Law Dictionary 728 (8th ed. 2004) (defining habeas corpus
as “[a] writ employed to bring a person before a court,
most frequently to ensure that the party’s imprisonment
or detention is not illegal”). Petitioners argue, neverthe
less, that MCA §7(b) is not a sufficiently clear statement of
congressional intent to strip the federal courts of jurisdic
tion in pending cases. See Ex parte Yerger, 8 Wall. 85,
102–103 (1869). We disagree.
Their argument is as follows: Section 2241(e)(1) refers to
“a writ of habeas corpus.” The next paragraph,
§2241(e)(2), refers to “any other action . . . relating to any
aspect of the detention, transfer, treatment, trial, or condi
tions of confinement of an alien who . . . [has] been prop
erly detained as an enemy combatant or is awaiting such
determination.” There are two separate paragraphs, the
argument continues, so there must be two distinct classes
of cases. And the effective date subsection, MCA §7(b), it
is said, refers only to the second class of cases, for it
largely repeats the language of §2241(e)(2) by referring to
“cases . . . which relate to any aspect of the detention,
transfer, treatment, trial, or conditions of detention of an
7 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
alien detained by the United States.”
Petitioners’ textual argument would have more force
were it not for the phrase “other action” in §2241(e)(2).
The phrase cannot be understood without referring back
to the paragraph that precedes it, §2241(e)(1), which
explicitly mentions the term “writ of habeas corpus.” The
structure of the two paragraphs implies that habeas ac
tions are a type of action “relating to any aspect of the
detention, transfer, treatment, trial, or conditions of con
finement of an alien who is or was detained . . . as an
enemy combatant.” Pending habeas actions, then, are in
the category of cases subject to the statute’s jurisdictional
bar.
We acknowledge, moreover, the litigation history that
prompted Congress to enact the MCA. In Hamdan the
Court found it unnecessary to address the petitioner’s
Suspension Clause arguments but noted the relevance of
the clear statement rule in deciding whether Congress
intended to reach pending habeas corpus cases. See 548
U. S., at 575 (Congress should “not be presumed to have
effected such denial [of habeas relief] absent an unmis
takably clear statement to the contrary”). This interpre
tive rule facilitates a dialogue between Congress and the
Court. Cf. Hilton v. South Carolina Public Railways
Comm’n, 502 U. S. 197, 206 (1991); H. Hart & A. Sacks,
The Legal Process: Basic Problems in the Making and
Application of Law 1209–1210 (W. Eskridge & P. Frickey
eds. 1994). If the Court invokes a clear statement rule to
advise that certain statutory interpretations are favored
in order to avoid constitutional difficulties, Congress can
make an informed legislative choice either to amend the
statute or to retain its existing text. If Congress amends,
its intent must be respected even if a difficult constitu
tional question is presented. The usual presumption is
that Members of Congress, in accord with their oath of
office, considered the constitutional issue and determined
8 BOUMEDIENE v. BUSH
Opinion of the Court
the amended statute to be a lawful one; and the Judiciary,
in light of that determination, proceeds to its own inde
pendent judgment on the constitutional question when
required to do so in a proper case.
If this ongoing dialogue between and among the
branches of Government is to be respected, we cannot
ignore that the MCA was a direct response to Hamdan’s
holding that the DTA’s jurisdiction-stripping provision
had no application to pending cases. The Court of Appeals
was correct to take note of the legislative history when
construing the statute, see 476 F. 3d, at 986, n. 2 (citing
relevant floor statements); and we agree with its conclu
sion that the MCA deprives the federal courts of jurisdic
tion to entertain the habeas corpus actions now before us.
III
In deciding the constitutional questions now presented
we must determine whether petitioners are barred from
seeking the writ or invoking the protections of the Suspen
sion Clause either because of their status, i.e., petitioners’
designation by the Executive Branch as enemy combat
ants, or their physical location, i.e., their presence at
Guantanamo Bay. The Government contends that non
citizens designated as enemy combatants and detained in
territory located outside our Nation’s borders have no
constitutional rights and no privilege of habeas corpus.
Petitioners contend they do have cognizable constitutional
rights and that Congress, in seeking to eliminate recourse
to habeas corpus as a means to assert those rights, acted
in violation of the Suspension Clause.
We begin with a brief account of the history and origins
of the writ. Our account proceeds from two propositions.
First, protection for the privilege of habeas corpus was one
of the few safeguards of liberty specified in a Constitution
that, at the outset, had no Bill of Rights. In the system
conceived by the Framers the writ had a centrality that
9 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
must inform proper interpretation of the Suspension
Clause. Second, to the extent there were settled prece
dents or legal commentaries in 1789 regarding the extra
territorial scope of the writ or its application to enemy
aliens, those authorities can be instructive for the present
cases.
A
The Framers viewed freedom from unlawful restraint as
a fundamental precept of liberty, and they understood the
writ of habeas corpus as a vital instrument to secure that
freedom. Experience taught, however, that the common-
law writ all too often had been insufficient to guard
against the abuse of monarchial power. That history
counseled the necessity for specific language in the Consti
tution to secure the writ and ensure its place in our legal
system.
Magna Carta decreed that no man would be imprisoned
contrary to the law of the land. Art. 39, in Sources of Our
Liberties 17 (R. Perry & J. Cooper eds. 1959) (“No free
man shall be taken or imprisoned or dispossessed, or
outlawed, or banished, or in any way destroyed, nor will
we go upon him, nor send upon him, except by the legal
judgment of his peers or by the law of the land”). Impor
tant as the principle was, the Barons at Runnymede pre
scribed no specific legal process to enforce it. Holdsworth
tells us, however, that gradually the writ of habeas corpus
became the means by which the promise of Magna Carta
was fulfilled. 9 W. Holdsworth, A History of English Law
112 (1926) (hereinafter Holdsworth).
The development was painstaking, even by the centu
ries-long measures of English constitutional history. The
writ was known and used in some form at least as early as
the reign of Edward I. Id., at 108–125. Yet at the outset
it was used to protect not the rights of citizens but those of
the King and his courts. The early courts were considered
10 BOUMEDIENE v. BUSH
Opinion of the Court
agents of the Crown, designed to assist the King in the
exercise of his power. See J. Baker, An Introduction to
English Legal History 38–39 (4th ed. 2002). Thus the
writ, while it would become part of the foundation of
liberty for the King’s subjects, was in its earliest use a
mechanism for securing compliance with the King’s
laws. See Halliday & White, The Suspension Clause:
English Text, Imperial Contexts, and American Impli
cations, 94 Va. L. Rev. (forthcoming 2008) (hereinafter
Halliday & White) (manuscript, at 11, online at
http://papers.ssrn.com/sol3 /papers.cfm?abstract_id=100
8252 (all Internet materials as visited June 9, 2008, and
available in Clerk of Court’s case file) (noting that “concep
tually the writ arose from a theory of power rather than a
theory of liberty”)). Over time it became clear that by
issuing the writ of habeas corpus common-law courts
sought to enforce the King’s prerogative to inquire into the
authority of a jailer to hold a prisoner. See M. Hale, Pre
rogatives of the King 229 (D. Yale ed. 1976); 2 J. Story,
Commentaries on the Constitution of the United States
§1341, p. 237 (3d ed. 1858) (noting that the writ ran “into
all parts of the king’s dominions; for it is said, that the
king is entitled, at all times, to have an account, why the
liberty of any of his subjects is restrained”).
Even so, from an early date it was understood that the
King, too, was subject to the law. As the writers said of
Magna Carta, “it means this, that the king is and shall be
below the law.” 1 F. Pollock & F. Maitland, History of
English Law 173 (2d ed. 1909); see also 2 Bracton On the
Laws and Customs of England 33 (S. Thorne transl. 1968)
(“The king must not be under man but under God and
under the law, because law makes the king”). And, by the
1600’s, the writ was deemed less an instrument of the
King’s power and more a restraint upon it. See Collings,
Habeas Corpus for Convicts—Constitutional Right or
Legislative Grace, 40 Calif. L. Rev. 335, 336 (1952) (noting
11 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
that by this point the writ was “the appropriate process for
checking illegal imprisonment by public officials”).
Still, the writ proved to be an imperfect check. Even
when the importance of the writ was well understood in
England, habeas relief often was denied by the courts or
suspended by Parliament. Denial or suspension occurred
in times of political unrest, to the anguish of the impris
oned and the outrage of those in sympathy with them.
A notable example from this period was Darnel’s Case, 3
How. St. Tr. 1 (K. B. 1627). The events giving rise to the
case began when, in a display of the Stuart penchant for
authoritarian excess, Charles I demanded that Darnel and
at least four others lend him money. Upon their refusal,
they were imprisoned. The prisoners sought a writ of
habeas corpus; and the King filed a return in the form of a
warrant signed by the Attorney General. Ibid. The court
held this was a sufficient answer and justified the sub
jects’ continued imprisonment. Id., at 59.
There was an immediate outcry of protest. The House of
Commons promptly passed the Petition of Right, 3 Car. 1,
ch. 1 (1627), 5 Statutes of the Realm 23, 24 (reprint 1963),
which condemned executive “imprison[ment] without any
cause” shown, and declared that “no freeman in any such
manner as is before mencioned [shall] be imprisoned or
deteined.” Yet a full legislative response was long de
layed. The King soon began to abuse his authority again,
and Parliament was dissolved. See W. Hall & R. Albion, A
History of England and the British Empire 328 (3d ed.
1953) (hereinafter Hall & Albion). When Parliament
reconvened in 1640, it sought to secure access to the writ
by statute. The Act of 1640, 16 Car. 1, ch. 10, 5 Statutes of
the Realm, at 110, expressly authorized use of the writ to
test the legality of commitment by command or warrant of
the King or the Privy Council. Civil strife and the Inter
regnum soon followed, and not until 1679 did Parliament
try once more to secure the writ, this time through the
12 BOUMEDIENE v. BUSH
Opinion of the Court
Habeas Corpus Act of 1679, 31 Car. 2, ch. 2, id., at 935.
The Act, which later would be described by Blackstone as
the “stable bulwark of our liberties,” 1 W. Blackstone,
Commentaries *137 (hereinafter Blackstone), established
procedures for issuing the writ; and it was the model upon
which the habeas statutes of the 13 American Colonies
were based, see Collings, supra, at 338–339.
This history was known to the Framers. It no doubt
confirmed their view that pendular swings to and away
from individual liberty were endemic to undivided, uncon
trolled power. The Framers’ inherent distrust of govern
mental power was the driving force behind the constitu
tional plan that allocated powers among three
independent branches. This design serves not only to
make Government accountable but also to secure individ
ual liberty. See Loving v. United States, 517 U. S. 748,
756 (1996) (noting that “[e]ven before the birth of this
country, separation of powers was known to be a defense
against tyranny”); cf. Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring)
(“[T]he Constitution diffuses power the better to secure
liberty”); Clinton v. City of New York, 524 U. S. 417, 450
(1998) (KENNEDY, J., concurring) (“Liberty is always at
stake when one or more of the branches seek to transgress
the separation of powers”). Because the Constitution’s
separation-of-powers structure, like the substantive guar
antees of the Fifth and Fourteenth Amendments, see Yick
Wo v. Hopkins, 118 U. S. 356, 374 (1886), protects persons
as well as citizens, foreign nationals who have the privi
lege of litigating in our courts can seek to enforce separa
tion-of-powers principles, see, e.g., INS v. Chadha, 462
U. S. 919, 958–959 (1983).
That the Framers considered the writ a vital instrument
for the protection of individual liberty is evident from the
care taken to specify the limited grounds for its suspen
sion: “The Privilege of the Writ of Habeas Corpus shall not
13 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
be suspended, unless when in Cases of Rebellion or Inva
sion the public Safety may require it.” Art. I, §9, cl. 2; see
Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425,
1509, n. 329 (1987) (“[T]he non-suspension clause is the
original Constitution’s most explicit reference to reme
dies”). The word “privilege” was used, perhaps, to avoid
mentioning some rights to the exclusion of others. (In
deed, the only mention of the term “right” in the Constitu
tion, as ratified, is in its clause giving Congress the power
to protect the rights of authors and inventors. See Art. I,
§8, cl. 8.)
Surviving accounts of the ratification debates provide
additional evidence that the Framers deemed the writ to
be an essential mechanism in the separation-of-powers
scheme. In a critical exchange with Patrick Henry at the
Virginia ratifying convention Edmund Randolph referred
to the Suspension Clause as an “exception” to the “power
given to Congress to regulate courts.” See 3 Debates in
the Several State Conventions on the Adoption of the
Federal Constitution 460–464 (J. Elliot 2d ed. 1876) (here
inafter Elliot’s Debates). A resolution passed by the New
York ratifying convention made clear its understanding
that the Clause not only protects against arbitrary sus
pensions of the writ but also guarantees an affirmative
right to judicial inquiry into the causes of detention. See
Resolution of the New York Ratifying Convention (July 26,
1788), in 1 Elliot’s Debates 328 (noting the convention’s
understanding “[t]hat every person restrained of his lib
erty is entitled to an inquiry into the lawfulness of such
restraint, and to a removal thereof if unlawful; and that
such inquiry or removal ought not to be denied or delayed,
except when, on account of public danger, the Congress
shall suspend the privilege of the writ of habeas corpus”).
Alexander Hamilton likewise explained that by providing
the detainee a judicial forum to challenge detention, the
writ preserves limited government. As he explained in
14 BOUMEDIENE v. BUSH
Opinion of the Court
The Federalist No. 84:
“[T]he practice of arbitrary imprisonments, have been,
in all ages, the favorite and most formidable instru
ments of tyranny. The observations of the judicious
Blackstone . . . are well worthy of recital: ‘To bereave
a man of life . . . or by violence to confiscate his estate,
without accusation or trial, would be so gross and no
torious an act of despotism as must at once convey the
alarm of tyranny throughout the whole nation; but
confinement of the person, by secretly hurrying him to
jail, where his sufferings are unknown or forgotten, is
a less public, a less striking, and therefore a more
dangerous engine of arbitrary government.’ And as a
remedy for this fatal evil he is everywhere peculiarly
emphatical in his encomiums on the habeas corpus
act, which in one place he calls ‘the BULWARK of the
British Constitution.’” C. Rossiter ed., p. 512 (1961)
(quoting 1 Blackstone *136, 4 id., at *438).
Post-1789 habeas developments in England, though not
bearing upon the Framers’ intent, do verify their foresight.
Those later events would underscore the need for struc
tural barriers against arbitrary suspensions of the writ.
Just as the writ had been vulnerable to executive and
parliamentary encroachment on both sides of the Atlantic
before the American Revolution, despite the Habeas Cor
pus Act of 1679, the writ was suspended with frequency in
England during times of political unrest after 1789. Par
liament suspended the writ for much of the period from
1792 to 1801, resulting in rampant arbitrary imprison
ment. See Hall & Albion 550. Even as late as World War
I, at least one prominent English jurist complained that
the Defence of the Realm Act, 1914, 4 & 5 Geo. 5, ch.
29(1)(a), effectively had suspended the privilege of habeas
corpus for any person suspected of “communicating with
the enemy.” See King v. Halliday, [1917] A. C. 260, 299
15 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
(Lord Shaw, dissenting); see generally A. Simpson, In the
Highest Degree Odious: Detention Without Trial in War
time Britain 6–7, 24–25 (1992).
In our own system the Suspension Clause is designed to
protect against these cyclical abuses. The Clause protects
the rights of the detained by a means consistent with the
essential design of the Constitution. It ensures that,
except during periods of formal suspension, the Judiciary
will have a time-tested device, the writ, to maintain the
“delicate balance of governance” that is itself the surest
safeguard of liberty. See Hamdi, 542 U. S., at 536 (plural
ity opinion). The Clause protects the rights of the de
tained by affirming the duty and authority of the Judici
ary to call the jailer to account. See Preiser v. Rodriguez,
411 U. S. 475, 484 (1973) (“[T]he essence of habeas corpus
is an attack by a person in custody upon the legality of
that custody”); cf. In re Jackson, 15 Mich. 417, 439–440
(1867) (Cooley, J., concurring) (“The important fact to be
observed in regard to the mode of procedure upon this
[habeas] writ is, that it is directed to, and served upon, not
the person confined, but his jailer”). The separation-of
powers doctrine, and the history that influenced its de
sign, therefore must inform the reach and purpose of the
Suspension Clause.
B
The broad historical narrative of the writ and its func
tion is central to our analysis, but we seek guidance as
well from founding-era authorities addressing the specific
question before us: whether foreign nationals, appre
hended and detained in distant countries during a time of
serious threats to our Nation’s security, may assert the
privilege of the writ and seek its protection. The Court
has been careful not to foreclose the possibility that the
protections of the Suspension Clause have expanded along
with post-1789 developments that define the present scope
16 BOUMEDIENE v. BUSH
Opinion of the Court
of the writ. See INS v. St. Cyr, 533 U. S. 289, 300–301
(2001). But the analysis may begin with precedents as of
1789, for the Court has said that “at the absolute mini
mum” the Clause protects the writ as it existed when the
Constitution was drafted and ratified. Id., at 301.
To support their arguments, the parties in these cases
have examined historical sources to construct a view of the
common-law writ as it existed in 1789—as have amici
whose expertise in legal history the Court has relied upon
in the past. See Brief for Legal Historians as Amici Cu-
riae; see also St. Cyr, supra, at 302, n. 16. The Govern
ment argues the common-law writ ran only to those terri
tories over which the Crown was sovereign. See Brief for
Respondents 27. Petitioners argue that jurisdiction fol
lowed the King’s officers. See Brief for Petitioner Boume
diene et al. 11. Diligent search by all parties reveals no
certain conclusions. In none of the cases cited do we find
that a common-law court would or would not have
granted, or refused to hear for lack of jurisdiction, a peti
tion for a writ of habeas corpus brought by a prisoner
deemed an enemy combatant, under a standard like the
one the Department of Defense has used in these cases,
and when held in a territory, like Guantanamo, over
which the Government has total military and civil control.
We know that at common law a petitioner’s status as an
alien was not a categorical bar to habeas corpus relief.
See, e.g., Sommersett’s Case, 20 How. St. Tr. 1, 80–82
(1772) (ordering an African slave freed upon finding the
custodian’s return insufficient); see generally Khera v.
Secretary of State for the Home Dept., [1984] A. C. 74, 111
(“Habeas corpus protection is often expressed as limited to
‘British subjects.’ Is it really limited to British nationals?
Suffice it to say that the case law has given an emphatic
‘no’ to the question”). We know as well that common-law
courts entertained habeas petitions brought by enemy
aliens detained in England—“entertained” at least in the
17 Cite as: 553 U. S. ____ (2008)
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sense that the courts held hearings to determine the
threshold question of entitlement to the writ. See Case of
Three Spanish Sailors, 2 Black. W. 1324, 96 Eng. Rep. 775
(C. P. 1779); King v. Schiever, 2 Burr. 765, 97 Eng. Rep.
551 (K. B. 1759); Du Castro’s Case, Fort. 195, 92 Eng. Rep.
816 (K. B. 1697).
In Schiever and the Spanish Sailors’ case, the courts
denied relief to the petitioners. Whether the holdings in
these cases were jurisdictional or based upon the courts’
ruling that the petitioners were detained lawfully as
prisoners of war is unclear. See Spanish Sailors, supra, at
1324, 96 Eng. Rep., at 776; Schiever, supra, at 766, 97
Eng. Rep., at 552. In Du Castro’s Case, the court granted
relief, but that case is not analogous to petitioners’ be
cause the prisoner there appears to have been detained in
England. See Halliday & White 27, n. 72. To the extent
these authorities suggest the common-law courts ab
stained altogether from matters involving prisoners of
war, there was greater justification for doing so in the
context of declared wars with other nation states. Judicial
intervention might have complicated the military’s ability
to negotiate exchange of prisoners with the enemy, a
wartime practice well known to the Framers. See Resolu
tion of Mar. 30, 1778, 10 Journals of the Continental
Congress 1774–1789, p. 295 (W. Ford ed. 1908) (directing
General Washington not to exchange prisoners with the
British unless the enemy agreed to exempt citizens from
capture).
We find the evidence as to the geographic scope of the
writ at common law informative, but, again, not disposi
tive. Petitioners argue the site of their detention is analo
gous to two territories outside of England to which the
writ did run: the so-called “exempt jurisdictions,” like the
Channel Islands; and (in former times) India. There are
critical differences between these places and Guantanamo,
however.
18 BOUMEDIENE v. BUSH
Opinion of the Court
As the Court noted in Rasul, 542 U. S., at 481–482, and
nn. 11–12, common-law courts granted habeas corpus
relief to prisoners detained in the exempt jurisdictions.
But these areas, while not in theory part of the realm of
England, were nonetheless under the Crown’s control. See
2 H. Hallam, Constitutional History of England: From the
Accession of Henry VII to the Death of George II, pp. 232–
233 (reprint 1989). And there is some indication that
these jurisdictions were considered sovereign territory.
King v. Cowle, 2 Burr. 834, 854, 855, 97 Eng. Rep. 587,
599 (K. B. 1759) (describing one of the exempt jurisdic
tions, Berwick-upon-Tweed, as under the “sovereign juris
diction” and “subjection of the Crown of England”). Be
cause the United States does not maintain formal
sovereignty over Guantanamo Bay, see Part IV, infra, the
naval station there and the exempt jurisdictions discussed
in the English authorities are not similarly situated.
Petitioners and their amici further rely on cases in
which British courts in India granted writs of habeas
corpus to noncitizens detained in territory over which the
Moghul Emperor retained formal sovereignty and control.
See supra, at 12–13; Brief for Legal Historians as Amici
Curiae 12–13. The analogy to the present cases breaks
down, however, because of the geographic location of the
courts in the Indian example. The Supreme Court of
Judicature (the British Court) sat in Calcutta; but no
federal court sits at Guantanamo. The Supreme Court of
Judicature was, moreover, a special court set up by Par
liament to monitor certain conduct during the British Raj.
See Regulating Act of 1773, 13 Geo. 3, §§13–14. That it
had the power to issue the writ in nonsovereign territory
does not prove that common-law courts sitting in England
had the same power. If petitioners were to have the better
of the argument on this point, we would need some dem
onstration of a consistent practice of common-law courts
sitting in England and entertaining petitions brought by
19 Cite as: 553 U. S. ____ (2008)
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alien prisoners detained abroad. We find little support for
this conclusion.
The Government argues, in turn, that Guantanamo is
more closely analogous to Scotland and Hanover, territo
ries that were not part of England but nonetheless con
trolled by the English monarch (in his separate capacities
as King of Scotland and Elector of Hanover). See Cowle, 2
Burr., at 856, 97 Eng. Rep., at 600. Lord Mansfield can be
cited for the proposition that, at the time of the founding,
English courts lacked the “power” to issue the writ to
Scotland and Hanover, territories Lord Mansfield referred
to as “foreign.” Ibid. But what matters for our purposes is
why common-law courts lacked this power. Given the
English Crown’s delicate and complicated relationships
with Scotland and Hanover in the 1700’s, we cannot disre
gard the possibility that the common-law courts’ refusal to
issue the writ to these places was motivated not by formal
legal constructs but by what we would think of as pruden
tial concerns. This appears to have been the case with
regard to other British territories where the writ did not
run. See 2 R. Chambers, A Course of Lectures on English
Law 1767–1773, p. 8 (T. Curley ed. 1986) (quoting the
view of Lord Mansfield in Cowle that “[n]otwithstanding
the power which the judges have, yet where they cannot
judge of the cause, or give relief upon it, they would not
think proper to interpose; and therefore in the case of
imprisonments in Guernsey, Jersey, Minorca, or the plan-
tations, the most usual way is to complain to the king in
Council” (internal quotation marks omitted)). And after
the Act of Union in 1707, through which the kingdoms of
England and Scotland were merged politically, Queen
Anne and her successors, in their new capacity as sover
eign of Great Britain, ruled the entire island as one king
dom. Accordingly, by the time Lord Mansfield penned his
opinion in Cowle in 1759, Scotland was no longer a “for
eign” country vis-à-vis England—at least not in the sense
20 BOUMEDIENE v. BUSH
Opinion of the Court
in which Cuba is a foreign country vis-à-vis the United
States.
Scotland remained “foreign” in Lord Mansfield’s day in
at least one important respect, however. Even after the
Act of Union, Scotland (like Hanover) continued to main
tain its own laws and court system. See 1 Blackstone *98,
*109. Under these circumstances prudential considera
tions would have weighed heavily when courts sitting in
England received habeas petitions from Scotland or the
Electorate. Common-law decisions withholding the writ
from prisoners detained in these places easily could be
explained as efforts to avoid either or both of two embar
rassments: conflict with the judgments of another court of
competent jurisdiction; or the practical inability, by reason
of distance, of the English courts to enforce their judg
ments outside their territorial jurisdiction. Cf. Munaf v.
Geren, ante, at 15 (opinion of the Court) (recognizing that
“‘prudential concerns’ . . . such as comity and the orderly
administration of criminal justice” affect the appropriate
exercise of habeas jurisdiction).
By the mid-19th century, British courts could issue the
writ to Canada, notwithstanding the fact that Canadian
courts also had the power to do so. See 9 Holdsworth 124
(citing Ex parte Anderson, 3 El. and El. 487 (1861)). This
might be seen as evidence that the existence of a separate
court system was no barrier to the running of the common-
law writ. The Canada of the 1800’s, however, was in
many respects more analogous to the exempt jurisdictions
or to Ireland, where the writ ran, than to Scotland or
Hanover in the 1700’s, where it did not. Unlike Scotland
and Hanover, Canada followed English law. See B.
Laskin, The British Tradition in Canadian Law 50–51
(1969).
In the end a categorical or formal conception of sover
eignty does not provide a comprehensive or altogether
satisfactory explanation for the general understanding
21 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
that prevailed when Lord Mansfield considered issuance of
the writ outside England. In 1759 the writ did not run to
Scotland but did run to Ireland, even though, at that
point, Scotland and England had merged under the rule of
a single sovereign, whereas the Crowns of Great Britain
and Ireland remained separate (at least in theory). See
Cowle, supra, at 856–857, 97 Eng. Rep., 600; 1 Blackstone
*100–101. But there was at least one major difference
between Scotland’s and Ireland’s relationship with Eng
land during this period that might explain why the writ
ran to Ireland but not to Scotland. English law did not
generally apply in Scotland (even after the Act of Union)
but it did apply in Ireland. Blackstone put it as follows:
“[A]s Scotland and England are now one and the same
kingdom, and yet differ in their municipal laws; so Eng
land and Ireland are, on the other hand, distinct king
doms, and yet in general agree in their laws.” Id., at *100.
This distinction, and not formal notions of sovereignty,
may well explain why the writ did not run to Scotland
(and Hanover) but would run to Ireland.
The prudential barriers that may have prevented the
English courts from issuing the writ to Scotland and
Hanover are not relevant here. We have no reason to
believe an order from a federal court would be disobeyed
at Guantanamo. No Cuban court has jurisdiction to hear
these petitioners’ claims, and no law other than the laws
of the United States applies at the naval station. The
modern-day relations between the United States and
Guantanamo thus differ in important respects from the
18th-century relations between England and the kingdoms
of Scotland and Hanover. This is reason enough for us to
discount the relevance of the Government’s analogy.
Each side in the present matter argues that the very
lack of a precedent on point supports its position. The
Government points out there is no evidence that a court
sitting in England granted habeas relief to an enemy alien
22 BOUMEDIENE v. BUSH
Opinion of the Court
detained abroad; petitioners respond there is no evidence
that a court refused to do so for lack of jurisdiction.
Both arguments are premised, however, upon the as
sumption that the historical record is complete and that
the common law, if properly understood, yields a definite
answer to the questions before us. There are reasons to
doubt both assumptions. Recent scholarship points to the
inherent shortcomings in the historical record. See Halli
day & White 14–15 (noting that most reports of 18th
century habeas proceedings were not printed). And given
the unique status of Guantanamo Bay and the particular
dangers of terrorism in the modern age, the common-law
courts simply may not have confronted cases with close
parallels to this one. We decline, therefore, to infer too
much, one way or the other, from the lack of historical
evidence on point. Cf. Brown v. Board of Education, 347
U. S. 483, 489 (1954) (noting evidence concerning the
circumstances surrounding the adoption of the Fourteenth
Amendment, discussed in the parties’ briefs and uncov
ered through the Court’s own investigation, “convince us
that, although these sources cast some light, it is not
enough to resolve the problem with which we are faced.
At best, they are inconclusive”); Reid v. Covert, 354 U. S.
1, 64 (1957) (Frankfurter, J., concurring in result) (argu
ing constitutional adjudication should not be based upon
evidence that is “too episodic, too meager, to form a solid
basis in history, preceding and contemporaneous with the
framing of the Constitution”).
IV
Drawing from its position that at common law the writ
ran only to territories over which the Crown was sover
eign, the Government says the Suspension Clause affords
petitioners no rights because the United States does not
claim sovereignty over the place of detention.
Guantanamo Bay is not formally part of the United
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Opinion of the Court
States. See DTA §1005(g), 119 Stat. 2743. And under the
terms of the lease between the United States and Cuba,
Cuba retains “ultimate sovereignty” over the territory
while the United States exercises “complete jurisdiction
and control.” See Lease of Lands for Coaling and Naval
Stations, Feb. 23, 1903, U. S.-Cuba, Art. III, T. S. No. 418
(hereinafter 1903 Lease Agreement); Rasul, 542 U. S., at
471. Under the terms of the 1934 Treaty, however, Cuba
effectively has no rights as a sovereign until the parties
agree to modification of the 1903 Lease Agreement or the
United States abandons the base. See Treaty Defining
Relations with Cuba, May 29, 1934, U. S.-Cuba, Art. III,
48 Stat. 1683, T. S. No. 866.
The United States contends, nevertheless, that Guan
tanamo is not within its sovereign control. This was the
Government’s position well before the events of September
11, 2001. See, e.g., Brief for Petitioners in Sale v. Haitian
Centers Council, Inc., O. T. 1992, No. 92–344, p. 31 (argu
ing that Guantanamo is territory “outside the United
States”). And in other contexts the Court has held that
questions of sovereignty are for the political branches to
decide. See Vermilya-Brown Co. v. Connell, 335 U. S. 377,
380 (1948) (“[D]etermination of sovereignty over an area is
for the legislative and executive departments”); see also
Jones v. United States, 137 U. S. 202 (1890); Williams v.
Suffolk Ins. Co., 13 Pet. 415, 420 (1839). Even if this were
a treaty interpretation case that did not involve a political
question, the President’s construction of the lease agree
ment would be entitled to great respect. See Sumitomo
Shoji America, Inc. v. Avagliano, 457 U. S. 176, 184–185
(1982).
We therefore do not question the Government’s position
that Cuba, not the United States, maintains sovereignty,
in the legal and technical sense of the term, over Guan
tanamo Bay. But this does not end the analysis. Our
cases do not hold it is improper for us to inquire into the
24 BOUMEDIENE v. BUSH
Opinion of the Court
objective degree of control the Nation asserts over foreign
territory. As commentators have noted, “‘[s]overeignty’ is
a term used in many senses and is much abused.” See 1
Restatement (Third) of Foreign Relations Law of the
United States §206, Comment b, p. 94 (1986). When we
have stated that sovereignty is a political question, we
have referred not to sovereignty in the general, colloquial
sense, meaning the exercise of dominion or power, see
Webster’s New International Dictionary 2406 (2d ed.
1934) (“sovereignty,” definition 3), but sovereignty in the
narrow, legal sense of the term, meaning a claim of right,
see 1 Restatement (Third) of Foreign Relations, supra,
§206, Comment b, at 94 (noting that sovereignty “implies
a state’s lawful control over its territory generally to the
exclusion of other states, authority to govern in that terri
tory, and authority to apply law there”). Indeed, it is not
altogether uncommon for a territory to be under the de
jure sovereignty of one nation, while under the plenary
control, or practical sovereignty, of another. This condi
tion can occur when the territory is seized during war, as
Guantanamo was during the Spanish-American War. See,
e.g., Fleming v. Page, 9 How. 603, 614 (1850) (noting that
the port of Tampico, conquered by the United States dur
ing the war with Mexico, was “undoubtedly . . . subject to
the sovereignty and dominion of the United States,” but
that it “does not follow that it was a part of the United
States, or that it ceased to be a foreign country”); King v.
Earl of Crewe ex parte Sekgome, [1910] 2 K. B. 576, 603–
604 (C. A.) (opinion of Williams, L. J.) (arguing that the
Bechuanaland Protectorate in South Africa was “under
His Majesty’s dominion in the sense of power and jurisdic
tion, but is not under his dominion in the sense of territo
rial dominion”). Accordingly, for purposes of our analysis,
we accept the Government’s position that Cuba, and not
the United States, retains de jure sovereignty over Guan
tanamo Bay. As we did in Rasul, however, we take notice
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Opinion of the Court
of the obvious and uncontested fact that the United States,
by virtue of its complete jurisdiction and control over the
base, maintains de facto sovereignty over this territory.
See 542 U. S., at 480; id., at 487 (KENNEDY, J., concurring
in judgment).
Were we to hold that the present cases turn on the
political question doctrine, we would be required first to
accept the Government’s premise that de jure sovereignty
is the touchstone of habeas corpus jurisdiction. This
premise, however, is unfounded. For the reasons indi
cated above, the history of common-law habeas corpus
provides scant support for this proposition; and, for the
reasons indicated below, that position would be inconsis
tent with our precedents and contrary to fundamental
separation-of-powers principles.
A
The Court has discussed the issue of the Constitution’s
extraterritorial application on many occasions. These
decisions undermine the Government’s argument that, at
least as applied to noncitizens, the Constitution necessar
ily stops where de jure sovereignty ends.
The Framers foresaw that the United States would
expand and acquire new territories. See American Ins. Co.
v. 356 Bales of Cotton, 1 Pet. 511, 542 (1828). Article IV,
§3, cl. 1, grants Congress the power to admit new States.
Clause 2 of the same section grants Congress the “Power
to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the
United States.” Save for a few notable (and notorious)
exceptions, e.g., Dred Scott v. Sandford, 19 How. 393
(1857), throughout most of our history there was little
need to explore the outer boundaries of the Constitution’s
geographic reach. When Congress exercised its power to
create new territories, it guaranteed constitutional protec
tions to the inhabitants by statute. See, e.g., An Act: to
26 BOUMEDIENE v. BUSH
Opinion of the Court
establish a Territorial Government for Utah, 9 Stat. 458
(“[T]he Constitution and laws of the United States are
hereby extended over and declared to be in force in said
Territory of Utah”); Rev. Stat. §1891 (“The Constitution
and all laws of the United States which are not locally
inapplicable shall have the same force and effect within all
the organized Territories, and in every Territory hereafter
organized as elsewhere within the United States”); see
generally Burnett, Untied States: American Expansion
and Territorial Deannexation, 72 U. Chi. L. Rev. 797, 825–
827 (2005). In particular, there was no need to test the
limits of the Suspension Clause because, as early as 1789,
Congress extended the writ to the Territories. See Act of
Aug. 7, 1789, 1 Stat. 52 (reaffirming Art. II of Northwest
Ordinance of 1787, which provided that “[t]he inhabitants
of the said territory, shall always be entitled to the bene
fits of the writ of habeas corpus”).
Fundamental questions regarding the Constitution’s
geographic scope first arose at the dawn of the 20th cen
tury when the Nation acquired noncontiguous Territories:
Puerto Rico, Guam, and the Philippines—ceded to the
United States by Spain at the conclusion of the Spanish-
American War—and Hawaii—annexed by the United
States in 1898. At this point Congress chose to discon
tinue its previous practice of extending constitutional
rights to the territories by statute. See, e.g., An Act Tem
porarily to provide for the administration of the affairs of
civil government in the Philippine Islands, and for other
purposes, 32 Stat. 692 (noting that Rev. Stat. §1891 did
not apply to the Philippines).
In a series of opinions later known as the Insular Cases,
the Court addressed whether the Constitution, by its own
force, applies in any territory that is not a State. See De
Lima v. Bidwell, 182 U. S. 1 (1901); Dooley v. United
States, 182 U. S. 222 (1901); Armstrong v. United States,
182 U. S. 243 (1901); Downes v. Bidwell, 182 U. S. 244
27 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
(1901); Hawaii v. Mankichi, 190 U. S. 197 (1903); Dorr v.
United States, 195 U. S. 138 (1904). The Court held that
the Constitution has independent force in these territo
ries, a force not contingent upon acts of legislative grace.
Yet it took note of the difficulties inherent in that position.
Prior to their cession to the United States, the former
Spanish colonies operated under a civil-law system, with
out experience in the various aspects of the Anglo-
American legal tradition, for instance the use of grand and
petit juries. At least with regard to the Philippines, a
complete transformation of the prevailing legal culture
would have been not only disruptive but also unnecessary,
as the United States intended to grant independence to
that Territory. See An Act To declare the purpose of the
people of the United States as to the future political status
of the people of the Philippine Islands, and to provide a
more autonomous government for those islands (Jones
Act), 39 Stat. 545 (noting that “it was never the intention
of the people of the United States in the incipiency of the
War with Spain to make it a war of conquest or for territo
rial aggrandizement” and that “it is, as it has always been,
the purpose of the people of the United States to withdraw
their sovereignty over the Philippine Islands and to recog
nize their independence as soon as a stable government
can be established therein”). The Court thus was reluc
tant to risk the uncertainty and instability that could
result from a rule that displaced altogether the existing
legal systems in these newly acquired Territories. See
Downes, supra, at 282 (“It is obvious that in the annexa
tion of outlying and distant possessions grave questions
will arise from differences of race, habits, laws and cus
toms of the people, and from differences of soil, climate
and production . . . ”).
These considerations resulted in the doctrine of territo
rial incorporation, under which the Constitution applies in
full in incorporated Territories surely destined for state
28 BOUMEDIENE v. BUSH
Opinion of the Court
hood but only in part in unincorporated Territories. See
Dorr, supra, at 143 (“Until Congress shall see fit to incor
porate territory ceded by treaty into the United States, . . .
the territory is to be governed under the power existing in
Congress to make laws for such territories and subject to
such constitutional restrictions upon the powers of that
body as are applicable to the situation”); Downes, supra, at
293 (White, J., concurring) (“[T]he determination of what
particular provision of the Constitution is applicable,
generally speaking, in all cases, involves an inquiry into
the situation of the territory and its relations to the
United States”). As the Court later made clear, “the real
issue in the Insular Cases was not whether the Constitu
tion extended to the Philippines or Porto Rico when we
went there, but which of its provisions were applicable by
way of limitation upon the exercise of executive and legis
lative power in dealing with new conditions and require
ments.” Balzac v. Porto Rico, 258 U. S. 298, 312 (1922). It
may well be that over time the ties between the United
States and any of its unincorporated Territories
strengthen in ways that are of constitutional significance.
Cf. Torres v. Puerto Rico, 442 U. S. 465, 475–476 (1979)
(Brennan, J., concurring in judgment) (“Whatever the
validity of the [Insular Cases] in the particular historical
context in which they were decided, those cases are clearly
not authority for questioning the application of the Fourth
Amendment—or any other provision of the Bill of Rights—
to the Commonwealth of Puerto Rico in the 1970’s”). But,
as early as Balzac in 1922, the Court took for granted that
even in unincorporated Territories the Government of the
United States was bound to provide to noncitizen inhabi
tants “guaranties of certain fundamental personal rights
declared in the Constitution.” 258 U. S., at 312; see also
Late Corp. of Church of Jesus Christ of Latter-day Saints
v. United States, 136 U. S. 1, 44 (1890) (“Doubtless Con
gress, in legislating for the Territories would be subject to
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Opinion of the Court
those fundamental limitations in favor of personal rights
which are formulated in the Constitution and its amend
ments”). Yet noting the inherent practical difficulties of
enforcing all constitutional provisions “always and every
where,” Balzac, supra, at 312, the Court devised in the
Insular Cases a doctrine that allowed it to use its power
sparingly and where it would be most needed. This cen
tury-old doctrine informs our analysis in the present
matter.
Practical considerations likewise influenced the Court’s
analysis a half-century later in Reid, 354 U. S. 1. The
petitioners there, spouses of American servicemen, lived
on American military bases in England and Japan. They
were charged with crimes committed in those countries
and tried before military courts, consistent with executive
agreements the United States had entered into with the
British and Japanese governments. Id., at 15–16, and nn.
29–30 (plurality opinion). Because the petitioners were
not themselves military personnel, they argued they were
entitled to trial by jury.
Justice Black, writing for the plurality, contrasted the
cases before him with the Insular Cases, which involved
territories “with wholly dissimilar traditions and institu
tions” that Congress intended to govern only “temporar
ily.” Id., at 14. Justice Frankfurter argued that the “spe
cific circumstances of each particular case” are relevant in
determining the geographic scope of the Constitution. Id.,
at 54 (opinion concurring in result). And Justice Harlan,
who had joined an opinion reaching the opposite result in
the case in the previous Term, Reid v. Covert, 351 U. S.
487 (1956), was most explicit in rejecting a “rigid and
abstract rule” for determining where constitutional guar
antees extend. Reid, 354 U. S., at 74 (opinion concurring
in result). He read the Insular Cases to teach that
whether a constitutional provision has extraterritorial
effect depends upon the “particular circumstances, the
30 BOUMEDIENE v. BUSH
Opinion of the Court
practical necessities, and the possible alternatives which
Congress had before it” and, in particular, whether judi
cial enforcement of the provision would be “impracticable
and anomalous.” Id., at 74–75; see also United States v.
Verdugo-Urquidez, 494 U. S. 259, 277–278 (1990)
(KENNEDY, J., concurring) (applying the “impracticable
and anomalous” extraterritoriality test in the Fourth
Amendment context).
That the petitioners in Reid were American citizens was
a key factor in the case and was central to the plurality’s
conclusion that the Fifth and Sixth Amendments apply to
American civilians tried outside the United States. But
practical considerations, related not to the petitioners’
citizenship but to the place of their confinement and trial,
were relevant to each Member of the Reid majority. And
to Justices Harlan and Frankfurter (whose votes were
necessary to the Court’s disposition) these considerations
were the decisive factors in the case.
Indeed the majority splintered on this very point. The
key disagreement between the plurality and the concur
ring Justices in Reid was over the continued precedential
value of the Court’s previous opinion in In re Ross, 140
U. S. 453 (1891), which the Reid Court understood as
holding that under some circumstances Americans abroad
have no right to indictment and trial by jury. The peti
tioner in Ross was a sailor serving on an American mer
chant vessel in Japanese waters who was tried before an
American consular tribunal for the murder of a fellow
crewman. 140 U. S., at 459, 479. The Ross Court held
that the petitioner, who was a British subject, had no
rights under the Fifth and Sixth Amendments. Id., at 464.
The petitioner’s citizenship played no role in the disposi
tion of the case, however. The Court assumed (consistent
with the maritime custom of the time) that Ross had all
the rights of a similarly situated American citizen. Id., at
479 (noting that Ross was “under the protection and sub
31 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
ject to the laws of the United States equally with the
seaman who was native born”). The Justices in Reid
therefore properly understood Ross as standing for the
proposition that, at least in some circumstances, the jury
provisions of the Fifth and Sixth Amendments have no
application to American citizens tried by American au
thorities abroad. See 354 U. S., at 11–12 (plurality opin
ion) (describing Ross as holding that “constitutional pro
tections applied ‘only to citizens and others within the
United States . . . and not to residents or temporary so
journers abroad’” (quoting Ross, supra, at 464)); 354 U. S.,
at 64 (Frankfurter, J., concurring in result) (noting that
the consular tribunals upheld in Ross “w[ere] based on
long-established custom and they were justified as the
best possible means for securing justice for the few Ameri
cans present in [foreign] countries”); 354 U. S., at 75
(Harlan, J., concurring in result) (“what Ross and the
Insular Cases hold is that the particular local setting, the
practical necessities, and the possible alternatives are
relevant to a question of judgment, namely, whether jury
trial should be deemed a necessary condition of the exer
cise of Congress’ power to provide for the trial of Ameri
cans overseas”).
The Reid plurality doubted that Ross was rightly de
cided, precisely because it believed the opinion was insuf
ficiently protective of the rights of American citizens. See
354 U. S., at 10–12; see also id., at 78 (Clark, J., dissent
ing) (noting that “four of my brothers would specifically
overrule and two would impair the long-recognized vitality
of an old and respected precedent in our law, the case of In
re Ross, 140 U. S. 453 (1891)”). But Justices Harlan and
Frankfurter, while willing to hold that the American
citizen petitioners in the cases before them were entitled
to the protections of Fifth and Sixth Amendments, were
unwilling to overturn Ross. 354 U. S., at 64 (Frankfurter,
J., concurring in result); id., at 75 (Harlan, J., concurring
32 BOUMEDIENE v. BUSH
Opinion of the Court
in result). Instead, the two concurring Justices distin
guished Ross from the cases before them, not on the basis
of the citizenship of the petitioners, but on practical con
siderations that made jury trial a more feasible option for
them than it was for the petitioner in Ross. If citizenship
had been the only relevant factor in the case, it would
have been necessary for the Court to overturn Ross, some
thing Justices Harlan and Frankfurter were unwilling to
do. See Verdugo-Urquidez, supra, at 277 (KENNEDY, J.,
concurring) (noting that Ross had not been overruled).
Practical considerations weighed heavily as well in
Johnson v. Eisentrager, 339 U. S. 763 (1950), where the
Court addressed whether habeas corpus jurisdiction ex
tended to enemy aliens who had been convicted of violat
ing the laws of war. The prisoners were detained at
Landsberg Prison in Germany during the Allied Powers’
postwar occupation. The Court stressed the difficulties of
ordering the Government to produce the prisoners in a
habeas corpus proceeding. It “would require allocation of
shipping space, guarding personnel, billeting and rations”
and would damage the prestige of military commanders at
a sensitive time. Id., at 779. In considering these factors
the Court sought to balance the constraints of military
occupation with constitutional necessities. Id., at 769–
779; see Rasul, 542 U. S., at 475–476 (discussing the
factors relevant to Eisentrager’s constitutional holding);
542 U. S., at 486 (KENNEDY, J., concurring in judgment)
(same).
True, the Court in Eisentrager denied access to the writ,
and it noted the prisoners “at no relevant time were
within any territory over which the United States is sov
ereign, and [that] the scenes of their offense, their capture,
their trial and their punishment were all beyond the
territorial jurisdiction of any court of the United States.”
339 U. S., at 778. The Government seizes upon this lan
guage as proof positive that the Eisentrager Court adopted
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a formalistic, sovereignty-based test for determining the
reach of the Suspension Clause. See Brief for Respon
dents 18–20. We reject this reading for three reasons.
First, we do not accept the idea that the above-quoted
passage from Eisentrager is the only authoritative lan
guage in the opinion and that all the rest is dicta. The
Court’s further determinations, based on practical consid
erations, were integral to Part II of its opinion and came
before the decision announced its holding. See 339 U. S.,
at 781.
Second, because the United States lacked both de jure
sovereignty and plenary control over Landsberg Prison,
see infra, at 34–35, it is far from clear that the Eisentrager
Court used the term sovereignty only in the narrow tech
nical sense and not to connote the degree of control the
military asserted over the facility. See supra, at 21. The
Justices who decided Eisentrager would have understood
sovereignty as a multifaceted concept. See Black’s Law
Dictionary 1568 (4th ed. 1951) (defining “sovereignty” as
“[t]he supreme, absolute, and uncontrollable power by
which any independent state is governed”; “the interna
tional independence of a state, combined with the right
and power of regulating its internal affairs without foreign
dictation”; and “[t]he power to do everything in a state
without accountability”); Ballentine’s Law Dictionary with
Pronunciations 1216 (2d ed. 1948) (defining “sovereignty”
as “[t]hat public authority which commands in civil soci
ety, and orders and directs what each citizen is to perform
to obtain the end of its institution”). In its principal brief
in Eisentrager, the Government advocated a bright-line
test for determining the scope of the writ, similar to the
one it advocates in these cases. See Brief for Petitioners in
Johnson v. Eisentrager, O. T. 1949, No. 306, pp. 74–75.
Yet the Court mentioned the concept of territorial sover
eignty only twice in its opinion. See Eisentrager, supra, at
778, 780. That the Court devoted a significant portion of
34 BOUMEDIENE v. BUSH
Opinion of the Court
Part II to a discussion of practical barriers to the running
of the writ suggests that the Court was not concerned
exclusively with the formal legal status of Landsberg
Prison but also with the objective degree of control the
United States asserted over it. Even if we assume the
Eisentrager Court considered the United States’ lack of
formal legal sovereignty over Landsberg Prison as the
decisive factor in that case, its holding is not inconsistent
with a functional approach to questions of extraterritorial
ity. The formal legal status of a given territory affects, at
least to some extent, the political branches’ control over
that territory. De jure sovereignty is a factor that bears
upon which constitutional guarantees apply there.
Third, if the Government’s reading of Eisentrager were
correct, the opinion would have marked not only a change
in, but a complete repudiation of, the Insular Cases’ (and
later Reid’s) functional approach to questions of extrater
ritoriality. We cannot accept the Government’s view.
Nothing in Eisentrager says that de jure sovereignty is or
has ever been the only relevant consideration in determin
ing the geographic reach of the Constitution or of habeas
corpus. Were that the case, there would be considerable
tension between Eisentrager, on the one hand, and the
Insular Cases and Reid, on the other. Our cases need not
be read to conflict in this manner. A constricted reading of
Eisentrager overlooks what we see as a common thread
uniting the Insular Cases, Eisentrager, and Reid: the idea
that questions of extraterritoriality turn on objective
factors and practical concerns, not formalism.
B
The Government’s formal sovereignty-based test raises
troubling separation-of-powers concerns as well. The
political history of Guantanamo illustrates the deficiencies
of this approach. The United States has maintained
complete and uninterrupted control of the bay for over 100
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years. At the close of the Spanish-American War, Spain
ceded control over the entire island of Cuba to the United
States and specifically “relinquishe[d] all claim[s] of sover
eignty . . . and title.” See Treaty of Paris, Dec. 10, 1898,
U. S.-Spain, Art. I, 30 Stat. 1755, T. S. No. 343. From the
date the treaty with Spain was signed until the Cuban
Republic was established on May 20, 1902, the United
States governed the territory “in trust” for the benefit of
the Cuban people. Neely v. Henkel, 180 U. S. 109, 120
(1901); H. Thomas, Cuba or The Pursuit of Freedom 436,
460 (1998). And although it recognized, by entering into
the 1903 Lease Agreement, that Cuba retained “ultimate
sovereignty” over Guantanamo, the United States contin
ued to maintain the same plenary control it had enjoyed
since 1898. Yet the Government’s view is that the Consti
tution had no effect there, at least as to noncitizens, be
cause the United States disclaimed sovereignty in the
formal sense of the term. The necessary implication of the
argument is that by surrendering formal sovereignty over
any unincorporated territory to a third party, while at the
same time entering into a lease that grants total control
over the territory back to the United States, it would be
possible for the political branches to govern without legal
constraint.
Our basic charter cannot be contracted away like this.
The Constitution grants Congress and the President the
power to acquire, dispose of, and govern territory, not the
power to decide when and where its terms apply. Even
when the United States acts outside its borders, its powers
are not “absolute and unlimited” but are subject “to such
restrictions as are expressed in the Constitution.” Murphy
v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from ques
tions involving formal sovereignty and territorial govern
ance is one thing. To hold the political branches have the
power to switch the Constitution on or off at will is quite
another. The former position reflects this Court’s recogni
36 BOUMEDIENE v. BUSH
Opinion of the Court
tion that certain matters requiring political judgments are
best left to the political branches. The latter would permit
a striking anomaly in our tripartite system of government,
leading to a regime in which Congress and the President,
not this Court, say “what the law is.” Marbury v. Madi-
son, 1 Cranch 137, 177 (1803).
These concerns have particular bearing upon the Sus
pension Clause question in the cases now before us, for the
writ of habeas corpus is itself an indispensable mechanism
for monitoring the separation of powers. The test for
determining the scope of this provision must not be subject
to manipulation by those whose power it is designed to
restrain.
C
As we recognized in Rasul, 542 U. S., at 476; id., at 487
(KENNEDY, J., concurring in judgment), the outlines of a
framework for determining the reach of the Suspension
Clause are suggested by the factors the Court relied upon
in Eisentrager. In addition to the practical concerns dis
cussed above, the Eisentrager Court found relevant that
each petitioner:
“(a) is an enemy alien; (b) has never been or resided in
the United States; (c) was captured outside of our ter
ritory and there held in military custody as a prisoner
of war; (d) was tried and convicted by a Military
Commission sitting outside the United States; (e) for
offenses against laws of war committed outside the
United States; (f) and is at all times imprisoned out
side the United States.” 339 U. S., at 777.
Based on this language from Eisentrager, and the reason
ing in our other extraterritoriality opinions, we conclude
that at least three factors are relevant in determining the
reach of the Suspension Clause: (1) the citizenship and
status of the detainee and the adequacy of the process
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through which that status determination was made; (2)
the nature of the sites where apprehension and then
detention took place; and (3) the practical obstacles inher
ent in resolving the prisoner’s entitlement to the writ.
Applying this framework, we note at the onset that the
status of these detainees is a matter of dispute. The peti
tioners, like those in Eisentrager, are not American citi
zens. But the petitioners in Eisentrager did not contest, it
seems, the Court’s assertion that they were “enemy
alien[s].” Ibid. In the instant cases, by contrast, the
detainees deny they are enemy combatants. They have
been afforded some process in CSRT proceedings to de
termine their status; but, unlike in Eisentrager, supra, at
766, there has been no trial by military commission for
violations of the laws of war. The difference is not trivial.
The records from the Eisentrager trials suggest that, well
before the petitioners brought their case to this Court,
there had been a rigorous adversarial process to test the
legality of their detention. The Eisentrager petitioners
were charged by a bill of particulars that made detailed
factual allegations against them. See 14 United Nations
War Crimes Commission, Law Reports of Trials of War
Criminals 8–10 (1949) (reprint 1997). To rebut the accu
sations, they were entitled to representation by counsel,
allowed to introduce evidence on their own behalf, and
permitted to cross-examine the prosecution’s witnesses.
See Memorandum by Command of Lt. Gen. Wedemeyer,
Jan. 21, 1946 (establishing “Regulations Governing the
Trial of War Criminals” in the China Theater), in Tr. of
Record in Johnson v. Eisentrager, O. T. 1949, No. 306, pp.
34–40.
In comparison the procedural protections afforded to the
detainees in the CSRT hearings are far more limited, and,
we conclude, fall well short of the procedures and adver
sarial mechanisms that would eliminate the need for
habeas corpus review. Although the detainee is assigned a
38 BOUMEDIENE v. BUSH
Opinion of the Court
“Personal Representative” to assist him during CSRT
proceedings, the Secretary of the Navy’s memorandum
makes clear that person is not the detainee’s lawyer or
even his “advocate.” See App. to Pet. for Cert. in No. 06–
1196, at 155, 172. The Government’s evidence is accorded
a presumption of validity. Id., at 159. The detainee is
allowed to present “reasonably available” evidence, id., at
155, but his ability to rebut the Government’s evidence
against him is limited by the circumstances of his con
finement and his lack of counsel at this stage. And al
though the detainee can seek review of his status deter
mination in the Court of Appeals, that review process
cannot cure all defects in the earlier proceedings. See Part
V, infra.
As to the second factor relevant to this analysis, the
detainees here are similarly situated to the Eisentrager
petitioners in that the sites of their apprehension and
detention are technically outside the sovereign territory of
the United States. As noted earlier, this is a factor that
weighs against finding they have rights under the Sus
pension Clause. But there are critical differences between
Landsberg Prison, circa 1950, and the United States Na
val Station at Guantanamo Bay in 2008. Unlike its pre
sent control over the naval station, the United States’
control over the prison in Germany was neither absolute
nor indefinite. Like all parts of occupied Germany, the
prison was under the jurisdiction of the combined Allied
Forces. See Declaration Regarding the Defeat of Germany
and the Assumption of Supreme Authority with Respect to
Germany, June 5, 1945, U. S.-U. S. S. R.-U. K.-Fr., 60
Stat. 1649, T. I. A. S. No. 1520. The United States was
therefore answerable to its Allies for all activities occur
ring there. Cf. Hirota v. MacArthur, 338 U. S. 197, 198
(1948) (per curiam) (military tribunal set up by Gen.
Douglas MacArthur, acting as “the agent of the Allied
Powers,” was not a “tribunal of the United States”). The
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Opinion of the Court
Allies had not planned a long-term occupation of Ger
many, nor did they intend to displace all German institu
tions even during the period of occupation. See Agree
ments Respecting Basic Principles for Merger of the Three
Western German Zones of Occupation, and Other Matters,
Apr. 8, 1949, U. S.-U. K.-Fr., Art. 1, 63 Stat. 2819,
T. I. A. S. No. 2066 (establishing a governing framework
“[d]uring the period in which it is necessary that the occu
pation continue” and expressing the desire “that the Ger
man people shall enjoy self-government to the maximum
possible degree consistent with such occupation”). The
Court’s holding in Eisentrager was thus consistent with
the Insular Cases, where it had held there was no need to
extend full constitutional protections to territories the
United States did not intend to govern indefinitely. Guan
tanamo Bay, on the other hand, is no transient possession.
In every practical sense Guantanamo is not abroad; it is
within the constant jurisdiction of the United States. See
Rasul, 542 U. S., at 480; id., at 487 (KENNEDY, J., concur
ring in judgment).
As to the third factor, we recognize, as the Court did in
Eisentrager, that there are costs to holding the Suspension
Clause applicable in a case of military detention abroad.
Habeas corpus proceedings may require expenditure of
funds by the Government and may divert the attention of
military personnel from other pressing tasks. While we
are sensitive to these concerns, we do not find them dispo
sitive. Compliance with any judicial process requires
some incremental expenditure of resources. Yet civilian
courts and the Armed Forces have functioned along side
each other at various points in our history. See, e.g.,
Duncan v. Kahanamoku, 327 U. S. 304 (1946); Ex parte
Milligan, 4 Wall. 2 (1866). The Government presents no
credible arguments that the military mission at Guan
tanamo would be compromised if habeas corpus courts had
jurisdiction to hear the detainees’ claims. And in light of
40 BOUMEDIENE v. BUSH
Opinion of the Court
the plenary control the United States asserts over the
base, none are apparent to us.
The situation in Eisentrager was far different, given the
historical context and nature of the military’s mission in
post-War Germany. When hostilities in the European
Theater came to an end, the United States became respon
sible for an occupation zone encompassing over 57,000
square miles with a population of 18 million. See Letter
from President Truman to Secretary of State Byrnes,
(Nov. 28, 1945), in 8 Documents on American Foreign
Relations 257 (R. Dennett & R. Turner eds. 1948); Pollock,
A Territorial Pattern for the Military Occupation of Ger
many, 38 Am. Pol. Sci. Rev. 970, 975 (1944). In addition to
supervising massive reconstruction and aid efforts the
American forces stationed in Germany faced potential
security threats from a defeated enemy. In retrospect the
post-War occupation may seem uneventful. But at the
time Eisentrager was decided, the Court was right to be
concerned about judicial interference with the military’s
efforts to contain “enemy elements, guerrilla fighters, and
‘were-wolves.’” 339 U. S., at 784.
Similar threats are not apparent here; nor does the
Government argue that they are. The United States
Naval Station at Guantanamo Bay consists of 45 square
miles of land and water. The base has been used, at vari
ous points, to house migrants and refugees temporarily.
At present, however, other than the detainees themselves,
the only long-term residents are American military per
sonnel, their families, and a small number of workers. See
History of Guantanamo Bay online at https://www.cnic.
navy.mil/Guantanamo/AboutGTMO/gtmohistorygeneral/
gtmohistgeneral. The detainees have been deemed ene
mies of the United States. At present, dangerous as they
may be if released, they are contained in a secure prison
facility located on an isolated and heavily fortified military
base.
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There is no indication, furthermore, that adjudicating a
habeas corpus petition would cause friction with the host
government. No Cuban court has jurisdiction over Ameri
can military personnel at Guantanamo or the enemy
combatants detained there. While obligated to abide by
the terms of the lease, the United States is, for all practi
cal purposes, answerable to no other sovereign for its acts
on the base. Were that not the case, or if the detention
facility were located in an active theater of war, argu
ments that issuing the writ would be “impracticable or
anomalous” would have more weight. See Reid, 354 U. S.,
at 74 (Harlan, J., concurring in result). Under the facts
presented here, however, there are few practical barriers
to the running of the writ. To the extent barriers arise,
habeas corpus procedures likely can be modified to ad
dress them. See Part VI–B, infra.
It is true that before today the Court has never held
that noncitizens detained by our Government in territory
over which another country maintains de jure sovereignty
have any rights under our Constitution. But the cases
before us lack any precise historical parallel. They involve
individuals detained by executive order for the duration of
a conflict that, if measured from September 11, 2001, to
the present, is already among the longest wars in Ameri
can history. See Oxford Companion to American Military
History 849 (1999). The detainees, moreover, are held in a
territory that, while technically not part of the United
States, is under the complete and total control of our
Government. Under these circumstances the lack of a
precedent on point is no barrier to our holding.
We hold that Art. I, §9, cl. 2, of the Constitution has full
effect at Guantanamo Bay. If the privilege of habeas
corpus is to be denied to the detainees now before us,
Congress must act in accordance with the requirements of
the Suspension Clause. Cf. Hamdi, 542 U. S., at 564
(SCALIA, J., dissenting) (“[I]ndefinite imprisonment on
42 BOUMEDIENE v. BUSH
Opinion of the Court
reasonable suspicion is not an available option of treat
ment for those accused of aiding the enemy, absent a
suspension of the writ”). This Court may not impose a de
facto suspension by abstaining from these controversies.
See Hamdan, 548 U. S., at 585, n. 16 (“[A]bstention is not
appropriate in cases . . . in which the legal challenge
‘turn[s] on the status of the persons as to whom the mili
tary asserted its power’” (quoting Schlesinger v. Council-
man, 420 U. S. 738, 759 (1975))). The MCA does not
purport to be a formal suspension of the writ; and the
Government, in its submissions to us, has not argued that
it is. Petitioners, therefore, are entitled to the privilege of
habeas corpus to challenge the legality of their detention.
V
In light of this holding the question becomes whether
the statute stripping jurisdiction to issue the writ avoids
the Suspension Clause mandate because Congress has
provided adequate substitute procedures for habeas cor
pus. The Government submits there has been compliance
with the Suspension Clause because the DTA review
process in the Court of Appeals, see DTA §1005(e), pro
vides an adequate substitute. Congress has granted that
court jurisdiction to consider
“(i) whether the status determination of the [CSRT]
. . . was consistent with the standards and procedures
specified by the Secretary of Defense . . . and (ii) to the
extent the Constitution and laws of the United States
are applicable, whether the use of such standards and
procedures to make the determination is consistent
with the Constitution and laws of the United States.”
§1005(e)(2)(C), 119 Stat. 2742.
The Court of Appeals, having decided that the writ does
not run to the detainees in any event, found it unneces
sary to consider whether an adequate substitute has been
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provided. In the ordinary course we would remand to the
Court of Appeals to consider this question in the first
instance. See Youakim v. Miller, 425 U. S. 231, 234 (1976)
(per curiam). It is well settled, however, that the Court’s
practice of declining to address issues left unresolved in
earlier proceedings is not an inflexible rule. Ibid. Depar
ture from the rule is appropriate in “exceptional” circum
stances. See Cooper Industries, Inc. v. Aviall Services,
Inc., 543 U. S. 157, 169 (2004); Duignan v. United States,
274 U. S. 195, 200 (1927).
The gravity of the separation-of-powers issues raised by
these cases and the fact that these detainees have been
denied meaningful access to a judicial forum for a period of
years render these cases exceptional. The parties before
us have addressed the adequacy issue. While we would
have found it informative to consider the reasoning of the
Court of Appeals on this point, we must weigh that
against the harms petitioners may endure from additional
delay. And, given there are few precedents addressing
what features an adequate substitute for habeas corpus
must contain, in all likelihood a remand simply would
delay ultimate resolution of the issue by this Court.
We do have the benefit of the Court of Appeals’ con
struction of key provisions of the DTA. When we granted
certiorari in these cases, we noted “it would be of material
assistance to consult any decision” in the parallel DTA
review proceedings pending in the Court of Appeals, spe
cifically any rulings in the matter of Bismullah v. Gates.
551 U. S. ___ (2007). Although the Court of Appeals has
yet to complete a DTA review proceeding, the three-judge
panel in Bismullah has issued an interim order giving
guidance as to what evidence can be made part of the
record on review and what access the detainees can have
to counsel and to classified information. See 501 F. 3d 178
(CADC) (Bismullah I), reh’g denied, 503 F. 3d 137 (CADC
2007) (Bismullah II). In that matter the full court denied
44 BOUMEDIENE v. BUSH
Opinion of the Court
the Government’s motion for rehearing en banc, see Bis-
mullah v. Gates, 514 F. 3d 1291 (CADC 2008) (Bismullah
III). The order denying rehearing was accompanied by
five separate statements from members of the court, which
offer differing views as to scope of the judicial review
Congress intended these detainees to have. Ibid.
Under the circumstances we believe the costs of further
delay substantially outweigh any benefits of remanding to
the Court of Appeals to consider the issue it did not ad
dress in these cases.
A
Our case law does not contain extensive discussion of
standards defining suspension of the writ or of circum
stances under which suspension has occurred. This sim
ply confirms the care Congress has taken throughout our
Nation’s history to preserve the writ and its function.
Indeed, most of the major legislative enactments pertain
ing to habeas corpus have acted not to contract the writ’s
protection but to expand it or to hasten resolution of pris
oners’ claims. See, e.g., Habeas Corpus Act of 1867, ch. 28,
§1, 14 Stat. 385 (current version codified at 28 U. S. C.
§2241 (2000 ed. and Supp. V) (extending the federal writ
to state prisoners)); Cf. Harris v. Nelson, 394 U. S. 286,
299–300 (1969) (interpreting the All Writs Act, 28 U. S. C.
§1651, to allow discovery in habeas corpus proceedings);
Peyton v. Rowe, 391 U. S. 54, 64–65 (1968) (interpreting
the then-existing version of §2241 to allow petitioner to
proceed with his habeas corpus action, even though he had
not yet begun to serve his sentence).
There are exceptions, of course. Title I of the Antiterror
ism and Effective Death Penalty Act of 1996 (AEDPA),
§106, 110 Stat. 1220, contains certain gatekeeping provi
sions that restrict a prisoner’s ability to bring new and
repetitive claims in “second or successive” habeas corpus
actions. We upheld these provisions against a Suspension
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Clause challenge in Felker v. Turpin, 518 U. S. 651, 662–
664 (1996). The provisions at issue in Felker, however, did
not constitute a substantial departure from common-law
habeas procedures. The provisions, for the most part,
codified the longstanding abuse-of-the-writ doctrine. Id.,
at 664; see also McCleskey v. Zant, 499 U. S. 467, 489
(1991). AEDPA applies, moreover, to federal, postconvic
tion review after criminal proceedings in state court have
taken place. As of this point, cases discussing the imple
mentation of that statute give little helpful instruction
(save perhaps by contrast) for the instant cases, where no
trial has been held.
The two leading cases addressing habeas substitutes,
Swain v. Pressley, 430 U. S. 372 (1977), and United States
v. Hayman, 342 U. S. 205 (1952), likewise provide little
guidance here. The statutes at issue were attempts to
streamline habeas corpus relief, not to cut it back.
The statute discussed in Hayman was 28 U. S. C. §2255.
It replaced traditional habeas corpus for federal prisoners
(at least in the first instance) with a process that allowed
the prisoner to file a motion with the sentencing court on
the ground that his sentence was, inter alia, “‘imposed in
violation of the Constitution or laws of the United States.’”
342 U. S., at 207, n. 1. The purpose and effect of the stat
ute was not to restrict access to the writ but to make
postconviction proceedings more efficient. It directed
claims not to the court that had territorial jurisdiction
over the place of the petitioner’s confinement but to the
sentencing court, a court already familiar with the facts of
the case. As the Hayman Court explained
“Section 2255 . . . was passed at the instance of the
Judicial Conference to meet practical difficulties that
had arisen in administering the habeas corpus juris
diction of the federal courts. Nowhere in the history
of Section 2255 do we find any purpose to impinge
46 BOUMEDIENE v. BUSH
Opinion of the Court
upon prisoners’ rights of collateral attack upon their
convictions. On the contrary, the sole purpose was to
minimize the difficulties encountered in habeas cor
pus hearings by affording the same rights in another
and more convenient forum.” Id., at 219.
See also Hill v. United States, 368 U. S. 424, 427, 428, and
n. 5 (1962) (noting that §2255 provides a remedy in the
sentencing court that is “exactly commensurate” with the
pre-existing federal habeas corpus remedy).
The statute in Swain, D. C. Code Ann. §23–110(g)
(1973), applied to prisoners in custody under sentence of
the Superior Court of the District of Columbia. Before
enactment of the District of Columbia Court Reform and
Criminal Procedure Act of 1970 (D. C. Court Reform Act),
84 Stat. 473, those prisoners could file habeas petitions in
the United States District Court for the District of Colum
bia. The Act, which was patterned on §2255, substituted a
new collateral process in the Superior Court for the pre
existing habeas corpus procedure in the District Court.
See Swain, 430 U. S., at 374–378. But, again, the purpose
and effect of the statute was to expedite consideration of
the prisoner’s claims, not to delay or frustrate it. See id.,
at 375, n. 4 (noting that the purpose of the D. C. Court
Reform Act was to “alleviate” administrative burdens on
the District Court).
That the statutes in Hayman and Swain were designed
to strengthen, rather than dilute, the writ’s protections
was evident, furthermore, from this significant fact: Nei
ther statute eliminated traditional habeas corpus relief.
In both cases the statute at issue had a saving clause,
providing that a writ of habeas corpus would be available
if the alternative process proved inadequate or ineffective.
Swain, supra, at 381; Hayman, supra, at 223. The Court
placed explicit reliance upon these provisions in upholding
the statutes against constitutional challenges. See Swain,
47 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
supra, at 381 (noting that the provision “avoid[ed] any
serious question about the constitutionality of the stat
ute”); Hayman, supra, at 223 (noting that, because habeas
remained available as a last resort, it was unnecessary to
“reach constitutional questions”).
Unlike in Hayman and Swain, here we confront stat
utes, the DTA and the MCA, that were intended to cir
cumscribe habeas review. Congress’ purpose is evident
not only from the unequivocal nature of MCA §7’s jurisdic
tion-stripping language, 28 U. S. C. A. §2241(e)(1) (Supp.
2007) (“No court, justice, or judge shall have jurisdiction to
hear or consider an application for a writ of habeas corpus
. . .”), but also from a comparison of the DTA to the stat
utes at issue in Hayman and Swain. When interpreting a
statute, we examine related provisions in other parts of
the U. S. Code. See, e.g., West Virginia Univ. Hospitals,
Inc. v. Casey, 499 U. S. 83, 88–97 (1991); Babbitt v. Sweet
Home Chapter, Communities for Great Ore., 515 U. S. 687,
717–718 (1995) (SCALIA, J., dissenting); see generally W.
Eskridge, P. Frickey, & E. Garrett, Cases and Materials
on Legislation: Statutes and the Creation of Public Policy
1039 (3d ed. 2001). When Congress has intended to re
place traditional habeas corpus with habeas-like substi
tutes, as was the case in Hayman and Swain, it has
granted to the courts broad remedial powers to secure the
historic office of the writ. In the §2255 context, for exam
ple, Congress has granted to the reviewing court power to
“determine the issues and make findings of fact and con
clusions of law” with respect to whether “the judgment [of
conviction] was rendered without jurisdiction, or . . . the
sentence imposed was not authorized by law or otherwise
open to collateral attack.” 28 U. S. C. A. §2255(b) (Supp.
2008). The D. C. Court Reform Act, the statute upheld in
Swain, contained a similar provision. §23–110(g), 84 Stat.
609.
In contrast the DTA’s jurisdictional grant is quite lim
48 BOUMEDIENE v. BUSH
Opinion of the Court
ited. The Court of Appeals has jurisdiction not to inquire
into the legality of the detention generally but only to
assess whether the CSRT complied with the “standards
and procedures specified by the Secretary of Defense” and
whether those standards and procedures are lawful. DTA
§1005(e)(2)(C), 119 Stat. 2742. If Congress had envisioned
DTA review as coextensive with traditional habeas corpus,
it would not have drafted the statute in this manner.
Instead, it would have used language similar to what it
used in the statutes at issue in Hayman and Swain. Cf.
Russello v. United States, 464 U. S. 16, 23 (1983)
(“‘[W]here Congress includes particular language in one
section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion’” (quoting United States v. Wong Kim Bo, 472
F. 2d 720, 722 (CA5 1972))). Unlike in Hayman and
Swain, moreover, there has been no effort to preserve
habeas corpus review as an avenue of last resort. No
saving clause exists in either the MCA or the DTA. And
MCA §7 eliminates habeas review for these petitioners.
The differences between the DTA and the habeas stat
ute that would govern in MCA §7’s absence, 28 U. S. C.
§2241 (2000 ed. and Supp. V), are likewise telling. In
§2241 (2000 ed.) Congress confirmed the authority of “any
justice” or “circuit judge” to issue the writ. Cf. Felker, 518
U. S., at 660–661 (interpreting Title I of AEDPA to not
strip from this Court the power to entertain original ha
beas corpus petitions). That statute accommodates the
necessity for factfinding that will arise in some cases by
allowing the appellate judge or Justice to transfer the case
to a district court of competent jurisdiction, whose institu
tional capacity for factfinding is superior to his or her own.
See 28 U. S. C. §2241(b). By granting the Court of Ap
peals “exclusive” jurisdiction over petitioners’ cases, see
DTA §1005(e)(2)(A), 119 Stat. 2742, Congress has fore
49 Cite as: 553 U. S. ____ (2008)
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closed that option. This choice indicates Congress in
tended the Court of Appeals to have a more limited role in
enemy combatant status determinations than a district
court has in habeas corpus proceedings. The DTA should
be interpreted to accord some latitude to the Court of
Appeals to fashion procedures necessary to make its re
view function a meaningful one, but, if congressional
intent is to be respected, the procedures adopted cannot be
as extensive or as protective of the rights of the detainees
as they would be in a §2241 proceeding. Otherwise there
would have been no, or very little, purpose for enacting the
DTA.
To the extent any doubt remains about Congress’ intent,
the legislative history confirms what the plain text
strongly suggests: In passing the DTA Congress did not
intend to create a process that differs from traditional
habeas corpus process in name only. It intended to create
a more limited procedure. See, e.g., 151 Cong. Rec. S14263
(Dec. 21, 2005) (statement of Sen. Graham) (noting that
the DTA “extinguish[es] these habeas and other actions in
order to effect a transfer of jurisdiction over these cases to
the DC Circuit Court” and agreeing that the bill “create[s]
in their place a very limited judicial review of certain
military administrative decisions”); id., at S14268 (state
ment of Sen. Kyl) (“It is important to note that the limited
judicial review authorized by paragraphs 2 and 3 of sub
section (e) [of DTA §1005] are not habeas-corpus review.
It is a limited judicial review of its own nature”).
It is against this background that we must interpret the
DTA and assess its adequacy as a substitute for habeas
corpus. The present cases thus test the limits of the Sus
pension Clause in ways that Hayman and Swain did not.
B
We do not endeavor to offer a comprehensive summary
of the requisites for an adequate substitute for habeas
50 BOUMEDIENE v. BUSH
Opinion of the Court
corpus. We do consider it uncontroversial, however, that
the privilege of habeas corpus entitles the prisoner to a
meaningful opportunity to demonstrate that he is being
held pursuant to “the erroneous application or interpreta
tion” of relevant law. St. Cyr, 533 U. S., at 302. And the
habeas court must have the power to order the conditional
release of an individual unlawfully detained—though
release need not be the exclusive remedy and is not the
appropriate one in every case in which the writ is granted.
See Ex parte Bollman, 4 Cranch 75, 136 (1807) (where
imprisonment is unlawful, the court “can only direct [the
prisoner] to be discharged”); R. Hurd, Treatise on the
Right of Personal Liberty, and On the Writ of Habeas
Corpus and the Practice Connected with It: With a View of
the Law of Extradition of Fugitives 222 (2d ed. 1876) (“It
cannot be denied where ‘a probable ground is shown that
the party is imprisoned without just cause, and therefore,
hath a right to be delivered,’ for the writ then becomes a
‘writ of right, which may not be denied but ought to be
granted to every man that is committed or detained in
prison or otherwise restrained of his liberty’”). But see
Chessman v. Teets, 354 U. S. 156, 165–166 (1957) (re
manding in a habeas case for retrial within a “reasonable
time”). These are the easily identified attributes of any
constitutionally adequate habeas corpus proceeding.
But, depending on the circumstances, more may be
required.
Indeed, common-law habeas corpus was, above all, an
adaptable remedy. Its precise application and scope
changed depending upon the circumstances. See 3 Black-
stone *131 (describing habeas as “the great and efficacious
writ, in all manner of illegal confinement”); see also
Schlup v. Delo, 513 U. S. 298, 319 (1995) (Habeas “is, at
its core, an equitable remedy”); Jones v. Cunningham, 371
U. S. 236, 243 (1963) (Habeas is not “a static, narrow,
formalistic remedy; its scope has grown to achieve its
51 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
grand purpose”). It appears the common-law habeas
court’s role was most extensive in cases of pretrial and
noncriminal detention, where there had been little or no
previous judicial review of the cause for detention. Nota
bly, the black-letter rule that prisoners could not contro
vert facts in the jailer’s return was not followed (or at least
not with consistency) in such cases. Hurd, supra, at 271
(noting that the general rule was “subject to exceptions”
including cases of bail and impressment); Oakes, Legal
History in the High Court—Habeas Corpus, 64 Mich. L.
Rev. 451, 457 (1966) (“[W]hen a prisoner applied for ha
beas corpus before indictment or trial, some courts exam
ined the written depositions on which he had been ar
rested or committed, and others even heard oral testimony
to determine whether the evidence was sufficient to justi
fying holding him for trial” (footnotes omitted)); Fallon &
Meltzer, Habeas Corpus Jurisdiction, Substantive Rights,
and the War on Terror, 120 Harv. L. Rev. 2029, 2102
(2007) (“[T]he early practice was not consistent: courts
occasionally permitted factual inquiries when no other
opportunity for judicial review existed”).
There is evidence from 19th-century American sources
indicating that, even in States that accorded strong res
judicata effect to prior adjudications, habeas courts in this
country routinely allowed prisoners to introduce exculpa
tory evidence that was either unknown or previously
unavailable to the prisoner. See, e.g., Ex parte Pattison,
56 Miss. 161, 164 (1878) (noting that “[w]hile the former
adjudication must be considered as conclusive on the
testimony then adduced” “newly developed exculpatory
evidence . . . may authorize the admission to bail”); Ex
parte Foster, 5 Tex. Ct. App. 625, 644 (1879) (construing
the State’s habeas statute to allow for the introduction of
new evidence “where important testimony has been ob
tained, which, though not newly discovered, or which,
though known to [the petitioner], it was not in his power
52 BOUMEDIENE v. BUSH
Opinion of the Court
to produce at the former hearing; [and] where the evidence
was newly discovered”); People v. Martin, 7 N. Y. Leg. Obs.
49, 56 (1848) (“If in custody on criminal process before
indictment, the prisoner has an absolute right to demand
that the original depositions be looked into to see whether
any crime is in fact imputed to him, and the inquiry will
by no means be confined to the return. Facts out of the
return may be gone into to ascertain whether the commit
ting magistrate may not have arrived at an illogical con
clusion upon the evidence given before him . . .”); see
generally W. Church, Treatise on the Writ of Habeas
Corpus §182, p. 235 1886) (hereinafter Church) (noting
that habeas courts would “hear evidence anew if justice
require it”). Justice McLean, on Circuit in 1855, expressed
his view that a habeas court should consider a prior judg
ment conclusive “where there was clearly jurisdiction and
a full and fair hearing; but that it might not be so consid
ered when any of these requisites were wanting.” Ex parte
Robinson, 20 F. Cas. 969, 971, (No. 11,935) (CC Ohio
1855). To illustrate the circumstances in which the prior
adjudication did not bind the habeas court, he gave the
example of a case in which “[s]everal unimpeached wit
nesses” provided new evidence to exculpate the prisoner.
Ibid.
The idea that the necessary scope of habeas review in
part depends upon the rigor of any earlier proceedings
accords with our test for procedural adequacy in the due
process context. See Mathews v. Eldridge, 424 U. S. 319,
335 (1976) (noting that the Due Process Clause requires
an assessment of, inter alia, “the risk of an erroneous
deprivation of [a liberty interest;] and the probable value,
if any, of additional or substitute procedural safeguards”).
This principle has an established foundation in habeas
corpus jurisprudence as well, as Chief Justice Marshall’s
opinion in Ex parte Watkins, 3 Pet. 193 (1830), demon
strates. Like the petitioner in Swain, Watkins sought a
53 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
writ of habeas corpus after being imprisoned pursuant to a
judgment of a District of Columbia court. In holding that
the judgment stood on “high ground,” 3 Pet., at 209, the
Chief Justice emphasized the character of the court that
rendered the original judgment, noting it was a “court of
record, having general jurisdiction over criminal cases.”
Id., at 203. In contrast to “inferior” tribunals of limited
jurisdiction, ibid., courts of record had broad remedial
powers, which gave the habeas court greater confidence in
the judgment’s validity. See generally Neuman, Habeas
Corpus, Executive Detention, and the Removal of Aliens,
98 Colum. L. Rev. 961, 982–983 (1998).
Accordingly, where relief is sought from a sentence that
resulted from the judgment of a court of record, as was the
case in Watkins and indeed in most federal habeas cases,
considerable deference is owed to the court that ordered
confinement. See Brown v. Allen, 344 U. S. 443, 506
(1953) (opinion of Frankfurter, J.) (noting that a federal
habeas court should accept a state court’s factual findings
unless “a vital flaw be found in the process of ascertaining
such facts in the State court”). Likewise in those cases the
prisoner should exhaust adequate alternative remedies
before filing for the writ in federal court. See Ex parte
Royall, 117 U. S. 241, 251–252 (1886) (requiring exhaus
tion of state collateral processes). Both aspects of federal
habeas corpus review are justified because it can be as
sumed that, in the usual course, a court of record provides
defendants with a fair, adversary proceeding. In cases
involving state convictions this framework also respects
federalism; and in federal cases it has added justification
because the prisoner already has had a chance to seek
review of his conviction in a federal forum through a direct
appeal. The present cases fall outside these categories,
however; for here the detention is by executive order.
Where a person is detained by executive order, rather
than, say, after being tried and convicted in a court, the
54 BOUMEDIENE v. BUSH
Opinion of the Court
need for collateral review is most pressing. A criminal
conviction in the usual course occurs after a judicial hear
ing before a tribunal disinterested in the outcome and
committed to procedures designed to ensure its own inde
pendence. These dynamics are not inherent in executive
detention orders or executive review procedures. In this
context the need for habeas corpus is more urgent. The
intended duration of the detention and the reasons for it
bear upon the precise scope of the inquiry. Habeas corpus
proceedings need not resemble a criminal trial, even when
the detention is by executive order. But the writ must be
effective. The habeas court must have sufficient authority
to conduct a meaningful review of both the cause for de
tention and the Executive’s power to detain.
To determine the necessary scope of habeas corpus
review, therefore, we must assess the CSRT process, the
mechanism through which petitioners’ designation as
enemy combatants became final. Whether one character
izes the CSRT process as direct review of the Executive’s
battlefield determination that the detainee is an enemy
combatant—as the parties have and as we do—or as the
first step in the collateral review of a battlefield determi
nation makes no difference in a proper analysis of whether
the procedures Congress put in place are an adequate
substitute for habeas corpus. What matters is the sum
total of procedural protections afforded to the detainee at
all stages, direct and collateral.
Petitioners identify what they see as myriad deficiencies
in the CSRTs. The most relevant for our purposes are the
constraints upon the detainee’s ability to rebut the factual
basis for the Government’s assertion that he is an enemy
combatant. As already noted, see Part IV–C, supra, at the
CSRT stage the detainee has limited means to find or
present evidence to challenge the Government’s case
against him. He does not have the assistance of counsel
and may not be aware of the most critical allegations that
55 Cite as: 553 U. S. ____ (2008)
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the Government relied upon to order his detention. See
App. to Pet. for Cert. in No. 06–1196, at 156, ¶F(8) (noting
that the detainee can access only the “unclassified portion
of the Government Information”). The detainee can con
front witnesses that testify during the CSRT proceedings.
Id., at 144, ¶g(8). But given that there are in effect no
limits on the admission of hearsay evidence—the only
requirement is that the tribunal deem the evidence “rele
vant and helpful,” ibid., ¶g(9)—the detainee’s opportunity
to question witnesses is likely to be more theoretical than
real.
The Government defends the CSRT process, arguing
that it was designed to conform to the procedures sug
gested by the plurality in Hamdi. See 542 U. S., at 538.
Setting aside the fact that the relevant language in Hamdi
did not garner a majority of the Court, it does not control
the matter at hand. None of the parties in Hamdi argued
there had been a suspension of the writ. Nor could they.
The §2241 habeas corpus process remained in place, id., at
525. Accordingly, the plurality concentrated on whether
the Executive had the authority to detain and, if so, what
rights the detainee had under the Due Process Clause.
True, there are places in the Hamdi plurality opinion
where it is difficult to tell where its extrapolation of §2241
ends and its analysis of the petitioner’s Due Process rights
begins. But the Court had no occasion to define the neces
sary scope of habeas review, for Suspension Clause pur
poses, in the context of enemy combatant detentions. The
closest the plurality came to doing so was in discussing
whether, in light of separation-of-powers concerns, §2241
should be construed to forbid the District Court from
inquiring beyond the affidavit Hamdi’s custodian provided
in answer to the detainee’s habeas petition. The plurality
answered this question with an emphatic “no.” Id., at 527
(labeling this argument as “extreme”); id., at 535–536.
Even if we were to assume that the CSRTs satisfy due
56 BOUMEDIENE v. BUSH
Opinion of the Court
process standards, it would not end our inquiry. Habeas
corpus is a collateral process that exists, in Justice
Holmes’ words, to “cu[t] through all forms and g[o] to the
very tissue of the structure. It comes in from the outside,
not in subordination to the proceedings, and although
every form may have been preserved opens the inquiry
whether they have been more than an empty shell.”
Frank v. Mangum, 237 U. S. 309, 346 (1915) (dissenting
opinion). Even when the procedures authorizing detention
are structurally sound, the Suspension Clause remains
applicable and the writ relevant. See 2 Chambers, Course
of Lectures on English Law 1767–1773, at 6 (“Liberty may
be violated either by arbitrary imprisonment without law
or the appearance of law, or by a lawful magistrate for an
unlawful reason”). This is so, as Hayman and Swain
make clear, even where the prisoner is detained after a
criminal trial conducted in full accordance with the protec
tions of the Bill of Rights. Were this not the case, there
would have been no reason for the Court to inquire into
the adequacy of substitute habeas procedures in Hayman
and Swain. That the prisoners were detained pursuant to
the most rigorous proceedings imaginable, a full criminal
trial, would have been enough to render any habeas sub
stitute acceptable per se.
Although we make no judgment as to whether the
CSRTs, as currently constituted, satisfy due process stan
dards, we agree with petitioners that, even when all the
parties involved in this process act with diligence and in
good faith, there is considerable risk of error in the tribu
nal’s findings of fact. This is a risk inherent in any proc
ess that, in the words of the former Chief Judge of the
Court of Appeals, is “closed and accusatorial.” See Bis-
mullah III, 514 F. 3d, at 1296 (Ginsburg, C. J., concurring
in denial of rehearing en banc). And given that the conse
quence of error may be detention of persons for the dura
tion of hostilities that may last a generation or more, this
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is a risk too significant to ignore.
For the writ of habeas corpus, or its substitute, to func
tion as an effective and proper remedy in this context, the
court that conducts the habeas proceeding must have the
means to correct errors that occurred during the CSRT
proceedings. This includes some authority to assess the
sufficiency of the Government’s evidence against the
detainee. It also must have the authority to admit and
consider relevant exculpatory evidence that was not intro
duced during the earlier proceeding. Federal habeas
petitioners long have had the means to supplement the
record on review, even in the postconviction habeas set
ting. See Townsend v. Sain, 372 U. S. 293, 313 (1963),
overruled in part by Keeney v. Tamayo-Reyes, 504 U. S. 1,
5 (1992). Here that opportunity is constitutionally
required.
Consistent with the historic function and province of the
writ, habeas corpus review may be more circumscribed if
the underlying detention proceedings are more thorough
than they were here. In two habeas cases involving enemy
aliens tried for war crimes, In re Yamashita, 327 U. S. 1
(1946), and Ex parte Quirin, 317 U. S. 1 (1942), for exam
ple, this Court limited its review to determining whether
the Executive had legal authority to try the petitioners by
military commission. See Yamashita, supra, at 8 (“[O]n
application for habeas corpus we are not concerned with
the guilt or innocence of the petitioners. We consider here
only the lawful power of the commission to try the peti
tioner for the offense charged”); Quirin, supra, at 25 (“We
are not here concerned with any question of the guilt or
innocence of petitioners”). Military courts are not courts of
record. See Watkins, 3 Pet., at 209; Church 513. And the
procedures used to try General Yamashita have been
sharply criticized by Members of this Court. See Hamdan,
548 U. S., at 617; Yamashita, supra, at 41–81 (Rutledge,
J., dissenting). We need not revisit these cases, however.
58 BOUMEDIENE v. BUSH
Opinion of the Court
For on their own terms, the proceedings in Yamashita and
Quirin, like those in Eisentrager, had an adversarial
structure that is lacking here. See Yamashita, supra, at 5
(noting that General Yamashita was represented by six
military lawyers and that “[t]hroughout the proceedings
. . . defense counsel . . . demonstrated their professional
skill and resourcefulness and their proper zeal for the
defense with which they were charged”); Quirin, supra, at
23–24; Exec. Order No. 9185, 7 Fed. Reg. 5103 (1942)
(appointing counsel to represent the German saboteurs).
The extent of the showing required of the Government
in these cases is a matter to be determined. We need not
explore it further at this stage. We do hold that when the
judicial power to issue habeas corpus properly is invoked
the judicial officer must have adequate authority to make
a determination in light of the relevant law and facts and
to formulate and issue appropriate orders for relief, in
cluding, if necessary, an order directing the prisoner’s
release.
C
We now consider whether the DTA allows the Court of
Appeals to conduct a proceeding meeting these standards.
“[W]e are obligated to construe the statute to avoid [con
stitutional] problems” if it is “‘fairly possible’” to do so. St.
Cyr, 533 U. S., at 299–300 (quoting Crowell v. Benson, 285
U. S. 22, 62 (1932)). There are limits to this principle,
however. The canon of constitutional avoidance does not
supplant traditional modes of statutory interpretation.
See Clark v. Martinez, 543 U. S. 371, 385 (2005) (“The
canon of constitutional avoidance comes into play only
when, after the application of ordinary textual analysis,
the statute is found to be susceptible of more than one
construction; and the canon functions as a means of choos-
ing between them”). We cannot ignore the text and pur
pose of a statute in order to save it.
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The DTA does not explicitly empower the Court of Ap
peals to order the applicant in a DTA review proceeding
released should the court find that the standards and
procedures used at his CSRT hearing were insufficient to
justify detention. This is troubling. Yet, for present pur
poses, we can assume congressional silence permits a
constitutionally required remedy. In that case it would be
possible to hold that a remedy of release is impliedly
provided for. The DTA might be read, furthermore, to
allow the petitioners to assert most, if not all, of the legal
claims they seek to advance, including their most basic
claim: that the President has no authority under the
AUMF to detain them indefinitely. (Whether the Presi
dent has such authority turns on whether the AUMF
authorizes—and the Constitution permits—the indefinite
detention of “enemy combatants” as the Department of
Defense defines that term. Thus a challenge to the Presi
dent’s authority to detain is, in essence, a challenge to the
Department’s definition of enemy combatant, a “standard”
used by the CSRTs in petitioners’ cases.) At oral argu
ment, the Solicitor General urged us to adopt both these
constructions, if doing so would allow MCA §7 to remain
intact. See Tr. of Oral Arg. 37, 53.
The absence of a release remedy and specific language
allowing AUMF challenges are not the only constitutional
infirmities from which the statute potentially suffers,
however. The more difficult question is whether the DTA
permits the Court of Appeals to make requisite findings of
fact. The DTA enables petitioners to request “review” of
their CSRT determination in the Court of Appeals, DTA
§1005(e)(2)(B)(i), 119 Stat. 2742; but the “Scope of Review”
provision confines the Court of Appeals’ role to reviewing
whether the CSRT followed the “standards and proce
dures” issued by the Department of Defense and assessing
whether those “standards and procedures” are lawful.
§1005(e)(C), ibid. Among these standards is “the require
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Opinion of the Court
ment that the conclusion of the Tribunal be supported by a
preponderance of the evidence . . . allowing a rebuttable
presumption in favor of the Government’s evidence.”
§1005(e)(C)(i), ibid.
Assuming the DTA can be construed to allow the Court
of Appeals to review or correct the CSRT’s factual deter
minations, as opposed to merely certifying that the tribu
nal applied the correct standard of proof, we see no way to
construe the statute to allow what is also constitutionally
required in this context: an opportunity for the detainee to
present relevant exculpatory evidence that was not made
part of the record in the earlier proceedings.
On its face the statute allows the Court of Appeals to
consider no evidence outside the CSRT record. In the
parallel litigation, however, the Court of Appeals deter
mined that the DTA allows it to order the production of all
“‘reasonably available information in the possession of the
U. S. Government bearing on the issue of whether the
detainee meets the criteria to be designated as an enemy
combatant,’” regardless of whether this evidence was put
before the CSRT. See Bismullah I, 501 F. 3d, at 180. The
Government, see Pet. for Cert. pending in Gates v. Bismul-
lah, No. 07–1054 (hereinafter Bismullah Pet.), with sup
port from five members of the Court of Appeals, see Bis-
mullah III, 514 F. 3d, at 1299 (Henderson, J., dissenting
from denial of rehearing en banc); id., at 1302 (opinion of
Randolph, J.) (same); id., at 1306 (opinion of Brown, J.)
(same), disagrees with this interpretation. For present
purposes, however, we can assume that the Court of Ap
peals was correct that the DTA allows introduction and
consideration of relevant exculpatory evidence that was
“reasonably available” to the Government at the time of
the CSRT but not made part of the record. Even so, the
DTA review proceeding falls short of being a constitution
ally adequate substitute, for the detainee still would have
no opportunity to present evidence discovered after the
61 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
CSRT proceedings concluded.
Under the DTA the Court of Appeals has the power to
review CSRT determinations by assessing the legality of
standards and procedures. This implies the power to
inquire into what happened at the CSRT hearing and,
perhaps, to remedy certain deficiencies in that proceeding.
But should the Court of Appeals determine that the CSRT
followed appropriate and lawful standards and proce
dures, it will have reached the limits of its jurisdiction.
There is no language in the DTA that can be construed to
allow the Court of Appeals to admit and consider newly
discovered evidence that could not have been made part of
the CSRT record because it was unavailable to either the
Government or the detainee when the CSRT made its
findings. This evidence, however, may be critical to the
detainee’s argument that he is not an enemy combatant
and there is no cause to detain him.
This is not a remote hypothetical. One of the petition
ers, Mohamed Nechla, requested at his CSRT hearing that
the Government contact his employer. The petitioner
claimed the employer would corroborate Nechla’s conten
tion he had no affiliation with al Qaeda. Although the
CSRT determined this testimony would be relevant, it also
found the witness was not reasonably available to testify
at the time of the hearing. Petitioner’s counsel, however,
now represents the witness is available to be heard. See
Brief for Boumediene Petitioners 5. If a detainee can
present reasonably available evidence demonstrating
there is no basis for his continued detention, he must have
the opportunity to present this evidence to a habeas cor
pus court. Even under the Court of Appeals’ generous
construction of the DTA, however, the evidence identified
by Nechla would be inadmissible in a DTA review proceed
ing. The role of an Article III court in the exercise of its
habeas corpus function cannot be circumscribed in this
manner.
62 BOUMEDIENE v. BUSH
Opinion of the Court
By foreclosing consideration of evidence not presented or
reasonably available to the detainee at the CSRT proceed
ings, the DTA disadvantages the detainee by limiting the
scope of collateral review to a record that may not be
accurate or complete. In other contexts, e.g., in post-trial
habeas cases where the prisoner already has had a full
and fair opportunity to develop the factual predicate of his
claims, similar limitations on the scope of habeas review
may be appropriate. See Williams v. Taylor, 529 U. S.
420, 436–437 (2000) (noting that §2254 “does not equate
prisoners who exercise diligence in pursuing their claims
with those who do not”). In this context, however, where
the underlying detention proceedings lack the necessary
adversarial character, the detainee cannot be held respon
sible for all deficiencies in the record.
The Government does not make the alternative argu
ment that the DTA allows for the introduction of previ
ously unavailable exculpatory evidence on appeal. It does
point out, however, that if a detainee obtains such evi
dence, he can request that the Deputy Secretary of De
fense convene a new CSRT. See Supp. Brief for Respon
dents 4. Whatever the merits of this procedure, it is an
insufficient replacement for the factual review these de
tainees are entitled to receive through habeas corpus. The
Deputy Secretary’s determination whether to initiate new
proceedings is wholly a discretionary one. See Dept. of
Defense, Office for the Administrative Review of the De
tention of Enemy Combatants, Instruction 5421.1, Proce
dure for Review of “New Evidence” Relating to Enemy
Combatant (EC) Status ¶5(d) (May 7, 2007) (Instruction
5421.1) (“The decision to convene a CSRT to reconsider the
basis of the detainee’s [enemy combatant] status in light of
‘new evidence’ is a matter vested in the unreviewable
discretion of the [Deputy Secretary of Defense]”). And we
see no way to construe the DTA to allow a detainee to
challenge the Deputy Secretary’s decision not to open a
63 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
new CSRT pursuant to Instruction 5421.1. Congress
directed the Secretary of Defense to devise procedures for
considering new evidence, see DTA §1005(a)(3), but the
detainee has no mechanism for ensuring that those proce
dures are followed. DTA §1005(e)(2)(C), 119 Stat. 2742,
makes clear that the Court of Appeals’ jurisdiction is
“limited to consideration of . . . whether the status deter
mination of the Combatant Status Review Tribunal with
regard to such alien was consistent with the standards
and procedures specified by the Secretary of Defense . . .
and . . . whether the use of such standards and procedures
to make the determination is consistent with the Constitu
tion and laws of the United States.” DTA §1005(e)(2)(A),
ibid., further narrows the Court of Appeals’ jurisdiction to
reviewing “any final decision of a Combatant Status Re
view Tribunal that an alien is properly detained as an
enemy combatant.” The Deputy Secretary’s determination
whether to convene a new CSRT is not a “status determi
nation of the Combatant Status Review Tribunal,” much
less a “final decision” of that body.
We do not imply DTA review would be a constitutionally
sufficient replacement for habeas corpus but for these
limitations on the detainee’s ability to present exculpatory
evidence. For even if it were possible, as a textual matter,
to read into the statute each of the necessary procedures
we have identified, we could not overlook the cumulative
effect of our doing so. To hold that the detainees at Guan
tanamo may, under the DTA, challenge the President’s
legal authority to detain them, contest the CSRT’s find
ings of fact, supplement the record on review with excul
patory evidence, and request an order of release would
come close to reinstating the §2241 habeas corpus process
Congress sought to deny them. The language of the stat
ute, read in light of Congress’ reasons for enacting it,
cannot bear this interpretation. Petitioners have met
their burden of establishing that the DTA review process
64 BOUMEDIENE v. BUSH
Opinion of the Court
is, on its face, an inadequate substitute for habeas corpus.
Although we do not hold that an adequate substitute
must duplicate §2241 in all respects, it suffices that the
Government has not established that the detainees’ access
to the statutory review provisions at issue is an adequate
substitute for the writ of habeas corpus. MCA §7 thus
effects an unconstitutional suspension of the writ. In view
of our holding we need not discuss the reach of the writ
with respect to claims of unlawful conditions of treatment
or confinement.
VI
A
In light of our conclusion that there is no jurisdictional
bar to the District Court’s entertaining petitioners’ claims
the question remains whether there are prudential barri
ers to habeas corpus review under these circumstances.
The Government argues petitioners must seek review of
their CSRT determinations in the Court of Appeals before
they can proceed with their habeas corpus actions in the
District Court. As noted earlier, in other contexts and for
prudential reasons this Court has required exhaustion of
alternative remedies before a prisoner can seek federal
habeas relief. Most of these cases were brought by prison
ers in state custody, e.g., Ex parte Royall, 117 U. S. 241,
and thus involved federalism concerns that are not rele
vant here. But we have extended this rule to require
defendants in courts-martial to exhaust their military
appeals before proceeding with a federal habeas corpus
action. See Schlesinger, 420 U. S., at 758.
The real risks, the real threats, of terrorist attacks are
constant and not likely soon to abate. The ways to disrupt
our life and laws are so many and unforeseen that the
Court should not attempt even some general catalogue of
crises that might occur. Certain principles are apparent,
however. Practical considerations and exigent circum
65 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
stances inform the definition and reach of the law’s writs,
including habeas corpus. The cases and our tradition
reflect this precept.
In cases involving foreign citizens detained abroad by
the Executive, it likely would be both an impractical and
unprecedented extension of judicial power to assume that
habeas corpus would be available at the moment the
prisoner is taken into custody. If and when habeas corpus
jurisdiction applies, as it does in these cases, then proper
deference can be accorded to reasonable procedures for
screening and initial detention under lawful and proper
conditions of confinement and treatment for a reasonable
period of time. Domestic exigencies, furthermore, might
also impose such onerous burdens on the Government that
here, too, the Judicial Branch would be required to devise
sensible rules for staying habeas corpus proceedings until
the Government can comply with its requirements in a
responsible way. Cf. Ex parte Milligan, 4 Wall., at 127
(“If, in foreign invasion or civil war, the courts are actually
closed, and it is impossible to administer criminal justice
according to law, then, on the theatre of active military
operations, where war really prevails, there is a necessity
to furnish a substitute for the civil authority, thus over
thrown, to preserve the safety of the army and society; and
as no power is left but the military, it is allowed to govern
by martial rule until the laws can have their free course”).
Here, as is true with detainees apprehended abroad, a
relevant consideration in determining the courts’ role is
whether there are suitable alternative processes in place
to protect against the arbitrary exercise of governmental
power.
The cases before us, however, do not involve detainees
who have been held for a short period of time while await
ing their CSRT determinations. Were that the case, or
were it probable that the Court of Appeals could complete
a prompt review of their applications, the case for requir
66 BOUMEDIENE v. BUSH
Opinion of the Court
ing temporary abstention or exhaustion of alternative
remedies would be much stronger. These qualifications no
longer pertain here. In some of these cases six years have
elapsed without the judicial oversight that habeas corpus
or an adequate substitute demands. And there has been
no showing that the Executive faces such onerous burdens
that it cannot respond to habeas corpus actions. To re
quire these detainees to complete DTA review before
proceeding with their habeas corpus actions would be to
require additional months, if not years, of delay. The first
DTA review applications were filed over a year ago, but no
decisions on the merits have been issued. While some
delay in fashioning new procedures is unavoidable, the
costs of delay can no longer be borne by those who are held
in custody. The detainees in these cases are entitled to a
prompt habeas corpus hearing.
Our decision today holds only that the petitioners before
us are entitled to seek the writ; that the DTA review
procedures are an inadequate substitute for habeas cor
pus; and that the petitioners in these cases need not ex
haust the review procedures in the Court of Appeals before
proceeding with their habeas actions in the District Court.
The only law we identify as unconstitutional is MCA §7,
28 U. S. C. A. §2241(e) (Supp. 2007). Accordingly, both the
DTA and the CSRT process remain intact. Our holding
with regard to exhaustion should not be read to imply that
a habeas court should intervene the moment an enemy
combatant steps foot in a territory where the writ runs.
The Executive is entitled to a reasonable period of time to
determine a detainee’s status before a court entertains
that detainee’s habeas corpus petition. The CSRT process
is the mechanism Congress and the President set up to
deal with these issues. Except in cases of undue delay,
federal courts should refrain from entertaining an enemy
combatant’s habeas corpus petition at least until after the
Department, acting via the CSRT, has had a chance to
67 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
review his status.
B
Although we hold that the DTA is not an adequate and
effective substitute for habeas corpus, it does not follow
that a habeas corpus court may disregard the dangers the
detention in these cases was intended to prevent. Felker,
Swain, and Hayman stand for the proposition that the
Suspension Clause does not resist innovation in the field
of habeas corpus. Certain accommodations can be made to
reduce the burden habeas corpus proceedings will place on
the military without impermissibly diluting the protec
tions of the writ.
In the DTA Congress sought to consolidate review of
petitioners’ claims in the Court of Appeals. Channeling
future cases to one district court would no doubt reduce
administrative burdens on the Government. This is a
legitimate objective that might be advanced even without
an amendment to §2241. If, in a future case, a detainee
files a habeas petition in another judicial district in which
a proper respondent can be served, see Rumsfeld v.
Padilla, 542 U. S. 426, 435–436 (2004), the Government
can move for change of venue to the court that will hear
these petitioners’ cases, the United States District Court
for the District of Columbia. See 28 U. S. C. §1404(a);
Braden v. 30th Judicial Circuit Court of Ky., 410 U. S.
484, 499, n. 15 (1973).
Another of Congress’ reasons for vesting exclusive juris
diction in the Court of Appeals, perhaps, was to avoid the
widespread dissemination of classified information. The
Government has raised similar concerns here and else
where. See Brief for Respondents 55–56; Bismullah Pet.
30. We make no attempt to anticipate all of the eviden
tiary and access-to-counsel issues that will arise during
the course of the detainees’ habeas corpus proceedings.
We recognize, however, that the Government has a legiti
68 BOUMEDIENE v. BUSH
Opinion of the Court
mate interest in protecting sources and methods of intelli
gence gathering; and we expect that the District Court will
use its discretion to accommodate this interest to the
greatest extent possible. Cf. United States v. Reynolds,
345 U. S. 1, 10 (1953) (recognizing an evidentiary privilege
in a civil damages case where “there is a reasonable dan
ger that compulsion of the evidence will expose military
matters which, in the interest of national security, should
not be divulged”).
These and the other remaining questions are within the
expertise and competence of the District Court to address
in the first instance.
* * *
In considering both the procedural and substantive
standards used to impose detention to prevent acts of
terrorism, proper deference must be accorded to the politi
cal branches. See United States v. Curtiss-Wright Export
Corp., 299 U. S. 304, 320 (1936). Unlike the President and
some designated Members of Congress, neither the Mem
bers of this Court nor most federal judges begin the day
with briefings that may describe new and serious threats
to our Nation and its people. The law must accord the
Executive substantial authority to apprehend and detain
those who pose a real danger to our security.
Officials charged with daily operational responsibility
for our security may consider a judicial discourse on the
history of the Habeas Corpus Act of 1679 and like matters
to be far removed from the Nation’s present, urgent con
cerns. Established legal doctrine, however, must be con
sulted for its teaching. Remote in time it may be; irrele
vant to the present it is not. Security depends upon a
sophisticated intelligence apparatus and the ability of our
Armed Forces to act and to interdict. There are further
considerations, however. Security subsists, too, in fidelity
to freedom’s first principles. Chief among these are free
69 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
dom from arbitrary and unlawful restraint and the per
sonal liberty that is secured by adherence to the separa
tion of powers. It is from these principles that the judicial
authority to consider petitions for habeas corpus relief
derives.
Our opinion does not undermine the Executive’s powers
as Commander in Chief. On the contrary, the exercise of
those powers is vindicated, not eroded, when confirmed by
the Judicial Branch. Within the Constitution’s separa
tion-of-powers structure, few exercises of judicial power
are as legitimate or as necessary as the responsibility to
hear challenges to the authority of the Executive to im
prison a person. Some of these petitioners have been in
custody for six years with no definitive judicial determina
tion as to the legality of their detention. Their access to
the writ is a necessity to determine the lawfulness of their
status, even if, in the end, they do not obtain the relief
they seek.
Because our Nation’s past military conflicts have been of
limited duration, it has been possible to leave the outer
boundaries of war powers undefined. If, as some fear,
terrorism continues to pose dangerous threats to us for
years to come, the Court might not have this luxury. This
result is not inevitable, however. The political branches,
consistent with their independent obligations to interpret
and uphold the Constitution, can engage in a genuine
debate about how best to preserve constitutional values
while protecting the Nation from terrorism. Cf. Hamdan,
548 U. S., at 636 (BREYER, J., concurring) (“[J]udicial
insistence upon that consultation does not weaken our
Nation’s ability to deal with danger. To the contrary, that
insistence strengthens the Nation’s ability to determine—
through democratic means—how best to do so”).
It bears repeating that our opinion does not address the
content of the law that governs petitioners’ detention.
That is a matter yet to be determined. We hold that peti
70 BOUMEDIENE v. BUSH
Opinion of the Court
tioners may invoke the fundamental procedural protec
tions of habeas corpus. The laws and Constitution are
designed to survive, and remain in force, in extraordinary
times. Liberty and security can be reconciled; and in our
system they are reconciled within the framework of the
law. The Framers decided that habeas corpus, a right of
first importance, must be a part of that framework, a part
of that law.
The determination by the Court of Appeals that the
Suspension Clause and its protections are inapplicable to
petitioners was in error. The judgment of the Court of
Appeals is reversed. The cases are remanded to the Court
of Appeals with instructions that it remand the cases to
the District Court for proceedings consistent with this
opinion.
It is so ordered.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
SOUTER, J., concurring
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
JUSTICE SOUTER, with whom JUSTICE GINSBURG and
JUSTICE BREYER join, concurring.
I join the Court’s opinion in its entirety and add this
afterword only to emphasize two things one might over-
look after reading the dissents.
Four years ago, this Court in Rasul v. Bush, 542 U. S.
466 (2004) held that statutory habeas jurisdiction ex-
tended to claims of foreign nationals imprisoned by the
United States at Guantanamo Bay, “to determine the
legality of the Executive’s potentially indefinite detention”
of them, id., at 485. Subsequent legislation eliminated the
statutory habeas jurisdiction over these claims, so that
now there must be constitutionally based jurisdiction or
none at all. JUSTICE SCALIA is thus correct that here, for
the first time, this Court holds there is (he says “confers”)
constitutional habeas jurisdiction over aliens imprisoned
2 BOUMEDIENE v. BUSH
SOUTER, J., concurring
by the military outside an area of de jure national sover-
eignty, see post, at 1 (dissenting opinion). But no one who
reads the Court’s opinion in Rasul could seriously doubt
that the jurisdictional question must be answered the
same way in purely constitutional cases, given the Court’s
reliance on the historical background of habeas generally
in answering the statutory question. See, e.g., 542 U. S.,
at 473, 481–483, and nn. 11–14. Indeed, the Court in
Rasul directly answered the very historical question that
JUSTICE SCALIA says is dispositive, see post, at 18; it wrote
that “[a]pplication of the habeas statute to persons de-
tained at [Guantanamo] is consistent with the historical
reach of the writ of habeas corpus,” 542 U. S., at 481.
JUSTICE SCALIA dismisses the statement as dictum, see
post, at 21, but if dictum it was, it was dictum well consid-
ered, and it stated the view of five Members of this Court
on the historical scope of the writ. Of course, it takes more
than a quotation from Rasul, however much on point, to
resolve the constitutional issue before us here, which the
majority opinion has explored afresh in the detail it de-
serves. But whether one agrees or disagrees with today’s
decision, it is no bolt out of the blue.
A second fact insufficiently appreciated by the dissents
is the length of the disputed imprisonments, some of the
prisoners represented here today having been locked up
for six years, ante, at 66 (opinion of the Court). Hence the
hollow ring when the dissenters suggest that the Court is
somehow precipitating the judiciary into reviewing claims
that the military (subject to appeal to the Court of Appeals
for the District of Columbia Circuit) could handle within
some reasonable period of time. See, e.g., post, at 3 (opin-
ion of ROBERTS, C. J.) (“[T]he Court should have declined
to intervene until the D. C. Circuit had assessed the na-
ture and validity of the congressionally mandated proceed-
ings in a given detainee’s case”); post, at 6 (“[I]t is not
necessary to consider the availability of the writ until the
3 Cite as: 553 U. S. ____ (2008)
SOUTER, J., concurring
statutory remedies have been shown to be inadequate”);
post, at 8 (“[The Court] rushes to decide the fundamental
question of the reach of habeas corpus when the function-
ing of the DTA may make that decision entirely unneces-
sary”). These suggestions of judicial haste are all the more
out of place given the Court’s realistic acknowledgment
that in periods of exigency the tempo of any habeas review
must reflect the immediate peril facing the country. See
ante, at 64–65.
It is in fact the very lapse of four years from the time
Rasul put everyone on notice that habeas process was
available to Guantanamo prisoners, and the lapse of six
years since some of these prisoners were captured and
incarcerated, that stand at odds with the repeated sugges-
tions of the dissenters that these cases should be seen as a
judicial victory in a contest for power between the Court
and the political branches. See post, at 2, 3, 28 (ROBERTS,
C. J., dissenting); post, at 5, 6, 17, 18, 25 (SCALIA, J., dis-
senting). The several answers to the charge of triumphal-
ism might start with a basic fact of Anglo-American con-
stitutional history: that the power, first of the Crown and
now of the Executive Branch of the United States, is nec-
essarily limited by habeas corpus jurisdiction to enquire
into the legality of executive detention. And one could
explain that in this Court’s exercise of responsibility to
preserve habeas corpus something much more significant
is involved than pulling and hauling between the judicial
and political branches. Instead, though, it is enough to
repeat that some of these petitioners have spent six years
behind bars. After six years of sustained executive deten-
tions in Guantanamo, subject to habeas jurisdiction but
without any actual habeas scrutiny, today’s decision is no
judicial victory, but an act of perseverance in trying to
make habeas review, and the obligation of the courts to
provide it, mean something of value both to prisoners and
to the Nation. See ante, at 69.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA,
JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
Today the Court strikes down as inadequate the most
generous set of procedural protections ever afforded aliens
detained by this country as enemy combatants. The po
litical branches crafted these procedures amidst an ongo
ing military conflict, after much careful investigation and
thorough debate. The Court rejects them today out of
hand, without bothering to say what due process rights
the detainees possess, without explaining how the statute
fails to vindicate those rights, and before a single peti
tioner has even attempted to avail himself of the law’s
operation. And to what effect? The majority merely re
places a review system designed by the people’s represen
tatives with a set of shapeless procedures to be defined by
federal courts at some future date. One cannot help but
2 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
think, after surveying the modest practical results of the
majority’s ambitious opinion, that this decision is not
really about the detainees at all, but about control of
federal policy regarding enemy combatants.
The majority is adamant that the Guantanamo detain
ees are entitled to the protections of habeas corpus—its
opinion begins by deciding that question. I regard the
issue as a difficult one, primarily because of the unique
and unusual jurisdictional status of Guantanamo Bay. I
nonetheless agree with JUSTICE SCALIA’s analysis of our
precedents and the pertinent history of the writ, and
accordingly join his dissent. The important point for me,
however, is that the Court should have resolved these
cases on other grounds. Habeas is most fundamentally a
procedural right, a mechanism for contesting the legality
of executive detention. The critical threshold question in
these cases, prior to any inquiry about the writ’s scope, is
whether the system the political branches designed pro
tects whatever rights the detainees may possess. If so,
there is no need for any additional process, whether called
“habeas” or something else.
Congress entrusted that threshold question in the first
instance to the Court of Appeals for the District of Colum
bia Circuit, as the Constitution surely allows Congress to do.
See Detainee Treatment Act of 2005 (DTA), §1005(e)(2)(A),
119 Stat. 2742. But before the D. C. Circuit has addressed
the issue, the Court cashiers the statute, and without
answering this critical threshold question itself. The
Court does eventually get around to asking whether re
view under the DTA is, as the Court frames it, an “ade
quate substitute” for habeas, ante, at 42, but even then its
opinion fails to determine what rights the detainees pos
sess and whether the DTA system satisfies them. The
majority instead compares the undefined DTA process to
an equally undefined habeas right—one that is to be given
shape only in the future by district courts on a case-by
3 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
case basis. This whole approach is misguided.
It is also fruitless. How the detainees’ claims will be
decided now that the DTA is gone is anybody’s guess. But
the habeas process the Court mandates will most likely
end up looking a lot like the DTA system it replaces, as
the district court judges shaping it will have to reconcile
review of the prisoners’ detention with the undoubted
need to protect the American people from the terrorist
threat—precisely the challenge Congress undertook in
drafting the DTA. All that today’s opinion has done is
shift responsibility for those sensitive foreign policy and
national security decisions from the elected branches to
the Federal Judiciary.
I believe the system the political branches constructed
adequately protects any constitutional rights aliens cap
tured abroad and detained as enemy combatants may
enjoy. I therefore would dismiss these cases on that
ground. With all respect for the contrary views of the
majority, I must dissent.
I
The Court’s opinion makes plain that certiorari to re
view these cases should never have been granted. As two
Members of today’s majority once recognized, “traditional
rules governing our decision of constitutional questions
and our practice of requiring the exhaustion of available
remedies . . . make it appropriate to deny these petitions.”
Boumediene v. Bush, 549 U. S. ___ (2007) (slip op., at 1)
(citation omitted) (statement of STEVENS and KENNEDY,
JJ., respecting denial of certiorari). Just so. Given the
posture in which these cases came to us, the Court should
have declined to intervene until the D. C. Circuit had
assessed the nature and validity of the congressionally
mandated proceedings in a given detainee’s case.
The political branches created a two-part, collateral
review procedure for testing the legality of the prisoners’
4 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
detention: It begins with a hearing before a Combatant
Status Review Tribunal (CSRT) followed by review in the
D. C. Circuit. As part of that review, Congress authorized
the D. C. Circuit to decide whether the CSRT proceedings
are consistent with “the Constitution and laws of the
United States.” DTA §1005(e)(2)(C), 119 Stat. 2742. No
petitioner, however, has invoked the D. C. Circuit review
the statute specifies. See 476 F. 3d 981, 994, and n. 16
(CADC 2007); Brief for Federal Respondents 41–43. As a
consequence, that court has had no occasion to decide
whether the CSRT hearings, followed by review in the
Court of Appeals, vindicate whatever constitutional and
statutory rights petitioners may possess. See 476 F. 3d, at
994, and n. 16.
Remarkably, this Court does not require petitioners to
exhaust their remedies under the statute; it does not wait
to see whether those remedies will prove sufficient to
protect petitioners’ rights. Instead, it not only denies the
D. C. Circuit the opportunity to assess the statute’s reme
dies, it refuses to do so itself: the majority expressly de
clines to decide whether the CSRT procedures, coupled
with Article III review, satisfy due process. See ante, at
54.
It is grossly premature to pronounce on the detainees’
right to habeas without first assessing whether the reme
dies the DTA system provides vindicate whatever rights
petitioners may claim. The plurality in Hamdi v. Rums-
feld, 542 U. S. 507, 533 (2004), explained that the Consti
tution guaranteed an American citizen challenging his
detention as an enemy combatant the right to “notice of
the factual basis for his classification, and a fair opportu
nity to rebut the Government’s factual assertions before a
neutral decisionmaker.” The plurality specifically stated
that constitutionally adequate collateral process could be
provided “by an appropriately authorized and properly
constituted military tribunal,” given the “uncommon
5 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
potential to burden the Executive at a time of ongoing
military conflict.” Id., at 533, 538. This point is directly
pertinent here, for surely the Due Process Clause does not
afford non-citizens in such circumstances greater protec
tion than citizens are due.
If the CSRT procedures meet the minimal due process
requirements outlined in Hamdi, and if an Article III
court is available to ensure that these procedures are
followed in future cases, see id., at 536; INS v. St. Cyr, 533
U. S. 289, 304 (2001); Heikkila v. Barber, 345 U. S. 229,
236 (1953), there is no need to reach the Suspension
Clause question. Detainees will have received all the
process the Constitution could possibly require, whether
that process is called “habeas” or something else. The
question of the writ’s reach need not be addressed.
This is why the Court should have required petitioners
to exhaust their remedies under the statute. As we ex
plained in Gusik v. Schilder, 340 U. S. 128, 132 (1950), “If
an available procedure has not been employed to rectify
the alleged error” petitioners complain of, “any interfer
ence by [a] federal court may be wholly needless. The
procedure established to police the errors of the tribunal
whose judgment is challenged may be adequate for the
occasion.” Because the majority refuses to assess whether
the CSRTs comport with the Constitution, it ends up
razing a system of collateral review that it admits may in
fact satisfy the Due Process Clause and be “structurally
sound.” Ante, at 56. But if the collateral review proce
dures Congress has provided—CSRT review coupled with
Article III scrutiny—are sound, interference by a federal
habeas court may be entirely unnecessary.
The only way to know is to require petitioners to use the
alternative procedures Congress designed. Mandating
that the petitioners exhaust their statutory remedies “is in
no sense a suspension of the writ of habeas corpus. It is
merely a deferment of resort to the writ until other correc
6 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
tive procedures are shown to be futile.” Gusik, supra, at
132. So too here, it is not necessary to consider the avail
ability of the writ until the statutory remedies have been
shown to be inadequate to protect the detainees’ rights.
Cf. 28 U. S. C. §2254(b)(1)(A) (“An application for a writ of
habeas corpus . . . shall not be granted unless it appears
that . . . the applicant has exhausted the remedies avail
able in the courts of the State”). Respect for the judg
ments of Congress—whose Members take the same oath
we do to uphold the Constitution—requires no less.
In the absence of any assessment of the DTA’s remedies,
the question whether detainees are entitled to habeas is
an entirely speculative one. Our precedents have long
counseled us to avoid deciding such hypothetical questions
of constitutional law. See Spector Motor Service, Inc. v.
McLaughlin, 323 U. S. 101, 105 (1944) (“If there is one
doctrine more deeply rooted than any other in the process
of constitutional adjudication, it is that we ought not to
pass on questions of constitutionality . . . unless such
[questions are] unavoidable”); see also Ashwander v. TVA,
297 U. S. 288, 347 (1936) (Brandeis, J., concurring) (Con
stitutional questions should not be decided unless “ ‘abso
lutely necessary to a decision of the case’” (quoting Burton
v. United States, 196 U. S. 283, 295 (1905))). This is a
“fundamental rule of judicial restraint.” Three Affiliated
Tribes of Fort Berthold Reservation v. Wold Engineering,
P. C., 467 U. S. 138, 157 (1984).
The Court acknowledges that “the ordinary course”
would be not to decide the constitutionality of the DTA at
this stage, but abandons that “ordinary course” in light of
the “gravity” of the constitutional issues presented and the
prospect of additional delay. Ante, at 43. It is, however,
precisely when the issues presented are grave that adher
ence to the ordinary course is most important. A principle
applied only when unimportant is not much of a principle
at all, and charges of judicial activism are most effectively
7 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
rebutted when courts can fairly argue they are following
normal practices.
The Court is also concerned that requiring petitioners to
pursue “DTA review before proceeding with their habeas
corpus actions” could involve additional delay. Ante, at 66.
The nature of the habeas remedy the Court instructs
lower courts to craft on remand, however, is far more
unsettled than the process Congress provided in the DTA.
See ante, at 69 (“[O]ur opinion does not address the con
tent of the law that governs petitioners’ detention. That is
a matter yet to be determined”). There is no reason to
suppose that review according to procedures the Federal
Judiciary will design, case by case, will proceed any faster
than the DTA process petitioners disdained.
On the contrary, the system the Court has launched
(and directs lower courts to elaborate) promises to take
longer. The Court assures us that before bringing their
habeas petitions, detainees must usually complete the
CSRT process. See ante, at 66. Then they may seek re
view in federal district court. Either success or failure
there will surely result in an appeal to the D. C. Circuit—
exactly where judicial review starts under Congress’s
system. The effect of the Court’s decision is to add addi
tional layers of quite possibly redundant review. And
because nobody knows how these new layers of “habeas”
review will operate, or what new procedures they will
require, their contours will undoubtedly be subject to fresh
bouts of litigation. If the majority were truly concerned
about delay, it would have required petitioners to use the
DTA process that has been available to them for 21⁄2 years,
with its Article III review in the D. C. Circuit. That sys
tem might well have provided petitioners all the relief to
which they are entitled long before the Court’s newly
installed habeas review could hope to do so.1
——————
1
In light of the foregoing, the concurrence is wrong to suggest that I
8 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
The Court’s refusal to require petitioners to exhaust the
remedies provided by Congress violates the “traditional
rules governing our decision of constitutional questions.”
Boumediene, 549 U. S., at ___ (slip op., at 1) (statement of
STEVENS and KENNEDY, JJ., respecting denial of certio
rari). The Court’s disrespect for these rules makes its
decision an awkward business. It rushes to decide the
fundamental question of the reach of habeas corpus when
the functioning of the DTA may make that decision entirely
unnecessary, and it does so with scant idea of how DTA
judicial review will actually operate.
II
The majority’s overreaching is particularly egregious
given the weakness of its objections to the DTA. Simply
put, the Court’s opinion fails on its own terms. The major
ity strikes down the statute because it is not an “adequate
substitute” for habeas review, ante, at 42, but fails to show
what rights the detainees have that cannot be vindicated
by the DTA system.
Because the central purpose of habeas corpus is to test
the legality of executive detention, the writ requires most
fundamentally an Article III court able to hear the pris
——————
“insufficiently appreciat[e]” the issue of delay in these cases. See ante,
at 2 (opinion of SOUTER, J.). This Court issued its decisions in Rasul v.
Bush, 542 U. S. 466, and Hamdi v. Rumsfeld 542 U. S. 507, in 2004.
The concurrence makes it sound as if the political branches have done
nothing in the interim. In fact, Congress responded 18 months later by
enacting the DTA. Congress cannot be faulted for taking that time to
consider how best to accommodate both the detainees’ interests and the
need to keep the American people safe. Since the DTA became law,
petitioners have steadfastly refused to avail themselves of the statute’s
review mechanisms. It is unfair to complain that the DTA system
involves too much delay when petitioners have consistently refused to
use it, preferring to litigate instead. Today’s decision obligating district
courts to craft new procedures to replace those in the DTA will only
prolong the process—and delay relief.
9 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
oner’s claims and, when necessary, order release. See
Brown v. Allen, 344 U. S. 443, 533 (1953) (Jackson, J.,
concurring in result). Beyond that, the process a given
prisoner is entitled to receive depends on the circum
stances and the rights of the prisoner. See Mathews v.
Eldridge, 424 U. S. 319, 335 (1976). After much hemming
and hawing, the majority appears to concede that the DTA
provides an Article III court competent to order release.
See ante, at 61. The only issue in dispute is the process
the Guantanamo prisoners are entitled to use to test the
legality of their detention. Hamdi concluded that Ameri
can citizens detained as enemy combatants are entitled to
only limited process, and that much of that process could
be supplied by a military tribunal, with review to follow in
an Article III court. That is precisely the system we have
here. It is adequate to vindicate whatever due process
rights petitioners may have.
A
The Court reaches the opposite conclusion partly be
cause it misreads the statute. The majority appears not to
understand how the review system it invalidates actually
works—specifically, how CSRT review and review by the
D. C. Circuit fit together. After briefly acknowledging in
its recitation of the facts that the Government designed
the CSRTs “to comply with the due process requirements
identified by the plurality in Hamdi,” ante, at 3, the Court
proceeds to dismiss the tribunal proceedings as no more
than a suspect method used by the Executive for deter
mining the status of the detainees in the first instance, see
ante, at 43. This leads the Court to treat the review the
DTA provides in the D. C. Circuit as the only opportunity
detainees have to challenge their status determination.
See ante, at 49.
The Court attempts to explain its glancing treatment of
the CSRTs by arguing that “[w]hether one characterizes
10 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
the CSRT process as direct review of the Executive’s bat
tlefield determination . . . or as the first step in the collat
eral review of a battlefield determination makes no differ
ence.” Ante, at 54. First of all, the majority is quite wrong
to dismiss the Executive’s determination of detainee
status as no more than a “battlefield” judgment, as if it
were somehow provisional and made in great haste. In
fact, detainees are designated “enemy combatants” only
after “multiple levels of review by military officers and
officials of the Department of Defense.” Memorandum of
the Secretary of the Navy, Implementation of Combatant
Status Review Tribunal Procedures for Enemy Combat
ants Detained at Guantanamo Bay Naval Base (July 29,
2004), App. J to Pet. for Cert. in No. 06–1196, p. 150 (here
inafter Implementation Memo).
The majority is equally wrong to characterize the
CSRTs as part of that initial determination process. They
are instead a means for detainees to challenge the Gov
ernment’s determination. The Executive designed the
CSRTs to mirror Army Regulation 190–8, see Brief for
Federal Respondents 48, the very procedural model the
plurality in Hamdi said provided the type of process an
enemy combatant could expect from a habeas court, see
542 U. S., at 538 (plurality opinion). The CSRTs operate
much as habeas courts would if hearing the detainee’s
collateral challenge for the first time: They gather evi
dence, call witnesses, take testimony, and render a deci
sion on the legality of the Government’s detention. See
Implementation Memo, App. J to Pet. for Cert. in No. 06–
1196, at 153–162. If the CSRT finds a particular detainee
has been improperly held, it can order release. See id., at
164.
The majority insists that even if “the CSRTs satisf[ied]
due process standards,” full habeas review would still be
necessary, because habeas is a collateral remedy available
even to prisoners “detained pursuant to the most rigorous
11 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
proceedings imaginable.” Ante, at 55, 56. This comment
makes sense only if the CSRTs are incorrectly viewed as a
method used by the Executive for determining the prison
ers’ status, and not as themselves part of the collateral
review to test the validity of that determination. See
Gusik, 340 U. S., at 132. The majority can deprecate the
importance of the CSRTs only by treating them as some
thing they are not.
The use of a military tribunal such as the CSRTs to
review the aliens’ detention should be familiar to this
Court in light of the Hamdi plurality, which said that the
due process rights enjoyed by American citizens detained
as enemy combatants could be vindicated “by an appropri
ately authorized and properly constituted military tribu
nal.” 542 U. S., at 538. The DTA represents Congress’
considered attempt to provide the accused alien combat
ants detained at Guantanamo a constitutionally adequate
opportunity to contest their detentions before just such a
tribunal.
But Congress went further in the DTA. CSRT review is
just the first tier of collateral review in the DTA system.
The statute provides additional review in an Article III
court. Given the rationale of today’s decision, it is well
worth recalling exactly what the DTA provides in this
respect. The statute directs the D. C. Circuit to consider
whether a particular alien’s status determination “was
consistent with the standards and procedures specified by
the Secretary of Defense” and “whether the use of such
standards and procedures to make the determination is
consistent with the Constitution and laws of the United
States.” DTA §1005(e)(2)(C), 119 Stat. 2742. That is, a
court determines whether the CSRT procedures are consti
tutional, and a court determines whether those procedures
were followed in a particular case.
In short, the Hamdi plurality concluded that this type of
review would be enough to satisfy due process, even for
12 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
citizens. See 542 U. S., at 538. Congress followed the
Court’s lead, only to find itself the victim of a constitu
tional bait and switch.
Hamdi merits scant attention from the Court—a re
markable omission, as Hamdi bears directly on the issues
before us. The majority attempts to dismiss Hamdi’s
relevance by arguing that because the availability of
§2241 federal habeas was never in doubt in that case, “the
Court had no occasion to define the necessary scope of
habeas review . . . in the context of enemy combatant
detentions.” Ante, at 55. Hardly. Hamdi was all about
the scope of habeas review in the context of enemy com
batant detentions. The petitioner, an American citizen
held within the United States as an enemy combatant,
invoked the writ to challenge his detention. 542 U. S., at
510–511. After “a careful examination both of the writ . . .
and of the Due Process Clause,” this Court enunciated the
“basic process” the Constitution entitled Hamdi to expect
from a habeas court under §2241. Id., at 525, 534. That
process consisted of the right to “receive notice of the
factual basis for his classification, and a fair opportunity
to rebut the Government’s factual assertions before a
neutral decisionmaker.” Id., at 533. In light of the Gov
ernment’s national security responsibilities, the plurality
found the process could be “tailored to alleviate [the]
uncommon potential to burden the Executive at a time of
ongoing military conflict.” Ibid. For example, the Gov
ernment could rely on hearsay and could claim a presump
tion in favor of its own evidence. See id., at 533–534.
Hamdi further suggested that this “basic process” on
collateral review could be provided by a military tribunal.
It pointed to prisoner-of-war tribunals as a model that
would satisfy the Constitution’s requirements. See id., at
538. Only “[i]n the absence of such process” before a mili
tary tribunal, the Court held, would Article III courts need
to conduct full-dress habeas proceedings to “ensure that
13 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
the minimum requirements of due process are achieved.”
Ibid. (emphasis added). And even then, the petitioner
would be entitled to no more process than he would have
received from a properly constituted military review panel,
given his limited due process rights and the Government’s
weighty interests. See id., at 533–534, 538.
Contrary to the majority, Hamdi is of pressing relevance
because it establishes the procedures American citizens
detained as enemy combatants can expect from a habeas
court proceeding under §2241. The DTA system of military
tribunal hearings followed by Article III review looks a lot
like the procedure Hamdi blessed. If nothing else, it is
plain from the design of the DTA that Congress, the
President, and this Nation’s military leaders have made a
good-faith effort to follow our precedent.
The Court, however, will not take “yes” for an answer.
The majority contends that “[i]f Congress had envisioned
DTA review as coextensive with traditional habeas corpus,”
it would have granted the D. C. Circuit far broader review
authority. Ante, at 48. Maybe so, but that comment reveals
the majority’s misunderstanding. “[T]raditional habeas
corpus” takes no account of what Hamdi recognized as the
“uncommon potential to burden the Executive at a time of
ongoing military conflict.” 542 U. S., at 533. Besides, Con
gress and the Executive did not envision “DTA review”—
by which I assume the Court means D. C. Circuit review,
see ante, at 48—as the detainees’ only opportunity to
challenge their detentions. Instead, the political branches
crafted CSRT and D. C. Circuit review to operate together,
with the goal of providing noncitizen detainees the level of
collateral process Hamdi said would satisfy the due proc
ess rights of American citizens. See Brief for Federal
Respondents 48–53.
B
Given the statutory scheme the political branches
14 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
adopted, and given Hamdi, it simply will not do for the
majority to dismiss the CSRT procedures as “far more
limited” than those used in military trials, and therefore
beneath the level of process “that would eliminate the
need for habeas corpus review.” Ante, at 37. The question
is not how much process the CSRTs provide in comparison
to other modes of adjudication. The question is whether
the CSRT procedures—coupled with the judicial review
specified by the DTA—provide the “basic process” Hamdi
said the Constitution affords American citizens detained
as enemy combatants. See 542 U. S., at 534.
By virtue of its refusal to allow the D. C. Circuit to
assess petitioners’ statutory remedies, and by virtue of its
own refusal to consider, at the outset, the fit between
those remedies and due process, the majority now finds
itself in the position of evaluating whether the DTA sys
tem is an adequate substitute for habeas review without
knowing what rights either habeas or the DTA is supposed
to protect. The majority attempts to elide this problem by
holding that petitioners have a right to habeas corpus and
then comparing the DTA against the “historic office” of the
writ. Ante, at 47. But habeas is, as the majority acknowl
edges, a flexible remedy rather than a substantive right.
Its “precise application . . . change[s] depending upon the
circumstances.” Ante, at 50. The shape of habeas review
ultimately depends on the nature of the rights a petitioner
may assert. See, e.g., Reid v. Covert, 354 U. S. 1, 75 (1957)
(Harlan, J., concurring in result) (“[T]he question of which
specific safeguards of the Constitution are appropriately to
be applied in a particular context . . . can be reduced to the
issue of what process is ‘due’ a defendant in the particular
circumstances of a particular case”).
The scope of federal habeas review is traditionally more
limited in some contexts than in others, depending on the
status of the detainee and the rights he may assert. See
St. Cyr, 533 U. S., at 306 (“In [immigration cases], other
15 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
than the question whether there was some evidence to
support the [deportation] order, the courts generally did
not review factual determinations made by the Executive”
(footnote omitted)); Burns v. Wilson, 346 U. S. 137, 139
(1953) (plurality opinion) (“[I]n military habeas corpus the
inquiry, the scope of matters open for review, has always
been more narrow than in civil cases”); In re Yamashita,
327 U. S. 1, 8 (1946) (“The courts may inquire whether the
detention complained of is within the authority of those
detaining the petitioner. If the military tribunals have
lawful authority to hear, decide and condemn, their action
is not subject to judicial review”); Ex parte Quirin, 317 U. S.
1, 25 (1942) (federal habeas review of military commission
verdict limited to determining commission’s jurisdiction).
Declaring that petitioners have a right to habeas in no
way excuses the Court from explaining why the DTA does
not protect whatever due process or statutory rights peti
tioners may have. Because if the DTA provides a means
for vindicating petitioners’ rights, it is necessarily an
adequate substitute for habeas corpus. See Swain v.
Pressley, 430 U. S. 372, 381 (1977); United States v. Hay-
man, 342 U. S. 205, 223 (1952).
For my part, I will assume that any due process rights
petitioners may possess are no greater than those of
American citizens detained as enemy combatants. It is
worth noting again that the Hamdi controlling opinion
said the Constitution guarantees citizen detainees only
“basic” procedural rights, and that the process for securing
those rights can “be tailored to alleviate [the] uncommon
potential to burden the Executive at a time of ongoing
military conflict.” 542 U. S., at 533. The majority, how
ever, objects that “the procedural protections afforded to
the detainees in the CSRT hearings are . . . limited.” Ante,
at 37. But the evidentiary and other limitations the Court
complains of reflect the nature of the issue in contest,
namely, the status of aliens captured by our Armed Forces
16 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
abroad and alleged to be enemy combatants. Contrary to
the repeated suggestions of the majority, DTA review need
not parallel the habeas privileges enjoyed by noncombat
ant American citizens, as set out in 28 U. S. C. §2241
(2000 ed. and Supp V). Cf. ante, at 46–47. It need only
provide process adequate for noncitizens detained as
alleged combatants.
To what basic process are these detainees due as habeas
petitioners? We have said that “at the absolute mini
mum,” the Suspension Clause protects the writ “‘as it
existed in 1789.’” St. Cyr, supra, at 301 (quoting Felker v.
Turpin, 518 U. S. 651, 663–664 (1996)). The majority
admits that a number of historical authorities suggest
that at the time of the Constitution’s ratification, “com
mon-law courts abstained altogether from matters involv
ing prisoners of war.” Ante, at 17. If this is accurate, the
process provided prisoners under the DTA is plainly more
than sufficient—it allows alleged combatants to challenge
both the factual and legal bases of their detentions.
Assuming the constitutional baseline is more robust, the
DTA still provides adequate process, and by the majority’s
own standards. Today’s Court opines that the Suspension
Clause guarantees prisoners such as the detainees “a
meaningful opportunity to demonstrate that [they are]
being held pursuant to the erroneous application or inter
pretation of relevant law.” Ante, at 50 (internal quotation
marks omitted). Further, the Court holds that to be an
adequate substitute, any tribunal reviewing the detainees’
cases “must have the power to order the conditional re
lease of an individual unlawfully detained.” Ibid. The
DTA system—CSRT review of the Executive’s determina
tion followed by D. C. Circuit review for sufficiency of the
evidence and the constitutionality of the CSRT process—
meets these criteria.
17 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
C
At the CSRT stage, every petitioner has the right to
present evidence that he has been wrongfully detained.
This includes the right to call witnesses who are reasona
bly available, question witnesses called by the tribunal,
introduce documentary evidence, and testify before the
tribunal. See Implementation Memo, App. J to Pet. for
Cert. in No. 06–1196, at 154–156, 158–159, 161.
While the Court concedes detainees may confront all
witnesses called before the tribunal, it suggests this right
is “more theoretical than real” because “there are in effect
no limits on the admission of hearsay evidence.” Ante, at
55. The Court further complains that petitioners lack “the
assistance of counsel,” and—given the limits on their
access to classified information—“may not be aware of the
most critical allegations” against them. Ante, at 54. None
of these complaints is persuasive.
Detainees not only have the opportunity to confront any
witness who appears before the tribunal, they may call
witnesses of their own. The Implementation Memo re
quires only that detainees’ witnesses be “reasonably avail
able,” App. J to Pet. for Cert. in No. 06–1196, at 155, a
requirement drawn from Army Regulation 190–8, ch. 1,
§1–6(e)(6), and entirely consistent with the Government’s
interest in avoiding “a futile search for evidence” that
might burden warmaking responsibilities, Hamdi, supra,
at 532. The dangerous mission assigned to our forces
abroad is to fight terrorists, not serve subpoenas. The
Court is correct that some forms of hearsay evidence are
admissible before the CSRT, but Hamdi expressly ap
proved this use of hearsay by habeas courts. 542 U. S.,
at 533–534 (“Hearsay, for example, may need to be ac
cepted as the most reliable available evidence from the
Government”).
As to classified information, while detainees are not
permitted access to it themselves, the Implementation
18 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
Memo provides each detainee with a “Personal Represen
tative” who may review classified documents at the CSRT
stage and summarize them for the detainee. Implementa
tion Memo, supra, at 152, 154–155, 156; Brief for Federal
Respondents 54–55. The prisoner’s counsel enjoys the
same privilege on appeal before the D. C. Circuit. That is
more access to classified material for alleged alien enemy
combatants than ever before provided. I am not aware of
a single instance—and certainly the majority cites none—
in which detainees such as petitioners have been provided
access to classified material in any form. Indeed, prison
ers of war who challenge their status determinations
under the Geneva Convention are afforded no such access,
see Army Regulation 190–8, ch. 1, §§1–6(e)(3) and (5), and
the prisoner-of-war model is the one Hamdi cited as con
sistent with the demands of due process for citizens, see
542 U. S., at 538.
What alternative does the Court propose? Allow free
access to classified information and ignore the risk the
prisoner may eventually convey what he learns to parties
hostile to this country, with deadly consequences for those
who helped apprehend the detainee? If the Court can
design a better system for communicating to detainees the
substance of any classified information relevant to their
cases, without fatally compromising national security
interests and sources, the majority should come forward
with it. Instead, the majority fobs that vexing question off
on district courts to answer down the road.
Prisoners of war are not permitted access to classified
information, and neither are they permitted access to
counsel, another supposed failing of the CSRT process.
And yet the Guantanamo detainees are hardly denied all
legal assistance. They are provided a “Personal Represen
tative” who, as previously noted, may access classified
information, help the detainee arrange for witnesses,
assist the detainee’s preparation of his case, and even aid
19 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
the detainee in presenting his evidence to the tribunal.
See Implementation Memo, supra, at 161. The provision
for a personal representative on this order is one of several
ways in which the CSRT procedures are more generous
than those provided prisoners of war under Army Regula
tion 190–8.
Keep in mind that all this is just at the CSRT stage.
Detainees receive additional process before the D. C.
Circuit, including full access to appellate counsel and the
right to challenge the factual and legal bases of their
detentions. DTA §1005(e)(2)(C) empowers the Court of
Appeals to determine not only whether the CSRT observed
the “procedures specified by the Secretary of Defense,” but
also “whether the use of such standards and procedures
. . . is consistent with the Constitution and laws of the
United States.” 119 Stat. 2742. These provisions permit
detainees to dispute the sufficiency of the evidence against
them. They allow detainees to challenge a CSRT panel’s
interpretation of any relevant law, and even the constitu
tionality of the CSRT proceedings themselves. This in
cludes, as the Solicitor General acknowledges, the ability
to dispute the Government’s right to detain alleged com
batants in the first place, and to dispute the Government’s
definition of “enemy combatant.” Brief for Federal Re
spondents 59. All this before an Article III court—plainly
a neutral decisionmaker.
All told, the DTA provides the prisoners held at Guan
tanamo Bay adequate opportunity to contest the bases of
their detentions, which is all habeas corpus need allow.
The DTA provides more opportunity and more process, in
fact, than that afforded prisoners of war or any other
alleged enemy combatants in history.
D
Despite these guarantees, the Court finds the DTA
system an inadequate habeas substitute, for one central
20 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
reason: Detainees are unable to introduce at the appeal
stage exculpatory evidence discovered after the conclusion
of their CSRT proceedings. See ante, at 58. The Court
hints darkly that the DTA may suffer from other infirmi
ties, see ante, at 63 (“We do not imply DTA review would
be a constitutionally sufficient replacement for habeas
corpus but for these limitations on the detainee’s ability to
present exculpatory evidence”), but it does not bother to
name them, making a response a bit difficult. As it
stands, I can only assume the Court regards the supposed
defect it did identify as the gravest of the lot.
If this is the most the Court can muster, the ice beneath
its feet is thin indeed. As noted, the CSRT procedures
provide ample opportunity for detainees to introduce
exculpatory evidence—whether documentary in nature or
from live witnesses—before the military tribunals. See
infra, at 21–23; Implementation Memo, App. J to Pet. for
Cert. in No. 06–196, at 155–156. And if their ability to
introduce such evidence is denied contrary to the Consti
tution or laws of the United States, the D. C. Circuit has
the authority to say so on review.
Nevertheless, the Court asks us to imagine an instance
in which evidence is discovered after the CSRT panel
renders its decision, but before the Court of Appeals re
views the detainee’s case. This scenario, which of course
has not yet come to pass as no review in the D. C. Circuit
has occurred, provides no basis for rejecting the DTA as a
habeas substitute. While the majority is correct that the
DTA does not contemplate the introduction of “newly
discovered” evidence before the Court of Appeals, petition
ers and the Solicitor General agree that the DTA does
permit the D. C. Circuit to remand a detainee’s case for a
new CSRT determination. Brief for Petitioner Boumedi
ene et al. in No. 06–1195, at 30; Brief for Federal Respon
dents 60–61. In the event a detainee alleges that he has
obtained new and persuasive exculpatory evidence that
21 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
would have been considered by the tribunal below had it
only been available, the D. C. Circuit could readily remand
the case to the tribunal to allow that body to consider the
evidence in the first instance. The Court of Appeals could
later review any new or reinstated decision in light of the
supplemented record.
If that sort of procedure sounds familiar, it should.
Federal appellate courts reviewing factual determinations
follow just such a procedure in a variety of circumstances.
See, e.g., United States v. White, 492 F. 3d 380, 413 (CA6
2007) (remanding new-evidence claim to the district court
for a Brady evidentiary hearing); Avila v. Roe, 298 F. 3d
750, 754 (CA9 2002) (remanding habeas claim to the
district court for evidentiary hearing to clarify factual
record); United States v. Leone, 215 F. 3d 253, 256 (CA2
2000) (observing that when faced on direct appeal with an
underdeveloped claim for ineffective assistance of counsel,
the appellate court may remand to the district court for
necessary factfinding).
A remand is not the only relief available for detainees
caught in the Court’s hypothetical conundrum. The DTA
expressly directs the Secretary of Defense to “provide for
periodic review of any new evidence that may become
available relating to the enemy combatant status of a
detainee.” DTA §1005(a)(3). Regulations issued by the
Department of Defense provide that when a detainee puts
forward new, material evidence “not previously presented
to the detainee’s CSRT,” the Deputy Secretary of Defense
“‘will direct that a CSRT convene to reconsider the basis of
the detainee’s . . . status in light of the new information.’”
Office for the Administrative Review of the Detention of
Enemy Combatants, Instruction 5421.1, Procedure for
Review of “New Evidence” Relating to Enemy Combatant
(EC) Status ¶¶4(a)(1), 5(b) (May 7, 2007); Brief for Federal
Respondents 56, n. 30. Pursuant to DTA §1005(e)(2)(A),
the resulting CSRT determination is again reviewable in
22 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
full by the D. C. Circuit.2
In addition, DTA §1005(d)(1) further requires the De
partment of Defense to conduct a yearly review of the
status of each prisoner. See 119 Stat. 2741. The Deputy
Secretary of Defense has promulgated concomitant regula
tions establishing an Administrative Review Board to
assess “annually the need to continue to detain each en
emy combatant.” Deputy Secretary of Defense Order OSD
06942–04 (May 11, 2004), App. K to Pet. for Cert. in No.
06–1196, p. 189. In the words of the implementing order,
the purpose of this annual review is to afford every de
tainee the opportunity “to explain why he is no longer a
threat to the United States” and should be released. Ibid.
The Board’s findings are forwarded to a presidentially
appointed, Senate-confirmed civilian within the Depart
ment of Defense whom the Secretary of Defense has des
ignated to administer the review process. This designated
civilian official has the authority to order release upon the
Board’s recommendation. Id., at 201.
The Court’s hand wringing over the DTA’s treatment of
later-discovered exculpatory evidence is the most it has to
show after a roving search for constitutionally problematic
scenarios. But “[t]he delicate power of pronouncing an Act
of Congress unconstitutional,” we have said, “is not to be
exercised with reference to hypothetical cases thus imag
ined.” United States v. Raines, 362 U. S. 17, 22 (1960).
The Court today invents a sort of reverse facial challenge
——————
2
The Court wonders what might happen if the detainee puts forward
new material evidence but the Deputy Secretary refuses to convene a
new CSRT. See ante, at 62–63. The answer is that the detainee can
petition the D. C. Circuit for review. The DTA directs that the proce
dures for review of new evidence be included among “[t]he procedures
submitted under paragraph (1)(A)” governing CSRT review of enemy
combatant status §1405(a)(3), 119 Stat. 3476. It is undisputed that the
D. C. Circuit has statutory authority to review and enforce these
procedures. See DTA §1005(e)(2)(C)(i), id., at 2742.
23 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
and applies it with gusto: If there is any scenario in which
the statute might be constitutionally infirm, the law must
be struck down. Cf. United States v. Salerno, 481 U. S.
739, 745 (1987) (“A facial challenge . . . must establish that
no set of circumstances exists under which the Act would
be valid”); see also Washington v. Glucksberg, 521 U. S.
702, 739–740, and n. 7 (1997) (STEVENS, J., concurring in
judgments) (facial challenge must fail where the statute
has “‘plainly legitimate sweep’” (quoting Broadrick v.
Oklahoma, 413 U. S. 601, 615 (1973))). The Court’s new
method of constitutional adjudication only underscores its
failure to follow our usual procedures and require peti
tioners to demonstrate that they have been harmed by the
statute they challenge. In the absence of such a concrete
showing, the Court is unable to imagine a plausible hypo
thetical in which the DTA is unconstitutional.
E
The Court’s second criterion for an adequate substitute
is the “power to order the conditional release of an indi
vidual unlawfully detained.” Ante, at 50. As the Court
basically admits, the DTA can be read to permit the D. C.
Circuit to order release in light of our traditional princi
ples of construing statutes to avoid difficult constitutional
issues, when reasonably possible. See ante, at 56–57.
The Solicitor General concedes that remedial authority
of some sort must be implied in the statute, given that the
DTA—like the general habeas law itself, see 28 U. S. C.
§2243—provides no express remedy of any kind. Brief for
Federal Respondents 60–61. The parties agree that at the
least, the DTA empowers the D. C. Circuit to remand a
prisoner’s case to the CSRT with instructions to perform a
new status assessment. Brief for Petitioner Boumediene
et al. in No. 06–1195, at 30; Brief for Federal Respondents
60–61. To avoid constitutional infirmity, it is reasonable
to imply more, see Ashwander, 297 U. S., at 348 (Brandeis,
24 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
J., concurring) (“When the validity of an act of the Con
gress is drawn in question . . . it is a cardinal principle
that this Court will . . . ascertain whether a construction of
the statute is fairly possible by which the [constitutional]
question may be avoided” (internal quotation marks omit
ted)); see also St. Cyr, 533 U. S., at 299–300, especially in
view of the Solicitor General’s concession at oral argument
and in his Supplemental Brief that authority to release
might be read in the statute, see Tr. of Oral Arg. 37; Sup
plemental Brief for Federal Respondents 9.
The Court grudgingly suggests that “Congress’ silence
on the question of remedies suggests acquiescence to any
constitutionally required remedy.” Ante, at 58. But the
argument in favor of statutorily authorized release is
stronger than that. The DTA’s parallels to 28 U. S. C.
§2243 on this score are noteworthy. By way of remedy,
the general federal habeas statute provides only that the
court, having heard and determined the facts, shall “dis
pose of the matter as law and justice require.” Ibid. We
have long held, and no party here disputes, that this
includes the power to order release. See Wilkinson v.
Dotson, 544 U. S. 74, 79 (2005) (“[T]he writ’s history
makes clear that it traditionally has been accepted as the
specific instrument to obtain release from [unlawful]
confinement” (internal quotation marks omitted)).
The DTA can be similarly read. Because Congress
substituted DTA review for habeas corpus and because
the “unique purpose” of the writ is “to release the appli
cant . . . from unlawful confinement,” Allen v. McCurry,
449 U. S. 90, 98, n. 12 (1980), DTA §1005(e)(2) can and
should be read to confer on the Court of Appeals the
authority to order release in appropriate circumstances.
Section 1005(e)(2)(D) plainly contemplates release, ad
dressing the effect “release of [an] alien from the custody
of the Department of Defense” will have on the jurisdiction
of the court. 119 Stat. 2742–2743. This reading avoids
25 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
serious constitutional difficulty and is consistent with the
text of the statute.
The D. C. Circuit can thus order release, the CSRTs can
order release, and the head of the Administrative Review
Boards can, at the recommendation of those panels, order
release. These multiple release provisions within the DTA
system more than satisfy the majority’s requirement that
any tribunal substituting for a habeas court have the
authority to release the prisoner.
The basis for the Court’s contrary conclusion is summed
up in the following sentence near the end of its opinion:
“To hold that the detainees at Guantanamo may, under
the DTA, challenge the President’s legal authority to
detain them, contest the CSRT’s findings of fact, supple
ment the record on review with newly discovered or previ
ously unavailable evidence, and request an order of re
lease would come close to reinstating the §2241 habeas
corpus process Congress sought to deny them.” Ante, at
63. In other words, any interpretation of the statute that
would make it an adequate substitute for habeas must be
rejected, because Congress could not possibly have in
tended to enact an adequate substitute for habeas. The
Court could have saved itself a lot of trouble if it had
simply announced this Catch-22 approach at the begin
ning rather than the end of its opinion.
III
For all its eloquence about the detainees’ right to the
writ, the Court makes no effort to elaborate how exactly
the remedy it prescribes will differ from the procedural
protections detainees enjoy under the DTA. The Court
objects to the detainees’ limited access to witnesses and
classified material, but proposes no alternatives of its own.
Indeed, it simply ignores the many difficult questions its
holding presents. What, for example, will become of the
CSRT process? The majority says federal courts should
26 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
generally refrain from entertaining detainee challenges
until after the petitioner’s CSRT proceeding has finished.
See ante, at 66 (“[e]xcept in cases of undue delay”). But
to what deference, if any, is that CSRT determination
entitled?
There are other problems. Take witness availability.
What makes the majority think witnesses will become
magically available when the review procedure is labeled
“habeas”? Will the location of most of these witnesses
change—will they suddenly become easily susceptible to
service of process? Or will subpoenas issued by American
habeas courts run to Basra? And if they did, how would
they be enforced? Speaking of witnesses, will detainees be
able to call active-duty military officers as witnesses? If
not, why not?
The majority has no answers for these difficulties. What
it does say leaves open the distinct possibility that its
“habeas” remedy will, when all is said and done, end up
looking a great deal like the DTA review it rejects. See
ante, at 66 (opinion of the court) (“We recognize, however,
that the Government has a legitimate interest in protect
ing sources and methods of intelligence gathering, and we
expect that the District Court will use its discretion to
accommodate this interest to the greatest extent possi
ble”). But “[t]he role of the judiciary is limited to deter
mining whether the procedures meet the essential stan
dard of fairness under the Due Process Clause and does
not extend to imposing procedures that merely displace
congressional choices of policy.” Landon v. Plasencia, 459
U. S. 21, 34–35 (1982).
The majority rests its decision on abstract and hypo
thetical concerns. Step back and consider what, in the
real world, Congress and the Executive have actually
granted aliens captured by our Armed Forces overseas and
found to be enemy combatants:
• The right to hear the bases of the charges against
27 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
them, including a summary of any classified
evidence.
• The ability to challenge the bases of their detention
before military tribunals modeled after Geneva
Convention procedures. Some 38 detainees have
been released as a result of this process. Brief for
Federal Respondents 57, 60.
• The right, before the CSRT, to testify, introduce
evidence, call witnesses, question those the Gov
ernment calls, and secure release, if and when
appropriate.
• The right to the aid of a personal representative in
arranging and presenting their cases before a
CSRT.
• Before the D. C. Circuit, the right to employ coun
sel, challenge the factual record, contest the lower
tribunal’s legal determinations, ensure compliance
with the Constitution and laws, and secure release,
if any errors below establish their entitlement to
such relief.
In sum, the DTA satisfies the majority’s own criteria
for assessing adequacy. This statutory scheme provides
the combatants held at Guantanamo greater procedural
protections than have ever been afforded alleged enemy
detainees—whether citizens or aliens—in our national
history.
* * *
So who has won? Not the detainees. The Court’s analy
sis leaves them with only the prospect of further litigation
to determine the content of their new habeas right, fol
lowed by further litigation to resolve their particular cases,
followed by further litigation before the D. C. Circuit—
where they could have started had they invoked the DTA
procedure. Not Congress, whose attempt to “determine—
through democratic means—how best” to balance the
28 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
security of the American people with the detainees’ liberty
interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636
(2006) (BREYER, J., concurring), has been unceremoniously
brushed aside. Not the Great Writ, whose majesty is
hardly enhanced by its extension to a jurisdictionally
quirky outpost, with no tangible benefit to anyone. Not the
rule of law, unless by that is meant the rule of lawyers,
who will now arguably have a greater role than military
and intelligence officials in shaping policy for alien enemy
combatants. And certainly not the American people, who
today lose a bit more control over the conduct of this Na
tion’s foreign policy to unelected, politically unaccountable
judges.
I respectfully dissent.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
JUSTICE SCALIA, with whom THE CHIEF JUSTICE,
JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
Today, for the first time in our Nation’s history, the
Court confers a constitutional right to habeas corpus on
alien enemies detained abroad by our military forces in
the course of an ongoing war. THE CHIEF JUSTICE’s dis-
sent, which I join, shows that the procedures prescribed by
Congress in the Detainee Treatment Act provide the es-
sential protections that habeas corpus guarantees; there
has thus been no suspension of the writ, and no basis
exists for judicial intervention beyond what the Act allows.
My problem with today’s opinion is more fundamental
still: The writ of habeas corpus does not, and never has,
run in favor of aliens abroad; the Suspension Clause thus
has no application, and the Court’s intervention in this
military matter is entirely ultra vires.
2 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
I shall devote most of what will be a lengthy opinion to
the legal errors contained in the opinion of the Court.
Contrary to my usual practice, however, I think it appro-
priate to begin with a description of the disastrous conse-
quences of what the Court has done today.
I
America is at war with radical Islamists. The enemy
began by killing Americans and American allies abroad:
241 at the Marine barracks in Lebanon, 19 at the Khobar
Towers in Dhahran, 224 at our embassies in Dar es Sa-
laam and Nairobi, and 17 on the USS Cole in Yemen. See
National Commission on Terrorist Attacks upon the
United States, The 9/11 Commission Report, pp. 60–61,
70, 190 (2004). On September 11, 2001, the enemy
brought the battle to American soil, killing 2,749 at the
Twin Towers in New York City, 184 at the Pentagon in
Washington, D. C., and 40 in Pennsylvania. See id., at
552, n. 9. It has threatened further attacks against our
homeland; one need only walk about buttressed and barri-
caded Washington, or board a plane anywhere in the
country, to know that the threat is a serious one. Our
Armed Forces are now in the field against the enemy, in
Afghanistan and Iraq. Last week, 13 of our countrymen in
arms were killed.
The game of bait-and-switch that today’s opinion plays
upon the Nation’s Commander in Chief will make the war
harder on us. It will almost certainly cause more Ameri-
cans to be killed. That consequence would be tolerable if
necessary to preserve a time-honored legal principle vital
to our constitutional Republic. But it is this Court’s bla-
tant abandonment of such a principle that produces the
decision today. The President relied on our settled prece-
dent in Johnson v. Eisentrager, 339 U. S. 763 (1950), when
he established the prison at Guantanamo Bay for enemy
aliens. Citing that case, the President’s Office of Legal
3 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
Counsel advised him “that the great weight of legal au-
thority indicates that a federal district court could not
properly exercise habeas jurisdiction over an alien de-
tained at [Guantanamo Bay].” Memorandum from Patrick
F. Philbin and John C. Yoo, Deputy Assistant Attorneys
General, Office of Legal Counsel, to William J. Haynes II,
General Counsel, Dept. of Defense (Dec. 28, 2001). Had
the law been otherwise, the military surely would not have
transported prisoners there, but would have kept them in
Afghanistan, transferred them to another of our foreign
military bases, or turned them over to allies for detention.
Those other facilities might well have been worse for the
detainees themselves.
In the long term, then, the Court’s decision today ac-
complishes little, except perhaps to reduce the well-being
of enemy combatants that the Court ostensibly seeks to
protect. In the short term, however, the decision is devas-
tating. At least 30 of those prisoners hitherto released
from Guantanamo Bay have returned to the battlefield.
See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Views
of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn)
(hereinafter Minority Report). Some have been captured
or killed. See ibid.; see also Mintz, Released Detainees
Rejoining the Fight, Washington Post, Oct. 22, 2004, pp.
A1, A12. But others have succeeded in carrying on their
atrocities against innocent civilians. In one case, a de-
tainee released from Guantanamo Bay masterminded the
kidnapping of two Chinese dam workers, one of whom was
later shot to death when used as a human shield against
Pakistani commandoes. See Khan & Lancaster, Paki-
stanis Rescue Hostage; 2nd Dies, Washington Post, Oct.
15, 2004, p. A18. Another former detainee promptly re-
sumed his post as a senior Taliban commander and mur-
dered a United Nations engineer and three Afghan sol-
diers. Mintz, supra. Still another murdered an Afghan
judge. See Minority Report 13. It was reported only last
4 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
month that a released detainee carried out a suicide bomb-
ing against Iraqi soldiers in Mosul, Iraq. See White, Ex-
Guantanamo Detainee Joined Iraq Suicide Attack, Wash-
ington Post, May 8, 2008, p. A18.
These, mind you, were detainees whom the military had
concluded were not enemy combatants. Their return to
the kill illustrates the incredible difficulty of assessing
who is and who is not an enemy combatant in a foreign
theater of operations where the environment does not lend
itself to rigorous evidence collection. Astoundingly, the
Court today raises the bar, requiring military officials to
appear before civilian courts and defend their decisions
under procedural and evidentiary rules that go beyond
what Congress has specified. As THE CHIEF JUSTICE’s
dissent makes clear, we have no idea what those proce-
dural and evidentiary rules are, but they will be deter-
mined by civil courts and (in the Court’s contemplation at
least) will be more detainee-friendly than those now ap-
plied, since otherwise there would be no reason to hold the
congressionally prescribed procedures unconstitutional. If
they impose a higher standard of proof (from foreign bat-
tlefields) than the current procedures require, the number
of the enemy returned to combat will obviously increase.
But even when the military has evidence that it can
bring forward, it is often foolhardy to release that evidence
to the attorneys representing our enemies. And one esca-
lation of procedures that the Court is clear about is afford-
ing the detainees increased access to witnesses (perhaps
troops serving in Afghanistan?) and to classified informa-
tion. See ante, at 54–55. During the 1995 prosecution of
Omar Abdel Rahman, federal prosecutors gave the names
of 200 unindicted co-conspirators to the “Blind Sheik’s”
defense lawyers; that information was in the hands of
Osama Bin Laden within two weeks. See Minority Report
14–15. In another case, trial testimony revealed to the
enemy that the United States had been monitoring their
5 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
cellular network, whereupon they promptly stopped using
it, enabling more of them to evade capture and continue
their atrocities. See id., at 15.
And today it is not just the military that the Court
elbows aside. A mere two Terms ago in Hamdan v. Rums-
feld, 548 U. S. 557 (2006), when the Court held (quite
amazingly) that the Detainee Treatment Act of 2005 had
not stripped habeas jurisdiction over Guantanamo peti-
tioners’ claims, four Members of today’s five-Justice major-
ity joined an opinion saying the following:
“Nothing prevents the President from returning to
Congress to seek the authority [for trial by military
commission] he believes necessary.
“Where, as here, no emergency prevents consulta-
tion with Congress, judicial insistence upon that con-
sultation does not weaken our Nation’s ability to deal
with danger. To the contrary, that insistence
strengthens the Nation’s ability to determine—
through democratic means—how best to do so. The
Constitution places its faith in those democratic
means.” Id., at 636 (BREYER, J., concurring).1
Turns out they were just kidding. For in response, Con-
gress, at the President’s request, quickly enacted the
Military Commissions Act, emphatically reasserting that
it did not want these prisoners filing habeas petitions. It
is therefore clear that Congress and the Executive—both
political branches—have determined that limiting the role
——————
1
Even today, the Court cannot resist striking a pose of faux deference
to Congress and the President. Citing the above quoted passage, the
Court says: “The political branches, consistent with their independent
obligations to interpret and uphold the Constitution, can engage in a
genuine debate about how best to preserve constitutional values while
protecting the Nation from terrorism.” Ante, at 69. Indeed. What the
Court apparently means is that the political branches can debate, after
which the Third Branch will decide.
6 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
of civilian courts in adjudicating whether prisoners cap-
tured abroad are properly detained is important to success
in the war that some 190,000 of our men and women are
now fighting. As the Solicitor General argued, “the Mili-
tary Commissions Act and the Detainee Treatment Act . . .
represent an effort by the political branches to strike an
appropriate balance between the need to preserve liberty
and the need to accommodate the weighty and sensitive
governmental interests in ensuring that those who have in
fact fought with the enemy during a war do not return to
battle against the United States.” Brief for Respondents
10–11 (internal quotation marks omitted).
But it does not matter. The Court today decrees that no
good reason to accept the judgment of the other two
branches is “apparent.” Ante, at 40. “The Government,” it
declares, “presents no credible arguments that the mili-
tary mission at Guantanamo would be compromised if
habeas corpus courts had jurisdiction to hear the detain-
ees’ claims.” Id., at 39. What competence does the Court
have to second-guess the judgment of Congress and the
President on such a point? None whatever. But the Court
blunders in nonetheless. Henceforth, as today’s opinion
makes unnervingly clear, how to handle enemy prisoners
in this war will ultimately lie with the branch that knows
least about the national security concerns that the subject
entails.
II
A
The Suspension Clause of the Constitution provides:
“The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it.” Art. I, §9, cl. 2. As a
court of law operating under a written Constitution, our
role is to determine whether there is a conflict between
that Clause and the Military Commissions Act. A conflict
7 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
arises only if the Suspension Clause preserves the privi-
lege of the writ for aliens held by the United States mili-
tary as enemy combatants at the base in Guantanamo
Bay, located within the sovereign territory of Cuba.
We have frequently stated that we owe great deference
to Congress’s view that a law it has passed is constitu-
tional. See, e.g., Department of Labor v. Triplett, 494 U. S.
715, 721 (1990); United States v. National Dairy Products
Corp., 372 U. S. 29, 32 (1963); see also American Commu-
nications Assn. v. Douds, 339 U. S. 382, 435 (1950) (Jack-
son, J., concurring in part and dissenting in part). That is
especially so in the area of foreign and military affairs;
“perhaps in no other area has the Court accorded Congress
greater deference.” Rostker v. Goldberg, 453 U. S. 57, 64–
65 (1981). Indeed, we accord great deference even when
the President acts alone in this area. See Department of
Navy v. Egan, 484 U. S. 518, 529–530 (1988); Regan v.
Wald, 468 U. S. 222, 243 (1984).
In light of those principles of deference, the Court’s
conclusion that “the common law [does not] yiel[d] a defi-
nite answer to the questions before us,” ante, at 22, leaves
it no choice but to affirm the Court of Appeals. The writ
as preserved in the Constitution could not possibly extend
farther than the common law provided when that Clause
was written. See Part III, infra. The Court admits that it
cannot determine whether the writ historically extended
to aliens held abroad, and it concedes (necessarily) that
Guantanamo Bay lies outside the sovereign territory of
the United States. See ante, at 22–23; Rasul v. Bush, 542
U. S. 466, 500–501 (2004) (SCALIA, J., dissenting). To-
gether, these two concessions establish that it is (in the
Court’s view) perfectly ambiguous whether the common-
law writ would have provided a remedy for these petition-
ers. If that is so, the Court has no basis to strike down the
Military Commissions Act, and must leave undisturbed
8 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
the considered judgment of the coequal branches.2
How, then, does the Court weave a clear constitutional
prohibition out of pure interpretive equipoise? The Court
resorts to “fundamental separation-of-powers principles”
to interpret the Suspension Clause. Ante, at 25. Accord-
ing to the Court, because “the writ of habeas corpus is
itself an indispensable mechanism for monitoring the
separation of powers,” the test of its extraterritorial reach
“must not be subject to manipulation by those whose
power it is designed to restrain.” Ante, at 36.
That approach distorts the nature of the separation of
powers and its role in the constitutional structure. The
“fundamental separation-of-powers principles” that the
Constitution embodies are to be derived not from some
judicially imagined matrix, but from the sum total of the
individual separation-of-powers provisions that the Con-
stitution sets forth. Only by considering them one-by-one
does the full shape of the Constitution’s separation-of-
powers principles emerge. It is nonsensical to interpret
those provisions themselves in light of some general
“separation-of-powers principles” dreamed up by the
Court. Rather, they must be interpreted to mean what
they were understood to mean when the people ratified
them. And if the understood scope of the writ of habeas
corpus was “designed to restrain” (as the Court says) the
actions of the Executive, the understood limits upon that
——————
2
The opinion seeks to avoid this straightforward conclusion by saying
that the Court has been “careful not to foreclose the possibility that the
protections of the Suspension Clause have expanded along with post-
1789 developments that define the present scope of the writ.” Ante, at
15–16 (citing INS v. St. Cyr, 533 U. S. 289 300–301 (2001)). But not
foreclosing the possibility that they have expanded is not the same as
demonstrating (or at least holding without demonstration, which seems
to suffice for today’s majority) that they have expanded. The Court
must either hold that the Suspension Clause has “expanded” in its
application to aliens abroad, or acknowledge that it has no basis to set
aside the actions of Congress and the President. It does neither.
9 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
scope were (as the Court seems not to grasp) just as much
“designed to restrain” the incursions of the Third Branch.
“Manipulation” of the territorial reach of the writ by the
Judiciary poses just as much a threat to the proper sepa-
ration of powers as “manipulation” by the Executive. As I
will show below, manipulation is what is afoot here. The
understood limits upon the writ deny our jurisdiction over
the habeas petitions brought by these enemy aliens, and
entrust the President with the crucial wartime determina-
tions about their status and continued confinement.
B
The Court purports to derive from our precedents a
“functional” test for the extraterritorial reach of the writ,
ante, at 34, which shows that the Military Commissions
Act unconstitutionally restricts the scope of habeas. That
is remarkable because the most pertinent of those prece-
dents, Johnson v. Eisentrager, 339 U. S. 763, conclusively
establishes the opposite. There we were confronted with
the claims of 21 Germans held at Landsberg Prison, an
American military facility located in the American Zone of
occupation in postwar Germany. They had been captured
in China, and an American military commission sitting
there had convicted them of war crimes—collaborating
with the Japanese after Germany’s surrender. Id., at 765–
766. Like the petitioners here, the Germans claimed that
their detentions violated the Constitution and interna-
tional law, and sought a writ of habeas corpus. Writing
for the Court, Justice Jackson held that American courts
lacked habeas jurisdiction:
“We are cited to [sic] no instance where a court, in
this or any other country where the writ is known, has
issued it on behalf of an alien enemy who, at no rele-
vant time and in no stage of his captivity, has been
within its territorial jurisdiction. Nothing in the text
of the Constitution extends such a right, nor does any-
10 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
thing in our statutes.” Id., at 768.
Justice Jackson then elaborated on the historical scope
of the writ:
“The alien, to whom the United States has been tra-
ditionally hospitable, has been accorded a generous
and ascending scale of rights as he increases his iden-
tity with our society. . . .
“But, in extending constitutional protections beyond
the citizenry, the Court has been at pains to point out
that it was the alien’s presence within its territorial
jurisdiction that gave the Judiciary power to act.” Id.,
at 770–771.
Lest there be any doubt about the primacy of territorial
sovereignty in determining the jurisdiction of a habeas
court over an alien, Justice Jackson distinguished two
cases in which aliens had been permitted to seek habeas
relief, on the ground that the prisoners in those cases were
in custody within the sovereign territory of the United
States. Id., at 779–780 (discussing Ex parte Quirin, 317
U. S. 1 (1942), and In re Yamashita, 327 U. S. 1 (1946)).
“By reason of our sovereignty at that time over [the Phil-
ippines],” Jackson wrote, “Yamashita stood much as did
Quirin before American courts.” 339 U. S., at 780.
Eisentrager thus held—held beyond any doubt—that the
Constitution does not ensure habeas for aliens held by the
United States in areas over which our Government is not
sovereign.3
——————
3
In its failed attempt to distinguish Eisentrager, the Court comes up
with the notion that “de jure sovereignty” is simply an additional factor
that can be added to (presumably) “de facto sovereignty” (i.e., practical
control) to determine the availability of habeas for aliens, but that it is
not a necessary factor, whereas de facto sovereignty is. It is perhaps in
this de facto sense, the Court speculates, that Eisentrager found “sover-
eignty” lacking. See ante, at 23–25. If that were so, one would have
expected Eisentrager to explain in some detail why the United States
11 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
The Court would have us believe that Eisentrager rested
on “[p]ractical considerations,” such as the “difficulties of
ordering the Government to produce the prisoners in a
habeas corpus proceeding.” Ante, at 32. Formal sover-
eignty, says the Court, is merely one consideration “that
bears upon which constitutional guarantees apply” in a
given location. Ante, at 34. This is a sheer rewriting of
the case. Eisentrager mentioned practical concerns, to be
sure—but not for the purpose of determining under what
circumstances American courts could issue writs of habeas
corpus for aliens abroad. It cited them to support its
holding that the Constitution does not empower courts to
issue writs of habeas corpus to aliens abroad in any cir-
cumstances. As Justice Black accurately said in dissent,
“the Court’s opinion inescapably denies courts power to
afford the least bit of protection for any alien who is sub-
ject to our occupation government abroad, even if he is
neither enemy nor belligerent and even after peace is
officially declared.” 339 U. S., at 796.
The Court also tries to change Eisentrager into a “func-
——————
did not have practical control over the American zone of occupation. It
did not (and probably could not). Of course this novel de facto-de jure
approach does not explain why the writ never issued to Scotland, which
was assuredly within the de facto control of the English crown. See
infra, at 22.
To support its holding that de facto sovereignty is relevant to the
reach of habeas corpus, the Court cites our decision in Fleming v. Page,
9 How. 603 (1850), a case about the application of a customs statute to
a foreign port occupied by U. S. forces. See ante, at 24. The case used
the phrase “subject to the sovereignty and dominion of the United
States” to refer to the United States’ practical control over a “foreign
country.” 9 How., at 614. But Fleming went on to explain that because
the port remained part of the “enemy’s country,” even though under
U. S. military occupation, “its subjugation did not compel the United
States, while they held it, to regard it as part of their dominions, nor to
give to it any form of civil government, nor to extend to it our laws.”
Id., at 618. If Fleming is relevant to these cases at all, it undermines
the Court’s holding.
12 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
tional” test by quoting a paragraph that lists the charac-
teristics of the German petitioners:
“To support [the] assumption [of a constitutional right
to habeas corpus] we must hold that a prisoner of our
military authorities is constitutionally entitled to the
writ, even though he (a) is an enemy alien; (b) has
never been or resided in the United States; (c) was
captured outside of our territory and there held in
military custody as a prisoner of war; (d) was tried
and convicted by a Military Commission sitting out-
side the United States; (e) for offenses against laws of
war committed outside the United States; (f) and is at
all times imprisoned outside the United States.” Id.,
at 777 (quoted in part, ante, at 36).
But that paragraph is introduced by a sentence stating
that “[t]he foregoing demonstrates how much further we
must go if we are to invest these enemy aliens, resident,
captured and imprisoned abroad, with standing to demand
access to our courts.” 339 U. S., at 777 (emphasis added).
How much further than what? Further than the rule set
forth in the prior section of the opinion, which said that “in
extending constitutional protections beyond the citizenry,
the Court has been at pains to point out that it was the
alien’s presence within its territorial jurisdiction that gave
the Judiciary power to act.” Id., at 771. In other words,
the characteristics of the German prisoners were set forth,
not in application of some “functional” test, but to show
that the case before the Court represented an a fortiori
application of the ordinary rule. That is reaffirmed by the
sentences that immediately follow the listing of the Ger-
mans’ characteristics:
“We have pointed out that the privilege of litigation
has been extended to aliens, whether friendly or en-
emy, only because permitting their presence in the
country implied protection. No such basis can be in-
13 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
voked here, for these prisoners at no relevant time
were within any territory over which the United
States is sovereign, and the scenes of their offense,
their capture, their trial and their punishment were
all beyond the territorial jurisdiction of any court of
the United States.” Id., at 777–778.
Eisentrager nowhere mentions a “functional” test, and the
notion that it is based upon such a principle is patently
false.4
The Court also reasons that Eisentrager must be read as
a “functional” opinion because of our prior decisions in the
Insular Cases. See ante, at 26–29. It cites our statement
in Balzac v. Porto Rico, 258 U. S. 298, 312 (1922), that
“‘the real issue in the Insular Cases was not whether the
Constitution extended to the Philippines or Porto Rico
when we went there, but which of its provisions were
——————
4
JUSTICE SOUTER’s concurrence relies on our decision four Terms ago
in Rasul v. Bush, 542 U. S. 466 (2004), where the Court interpreted the
habeas statute to extend to aliens held at Guantanamo Bay. He thinks
that “no one who reads the Court’s opinion in Rasul could seriously
doubt that the jurisdictional question must be answered the same way
in purely constitutional cases.” Ante, at 1–2. But Rasul was devoted
primarily to an explanation of why Eisentrager’s statutory holding no
longer controlled given our subsequent decision in Braden v. 30th
Judicial Circuit Court of Ky., 410 U. S. 484 (1973). See Rasul, supra, at
475–479. And the opinion of the Court today—which JUSTICE SOUTER
joins—expressly rejects the historical evidence cited in Rasul to support
its conclusion about the reach of habeas corpus. Compare id., at 481–
482, with ante, at 18. Moreover, even if one were to accept as true what
JUSTICE SOUTER calls Rasul’s “well-considered” dictum, that does not
explain why Eisentrager’s constitutional holding must be overruled or
how it can be distinguished. (After all, Rasul distinguished Eisen-
trager’s statutory holding on a ground inapplicable to its constitutional
holding.) In other words, even if the Court were to conclude that
Eisentrager’s rule was incorrect as an original matter, the Court would
have to explain the justification for departing from that precedent. It
therefore cannot possibly be true that Rasul controls this case, as
JUSTICE SOUTER suggests.
14 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
applicable by way of limitation upon the exercise of execu-
tive and legislative power in dealing with new conditions
and requirements.’” Ante, at 28. But the Court conven-
iently omits Balzac’s predicate to that statement: “The
Constitution of the United States is in force in Porto Rico
as it is wherever and whenever the sovereign power of that
government is exerted.” 258 U. S., at 312 (emphasis
added). The Insular Cases all concerned territories ac-
quired by Congress under its Article IV authority and
indisputably part of the sovereign territory of the United
States. See United States v. Verdugo-Urquidez, 494 U. S.
259, 268 (1990); Reid v. Covert, 354 U. S. 1, 13 (1957)
(plurality opinion of Black, J.). None of the Insular Cases
stands for the proposition that aliens located outside U. S.
sovereign territory have constitutional rights, and Eisen-
trager held just the opposite with respect to habeas corpus.
As I have said, Eisentrager distinguished Yamashita on
the ground of “our sovereignty [over the Philippines],” 339
U. S., at 780.
The Court also relies on the “[p]ractical considerations”
that influenced our decision in Reid v. Covert, supra. See
ante, at 29–32. But all the Justices in the majority except
Justice Frankfurter limited their analysis to the rights of
citizens abroad. See Reid, supra, at 5–6 (plurality opinion
of Black, J.); id., at 74–75 (Harlan, J., concurring in re-
sult). (Frankfurter limited his analysis to the even nar-
rower class of civilian dependents of American military
personnel abroad, see id., at 45 (opinion concurring in
result).) In trying to wring some kind of support out of
Reid for today’s novel holding, the Court resorts to a chain
of logic that does not hold. The members of the Reid
majority, the Court says, were divided over whether In re
Ross, 140 U. S. 453 (1891), which had (according to the
Court) held that under certain circumstances American
citizens abroad do not have indictment and jury-trial
rights, should be overruled. In the Court’s view, the Reid
15 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
plurality would have overruled Ross, but Justices Frank-
furter and Harlan preferred to distinguish it. The upshot:
“If citizenship had been the only relevant factor in the
case, it would have been necessary for the Court to over-
turn Ross, something Justices Harlan and Frankfurter
were unwilling to do.” Ante, at 32. What, exactly, is this
point supposed to prove? To say that “practical considera-
tions” determine the precise content of the constitutional
protections American citizens enjoy when they are abroad
is quite different from saying that “practical considera-
tions” determine whether aliens abroad enjoy any consti-
tutional protections whatever, including habeas. In other
words, merely because citizenship is not a sufficient factor
to extend constitutional rights abroad does not mean that
it is not a necessary one.
The Court tries to reconcile Eisentrager with its holding
today by pointing out that in postwar Germany, the
United States was “answerable to its Allies” and did not
“pla[n] a long-term occupation.” Ante, at 38, 39. Those
factors were not mentioned in Eisentrager. Worse still, it
is impossible to see how they relate to the Court’s asserted
purpose in creating this “functional” test—namely, to
ensure a judicial inquiry into detention and prevent the
political branches from acting with impunity. Can it
possibly be that the Court trusts the political branches
more when they are beholden to foreign powers than when
they act alone?
After transforming the a fortiori elements discussed
above into a “functional” test, the Court is still left with
the difficulty that most of those elements exist here as
well with regard to all the detainees. To make the appli-
cation of the newly crafted “functional” test produce a
different result in the present cases, the Court must rely
upon factors (d) and (e): The Germans had been tried by a
military commission for violations of the laws of war; the
present petitioners, by contrast, have been tried by a
16 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
Combatant Status Review Tribunal (CSRT) whose proce-
dural protections, according to the Court’s ipse dixit, “fall
well short of the procedures and adversarial mechanisms
that would eliminate the need for habeas corpus review.”
Ante, at 37. But no one looking for “functional” equiva-
lents would put Eisentrager and the present cases in the
same category, much less place the present cases in a
preferred category. The difference between them cries out
for lesser procedures in the present cases. The prisoners
in Eisentrager were prosecuted for crimes after the cessa-
tion of hostilities; the prisoners here are enemy combat-
ants detained during an ongoing conflict. See Hamdi v.
Rumsfeld, 542 U. S. 507, 538 (2004) (plurality opinion)
(suggesting, as an adequate substitute for habeas corpus,
the use of a tribunal akin to a CSRT to authorize the
detention of American citizens as enemy combatants dur-
ing the course of the present conflict).
The category of prisoner comparable to these detainees
are not the Eisentrager criminal defendants, but the more
than 400,000 prisoners of war detained in the United
States alone during World War II. Not a single one was
accorded the right to have his detention validated by a
habeas corpus action in federal court—and that despite
the fact that they were present on U. S. soil. See Bradley,
The Military Commissions Act, Habeas Corpus, and the
Geneva Conventions, 101 Am. J. Int’l L. 322, 338 (2007).
The Court’s analysis produces a crazy result: Whereas
those convicted and sentenced to death for war crimes are
without judicial remedy, all enemy combatants detained
during a war, at least insofar as they are confined in an
area away from the battlefield over which the United
States exercises “absolute and indefinite” control, may
seek a writ of habeas corpus in federal court. And, as an
even more bizarre implication from the Court’s reasoning,
those prisoners whom the military plans to try by full-
dress Commission at a future date may file habeas peti-
17 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
tions and secure release before their trials take place.
There is simply no support for the Court’s assertion that
constitutional rights extend to aliens held outside U. S.
sovereign territory, see Verdugo-Urquidez, 494 U. S., at
271, and Eisentrager could not be clearer that the privilege
of habeas corpus does not extend to aliens abroad. By
blatantly distorting Eisentrager, the Court avoids the
difficulty of explaining why it should be overruled. See
Planned Parenthood of Southeastern Pa. v. Casey, 505
U. S. 833, 854–855 (1992) (identifying stare decisis fac-
tors). The rule that aliens abroad are not constitutionally
entitled to habeas corpus has not proved unworkable in
practice; if anything, it is the Court’s “functional” test that
does not (and never will) provide clear guidance for the
future. Eisentrager forms a coherent whole with the ac-
cepted proposition that aliens abroad have no substantive
rights under our Constitution. Since it was announced, no
relevant factual premises have changed. It has engen-
dered considerable reliance on the part of our military.
And, as the Court acknowledges, text and history do not
clearly compel a contrary ruling. It is a sad day for the
rule of law when such an important constitutional pre-
cedent is discarded without an apologia, much less an
apology.
C
What drives today’s decision is neither the meaning of
the Suspension Clause, nor the principles of our prece-
dents, but rather an inflated notion of judicial supremacy.
The Court says that if the extraterritorial applicability of
the Suspension Clause turned on formal notions of sover-
eignty, “it would be possible for the political branches to
govern without legal constraint” in areas beyond the
sovereign territory of the United States. Ante, at 35. That
cannot be, the Court says, because it is the duty of this
Court to say what the law is. Id., at 35–36. It would be
18 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
difficult to imagine a more question-begging analysis.
“The very foundation of the power of the federal courts to
declare Acts of Congress unconstitutional lies in the power
and duty of those courts to decide cases and controversies
properly before them.” United States v. Raines, 362 U. S.
17, 20–21 (1960) (citing Marbury v. Madison, 1 Cranch
137 (1803); emphasis added). Our power “to say what the
law is” is circumscribed by the limits of our statutorily and
constitutionally conferred jurisdiction. See Lujan v. De-
fenders of Wildlife, 504 U. S. 555, 573–578 (1992). And
that is precisely the question in these cases: whether the
Constitution confers habeas jurisdiction on federal courts
to decide petitioners’ claims. It is both irrational and
arrogant to say that the answer must be yes, because
otherwise we would not be supreme.
But so long as there are some places to which habeas
does not run—so long as the Court’s new “functional” test
will not be satisfied in every case—then there will be cir-
cumstances in which “it would be possible for the political
branches to govern without legal constraint.” Or, to put it
more impartially, areas in which the legal determinations
of the other branches will be (shudder!) supreme. In other
words, judicial supremacy is not really assured by the
constitutional rule that the Court creates. The gap be-
tween rationale and rule leads me to conclude that the
Court’s ultimate, unexpressed goal is to preserve the
power to review the confinement of enemy prisoners held
by the Executive anywhere in the world. The “functional”
test usefully evades the precedential landmine of Eisen-
trager but is so inherently subjective that it clears a wide
path for the Court to traverse in the years to come.
III
Putting aside the conclusive precedent of Eisentrager, it
is clear that the original understanding of the Suspension
Clause was that habeas corpus was not available to aliens
19 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
abroad, as Judge Randolph’s thorough opinion for the
court below detailed. See 476 F. 3d 981, 988–990 (CADC
2007).
The Suspension Clause reads: “The Privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may
require it.” U. S. Const., Art. I, §9, cl. 2. The proper
course of constitutional interpretation is to give the text
the meaning it was understood to have at the time of its
adoption by the people. See, e.g., Crawford v. Washington,
541 U. S. 36, 54 (2004). That course is especially de-
manded when (as here) the Constitution limits the power
of Congress to infringe upon a pre-existing common-law
right. The nature of the writ of habeas corpus that cannot
be suspended must be defined by the common-law writ
that was available at the time of the founding. See
McNally v. Hill, 293 U. S. 131, 135–136 (1934); see also
INS v. St. Cyr, 533 U. S. 289, 342 (2001) (SCALIA, J., dis-
senting); D’Oench, Duhme & Co. v. FDIC, 315 U. S. 447,
471, n. 9 (1942) (Jackson, J., concurring).
It is entirely clear that, at English common law, the writ
of habeas corpus did not extend beyond the sovereign
territory of the Crown. To be sure, the writ had an “ex-
traordinary territorial ambit,” because it was a so-called
“prerogative writ,” which, unlike other writs, could extend
beyond the realm of England to other places where the
Crown was sovereign. R. Sharpe, The Law of Habeas
Corpus 188 (2d ed. 1989) (hereinafter Sharpe); see also
Note on the Power of the English Courts to Issue the Writ
of Habeas to Places Within the Dominions of the Crown,
But Out of England, and On the Position of Scotland in
Relation to that Power, 8 Jurid. Rev. 157 (1896) (hereinaf-
ter Note on Habeas); King v. Cowle, 2 Burr. 834, 855–856,
97 Eng. Rep. 587, 599 (K. B. 1759).
But prerogative writs could not issue to foreign coun-
tries, even for British subjects; they were confined to the
20 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
King’s dominions—those areas over which the Crown was
sovereign. See Sharpe 188; 2 R. Chambers, A Course of
Lectures on the English Law 1767–1773, pp. 7–8 (Curley
ed. 1986); 3 W. Blackstone, Commentaries on the Laws of
England 131 (1768) (hereinafter Blackstone). Thus, the
writ has never extended to Scotland, which, although
united to England when James I succeeded to the English
throne in 1603, was considered a foreign dominion under a
different Crown—that of the King of Scotland. Sharpe
191; Note on Habeas 158.5 That is why Lord Mansfield
wrote that “[t]o foreign dominions, which belong to a
prince who succeeds to the throne of England, this Court
has no power to send any writ of any kind. We cannot
send a habeas corpus to Scotland . . . .” Cowle, supra, at
856, 97 Eng. Rep., at 599–600.
The common-law writ was codified by the Habeas Cor-
pus Act of 1679, which “stood alongside Magna Charta and
the English Bill of Rights of 1689 as a towering common
law lighthouse of liberty—a beacon by which framing
lawyers in America consciously steered their course.”
Amar, Sixth Amendment First Principles, 84 Geo. L. J.
641, 663 (1996). The writ was established in the Colonies
beginning in the 1690’s and at least one colony adopted
the 1679 Act almost verbatim. See Dept. of Political Sci-
ence, Okla. State Univ., Research Reports, No. 1, R.
Walker, The American Reception of the Writ of Liberty
12–16 (1961). Section XI of the Act stated where the writ
could run. It “may be directed and run into any county
palatine, the cinque-ports, or other privileged places
within the kingdom of England, dominion of Wales, or
town of Berwick upon Tweed, and the islands of Jersey or
Guernsey.” 31 Car. 2, ch. 2. The cinque-ports and county
palatine were so-called “exempt jurisdictions”—franchises
——————
5
My dissent in Rasul v. Bush, 542 U. S. 466, 503 (2004), mistakenly
included Scotland among the places to which the writ could run.
21 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
granted by the Crown in which local authorities would
manage municipal affairs, including the court system, but
over which the Crown maintained ultimate sovereignty.
See 3 Blackstone 78–79. The other places listed—Wales,
Berwick-upon-Tweed, Jersey, and Guernsey—were terri-
tories of the Crown even though not part England proper.
See Cowle, supra, at 853–854, 97 Eng. Rep., at 598 (Wales
and Berwick-upon-Tweed); 1 Blackstone 104 (Jersey and
Guernsey); Sharpe 192 (same).
The Act did not extend the writ elsewhere, even though
the existence of other places to which British prisoners
could be sent was recognized by the Act. The possibility of
evading judicial review through such spiriting-away was
eliminated, not by expanding the writ abroad, but by
forbidding (in Article XII of the Act) the shipment of pris-
oners to places where the writ did not run or where its
execution would be difficult. See 31 Car. 2, ch. 2; see
generally Nutting, The Most Wholesome Law—The Ha-
beas Corpus Act of 1679, 65 Am. Hist. Rev. 527 (1960).
The Habeas Corpus Act, then, confirms the consensus
view of scholars and jurists that the writ did not run
outside the sovereign territory of the Crown. The Court
says that the idea that “jurisdiction followed the King’s
officers” is an equally credible view. Ante, at 16. It is not
credible at all. The only support the Court cites for it is a
page in Boumediene’s brief, which in turn cites this
Court’s dicta in Rasul, 542 U. S., at 482, mischaracterizing
Lord Mansfield’s statement that the writ ran to any place
that was “under the subjection of the Crown,” Cowle,
supra, at 856, 97 Eng. Rep., at 599. It is clear that Lord
Mansfield was saying that the writ extended outside the
realm of England proper, not outside the sovereign terri-
tory of the Crown.6
——————
6
The dicta in Rasul also cited Ex parte Mwenya, [1960] 1 Q. B. 241,
(C. A.), but as I explained in dissent, “[e]ach judge [in Mwenya] made
22 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
The Court dismisses the example of Scotland on the
grounds that Scotland had its own judicial system and
that the writ could not, as a practical matter, have been
enforced there. Ante, at 20. Those explanations are to-
tally unpersuasive. The existence of a separate court
system was never a basis for denying the power of a court
to issue the writ. See 9 W. Holdsworth, A History of Eng-
lish Law 124 (3d ed. 1944) (citing Ex parte Anderson, 3 El.
and El. 487 (1861)). And as for logistical problems, the
same difficulties were present for places like the Channel
Islands, where the writ did run. The Court attempts to
draw an analogy between the prudential limitations on
issuing the writ to such remote areas within the sovereign
territory of the Crown and the jurisdictional prohibition on
issuing the writ to Scotland. See ante, at 19–20. But the
very authority that the Court cites, Lord Mansfield, ex-
pressly distinguished between these two concepts, stating
that English courts had the “power” to send the writ to
places within the Crown’s sovereignty, the “only question”
being the “propriety,” while they had “no power to send
any writ of any kind” to Scotland and other “foreign do-
minions.” Cowle, supra, at 856, 97 Eng. Rep., at 599–600.
The writ did not run to Scotland because, even after the
Union, “Scotland remained a foreign dominion of the
prince who succeeded to the English throne,” and “union
did not extend the prerogative of the English crown to
Scotland.” Sharpe 191; see also Sir Matthew Hale’s The
Prerogatives of the King 19 (D. Yale ed. 1976).7
——————
clear that the detainee’s status as a subject was material to the resolu-
tion of the case,” 542 U. S., at 504.
7
The Court also argues that the fact that the writ could run to Ire-
land, even though it was ruled under a “separate” crown, shows that
formal sovereignty was not the touchstone of habeas jurisdiction. Ante,
at 21. The passage from Blackstone that the Court cites, however,
describes Ireland as “a dependent, subordinate kingdom” that was part
of the “king’s dominions.” 1 Blackstone 98, 100 (internal quotation
23 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
In sum, all available historical evidence points to the
conclusion that the writ would not have been available at
common law for aliens captured and held outside the
sovereign territory of the Crown. Despite three opening
briefs, three reply briefs, and support from a legion of
amici, petitioners have failed to identify a single case in
the history of Anglo-American law that supports their
claim to jurisdiction. The Court finds it significant that
there is no recorded case denying jurisdiction to such
prisoners either. See ante, at 21–22. But a case standing
for the remarkable proposition that the writ could issue to
a foreign land would surely have been reported, whereas a
case denying such a writ for lack of jurisdiction would
likely not. At a minimum, the absence of a reported case
either way leaves unrefuted the voluminous commentary
stating that habeas was confined to the dominions of the
Crown.
What history teaches is confirmed by the nature of the
limitations that the Constitution places upon suspension
of the common-law writ. It can be suspended only “in
Cases of Rebellion or Invasion.” Art. I, §9, cl. 2. The latter
case (invasion) is plainly limited to the territory of the
United States; and while it is conceivable that a rebellion
could be mounted by American citizens abroad, surely the
overwhelming majority of its occurrences would be domes-
tic. If the extraterritorial scope of habeas turned on flexi-
ble, “functional” considerations, as the Court holds, why
would the Constitution limit its suspension almost en-
tirely to instances of domestic crisis? Surely there is an
even greater justification for suspension in foreign lands
where the United States might hold prisoners of war
——————
marks omitted). And Lord Mansfield’s opinion in Cowle plainly under-
stood Ireland to be “a dominion of the Crown of England,” in contrast to
the “foreign dominio[n]” of Scotland, and thought that distinction
dispositive of the question of habeas jurisdiction. Cowle, supra, at 856,
97 Eng. Rep., at 599–600.
24 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
during an ongoing conflict. And correspondingly, there is
less threat to liberty when the Government suspends the
writ’s (supposed) application in foreign lands, where even
on the most extreme view prisoners are entitled to fewer
constitutional rights. It makes no sense, therefore, for the
Constitution generally to forbid suspension of the writ
abroad if indeed the writ has application there.
It may be objected that the foregoing analysis proves too
much, since this Court has already suggested that the writ
of habeas corpus does run abroad for the benefit of United
States citizens. “[T]he position that United States citizens
throughout the world may be entitled to habeas corpus
rights . . . is precisely the position that this Court adopted
in Eisentrager, see 339 U. S., at 769–770, even while
holding that aliens abroad did not have habeas corpus
rights.” Rasul, 542 U. S., at 501, 502 (SCALIA, J., dissent-
ing) (emphasis deleted). The reason for that divergence is
not difficult to discern. The common-law writ, as received
into the law of the new constitutional Republic, took on
such changes as were demanded by a system in which rule
is derived from the consent of the governed, and in which
citizens (not “subjects”) are afforded defined protections
against the Government. As Justice Story wrote for the
Court,
“The common law of England is not to be taken in all
respects to be that of America. Our ancestors brought
with them its general principles, and claimed it as
their birthright; but they brought with them and
adopted only that portion which was applicable to
their situation.” Van Ness v. Pacard, 2 Pet. 137, 144
(1829).
See also Hall, The Common Law: An Account of its Recep-
tion in the United States, 4 Vand. L. Rev. 791 (1951). It
accords with that principle to say, as the plurality opinion
said in Reid: “When the Government reaches out to punish
25 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
a citizen who is abroad, the shield which the Bill of Rights
and other parts of the Constitution provide to protect his
life and liberty should not be stripped away just because
he happens to be in another land.” 354 U. S., at 6; see also
Verdugo-Urquidez, 494 U. S., at 269–270. On that analy-
sis, “[t]he distinction between citizens and aliens follows
from the undoubted proposition that the Constitution does
not create, nor do general principles of law create, any
juridical relation between our country and some unde-
fined, limitless class of noncitizens who are beyond our
territory.” Id., at 275 (KENNEDY, J., concurring).
In sum, because I conclude that the text and history of
the Suspension Clause provide no basis for our jurisdic-
tion, I would affirm the Court of Appeals even if Eisen-
trager did not govern these cases.
* * *
Today the Court warps our Constitution in a way that
goes beyond the narrow issue of the reach of the Suspen-
sion Clause, invoking judicially brainstormed separation-
of-powers principles to establish a manipulable “func-
tional” test for the extraterritorial reach of habeas corpus
(and, no doubt, for the extraterritorial reach of other
constitutional protections as well). It blatantly misde-
scribes important precedents, most conspicuously Justice
Jackson’s opinion for the Court in Johnson v. Eisentrager.
It breaks a chain of precedent as old as the common law
that prohibits judicial inquiry into detentions of aliens
abroad absent statutory authorization. And, most tragi-
cally, it sets our military commanders the impossible task
of proving to a civilian court, under whatever standards
this Court devises in the future, that evidence supports
the confinement of each and every enemy prisoner.
The Nation will live to regret what the Court has done
today. I dissent.
PRESIDENT LOSES ANOTHER SUPREME COURT DECISION-ENOUGH ALREADY!!!!!
1 (Slip Opinion) OCTOBER TERM, 2007
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BOUMEDIENE ET AL. v. BUSH, PRESIDENT OF THE
UNITED STATES, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 06–1195. Argued December 5, 2007—Decided June 12, 2008*
In the Authorization for Use of Military Force (AUMF), Congress em-
powered the President “to use all necessary and appropriate force
against those . . . he determines planned, authorized, committed, or
aided the terrorist attacks . . . on September 11, 2001.” In Hamdi v.
Rumsfeld, 542 U. S. 507, 518, 588–589, five Justices recognized that
detaining individuals captured while fighting against the United
States in Afghanistan for the duration of that conflict was a funda-
mental and accepted incident to war. Thereafter, the Defense De-
partment established Combatant Status Review Tribunals (CSRTs)
to determine whether individuals detained at the U. S. Naval Station
at Guantanamo Bay, Cuba, were “enemy combatants.”
Petitioners are aliens detained at Guantanamo after being cap-
tured in Afghanistan or elsewhere abroad and designated enemy
combatants by CSRTs. Denying membership in the al Qaeda terror-
ist network that carried out the September 11 attacks and the Tali-
ban regime that supported al Qaeda, each petitioner sought a writ of
habeas corpus in the District Court, which ordered the cases dis-
missed for lack of jurisdiction because Guantanamo is outside sover-
eign U. S. territory. The D. C. Circuit affirmed, but this Court re-
versed, holding that 28 U. S. C. §2241 extended statutory habeas
jurisdiction to Guantanamo. See Rasul v. Bush, 542 U. S. 466, 473.
Petitioners’ cases were then consolidated into two proceedings. In
the first, the district judge granted the Government’s motion to dis-
miss, holding that the detainees had no rights that could be vindi-
——————
*Together with No. 06–1196, Al Odah, Next Friend of Al Odah, et al.
v. United States et al., also on certiorari to the same court.
2 BOUMEDIENE v. BUSH
Syllabus
cated in a habeas action. In the second, the judge held that the de-
tainees had due process rights.
While appeals were pending, Congress passed the Detainee Treat-
ment Act of 2005 (DTA), §1005(e) of which amended 28 U. S. C. §2241
to provide that “no court, justice, or judge shall have jurisdiction to
. . . consider . . . an application for . . . habeas corpus filed by or on
behalf of an alien detained . . . at Guantanamo,” and gave the D. C.
Circuit “exclusive” jurisdiction to review CSRT decisions. In Ham-
dan v. Rumsfeld, 548 U. S. 557, 576–577, the Court held this provi-
sion inapplicable to cases (like petitioners’) pending when the DTA
was enacted. Congress responded with the Military Commissions Act
of 2006 (MCA), §7(a) of which amended §2241(e)(1) to deny jurisdic-
tion with respect to habeas actions by detained aliens determined to
be enemy combatants, while §2241(e)(2) denies jurisdiction as to “any
other action against the United States . . . relating to any aspect of
the detention, transfer, treatment, trial, or conditions of confinement”
of a detained alien determined to be an enemy combatant. MCA
§7(b) provides that the 2241(e) amendments “shall take effect on the
date of the enactment of this Act, and shall apply to all cases, without
exception, pending on or after [that] date . . . which relate to any as-
pect of the detention, transfer, treatment, trial, or conditions of de-
tention of an alien detained . . . since September 11, 2001.”
The D. C. Circuit concluded that MCA §7 must be read to strip
from it, and all federal courts, jurisdiction to consider petitioners’ ha-
beas applications; that petitioners are not entitled to habeas or the
protections of the Suspension Clause, U. S. Const., Art. I, §9, cl. 2,
which provides that “[t]he Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it”; and that it was therefore unneces-
sary to consider whether the DTA provided an adequate and effective
substitute for habeas.
Held:
1. MCA §7 denies the federal courts jurisdiction to hear habeas ac-
tions, like the instant cases, that were pending at the time of its en-
actment. Section §7(b)’s effective date provision undoubtedly applies
to habeas actions, which, by definition, “relate to . . . detention”
within that section’s meaning. Petitioners argue to no avail that
§7(b) does not apply to a §2241(e)(1) habeas action, but only to “any
other action” under §2241(e)(2), because it largely repeats that sec-
tion’s language. The phrase “other action” in §2241(e)(2) cannot be
understood without referring back to §2241(e)(1), which explicitly
mentions the “writ of habeas corpus.” Because the two paragraphs’
structure implies that habeas is a type of action “relating to any as-
3 Cite as: 553 U. S. ____ (2008)
Syllabus
pect of . . . detention,” etc., pending habeas actions are in the category
of cases subject to the statute’s jurisdictional bar. This is confirmed
by the MCA’s legislative history. Thus, if MCA §7 is valid, petition-
ers’ cases must be dismissed. Pp. 5–8.
2. Petitioners have the constitutional privilege of habeas corpus.
They are not barred from seeking the writ or invoking the Suspen-
sion Clause’s protections because they have been designated as en-
emy combatants or because of their presence at Guantanamo. Pp. 8–
41.
(a) A brief account of the writ’s history and origins shows that
protection for the habeas privilege was one of the few safeguards of
liberty specified in a Constitution that, at the outset, had no Bill of
Rights; in the system the Framers conceived, the writ has a central-
ity that must inform proper interpretation of the Suspension Clause.
That the Framers considered the writ a vital instrument for the pro-
tection of individual liberty is evident from the care taken in the Sus-
pension Clause to specify the limited grounds for its suspension: The
writ may be suspended only when public safety requires it in times of
rebellion or invasion. The Clause is designed to protect against cycli-
cal abuses of the writ by the Executive and Legislative Branches. It
protects detainee rights by a means consistent with the Constitu-
tion’s essential design, ensuring that, except during periods of formal
suspension, the Judiciary will have a time-tested device, the writ, to
maintain the “delicate balance of governance.” Hamdi, supra, at 536.
Separation-of-powers principles, and the history that influenced their
design, inform the Clause’s reach and purpose. Pp. 8–15.
(b) A diligent search of founding-era precedents and legal com-
mentaries reveals no certain conclusions. None of the cases the par-
ties cite reveal whether a common-law court would have granted, or
refused to hear for lack of jurisdiction, a habeas petition by a prisoner
deemed an enemy combatant, under a standard like the Defense De-
partment’s in these cases, and when held in a territory, like Guan-
tanamo, over which the Government has total military and civil con-
trol. The evidence as to the writ’s geographic scope at common law is
informative, but, again, not dispositive. Petitioners argue that the
site of their detention is analogous to two territories outside England
to which the common-law writ ran, the exempt jurisdictions and In-
dia, but critical differences between these places and Guantanamo
render these claims unpersuasive. The Government argues that
Guantanamo is more closely analogous to Scotland and Hanover,
where the writ did not run, but it is unclear whether the common-law
courts lacked the power to issue the writ there, or whether they re-
frained from doing so for prudential reasons. The parties’ arguments
that the very lack of a precedent on point supports their respective
4 BOUMEDIENE v. BUSH
Syllabus
positions are premised upon the doubtful assumptions that the his-
torical record is complete and that the common law, if properly un-
derstood, yields a definite answer to the questions before the Court.
Pp. 15–22.
(c) The Suspension Clause has full effect at Guantanamo. The
Government’s argument that the Clause affords petitioners no rights
because the United States does not claim sovereignty over the naval
station is rejected. Pp. 22–42.
(i) The Court does not question the Government’s position that
Cuba maintains sovereignty, in the legal and technical sense, over
Guantanamo, but it does not accept the Government’s premise that
de jure sovereignty is the touchstone of habeas jurisdiction. Com-
mon-law habeas’ history provides scant support for this proposition,
and it is inconsistent with the Court’s precedents and contrary to
fundamental separation-of-powers principles. Pp. 22–25.
(ii) Discussions of the Constitution’s extraterritorial applica-
tion in cases involving provisions other than the Suspension Clause
undermine the Government’s argument. Fundamental questions re-
garding the Constitution’s geographic scope first arose when the Na-
tion acquired Hawaii and the noncontiguous Territories ceded by
Spain after the Spanish-American War, and Congress discontinued
its prior practice of extending constitutional rights to territories by
statute. In the so-called Insular Cases, the Court held that the Con-
stitution had independent force in the territories that was not contin-
gent upon acts of legislative grace. See, e.g., Dorr v. United States,
195 U. S. 138. Yet because of the difficulties and disruption inherent
in transforming the former Spanish colonies’ civil-law system into an
Anglo-American system, the Court adopted the doctrine of territorial
incorporation, under which the Constitution applies in full in incor-
porated Territories surely destined for statehood but only in part in
unincorporated Territories. See, e.g., id., at 143. Practical considera-
tions likewise influenced the Court’s analysis in Reid v. Covert, 354
U. S. 1, where, in applying the jury provisions of the Fifth and Sixth
Amendments to American civilians being tried by the U. S. military
abroad, both the plurality and the concurrences noted the relevance
of practical considerations, related not to the petitioners’ citizenship,
but to the place of their confinement and trial. Finally, in holding
that habeas jurisdiction did not extend to enemy aliens, convicted of
violating the laws of war, who were detained in a German prison dur-
ing the Allied Powers’ post-World War II occupation, the Court, in
Johnson v. Eisentrager, 339 U. S. 763, stressed the practical difficul-
ties of ordering the production of the prisoners, id., at 779. The Gov-
ernment’s reading of Eisentrager as adopting a formalistic test for de-
termining the Suspension Clause’s reach is rejected because: (1) the
5 Cite as: 553 U. S. ____ (2008)
Syllabus
discussion of practical considerations in that case was integral to a
part of the Court’s opinion that came before it announced its holding,
see id., at 781; (2) it mentioned the concept of territorial sovereignty
only twice in its opinion, in contrast to its significant discussion of
practical barriers to the running of the writ; and (3) if the Govern-
ment’s reading were correct, the opinion would have marked not only
a change in, but a complete repudiation of, the Insular Cases’ (and
later Reid’s) functional approach. A constricted reading of Eisen-
trager overlooks what the Court sees as a common thread uniting all
these cases: The idea that extraterritoriality questions turn on objec-
tive factors and practical concerns, not formalism. Pp. 25–34.
(iii) The Government’s sovereignty-based test raises troubling
separation-of-powers concerns, which are illustrated by Guan-
tanamo’s political history. Although the United States has main-
tained complete and uninterrupted control of Guantanamo for over
100 years, the Government’s view is that the Constitution has no ef-
fect there, at least as to noncitizens, because the United States dis-
claimed formal sovereignty in its 1903 lease with Cuba. The Nation’s
basic charter cannot be contracted away like this. The Constitution
grants Congress and the President the power to acquire, dispose of,
and govern territory, not the power to decide when and where its
terms apply. To hold that the political branches may switch the Con-
stitution on or off at will would lead to a regime in which they, not
this Court, say “what the law is.” Marbury v. Madison, 1 Cranch
137, 177. These concerns have particular bearing upon the Suspen-
sion Clause question here, for the habeas writ is itself an indispensa-
ble mechanism for monitoring the separation of powers. Pp. 34–36.
(iv) Based on Eisentrager, supra, at 777, and the Court’s rea-
soning in its other extraterritoriality opinions, at least three factors
are relevant in determining the Suspension Clause’s reach: (1) the
detainees’ citizenship and status and the adequacy of the process
through which that status was determined; (2) the nature of the sites
where apprehension and then detention took place; and (3) the prac-
tical obstacles inherent in resolving the prisoner’s entitlement to the
writ. Application of this framework reveals, first, that petitioners’
status is in dispute: They are not American citizens, but deny they
are enemy combatants; and although they have been afforded some
process in CSRT proceedings, there has been no Eisentrager–style
trial by military commission for violations of the laws of war. Second,
while the sites of petitioners’ apprehension and detention weigh
against finding they have Suspension Clause rights, there are critical
differences between Eisentrager’s German prison, circa 1950, and the
Guantanamo Naval Station in 2008, given the Government’s absolute
and indefinite control over the naval station. Third, although the
6 BOUMEDIENE v. BUSH
Syllabus
Court is sensitive to the financial and administrative costs of holding
the Suspension Clause applicable in a case of military detention
abroad, these factors are not dispositive because the Government
presents no credible arguments that the military mission at Guan-
tanamo would be compromised if habeas courts had jurisdiction. The
situation in Eisentrager was far different, given the historical context
and nature of the military’s mission in post-War Germany. Pp. 36–
41.
(d) Petitioners are therefore entitled to the habeas privilege, and
if that privilege is to be denied them, Congress must act in accor-
dance with the Suspension Clause’s requirements. Cf. Rasul, 542
U. S., at 564. Pp. 41–42.
3. Because the DTA’s procedures for reviewing detainees’ status
are not an adequate and effective substitute for the habeas writ,
MCA §7 operates as an unconstitutional suspension of the writ. Pp.
42–64.
(a) Given its holding that the writ does not run to petitioners, the
D. C. Circuit found it unnecessary to consider whether there was an
adequate substitute for habeas. This Court usually remands for con-
sideration of questions not decided below, but departure from this
rule is appropriate in “exceptional” circumstances, see, e.g., Cooper
Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 169, here, the
grave separation-of-powers issues raised by these cases and the fact
that petitioners have been denied meaningful access to a judicial fo-
rum for years. Pp. 42–44.
(b) Historically, Congress has taken care to avoid suspensions of
the writ. For example, the statutes at issue in the Court’s two lead-
ing cases addressing habeas substitutes, Swain v. Pressley, 430 U. S.
372, and United States v. Hayman, 342 U. S. 205, were attempts to
streamline habeas relief, not to cut it back. Those cases provide little
guidance here because, inter alia, the statutes in question gave the
courts broad remedial powers to secure the historic office of the writ,
and included saving clauses to preserve habeas review as an avenue
of last resort. In contrast, Congress intended the DTA and the MCA
to circumscribe habeas review, as is evident from the unequivocal na-
ture of MCA §7’s jurisdiction-stripping language, from the DTA’s text
limiting the Court of Appeals’ jurisdiction to assessing whether the
CSRT complied with the “standards and procedures specified by the
Secretary of Defense,” DTA §1005(e)(2)(C), and from the absence of a
saving clause in either Act. That Congress intended to create a more
limited procedure is also confirmed by the legislative history and by a
comparison of the DTA and the habeas statute that would govern in
MCA §7’s absence, 28 U. S. C. §2241. In §2241, Congress authorized
“any justice” or “circuit judge” to issue the writ, thereby accommodat-
7 Cite as: 553 U. S. ____ (2008)
Syllabus
ing the necessity for factfinding that will arise in some cases by al-
lowing the appellate judge or Justice to transfer the case to a district
court. See §2241(b). However, by granting the D. C. Circuit “exclu-
sive” jurisdiction over petitioners’ cases, see DTA §1005(e)(2)(A),
Congress has foreclosed that option in these cases. Pp. 44–49.
(c) This Court does not endeavor to offer a comprehensive sum-
mary of the requisites for an adequate habeas substitute. It is un-
controversial, however, that the habeas privilege entitles the prisoner
to a meaningful opportunity to demonstrate that he is being held pur-
suant to “the erroneous application or interpretation” of relevant law,
INS v. St. Cyr, 533 U. S. 289, 302, and the habeas court must have
the power to order the conditional release of an individual unlawfully
detained. But more may be required depending on the circum-
stances. Petitioners identify what they see as myriad deficiencies in
the CSRTs, the most relevant being the constraints upon the de-
tainee’s ability to rebut the factual basis for the Government’s asser-
tion that he is an enemy combatant. At the CSRT stage the detainee
has limited means to find or present evidence to challenge the Gov-
ernment’s case, does not have the assistance of counsel, and may not
be aware of the most critical allegations that the Government relied
upon to order his detention. His opportunity to confront witnesses is
likely to be more theoretical than real, given that there are no limits
on the admission of hearsay. The Court therefore agrees with peti-
tioners that there is considerable risk of error in the tribunal’s find-
ings of fact. And given that the consequence of error may be deten-
tion for the duration of hostilities that may last a generation or more,
the risk is too significant to ignore. Accordingly, for the habeas writ,
or its substitute, to function as an effective and meaningful remedy in
this context, the court conducting the collateral proceeding must have
some ability to correct any errors, to assess the sufficiency of the
Government’s evidence, and to admit and consider relevant exculpa-
tory evidence that was not introduced during the earlier proceeding.
In re Yamashita, 327 U. S. 1, 5, 8, and Ex parte Quirin, 317 U. S. 1,
23–25, distinguished. Pp. 49–57.
(d) Petitioners have met their burden of establishing that the
DTA review process is, on its face, an inadequate substitute for ha-
beas. Among the constitutional infirmities from which the DTA po-
tentially suffers are the absence of provisions allowing petitioners to
challenge the President’s authority under the AUMF to detain them
indefinitely, to contest the CSRT’s findings of fact, to supplement the
record on review with exculpatory evidence discovered after the
CSRT proceedings, and to request release. The statute cannot be
read to contain each of these constitutionally required procedures.
MCA §7 thus effects an unconstitutional suspension of the writ.
8 BOUMEDIENE v. BUSH
Syllabus
There is no jurisdictional bar to the District Court’s entertaining pe-
titioners’ claims. Pp. 57–64.
4. Nor are there prudential barriers to habeas review. Pp. 64–70.
(a) Petitioners need not seek review of their CSRT determina-
tions in the D. C. Circuit before proceeding with their habeas actions
in the District Court. If these cases involved detainees held for only a
short time while awaiting their CSRT determinations, or were it
probable that the Court of Appeals could complete a prompt review of
their applications, the case for requiring temporary abstention or ex-
haustion of alternative remedies would be much stronger. But these
qualifications no longer pertain here. In some instances six years
have elapsed without the judicial oversight that habeas corpus or an
adequate substitute demands. To require these detainees to pursue
the limited structure of DTA review before proceeding with habeas
actions would be to require additional months, if not years, of delay.
This holding should not be read to imply that a habeas court should
intervene the moment an enemy combatant steps foot in a territory
where the writ runs. Except in cases of undue delay, such as the pre-
sent, federal courts should refrain from entertaining an enemy com-
batant’s habeas petition at least until after the CSRT has had a
chance to review his status. Pp. 64–67.
(b) In effectuating today’s holding, certain accommodations—
including channeling future cases to a single district court and re-
quiring that court to use its discretion to accommodate to the greatest
extent possible the Government’s legitimate interest in protecting
sources and intelligence gathering methods—should be made to re-
duce the burden habeas proceedings will place on the military, with-
out impermissibly diluting the writ’s protections. Pp. 67–68.
5. In considering both the procedural and substantive standards
used to impose detention to prevent acts of terrorism, the courts must
accord proper deference to the political branches. However, security
subsists, too, in fidelity to freedom’s first principles, chief among
them being freedom from arbitrary and unlawful restraint and the
personal liberty that is secured by adherence to the separation of
powers. Pp. 68–70.
476 F. 3d 981, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which STEVENS,
SOUTER, GINSBURG, and BREYER, JJ., joined. SOUTER, J., filed a concur-
ring opinion, in which GINSBURG and BREYER, JJ., joined. ROBERTS,
C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO,
JJ., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS,
C. J., and THOMAS and ALITO, JJ., joined.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
JUSTICE KENNEDY delivered the opinion of the Court.
Petitioners are aliens designated as enemy combatants
and detained at the United States Naval Station at Guan
tanamo Bay, Cuba. There are others detained there, also
aliens, who are not parties to this suit.
Petitioners present a question not resolved by our ear
lier cases relating to the detention of aliens at Guan
tanamo: whether they have the constitutional privilege of
habeas corpus, a privilege not to be withdrawn except in
conformance with the Suspension Clause, Art. I, §9, cl. 2.
We hold these petitioners do have the habeas corpus
privilege. Congress has enacted a statute, the Detainee
Treatment Act of 2005 (DTA), 119 Stat. 2739, that pro
2 BOUMEDIENE v. BUSH
Opinion of the Court
vides certain procedures for review of the detainees’
status. We hold that those procedures are not an ade
quate and effective substitute for habeas corpus. There
fore §7 of the Military Commissions Act of 2006 (MCA), 28
U. S. C. A. §2241(e) (Supp. 2007), operates as an unconsti
tutional suspension of the writ. We do not address
whether the President has authority to detain these peti
tioners nor do we hold that the writ must issue. These
and other questions regarding the legality of the detention
are to be resolved in the first instance by the District
Court.
I
Under the Authorization for Use of Military Force
(AUMF), §2(a), 115 Stat. 224, note following 50 U. S. C.
§1541 (2000 ed., Supp. V), the President is authorized “to
use all necessary and appropriate force against those
nations, organizations, or persons he determines planned,
authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001, or harbored such organi
zations or persons, in order to prevent any future acts of
international terrorism against the United States by such
nations, organizations or persons.”
In Hamdi v. Rumsfeld, 542 U. S. 507 (2004), five Mem
bers of the Court recognized that detention of individuals
who fought against the United States in Afghanistan “for
the duration of the particular conflict in which they were
captured, is so fundamental and accepted an incident to
war as to be an exercise of the ‘necessary and appropriate
force’ Congress has authorized the President to use.” Id.,
at 518 (plurality opinion of O’Connor, J.), id., at 588–589
(THOMAS, J., dissenting). After Hamdi, the Deputy Secre
tary of Defense established Combatant Status Review
Tribunals (CSRTs) to determine whether individuals
detained at Guantanamo were “enemy combatants,” as the
Department defines that term. See App. to Pet. for Cert.
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Opinion of the Court
in No. 06–1195, p. 81a. A later memorandum established
procedures to implement the CSRTs. See App. to Pet. for
Cert. in No. 06–1196, p. 147. The Government maintains
these procedures were designed to comply with the due
process requirements identified by the plurality in Hamdi.
See Brief for Respondents 10.
Interpreting the AUMF, the Department of Defense
ordered the detention of these petitioners, and they were
transferred to Guantanamo. Some of these individuals
were apprehended on the battlefield in Afghanistan, oth
ers in places as far away from there as Bosnia and Gam
bia. All are foreign nationals, but none is a citizen of a
nation now at war with the United States. Each denies he
is a member of the al Qaeda terrorist network that carried
out the September 11 attacks or of the Taliban regime
that provided sanctuary for al Qaeda. Each petitioner
appeared before a separate CSRT; was determined to be
an enemy combatant; and has sought a writ of habeas
corpus in the United States District Court for the District
of Columbia.
The first actions commenced in February 2002. The
District Court ordered the cases dismissed for lack of
jurisdiction because the naval station is outside the sover
eign territory of the United States. See Rasul v. Bush, 215
F. Supp. 2d 55 (2002). The Court of Appeals for the Dis
trict of Columbia Circuit affirmed. See Al Odah v. United
States, 321 F. 3d 1134, 1145 (2003). We granted certiorari
and reversed, holding that 28 U. S. C. §2241 extended
statutory habeas corpus jurisdiction to Guantanamo. See
Rasul v. Bush, 542 U. S. 466, 473 (2004). The constitu
tional issue presented in the instant cases was not reached
in Rasul. Id., at 476.
After Rasul, petitioners’ cases were consolidated and
entertained in two separate proceedings. In the first set of
cases, Judge Richard J. Leon granted the Government’s
motion to dismiss, holding that the detainees had no
4 BOUMEDIENE v. BUSH
Opinion of the Court
rights that could be vindicated in a habeas corpus action.
In the second set of cases Judge Joyce Hens Green reached
the opposite conclusion, holding the detainees had rights
under the Due Process Clause of the Fifth Amendment.
See Khalid v. Bush, 355 F. Supp. 2d 311, 314 (DC 2005);
In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443,
464 (DC 2005).
While appeals were pending from the District Court
decisions, Congress passed the DTA. Subsection (e) of
§1005 of the DTA amended 28 U. S. C. §2241 to provide
that “no court, justice, or judge shall have jurisdiction to
hear or consider . . . an application for a writ of habeas
corpus filed by or on behalf of an alien detained by the
Department of Defense at Guantanamo Bay, Cuba.” 119
Stat. 2742. Section 1005 further provides that the Court
of Appeals for the District of Columbia Circuit shall have
“exclusive” jurisdiction to review decisions of the CSRTs.
Ibid.
In Hamdan v. Rumsfeld, 548 U. S. 557, 576–577 (2006),
the Court held this provision did not apply to cases (like
petitioners’) pending when the DTA was enacted. Con
gress responded by passing the MCA, 10 U. S. C. A. §948a
et seq. (Supp. 2007), which again amended §2241. The
text of the statutory amendment is discussed below. See
Part II, infra. (Four Members of the Hamdan majority
noted that “[n]othing prevent[ed] the President from
returning to Congress to seek the authority he believes
necessary.” 548 U. S., at 636 (BREYER, J., concurring).
The authority to which the concurring opinion referred
was the authority to “create military commissions of the
kind at issue” in the case. Ibid. Nothing in that opinion
can be construed as an invitation for Congress to suspend
the writ.)
Petitioners’ cases were consolidated on appeal, and the
parties filed supplemental briefs in light of our decision in
Hamdan. The Court of Appeals’ ruling, 476 F. 3d 981
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Opinion of the Court
(CADC 2007), is the subject of our present review and
today’s decision.
The Court of Appeals concluded that MCA §7 must be
read to strip from it, and all federal courts, jurisdiction to
consider petitioners’ habeas corpus applications, id., at
987; that petitioners are not entitled to the privilege of the
writ or the protections of the Suspension Clause, id., at
990–991; and, as a result, that it was unnecessary to
consider whether Congress provided an adequate and
effective substitute for habeas corpus in the DTA.
We granted certiorari. 551 U. S. ___ (2007).
II
As a threshold matter, we must decide whether MCA §7
denies the federal courts jurisdiction to hear habeas cor
pus actions pending at the time of its enactment. We hold
the statute does deny that jurisdiction, so that, if the
statute is valid, petitioners’ cases must be dismissed.
As amended by the terms of the MCA, 28 U. S. C. A.
§2241(e) (Supp. 2007) now provides:
“(1) No court, justice, or judge shall have jurisdic
tion to hear or consider an application for a writ of
habeas corpus filed by or on behalf of an alien de
tained by the United States who has been deter
mined by the United States to have been properly de
tained as an enemy combatant or is awaiting such
determination.
“(2) Except as provided in [§§1005(e)(2) and (e)(3)
of the DTA] no court, justice, or judge shall have ju
risdiction to hear or consider any other action
against the United States or its agents relating to
any aspect of the detention, transfer, treatment,
trial, or conditions of confinement of an alien who is
or was detained by the United States and has been
determined by the United States to have been prop
erly detained as an enemy combatant or is awaiting
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Opinion of the Court
such determination.”
Section 7(b) of the MCA provides the effective date for
the amendment of §2241(e). It states:
“The amendment made by [MCA §7(a)] shall take ef
fect on the date of the enactment of this Act, and shall
apply to all cases, without exception, pending on or af
ter the date of the enactment of this Act which relate
to any aspect of the detention, transfer, treatment,
trial, or conditions of detention of an alien detained by
the United States since September 11, 2001.” 120
Stat. 2636.
There is little doubt that the effective date provision
applies to habeas corpus actions. Those actions, by defini
tion, are cases “which relate to . . . detention.” See Black’s
Law Dictionary 728 (8th ed. 2004) (defining habeas corpus
as “[a] writ employed to bring a person before a court,
most frequently to ensure that the party’s imprisonment
or detention is not illegal”). Petitioners argue, neverthe
less, that MCA §7(b) is not a sufficiently clear statement of
congressional intent to strip the federal courts of jurisdic
tion in pending cases. See Ex parte Yerger, 8 Wall. 85,
102–103 (1869). We disagree.
Their argument is as follows: Section 2241(e)(1) refers to
“a writ of habeas corpus.” The next paragraph,
§2241(e)(2), refers to “any other action . . . relating to any
aspect of the detention, transfer, treatment, trial, or condi
tions of confinement of an alien who . . . [has] been prop
erly detained as an enemy combatant or is awaiting such
determination.” There are two separate paragraphs, the
argument continues, so there must be two distinct classes
of cases. And the effective date subsection, MCA §7(b), it
is said, refers only to the second class of cases, for it
largely repeats the language of §2241(e)(2) by referring to
“cases . . . which relate to any aspect of the detention,
transfer, treatment, trial, or conditions of detention of an
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Opinion of the Court
alien detained by the United States.”
Petitioners’ textual argument would have more force
were it not for the phrase “other action” in §2241(e)(2).
The phrase cannot be understood without referring back
to the paragraph that precedes it, §2241(e)(1), which
explicitly mentions the term “writ of habeas corpus.” The
structure of the two paragraphs implies that habeas ac
tions are a type of action “relating to any aspect of the
detention, transfer, treatment, trial, or conditions of con
finement of an alien who is or was detained . . . as an
enemy combatant.” Pending habeas actions, then, are in
the category of cases subject to the statute’s jurisdictional
bar.
We acknowledge, moreover, the litigation history that
prompted Congress to enact the MCA. In Hamdan the
Court found it unnecessary to address the petitioner’s
Suspension Clause arguments but noted the relevance of
the clear statement rule in deciding whether Congress
intended to reach pending habeas corpus cases. See 548
U. S., at 575 (Congress should “not be presumed to have
effected such denial [of habeas relief] absent an unmis
takably clear statement to the contrary”). This interpre
tive rule facilitates a dialogue between Congress and the
Court. Cf. Hilton v. South Carolina Public Railways
Comm’n, 502 U. S. 197, 206 (1991); H. Hart & A. Sacks,
The Legal Process: Basic Problems in the Making and
Application of Law 1209–1210 (W. Eskridge & P. Frickey
eds. 1994). If the Court invokes a clear statement rule to
advise that certain statutory interpretations are favored
in order to avoid constitutional difficulties, Congress can
make an informed legislative choice either to amend the
statute or to retain its existing text. If Congress amends,
its intent must be respected even if a difficult constitu
tional question is presented. The usual presumption is
that Members of Congress, in accord with their oath of
office, considered the constitutional issue and determined
8 BOUMEDIENE v. BUSH
Opinion of the Court
the amended statute to be a lawful one; and the Judiciary,
in light of that determination, proceeds to its own inde
pendent judgment on the constitutional question when
required to do so in a proper case.
If this ongoing dialogue between and among the
branches of Government is to be respected, we cannot
ignore that the MCA was a direct response to Hamdan’s
holding that the DTA’s jurisdiction-stripping provision
had no application to pending cases. The Court of Appeals
was correct to take note of the legislative history when
construing the statute, see 476 F. 3d, at 986, n. 2 (citing
relevant floor statements); and we agree with its conclu
sion that the MCA deprives the federal courts of jurisdic
tion to entertain the habeas corpus actions now before us.
III
In deciding the constitutional questions now presented
we must determine whether petitioners are barred from
seeking the writ or invoking the protections of the Suspen
sion Clause either because of their status, i.e., petitioners’
designation by the Executive Branch as enemy combat
ants, or their physical location, i.e., their presence at
Guantanamo Bay. The Government contends that non
citizens designated as enemy combatants and detained in
territory located outside our Nation’s borders have no
constitutional rights and no privilege of habeas corpus.
Petitioners contend they do have cognizable constitutional
rights and that Congress, in seeking to eliminate recourse
to habeas corpus as a means to assert those rights, acted
in violation of the Suspension Clause.
We begin with a brief account of the history and origins
of the writ. Our account proceeds from two propositions.
First, protection for the privilege of habeas corpus was one
of the few safeguards of liberty specified in a Constitution
that, at the outset, had no Bill of Rights. In the system
conceived by the Framers the writ had a centrality that
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must inform proper interpretation of the Suspension
Clause. Second, to the extent there were settled prece
dents or legal commentaries in 1789 regarding the extra
territorial scope of the writ or its application to enemy
aliens, those authorities can be instructive for the present
cases.
A
The Framers viewed freedom from unlawful restraint as
a fundamental precept of liberty, and they understood the
writ of habeas corpus as a vital instrument to secure that
freedom. Experience taught, however, that the common-
law writ all too often had been insufficient to guard
against the abuse of monarchial power. That history
counseled the necessity for specific language in the Consti
tution to secure the writ and ensure its place in our legal
system.
Magna Carta decreed that no man would be imprisoned
contrary to the law of the land. Art. 39, in Sources of Our
Liberties 17 (R. Perry & J. Cooper eds. 1959) (“No free
man shall be taken or imprisoned or dispossessed, or
outlawed, or banished, or in any way destroyed, nor will
we go upon him, nor send upon him, except by the legal
judgment of his peers or by the law of the land”). Impor
tant as the principle was, the Barons at Runnymede pre
scribed no specific legal process to enforce it. Holdsworth
tells us, however, that gradually the writ of habeas corpus
became the means by which the promise of Magna Carta
was fulfilled. 9 W. Holdsworth, A History of English Law
112 (1926) (hereinafter Holdsworth).
The development was painstaking, even by the centu
ries-long measures of English constitutional history. The
writ was known and used in some form at least as early as
the reign of Edward I. Id., at 108–125. Yet at the outset
it was used to protect not the rights of citizens but those of
the King and his courts. The early courts were considered
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Opinion of the Court
agents of the Crown, designed to assist the King in the
exercise of his power. See J. Baker, An Introduction to
English Legal History 38–39 (4th ed. 2002). Thus the
writ, while it would become part of the foundation of
liberty for the King’s subjects, was in its earliest use a
mechanism for securing compliance with the King’s
laws. See Halliday & White, The Suspension Clause:
English Text, Imperial Contexts, and American Impli
cations, 94 Va. L. Rev. (forthcoming 2008) (hereinafter
Halliday & White) (manuscript, at 11, online at
http://papers.ssrn.com/sol3 /papers.cfm?abstract_id=100
8252 (all Internet materials as visited June 9, 2008, and
available in Clerk of Court’s case file) (noting that “concep
tually the writ arose from a theory of power rather than a
theory of liberty”)). Over time it became clear that by
issuing the writ of habeas corpus common-law courts
sought to enforce the King’s prerogative to inquire into the
authority of a jailer to hold a prisoner. See M. Hale, Pre
rogatives of the King 229 (D. Yale ed. 1976); 2 J. Story,
Commentaries on the Constitution of the United States
§1341, p. 237 (3d ed. 1858) (noting that the writ ran “into
all parts of the king’s dominions; for it is said, that the
king is entitled, at all times, to have an account, why the
liberty of any of his subjects is restrained”).
Even so, from an early date it was understood that the
King, too, was subject to the law. As the writers said of
Magna Carta, “it means this, that the king is and shall be
below the law.” 1 F. Pollock & F. Maitland, History of
English Law 173 (2d ed. 1909); see also 2 Bracton On the
Laws and Customs of England 33 (S. Thorne transl. 1968)
(“The king must not be under man but under God and
under the law, because law makes the king”). And, by the
1600’s, the writ was deemed less an instrument of the
King’s power and more a restraint upon it. See Collings,
Habeas Corpus for Convicts—Constitutional Right or
Legislative Grace, 40 Calif. L. Rev. 335, 336 (1952) (noting
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Opinion of the Court
that by this point the writ was “the appropriate process for
checking illegal imprisonment by public officials”).
Still, the writ proved to be an imperfect check. Even
when the importance of the writ was well understood in
England, habeas relief often was denied by the courts or
suspended by Parliament. Denial or suspension occurred
in times of political unrest, to the anguish of the impris
oned and the outrage of those in sympathy with them.
A notable example from this period was Darnel’s Case, 3
How. St. Tr. 1 (K. B. 1627). The events giving rise to the
case began when, in a display of the Stuart penchant for
authoritarian excess, Charles I demanded that Darnel and
at least four others lend him money. Upon their refusal,
they were imprisoned. The prisoners sought a writ of
habeas corpus; and the King filed a return in the form of a
warrant signed by the Attorney General. Ibid. The court
held this was a sufficient answer and justified the sub
jects’ continued imprisonment. Id., at 59.
There was an immediate outcry of protest. The House of
Commons promptly passed the Petition of Right, 3 Car. 1,
ch. 1 (1627), 5 Statutes of the Realm 23, 24 (reprint 1963),
which condemned executive “imprison[ment] without any
cause” shown, and declared that “no freeman in any such
manner as is before mencioned [shall] be imprisoned or
deteined.” Yet a full legislative response was long de
layed. The King soon began to abuse his authority again,
and Parliament was dissolved. See W. Hall & R. Albion, A
History of England and the British Empire 328 (3d ed.
1953) (hereinafter Hall & Albion). When Parliament
reconvened in 1640, it sought to secure access to the writ
by statute. The Act of 1640, 16 Car. 1, ch. 10, 5 Statutes of
the Realm, at 110, expressly authorized use of the writ to
test the legality of commitment by command or warrant of
the King or the Privy Council. Civil strife and the Inter
regnum soon followed, and not until 1679 did Parliament
try once more to secure the writ, this time through the
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Opinion of the Court
Habeas Corpus Act of 1679, 31 Car. 2, ch. 2, id., at 935.
The Act, which later would be described by Blackstone as
the “stable bulwark of our liberties,” 1 W. Blackstone,
Commentaries *137 (hereinafter Blackstone), established
procedures for issuing the writ; and it was the model upon
which the habeas statutes of the 13 American Colonies
were based, see Collings, supra, at 338–339.
This history was known to the Framers. It no doubt
confirmed their view that pendular swings to and away
from individual liberty were endemic to undivided, uncon
trolled power. The Framers’ inherent distrust of govern
mental power was the driving force behind the constitu
tional plan that allocated powers among three
independent branches. This design serves not only to
make Government accountable but also to secure individ
ual liberty. See Loving v. United States, 517 U. S. 748,
756 (1996) (noting that “[e]ven before the birth of this
country, separation of powers was known to be a defense
against tyranny”); cf. Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring)
(“[T]he Constitution diffuses power the better to secure
liberty”); Clinton v. City of New York, 524 U. S. 417, 450
(1998) (KENNEDY, J., concurring) (“Liberty is always at
stake when one or more of the branches seek to transgress
the separation of powers”). Because the Constitution’s
separation-of-powers structure, like the substantive guar
antees of the Fifth and Fourteenth Amendments, see Yick
Wo v. Hopkins, 118 U. S. 356, 374 (1886), protects persons
as well as citizens, foreign nationals who have the privi
lege of litigating in our courts can seek to enforce separa
tion-of-powers principles, see, e.g., INS v. Chadha, 462
U. S. 919, 958–959 (1983).
That the Framers considered the writ a vital instrument
for the protection of individual liberty is evident from the
care taken to specify the limited grounds for its suspen
sion: “The Privilege of the Writ of Habeas Corpus shall not
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Opinion of the Court
be suspended, unless when in Cases of Rebellion or Inva
sion the public Safety may require it.” Art. I, §9, cl. 2; see
Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425,
1509, n. 329 (1987) (“[T]he non-suspension clause is the
original Constitution’s most explicit reference to reme
dies”). The word “privilege” was used, perhaps, to avoid
mentioning some rights to the exclusion of others. (In
deed, the only mention of the term “right” in the Constitu
tion, as ratified, is in its clause giving Congress the power
to protect the rights of authors and inventors. See Art. I,
§8, cl. 8.)
Surviving accounts of the ratification debates provide
additional evidence that the Framers deemed the writ to
be an essential mechanism in the separation-of-powers
scheme. In a critical exchange with Patrick Henry at the
Virginia ratifying convention Edmund Randolph referred
to the Suspension Clause as an “exception” to the “power
given to Congress to regulate courts.” See 3 Debates in
the Several State Conventions on the Adoption of the
Federal Constitution 460–464 (J. Elliot 2d ed. 1876) (here
inafter Elliot’s Debates). A resolution passed by the New
York ratifying convention made clear its understanding
that the Clause not only protects against arbitrary sus
pensions of the writ but also guarantees an affirmative
right to judicial inquiry into the causes of detention. See
Resolution of the New York Ratifying Convention (July 26,
1788), in 1 Elliot’s Debates 328 (noting the convention’s
understanding “[t]hat every person restrained of his lib
erty is entitled to an inquiry into the lawfulness of such
restraint, and to a removal thereof if unlawful; and that
such inquiry or removal ought not to be denied or delayed,
except when, on account of public danger, the Congress
shall suspend the privilege of the writ of habeas corpus”).
Alexander Hamilton likewise explained that by providing
the detainee a judicial forum to challenge detention, the
writ preserves limited government. As he explained in
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Opinion of the Court
The Federalist No. 84:
“[T]he practice of arbitrary imprisonments, have been,
in all ages, the favorite and most formidable instru
ments of tyranny. The observations of the judicious
Blackstone . . . are well worthy of recital: ‘To bereave
a man of life . . . or by violence to confiscate his estate,
without accusation or trial, would be so gross and no
torious an act of despotism as must at once convey the
alarm of tyranny throughout the whole nation; but
confinement of the person, by secretly hurrying him to
jail, where his sufferings are unknown or forgotten, is
a less public, a less striking, and therefore a more
dangerous engine of arbitrary government.’ And as a
remedy for this fatal evil he is everywhere peculiarly
emphatical in his encomiums on the habeas corpus
act, which in one place he calls ‘the BULWARK of the
British Constitution.’” C. Rossiter ed., p. 512 (1961)
(quoting 1 Blackstone *136, 4 id., at *438).
Post-1789 habeas developments in England, though not
bearing upon the Framers’ intent, do verify their foresight.
Those later events would underscore the need for struc
tural barriers against arbitrary suspensions of the writ.
Just as the writ had been vulnerable to executive and
parliamentary encroachment on both sides of the Atlantic
before the American Revolution, despite the Habeas Cor
pus Act of 1679, the writ was suspended with frequency in
England during times of political unrest after 1789. Par
liament suspended the writ for much of the period from
1792 to 1801, resulting in rampant arbitrary imprison
ment. See Hall & Albion 550. Even as late as World War
I, at least one prominent English jurist complained that
the Defence of the Realm Act, 1914, 4 & 5 Geo. 5, ch.
29(1)(a), effectively had suspended the privilege of habeas
corpus for any person suspected of “communicating with
the enemy.” See King v. Halliday, [1917] A. C. 260, 299
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Opinion of the Court
(Lord Shaw, dissenting); see generally A. Simpson, In the
Highest Degree Odious: Detention Without Trial in War
time Britain 6–7, 24–25 (1992).
In our own system the Suspension Clause is designed to
protect against these cyclical abuses. The Clause protects
the rights of the detained by a means consistent with the
essential design of the Constitution. It ensures that,
except during periods of formal suspension, the Judiciary
will have a time-tested device, the writ, to maintain the
“delicate balance of governance” that is itself the surest
safeguard of liberty. See Hamdi, 542 U. S., at 536 (plural
ity opinion). The Clause protects the rights of the de
tained by affirming the duty and authority of the Judici
ary to call the jailer to account. See Preiser v. Rodriguez,
411 U. S. 475, 484 (1973) (“[T]he essence of habeas corpus
is an attack by a person in custody upon the legality of
that custody”); cf. In re Jackson, 15 Mich. 417, 439–440
(1867) (Cooley, J., concurring) (“The important fact to be
observed in regard to the mode of procedure upon this
[habeas] writ is, that it is directed to, and served upon, not
the person confined, but his jailer”). The separation-of
powers doctrine, and the history that influenced its de
sign, therefore must inform the reach and purpose of the
Suspension Clause.
B
The broad historical narrative of the writ and its func
tion is central to our analysis, but we seek guidance as
well from founding-era authorities addressing the specific
question before us: whether foreign nationals, appre
hended and detained in distant countries during a time of
serious threats to our Nation’s security, may assert the
privilege of the writ and seek its protection. The Court
has been careful not to foreclose the possibility that the
protections of the Suspension Clause have expanded along
with post-1789 developments that define the present scope
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Opinion of the Court
of the writ. See INS v. St. Cyr, 533 U. S. 289, 300–301
(2001). But the analysis may begin with precedents as of
1789, for the Court has said that “at the absolute mini
mum” the Clause protects the writ as it existed when the
Constitution was drafted and ratified. Id., at 301.
To support their arguments, the parties in these cases
have examined historical sources to construct a view of the
common-law writ as it existed in 1789—as have amici
whose expertise in legal history the Court has relied upon
in the past. See Brief for Legal Historians as Amici Cu-
riae; see also St. Cyr, supra, at 302, n. 16. The Govern
ment argues the common-law writ ran only to those terri
tories over which the Crown was sovereign. See Brief for
Respondents 27. Petitioners argue that jurisdiction fol
lowed the King’s officers. See Brief for Petitioner Boume
diene et al. 11. Diligent search by all parties reveals no
certain conclusions. In none of the cases cited do we find
that a common-law court would or would not have
granted, or refused to hear for lack of jurisdiction, a peti
tion for a writ of habeas corpus brought by a prisoner
deemed an enemy combatant, under a standard like the
one the Department of Defense has used in these cases,
and when held in a territory, like Guantanamo, over
which the Government has total military and civil control.
We know that at common law a petitioner’s status as an
alien was not a categorical bar to habeas corpus relief.
See, e.g., Sommersett’s Case, 20 How. St. Tr. 1, 80–82
(1772) (ordering an African slave freed upon finding the
custodian’s return insufficient); see generally Khera v.
Secretary of State for the Home Dept., [1984] A. C. 74, 111
(“Habeas corpus protection is often expressed as limited to
‘British subjects.’ Is it really limited to British nationals?
Suffice it to say that the case law has given an emphatic
‘no’ to the question”). We know as well that common-law
courts entertained habeas petitions brought by enemy
aliens detained in England—“entertained” at least in the
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sense that the courts held hearings to determine the
threshold question of entitlement to the writ. See Case of
Three Spanish Sailors, 2 Black. W. 1324, 96 Eng. Rep. 775
(C. P. 1779); King v. Schiever, 2 Burr. 765, 97 Eng. Rep.
551 (K. B. 1759); Du Castro’s Case, Fort. 195, 92 Eng. Rep.
816 (K. B. 1697).
In Schiever and the Spanish Sailors’ case, the courts
denied relief to the petitioners. Whether the holdings in
these cases were jurisdictional or based upon the courts’
ruling that the petitioners were detained lawfully as
prisoners of war is unclear. See Spanish Sailors, supra, at
1324, 96 Eng. Rep., at 776; Schiever, supra, at 766, 97
Eng. Rep., at 552. In Du Castro’s Case, the court granted
relief, but that case is not analogous to petitioners’ be
cause the prisoner there appears to have been detained in
England. See Halliday & White 27, n. 72. To the extent
these authorities suggest the common-law courts ab
stained altogether from matters involving prisoners of
war, there was greater justification for doing so in the
context of declared wars with other nation states. Judicial
intervention might have complicated the military’s ability
to negotiate exchange of prisoners with the enemy, a
wartime practice well known to the Framers. See Resolu
tion of Mar. 30, 1778, 10 Journals of the Continental
Congress 1774–1789, p. 295 (W. Ford ed. 1908) (directing
General Washington not to exchange prisoners with the
British unless the enemy agreed to exempt citizens from
capture).
We find the evidence as to the geographic scope of the
writ at common law informative, but, again, not disposi
tive. Petitioners argue the site of their detention is analo
gous to two territories outside of England to which the
writ did run: the so-called “exempt jurisdictions,” like the
Channel Islands; and (in former times) India. There are
critical differences between these places and Guantanamo,
however.
18 BOUMEDIENE v. BUSH
Opinion of the Court
As the Court noted in Rasul, 542 U. S., at 481–482, and
nn. 11–12, common-law courts granted habeas corpus
relief to prisoners detained in the exempt jurisdictions.
But these areas, while not in theory part of the realm of
England, were nonetheless under the Crown’s control. See
2 H. Hallam, Constitutional History of England: From the
Accession of Henry VII to the Death of George II, pp. 232–
233 (reprint 1989). And there is some indication that
these jurisdictions were considered sovereign territory.
King v. Cowle, 2 Burr. 834, 854, 855, 97 Eng. Rep. 587,
599 (K. B. 1759) (describing one of the exempt jurisdic
tions, Berwick-upon-Tweed, as under the “sovereign juris
diction” and “subjection of the Crown of England”). Be
cause the United States does not maintain formal
sovereignty over Guantanamo Bay, see Part IV, infra, the
naval station there and the exempt jurisdictions discussed
in the English authorities are not similarly situated.
Petitioners and their amici further rely on cases in
which British courts in India granted writs of habeas
corpus to noncitizens detained in territory over which the
Moghul Emperor retained formal sovereignty and control.
See supra, at 12–13; Brief for Legal Historians as Amici
Curiae 12–13. The analogy to the present cases breaks
down, however, because of the geographic location of the
courts in the Indian example. The Supreme Court of
Judicature (the British Court) sat in Calcutta; but no
federal court sits at Guantanamo. The Supreme Court of
Judicature was, moreover, a special court set up by Par
liament to monitor certain conduct during the British Raj.
See Regulating Act of 1773, 13 Geo. 3, §§13–14. That it
had the power to issue the writ in nonsovereign territory
does not prove that common-law courts sitting in England
had the same power. If petitioners were to have the better
of the argument on this point, we would need some dem
onstration of a consistent practice of common-law courts
sitting in England and entertaining petitions brought by
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alien prisoners detained abroad. We find little support for
this conclusion.
The Government argues, in turn, that Guantanamo is
more closely analogous to Scotland and Hanover, territo
ries that were not part of England but nonetheless con
trolled by the English monarch (in his separate capacities
as King of Scotland and Elector of Hanover). See Cowle, 2
Burr., at 856, 97 Eng. Rep., at 600. Lord Mansfield can be
cited for the proposition that, at the time of the founding,
English courts lacked the “power” to issue the writ to
Scotland and Hanover, territories Lord Mansfield referred
to as “foreign.” Ibid. But what matters for our purposes is
why common-law courts lacked this power. Given the
English Crown’s delicate and complicated relationships
with Scotland and Hanover in the 1700’s, we cannot disre
gard the possibility that the common-law courts’ refusal to
issue the writ to these places was motivated not by formal
legal constructs but by what we would think of as pruden
tial concerns. This appears to have been the case with
regard to other British territories where the writ did not
run. See 2 R. Chambers, A Course of Lectures on English
Law 1767–1773, p. 8 (T. Curley ed. 1986) (quoting the
view of Lord Mansfield in Cowle that “[n]otwithstanding
the power which the judges have, yet where they cannot
judge of the cause, or give relief upon it, they would not
think proper to interpose; and therefore in the case of
imprisonments in Guernsey, Jersey, Minorca, or the plan-
tations, the most usual way is to complain to the king in
Council” (internal quotation marks omitted)). And after
the Act of Union in 1707, through which the kingdoms of
England and Scotland were merged politically, Queen
Anne and her successors, in their new capacity as sover
eign of Great Britain, ruled the entire island as one king
dom. Accordingly, by the time Lord Mansfield penned his
opinion in Cowle in 1759, Scotland was no longer a “for
eign” country vis-à-vis England—at least not in the sense
20 BOUMEDIENE v. BUSH
Opinion of the Court
in which Cuba is a foreign country vis-à-vis the United
States.
Scotland remained “foreign” in Lord Mansfield’s day in
at least one important respect, however. Even after the
Act of Union, Scotland (like Hanover) continued to main
tain its own laws and court system. See 1 Blackstone *98,
*109. Under these circumstances prudential considera
tions would have weighed heavily when courts sitting in
England received habeas petitions from Scotland or the
Electorate. Common-law decisions withholding the writ
from prisoners detained in these places easily could be
explained as efforts to avoid either or both of two embar
rassments: conflict with the judgments of another court of
competent jurisdiction; or the practical inability, by reason
of distance, of the English courts to enforce their judg
ments outside their territorial jurisdiction. Cf. Munaf v.
Geren, ante, at 15 (opinion of the Court) (recognizing that
“‘prudential concerns’ . . . such as comity and the orderly
administration of criminal justice” affect the appropriate
exercise of habeas jurisdiction).
By the mid-19th century, British courts could issue the
writ to Canada, notwithstanding the fact that Canadian
courts also had the power to do so. See 9 Holdsworth 124
(citing Ex parte Anderson, 3 El. and El. 487 (1861)). This
might be seen as evidence that the existence of a separate
court system was no barrier to the running of the common-
law writ. The Canada of the 1800’s, however, was in
many respects more analogous to the exempt jurisdictions
or to Ireland, where the writ ran, than to Scotland or
Hanover in the 1700’s, where it did not. Unlike Scotland
and Hanover, Canada followed English law. See B.
Laskin, The British Tradition in Canadian Law 50–51
(1969).
In the end a categorical or formal conception of sover
eignty does not provide a comprehensive or altogether
satisfactory explanation for the general understanding
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Opinion of the Court
that prevailed when Lord Mansfield considered issuance of
the writ outside England. In 1759 the writ did not run to
Scotland but did run to Ireland, even though, at that
point, Scotland and England had merged under the rule of
a single sovereign, whereas the Crowns of Great Britain
and Ireland remained separate (at least in theory). See
Cowle, supra, at 856–857, 97 Eng. Rep., 600; 1 Blackstone
*100–101. But there was at least one major difference
between Scotland’s and Ireland’s relationship with Eng
land during this period that might explain why the writ
ran to Ireland but not to Scotland. English law did not
generally apply in Scotland (even after the Act of Union)
but it did apply in Ireland. Blackstone put it as follows:
“[A]s Scotland and England are now one and the same
kingdom, and yet differ in their municipal laws; so Eng
land and Ireland are, on the other hand, distinct king
doms, and yet in general agree in their laws.” Id., at *100.
This distinction, and not formal notions of sovereignty,
may well explain why the writ did not run to Scotland
(and Hanover) but would run to Ireland.
The prudential barriers that may have prevented the
English courts from issuing the writ to Scotland and
Hanover are not relevant here. We have no reason to
believe an order from a federal court would be disobeyed
at Guantanamo. No Cuban court has jurisdiction to hear
these petitioners’ claims, and no law other than the laws
of the United States applies at the naval station. The
modern-day relations between the United States and
Guantanamo thus differ in important respects from the
18th-century relations between England and the kingdoms
of Scotland and Hanover. This is reason enough for us to
discount the relevance of the Government’s analogy.
Each side in the present matter argues that the very
lack of a precedent on point supports its position. The
Government points out there is no evidence that a court
sitting in England granted habeas relief to an enemy alien
22 BOUMEDIENE v. BUSH
Opinion of the Court
detained abroad; petitioners respond there is no evidence
that a court refused to do so for lack of jurisdiction.
Both arguments are premised, however, upon the as
sumption that the historical record is complete and that
the common law, if properly understood, yields a definite
answer to the questions before us. There are reasons to
doubt both assumptions. Recent scholarship points to the
inherent shortcomings in the historical record. See Halli
day & White 14–15 (noting that most reports of 18th
century habeas proceedings were not printed). And given
the unique status of Guantanamo Bay and the particular
dangers of terrorism in the modern age, the common-law
courts simply may not have confronted cases with close
parallels to this one. We decline, therefore, to infer too
much, one way or the other, from the lack of historical
evidence on point. Cf. Brown v. Board of Education, 347
U. S. 483, 489 (1954) (noting evidence concerning the
circumstances surrounding the adoption of the Fourteenth
Amendment, discussed in the parties’ briefs and uncov
ered through the Court’s own investigation, “convince us
that, although these sources cast some light, it is not
enough to resolve the problem with which we are faced.
At best, they are inconclusive”); Reid v. Covert, 354 U. S.
1, 64 (1957) (Frankfurter, J., concurring in result) (argu
ing constitutional adjudication should not be based upon
evidence that is “too episodic, too meager, to form a solid
basis in history, preceding and contemporaneous with the
framing of the Constitution”).
IV
Drawing from its position that at common law the writ
ran only to territories over which the Crown was sover
eign, the Government says the Suspension Clause affords
petitioners no rights because the United States does not
claim sovereignty over the place of detention.
Guantanamo Bay is not formally part of the United
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Opinion of the Court
States. See DTA §1005(g), 119 Stat. 2743. And under the
terms of the lease between the United States and Cuba,
Cuba retains “ultimate sovereignty” over the territory
while the United States exercises “complete jurisdiction
and control.” See Lease of Lands for Coaling and Naval
Stations, Feb. 23, 1903, U. S.-Cuba, Art. III, T. S. No. 418
(hereinafter 1903 Lease Agreement); Rasul, 542 U. S., at
471. Under the terms of the 1934 Treaty, however, Cuba
effectively has no rights as a sovereign until the parties
agree to modification of the 1903 Lease Agreement or the
United States abandons the base. See Treaty Defining
Relations with Cuba, May 29, 1934, U. S.-Cuba, Art. III,
48 Stat. 1683, T. S. No. 866.
The United States contends, nevertheless, that Guan
tanamo is not within its sovereign control. This was the
Government’s position well before the events of September
11, 2001. See, e.g., Brief for Petitioners in Sale v. Haitian
Centers Council, Inc., O. T. 1992, No. 92–344, p. 31 (argu
ing that Guantanamo is territory “outside the United
States”). And in other contexts the Court has held that
questions of sovereignty are for the political branches to
decide. See Vermilya-Brown Co. v. Connell, 335 U. S. 377,
380 (1948) (“[D]etermination of sovereignty over an area is
for the legislative and executive departments”); see also
Jones v. United States, 137 U. S. 202 (1890); Williams v.
Suffolk Ins. Co., 13 Pet. 415, 420 (1839). Even if this were
a treaty interpretation case that did not involve a political
question, the President’s construction of the lease agree
ment would be entitled to great respect. See Sumitomo
Shoji America, Inc. v. Avagliano, 457 U. S. 176, 184–185
(1982).
We therefore do not question the Government’s position
that Cuba, not the United States, maintains sovereignty,
in the legal and technical sense of the term, over Guan
tanamo Bay. But this does not end the analysis. Our
cases do not hold it is improper for us to inquire into the
24 BOUMEDIENE v. BUSH
Opinion of the Court
objective degree of control the Nation asserts over foreign
territory. As commentators have noted, “‘[s]overeignty’ is
a term used in many senses and is much abused.” See 1
Restatement (Third) of Foreign Relations Law of the
United States §206, Comment b, p. 94 (1986). When we
have stated that sovereignty is a political question, we
have referred not to sovereignty in the general, colloquial
sense, meaning the exercise of dominion or power, see
Webster’s New International Dictionary 2406 (2d ed.
1934) (“sovereignty,” definition 3), but sovereignty in the
narrow, legal sense of the term, meaning a claim of right,
see 1 Restatement (Third) of Foreign Relations, supra,
§206, Comment b, at 94 (noting that sovereignty “implies
a state’s lawful control over its territory generally to the
exclusion of other states, authority to govern in that terri
tory, and authority to apply law there”). Indeed, it is not
altogether uncommon for a territory to be under the de
jure sovereignty of one nation, while under the plenary
control, or practical sovereignty, of another. This condi
tion can occur when the territory is seized during war, as
Guantanamo was during the Spanish-American War. See,
e.g., Fleming v. Page, 9 How. 603, 614 (1850) (noting that
the port of Tampico, conquered by the United States dur
ing the war with Mexico, was “undoubtedly . . . subject to
the sovereignty and dominion of the United States,” but
that it “does not follow that it was a part of the United
States, or that it ceased to be a foreign country”); King v.
Earl of Crewe ex parte Sekgome, [1910] 2 K. B. 576, 603–
604 (C. A.) (opinion of Williams, L. J.) (arguing that the
Bechuanaland Protectorate in South Africa was “under
His Majesty’s dominion in the sense of power and jurisdic
tion, but is not under his dominion in the sense of territo
rial dominion”). Accordingly, for purposes of our analysis,
we accept the Government’s position that Cuba, and not
the United States, retains de jure sovereignty over Guan
tanamo Bay. As we did in Rasul, however, we take notice
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Opinion of the Court
of the obvious and uncontested fact that the United States,
by virtue of its complete jurisdiction and control over the
base, maintains de facto sovereignty over this territory.
See 542 U. S., at 480; id., at 487 (KENNEDY, J., concurring
in judgment).
Were we to hold that the present cases turn on the
political question doctrine, we would be required first to
accept the Government’s premise that de jure sovereignty
is the touchstone of habeas corpus jurisdiction. This
premise, however, is unfounded. For the reasons indi
cated above, the history of common-law habeas corpus
provides scant support for this proposition; and, for the
reasons indicated below, that position would be inconsis
tent with our precedents and contrary to fundamental
separation-of-powers principles.
A
The Court has discussed the issue of the Constitution’s
extraterritorial application on many occasions. These
decisions undermine the Government’s argument that, at
least as applied to noncitizens, the Constitution necessar
ily stops where de jure sovereignty ends.
The Framers foresaw that the United States would
expand and acquire new territories. See American Ins. Co.
v. 356 Bales of Cotton, 1 Pet. 511, 542 (1828). Article IV,
§3, cl. 1, grants Congress the power to admit new States.
Clause 2 of the same section grants Congress the “Power
to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the
United States.” Save for a few notable (and notorious)
exceptions, e.g., Dred Scott v. Sandford, 19 How. 393
(1857), throughout most of our history there was little
need to explore the outer boundaries of the Constitution’s
geographic reach. When Congress exercised its power to
create new territories, it guaranteed constitutional protec
tions to the inhabitants by statute. See, e.g., An Act: to
26 BOUMEDIENE v. BUSH
Opinion of the Court
establish a Territorial Government for Utah, 9 Stat. 458
(“[T]he Constitution and laws of the United States are
hereby extended over and declared to be in force in said
Territory of Utah”); Rev. Stat. §1891 (“The Constitution
and all laws of the United States which are not locally
inapplicable shall have the same force and effect within all
the organized Territories, and in every Territory hereafter
organized as elsewhere within the United States”); see
generally Burnett, Untied States: American Expansion
and Territorial Deannexation, 72 U. Chi. L. Rev. 797, 825–
827 (2005). In particular, there was no need to test the
limits of the Suspension Clause because, as early as 1789,
Congress extended the writ to the Territories. See Act of
Aug. 7, 1789, 1 Stat. 52 (reaffirming Art. II of Northwest
Ordinance of 1787, which provided that “[t]he inhabitants
of the said territory, shall always be entitled to the bene
fits of the writ of habeas corpus”).
Fundamental questions regarding the Constitution’s
geographic scope first arose at the dawn of the 20th cen
tury when the Nation acquired noncontiguous Territories:
Puerto Rico, Guam, and the Philippines—ceded to the
United States by Spain at the conclusion of the Spanish-
American War—and Hawaii—annexed by the United
States in 1898. At this point Congress chose to discon
tinue its previous practice of extending constitutional
rights to the territories by statute. See, e.g., An Act Tem
porarily to provide for the administration of the affairs of
civil government in the Philippine Islands, and for other
purposes, 32 Stat. 692 (noting that Rev. Stat. §1891 did
not apply to the Philippines).
In a series of opinions later known as the Insular Cases,
the Court addressed whether the Constitution, by its own
force, applies in any territory that is not a State. See De
Lima v. Bidwell, 182 U. S. 1 (1901); Dooley v. United
States, 182 U. S. 222 (1901); Armstrong v. United States,
182 U. S. 243 (1901); Downes v. Bidwell, 182 U. S. 244
27 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
(1901); Hawaii v. Mankichi, 190 U. S. 197 (1903); Dorr v.
United States, 195 U. S. 138 (1904). The Court held that
the Constitution has independent force in these territo
ries, a force not contingent upon acts of legislative grace.
Yet it took note of the difficulties inherent in that position.
Prior to their cession to the United States, the former
Spanish colonies operated under a civil-law system, with
out experience in the various aspects of the Anglo-
American legal tradition, for instance the use of grand and
petit juries. At least with regard to the Philippines, a
complete transformation of the prevailing legal culture
would have been not only disruptive but also unnecessary,
as the United States intended to grant independence to
that Territory. See An Act To declare the purpose of the
people of the United States as to the future political status
of the people of the Philippine Islands, and to provide a
more autonomous government for those islands (Jones
Act), 39 Stat. 545 (noting that “it was never the intention
of the people of the United States in the incipiency of the
War with Spain to make it a war of conquest or for territo
rial aggrandizement” and that “it is, as it has always been,
the purpose of the people of the United States to withdraw
their sovereignty over the Philippine Islands and to recog
nize their independence as soon as a stable government
can be established therein”). The Court thus was reluc
tant to risk the uncertainty and instability that could
result from a rule that displaced altogether the existing
legal systems in these newly acquired Territories. See
Downes, supra, at 282 (“It is obvious that in the annexa
tion of outlying and distant possessions grave questions
will arise from differences of race, habits, laws and cus
toms of the people, and from differences of soil, climate
and production . . . ”).
These considerations resulted in the doctrine of territo
rial incorporation, under which the Constitution applies in
full in incorporated Territories surely destined for state
28 BOUMEDIENE v. BUSH
Opinion of the Court
hood but only in part in unincorporated Territories. See
Dorr, supra, at 143 (“Until Congress shall see fit to incor
porate territory ceded by treaty into the United States, . . .
the territory is to be governed under the power existing in
Congress to make laws for such territories and subject to
such constitutional restrictions upon the powers of that
body as are applicable to the situation”); Downes, supra, at
293 (White, J., concurring) (“[T]he determination of what
particular provision of the Constitution is applicable,
generally speaking, in all cases, involves an inquiry into
the situation of the territory and its relations to the
United States”). As the Court later made clear, “the real
issue in the Insular Cases was not whether the Constitu
tion extended to the Philippines or Porto Rico when we
went there, but which of its provisions were applicable by
way of limitation upon the exercise of executive and legis
lative power in dealing with new conditions and require
ments.” Balzac v. Porto Rico, 258 U. S. 298, 312 (1922). It
may well be that over time the ties between the United
States and any of its unincorporated Territories
strengthen in ways that are of constitutional significance.
Cf. Torres v. Puerto Rico, 442 U. S. 465, 475–476 (1979)
(Brennan, J., concurring in judgment) (“Whatever the
validity of the [Insular Cases] in the particular historical
context in which they were decided, those cases are clearly
not authority for questioning the application of the Fourth
Amendment—or any other provision of the Bill of Rights—
to the Commonwealth of Puerto Rico in the 1970’s”). But,
as early as Balzac in 1922, the Court took for granted that
even in unincorporated Territories the Government of the
United States was bound to provide to noncitizen inhabi
tants “guaranties of certain fundamental personal rights
declared in the Constitution.” 258 U. S., at 312; see also
Late Corp. of Church of Jesus Christ of Latter-day Saints
v. United States, 136 U. S. 1, 44 (1890) (“Doubtless Con
gress, in legislating for the Territories would be subject to
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Opinion of the Court
those fundamental limitations in favor of personal rights
which are formulated in the Constitution and its amend
ments”). Yet noting the inherent practical difficulties of
enforcing all constitutional provisions “always and every
where,” Balzac, supra, at 312, the Court devised in the
Insular Cases a doctrine that allowed it to use its power
sparingly and where it would be most needed. This cen
tury-old doctrine informs our analysis in the present
matter.
Practical considerations likewise influenced the Court’s
analysis a half-century later in Reid, 354 U. S. 1. The
petitioners there, spouses of American servicemen, lived
on American military bases in England and Japan. They
were charged with crimes committed in those countries
and tried before military courts, consistent with executive
agreements the United States had entered into with the
British and Japanese governments. Id., at 15–16, and nn.
29–30 (plurality opinion). Because the petitioners were
not themselves military personnel, they argued they were
entitled to trial by jury.
Justice Black, writing for the plurality, contrasted the
cases before him with the Insular Cases, which involved
territories “with wholly dissimilar traditions and institu
tions” that Congress intended to govern only “temporar
ily.” Id., at 14. Justice Frankfurter argued that the “spe
cific circumstances of each particular case” are relevant in
determining the geographic scope of the Constitution. Id.,
at 54 (opinion concurring in result). And Justice Harlan,
who had joined an opinion reaching the opposite result in
the case in the previous Term, Reid v. Covert, 351 U. S.
487 (1956), was most explicit in rejecting a “rigid and
abstract rule” for determining where constitutional guar
antees extend. Reid, 354 U. S., at 74 (opinion concurring
in result). He read the Insular Cases to teach that
whether a constitutional provision has extraterritorial
effect depends upon the “particular circumstances, the
30 BOUMEDIENE v. BUSH
Opinion of the Court
practical necessities, and the possible alternatives which
Congress had before it” and, in particular, whether judi
cial enforcement of the provision would be “impracticable
and anomalous.” Id., at 74–75; see also United States v.
Verdugo-Urquidez, 494 U. S. 259, 277–278 (1990)
(KENNEDY, J., concurring) (applying the “impracticable
and anomalous” extraterritoriality test in the Fourth
Amendment context).
That the petitioners in Reid were American citizens was
a key factor in the case and was central to the plurality’s
conclusion that the Fifth and Sixth Amendments apply to
American civilians tried outside the United States. But
practical considerations, related not to the petitioners’
citizenship but to the place of their confinement and trial,
were relevant to each Member of the Reid majority. And
to Justices Harlan and Frankfurter (whose votes were
necessary to the Court’s disposition) these considerations
were the decisive factors in the case.
Indeed the majority splintered on this very point. The
key disagreement between the plurality and the concur
ring Justices in Reid was over the continued precedential
value of the Court’s previous opinion in In re Ross, 140
U. S. 453 (1891), which the Reid Court understood as
holding that under some circumstances Americans abroad
have no right to indictment and trial by jury. The peti
tioner in Ross was a sailor serving on an American mer
chant vessel in Japanese waters who was tried before an
American consular tribunal for the murder of a fellow
crewman. 140 U. S., at 459, 479. The Ross Court held
that the petitioner, who was a British subject, had no
rights under the Fifth and Sixth Amendments. Id., at 464.
The petitioner’s citizenship played no role in the disposi
tion of the case, however. The Court assumed (consistent
with the maritime custom of the time) that Ross had all
the rights of a similarly situated American citizen. Id., at
479 (noting that Ross was “under the protection and sub
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Opinion of the Court
ject to the laws of the United States equally with the
seaman who was native born”). The Justices in Reid
therefore properly understood Ross as standing for the
proposition that, at least in some circumstances, the jury
provisions of the Fifth and Sixth Amendments have no
application to American citizens tried by American au
thorities abroad. See 354 U. S., at 11–12 (plurality opin
ion) (describing Ross as holding that “constitutional pro
tections applied ‘only to citizens and others within the
United States . . . and not to residents or temporary so
journers abroad’” (quoting Ross, supra, at 464)); 354 U. S.,
at 64 (Frankfurter, J., concurring in result) (noting that
the consular tribunals upheld in Ross “w[ere] based on
long-established custom and they were justified as the
best possible means for securing justice for the few Ameri
cans present in [foreign] countries”); 354 U. S., at 75
(Harlan, J., concurring in result) (“what Ross and the
Insular Cases hold is that the particular local setting, the
practical necessities, and the possible alternatives are
relevant to a question of judgment, namely, whether jury
trial should be deemed a necessary condition of the exer
cise of Congress’ power to provide for the trial of Ameri
cans overseas”).
The Reid plurality doubted that Ross was rightly de
cided, precisely because it believed the opinion was insuf
ficiently protective of the rights of American citizens. See
354 U. S., at 10–12; see also id., at 78 (Clark, J., dissent
ing) (noting that “four of my brothers would specifically
overrule and two would impair the long-recognized vitality
of an old and respected precedent in our law, the case of In
re Ross, 140 U. S. 453 (1891)”). But Justices Harlan and
Frankfurter, while willing to hold that the American
citizen petitioners in the cases before them were entitled
to the protections of Fifth and Sixth Amendments, were
unwilling to overturn Ross. 354 U. S., at 64 (Frankfurter,
J., concurring in result); id., at 75 (Harlan, J., concurring
32 BOUMEDIENE v. BUSH
Opinion of the Court
in result). Instead, the two concurring Justices distin
guished Ross from the cases before them, not on the basis
of the citizenship of the petitioners, but on practical con
siderations that made jury trial a more feasible option for
them than it was for the petitioner in Ross. If citizenship
had been the only relevant factor in the case, it would
have been necessary for the Court to overturn Ross, some
thing Justices Harlan and Frankfurter were unwilling to
do. See Verdugo-Urquidez, supra, at 277 (KENNEDY, J.,
concurring) (noting that Ross had not been overruled).
Practical considerations weighed heavily as well in
Johnson v. Eisentrager, 339 U. S. 763 (1950), where the
Court addressed whether habeas corpus jurisdiction ex
tended to enemy aliens who had been convicted of violat
ing the laws of war. The prisoners were detained at
Landsberg Prison in Germany during the Allied Powers’
postwar occupation. The Court stressed the difficulties of
ordering the Government to produce the prisoners in a
habeas corpus proceeding. It “would require allocation of
shipping space, guarding personnel, billeting and rations”
and would damage the prestige of military commanders at
a sensitive time. Id., at 779. In considering these factors
the Court sought to balance the constraints of military
occupation with constitutional necessities. Id., at 769–
779; see Rasul, 542 U. S., at 475–476 (discussing the
factors relevant to Eisentrager’s constitutional holding);
542 U. S., at 486 (KENNEDY, J., concurring in judgment)
(same).
True, the Court in Eisentrager denied access to the writ,
and it noted the prisoners “at no relevant time were
within any territory over which the United States is sov
ereign, and [that] the scenes of their offense, their capture,
their trial and their punishment were all beyond the
territorial jurisdiction of any court of the United States.”
339 U. S., at 778. The Government seizes upon this lan
guage as proof positive that the Eisentrager Court adopted
33 Cite as: 553 U. S. ____ (2008)
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a formalistic, sovereignty-based test for determining the
reach of the Suspension Clause. See Brief for Respon
dents 18–20. We reject this reading for three reasons.
First, we do not accept the idea that the above-quoted
passage from Eisentrager is the only authoritative lan
guage in the opinion and that all the rest is dicta. The
Court’s further determinations, based on practical consid
erations, were integral to Part II of its opinion and came
before the decision announced its holding. See 339 U. S.,
at 781.
Second, because the United States lacked both de jure
sovereignty and plenary control over Landsberg Prison,
see infra, at 34–35, it is far from clear that the Eisentrager
Court used the term sovereignty only in the narrow tech
nical sense and not to connote the degree of control the
military asserted over the facility. See supra, at 21. The
Justices who decided Eisentrager would have understood
sovereignty as a multifaceted concept. See Black’s Law
Dictionary 1568 (4th ed. 1951) (defining “sovereignty” as
“[t]he supreme, absolute, and uncontrollable power by
which any independent state is governed”; “the interna
tional independence of a state, combined with the right
and power of regulating its internal affairs without foreign
dictation”; and “[t]he power to do everything in a state
without accountability”); Ballentine’s Law Dictionary with
Pronunciations 1216 (2d ed. 1948) (defining “sovereignty”
as “[t]hat public authority which commands in civil soci
ety, and orders and directs what each citizen is to perform
to obtain the end of its institution”). In its principal brief
in Eisentrager, the Government advocated a bright-line
test for determining the scope of the writ, similar to the
one it advocates in these cases. See Brief for Petitioners in
Johnson v. Eisentrager, O. T. 1949, No. 306, pp. 74–75.
Yet the Court mentioned the concept of territorial sover
eignty only twice in its opinion. See Eisentrager, supra, at
778, 780. That the Court devoted a significant portion of
34 BOUMEDIENE v. BUSH
Opinion of the Court
Part II to a discussion of practical barriers to the running
of the writ suggests that the Court was not concerned
exclusively with the formal legal status of Landsberg
Prison but also with the objective degree of control the
United States asserted over it. Even if we assume the
Eisentrager Court considered the United States’ lack of
formal legal sovereignty over Landsberg Prison as the
decisive factor in that case, its holding is not inconsistent
with a functional approach to questions of extraterritorial
ity. The formal legal status of a given territory affects, at
least to some extent, the political branches’ control over
that territory. De jure sovereignty is a factor that bears
upon which constitutional guarantees apply there.
Third, if the Government’s reading of Eisentrager were
correct, the opinion would have marked not only a change
in, but a complete repudiation of, the Insular Cases’ (and
later Reid’s) functional approach to questions of extrater
ritoriality. We cannot accept the Government’s view.
Nothing in Eisentrager says that de jure sovereignty is or
has ever been the only relevant consideration in determin
ing the geographic reach of the Constitution or of habeas
corpus. Were that the case, there would be considerable
tension between Eisentrager, on the one hand, and the
Insular Cases and Reid, on the other. Our cases need not
be read to conflict in this manner. A constricted reading of
Eisentrager overlooks what we see as a common thread
uniting the Insular Cases, Eisentrager, and Reid: the idea
that questions of extraterritoriality turn on objective
factors and practical concerns, not formalism.
B
The Government’s formal sovereignty-based test raises
troubling separation-of-powers concerns as well. The
political history of Guantanamo illustrates the deficiencies
of this approach. The United States has maintained
complete and uninterrupted control of the bay for over 100
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years. At the close of the Spanish-American War, Spain
ceded control over the entire island of Cuba to the United
States and specifically “relinquishe[d] all claim[s] of sover
eignty . . . and title.” See Treaty of Paris, Dec. 10, 1898,
U. S.-Spain, Art. I, 30 Stat. 1755, T. S. No. 343. From the
date the treaty with Spain was signed until the Cuban
Republic was established on May 20, 1902, the United
States governed the territory “in trust” for the benefit of
the Cuban people. Neely v. Henkel, 180 U. S. 109, 120
(1901); H. Thomas, Cuba or The Pursuit of Freedom 436,
460 (1998). And although it recognized, by entering into
the 1903 Lease Agreement, that Cuba retained “ultimate
sovereignty” over Guantanamo, the United States contin
ued to maintain the same plenary control it had enjoyed
since 1898. Yet the Government’s view is that the Consti
tution had no effect there, at least as to noncitizens, be
cause the United States disclaimed sovereignty in the
formal sense of the term. The necessary implication of the
argument is that by surrendering formal sovereignty over
any unincorporated territory to a third party, while at the
same time entering into a lease that grants total control
over the territory back to the United States, it would be
possible for the political branches to govern without legal
constraint.
Our basic charter cannot be contracted away like this.
The Constitution grants Congress and the President the
power to acquire, dispose of, and govern territory, not the
power to decide when and where its terms apply. Even
when the United States acts outside its borders, its powers
are not “absolute and unlimited” but are subject “to such
restrictions as are expressed in the Constitution.” Murphy
v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from ques
tions involving formal sovereignty and territorial govern
ance is one thing. To hold the political branches have the
power to switch the Constitution on or off at will is quite
another. The former position reflects this Court’s recogni
36 BOUMEDIENE v. BUSH
Opinion of the Court
tion that certain matters requiring political judgments are
best left to the political branches. The latter would permit
a striking anomaly in our tripartite system of government,
leading to a regime in which Congress and the President,
not this Court, say “what the law is.” Marbury v. Madi-
son, 1 Cranch 137, 177 (1803).
These concerns have particular bearing upon the Sus
pension Clause question in the cases now before us, for the
writ of habeas corpus is itself an indispensable mechanism
for monitoring the separation of powers. The test for
determining the scope of this provision must not be subject
to manipulation by those whose power it is designed to
restrain.
C
As we recognized in Rasul, 542 U. S., at 476; id., at 487
(KENNEDY, J., concurring in judgment), the outlines of a
framework for determining the reach of the Suspension
Clause are suggested by the factors the Court relied upon
in Eisentrager. In addition to the practical concerns dis
cussed above, the Eisentrager Court found relevant that
each petitioner:
“(a) is an enemy alien; (b) has never been or resided in
the United States; (c) was captured outside of our ter
ritory and there held in military custody as a prisoner
of war; (d) was tried and convicted by a Military
Commission sitting outside the United States; (e) for
offenses against laws of war committed outside the
United States; (f) and is at all times imprisoned out
side the United States.” 339 U. S., at 777.
Based on this language from Eisentrager, and the reason
ing in our other extraterritoriality opinions, we conclude
that at least three factors are relevant in determining the
reach of the Suspension Clause: (1) the citizenship and
status of the detainee and the adequacy of the process
37 Cite as: 553 U. S. ____ (2008)
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through which that status determination was made; (2)
the nature of the sites where apprehension and then
detention took place; and (3) the practical obstacles inher
ent in resolving the prisoner’s entitlement to the writ.
Applying this framework, we note at the onset that the
status of these detainees is a matter of dispute. The peti
tioners, like those in Eisentrager, are not American citi
zens. But the petitioners in Eisentrager did not contest, it
seems, the Court’s assertion that they were “enemy
alien[s].” Ibid. In the instant cases, by contrast, the
detainees deny they are enemy combatants. They have
been afforded some process in CSRT proceedings to de
termine their status; but, unlike in Eisentrager, supra, at
766, there has been no trial by military commission for
violations of the laws of war. The difference is not trivial.
The records from the Eisentrager trials suggest that, well
before the petitioners brought their case to this Court,
there had been a rigorous adversarial process to test the
legality of their detention. The Eisentrager petitioners
were charged by a bill of particulars that made detailed
factual allegations against them. See 14 United Nations
War Crimes Commission, Law Reports of Trials of War
Criminals 8–10 (1949) (reprint 1997). To rebut the accu
sations, they were entitled to representation by counsel,
allowed to introduce evidence on their own behalf, and
permitted to cross-examine the prosecution’s witnesses.
See Memorandum by Command of Lt. Gen. Wedemeyer,
Jan. 21, 1946 (establishing “Regulations Governing the
Trial of War Criminals” in the China Theater), in Tr. of
Record in Johnson v. Eisentrager, O. T. 1949, No. 306, pp.
34–40.
In comparison the procedural protections afforded to the
detainees in the CSRT hearings are far more limited, and,
we conclude, fall well short of the procedures and adver
sarial mechanisms that would eliminate the need for
habeas corpus review. Although the detainee is assigned a
38 BOUMEDIENE v. BUSH
Opinion of the Court
“Personal Representative” to assist him during CSRT
proceedings, the Secretary of the Navy’s memorandum
makes clear that person is not the detainee’s lawyer or
even his “advocate.” See App. to Pet. for Cert. in No. 06–
1196, at 155, 172. The Government’s evidence is accorded
a presumption of validity. Id., at 159. The detainee is
allowed to present “reasonably available” evidence, id., at
155, but his ability to rebut the Government’s evidence
against him is limited by the circumstances of his con
finement and his lack of counsel at this stage. And al
though the detainee can seek review of his status deter
mination in the Court of Appeals, that review process
cannot cure all defects in the earlier proceedings. See Part
V, infra.
As to the second factor relevant to this analysis, the
detainees here are similarly situated to the Eisentrager
petitioners in that the sites of their apprehension and
detention are technically outside the sovereign territory of
the United States. As noted earlier, this is a factor that
weighs against finding they have rights under the Sus
pension Clause. But there are critical differences between
Landsberg Prison, circa 1950, and the United States Na
val Station at Guantanamo Bay in 2008. Unlike its pre
sent control over the naval station, the United States’
control over the prison in Germany was neither absolute
nor indefinite. Like all parts of occupied Germany, the
prison was under the jurisdiction of the combined Allied
Forces. See Declaration Regarding the Defeat of Germany
and the Assumption of Supreme Authority with Respect to
Germany, June 5, 1945, U. S.-U. S. S. R.-U. K.-Fr., 60
Stat. 1649, T. I. A. S. No. 1520. The United States was
therefore answerable to its Allies for all activities occur
ring there. Cf. Hirota v. MacArthur, 338 U. S. 197, 198
(1948) (per curiam) (military tribunal set up by Gen.
Douglas MacArthur, acting as “the agent of the Allied
Powers,” was not a “tribunal of the United States”). The
39 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
Allies had not planned a long-term occupation of Ger
many, nor did they intend to displace all German institu
tions even during the period of occupation. See Agree
ments Respecting Basic Principles for Merger of the Three
Western German Zones of Occupation, and Other Matters,
Apr. 8, 1949, U. S.-U. K.-Fr., Art. 1, 63 Stat. 2819,
T. I. A. S. No. 2066 (establishing a governing framework
“[d]uring the period in which it is necessary that the occu
pation continue” and expressing the desire “that the Ger
man people shall enjoy self-government to the maximum
possible degree consistent with such occupation”). The
Court’s holding in Eisentrager was thus consistent with
the Insular Cases, where it had held there was no need to
extend full constitutional protections to territories the
United States did not intend to govern indefinitely. Guan
tanamo Bay, on the other hand, is no transient possession.
In every practical sense Guantanamo is not abroad; it is
within the constant jurisdiction of the United States. See
Rasul, 542 U. S., at 480; id., at 487 (KENNEDY, J., concur
ring in judgment).
As to the third factor, we recognize, as the Court did in
Eisentrager, that there are costs to holding the Suspension
Clause applicable in a case of military detention abroad.
Habeas corpus proceedings may require expenditure of
funds by the Government and may divert the attention of
military personnel from other pressing tasks. While we
are sensitive to these concerns, we do not find them dispo
sitive. Compliance with any judicial process requires
some incremental expenditure of resources. Yet civilian
courts and the Armed Forces have functioned along side
each other at various points in our history. See, e.g.,
Duncan v. Kahanamoku, 327 U. S. 304 (1946); Ex parte
Milligan, 4 Wall. 2 (1866). The Government presents no
credible arguments that the military mission at Guan
tanamo would be compromised if habeas corpus courts had
jurisdiction to hear the detainees’ claims. And in light of
40 BOUMEDIENE v. BUSH
Opinion of the Court
the plenary control the United States asserts over the
base, none are apparent to us.
The situation in Eisentrager was far different, given the
historical context and nature of the military’s mission in
post-War Germany. When hostilities in the European
Theater came to an end, the United States became respon
sible for an occupation zone encompassing over 57,000
square miles with a population of 18 million. See Letter
from President Truman to Secretary of State Byrnes,
(Nov. 28, 1945), in 8 Documents on American Foreign
Relations 257 (R. Dennett & R. Turner eds. 1948); Pollock,
A Territorial Pattern for the Military Occupation of Ger
many, 38 Am. Pol. Sci. Rev. 970, 975 (1944). In addition to
supervising massive reconstruction and aid efforts the
American forces stationed in Germany faced potential
security threats from a defeated enemy. In retrospect the
post-War occupation may seem uneventful. But at the
time Eisentrager was decided, the Court was right to be
concerned about judicial interference with the military’s
efforts to contain “enemy elements, guerrilla fighters, and
‘were-wolves.’” 339 U. S., at 784.
Similar threats are not apparent here; nor does the
Government argue that they are. The United States
Naval Station at Guantanamo Bay consists of 45 square
miles of land and water. The base has been used, at vari
ous points, to house migrants and refugees temporarily.
At present, however, other than the detainees themselves,
the only long-term residents are American military per
sonnel, their families, and a small number of workers. See
History of Guantanamo Bay online at https://www.cnic.
navy.mil/Guantanamo/AboutGTMO/gtmohistorygeneral/
gtmohistgeneral. The detainees have been deemed ene
mies of the United States. At present, dangerous as they
may be if released, they are contained in a secure prison
facility located on an isolated and heavily fortified military
base.
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There is no indication, furthermore, that adjudicating a
habeas corpus petition would cause friction with the host
government. No Cuban court has jurisdiction over Ameri
can military personnel at Guantanamo or the enemy
combatants detained there. While obligated to abide by
the terms of the lease, the United States is, for all practi
cal purposes, answerable to no other sovereign for its acts
on the base. Were that not the case, or if the detention
facility were located in an active theater of war, argu
ments that issuing the writ would be “impracticable or
anomalous” would have more weight. See Reid, 354 U. S.,
at 74 (Harlan, J., concurring in result). Under the facts
presented here, however, there are few practical barriers
to the running of the writ. To the extent barriers arise,
habeas corpus procedures likely can be modified to ad
dress them. See Part VI–B, infra.
It is true that before today the Court has never held
that noncitizens detained by our Government in territory
over which another country maintains de jure sovereignty
have any rights under our Constitution. But the cases
before us lack any precise historical parallel. They involve
individuals detained by executive order for the duration of
a conflict that, if measured from September 11, 2001, to
the present, is already among the longest wars in Ameri
can history. See Oxford Companion to American Military
History 849 (1999). The detainees, moreover, are held in a
territory that, while technically not part of the United
States, is under the complete and total control of our
Government. Under these circumstances the lack of a
precedent on point is no barrier to our holding.
We hold that Art. I, §9, cl. 2, of the Constitution has full
effect at Guantanamo Bay. If the privilege of habeas
corpus is to be denied to the detainees now before us,
Congress must act in accordance with the requirements of
the Suspension Clause. Cf. Hamdi, 542 U. S., at 564
(SCALIA, J., dissenting) (“[I]ndefinite imprisonment on
42 BOUMEDIENE v. BUSH
Opinion of the Court
reasonable suspicion is not an available option of treat
ment for those accused of aiding the enemy, absent a
suspension of the writ”). This Court may not impose a de
facto suspension by abstaining from these controversies.
See Hamdan, 548 U. S., at 585, n. 16 (“[A]bstention is not
appropriate in cases . . . in which the legal challenge
‘turn[s] on the status of the persons as to whom the mili
tary asserted its power’” (quoting Schlesinger v. Council-
man, 420 U. S. 738, 759 (1975))). The MCA does not
purport to be a formal suspension of the writ; and the
Government, in its submissions to us, has not argued that
it is. Petitioners, therefore, are entitled to the privilege of
habeas corpus to challenge the legality of their detention.
V
In light of this holding the question becomes whether
the statute stripping jurisdiction to issue the writ avoids
the Suspension Clause mandate because Congress has
provided adequate substitute procedures for habeas cor
pus. The Government submits there has been compliance
with the Suspension Clause because the DTA review
process in the Court of Appeals, see DTA §1005(e), pro
vides an adequate substitute. Congress has granted that
court jurisdiction to consider
“(i) whether the status determination of the [CSRT]
. . . was consistent with the standards and procedures
specified by the Secretary of Defense . . . and (ii) to the
extent the Constitution and laws of the United States
are applicable, whether the use of such standards and
procedures to make the determination is consistent
with the Constitution and laws of the United States.”
§1005(e)(2)(C), 119 Stat. 2742.
The Court of Appeals, having decided that the writ does
not run to the detainees in any event, found it unneces
sary to consider whether an adequate substitute has been
43 Cite as: 553 U. S. ____ (2008)
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provided. In the ordinary course we would remand to the
Court of Appeals to consider this question in the first
instance. See Youakim v. Miller, 425 U. S. 231, 234 (1976)
(per curiam). It is well settled, however, that the Court’s
practice of declining to address issues left unresolved in
earlier proceedings is not an inflexible rule. Ibid. Depar
ture from the rule is appropriate in “exceptional” circum
stances. See Cooper Industries, Inc. v. Aviall Services,
Inc., 543 U. S. 157, 169 (2004); Duignan v. United States,
274 U. S. 195, 200 (1927).
The gravity of the separation-of-powers issues raised by
these cases and the fact that these detainees have been
denied meaningful access to a judicial forum for a period of
years render these cases exceptional. The parties before
us have addressed the adequacy issue. While we would
have found it informative to consider the reasoning of the
Court of Appeals on this point, we must weigh that
against the harms petitioners may endure from additional
delay. And, given there are few precedents addressing
what features an adequate substitute for habeas corpus
must contain, in all likelihood a remand simply would
delay ultimate resolution of the issue by this Court.
We do have the benefit of the Court of Appeals’ con
struction of key provisions of the DTA. When we granted
certiorari in these cases, we noted “it would be of material
assistance to consult any decision” in the parallel DTA
review proceedings pending in the Court of Appeals, spe
cifically any rulings in the matter of Bismullah v. Gates.
551 U. S. ___ (2007). Although the Court of Appeals has
yet to complete a DTA review proceeding, the three-judge
panel in Bismullah has issued an interim order giving
guidance as to what evidence can be made part of the
record on review and what access the detainees can have
to counsel and to classified information. See 501 F. 3d 178
(CADC) (Bismullah I), reh’g denied, 503 F. 3d 137 (CADC
2007) (Bismullah II). In that matter the full court denied
44 BOUMEDIENE v. BUSH
Opinion of the Court
the Government’s motion for rehearing en banc, see Bis-
mullah v. Gates, 514 F. 3d 1291 (CADC 2008) (Bismullah
III). The order denying rehearing was accompanied by
five separate statements from members of the court, which
offer differing views as to scope of the judicial review
Congress intended these detainees to have. Ibid.
Under the circumstances we believe the costs of further
delay substantially outweigh any benefits of remanding to
the Court of Appeals to consider the issue it did not ad
dress in these cases.
A
Our case law does not contain extensive discussion of
standards defining suspension of the writ or of circum
stances under which suspension has occurred. This sim
ply confirms the care Congress has taken throughout our
Nation’s history to preserve the writ and its function.
Indeed, most of the major legislative enactments pertain
ing to habeas corpus have acted not to contract the writ’s
protection but to expand it or to hasten resolution of pris
oners’ claims. See, e.g., Habeas Corpus Act of 1867, ch. 28,
§1, 14 Stat. 385 (current version codified at 28 U. S. C.
§2241 (2000 ed. and Supp. V) (extending the federal writ
to state prisoners)); Cf. Harris v. Nelson, 394 U. S. 286,
299–300 (1969) (interpreting the All Writs Act, 28 U. S. C.
§1651, to allow discovery in habeas corpus proceedings);
Peyton v. Rowe, 391 U. S. 54, 64–65 (1968) (interpreting
the then-existing version of §2241 to allow petitioner to
proceed with his habeas corpus action, even though he had
not yet begun to serve his sentence).
There are exceptions, of course. Title I of the Antiterror
ism and Effective Death Penalty Act of 1996 (AEDPA),
§106, 110 Stat. 1220, contains certain gatekeeping provi
sions that restrict a prisoner’s ability to bring new and
repetitive claims in “second or successive” habeas corpus
actions. We upheld these provisions against a Suspension
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Clause challenge in Felker v. Turpin, 518 U. S. 651, 662–
664 (1996). The provisions at issue in Felker, however, did
not constitute a substantial departure from common-law
habeas procedures. The provisions, for the most part,
codified the longstanding abuse-of-the-writ doctrine. Id.,
at 664; see also McCleskey v. Zant, 499 U. S. 467, 489
(1991). AEDPA applies, moreover, to federal, postconvic
tion review after criminal proceedings in state court have
taken place. As of this point, cases discussing the imple
mentation of that statute give little helpful instruction
(save perhaps by contrast) for the instant cases, where no
trial has been held.
The two leading cases addressing habeas substitutes,
Swain v. Pressley, 430 U. S. 372 (1977), and United States
v. Hayman, 342 U. S. 205 (1952), likewise provide little
guidance here. The statutes at issue were attempts to
streamline habeas corpus relief, not to cut it back.
The statute discussed in Hayman was 28 U. S. C. §2255.
It replaced traditional habeas corpus for federal prisoners
(at least in the first instance) with a process that allowed
the prisoner to file a motion with the sentencing court on
the ground that his sentence was, inter alia, “‘imposed in
violation of the Constitution or laws of the United States.’”
342 U. S., at 207, n. 1. The purpose and effect of the stat
ute was not to restrict access to the writ but to make
postconviction proceedings more efficient. It directed
claims not to the court that had territorial jurisdiction
over the place of the petitioner’s confinement but to the
sentencing court, a court already familiar with the facts of
the case. As the Hayman Court explained
“Section 2255 . . . was passed at the instance of the
Judicial Conference to meet practical difficulties that
had arisen in administering the habeas corpus juris
diction of the federal courts. Nowhere in the history
of Section 2255 do we find any purpose to impinge
46 BOUMEDIENE v. BUSH
Opinion of the Court
upon prisoners’ rights of collateral attack upon their
convictions. On the contrary, the sole purpose was to
minimize the difficulties encountered in habeas cor
pus hearings by affording the same rights in another
and more convenient forum.” Id., at 219.
See also Hill v. United States, 368 U. S. 424, 427, 428, and
n. 5 (1962) (noting that §2255 provides a remedy in the
sentencing court that is “exactly commensurate” with the
pre-existing federal habeas corpus remedy).
The statute in Swain, D. C. Code Ann. §23–110(g)
(1973), applied to prisoners in custody under sentence of
the Superior Court of the District of Columbia. Before
enactment of the District of Columbia Court Reform and
Criminal Procedure Act of 1970 (D. C. Court Reform Act),
84 Stat. 473, those prisoners could file habeas petitions in
the United States District Court for the District of Colum
bia. The Act, which was patterned on §2255, substituted a
new collateral process in the Superior Court for the pre
existing habeas corpus procedure in the District Court.
See Swain, 430 U. S., at 374–378. But, again, the purpose
and effect of the statute was to expedite consideration of
the prisoner’s claims, not to delay or frustrate it. See id.,
at 375, n. 4 (noting that the purpose of the D. C. Court
Reform Act was to “alleviate” administrative burdens on
the District Court).
That the statutes in Hayman and Swain were designed
to strengthen, rather than dilute, the writ’s protections
was evident, furthermore, from this significant fact: Nei
ther statute eliminated traditional habeas corpus relief.
In both cases the statute at issue had a saving clause,
providing that a writ of habeas corpus would be available
if the alternative process proved inadequate or ineffective.
Swain, supra, at 381; Hayman, supra, at 223. The Court
placed explicit reliance upon these provisions in upholding
the statutes against constitutional challenges. See Swain,
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supra, at 381 (noting that the provision “avoid[ed] any
serious question about the constitutionality of the stat
ute”); Hayman, supra, at 223 (noting that, because habeas
remained available as a last resort, it was unnecessary to
“reach constitutional questions”).
Unlike in Hayman and Swain, here we confront stat
utes, the DTA and the MCA, that were intended to cir
cumscribe habeas review. Congress’ purpose is evident
not only from the unequivocal nature of MCA §7’s jurisdic
tion-stripping language, 28 U. S. C. A. §2241(e)(1) (Supp.
2007) (“No court, justice, or judge shall have jurisdiction to
hear or consider an application for a writ of habeas corpus
. . .”), but also from a comparison of the DTA to the stat
utes at issue in Hayman and Swain. When interpreting a
statute, we examine related provisions in other parts of
the U. S. Code. See, e.g., West Virginia Univ. Hospitals,
Inc. v. Casey, 499 U. S. 83, 88–97 (1991); Babbitt v. Sweet
Home Chapter, Communities for Great Ore., 515 U. S. 687,
717–718 (1995) (SCALIA, J., dissenting); see generally W.
Eskridge, P. Frickey, & E. Garrett, Cases and Materials
on Legislation: Statutes and the Creation of Public Policy
1039 (3d ed. 2001). When Congress has intended to re
place traditional habeas corpus with habeas-like substi
tutes, as was the case in Hayman and Swain, it has
granted to the courts broad remedial powers to secure the
historic office of the writ. In the §2255 context, for exam
ple, Congress has granted to the reviewing court power to
“determine the issues and make findings of fact and con
clusions of law” with respect to whether “the judgment [of
conviction] was rendered without jurisdiction, or . . . the
sentence imposed was not authorized by law or otherwise
open to collateral attack.” 28 U. S. C. A. §2255(b) (Supp.
2008). The D. C. Court Reform Act, the statute upheld in
Swain, contained a similar provision. §23–110(g), 84 Stat.
609.
In contrast the DTA’s jurisdictional grant is quite lim
48 BOUMEDIENE v. BUSH
Opinion of the Court
ited. The Court of Appeals has jurisdiction not to inquire
into the legality of the detention generally but only to
assess whether the CSRT complied with the “standards
and procedures specified by the Secretary of Defense” and
whether those standards and procedures are lawful. DTA
§1005(e)(2)(C), 119 Stat. 2742. If Congress had envisioned
DTA review as coextensive with traditional habeas corpus,
it would not have drafted the statute in this manner.
Instead, it would have used language similar to what it
used in the statutes at issue in Hayman and Swain. Cf.
Russello v. United States, 464 U. S. 16, 23 (1983)
(“‘[W]here Congress includes particular language in one
section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion’” (quoting United States v. Wong Kim Bo, 472
F. 2d 720, 722 (CA5 1972))). Unlike in Hayman and
Swain, moreover, there has been no effort to preserve
habeas corpus review as an avenue of last resort. No
saving clause exists in either the MCA or the DTA. And
MCA §7 eliminates habeas review for these petitioners.
The differences between the DTA and the habeas stat
ute that would govern in MCA §7’s absence, 28 U. S. C.
§2241 (2000 ed. and Supp. V), are likewise telling. In
§2241 (2000 ed.) Congress confirmed the authority of “any
justice” or “circuit judge” to issue the writ. Cf. Felker, 518
U. S., at 660–661 (interpreting Title I of AEDPA to not
strip from this Court the power to entertain original ha
beas corpus petitions). That statute accommodates the
necessity for factfinding that will arise in some cases by
allowing the appellate judge or Justice to transfer the case
to a district court of competent jurisdiction, whose institu
tional capacity for factfinding is superior to his or her own.
See 28 U. S. C. §2241(b). By granting the Court of Ap
peals “exclusive” jurisdiction over petitioners’ cases, see
DTA §1005(e)(2)(A), 119 Stat. 2742, Congress has fore
49 Cite as: 553 U. S. ____ (2008)
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closed that option. This choice indicates Congress in
tended the Court of Appeals to have a more limited role in
enemy combatant status determinations than a district
court has in habeas corpus proceedings. The DTA should
be interpreted to accord some latitude to the Court of
Appeals to fashion procedures necessary to make its re
view function a meaningful one, but, if congressional
intent is to be respected, the procedures adopted cannot be
as extensive or as protective of the rights of the detainees
as they would be in a §2241 proceeding. Otherwise there
would have been no, or very little, purpose for enacting the
DTA.
To the extent any doubt remains about Congress’ intent,
the legislative history confirms what the plain text
strongly suggests: In passing the DTA Congress did not
intend to create a process that differs from traditional
habeas corpus process in name only. It intended to create
a more limited procedure. See, e.g., 151 Cong. Rec. S14263
(Dec. 21, 2005) (statement of Sen. Graham) (noting that
the DTA “extinguish[es] these habeas and other actions in
order to effect a transfer of jurisdiction over these cases to
the DC Circuit Court” and agreeing that the bill “create[s]
in their place a very limited judicial review of certain
military administrative decisions”); id., at S14268 (state
ment of Sen. Kyl) (“It is important to note that the limited
judicial review authorized by paragraphs 2 and 3 of sub
section (e) [of DTA §1005] are not habeas-corpus review.
It is a limited judicial review of its own nature”).
It is against this background that we must interpret the
DTA and assess its adequacy as a substitute for habeas
corpus. The present cases thus test the limits of the Sus
pension Clause in ways that Hayman and Swain did not.
B
We do not endeavor to offer a comprehensive summary
of the requisites for an adequate substitute for habeas
50 BOUMEDIENE v. BUSH
Opinion of the Court
corpus. We do consider it uncontroversial, however, that
the privilege of habeas corpus entitles the prisoner to a
meaningful opportunity to demonstrate that he is being
held pursuant to “the erroneous application or interpreta
tion” of relevant law. St. Cyr, 533 U. S., at 302. And the
habeas court must have the power to order the conditional
release of an individual unlawfully detained—though
release need not be the exclusive remedy and is not the
appropriate one in every case in which the writ is granted.
See Ex parte Bollman, 4 Cranch 75, 136 (1807) (where
imprisonment is unlawful, the court “can only direct [the
prisoner] to be discharged”); R. Hurd, Treatise on the
Right of Personal Liberty, and On the Writ of Habeas
Corpus and the Practice Connected with It: With a View of
the Law of Extradition of Fugitives 222 (2d ed. 1876) (“It
cannot be denied where ‘a probable ground is shown that
the party is imprisoned without just cause, and therefore,
hath a right to be delivered,’ for the writ then becomes a
‘writ of right, which may not be denied but ought to be
granted to every man that is committed or detained in
prison or otherwise restrained of his liberty’”). But see
Chessman v. Teets, 354 U. S. 156, 165–166 (1957) (re
manding in a habeas case for retrial within a “reasonable
time”). These are the easily identified attributes of any
constitutionally adequate habeas corpus proceeding.
But, depending on the circumstances, more may be
required.
Indeed, common-law habeas corpus was, above all, an
adaptable remedy. Its precise application and scope
changed depending upon the circumstances. See 3 Black-
stone *131 (describing habeas as “the great and efficacious
writ, in all manner of illegal confinement”); see also
Schlup v. Delo, 513 U. S. 298, 319 (1995) (Habeas “is, at
its core, an equitable remedy”); Jones v. Cunningham, 371
U. S. 236, 243 (1963) (Habeas is not “a static, narrow,
formalistic remedy; its scope has grown to achieve its
51 Cite as: 553 U. S. ____ (2008)
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grand purpose”). It appears the common-law habeas
court’s role was most extensive in cases of pretrial and
noncriminal detention, where there had been little or no
previous judicial review of the cause for detention. Nota
bly, the black-letter rule that prisoners could not contro
vert facts in the jailer’s return was not followed (or at least
not with consistency) in such cases. Hurd, supra, at 271
(noting that the general rule was “subject to exceptions”
including cases of bail and impressment); Oakes, Legal
History in the High Court—Habeas Corpus, 64 Mich. L.
Rev. 451, 457 (1966) (“[W]hen a prisoner applied for ha
beas corpus before indictment or trial, some courts exam
ined the written depositions on which he had been ar
rested or committed, and others even heard oral testimony
to determine whether the evidence was sufficient to justi
fying holding him for trial” (footnotes omitted)); Fallon &
Meltzer, Habeas Corpus Jurisdiction, Substantive Rights,
and the War on Terror, 120 Harv. L. Rev. 2029, 2102
(2007) (“[T]he early practice was not consistent: courts
occasionally permitted factual inquiries when no other
opportunity for judicial review existed”).
There is evidence from 19th-century American sources
indicating that, even in States that accorded strong res
judicata effect to prior adjudications, habeas courts in this
country routinely allowed prisoners to introduce exculpa
tory evidence that was either unknown or previously
unavailable to the prisoner. See, e.g., Ex parte Pattison,
56 Miss. 161, 164 (1878) (noting that “[w]hile the former
adjudication must be considered as conclusive on the
testimony then adduced” “newly developed exculpatory
evidence . . . may authorize the admission to bail”); Ex
parte Foster, 5 Tex. Ct. App. 625, 644 (1879) (construing
the State’s habeas statute to allow for the introduction of
new evidence “where important testimony has been ob
tained, which, though not newly discovered, or which,
though known to [the petitioner], it was not in his power
52 BOUMEDIENE v. BUSH
Opinion of the Court
to produce at the former hearing; [and] where the evidence
was newly discovered”); People v. Martin, 7 N. Y. Leg. Obs.
49, 56 (1848) (“If in custody on criminal process before
indictment, the prisoner has an absolute right to demand
that the original depositions be looked into to see whether
any crime is in fact imputed to him, and the inquiry will
by no means be confined to the return. Facts out of the
return may be gone into to ascertain whether the commit
ting magistrate may not have arrived at an illogical con
clusion upon the evidence given before him . . .”); see
generally W. Church, Treatise on the Writ of Habeas
Corpus §182, p. 235 1886) (hereinafter Church) (noting
that habeas courts would “hear evidence anew if justice
require it”). Justice McLean, on Circuit in 1855, expressed
his view that a habeas court should consider a prior judg
ment conclusive “where there was clearly jurisdiction and
a full and fair hearing; but that it might not be so consid
ered when any of these requisites were wanting.” Ex parte
Robinson, 20 F. Cas. 969, 971, (No. 11,935) (CC Ohio
1855). To illustrate the circumstances in which the prior
adjudication did not bind the habeas court, he gave the
example of a case in which “[s]everal unimpeached wit
nesses” provided new evidence to exculpate the prisoner.
Ibid.
The idea that the necessary scope of habeas review in
part depends upon the rigor of any earlier proceedings
accords with our test for procedural adequacy in the due
process context. See Mathews v. Eldridge, 424 U. S. 319,
335 (1976) (noting that the Due Process Clause requires
an assessment of, inter alia, “the risk of an erroneous
deprivation of [a liberty interest;] and the probable value,
if any, of additional or substitute procedural safeguards”).
This principle has an established foundation in habeas
corpus jurisprudence as well, as Chief Justice Marshall’s
opinion in Ex parte Watkins, 3 Pet. 193 (1830), demon
strates. Like the petitioner in Swain, Watkins sought a
53 Cite as: 553 U. S. ____ (2008)
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writ of habeas corpus after being imprisoned pursuant to a
judgment of a District of Columbia court. In holding that
the judgment stood on “high ground,” 3 Pet., at 209, the
Chief Justice emphasized the character of the court that
rendered the original judgment, noting it was a “court of
record, having general jurisdiction over criminal cases.”
Id., at 203. In contrast to “inferior” tribunals of limited
jurisdiction, ibid., courts of record had broad remedial
powers, which gave the habeas court greater confidence in
the judgment’s validity. See generally Neuman, Habeas
Corpus, Executive Detention, and the Removal of Aliens,
98 Colum. L. Rev. 961, 982–983 (1998).
Accordingly, where relief is sought from a sentence that
resulted from the judgment of a court of record, as was the
case in Watkins and indeed in most federal habeas cases,
considerable deference is owed to the court that ordered
confinement. See Brown v. Allen, 344 U. S. 443, 506
(1953) (opinion of Frankfurter, J.) (noting that a federal
habeas court should accept a state court’s factual findings
unless “a vital flaw be found in the process of ascertaining
such facts in the State court”). Likewise in those cases the
prisoner should exhaust adequate alternative remedies
before filing for the writ in federal court. See Ex parte
Royall, 117 U. S. 241, 251–252 (1886) (requiring exhaus
tion of state collateral processes). Both aspects of federal
habeas corpus review are justified because it can be as
sumed that, in the usual course, a court of record provides
defendants with a fair, adversary proceeding. In cases
involving state convictions this framework also respects
federalism; and in federal cases it has added justification
because the prisoner already has had a chance to seek
review of his conviction in a federal forum through a direct
appeal. The present cases fall outside these categories,
however; for here the detention is by executive order.
Where a person is detained by executive order, rather
than, say, after being tried and convicted in a court, the
54 BOUMEDIENE v. BUSH
Opinion of the Court
need for collateral review is most pressing. A criminal
conviction in the usual course occurs after a judicial hear
ing before a tribunal disinterested in the outcome and
committed to procedures designed to ensure its own inde
pendence. These dynamics are not inherent in executive
detention orders or executive review procedures. In this
context the need for habeas corpus is more urgent. The
intended duration of the detention and the reasons for it
bear upon the precise scope of the inquiry. Habeas corpus
proceedings need not resemble a criminal trial, even when
the detention is by executive order. But the writ must be
effective. The habeas court must have sufficient authority
to conduct a meaningful review of both the cause for de
tention and the Executive’s power to detain.
To determine the necessary scope of habeas corpus
review, therefore, we must assess the CSRT process, the
mechanism through which petitioners’ designation as
enemy combatants became final. Whether one character
izes the CSRT process as direct review of the Executive’s
battlefield determination that the detainee is an enemy
combatant—as the parties have and as we do—or as the
first step in the collateral review of a battlefield determi
nation makes no difference in a proper analysis of whether
the procedures Congress put in place are an adequate
substitute for habeas corpus. What matters is the sum
total of procedural protections afforded to the detainee at
all stages, direct and collateral.
Petitioners identify what they see as myriad deficiencies
in the CSRTs. The most relevant for our purposes are the
constraints upon the detainee’s ability to rebut the factual
basis for the Government’s assertion that he is an enemy
combatant. As already noted, see Part IV–C, supra, at the
CSRT stage the detainee has limited means to find or
present evidence to challenge the Government’s case
against him. He does not have the assistance of counsel
and may not be aware of the most critical allegations that
55 Cite as: 553 U. S. ____ (2008)
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the Government relied upon to order his detention. See
App. to Pet. for Cert. in No. 06–1196, at 156, ¶F(8) (noting
that the detainee can access only the “unclassified portion
of the Government Information”). The detainee can con
front witnesses that testify during the CSRT proceedings.
Id., at 144, ¶g(8). But given that there are in effect no
limits on the admission of hearsay evidence—the only
requirement is that the tribunal deem the evidence “rele
vant and helpful,” ibid., ¶g(9)—the detainee’s opportunity
to question witnesses is likely to be more theoretical than
real.
The Government defends the CSRT process, arguing
that it was designed to conform to the procedures sug
gested by the plurality in Hamdi. See 542 U. S., at 538.
Setting aside the fact that the relevant language in Hamdi
did not garner a majority of the Court, it does not control
the matter at hand. None of the parties in Hamdi argued
there had been a suspension of the writ. Nor could they.
The §2241 habeas corpus process remained in place, id., at
525. Accordingly, the plurality concentrated on whether
the Executive had the authority to detain and, if so, what
rights the detainee had under the Due Process Clause.
True, there are places in the Hamdi plurality opinion
where it is difficult to tell where its extrapolation of §2241
ends and its analysis of the petitioner’s Due Process rights
begins. But the Court had no occasion to define the neces
sary scope of habeas review, for Suspension Clause pur
poses, in the context of enemy combatant detentions. The
closest the plurality came to doing so was in discussing
whether, in light of separation-of-powers concerns, §2241
should be construed to forbid the District Court from
inquiring beyond the affidavit Hamdi’s custodian provided
in answer to the detainee’s habeas petition. The plurality
answered this question with an emphatic “no.” Id., at 527
(labeling this argument as “extreme”); id., at 535–536.
Even if we were to assume that the CSRTs satisfy due
56 BOUMEDIENE v. BUSH
Opinion of the Court
process standards, it would not end our inquiry. Habeas
corpus is a collateral process that exists, in Justice
Holmes’ words, to “cu[t] through all forms and g[o] to the
very tissue of the structure. It comes in from the outside,
not in subordination to the proceedings, and although
every form may have been preserved opens the inquiry
whether they have been more than an empty shell.”
Frank v. Mangum, 237 U. S. 309, 346 (1915) (dissenting
opinion). Even when the procedures authorizing detention
are structurally sound, the Suspension Clause remains
applicable and the writ relevant. See 2 Chambers, Course
of Lectures on English Law 1767–1773, at 6 (“Liberty may
be violated either by arbitrary imprisonment without law
or the appearance of law, or by a lawful magistrate for an
unlawful reason”). This is so, as Hayman and Swain
make clear, even where the prisoner is detained after a
criminal trial conducted in full accordance with the protec
tions of the Bill of Rights. Were this not the case, there
would have been no reason for the Court to inquire into
the adequacy of substitute habeas procedures in Hayman
and Swain. That the prisoners were detained pursuant to
the most rigorous proceedings imaginable, a full criminal
trial, would have been enough to render any habeas sub
stitute acceptable per se.
Although we make no judgment as to whether the
CSRTs, as currently constituted, satisfy due process stan
dards, we agree with petitioners that, even when all the
parties involved in this process act with diligence and in
good faith, there is considerable risk of error in the tribu
nal’s findings of fact. This is a risk inherent in any proc
ess that, in the words of the former Chief Judge of the
Court of Appeals, is “closed and accusatorial.” See Bis-
mullah III, 514 F. 3d, at 1296 (Ginsburg, C. J., concurring
in denial of rehearing en banc). And given that the conse
quence of error may be detention of persons for the dura
tion of hostilities that may last a generation or more, this
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is a risk too significant to ignore.
For the writ of habeas corpus, or its substitute, to func
tion as an effective and proper remedy in this context, the
court that conducts the habeas proceeding must have the
means to correct errors that occurred during the CSRT
proceedings. This includes some authority to assess the
sufficiency of the Government’s evidence against the
detainee. It also must have the authority to admit and
consider relevant exculpatory evidence that was not intro
duced during the earlier proceeding. Federal habeas
petitioners long have had the means to supplement the
record on review, even in the postconviction habeas set
ting. See Townsend v. Sain, 372 U. S. 293, 313 (1963),
overruled in part by Keeney v. Tamayo-Reyes, 504 U. S. 1,
5 (1992). Here that opportunity is constitutionally
required.
Consistent with the historic function and province of the
writ, habeas corpus review may be more circumscribed if
the underlying detention proceedings are more thorough
than they were here. In two habeas cases involving enemy
aliens tried for war crimes, In re Yamashita, 327 U. S. 1
(1946), and Ex parte Quirin, 317 U. S. 1 (1942), for exam
ple, this Court limited its review to determining whether
the Executive had legal authority to try the petitioners by
military commission. See Yamashita, supra, at 8 (“[O]n
application for habeas corpus we are not concerned with
the guilt or innocence of the petitioners. We consider here
only the lawful power of the commission to try the peti
tioner for the offense charged”); Quirin, supra, at 25 (“We
are not here concerned with any question of the guilt or
innocence of petitioners”). Military courts are not courts of
record. See Watkins, 3 Pet., at 209; Church 513. And the
procedures used to try General Yamashita have been
sharply criticized by Members of this Court. See Hamdan,
548 U. S., at 617; Yamashita, supra, at 41–81 (Rutledge,
J., dissenting). We need not revisit these cases, however.
58 BOUMEDIENE v. BUSH
Opinion of the Court
For on their own terms, the proceedings in Yamashita and
Quirin, like those in Eisentrager, had an adversarial
structure that is lacking here. See Yamashita, supra, at 5
(noting that General Yamashita was represented by six
military lawyers and that “[t]hroughout the proceedings
. . . defense counsel . . . demonstrated their professional
skill and resourcefulness and their proper zeal for the
defense with which they were charged”); Quirin, supra, at
23–24; Exec. Order No. 9185, 7 Fed. Reg. 5103 (1942)
(appointing counsel to represent the German saboteurs).
The extent of the showing required of the Government
in these cases is a matter to be determined. We need not
explore it further at this stage. We do hold that when the
judicial power to issue habeas corpus properly is invoked
the judicial officer must have adequate authority to make
a determination in light of the relevant law and facts and
to formulate and issue appropriate orders for relief, in
cluding, if necessary, an order directing the prisoner’s
release.
C
We now consider whether the DTA allows the Court of
Appeals to conduct a proceeding meeting these standards.
“[W]e are obligated to construe the statute to avoid [con
stitutional] problems” if it is “‘fairly possible’” to do so. St.
Cyr, 533 U. S., at 299–300 (quoting Crowell v. Benson, 285
U. S. 22, 62 (1932)). There are limits to this principle,
however. The canon of constitutional avoidance does not
supplant traditional modes of statutory interpretation.
See Clark v. Martinez, 543 U. S. 371, 385 (2005) (“The
canon of constitutional avoidance comes into play only
when, after the application of ordinary textual analysis,
the statute is found to be susceptible of more than one
construction; and the canon functions as a means of choos-
ing between them”). We cannot ignore the text and pur
pose of a statute in order to save it.
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The DTA does not explicitly empower the Court of Ap
peals to order the applicant in a DTA review proceeding
released should the court find that the standards and
procedures used at his CSRT hearing were insufficient to
justify detention. This is troubling. Yet, for present pur
poses, we can assume congressional silence permits a
constitutionally required remedy. In that case it would be
possible to hold that a remedy of release is impliedly
provided for. The DTA might be read, furthermore, to
allow the petitioners to assert most, if not all, of the legal
claims they seek to advance, including their most basic
claim: that the President has no authority under the
AUMF to detain them indefinitely. (Whether the Presi
dent has such authority turns on whether the AUMF
authorizes—and the Constitution permits—the indefinite
detention of “enemy combatants” as the Department of
Defense defines that term. Thus a challenge to the Presi
dent’s authority to detain is, in essence, a challenge to the
Department’s definition of enemy combatant, a “standard”
used by the CSRTs in petitioners’ cases.) At oral argu
ment, the Solicitor General urged us to adopt both these
constructions, if doing so would allow MCA §7 to remain
intact. See Tr. of Oral Arg. 37, 53.
The absence of a release remedy and specific language
allowing AUMF challenges are not the only constitutional
infirmities from which the statute potentially suffers,
however. The more difficult question is whether the DTA
permits the Court of Appeals to make requisite findings of
fact. The DTA enables petitioners to request “review” of
their CSRT determination in the Court of Appeals, DTA
§1005(e)(2)(B)(i), 119 Stat. 2742; but the “Scope of Review”
provision confines the Court of Appeals’ role to reviewing
whether the CSRT followed the “standards and proce
dures” issued by the Department of Defense and assessing
whether those “standards and procedures” are lawful.
§1005(e)(C), ibid. Among these standards is “the require
60 BOUMEDIENE v. BUSH
Opinion of the Court
ment that the conclusion of the Tribunal be supported by a
preponderance of the evidence . . . allowing a rebuttable
presumption in favor of the Government’s evidence.”
§1005(e)(C)(i), ibid.
Assuming the DTA can be construed to allow the Court
of Appeals to review or correct the CSRT’s factual deter
minations, as opposed to merely certifying that the tribu
nal applied the correct standard of proof, we see no way to
construe the statute to allow what is also constitutionally
required in this context: an opportunity for the detainee to
present relevant exculpatory evidence that was not made
part of the record in the earlier proceedings.
On its face the statute allows the Court of Appeals to
consider no evidence outside the CSRT record. In the
parallel litigation, however, the Court of Appeals deter
mined that the DTA allows it to order the production of all
“‘reasonably available information in the possession of the
U. S. Government bearing on the issue of whether the
detainee meets the criteria to be designated as an enemy
combatant,’” regardless of whether this evidence was put
before the CSRT. See Bismullah I, 501 F. 3d, at 180. The
Government, see Pet. for Cert. pending in Gates v. Bismul-
lah, No. 07–1054 (hereinafter Bismullah Pet.), with sup
port from five members of the Court of Appeals, see Bis-
mullah III, 514 F. 3d, at 1299 (Henderson, J., dissenting
from denial of rehearing en banc); id., at 1302 (opinion of
Randolph, J.) (same); id., at 1306 (opinion of Brown, J.)
(same), disagrees with this interpretation. For present
purposes, however, we can assume that the Court of Ap
peals was correct that the DTA allows introduction and
consideration of relevant exculpatory evidence that was
“reasonably available” to the Government at the time of
the CSRT but not made part of the record. Even so, the
DTA review proceeding falls short of being a constitution
ally adequate substitute, for the detainee still would have
no opportunity to present evidence discovered after the
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CSRT proceedings concluded.
Under the DTA the Court of Appeals has the power to
review CSRT determinations by assessing the legality of
standards and procedures. This implies the power to
inquire into what happened at the CSRT hearing and,
perhaps, to remedy certain deficiencies in that proceeding.
But should the Court of Appeals determine that the CSRT
followed appropriate and lawful standards and proce
dures, it will have reached the limits of its jurisdiction.
There is no language in the DTA that can be construed to
allow the Court of Appeals to admit and consider newly
discovered evidence that could not have been made part of
the CSRT record because it was unavailable to either the
Government or the detainee when the CSRT made its
findings. This evidence, however, may be critical to the
detainee’s argument that he is not an enemy combatant
and there is no cause to detain him.
This is not a remote hypothetical. One of the petition
ers, Mohamed Nechla, requested at his CSRT hearing that
the Government contact his employer. The petitioner
claimed the employer would corroborate Nechla’s conten
tion he had no affiliation with al Qaeda. Although the
CSRT determined this testimony would be relevant, it also
found the witness was not reasonably available to testify
at the time of the hearing. Petitioner’s counsel, however,
now represents the witness is available to be heard. See
Brief for Boumediene Petitioners 5. If a detainee can
present reasonably available evidence demonstrating
there is no basis for his continued detention, he must have
the opportunity to present this evidence to a habeas cor
pus court. Even under the Court of Appeals’ generous
construction of the DTA, however, the evidence identified
by Nechla would be inadmissible in a DTA review proceed
ing. The role of an Article III court in the exercise of its
habeas corpus function cannot be circumscribed in this
manner.
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Opinion of the Court
By foreclosing consideration of evidence not presented or
reasonably available to the detainee at the CSRT proceed
ings, the DTA disadvantages the detainee by limiting the
scope of collateral review to a record that may not be
accurate or complete. In other contexts, e.g., in post-trial
habeas cases where the prisoner already has had a full
and fair opportunity to develop the factual predicate of his
claims, similar limitations on the scope of habeas review
may be appropriate. See Williams v. Taylor, 529 U. S.
420, 436–437 (2000) (noting that §2254 “does not equate
prisoners who exercise diligence in pursuing their claims
with those who do not”). In this context, however, where
the underlying detention proceedings lack the necessary
adversarial character, the detainee cannot be held respon
sible for all deficiencies in the record.
The Government does not make the alternative argu
ment that the DTA allows for the introduction of previ
ously unavailable exculpatory evidence on appeal. It does
point out, however, that if a detainee obtains such evi
dence, he can request that the Deputy Secretary of De
fense convene a new CSRT. See Supp. Brief for Respon
dents 4. Whatever the merits of this procedure, it is an
insufficient replacement for the factual review these de
tainees are entitled to receive through habeas corpus. The
Deputy Secretary’s determination whether to initiate new
proceedings is wholly a discretionary one. See Dept. of
Defense, Office for the Administrative Review of the De
tention of Enemy Combatants, Instruction 5421.1, Proce
dure for Review of “New Evidence” Relating to Enemy
Combatant (EC) Status ¶5(d) (May 7, 2007) (Instruction
5421.1) (“The decision to convene a CSRT to reconsider the
basis of the detainee’s [enemy combatant] status in light of
‘new evidence’ is a matter vested in the unreviewable
discretion of the [Deputy Secretary of Defense]”). And we
see no way to construe the DTA to allow a detainee to
challenge the Deputy Secretary’s decision not to open a
63 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
new CSRT pursuant to Instruction 5421.1. Congress
directed the Secretary of Defense to devise procedures for
considering new evidence, see DTA §1005(a)(3), but the
detainee has no mechanism for ensuring that those proce
dures are followed. DTA §1005(e)(2)(C), 119 Stat. 2742,
makes clear that the Court of Appeals’ jurisdiction is
“limited to consideration of . . . whether the status deter
mination of the Combatant Status Review Tribunal with
regard to such alien was consistent with the standards
and procedures specified by the Secretary of Defense . . .
and . . . whether the use of such standards and procedures
to make the determination is consistent with the Constitu
tion and laws of the United States.” DTA §1005(e)(2)(A),
ibid., further narrows the Court of Appeals’ jurisdiction to
reviewing “any final decision of a Combatant Status Re
view Tribunal that an alien is properly detained as an
enemy combatant.” The Deputy Secretary’s determination
whether to convene a new CSRT is not a “status determi
nation of the Combatant Status Review Tribunal,” much
less a “final decision” of that body.
We do not imply DTA review would be a constitutionally
sufficient replacement for habeas corpus but for these
limitations on the detainee’s ability to present exculpatory
evidence. For even if it were possible, as a textual matter,
to read into the statute each of the necessary procedures
we have identified, we could not overlook the cumulative
effect of our doing so. To hold that the detainees at Guan
tanamo may, under the DTA, challenge the President’s
legal authority to detain them, contest the CSRT’s find
ings of fact, supplement the record on review with excul
patory evidence, and request an order of release would
come close to reinstating the §2241 habeas corpus process
Congress sought to deny them. The language of the stat
ute, read in light of Congress’ reasons for enacting it,
cannot bear this interpretation. Petitioners have met
their burden of establishing that the DTA review process
64 BOUMEDIENE v. BUSH
Opinion of the Court
is, on its face, an inadequate substitute for habeas corpus.
Although we do not hold that an adequate substitute
must duplicate §2241 in all respects, it suffices that the
Government has not established that the detainees’ access
to the statutory review provisions at issue is an adequate
substitute for the writ of habeas corpus. MCA §7 thus
effects an unconstitutional suspension of the writ. In view
of our holding we need not discuss the reach of the writ
with respect to claims of unlawful conditions of treatment
or confinement.
VI
A
In light of our conclusion that there is no jurisdictional
bar to the District Court’s entertaining petitioners’ claims
the question remains whether there are prudential barri
ers to habeas corpus review under these circumstances.
The Government argues petitioners must seek review of
their CSRT determinations in the Court of Appeals before
they can proceed with their habeas corpus actions in the
District Court. As noted earlier, in other contexts and for
prudential reasons this Court has required exhaustion of
alternative remedies before a prisoner can seek federal
habeas relief. Most of these cases were brought by prison
ers in state custody, e.g., Ex parte Royall, 117 U. S. 241,
and thus involved federalism concerns that are not rele
vant here. But we have extended this rule to require
defendants in courts-martial to exhaust their military
appeals before proceeding with a federal habeas corpus
action. See Schlesinger, 420 U. S., at 758.
The real risks, the real threats, of terrorist attacks are
constant and not likely soon to abate. The ways to disrupt
our life and laws are so many and unforeseen that the
Court should not attempt even some general catalogue of
crises that might occur. Certain principles are apparent,
however. Practical considerations and exigent circum
65 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
stances inform the definition and reach of the law’s writs,
including habeas corpus. The cases and our tradition
reflect this precept.
In cases involving foreign citizens detained abroad by
the Executive, it likely would be both an impractical and
unprecedented extension of judicial power to assume that
habeas corpus would be available at the moment the
prisoner is taken into custody. If and when habeas corpus
jurisdiction applies, as it does in these cases, then proper
deference can be accorded to reasonable procedures for
screening and initial detention under lawful and proper
conditions of confinement and treatment for a reasonable
period of time. Domestic exigencies, furthermore, might
also impose such onerous burdens on the Government that
here, too, the Judicial Branch would be required to devise
sensible rules for staying habeas corpus proceedings until
the Government can comply with its requirements in a
responsible way. Cf. Ex parte Milligan, 4 Wall., at 127
(“If, in foreign invasion or civil war, the courts are actually
closed, and it is impossible to administer criminal justice
according to law, then, on the theatre of active military
operations, where war really prevails, there is a necessity
to furnish a substitute for the civil authority, thus over
thrown, to preserve the safety of the army and society; and
as no power is left but the military, it is allowed to govern
by martial rule until the laws can have their free course”).
Here, as is true with detainees apprehended abroad, a
relevant consideration in determining the courts’ role is
whether there are suitable alternative processes in place
to protect against the arbitrary exercise of governmental
power.
The cases before us, however, do not involve detainees
who have been held for a short period of time while await
ing their CSRT determinations. Were that the case, or
were it probable that the Court of Appeals could complete
a prompt review of their applications, the case for requir
66 BOUMEDIENE v. BUSH
Opinion of the Court
ing temporary abstention or exhaustion of alternative
remedies would be much stronger. These qualifications no
longer pertain here. In some of these cases six years have
elapsed without the judicial oversight that habeas corpus
or an adequate substitute demands. And there has been
no showing that the Executive faces such onerous burdens
that it cannot respond to habeas corpus actions. To re
quire these detainees to complete DTA review before
proceeding with their habeas corpus actions would be to
require additional months, if not years, of delay. The first
DTA review applications were filed over a year ago, but no
decisions on the merits have been issued. While some
delay in fashioning new procedures is unavoidable, the
costs of delay can no longer be borne by those who are held
in custody. The detainees in these cases are entitled to a
prompt habeas corpus hearing.
Our decision today holds only that the petitioners before
us are entitled to seek the writ; that the DTA review
procedures are an inadequate substitute for habeas cor
pus; and that the petitioners in these cases need not ex
haust the review procedures in the Court of Appeals before
proceeding with their habeas actions in the District Court.
The only law we identify as unconstitutional is MCA §7,
28 U. S. C. A. §2241(e) (Supp. 2007). Accordingly, both the
DTA and the CSRT process remain intact. Our holding
with regard to exhaustion should not be read to imply that
a habeas court should intervene the moment an enemy
combatant steps foot in a territory where the writ runs.
The Executive is entitled to a reasonable period of time to
determine a detainee’s status before a court entertains
that detainee’s habeas corpus petition. The CSRT process
is the mechanism Congress and the President set up to
deal with these issues. Except in cases of undue delay,
federal courts should refrain from entertaining an enemy
combatant’s habeas corpus petition at least until after the
Department, acting via the CSRT, has had a chance to
67 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
review his status.
B
Although we hold that the DTA is not an adequate and
effective substitute for habeas corpus, it does not follow
that a habeas corpus court may disregard the dangers the
detention in these cases was intended to prevent. Felker,
Swain, and Hayman stand for the proposition that the
Suspension Clause does not resist innovation in the field
of habeas corpus. Certain accommodations can be made to
reduce the burden habeas corpus proceedings will place on
the military without impermissibly diluting the protec
tions of the writ.
In the DTA Congress sought to consolidate review of
petitioners’ claims in the Court of Appeals. Channeling
future cases to one district court would no doubt reduce
administrative burdens on the Government. This is a
legitimate objective that might be advanced even without
an amendment to §2241. If, in a future case, a detainee
files a habeas petition in another judicial district in which
a proper respondent can be served, see Rumsfeld v.
Padilla, 542 U. S. 426, 435–436 (2004), the Government
can move for change of venue to the court that will hear
these petitioners’ cases, the United States District Court
for the District of Columbia. See 28 U. S. C. §1404(a);
Braden v. 30th Judicial Circuit Court of Ky., 410 U. S.
484, 499, n. 15 (1973).
Another of Congress’ reasons for vesting exclusive juris
diction in the Court of Appeals, perhaps, was to avoid the
widespread dissemination of classified information. The
Government has raised similar concerns here and else
where. See Brief for Respondents 55–56; Bismullah Pet.
30. We make no attempt to anticipate all of the eviden
tiary and access-to-counsel issues that will arise during
the course of the detainees’ habeas corpus proceedings.
We recognize, however, that the Government has a legiti
68 BOUMEDIENE v. BUSH
Opinion of the Court
mate interest in protecting sources and methods of intelli
gence gathering; and we expect that the District Court will
use its discretion to accommodate this interest to the
greatest extent possible. Cf. United States v. Reynolds,
345 U. S. 1, 10 (1953) (recognizing an evidentiary privilege
in a civil damages case where “there is a reasonable dan
ger that compulsion of the evidence will expose military
matters which, in the interest of national security, should
not be divulged”).
These and the other remaining questions are within the
expertise and competence of the District Court to address
in the first instance.
* * *
In considering both the procedural and substantive
standards used to impose detention to prevent acts of
terrorism, proper deference must be accorded to the politi
cal branches. See United States v. Curtiss-Wright Export
Corp., 299 U. S. 304, 320 (1936). Unlike the President and
some designated Members of Congress, neither the Mem
bers of this Court nor most federal judges begin the day
with briefings that may describe new and serious threats
to our Nation and its people. The law must accord the
Executive substantial authority to apprehend and detain
those who pose a real danger to our security.
Officials charged with daily operational responsibility
for our security may consider a judicial discourse on the
history of the Habeas Corpus Act of 1679 and like matters
to be far removed from the Nation’s present, urgent con
cerns. Established legal doctrine, however, must be con
sulted for its teaching. Remote in time it may be; irrele
vant to the present it is not. Security depends upon a
sophisticated intelligence apparatus and the ability of our
Armed Forces to act and to interdict. There are further
considerations, however. Security subsists, too, in fidelity
to freedom’s first principles. Chief among these are free
69 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
dom from arbitrary and unlawful restraint and the per
sonal liberty that is secured by adherence to the separa
tion of powers. It is from these principles that the judicial
authority to consider petitions for habeas corpus relief
derives.
Our opinion does not undermine the Executive’s powers
as Commander in Chief. On the contrary, the exercise of
those powers is vindicated, not eroded, when confirmed by
the Judicial Branch. Within the Constitution’s separa
tion-of-powers structure, few exercises of judicial power
are as legitimate or as necessary as the responsibility to
hear challenges to the authority of the Executive to im
prison a person. Some of these petitioners have been in
custody for six years with no definitive judicial determina
tion as to the legality of their detention. Their access to
the writ is a necessity to determine the lawfulness of their
status, even if, in the end, they do not obtain the relief
they seek.
Because our Nation’s past military conflicts have been of
limited duration, it has been possible to leave the outer
boundaries of war powers undefined. If, as some fear,
terrorism continues to pose dangerous threats to us for
years to come, the Court might not have this luxury. This
result is not inevitable, however. The political branches,
consistent with their independent obligations to interpret
and uphold the Constitution, can engage in a genuine
debate about how best to preserve constitutional values
while protecting the Nation from terrorism. Cf. Hamdan,
548 U. S., at 636 (BREYER, J., concurring) (“[J]udicial
insistence upon that consultation does not weaken our
Nation’s ability to deal with danger. To the contrary, that
insistence strengthens the Nation’s ability to determine—
through democratic means—how best to do so”).
It bears repeating that our opinion does not address the
content of the law that governs petitioners’ detention.
That is a matter yet to be determined. We hold that peti
70 BOUMEDIENE v. BUSH
Opinion of the Court
tioners may invoke the fundamental procedural protec
tions of habeas corpus. The laws and Constitution are
designed to survive, and remain in force, in extraordinary
times. Liberty and security can be reconciled; and in our
system they are reconciled within the framework of the
law. The Framers decided that habeas corpus, a right of
first importance, must be a part of that framework, a part
of that law.
The determination by the Court of Appeals that the
Suspension Clause and its protections are inapplicable to
petitioners was in error. The judgment of the Court of
Appeals is reversed. The cases are remanded to the Court
of Appeals with instructions that it remand the cases to
the District Court for proceedings consistent with this
opinion.
It is so ordered.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
SOUTER, J., concurring
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
JUSTICE SOUTER, with whom JUSTICE GINSBURG and
JUSTICE BREYER join, concurring.
I join the Court’s opinion in its entirety and add this
afterword only to emphasize two things one might over-
look after reading the dissents.
Four years ago, this Court in Rasul v. Bush, 542 U. S.
466 (2004) held that statutory habeas jurisdiction ex-
tended to claims of foreign nationals imprisoned by the
United States at Guantanamo Bay, “to determine the
legality of the Executive’s potentially indefinite detention”
of them, id., at 485. Subsequent legislation eliminated the
statutory habeas jurisdiction over these claims, so that
now there must be constitutionally based jurisdiction or
none at all. JUSTICE SCALIA is thus correct that here, for
the first time, this Court holds there is (he says “confers”)
constitutional habeas jurisdiction over aliens imprisoned
2 BOUMEDIENE v. BUSH
SOUTER, J., concurring
by the military outside an area of de jure national sover-
eignty, see post, at 1 (dissenting opinion). But no one who
reads the Court’s opinion in Rasul could seriously doubt
that the jurisdictional question must be answered the
same way in purely constitutional cases, given the Court’s
reliance on the historical background of habeas generally
in answering the statutory question. See, e.g., 542 U. S.,
at 473, 481–483, and nn. 11–14. Indeed, the Court in
Rasul directly answered the very historical question that
JUSTICE SCALIA says is dispositive, see post, at 18; it wrote
that “[a]pplication of the habeas statute to persons de-
tained at [Guantanamo] is consistent with the historical
reach of the writ of habeas corpus,” 542 U. S., at 481.
JUSTICE SCALIA dismisses the statement as dictum, see
post, at 21, but if dictum it was, it was dictum well consid-
ered, and it stated the view of five Members of this Court
on the historical scope of the writ. Of course, it takes more
than a quotation from Rasul, however much on point, to
resolve the constitutional issue before us here, which the
majority opinion has explored afresh in the detail it de-
serves. But whether one agrees or disagrees with today’s
decision, it is no bolt out of the blue.
A second fact insufficiently appreciated by the dissents
is the length of the disputed imprisonments, some of the
prisoners represented here today having been locked up
for six years, ante, at 66 (opinion of the Court). Hence the
hollow ring when the dissenters suggest that the Court is
somehow precipitating the judiciary into reviewing claims
that the military (subject to appeal to the Court of Appeals
for the District of Columbia Circuit) could handle within
some reasonable period of time. See, e.g., post, at 3 (opin-
ion of ROBERTS, C. J.) (“[T]he Court should have declined
to intervene until the D. C. Circuit had assessed the na-
ture and validity of the congressionally mandated proceed-
ings in a given detainee’s case”); post, at 6 (“[I]t is not
necessary to consider the availability of the writ until the
3 Cite as: 553 U. S. ____ (2008)
SOUTER, J., concurring
statutory remedies have been shown to be inadequate”);
post, at 8 (“[The Court] rushes to decide the fundamental
question of the reach of habeas corpus when the function-
ing of the DTA may make that decision entirely unneces-
sary”). These suggestions of judicial haste are all the more
out of place given the Court’s realistic acknowledgment
that in periods of exigency the tempo of any habeas review
must reflect the immediate peril facing the country. See
ante, at 64–65.
It is in fact the very lapse of four years from the time
Rasul put everyone on notice that habeas process was
available to Guantanamo prisoners, and the lapse of six
years since some of these prisoners were captured and
incarcerated, that stand at odds with the repeated sugges-
tions of the dissenters that these cases should be seen as a
judicial victory in a contest for power between the Court
and the political branches. See post, at 2, 3, 28 (ROBERTS,
C. J., dissenting); post, at 5, 6, 17, 18, 25 (SCALIA, J., dis-
senting). The several answers to the charge of triumphal-
ism might start with a basic fact of Anglo-American con-
stitutional history: that the power, first of the Crown and
now of the Executive Branch of the United States, is nec-
essarily limited by habeas corpus jurisdiction to enquire
into the legality of executive detention. And one could
explain that in this Court’s exercise of responsibility to
preserve habeas corpus something much more significant
is involved than pulling and hauling between the judicial
and political branches. Instead, though, it is enough to
repeat that some of these petitioners have spent six years
behind bars. After six years of sustained executive deten-
tions in Guantanamo, subject to habeas jurisdiction but
without any actual habeas scrutiny, today’s decision is no
judicial victory, but an act of perseverance in trying to
make habeas review, and the obligation of the courts to
provide it, mean something of value both to prisoners and
to the Nation. See ante, at 69.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA,
JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
Today the Court strikes down as inadequate the most
generous set of procedural protections ever afforded aliens
detained by this country as enemy combatants. The po
litical branches crafted these procedures amidst an ongo
ing military conflict, after much careful investigation and
thorough debate. The Court rejects them today out of
hand, without bothering to say what due process rights
the detainees possess, without explaining how the statute
fails to vindicate those rights, and before a single peti
tioner has even attempted to avail himself of the law’s
operation. And to what effect? The majority merely re
places a review system designed by the people’s represen
tatives with a set of shapeless procedures to be defined by
federal courts at some future date. One cannot help but
2 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
think, after surveying the modest practical results of the
majority’s ambitious opinion, that this decision is not
really about the detainees at all, but about control of
federal policy regarding enemy combatants.
The majority is adamant that the Guantanamo detain
ees are entitled to the protections of habeas corpus—its
opinion begins by deciding that question. I regard the
issue as a difficult one, primarily because of the unique
and unusual jurisdictional status of Guantanamo Bay. I
nonetheless agree with JUSTICE SCALIA’s analysis of our
precedents and the pertinent history of the writ, and
accordingly join his dissent. The important point for me,
however, is that the Court should have resolved these
cases on other grounds. Habeas is most fundamentally a
procedural right, a mechanism for contesting the legality
of executive detention. The critical threshold question in
these cases, prior to any inquiry about the writ’s scope, is
whether the system the political branches designed pro
tects whatever rights the detainees may possess. If so,
there is no need for any additional process, whether called
“habeas” or something else.
Congress entrusted that threshold question in the first
instance to the Court of Appeals for the District of Colum
bia Circuit, as the Constitution surely allows Congress to do.
See Detainee Treatment Act of 2005 (DTA), §1005(e)(2)(A),
119 Stat. 2742. But before the D. C. Circuit has addressed
the issue, the Court cashiers the statute, and without
answering this critical threshold question itself. The
Court does eventually get around to asking whether re
view under the DTA is, as the Court frames it, an “ade
quate substitute” for habeas, ante, at 42, but even then its
opinion fails to determine what rights the detainees pos
sess and whether the DTA system satisfies them. The
majority instead compares the undefined DTA process to
an equally undefined habeas right—one that is to be given
shape only in the future by district courts on a case-by
3 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
case basis. This whole approach is misguided.
It is also fruitless. How the detainees’ claims will be
decided now that the DTA is gone is anybody’s guess. But
the habeas process the Court mandates will most likely
end up looking a lot like the DTA system it replaces, as
the district court judges shaping it will have to reconcile
review of the prisoners’ detention with the undoubted
need to protect the American people from the terrorist
threat—precisely the challenge Congress undertook in
drafting the DTA. All that today’s opinion has done is
shift responsibility for those sensitive foreign policy and
national security decisions from the elected branches to
the Federal Judiciary.
I believe the system the political branches constructed
adequately protects any constitutional rights aliens cap
tured abroad and detained as enemy combatants may
enjoy. I therefore would dismiss these cases on that
ground. With all respect for the contrary views of the
majority, I must dissent.
I
The Court’s opinion makes plain that certiorari to re
view these cases should never have been granted. As two
Members of today’s majority once recognized, “traditional
rules governing our decision of constitutional questions
and our practice of requiring the exhaustion of available
remedies . . . make it appropriate to deny these petitions.”
Boumediene v. Bush, 549 U. S. ___ (2007) (slip op., at 1)
(citation omitted) (statement of STEVENS and KENNEDY,
JJ., respecting denial of certiorari). Just so. Given the
posture in which these cases came to us, the Court should
have declined to intervene until the D. C. Circuit had
assessed the nature and validity of the congressionally
mandated proceedings in a given detainee’s case.
The political branches created a two-part, collateral
review procedure for testing the legality of the prisoners’
4 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
detention: It begins with a hearing before a Combatant
Status Review Tribunal (CSRT) followed by review in the
D. C. Circuit. As part of that review, Congress authorized
the D. C. Circuit to decide whether the CSRT proceedings
are consistent with “the Constitution and laws of the
United States.” DTA §1005(e)(2)(C), 119 Stat. 2742. No
petitioner, however, has invoked the D. C. Circuit review
the statute specifies. See 476 F. 3d 981, 994, and n. 16
(CADC 2007); Brief for Federal Respondents 41–43. As a
consequence, that court has had no occasion to decide
whether the CSRT hearings, followed by review in the
Court of Appeals, vindicate whatever constitutional and
statutory rights petitioners may possess. See 476 F. 3d, at
994, and n. 16.
Remarkably, this Court does not require petitioners to
exhaust their remedies under the statute; it does not wait
to see whether those remedies will prove sufficient to
protect petitioners’ rights. Instead, it not only denies the
D. C. Circuit the opportunity to assess the statute’s reme
dies, it refuses to do so itself: the majority expressly de
clines to decide whether the CSRT procedures, coupled
with Article III review, satisfy due process. See ante, at
54.
It is grossly premature to pronounce on the detainees’
right to habeas without first assessing whether the reme
dies the DTA system provides vindicate whatever rights
petitioners may claim. The plurality in Hamdi v. Rums-
feld, 542 U. S. 507, 533 (2004), explained that the Consti
tution guaranteed an American citizen challenging his
detention as an enemy combatant the right to “notice of
the factual basis for his classification, and a fair opportu
nity to rebut the Government’s factual assertions before a
neutral decisionmaker.” The plurality specifically stated
that constitutionally adequate collateral process could be
provided “by an appropriately authorized and properly
constituted military tribunal,” given the “uncommon
5 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
potential to burden the Executive at a time of ongoing
military conflict.” Id., at 533, 538. This point is directly
pertinent here, for surely the Due Process Clause does not
afford non-citizens in such circumstances greater protec
tion than citizens are due.
If the CSRT procedures meet the minimal due process
requirements outlined in Hamdi, and if an Article III
court is available to ensure that these procedures are
followed in future cases, see id., at 536; INS v. St. Cyr, 533
U. S. 289, 304 (2001); Heikkila v. Barber, 345 U. S. 229,
236 (1953), there is no need to reach the Suspension
Clause question. Detainees will have received all the
process the Constitution could possibly require, whether
that process is called “habeas” or something else. The
question of the writ’s reach need not be addressed.
This is why the Court should have required petitioners
to exhaust their remedies under the statute. As we ex
plained in Gusik v. Schilder, 340 U. S. 128, 132 (1950), “If
an available procedure has not been employed to rectify
the alleged error” petitioners complain of, “any interfer
ence by [a] federal court may be wholly needless. The
procedure established to police the errors of the tribunal
whose judgment is challenged may be adequate for the
occasion.” Because the majority refuses to assess whether
the CSRTs comport with the Constitution, it ends up
razing a system of collateral review that it admits may in
fact satisfy the Due Process Clause and be “structurally
sound.” Ante, at 56. But if the collateral review proce
dures Congress has provided—CSRT review coupled with
Article III scrutiny—are sound, interference by a federal
habeas court may be entirely unnecessary.
The only way to know is to require petitioners to use the
alternative procedures Congress designed. Mandating
that the petitioners exhaust their statutory remedies “is in
no sense a suspension of the writ of habeas corpus. It is
merely a deferment of resort to the writ until other correc
6 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
tive procedures are shown to be futile.” Gusik, supra, at
132. So too here, it is not necessary to consider the avail
ability of the writ until the statutory remedies have been
shown to be inadequate to protect the detainees’ rights.
Cf. 28 U. S. C. §2254(b)(1)(A) (“An application for a writ of
habeas corpus . . . shall not be granted unless it appears
that . . . the applicant has exhausted the remedies avail
able in the courts of the State”). Respect for the judg
ments of Congress—whose Members take the same oath
we do to uphold the Constitution—requires no less.
In the absence of any assessment of the DTA’s remedies,
the question whether detainees are entitled to habeas is
an entirely speculative one. Our precedents have long
counseled us to avoid deciding such hypothetical questions
of constitutional law. See Spector Motor Service, Inc. v.
McLaughlin, 323 U. S. 101, 105 (1944) (“If there is one
doctrine more deeply rooted than any other in the process
of constitutional adjudication, it is that we ought not to
pass on questions of constitutionality . . . unless such
[questions are] unavoidable”); see also Ashwander v. TVA,
297 U. S. 288, 347 (1936) (Brandeis, J., concurring) (Con
stitutional questions should not be decided unless “ ‘abso
lutely necessary to a decision of the case’” (quoting Burton
v. United States, 196 U. S. 283, 295 (1905))). This is a
“fundamental rule of judicial restraint.” Three Affiliated
Tribes of Fort Berthold Reservation v. Wold Engineering,
P. C., 467 U. S. 138, 157 (1984).
The Court acknowledges that “the ordinary course”
would be not to decide the constitutionality of the DTA at
this stage, but abandons that “ordinary course” in light of
the “gravity” of the constitutional issues presented and the
prospect of additional delay. Ante, at 43. It is, however,
precisely when the issues presented are grave that adher
ence to the ordinary course is most important. A principle
applied only when unimportant is not much of a principle
at all, and charges of judicial activism are most effectively
7 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
rebutted when courts can fairly argue they are following
normal practices.
The Court is also concerned that requiring petitioners to
pursue “DTA review before proceeding with their habeas
corpus actions” could involve additional delay. Ante, at 66.
The nature of the habeas remedy the Court instructs
lower courts to craft on remand, however, is far more
unsettled than the process Congress provided in the DTA.
See ante, at 69 (“[O]ur opinion does not address the con
tent of the law that governs petitioners’ detention. That is
a matter yet to be determined”). There is no reason to
suppose that review according to procedures the Federal
Judiciary will design, case by case, will proceed any faster
than the DTA process petitioners disdained.
On the contrary, the system the Court has launched
(and directs lower courts to elaborate) promises to take
longer. The Court assures us that before bringing their
habeas petitions, detainees must usually complete the
CSRT process. See ante, at 66. Then they may seek re
view in federal district court. Either success or failure
there will surely result in an appeal to the D. C. Circuit—
exactly where judicial review starts under Congress’s
system. The effect of the Court’s decision is to add addi
tional layers of quite possibly redundant review. And
because nobody knows how these new layers of “habeas”
review will operate, or what new procedures they will
require, their contours will undoubtedly be subject to fresh
bouts of litigation. If the majority were truly concerned
about delay, it would have required petitioners to use the
DTA process that has been available to them for 21⁄2 years,
with its Article III review in the D. C. Circuit. That sys
tem might well have provided petitioners all the relief to
which they are entitled long before the Court’s newly
installed habeas review could hope to do so.1
——————
1
In light of the foregoing, the concurrence is wrong to suggest that I
8 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
The Court’s refusal to require petitioners to exhaust the
remedies provided by Congress violates the “traditional
rules governing our decision of constitutional questions.”
Boumediene, 549 U. S., at ___ (slip op., at 1) (statement of
STEVENS and KENNEDY, JJ., respecting denial of certio
rari). The Court’s disrespect for these rules makes its
decision an awkward business. It rushes to decide the
fundamental question of the reach of habeas corpus when
the functioning of the DTA may make that decision entirely
unnecessary, and it does so with scant idea of how DTA
judicial review will actually operate.
II
The majority’s overreaching is particularly egregious
given the weakness of its objections to the DTA. Simply
put, the Court’s opinion fails on its own terms. The major
ity strikes down the statute because it is not an “adequate
substitute” for habeas review, ante, at 42, but fails to show
what rights the detainees have that cannot be vindicated
by the DTA system.
Because the central purpose of habeas corpus is to test
the legality of executive detention, the writ requires most
fundamentally an Article III court able to hear the pris
——————
“insufficiently appreciat[e]” the issue of delay in these cases. See ante,
at 2 (opinion of SOUTER, J.). This Court issued its decisions in Rasul v.
Bush, 542 U. S. 466, and Hamdi v. Rumsfeld 542 U. S. 507, in 2004.
The concurrence makes it sound as if the political branches have done
nothing in the interim. In fact, Congress responded 18 months later by
enacting the DTA. Congress cannot be faulted for taking that time to
consider how best to accommodate both the detainees’ interests and the
need to keep the American people safe. Since the DTA became law,
petitioners have steadfastly refused to avail themselves of the statute’s
review mechanisms. It is unfair to complain that the DTA system
involves too much delay when petitioners have consistently refused to
use it, preferring to litigate instead. Today’s decision obligating district
courts to craft new procedures to replace those in the DTA will only
prolong the process—and delay relief.
9 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
oner’s claims and, when necessary, order release. See
Brown v. Allen, 344 U. S. 443, 533 (1953) (Jackson, J.,
concurring in result). Beyond that, the process a given
prisoner is entitled to receive depends on the circum
stances and the rights of the prisoner. See Mathews v.
Eldridge, 424 U. S. 319, 335 (1976). After much hemming
and hawing, the majority appears to concede that the DTA
provides an Article III court competent to order release.
See ante, at 61. The only issue in dispute is the process
the Guantanamo prisoners are entitled to use to test the
legality of their detention. Hamdi concluded that Ameri
can citizens detained as enemy combatants are entitled to
only limited process, and that much of that process could
be supplied by a military tribunal, with review to follow in
an Article III court. That is precisely the system we have
here. It is adequate to vindicate whatever due process
rights petitioners may have.
A
The Court reaches the opposite conclusion partly be
cause it misreads the statute. The majority appears not to
understand how the review system it invalidates actually
works—specifically, how CSRT review and review by the
D. C. Circuit fit together. After briefly acknowledging in
its recitation of the facts that the Government designed
the CSRTs “to comply with the due process requirements
identified by the plurality in Hamdi,” ante, at 3, the Court
proceeds to dismiss the tribunal proceedings as no more
than a suspect method used by the Executive for deter
mining the status of the detainees in the first instance, see
ante, at 43. This leads the Court to treat the review the
DTA provides in the D. C. Circuit as the only opportunity
detainees have to challenge their status determination.
See ante, at 49.
The Court attempts to explain its glancing treatment of
the CSRTs by arguing that “[w]hether one characterizes
10 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
the CSRT process as direct review of the Executive’s bat
tlefield determination . . . or as the first step in the collat
eral review of a battlefield determination makes no differ
ence.” Ante, at 54. First of all, the majority is quite wrong
to dismiss the Executive’s determination of detainee
status as no more than a “battlefield” judgment, as if it
were somehow provisional and made in great haste. In
fact, detainees are designated “enemy combatants” only
after “multiple levels of review by military officers and
officials of the Department of Defense.” Memorandum of
the Secretary of the Navy, Implementation of Combatant
Status Review Tribunal Procedures for Enemy Combat
ants Detained at Guantanamo Bay Naval Base (July 29,
2004), App. J to Pet. for Cert. in No. 06–1196, p. 150 (here
inafter Implementation Memo).
The majority is equally wrong to characterize the
CSRTs as part of that initial determination process. They
are instead a means for detainees to challenge the Gov
ernment’s determination. The Executive designed the
CSRTs to mirror Army Regulation 190–8, see Brief for
Federal Respondents 48, the very procedural model the
plurality in Hamdi said provided the type of process an
enemy combatant could expect from a habeas court, see
542 U. S., at 538 (plurality opinion). The CSRTs operate
much as habeas courts would if hearing the detainee’s
collateral challenge for the first time: They gather evi
dence, call witnesses, take testimony, and render a deci
sion on the legality of the Government’s detention. See
Implementation Memo, App. J to Pet. for Cert. in No. 06–
1196, at 153–162. If the CSRT finds a particular detainee
has been improperly held, it can order release. See id., at
164.
The majority insists that even if “the CSRTs satisf[ied]
due process standards,” full habeas review would still be
necessary, because habeas is a collateral remedy available
even to prisoners “detained pursuant to the most rigorous
11 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
proceedings imaginable.” Ante, at 55, 56. This comment
makes sense only if the CSRTs are incorrectly viewed as a
method used by the Executive for determining the prison
ers’ status, and not as themselves part of the collateral
review to test the validity of that determination. See
Gusik, 340 U. S., at 132. The majority can deprecate the
importance of the CSRTs only by treating them as some
thing they are not.
The use of a military tribunal such as the CSRTs to
review the aliens’ detention should be familiar to this
Court in light of the Hamdi plurality, which said that the
due process rights enjoyed by American citizens detained
as enemy combatants could be vindicated “by an appropri
ately authorized and properly constituted military tribu
nal.” 542 U. S., at 538. The DTA represents Congress’
considered attempt to provide the accused alien combat
ants detained at Guantanamo a constitutionally adequate
opportunity to contest their detentions before just such a
tribunal.
But Congress went further in the DTA. CSRT review is
just the first tier of collateral review in the DTA system.
The statute provides additional review in an Article III
court. Given the rationale of today’s decision, it is well
worth recalling exactly what the DTA provides in this
respect. The statute directs the D. C. Circuit to consider
whether a particular alien’s status determination “was
consistent with the standards and procedures specified by
the Secretary of Defense” and “whether the use of such
standards and procedures to make the determination is
consistent with the Constitution and laws of the United
States.” DTA §1005(e)(2)(C), 119 Stat. 2742. That is, a
court determines whether the CSRT procedures are consti
tutional, and a court determines whether those procedures
were followed in a particular case.
In short, the Hamdi plurality concluded that this type of
review would be enough to satisfy due process, even for
12 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
citizens. See 542 U. S., at 538. Congress followed the
Court’s lead, only to find itself the victim of a constitu
tional bait and switch.
Hamdi merits scant attention from the Court—a re
markable omission, as Hamdi bears directly on the issues
before us. The majority attempts to dismiss Hamdi’s
relevance by arguing that because the availability of
§2241 federal habeas was never in doubt in that case, “the
Court had no occasion to define the necessary scope of
habeas review . . . in the context of enemy combatant
detentions.” Ante, at 55. Hardly. Hamdi was all about
the scope of habeas review in the context of enemy com
batant detentions. The petitioner, an American citizen
held within the United States as an enemy combatant,
invoked the writ to challenge his detention. 542 U. S., at
510–511. After “a careful examination both of the writ . . .
and of the Due Process Clause,” this Court enunciated the
“basic process” the Constitution entitled Hamdi to expect
from a habeas court under §2241. Id., at 525, 534. That
process consisted of the right to “receive notice of the
factual basis for his classification, and a fair opportunity
to rebut the Government’s factual assertions before a
neutral decisionmaker.” Id., at 533. In light of the Gov
ernment’s national security responsibilities, the plurality
found the process could be “tailored to alleviate [the]
uncommon potential to burden the Executive at a time of
ongoing military conflict.” Ibid. For example, the Gov
ernment could rely on hearsay and could claim a presump
tion in favor of its own evidence. See id., at 533–534.
Hamdi further suggested that this “basic process” on
collateral review could be provided by a military tribunal.
It pointed to prisoner-of-war tribunals as a model that
would satisfy the Constitution’s requirements. See id., at
538. Only “[i]n the absence of such process” before a mili
tary tribunal, the Court held, would Article III courts need
to conduct full-dress habeas proceedings to “ensure that
13 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
the minimum requirements of due process are achieved.”
Ibid. (emphasis added). And even then, the petitioner
would be entitled to no more process than he would have
received from a properly constituted military review panel,
given his limited due process rights and the Government’s
weighty interests. See id., at 533–534, 538.
Contrary to the majority, Hamdi is of pressing relevance
because it establishes the procedures American citizens
detained as enemy combatants can expect from a habeas
court proceeding under §2241. The DTA system of military
tribunal hearings followed by Article III review looks a lot
like the procedure Hamdi blessed. If nothing else, it is
plain from the design of the DTA that Congress, the
President, and this Nation’s military leaders have made a
good-faith effort to follow our precedent.
The Court, however, will not take “yes” for an answer.
The majority contends that “[i]f Congress had envisioned
DTA review as coextensive with traditional habeas corpus,”
it would have granted the D. C. Circuit far broader review
authority. Ante, at 48. Maybe so, but that comment reveals
the majority’s misunderstanding. “[T]raditional habeas
corpus” takes no account of what Hamdi recognized as the
“uncommon potential to burden the Executive at a time of
ongoing military conflict.” 542 U. S., at 533. Besides, Con
gress and the Executive did not envision “DTA review”—
by which I assume the Court means D. C. Circuit review,
see ante, at 48—as the detainees’ only opportunity to
challenge their detentions. Instead, the political branches
crafted CSRT and D. C. Circuit review to operate together,
with the goal of providing noncitizen detainees the level of
collateral process Hamdi said would satisfy the due proc
ess rights of American citizens. See Brief for Federal
Respondents 48–53.
B
Given the statutory scheme the political branches
14 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
adopted, and given Hamdi, it simply will not do for the
majority to dismiss the CSRT procedures as “far more
limited” than those used in military trials, and therefore
beneath the level of process “that would eliminate the
need for habeas corpus review.” Ante, at 37. The question
is not how much process the CSRTs provide in comparison
to other modes of adjudication. The question is whether
the CSRT procedures—coupled with the judicial review
specified by the DTA—provide the “basic process” Hamdi
said the Constitution affords American citizens detained
as enemy combatants. See 542 U. S., at 534.
By virtue of its refusal to allow the D. C. Circuit to
assess petitioners’ statutory remedies, and by virtue of its
own refusal to consider, at the outset, the fit between
those remedies and due process, the majority now finds
itself in the position of evaluating whether the DTA sys
tem is an adequate substitute for habeas review without
knowing what rights either habeas or the DTA is supposed
to protect. The majority attempts to elide this problem by
holding that petitioners have a right to habeas corpus and
then comparing the DTA against the “historic office” of the
writ. Ante, at 47. But habeas is, as the majority acknowl
edges, a flexible remedy rather than a substantive right.
Its “precise application . . . change[s] depending upon the
circumstances.” Ante, at 50. The shape of habeas review
ultimately depends on the nature of the rights a petitioner
may assert. See, e.g., Reid v. Covert, 354 U. S. 1, 75 (1957)
(Harlan, J., concurring in result) (“[T]he question of which
specific safeguards of the Constitution are appropriately to
be applied in a particular context . . . can be reduced to the
issue of what process is ‘due’ a defendant in the particular
circumstances of a particular case”).
The scope of federal habeas review is traditionally more
limited in some contexts than in others, depending on the
status of the detainee and the rights he may assert. See
St. Cyr, 533 U. S., at 306 (“In [immigration cases], other
15 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
than the question whether there was some evidence to
support the [deportation] order, the courts generally did
not review factual determinations made by the Executive”
(footnote omitted)); Burns v. Wilson, 346 U. S. 137, 139
(1953) (plurality opinion) (“[I]n military habeas corpus the
inquiry, the scope of matters open for review, has always
been more narrow than in civil cases”); In re Yamashita,
327 U. S. 1, 8 (1946) (“The courts may inquire whether the
detention complained of is within the authority of those
detaining the petitioner. If the military tribunals have
lawful authority to hear, decide and condemn, their action
is not subject to judicial review”); Ex parte Quirin, 317 U. S.
1, 25 (1942) (federal habeas review of military commission
verdict limited to determining commission’s jurisdiction).
Declaring that petitioners have a right to habeas in no
way excuses the Court from explaining why the DTA does
not protect whatever due process or statutory rights peti
tioners may have. Because if the DTA provides a means
for vindicating petitioners’ rights, it is necessarily an
adequate substitute for habeas corpus. See Swain v.
Pressley, 430 U. S. 372, 381 (1977); United States v. Hay-
man, 342 U. S. 205, 223 (1952).
For my part, I will assume that any due process rights
petitioners may possess are no greater than those of
American citizens detained as enemy combatants. It is
worth noting again that the Hamdi controlling opinion
said the Constitution guarantees citizen detainees only
“basic” procedural rights, and that the process for securing
those rights can “be tailored to alleviate [the] uncommon
potential to burden the Executive at a time of ongoing
military conflict.” 542 U. S., at 533. The majority, how
ever, objects that “the procedural protections afforded to
the detainees in the CSRT hearings are . . . limited.” Ante,
at 37. But the evidentiary and other limitations the Court
complains of reflect the nature of the issue in contest,
namely, the status of aliens captured by our Armed Forces
16 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
abroad and alleged to be enemy combatants. Contrary to
the repeated suggestions of the majority, DTA review need
not parallel the habeas privileges enjoyed by noncombat
ant American citizens, as set out in 28 U. S. C. §2241
(2000 ed. and Supp V). Cf. ante, at 46–47. It need only
provide process adequate for noncitizens detained as
alleged combatants.
To what basic process are these detainees due as habeas
petitioners? We have said that “at the absolute mini
mum,” the Suspension Clause protects the writ “‘as it
existed in 1789.’” St. Cyr, supra, at 301 (quoting Felker v.
Turpin, 518 U. S. 651, 663–664 (1996)). The majority
admits that a number of historical authorities suggest
that at the time of the Constitution’s ratification, “com
mon-law courts abstained altogether from matters involv
ing prisoners of war.” Ante, at 17. If this is accurate, the
process provided prisoners under the DTA is plainly more
than sufficient—it allows alleged combatants to challenge
both the factual and legal bases of their detentions.
Assuming the constitutional baseline is more robust, the
DTA still provides adequate process, and by the majority’s
own standards. Today’s Court opines that the Suspension
Clause guarantees prisoners such as the detainees “a
meaningful opportunity to demonstrate that [they are]
being held pursuant to the erroneous application or inter
pretation of relevant law.” Ante, at 50 (internal quotation
marks omitted). Further, the Court holds that to be an
adequate substitute, any tribunal reviewing the detainees’
cases “must have the power to order the conditional re
lease of an individual unlawfully detained.” Ibid. The
DTA system—CSRT review of the Executive’s determina
tion followed by D. C. Circuit review for sufficiency of the
evidence and the constitutionality of the CSRT process—
meets these criteria.
17 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
C
At the CSRT stage, every petitioner has the right to
present evidence that he has been wrongfully detained.
This includes the right to call witnesses who are reasona
bly available, question witnesses called by the tribunal,
introduce documentary evidence, and testify before the
tribunal. See Implementation Memo, App. J to Pet. for
Cert. in No. 06–1196, at 154–156, 158–159, 161.
While the Court concedes detainees may confront all
witnesses called before the tribunal, it suggests this right
is “more theoretical than real” because “there are in effect
no limits on the admission of hearsay evidence.” Ante, at
55. The Court further complains that petitioners lack “the
assistance of counsel,” and—given the limits on their
access to classified information—“may not be aware of the
most critical allegations” against them. Ante, at 54. None
of these complaints is persuasive.
Detainees not only have the opportunity to confront any
witness who appears before the tribunal, they may call
witnesses of their own. The Implementation Memo re
quires only that detainees’ witnesses be “reasonably avail
able,” App. J to Pet. for Cert. in No. 06–1196, at 155, a
requirement drawn from Army Regulation 190–8, ch. 1,
§1–6(e)(6), and entirely consistent with the Government’s
interest in avoiding “a futile search for evidence” that
might burden warmaking responsibilities, Hamdi, supra,
at 532. The dangerous mission assigned to our forces
abroad is to fight terrorists, not serve subpoenas. The
Court is correct that some forms of hearsay evidence are
admissible before the CSRT, but Hamdi expressly ap
proved this use of hearsay by habeas courts. 542 U. S.,
at 533–534 (“Hearsay, for example, may need to be ac
cepted as the most reliable available evidence from the
Government”).
As to classified information, while detainees are not
permitted access to it themselves, the Implementation
18 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
Memo provides each detainee with a “Personal Represen
tative” who may review classified documents at the CSRT
stage and summarize them for the detainee. Implementa
tion Memo, supra, at 152, 154–155, 156; Brief for Federal
Respondents 54–55. The prisoner’s counsel enjoys the
same privilege on appeal before the D. C. Circuit. That is
more access to classified material for alleged alien enemy
combatants than ever before provided. I am not aware of
a single instance—and certainly the majority cites none—
in which detainees such as petitioners have been provided
access to classified material in any form. Indeed, prison
ers of war who challenge their status determinations
under the Geneva Convention are afforded no such access,
see Army Regulation 190–8, ch. 1, §§1–6(e)(3) and (5), and
the prisoner-of-war model is the one Hamdi cited as con
sistent with the demands of due process for citizens, see
542 U. S., at 538.
What alternative does the Court propose? Allow free
access to classified information and ignore the risk the
prisoner may eventually convey what he learns to parties
hostile to this country, with deadly consequences for those
who helped apprehend the detainee? If the Court can
design a better system for communicating to detainees the
substance of any classified information relevant to their
cases, without fatally compromising national security
interests and sources, the majority should come forward
with it. Instead, the majority fobs that vexing question off
on district courts to answer down the road.
Prisoners of war are not permitted access to classified
information, and neither are they permitted access to
counsel, another supposed failing of the CSRT process.
And yet the Guantanamo detainees are hardly denied all
legal assistance. They are provided a “Personal Represen
tative” who, as previously noted, may access classified
information, help the detainee arrange for witnesses,
assist the detainee’s preparation of his case, and even aid
19 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
the detainee in presenting his evidence to the tribunal.
See Implementation Memo, supra, at 161. The provision
for a personal representative on this order is one of several
ways in which the CSRT procedures are more generous
than those provided prisoners of war under Army Regula
tion 190–8.
Keep in mind that all this is just at the CSRT stage.
Detainees receive additional process before the D. C.
Circuit, including full access to appellate counsel and the
right to challenge the factual and legal bases of their
detentions. DTA §1005(e)(2)(C) empowers the Court of
Appeals to determine not only whether the CSRT observed
the “procedures specified by the Secretary of Defense,” but
also “whether the use of such standards and procedures
. . . is consistent with the Constitution and laws of the
United States.” 119 Stat. 2742. These provisions permit
detainees to dispute the sufficiency of the evidence against
them. They allow detainees to challenge a CSRT panel’s
interpretation of any relevant law, and even the constitu
tionality of the CSRT proceedings themselves. This in
cludes, as the Solicitor General acknowledges, the ability
to dispute the Government’s right to detain alleged com
batants in the first place, and to dispute the Government’s
definition of “enemy combatant.” Brief for Federal Re
spondents 59. All this before an Article III court—plainly
a neutral decisionmaker.
All told, the DTA provides the prisoners held at Guan
tanamo Bay adequate opportunity to contest the bases of
their detentions, which is all habeas corpus need allow.
The DTA provides more opportunity and more process, in
fact, than that afforded prisoners of war or any other
alleged enemy combatants in history.
D
Despite these guarantees, the Court finds the DTA
system an inadequate habeas substitute, for one central
20 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
reason: Detainees are unable to introduce at the appeal
stage exculpatory evidence discovered after the conclusion
of their CSRT proceedings. See ante, at 58. The Court
hints darkly that the DTA may suffer from other infirmi
ties, see ante, at 63 (“We do not imply DTA review would
be a constitutionally sufficient replacement for habeas
corpus but for these limitations on the detainee’s ability to
present exculpatory evidence”), but it does not bother to
name them, making a response a bit difficult. As it
stands, I can only assume the Court regards the supposed
defect it did identify as the gravest of the lot.
If this is the most the Court can muster, the ice beneath
its feet is thin indeed. As noted, the CSRT procedures
provide ample opportunity for detainees to introduce
exculpatory evidence—whether documentary in nature or
from live witnesses—before the military tribunals. See
infra, at 21–23; Implementation Memo, App. J to Pet. for
Cert. in No. 06–196, at 155–156. And if their ability to
introduce such evidence is denied contrary to the Consti
tution or laws of the United States, the D. C. Circuit has
the authority to say so on review.
Nevertheless, the Court asks us to imagine an instance
in which evidence is discovered after the CSRT panel
renders its decision, but before the Court of Appeals re
views the detainee’s case. This scenario, which of course
has not yet come to pass as no review in the D. C. Circuit
has occurred, provides no basis for rejecting the DTA as a
habeas substitute. While the majority is correct that the
DTA does not contemplate the introduction of “newly
discovered” evidence before the Court of Appeals, petition
ers and the Solicitor General agree that the DTA does
permit the D. C. Circuit to remand a detainee’s case for a
new CSRT determination. Brief for Petitioner Boumedi
ene et al. in No. 06–1195, at 30; Brief for Federal Respon
dents 60–61. In the event a detainee alleges that he has
obtained new and persuasive exculpatory evidence that
21 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
would have been considered by the tribunal below had it
only been available, the D. C. Circuit could readily remand
the case to the tribunal to allow that body to consider the
evidence in the first instance. The Court of Appeals could
later review any new or reinstated decision in light of the
supplemented record.
If that sort of procedure sounds familiar, it should.
Federal appellate courts reviewing factual determinations
follow just such a procedure in a variety of circumstances.
See, e.g., United States v. White, 492 F. 3d 380, 413 (CA6
2007) (remanding new-evidence claim to the district court
for a Brady evidentiary hearing); Avila v. Roe, 298 F. 3d
750, 754 (CA9 2002) (remanding habeas claim to the
district court for evidentiary hearing to clarify factual
record); United States v. Leone, 215 F. 3d 253, 256 (CA2
2000) (observing that when faced on direct appeal with an
underdeveloped claim for ineffective assistance of counsel,
the appellate court may remand to the district court for
necessary factfinding).
A remand is not the only relief available for detainees
caught in the Court’s hypothetical conundrum. The DTA
expressly directs the Secretary of Defense to “provide for
periodic review of any new evidence that may become
available relating to the enemy combatant status of a
detainee.” DTA §1005(a)(3). Regulations issued by the
Department of Defense provide that when a detainee puts
forward new, material evidence “not previously presented
to the detainee’s CSRT,” the Deputy Secretary of Defense
“‘will direct that a CSRT convene to reconsider the basis of
the detainee’s . . . status in light of the new information.’”
Office for the Administrative Review of the Detention of
Enemy Combatants, Instruction 5421.1, Procedure for
Review of “New Evidence” Relating to Enemy Combatant
(EC) Status ¶¶4(a)(1), 5(b) (May 7, 2007); Brief for Federal
Respondents 56, n. 30. Pursuant to DTA §1005(e)(2)(A),
the resulting CSRT determination is again reviewable in
22 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
full by the D. C. Circuit.2
In addition, DTA §1005(d)(1) further requires the De
partment of Defense to conduct a yearly review of the
status of each prisoner. See 119 Stat. 2741. The Deputy
Secretary of Defense has promulgated concomitant regula
tions establishing an Administrative Review Board to
assess “annually the need to continue to detain each en
emy combatant.” Deputy Secretary of Defense Order OSD
06942–04 (May 11, 2004), App. K to Pet. for Cert. in No.
06–1196, p. 189. In the words of the implementing order,
the purpose of this annual review is to afford every de
tainee the opportunity “to explain why he is no longer a
threat to the United States” and should be released. Ibid.
The Board’s findings are forwarded to a presidentially
appointed, Senate-confirmed civilian within the Depart
ment of Defense whom the Secretary of Defense has des
ignated to administer the review process. This designated
civilian official has the authority to order release upon the
Board’s recommendation. Id., at 201.
The Court’s hand wringing over the DTA’s treatment of
later-discovered exculpatory evidence is the most it has to
show after a roving search for constitutionally problematic
scenarios. But “[t]he delicate power of pronouncing an Act
of Congress unconstitutional,” we have said, “is not to be
exercised with reference to hypothetical cases thus imag
ined.” United States v. Raines, 362 U. S. 17, 22 (1960).
The Court today invents a sort of reverse facial challenge
——————
2
The Court wonders what might happen if the detainee puts forward
new material evidence but the Deputy Secretary refuses to convene a
new CSRT. See ante, at 62–63. The answer is that the detainee can
petition the D. C. Circuit for review. The DTA directs that the proce
dures for review of new evidence be included among “[t]he procedures
submitted under paragraph (1)(A)” governing CSRT review of enemy
combatant status §1405(a)(3), 119 Stat. 3476. It is undisputed that the
D. C. Circuit has statutory authority to review and enforce these
procedures. See DTA §1005(e)(2)(C)(i), id., at 2742.
23 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
and applies it with gusto: If there is any scenario in which
the statute might be constitutionally infirm, the law must
be struck down. Cf. United States v. Salerno, 481 U. S.
739, 745 (1987) (“A facial challenge . . . must establish that
no set of circumstances exists under which the Act would
be valid”); see also Washington v. Glucksberg, 521 U. S.
702, 739–740, and n. 7 (1997) (STEVENS, J., concurring in
judgments) (facial challenge must fail where the statute
has “‘plainly legitimate sweep’” (quoting Broadrick v.
Oklahoma, 413 U. S. 601, 615 (1973))). The Court’s new
method of constitutional adjudication only underscores its
failure to follow our usual procedures and require peti
tioners to demonstrate that they have been harmed by the
statute they challenge. In the absence of such a concrete
showing, the Court is unable to imagine a plausible hypo
thetical in which the DTA is unconstitutional.
E
The Court’s second criterion for an adequate substitute
is the “power to order the conditional release of an indi
vidual unlawfully detained.” Ante, at 50. As the Court
basically admits, the DTA can be read to permit the D. C.
Circuit to order release in light of our traditional princi
ples of construing statutes to avoid difficult constitutional
issues, when reasonably possible. See ante, at 56–57.
The Solicitor General concedes that remedial authority
of some sort must be implied in the statute, given that the
DTA—like the general habeas law itself, see 28 U. S. C.
§2243—provides no express remedy of any kind. Brief for
Federal Respondents 60–61. The parties agree that at the
least, the DTA empowers the D. C. Circuit to remand a
prisoner’s case to the CSRT with instructions to perform a
new status assessment. Brief for Petitioner Boumediene
et al. in No. 06–1195, at 30; Brief for Federal Respondents
60–61. To avoid constitutional infirmity, it is reasonable
to imply more, see Ashwander, 297 U. S., at 348 (Brandeis,
24 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
J., concurring) (“When the validity of an act of the Con
gress is drawn in question . . . it is a cardinal principle
that this Court will . . . ascertain whether a construction of
the statute is fairly possible by which the [constitutional]
question may be avoided” (internal quotation marks omit
ted)); see also St. Cyr, 533 U. S., at 299–300, especially in
view of the Solicitor General’s concession at oral argument
and in his Supplemental Brief that authority to release
might be read in the statute, see Tr. of Oral Arg. 37; Sup
plemental Brief for Federal Respondents 9.
The Court grudgingly suggests that “Congress’ silence
on the question of remedies suggests acquiescence to any
constitutionally required remedy.” Ante, at 58. But the
argument in favor of statutorily authorized release is
stronger than that. The DTA’s parallels to 28 U. S. C.
§2243 on this score are noteworthy. By way of remedy,
the general federal habeas statute provides only that the
court, having heard and determined the facts, shall “dis
pose of the matter as law and justice require.” Ibid. We
have long held, and no party here disputes, that this
includes the power to order release. See Wilkinson v.
Dotson, 544 U. S. 74, 79 (2005) (“[T]he writ’s history
makes clear that it traditionally has been accepted as the
specific instrument to obtain release from [unlawful]
confinement” (internal quotation marks omitted)).
The DTA can be similarly read. Because Congress
substituted DTA review for habeas corpus and because
the “unique purpose” of the writ is “to release the appli
cant . . . from unlawful confinement,” Allen v. McCurry,
449 U. S. 90, 98, n. 12 (1980), DTA §1005(e)(2) can and
should be read to confer on the Court of Appeals the
authority to order release in appropriate circumstances.
Section 1005(e)(2)(D) plainly contemplates release, ad
dressing the effect “release of [an] alien from the custody
of the Department of Defense” will have on the jurisdiction
of the court. 119 Stat. 2742–2743. This reading avoids
25 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
serious constitutional difficulty and is consistent with the
text of the statute.
The D. C. Circuit can thus order release, the CSRTs can
order release, and the head of the Administrative Review
Boards can, at the recommendation of those panels, order
release. These multiple release provisions within the DTA
system more than satisfy the majority’s requirement that
any tribunal substituting for a habeas court have the
authority to release the prisoner.
The basis for the Court’s contrary conclusion is summed
up in the following sentence near the end of its opinion:
“To hold that the detainees at Guantanamo may, under
the DTA, challenge the President’s legal authority to
detain them, contest the CSRT’s findings of fact, supple
ment the record on review with newly discovered or previ
ously unavailable evidence, and request an order of re
lease would come close to reinstating the §2241 habeas
corpus process Congress sought to deny them.” Ante, at
63. In other words, any interpretation of the statute that
would make it an adequate substitute for habeas must be
rejected, because Congress could not possibly have in
tended to enact an adequate substitute for habeas. The
Court could have saved itself a lot of trouble if it had
simply announced this Catch-22 approach at the begin
ning rather than the end of its opinion.
III
For all its eloquence about the detainees’ right to the
writ, the Court makes no effort to elaborate how exactly
the remedy it prescribes will differ from the procedural
protections detainees enjoy under the DTA. The Court
objects to the detainees’ limited access to witnesses and
classified material, but proposes no alternatives of its own.
Indeed, it simply ignores the many difficult questions its
holding presents. What, for example, will become of the
CSRT process? The majority says federal courts should
26 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
generally refrain from entertaining detainee challenges
until after the petitioner’s CSRT proceeding has finished.
See ante, at 66 (“[e]xcept in cases of undue delay”). But
to what deference, if any, is that CSRT determination
entitled?
There are other problems. Take witness availability.
What makes the majority think witnesses will become
magically available when the review procedure is labeled
“habeas”? Will the location of most of these witnesses
change—will they suddenly become easily susceptible to
service of process? Or will subpoenas issued by American
habeas courts run to Basra? And if they did, how would
they be enforced? Speaking of witnesses, will detainees be
able to call active-duty military officers as witnesses? If
not, why not?
The majority has no answers for these difficulties. What
it does say leaves open the distinct possibility that its
“habeas” remedy will, when all is said and done, end up
looking a great deal like the DTA review it rejects. See
ante, at 66 (opinion of the court) (“We recognize, however,
that the Government has a legitimate interest in protect
ing sources and methods of intelligence gathering, and we
expect that the District Court will use its discretion to
accommodate this interest to the greatest extent possi
ble”). But “[t]he role of the judiciary is limited to deter
mining whether the procedures meet the essential stan
dard of fairness under the Due Process Clause and does
not extend to imposing procedures that merely displace
congressional choices of policy.” Landon v. Plasencia, 459
U. S. 21, 34–35 (1982).
The majority rests its decision on abstract and hypo
thetical concerns. Step back and consider what, in the
real world, Congress and the Executive have actually
granted aliens captured by our Armed Forces overseas and
found to be enemy combatants:
• The right to hear the bases of the charges against
27 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
them, including a summary of any classified
evidence.
• The ability to challenge the bases of their detention
before military tribunals modeled after Geneva
Convention procedures. Some 38 detainees have
been released as a result of this process. Brief for
Federal Respondents 57, 60.
• The right, before the CSRT, to testify, introduce
evidence, call witnesses, question those the Gov
ernment calls, and secure release, if and when
appropriate.
• The right to the aid of a personal representative in
arranging and presenting their cases before a
CSRT.
• Before the D. C. Circuit, the right to employ coun
sel, challenge the factual record, contest the lower
tribunal’s legal determinations, ensure compliance
with the Constitution and laws, and secure release,
if any errors below establish their entitlement to
such relief.
In sum, the DTA satisfies the majority’s own criteria
for assessing adequacy. This statutory scheme provides
the combatants held at Guantanamo greater procedural
protections than have ever been afforded alleged enemy
detainees—whether citizens or aliens—in our national
history.
* * *
So who has won? Not the detainees. The Court’s analy
sis leaves them with only the prospect of further litigation
to determine the content of their new habeas right, fol
lowed by further litigation to resolve their particular cases,
followed by further litigation before the D. C. Circuit—
where they could have started had they invoked the DTA
procedure. Not Congress, whose attempt to “determine—
through democratic means—how best” to balance the
28 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
security of the American people with the detainees’ liberty
interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636
(2006) (BREYER, J., concurring), has been unceremoniously
brushed aside. Not the Great Writ, whose majesty is
hardly enhanced by its extension to a jurisdictionally
quirky outpost, with no tangible benefit to anyone. Not the
rule of law, unless by that is meant the rule of lawyers,
who will now arguably have a greater role than military
and intelligence officials in shaping policy for alien enemy
combatants. And certainly not the American people, who
today lose a bit more control over the conduct of this Na
tion’s foreign policy to unelected, politically unaccountable
judges.
I respectfully dissent.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
JUSTICE SCALIA, with whom THE CHIEF JUSTICE,
JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
Today, for the first time in our Nation’s history, the
Court confers a constitutional right to habeas corpus on
alien enemies detained abroad by our military forces in
the course of an ongoing war. THE CHIEF JUSTICE’s dis-
sent, which I join, shows that the procedures prescribed by
Congress in the Detainee Treatment Act provide the es-
sential protections that habeas corpus guarantees; there
has thus been no suspension of the writ, and no basis
exists for judicial intervention beyond what the Act allows.
My problem with today’s opinion is more fundamental
still: The writ of habeas corpus does not, and never has,
run in favor of aliens abroad; the Suspension Clause thus
has no application, and the Court’s intervention in this
military matter is entirely ultra vires.
2 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
I shall devote most of what will be a lengthy opinion to
the legal errors contained in the opinion of the Court.
Contrary to my usual practice, however, I think it appro-
priate to begin with a description of the disastrous conse-
quences of what the Court has done today.
I
America is at war with radical Islamists. The enemy
began by killing Americans and American allies abroad:
241 at the Marine barracks in Lebanon, 19 at the Khobar
Towers in Dhahran, 224 at our embassies in Dar es Sa-
laam and Nairobi, and 17 on the USS Cole in Yemen. See
National Commission on Terrorist Attacks upon the
United States, The 9/11 Commission Report, pp. 60–61,
70, 190 (2004). On September 11, 2001, the enemy
brought the battle to American soil, killing 2,749 at the
Twin Towers in New York City, 184 at the Pentagon in
Washington, D. C., and 40 in Pennsylvania. See id., at
552, n. 9. It has threatened further attacks against our
homeland; one need only walk about buttressed and barri-
caded Washington, or board a plane anywhere in the
country, to know that the threat is a serious one. Our
Armed Forces are now in the field against the enemy, in
Afghanistan and Iraq. Last week, 13 of our countrymen in
arms were killed.
The game of bait-and-switch that today’s opinion plays
upon the Nation’s Commander in Chief will make the war
harder on us. It will almost certainly cause more Ameri-
cans to be killed. That consequence would be tolerable if
necessary to preserve a time-honored legal principle vital
to our constitutional Republic. But it is this Court’s bla-
tant abandonment of such a principle that produces the
decision today. The President relied on our settled prece-
dent in Johnson v. Eisentrager, 339 U. S. 763 (1950), when
he established the prison at Guantanamo Bay for enemy
aliens. Citing that case, the President’s Office of Legal
3 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
Counsel advised him “that the great weight of legal au-
thority indicates that a federal district court could not
properly exercise habeas jurisdiction over an alien de-
tained at [Guantanamo Bay].” Memorandum from Patrick
F. Philbin and John C. Yoo, Deputy Assistant Attorneys
General, Office of Legal Counsel, to William J. Haynes II,
General Counsel, Dept. of Defense (Dec. 28, 2001). Had
the law been otherwise, the military surely would not have
transported prisoners there, but would have kept them in
Afghanistan, transferred them to another of our foreign
military bases, or turned them over to allies for detention.
Those other facilities might well have been worse for the
detainees themselves.
In the long term, then, the Court’s decision today ac-
complishes little, except perhaps to reduce the well-being
of enemy combatants that the Court ostensibly seeks to
protect. In the short term, however, the decision is devas-
tating. At least 30 of those prisoners hitherto released
from Guantanamo Bay have returned to the battlefield.
See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Views
of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn)
(hereinafter Minority Report). Some have been captured
or killed. See ibid.; see also Mintz, Released Detainees
Rejoining the Fight, Washington Post, Oct. 22, 2004, pp.
A1, A12. But others have succeeded in carrying on their
atrocities against innocent civilians. In one case, a de-
tainee released from Guantanamo Bay masterminded the
kidnapping of two Chinese dam workers, one of whom was
later shot to death when used as a human shield against
Pakistani commandoes. See Khan & Lancaster, Paki-
stanis Rescue Hostage; 2nd Dies, Washington Post, Oct.
15, 2004, p. A18. Another former detainee promptly re-
sumed his post as a senior Taliban commander and mur-
dered a United Nations engineer and three Afghan sol-
diers. Mintz, supra. Still another murdered an Afghan
judge. See Minority Report 13. It was reported only last
4 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
month that a released detainee carried out a suicide bomb-
ing against Iraqi soldiers in Mosul, Iraq. See White, Ex-
Guantanamo Detainee Joined Iraq Suicide Attack, Wash-
ington Post, May 8, 2008, p. A18.
These, mind you, were detainees whom the military had
concluded were not enemy combatants. Their return to
the kill illustrates the incredible difficulty of assessing
who is and who is not an enemy combatant in a foreign
theater of operations where the environment does not lend
itself to rigorous evidence collection. Astoundingly, the
Court today raises the bar, requiring military officials to
appear before civilian courts and defend their decisions
under procedural and evidentiary rules that go beyond
what Congress has specified. As THE CHIEF JUSTICE’s
dissent makes clear, we have no idea what those proce-
dural and evidentiary rules are, but they will be deter-
mined by civil courts and (in the Court’s contemplation at
least) will be more detainee-friendly than those now ap-
plied, since otherwise there would be no reason to hold the
congressionally prescribed procedures unconstitutional. If
they impose a higher standard of proof (from foreign bat-
tlefields) than the current procedures require, the number
of the enemy returned to combat will obviously increase.
But even when the military has evidence that it can
bring forward, it is often foolhardy to release that evidence
to the attorneys representing our enemies. And one esca-
lation of procedures that the Court is clear about is afford-
ing the detainees increased access to witnesses (perhaps
troops serving in Afghanistan?) and to classified informa-
tion. See ante, at 54–55. During the 1995 prosecution of
Omar Abdel Rahman, federal prosecutors gave the names
of 200 unindicted co-conspirators to the “Blind Sheik’s”
defense lawyers; that information was in the hands of
Osama Bin Laden within two weeks. See Minority Report
14–15. In another case, trial testimony revealed to the
enemy that the United States had been monitoring their
5 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
cellular network, whereupon they promptly stopped using
it, enabling more of them to evade capture and continue
their atrocities. See id., at 15.
And today it is not just the military that the Court
elbows aside. A mere two Terms ago in Hamdan v. Rums-
feld, 548 U. S. 557 (2006), when the Court held (quite
amazingly) that the Detainee Treatment Act of 2005 had
not stripped habeas jurisdiction over Guantanamo peti-
tioners’ claims, four Members of today’s five-Justice major-
ity joined an opinion saying the following:
“Nothing prevents the President from returning to
Congress to seek the authority [for trial by military
commission] he believes necessary.
“Where, as here, no emergency prevents consulta-
tion with Congress, judicial insistence upon that con-
sultation does not weaken our Nation’s ability to deal
with danger. To the contrary, that insistence
strengthens the Nation’s ability to determine—
through democratic means—how best to do so. The
Constitution places its faith in those democratic
means.” Id., at 636 (BREYER, J., concurring).1
Turns out they were just kidding. For in response, Con-
gress, at the President’s request, quickly enacted the
Military Commissions Act, emphatically reasserting that
it did not want these prisoners filing habeas petitions. It
is therefore clear that Congress and the Executive—both
political branches—have determined that limiting the role
——————
1
Even today, the Court cannot resist striking a pose of faux deference
to Congress and the President. Citing the above quoted passage, the
Court says: “The political branches, consistent with their independent
obligations to interpret and uphold the Constitution, can engage in a
genuine debate about how best to preserve constitutional values while
protecting the Nation from terrorism.” Ante, at 69. Indeed. What the
Court apparently means is that the political branches can debate, after
which the Third Branch will decide.
6 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
of civilian courts in adjudicating whether prisoners cap-
tured abroad are properly detained is important to success
in the war that some 190,000 of our men and women are
now fighting. As the Solicitor General argued, “the Mili-
tary Commissions Act and the Detainee Treatment Act . . .
represent an effort by the political branches to strike an
appropriate balance between the need to preserve liberty
and the need to accommodate the weighty and sensitive
governmental interests in ensuring that those who have in
fact fought with the enemy during a war do not return to
battle against the United States.” Brief for Respondents
10–11 (internal quotation marks omitted).
But it does not matter. The Court today decrees that no
good reason to accept the judgment of the other two
branches is “apparent.” Ante, at 40. “The Government,” it
declares, “presents no credible arguments that the mili-
tary mission at Guantanamo would be compromised if
habeas corpus courts had jurisdiction to hear the detain-
ees’ claims.” Id., at 39. What competence does the Court
have to second-guess the judgment of Congress and the
President on such a point? None whatever. But the Court
blunders in nonetheless. Henceforth, as today’s opinion
makes unnervingly clear, how to handle enemy prisoners
in this war will ultimately lie with the branch that knows
least about the national security concerns that the subject
entails.
II
A
The Suspension Clause of the Constitution provides:
“The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it.” Art. I, §9, cl. 2. As a
court of law operating under a written Constitution, our
role is to determine whether there is a conflict between
that Clause and the Military Commissions Act. A conflict
7 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
arises only if the Suspension Clause preserves the privi-
lege of the writ for aliens held by the United States mili-
tary as enemy combatants at the base in Guantanamo
Bay, located within the sovereign territory of Cuba.
We have frequently stated that we owe great deference
to Congress’s view that a law it has passed is constitu-
tional. See, e.g., Department of Labor v. Triplett, 494 U. S.
715, 721 (1990); United States v. National Dairy Products
Corp., 372 U. S. 29, 32 (1963); see also American Commu-
nications Assn. v. Douds, 339 U. S. 382, 435 (1950) (Jack-
son, J., concurring in part and dissenting in part). That is
especially so in the area of foreign and military affairs;
“perhaps in no other area has the Court accorded Congress
greater deference.” Rostker v. Goldberg, 453 U. S. 57, 64–
65 (1981). Indeed, we accord great deference even when
the President acts alone in this area. See Department of
Navy v. Egan, 484 U. S. 518, 529–530 (1988); Regan v.
Wald, 468 U. S. 222, 243 (1984).
In light of those principles of deference, the Court’s
conclusion that “the common law [does not] yiel[d] a defi-
nite answer to the questions before us,” ante, at 22, leaves
it no choice but to affirm the Court of Appeals. The writ
as preserved in the Constitution could not possibly extend
farther than the common law provided when that Clause
was written. See Part III, infra. The Court admits that it
cannot determine whether the writ historically extended
to aliens held abroad, and it concedes (necessarily) that
Guantanamo Bay lies outside the sovereign territory of
the United States. See ante, at 22–23; Rasul v. Bush, 542
U. S. 466, 500–501 (2004) (SCALIA, J., dissenting). To-
gether, these two concessions establish that it is (in the
Court’s view) perfectly ambiguous whether the common-
law writ would have provided a remedy for these petition-
ers. If that is so, the Court has no basis to strike down the
Military Commissions Act, and must leave undisturbed
8 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
the considered judgment of the coequal branches.2
How, then, does the Court weave a clear constitutional
prohibition out of pure interpretive equipoise? The Court
resorts to “fundamental separation-of-powers principles”
to interpret the Suspension Clause. Ante, at 25. Accord-
ing to the Court, because “the writ of habeas corpus is
itself an indispensable mechanism for monitoring the
separation of powers,” the test of its extraterritorial reach
“must not be subject to manipulation by those whose
power it is designed to restrain.” Ante, at 36.
That approach distorts the nature of the separation of
powers and its role in the constitutional structure. The
“fundamental separation-of-powers principles” that the
Constitution embodies are to be derived not from some
judicially imagined matrix, but from the sum total of the
individual separation-of-powers provisions that the Con-
stitution sets forth. Only by considering them one-by-one
does the full shape of the Constitution’s separation-of-
powers principles emerge. It is nonsensical to interpret
those provisions themselves in light of some general
“separation-of-powers principles” dreamed up by the
Court. Rather, they must be interpreted to mean what
they were understood to mean when the people ratified
them. And if the understood scope of the writ of habeas
corpus was “designed to restrain” (as the Court says) the
actions of the Executive, the understood limits upon that
——————
2
The opinion seeks to avoid this straightforward conclusion by saying
that the Court has been “careful not to foreclose the possibility that the
protections of the Suspension Clause have expanded along with post-
1789 developments that define the present scope of the writ.” Ante, at
15–16 (citing INS v. St. Cyr, 533 U. S. 289 300–301 (2001)). But not
foreclosing the possibility that they have expanded is not the same as
demonstrating (or at least holding without demonstration, which seems
to suffice for today’s majority) that they have expanded. The Court
must either hold that the Suspension Clause has “expanded” in its
application to aliens abroad, or acknowledge that it has no basis to set
aside the actions of Congress and the President. It does neither.
9 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
scope were (as the Court seems not to grasp) just as much
“designed to restrain” the incursions of the Third Branch.
“Manipulation” of the territorial reach of the writ by the
Judiciary poses just as much a threat to the proper sepa-
ration of powers as “manipulation” by the Executive. As I
will show below, manipulation is what is afoot here. The
understood limits upon the writ deny our jurisdiction over
the habeas petitions brought by these enemy aliens, and
entrust the President with the crucial wartime determina-
tions about their status and continued confinement.
B
The Court purports to derive from our precedents a
“functional” test for the extraterritorial reach of the writ,
ante, at 34, which shows that the Military Commissions
Act unconstitutionally restricts the scope of habeas. That
is remarkable because the most pertinent of those prece-
dents, Johnson v. Eisentrager, 339 U. S. 763, conclusively
establishes the opposite. There we were confronted with
the claims of 21 Germans held at Landsberg Prison, an
American military facility located in the American Zone of
occupation in postwar Germany. They had been captured
in China, and an American military commission sitting
there had convicted them of war crimes—collaborating
with the Japanese after Germany’s surrender. Id., at 765–
766. Like the petitioners here, the Germans claimed that
their detentions violated the Constitution and interna-
tional law, and sought a writ of habeas corpus. Writing
for the Court, Justice Jackson held that American courts
lacked habeas jurisdiction:
“We are cited to [sic] no instance where a court, in
this or any other country where the writ is known, has
issued it on behalf of an alien enemy who, at no rele-
vant time and in no stage of his captivity, has been
within its territorial jurisdiction. Nothing in the text
of the Constitution extends such a right, nor does any-
10 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
thing in our statutes.” Id., at 768.
Justice Jackson then elaborated on the historical scope
of the writ:
“The alien, to whom the United States has been tra-
ditionally hospitable, has been accorded a generous
and ascending scale of rights as he increases his iden-
tity with our society. . . .
“But, in extending constitutional protections beyond
the citizenry, the Court has been at pains to point out
that it was the alien’s presence within its territorial
jurisdiction that gave the Judiciary power to act.” Id.,
at 770–771.
Lest there be any doubt about the primacy of territorial
sovereignty in determining the jurisdiction of a habeas
court over an alien, Justice Jackson distinguished two
cases in which aliens had been permitted to seek habeas
relief, on the ground that the prisoners in those cases were
in custody within the sovereign territory of the United
States. Id., at 779–780 (discussing Ex parte Quirin, 317
U. S. 1 (1942), and In re Yamashita, 327 U. S. 1 (1946)).
“By reason of our sovereignty at that time over [the Phil-
ippines],” Jackson wrote, “Yamashita stood much as did
Quirin before American courts.” 339 U. S., at 780.
Eisentrager thus held—held beyond any doubt—that the
Constitution does not ensure habeas for aliens held by the
United States in areas over which our Government is not
sovereign.3
——————
3
In its failed attempt to distinguish Eisentrager, the Court comes up
with the notion that “de jure sovereignty” is simply an additional factor
that can be added to (presumably) “de facto sovereignty” (i.e., practical
control) to determine the availability of habeas for aliens, but that it is
not a necessary factor, whereas de facto sovereignty is. It is perhaps in
this de facto sense, the Court speculates, that Eisentrager found “sover-
eignty” lacking. See ante, at 23–25. If that were so, one would have
expected Eisentrager to explain in some detail why the United States
11 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
The Court would have us believe that Eisentrager rested
on “[p]ractical considerations,” such as the “difficulties of
ordering the Government to produce the prisoners in a
habeas corpus proceeding.” Ante, at 32. Formal sover-
eignty, says the Court, is merely one consideration “that
bears upon which constitutional guarantees apply” in a
given location. Ante, at 34. This is a sheer rewriting of
the case. Eisentrager mentioned practical concerns, to be
sure—but not for the purpose of determining under what
circumstances American courts could issue writs of habeas
corpus for aliens abroad. It cited them to support its
holding that the Constitution does not empower courts to
issue writs of habeas corpus to aliens abroad in any cir-
cumstances. As Justice Black accurately said in dissent,
“the Court’s opinion inescapably denies courts power to
afford the least bit of protection for any alien who is sub-
ject to our occupation government abroad, even if he is
neither enemy nor belligerent and even after peace is
officially declared.” 339 U. S., at 796.
The Court also tries to change Eisentrager into a “func-
——————
did not have practical control over the American zone of occupation. It
did not (and probably could not). Of course this novel de facto-de jure
approach does not explain why the writ never issued to Scotland, which
was assuredly within the de facto control of the English crown. See
infra, at 22.
To support its holding that de facto sovereignty is relevant to the
reach of habeas corpus, the Court cites our decision in Fleming v. Page,
9 How. 603 (1850), a case about the application of a customs statute to
a foreign port occupied by U. S. forces. See ante, at 24. The case used
the phrase “subject to the sovereignty and dominion of the United
States” to refer to the United States’ practical control over a “foreign
country.” 9 How., at 614. But Fleming went on to explain that because
the port remained part of the “enemy’s country,” even though under
U. S. military occupation, “its subjugation did not compel the United
States, while they held it, to regard it as part of their dominions, nor to
give to it any form of civil government, nor to extend to it our laws.”
Id., at 618. If Fleming is relevant to these cases at all, it undermines
the Court’s holding.
12 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
tional” test by quoting a paragraph that lists the charac-
teristics of the German petitioners:
“To support [the] assumption [of a constitutional right
to habeas corpus] we must hold that a prisoner of our
military authorities is constitutionally entitled to the
writ, even though he (a) is an enemy alien; (b) has
never been or resided in the United States; (c) was
captured outside of our territory and there held in
military custody as a prisoner of war; (d) was tried
and convicted by a Military Commission sitting out-
side the United States; (e) for offenses against laws of
war committed outside the United States; (f) and is at
all times imprisoned outside the United States.” Id.,
at 777 (quoted in part, ante, at 36).
But that paragraph is introduced by a sentence stating
that “[t]he foregoing demonstrates how much further we
must go if we are to invest these enemy aliens, resident,
captured and imprisoned abroad, with standing to demand
access to our courts.” 339 U. S., at 777 (emphasis added).
How much further than what? Further than the rule set
forth in the prior section of the opinion, which said that “in
extending constitutional protections beyond the citizenry,
the Court has been at pains to point out that it was the
alien’s presence within its territorial jurisdiction that gave
the Judiciary power to act.” Id., at 771. In other words,
the characteristics of the German prisoners were set forth,
not in application of some “functional” test, but to show
that the case before the Court represented an a fortiori
application of the ordinary rule. That is reaffirmed by the
sentences that immediately follow the listing of the Ger-
mans’ characteristics:
“We have pointed out that the privilege of litigation
has been extended to aliens, whether friendly or en-
emy, only because permitting their presence in the
country implied protection. No such basis can be in-
13 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
voked here, for these prisoners at no relevant time
were within any territory over which the United
States is sovereign, and the scenes of their offense,
their capture, their trial and their punishment were
all beyond the territorial jurisdiction of any court of
the United States.” Id., at 777–778.
Eisentrager nowhere mentions a “functional” test, and the
notion that it is based upon such a principle is patently
false.4
The Court also reasons that Eisentrager must be read as
a “functional” opinion because of our prior decisions in the
Insular Cases. See ante, at 26–29. It cites our statement
in Balzac v. Porto Rico, 258 U. S. 298, 312 (1922), that
“‘the real issue in the Insular Cases was not whether the
Constitution extended to the Philippines or Porto Rico
when we went there, but which of its provisions were
——————
4
JUSTICE SOUTER’s concurrence relies on our decision four Terms ago
in Rasul v. Bush, 542 U. S. 466 (2004), where the Court interpreted the
habeas statute to extend to aliens held at Guantanamo Bay. He thinks
that “no one who reads the Court’s opinion in Rasul could seriously
doubt that the jurisdictional question must be answered the same way
in purely constitutional cases.” Ante, at 1–2. But Rasul was devoted
primarily to an explanation of why Eisentrager’s statutory holding no
longer controlled given our subsequent decision in Braden v. 30th
Judicial Circuit Court of Ky., 410 U. S. 484 (1973). See Rasul, supra, at
475–479. And the opinion of the Court today—which JUSTICE SOUTER
joins—expressly rejects the historical evidence cited in Rasul to support
its conclusion about the reach of habeas corpus. Compare id., at 481–
482, with ante, at 18. Moreover, even if one were to accept as true what
JUSTICE SOUTER calls Rasul’s “well-considered” dictum, that does not
explain why Eisentrager’s constitutional holding must be overruled or
how it can be distinguished. (After all, Rasul distinguished Eisen-
trager’s statutory holding on a ground inapplicable to its constitutional
holding.) In other words, even if the Court were to conclude that
Eisentrager’s rule was incorrect as an original matter, the Court would
have to explain the justification for departing from that precedent. It
therefore cannot possibly be true that Rasul controls this case, as
JUSTICE SOUTER suggests.
14 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
applicable by way of limitation upon the exercise of execu-
tive and legislative power in dealing with new conditions
and requirements.’” Ante, at 28. But the Court conven-
iently omits Balzac’s predicate to that statement: “The
Constitution of the United States is in force in Porto Rico
as it is wherever and whenever the sovereign power of that
government is exerted.” 258 U. S., at 312 (emphasis
added). The Insular Cases all concerned territories ac-
quired by Congress under its Article IV authority and
indisputably part of the sovereign territory of the United
States. See United States v. Verdugo-Urquidez, 494 U. S.
259, 268 (1990); Reid v. Covert, 354 U. S. 1, 13 (1957)
(plurality opinion of Black, J.). None of the Insular Cases
stands for the proposition that aliens located outside U. S.
sovereign territory have constitutional rights, and Eisen-
trager held just the opposite with respect to habeas corpus.
As I have said, Eisentrager distinguished Yamashita on
the ground of “our sovereignty [over the Philippines],” 339
U. S., at 780.
The Court also relies on the “[p]ractical considerations”
that influenced our decision in Reid v. Covert, supra. See
ante, at 29–32. But all the Justices in the majority except
Justice Frankfurter limited their analysis to the rights of
citizens abroad. See Reid, supra, at 5–6 (plurality opinion
of Black, J.); id., at 74–75 (Harlan, J., concurring in re-
sult). (Frankfurter limited his analysis to the even nar-
rower class of civilian dependents of American military
personnel abroad, see id., at 45 (opinion concurring in
result).) In trying to wring some kind of support out of
Reid for today’s novel holding, the Court resorts to a chain
of logic that does not hold. The members of the Reid
majority, the Court says, were divided over whether In re
Ross, 140 U. S. 453 (1891), which had (according to the
Court) held that under certain circumstances American
citizens abroad do not have indictment and jury-trial
rights, should be overruled. In the Court’s view, the Reid
15 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
plurality would have overruled Ross, but Justices Frank-
furter and Harlan preferred to distinguish it. The upshot:
“If citizenship had been the only relevant factor in the
case, it would have been necessary for the Court to over-
turn Ross, something Justices Harlan and Frankfurter
were unwilling to do.” Ante, at 32. What, exactly, is this
point supposed to prove? To say that “practical considera-
tions” determine the precise content of the constitutional
protections American citizens enjoy when they are abroad
is quite different from saying that “practical considera-
tions” determine whether aliens abroad enjoy any consti-
tutional protections whatever, including habeas. In other
words, merely because citizenship is not a sufficient factor
to extend constitutional rights abroad does not mean that
it is not a necessary one.
The Court tries to reconcile Eisentrager with its holding
today by pointing out that in postwar Germany, the
United States was “answerable to its Allies” and did not
“pla[n] a long-term occupation.” Ante, at 38, 39. Those
factors were not mentioned in Eisentrager. Worse still, it
is impossible to see how they relate to the Court’s asserted
purpose in creating this “functional” test—namely, to
ensure a judicial inquiry into detention and prevent the
political branches from acting with impunity. Can it
possibly be that the Court trusts the political branches
more when they are beholden to foreign powers than when
they act alone?
After transforming the a fortiori elements discussed
above into a “functional” test, the Court is still left with
the difficulty that most of those elements exist here as
well with regard to all the detainees. To make the appli-
cation of the newly crafted “functional” test produce a
different result in the present cases, the Court must rely
upon factors (d) and (e): The Germans had been tried by a
military commission for violations of the laws of war; the
present petitioners, by contrast, have been tried by a
16 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
Combatant Status Review Tribunal (CSRT) whose proce-
dural protections, according to the Court’s ipse dixit, “fall
well short of the procedures and adversarial mechanisms
that would eliminate the need for habeas corpus review.”
Ante, at 37. But no one looking for “functional” equiva-
lents would put Eisentrager and the present cases in the
same category, much less place the present cases in a
preferred category. The difference between them cries out
for lesser procedures in the present cases. The prisoners
in Eisentrager were prosecuted for crimes after the cessa-
tion of hostilities; the prisoners here are enemy combat-
ants detained during an ongoing conflict. See Hamdi v.
Rumsfeld, 542 U. S. 507, 538 (2004) (plurality opinion)
(suggesting, as an adequate substitute for habeas corpus,
the use of a tribunal akin to a CSRT to authorize the
detention of American citizens as enemy combatants dur-
ing the course of the present conflict).
The category of prisoner comparable to these detainees
are not the Eisentrager criminal defendants, but the more
than 400,000 prisoners of war detained in the United
States alone during World War II. Not a single one was
accorded the right to have his detention validated by a
habeas corpus action in federal court—and that despite
the fact that they were present on U. S. soil. See Bradley,
The Military Commissions Act, Habeas Corpus, and the
Geneva Conventions, 101 Am. J. Int’l L. 322, 338 (2007).
The Court’s analysis produces a crazy result: Whereas
those convicted and sentenced to death for war crimes are
without judicial remedy, all enemy combatants detained
during a war, at least insofar as they are confined in an
area away from the battlefield over which the United
States exercises “absolute and indefinite” control, may
seek a writ of habeas corpus in federal court. And, as an
even more bizarre implication from the Court’s reasoning,
those prisoners whom the military plans to try by full-
dress Commission at a future date may file habeas peti-
17 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
tions and secure release before their trials take place.
There is simply no support for the Court’s assertion that
constitutional rights extend to aliens held outside U. S.
sovereign territory, see Verdugo-Urquidez, 494 U. S., at
271, and Eisentrager could not be clearer that the privilege
of habeas corpus does not extend to aliens abroad. By
blatantly distorting Eisentrager, the Court avoids the
difficulty of explaining why it should be overruled. See
Planned Parenthood of Southeastern Pa. v. Casey, 505
U. S. 833, 854–855 (1992) (identifying stare decisis fac-
tors). The rule that aliens abroad are not constitutionally
entitled to habeas corpus has not proved unworkable in
practice; if anything, it is the Court’s “functional” test that
does not (and never will) provide clear guidance for the
future. Eisentrager forms a coherent whole with the ac-
cepted proposition that aliens abroad have no substantive
rights under our Constitution. Since it was announced, no
relevant factual premises have changed. It has engen-
dered considerable reliance on the part of our military.
And, as the Court acknowledges, text and history do not
clearly compel a contrary ruling. It is a sad day for the
rule of law when such an important constitutional pre-
cedent is discarded without an apologia, much less an
apology.
C
What drives today’s decision is neither the meaning of
the Suspension Clause, nor the principles of our prece-
dents, but rather an inflated notion of judicial supremacy.
The Court says that if the extraterritorial applicability of
the Suspension Clause turned on formal notions of sover-
eignty, “it would be possible for the political branches to
govern without legal constraint” in areas beyond the
sovereign territory of the United States. Ante, at 35. That
cannot be, the Court says, because it is the duty of this
Court to say what the law is. Id., at 35–36. It would be
18 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
difficult to imagine a more question-begging analysis.
“The very foundation of the power of the federal courts to
declare Acts of Congress unconstitutional lies in the power
and duty of those courts to decide cases and controversies
properly before them.” United States v. Raines, 362 U. S.
17, 20–21 (1960) (citing Marbury v. Madison, 1 Cranch
137 (1803); emphasis added). Our power “to say what the
law is” is circumscribed by the limits of our statutorily and
constitutionally conferred jurisdiction. See Lujan v. De-
fenders of Wildlife, 504 U. S. 555, 573–578 (1992). And
that is precisely the question in these cases: whether the
Constitution confers habeas jurisdiction on federal courts
to decide petitioners’ claims. It is both irrational and
arrogant to say that the answer must be yes, because
otherwise we would not be supreme.
But so long as there are some places to which habeas
does not run—so long as the Court’s new “functional” test
will not be satisfied in every case—then there will be cir-
cumstances in which “it would be possible for the political
branches to govern without legal constraint.” Or, to put it
more impartially, areas in which the legal determinations
of the other branches will be (shudder!) supreme. In other
words, judicial supremacy is not really assured by the
constitutional rule that the Court creates. The gap be-
tween rationale and rule leads me to conclude that the
Court’s ultimate, unexpressed goal is to preserve the
power to review the confinement of enemy prisoners held
by the Executive anywhere in the world. The “functional”
test usefully evades the precedential landmine of Eisen-
trager but is so inherently subjective that it clears a wide
path for the Court to traverse in the years to come.
III
Putting aside the conclusive precedent of Eisentrager, it
is clear that the original understanding of the Suspension
Clause was that habeas corpus was not available to aliens
19 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
abroad, as Judge Randolph’s thorough opinion for the
court below detailed. See 476 F. 3d 981, 988–990 (CADC
2007).
The Suspension Clause reads: “The Privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may
require it.” U. S. Const., Art. I, §9, cl. 2. The proper
course of constitutional interpretation is to give the text
the meaning it was understood to have at the time of its
adoption by the people. See, e.g., Crawford v. Washington,
541 U. S. 36, 54 (2004). That course is especially de-
manded when (as here) the Constitution limits the power
of Congress to infringe upon a pre-existing common-law
right. The nature of the writ of habeas corpus that cannot
be suspended must be defined by the common-law writ
that was available at the time of the founding. See
McNally v. Hill, 293 U. S. 131, 135–136 (1934); see also
INS v. St. Cyr, 533 U. S. 289, 342 (2001) (SCALIA, J., dis-
senting); D’Oench, Duhme & Co. v. FDIC, 315 U. S. 447,
471, n. 9 (1942) (Jackson, J., concurring).
It is entirely clear that, at English common law, the writ
of habeas corpus did not extend beyond the sovereign
territory of the Crown. To be sure, the writ had an “ex-
traordinary territorial ambit,” because it was a so-called
“prerogative writ,” which, unlike other writs, could extend
beyond the realm of England to other places where the
Crown was sovereign. R. Sharpe, The Law of Habeas
Corpus 188 (2d ed. 1989) (hereinafter Sharpe); see also
Note on the Power of the English Courts to Issue the Writ
of Habeas to Places Within the Dominions of the Crown,
But Out of England, and On the Position of Scotland in
Relation to that Power, 8 Jurid. Rev. 157 (1896) (hereinaf-
ter Note on Habeas); King v. Cowle, 2 Burr. 834, 855–856,
97 Eng. Rep. 587, 599 (K. B. 1759).
But prerogative writs could not issue to foreign coun-
tries, even for British subjects; they were confined to the
20 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
King’s dominions—those areas over which the Crown was
sovereign. See Sharpe 188; 2 R. Chambers, A Course of
Lectures on the English Law 1767–1773, pp. 7–8 (Curley
ed. 1986); 3 W. Blackstone, Commentaries on the Laws of
England 131 (1768) (hereinafter Blackstone). Thus, the
writ has never extended to Scotland, which, although
united to England when James I succeeded to the English
throne in 1603, was considered a foreign dominion under a
different Crown—that of the King of Scotland. Sharpe
191; Note on Habeas 158.5 That is why Lord Mansfield
wrote that “[t]o foreign dominions, which belong to a
prince who succeeds to the throne of England, this Court
has no power to send any writ of any kind. We cannot
send a habeas corpus to Scotland . . . .” Cowle, supra, at
856, 97 Eng. Rep., at 599–600.
The common-law writ was codified by the Habeas Cor-
pus Act of 1679, which “stood alongside Magna Charta and
the English Bill of Rights of 1689 as a towering common
law lighthouse of liberty—a beacon by which framing
lawyers in America consciously steered their course.”
Amar, Sixth Amendment First Principles, 84 Geo. L. J.
641, 663 (1996). The writ was established in the Colonies
beginning in the 1690’s and at least one colony adopted
the 1679 Act almost verbatim. See Dept. of Political Sci-
ence, Okla. State Univ., Research Reports, No. 1, R.
Walker, The American Reception of the Writ of Liberty
12–16 (1961). Section XI of the Act stated where the writ
could run. It “may be directed and run into any county
palatine, the cinque-ports, or other privileged places
within the kingdom of England, dominion of Wales, or
town of Berwick upon Tweed, and the islands of Jersey or
Guernsey.” 31 Car. 2, ch. 2. The cinque-ports and county
palatine were so-called “exempt jurisdictions”—franchises
——————
5
My dissent in Rasul v. Bush, 542 U. S. 466, 503 (2004), mistakenly
included Scotland among the places to which the writ could run.
21 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
granted by the Crown in which local authorities would
manage municipal affairs, including the court system, but
over which the Crown maintained ultimate sovereignty.
See 3 Blackstone 78–79. The other places listed—Wales,
Berwick-upon-Tweed, Jersey, and Guernsey—were terri-
tories of the Crown even though not part England proper.
See Cowle, supra, at 853–854, 97 Eng. Rep., at 598 (Wales
and Berwick-upon-Tweed); 1 Blackstone 104 (Jersey and
Guernsey); Sharpe 192 (same).
The Act did not extend the writ elsewhere, even though
the existence of other places to which British prisoners
could be sent was recognized by the Act. The possibility of
evading judicial review through such spiriting-away was
eliminated, not by expanding the writ abroad, but by
forbidding (in Article XII of the Act) the shipment of pris-
oners to places where the writ did not run or where its
execution would be difficult. See 31 Car. 2, ch. 2; see
generally Nutting, The Most Wholesome Law—The Ha-
beas Corpus Act of 1679, 65 Am. Hist. Rev. 527 (1960).
The Habeas Corpus Act, then, confirms the consensus
view of scholars and jurists that the writ did not run
outside the sovereign territory of the Crown. The Court
says that the idea that “jurisdiction followed the King’s
officers” is an equally credible view. Ante, at 16. It is not
credible at all. The only support the Court cites for it is a
page in Boumediene’s brief, which in turn cites this
Court’s dicta in Rasul, 542 U. S., at 482, mischaracterizing
Lord Mansfield’s statement that the writ ran to any place
that was “under the subjection of the Crown,” Cowle,
supra, at 856, 97 Eng. Rep., at 599. It is clear that Lord
Mansfield was saying that the writ extended outside the
realm of England proper, not outside the sovereign terri-
tory of the Crown.6
——————
6
The dicta in Rasul also cited Ex parte Mwenya, [1960] 1 Q. B. 241,
(C. A.), but as I explained in dissent, “[e]ach judge [in Mwenya] made
22 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
The Court dismisses the example of Scotland on the
grounds that Scotland had its own judicial system and
that the writ could not, as a practical matter, have been
enforced there. Ante, at 20. Those explanations are to-
tally unpersuasive. The existence of a separate court
system was never a basis for denying the power of a court
to issue the writ. See 9 W. Holdsworth, A History of Eng-
lish Law 124 (3d ed. 1944) (citing Ex parte Anderson, 3 El.
and El. 487 (1861)). And as for logistical problems, the
same difficulties were present for places like the Channel
Islands, where the writ did run. The Court attempts to
draw an analogy between the prudential limitations on
issuing the writ to such remote areas within the sovereign
territory of the Crown and the jurisdictional prohibition on
issuing the writ to Scotland. See ante, at 19–20. But the
very authority that the Court cites, Lord Mansfield, ex-
pressly distinguished between these two concepts, stating
that English courts had the “power” to send the writ to
places within the Crown’s sovereignty, the “only question”
being the “propriety,” while they had “no power to send
any writ of any kind” to Scotland and other “foreign do-
minions.” Cowle, supra, at 856, 97 Eng. Rep., at 599–600.
The writ did not run to Scotland because, even after the
Union, “Scotland remained a foreign dominion of the
prince who succeeded to the English throne,” and “union
did not extend the prerogative of the English crown to
Scotland.” Sharpe 191; see also Sir Matthew Hale’s The
Prerogatives of the King 19 (D. Yale ed. 1976).7
——————
clear that the detainee’s status as a subject was material to the resolu-
tion of the case,” 542 U. S., at 504.
7
The Court also argues that the fact that the writ could run to Ire-
land, even though it was ruled under a “separate” crown, shows that
formal sovereignty was not the touchstone of habeas jurisdiction. Ante,
at 21. The passage from Blackstone that the Court cites, however,
describes Ireland as “a dependent, subordinate kingdom” that was part
of the “king’s dominions.” 1 Blackstone 98, 100 (internal quotation
23 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
In sum, all available historical evidence points to the
conclusion that the writ would not have been available at
common law for aliens captured and held outside the
sovereign territory of the Crown. Despite three opening
briefs, three reply briefs, and support from a legion of
amici, petitioners have failed to identify a single case in
the history of Anglo-American law that supports their
claim to jurisdiction. The Court finds it significant that
there is no recorded case denying jurisdiction to such
prisoners either. See ante, at 21–22. But a case standing
for the remarkable proposition that the writ could issue to
a foreign land would surely have been reported, whereas a
case denying such a writ for lack of jurisdiction would
likely not. At a minimum, the absence of a reported case
either way leaves unrefuted the voluminous commentary
stating that habeas was confined to the dominions of the
Crown.
What history teaches is confirmed by the nature of the
limitations that the Constitution places upon suspension
of the common-law writ. It can be suspended only “in
Cases of Rebellion or Invasion.” Art. I, §9, cl. 2. The latter
case (invasion) is plainly limited to the territory of the
United States; and while it is conceivable that a rebellion
could be mounted by American citizens abroad, surely the
overwhelming majority of its occurrences would be domes-
tic. If the extraterritorial scope of habeas turned on flexi-
ble, “functional” considerations, as the Court holds, why
would the Constitution limit its suspension almost en-
tirely to instances of domestic crisis? Surely there is an
even greater justification for suspension in foreign lands
where the United States might hold prisoners of war
——————
marks omitted). And Lord Mansfield’s opinion in Cowle plainly under-
stood Ireland to be “a dominion of the Crown of England,” in contrast to
the “foreign dominio[n]” of Scotland, and thought that distinction
dispositive of the question of habeas jurisdiction. Cowle, supra, at 856,
97 Eng. Rep., at 599–600.
24 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
during an ongoing conflict. And correspondingly, there is
less threat to liberty when the Government suspends the
writ’s (supposed) application in foreign lands, where even
on the most extreme view prisoners are entitled to fewer
constitutional rights. It makes no sense, therefore, for the
Constitution generally to forbid suspension of the writ
abroad if indeed the writ has application there.
It may be objected that the foregoing analysis proves too
much, since this Court has already suggested that the writ
of habeas corpus does run abroad for the benefit of United
States citizens. “[T]he position that United States citizens
throughout the world may be entitled to habeas corpus
rights . . . is precisely the position that this Court adopted
in Eisentrager, see 339 U. S., at 769–770, even while
holding that aliens abroad did not have habeas corpus
rights.” Rasul, 542 U. S., at 501, 502 (SCALIA, J., dissent-
ing) (emphasis deleted). The reason for that divergence is
not difficult to discern. The common-law writ, as received
into the law of the new constitutional Republic, took on
such changes as were demanded by a system in which rule
is derived from the consent of the governed, and in which
citizens (not “subjects”) are afforded defined protections
against the Government. As Justice Story wrote for the
Court,
“The common law of England is not to be taken in all
respects to be that of America. Our ancestors brought
with them its general principles, and claimed it as
their birthright; but they brought with them and
adopted only that portion which was applicable to
their situation.” Van Ness v. Pacard, 2 Pet. 137, 144
(1829).
See also Hall, The Common Law: An Account of its Recep-
tion in the United States, 4 Vand. L. Rev. 791 (1951). It
accords with that principle to say, as the plurality opinion
said in Reid: “When the Government reaches out to punish
25 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
a citizen who is abroad, the shield which the Bill of Rights
and other parts of the Constitution provide to protect his
life and liberty should not be stripped away just because
he happens to be in another land.” 354 U. S., at 6; see also
Verdugo-Urquidez, 494 U. S., at 269–270. On that analy-
sis, “[t]he distinction between citizens and aliens follows
from the undoubted proposition that the Constitution does
not create, nor do general principles of law create, any
juridical relation between our country and some unde-
fined, limitless class of noncitizens who are beyond our
territory.” Id., at 275 (KENNEDY, J., concurring).
In sum, because I conclude that the text and history of
the Suspension Clause provide no basis for our jurisdic-
tion, I would affirm the Court of Appeals even if Eisen-
trager did not govern these cases.
* * *
Today the Court warps our Constitution in a way that
goes beyond the narrow issue of the reach of the Suspen-
sion Clause, invoking judicially brainstormed separation-
of-powers principles to establish a manipulable “func-
tional” test for the extraterritorial reach of habeas corpus
(and, no doubt, for the extraterritorial reach of other
constitutional protections as well). It blatantly misde-
scribes important precedents, most conspicuously Justice
Jackson’s opinion for the Court in Johnson v. Eisentrager.
It breaks a chain of precedent as old as the common law
that prohibits judicial inquiry into detentions of aliens
abroad absent statutory authorization. And, most tragi-
cally, it sets our military commanders the impossible task
of proving to a civilian court, under whatever standards
this Court devises in the future, that evidence supports
the confinement of each and every enemy prisoner.
The Nation will live to regret what the Court has done
today. I dissent.
PRESIDENT LOSES ANOTHER SUPREME COURT DECISION-ENOUGH ALREADY!!!!!
1 (Slip Opinion) OCTOBER TERM, 2007
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BOUMEDIENE ET AL. v. BUSH, PRESIDENT OF THE
UNITED STATES, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 06–1195. Argued December 5, 2007—Decided June 12, 2008*
In the Authorization for Use of Military Force (AUMF), Congress em-
powered the President “to use all necessary and appropriate force
against those . . . he determines planned, authorized, committed, or
aided the terrorist attacks . . . on September 11, 2001.” In Hamdi v.
Rumsfeld, 542 U. S. 507, 518, 588–589, five Justices recognized that
detaining individuals captured while fighting against the United
States in Afghanistan for the duration of that conflict was a funda-
mental and accepted incident to war. Thereafter, the Defense De-
partment established Combatant Status Review Tribunals (CSRTs)
to determine whether individuals detained at the U. S. Naval Station
at Guantanamo Bay, Cuba, were “enemy combatants.”
Petitioners are aliens detained at Guantanamo after being cap-
tured in Afghanistan or elsewhere abroad and designated enemy
combatants by CSRTs. Denying membership in the al Qaeda terror-
ist network that carried out the September 11 attacks and the Tali-
ban regime that supported al Qaeda, each petitioner sought a writ of
habeas corpus in the District Court, which ordered the cases dis-
missed for lack of jurisdiction because Guantanamo is outside sover-
eign U. S. territory. The D. C. Circuit affirmed, but this Court re-
versed, holding that 28 U. S. C. §2241 extended statutory habeas
jurisdiction to Guantanamo. See Rasul v. Bush, 542 U. S. 466, 473.
Petitioners’ cases were then consolidated into two proceedings. In
the first, the district judge granted the Government’s motion to dis-
miss, holding that the detainees had no rights that could be vindi-
——————
*Together with No. 06–1196, Al Odah, Next Friend of Al Odah, et al.
v. United States et al., also on certiorari to the same court.
2 BOUMEDIENE v. BUSH
Syllabus
cated in a habeas action. In the second, the judge held that the de-
tainees had due process rights.
While appeals were pending, Congress passed the Detainee Treat-
ment Act of 2005 (DTA), §1005(e) of which amended 28 U. S. C. §2241
to provide that “no court, justice, or judge shall have jurisdiction to
. . . consider . . . an application for . . . habeas corpus filed by or on
behalf of an alien detained . . . at Guantanamo,” and gave the D. C.
Circuit “exclusive” jurisdiction to review CSRT decisions. In Ham-
dan v. Rumsfeld, 548 U. S. 557, 576–577, the Court held this provi-
sion inapplicable to cases (like petitioners’) pending when the DTA
was enacted. Congress responded with the Military Commissions Act
of 2006 (MCA), §7(a) of which amended §2241(e)(1) to deny jurisdic-
tion with respect to habeas actions by detained aliens determined to
be enemy combatants, while §2241(e)(2) denies jurisdiction as to “any
other action against the United States . . . relating to any aspect of
the detention, transfer, treatment, trial, or conditions of confinement”
of a detained alien determined to be an enemy combatant. MCA
§7(b) provides that the 2241(e) amendments “shall take effect on the
date of the enactment of this Act, and shall apply to all cases, without
exception, pending on or after [that] date . . . which relate to any as-
pect of the detention, transfer, treatment, trial, or conditions of de-
tention of an alien detained . . . since September 11, 2001.”
The D. C. Circuit concluded that MCA §7 must be read to strip
from it, and all federal courts, jurisdiction to consider petitioners’ ha-
beas applications; that petitioners are not entitled to habeas or the
protections of the Suspension Clause, U. S. Const., Art. I, §9, cl. 2,
which provides that “[t]he Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it”; and that it was therefore unneces-
sary to consider whether the DTA provided an adequate and effective
substitute for habeas.
Held:
1. MCA §7 denies the federal courts jurisdiction to hear habeas ac-
tions, like the instant cases, that were pending at the time of its en-
actment. Section §7(b)’s effective date provision undoubtedly applies
to habeas actions, which, by definition, “relate to . . . detention”
within that section’s meaning. Petitioners argue to no avail that
§7(b) does not apply to a §2241(e)(1) habeas action, but only to “any
other action” under §2241(e)(2), because it largely repeats that sec-
tion’s language. The phrase “other action” in §2241(e)(2) cannot be
understood without referring back to §2241(e)(1), which explicitly
mentions the “writ of habeas corpus.” Because the two paragraphs’
structure implies that habeas is a type of action “relating to any as-
3 Cite as: 553 U. S. ____ (2008)
Syllabus
pect of . . . detention,” etc., pending habeas actions are in the category
of cases subject to the statute’s jurisdictional bar. This is confirmed
by the MCA’s legislative history. Thus, if MCA §7 is valid, petition-
ers’ cases must be dismissed. Pp. 5–8.
2. Petitioners have the constitutional privilege of habeas corpus.
They are not barred from seeking the writ or invoking the Suspen-
sion Clause’s protections because they have been designated as en-
emy combatants or because of their presence at Guantanamo. Pp. 8–
41.
(a) A brief account of the writ’s history and origins shows that
protection for the habeas privilege was one of the few safeguards of
liberty specified in a Constitution that, at the outset, had no Bill of
Rights; in the system the Framers conceived, the writ has a central-
ity that must inform proper interpretation of the Suspension Clause.
That the Framers considered the writ a vital instrument for the pro-
tection of individual liberty is evident from the care taken in the Sus-
pension Clause to specify the limited grounds for its suspension: The
writ may be suspended only when public safety requires it in times of
rebellion or invasion. The Clause is designed to protect against cycli-
cal abuses of the writ by the Executive and Legislative Branches. It
protects detainee rights by a means consistent with the Constitu-
tion’s essential design, ensuring that, except during periods of formal
suspension, the Judiciary will have a time-tested device, the writ, to
maintain the “delicate balance of governance.” Hamdi, supra, at 536.
Separation-of-powers principles, and the history that influenced their
design, inform the Clause’s reach and purpose. Pp. 8–15.
(b) A diligent search of founding-era precedents and legal com-
mentaries reveals no certain conclusions. None of the cases the par-
ties cite reveal whether a common-law court would have granted, or
refused to hear for lack of jurisdiction, a habeas petition by a prisoner
deemed an enemy combatant, under a standard like the Defense De-
partment’s in these cases, and when held in a territory, like Guan-
tanamo, over which the Government has total military and civil con-
trol. The evidence as to the writ’s geographic scope at common law is
informative, but, again, not dispositive. Petitioners argue that the
site of their detention is analogous to two territories outside England
to which the common-law writ ran, the exempt jurisdictions and In-
dia, but critical differences between these places and Guantanamo
render these claims unpersuasive. The Government argues that
Guantanamo is more closely analogous to Scotland and Hanover,
where the writ did not run, but it is unclear whether the common-law
courts lacked the power to issue the writ there, or whether they re-
frained from doing so for prudential reasons. The parties’ arguments
that the very lack of a precedent on point supports their respective
4 BOUMEDIENE v. BUSH
Syllabus
positions are premised upon the doubtful assumptions that the his-
torical record is complete and that the common law, if properly un-
derstood, yields a definite answer to the questions before the Court.
Pp. 15–22.
(c) The Suspension Clause has full effect at Guantanamo. The
Government’s argument that the Clause affords petitioners no rights
because the United States does not claim sovereignty over the naval
station is rejected. Pp. 22–42.
(i) The Court does not question the Government’s position that
Cuba maintains sovereignty, in the legal and technical sense, over
Guantanamo, but it does not accept the Government’s premise that
de jure sovereignty is the touchstone of habeas jurisdiction. Com-
mon-law habeas’ history provides scant support for this proposition,
and it is inconsistent with the Court’s precedents and contrary to
fundamental separation-of-powers principles. Pp. 22–25.
(ii) Discussions of the Constitution’s extraterritorial applica-
tion in cases involving provisions other than the Suspension Clause
undermine the Government’s argument. Fundamental questions re-
garding the Constitution’s geographic scope first arose when the Na-
tion acquired Hawaii and the noncontiguous Territories ceded by
Spain after the Spanish-American War, and Congress discontinued
its prior practice of extending constitutional rights to territories by
statute. In the so-called Insular Cases, the Court held that the Con-
stitution had independent force in the territories that was not contin-
gent upon acts of legislative grace. See, e.g., Dorr v. United States,
195 U. S. 138. Yet because of the difficulties and disruption inherent
in transforming the former Spanish colonies’ civil-law system into an
Anglo-American system, the Court adopted the doctrine of territorial
incorporation, under which the Constitution applies in full in incor-
porated Territories surely destined for statehood but only in part in
unincorporated Territories. See, e.g., id., at 143. Practical considera-
tions likewise influenced the Court’s analysis in Reid v. Covert, 354
U. S. 1, where, in applying the jury provisions of the Fifth and Sixth
Amendments to American civilians being tried by the U. S. military
abroad, both the plurality and the concurrences noted the relevance
of practical considerations, related not to the petitioners’ citizenship,
but to the place of their confinement and trial. Finally, in holding
that habeas jurisdiction did not extend to enemy aliens, convicted of
violating the laws of war, who were detained in a German prison dur-
ing the Allied Powers’ post-World War II occupation, the Court, in
Johnson v. Eisentrager, 339 U. S. 763, stressed the practical difficul-
ties of ordering the production of the prisoners, id., at 779. The Gov-
ernment’s reading of Eisentrager as adopting a formalistic test for de-
termining the Suspension Clause’s reach is rejected because: (1) the
5 Cite as: 553 U. S. ____ (2008)
Syllabus
discussion of practical considerations in that case was integral to a
part of the Court’s opinion that came before it announced its holding,
see id., at 781; (2) it mentioned the concept of territorial sovereignty
only twice in its opinion, in contrast to its significant discussion of
practical barriers to the running of the writ; and (3) if the Govern-
ment’s reading were correct, the opinion would have marked not only
a change in, but a complete repudiation of, the Insular Cases’ (and
later Reid’s) functional approach. A constricted reading of Eisen-
trager overlooks what the Court sees as a common thread uniting all
these cases: The idea that extraterritoriality questions turn on objec-
tive factors and practical concerns, not formalism. Pp. 25–34.
(iii) The Government’s sovereignty-based test raises troubling
separation-of-powers concerns, which are illustrated by Guan-
tanamo’s political history. Although the United States has main-
tained complete and uninterrupted control of Guantanamo for over
100 years, the Government’s view is that the Constitution has no ef-
fect there, at least as to noncitizens, because the United States dis-
claimed formal sovereignty in its 1903 lease with Cuba. The Nation’s
basic charter cannot be contracted away like this. The Constitution
grants Congress and the President the power to acquire, dispose of,
and govern territory, not the power to decide when and where its
terms apply. To hold that the political branches may switch the Con-
stitution on or off at will would lead to a regime in which they, not
this Court, say “what the law is.” Marbury v. Madison, 1 Cranch
137, 177. These concerns have particular bearing upon the Suspen-
sion Clause question here, for the habeas writ is itself an indispensa-
ble mechanism for monitoring the separation of powers. Pp. 34–36.
(iv) Based on Eisentrager, supra, at 777, and the Court’s rea-
soning in its other extraterritoriality opinions, at least three factors
are relevant in determining the Suspension Clause’s reach: (1) the
detainees’ citizenship and status and the adequacy of the process
through which that status was determined; (2) the nature of the sites
where apprehension and then detention took place; and (3) the prac-
tical obstacles inherent in resolving the prisoner’s entitlement to the
writ. Application of this framework reveals, first, that petitioners’
status is in dispute: They are not American citizens, but deny they
are enemy combatants; and although they have been afforded some
process in CSRT proceedings, there has been no Eisentrager–style
trial by military commission for violations of the laws of war. Second,
while the sites of petitioners’ apprehension and detention weigh
against finding they have Suspension Clause rights, there are critical
differences between Eisentrager’s German prison, circa 1950, and the
Guantanamo Naval Station in 2008, given the Government’s absolute
and indefinite control over the naval station. Third, although the
6 BOUMEDIENE v. BUSH
Syllabus
Court is sensitive to the financial and administrative costs of holding
the Suspension Clause applicable in a case of military detention
abroad, these factors are not dispositive because the Government
presents no credible arguments that the military mission at Guan-
tanamo would be compromised if habeas courts had jurisdiction. The
situation in Eisentrager was far different, given the historical context
and nature of the military’s mission in post-War Germany. Pp. 36–
41.
(d) Petitioners are therefore entitled to the habeas privilege, and
if that privilege is to be denied them, Congress must act in accor-
dance with the Suspension Clause’s requirements. Cf. Rasul, 542
U. S., at 564. Pp. 41–42.
3. Because the DTA’s procedures for reviewing detainees’ status
are not an adequate and effective substitute for the habeas writ,
MCA §7 operates as an unconstitutional suspension of the writ. Pp.
42–64.
(a) Given its holding that the writ does not run to petitioners, the
D. C. Circuit found it unnecessary to consider whether there was an
adequate substitute for habeas. This Court usually remands for con-
sideration of questions not decided below, but departure from this
rule is appropriate in “exceptional” circumstances, see, e.g., Cooper
Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 169, here, the
grave separation-of-powers issues raised by these cases and the fact
that petitioners have been denied meaningful access to a judicial fo-
rum for years. Pp. 42–44.
(b) Historically, Congress has taken care to avoid suspensions of
the writ. For example, the statutes at issue in the Court’s two lead-
ing cases addressing habeas substitutes, Swain v. Pressley, 430 U. S.
372, and United States v. Hayman, 342 U. S. 205, were attempts to
streamline habeas relief, not to cut it back. Those cases provide little
guidance here because, inter alia, the statutes in question gave the
courts broad remedial powers to secure the historic office of the writ,
and included saving clauses to preserve habeas review as an avenue
of last resort. In contrast, Congress intended the DTA and the MCA
to circumscribe habeas review, as is evident from the unequivocal na-
ture of MCA §7’s jurisdiction-stripping language, from the DTA’s text
limiting the Court of Appeals’ jurisdiction to assessing whether the
CSRT complied with the “standards and procedures specified by the
Secretary of Defense,” DTA §1005(e)(2)(C), and from the absence of a
saving clause in either Act. That Congress intended to create a more
limited procedure is also confirmed by the legislative history and by a
comparison of the DTA and the habeas statute that would govern in
MCA §7’s absence, 28 U. S. C. §2241. In §2241, Congress authorized
“any justice” or “circuit judge” to issue the writ, thereby accommodat-
7 Cite as: 553 U. S. ____ (2008)
Syllabus
ing the necessity for factfinding that will arise in some cases by al-
lowing the appellate judge or Justice to transfer the case to a district
court. See §2241(b). However, by granting the D. C. Circuit “exclu-
sive” jurisdiction over petitioners’ cases, see DTA §1005(e)(2)(A),
Congress has foreclosed that option in these cases. Pp. 44–49.
(c) This Court does not endeavor to offer a comprehensive sum-
mary of the requisites for an adequate habeas substitute. It is un-
controversial, however, that the habeas privilege entitles the prisoner
to a meaningful opportunity to demonstrate that he is being held pur-
suant to “the erroneous application or interpretation” of relevant law,
INS v. St. Cyr, 533 U. S. 289, 302, and the habeas court must have
the power to order the conditional release of an individual unlawfully
detained. But more may be required depending on the circum-
stances. Petitioners identify what they see as myriad deficiencies in
the CSRTs, the most relevant being the constraints upon the de-
tainee’s ability to rebut the factual basis for the Government’s asser-
tion that he is an enemy combatant. At the CSRT stage the detainee
has limited means to find or present evidence to challenge the Gov-
ernment’s case, does not have the assistance of counsel, and may not
be aware of the most critical allegations that the Government relied
upon to order his detention. His opportunity to confront witnesses is
likely to be more theoretical than real, given that there are no limits
on the admission of hearsay. The Court therefore agrees with peti-
tioners that there is considerable risk of error in the tribunal’s find-
ings of fact. And given that the consequence of error may be deten-
tion for the duration of hostilities that may last a generation or more,
the risk is too significant to ignore. Accordingly, for the habeas writ,
or its substitute, to function as an effective and meaningful remedy in
this context, the court conducting the collateral proceeding must have
some ability to correct any errors, to assess the sufficiency of the
Government’s evidence, and to admit and consider relevant exculpa-
tory evidence that was not introduced during the earlier proceeding.
In re Yamashita, 327 U. S. 1, 5, 8, and Ex parte Quirin, 317 U. S. 1,
23–25, distinguished. Pp. 49–57.
(d) Petitioners have met their burden of establishing that the
DTA review process is, on its face, an inadequate substitute for ha-
beas. Among the constitutional infirmities from which the DTA po-
tentially suffers are the absence of provisions allowing petitioners to
challenge the President’s authority under the AUMF to detain them
indefinitely, to contest the CSRT’s findings of fact, to supplement the
record on review with exculpatory evidence discovered after the
CSRT proceedings, and to request release. The statute cannot be
read to contain each of these constitutionally required procedures.
MCA §7 thus effects an unconstitutional suspension of the writ.
8 BOUMEDIENE v. BUSH
Syllabus
There is no jurisdictional bar to the District Court’s entertaining pe-
titioners’ claims. Pp. 57–64.
4. Nor are there prudential barriers to habeas review. Pp. 64–70.
(a) Petitioners need not seek review of their CSRT determina-
tions in the D. C. Circuit before proceeding with their habeas actions
in the District Court. If these cases involved detainees held for only a
short time while awaiting their CSRT determinations, or were it
probable that the Court of Appeals could complete a prompt review of
their applications, the case for requiring temporary abstention or ex-
haustion of alternative remedies would be much stronger. But these
qualifications no longer pertain here. In some instances six years
have elapsed without the judicial oversight that habeas corpus or an
adequate substitute demands. To require these detainees to pursue
the limited structure of DTA review before proceeding with habeas
actions would be to require additional months, if not years, of delay.
This holding should not be read to imply that a habeas court should
intervene the moment an enemy combatant steps foot in a territory
where the writ runs. Except in cases of undue delay, such as the pre-
sent, federal courts should refrain from entertaining an enemy com-
batant’s habeas petition at least until after the CSRT has had a
chance to review his status. Pp. 64–67.
(b) In effectuating today’s holding, certain accommodations—
including channeling future cases to a single district court and re-
quiring that court to use its discretion to accommodate to the greatest
extent possible the Government’s legitimate interest in protecting
sources and intelligence gathering methods—should be made to re-
duce the burden habeas proceedings will place on the military, with-
out impermissibly diluting the writ’s protections. Pp. 67–68.
5. In considering both the procedural and substantive standards
used to impose detention to prevent acts of terrorism, the courts must
accord proper deference to the political branches. However, security
subsists, too, in fidelity to freedom’s first principles, chief among
them being freedom from arbitrary and unlawful restraint and the
personal liberty that is secured by adherence to the separation of
powers. Pp. 68–70.
476 F. 3d 981, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which STEVENS,
SOUTER, GINSBURG, and BREYER, JJ., joined. SOUTER, J., filed a concur-
ring opinion, in which GINSBURG and BREYER, JJ., joined. ROBERTS,
C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO,
JJ., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS,
C. J., and THOMAS and ALITO, JJ., joined.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
JUSTICE KENNEDY delivered the opinion of the Court.
Petitioners are aliens designated as enemy combatants
and detained at the United States Naval Station at Guan
tanamo Bay, Cuba. There are others detained there, also
aliens, who are not parties to this suit.
Petitioners present a question not resolved by our ear
lier cases relating to the detention of aliens at Guan
tanamo: whether they have the constitutional privilege of
habeas corpus, a privilege not to be withdrawn except in
conformance with the Suspension Clause, Art. I, §9, cl. 2.
We hold these petitioners do have the habeas corpus
privilege. Congress has enacted a statute, the Detainee
Treatment Act of 2005 (DTA), 119 Stat. 2739, that pro
2 BOUMEDIENE v. BUSH
Opinion of the Court
vides certain procedures for review of the detainees’
status. We hold that those procedures are not an ade
quate and effective substitute for habeas corpus. There
fore §7 of the Military Commissions Act of 2006 (MCA), 28
U. S. C. A. §2241(e) (Supp. 2007), operates as an unconsti
tutional suspension of the writ. We do not address
whether the President has authority to detain these peti
tioners nor do we hold that the writ must issue. These
and other questions regarding the legality of the detention
are to be resolved in the first instance by the District
Court.
I
Under the Authorization for Use of Military Force
(AUMF), §2(a), 115 Stat. 224, note following 50 U. S. C.
§1541 (2000 ed., Supp. V), the President is authorized “to
use all necessary and appropriate force against those
nations, organizations, or persons he determines planned,
authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001, or harbored such organi
zations or persons, in order to prevent any future acts of
international terrorism against the United States by such
nations, organizations or persons.”
In Hamdi v. Rumsfeld, 542 U. S. 507 (2004), five Mem
bers of the Court recognized that detention of individuals
who fought against the United States in Afghanistan “for
the duration of the particular conflict in which they were
captured, is so fundamental and accepted an incident to
war as to be an exercise of the ‘necessary and appropriate
force’ Congress has authorized the President to use.” Id.,
at 518 (plurality opinion of O’Connor, J.), id., at 588–589
(THOMAS, J., dissenting). After Hamdi, the Deputy Secre
tary of Defense established Combatant Status Review
Tribunals (CSRTs) to determine whether individuals
detained at Guantanamo were “enemy combatants,” as the
Department defines that term. See App. to Pet. for Cert.
3 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
in No. 06–1195, p. 81a. A later memorandum established
procedures to implement the CSRTs. See App. to Pet. for
Cert. in No. 06–1196, p. 147. The Government maintains
these procedures were designed to comply with the due
process requirements identified by the plurality in Hamdi.
See Brief for Respondents 10.
Interpreting the AUMF, the Department of Defense
ordered the detention of these petitioners, and they were
transferred to Guantanamo. Some of these individuals
were apprehended on the battlefield in Afghanistan, oth
ers in places as far away from there as Bosnia and Gam
bia. All are foreign nationals, but none is a citizen of a
nation now at war with the United States. Each denies he
is a member of the al Qaeda terrorist network that carried
out the September 11 attacks or of the Taliban regime
that provided sanctuary for al Qaeda. Each petitioner
appeared before a separate CSRT; was determined to be
an enemy combatant; and has sought a writ of habeas
corpus in the United States District Court for the District
of Columbia.
The first actions commenced in February 2002. The
District Court ordered the cases dismissed for lack of
jurisdiction because the naval station is outside the sover
eign territory of the United States. See Rasul v. Bush, 215
F. Supp. 2d 55 (2002). The Court of Appeals for the Dis
trict of Columbia Circuit affirmed. See Al Odah v. United
States, 321 F. 3d 1134, 1145 (2003). We granted certiorari
and reversed, holding that 28 U. S. C. §2241 extended
statutory habeas corpus jurisdiction to Guantanamo. See
Rasul v. Bush, 542 U. S. 466, 473 (2004). The constitu
tional issue presented in the instant cases was not reached
in Rasul. Id., at 476.
After Rasul, petitioners’ cases were consolidated and
entertained in two separate proceedings. In the first set of
cases, Judge Richard J. Leon granted the Government’s
motion to dismiss, holding that the detainees had no
4 BOUMEDIENE v. BUSH
Opinion of the Court
rights that could be vindicated in a habeas corpus action.
In the second set of cases Judge Joyce Hens Green reached
the opposite conclusion, holding the detainees had rights
under the Due Process Clause of the Fifth Amendment.
See Khalid v. Bush, 355 F. Supp. 2d 311, 314 (DC 2005);
In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443,
464 (DC 2005).
While appeals were pending from the District Court
decisions, Congress passed the DTA. Subsection (e) of
§1005 of the DTA amended 28 U. S. C. §2241 to provide
that “no court, justice, or judge shall have jurisdiction to
hear or consider . . . an application for a writ of habeas
corpus filed by or on behalf of an alien detained by the
Department of Defense at Guantanamo Bay, Cuba.” 119
Stat. 2742. Section 1005 further provides that the Court
of Appeals for the District of Columbia Circuit shall have
“exclusive” jurisdiction to review decisions of the CSRTs.
Ibid.
In Hamdan v. Rumsfeld, 548 U. S. 557, 576–577 (2006),
the Court held this provision did not apply to cases (like
petitioners’) pending when the DTA was enacted. Con
gress responded by passing the MCA, 10 U. S. C. A. §948a
et seq. (Supp. 2007), which again amended §2241. The
text of the statutory amendment is discussed below. See
Part II, infra. (Four Members of the Hamdan majority
noted that “[n]othing prevent[ed] the President from
returning to Congress to seek the authority he believes
necessary.” 548 U. S., at 636 (BREYER, J., concurring).
The authority to which the concurring opinion referred
was the authority to “create military commissions of the
kind at issue” in the case. Ibid. Nothing in that opinion
can be construed as an invitation for Congress to suspend
the writ.)
Petitioners’ cases were consolidated on appeal, and the
parties filed supplemental briefs in light of our decision in
Hamdan. The Court of Appeals’ ruling, 476 F. 3d 981
5 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
(CADC 2007), is the subject of our present review and
today’s decision.
The Court of Appeals concluded that MCA §7 must be
read to strip from it, and all federal courts, jurisdiction to
consider petitioners’ habeas corpus applications, id., at
987; that petitioners are not entitled to the privilege of the
writ or the protections of the Suspension Clause, id., at
990–991; and, as a result, that it was unnecessary to
consider whether Congress provided an adequate and
effective substitute for habeas corpus in the DTA.
We granted certiorari. 551 U. S. ___ (2007).
II
As a threshold matter, we must decide whether MCA §7
denies the federal courts jurisdiction to hear habeas cor
pus actions pending at the time of its enactment. We hold
the statute does deny that jurisdiction, so that, if the
statute is valid, petitioners’ cases must be dismissed.
As amended by the terms of the MCA, 28 U. S. C. A.
§2241(e) (Supp. 2007) now provides:
“(1) No court, justice, or judge shall have jurisdic
tion to hear or consider an application for a writ of
habeas corpus filed by or on behalf of an alien de
tained by the United States who has been deter
mined by the United States to have been properly de
tained as an enemy combatant or is awaiting such
determination.
“(2) Except as provided in [§§1005(e)(2) and (e)(3)
of the DTA] no court, justice, or judge shall have ju
risdiction to hear or consider any other action
against the United States or its agents relating to
any aspect of the detention, transfer, treatment,
trial, or conditions of confinement of an alien who is
or was detained by the United States and has been
determined by the United States to have been prop
erly detained as an enemy combatant or is awaiting
6 BOUMEDIENE v. BUSH
Opinion of the Court
such determination.”
Section 7(b) of the MCA provides the effective date for
the amendment of §2241(e). It states:
“The amendment made by [MCA §7(a)] shall take ef
fect on the date of the enactment of this Act, and shall
apply to all cases, without exception, pending on or af
ter the date of the enactment of this Act which relate
to any aspect of the detention, transfer, treatment,
trial, or conditions of detention of an alien detained by
the United States since September 11, 2001.” 120
Stat. 2636.
There is little doubt that the effective date provision
applies to habeas corpus actions. Those actions, by defini
tion, are cases “which relate to . . . detention.” See Black’s
Law Dictionary 728 (8th ed. 2004) (defining habeas corpus
as “[a] writ employed to bring a person before a court,
most frequently to ensure that the party’s imprisonment
or detention is not illegal”). Petitioners argue, neverthe
less, that MCA §7(b) is not a sufficiently clear statement of
congressional intent to strip the federal courts of jurisdic
tion in pending cases. See Ex parte Yerger, 8 Wall. 85,
102–103 (1869). We disagree.
Their argument is as follows: Section 2241(e)(1) refers to
“a writ of habeas corpus.” The next paragraph,
§2241(e)(2), refers to “any other action . . . relating to any
aspect of the detention, transfer, treatment, trial, or condi
tions of confinement of an alien who . . . [has] been prop
erly detained as an enemy combatant or is awaiting such
determination.” There are two separate paragraphs, the
argument continues, so there must be two distinct classes
of cases. And the effective date subsection, MCA §7(b), it
is said, refers only to the second class of cases, for it
largely repeats the language of §2241(e)(2) by referring to
“cases . . . which relate to any aspect of the detention,
transfer, treatment, trial, or conditions of detention of an
7 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
alien detained by the United States.”
Petitioners’ textual argument would have more force
were it not for the phrase “other action” in §2241(e)(2).
The phrase cannot be understood without referring back
to the paragraph that precedes it, §2241(e)(1), which
explicitly mentions the term “writ of habeas corpus.” The
structure of the two paragraphs implies that habeas ac
tions are a type of action “relating to any aspect of the
detention, transfer, treatment, trial, or conditions of con
finement of an alien who is or was detained . . . as an
enemy combatant.” Pending habeas actions, then, are in
the category of cases subject to the statute’s jurisdictional
bar.
We acknowledge, moreover, the litigation history that
prompted Congress to enact the MCA. In Hamdan the
Court found it unnecessary to address the petitioner’s
Suspension Clause arguments but noted the relevance of
the clear statement rule in deciding whether Congress
intended to reach pending habeas corpus cases. See 548
U. S., at 575 (Congress should “not be presumed to have
effected such denial [of habeas relief] absent an unmis
takably clear statement to the contrary”). This interpre
tive rule facilitates a dialogue between Congress and the
Court. Cf. Hilton v. South Carolina Public Railways
Comm’n, 502 U. S. 197, 206 (1991); H. Hart & A. Sacks,
The Legal Process: Basic Problems in the Making and
Application of Law 1209–1210 (W. Eskridge & P. Frickey
eds. 1994). If the Court invokes a clear statement rule to
advise that certain statutory interpretations are favored
in order to avoid constitutional difficulties, Congress can
make an informed legislative choice either to amend the
statute or to retain its existing text. If Congress amends,
its intent must be respected even if a difficult constitu
tional question is presented. The usual presumption is
that Members of Congress, in accord with their oath of
office, considered the constitutional issue and determined
8 BOUMEDIENE v. BUSH
Opinion of the Court
the amended statute to be a lawful one; and the Judiciary,
in light of that determination, proceeds to its own inde
pendent judgment on the constitutional question when
required to do so in a proper case.
If this ongoing dialogue between and among the
branches of Government is to be respected, we cannot
ignore that the MCA was a direct response to Hamdan’s
holding that the DTA’s jurisdiction-stripping provision
had no application to pending cases. The Court of Appeals
was correct to take note of the legislative history when
construing the statute, see 476 F. 3d, at 986, n. 2 (citing
relevant floor statements); and we agree with its conclu
sion that the MCA deprives the federal courts of jurisdic
tion to entertain the habeas corpus actions now before us.
III
In deciding the constitutional questions now presented
we must determine whether petitioners are barred from
seeking the writ or invoking the protections of the Suspen
sion Clause either because of their status, i.e., petitioners’
designation by the Executive Branch as enemy combat
ants, or their physical location, i.e., their presence at
Guantanamo Bay. The Government contends that non
citizens designated as enemy combatants and detained in
territory located outside our Nation’s borders have no
constitutional rights and no privilege of habeas corpus.
Petitioners contend they do have cognizable constitutional
rights and that Congress, in seeking to eliminate recourse
to habeas corpus as a means to assert those rights, acted
in violation of the Suspension Clause.
We begin with a brief account of the history and origins
of the writ. Our account proceeds from two propositions.
First, protection for the privilege of habeas corpus was one
of the few safeguards of liberty specified in a Constitution
that, at the outset, had no Bill of Rights. In the system
conceived by the Framers the writ had a centrality that
9 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
must inform proper interpretation of the Suspension
Clause. Second, to the extent there were settled prece
dents or legal commentaries in 1789 regarding the extra
territorial scope of the writ or its application to enemy
aliens, those authorities can be instructive for the present
cases.
A
The Framers viewed freedom from unlawful restraint as
a fundamental precept of liberty, and they understood the
writ of habeas corpus as a vital instrument to secure that
freedom. Experience taught, however, that the common-
law writ all too often had been insufficient to guard
against the abuse of monarchial power. That history
counseled the necessity for specific language in the Consti
tution to secure the writ and ensure its place in our legal
system.
Magna Carta decreed that no man would be imprisoned
contrary to the law of the land. Art. 39, in Sources of Our
Liberties 17 (R. Perry & J. Cooper eds. 1959) (“No free
man shall be taken or imprisoned or dispossessed, or
outlawed, or banished, or in any way destroyed, nor will
we go upon him, nor send upon him, except by the legal
judgment of his peers or by the law of the land”). Impor
tant as the principle was, the Barons at Runnymede pre
scribed no specific legal process to enforce it. Holdsworth
tells us, however, that gradually the writ of habeas corpus
became the means by which the promise of Magna Carta
was fulfilled. 9 W. Holdsworth, A History of English Law
112 (1926) (hereinafter Holdsworth).
The development was painstaking, even by the centu
ries-long measures of English constitutional history. The
writ was known and used in some form at least as early as
the reign of Edward I. Id., at 108–125. Yet at the outset
it was used to protect not the rights of citizens but those of
the King and his courts. The early courts were considered
10 BOUMEDIENE v. BUSH
Opinion of the Court
agents of the Crown, designed to assist the King in the
exercise of his power. See J. Baker, An Introduction to
English Legal History 38–39 (4th ed. 2002). Thus the
writ, while it would become part of the foundation of
liberty for the King’s subjects, was in its earliest use a
mechanism for securing compliance with the King’s
laws. See Halliday & White, The Suspension Clause:
English Text, Imperial Contexts, and American Impli
cations, 94 Va. L. Rev. (forthcoming 2008) (hereinafter
Halliday & White) (manuscript, at 11, online at
http://papers.ssrn.com/sol3 /papers.cfm?abstract_id=100
8252 (all Internet materials as visited June 9, 2008, and
available in Clerk of Court’s case file) (noting that “concep
tually the writ arose from a theory of power rather than a
theory of liberty”)). Over time it became clear that by
issuing the writ of habeas corpus common-law courts
sought to enforce the King’s prerogative to inquire into the
authority of a jailer to hold a prisoner. See M. Hale, Pre
rogatives of the King 229 (D. Yale ed. 1976); 2 J. Story,
Commentaries on the Constitution of the United States
§1341, p. 237 (3d ed. 1858) (noting that the writ ran “into
all parts of the king’s dominions; for it is said, that the
king is entitled, at all times, to have an account, why the
liberty of any of his subjects is restrained”).
Even so, from an early date it was understood that the
King, too, was subject to the law. As the writers said of
Magna Carta, “it means this, that the king is and shall be
below the law.” 1 F. Pollock & F. Maitland, History of
English Law 173 (2d ed. 1909); see also 2 Bracton On the
Laws and Customs of England 33 (S. Thorne transl. 1968)
(“The king must not be under man but under God and
under the law, because law makes the king”). And, by the
1600’s, the writ was deemed less an instrument of the
King’s power and more a restraint upon it. See Collings,
Habeas Corpus for Convicts—Constitutional Right or
Legislative Grace, 40 Calif. L. Rev. 335, 336 (1952) (noting
11 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
that by this point the writ was “the appropriate process for
checking illegal imprisonment by public officials”).
Still, the writ proved to be an imperfect check. Even
when the importance of the writ was well understood in
England, habeas relief often was denied by the courts or
suspended by Parliament. Denial or suspension occurred
in times of political unrest, to the anguish of the impris
oned and the outrage of those in sympathy with them.
A notable example from this period was Darnel’s Case, 3
How. St. Tr. 1 (K. B. 1627). The events giving rise to the
case began when, in a display of the Stuart penchant for
authoritarian excess, Charles I demanded that Darnel and
at least four others lend him money. Upon their refusal,
they were imprisoned. The prisoners sought a writ of
habeas corpus; and the King filed a return in the form of a
warrant signed by the Attorney General. Ibid. The court
held this was a sufficient answer and justified the sub
jects’ continued imprisonment. Id., at 59.
There was an immediate outcry of protest. The House of
Commons promptly passed the Petition of Right, 3 Car. 1,
ch. 1 (1627), 5 Statutes of the Realm 23, 24 (reprint 1963),
which condemned executive “imprison[ment] without any
cause” shown, and declared that “no freeman in any such
manner as is before mencioned [shall] be imprisoned or
deteined.” Yet a full legislative response was long de
layed. The King soon began to abuse his authority again,
and Parliament was dissolved. See W. Hall & R. Albion, A
History of England and the British Empire 328 (3d ed.
1953) (hereinafter Hall & Albion). When Parliament
reconvened in 1640, it sought to secure access to the writ
by statute. The Act of 1640, 16 Car. 1, ch. 10, 5 Statutes of
the Realm, at 110, expressly authorized use of the writ to
test the legality of commitment by command or warrant of
the King or the Privy Council. Civil strife and the Inter
regnum soon followed, and not until 1679 did Parliament
try once more to secure the writ, this time through the
12 BOUMEDIENE v. BUSH
Opinion of the Court
Habeas Corpus Act of 1679, 31 Car. 2, ch. 2, id., at 935.
The Act, which later would be described by Blackstone as
the “stable bulwark of our liberties,” 1 W. Blackstone,
Commentaries *137 (hereinafter Blackstone), established
procedures for issuing the writ; and it was the model upon
which the habeas statutes of the 13 American Colonies
were based, see Collings, supra, at 338–339.
This history was known to the Framers. It no doubt
confirmed their view that pendular swings to and away
from individual liberty were endemic to undivided, uncon
trolled power. The Framers’ inherent distrust of govern
mental power was the driving force behind the constitu
tional plan that allocated powers among three
independent branches. This design serves not only to
make Government accountable but also to secure individ
ual liberty. See Loving v. United States, 517 U. S. 748,
756 (1996) (noting that “[e]ven before the birth of this
country, separation of powers was known to be a defense
against tyranny”); cf. Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring)
(“[T]he Constitution diffuses power the better to secure
liberty”); Clinton v. City of New York, 524 U. S. 417, 450
(1998) (KENNEDY, J., concurring) (“Liberty is always at
stake when one or more of the branches seek to transgress
the separation of powers”). Because the Constitution’s
separation-of-powers structure, like the substantive guar
antees of the Fifth and Fourteenth Amendments, see Yick
Wo v. Hopkins, 118 U. S. 356, 374 (1886), protects persons
as well as citizens, foreign nationals who have the privi
lege of litigating in our courts can seek to enforce separa
tion-of-powers principles, see, e.g., INS v. Chadha, 462
U. S. 919, 958–959 (1983).
That the Framers considered the writ a vital instrument
for the protection of individual liberty is evident from the
care taken to specify the limited grounds for its suspen
sion: “The Privilege of the Writ of Habeas Corpus shall not
13 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
be suspended, unless when in Cases of Rebellion or Inva
sion the public Safety may require it.” Art. I, §9, cl. 2; see
Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425,
1509, n. 329 (1987) (“[T]he non-suspension clause is the
original Constitution’s most explicit reference to reme
dies”). The word “privilege” was used, perhaps, to avoid
mentioning some rights to the exclusion of others. (In
deed, the only mention of the term “right” in the Constitu
tion, as ratified, is in its clause giving Congress the power
to protect the rights of authors and inventors. See Art. I,
§8, cl. 8.)
Surviving accounts of the ratification debates provide
additional evidence that the Framers deemed the writ to
be an essential mechanism in the separation-of-powers
scheme. In a critical exchange with Patrick Henry at the
Virginia ratifying convention Edmund Randolph referred
to the Suspension Clause as an “exception” to the “power
given to Congress to regulate courts.” See 3 Debates in
the Several State Conventions on the Adoption of the
Federal Constitution 460–464 (J. Elliot 2d ed. 1876) (here
inafter Elliot’s Debates). A resolution passed by the New
York ratifying convention made clear its understanding
that the Clause not only protects against arbitrary sus
pensions of the writ but also guarantees an affirmative
right to judicial inquiry into the causes of detention. See
Resolution of the New York Ratifying Convention (July 26,
1788), in 1 Elliot’s Debates 328 (noting the convention’s
understanding “[t]hat every person restrained of his lib
erty is entitled to an inquiry into the lawfulness of such
restraint, and to a removal thereof if unlawful; and that
such inquiry or removal ought not to be denied or delayed,
except when, on account of public danger, the Congress
shall suspend the privilege of the writ of habeas corpus”).
Alexander Hamilton likewise explained that by providing
the detainee a judicial forum to challenge detention, the
writ preserves limited government. As he explained in
14 BOUMEDIENE v. BUSH
Opinion of the Court
The Federalist No. 84:
“[T]he practice of arbitrary imprisonments, have been,
in all ages, the favorite and most formidable instru
ments of tyranny. The observations of the judicious
Blackstone . . . are well worthy of recital: ‘To bereave
a man of life . . . or by violence to confiscate his estate,
without accusation or trial, would be so gross and no
torious an act of despotism as must at once convey the
alarm of tyranny throughout the whole nation; but
confinement of the person, by secretly hurrying him to
jail, where his sufferings are unknown or forgotten, is
a less public, a less striking, and therefore a more
dangerous engine of arbitrary government.’ And as a
remedy for this fatal evil he is everywhere peculiarly
emphatical in his encomiums on the habeas corpus
act, which in one place he calls ‘the BULWARK of the
British Constitution.’” C. Rossiter ed., p. 512 (1961)
(quoting 1 Blackstone *136, 4 id., at *438).
Post-1789 habeas developments in England, though not
bearing upon the Framers’ intent, do verify their foresight.
Those later events would underscore the need for struc
tural barriers against arbitrary suspensions of the writ.
Just as the writ had been vulnerable to executive and
parliamentary encroachment on both sides of the Atlantic
before the American Revolution, despite the Habeas Cor
pus Act of 1679, the writ was suspended with frequency in
England during times of political unrest after 1789. Par
liament suspended the writ for much of the period from
1792 to 1801, resulting in rampant arbitrary imprison
ment. See Hall & Albion 550. Even as late as World War
I, at least one prominent English jurist complained that
the Defence of the Realm Act, 1914, 4 & 5 Geo. 5, ch.
29(1)(a), effectively had suspended the privilege of habeas
corpus for any person suspected of “communicating with
the enemy.” See King v. Halliday, [1917] A. C. 260, 299
15 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
(Lord Shaw, dissenting); see generally A. Simpson, In the
Highest Degree Odious: Detention Without Trial in War
time Britain 6–7, 24–25 (1992).
In our own system the Suspension Clause is designed to
protect against these cyclical abuses. The Clause protects
the rights of the detained by a means consistent with the
essential design of the Constitution. It ensures that,
except during periods of formal suspension, the Judiciary
will have a time-tested device, the writ, to maintain the
“delicate balance of governance” that is itself the surest
safeguard of liberty. See Hamdi, 542 U. S., at 536 (plural
ity opinion). The Clause protects the rights of the de
tained by affirming the duty and authority of the Judici
ary to call the jailer to account. See Preiser v. Rodriguez,
411 U. S. 475, 484 (1973) (“[T]he essence of habeas corpus
is an attack by a person in custody upon the legality of
that custody”); cf. In re Jackson, 15 Mich. 417, 439–440
(1867) (Cooley, J., concurring) (“The important fact to be
observed in regard to the mode of procedure upon this
[habeas] writ is, that it is directed to, and served upon, not
the person confined, but his jailer”). The separation-of
powers doctrine, and the history that influenced its de
sign, therefore must inform the reach and purpose of the
Suspension Clause.
B
The broad historical narrative of the writ and its func
tion is central to our analysis, but we seek guidance as
well from founding-era authorities addressing the specific
question before us: whether foreign nationals, appre
hended and detained in distant countries during a time of
serious threats to our Nation’s security, may assert the
privilege of the writ and seek its protection. The Court
has been careful not to foreclose the possibility that the
protections of the Suspension Clause have expanded along
with post-1789 developments that define the present scope
16 BOUMEDIENE v. BUSH
Opinion of the Court
of the writ. See INS v. St. Cyr, 533 U. S. 289, 300–301
(2001). But the analysis may begin with precedents as of
1789, for the Court has said that “at the absolute mini
mum” the Clause protects the writ as it existed when the
Constitution was drafted and ratified. Id., at 301.
To support their arguments, the parties in these cases
have examined historical sources to construct a view of the
common-law writ as it existed in 1789—as have amici
whose expertise in legal history the Court has relied upon
in the past. See Brief for Legal Historians as Amici Cu-
riae; see also St. Cyr, supra, at 302, n. 16. The Govern
ment argues the common-law writ ran only to those terri
tories over which the Crown was sovereign. See Brief for
Respondents 27. Petitioners argue that jurisdiction fol
lowed the King’s officers. See Brief for Petitioner Boume
diene et al. 11. Diligent search by all parties reveals no
certain conclusions. In none of the cases cited do we find
that a common-law court would or would not have
granted, or refused to hear for lack of jurisdiction, a peti
tion for a writ of habeas corpus brought by a prisoner
deemed an enemy combatant, under a standard like the
one the Department of Defense has used in these cases,
and when held in a territory, like Guantanamo, over
which the Government has total military and civil control.
We know that at common law a petitioner’s status as an
alien was not a categorical bar to habeas corpus relief.
See, e.g., Sommersett’s Case, 20 How. St. Tr. 1, 80–82
(1772) (ordering an African slave freed upon finding the
custodian’s return insufficient); see generally Khera v.
Secretary of State for the Home Dept., [1984] A. C. 74, 111
(“Habeas corpus protection is often expressed as limited to
‘British subjects.’ Is it really limited to British nationals?
Suffice it to say that the case law has given an emphatic
‘no’ to the question”). We know as well that common-law
courts entertained habeas petitions brought by enemy
aliens detained in England—“entertained” at least in the
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Opinion of the Court
sense that the courts held hearings to determine the
threshold question of entitlement to the writ. See Case of
Three Spanish Sailors, 2 Black. W. 1324, 96 Eng. Rep. 775
(C. P. 1779); King v. Schiever, 2 Burr. 765, 97 Eng. Rep.
551 (K. B. 1759); Du Castro’s Case, Fort. 195, 92 Eng. Rep.
816 (K. B. 1697).
In Schiever and the Spanish Sailors’ case, the courts
denied relief to the petitioners. Whether the holdings in
these cases were jurisdictional or based upon the courts’
ruling that the petitioners were detained lawfully as
prisoners of war is unclear. See Spanish Sailors, supra, at
1324, 96 Eng. Rep., at 776; Schiever, supra, at 766, 97
Eng. Rep., at 552. In Du Castro’s Case, the court granted
relief, but that case is not analogous to petitioners’ be
cause the prisoner there appears to have been detained in
England. See Halliday & White 27, n. 72. To the extent
these authorities suggest the common-law courts ab
stained altogether from matters involving prisoners of
war, there was greater justification for doing so in the
context of declared wars with other nation states. Judicial
intervention might have complicated the military’s ability
to negotiate exchange of prisoners with the enemy, a
wartime practice well known to the Framers. See Resolu
tion of Mar. 30, 1778, 10 Journals of the Continental
Congress 1774–1789, p. 295 (W. Ford ed. 1908) (directing
General Washington not to exchange prisoners with the
British unless the enemy agreed to exempt citizens from
capture).
We find the evidence as to the geographic scope of the
writ at common law informative, but, again, not disposi
tive. Petitioners argue the site of their detention is analo
gous to two territories outside of England to which the
writ did run: the so-called “exempt jurisdictions,” like the
Channel Islands; and (in former times) India. There are
critical differences between these places and Guantanamo,
however.
18 BOUMEDIENE v. BUSH
Opinion of the Court
As the Court noted in Rasul, 542 U. S., at 481–482, and
nn. 11–12, common-law courts granted habeas corpus
relief to prisoners detained in the exempt jurisdictions.
But these areas, while not in theory part of the realm of
England, were nonetheless under the Crown’s control. See
2 H. Hallam, Constitutional History of England: From the
Accession of Henry VII to the Death of George II, pp. 232–
233 (reprint 1989). And there is some indication that
these jurisdictions were considered sovereign territory.
King v. Cowle, 2 Burr. 834, 854, 855, 97 Eng. Rep. 587,
599 (K. B. 1759) (describing one of the exempt jurisdic
tions, Berwick-upon-Tweed, as under the “sovereign juris
diction” and “subjection of the Crown of England”). Be
cause the United States does not maintain formal
sovereignty over Guantanamo Bay, see Part IV, infra, the
naval station there and the exempt jurisdictions discussed
in the English authorities are not similarly situated.
Petitioners and their amici further rely on cases in
which British courts in India granted writs of habeas
corpus to noncitizens detained in territory over which the
Moghul Emperor retained formal sovereignty and control.
See supra, at 12–13; Brief for Legal Historians as Amici
Curiae 12–13. The analogy to the present cases breaks
down, however, because of the geographic location of the
courts in the Indian example. The Supreme Court of
Judicature (the British Court) sat in Calcutta; but no
federal court sits at Guantanamo. The Supreme Court of
Judicature was, moreover, a special court set up by Par
liament to monitor certain conduct during the British Raj.
See Regulating Act of 1773, 13 Geo. 3, §§13–14. That it
had the power to issue the writ in nonsovereign territory
does not prove that common-law courts sitting in England
had the same power. If petitioners were to have the better
of the argument on this point, we would need some dem
onstration of a consistent practice of common-law courts
sitting in England and entertaining petitions brought by
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Opinion of the Court
alien prisoners detained abroad. We find little support for
this conclusion.
The Government argues, in turn, that Guantanamo is
more closely analogous to Scotland and Hanover, territo
ries that were not part of England but nonetheless con
trolled by the English monarch (in his separate capacities
as King of Scotland and Elector of Hanover). See Cowle, 2
Burr., at 856, 97 Eng. Rep., at 600. Lord Mansfield can be
cited for the proposition that, at the time of the founding,
English courts lacked the “power” to issue the writ to
Scotland and Hanover, territories Lord Mansfield referred
to as “foreign.” Ibid. But what matters for our purposes is
why common-law courts lacked this power. Given the
English Crown’s delicate and complicated relationships
with Scotland and Hanover in the 1700’s, we cannot disre
gard the possibility that the common-law courts’ refusal to
issue the writ to these places was motivated not by formal
legal constructs but by what we would think of as pruden
tial concerns. This appears to have been the case with
regard to other British territories where the writ did not
run. See 2 R. Chambers, A Course of Lectures on English
Law 1767–1773, p. 8 (T. Curley ed. 1986) (quoting the
view of Lord Mansfield in Cowle that “[n]otwithstanding
the power which the judges have, yet where they cannot
judge of the cause, or give relief upon it, they would not
think proper to interpose; and therefore in the case of
imprisonments in Guernsey, Jersey, Minorca, or the plan-
tations, the most usual way is to complain to the king in
Council” (internal quotation marks omitted)). And after
the Act of Union in 1707, through which the kingdoms of
England and Scotland were merged politically, Queen
Anne and her successors, in their new capacity as sover
eign of Great Britain, ruled the entire island as one king
dom. Accordingly, by the time Lord Mansfield penned his
opinion in Cowle in 1759, Scotland was no longer a “for
eign” country vis-à-vis England—at least not in the sense
20 BOUMEDIENE v. BUSH
Opinion of the Court
in which Cuba is a foreign country vis-à-vis the United
States.
Scotland remained “foreign” in Lord Mansfield’s day in
at least one important respect, however. Even after the
Act of Union, Scotland (like Hanover) continued to main
tain its own laws and court system. See 1 Blackstone *98,
*109. Under these circumstances prudential considera
tions would have weighed heavily when courts sitting in
England received habeas petitions from Scotland or the
Electorate. Common-law decisions withholding the writ
from prisoners detained in these places easily could be
explained as efforts to avoid either or both of two embar
rassments: conflict with the judgments of another court of
competent jurisdiction; or the practical inability, by reason
of distance, of the English courts to enforce their judg
ments outside their territorial jurisdiction. Cf. Munaf v.
Geren, ante, at 15 (opinion of the Court) (recognizing that
“‘prudential concerns’ . . . such as comity and the orderly
administration of criminal justice” affect the appropriate
exercise of habeas jurisdiction).
By the mid-19th century, British courts could issue the
writ to Canada, notwithstanding the fact that Canadian
courts also had the power to do so. See 9 Holdsworth 124
(citing Ex parte Anderson, 3 El. and El. 487 (1861)). This
might be seen as evidence that the existence of a separate
court system was no barrier to the running of the common-
law writ. The Canada of the 1800’s, however, was in
many respects more analogous to the exempt jurisdictions
or to Ireland, where the writ ran, than to Scotland or
Hanover in the 1700’s, where it did not. Unlike Scotland
and Hanover, Canada followed English law. See B.
Laskin, The British Tradition in Canadian Law 50–51
(1969).
In the end a categorical or formal conception of sover
eignty does not provide a comprehensive or altogether
satisfactory explanation for the general understanding
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Opinion of the Court
that prevailed when Lord Mansfield considered issuance of
the writ outside England. In 1759 the writ did not run to
Scotland but did run to Ireland, even though, at that
point, Scotland and England had merged under the rule of
a single sovereign, whereas the Crowns of Great Britain
and Ireland remained separate (at least in theory). See
Cowle, supra, at 856–857, 97 Eng. Rep., 600; 1 Blackstone
*100–101. But there was at least one major difference
between Scotland’s and Ireland’s relationship with Eng
land during this period that might explain why the writ
ran to Ireland but not to Scotland. English law did not
generally apply in Scotland (even after the Act of Union)
but it did apply in Ireland. Blackstone put it as follows:
“[A]s Scotland and England are now one and the same
kingdom, and yet differ in their municipal laws; so Eng
land and Ireland are, on the other hand, distinct king
doms, and yet in general agree in their laws.” Id., at *100.
This distinction, and not formal notions of sovereignty,
may well explain why the writ did not run to Scotland
(and Hanover) but would run to Ireland.
The prudential barriers that may have prevented the
English courts from issuing the writ to Scotland and
Hanover are not relevant here. We have no reason to
believe an order from a federal court would be disobeyed
at Guantanamo. No Cuban court has jurisdiction to hear
these petitioners’ claims, and no law other than the laws
of the United States applies at the naval station. The
modern-day relations between the United States and
Guantanamo thus differ in important respects from the
18th-century relations between England and the kingdoms
of Scotland and Hanover. This is reason enough for us to
discount the relevance of the Government’s analogy.
Each side in the present matter argues that the very
lack of a precedent on point supports its position. The
Government points out there is no evidence that a court
sitting in England granted habeas relief to an enemy alien
22 BOUMEDIENE v. BUSH
Opinion of the Court
detained abroad; petitioners respond there is no evidence
that a court refused to do so for lack of jurisdiction.
Both arguments are premised, however, upon the as
sumption that the historical record is complete and that
the common law, if properly understood, yields a definite
answer to the questions before us. There are reasons to
doubt both assumptions. Recent scholarship points to the
inherent shortcomings in the historical record. See Halli
day & White 14–15 (noting that most reports of 18th
century habeas proceedings were not printed). And given
the unique status of Guantanamo Bay and the particular
dangers of terrorism in the modern age, the common-law
courts simply may not have confronted cases with close
parallels to this one. We decline, therefore, to infer too
much, one way or the other, from the lack of historical
evidence on point. Cf. Brown v. Board of Education, 347
U. S. 483, 489 (1954) (noting evidence concerning the
circumstances surrounding the adoption of the Fourteenth
Amendment, discussed in the parties’ briefs and uncov
ered through the Court’s own investigation, “convince us
that, although these sources cast some light, it is not
enough to resolve the problem with which we are faced.
At best, they are inconclusive”); Reid v. Covert, 354 U. S.
1, 64 (1957) (Frankfurter, J., concurring in result) (argu
ing constitutional adjudication should not be based upon
evidence that is “too episodic, too meager, to form a solid
basis in history, preceding and contemporaneous with the
framing of the Constitution”).
IV
Drawing from its position that at common law the writ
ran only to territories over which the Crown was sover
eign, the Government says the Suspension Clause affords
petitioners no rights because the United States does not
claim sovereignty over the place of detention.
Guantanamo Bay is not formally part of the United
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Opinion of the Court
States. See DTA §1005(g), 119 Stat. 2743. And under the
terms of the lease between the United States and Cuba,
Cuba retains “ultimate sovereignty” over the territory
while the United States exercises “complete jurisdiction
and control.” See Lease of Lands for Coaling and Naval
Stations, Feb. 23, 1903, U. S.-Cuba, Art. III, T. S. No. 418
(hereinafter 1903 Lease Agreement); Rasul, 542 U. S., at
471. Under the terms of the 1934 Treaty, however, Cuba
effectively has no rights as a sovereign until the parties
agree to modification of the 1903 Lease Agreement or the
United States abandons the base. See Treaty Defining
Relations with Cuba, May 29, 1934, U. S.-Cuba, Art. III,
48 Stat. 1683, T. S. No. 866.
The United States contends, nevertheless, that Guan
tanamo is not within its sovereign control. This was the
Government’s position well before the events of September
11, 2001. See, e.g., Brief for Petitioners in Sale v. Haitian
Centers Council, Inc., O. T. 1992, No. 92–344, p. 31 (argu
ing that Guantanamo is territory “outside the United
States”). And in other contexts the Court has held that
questions of sovereignty are for the political branches to
decide. See Vermilya-Brown Co. v. Connell, 335 U. S. 377,
380 (1948) (“[D]etermination of sovereignty over an area is
for the legislative and executive departments”); see also
Jones v. United States, 137 U. S. 202 (1890); Williams v.
Suffolk Ins. Co., 13 Pet. 415, 420 (1839). Even if this were
a treaty interpretation case that did not involve a political
question, the President’s construction of the lease agree
ment would be entitled to great respect. See Sumitomo
Shoji America, Inc. v. Avagliano, 457 U. S. 176, 184–185
(1982).
We therefore do not question the Government’s position
that Cuba, not the United States, maintains sovereignty,
in the legal and technical sense of the term, over Guan
tanamo Bay. But this does not end the analysis. Our
cases do not hold it is improper for us to inquire into the
24 BOUMEDIENE v. BUSH
Opinion of the Court
objective degree of control the Nation asserts over foreign
territory. As commentators have noted, “‘[s]overeignty’ is
a term used in many senses and is much abused.” See 1
Restatement (Third) of Foreign Relations Law of the
United States §206, Comment b, p. 94 (1986). When we
have stated that sovereignty is a political question, we
have referred not to sovereignty in the general, colloquial
sense, meaning the exercise of dominion or power, see
Webster’s New International Dictionary 2406 (2d ed.
1934) (“sovereignty,” definition 3), but sovereignty in the
narrow, legal sense of the term, meaning a claim of right,
see 1 Restatement (Third) of Foreign Relations, supra,
§206, Comment b, at 94 (noting that sovereignty “implies
a state’s lawful control over its territory generally to the
exclusion of other states, authority to govern in that terri
tory, and authority to apply law there”). Indeed, it is not
altogether uncommon for a territory to be under the de
jure sovereignty of one nation, while under the plenary
control, or practical sovereignty, of another. This condi
tion can occur when the territory is seized during war, as
Guantanamo was during the Spanish-American War. See,
e.g., Fleming v. Page, 9 How. 603, 614 (1850) (noting that
the port of Tampico, conquered by the United States dur
ing the war with Mexico, was “undoubtedly . . . subject to
the sovereignty and dominion of the United States,” but
that it “does not follow that it was a part of the United
States, or that it ceased to be a foreign country”); King v.
Earl of Crewe ex parte Sekgome, [1910] 2 K. B. 576, 603–
604 (C. A.) (opinion of Williams, L. J.) (arguing that the
Bechuanaland Protectorate in South Africa was “under
His Majesty’s dominion in the sense of power and jurisdic
tion, but is not under his dominion in the sense of territo
rial dominion”). Accordingly, for purposes of our analysis,
we accept the Government’s position that Cuba, and not
the United States, retains de jure sovereignty over Guan
tanamo Bay. As we did in Rasul, however, we take notice
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Opinion of the Court
of the obvious and uncontested fact that the United States,
by virtue of its complete jurisdiction and control over the
base, maintains de facto sovereignty over this territory.
See 542 U. S., at 480; id., at 487 (KENNEDY, J., concurring
in judgment).
Were we to hold that the present cases turn on the
political question doctrine, we would be required first to
accept the Government’s premise that de jure sovereignty
is the touchstone of habeas corpus jurisdiction. This
premise, however, is unfounded. For the reasons indi
cated above, the history of common-law habeas corpus
provides scant support for this proposition; and, for the
reasons indicated below, that position would be inconsis
tent with our precedents and contrary to fundamental
separation-of-powers principles.
A
The Court has discussed the issue of the Constitution’s
extraterritorial application on many occasions. These
decisions undermine the Government’s argument that, at
least as applied to noncitizens, the Constitution necessar
ily stops where de jure sovereignty ends.
The Framers foresaw that the United States would
expand and acquire new territories. See American Ins. Co.
v. 356 Bales of Cotton, 1 Pet. 511, 542 (1828). Article IV,
§3, cl. 1, grants Congress the power to admit new States.
Clause 2 of the same section grants Congress the “Power
to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the
United States.” Save for a few notable (and notorious)
exceptions, e.g., Dred Scott v. Sandford, 19 How. 393
(1857), throughout most of our history there was little
need to explore the outer boundaries of the Constitution’s
geographic reach. When Congress exercised its power to
create new territories, it guaranteed constitutional protec
tions to the inhabitants by statute. See, e.g., An Act: to
26 BOUMEDIENE v. BUSH
Opinion of the Court
establish a Territorial Government for Utah, 9 Stat. 458
(“[T]he Constitution and laws of the United States are
hereby extended over and declared to be in force in said
Territory of Utah”); Rev. Stat. §1891 (“The Constitution
and all laws of the United States which are not locally
inapplicable shall have the same force and effect within all
the organized Territories, and in every Territory hereafter
organized as elsewhere within the United States”); see
generally Burnett, Untied States: American Expansion
and Territorial Deannexation, 72 U. Chi. L. Rev. 797, 825–
827 (2005). In particular, there was no need to test the
limits of the Suspension Clause because, as early as 1789,
Congress extended the writ to the Territories. See Act of
Aug. 7, 1789, 1 Stat. 52 (reaffirming Art. II of Northwest
Ordinance of 1787, which provided that “[t]he inhabitants
of the said territory, shall always be entitled to the bene
fits of the writ of habeas corpus”).
Fundamental questions regarding the Constitution’s
geographic scope first arose at the dawn of the 20th cen
tury when the Nation acquired noncontiguous Territories:
Puerto Rico, Guam, and the Philippines—ceded to the
United States by Spain at the conclusion of the Spanish-
American War—and Hawaii—annexed by the United
States in 1898. At this point Congress chose to discon
tinue its previous practice of extending constitutional
rights to the territories by statute. See, e.g., An Act Tem
porarily to provide for the administration of the affairs of
civil government in the Philippine Islands, and for other
purposes, 32 Stat. 692 (noting that Rev. Stat. §1891 did
not apply to the Philippines).
In a series of opinions later known as the Insular Cases,
the Court addressed whether the Constitution, by its own
force, applies in any territory that is not a State. See De
Lima v. Bidwell, 182 U. S. 1 (1901); Dooley v. United
States, 182 U. S. 222 (1901); Armstrong v. United States,
182 U. S. 243 (1901); Downes v. Bidwell, 182 U. S. 244
27 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
(1901); Hawaii v. Mankichi, 190 U. S. 197 (1903); Dorr v.
United States, 195 U. S. 138 (1904). The Court held that
the Constitution has independent force in these territo
ries, a force not contingent upon acts of legislative grace.
Yet it took note of the difficulties inherent in that position.
Prior to their cession to the United States, the former
Spanish colonies operated under a civil-law system, with
out experience in the various aspects of the Anglo-
American legal tradition, for instance the use of grand and
petit juries. At least with regard to the Philippines, a
complete transformation of the prevailing legal culture
would have been not only disruptive but also unnecessary,
as the United States intended to grant independence to
that Territory. See An Act To declare the purpose of the
people of the United States as to the future political status
of the people of the Philippine Islands, and to provide a
more autonomous government for those islands (Jones
Act), 39 Stat. 545 (noting that “it was never the intention
of the people of the United States in the incipiency of the
War with Spain to make it a war of conquest or for territo
rial aggrandizement” and that “it is, as it has always been,
the purpose of the people of the United States to withdraw
their sovereignty over the Philippine Islands and to recog
nize their independence as soon as a stable government
can be established therein”). The Court thus was reluc
tant to risk the uncertainty and instability that could
result from a rule that displaced altogether the existing
legal systems in these newly acquired Territories. See
Downes, supra, at 282 (“It is obvious that in the annexa
tion of outlying and distant possessions grave questions
will arise from differences of race, habits, laws and cus
toms of the people, and from differences of soil, climate
and production . . . ”).
These considerations resulted in the doctrine of territo
rial incorporation, under which the Constitution applies in
full in incorporated Territories surely destined for state
28 BOUMEDIENE v. BUSH
Opinion of the Court
hood but only in part in unincorporated Territories. See
Dorr, supra, at 143 (“Until Congress shall see fit to incor
porate territory ceded by treaty into the United States, . . .
the territory is to be governed under the power existing in
Congress to make laws for such territories and subject to
such constitutional restrictions upon the powers of that
body as are applicable to the situation”); Downes, supra, at
293 (White, J., concurring) (“[T]he determination of what
particular provision of the Constitution is applicable,
generally speaking, in all cases, involves an inquiry into
the situation of the territory and its relations to the
United States”). As the Court later made clear, “the real
issue in the Insular Cases was not whether the Constitu
tion extended to the Philippines or Porto Rico when we
went there, but which of its provisions were applicable by
way of limitation upon the exercise of executive and legis
lative power in dealing with new conditions and require
ments.” Balzac v. Porto Rico, 258 U. S. 298, 312 (1922). It
may well be that over time the ties between the United
States and any of its unincorporated Territories
strengthen in ways that are of constitutional significance.
Cf. Torres v. Puerto Rico, 442 U. S. 465, 475–476 (1979)
(Brennan, J., concurring in judgment) (“Whatever the
validity of the [Insular Cases] in the particular historical
context in which they were decided, those cases are clearly
not authority for questioning the application of the Fourth
Amendment—or any other provision of the Bill of Rights—
to the Commonwealth of Puerto Rico in the 1970’s”). But,
as early as Balzac in 1922, the Court took for granted that
even in unincorporated Territories the Government of the
United States was bound to provide to noncitizen inhabi
tants “guaranties of certain fundamental personal rights
declared in the Constitution.” 258 U. S., at 312; see also
Late Corp. of Church of Jesus Christ of Latter-day Saints
v. United States, 136 U. S. 1, 44 (1890) (“Doubtless Con
gress, in legislating for the Territories would be subject to
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Opinion of the Court
those fundamental limitations in favor of personal rights
which are formulated in the Constitution and its amend
ments”). Yet noting the inherent practical difficulties of
enforcing all constitutional provisions “always and every
where,” Balzac, supra, at 312, the Court devised in the
Insular Cases a doctrine that allowed it to use its power
sparingly and where it would be most needed. This cen
tury-old doctrine informs our analysis in the present
matter.
Practical considerations likewise influenced the Court’s
analysis a half-century later in Reid, 354 U. S. 1. The
petitioners there, spouses of American servicemen, lived
on American military bases in England and Japan. They
were charged with crimes committed in those countries
and tried before military courts, consistent with executive
agreements the United States had entered into with the
British and Japanese governments. Id., at 15–16, and nn.
29–30 (plurality opinion). Because the petitioners were
not themselves military personnel, they argued they were
entitled to trial by jury.
Justice Black, writing for the plurality, contrasted the
cases before him with the Insular Cases, which involved
territories “with wholly dissimilar traditions and institu
tions” that Congress intended to govern only “temporar
ily.” Id., at 14. Justice Frankfurter argued that the “spe
cific circumstances of each particular case” are relevant in
determining the geographic scope of the Constitution. Id.,
at 54 (opinion concurring in result). And Justice Harlan,
who had joined an opinion reaching the opposite result in
the case in the previous Term, Reid v. Covert, 351 U. S.
487 (1956), was most explicit in rejecting a “rigid and
abstract rule” for determining where constitutional guar
antees extend. Reid, 354 U. S., at 74 (opinion concurring
in result). He read the Insular Cases to teach that
whether a constitutional provision has extraterritorial
effect depends upon the “particular circumstances, the
30 BOUMEDIENE v. BUSH
Opinion of the Court
practical necessities, and the possible alternatives which
Congress had before it” and, in particular, whether judi
cial enforcement of the provision would be “impracticable
and anomalous.” Id., at 74–75; see also United States v.
Verdugo-Urquidez, 494 U. S. 259, 277–278 (1990)
(KENNEDY, J., concurring) (applying the “impracticable
and anomalous” extraterritoriality test in the Fourth
Amendment context).
That the petitioners in Reid were American citizens was
a key factor in the case and was central to the plurality’s
conclusion that the Fifth and Sixth Amendments apply to
American civilians tried outside the United States. But
practical considerations, related not to the petitioners’
citizenship but to the place of their confinement and trial,
were relevant to each Member of the Reid majority. And
to Justices Harlan and Frankfurter (whose votes were
necessary to the Court’s disposition) these considerations
were the decisive factors in the case.
Indeed the majority splintered on this very point. The
key disagreement between the plurality and the concur
ring Justices in Reid was over the continued precedential
value of the Court’s previous opinion in In re Ross, 140
U. S. 453 (1891), which the Reid Court understood as
holding that under some circumstances Americans abroad
have no right to indictment and trial by jury. The peti
tioner in Ross was a sailor serving on an American mer
chant vessel in Japanese waters who was tried before an
American consular tribunal for the murder of a fellow
crewman. 140 U. S., at 459, 479. The Ross Court held
that the petitioner, who was a British subject, had no
rights under the Fifth and Sixth Amendments. Id., at 464.
The petitioner’s citizenship played no role in the disposi
tion of the case, however. The Court assumed (consistent
with the maritime custom of the time) that Ross had all
the rights of a similarly situated American citizen. Id., at
479 (noting that Ross was “under the protection and sub
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ject to the laws of the United States equally with the
seaman who was native born”). The Justices in Reid
therefore properly understood Ross as standing for the
proposition that, at least in some circumstances, the jury
provisions of the Fifth and Sixth Amendments have no
application to American citizens tried by American au
thorities abroad. See 354 U. S., at 11–12 (plurality opin
ion) (describing Ross as holding that “constitutional pro
tections applied ‘only to citizens and others within the
United States . . . and not to residents or temporary so
journers abroad’” (quoting Ross, supra, at 464)); 354 U. S.,
at 64 (Frankfurter, J., concurring in result) (noting that
the consular tribunals upheld in Ross “w[ere] based on
long-established custom and they were justified as the
best possible means for securing justice for the few Ameri
cans present in [foreign] countries”); 354 U. S., at 75
(Harlan, J., concurring in result) (“what Ross and the
Insular Cases hold is that the particular local setting, the
practical necessities, and the possible alternatives are
relevant to a question of judgment, namely, whether jury
trial should be deemed a necessary condition of the exer
cise of Congress’ power to provide for the trial of Ameri
cans overseas”).
The Reid plurality doubted that Ross was rightly de
cided, precisely because it believed the opinion was insuf
ficiently protective of the rights of American citizens. See
354 U. S., at 10–12; see also id., at 78 (Clark, J., dissent
ing) (noting that “four of my brothers would specifically
overrule and two would impair the long-recognized vitality
of an old and respected precedent in our law, the case of In
re Ross, 140 U. S. 453 (1891)”). But Justices Harlan and
Frankfurter, while willing to hold that the American
citizen petitioners in the cases before them were entitled
to the protections of Fifth and Sixth Amendments, were
unwilling to overturn Ross. 354 U. S., at 64 (Frankfurter,
J., concurring in result); id., at 75 (Harlan, J., concurring
32 BOUMEDIENE v. BUSH
Opinion of the Court
in result). Instead, the two concurring Justices distin
guished Ross from the cases before them, not on the basis
of the citizenship of the petitioners, but on practical con
siderations that made jury trial a more feasible option for
them than it was for the petitioner in Ross. If citizenship
had been the only relevant factor in the case, it would
have been necessary for the Court to overturn Ross, some
thing Justices Harlan and Frankfurter were unwilling to
do. See Verdugo-Urquidez, supra, at 277 (KENNEDY, J.,
concurring) (noting that Ross had not been overruled).
Practical considerations weighed heavily as well in
Johnson v. Eisentrager, 339 U. S. 763 (1950), where the
Court addressed whether habeas corpus jurisdiction ex
tended to enemy aliens who had been convicted of violat
ing the laws of war. The prisoners were detained at
Landsberg Prison in Germany during the Allied Powers’
postwar occupation. The Court stressed the difficulties of
ordering the Government to produce the prisoners in a
habeas corpus proceeding. It “would require allocation of
shipping space, guarding personnel, billeting and rations”
and would damage the prestige of military commanders at
a sensitive time. Id., at 779. In considering these factors
the Court sought to balance the constraints of military
occupation with constitutional necessities. Id., at 769–
779; see Rasul, 542 U. S., at 475–476 (discussing the
factors relevant to Eisentrager’s constitutional holding);
542 U. S., at 486 (KENNEDY, J., concurring in judgment)
(same).
True, the Court in Eisentrager denied access to the writ,
and it noted the prisoners “at no relevant time were
within any territory over which the United States is sov
ereign, and [that] the scenes of their offense, their capture,
their trial and their punishment were all beyond the
territorial jurisdiction of any court of the United States.”
339 U. S., at 778. The Government seizes upon this lan
guage as proof positive that the Eisentrager Court adopted
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a formalistic, sovereignty-based test for determining the
reach of the Suspension Clause. See Brief for Respon
dents 18–20. We reject this reading for three reasons.
First, we do not accept the idea that the above-quoted
passage from Eisentrager is the only authoritative lan
guage in the opinion and that all the rest is dicta. The
Court’s further determinations, based on practical consid
erations, were integral to Part II of its opinion and came
before the decision announced its holding. See 339 U. S.,
at 781.
Second, because the United States lacked both de jure
sovereignty and plenary control over Landsberg Prison,
see infra, at 34–35, it is far from clear that the Eisentrager
Court used the term sovereignty only in the narrow tech
nical sense and not to connote the degree of control the
military asserted over the facility. See supra, at 21. The
Justices who decided Eisentrager would have understood
sovereignty as a multifaceted concept. See Black’s Law
Dictionary 1568 (4th ed. 1951) (defining “sovereignty” as
“[t]he supreme, absolute, and uncontrollable power by
which any independent state is governed”; “the interna
tional independence of a state, combined with the right
and power of regulating its internal affairs without foreign
dictation”; and “[t]he power to do everything in a state
without accountability”); Ballentine’s Law Dictionary with
Pronunciations 1216 (2d ed. 1948) (defining “sovereignty”
as “[t]hat public authority which commands in civil soci
ety, and orders and directs what each citizen is to perform
to obtain the end of its institution”). In its principal brief
in Eisentrager, the Government advocated a bright-line
test for determining the scope of the writ, similar to the
one it advocates in these cases. See Brief for Petitioners in
Johnson v. Eisentrager, O. T. 1949, No. 306, pp. 74–75.
Yet the Court mentioned the concept of territorial sover
eignty only twice in its opinion. See Eisentrager, supra, at
778, 780. That the Court devoted a significant portion of
34 BOUMEDIENE v. BUSH
Opinion of the Court
Part II to a discussion of practical barriers to the running
of the writ suggests that the Court was not concerned
exclusively with the formal legal status of Landsberg
Prison but also with the objective degree of control the
United States asserted over it. Even if we assume the
Eisentrager Court considered the United States’ lack of
formal legal sovereignty over Landsberg Prison as the
decisive factor in that case, its holding is not inconsistent
with a functional approach to questions of extraterritorial
ity. The formal legal status of a given territory affects, at
least to some extent, the political branches’ control over
that territory. De jure sovereignty is a factor that bears
upon which constitutional guarantees apply there.
Third, if the Government’s reading of Eisentrager were
correct, the opinion would have marked not only a change
in, but a complete repudiation of, the Insular Cases’ (and
later Reid’s) functional approach to questions of extrater
ritoriality. We cannot accept the Government’s view.
Nothing in Eisentrager says that de jure sovereignty is or
has ever been the only relevant consideration in determin
ing the geographic reach of the Constitution or of habeas
corpus. Were that the case, there would be considerable
tension between Eisentrager, on the one hand, and the
Insular Cases and Reid, on the other. Our cases need not
be read to conflict in this manner. A constricted reading of
Eisentrager overlooks what we see as a common thread
uniting the Insular Cases, Eisentrager, and Reid: the idea
that questions of extraterritoriality turn on objective
factors and practical concerns, not formalism.
B
The Government’s formal sovereignty-based test raises
troubling separation-of-powers concerns as well. The
political history of Guantanamo illustrates the deficiencies
of this approach. The United States has maintained
complete and uninterrupted control of the bay for over 100
35 Cite as: 553 U. S. ____ (2008)
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years. At the close of the Spanish-American War, Spain
ceded control over the entire island of Cuba to the United
States and specifically “relinquishe[d] all claim[s] of sover
eignty . . . and title.” See Treaty of Paris, Dec. 10, 1898,
U. S.-Spain, Art. I, 30 Stat. 1755, T. S. No. 343. From the
date the treaty with Spain was signed until the Cuban
Republic was established on May 20, 1902, the United
States governed the territory “in trust” for the benefit of
the Cuban people. Neely v. Henkel, 180 U. S. 109, 120
(1901); H. Thomas, Cuba or The Pursuit of Freedom 436,
460 (1998). And although it recognized, by entering into
the 1903 Lease Agreement, that Cuba retained “ultimate
sovereignty” over Guantanamo, the United States contin
ued to maintain the same plenary control it had enjoyed
since 1898. Yet the Government’s view is that the Consti
tution had no effect there, at least as to noncitizens, be
cause the United States disclaimed sovereignty in the
formal sense of the term. The necessary implication of the
argument is that by surrendering formal sovereignty over
any unincorporated territory to a third party, while at the
same time entering into a lease that grants total control
over the territory back to the United States, it would be
possible for the political branches to govern without legal
constraint.
Our basic charter cannot be contracted away like this.
The Constitution grants Congress and the President the
power to acquire, dispose of, and govern territory, not the
power to decide when and where its terms apply. Even
when the United States acts outside its borders, its powers
are not “absolute and unlimited” but are subject “to such
restrictions as are expressed in the Constitution.” Murphy
v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from ques
tions involving formal sovereignty and territorial govern
ance is one thing. To hold the political branches have the
power to switch the Constitution on or off at will is quite
another. The former position reflects this Court’s recogni
36 BOUMEDIENE v. BUSH
Opinion of the Court
tion that certain matters requiring political judgments are
best left to the political branches. The latter would permit
a striking anomaly in our tripartite system of government,
leading to a regime in which Congress and the President,
not this Court, say “what the law is.” Marbury v. Madi-
son, 1 Cranch 137, 177 (1803).
These concerns have particular bearing upon the Sus
pension Clause question in the cases now before us, for the
writ of habeas corpus is itself an indispensable mechanism
for monitoring the separation of powers. The test for
determining the scope of this provision must not be subject
to manipulation by those whose power it is designed to
restrain.
C
As we recognized in Rasul, 542 U. S., at 476; id., at 487
(KENNEDY, J., concurring in judgment), the outlines of a
framework for determining the reach of the Suspension
Clause are suggested by the factors the Court relied upon
in Eisentrager. In addition to the practical concerns dis
cussed above, the Eisentrager Court found relevant that
each petitioner:
“(a) is an enemy alien; (b) has never been or resided in
the United States; (c) was captured outside of our ter
ritory and there held in military custody as a prisoner
of war; (d) was tried and convicted by a Military
Commission sitting outside the United States; (e) for
offenses against laws of war committed outside the
United States; (f) and is at all times imprisoned out
side the United States.” 339 U. S., at 777.
Based on this language from Eisentrager, and the reason
ing in our other extraterritoriality opinions, we conclude
that at least three factors are relevant in determining the
reach of the Suspension Clause: (1) the citizenship and
status of the detainee and the adequacy of the process
37 Cite as: 553 U. S. ____ (2008)
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through which that status determination was made; (2)
the nature of the sites where apprehension and then
detention took place; and (3) the practical obstacles inher
ent in resolving the prisoner’s entitlement to the writ.
Applying this framework, we note at the onset that the
status of these detainees is a matter of dispute. The peti
tioners, like those in Eisentrager, are not American citi
zens. But the petitioners in Eisentrager did not contest, it
seems, the Court’s assertion that they were “enemy
alien[s].” Ibid. In the instant cases, by contrast, the
detainees deny they are enemy combatants. They have
been afforded some process in CSRT proceedings to de
termine their status; but, unlike in Eisentrager, supra, at
766, there has been no trial by military commission for
violations of the laws of war. The difference is not trivial.
The records from the Eisentrager trials suggest that, well
before the petitioners brought their case to this Court,
there had been a rigorous adversarial process to test the
legality of their detention. The Eisentrager petitioners
were charged by a bill of particulars that made detailed
factual allegations against them. See 14 United Nations
War Crimes Commission, Law Reports of Trials of War
Criminals 8–10 (1949) (reprint 1997). To rebut the accu
sations, they were entitled to representation by counsel,
allowed to introduce evidence on their own behalf, and
permitted to cross-examine the prosecution’s witnesses.
See Memorandum by Command of Lt. Gen. Wedemeyer,
Jan. 21, 1946 (establishing “Regulations Governing the
Trial of War Criminals” in the China Theater), in Tr. of
Record in Johnson v. Eisentrager, O. T. 1949, No. 306, pp.
34–40.
In comparison the procedural protections afforded to the
detainees in the CSRT hearings are far more limited, and,
we conclude, fall well short of the procedures and adver
sarial mechanisms that would eliminate the need for
habeas corpus review. Although the detainee is assigned a
38 BOUMEDIENE v. BUSH
Opinion of the Court
“Personal Representative” to assist him during CSRT
proceedings, the Secretary of the Navy’s memorandum
makes clear that person is not the detainee’s lawyer or
even his “advocate.” See App. to Pet. for Cert. in No. 06–
1196, at 155, 172. The Government’s evidence is accorded
a presumption of validity. Id., at 159. The detainee is
allowed to present “reasonably available” evidence, id., at
155, but his ability to rebut the Government’s evidence
against him is limited by the circumstances of his con
finement and his lack of counsel at this stage. And al
though the detainee can seek review of his status deter
mination in the Court of Appeals, that review process
cannot cure all defects in the earlier proceedings. See Part
V, infra.
As to the second factor relevant to this analysis, the
detainees here are similarly situated to the Eisentrager
petitioners in that the sites of their apprehension and
detention are technically outside the sovereign territory of
the United States. As noted earlier, this is a factor that
weighs against finding they have rights under the Sus
pension Clause. But there are critical differences between
Landsberg Prison, circa 1950, and the United States Na
val Station at Guantanamo Bay in 2008. Unlike its pre
sent control over the naval station, the United States’
control over the prison in Germany was neither absolute
nor indefinite. Like all parts of occupied Germany, the
prison was under the jurisdiction of the combined Allied
Forces. See Declaration Regarding the Defeat of Germany
and the Assumption of Supreme Authority with Respect to
Germany, June 5, 1945, U. S.-U. S. S. R.-U. K.-Fr., 60
Stat. 1649, T. I. A. S. No. 1520. The United States was
therefore answerable to its Allies for all activities occur
ring there. Cf. Hirota v. MacArthur, 338 U. S. 197, 198
(1948) (per curiam) (military tribunal set up by Gen.
Douglas MacArthur, acting as “the agent of the Allied
Powers,” was not a “tribunal of the United States”). The
39 Cite as: 553 U. S. ____ (2008)
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Allies had not planned a long-term occupation of Ger
many, nor did they intend to displace all German institu
tions even during the period of occupation. See Agree
ments Respecting Basic Principles for Merger of the Three
Western German Zones of Occupation, and Other Matters,
Apr. 8, 1949, U. S.-U. K.-Fr., Art. 1, 63 Stat. 2819,
T. I. A. S. No. 2066 (establishing a governing framework
“[d]uring the period in which it is necessary that the occu
pation continue” and expressing the desire “that the Ger
man people shall enjoy self-government to the maximum
possible degree consistent with such occupation”). The
Court’s holding in Eisentrager was thus consistent with
the Insular Cases, where it had held there was no need to
extend full constitutional protections to territories the
United States did not intend to govern indefinitely. Guan
tanamo Bay, on the other hand, is no transient possession.
In every practical sense Guantanamo is not abroad; it is
within the constant jurisdiction of the United States. See
Rasul, 542 U. S., at 480; id., at 487 (KENNEDY, J., concur
ring in judgment).
As to the third factor, we recognize, as the Court did in
Eisentrager, that there are costs to holding the Suspension
Clause applicable in a case of military detention abroad.
Habeas corpus proceedings may require expenditure of
funds by the Government and may divert the attention of
military personnel from other pressing tasks. While we
are sensitive to these concerns, we do not find them dispo
sitive. Compliance with any judicial process requires
some incremental expenditure of resources. Yet civilian
courts and the Armed Forces have functioned along side
each other at various points in our history. See, e.g.,
Duncan v. Kahanamoku, 327 U. S. 304 (1946); Ex parte
Milligan, 4 Wall. 2 (1866). The Government presents no
credible arguments that the military mission at Guan
tanamo would be compromised if habeas corpus courts had
jurisdiction to hear the detainees’ claims. And in light of
40 BOUMEDIENE v. BUSH
Opinion of the Court
the plenary control the United States asserts over the
base, none are apparent to us.
The situation in Eisentrager was far different, given the
historical context and nature of the military’s mission in
post-War Germany. When hostilities in the European
Theater came to an end, the United States became respon
sible for an occupation zone encompassing over 57,000
square miles with a population of 18 million. See Letter
from President Truman to Secretary of State Byrnes,
(Nov. 28, 1945), in 8 Documents on American Foreign
Relations 257 (R. Dennett & R. Turner eds. 1948); Pollock,
A Territorial Pattern for the Military Occupation of Ger
many, 38 Am. Pol. Sci. Rev. 970, 975 (1944). In addition to
supervising massive reconstruction and aid efforts the
American forces stationed in Germany faced potential
security threats from a defeated enemy. In retrospect the
post-War occupation may seem uneventful. But at the
time Eisentrager was decided, the Court was right to be
concerned about judicial interference with the military’s
efforts to contain “enemy elements, guerrilla fighters, and
‘were-wolves.’” 339 U. S., at 784.
Similar threats are not apparent here; nor does the
Government argue that they are. The United States
Naval Station at Guantanamo Bay consists of 45 square
miles of land and water. The base has been used, at vari
ous points, to house migrants and refugees temporarily.
At present, however, other than the detainees themselves,
the only long-term residents are American military per
sonnel, their families, and a small number of workers. See
History of Guantanamo Bay online at https://www.cnic.
navy.mil/Guantanamo/AboutGTMO/gtmohistorygeneral/
gtmohistgeneral. The detainees have been deemed ene
mies of the United States. At present, dangerous as they
may be if released, they are contained in a secure prison
facility located on an isolated and heavily fortified military
base.
41 Cite as: 553 U. S. ____ (2008)
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There is no indication, furthermore, that adjudicating a
habeas corpus petition would cause friction with the host
government. No Cuban court has jurisdiction over Ameri
can military personnel at Guantanamo or the enemy
combatants detained there. While obligated to abide by
the terms of the lease, the United States is, for all practi
cal purposes, answerable to no other sovereign for its acts
on the base. Were that not the case, or if the detention
facility were located in an active theater of war, argu
ments that issuing the writ would be “impracticable or
anomalous” would have more weight. See Reid, 354 U. S.,
at 74 (Harlan, J., concurring in result). Under the facts
presented here, however, there are few practical barriers
to the running of the writ. To the extent barriers arise,
habeas corpus procedures likely can be modified to ad
dress them. See Part VI–B, infra.
It is true that before today the Court has never held
that noncitizens detained by our Government in territory
over which another country maintains de jure sovereignty
have any rights under our Constitution. But the cases
before us lack any precise historical parallel. They involve
individuals detained by executive order for the duration of
a conflict that, if measured from September 11, 2001, to
the present, is already among the longest wars in Ameri
can history. See Oxford Companion to American Military
History 849 (1999). The detainees, moreover, are held in a
territory that, while technically not part of the United
States, is under the complete and total control of our
Government. Under these circumstances the lack of a
precedent on point is no barrier to our holding.
We hold that Art. I, §9, cl. 2, of the Constitution has full
effect at Guantanamo Bay. If the privilege of habeas
corpus is to be denied to the detainees now before us,
Congress must act in accordance with the requirements of
the Suspension Clause. Cf. Hamdi, 542 U. S., at 564
(SCALIA, J., dissenting) (“[I]ndefinite imprisonment on
42 BOUMEDIENE v. BUSH
Opinion of the Court
reasonable suspicion is not an available option of treat
ment for those accused of aiding the enemy, absent a
suspension of the writ”). This Court may not impose a de
facto suspension by abstaining from these controversies.
See Hamdan, 548 U. S., at 585, n. 16 (“[A]bstention is not
appropriate in cases . . . in which the legal challenge
‘turn[s] on the status of the persons as to whom the mili
tary asserted its power’” (quoting Schlesinger v. Council-
man, 420 U. S. 738, 759 (1975))). The MCA does not
purport to be a formal suspension of the writ; and the
Government, in its submissions to us, has not argued that
it is. Petitioners, therefore, are entitled to the privilege of
habeas corpus to challenge the legality of their detention.
V
In light of this holding the question becomes whether
the statute stripping jurisdiction to issue the writ avoids
the Suspension Clause mandate because Congress has
provided adequate substitute procedures for habeas cor
pus. The Government submits there has been compliance
with the Suspension Clause because the DTA review
process in the Court of Appeals, see DTA §1005(e), pro
vides an adequate substitute. Congress has granted that
court jurisdiction to consider
“(i) whether the status determination of the [CSRT]
. . . was consistent with the standards and procedures
specified by the Secretary of Defense . . . and (ii) to the
extent the Constitution and laws of the United States
are applicable, whether the use of such standards and
procedures to make the determination is consistent
with the Constitution and laws of the United States.”
§1005(e)(2)(C), 119 Stat. 2742.
The Court of Appeals, having decided that the writ does
not run to the detainees in any event, found it unneces
sary to consider whether an adequate substitute has been
43 Cite as: 553 U. S. ____ (2008)
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provided. In the ordinary course we would remand to the
Court of Appeals to consider this question in the first
instance. See Youakim v. Miller, 425 U. S. 231, 234 (1976)
(per curiam). It is well settled, however, that the Court’s
practice of declining to address issues left unresolved in
earlier proceedings is not an inflexible rule. Ibid. Depar
ture from the rule is appropriate in “exceptional” circum
stances. See Cooper Industries, Inc. v. Aviall Services,
Inc., 543 U. S. 157, 169 (2004); Duignan v. United States,
274 U. S. 195, 200 (1927).
The gravity of the separation-of-powers issues raised by
these cases and the fact that these detainees have been
denied meaningful access to a judicial forum for a period of
years render these cases exceptional. The parties before
us have addressed the adequacy issue. While we would
have found it informative to consider the reasoning of the
Court of Appeals on this point, we must weigh that
against the harms petitioners may endure from additional
delay. And, given there are few precedents addressing
what features an adequate substitute for habeas corpus
must contain, in all likelihood a remand simply would
delay ultimate resolution of the issue by this Court.
We do have the benefit of the Court of Appeals’ con
struction of key provisions of the DTA. When we granted
certiorari in these cases, we noted “it would be of material
assistance to consult any decision” in the parallel DTA
review proceedings pending in the Court of Appeals, spe
cifically any rulings in the matter of Bismullah v. Gates.
551 U. S. ___ (2007). Although the Court of Appeals has
yet to complete a DTA review proceeding, the three-judge
panel in Bismullah has issued an interim order giving
guidance as to what evidence can be made part of the
record on review and what access the detainees can have
to counsel and to classified information. See 501 F. 3d 178
(CADC) (Bismullah I), reh’g denied, 503 F. 3d 137 (CADC
2007) (Bismullah II). In that matter the full court denied
44 BOUMEDIENE v. BUSH
Opinion of the Court
the Government’s motion for rehearing en banc, see Bis-
mullah v. Gates, 514 F. 3d 1291 (CADC 2008) (Bismullah
III). The order denying rehearing was accompanied by
five separate statements from members of the court, which
offer differing views as to scope of the judicial review
Congress intended these detainees to have. Ibid.
Under the circumstances we believe the costs of further
delay substantially outweigh any benefits of remanding to
the Court of Appeals to consider the issue it did not ad
dress in these cases.
A
Our case law does not contain extensive discussion of
standards defining suspension of the writ or of circum
stances under which suspension has occurred. This sim
ply confirms the care Congress has taken throughout our
Nation’s history to preserve the writ and its function.
Indeed, most of the major legislative enactments pertain
ing to habeas corpus have acted not to contract the writ’s
protection but to expand it or to hasten resolution of pris
oners’ claims. See, e.g., Habeas Corpus Act of 1867, ch. 28,
§1, 14 Stat. 385 (current version codified at 28 U. S. C.
§2241 (2000 ed. and Supp. V) (extending the federal writ
to state prisoners)); Cf. Harris v. Nelson, 394 U. S. 286,
299–300 (1969) (interpreting the All Writs Act, 28 U. S. C.
§1651, to allow discovery in habeas corpus proceedings);
Peyton v. Rowe, 391 U. S. 54, 64–65 (1968) (interpreting
the then-existing version of §2241 to allow petitioner to
proceed with his habeas corpus action, even though he had
not yet begun to serve his sentence).
There are exceptions, of course. Title I of the Antiterror
ism and Effective Death Penalty Act of 1996 (AEDPA),
§106, 110 Stat. 1220, contains certain gatekeeping provi
sions that restrict a prisoner’s ability to bring new and
repetitive claims in “second or successive” habeas corpus
actions. We upheld these provisions against a Suspension
45 Cite as: 553 U. S. ____ (2008)
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Clause challenge in Felker v. Turpin, 518 U. S. 651, 662–
664 (1996). The provisions at issue in Felker, however, did
not constitute a substantial departure from common-law
habeas procedures. The provisions, for the most part,
codified the longstanding abuse-of-the-writ doctrine. Id.,
at 664; see also McCleskey v. Zant, 499 U. S. 467, 489
(1991). AEDPA applies, moreover, to federal, postconvic
tion review after criminal proceedings in state court have
taken place. As of this point, cases discussing the imple
mentation of that statute give little helpful instruction
(save perhaps by contrast) for the instant cases, where no
trial has been held.
The two leading cases addressing habeas substitutes,
Swain v. Pressley, 430 U. S. 372 (1977), and United States
v. Hayman, 342 U. S. 205 (1952), likewise provide little
guidance here. The statutes at issue were attempts to
streamline habeas corpus relief, not to cut it back.
The statute discussed in Hayman was 28 U. S. C. §2255.
It replaced traditional habeas corpus for federal prisoners
(at least in the first instance) with a process that allowed
the prisoner to file a motion with the sentencing court on
the ground that his sentence was, inter alia, “‘imposed in
violation of the Constitution or laws of the United States.’”
342 U. S., at 207, n. 1. The purpose and effect of the stat
ute was not to restrict access to the writ but to make
postconviction proceedings more efficient. It directed
claims not to the court that had territorial jurisdiction
over the place of the petitioner’s confinement but to the
sentencing court, a court already familiar with the facts of
the case. As the Hayman Court explained
“Section 2255 . . . was passed at the instance of the
Judicial Conference to meet practical difficulties that
had arisen in administering the habeas corpus juris
diction of the federal courts. Nowhere in the history
of Section 2255 do we find any purpose to impinge
46 BOUMEDIENE v. BUSH
Opinion of the Court
upon prisoners’ rights of collateral attack upon their
convictions. On the contrary, the sole purpose was to
minimize the difficulties encountered in habeas cor
pus hearings by affording the same rights in another
and more convenient forum.” Id., at 219.
See also Hill v. United States, 368 U. S. 424, 427, 428, and
n. 5 (1962) (noting that §2255 provides a remedy in the
sentencing court that is “exactly commensurate” with the
pre-existing federal habeas corpus remedy).
The statute in Swain, D. C. Code Ann. §23–110(g)
(1973), applied to prisoners in custody under sentence of
the Superior Court of the District of Columbia. Before
enactment of the District of Columbia Court Reform and
Criminal Procedure Act of 1970 (D. C. Court Reform Act),
84 Stat. 473, those prisoners could file habeas petitions in
the United States District Court for the District of Colum
bia. The Act, which was patterned on §2255, substituted a
new collateral process in the Superior Court for the pre
existing habeas corpus procedure in the District Court.
See Swain, 430 U. S., at 374–378. But, again, the purpose
and effect of the statute was to expedite consideration of
the prisoner’s claims, not to delay or frustrate it. See id.,
at 375, n. 4 (noting that the purpose of the D. C. Court
Reform Act was to “alleviate” administrative burdens on
the District Court).
That the statutes in Hayman and Swain were designed
to strengthen, rather than dilute, the writ’s protections
was evident, furthermore, from this significant fact: Nei
ther statute eliminated traditional habeas corpus relief.
In both cases the statute at issue had a saving clause,
providing that a writ of habeas corpus would be available
if the alternative process proved inadequate or ineffective.
Swain, supra, at 381; Hayman, supra, at 223. The Court
placed explicit reliance upon these provisions in upholding
the statutes against constitutional challenges. See Swain,
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Opinion of the Court
supra, at 381 (noting that the provision “avoid[ed] any
serious question about the constitutionality of the stat
ute”); Hayman, supra, at 223 (noting that, because habeas
remained available as a last resort, it was unnecessary to
“reach constitutional questions”).
Unlike in Hayman and Swain, here we confront stat
utes, the DTA and the MCA, that were intended to cir
cumscribe habeas review. Congress’ purpose is evident
not only from the unequivocal nature of MCA §7’s jurisdic
tion-stripping language, 28 U. S. C. A. §2241(e)(1) (Supp.
2007) (“No court, justice, or judge shall have jurisdiction to
hear or consider an application for a writ of habeas corpus
. . .”), but also from a comparison of the DTA to the stat
utes at issue in Hayman and Swain. When interpreting a
statute, we examine related provisions in other parts of
the U. S. Code. See, e.g., West Virginia Univ. Hospitals,
Inc. v. Casey, 499 U. S. 83, 88–97 (1991); Babbitt v. Sweet
Home Chapter, Communities for Great Ore., 515 U. S. 687,
717–718 (1995) (SCALIA, J., dissenting); see generally W.
Eskridge, P. Frickey, & E. Garrett, Cases and Materials
on Legislation: Statutes and the Creation of Public Policy
1039 (3d ed. 2001). When Congress has intended to re
place traditional habeas corpus with habeas-like substi
tutes, as was the case in Hayman and Swain, it has
granted to the courts broad remedial powers to secure the
historic office of the writ. In the §2255 context, for exam
ple, Congress has granted to the reviewing court power to
“determine the issues and make findings of fact and con
clusions of law” with respect to whether “the judgment [of
conviction] was rendered without jurisdiction, or . . . the
sentence imposed was not authorized by law or otherwise
open to collateral attack.” 28 U. S. C. A. §2255(b) (Supp.
2008). The D. C. Court Reform Act, the statute upheld in
Swain, contained a similar provision. §23–110(g), 84 Stat.
609.
In contrast the DTA’s jurisdictional grant is quite lim
48 BOUMEDIENE v. BUSH
Opinion of the Court
ited. The Court of Appeals has jurisdiction not to inquire
into the legality of the detention generally but only to
assess whether the CSRT complied with the “standards
and procedures specified by the Secretary of Defense” and
whether those standards and procedures are lawful. DTA
§1005(e)(2)(C), 119 Stat. 2742. If Congress had envisioned
DTA review as coextensive with traditional habeas corpus,
it would not have drafted the statute in this manner.
Instead, it would have used language similar to what it
used in the statutes at issue in Hayman and Swain. Cf.
Russello v. United States, 464 U. S. 16, 23 (1983)
(“‘[W]here Congress includes particular language in one
section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion’” (quoting United States v. Wong Kim Bo, 472
F. 2d 720, 722 (CA5 1972))). Unlike in Hayman and
Swain, moreover, there has been no effort to preserve
habeas corpus review as an avenue of last resort. No
saving clause exists in either the MCA or the DTA. And
MCA §7 eliminates habeas review for these petitioners.
The differences between the DTA and the habeas stat
ute that would govern in MCA §7’s absence, 28 U. S. C.
§2241 (2000 ed. and Supp. V), are likewise telling. In
§2241 (2000 ed.) Congress confirmed the authority of “any
justice” or “circuit judge” to issue the writ. Cf. Felker, 518
U. S., at 660–661 (interpreting Title I of AEDPA to not
strip from this Court the power to entertain original ha
beas corpus petitions). That statute accommodates the
necessity for factfinding that will arise in some cases by
allowing the appellate judge or Justice to transfer the case
to a district court of competent jurisdiction, whose institu
tional capacity for factfinding is superior to his or her own.
See 28 U. S. C. §2241(b). By granting the Court of Ap
peals “exclusive” jurisdiction over petitioners’ cases, see
DTA §1005(e)(2)(A), 119 Stat. 2742, Congress has fore
49 Cite as: 553 U. S. ____ (2008)
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closed that option. This choice indicates Congress in
tended the Court of Appeals to have a more limited role in
enemy combatant status determinations than a district
court has in habeas corpus proceedings. The DTA should
be interpreted to accord some latitude to the Court of
Appeals to fashion procedures necessary to make its re
view function a meaningful one, but, if congressional
intent is to be respected, the procedures adopted cannot be
as extensive or as protective of the rights of the detainees
as they would be in a §2241 proceeding. Otherwise there
would have been no, or very little, purpose for enacting the
DTA.
To the extent any doubt remains about Congress’ intent,
the legislative history confirms what the plain text
strongly suggests: In passing the DTA Congress did not
intend to create a process that differs from traditional
habeas corpus process in name only. It intended to create
a more limited procedure. See, e.g., 151 Cong. Rec. S14263
(Dec. 21, 2005) (statement of Sen. Graham) (noting that
the DTA “extinguish[es] these habeas and other actions in
order to effect a transfer of jurisdiction over these cases to
the DC Circuit Court” and agreeing that the bill “create[s]
in their place a very limited judicial review of certain
military administrative decisions”); id., at S14268 (state
ment of Sen. Kyl) (“It is important to note that the limited
judicial review authorized by paragraphs 2 and 3 of sub
section (e) [of DTA §1005] are not habeas-corpus review.
It is a limited judicial review of its own nature”).
It is against this background that we must interpret the
DTA and assess its adequacy as a substitute for habeas
corpus. The present cases thus test the limits of the Sus
pension Clause in ways that Hayman and Swain did not.
B
We do not endeavor to offer a comprehensive summary
of the requisites for an adequate substitute for habeas
50 BOUMEDIENE v. BUSH
Opinion of the Court
corpus. We do consider it uncontroversial, however, that
the privilege of habeas corpus entitles the prisoner to a
meaningful opportunity to demonstrate that he is being
held pursuant to “the erroneous application or interpreta
tion” of relevant law. St. Cyr, 533 U. S., at 302. And the
habeas court must have the power to order the conditional
release of an individual unlawfully detained—though
release need not be the exclusive remedy and is not the
appropriate one in every case in which the writ is granted.
See Ex parte Bollman, 4 Cranch 75, 136 (1807) (where
imprisonment is unlawful, the court “can only direct [the
prisoner] to be discharged”); R. Hurd, Treatise on the
Right of Personal Liberty, and On the Writ of Habeas
Corpus and the Practice Connected with It: With a View of
the Law of Extradition of Fugitives 222 (2d ed. 1876) (“It
cannot be denied where ‘a probable ground is shown that
the party is imprisoned without just cause, and therefore,
hath a right to be delivered,’ for the writ then becomes a
‘writ of right, which may not be denied but ought to be
granted to every man that is committed or detained in
prison or otherwise restrained of his liberty’”). But see
Chessman v. Teets, 354 U. S. 156, 165–166 (1957) (re
manding in a habeas case for retrial within a “reasonable
time”). These are the easily identified attributes of any
constitutionally adequate habeas corpus proceeding.
But, depending on the circumstances, more may be
required.
Indeed, common-law habeas corpus was, above all, an
adaptable remedy. Its precise application and scope
changed depending upon the circumstances. See 3 Black-
stone *131 (describing habeas as “the great and efficacious
writ, in all manner of illegal confinement”); see also
Schlup v. Delo, 513 U. S. 298, 319 (1995) (Habeas “is, at
its core, an equitable remedy”); Jones v. Cunningham, 371
U. S. 236, 243 (1963) (Habeas is not “a static, narrow,
formalistic remedy; its scope has grown to achieve its
51 Cite as: 553 U. S. ____ (2008)
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grand purpose”). It appears the common-law habeas
court’s role was most extensive in cases of pretrial and
noncriminal detention, where there had been little or no
previous judicial review of the cause for detention. Nota
bly, the black-letter rule that prisoners could not contro
vert facts in the jailer’s return was not followed (or at least
not with consistency) in such cases. Hurd, supra, at 271
(noting that the general rule was “subject to exceptions”
including cases of bail and impressment); Oakes, Legal
History in the High Court—Habeas Corpus, 64 Mich. L.
Rev. 451, 457 (1966) (“[W]hen a prisoner applied for ha
beas corpus before indictment or trial, some courts exam
ined the written depositions on which he had been ar
rested or committed, and others even heard oral testimony
to determine whether the evidence was sufficient to justi
fying holding him for trial” (footnotes omitted)); Fallon &
Meltzer, Habeas Corpus Jurisdiction, Substantive Rights,
and the War on Terror, 120 Harv. L. Rev. 2029, 2102
(2007) (“[T]he early practice was not consistent: courts
occasionally permitted factual inquiries when no other
opportunity for judicial review existed”).
There is evidence from 19th-century American sources
indicating that, even in States that accorded strong res
judicata effect to prior adjudications, habeas courts in this
country routinely allowed prisoners to introduce exculpa
tory evidence that was either unknown or previously
unavailable to the prisoner. See, e.g., Ex parte Pattison,
56 Miss. 161, 164 (1878) (noting that “[w]hile the former
adjudication must be considered as conclusive on the
testimony then adduced” “newly developed exculpatory
evidence . . . may authorize the admission to bail”); Ex
parte Foster, 5 Tex. Ct. App. 625, 644 (1879) (construing
the State’s habeas statute to allow for the introduction of
new evidence “where important testimony has been ob
tained, which, though not newly discovered, or which,
though known to [the petitioner], it was not in his power
52 BOUMEDIENE v. BUSH
Opinion of the Court
to produce at the former hearing; [and] where the evidence
was newly discovered”); People v. Martin, 7 N. Y. Leg. Obs.
49, 56 (1848) (“If in custody on criminal process before
indictment, the prisoner has an absolute right to demand
that the original depositions be looked into to see whether
any crime is in fact imputed to him, and the inquiry will
by no means be confined to the return. Facts out of the
return may be gone into to ascertain whether the commit
ting magistrate may not have arrived at an illogical con
clusion upon the evidence given before him . . .”); see
generally W. Church, Treatise on the Writ of Habeas
Corpus §182, p. 235 1886) (hereinafter Church) (noting
that habeas courts would “hear evidence anew if justice
require it”). Justice McLean, on Circuit in 1855, expressed
his view that a habeas court should consider a prior judg
ment conclusive “where there was clearly jurisdiction and
a full and fair hearing; but that it might not be so consid
ered when any of these requisites were wanting.” Ex parte
Robinson, 20 F. Cas. 969, 971, (No. 11,935) (CC Ohio
1855). To illustrate the circumstances in which the prior
adjudication did not bind the habeas court, he gave the
example of a case in which “[s]everal unimpeached wit
nesses” provided new evidence to exculpate the prisoner.
Ibid.
The idea that the necessary scope of habeas review in
part depends upon the rigor of any earlier proceedings
accords with our test for procedural adequacy in the due
process context. See Mathews v. Eldridge, 424 U. S. 319,
335 (1976) (noting that the Due Process Clause requires
an assessment of, inter alia, “the risk of an erroneous
deprivation of [a liberty interest;] and the probable value,
if any, of additional or substitute procedural safeguards”).
This principle has an established foundation in habeas
corpus jurisprudence as well, as Chief Justice Marshall’s
opinion in Ex parte Watkins, 3 Pet. 193 (1830), demon
strates. Like the petitioner in Swain, Watkins sought a
53 Cite as: 553 U. S. ____ (2008)
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writ of habeas corpus after being imprisoned pursuant to a
judgment of a District of Columbia court. In holding that
the judgment stood on “high ground,” 3 Pet., at 209, the
Chief Justice emphasized the character of the court that
rendered the original judgment, noting it was a “court of
record, having general jurisdiction over criminal cases.”
Id., at 203. In contrast to “inferior” tribunals of limited
jurisdiction, ibid., courts of record had broad remedial
powers, which gave the habeas court greater confidence in
the judgment’s validity. See generally Neuman, Habeas
Corpus, Executive Detention, and the Removal of Aliens,
98 Colum. L. Rev. 961, 982–983 (1998).
Accordingly, where relief is sought from a sentence that
resulted from the judgment of a court of record, as was the
case in Watkins and indeed in most federal habeas cases,
considerable deference is owed to the court that ordered
confinement. See Brown v. Allen, 344 U. S. 443, 506
(1953) (opinion of Frankfurter, J.) (noting that a federal
habeas court should accept a state court’s factual findings
unless “a vital flaw be found in the process of ascertaining
such facts in the State court”). Likewise in those cases the
prisoner should exhaust adequate alternative remedies
before filing for the writ in federal court. See Ex parte
Royall, 117 U. S. 241, 251–252 (1886) (requiring exhaus
tion of state collateral processes). Both aspects of federal
habeas corpus review are justified because it can be as
sumed that, in the usual course, a court of record provides
defendants with a fair, adversary proceeding. In cases
involving state convictions this framework also respects
federalism; and in federal cases it has added justification
because the prisoner already has had a chance to seek
review of his conviction in a federal forum through a direct
appeal. The present cases fall outside these categories,
however; for here the detention is by executive order.
Where a person is detained by executive order, rather
than, say, after being tried and convicted in a court, the
54 BOUMEDIENE v. BUSH
Opinion of the Court
need for collateral review is most pressing. A criminal
conviction in the usual course occurs after a judicial hear
ing before a tribunal disinterested in the outcome and
committed to procedures designed to ensure its own inde
pendence. These dynamics are not inherent in executive
detention orders or executive review procedures. In this
context the need for habeas corpus is more urgent. The
intended duration of the detention and the reasons for it
bear upon the precise scope of the inquiry. Habeas corpus
proceedings need not resemble a criminal trial, even when
the detention is by executive order. But the writ must be
effective. The habeas court must have sufficient authority
to conduct a meaningful review of both the cause for de
tention and the Executive’s power to detain.
To determine the necessary scope of habeas corpus
review, therefore, we must assess the CSRT process, the
mechanism through which petitioners’ designation as
enemy combatants became final. Whether one character
izes the CSRT process as direct review of the Executive’s
battlefield determination that the detainee is an enemy
combatant—as the parties have and as we do—or as the
first step in the collateral review of a battlefield determi
nation makes no difference in a proper analysis of whether
the procedures Congress put in place are an adequate
substitute for habeas corpus. What matters is the sum
total of procedural protections afforded to the detainee at
all stages, direct and collateral.
Petitioners identify what they see as myriad deficiencies
in the CSRTs. The most relevant for our purposes are the
constraints upon the detainee’s ability to rebut the factual
basis for the Government’s assertion that he is an enemy
combatant. As already noted, see Part IV–C, supra, at the
CSRT stage the detainee has limited means to find or
present evidence to challenge the Government’s case
against him. He does not have the assistance of counsel
and may not be aware of the most critical allegations that
55 Cite as: 553 U. S. ____ (2008)
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the Government relied upon to order his detention. See
App. to Pet. for Cert. in No. 06–1196, at 156, ¶F(8) (noting
that the detainee can access only the “unclassified portion
of the Government Information”). The detainee can con
front witnesses that testify during the CSRT proceedings.
Id., at 144, ¶g(8). But given that there are in effect no
limits on the admission of hearsay evidence—the only
requirement is that the tribunal deem the evidence “rele
vant and helpful,” ibid., ¶g(9)—the detainee’s opportunity
to question witnesses is likely to be more theoretical than
real.
The Government defends the CSRT process, arguing
that it was designed to conform to the procedures sug
gested by the plurality in Hamdi. See 542 U. S., at 538.
Setting aside the fact that the relevant language in Hamdi
did not garner a majority of the Court, it does not control
the matter at hand. None of the parties in Hamdi argued
there had been a suspension of the writ. Nor could they.
The §2241 habeas corpus process remained in place, id., at
525. Accordingly, the plurality concentrated on whether
the Executive had the authority to detain and, if so, what
rights the detainee had under the Due Process Clause.
True, there are places in the Hamdi plurality opinion
where it is difficult to tell where its extrapolation of §2241
ends and its analysis of the petitioner’s Due Process rights
begins. But the Court had no occasion to define the neces
sary scope of habeas review, for Suspension Clause pur
poses, in the context of enemy combatant detentions. The
closest the plurality came to doing so was in discussing
whether, in light of separation-of-powers concerns, §2241
should be construed to forbid the District Court from
inquiring beyond the affidavit Hamdi’s custodian provided
in answer to the detainee’s habeas petition. The plurality
answered this question with an emphatic “no.” Id., at 527
(labeling this argument as “extreme”); id., at 535–536.
Even if we were to assume that the CSRTs satisfy due
56 BOUMEDIENE v. BUSH
Opinion of the Court
process standards, it would not end our inquiry. Habeas
corpus is a collateral process that exists, in Justice
Holmes’ words, to “cu[t] through all forms and g[o] to the
very tissue of the structure. It comes in from the outside,
not in subordination to the proceedings, and although
every form may have been preserved opens the inquiry
whether they have been more than an empty shell.”
Frank v. Mangum, 237 U. S. 309, 346 (1915) (dissenting
opinion). Even when the procedures authorizing detention
are structurally sound, the Suspension Clause remains
applicable and the writ relevant. See 2 Chambers, Course
of Lectures on English Law 1767–1773, at 6 (“Liberty may
be violated either by arbitrary imprisonment without law
or the appearance of law, or by a lawful magistrate for an
unlawful reason”). This is so, as Hayman and Swain
make clear, even where the prisoner is detained after a
criminal trial conducted in full accordance with the protec
tions of the Bill of Rights. Were this not the case, there
would have been no reason for the Court to inquire into
the adequacy of substitute habeas procedures in Hayman
and Swain. That the prisoners were detained pursuant to
the most rigorous proceedings imaginable, a full criminal
trial, would have been enough to render any habeas sub
stitute acceptable per se.
Although we make no judgment as to whether the
CSRTs, as currently constituted, satisfy due process stan
dards, we agree with petitioners that, even when all the
parties involved in this process act with diligence and in
good faith, there is considerable risk of error in the tribu
nal’s findings of fact. This is a risk inherent in any proc
ess that, in the words of the former Chief Judge of the
Court of Appeals, is “closed and accusatorial.” See Bis-
mullah III, 514 F. 3d, at 1296 (Ginsburg, C. J., concurring
in denial of rehearing en banc). And given that the conse
quence of error may be detention of persons for the dura
tion of hostilities that may last a generation or more, this
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is a risk too significant to ignore.
For the writ of habeas corpus, or its substitute, to func
tion as an effective and proper remedy in this context, the
court that conducts the habeas proceeding must have the
means to correct errors that occurred during the CSRT
proceedings. This includes some authority to assess the
sufficiency of the Government’s evidence against the
detainee. It also must have the authority to admit and
consider relevant exculpatory evidence that was not intro
duced during the earlier proceeding. Federal habeas
petitioners long have had the means to supplement the
record on review, even in the postconviction habeas set
ting. See Townsend v. Sain, 372 U. S. 293, 313 (1963),
overruled in part by Keeney v. Tamayo-Reyes, 504 U. S. 1,
5 (1992). Here that opportunity is constitutionally
required.
Consistent with the historic function and province of the
writ, habeas corpus review may be more circumscribed if
the underlying detention proceedings are more thorough
than they were here. In two habeas cases involving enemy
aliens tried for war crimes, In re Yamashita, 327 U. S. 1
(1946), and Ex parte Quirin, 317 U. S. 1 (1942), for exam
ple, this Court limited its review to determining whether
the Executive had legal authority to try the petitioners by
military commission. See Yamashita, supra, at 8 (“[O]n
application for habeas corpus we are not concerned with
the guilt or innocence of the petitioners. We consider here
only the lawful power of the commission to try the peti
tioner for the offense charged”); Quirin, supra, at 25 (“We
are not here concerned with any question of the guilt or
innocence of petitioners”). Military courts are not courts of
record. See Watkins, 3 Pet., at 209; Church 513. And the
procedures used to try General Yamashita have been
sharply criticized by Members of this Court. See Hamdan,
548 U. S., at 617; Yamashita, supra, at 41–81 (Rutledge,
J., dissenting). We need not revisit these cases, however.
58 BOUMEDIENE v. BUSH
Opinion of the Court
For on their own terms, the proceedings in Yamashita and
Quirin, like those in Eisentrager, had an adversarial
structure that is lacking here. See Yamashita, supra, at 5
(noting that General Yamashita was represented by six
military lawyers and that “[t]hroughout the proceedings
. . . defense counsel . . . demonstrated their professional
skill and resourcefulness and their proper zeal for the
defense with which they were charged”); Quirin, supra, at
23–24; Exec. Order No. 9185, 7 Fed. Reg. 5103 (1942)
(appointing counsel to represent the German saboteurs).
The extent of the showing required of the Government
in these cases is a matter to be determined. We need not
explore it further at this stage. We do hold that when the
judicial power to issue habeas corpus properly is invoked
the judicial officer must have adequate authority to make
a determination in light of the relevant law and facts and
to formulate and issue appropriate orders for relief, in
cluding, if necessary, an order directing the prisoner’s
release.
C
We now consider whether the DTA allows the Court of
Appeals to conduct a proceeding meeting these standards.
“[W]e are obligated to construe the statute to avoid [con
stitutional] problems” if it is “‘fairly possible’” to do so. St.
Cyr, 533 U. S., at 299–300 (quoting Crowell v. Benson, 285
U. S. 22, 62 (1932)). There are limits to this principle,
however. The canon of constitutional avoidance does not
supplant traditional modes of statutory interpretation.
See Clark v. Martinez, 543 U. S. 371, 385 (2005) (“The
canon of constitutional avoidance comes into play only
when, after the application of ordinary textual analysis,
the statute is found to be susceptible of more than one
construction; and the canon functions as a means of choos-
ing between them”). We cannot ignore the text and pur
pose of a statute in order to save it.
59 Cite as: 553 U. S. ____ (2008)
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The DTA does not explicitly empower the Court of Ap
peals to order the applicant in a DTA review proceeding
released should the court find that the standards and
procedures used at his CSRT hearing were insufficient to
justify detention. This is troubling. Yet, for present pur
poses, we can assume congressional silence permits a
constitutionally required remedy. In that case it would be
possible to hold that a remedy of release is impliedly
provided for. The DTA might be read, furthermore, to
allow the petitioners to assert most, if not all, of the legal
claims they seek to advance, including their most basic
claim: that the President has no authority under the
AUMF to detain them indefinitely. (Whether the Presi
dent has such authority turns on whether the AUMF
authorizes—and the Constitution permits—the indefinite
detention of “enemy combatants” as the Department of
Defense defines that term. Thus a challenge to the Presi
dent’s authority to detain is, in essence, a challenge to the
Department’s definition of enemy combatant, a “standard”
used by the CSRTs in petitioners’ cases.) At oral argu
ment, the Solicitor General urged us to adopt both these
constructions, if doing so would allow MCA §7 to remain
intact. See Tr. of Oral Arg. 37, 53.
The absence of a release remedy and specific language
allowing AUMF challenges are not the only constitutional
infirmities from which the statute potentially suffers,
however. The more difficult question is whether the DTA
permits the Court of Appeals to make requisite findings of
fact. The DTA enables petitioners to request “review” of
their CSRT determination in the Court of Appeals, DTA
§1005(e)(2)(B)(i), 119 Stat. 2742; but the “Scope of Review”
provision confines the Court of Appeals’ role to reviewing
whether the CSRT followed the “standards and proce
dures” issued by the Department of Defense and assessing
whether those “standards and procedures” are lawful.
§1005(e)(C), ibid. Among these standards is “the require
60 BOUMEDIENE v. BUSH
Opinion of the Court
ment that the conclusion of the Tribunal be supported by a
preponderance of the evidence . . . allowing a rebuttable
presumption in favor of the Government’s evidence.”
§1005(e)(C)(i), ibid.
Assuming the DTA can be construed to allow the Court
of Appeals to review or correct the CSRT’s factual deter
minations, as opposed to merely certifying that the tribu
nal applied the correct standard of proof, we see no way to
construe the statute to allow what is also constitutionally
required in this context: an opportunity for the detainee to
present relevant exculpatory evidence that was not made
part of the record in the earlier proceedings.
On its face the statute allows the Court of Appeals to
consider no evidence outside the CSRT record. In the
parallel litigation, however, the Court of Appeals deter
mined that the DTA allows it to order the production of all
“‘reasonably available information in the possession of the
U. S. Government bearing on the issue of whether the
detainee meets the criteria to be designated as an enemy
combatant,’” regardless of whether this evidence was put
before the CSRT. See Bismullah I, 501 F. 3d, at 180. The
Government, see Pet. for Cert. pending in Gates v. Bismul-
lah, No. 07–1054 (hereinafter Bismullah Pet.), with sup
port from five members of the Court of Appeals, see Bis-
mullah III, 514 F. 3d, at 1299 (Henderson, J., dissenting
from denial of rehearing en banc); id., at 1302 (opinion of
Randolph, J.) (same); id., at 1306 (opinion of Brown, J.)
(same), disagrees with this interpretation. For present
purposes, however, we can assume that the Court of Ap
peals was correct that the DTA allows introduction and
consideration of relevant exculpatory evidence that was
“reasonably available” to the Government at the time of
the CSRT but not made part of the record. Even so, the
DTA review proceeding falls short of being a constitution
ally adequate substitute, for the detainee still would have
no opportunity to present evidence discovered after the
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CSRT proceedings concluded.
Under the DTA the Court of Appeals has the power to
review CSRT determinations by assessing the legality of
standards and procedures. This implies the power to
inquire into what happened at the CSRT hearing and,
perhaps, to remedy certain deficiencies in that proceeding.
But should the Court of Appeals determine that the CSRT
followed appropriate and lawful standards and proce
dures, it will have reached the limits of its jurisdiction.
There is no language in the DTA that can be construed to
allow the Court of Appeals to admit and consider newly
discovered evidence that could not have been made part of
the CSRT record because it was unavailable to either the
Government or the detainee when the CSRT made its
findings. This evidence, however, may be critical to the
detainee’s argument that he is not an enemy combatant
and there is no cause to detain him.
This is not a remote hypothetical. One of the petition
ers, Mohamed Nechla, requested at his CSRT hearing that
the Government contact his employer. The petitioner
claimed the employer would corroborate Nechla’s conten
tion he had no affiliation with al Qaeda. Although the
CSRT determined this testimony would be relevant, it also
found the witness was not reasonably available to testify
at the time of the hearing. Petitioner’s counsel, however,
now represents the witness is available to be heard. See
Brief for Boumediene Petitioners 5. If a detainee can
present reasonably available evidence demonstrating
there is no basis for his continued detention, he must have
the opportunity to present this evidence to a habeas cor
pus court. Even under the Court of Appeals’ generous
construction of the DTA, however, the evidence identified
by Nechla would be inadmissible in a DTA review proceed
ing. The role of an Article III court in the exercise of its
habeas corpus function cannot be circumscribed in this
manner.
62 BOUMEDIENE v. BUSH
Opinion of the Court
By foreclosing consideration of evidence not presented or
reasonably available to the detainee at the CSRT proceed
ings, the DTA disadvantages the detainee by limiting the
scope of collateral review to a record that may not be
accurate or complete. In other contexts, e.g., in post-trial
habeas cases where the prisoner already has had a full
and fair opportunity to develop the factual predicate of his
claims, similar limitations on the scope of habeas review
may be appropriate. See Williams v. Taylor, 529 U. S.
420, 436–437 (2000) (noting that §2254 “does not equate
prisoners who exercise diligence in pursuing their claims
with those who do not”). In this context, however, where
the underlying detention proceedings lack the necessary
adversarial character, the detainee cannot be held respon
sible for all deficiencies in the record.
The Government does not make the alternative argu
ment that the DTA allows for the introduction of previ
ously unavailable exculpatory evidence on appeal. It does
point out, however, that if a detainee obtains such evi
dence, he can request that the Deputy Secretary of De
fense convene a new CSRT. See Supp. Brief for Respon
dents 4. Whatever the merits of this procedure, it is an
insufficient replacement for the factual review these de
tainees are entitled to receive through habeas corpus. The
Deputy Secretary’s determination whether to initiate new
proceedings is wholly a discretionary one. See Dept. of
Defense, Office for the Administrative Review of the De
tention of Enemy Combatants, Instruction 5421.1, Proce
dure for Review of “New Evidence” Relating to Enemy
Combatant (EC) Status ¶5(d) (May 7, 2007) (Instruction
5421.1) (“The decision to convene a CSRT to reconsider the
basis of the detainee’s [enemy combatant] status in light of
‘new evidence’ is a matter vested in the unreviewable
discretion of the [Deputy Secretary of Defense]”). And we
see no way to construe the DTA to allow a detainee to
challenge the Deputy Secretary’s decision not to open a
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new CSRT pursuant to Instruction 5421.1. Congress
directed the Secretary of Defense to devise procedures for
considering new evidence, see DTA §1005(a)(3), but the
detainee has no mechanism for ensuring that those proce
dures are followed. DTA §1005(e)(2)(C), 119 Stat. 2742,
makes clear that the Court of Appeals’ jurisdiction is
“limited to consideration of . . . whether the status deter
mination of the Combatant Status Review Tribunal with
regard to such alien was consistent with the standards
and procedures specified by the Secretary of Defense . . .
and . . . whether the use of such standards and procedures
to make the determination is consistent with the Constitu
tion and laws of the United States.” DTA §1005(e)(2)(A),
ibid., further narrows the Court of Appeals’ jurisdiction to
reviewing “any final decision of a Combatant Status Re
view Tribunal that an alien is properly detained as an
enemy combatant.” The Deputy Secretary’s determination
whether to convene a new CSRT is not a “status determi
nation of the Combatant Status Review Tribunal,” much
less a “final decision” of that body.
We do not imply DTA review would be a constitutionally
sufficient replacement for habeas corpus but for these
limitations on the detainee’s ability to present exculpatory
evidence. For even if it were possible, as a textual matter,
to read into the statute each of the necessary procedures
we have identified, we could not overlook the cumulative
effect of our doing so. To hold that the detainees at Guan
tanamo may, under the DTA, challenge the President’s
legal authority to detain them, contest the CSRT’s find
ings of fact, supplement the record on review with excul
patory evidence, and request an order of release would
come close to reinstating the §2241 habeas corpus process
Congress sought to deny them. The language of the stat
ute, read in light of Congress’ reasons for enacting it,
cannot bear this interpretation. Petitioners have met
their burden of establishing that the DTA review process
64 BOUMEDIENE v. BUSH
Opinion of the Court
is, on its face, an inadequate substitute for habeas corpus.
Although we do not hold that an adequate substitute
must duplicate §2241 in all respects, it suffices that the
Government has not established that the detainees’ access
to the statutory review provisions at issue is an adequate
substitute for the writ of habeas corpus. MCA §7 thus
effects an unconstitutional suspension of the writ. In view
of our holding we need not discuss the reach of the writ
with respect to claims of unlawful conditions of treatment
or confinement.
VI
A
In light of our conclusion that there is no jurisdictional
bar to the District Court’s entertaining petitioners’ claims
the question remains whether there are prudential barri
ers to habeas corpus review under these circumstances.
The Government argues petitioners must seek review of
their CSRT determinations in the Court of Appeals before
they can proceed with their habeas corpus actions in the
District Court. As noted earlier, in other contexts and for
prudential reasons this Court has required exhaustion of
alternative remedies before a prisoner can seek federal
habeas relief. Most of these cases were brought by prison
ers in state custody, e.g., Ex parte Royall, 117 U. S. 241,
and thus involved federalism concerns that are not rele
vant here. But we have extended this rule to require
defendants in courts-martial to exhaust their military
appeals before proceeding with a federal habeas corpus
action. See Schlesinger, 420 U. S., at 758.
The real risks, the real threats, of terrorist attacks are
constant and not likely soon to abate. The ways to disrupt
our life and laws are so many and unforeseen that the
Court should not attempt even some general catalogue of
crises that might occur. Certain principles are apparent,
however. Practical considerations and exigent circum
65 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
stances inform the definition and reach of the law’s writs,
including habeas corpus. The cases and our tradition
reflect this precept.
In cases involving foreign citizens detained abroad by
the Executive, it likely would be both an impractical and
unprecedented extension of judicial power to assume that
habeas corpus would be available at the moment the
prisoner is taken into custody. If and when habeas corpus
jurisdiction applies, as it does in these cases, then proper
deference can be accorded to reasonable procedures for
screening and initial detention under lawful and proper
conditions of confinement and treatment for a reasonable
period of time. Domestic exigencies, furthermore, might
also impose such onerous burdens on the Government that
here, too, the Judicial Branch would be required to devise
sensible rules for staying habeas corpus proceedings until
the Government can comply with its requirements in a
responsible way. Cf. Ex parte Milligan, 4 Wall., at 127
(“If, in foreign invasion or civil war, the courts are actually
closed, and it is impossible to administer criminal justice
according to law, then, on the theatre of active military
operations, where war really prevails, there is a necessity
to furnish a substitute for the civil authority, thus over
thrown, to preserve the safety of the army and society; and
as no power is left but the military, it is allowed to govern
by martial rule until the laws can have their free course”).
Here, as is true with detainees apprehended abroad, a
relevant consideration in determining the courts’ role is
whether there are suitable alternative processes in place
to protect against the arbitrary exercise of governmental
power.
The cases before us, however, do not involve detainees
who have been held for a short period of time while await
ing their CSRT determinations. Were that the case, or
were it probable that the Court of Appeals could complete
a prompt review of their applications, the case for requir
66 BOUMEDIENE v. BUSH
Opinion of the Court
ing temporary abstention or exhaustion of alternative
remedies would be much stronger. These qualifications no
longer pertain here. In some of these cases six years have
elapsed without the judicial oversight that habeas corpus
or an adequate substitute demands. And there has been
no showing that the Executive faces such onerous burdens
that it cannot respond to habeas corpus actions. To re
quire these detainees to complete DTA review before
proceeding with their habeas corpus actions would be to
require additional months, if not years, of delay. The first
DTA review applications were filed over a year ago, but no
decisions on the merits have been issued. While some
delay in fashioning new procedures is unavoidable, the
costs of delay can no longer be borne by those who are held
in custody. The detainees in these cases are entitled to a
prompt habeas corpus hearing.
Our decision today holds only that the petitioners before
us are entitled to seek the writ; that the DTA review
procedures are an inadequate substitute for habeas cor
pus; and that the petitioners in these cases need not ex
haust the review procedures in the Court of Appeals before
proceeding with their habeas actions in the District Court.
The only law we identify as unconstitutional is MCA §7,
28 U. S. C. A. §2241(e) (Supp. 2007). Accordingly, both the
DTA and the CSRT process remain intact. Our holding
with regard to exhaustion should not be read to imply that
a habeas court should intervene the moment an enemy
combatant steps foot in a territory where the writ runs.
The Executive is entitled to a reasonable period of time to
determine a detainee’s status before a court entertains
that detainee’s habeas corpus petition. The CSRT process
is the mechanism Congress and the President set up to
deal with these issues. Except in cases of undue delay,
federal courts should refrain from entertaining an enemy
combatant’s habeas corpus petition at least until after the
Department, acting via the CSRT, has had a chance to
67 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
review his status.
B
Although we hold that the DTA is not an adequate and
effective substitute for habeas corpus, it does not follow
that a habeas corpus court may disregard the dangers the
detention in these cases was intended to prevent. Felker,
Swain, and Hayman stand for the proposition that the
Suspension Clause does not resist innovation in the field
of habeas corpus. Certain accommodations can be made to
reduce the burden habeas corpus proceedings will place on
the military without impermissibly diluting the protec
tions of the writ.
In the DTA Congress sought to consolidate review of
petitioners’ claims in the Court of Appeals. Channeling
future cases to one district court would no doubt reduce
administrative burdens on the Government. This is a
legitimate objective that might be advanced even without
an amendment to §2241. If, in a future case, a detainee
files a habeas petition in another judicial district in which
a proper respondent can be served, see Rumsfeld v.
Padilla, 542 U. S. 426, 435–436 (2004), the Government
can move for change of venue to the court that will hear
these petitioners’ cases, the United States District Court
for the District of Columbia. See 28 U. S. C. §1404(a);
Braden v. 30th Judicial Circuit Court of Ky., 410 U. S.
484, 499, n. 15 (1973).
Another of Congress’ reasons for vesting exclusive juris
diction in the Court of Appeals, perhaps, was to avoid the
widespread dissemination of classified information. The
Government has raised similar concerns here and else
where. See Brief for Respondents 55–56; Bismullah Pet.
30. We make no attempt to anticipate all of the eviden
tiary and access-to-counsel issues that will arise during
the course of the detainees’ habeas corpus proceedings.
We recognize, however, that the Government has a legiti
68 BOUMEDIENE v. BUSH
Opinion of the Court
mate interest in protecting sources and methods of intelli
gence gathering; and we expect that the District Court will
use its discretion to accommodate this interest to the
greatest extent possible. Cf. United States v. Reynolds,
345 U. S. 1, 10 (1953) (recognizing an evidentiary privilege
in a civil damages case where “there is a reasonable dan
ger that compulsion of the evidence will expose military
matters which, in the interest of national security, should
not be divulged”).
These and the other remaining questions are within the
expertise and competence of the District Court to address
in the first instance.
* * *
In considering both the procedural and substantive
standards used to impose detention to prevent acts of
terrorism, proper deference must be accorded to the politi
cal branches. See United States v. Curtiss-Wright Export
Corp., 299 U. S. 304, 320 (1936). Unlike the President and
some designated Members of Congress, neither the Mem
bers of this Court nor most federal judges begin the day
with briefings that may describe new and serious threats
to our Nation and its people. The law must accord the
Executive substantial authority to apprehend and detain
those who pose a real danger to our security.
Officials charged with daily operational responsibility
for our security may consider a judicial discourse on the
history of the Habeas Corpus Act of 1679 and like matters
to be far removed from the Nation’s present, urgent con
cerns. Established legal doctrine, however, must be con
sulted for its teaching. Remote in time it may be; irrele
vant to the present it is not. Security depends upon a
sophisticated intelligence apparatus and the ability of our
Armed Forces to act and to interdict. There are further
considerations, however. Security subsists, too, in fidelity
to freedom’s first principles. Chief among these are free
69 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
dom from arbitrary and unlawful restraint and the per
sonal liberty that is secured by adherence to the separa
tion of powers. It is from these principles that the judicial
authority to consider petitions for habeas corpus relief
derives.
Our opinion does not undermine the Executive’s powers
as Commander in Chief. On the contrary, the exercise of
those powers is vindicated, not eroded, when confirmed by
the Judicial Branch. Within the Constitution’s separa
tion-of-powers structure, few exercises of judicial power
are as legitimate or as necessary as the responsibility to
hear challenges to the authority of the Executive to im
prison a person. Some of these petitioners have been in
custody for six years with no definitive judicial determina
tion as to the legality of their detention. Their access to
the writ is a necessity to determine the lawfulness of their
status, even if, in the end, they do not obtain the relief
they seek.
Because our Nation’s past military conflicts have been of
limited duration, it has been possible to leave the outer
boundaries of war powers undefined. If, as some fear,
terrorism continues to pose dangerous threats to us for
years to come, the Court might not have this luxury. This
result is not inevitable, however. The political branches,
consistent with their independent obligations to interpret
and uphold the Constitution, can engage in a genuine
debate about how best to preserve constitutional values
while protecting the Nation from terrorism. Cf. Hamdan,
548 U. S., at 636 (BREYER, J., concurring) (“[J]udicial
insistence upon that consultation does not weaken our
Nation’s ability to deal with danger. To the contrary, that
insistence strengthens the Nation’s ability to determine—
through democratic means—how best to do so”).
It bears repeating that our opinion does not address the
content of the law that governs petitioners’ detention.
That is a matter yet to be determined. We hold that peti
70 BOUMEDIENE v. BUSH
Opinion of the Court
tioners may invoke the fundamental procedural protec
tions of habeas corpus. The laws and Constitution are
designed to survive, and remain in force, in extraordinary
times. Liberty and security can be reconciled; and in our
system they are reconciled within the framework of the
law. The Framers decided that habeas corpus, a right of
first importance, must be a part of that framework, a part
of that law.
The determination by the Court of Appeals that the
Suspension Clause and its protections are inapplicable to
petitioners was in error. The judgment of the Court of
Appeals is reversed. The cases are remanded to the Court
of Appeals with instructions that it remand the cases to
the District Court for proceedings consistent with this
opinion.
It is so ordered.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
SOUTER, J., concurring
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
JUSTICE SOUTER, with whom JUSTICE GINSBURG and
JUSTICE BREYER join, concurring.
I join the Court’s opinion in its entirety and add this
afterword only to emphasize two things one might over-
look after reading the dissents.
Four years ago, this Court in Rasul v. Bush, 542 U. S.
466 (2004) held that statutory habeas jurisdiction ex-
tended to claims of foreign nationals imprisoned by the
United States at Guantanamo Bay, “to determine the
legality of the Executive’s potentially indefinite detention”
of them, id., at 485. Subsequent legislation eliminated the
statutory habeas jurisdiction over these claims, so that
now there must be constitutionally based jurisdiction or
none at all. JUSTICE SCALIA is thus correct that here, for
the first time, this Court holds there is (he says “confers”)
constitutional habeas jurisdiction over aliens imprisoned
2 BOUMEDIENE v. BUSH
SOUTER, J., concurring
by the military outside an area of de jure national sover-
eignty, see post, at 1 (dissenting opinion). But no one who
reads the Court’s opinion in Rasul could seriously doubt
that the jurisdictional question must be answered the
same way in purely constitutional cases, given the Court’s
reliance on the historical background of habeas generally
in answering the statutory question. See, e.g., 542 U. S.,
at 473, 481–483, and nn. 11–14. Indeed, the Court in
Rasul directly answered the very historical question that
JUSTICE SCALIA says is dispositive, see post, at 18; it wrote
that “[a]pplication of the habeas statute to persons de-
tained at [Guantanamo] is consistent with the historical
reach of the writ of habeas corpus,” 542 U. S., at 481.
JUSTICE SCALIA dismisses the statement as dictum, see
post, at 21, but if dictum it was, it was dictum well consid-
ered, and it stated the view of five Members of this Court
on the historical scope of the writ. Of course, it takes more
than a quotation from Rasul, however much on point, to
resolve the constitutional issue before us here, which the
majority opinion has explored afresh in the detail it de-
serves. But whether one agrees or disagrees with today’s
decision, it is no bolt out of the blue.
A second fact insufficiently appreciated by the dissents
is the length of the disputed imprisonments, some of the
prisoners represented here today having been locked up
for six years, ante, at 66 (opinion of the Court). Hence the
hollow ring when the dissenters suggest that the Court is
somehow precipitating the judiciary into reviewing claims
that the military (subject to appeal to the Court of Appeals
for the District of Columbia Circuit) could handle within
some reasonable period of time. See, e.g., post, at 3 (opin-
ion of ROBERTS, C. J.) (“[T]he Court should have declined
to intervene until the D. C. Circuit had assessed the na-
ture and validity of the congressionally mandated proceed-
ings in a given detainee’s case”); post, at 6 (“[I]t is not
necessary to consider the availability of the writ until the
3 Cite as: 553 U. S. ____ (2008)
SOUTER, J., concurring
statutory remedies have been shown to be inadequate”);
post, at 8 (“[The Court] rushes to decide the fundamental
question of the reach of habeas corpus when the function-
ing of the DTA may make that decision entirely unneces-
sary”). These suggestions of judicial haste are all the more
out of place given the Court’s realistic acknowledgment
that in periods of exigency the tempo of any habeas review
must reflect the immediate peril facing the country. See
ante, at 64–65.
It is in fact the very lapse of four years from the time
Rasul put everyone on notice that habeas process was
available to Guantanamo prisoners, and the lapse of six
years since some of these prisoners were captured and
incarcerated, that stand at odds with the repeated sugges-
tions of the dissenters that these cases should be seen as a
judicial victory in a contest for power between the Court
and the political branches. See post, at 2, 3, 28 (ROBERTS,
C. J., dissenting); post, at 5, 6, 17, 18, 25 (SCALIA, J., dis-
senting). The several answers to the charge of triumphal-
ism might start with a basic fact of Anglo-American con-
stitutional history: that the power, first of the Crown and
now of the Executive Branch of the United States, is nec-
essarily limited by habeas corpus jurisdiction to enquire
into the legality of executive detention. And one could
explain that in this Court’s exercise of responsibility to
preserve habeas corpus something much more significant
is involved than pulling and hauling between the judicial
and political branches. Instead, though, it is enough to
repeat that some of these petitioners have spent six years
behind bars. After six years of sustained executive deten-
tions in Guantanamo, subject to habeas jurisdiction but
without any actual habeas scrutiny, today’s decision is no
judicial victory, but an act of perseverance in trying to
make habeas review, and the obligation of the courts to
provide it, mean something of value both to prisoners and
to the Nation. See ante, at 69.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA,
JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
Today the Court strikes down as inadequate the most
generous set of procedural protections ever afforded aliens
detained by this country as enemy combatants. The po
litical branches crafted these procedures amidst an ongo
ing military conflict, after much careful investigation and
thorough debate. The Court rejects them today out of
hand, without bothering to say what due process rights
the detainees possess, without explaining how the statute
fails to vindicate those rights, and before a single peti
tioner has even attempted to avail himself of the law’s
operation. And to what effect? The majority merely re
places a review system designed by the people’s represen
tatives with a set of shapeless procedures to be defined by
federal courts at some future date. One cannot help but
2 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
think, after surveying the modest practical results of the
majority’s ambitious opinion, that this decision is not
really about the detainees at all, but about control of
federal policy regarding enemy combatants.
The majority is adamant that the Guantanamo detain
ees are entitled to the protections of habeas corpus—its
opinion begins by deciding that question. I regard the
issue as a difficult one, primarily because of the unique
and unusual jurisdictional status of Guantanamo Bay. I
nonetheless agree with JUSTICE SCALIA’s analysis of our
precedents and the pertinent history of the writ, and
accordingly join his dissent. The important point for me,
however, is that the Court should have resolved these
cases on other grounds. Habeas is most fundamentally a
procedural right, a mechanism for contesting the legality
of executive detention. The critical threshold question in
these cases, prior to any inquiry about the writ’s scope, is
whether the system the political branches designed pro
tects whatever rights the detainees may possess. If so,
there is no need for any additional process, whether called
“habeas” or something else.
Congress entrusted that threshold question in the first
instance to the Court of Appeals for the District of Colum
bia Circuit, as the Constitution surely allows Congress to do.
See Detainee Treatment Act of 2005 (DTA), §1005(e)(2)(A),
119 Stat. 2742. But before the D. C. Circuit has addressed
the issue, the Court cashiers the statute, and without
answering this critical threshold question itself. The
Court does eventually get around to asking whether re
view under the DTA is, as the Court frames it, an “ade
quate substitute” for habeas, ante, at 42, but even then its
opinion fails to determine what rights the detainees pos
sess and whether the DTA system satisfies them. The
majority instead compares the undefined DTA process to
an equally undefined habeas right—one that is to be given
shape only in the future by district courts on a case-by
3 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
case basis. This whole approach is misguided.
It is also fruitless. How the detainees’ claims will be
decided now that the DTA is gone is anybody’s guess. But
the habeas process the Court mandates will most likely
end up looking a lot like the DTA system it replaces, as
the district court judges shaping it will have to reconcile
review of the prisoners’ detention with the undoubted
need to protect the American people from the terrorist
threat—precisely the challenge Congress undertook in
drafting the DTA. All that today’s opinion has done is
shift responsibility for those sensitive foreign policy and
national security decisions from the elected branches to
the Federal Judiciary.
I believe the system the political branches constructed
adequately protects any constitutional rights aliens cap
tured abroad and detained as enemy combatants may
enjoy. I therefore would dismiss these cases on that
ground. With all respect for the contrary views of the
majority, I must dissent.
I
The Court’s opinion makes plain that certiorari to re
view these cases should never have been granted. As two
Members of today’s majority once recognized, “traditional
rules governing our decision of constitutional questions
and our practice of requiring the exhaustion of available
remedies . . . make it appropriate to deny these petitions.”
Boumediene v. Bush, 549 U. S. ___ (2007) (slip op., at 1)
(citation omitted) (statement of STEVENS and KENNEDY,
JJ., respecting denial of certiorari). Just so. Given the
posture in which these cases came to us, the Court should
have declined to intervene until the D. C. Circuit had
assessed the nature and validity of the congressionally
mandated proceedings in a given detainee’s case.
The political branches created a two-part, collateral
review procedure for testing the legality of the prisoners’
4 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
detention: It begins with a hearing before a Combatant
Status Review Tribunal (CSRT) followed by review in the
D. C. Circuit. As part of that review, Congress authorized
the D. C. Circuit to decide whether the CSRT proceedings
are consistent with “the Constitution and laws of the
United States.” DTA §1005(e)(2)(C), 119 Stat. 2742. No
petitioner, however, has invoked the D. C. Circuit review
the statute specifies. See 476 F. 3d 981, 994, and n. 16
(CADC 2007); Brief for Federal Respondents 41–43. As a
consequence, that court has had no occasion to decide
whether the CSRT hearings, followed by review in the
Court of Appeals, vindicate whatever constitutional and
statutory rights petitioners may possess. See 476 F. 3d, at
994, and n. 16.
Remarkably, this Court does not require petitioners to
exhaust their remedies under the statute; it does not wait
to see whether those remedies will prove sufficient to
protect petitioners’ rights. Instead, it not only denies the
D. C. Circuit the opportunity to assess the statute’s reme
dies, it refuses to do so itself: the majority expressly de
clines to decide whether the CSRT procedures, coupled
with Article III review, satisfy due process. See ante, at
54.
It is grossly premature to pronounce on the detainees’
right to habeas without first assessing whether the reme
dies the DTA system provides vindicate whatever rights
petitioners may claim. The plurality in Hamdi v. Rums-
feld, 542 U. S. 507, 533 (2004), explained that the Consti
tution guaranteed an American citizen challenging his
detention as an enemy combatant the right to “notice of
the factual basis for his classification, and a fair opportu
nity to rebut the Government’s factual assertions before a
neutral decisionmaker.” The plurality specifically stated
that constitutionally adequate collateral process could be
provided “by an appropriately authorized and properly
constituted military tribunal,” given the “uncommon
5 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
potential to burden the Executive at a time of ongoing
military conflict.” Id., at 533, 538. This point is directly
pertinent here, for surely the Due Process Clause does not
afford non-citizens in such circumstances greater protec
tion than citizens are due.
If the CSRT procedures meet the minimal due process
requirements outlined in Hamdi, and if an Article III
court is available to ensure that these procedures are
followed in future cases, see id., at 536; INS v. St. Cyr, 533
U. S. 289, 304 (2001); Heikkila v. Barber, 345 U. S. 229,
236 (1953), there is no need to reach the Suspension
Clause question. Detainees will have received all the
process the Constitution could possibly require, whether
that process is called “habeas” or something else. The
question of the writ’s reach need not be addressed.
This is why the Court should have required petitioners
to exhaust their remedies under the statute. As we ex
plained in Gusik v. Schilder, 340 U. S. 128, 132 (1950), “If
an available procedure has not been employed to rectify
the alleged error” petitioners complain of, “any interfer
ence by [a] federal court may be wholly needless. The
procedure established to police the errors of the tribunal
whose judgment is challenged may be adequate for the
occasion.” Because the majority refuses to assess whether
the CSRTs comport with the Constitution, it ends up
razing a system of collateral review that it admits may in
fact satisfy the Due Process Clause and be “structurally
sound.” Ante, at 56. But if the collateral review proce
dures Congress has provided—CSRT review coupled with
Article III scrutiny—are sound, interference by a federal
habeas court may be entirely unnecessary.
The only way to know is to require petitioners to use the
alternative procedures Congress designed. Mandating
that the petitioners exhaust their statutory remedies “is in
no sense a suspension of the writ of habeas corpus. It is
merely a deferment of resort to the writ until other correc
6 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
tive procedures are shown to be futile.” Gusik, supra, at
132. So too here, it is not necessary to consider the avail
ability of the writ until the statutory remedies have been
shown to be inadequate to protect the detainees’ rights.
Cf. 28 U. S. C. §2254(b)(1)(A) (“An application for a writ of
habeas corpus . . . shall not be granted unless it appears
that . . . the applicant has exhausted the remedies avail
able in the courts of the State”). Respect for the judg
ments of Congress—whose Members take the same oath
we do to uphold the Constitution—requires no less.
In the absence of any assessment of the DTA’s remedies,
the question whether detainees are entitled to habeas is
an entirely speculative one. Our precedents have long
counseled us to avoid deciding such hypothetical questions
of constitutional law. See Spector Motor Service, Inc. v.
McLaughlin, 323 U. S. 101, 105 (1944) (“If there is one
doctrine more deeply rooted than any other in the process
of constitutional adjudication, it is that we ought not to
pass on questions of constitutionality . . . unless such
[questions are] unavoidable”); see also Ashwander v. TVA,
297 U. S. 288, 347 (1936) (Brandeis, J., concurring) (Con
stitutional questions should not be decided unless “ ‘abso
lutely necessary to a decision of the case’” (quoting Burton
v. United States, 196 U. S. 283, 295 (1905))). This is a
“fundamental rule of judicial restraint.” Three Affiliated
Tribes of Fort Berthold Reservation v. Wold Engineering,
P. C., 467 U. S. 138, 157 (1984).
The Court acknowledges that “the ordinary course”
would be not to decide the constitutionality of the DTA at
this stage, but abandons that “ordinary course” in light of
the “gravity” of the constitutional issues presented and the
prospect of additional delay. Ante, at 43. It is, however,
precisely when the issues presented are grave that adher
ence to the ordinary course is most important. A principle
applied only when unimportant is not much of a principle
at all, and charges of judicial activism are most effectively
7 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
rebutted when courts can fairly argue they are following
normal practices.
The Court is also concerned that requiring petitioners to
pursue “DTA review before proceeding with their habeas
corpus actions” could involve additional delay. Ante, at 66.
The nature of the habeas remedy the Court instructs
lower courts to craft on remand, however, is far more
unsettled than the process Congress provided in the DTA.
See ante, at 69 (“[O]ur opinion does not address the con
tent of the law that governs petitioners’ detention. That is
a matter yet to be determined”). There is no reason to
suppose that review according to procedures the Federal
Judiciary will design, case by case, will proceed any faster
than the DTA process petitioners disdained.
On the contrary, the system the Court has launched
(and directs lower courts to elaborate) promises to take
longer. The Court assures us that before bringing their
habeas petitions, detainees must usually complete the
CSRT process. See ante, at 66. Then they may seek re
view in federal district court. Either success or failure
there will surely result in an appeal to the D. C. Circuit—
exactly where judicial review starts under Congress’s
system. The effect of the Court’s decision is to add addi
tional layers of quite possibly redundant review. And
because nobody knows how these new layers of “habeas”
review will operate, or what new procedures they will
require, their contours will undoubtedly be subject to fresh
bouts of litigation. If the majority were truly concerned
about delay, it would have required petitioners to use the
DTA process that has been available to them for 21⁄2 years,
with its Article III review in the D. C. Circuit. That sys
tem might well have provided petitioners all the relief to
which they are entitled long before the Court’s newly
installed habeas review could hope to do so.1
——————
1
In light of the foregoing, the concurrence is wrong to suggest that I
8 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
The Court’s refusal to require petitioners to exhaust the
remedies provided by Congress violates the “traditional
rules governing our decision of constitutional questions.”
Boumediene, 549 U. S., at ___ (slip op., at 1) (statement of
STEVENS and KENNEDY, JJ., respecting denial of certio
rari). The Court’s disrespect for these rules makes its
decision an awkward business. It rushes to decide the
fundamental question of the reach of habeas corpus when
the functioning of the DTA may make that decision entirely
unnecessary, and it does so with scant idea of how DTA
judicial review will actually operate.
II
The majority’s overreaching is particularly egregious
given the weakness of its objections to the DTA. Simply
put, the Court’s opinion fails on its own terms. The major
ity strikes down the statute because it is not an “adequate
substitute” for habeas review, ante, at 42, but fails to show
what rights the detainees have that cannot be vindicated
by the DTA system.
Because the central purpose of habeas corpus is to test
the legality of executive detention, the writ requires most
fundamentally an Article III court able to hear the pris
——————
“insufficiently appreciat[e]” the issue of delay in these cases. See ante,
at 2 (opinion of SOUTER, J.). This Court issued its decisions in Rasul v.
Bush, 542 U. S. 466, and Hamdi v. Rumsfeld 542 U. S. 507, in 2004.
The concurrence makes it sound as if the political branches have done
nothing in the interim. In fact, Congress responded 18 months later by
enacting the DTA. Congress cannot be faulted for taking that time to
consider how best to accommodate both the detainees’ interests and the
need to keep the American people safe. Since the DTA became law,
petitioners have steadfastly refused to avail themselves of the statute’s
review mechanisms. It is unfair to complain that the DTA system
involves too much delay when petitioners have consistently refused to
use it, preferring to litigate instead. Today’s decision obligating district
courts to craft new procedures to replace those in the DTA will only
prolong the process—and delay relief.
9 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
oner’s claims and, when necessary, order release. See
Brown v. Allen, 344 U. S. 443, 533 (1953) (Jackson, J.,
concurring in result). Beyond that, the process a given
prisoner is entitled to receive depends on the circum
stances and the rights of the prisoner. See Mathews v.
Eldridge, 424 U. S. 319, 335 (1976). After much hemming
and hawing, the majority appears to concede that the DTA
provides an Article III court competent to order release.
See ante, at 61. The only issue in dispute is the process
the Guantanamo prisoners are entitled to use to test the
legality of their detention. Hamdi concluded that Ameri
can citizens detained as enemy combatants are entitled to
only limited process, and that much of that process could
be supplied by a military tribunal, with review to follow in
an Article III court. That is precisely the system we have
here. It is adequate to vindicate whatever due process
rights petitioners may have.
A
The Court reaches the opposite conclusion partly be
cause it misreads the statute. The majority appears not to
understand how the review system it invalidates actually
works—specifically, how CSRT review and review by the
D. C. Circuit fit together. After briefly acknowledging in
its recitation of the facts that the Government designed
the CSRTs “to comply with the due process requirements
identified by the plurality in Hamdi,” ante, at 3, the Court
proceeds to dismiss the tribunal proceedings as no more
than a suspect method used by the Executive for deter
mining the status of the detainees in the first instance, see
ante, at 43. This leads the Court to treat the review the
DTA provides in the D. C. Circuit as the only opportunity
detainees have to challenge their status determination.
See ante, at 49.
The Court attempts to explain its glancing treatment of
the CSRTs by arguing that “[w]hether one characterizes
10 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
the CSRT process as direct review of the Executive’s bat
tlefield determination . . . or as the first step in the collat
eral review of a battlefield determination makes no differ
ence.” Ante, at 54. First of all, the majority is quite wrong
to dismiss the Executive’s determination of detainee
status as no more than a “battlefield” judgment, as if it
were somehow provisional and made in great haste. In
fact, detainees are designated “enemy combatants” only
after “multiple levels of review by military officers and
officials of the Department of Defense.” Memorandum of
the Secretary of the Navy, Implementation of Combatant
Status Review Tribunal Procedures for Enemy Combat
ants Detained at Guantanamo Bay Naval Base (July 29,
2004), App. J to Pet. for Cert. in No. 06–1196, p. 150 (here
inafter Implementation Memo).
The majority is equally wrong to characterize the
CSRTs as part of that initial determination process. They
are instead a means for detainees to challenge the Gov
ernment’s determination. The Executive designed the
CSRTs to mirror Army Regulation 190–8, see Brief for
Federal Respondents 48, the very procedural model the
plurality in Hamdi said provided the type of process an
enemy combatant could expect from a habeas court, see
542 U. S., at 538 (plurality opinion). The CSRTs operate
much as habeas courts would if hearing the detainee’s
collateral challenge for the first time: They gather evi
dence, call witnesses, take testimony, and render a deci
sion on the legality of the Government’s detention. See
Implementation Memo, App. J to Pet. for Cert. in No. 06–
1196, at 153–162. If the CSRT finds a particular detainee
has been improperly held, it can order release. See id., at
164.
The majority insists that even if “the CSRTs satisf[ied]
due process standards,” full habeas review would still be
necessary, because habeas is a collateral remedy available
even to prisoners “detained pursuant to the most rigorous
11 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
proceedings imaginable.” Ante, at 55, 56. This comment
makes sense only if the CSRTs are incorrectly viewed as a
method used by the Executive for determining the prison
ers’ status, and not as themselves part of the collateral
review to test the validity of that determination. See
Gusik, 340 U. S., at 132. The majority can deprecate the
importance of the CSRTs only by treating them as some
thing they are not.
The use of a military tribunal such as the CSRTs to
review the aliens’ detention should be familiar to this
Court in light of the Hamdi plurality, which said that the
due process rights enjoyed by American citizens detained
as enemy combatants could be vindicated “by an appropri
ately authorized and properly constituted military tribu
nal.” 542 U. S., at 538. The DTA represents Congress’
considered attempt to provide the accused alien combat
ants detained at Guantanamo a constitutionally adequate
opportunity to contest their detentions before just such a
tribunal.
But Congress went further in the DTA. CSRT review is
just the first tier of collateral review in the DTA system.
The statute provides additional review in an Article III
court. Given the rationale of today’s decision, it is well
worth recalling exactly what the DTA provides in this
respect. The statute directs the D. C. Circuit to consider
whether a particular alien’s status determination “was
consistent with the standards and procedures specified by
the Secretary of Defense” and “whether the use of such
standards and procedures to make the determination is
consistent with the Constitution and laws of the United
States.” DTA §1005(e)(2)(C), 119 Stat. 2742. That is, a
court determines whether the CSRT procedures are consti
tutional, and a court determines whether those procedures
were followed in a particular case.
In short, the Hamdi plurality concluded that this type of
review would be enough to satisfy due process, even for
12 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
citizens. See 542 U. S., at 538. Congress followed the
Court’s lead, only to find itself the victim of a constitu
tional bait and switch.
Hamdi merits scant attention from the Court—a re
markable omission, as Hamdi bears directly on the issues
before us. The majority attempts to dismiss Hamdi’s
relevance by arguing that because the availability of
§2241 federal habeas was never in doubt in that case, “the
Court had no occasion to define the necessary scope of
habeas review . . . in the context of enemy combatant
detentions.” Ante, at 55. Hardly. Hamdi was all about
the scope of habeas review in the context of enemy com
batant detentions. The petitioner, an American citizen
held within the United States as an enemy combatant,
invoked the writ to challenge his detention. 542 U. S., at
510–511. After “a careful examination both of the writ . . .
and of the Due Process Clause,” this Court enunciated the
“basic process” the Constitution entitled Hamdi to expect
from a habeas court under §2241. Id., at 525, 534. That
process consisted of the right to “receive notice of the
factual basis for his classification, and a fair opportunity
to rebut the Government’s factual assertions before a
neutral decisionmaker.” Id., at 533. In light of the Gov
ernment’s national security responsibilities, the plurality
found the process could be “tailored to alleviate [the]
uncommon potential to burden the Executive at a time of
ongoing military conflict.” Ibid. For example, the Gov
ernment could rely on hearsay and could claim a presump
tion in favor of its own evidence. See id., at 533–534.
Hamdi further suggested that this “basic process” on
collateral review could be provided by a military tribunal.
It pointed to prisoner-of-war tribunals as a model that
would satisfy the Constitution’s requirements. See id., at
538. Only “[i]n the absence of such process” before a mili
tary tribunal, the Court held, would Article III courts need
to conduct full-dress habeas proceedings to “ensure that
13 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
the minimum requirements of due process are achieved.”
Ibid. (emphasis added). And even then, the petitioner
would be entitled to no more process than he would have
received from a properly constituted military review panel,
given his limited due process rights and the Government’s
weighty interests. See id., at 533–534, 538.
Contrary to the majority, Hamdi is of pressing relevance
because it establishes the procedures American citizens
detained as enemy combatants can expect from a habeas
court proceeding under §2241. The DTA system of military
tribunal hearings followed by Article III review looks a lot
like the procedure Hamdi blessed. If nothing else, it is
plain from the design of the DTA that Congress, the
President, and this Nation’s military leaders have made a
good-faith effort to follow our precedent.
The Court, however, will not take “yes” for an answer.
The majority contends that “[i]f Congress had envisioned
DTA review as coextensive with traditional habeas corpus,”
it would have granted the D. C. Circuit far broader review
authority. Ante, at 48. Maybe so, but that comment reveals
the majority’s misunderstanding. “[T]raditional habeas
corpus” takes no account of what Hamdi recognized as the
“uncommon potential to burden the Executive at a time of
ongoing military conflict.” 542 U. S., at 533. Besides, Con
gress and the Executive did not envision “DTA review”—
by which I assume the Court means D. C. Circuit review,
see ante, at 48—as the detainees’ only opportunity to
challenge their detentions. Instead, the political branches
crafted CSRT and D. C. Circuit review to operate together,
with the goal of providing noncitizen detainees the level of
collateral process Hamdi said would satisfy the due proc
ess rights of American citizens. See Brief for Federal
Respondents 48–53.
B
Given the statutory scheme the political branches
14 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
adopted, and given Hamdi, it simply will not do for the
majority to dismiss the CSRT procedures as “far more
limited” than those used in military trials, and therefore
beneath the level of process “that would eliminate the
need for habeas corpus review.” Ante, at 37. The question
is not how much process the CSRTs provide in comparison
to other modes of adjudication. The question is whether
the CSRT procedures—coupled with the judicial review
specified by the DTA—provide the “basic process” Hamdi
said the Constitution affords American citizens detained
as enemy combatants. See 542 U. S., at 534.
By virtue of its refusal to allow the D. C. Circuit to
assess petitioners’ statutory remedies, and by virtue of its
own refusal to consider, at the outset, the fit between
those remedies and due process, the majority now finds
itself in the position of evaluating whether the DTA sys
tem is an adequate substitute for habeas review without
knowing what rights either habeas or the DTA is supposed
to protect. The majority attempts to elide this problem by
holding that petitioners have a right to habeas corpus and
then comparing the DTA against the “historic office” of the
writ. Ante, at 47. But habeas is, as the majority acknowl
edges, a flexible remedy rather than a substantive right.
Its “precise application . . . change[s] depending upon the
circumstances.” Ante, at 50. The shape of habeas review
ultimately depends on the nature of the rights a petitioner
may assert. See, e.g., Reid v. Covert, 354 U. S. 1, 75 (1957)
(Harlan, J., concurring in result) (“[T]he question of which
specific safeguards of the Constitution are appropriately to
be applied in a particular context . . . can be reduced to the
issue of what process is ‘due’ a defendant in the particular
circumstances of a particular case”).
The scope of federal habeas review is traditionally more
limited in some contexts than in others, depending on the
status of the detainee and the rights he may assert. See
St. Cyr, 533 U. S., at 306 (“In [immigration cases], other
15 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
than the question whether there was some evidence to
support the [deportation] order, the courts generally did
not review factual determinations made by the Executive”
(footnote omitted)); Burns v. Wilson, 346 U. S. 137, 139
(1953) (plurality opinion) (“[I]n military habeas corpus the
inquiry, the scope of matters open for review, has always
been more narrow than in civil cases”); In re Yamashita,
327 U. S. 1, 8 (1946) (“The courts may inquire whether the
detention complained of is within the authority of those
detaining the petitioner. If the military tribunals have
lawful authority to hear, decide and condemn, their action
is not subject to judicial review”); Ex parte Quirin, 317 U. S.
1, 25 (1942) (federal habeas review of military commission
verdict limited to determining commission’s jurisdiction).
Declaring that petitioners have a right to habeas in no
way excuses the Court from explaining why the DTA does
not protect whatever due process or statutory rights peti
tioners may have. Because if the DTA provides a means
for vindicating petitioners’ rights, it is necessarily an
adequate substitute for habeas corpus. See Swain v.
Pressley, 430 U. S. 372, 381 (1977); United States v. Hay-
man, 342 U. S. 205, 223 (1952).
For my part, I will assume that any due process rights
petitioners may possess are no greater than those of
American citizens detained as enemy combatants. It is
worth noting again that the Hamdi controlling opinion
said the Constitution guarantees citizen detainees only
“basic” procedural rights, and that the process for securing
those rights can “be tailored to alleviate [the] uncommon
potential to burden the Executive at a time of ongoing
military conflict.” 542 U. S., at 533. The majority, how
ever, objects that “the procedural protections afforded to
the detainees in the CSRT hearings are . . . limited.” Ante,
at 37. But the evidentiary and other limitations the Court
complains of reflect the nature of the issue in contest,
namely, the status of aliens captured by our Armed Forces
16 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
abroad and alleged to be enemy combatants. Contrary to
the repeated suggestions of the majority, DTA review need
not parallel the habeas privileges enjoyed by noncombat
ant American citizens, as set out in 28 U. S. C. §2241
(2000 ed. and Supp V). Cf. ante, at 46–47. It need only
provide process adequate for noncitizens detained as
alleged combatants.
To what basic process are these detainees due as habeas
petitioners? We have said that “at the absolute mini
mum,” the Suspension Clause protects the writ “‘as it
existed in 1789.’” St. Cyr, supra, at 301 (quoting Felker v.
Turpin, 518 U. S. 651, 663–664 (1996)). The majority
admits that a number of historical authorities suggest
that at the time of the Constitution’s ratification, “com
mon-law courts abstained altogether from matters involv
ing prisoners of war.” Ante, at 17. If this is accurate, the
process provided prisoners under the DTA is plainly more
than sufficient—it allows alleged combatants to challenge
both the factual and legal bases of their detentions.
Assuming the constitutional baseline is more robust, the
DTA still provides adequate process, and by the majority’s
own standards. Today’s Court opines that the Suspension
Clause guarantees prisoners such as the detainees “a
meaningful opportunity to demonstrate that [they are]
being held pursuant to the erroneous application or inter
pretation of relevant law.” Ante, at 50 (internal quotation
marks omitted). Further, the Court holds that to be an
adequate substitute, any tribunal reviewing the detainees’
cases “must have the power to order the conditional re
lease of an individual unlawfully detained.” Ibid. The
DTA system—CSRT review of the Executive’s determina
tion followed by D. C. Circuit review for sufficiency of the
evidence and the constitutionality of the CSRT process—
meets these criteria.
17 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
C
At the CSRT stage, every petitioner has the right to
present evidence that he has been wrongfully detained.
This includes the right to call witnesses who are reasona
bly available, question witnesses called by the tribunal,
introduce documentary evidence, and testify before the
tribunal. See Implementation Memo, App. J to Pet. for
Cert. in No. 06–1196, at 154–156, 158–159, 161.
While the Court concedes detainees may confront all
witnesses called before the tribunal, it suggests this right
is “more theoretical than real” because “there are in effect
no limits on the admission of hearsay evidence.” Ante, at
55. The Court further complains that petitioners lack “the
assistance of counsel,” and—given the limits on their
access to classified information—“may not be aware of the
most critical allegations” against them. Ante, at 54. None
of these complaints is persuasive.
Detainees not only have the opportunity to confront any
witness who appears before the tribunal, they may call
witnesses of their own. The Implementation Memo re
quires only that detainees’ witnesses be “reasonably avail
able,” App. J to Pet. for Cert. in No. 06–1196, at 155, a
requirement drawn from Army Regulation 190–8, ch. 1,
§1–6(e)(6), and entirely consistent with the Government’s
interest in avoiding “a futile search for evidence” that
might burden warmaking responsibilities, Hamdi, supra,
at 532. The dangerous mission assigned to our forces
abroad is to fight terrorists, not serve subpoenas. The
Court is correct that some forms of hearsay evidence are
admissible before the CSRT, but Hamdi expressly ap
proved this use of hearsay by habeas courts. 542 U. S.,
at 533–534 (“Hearsay, for example, may need to be ac
cepted as the most reliable available evidence from the
Government”).
As to classified information, while detainees are not
permitted access to it themselves, the Implementation
18 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
Memo provides each detainee with a “Personal Represen
tative” who may review classified documents at the CSRT
stage and summarize them for the detainee. Implementa
tion Memo, supra, at 152, 154–155, 156; Brief for Federal
Respondents 54–55. The prisoner’s counsel enjoys the
same privilege on appeal before the D. C. Circuit. That is
more access to classified material for alleged alien enemy
combatants than ever before provided. I am not aware of
a single instance—and certainly the majority cites none—
in which detainees such as petitioners have been provided
access to classified material in any form. Indeed, prison
ers of war who challenge their status determinations
under the Geneva Convention are afforded no such access,
see Army Regulation 190–8, ch. 1, §§1–6(e)(3) and (5), and
the prisoner-of-war model is the one Hamdi cited as con
sistent with the demands of due process for citizens, see
542 U. S., at 538.
What alternative does the Court propose? Allow free
access to classified information and ignore the risk the
prisoner may eventually convey what he learns to parties
hostile to this country, with deadly consequences for those
who helped apprehend the detainee? If the Court can
design a better system for communicating to detainees the
substance of any classified information relevant to their
cases, without fatally compromising national security
interests and sources, the majority should come forward
with it. Instead, the majority fobs that vexing question off
on district courts to answer down the road.
Prisoners of war are not permitted access to classified
information, and neither are they permitted access to
counsel, another supposed failing of the CSRT process.
And yet the Guantanamo detainees are hardly denied all
legal assistance. They are provided a “Personal Represen
tative” who, as previously noted, may access classified
information, help the detainee arrange for witnesses,
assist the detainee’s preparation of his case, and even aid
19 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
the detainee in presenting his evidence to the tribunal.
See Implementation Memo, supra, at 161. The provision
for a personal representative on this order is one of several
ways in which the CSRT procedures are more generous
than those provided prisoners of war under Army Regula
tion 190–8.
Keep in mind that all this is just at the CSRT stage.
Detainees receive additional process before the D. C.
Circuit, including full access to appellate counsel and the
right to challenge the factual and legal bases of their
detentions. DTA §1005(e)(2)(C) empowers the Court of
Appeals to determine not only whether the CSRT observed
the “procedures specified by the Secretary of Defense,” but
also “whether the use of such standards and procedures
. . . is consistent with the Constitution and laws of the
United States.” 119 Stat. 2742. These provisions permit
detainees to dispute the sufficiency of the evidence against
them. They allow detainees to challenge a CSRT panel’s
interpretation of any relevant law, and even the constitu
tionality of the CSRT proceedings themselves. This in
cludes, as the Solicitor General acknowledges, the ability
to dispute the Government’s right to detain alleged com
batants in the first place, and to dispute the Government’s
definition of “enemy combatant.” Brief for Federal Re
spondents 59. All this before an Article III court—plainly
a neutral decisionmaker.
All told, the DTA provides the prisoners held at Guan
tanamo Bay adequate opportunity to contest the bases of
their detentions, which is all habeas corpus need allow.
The DTA provides more opportunity and more process, in
fact, than that afforded prisoners of war or any other
alleged enemy combatants in history.
D
Despite these guarantees, the Court finds the DTA
system an inadequate habeas substitute, for one central
20 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
reason: Detainees are unable to introduce at the appeal
stage exculpatory evidence discovered after the conclusion
of their CSRT proceedings. See ante, at 58. The Court
hints darkly that the DTA may suffer from other infirmi
ties, see ante, at 63 (“We do not imply DTA review would
be a constitutionally sufficient replacement for habeas
corpus but for these limitations on the detainee’s ability to
present exculpatory evidence”), but it does not bother to
name them, making a response a bit difficult. As it
stands, I can only assume the Court regards the supposed
defect it did identify as the gravest of the lot.
If this is the most the Court can muster, the ice beneath
its feet is thin indeed. As noted, the CSRT procedures
provide ample opportunity for detainees to introduce
exculpatory evidence—whether documentary in nature or
from live witnesses—before the military tribunals. See
infra, at 21–23; Implementation Memo, App. J to Pet. for
Cert. in No. 06–196, at 155–156. And if their ability to
introduce such evidence is denied contrary to the Consti
tution or laws of the United States, the D. C. Circuit has
the authority to say so on review.
Nevertheless, the Court asks us to imagine an instance
in which evidence is discovered after the CSRT panel
renders its decision, but before the Court of Appeals re
views the detainee’s case. This scenario, which of course
has not yet come to pass as no review in the D. C. Circuit
has occurred, provides no basis for rejecting the DTA as a
habeas substitute. While the majority is correct that the
DTA does not contemplate the introduction of “newly
discovered” evidence before the Court of Appeals, petition
ers and the Solicitor General agree that the DTA does
permit the D. C. Circuit to remand a detainee’s case for a
new CSRT determination. Brief for Petitioner Boumedi
ene et al. in No. 06–1195, at 30; Brief for Federal Respon
dents 60–61. In the event a detainee alleges that he has
obtained new and persuasive exculpatory evidence that
21 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
would have been considered by the tribunal below had it
only been available, the D. C. Circuit could readily remand
the case to the tribunal to allow that body to consider the
evidence in the first instance. The Court of Appeals could
later review any new or reinstated decision in light of the
supplemented record.
If that sort of procedure sounds familiar, it should.
Federal appellate courts reviewing factual determinations
follow just such a procedure in a variety of circumstances.
See, e.g., United States v. White, 492 F. 3d 380, 413 (CA6
2007) (remanding new-evidence claim to the district court
for a Brady evidentiary hearing); Avila v. Roe, 298 F. 3d
750, 754 (CA9 2002) (remanding habeas claim to the
district court for evidentiary hearing to clarify factual
record); United States v. Leone, 215 F. 3d 253, 256 (CA2
2000) (observing that when faced on direct appeal with an
underdeveloped claim for ineffective assistance of counsel,
the appellate court may remand to the district court for
necessary factfinding).
A remand is not the only relief available for detainees
caught in the Court’s hypothetical conundrum. The DTA
expressly directs the Secretary of Defense to “provide for
periodic review of any new evidence that may become
available relating to the enemy combatant status of a
detainee.” DTA §1005(a)(3). Regulations issued by the
Department of Defense provide that when a detainee puts
forward new, material evidence “not previously presented
to the detainee’s CSRT,” the Deputy Secretary of Defense
“‘will direct that a CSRT convene to reconsider the basis of
the detainee’s . . . status in light of the new information.’”
Office for the Administrative Review of the Detention of
Enemy Combatants, Instruction 5421.1, Procedure for
Review of “New Evidence” Relating to Enemy Combatant
(EC) Status ¶¶4(a)(1), 5(b) (May 7, 2007); Brief for Federal
Respondents 56, n. 30. Pursuant to DTA §1005(e)(2)(A),
the resulting CSRT determination is again reviewable in
22 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
full by the D. C. Circuit.2
In addition, DTA §1005(d)(1) further requires the De
partment of Defense to conduct a yearly review of the
status of each prisoner. See 119 Stat. 2741. The Deputy
Secretary of Defense has promulgated concomitant regula
tions establishing an Administrative Review Board to
assess “annually the need to continue to detain each en
emy combatant.” Deputy Secretary of Defense Order OSD
06942–04 (May 11, 2004), App. K to Pet. for Cert. in No.
06–1196, p. 189. In the words of the implementing order,
the purpose of this annual review is to afford every de
tainee the opportunity “to explain why he is no longer a
threat to the United States” and should be released. Ibid.
The Board’s findings are forwarded to a presidentially
appointed, Senate-confirmed civilian within the Depart
ment of Defense whom the Secretary of Defense has des
ignated to administer the review process. This designated
civilian official has the authority to order release upon the
Board’s recommendation. Id., at 201.
The Court’s hand wringing over the DTA’s treatment of
later-discovered exculpatory evidence is the most it has to
show after a roving search for constitutionally problematic
scenarios. But “[t]he delicate power of pronouncing an Act
of Congress unconstitutional,” we have said, “is not to be
exercised with reference to hypothetical cases thus imag
ined.” United States v. Raines, 362 U. S. 17, 22 (1960).
The Court today invents a sort of reverse facial challenge
——————
2
The Court wonders what might happen if the detainee puts forward
new material evidence but the Deputy Secretary refuses to convene a
new CSRT. See ante, at 62–63. The answer is that the detainee can
petition the D. C. Circuit for review. The DTA directs that the proce
dures for review of new evidence be included among “[t]he procedures
submitted under paragraph (1)(A)” governing CSRT review of enemy
combatant status §1405(a)(3), 119 Stat. 3476. It is undisputed that the
D. C. Circuit has statutory authority to review and enforce these
procedures. See DTA §1005(e)(2)(C)(i), id., at 2742.
23 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
and applies it with gusto: If there is any scenario in which
the statute might be constitutionally infirm, the law must
be struck down. Cf. United States v. Salerno, 481 U. S.
739, 745 (1987) (“A facial challenge . . . must establish that
no set of circumstances exists under which the Act would
be valid”); see also Washington v. Glucksberg, 521 U. S.
702, 739–740, and n. 7 (1997) (STEVENS, J., concurring in
judgments) (facial challenge must fail where the statute
has “‘plainly legitimate sweep’” (quoting Broadrick v.
Oklahoma, 413 U. S. 601, 615 (1973))). The Court’s new
method of constitutional adjudication only underscores its
failure to follow our usual procedures and require peti
tioners to demonstrate that they have been harmed by the
statute they challenge. In the absence of such a concrete
showing, the Court is unable to imagine a plausible hypo
thetical in which the DTA is unconstitutional.
E
The Court’s second criterion for an adequate substitute
is the “power to order the conditional release of an indi
vidual unlawfully detained.” Ante, at 50. As the Court
basically admits, the DTA can be read to permit the D. C.
Circuit to order release in light of our traditional princi
ples of construing statutes to avoid difficult constitutional
issues, when reasonably possible. See ante, at 56–57.
The Solicitor General concedes that remedial authority
of some sort must be implied in the statute, given that the
DTA—like the general habeas law itself, see 28 U. S. C.
§2243—provides no express remedy of any kind. Brief for
Federal Respondents 60–61. The parties agree that at the
least, the DTA empowers the D. C. Circuit to remand a
prisoner’s case to the CSRT with instructions to perform a
new status assessment. Brief for Petitioner Boumediene
et al. in No. 06–1195, at 30; Brief for Federal Respondents
60–61. To avoid constitutional infirmity, it is reasonable
to imply more, see Ashwander, 297 U. S., at 348 (Brandeis,
24 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
J., concurring) (“When the validity of an act of the Con
gress is drawn in question . . . it is a cardinal principle
that this Court will . . . ascertain whether a construction of
the statute is fairly possible by which the [constitutional]
question may be avoided” (internal quotation marks omit
ted)); see also St. Cyr, 533 U. S., at 299–300, especially in
view of the Solicitor General’s concession at oral argument
and in his Supplemental Brief that authority to release
might be read in the statute, see Tr. of Oral Arg. 37; Sup
plemental Brief for Federal Respondents 9.
The Court grudgingly suggests that “Congress’ silence
on the question of remedies suggests acquiescence to any
constitutionally required remedy.” Ante, at 58. But the
argument in favor of statutorily authorized release is
stronger than that. The DTA’s parallels to 28 U. S. C.
§2243 on this score are noteworthy. By way of remedy,
the general federal habeas statute provides only that the
court, having heard and determined the facts, shall “dis
pose of the matter as law and justice require.” Ibid. We
have long held, and no party here disputes, that this
includes the power to order release. See Wilkinson v.
Dotson, 544 U. S. 74, 79 (2005) (“[T]he writ’s history
makes clear that it traditionally has been accepted as the
specific instrument to obtain release from [unlawful]
confinement” (internal quotation marks omitted)).
The DTA can be similarly read. Because Congress
substituted DTA review for habeas corpus and because
the “unique purpose” of the writ is “to release the appli
cant . . . from unlawful confinement,” Allen v. McCurry,
449 U. S. 90, 98, n. 12 (1980), DTA §1005(e)(2) can and
should be read to confer on the Court of Appeals the
authority to order release in appropriate circumstances.
Section 1005(e)(2)(D) plainly contemplates release, ad
dressing the effect “release of [an] alien from the custody
of the Department of Defense” will have on the jurisdiction
of the court. 119 Stat. 2742–2743. This reading avoids
25 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
serious constitutional difficulty and is consistent with the
text of the statute.
The D. C. Circuit can thus order release, the CSRTs can
order release, and the head of the Administrative Review
Boards can, at the recommendation of those panels, order
release. These multiple release provisions within the DTA
system more than satisfy the majority’s requirement that
any tribunal substituting for a habeas court have the
authority to release the prisoner.
The basis for the Court’s contrary conclusion is summed
up in the following sentence near the end of its opinion:
“To hold that the detainees at Guantanamo may, under
the DTA, challenge the President’s legal authority to
detain them, contest the CSRT’s findings of fact, supple
ment the record on review with newly discovered or previ
ously unavailable evidence, and request an order of re
lease would come close to reinstating the §2241 habeas
corpus process Congress sought to deny them.” Ante, at
63. In other words, any interpretation of the statute that
would make it an adequate substitute for habeas must be
rejected, because Congress could not possibly have in
tended to enact an adequate substitute for habeas. The
Court could have saved itself a lot of trouble if it had
simply announced this Catch-22 approach at the begin
ning rather than the end of its opinion.
III
For all its eloquence about the detainees’ right to the
writ, the Court makes no effort to elaborate how exactly
the remedy it prescribes will differ from the procedural
protections detainees enjoy under the DTA. The Court
objects to the detainees’ limited access to witnesses and
classified material, but proposes no alternatives of its own.
Indeed, it simply ignores the many difficult questions its
holding presents. What, for example, will become of the
CSRT process? The majority says federal courts should
26 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
generally refrain from entertaining detainee challenges
until after the petitioner’s CSRT proceeding has finished.
See ante, at 66 (“[e]xcept in cases of undue delay”). But
to what deference, if any, is that CSRT determination
entitled?
There are other problems. Take witness availability.
What makes the majority think witnesses will become
magically available when the review procedure is labeled
“habeas”? Will the location of most of these witnesses
change—will they suddenly become easily susceptible to
service of process? Or will subpoenas issued by American
habeas courts run to Basra? And if they did, how would
they be enforced? Speaking of witnesses, will detainees be
able to call active-duty military officers as witnesses? If
not, why not?
The majority has no answers for these difficulties. What
it does say leaves open the distinct possibility that its
“habeas” remedy will, when all is said and done, end up
looking a great deal like the DTA review it rejects. See
ante, at 66 (opinion of the court) (“We recognize, however,
that the Government has a legitimate interest in protect
ing sources and methods of intelligence gathering, and we
expect that the District Court will use its discretion to
accommodate this interest to the greatest extent possi
ble”). But “[t]he role of the judiciary is limited to deter
mining whether the procedures meet the essential stan
dard of fairness under the Due Process Clause and does
not extend to imposing procedures that merely displace
congressional choices of policy.” Landon v. Plasencia, 459
U. S. 21, 34–35 (1982).
The majority rests its decision on abstract and hypo
thetical concerns. Step back and consider what, in the
real world, Congress and the Executive have actually
granted aliens captured by our Armed Forces overseas and
found to be enemy combatants:
• The right to hear the bases of the charges against
27 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
them, including a summary of any classified
evidence.
• The ability to challenge the bases of their detention
before military tribunals modeled after Geneva
Convention procedures. Some 38 detainees have
been released as a result of this process. Brief for
Federal Respondents 57, 60.
• The right, before the CSRT, to testify, introduce
evidence, call witnesses, question those the Gov
ernment calls, and secure release, if and when
appropriate.
• The right to the aid of a personal representative in
arranging and presenting their cases before a
CSRT.
• Before the D. C. Circuit, the right to employ coun
sel, challenge the factual record, contest the lower
tribunal’s legal determinations, ensure compliance
with the Constitution and laws, and secure release,
if any errors below establish their entitlement to
such relief.
In sum, the DTA satisfies the majority’s own criteria
for assessing adequacy. This statutory scheme provides
the combatants held at Guantanamo greater procedural
protections than have ever been afforded alleged enemy
detainees—whether citizens or aliens—in our national
history.
* * *
So who has won? Not the detainees. The Court’s analy
sis leaves them with only the prospect of further litigation
to determine the content of their new habeas right, fol
lowed by further litigation to resolve their particular cases,
followed by further litigation before the D. C. Circuit—
where they could have started had they invoked the DTA
procedure. Not Congress, whose attempt to “determine—
through democratic means—how best” to balance the
28 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
security of the American people with the detainees’ liberty
interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636
(2006) (BREYER, J., concurring), has been unceremoniously
brushed aside. Not the Great Writ, whose majesty is
hardly enhanced by its extension to a jurisdictionally
quirky outpost, with no tangible benefit to anyone. Not the
rule of law, unless by that is meant the rule of lawyers,
who will now arguably have a greater role than military
and intelligence officials in shaping policy for alien enemy
combatants. And certainly not the American people, who
today lose a bit more control over the conduct of this Na
tion’s foreign policy to unelected, politically unaccountable
judges.
I respectfully dissent.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
JUSTICE SCALIA, with whom THE CHIEF JUSTICE,
JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
Today, for the first time in our Nation’s history, the
Court confers a constitutional right to habeas corpus on
alien enemies detained abroad by our military forces in
the course of an ongoing war. THE CHIEF JUSTICE’s dis-
sent, which I join, shows that the procedures prescribed by
Congress in the Detainee Treatment Act provide the es-
sential protections that habeas corpus guarantees; there
has thus been no suspension of the writ, and no basis
exists for judicial intervention beyond what the Act allows.
My problem with today’s opinion is more fundamental
still: The writ of habeas corpus does not, and never has,
run in favor of aliens abroad; the Suspension Clause thus
has no application, and the Court’s intervention in this
military matter is entirely ultra vires.
2 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
I shall devote most of what will be a lengthy opinion to
the legal errors contained in the opinion of the Court.
Contrary to my usual practice, however, I think it appro-
priate to begin with a description of the disastrous conse-
quences of what the Court has done today.
I
America is at war with radical Islamists. The enemy
began by killing Americans and American allies abroad:
241 at the Marine barracks in Lebanon, 19 at the Khobar
Towers in Dhahran, 224 at our embassies in Dar es Sa-
laam and Nairobi, and 17 on the USS Cole in Yemen. See
National Commission on Terrorist Attacks upon the
United States, The 9/11 Commission Report, pp. 60–61,
70, 190 (2004). On September 11, 2001, the enemy
brought the battle to American soil, killing 2,749 at the
Twin Towers in New York City, 184 at the Pentagon in
Washington, D. C., and 40 in Pennsylvania. See id., at
552, n. 9. It has threatened further attacks against our
homeland; one need only walk about buttressed and barri-
caded Washington, or board a plane anywhere in the
country, to know that the threat is a serious one. Our
Armed Forces are now in the field against the enemy, in
Afghanistan and Iraq. Last week, 13 of our countrymen in
arms were killed.
The game of bait-and-switch that today’s opinion plays
upon the Nation’s Commander in Chief will make the war
harder on us. It will almost certainly cause more Ameri-
cans to be killed. That consequence would be tolerable if
necessary to preserve a time-honored legal principle vital
to our constitutional Republic. But it is this Court’s bla-
tant abandonment of such a principle that produces the
decision today. The President relied on our settled prece-
dent in Johnson v. Eisentrager, 339 U. S. 763 (1950), when
he established the prison at Guantanamo Bay for enemy
aliens. Citing that case, the President’s Office of Legal
3 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
Counsel advised him “that the great weight of legal au-
thority indicates that a federal district court could not
properly exercise habeas jurisdiction over an alien de-
tained at [Guantanamo Bay].” Memorandum from Patrick
F. Philbin and John C. Yoo, Deputy Assistant Attorneys
General, Office of Legal Counsel, to William J. Haynes II,
General Counsel, Dept. of Defense (Dec. 28, 2001). Had
the law been otherwise, the military surely would not have
transported prisoners there, but would have kept them in
Afghanistan, transferred them to another of our foreign
military bases, or turned them over to allies for detention.
Those other facilities might well have been worse for the
detainees themselves.
In the long term, then, the Court’s decision today ac-
complishes little, except perhaps to reduce the well-being
of enemy combatants that the Court ostensibly seeks to
protect. In the short term, however, the decision is devas-
tating. At least 30 of those prisoners hitherto released
from Guantanamo Bay have returned to the battlefield.
See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Views
of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn)
(hereinafter Minority Report). Some have been captured
or killed. See ibid.; see also Mintz, Released Detainees
Rejoining the Fight, Washington Post, Oct. 22, 2004, pp.
A1, A12. But others have succeeded in carrying on their
atrocities against innocent civilians. In one case, a de-
tainee released from Guantanamo Bay masterminded the
kidnapping of two Chinese dam workers, one of whom was
later shot to death when used as a human shield against
Pakistani commandoes. See Khan & Lancaster, Paki-
stanis Rescue Hostage; 2nd Dies, Washington Post, Oct.
15, 2004, p. A18. Another former detainee promptly re-
sumed his post as a senior Taliban commander and mur-
dered a United Nations engineer and three Afghan sol-
diers. Mintz, supra. Still another murdered an Afghan
judge. See Minority Report 13. It was reported only last
4 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
month that a released detainee carried out a suicide bomb-
ing against Iraqi soldiers in Mosul, Iraq. See White, Ex-
Guantanamo Detainee Joined Iraq Suicide Attack, Wash-
ington Post, May 8, 2008, p. A18.
These, mind you, were detainees whom the military had
concluded were not enemy combatants. Their return to
the kill illustrates the incredible difficulty of assessing
who is and who is not an enemy combatant in a foreign
theater of operations where the environment does not lend
itself to rigorous evidence collection. Astoundingly, the
Court today raises the bar, requiring military officials to
appear before civilian courts and defend their decisions
under procedural and evidentiary rules that go beyond
what Congress has specified. As THE CHIEF JUSTICE’s
dissent makes clear, we have no idea what those proce-
dural and evidentiary rules are, but they will be deter-
mined by civil courts and (in the Court’s contemplation at
least) will be more detainee-friendly than those now ap-
plied, since otherwise there would be no reason to hold the
congressionally prescribed procedures unconstitutional. If
they impose a higher standard of proof (from foreign bat-
tlefields) than the current procedures require, the number
of the enemy returned to combat will obviously increase.
But even when the military has evidence that it can
bring forward, it is often foolhardy to release that evidence
to the attorneys representing our enemies. And one esca-
lation of procedures that the Court is clear about is afford-
ing the detainees increased access to witnesses (perhaps
troops serving in Afghanistan?) and to classified informa-
tion. See ante, at 54–55. During the 1995 prosecution of
Omar Abdel Rahman, federal prosecutors gave the names
of 200 unindicted co-conspirators to the “Blind Sheik’s”
defense lawyers; that information was in the hands of
Osama Bin Laden within two weeks. See Minority Report
14–15. In another case, trial testimony revealed to the
enemy that the United States had been monitoring their
5 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
cellular network, whereupon they promptly stopped using
it, enabling more of them to evade capture and continue
their atrocities. See id., at 15.
And today it is not just the military that the Court
elbows aside. A mere two Terms ago in Hamdan v. Rums-
feld, 548 U. S. 557 (2006), when the Court held (quite
amazingly) that the Detainee Treatment Act of 2005 had
not stripped habeas jurisdiction over Guantanamo peti-
tioners’ claims, four Members of today’s five-Justice major-
ity joined an opinion saying the following:
“Nothing prevents the President from returning to
Congress to seek the authority [for trial by military
commission] he believes necessary.
“Where, as here, no emergency prevents consulta-
tion with Congress, judicial insistence upon that con-
sultation does not weaken our Nation’s ability to deal
with danger. To the contrary, that insistence
strengthens the Nation’s ability to determine—
through democratic means—how best to do so. The
Constitution places its faith in those democratic
means.” Id., at 636 (BREYER, J., concurring).1
Turns out they were just kidding. For in response, Con-
gress, at the President’s request, quickly enacted the
Military Commissions Act, emphatically reasserting that
it did not want these prisoners filing habeas petitions. It
is therefore clear that Congress and the Executive—both
political branches—have determined that limiting the role
——————
1
Even today, the Court cannot resist striking a pose of faux deference
to Congress and the President. Citing the above quoted passage, the
Court says: “The political branches, consistent with their independent
obligations to interpret and uphold the Constitution, can engage in a
genuine debate about how best to preserve constitutional values while
protecting the Nation from terrorism.” Ante, at 69. Indeed. What the
Court apparently means is that the political branches can debate, after
which the Third Branch will decide.
6 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
of civilian courts in adjudicating whether prisoners cap-
tured abroad are properly detained is important to success
in the war that some 190,000 of our men and women are
now fighting. As the Solicitor General argued, “the Mili-
tary Commissions Act and the Detainee Treatment Act . . .
represent an effort by the political branches to strike an
appropriate balance between the need to preserve liberty
and the need to accommodate the weighty and sensitive
governmental interests in ensuring that those who have in
fact fought with the enemy during a war do not return to
battle against the United States.” Brief for Respondents
10–11 (internal quotation marks omitted).
But it does not matter. The Court today decrees that no
good reason to accept the judgment of the other two
branches is “apparent.” Ante, at 40. “The Government,” it
declares, “presents no credible arguments that the mili-
tary mission at Guantanamo would be compromised if
habeas corpus courts had jurisdiction to hear the detain-
ees’ claims.” Id., at 39. What competence does the Court
have to second-guess the judgment of Congress and the
President on such a point? None whatever. But the Court
blunders in nonetheless. Henceforth, as today’s opinion
makes unnervingly clear, how to handle enemy prisoners
in this war will ultimately lie with the branch that knows
least about the national security concerns that the subject
entails.
II
A
The Suspension Clause of the Constitution provides:
“The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it.” Art. I, §9, cl. 2. As a
court of law operating under a written Constitution, our
role is to determine whether there is a conflict between
that Clause and the Military Commissions Act. A conflict
7 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
arises only if the Suspension Clause preserves the privi-
lege of the writ for aliens held by the United States mili-
tary as enemy combatants at the base in Guantanamo
Bay, located within the sovereign territory of Cuba.
We have frequently stated that we owe great deference
to Congress’s view that a law it has passed is constitu-
tional. See, e.g., Department of Labor v. Triplett, 494 U. S.
715, 721 (1990); United States v. National Dairy Products
Corp., 372 U. S. 29, 32 (1963); see also American Commu-
nications Assn. v. Douds, 339 U. S. 382, 435 (1950) (Jack-
son, J., concurring in part and dissenting in part). That is
especially so in the area of foreign and military affairs;
“perhaps in no other area has the Court accorded Congress
greater deference.” Rostker v. Goldberg, 453 U. S. 57, 64–
65 (1981). Indeed, we accord great deference even when
the President acts alone in this area. See Department of
Navy v. Egan, 484 U. S. 518, 529–530 (1988); Regan v.
Wald, 468 U. S. 222, 243 (1984).
In light of those principles of deference, the Court’s
conclusion that “the common law [does not] yiel[d] a defi-
nite answer to the questions before us,” ante, at 22, leaves
it no choice but to affirm the Court of Appeals. The writ
as preserved in the Constitution could not possibly extend
farther than the common law provided when that Clause
was written. See Part III, infra. The Court admits that it
cannot determine whether the writ historically extended
to aliens held abroad, and it concedes (necessarily) that
Guantanamo Bay lies outside the sovereign territory of
the United States. See ante, at 22–23; Rasul v. Bush, 542
U. S. 466, 500–501 (2004) (SCALIA, J., dissenting). To-
gether, these two concessions establish that it is (in the
Court’s view) perfectly ambiguous whether the common-
law writ would have provided a remedy for these petition-
ers. If that is so, the Court has no basis to strike down the
Military Commissions Act, and must leave undisturbed
8 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
the considered judgment of the coequal branches.2
How, then, does the Court weave a clear constitutional
prohibition out of pure interpretive equipoise? The Court
resorts to “fundamental separation-of-powers principles”
to interpret the Suspension Clause. Ante, at 25. Accord-
ing to the Court, because “the writ of habeas corpus is
itself an indispensable mechanism for monitoring the
separation of powers,” the test of its extraterritorial reach
“must not be subject to manipulation by those whose
power it is designed to restrain.” Ante, at 36.
That approach distorts the nature of the separation of
powers and its role in the constitutional structure. The
“fundamental separation-of-powers principles” that the
Constitution embodies are to be derived not from some
judicially imagined matrix, but from the sum total of the
individual separation-of-powers provisions that the Con-
stitution sets forth. Only by considering them one-by-one
does the full shape of the Constitution’s separation-of-
powers principles emerge. It is nonsensical to interpret
those provisions themselves in light of some general
“separation-of-powers principles” dreamed up by the
Court. Rather, they must be interpreted to mean what
they were understood to mean when the people ratified
them. And if the understood scope of the writ of habeas
corpus was “designed to restrain” (as the Court says) the
actions of the Executive, the understood limits upon that
——————
2
The opinion seeks to avoid this straightforward conclusion by saying
that the Court has been “careful not to foreclose the possibility that the
protections of the Suspension Clause have expanded along with post-
1789 developments that define the present scope of the writ.” Ante, at
15–16 (citing INS v. St. Cyr, 533 U. S. 289 300–301 (2001)). But not
foreclosing the possibility that they have expanded is not the same as
demonstrating (or at least holding without demonstration, which seems
to suffice for today’s majority) that they have expanded. The Court
must either hold that the Suspension Clause has “expanded” in its
application to aliens abroad, or acknowledge that it has no basis to set
aside the actions of Congress and the President. It does neither.
9 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
scope were (as the Court seems not to grasp) just as much
“designed to restrain” the incursions of the Third Branch.
“Manipulation” of the territorial reach of the writ by the
Judiciary poses just as much a threat to the proper sepa-
ration of powers as “manipulation” by the Executive. As I
will show below, manipulation is what is afoot here. The
understood limits upon the writ deny our jurisdiction over
the habeas petitions brought by these enemy aliens, and
entrust the President with the crucial wartime determina-
tions about their status and continued confinement.
B
The Court purports to derive from our precedents a
“functional” test for the extraterritorial reach of the writ,
ante, at 34, which shows that the Military Commissions
Act unconstitutionally restricts the scope of habeas. That
is remarkable because the most pertinent of those prece-
dents, Johnson v. Eisentrager, 339 U. S. 763, conclusively
establishes the opposite. There we were confronted with
the claims of 21 Germans held at Landsberg Prison, an
American military facility located in the American Zone of
occupation in postwar Germany. They had been captured
in China, and an American military commission sitting
there had convicted them of war crimes—collaborating
with the Japanese after Germany’s surrender. Id., at 765–
766. Like the petitioners here, the Germans claimed that
their detentions violated the Constitution and interna-
tional law, and sought a writ of habeas corpus. Writing
for the Court, Justice Jackson held that American courts
lacked habeas jurisdiction:
“We are cited to [sic] no instance where a court, in
this or any other country where the writ is known, has
issued it on behalf of an alien enemy who, at no rele-
vant time and in no stage of his captivity, has been
within its territorial jurisdiction. Nothing in the text
of the Constitution extends such a right, nor does any-
10 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
thing in our statutes.” Id., at 768.
Justice Jackson then elaborated on the historical scope
of the writ:
“The alien, to whom the United States has been tra-
ditionally hospitable, has been accorded a generous
and ascending scale of rights as he increases his iden-
tity with our society. . . .
“But, in extending constitutional protections beyond
the citizenry, the Court has been at pains to point out
that it was the alien’s presence within its territorial
jurisdiction that gave the Judiciary power to act.” Id.,
at 770–771.
Lest there be any doubt about the primacy of territorial
sovereignty in determining the jurisdiction of a habeas
court over an alien, Justice Jackson distinguished two
cases in which aliens had been permitted to seek habeas
relief, on the ground that the prisoners in those cases were
in custody within the sovereign territory of the United
States. Id., at 779–780 (discussing Ex parte Quirin, 317
U. S. 1 (1942), and In re Yamashita, 327 U. S. 1 (1946)).
“By reason of our sovereignty at that time over [the Phil-
ippines],” Jackson wrote, “Yamashita stood much as did
Quirin before American courts.” 339 U. S., at 780.
Eisentrager thus held—held beyond any doubt—that the
Constitution does not ensure habeas for aliens held by the
United States in areas over which our Government is not
sovereign.3
——————
3
In its failed attempt to distinguish Eisentrager, the Court comes up
with the notion that “de jure sovereignty” is simply an additional factor
that can be added to (presumably) “de facto sovereignty” (i.e., practical
control) to determine the availability of habeas for aliens, but that it is
not a necessary factor, whereas de facto sovereignty is. It is perhaps in
this de facto sense, the Court speculates, that Eisentrager found “sover-
eignty” lacking. See ante, at 23–25. If that were so, one would have
expected Eisentrager to explain in some detail why the United States
11 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
The Court would have us believe that Eisentrager rested
on “[p]ractical considerations,” such as the “difficulties of
ordering the Government to produce the prisoners in a
habeas corpus proceeding.” Ante, at 32. Formal sover-
eignty, says the Court, is merely one consideration “that
bears upon which constitutional guarantees apply” in a
given location. Ante, at 34. This is a sheer rewriting of
the case. Eisentrager mentioned practical concerns, to be
sure—but not for the purpose of determining under what
circumstances American courts could issue writs of habeas
corpus for aliens abroad. It cited them to support its
holding that the Constitution does not empower courts to
issue writs of habeas corpus to aliens abroad in any cir-
cumstances. As Justice Black accurately said in dissent,
“the Court’s opinion inescapably denies courts power to
afford the least bit of protection for any alien who is sub-
ject to our occupation government abroad, even if he is
neither enemy nor belligerent and even after peace is
officially declared.” 339 U. S., at 796.
The Court also tries to change Eisentrager into a “func-
——————
did not have practical control over the American zone of occupation. It
did not (and probably could not). Of course this novel de facto-de jure
approach does not explain why the writ never issued to Scotland, which
was assuredly within the de facto control of the English crown. See
infra, at 22.
To support its holding that de facto sovereignty is relevant to the
reach of habeas corpus, the Court cites our decision in Fleming v. Page,
9 How. 603 (1850), a case about the application of a customs statute to
a foreign port occupied by U. S. forces. See ante, at 24. The case used
the phrase “subject to the sovereignty and dominion of the United
States” to refer to the United States’ practical control over a “foreign
country.” 9 How., at 614. But Fleming went on to explain that because
the port remained part of the “enemy’s country,” even though under
U. S. military occupation, “its subjugation did not compel the United
States, while they held it, to regard it as part of their dominions, nor to
give to it any form of civil government, nor to extend to it our laws.”
Id., at 618. If Fleming is relevant to these cases at all, it undermines
the Court’s holding.
12 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
tional” test by quoting a paragraph that lists the charac-
teristics of the German petitioners:
“To support [the] assumption [of a constitutional right
to habeas corpus] we must hold that a prisoner of our
military authorities is constitutionally entitled to the
writ, even though he (a) is an enemy alien; (b) has
never been or resided in the United States; (c) was
captured outside of our territory and there held in
military custody as a prisoner of war; (d) was tried
and convicted by a Military Commission sitting out-
side the United States; (e) for offenses against laws of
war committed outside the United States; (f) and is at
all times imprisoned outside the United States.” Id.,
at 777 (quoted in part, ante, at 36).
But that paragraph is introduced by a sentence stating
that “[t]he foregoing demonstrates how much further we
must go if we are to invest these enemy aliens, resident,
captured and imprisoned abroad, with standing to demand
access to our courts.” 339 U. S., at 777 (emphasis added).
How much further than what? Further than the rule set
forth in the prior section of the opinion, which said that “in
extending constitutional protections beyond the citizenry,
the Court has been at pains to point out that it was the
alien’s presence within its territorial jurisdiction that gave
the Judiciary power to act.” Id., at 771. In other words,
the characteristics of the German prisoners were set forth,
not in application of some “functional” test, but to show
that the case before the Court represented an a fortiori
application of the ordinary rule. That is reaffirmed by the
sentences that immediately follow the listing of the Ger-
mans’ characteristics:
“We have pointed out that the privilege of litigation
has been extended to aliens, whether friendly or en-
emy, only because permitting their presence in the
country implied protection. No such basis can be in-
13 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
voked here, for these prisoners at no relevant time
were within any territory over which the United
States is sovereign, and the scenes of their offense,
their capture, their trial and their punishment were
all beyond the territorial jurisdiction of any court of
the United States.” Id., at 777–778.
Eisentrager nowhere mentions a “functional” test, and the
notion that it is based upon such a principle is patently
false.4
The Court also reasons that Eisentrager must be read as
a “functional” opinion because of our prior decisions in the
Insular Cases. See ante, at 26–29. It cites our statement
in Balzac v. Porto Rico, 258 U. S. 298, 312 (1922), that
“‘the real issue in the Insular Cases was not whether the
Constitution extended to the Philippines or Porto Rico
when we went there, but which of its provisions were
——————
4
JUSTICE SOUTER’s concurrence relies on our decision four Terms ago
in Rasul v. Bush, 542 U. S. 466 (2004), where the Court interpreted the
habeas statute to extend to aliens held at Guantanamo Bay. He thinks
that “no one who reads the Court’s opinion in Rasul could seriously
doubt that the jurisdictional question must be answered the same way
in purely constitutional cases.” Ante, at 1–2. But Rasul was devoted
primarily to an explanation of why Eisentrager’s statutory holding no
longer controlled given our subsequent decision in Braden v. 30th
Judicial Circuit Court of Ky., 410 U. S. 484 (1973). See Rasul, supra, at
475–479. And the opinion of the Court today—which JUSTICE SOUTER
joins—expressly rejects the historical evidence cited in Rasul to support
its conclusion about the reach of habeas corpus. Compare id., at 481–
482, with ante, at 18. Moreover, even if one were to accept as true what
JUSTICE SOUTER calls Rasul’s “well-considered” dictum, that does not
explain why Eisentrager’s constitutional holding must be overruled or
how it can be distinguished. (After all, Rasul distinguished Eisen-
trager’s statutory holding on a ground inapplicable to its constitutional
holding.) In other words, even if the Court were to conclude that
Eisentrager’s rule was incorrect as an original matter, the Court would
have to explain the justification for departing from that precedent. It
therefore cannot possibly be true that Rasul controls this case, as
JUSTICE SOUTER suggests.
14 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
applicable by way of limitation upon the exercise of execu-
tive and legislative power in dealing with new conditions
and requirements.’” Ante, at 28. But the Court conven-
iently omits Balzac’s predicate to that statement: “The
Constitution of the United States is in force in Porto Rico
as it is wherever and whenever the sovereign power of that
government is exerted.” 258 U. S., at 312 (emphasis
added). The Insular Cases all concerned territories ac-
quired by Congress under its Article IV authority and
indisputably part of the sovereign territory of the United
States. See United States v. Verdugo-Urquidez, 494 U. S.
259, 268 (1990); Reid v. Covert, 354 U. S. 1, 13 (1957)
(plurality opinion of Black, J.). None of the Insular Cases
stands for the proposition that aliens located outside U. S.
sovereign territory have constitutional rights, and Eisen-
trager held just the opposite with respect to habeas corpus.
As I have said, Eisentrager distinguished Yamashita on
the ground of “our sovereignty [over the Philippines],” 339
U. S., at 780.
The Court also relies on the “[p]ractical considerations”
that influenced our decision in Reid v. Covert, supra. See
ante, at 29–32. But all the Justices in the majority except
Justice Frankfurter limited their analysis to the rights of
citizens abroad. See Reid, supra, at 5–6 (plurality opinion
of Black, J.); id., at 74–75 (Harlan, J., concurring in re-
sult). (Frankfurter limited his analysis to the even nar-
rower class of civilian dependents of American military
personnel abroad, see id., at 45 (opinion concurring in
result).) In trying to wring some kind of support out of
Reid for today’s novel holding, the Court resorts to a chain
of logic that does not hold. The members of the Reid
majority, the Court says, were divided over whether In re
Ross, 140 U. S. 453 (1891), which had (according to the
Court) held that under certain circumstances American
citizens abroad do not have indictment and jury-trial
rights, should be overruled. In the Court’s view, the Reid
15 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
plurality would have overruled Ross, but Justices Frank-
furter and Harlan preferred to distinguish it. The upshot:
“If citizenship had been the only relevant factor in the
case, it would have been necessary for the Court to over-
turn Ross, something Justices Harlan and Frankfurter
were unwilling to do.” Ante, at 32. What, exactly, is this
point supposed to prove? To say that “practical considera-
tions” determine the precise content of the constitutional
protections American citizens enjoy when they are abroad
is quite different from saying that “practical considera-
tions” determine whether aliens abroad enjoy any consti-
tutional protections whatever, including habeas. In other
words, merely because citizenship is not a sufficient factor
to extend constitutional rights abroad does not mean that
it is not a necessary one.
The Court tries to reconcile Eisentrager with its holding
today by pointing out that in postwar Germany, the
United States was “answerable to its Allies” and did not
“pla[n] a long-term occupation.” Ante, at 38, 39. Those
factors were not mentioned in Eisentrager. Worse still, it
is impossible to see how they relate to the Court’s asserted
purpose in creating this “functional” test—namely, to
ensure a judicial inquiry into detention and prevent the
political branches from acting with impunity. Can it
possibly be that the Court trusts the political branches
more when they are beholden to foreign powers than when
they act alone?
After transforming the a fortiori elements discussed
above into a “functional” test, the Court is still left with
the difficulty that most of those elements exist here as
well with regard to all the detainees. To make the appli-
cation of the newly crafted “functional” test produce a
different result in the present cases, the Court must rely
upon factors (d) and (e): The Germans had been tried by a
military commission for violations of the laws of war; the
present petitioners, by contrast, have been tried by a
16 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
Combatant Status Review Tribunal (CSRT) whose proce-
dural protections, according to the Court’s ipse dixit, “fall
well short of the procedures and adversarial mechanisms
that would eliminate the need for habeas corpus review.”
Ante, at 37. But no one looking for “functional” equiva-
lents would put Eisentrager and the present cases in the
same category, much less place the present cases in a
preferred category. The difference between them cries out
for lesser procedures in the present cases. The prisoners
in Eisentrager were prosecuted for crimes after the cessa-
tion of hostilities; the prisoners here are enemy combat-
ants detained during an ongoing conflict. See Hamdi v.
Rumsfeld, 542 U. S. 507, 538 (2004) (plurality opinion)
(suggesting, as an adequate substitute for habeas corpus,
the use of a tribunal akin to a CSRT to authorize the
detention of American citizens as enemy combatants dur-
ing the course of the present conflict).
The category of prisoner comparable to these detainees
are not the Eisentrager criminal defendants, but the more
than 400,000 prisoners of war detained in the United
States alone during World War II. Not a single one was
accorded the right to have his detention validated by a
habeas corpus action in federal court—and that despite
the fact that they were present on U. S. soil. See Bradley,
The Military Commissions Act, Habeas Corpus, and the
Geneva Conventions, 101 Am. J. Int’l L. 322, 338 (2007).
The Court’s analysis produces a crazy result: Whereas
those convicted and sentenced to death for war crimes are
without judicial remedy, all enemy combatants detained
during a war, at least insofar as they are confined in an
area away from the battlefield over which the United
States exercises “absolute and indefinite” control, may
seek a writ of habeas corpus in federal court. And, as an
even more bizarre implication from the Court’s reasoning,
those prisoners whom the military plans to try by full-
dress Commission at a future date may file habeas peti-
17 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
tions and secure release before their trials take place.
There is simply no support for the Court’s assertion that
constitutional rights extend to aliens held outside U. S.
sovereign territory, see Verdugo-Urquidez, 494 U. S., at
271, and Eisentrager could not be clearer that the privilege
of habeas corpus does not extend to aliens abroad. By
blatantly distorting Eisentrager, the Court avoids the
difficulty of explaining why it should be overruled. See
Planned Parenthood of Southeastern Pa. v. Casey, 505
U. S. 833, 854–855 (1992) (identifying stare decisis fac-
tors). The rule that aliens abroad are not constitutionally
entitled to habeas corpus has not proved unworkable in
practice; if anything, it is the Court’s “functional” test that
does not (and never will) provide clear guidance for the
future. Eisentrager forms a coherent whole with the ac-
cepted proposition that aliens abroad have no substantive
rights under our Constitution. Since it was announced, no
relevant factual premises have changed. It has engen-
dered considerable reliance on the part of our military.
And, as the Court acknowledges, text and history do not
clearly compel a contrary ruling. It is a sad day for the
rule of law when such an important constitutional pre-
cedent is discarded without an apologia, much less an
apology.
C
What drives today’s decision is neither the meaning of
the Suspension Clause, nor the principles of our prece-
dents, but rather an inflated notion of judicial supremacy.
The Court says that if the extraterritorial applicability of
the Suspension Clause turned on formal notions of sover-
eignty, “it would be possible for the political branches to
govern without legal constraint” in areas beyond the
sovereign territory of the United States. Ante, at 35. That
cannot be, the Court says, because it is the duty of this
Court to say what the law is. Id., at 35–36. It would be
18 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
difficult to imagine a more question-begging analysis.
“The very foundation of the power of the federal courts to
declare Acts of Congress unconstitutional lies in the power
and duty of those courts to decide cases and controversies
properly before them.” United States v. Raines, 362 U. S.
17, 20–21 (1960) (citing Marbury v. Madison, 1 Cranch
137 (1803); emphasis added). Our power “to say what the
law is” is circumscribed by the limits of our statutorily and
constitutionally conferred jurisdiction. See Lujan v. De-
fenders of Wildlife, 504 U. S. 555, 573–578 (1992). And
that is precisely the question in these cases: whether the
Constitution confers habeas jurisdiction on federal courts
to decide petitioners’ claims. It is both irrational and
arrogant to say that the answer must be yes, because
otherwise we would not be supreme.
But so long as there are some places to which habeas
does not run—so long as the Court’s new “functional” test
will not be satisfied in every case—then there will be cir-
cumstances in which “it would be possible for the political
branches to govern without legal constraint.” Or, to put it
more impartially, areas in which the legal determinations
of the other branches will be (shudder!) supreme. In other
words, judicial supremacy is not really assured by the
constitutional rule that the Court creates. The gap be-
tween rationale and rule leads me to conclude that the
Court’s ultimate, unexpressed goal is to preserve the
power to review the confinement of enemy prisoners held
by the Executive anywhere in the world. The “functional”
test usefully evades the precedential landmine of Eisen-
trager but is so inherently subjective that it clears a wide
path for the Court to traverse in the years to come.
III
Putting aside the conclusive precedent of Eisentrager, it
is clear that the original understanding of the Suspension
Clause was that habeas corpus was not available to aliens
19 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
abroad, as Judge Randolph’s thorough opinion for the
court below detailed. See 476 F. 3d 981, 988–990 (CADC
2007).
The Suspension Clause reads: “The Privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may
require it.” U. S. Const., Art. I, §9, cl. 2. The proper
course of constitutional interpretation is to give the text
the meaning it was understood to have at the time of its
adoption by the people. See, e.g., Crawford v. Washington,
541 U. S. 36, 54 (2004). That course is especially de-
manded when (as here) the Constitution limits the power
of Congress to infringe upon a pre-existing common-law
right. The nature of the writ of habeas corpus that cannot
be suspended must be defined by the common-law writ
that was available at the time of the founding. See
McNally v. Hill, 293 U. S. 131, 135–136 (1934); see also
INS v. St. Cyr, 533 U. S. 289, 342 (2001) (SCALIA, J., dis-
senting); D’Oench, Duhme & Co. v. FDIC, 315 U. S. 447,
471, n. 9 (1942) (Jackson, J., concurring).
It is entirely clear that, at English common law, the writ
of habeas corpus did not extend beyond the sovereign
territory of the Crown. To be sure, the writ had an “ex-
traordinary territorial ambit,” because it was a so-called
“prerogative writ,” which, unlike other writs, could extend
beyond the realm of England to other places where the
Crown was sovereign. R. Sharpe, The Law of Habeas
Corpus 188 (2d ed. 1989) (hereinafter Sharpe); see also
Note on the Power of the English Courts to Issue the Writ
of Habeas to Places Within the Dominions of the Crown,
But Out of England, and On the Position of Scotland in
Relation to that Power, 8 Jurid. Rev. 157 (1896) (hereinaf-
ter Note on Habeas); King v. Cowle, 2 Burr. 834, 855–856,
97 Eng. Rep. 587, 599 (K. B. 1759).
But prerogative writs could not issue to foreign coun-
tries, even for British subjects; they were confined to the
20 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
King’s dominions—those areas over which the Crown was
sovereign. See Sharpe 188; 2 R. Chambers, A Course of
Lectures on the English Law 1767–1773, pp. 7–8 (Curley
ed. 1986); 3 W. Blackstone, Commentaries on the Laws of
England 131 (1768) (hereinafter Blackstone). Thus, the
writ has never extended to Scotland, which, although
united to England when James I succeeded to the English
throne in 1603, was considered a foreign dominion under a
different Crown—that of the King of Scotland. Sharpe
191; Note on Habeas 158.5 That is why Lord Mansfield
wrote that “[t]o foreign dominions, which belong to a
prince who succeeds to the throne of England, this Court
has no power to send any writ of any kind. We cannot
send a habeas corpus to Scotland . . . .” Cowle, supra, at
856, 97 Eng. Rep., at 599–600.
The common-law writ was codified by the Habeas Cor-
pus Act of 1679, which “stood alongside Magna Charta and
the English Bill of Rights of 1689 as a towering common
law lighthouse of liberty—a beacon by which framing
lawyers in America consciously steered their course.”
Amar, Sixth Amendment First Principles, 84 Geo. L. J.
641, 663 (1996). The writ was established in the Colonies
beginning in the 1690’s and at least one colony adopted
the 1679 Act almost verbatim. See Dept. of Political Sci-
ence, Okla. State Univ., Research Reports, No. 1, R.
Walker, The American Reception of the Writ of Liberty
12–16 (1961). Section XI of the Act stated where the writ
could run. It “may be directed and run into any county
palatine, the cinque-ports, or other privileged places
within the kingdom of England, dominion of Wales, or
town of Berwick upon Tweed, and the islands of Jersey or
Guernsey.” 31 Car. 2, ch. 2. The cinque-ports and county
palatine were so-called “exempt jurisdictions”—franchises
——————
5
My dissent in Rasul v. Bush, 542 U. S. 466, 503 (2004), mistakenly
included Scotland among the places to which the writ could run.
21 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
granted by the Crown in which local authorities would
manage municipal affairs, including the court system, but
over which the Crown maintained ultimate sovereignty.
See 3 Blackstone 78–79. The other places listed—Wales,
Berwick-upon-Tweed, Jersey, and Guernsey—were terri-
tories of the Crown even though not part England proper.
See Cowle, supra, at 853–854, 97 Eng. Rep., at 598 (Wales
and Berwick-upon-Tweed); 1 Blackstone 104 (Jersey and
Guernsey); Sharpe 192 (same).
The Act did not extend the writ elsewhere, even though
the existence of other places to which British prisoners
could be sent was recognized by the Act. The possibility of
evading judicial review through such spiriting-away was
eliminated, not by expanding the writ abroad, but by
forbidding (in Article XII of the Act) the shipment of pris-
oners to places where the writ did not run or where its
execution would be difficult. See 31 Car. 2, ch. 2; see
generally Nutting, The Most Wholesome Law—The Ha-
beas Corpus Act of 1679, 65 Am. Hist. Rev. 527 (1960).
The Habeas Corpus Act, then, confirms the consensus
view of scholars and jurists that the writ did not run
outside the sovereign territory of the Crown. The Court
says that the idea that “jurisdiction followed the King’s
officers” is an equally credible view. Ante, at 16. It is not
credible at all. The only support the Court cites for it is a
page in Boumediene’s brief, which in turn cites this
Court’s dicta in Rasul, 542 U. S., at 482, mischaracterizing
Lord Mansfield’s statement that the writ ran to any place
that was “under the subjection of the Crown,” Cowle,
supra, at 856, 97 Eng. Rep., at 599. It is clear that Lord
Mansfield was saying that the writ extended outside the
realm of England proper, not outside the sovereign terri-
tory of the Crown.6
——————
6
The dicta in Rasul also cited Ex parte Mwenya, [1960] 1 Q. B. 241,
(C. A.), but as I explained in dissent, “[e]ach judge [in Mwenya] made
22 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
The Court dismisses the example of Scotland on the
grounds that Scotland had its own judicial system and
that the writ could not, as a practical matter, have been
enforced there. Ante, at 20. Those explanations are to-
tally unpersuasive. The existence of a separate court
system was never a basis for denying the power of a court
to issue the writ. See 9 W. Holdsworth, A History of Eng-
lish Law 124 (3d ed. 1944) (citing Ex parte Anderson, 3 El.
and El. 487 (1861)). And as for logistical problems, the
same difficulties were present for places like the Channel
Islands, where the writ did run. The Court attempts to
draw an analogy between the prudential limitations on
issuing the writ to such remote areas within the sovereign
territory of the Crown and the jurisdictional prohibition on
issuing the writ to Scotland. See ante, at 19–20. But the
very authority that the Court cites, Lord Mansfield, ex-
pressly distinguished between these two concepts, stating
that English courts had the “power” to send the writ to
places within the Crown’s sovereignty, the “only question”
being the “propriety,” while they had “no power to send
any writ of any kind” to Scotland and other “foreign do-
minions.” Cowle, supra, at 856, 97 Eng. Rep., at 599–600.
The writ did not run to Scotland because, even after the
Union, “Scotland remained a foreign dominion of the
prince who succeeded to the English throne,” and “union
did not extend the prerogative of the English crown to
Scotland.” Sharpe 191; see also Sir Matthew Hale’s The
Prerogatives of the King 19 (D. Yale ed. 1976).7
——————
clear that the detainee’s status as a subject was material to the resolu-
tion of the case,” 542 U. S., at 504.
7
The Court also argues that the fact that the writ could run to Ire-
land, even though it was ruled under a “separate” crown, shows that
formal sovereignty was not the touchstone of habeas jurisdiction. Ante,
at 21. The passage from Blackstone that the Court cites, however,
describes Ireland as “a dependent, subordinate kingdom” that was part
of the “king’s dominions.” 1 Blackstone 98, 100 (internal quotation
23 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
In sum, all available historical evidence points to the
conclusion that the writ would not have been available at
common law for aliens captured and held outside the
sovereign territory of the Crown. Despite three opening
briefs, three reply briefs, and support from a legion of
amici, petitioners have failed to identify a single case in
the history of Anglo-American law that supports their
claim to jurisdiction. The Court finds it significant that
there is no recorded case denying jurisdiction to such
prisoners either. See ante, at 21–22. But a case standing
for the remarkable proposition that the writ could issue to
a foreign land would surely have been reported, whereas a
case denying such a writ for lack of jurisdiction would
likely not. At a minimum, the absence of a reported case
either way leaves unrefuted the voluminous commentary
stating that habeas was confined to the dominions of the
Crown.
What history teaches is confirmed by the nature of the
limitations that the Constitution places upon suspension
of the common-law writ. It can be suspended only “in
Cases of Rebellion or Invasion.” Art. I, §9, cl. 2. The latter
case (invasion) is plainly limited to the territory of the
United States; and while it is conceivable that a rebellion
could be mounted by American citizens abroad, surely the
overwhelming majority of its occurrences would be domes-
tic. If the extraterritorial scope of habeas turned on flexi-
ble, “functional” considerations, as the Court holds, why
would the Constitution limit its suspension almost en-
tirely to instances of domestic crisis? Surely there is an
even greater justification for suspension in foreign lands
where the United States might hold prisoners of war
——————
marks omitted). And Lord Mansfield’s opinion in Cowle plainly under-
stood Ireland to be “a dominion of the Crown of England,” in contrast to
the “foreign dominio[n]” of Scotland, and thought that distinction
dispositive of the question of habeas jurisdiction. Cowle, supra, at 856,
97 Eng. Rep., at 599–600.
24 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
during an ongoing conflict. And correspondingly, there is
less threat to liberty when the Government suspends the
writ’s (supposed) application in foreign lands, where even
on the most extreme view prisoners are entitled to fewer
constitutional rights. It makes no sense, therefore, for the
Constitution generally to forbid suspension of the writ
abroad if indeed the writ has application there.
It may be objected that the foregoing analysis proves too
much, since this Court has already suggested that the writ
of habeas corpus does run abroad for the benefit of United
States citizens. “[T]he position that United States citizens
throughout the world may be entitled to habeas corpus
rights . . . is precisely the position that this Court adopted
in Eisentrager, see 339 U. S., at 769–770, even while
holding that aliens abroad did not have habeas corpus
rights.” Rasul, 542 U. S., at 501, 502 (SCALIA, J., dissent-
ing) (emphasis deleted). The reason for that divergence is
not difficult to discern. The common-law writ, as received
into the law of the new constitutional Republic, took on
such changes as were demanded by a system in which rule
is derived from the consent of the governed, and in which
citizens (not “subjects”) are afforded defined protections
against the Government. As Justice Story wrote for the
Court,
“The common law of England is not to be taken in all
respects to be that of America. Our ancestors brought
with them its general principles, and claimed it as
their birthright; but they brought with them and
adopted only that portion which was applicable to
their situation.” Van Ness v. Pacard, 2 Pet. 137, 144
(1829).
See also Hall, The Common Law: An Account of its Recep-
tion in the United States, 4 Vand. L. Rev. 791 (1951). It
accords with that principle to say, as the plurality opinion
said in Reid: “When the Government reaches out to punish
25 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
a citizen who is abroad, the shield which the Bill of Rights
and other parts of the Constitution provide to protect his
life and liberty should not be stripped away just because
he happens to be in another land.” 354 U. S., at 6; see also
Verdugo-Urquidez, 494 U. S., at 269–270. On that analy-
sis, “[t]he distinction between citizens and aliens follows
from the undoubted proposition that the Constitution does
not create, nor do general principles of law create, any
juridical relation between our country and some unde-
fined, limitless class of noncitizens who are beyond our
territory.” Id., at 275 (KENNEDY, J., concurring).
In sum, because I conclude that the text and history of
the Suspension Clause provide no basis for our jurisdic-
tion, I would affirm the Court of Appeals even if Eisen-
trager did not govern these cases.
* * *
Today the Court warps our Constitution in a way that
goes beyond the narrow issue of the reach of the Suspen-
sion Clause, invoking judicially brainstormed separation-
of-powers principles to establish a manipulable “func-
tional” test for the extraterritorial reach of habeas corpus
(and, no doubt, for the extraterritorial reach of other
constitutional protections as well). It blatantly misde-
scribes important precedents, most conspicuously Justice
Jackson’s opinion for the Court in Johnson v. Eisentrager.
It breaks a chain of precedent as old as the common law
that prohibits judicial inquiry into detentions of aliens
abroad absent statutory authorization. And, most tragi-
cally, it sets our military commanders the impossible task
of proving to a civilian court, under whatever standards
this Court devises in the future, that evidence supports
the confinement of each and every enemy prisoner.
The Nation will live to regret what the Court has done
today. I dissent.
PRESIDENT LOSES ANOTHER SUPREME COURT DECISION-ENOUGH ALREADY!!!!!
1 (Slip Opinion) OCTOBER TERM, 2007
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BOUMEDIENE ET AL. v. BUSH, PRESIDENT OF THE
UNITED STATES, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 06–1195. Argued December 5, 2007—Decided June 12, 2008*
In the Authorization for Use of Military Force (AUMF), Congress em-
powered the President “to use all necessary and appropriate force
against those . . . he determines planned, authorized, committed, or
aided the terrorist attacks . . . on September 11, 2001.” In Hamdi v.
Rumsfeld, 542 U. S. 507, 518, 588–589, five Justices recognized that
detaining individuals captured while fighting against the United
States in Afghanistan for the duration of that conflict was a funda-
mental and accepted incident to war. Thereafter, the Defense De-
partment established Combatant Status Review Tribunals (CSRTs)
to determine whether individuals detained at the U. S. Naval Station
at Guantanamo Bay, Cuba, were “enemy combatants.”
Petitioners are aliens detained at Guantanamo after being cap-
tured in Afghanistan or elsewhere abroad and designated enemy
combatants by CSRTs. Denying membership in the al Qaeda terror-
ist network that carried out the September 11 attacks and the Tali-
ban regime that supported al Qaeda, each petitioner sought a writ of
habeas corpus in the District Court, which ordered the cases dis-
missed for lack of jurisdiction because Guantanamo is outside sover-
eign U. S. territory. The D. C. Circuit affirmed, but this Court re-
versed, holding that 28 U. S. C. §2241 extended statutory habeas
jurisdiction to Guantanamo. See Rasul v. Bush, 542 U. S. 466, 473.
Petitioners’ cases were then consolidated into two proceedings. In
the first, the district judge granted the Government’s motion to dis-
miss, holding that the detainees had no rights that could be vindi-
——————
*Together with No. 06–1196, Al Odah, Next Friend of Al Odah, et al.
v. United States et al., also on certiorari to the same court.
2 BOUMEDIENE v. BUSH
Syllabus
cated in a habeas action. In the second, the judge held that the de-
tainees had due process rights.
While appeals were pending, Congress passed the Detainee Treat-
ment Act of 2005 (DTA), §1005(e) of which amended 28 U. S. C. §2241
to provide that “no court, justice, or judge shall have jurisdiction to
. . . consider . . . an application for . . . habeas corpus filed by or on
behalf of an alien detained . . . at Guantanamo,” and gave the D. C.
Circuit “exclusive” jurisdiction to review CSRT decisions. In Ham-
dan v. Rumsfeld, 548 U. S. 557, 576–577, the Court held this provi-
sion inapplicable to cases (like petitioners’) pending when the DTA
was enacted. Congress responded with the Military Commissions Act
of 2006 (MCA), §7(a) of which amended §2241(e)(1) to deny jurisdic-
tion with respect to habeas actions by detained aliens determined to
be enemy combatants, while §2241(e)(2) denies jurisdiction as to “any
other action against the United States . . . relating to any aspect of
the detention, transfer, treatment, trial, or conditions of confinement”
of a detained alien determined to be an enemy combatant. MCA
§7(b) provides that the 2241(e) amendments “shall take effect on the
date of the enactment of this Act, and shall apply to all cases, without
exception, pending on or after [that] date . . . which relate to any as-
pect of the detention, transfer, treatment, trial, or conditions of de-
tention of an alien detained . . . since September 11, 2001.”
The D. C. Circuit concluded that MCA §7 must be read to strip
from it, and all federal courts, jurisdiction to consider petitioners’ ha-
beas applications; that petitioners are not entitled to habeas or the
protections of the Suspension Clause, U. S. Const., Art. I, §9, cl. 2,
which provides that “[t]he Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it”; and that it was therefore unneces-
sary to consider whether the DTA provided an adequate and effective
substitute for habeas.
Held:
1. MCA §7 denies the federal courts jurisdiction to hear habeas ac-
tions, like the instant cases, that were pending at the time of its en-
actment. Section §7(b)’s effective date provision undoubtedly applies
to habeas actions, which, by definition, “relate to . . . detention”
within that section’s meaning. Petitioners argue to no avail that
§7(b) does not apply to a §2241(e)(1) habeas action, but only to “any
other action” under §2241(e)(2), because it largely repeats that sec-
tion’s language. The phrase “other action” in §2241(e)(2) cannot be
understood without referring back to §2241(e)(1), which explicitly
mentions the “writ of habeas corpus.” Because the two paragraphs’
structure implies that habeas is a type of action “relating to any as-
3 Cite as: 553 U. S. ____ (2008)
Syllabus
pect of . . . detention,” etc., pending habeas actions are in the category
of cases subject to the statute’s jurisdictional bar. This is confirmed
by the MCA’s legislative history. Thus, if MCA §7 is valid, petition-
ers’ cases must be dismissed. Pp. 5–8.
2. Petitioners have the constitutional privilege of habeas corpus.
They are not barred from seeking the writ or invoking the Suspen-
sion Clause’s protections because they have been designated as en-
emy combatants or because of their presence at Guantanamo. Pp. 8–
41.
(a) A brief account of the writ’s history and origins shows that
protection for the habeas privilege was one of the few safeguards of
liberty specified in a Constitution that, at the outset, had no Bill of
Rights; in the system the Framers conceived, the writ has a central-
ity that must inform proper interpretation of the Suspension Clause.
That the Framers considered the writ a vital instrument for the pro-
tection of individual liberty is evident from the care taken in the Sus-
pension Clause to specify the limited grounds for its suspension: The
writ may be suspended only when public safety requires it in times of
rebellion or invasion. The Clause is designed to protect against cycli-
cal abuses of the writ by the Executive and Legislative Branches. It
protects detainee rights by a means consistent with the Constitu-
tion’s essential design, ensuring that, except during periods of formal
suspension, the Judiciary will have a time-tested device, the writ, to
maintain the “delicate balance of governance.” Hamdi, supra, at 536.
Separation-of-powers principles, and the history that influenced their
design, inform the Clause’s reach and purpose. Pp. 8–15.
(b) A diligent search of founding-era precedents and legal com-
mentaries reveals no certain conclusions. None of the cases the par-
ties cite reveal whether a common-law court would have granted, or
refused to hear for lack of jurisdiction, a habeas petition by a prisoner
deemed an enemy combatant, under a standard like the Defense De-
partment’s in these cases, and when held in a territory, like Guan-
tanamo, over which the Government has total military and civil con-
trol. The evidence as to the writ’s geographic scope at common law is
informative, but, again, not dispositive. Petitioners argue that the
site of their detention is analogous to two territories outside England
to which the common-law writ ran, the exempt jurisdictions and In-
dia, but critical differences between these places and Guantanamo
render these claims unpersuasive. The Government argues that
Guantanamo is more closely analogous to Scotland and Hanover,
where the writ did not run, but it is unclear whether the common-law
courts lacked the power to issue the writ there, or whether they re-
frained from doing so for prudential reasons. The parties’ arguments
that the very lack of a precedent on point supports their respective
4 BOUMEDIENE v. BUSH
Syllabus
positions are premised upon the doubtful assumptions that the his-
torical record is complete and that the common law, if properly un-
derstood, yields a definite answer to the questions before the Court.
Pp. 15–22.
(c) The Suspension Clause has full effect at Guantanamo. The
Government’s argument that the Clause affords petitioners no rights
because the United States does not claim sovereignty over the naval
station is rejected. Pp. 22–42.
(i) The Court does not question the Government’s position that
Cuba maintains sovereignty, in the legal and technical sense, over
Guantanamo, but it does not accept the Government’s premise that
de jure sovereignty is the touchstone of habeas jurisdiction. Com-
mon-law habeas’ history provides scant support for this proposition,
and it is inconsistent with the Court’s precedents and contrary to
fundamental separation-of-powers principles. Pp. 22–25.
(ii) Discussions of the Constitution’s extraterritorial applica-
tion in cases involving provisions other than the Suspension Clause
undermine the Government’s argument. Fundamental questions re-
garding the Constitution’s geographic scope first arose when the Na-
tion acquired Hawaii and the noncontiguous Territories ceded by
Spain after the Spanish-American War, and Congress discontinued
its prior practice of extending constitutional rights to territories by
statute. In the so-called Insular Cases, the Court held that the Con-
stitution had independent force in the territories that was not contin-
gent upon acts of legislative grace. See, e.g., Dorr v. United States,
195 U. S. 138. Yet because of the difficulties and disruption inherent
in transforming the former Spanish colonies’ civil-law system into an
Anglo-American system, the Court adopted the doctrine of territorial
incorporation, under which the Constitution applies in full in incor-
porated Territories surely destined for statehood but only in part in
unincorporated Territories. See, e.g., id., at 143. Practical considera-
tions likewise influenced the Court’s analysis in Reid v. Covert, 354
U. S. 1, where, in applying the jury provisions of the Fifth and Sixth
Amendments to American civilians being tried by the U. S. military
abroad, both the plurality and the concurrences noted the relevance
of practical considerations, related not to the petitioners’ citizenship,
but to the place of their confinement and trial. Finally, in holding
that habeas jurisdiction did not extend to enemy aliens, convicted of
violating the laws of war, who were detained in a German prison dur-
ing the Allied Powers’ post-World War II occupation, the Court, in
Johnson v. Eisentrager, 339 U. S. 763, stressed the practical difficul-
ties of ordering the production of the prisoners, id., at 779. The Gov-
ernment’s reading of Eisentrager as adopting a formalistic test for de-
termining the Suspension Clause’s reach is rejected because: (1) the
5 Cite as: 553 U. S. ____ (2008)
Syllabus
discussion of practical considerations in that case was integral to a
part of the Court’s opinion that came before it announced its holding,
see id., at 781; (2) it mentioned the concept of territorial sovereignty
only twice in its opinion, in contrast to its significant discussion of
practical barriers to the running of the writ; and (3) if the Govern-
ment’s reading were correct, the opinion would have marked not only
a change in, but a complete repudiation of, the Insular Cases’ (and
later Reid’s) functional approach. A constricted reading of Eisen-
trager overlooks what the Court sees as a common thread uniting all
these cases: The idea that extraterritoriality questions turn on objec-
tive factors and practical concerns, not formalism. Pp. 25–34.
(iii) The Government’s sovereignty-based test raises troubling
separation-of-powers concerns, which are illustrated by Guan-
tanamo’s political history. Although the United States has main-
tained complete and uninterrupted control of Guantanamo for over
100 years, the Government’s view is that the Constitution has no ef-
fect there, at least as to noncitizens, because the United States dis-
claimed formal sovereignty in its 1903 lease with Cuba. The Nation’s
basic charter cannot be contracted away like this. The Constitution
grants Congress and the President the power to acquire, dispose of,
and govern territory, not the power to decide when and where its
terms apply. To hold that the political branches may switch the Con-
stitution on or off at will would lead to a regime in which they, not
this Court, say “what the law is.” Marbury v. Madison, 1 Cranch
137, 177. These concerns have particular bearing upon the Suspen-
sion Clause question here, for the habeas writ is itself an indispensa-
ble mechanism for monitoring the separation of powers. Pp. 34–36.
(iv) Based on Eisentrager, supra, at 777, and the Court’s rea-
soning in its other extraterritoriality opinions, at least three factors
are relevant in determining the Suspension Clause’s reach: (1) the
detainees’ citizenship and status and the adequacy of the process
through which that status was determined; (2) the nature of the sites
where apprehension and then detention took place; and (3) the prac-
tical obstacles inherent in resolving the prisoner’s entitlement to the
writ. Application of this framework reveals, first, that petitioners’
status is in dispute: They are not American citizens, but deny they
are enemy combatants; and although they have been afforded some
process in CSRT proceedings, there has been no Eisentrager–style
trial by military commission for violations of the laws of war. Second,
while the sites of petitioners’ apprehension and detention weigh
against finding they have Suspension Clause rights, there are critical
differences between Eisentrager’s German prison, circa 1950, and the
Guantanamo Naval Station in 2008, given the Government’s absolute
and indefinite control over the naval station. Third, although the
6 BOUMEDIENE v. BUSH
Syllabus
Court is sensitive to the financial and administrative costs of holding
the Suspension Clause applicable in a case of military detention
abroad, these factors are not dispositive because the Government
presents no credible arguments that the military mission at Guan-
tanamo would be compromised if habeas courts had jurisdiction. The
situation in Eisentrager was far different, given the historical context
and nature of the military’s mission in post-War Germany. Pp. 36–
41.
(d) Petitioners are therefore entitled to the habeas privilege, and
if that privilege is to be denied them, Congress must act in accor-
dance with the Suspension Clause’s requirements. Cf. Rasul, 542
U. S., at 564. Pp. 41–42.
3. Because the DTA’s procedures for reviewing detainees’ status
are not an adequate and effective substitute for the habeas writ,
MCA §7 operates as an unconstitutional suspension of the writ. Pp.
42–64.
(a) Given its holding that the writ does not run to petitioners, the
D. C. Circuit found it unnecessary to consider whether there was an
adequate substitute for habeas. This Court usually remands for con-
sideration of questions not decided below, but departure from this
rule is appropriate in “exceptional” circumstances, see, e.g., Cooper
Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 169, here, the
grave separation-of-powers issues raised by these cases and the fact
that petitioners have been denied meaningful access to a judicial fo-
rum for years. Pp. 42–44.
(b) Historically, Congress has taken care to avoid suspensions of
the writ. For example, the statutes at issue in the Court’s two lead-
ing cases addressing habeas substitutes, Swain v. Pressley, 430 U. S.
372, and United States v. Hayman, 342 U. S. 205, were attempts to
streamline habeas relief, not to cut it back. Those cases provide little
guidance here because, inter alia, the statutes in question gave the
courts broad remedial powers to secure the historic office of the writ,
and included saving clauses to preserve habeas review as an avenue
of last resort. In contrast, Congress intended the DTA and the MCA
to circumscribe habeas review, as is evident from the unequivocal na-
ture of MCA §7’s jurisdiction-stripping language, from the DTA’s text
limiting the Court of Appeals’ jurisdiction to assessing whether the
CSRT complied with the “standards and procedures specified by the
Secretary of Defense,” DTA §1005(e)(2)(C), and from the absence of a
saving clause in either Act. That Congress intended to create a more
limited procedure is also confirmed by the legislative history and by a
comparison of the DTA and the habeas statute that would govern in
MCA §7’s absence, 28 U. S. C. §2241. In §2241, Congress authorized
“any justice” or “circuit judge” to issue the writ, thereby accommodat-
7 Cite as: 553 U. S. ____ (2008)
Syllabus
ing the necessity for factfinding that will arise in some cases by al-
lowing the appellate judge or Justice to transfer the case to a district
court. See §2241(b). However, by granting the D. C. Circuit “exclu-
sive” jurisdiction over petitioners’ cases, see DTA §1005(e)(2)(A),
Congress has foreclosed that option in these cases. Pp. 44–49.
(c) This Court does not endeavor to offer a comprehensive sum-
mary of the requisites for an adequate habeas substitute. It is un-
controversial, however, that the habeas privilege entitles the prisoner
to a meaningful opportunity to demonstrate that he is being held pur-
suant to “the erroneous application or interpretation” of relevant law,
INS v. St. Cyr, 533 U. S. 289, 302, and the habeas court must have
the power to order the conditional release of an individual unlawfully
detained. But more may be required depending on the circum-
stances. Petitioners identify what they see as myriad deficiencies in
the CSRTs, the most relevant being the constraints upon the de-
tainee’s ability to rebut the factual basis for the Government’s asser-
tion that he is an enemy combatant. At the CSRT stage the detainee
has limited means to find or present evidence to challenge the Gov-
ernment’s case, does not have the assistance of counsel, and may not
be aware of the most critical allegations that the Government relied
upon to order his detention. His opportunity to confront witnesses is
likely to be more theoretical than real, given that there are no limits
on the admission of hearsay. The Court therefore agrees with peti-
tioners that there is considerable risk of error in the tribunal’s find-
ings of fact. And given that the consequence of error may be deten-
tion for the duration of hostilities that may last a generation or more,
the risk is too significant to ignore. Accordingly, for the habeas writ,
or its substitute, to function as an effective and meaningful remedy in
this context, the court conducting the collateral proceeding must have
some ability to correct any errors, to assess the sufficiency of the
Government’s evidence, and to admit and consider relevant exculpa-
tory evidence that was not introduced during the earlier proceeding.
In re Yamashita, 327 U. S. 1, 5, 8, and Ex parte Quirin, 317 U. S. 1,
23–25, distinguished. Pp. 49–57.
(d) Petitioners have met their burden of establishing that the
DTA review process is, on its face, an inadequate substitute for ha-
beas. Among the constitutional infirmities from which the DTA po-
tentially suffers are the absence of provisions allowing petitioners to
challenge the President’s authority under the AUMF to detain them
indefinitely, to contest the CSRT’s findings of fact, to supplement the
record on review with exculpatory evidence discovered after the
CSRT proceedings, and to request release. The statute cannot be
read to contain each of these constitutionally required procedures.
MCA §7 thus effects an unconstitutional suspension of the writ.
8 BOUMEDIENE v. BUSH
Syllabus
There is no jurisdictional bar to the District Court’s entertaining pe-
titioners’ claims. Pp. 57–64.
4. Nor are there prudential barriers to habeas review. Pp. 64–70.
(a) Petitioners need not seek review of their CSRT determina-
tions in the D. C. Circuit before proceeding with their habeas actions
in the District Court. If these cases involved detainees held for only a
short time while awaiting their CSRT determinations, or were it
probable that the Court of Appeals could complete a prompt review of
their applications, the case for requiring temporary abstention or ex-
haustion of alternative remedies would be much stronger. But these
qualifications no longer pertain here. In some instances six years
have elapsed without the judicial oversight that habeas corpus or an
adequate substitute demands. To require these detainees to pursue
the limited structure of DTA review before proceeding with habeas
actions would be to require additional months, if not years, of delay.
This holding should not be read to imply that a habeas court should
intervene the moment an enemy combatant steps foot in a territory
where the writ runs. Except in cases of undue delay, such as the pre-
sent, federal courts should refrain from entertaining an enemy com-
batant’s habeas petition at least until after the CSRT has had a
chance to review his status. Pp. 64–67.
(b) In effectuating today’s holding, certain accommodations—
including channeling future cases to a single district court and re-
quiring that court to use its discretion to accommodate to the greatest
extent possible the Government’s legitimate interest in protecting
sources and intelligence gathering methods—should be made to re-
duce the burden habeas proceedings will place on the military, with-
out impermissibly diluting the writ’s protections. Pp. 67–68.
5. In considering both the procedural and substantive standards
used to impose detention to prevent acts of terrorism, the courts must
accord proper deference to the political branches. However, security
subsists, too, in fidelity to freedom’s first principles, chief among
them being freedom from arbitrary and unlawful restraint and the
personal liberty that is secured by adherence to the separation of
powers. Pp. 68–70.
476 F. 3d 981, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which STEVENS,
SOUTER, GINSBURG, and BREYER, JJ., joined. SOUTER, J., filed a concur-
ring opinion, in which GINSBURG and BREYER, JJ., joined. ROBERTS,
C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO,
JJ., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS,
C. J., and THOMAS and ALITO, JJ., joined.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
JUSTICE KENNEDY delivered the opinion of the Court.
Petitioners are aliens designated as enemy combatants
and detained at the United States Naval Station at Guan
tanamo Bay, Cuba. There are others detained there, also
aliens, who are not parties to this suit.
Petitioners present a question not resolved by our ear
lier cases relating to the detention of aliens at Guan
tanamo: whether they have the constitutional privilege of
habeas corpus, a privilege not to be withdrawn except in
conformance with the Suspension Clause, Art. I, §9, cl. 2.
We hold these petitioners do have the habeas corpus
privilege. Congress has enacted a statute, the Detainee
Treatment Act of 2005 (DTA), 119 Stat. 2739, that pro
2 BOUMEDIENE v. BUSH
Opinion of the Court
vides certain procedures for review of the detainees’
status. We hold that those procedures are not an ade
quate and effective substitute for habeas corpus. There
fore §7 of the Military Commissions Act of 2006 (MCA), 28
U. S. C. A. §2241(e) (Supp. 2007), operates as an unconsti
tutional suspension of the writ. We do not address
whether the President has authority to detain these peti
tioners nor do we hold that the writ must issue. These
and other questions regarding the legality of the detention
are to be resolved in the first instance by the District
Court.
I
Under the Authorization for Use of Military Force
(AUMF), §2(a), 115 Stat. 224, note following 50 U. S. C.
§1541 (2000 ed., Supp. V), the President is authorized “to
use all necessary and appropriate force against those
nations, organizations, or persons he determines planned,
authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001, or harbored such organi
zations or persons, in order to prevent any future acts of
international terrorism against the United States by such
nations, organizations or persons.”
In Hamdi v. Rumsfeld, 542 U. S. 507 (2004), five Mem
bers of the Court recognized that detention of individuals
who fought against the United States in Afghanistan “for
the duration of the particular conflict in which they were
captured, is so fundamental and accepted an incident to
war as to be an exercise of the ‘necessary and appropriate
force’ Congress has authorized the President to use.” Id.,
at 518 (plurality opinion of O’Connor, J.), id., at 588–589
(THOMAS, J., dissenting). After Hamdi, the Deputy Secre
tary of Defense established Combatant Status Review
Tribunals (CSRTs) to determine whether individuals
detained at Guantanamo were “enemy combatants,” as the
Department defines that term. See App. to Pet. for Cert.
3 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
in No. 06–1195, p. 81a. A later memorandum established
procedures to implement the CSRTs. See App. to Pet. for
Cert. in No. 06–1196, p. 147. The Government maintains
these procedures were designed to comply with the due
process requirements identified by the plurality in Hamdi.
See Brief for Respondents 10.
Interpreting the AUMF, the Department of Defense
ordered the detention of these petitioners, and they were
transferred to Guantanamo. Some of these individuals
were apprehended on the battlefield in Afghanistan, oth
ers in places as far away from there as Bosnia and Gam
bia. All are foreign nationals, but none is a citizen of a
nation now at war with the United States. Each denies he
is a member of the al Qaeda terrorist network that carried
out the September 11 attacks or of the Taliban regime
that provided sanctuary for al Qaeda. Each petitioner
appeared before a separate CSRT; was determined to be
an enemy combatant; and has sought a writ of habeas
corpus in the United States District Court for the District
of Columbia.
The first actions commenced in February 2002. The
District Court ordered the cases dismissed for lack of
jurisdiction because the naval station is outside the sover
eign territory of the United States. See Rasul v. Bush, 215
F. Supp. 2d 55 (2002). The Court of Appeals for the Dis
trict of Columbia Circuit affirmed. See Al Odah v. United
States, 321 F. 3d 1134, 1145 (2003). We granted certiorari
and reversed, holding that 28 U. S. C. §2241 extended
statutory habeas corpus jurisdiction to Guantanamo. See
Rasul v. Bush, 542 U. S. 466, 473 (2004). The constitu
tional issue presented in the instant cases was not reached
in Rasul. Id., at 476.
After Rasul, petitioners’ cases were consolidated and
entertained in two separate proceedings. In the first set of
cases, Judge Richard J. Leon granted the Government’s
motion to dismiss, holding that the detainees had no
4 BOUMEDIENE v. BUSH
Opinion of the Court
rights that could be vindicated in a habeas corpus action.
In the second set of cases Judge Joyce Hens Green reached
the opposite conclusion, holding the detainees had rights
under the Due Process Clause of the Fifth Amendment.
See Khalid v. Bush, 355 F. Supp. 2d 311, 314 (DC 2005);
In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443,
464 (DC 2005).
While appeals were pending from the District Court
decisions, Congress passed the DTA. Subsection (e) of
§1005 of the DTA amended 28 U. S. C. §2241 to provide
that “no court, justice, or judge shall have jurisdiction to
hear or consider . . . an application for a writ of habeas
corpus filed by or on behalf of an alien detained by the
Department of Defense at Guantanamo Bay, Cuba.” 119
Stat. 2742. Section 1005 further provides that the Court
of Appeals for the District of Columbia Circuit shall have
“exclusive” jurisdiction to review decisions of the CSRTs.
Ibid.
In Hamdan v. Rumsfeld, 548 U. S. 557, 576–577 (2006),
the Court held this provision did not apply to cases (like
petitioners’) pending when the DTA was enacted. Con
gress responded by passing the MCA, 10 U. S. C. A. §948a
et seq. (Supp. 2007), which again amended §2241. The
text of the statutory amendment is discussed below. See
Part II, infra. (Four Members of the Hamdan majority
noted that “[n]othing prevent[ed] the President from
returning to Congress to seek the authority he believes
necessary.” 548 U. S., at 636 (BREYER, J., concurring).
The authority to which the concurring opinion referred
was the authority to “create military commissions of the
kind at issue” in the case. Ibid. Nothing in that opinion
can be construed as an invitation for Congress to suspend
the writ.)
Petitioners’ cases were consolidated on appeal, and the
parties filed supplemental briefs in light of our decision in
Hamdan. The Court of Appeals’ ruling, 476 F. 3d 981
5 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
(CADC 2007), is the subject of our present review and
today’s decision.
The Court of Appeals concluded that MCA §7 must be
read to strip from it, and all federal courts, jurisdiction to
consider petitioners’ habeas corpus applications, id., at
987; that petitioners are not entitled to the privilege of the
writ or the protections of the Suspension Clause, id., at
990–991; and, as a result, that it was unnecessary to
consider whether Congress provided an adequate and
effective substitute for habeas corpus in the DTA.
We granted certiorari. 551 U. S. ___ (2007).
II
As a threshold matter, we must decide whether MCA §7
denies the federal courts jurisdiction to hear habeas cor
pus actions pending at the time of its enactment. We hold
the statute does deny that jurisdiction, so that, if the
statute is valid, petitioners’ cases must be dismissed.
As amended by the terms of the MCA, 28 U. S. C. A.
§2241(e) (Supp. 2007) now provides:
“(1) No court, justice, or judge shall have jurisdic
tion to hear or consider an application for a writ of
habeas corpus filed by or on behalf of an alien de
tained by the United States who has been deter
mined by the United States to have been properly de
tained as an enemy combatant or is awaiting such
determination.
“(2) Except as provided in [§§1005(e)(2) and (e)(3)
of the DTA] no court, justice, or judge shall have ju
risdiction to hear or consider any other action
against the United States or its agents relating to
any aspect of the detention, transfer, treatment,
trial, or conditions of confinement of an alien who is
or was detained by the United States and has been
determined by the United States to have been prop
erly detained as an enemy combatant or is awaiting
6 BOUMEDIENE v. BUSH
Opinion of the Court
such determination.”
Section 7(b) of the MCA provides the effective date for
the amendment of §2241(e). It states:
“The amendment made by [MCA §7(a)] shall take ef
fect on the date of the enactment of this Act, and shall
apply to all cases, without exception, pending on or af
ter the date of the enactment of this Act which relate
to any aspect of the detention, transfer, treatment,
trial, or conditions of detention of an alien detained by
the United States since September 11, 2001.” 120
Stat. 2636.
There is little doubt that the effective date provision
applies to habeas corpus actions. Those actions, by defini
tion, are cases “which relate to . . . detention.” See Black’s
Law Dictionary 728 (8th ed. 2004) (defining habeas corpus
as “[a] writ employed to bring a person before a court,
most frequently to ensure that the party’s imprisonment
or detention is not illegal”). Petitioners argue, neverthe
less, that MCA §7(b) is not a sufficiently clear statement of
congressional intent to strip the federal courts of jurisdic
tion in pending cases. See Ex parte Yerger, 8 Wall. 85,
102–103 (1869). We disagree.
Their argument is as follows: Section 2241(e)(1) refers to
“a writ of habeas corpus.” The next paragraph,
§2241(e)(2), refers to “any other action . . . relating to any
aspect of the detention, transfer, treatment, trial, or condi
tions of confinement of an alien who . . . [has] been prop
erly detained as an enemy combatant or is awaiting such
determination.” There are two separate paragraphs, the
argument continues, so there must be two distinct classes
of cases. And the effective date subsection, MCA §7(b), it
is said, refers only to the second class of cases, for it
largely repeats the language of §2241(e)(2) by referring to
“cases . . . which relate to any aspect of the detention,
transfer, treatment, trial, or conditions of detention of an
7 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
alien detained by the United States.”
Petitioners’ textual argument would have more force
were it not for the phrase “other action” in §2241(e)(2).
The phrase cannot be understood without referring back
to the paragraph that precedes it, §2241(e)(1), which
explicitly mentions the term “writ of habeas corpus.” The
structure of the two paragraphs implies that habeas ac
tions are a type of action “relating to any aspect of the
detention, transfer, treatment, trial, or conditions of con
finement of an alien who is or was detained . . . as an
enemy combatant.” Pending habeas actions, then, are in
the category of cases subject to the statute’s jurisdictional
bar.
We acknowledge, moreover, the litigation history that
prompted Congress to enact the MCA. In Hamdan the
Court found it unnecessary to address the petitioner’s
Suspension Clause arguments but noted the relevance of
the clear statement rule in deciding whether Congress
intended to reach pending habeas corpus cases. See 548
U. S., at 575 (Congress should “not be presumed to have
effected such denial [of habeas relief] absent an unmis
takably clear statement to the contrary”). This interpre
tive rule facilitates a dialogue between Congress and the
Court. Cf. Hilton v. South Carolina Public Railways
Comm’n, 502 U. S. 197, 206 (1991); H. Hart & A. Sacks,
The Legal Process: Basic Problems in the Making and
Application of Law 1209–1210 (W. Eskridge & P. Frickey
eds. 1994). If the Court invokes a clear statement rule to
advise that certain statutory interpretations are favored
in order to avoid constitutional difficulties, Congress can
make an informed legislative choice either to amend the
statute or to retain its existing text. If Congress amends,
its intent must be respected even if a difficult constitu
tional question is presented. The usual presumption is
that Members of Congress, in accord with their oath of
office, considered the constitutional issue and determined
8 BOUMEDIENE v. BUSH
Opinion of the Court
the amended statute to be a lawful one; and the Judiciary,
in light of that determination, proceeds to its own inde
pendent judgment on the constitutional question when
required to do so in a proper case.
If this ongoing dialogue between and among the
branches of Government is to be respected, we cannot
ignore that the MCA was a direct response to Hamdan’s
holding that the DTA’s jurisdiction-stripping provision
had no application to pending cases. The Court of Appeals
was correct to take note of the legislative history when
construing the statute, see 476 F. 3d, at 986, n. 2 (citing
relevant floor statements); and we agree with its conclu
sion that the MCA deprives the federal courts of jurisdic
tion to entertain the habeas corpus actions now before us.
III
In deciding the constitutional questions now presented
we must determine whether petitioners are barred from
seeking the writ or invoking the protections of the Suspen
sion Clause either because of their status, i.e., petitioners’
designation by the Executive Branch as enemy combat
ants, or their physical location, i.e., their presence at
Guantanamo Bay. The Government contends that non
citizens designated as enemy combatants and detained in
territory located outside our Nation’s borders have no
constitutional rights and no privilege of habeas corpus.
Petitioners contend they do have cognizable constitutional
rights and that Congress, in seeking to eliminate recourse
to habeas corpus as a means to assert those rights, acted
in violation of the Suspension Clause.
We begin with a brief account of the history and origins
of the writ. Our account proceeds from two propositions.
First, protection for the privilege of habeas corpus was one
of the few safeguards of liberty specified in a Constitution
that, at the outset, had no Bill of Rights. In the system
conceived by the Framers the writ had a centrality that
9 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
must inform proper interpretation of the Suspension
Clause. Second, to the extent there were settled prece
dents or legal commentaries in 1789 regarding the extra
territorial scope of the writ or its application to enemy
aliens, those authorities can be instructive for the present
cases.
A
The Framers viewed freedom from unlawful restraint as
a fundamental precept of liberty, and they understood the
writ of habeas corpus as a vital instrument to secure that
freedom. Experience taught, however, that the common-
law writ all too often had been insufficient to guard
against the abuse of monarchial power. That history
counseled the necessity for specific language in the Consti
tution to secure the writ and ensure its place in our legal
system.
Magna Carta decreed that no man would be imprisoned
contrary to the law of the land. Art. 39, in Sources of Our
Liberties 17 (R. Perry & J. Cooper eds. 1959) (“No free
man shall be taken or imprisoned or dispossessed, or
outlawed, or banished, or in any way destroyed, nor will
we go upon him, nor send upon him, except by the legal
judgment of his peers or by the law of the land”). Impor
tant as the principle was, the Barons at Runnymede pre
scribed no specific legal process to enforce it. Holdsworth
tells us, however, that gradually the writ of habeas corpus
became the means by which the promise of Magna Carta
was fulfilled. 9 W. Holdsworth, A History of English Law
112 (1926) (hereinafter Holdsworth).
The development was painstaking, even by the centu
ries-long measures of English constitutional history. The
writ was known and used in some form at least as early as
the reign of Edward I. Id., at 108–125. Yet at the outset
it was used to protect not the rights of citizens but those of
the King and his courts. The early courts were considered
10 BOUMEDIENE v. BUSH
Opinion of the Court
agents of the Crown, designed to assist the King in the
exercise of his power. See J. Baker, An Introduction to
English Legal History 38–39 (4th ed. 2002). Thus the
writ, while it would become part of the foundation of
liberty for the King’s subjects, was in its earliest use a
mechanism for securing compliance with the King’s
laws. See Halliday & White, The Suspension Clause:
English Text, Imperial Contexts, and American Impli
cations, 94 Va. L. Rev. (forthcoming 2008) (hereinafter
Halliday & White) (manuscript, at 11, online at
http://papers.ssrn.com/sol3 /papers.cfm?abstract_id=100
8252 (all Internet materials as visited June 9, 2008, and
available in Clerk of Court’s case file) (noting that “concep
tually the writ arose from a theory of power rather than a
theory of liberty”)). Over time it became clear that by
issuing the writ of habeas corpus common-law courts
sought to enforce the King’s prerogative to inquire into the
authority of a jailer to hold a prisoner. See M. Hale, Pre
rogatives of the King 229 (D. Yale ed. 1976); 2 J. Story,
Commentaries on the Constitution of the United States
§1341, p. 237 (3d ed. 1858) (noting that the writ ran “into
all parts of the king’s dominions; for it is said, that the
king is entitled, at all times, to have an account, why the
liberty of any of his subjects is restrained”).
Even so, from an early date it was understood that the
King, too, was subject to the law. As the writers said of
Magna Carta, “it means this, that the king is and shall be
below the law.” 1 F. Pollock & F. Maitland, History of
English Law 173 (2d ed. 1909); see also 2 Bracton On the
Laws and Customs of England 33 (S. Thorne transl. 1968)
(“The king must not be under man but under God and
under the law, because law makes the king”). And, by the
1600’s, the writ was deemed less an instrument of the
King’s power and more a restraint upon it. See Collings,
Habeas Corpus for Convicts—Constitutional Right or
Legislative Grace, 40 Calif. L. Rev. 335, 336 (1952) (noting
11 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
that by this point the writ was “the appropriate process for
checking illegal imprisonment by public officials”).
Still, the writ proved to be an imperfect check. Even
when the importance of the writ was well understood in
England, habeas relief often was denied by the courts or
suspended by Parliament. Denial or suspension occurred
in times of political unrest, to the anguish of the impris
oned and the outrage of those in sympathy with them.
A notable example from this period was Darnel’s Case, 3
How. St. Tr. 1 (K. B. 1627). The events giving rise to the
case began when, in a display of the Stuart penchant for
authoritarian excess, Charles I demanded that Darnel and
at least four others lend him money. Upon their refusal,
they were imprisoned. The prisoners sought a writ of
habeas corpus; and the King filed a return in the form of a
warrant signed by the Attorney General. Ibid. The court
held this was a sufficient answer and justified the sub
jects’ continued imprisonment. Id., at 59.
There was an immediate outcry of protest. The House of
Commons promptly passed the Petition of Right, 3 Car. 1,
ch. 1 (1627), 5 Statutes of the Realm 23, 24 (reprint 1963),
which condemned executive “imprison[ment] without any
cause” shown, and declared that “no freeman in any such
manner as is before mencioned [shall] be imprisoned or
deteined.” Yet a full legislative response was long de
layed. The King soon began to abuse his authority again,
and Parliament was dissolved. See W. Hall & R. Albion, A
History of England and the British Empire 328 (3d ed.
1953) (hereinafter Hall & Albion). When Parliament
reconvened in 1640, it sought to secure access to the writ
by statute. The Act of 1640, 16 Car. 1, ch. 10, 5 Statutes of
the Realm, at 110, expressly authorized use of the writ to
test the legality of commitment by command or warrant of
the King or the Privy Council. Civil strife and the Inter
regnum soon followed, and not until 1679 did Parliament
try once more to secure the writ, this time through the
12 BOUMEDIENE v. BUSH
Opinion of the Court
Habeas Corpus Act of 1679, 31 Car. 2, ch. 2, id., at 935.
The Act, which later would be described by Blackstone as
the “stable bulwark of our liberties,” 1 W. Blackstone,
Commentaries *137 (hereinafter Blackstone), established
procedures for issuing the writ; and it was the model upon
which the habeas statutes of the 13 American Colonies
were based, see Collings, supra, at 338–339.
This history was known to the Framers. It no doubt
confirmed their view that pendular swings to and away
from individual liberty were endemic to undivided, uncon
trolled power. The Framers’ inherent distrust of govern
mental power was the driving force behind the constitu
tional plan that allocated powers among three
independent branches. This design serves not only to
make Government accountable but also to secure individ
ual liberty. See Loving v. United States, 517 U. S. 748,
756 (1996) (noting that “[e]ven before the birth of this
country, separation of powers was known to be a defense
against tyranny”); cf. Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring)
(“[T]he Constitution diffuses power the better to secure
liberty”); Clinton v. City of New York, 524 U. S. 417, 450
(1998) (KENNEDY, J., concurring) (“Liberty is always at
stake when one or more of the branches seek to transgress
the separation of powers”). Because the Constitution’s
separation-of-powers structure, like the substantive guar
antees of the Fifth and Fourteenth Amendments, see Yick
Wo v. Hopkins, 118 U. S. 356, 374 (1886), protects persons
as well as citizens, foreign nationals who have the privi
lege of litigating in our courts can seek to enforce separa
tion-of-powers principles, see, e.g., INS v. Chadha, 462
U. S. 919, 958–959 (1983).
That the Framers considered the writ a vital instrument
for the protection of individual liberty is evident from the
care taken to specify the limited grounds for its suspen
sion: “The Privilege of the Writ of Habeas Corpus shall not
13 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
be suspended, unless when in Cases of Rebellion or Inva
sion the public Safety may require it.” Art. I, §9, cl. 2; see
Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425,
1509, n. 329 (1987) (“[T]he non-suspension clause is the
original Constitution’s most explicit reference to reme
dies”). The word “privilege” was used, perhaps, to avoid
mentioning some rights to the exclusion of others. (In
deed, the only mention of the term “right” in the Constitu
tion, as ratified, is in its clause giving Congress the power
to protect the rights of authors and inventors. See Art. I,
§8, cl. 8.)
Surviving accounts of the ratification debates provide
additional evidence that the Framers deemed the writ to
be an essential mechanism in the separation-of-powers
scheme. In a critical exchange with Patrick Henry at the
Virginia ratifying convention Edmund Randolph referred
to the Suspension Clause as an “exception” to the “power
given to Congress to regulate courts.” See 3 Debates in
the Several State Conventions on the Adoption of the
Federal Constitution 460–464 (J. Elliot 2d ed. 1876) (here
inafter Elliot’s Debates). A resolution passed by the New
York ratifying convention made clear its understanding
that the Clause not only protects against arbitrary sus
pensions of the writ but also guarantees an affirmative
right to judicial inquiry into the causes of detention. See
Resolution of the New York Ratifying Convention (July 26,
1788), in 1 Elliot’s Debates 328 (noting the convention’s
understanding “[t]hat every person restrained of his lib
erty is entitled to an inquiry into the lawfulness of such
restraint, and to a removal thereof if unlawful; and that
such inquiry or removal ought not to be denied or delayed,
except when, on account of public danger, the Congress
shall suspend the privilege of the writ of habeas corpus”).
Alexander Hamilton likewise explained that by providing
the detainee a judicial forum to challenge detention, the
writ preserves limited government. As he explained in
14 BOUMEDIENE v. BUSH
Opinion of the Court
The Federalist No. 84:
“[T]he practice of arbitrary imprisonments, have been,
in all ages, the favorite and most formidable instru
ments of tyranny. The observations of the judicious
Blackstone . . . are well worthy of recital: ‘To bereave
a man of life . . . or by violence to confiscate his estate,
without accusation or trial, would be so gross and no
torious an act of despotism as must at once convey the
alarm of tyranny throughout the whole nation; but
confinement of the person, by secretly hurrying him to
jail, where his sufferings are unknown or forgotten, is
a less public, a less striking, and therefore a more
dangerous engine of arbitrary government.’ And as a
remedy for this fatal evil he is everywhere peculiarly
emphatical in his encomiums on the habeas corpus
act, which in one place he calls ‘the BULWARK of the
British Constitution.’” C. Rossiter ed., p. 512 (1961)
(quoting 1 Blackstone *136, 4 id., at *438).
Post-1789 habeas developments in England, though not
bearing upon the Framers’ intent, do verify their foresight.
Those later events would underscore the need for struc
tural barriers against arbitrary suspensions of the writ.
Just as the writ had been vulnerable to executive and
parliamentary encroachment on both sides of the Atlantic
before the American Revolution, despite the Habeas Cor
pus Act of 1679, the writ was suspended with frequency in
England during times of political unrest after 1789. Par
liament suspended the writ for much of the period from
1792 to 1801, resulting in rampant arbitrary imprison
ment. See Hall & Albion 550. Even as late as World War
I, at least one prominent English jurist complained that
the Defence of the Realm Act, 1914, 4 & 5 Geo. 5, ch.
29(1)(a), effectively had suspended the privilege of habeas
corpus for any person suspected of “communicating with
the enemy.” See King v. Halliday, [1917] A. C. 260, 299
15 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
(Lord Shaw, dissenting); see generally A. Simpson, In the
Highest Degree Odious: Detention Without Trial in War
time Britain 6–7, 24–25 (1992).
In our own system the Suspension Clause is designed to
protect against these cyclical abuses. The Clause protects
the rights of the detained by a means consistent with the
essential design of the Constitution. It ensures that,
except during periods of formal suspension, the Judiciary
will have a time-tested device, the writ, to maintain the
“delicate balance of governance” that is itself the surest
safeguard of liberty. See Hamdi, 542 U. S., at 536 (plural
ity opinion). The Clause protects the rights of the de
tained by affirming the duty and authority of the Judici
ary to call the jailer to account. See Preiser v. Rodriguez,
411 U. S. 475, 484 (1973) (“[T]he essence of habeas corpus
is an attack by a person in custody upon the legality of
that custody”); cf. In re Jackson, 15 Mich. 417, 439–440
(1867) (Cooley, J., concurring) (“The important fact to be
observed in regard to the mode of procedure upon this
[habeas] writ is, that it is directed to, and served upon, not
the person confined, but his jailer”). The separation-of
powers doctrine, and the history that influenced its de
sign, therefore must inform the reach and purpose of the
Suspension Clause.
B
The broad historical narrative of the writ and its func
tion is central to our analysis, but we seek guidance as
well from founding-era authorities addressing the specific
question before us: whether foreign nationals, appre
hended and detained in distant countries during a time of
serious threats to our Nation’s security, may assert the
privilege of the writ and seek its protection. The Court
has been careful not to foreclose the possibility that the
protections of the Suspension Clause have expanded along
with post-1789 developments that define the present scope
16 BOUMEDIENE v. BUSH
Opinion of the Court
of the writ. See INS v. St. Cyr, 533 U. S. 289, 300–301
(2001). But the analysis may begin with precedents as of
1789, for the Court has said that “at the absolute mini
mum” the Clause protects the writ as it existed when the
Constitution was drafted and ratified. Id., at 301.
To support their arguments, the parties in these cases
have examined historical sources to construct a view of the
common-law writ as it existed in 1789—as have amici
whose expertise in legal history the Court has relied upon
in the past. See Brief for Legal Historians as Amici Cu-
riae; see also St. Cyr, supra, at 302, n. 16. The Govern
ment argues the common-law writ ran only to those terri
tories over which the Crown was sovereign. See Brief for
Respondents 27. Petitioners argue that jurisdiction fol
lowed the King’s officers. See Brief for Petitioner Boume
diene et al. 11. Diligent search by all parties reveals no
certain conclusions. In none of the cases cited do we find
that a common-law court would or would not have
granted, or refused to hear for lack of jurisdiction, a peti
tion for a writ of habeas corpus brought by a prisoner
deemed an enemy combatant, under a standard like the
one the Department of Defense has used in these cases,
and when held in a territory, like Guantanamo, over
which the Government has total military and civil control.
We know that at common law a petitioner’s status as an
alien was not a categorical bar to habeas corpus relief.
See, e.g., Sommersett’s Case, 20 How. St. Tr. 1, 80–82
(1772) (ordering an African slave freed upon finding the
custodian’s return insufficient); see generally Khera v.
Secretary of State for the Home Dept., [1984] A. C. 74, 111
(“Habeas corpus protection is often expressed as limited to
‘British subjects.’ Is it really limited to British nationals?
Suffice it to say that the case law has given an emphatic
‘no’ to the question”). We know as well that common-law
courts entertained habeas petitions brought by enemy
aliens detained in England—“entertained” at least in the
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sense that the courts held hearings to determine the
threshold question of entitlement to the writ. See Case of
Three Spanish Sailors, 2 Black. W. 1324, 96 Eng. Rep. 775
(C. P. 1779); King v. Schiever, 2 Burr. 765, 97 Eng. Rep.
551 (K. B. 1759); Du Castro’s Case, Fort. 195, 92 Eng. Rep.
816 (K. B. 1697).
In Schiever and the Spanish Sailors’ case, the courts
denied relief to the petitioners. Whether the holdings in
these cases were jurisdictional or based upon the courts’
ruling that the petitioners were detained lawfully as
prisoners of war is unclear. See Spanish Sailors, supra, at
1324, 96 Eng. Rep., at 776; Schiever, supra, at 766, 97
Eng. Rep., at 552. In Du Castro’s Case, the court granted
relief, but that case is not analogous to petitioners’ be
cause the prisoner there appears to have been detained in
England. See Halliday & White 27, n. 72. To the extent
these authorities suggest the common-law courts ab
stained altogether from matters involving prisoners of
war, there was greater justification for doing so in the
context of declared wars with other nation states. Judicial
intervention might have complicated the military’s ability
to negotiate exchange of prisoners with the enemy, a
wartime practice well known to the Framers. See Resolu
tion of Mar. 30, 1778, 10 Journals of the Continental
Congress 1774–1789, p. 295 (W. Ford ed. 1908) (directing
General Washington not to exchange prisoners with the
British unless the enemy agreed to exempt citizens from
capture).
We find the evidence as to the geographic scope of the
writ at common law informative, but, again, not disposi
tive. Petitioners argue the site of their detention is analo
gous to two territories outside of England to which the
writ did run: the so-called “exempt jurisdictions,” like the
Channel Islands; and (in former times) India. There are
critical differences between these places and Guantanamo,
however.
18 BOUMEDIENE v. BUSH
Opinion of the Court
As the Court noted in Rasul, 542 U. S., at 481–482, and
nn. 11–12, common-law courts granted habeas corpus
relief to prisoners detained in the exempt jurisdictions.
But these areas, while not in theory part of the realm of
England, were nonetheless under the Crown’s control. See
2 H. Hallam, Constitutional History of England: From the
Accession of Henry VII to the Death of George II, pp. 232–
233 (reprint 1989). And there is some indication that
these jurisdictions were considered sovereign territory.
King v. Cowle, 2 Burr. 834, 854, 855, 97 Eng. Rep. 587,
599 (K. B. 1759) (describing one of the exempt jurisdic
tions, Berwick-upon-Tweed, as under the “sovereign juris
diction” and “subjection of the Crown of England”). Be
cause the United States does not maintain formal
sovereignty over Guantanamo Bay, see Part IV, infra, the
naval station there and the exempt jurisdictions discussed
in the English authorities are not similarly situated.
Petitioners and their amici further rely on cases in
which British courts in India granted writs of habeas
corpus to noncitizens detained in territory over which the
Moghul Emperor retained formal sovereignty and control.
See supra, at 12–13; Brief for Legal Historians as Amici
Curiae 12–13. The analogy to the present cases breaks
down, however, because of the geographic location of the
courts in the Indian example. The Supreme Court of
Judicature (the British Court) sat in Calcutta; but no
federal court sits at Guantanamo. The Supreme Court of
Judicature was, moreover, a special court set up by Par
liament to monitor certain conduct during the British Raj.
See Regulating Act of 1773, 13 Geo. 3, §§13–14. That it
had the power to issue the writ in nonsovereign territory
does not prove that common-law courts sitting in England
had the same power. If petitioners were to have the better
of the argument on this point, we would need some dem
onstration of a consistent practice of common-law courts
sitting in England and entertaining petitions brought by
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Opinion of the Court
alien prisoners detained abroad. We find little support for
this conclusion.
The Government argues, in turn, that Guantanamo is
more closely analogous to Scotland and Hanover, territo
ries that were not part of England but nonetheless con
trolled by the English monarch (in his separate capacities
as King of Scotland and Elector of Hanover). See Cowle, 2
Burr., at 856, 97 Eng. Rep., at 600. Lord Mansfield can be
cited for the proposition that, at the time of the founding,
English courts lacked the “power” to issue the writ to
Scotland and Hanover, territories Lord Mansfield referred
to as “foreign.” Ibid. But what matters for our purposes is
why common-law courts lacked this power. Given the
English Crown’s delicate and complicated relationships
with Scotland and Hanover in the 1700’s, we cannot disre
gard the possibility that the common-law courts’ refusal to
issue the writ to these places was motivated not by formal
legal constructs but by what we would think of as pruden
tial concerns. This appears to have been the case with
regard to other British territories where the writ did not
run. See 2 R. Chambers, A Course of Lectures on English
Law 1767–1773, p. 8 (T. Curley ed. 1986) (quoting the
view of Lord Mansfield in Cowle that “[n]otwithstanding
the power which the judges have, yet where they cannot
judge of the cause, or give relief upon it, they would not
think proper to interpose; and therefore in the case of
imprisonments in Guernsey, Jersey, Minorca, or the plan-
tations, the most usual way is to complain to the king in
Council” (internal quotation marks omitted)). And after
the Act of Union in 1707, through which the kingdoms of
England and Scotland were merged politically, Queen
Anne and her successors, in their new capacity as sover
eign of Great Britain, ruled the entire island as one king
dom. Accordingly, by the time Lord Mansfield penned his
opinion in Cowle in 1759, Scotland was no longer a “for
eign” country vis-à-vis England—at least not in the sense
20 BOUMEDIENE v. BUSH
Opinion of the Court
in which Cuba is a foreign country vis-à-vis the United
States.
Scotland remained “foreign” in Lord Mansfield’s day in
at least one important respect, however. Even after the
Act of Union, Scotland (like Hanover) continued to main
tain its own laws and court system. See 1 Blackstone *98,
*109. Under these circumstances prudential considera
tions would have weighed heavily when courts sitting in
England received habeas petitions from Scotland or the
Electorate. Common-law decisions withholding the writ
from prisoners detained in these places easily could be
explained as efforts to avoid either or both of two embar
rassments: conflict with the judgments of another court of
competent jurisdiction; or the practical inability, by reason
of distance, of the English courts to enforce their judg
ments outside their territorial jurisdiction. Cf. Munaf v.
Geren, ante, at 15 (opinion of the Court) (recognizing that
“‘prudential concerns’ . . . such as comity and the orderly
administration of criminal justice” affect the appropriate
exercise of habeas jurisdiction).
By the mid-19th century, British courts could issue the
writ to Canada, notwithstanding the fact that Canadian
courts also had the power to do so. See 9 Holdsworth 124
(citing Ex parte Anderson, 3 El. and El. 487 (1861)). This
might be seen as evidence that the existence of a separate
court system was no barrier to the running of the common-
law writ. The Canada of the 1800’s, however, was in
many respects more analogous to the exempt jurisdictions
or to Ireland, where the writ ran, than to Scotland or
Hanover in the 1700’s, where it did not. Unlike Scotland
and Hanover, Canada followed English law. See B.
Laskin, The British Tradition in Canadian Law 50–51
(1969).
In the end a categorical or formal conception of sover
eignty does not provide a comprehensive or altogether
satisfactory explanation for the general understanding
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Opinion of the Court
that prevailed when Lord Mansfield considered issuance of
the writ outside England. In 1759 the writ did not run to
Scotland but did run to Ireland, even though, at that
point, Scotland and England had merged under the rule of
a single sovereign, whereas the Crowns of Great Britain
and Ireland remained separate (at least in theory). See
Cowle, supra, at 856–857, 97 Eng. Rep., 600; 1 Blackstone
*100–101. But there was at least one major difference
between Scotland’s and Ireland’s relationship with Eng
land during this period that might explain why the writ
ran to Ireland but not to Scotland. English law did not
generally apply in Scotland (even after the Act of Union)
but it did apply in Ireland. Blackstone put it as follows:
“[A]s Scotland and England are now one and the same
kingdom, and yet differ in their municipal laws; so Eng
land and Ireland are, on the other hand, distinct king
doms, and yet in general agree in their laws.” Id., at *100.
This distinction, and not formal notions of sovereignty,
may well explain why the writ did not run to Scotland
(and Hanover) but would run to Ireland.
The prudential barriers that may have prevented the
English courts from issuing the writ to Scotland and
Hanover are not relevant here. We have no reason to
believe an order from a federal court would be disobeyed
at Guantanamo. No Cuban court has jurisdiction to hear
these petitioners’ claims, and no law other than the laws
of the United States applies at the naval station. The
modern-day relations between the United States and
Guantanamo thus differ in important respects from the
18th-century relations between England and the kingdoms
of Scotland and Hanover. This is reason enough for us to
discount the relevance of the Government’s analogy.
Each side in the present matter argues that the very
lack of a precedent on point supports its position. The
Government points out there is no evidence that a court
sitting in England granted habeas relief to an enemy alien
22 BOUMEDIENE v. BUSH
Opinion of the Court
detained abroad; petitioners respond there is no evidence
that a court refused to do so for lack of jurisdiction.
Both arguments are premised, however, upon the as
sumption that the historical record is complete and that
the common law, if properly understood, yields a definite
answer to the questions before us. There are reasons to
doubt both assumptions. Recent scholarship points to the
inherent shortcomings in the historical record. See Halli
day & White 14–15 (noting that most reports of 18th
century habeas proceedings were not printed). And given
the unique status of Guantanamo Bay and the particular
dangers of terrorism in the modern age, the common-law
courts simply may not have confronted cases with close
parallels to this one. We decline, therefore, to infer too
much, one way or the other, from the lack of historical
evidence on point. Cf. Brown v. Board of Education, 347
U. S. 483, 489 (1954) (noting evidence concerning the
circumstances surrounding the adoption of the Fourteenth
Amendment, discussed in the parties’ briefs and uncov
ered through the Court’s own investigation, “convince us
that, although these sources cast some light, it is not
enough to resolve the problem with which we are faced.
At best, they are inconclusive”); Reid v. Covert, 354 U. S.
1, 64 (1957) (Frankfurter, J., concurring in result) (argu
ing constitutional adjudication should not be based upon
evidence that is “too episodic, too meager, to form a solid
basis in history, preceding and contemporaneous with the
framing of the Constitution”).
IV
Drawing from its position that at common law the writ
ran only to territories over which the Crown was sover
eign, the Government says the Suspension Clause affords
petitioners no rights because the United States does not
claim sovereignty over the place of detention.
Guantanamo Bay is not formally part of the United
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Opinion of the Court
States. See DTA §1005(g), 119 Stat. 2743. And under the
terms of the lease between the United States and Cuba,
Cuba retains “ultimate sovereignty” over the territory
while the United States exercises “complete jurisdiction
and control.” See Lease of Lands for Coaling and Naval
Stations, Feb. 23, 1903, U. S.-Cuba, Art. III, T. S. No. 418
(hereinafter 1903 Lease Agreement); Rasul, 542 U. S., at
471. Under the terms of the 1934 Treaty, however, Cuba
effectively has no rights as a sovereign until the parties
agree to modification of the 1903 Lease Agreement or the
United States abandons the base. See Treaty Defining
Relations with Cuba, May 29, 1934, U. S.-Cuba, Art. III,
48 Stat. 1683, T. S. No. 866.
The United States contends, nevertheless, that Guan
tanamo is not within its sovereign control. This was the
Government’s position well before the events of September
11, 2001. See, e.g., Brief for Petitioners in Sale v. Haitian
Centers Council, Inc., O. T. 1992, No. 92–344, p. 31 (argu
ing that Guantanamo is territory “outside the United
States”). And in other contexts the Court has held that
questions of sovereignty are for the political branches to
decide. See Vermilya-Brown Co. v. Connell, 335 U. S. 377,
380 (1948) (“[D]etermination of sovereignty over an area is
for the legislative and executive departments”); see also
Jones v. United States, 137 U. S. 202 (1890); Williams v.
Suffolk Ins. Co., 13 Pet. 415, 420 (1839). Even if this were
a treaty interpretation case that did not involve a political
question, the President’s construction of the lease agree
ment would be entitled to great respect. See Sumitomo
Shoji America, Inc. v. Avagliano, 457 U. S. 176, 184–185
(1982).
We therefore do not question the Government’s position
that Cuba, not the United States, maintains sovereignty,
in the legal and technical sense of the term, over Guan
tanamo Bay. But this does not end the analysis. Our
cases do not hold it is improper for us to inquire into the
24 BOUMEDIENE v. BUSH
Opinion of the Court
objective degree of control the Nation asserts over foreign
territory. As commentators have noted, “‘[s]overeignty’ is
a term used in many senses and is much abused.” See 1
Restatement (Third) of Foreign Relations Law of the
United States §206, Comment b, p. 94 (1986). When we
have stated that sovereignty is a political question, we
have referred not to sovereignty in the general, colloquial
sense, meaning the exercise of dominion or power, see
Webster’s New International Dictionary 2406 (2d ed.
1934) (“sovereignty,” definition 3), but sovereignty in the
narrow, legal sense of the term, meaning a claim of right,
see 1 Restatement (Third) of Foreign Relations, supra,
§206, Comment b, at 94 (noting that sovereignty “implies
a state’s lawful control over its territory generally to the
exclusion of other states, authority to govern in that terri
tory, and authority to apply law there”). Indeed, it is not
altogether uncommon for a territory to be under the de
jure sovereignty of one nation, while under the plenary
control, or practical sovereignty, of another. This condi
tion can occur when the territory is seized during war, as
Guantanamo was during the Spanish-American War. See,
e.g., Fleming v. Page, 9 How. 603, 614 (1850) (noting that
the port of Tampico, conquered by the United States dur
ing the war with Mexico, was “undoubtedly . . . subject to
the sovereignty and dominion of the United States,” but
that it “does not follow that it was a part of the United
States, or that it ceased to be a foreign country”); King v.
Earl of Crewe ex parte Sekgome, [1910] 2 K. B. 576, 603–
604 (C. A.) (opinion of Williams, L. J.) (arguing that the
Bechuanaland Protectorate in South Africa was “under
His Majesty’s dominion in the sense of power and jurisdic
tion, but is not under his dominion in the sense of territo
rial dominion”). Accordingly, for purposes of our analysis,
we accept the Government’s position that Cuba, and not
the United States, retains de jure sovereignty over Guan
tanamo Bay. As we did in Rasul, however, we take notice
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Opinion of the Court
of the obvious and uncontested fact that the United States,
by virtue of its complete jurisdiction and control over the
base, maintains de facto sovereignty over this territory.
See 542 U. S., at 480; id., at 487 (KENNEDY, J., concurring
in judgment).
Were we to hold that the present cases turn on the
political question doctrine, we would be required first to
accept the Government’s premise that de jure sovereignty
is the touchstone of habeas corpus jurisdiction. This
premise, however, is unfounded. For the reasons indi
cated above, the history of common-law habeas corpus
provides scant support for this proposition; and, for the
reasons indicated below, that position would be inconsis
tent with our precedents and contrary to fundamental
separation-of-powers principles.
A
The Court has discussed the issue of the Constitution’s
extraterritorial application on many occasions. These
decisions undermine the Government’s argument that, at
least as applied to noncitizens, the Constitution necessar
ily stops where de jure sovereignty ends.
The Framers foresaw that the United States would
expand and acquire new territories. See American Ins. Co.
v. 356 Bales of Cotton, 1 Pet. 511, 542 (1828). Article IV,
§3, cl. 1, grants Congress the power to admit new States.
Clause 2 of the same section grants Congress the “Power
to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the
United States.” Save for a few notable (and notorious)
exceptions, e.g., Dred Scott v. Sandford, 19 How. 393
(1857), throughout most of our history there was little
need to explore the outer boundaries of the Constitution’s
geographic reach. When Congress exercised its power to
create new territories, it guaranteed constitutional protec
tions to the inhabitants by statute. See, e.g., An Act: to
26 BOUMEDIENE v. BUSH
Opinion of the Court
establish a Territorial Government for Utah, 9 Stat. 458
(“[T]he Constitution and laws of the United States are
hereby extended over and declared to be in force in said
Territory of Utah”); Rev. Stat. §1891 (“The Constitution
and all laws of the United States which are not locally
inapplicable shall have the same force and effect within all
the organized Territories, and in every Territory hereafter
organized as elsewhere within the United States”); see
generally Burnett, Untied States: American Expansion
and Territorial Deannexation, 72 U. Chi. L. Rev. 797, 825–
827 (2005). In particular, there was no need to test the
limits of the Suspension Clause because, as early as 1789,
Congress extended the writ to the Territories. See Act of
Aug. 7, 1789, 1 Stat. 52 (reaffirming Art. II of Northwest
Ordinance of 1787, which provided that “[t]he inhabitants
of the said territory, shall always be entitled to the bene
fits of the writ of habeas corpus”).
Fundamental questions regarding the Constitution’s
geographic scope first arose at the dawn of the 20th cen
tury when the Nation acquired noncontiguous Territories:
Puerto Rico, Guam, and the Philippines—ceded to the
United States by Spain at the conclusion of the Spanish-
American War—and Hawaii—annexed by the United
States in 1898. At this point Congress chose to discon
tinue its previous practice of extending constitutional
rights to the territories by statute. See, e.g., An Act Tem
porarily to provide for the administration of the affairs of
civil government in the Philippine Islands, and for other
purposes, 32 Stat. 692 (noting that Rev. Stat. §1891 did
not apply to the Philippines).
In a series of opinions later known as the Insular Cases,
the Court addressed whether the Constitution, by its own
force, applies in any territory that is not a State. See De
Lima v. Bidwell, 182 U. S. 1 (1901); Dooley v. United
States, 182 U. S. 222 (1901); Armstrong v. United States,
182 U. S. 243 (1901); Downes v. Bidwell, 182 U. S. 244
27 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
(1901); Hawaii v. Mankichi, 190 U. S. 197 (1903); Dorr v.
United States, 195 U. S. 138 (1904). The Court held that
the Constitution has independent force in these territo
ries, a force not contingent upon acts of legislative grace.
Yet it took note of the difficulties inherent in that position.
Prior to their cession to the United States, the former
Spanish colonies operated under a civil-law system, with
out experience in the various aspects of the Anglo-
American legal tradition, for instance the use of grand and
petit juries. At least with regard to the Philippines, a
complete transformation of the prevailing legal culture
would have been not only disruptive but also unnecessary,
as the United States intended to grant independence to
that Territory. See An Act To declare the purpose of the
people of the United States as to the future political status
of the people of the Philippine Islands, and to provide a
more autonomous government for those islands (Jones
Act), 39 Stat. 545 (noting that “it was never the intention
of the people of the United States in the incipiency of the
War with Spain to make it a war of conquest or for territo
rial aggrandizement” and that “it is, as it has always been,
the purpose of the people of the United States to withdraw
their sovereignty over the Philippine Islands and to recog
nize their independence as soon as a stable government
can be established therein”). The Court thus was reluc
tant to risk the uncertainty and instability that could
result from a rule that displaced altogether the existing
legal systems in these newly acquired Territories. See
Downes, supra, at 282 (“It is obvious that in the annexa
tion of outlying and distant possessions grave questions
will arise from differences of race, habits, laws and cus
toms of the people, and from differences of soil, climate
and production . . . ”).
These considerations resulted in the doctrine of territo
rial incorporation, under which the Constitution applies in
full in incorporated Territories surely destined for state
28 BOUMEDIENE v. BUSH
Opinion of the Court
hood but only in part in unincorporated Territories. See
Dorr, supra, at 143 (“Until Congress shall see fit to incor
porate territory ceded by treaty into the United States, . . .
the territory is to be governed under the power existing in
Congress to make laws for such territories and subject to
such constitutional restrictions upon the powers of that
body as are applicable to the situation”); Downes, supra, at
293 (White, J., concurring) (“[T]he determination of what
particular provision of the Constitution is applicable,
generally speaking, in all cases, involves an inquiry into
the situation of the territory and its relations to the
United States”). As the Court later made clear, “the real
issue in the Insular Cases was not whether the Constitu
tion extended to the Philippines or Porto Rico when we
went there, but which of its provisions were applicable by
way of limitation upon the exercise of executive and legis
lative power in dealing with new conditions and require
ments.” Balzac v. Porto Rico, 258 U. S. 298, 312 (1922). It
may well be that over time the ties between the United
States and any of its unincorporated Territories
strengthen in ways that are of constitutional significance.
Cf. Torres v. Puerto Rico, 442 U. S. 465, 475–476 (1979)
(Brennan, J., concurring in judgment) (“Whatever the
validity of the [Insular Cases] in the particular historical
context in which they were decided, those cases are clearly
not authority for questioning the application of the Fourth
Amendment—or any other provision of the Bill of Rights—
to the Commonwealth of Puerto Rico in the 1970’s”). But,
as early as Balzac in 1922, the Court took for granted that
even in unincorporated Territories the Government of the
United States was bound to provide to noncitizen inhabi
tants “guaranties of certain fundamental personal rights
declared in the Constitution.” 258 U. S., at 312; see also
Late Corp. of Church of Jesus Christ of Latter-day Saints
v. United States, 136 U. S. 1, 44 (1890) (“Doubtless Con
gress, in legislating for the Territories would be subject to
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Opinion of the Court
those fundamental limitations in favor of personal rights
which are formulated in the Constitution and its amend
ments”). Yet noting the inherent practical difficulties of
enforcing all constitutional provisions “always and every
where,” Balzac, supra, at 312, the Court devised in the
Insular Cases a doctrine that allowed it to use its power
sparingly and where it would be most needed. This cen
tury-old doctrine informs our analysis in the present
matter.
Practical considerations likewise influenced the Court’s
analysis a half-century later in Reid, 354 U. S. 1. The
petitioners there, spouses of American servicemen, lived
on American military bases in England and Japan. They
were charged with crimes committed in those countries
and tried before military courts, consistent with executive
agreements the United States had entered into with the
British and Japanese governments. Id., at 15–16, and nn.
29–30 (plurality opinion). Because the petitioners were
not themselves military personnel, they argued they were
entitled to trial by jury.
Justice Black, writing for the plurality, contrasted the
cases before him with the Insular Cases, which involved
territories “with wholly dissimilar traditions and institu
tions” that Congress intended to govern only “temporar
ily.” Id., at 14. Justice Frankfurter argued that the “spe
cific circumstances of each particular case” are relevant in
determining the geographic scope of the Constitution. Id.,
at 54 (opinion concurring in result). And Justice Harlan,
who had joined an opinion reaching the opposite result in
the case in the previous Term, Reid v. Covert, 351 U. S.
487 (1956), was most explicit in rejecting a “rigid and
abstract rule” for determining where constitutional guar
antees extend. Reid, 354 U. S., at 74 (opinion concurring
in result). He read the Insular Cases to teach that
whether a constitutional provision has extraterritorial
effect depends upon the “particular circumstances, the
30 BOUMEDIENE v. BUSH
Opinion of the Court
practical necessities, and the possible alternatives which
Congress had before it” and, in particular, whether judi
cial enforcement of the provision would be “impracticable
and anomalous.” Id., at 74–75; see also United States v.
Verdugo-Urquidez, 494 U. S. 259, 277–278 (1990)
(KENNEDY, J., concurring) (applying the “impracticable
and anomalous” extraterritoriality test in the Fourth
Amendment context).
That the petitioners in Reid were American citizens was
a key factor in the case and was central to the plurality’s
conclusion that the Fifth and Sixth Amendments apply to
American civilians tried outside the United States. But
practical considerations, related not to the petitioners’
citizenship but to the place of their confinement and trial,
were relevant to each Member of the Reid majority. And
to Justices Harlan and Frankfurter (whose votes were
necessary to the Court’s disposition) these considerations
were the decisive factors in the case.
Indeed the majority splintered on this very point. The
key disagreement between the plurality and the concur
ring Justices in Reid was over the continued precedential
value of the Court’s previous opinion in In re Ross, 140
U. S. 453 (1891), which the Reid Court understood as
holding that under some circumstances Americans abroad
have no right to indictment and trial by jury. The peti
tioner in Ross was a sailor serving on an American mer
chant vessel in Japanese waters who was tried before an
American consular tribunal for the murder of a fellow
crewman. 140 U. S., at 459, 479. The Ross Court held
that the petitioner, who was a British subject, had no
rights under the Fifth and Sixth Amendments. Id., at 464.
The petitioner’s citizenship played no role in the disposi
tion of the case, however. The Court assumed (consistent
with the maritime custom of the time) that Ross had all
the rights of a similarly situated American citizen. Id., at
479 (noting that Ross was “under the protection and sub
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Opinion of the Court
ject to the laws of the United States equally with the
seaman who was native born”). The Justices in Reid
therefore properly understood Ross as standing for the
proposition that, at least in some circumstances, the jury
provisions of the Fifth and Sixth Amendments have no
application to American citizens tried by American au
thorities abroad. See 354 U. S., at 11–12 (plurality opin
ion) (describing Ross as holding that “constitutional pro
tections applied ‘only to citizens and others within the
United States . . . and not to residents or temporary so
journers abroad’” (quoting Ross, supra, at 464)); 354 U. S.,
at 64 (Frankfurter, J., concurring in result) (noting that
the consular tribunals upheld in Ross “w[ere] based on
long-established custom and they were justified as the
best possible means for securing justice for the few Ameri
cans present in [foreign] countries”); 354 U. S., at 75
(Harlan, J., concurring in result) (“what Ross and the
Insular Cases hold is that the particular local setting, the
practical necessities, and the possible alternatives are
relevant to a question of judgment, namely, whether jury
trial should be deemed a necessary condition of the exer
cise of Congress’ power to provide for the trial of Ameri
cans overseas”).
The Reid plurality doubted that Ross was rightly de
cided, precisely because it believed the opinion was insuf
ficiently protective of the rights of American citizens. See
354 U. S., at 10–12; see also id., at 78 (Clark, J., dissent
ing) (noting that “four of my brothers would specifically
overrule and two would impair the long-recognized vitality
of an old and respected precedent in our law, the case of In
re Ross, 140 U. S. 453 (1891)”). But Justices Harlan and
Frankfurter, while willing to hold that the American
citizen petitioners in the cases before them were entitled
to the protections of Fifth and Sixth Amendments, were
unwilling to overturn Ross. 354 U. S., at 64 (Frankfurter,
J., concurring in result); id., at 75 (Harlan, J., concurring
32 BOUMEDIENE v. BUSH
Opinion of the Court
in result). Instead, the two concurring Justices distin
guished Ross from the cases before them, not on the basis
of the citizenship of the petitioners, but on practical con
siderations that made jury trial a more feasible option for
them than it was for the petitioner in Ross. If citizenship
had been the only relevant factor in the case, it would
have been necessary for the Court to overturn Ross, some
thing Justices Harlan and Frankfurter were unwilling to
do. See Verdugo-Urquidez, supra, at 277 (KENNEDY, J.,
concurring) (noting that Ross had not been overruled).
Practical considerations weighed heavily as well in
Johnson v. Eisentrager, 339 U. S. 763 (1950), where the
Court addressed whether habeas corpus jurisdiction ex
tended to enemy aliens who had been convicted of violat
ing the laws of war. The prisoners were detained at
Landsberg Prison in Germany during the Allied Powers’
postwar occupation. The Court stressed the difficulties of
ordering the Government to produce the prisoners in a
habeas corpus proceeding. It “would require allocation of
shipping space, guarding personnel, billeting and rations”
and would damage the prestige of military commanders at
a sensitive time. Id., at 779. In considering these factors
the Court sought to balance the constraints of military
occupation with constitutional necessities. Id., at 769–
779; see Rasul, 542 U. S., at 475–476 (discussing the
factors relevant to Eisentrager’s constitutional holding);
542 U. S., at 486 (KENNEDY, J., concurring in judgment)
(same).
True, the Court in Eisentrager denied access to the writ,
and it noted the prisoners “at no relevant time were
within any territory over which the United States is sov
ereign, and [that] the scenes of their offense, their capture,
their trial and their punishment were all beyond the
territorial jurisdiction of any court of the United States.”
339 U. S., at 778. The Government seizes upon this lan
guage as proof positive that the Eisentrager Court adopted
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a formalistic, sovereignty-based test for determining the
reach of the Suspension Clause. See Brief for Respon
dents 18–20. We reject this reading for three reasons.
First, we do not accept the idea that the above-quoted
passage from Eisentrager is the only authoritative lan
guage in the opinion and that all the rest is dicta. The
Court’s further determinations, based on practical consid
erations, were integral to Part II of its opinion and came
before the decision announced its holding. See 339 U. S.,
at 781.
Second, because the United States lacked both de jure
sovereignty and plenary control over Landsberg Prison,
see infra, at 34–35, it is far from clear that the Eisentrager
Court used the term sovereignty only in the narrow tech
nical sense and not to connote the degree of control the
military asserted over the facility. See supra, at 21. The
Justices who decided Eisentrager would have understood
sovereignty as a multifaceted concept. See Black’s Law
Dictionary 1568 (4th ed. 1951) (defining “sovereignty” as
“[t]he supreme, absolute, and uncontrollable power by
which any independent state is governed”; “the interna
tional independence of a state, combined with the right
and power of regulating its internal affairs without foreign
dictation”; and “[t]he power to do everything in a state
without accountability”); Ballentine’s Law Dictionary with
Pronunciations 1216 (2d ed. 1948) (defining “sovereignty”
as “[t]hat public authority which commands in civil soci
ety, and orders and directs what each citizen is to perform
to obtain the end of its institution”). In its principal brief
in Eisentrager, the Government advocated a bright-line
test for determining the scope of the writ, similar to the
one it advocates in these cases. See Brief for Petitioners in
Johnson v. Eisentrager, O. T. 1949, No. 306, pp. 74–75.
Yet the Court mentioned the concept of territorial sover
eignty only twice in its opinion. See Eisentrager, supra, at
778, 780. That the Court devoted a significant portion of
34 BOUMEDIENE v. BUSH
Opinion of the Court
Part II to a discussion of practical barriers to the running
of the writ suggests that the Court was not concerned
exclusively with the formal legal status of Landsberg
Prison but also with the objective degree of control the
United States asserted over it. Even if we assume the
Eisentrager Court considered the United States’ lack of
formal legal sovereignty over Landsberg Prison as the
decisive factor in that case, its holding is not inconsistent
with a functional approach to questions of extraterritorial
ity. The formal legal status of a given territory affects, at
least to some extent, the political branches’ control over
that territory. De jure sovereignty is a factor that bears
upon which constitutional guarantees apply there.
Third, if the Government’s reading of Eisentrager were
correct, the opinion would have marked not only a change
in, but a complete repudiation of, the Insular Cases’ (and
later Reid’s) functional approach to questions of extrater
ritoriality. We cannot accept the Government’s view.
Nothing in Eisentrager says that de jure sovereignty is or
has ever been the only relevant consideration in determin
ing the geographic reach of the Constitution or of habeas
corpus. Were that the case, there would be considerable
tension between Eisentrager, on the one hand, and the
Insular Cases and Reid, on the other. Our cases need not
be read to conflict in this manner. A constricted reading of
Eisentrager overlooks what we see as a common thread
uniting the Insular Cases, Eisentrager, and Reid: the idea
that questions of extraterritoriality turn on objective
factors and practical concerns, not formalism.
B
The Government’s formal sovereignty-based test raises
troubling separation-of-powers concerns as well. The
political history of Guantanamo illustrates the deficiencies
of this approach. The United States has maintained
complete and uninterrupted control of the bay for over 100
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Opinion of the Court
years. At the close of the Spanish-American War, Spain
ceded control over the entire island of Cuba to the United
States and specifically “relinquishe[d] all claim[s] of sover
eignty . . . and title.” See Treaty of Paris, Dec. 10, 1898,
U. S.-Spain, Art. I, 30 Stat. 1755, T. S. No. 343. From the
date the treaty with Spain was signed until the Cuban
Republic was established on May 20, 1902, the United
States governed the territory “in trust” for the benefit of
the Cuban people. Neely v. Henkel, 180 U. S. 109, 120
(1901); H. Thomas, Cuba or The Pursuit of Freedom 436,
460 (1998). And although it recognized, by entering into
the 1903 Lease Agreement, that Cuba retained “ultimate
sovereignty” over Guantanamo, the United States contin
ued to maintain the same plenary control it had enjoyed
since 1898. Yet the Government’s view is that the Consti
tution had no effect there, at least as to noncitizens, be
cause the United States disclaimed sovereignty in the
formal sense of the term. The necessary implication of the
argument is that by surrendering formal sovereignty over
any unincorporated territory to a third party, while at the
same time entering into a lease that grants total control
over the territory back to the United States, it would be
possible for the political branches to govern without legal
constraint.
Our basic charter cannot be contracted away like this.
The Constitution grants Congress and the President the
power to acquire, dispose of, and govern territory, not the
power to decide when and where its terms apply. Even
when the United States acts outside its borders, its powers
are not “absolute and unlimited” but are subject “to such
restrictions as are expressed in the Constitution.” Murphy
v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from ques
tions involving formal sovereignty and territorial govern
ance is one thing. To hold the political branches have the
power to switch the Constitution on or off at will is quite
another. The former position reflects this Court’s recogni
36 BOUMEDIENE v. BUSH
Opinion of the Court
tion that certain matters requiring political judgments are
best left to the political branches. The latter would permit
a striking anomaly in our tripartite system of government,
leading to a regime in which Congress and the President,
not this Court, say “what the law is.” Marbury v. Madi-
son, 1 Cranch 137, 177 (1803).
These concerns have particular bearing upon the Sus
pension Clause question in the cases now before us, for the
writ of habeas corpus is itself an indispensable mechanism
for monitoring the separation of powers. The test for
determining the scope of this provision must not be subject
to manipulation by those whose power it is designed to
restrain.
C
As we recognized in Rasul, 542 U. S., at 476; id., at 487
(KENNEDY, J., concurring in judgment), the outlines of a
framework for determining the reach of the Suspension
Clause are suggested by the factors the Court relied upon
in Eisentrager. In addition to the practical concerns dis
cussed above, the Eisentrager Court found relevant that
each petitioner:
“(a) is an enemy alien; (b) has never been or resided in
the United States; (c) was captured outside of our ter
ritory and there held in military custody as a prisoner
of war; (d) was tried and convicted by a Military
Commission sitting outside the United States; (e) for
offenses against laws of war committed outside the
United States; (f) and is at all times imprisoned out
side the United States.” 339 U. S., at 777.
Based on this language from Eisentrager, and the reason
ing in our other extraterritoriality opinions, we conclude
that at least three factors are relevant in determining the
reach of the Suspension Clause: (1) the citizenship and
status of the detainee and the adequacy of the process
37 Cite as: 553 U. S. ____ (2008)
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through which that status determination was made; (2)
the nature of the sites where apprehension and then
detention took place; and (3) the practical obstacles inher
ent in resolving the prisoner’s entitlement to the writ.
Applying this framework, we note at the onset that the
status of these detainees is a matter of dispute. The peti
tioners, like those in Eisentrager, are not American citi
zens. But the petitioners in Eisentrager did not contest, it
seems, the Court’s assertion that they were “enemy
alien[s].” Ibid. In the instant cases, by contrast, the
detainees deny they are enemy combatants. They have
been afforded some process in CSRT proceedings to de
termine their status; but, unlike in Eisentrager, supra, at
766, there has been no trial by military commission for
violations of the laws of war. The difference is not trivial.
The records from the Eisentrager trials suggest that, well
before the petitioners brought their case to this Court,
there had been a rigorous adversarial process to test the
legality of their detention. The Eisentrager petitioners
were charged by a bill of particulars that made detailed
factual allegations against them. See 14 United Nations
War Crimes Commission, Law Reports of Trials of War
Criminals 8–10 (1949) (reprint 1997). To rebut the accu
sations, they were entitled to representation by counsel,
allowed to introduce evidence on their own behalf, and
permitted to cross-examine the prosecution’s witnesses.
See Memorandum by Command of Lt. Gen. Wedemeyer,
Jan. 21, 1946 (establishing “Regulations Governing the
Trial of War Criminals” in the China Theater), in Tr. of
Record in Johnson v. Eisentrager, O. T. 1949, No. 306, pp.
34–40.
In comparison the procedural protections afforded to the
detainees in the CSRT hearings are far more limited, and,
we conclude, fall well short of the procedures and adver
sarial mechanisms that would eliminate the need for
habeas corpus review. Although the detainee is assigned a
38 BOUMEDIENE v. BUSH
Opinion of the Court
“Personal Representative” to assist him during CSRT
proceedings, the Secretary of the Navy’s memorandum
makes clear that person is not the detainee’s lawyer or
even his “advocate.” See App. to Pet. for Cert. in No. 06–
1196, at 155, 172. The Government’s evidence is accorded
a presumption of validity. Id., at 159. The detainee is
allowed to present “reasonably available” evidence, id., at
155, but his ability to rebut the Government’s evidence
against him is limited by the circumstances of his con
finement and his lack of counsel at this stage. And al
though the detainee can seek review of his status deter
mination in the Court of Appeals, that review process
cannot cure all defects in the earlier proceedings. See Part
V, infra.
As to the second factor relevant to this analysis, the
detainees here are similarly situated to the Eisentrager
petitioners in that the sites of their apprehension and
detention are technically outside the sovereign territory of
the United States. As noted earlier, this is a factor that
weighs against finding they have rights under the Sus
pension Clause. But there are critical differences between
Landsberg Prison, circa 1950, and the United States Na
val Station at Guantanamo Bay in 2008. Unlike its pre
sent control over the naval station, the United States’
control over the prison in Germany was neither absolute
nor indefinite. Like all parts of occupied Germany, the
prison was under the jurisdiction of the combined Allied
Forces. See Declaration Regarding the Defeat of Germany
and the Assumption of Supreme Authority with Respect to
Germany, June 5, 1945, U. S.-U. S. S. R.-U. K.-Fr., 60
Stat. 1649, T. I. A. S. No. 1520. The United States was
therefore answerable to its Allies for all activities occur
ring there. Cf. Hirota v. MacArthur, 338 U. S. 197, 198
(1948) (per curiam) (military tribunal set up by Gen.
Douglas MacArthur, acting as “the agent of the Allied
Powers,” was not a “tribunal of the United States”). The
39 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
Allies had not planned a long-term occupation of Ger
many, nor did they intend to displace all German institu
tions even during the period of occupation. See Agree
ments Respecting Basic Principles for Merger of the Three
Western German Zones of Occupation, and Other Matters,
Apr. 8, 1949, U. S.-U. K.-Fr., Art. 1, 63 Stat. 2819,
T. I. A. S. No. 2066 (establishing a governing framework
“[d]uring the period in which it is necessary that the occu
pation continue” and expressing the desire “that the Ger
man people shall enjoy self-government to the maximum
possible degree consistent with such occupation”). The
Court’s holding in Eisentrager was thus consistent with
the Insular Cases, where it had held there was no need to
extend full constitutional protections to territories the
United States did not intend to govern indefinitely. Guan
tanamo Bay, on the other hand, is no transient possession.
In every practical sense Guantanamo is not abroad; it is
within the constant jurisdiction of the United States. See
Rasul, 542 U. S., at 480; id., at 487 (KENNEDY, J., concur
ring in judgment).
As to the third factor, we recognize, as the Court did in
Eisentrager, that there are costs to holding the Suspension
Clause applicable in a case of military detention abroad.
Habeas corpus proceedings may require expenditure of
funds by the Government and may divert the attention of
military personnel from other pressing tasks. While we
are sensitive to these concerns, we do not find them dispo
sitive. Compliance with any judicial process requires
some incremental expenditure of resources. Yet civilian
courts and the Armed Forces have functioned along side
each other at various points in our history. See, e.g.,
Duncan v. Kahanamoku, 327 U. S. 304 (1946); Ex parte
Milligan, 4 Wall. 2 (1866). The Government presents no
credible arguments that the military mission at Guan
tanamo would be compromised if habeas corpus courts had
jurisdiction to hear the detainees’ claims. And in light of
40 BOUMEDIENE v. BUSH
Opinion of the Court
the plenary control the United States asserts over the
base, none are apparent to us.
The situation in Eisentrager was far different, given the
historical context and nature of the military’s mission in
post-War Germany. When hostilities in the European
Theater came to an end, the United States became respon
sible for an occupation zone encompassing over 57,000
square miles with a population of 18 million. See Letter
from President Truman to Secretary of State Byrnes,
(Nov. 28, 1945), in 8 Documents on American Foreign
Relations 257 (R. Dennett & R. Turner eds. 1948); Pollock,
A Territorial Pattern for the Military Occupation of Ger
many, 38 Am. Pol. Sci. Rev. 970, 975 (1944). In addition to
supervising massive reconstruction and aid efforts the
American forces stationed in Germany faced potential
security threats from a defeated enemy. In retrospect the
post-War occupation may seem uneventful. But at the
time Eisentrager was decided, the Court was right to be
concerned about judicial interference with the military’s
efforts to contain “enemy elements, guerrilla fighters, and
‘were-wolves.’” 339 U. S., at 784.
Similar threats are not apparent here; nor does the
Government argue that they are. The United States
Naval Station at Guantanamo Bay consists of 45 square
miles of land and water. The base has been used, at vari
ous points, to house migrants and refugees temporarily.
At present, however, other than the detainees themselves,
the only long-term residents are American military per
sonnel, their families, and a small number of workers. See
History of Guantanamo Bay online at https://www.cnic.
navy.mil/Guantanamo/AboutGTMO/gtmohistorygeneral/
gtmohistgeneral. The detainees have been deemed ene
mies of the United States. At present, dangerous as they
may be if released, they are contained in a secure prison
facility located on an isolated and heavily fortified military
base.
41 Cite as: 553 U. S. ____ (2008)
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There is no indication, furthermore, that adjudicating a
habeas corpus petition would cause friction with the host
government. No Cuban court has jurisdiction over Ameri
can military personnel at Guantanamo or the enemy
combatants detained there. While obligated to abide by
the terms of the lease, the United States is, for all practi
cal purposes, answerable to no other sovereign for its acts
on the base. Were that not the case, or if the detention
facility were located in an active theater of war, argu
ments that issuing the writ would be “impracticable or
anomalous” would have more weight. See Reid, 354 U. S.,
at 74 (Harlan, J., concurring in result). Under the facts
presented here, however, there are few practical barriers
to the running of the writ. To the extent barriers arise,
habeas corpus procedures likely can be modified to ad
dress them. See Part VI–B, infra.
It is true that before today the Court has never held
that noncitizens detained by our Government in territory
over which another country maintains de jure sovereignty
have any rights under our Constitution. But the cases
before us lack any precise historical parallel. They involve
individuals detained by executive order for the duration of
a conflict that, if measured from September 11, 2001, to
the present, is already among the longest wars in Ameri
can history. See Oxford Companion to American Military
History 849 (1999). The detainees, moreover, are held in a
territory that, while technically not part of the United
States, is under the complete and total control of our
Government. Under these circumstances the lack of a
precedent on point is no barrier to our holding.
We hold that Art. I, §9, cl. 2, of the Constitution has full
effect at Guantanamo Bay. If the privilege of habeas
corpus is to be denied to the detainees now before us,
Congress must act in accordance with the requirements of
the Suspension Clause. Cf. Hamdi, 542 U. S., at 564
(SCALIA, J., dissenting) (“[I]ndefinite imprisonment on
42 BOUMEDIENE v. BUSH
Opinion of the Court
reasonable suspicion is not an available option of treat
ment for those accused of aiding the enemy, absent a
suspension of the writ”). This Court may not impose a de
facto suspension by abstaining from these controversies.
See Hamdan, 548 U. S., at 585, n. 16 (“[A]bstention is not
appropriate in cases . . . in which the legal challenge
‘turn[s] on the status of the persons as to whom the mili
tary asserted its power’” (quoting Schlesinger v. Council-
man, 420 U. S. 738, 759 (1975))). The MCA does not
purport to be a formal suspension of the writ; and the
Government, in its submissions to us, has not argued that
it is. Petitioners, therefore, are entitled to the privilege of
habeas corpus to challenge the legality of their detention.
V
In light of this holding the question becomes whether
the statute stripping jurisdiction to issue the writ avoids
the Suspension Clause mandate because Congress has
provided adequate substitute procedures for habeas cor
pus. The Government submits there has been compliance
with the Suspension Clause because the DTA review
process in the Court of Appeals, see DTA §1005(e), pro
vides an adequate substitute. Congress has granted that
court jurisdiction to consider
“(i) whether the status determination of the [CSRT]
. . . was consistent with the standards and procedures
specified by the Secretary of Defense . . . and (ii) to the
extent the Constitution and laws of the United States
are applicable, whether the use of such standards and
procedures to make the determination is consistent
with the Constitution and laws of the United States.”
§1005(e)(2)(C), 119 Stat. 2742.
The Court of Appeals, having decided that the writ does
not run to the detainees in any event, found it unneces
sary to consider whether an adequate substitute has been
43 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
provided. In the ordinary course we would remand to the
Court of Appeals to consider this question in the first
instance. See Youakim v. Miller, 425 U. S. 231, 234 (1976)
(per curiam). It is well settled, however, that the Court’s
practice of declining to address issues left unresolved in
earlier proceedings is not an inflexible rule. Ibid. Depar
ture from the rule is appropriate in “exceptional” circum
stances. See Cooper Industries, Inc. v. Aviall Services,
Inc., 543 U. S. 157, 169 (2004); Duignan v. United States,
274 U. S. 195, 200 (1927).
The gravity of the separation-of-powers issues raised by
these cases and the fact that these detainees have been
denied meaningful access to a judicial forum for a period of
years render these cases exceptional. The parties before
us have addressed the adequacy issue. While we would
have found it informative to consider the reasoning of the
Court of Appeals on this point, we must weigh that
against the harms petitioners may endure from additional
delay. And, given there are few precedents addressing
what features an adequate substitute for habeas corpus
must contain, in all likelihood a remand simply would
delay ultimate resolution of the issue by this Court.
We do have the benefit of the Court of Appeals’ con
struction of key provisions of the DTA. When we granted
certiorari in these cases, we noted “it would be of material
assistance to consult any decision” in the parallel DTA
review proceedings pending in the Court of Appeals, spe
cifically any rulings in the matter of Bismullah v. Gates.
551 U. S. ___ (2007). Although the Court of Appeals has
yet to complete a DTA review proceeding, the three-judge
panel in Bismullah has issued an interim order giving
guidance as to what evidence can be made part of the
record on review and what access the detainees can have
to counsel and to classified information. See 501 F. 3d 178
(CADC) (Bismullah I), reh’g denied, 503 F. 3d 137 (CADC
2007) (Bismullah II). In that matter the full court denied
44 BOUMEDIENE v. BUSH
Opinion of the Court
the Government’s motion for rehearing en banc, see Bis-
mullah v. Gates, 514 F. 3d 1291 (CADC 2008) (Bismullah
III). The order denying rehearing was accompanied by
five separate statements from members of the court, which
offer differing views as to scope of the judicial review
Congress intended these detainees to have. Ibid.
Under the circumstances we believe the costs of further
delay substantially outweigh any benefits of remanding to
the Court of Appeals to consider the issue it did not ad
dress in these cases.
A
Our case law does not contain extensive discussion of
standards defining suspension of the writ or of circum
stances under which suspension has occurred. This sim
ply confirms the care Congress has taken throughout our
Nation’s history to preserve the writ and its function.
Indeed, most of the major legislative enactments pertain
ing to habeas corpus have acted not to contract the writ’s
protection but to expand it or to hasten resolution of pris
oners’ claims. See, e.g., Habeas Corpus Act of 1867, ch. 28,
§1, 14 Stat. 385 (current version codified at 28 U. S. C.
§2241 (2000 ed. and Supp. V) (extending the federal writ
to state prisoners)); Cf. Harris v. Nelson, 394 U. S. 286,
299–300 (1969) (interpreting the All Writs Act, 28 U. S. C.
§1651, to allow discovery in habeas corpus proceedings);
Peyton v. Rowe, 391 U. S. 54, 64–65 (1968) (interpreting
the then-existing version of §2241 to allow petitioner to
proceed with his habeas corpus action, even though he had
not yet begun to serve his sentence).
There are exceptions, of course. Title I of the Antiterror
ism and Effective Death Penalty Act of 1996 (AEDPA),
§106, 110 Stat. 1220, contains certain gatekeeping provi
sions that restrict a prisoner’s ability to bring new and
repetitive claims in “second or successive” habeas corpus
actions. We upheld these provisions against a Suspension
45 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
Clause challenge in Felker v. Turpin, 518 U. S. 651, 662–
664 (1996). The provisions at issue in Felker, however, did
not constitute a substantial departure from common-law
habeas procedures. The provisions, for the most part,
codified the longstanding abuse-of-the-writ doctrine. Id.,
at 664; see also McCleskey v. Zant, 499 U. S. 467, 489
(1991). AEDPA applies, moreover, to federal, postconvic
tion review after criminal proceedings in state court have
taken place. As of this point, cases discussing the imple
mentation of that statute give little helpful instruction
(save perhaps by contrast) for the instant cases, where no
trial has been held.
The two leading cases addressing habeas substitutes,
Swain v. Pressley, 430 U. S. 372 (1977), and United States
v. Hayman, 342 U. S. 205 (1952), likewise provide little
guidance here. The statutes at issue were attempts to
streamline habeas corpus relief, not to cut it back.
The statute discussed in Hayman was 28 U. S. C. §2255.
It replaced traditional habeas corpus for federal prisoners
(at least in the first instance) with a process that allowed
the prisoner to file a motion with the sentencing court on
the ground that his sentence was, inter alia, “‘imposed in
violation of the Constitution or laws of the United States.’”
342 U. S., at 207, n. 1. The purpose and effect of the stat
ute was not to restrict access to the writ but to make
postconviction proceedings more efficient. It directed
claims not to the court that had territorial jurisdiction
over the place of the petitioner’s confinement but to the
sentencing court, a court already familiar with the facts of
the case. As the Hayman Court explained
“Section 2255 . . . was passed at the instance of the
Judicial Conference to meet practical difficulties that
had arisen in administering the habeas corpus juris
diction of the federal courts. Nowhere in the history
of Section 2255 do we find any purpose to impinge
46 BOUMEDIENE v. BUSH
Opinion of the Court
upon prisoners’ rights of collateral attack upon their
convictions. On the contrary, the sole purpose was to
minimize the difficulties encountered in habeas cor
pus hearings by affording the same rights in another
and more convenient forum.” Id., at 219.
See also Hill v. United States, 368 U. S. 424, 427, 428, and
n. 5 (1962) (noting that §2255 provides a remedy in the
sentencing court that is “exactly commensurate” with the
pre-existing federal habeas corpus remedy).
The statute in Swain, D. C. Code Ann. §23–110(g)
(1973), applied to prisoners in custody under sentence of
the Superior Court of the District of Columbia. Before
enactment of the District of Columbia Court Reform and
Criminal Procedure Act of 1970 (D. C. Court Reform Act),
84 Stat. 473, those prisoners could file habeas petitions in
the United States District Court for the District of Colum
bia. The Act, which was patterned on §2255, substituted a
new collateral process in the Superior Court for the pre
existing habeas corpus procedure in the District Court.
See Swain, 430 U. S., at 374–378. But, again, the purpose
and effect of the statute was to expedite consideration of
the prisoner’s claims, not to delay or frustrate it. See id.,
at 375, n. 4 (noting that the purpose of the D. C. Court
Reform Act was to “alleviate” administrative burdens on
the District Court).
That the statutes in Hayman and Swain were designed
to strengthen, rather than dilute, the writ’s protections
was evident, furthermore, from this significant fact: Nei
ther statute eliminated traditional habeas corpus relief.
In both cases the statute at issue had a saving clause,
providing that a writ of habeas corpus would be available
if the alternative process proved inadequate or ineffective.
Swain, supra, at 381; Hayman, supra, at 223. The Court
placed explicit reliance upon these provisions in upholding
the statutes against constitutional challenges. See Swain,
47 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
supra, at 381 (noting that the provision “avoid[ed] any
serious question about the constitutionality of the stat
ute”); Hayman, supra, at 223 (noting that, because habeas
remained available as a last resort, it was unnecessary to
“reach constitutional questions”).
Unlike in Hayman and Swain, here we confront stat
utes, the DTA and the MCA, that were intended to cir
cumscribe habeas review. Congress’ purpose is evident
not only from the unequivocal nature of MCA §7’s jurisdic
tion-stripping language, 28 U. S. C. A. §2241(e)(1) (Supp.
2007) (“No court, justice, or judge shall have jurisdiction to
hear or consider an application for a writ of habeas corpus
. . .”), but also from a comparison of the DTA to the stat
utes at issue in Hayman and Swain. When interpreting a
statute, we examine related provisions in other parts of
the U. S. Code. See, e.g., West Virginia Univ. Hospitals,
Inc. v. Casey, 499 U. S. 83, 88–97 (1991); Babbitt v. Sweet
Home Chapter, Communities for Great Ore., 515 U. S. 687,
717–718 (1995) (SCALIA, J., dissenting); see generally W.
Eskridge, P. Frickey, & E. Garrett, Cases and Materials
on Legislation: Statutes and the Creation of Public Policy
1039 (3d ed. 2001). When Congress has intended to re
place traditional habeas corpus with habeas-like substi
tutes, as was the case in Hayman and Swain, it has
granted to the courts broad remedial powers to secure the
historic office of the writ. In the §2255 context, for exam
ple, Congress has granted to the reviewing court power to
“determine the issues and make findings of fact and con
clusions of law” with respect to whether “the judgment [of
conviction] was rendered without jurisdiction, or . . . the
sentence imposed was not authorized by law or otherwise
open to collateral attack.” 28 U. S. C. A. §2255(b) (Supp.
2008). The D. C. Court Reform Act, the statute upheld in
Swain, contained a similar provision. §23–110(g), 84 Stat.
609.
In contrast the DTA’s jurisdictional grant is quite lim
48 BOUMEDIENE v. BUSH
Opinion of the Court
ited. The Court of Appeals has jurisdiction not to inquire
into the legality of the detention generally but only to
assess whether the CSRT complied with the “standards
and procedures specified by the Secretary of Defense” and
whether those standards and procedures are lawful. DTA
§1005(e)(2)(C), 119 Stat. 2742. If Congress had envisioned
DTA review as coextensive with traditional habeas corpus,
it would not have drafted the statute in this manner.
Instead, it would have used language similar to what it
used in the statutes at issue in Hayman and Swain. Cf.
Russello v. United States, 464 U. S. 16, 23 (1983)
(“‘[W]here Congress includes particular language in one
section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion’” (quoting United States v. Wong Kim Bo, 472
F. 2d 720, 722 (CA5 1972))). Unlike in Hayman and
Swain, moreover, there has been no effort to preserve
habeas corpus review as an avenue of last resort. No
saving clause exists in either the MCA or the DTA. And
MCA §7 eliminates habeas review for these petitioners.
The differences between the DTA and the habeas stat
ute that would govern in MCA §7’s absence, 28 U. S. C.
§2241 (2000 ed. and Supp. V), are likewise telling. In
§2241 (2000 ed.) Congress confirmed the authority of “any
justice” or “circuit judge” to issue the writ. Cf. Felker, 518
U. S., at 660–661 (interpreting Title I of AEDPA to not
strip from this Court the power to entertain original ha
beas corpus petitions). That statute accommodates the
necessity for factfinding that will arise in some cases by
allowing the appellate judge or Justice to transfer the case
to a district court of competent jurisdiction, whose institu
tional capacity for factfinding is superior to his or her own.
See 28 U. S. C. §2241(b). By granting the Court of Ap
peals “exclusive” jurisdiction over petitioners’ cases, see
DTA §1005(e)(2)(A), 119 Stat. 2742, Congress has fore
49 Cite as: 553 U. S. ____ (2008)
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closed that option. This choice indicates Congress in
tended the Court of Appeals to have a more limited role in
enemy combatant status determinations than a district
court has in habeas corpus proceedings. The DTA should
be interpreted to accord some latitude to the Court of
Appeals to fashion procedures necessary to make its re
view function a meaningful one, but, if congressional
intent is to be respected, the procedures adopted cannot be
as extensive or as protective of the rights of the detainees
as they would be in a §2241 proceeding. Otherwise there
would have been no, or very little, purpose for enacting the
DTA.
To the extent any doubt remains about Congress’ intent,
the legislative history confirms what the plain text
strongly suggests: In passing the DTA Congress did not
intend to create a process that differs from traditional
habeas corpus process in name only. It intended to create
a more limited procedure. See, e.g., 151 Cong. Rec. S14263
(Dec. 21, 2005) (statement of Sen. Graham) (noting that
the DTA “extinguish[es] these habeas and other actions in
order to effect a transfer of jurisdiction over these cases to
the DC Circuit Court” and agreeing that the bill “create[s]
in their place a very limited judicial review of certain
military administrative decisions”); id., at S14268 (state
ment of Sen. Kyl) (“It is important to note that the limited
judicial review authorized by paragraphs 2 and 3 of sub
section (e) [of DTA §1005] are not habeas-corpus review.
It is a limited judicial review of its own nature”).
It is against this background that we must interpret the
DTA and assess its adequacy as a substitute for habeas
corpus. The present cases thus test the limits of the Sus
pension Clause in ways that Hayman and Swain did not.
B
We do not endeavor to offer a comprehensive summary
of the requisites for an adequate substitute for habeas
50 BOUMEDIENE v. BUSH
Opinion of the Court
corpus. We do consider it uncontroversial, however, that
the privilege of habeas corpus entitles the prisoner to a
meaningful opportunity to demonstrate that he is being
held pursuant to “the erroneous application or interpreta
tion” of relevant law. St. Cyr, 533 U. S., at 302. And the
habeas court must have the power to order the conditional
release of an individual unlawfully detained—though
release need not be the exclusive remedy and is not the
appropriate one in every case in which the writ is granted.
See Ex parte Bollman, 4 Cranch 75, 136 (1807) (where
imprisonment is unlawful, the court “can only direct [the
prisoner] to be discharged”); R. Hurd, Treatise on the
Right of Personal Liberty, and On the Writ of Habeas
Corpus and the Practice Connected with It: With a View of
the Law of Extradition of Fugitives 222 (2d ed. 1876) (“It
cannot be denied where ‘a probable ground is shown that
the party is imprisoned without just cause, and therefore,
hath a right to be delivered,’ for the writ then becomes a
‘writ of right, which may not be denied but ought to be
granted to every man that is committed or detained in
prison or otherwise restrained of his liberty’”). But see
Chessman v. Teets, 354 U. S. 156, 165–166 (1957) (re
manding in a habeas case for retrial within a “reasonable
time”). These are the easily identified attributes of any
constitutionally adequate habeas corpus proceeding.
But, depending on the circumstances, more may be
required.
Indeed, common-law habeas corpus was, above all, an
adaptable remedy. Its precise application and scope
changed depending upon the circumstances. See 3 Black-
stone *131 (describing habeas as “the great and efficacious
writ, in all manner of illegal confinement”); see also
Schlup v. Delo, 513 U. S. 298, 319 (1995) (Habeas “is, at
its core, an equitable remedy”); Jones v. Cunningham, 371
U. S. 236, 243 (1963) (Habeas is not “a static, narrow,
formalistic remedy; its scope has grown to achieve its
51 Cite as: 553 U. S. ____ (2008)
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grand purpose”). It appears the common-law habeas
court’s role was most extensive in cases of pretrial and
noncriminal detention, where there had been little or no
previous judicial review of the cause for detention. Nota
bly, the black-letter rule that prisoners could not contro
vert facts in the jailer’s return was not followed (or at least
not with consistency) in such cases. Hurd, supra, at 271
(noting that the general rule was “subject to exceptions”
including cases of bail and impressment); Oakes, Legal
History in the High Court—Habeas Corpus, 64 Mich. L.
Rev. 451, 457 (1966) (“[W]hen a prisoner applied for ha
beas corpus before indictment or trial, some courts exam
ined the written depositions on which he had been ar
rested or committed, and others even heard oral testimony
to determine whether the evidence was sufficient to justi
fying holding him for trial” (footnotes omitted)); Fallon &
Meltzer, Habeas Corpus Jurisdiction, Substantive Rights,
and the War on Terror, 120 Harv. L. Rev. 2029, 2102
(2007) (“[T]he early practice was not consistent: courts
occasionally permitted factual inquiries when no other
opportunity for judicial review existed”).
There is evidence from 19th-century American sources
indicating that, even in States that accorded strong res
judicata effect to prior adjudications, habeas courts in this
country routinely allowed prisoners to introduce exculpa
tory evidence that was either unknown or previously
unavailable to the prisoner. See, e.g., Ex parte Pattison,
56 Miss. 161, 164 (1878) (noting that “[w]hile the former
adjudication must be considered as conclusive on the
testimony then adduced” “newly developed exculpatory
evidence . . . may authorize the admission to bail”); Ex
parte Foster, 5 Tex. Ct. App. 625, 644 (1879) (construing
the State’s habeas statute to allow for the introduction of
new evidence “where important testimony has been ob
tained, which, though not newly discovered, or which,
though known to [the petitioner], it was not in his power
52 BOUMEDIENE v. BUSH
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to produce at the former hearing; [and] where the evidence
was newly discovered”); People v. Martin, 7 N. Y. Leg. Obs.
49, 56 (1848) (“If in custody on criminal process before
indictment, the prisoner has an absolute right to demand
that the original depositions be looked into to see whether
any crime is in fact imputed to him, and the inquiry will
by no means be confined to the return. Facts out of the
return may be gone into to ascertain whether the commit
ting magistrate may not have arrived at an illogical con
clusion upon the evidence given before him . . .”); see
generally W. Church, Treatise on the Writ of Habeas
Corpus §182, p. 235 1886) (hereinafter Church) (noting
that habeas courts would “hear evidence anew if justice
require it”). Justice McLean, on Circuit in 1855, expressed
his view that a habeas court should consider a prior judg
ment conclusive “where there was clearly jurisdiction and
a full and fair hearing; but that it might not be so consid
ered when any of these requisites were wanting.” Ex parte
Robinson, 20 F. Cas. 969, 971, (No. 11,935) (CC Ohio
1855). To illustrate the circumstances in which the prior
adjudication did not bind the habeas court, he gave the
example of a case in which “[s]everal unimpeached wit
nesses” provided new evidence to exculpate the prisoner.
Ibid.
The idea that the necessary scope of habeas review in
part depends upon the rigor of any earlier proceedings
accords with our test for procedural adequacy in the due
process context. See Mathews v. Eldridge, 424 U. S. 319,
335 (1976) (noting that the Due Process Clause requires
an assessment of, inter alia, “the risk of an erroneous
deprivation of [a liberty interest;] and the probable value,
if any, of additional or substitute procedural safeguards”).
This principle has an established foundation in habeas
corpus jurisprudence as well, as Chief Justice Marshall’s
opinion in Ex parte Watkins, 3 Pet. 193 (1830), demon
strates. Like the petitioner in Swain, Watkins sought a
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writ of habeas corpus after being imprisoned pursuant to a
judgment of a District of Columbia court. In holding that
the judgment stood on “high ground,” 3 Pet., at 209, the
Chief Justice emphasized the character of the court that
rendered the original judgment, noting it was a “court of
record, having general jurisdiction over criminal cases.”
Id., at 203. In contrast to “inferior” tribunals of limited
jurisdiction, ibid., courts of record had broad remedial
powers, which gave the habeas court greater confidence in
the judgment’s validity. See generally Neuman, Habeas
Corpus, Executive Detention, and the Removal of Aliens,
98 Colum. L. Rev. 961, 982–983 (1998).
Accordingly, where relief is sought from a sentence that
resulted from the judgment of a court of record, as was the
case in Watkins and indeed in most federal habeas cases,
considerable deference is owed to the court that ordered
confinement. See Brown v. Allen, 344 U. S. 443, 506
(1953) (opinion of Frankfurter, J.) (noting that a federal
habeas court should accept a state court’s factual findings
unless “a vital flaw be found in the process of ascertaining
such facts in the State court”). Likewise in those cases the
prisoner should exhaust adequate alternative remedies
before filing for the writ in federal court. See Ex parte
Royall, 117 U. S. 241, 251–252 (1886) (requiring exhaus
tion of state collateral processes). Both aspects of federal
habeas corpus review are justified because it can be as
sumed that, in the usual course, a court of record provides
defendants with a fair, adversary proceeding. In cases
involving state convictions this framework also respects
federalism; and in federal cases it has added justification
because the prisoner already has had a chance to seek
review of his conviction in a federal forum through a direct
appeal. The present cases fall outside these categories,
however; for here the detention is by executive order.
Where a person is detained by executive order, rather
than, say, after being tried and convicted in a court, the
54 BOUMEDIENE v. BUSH
Opinion of the Court
need for collateral review is most pressing. A criminal
conviction in the usual course occurs after a judicial hear
ing before a tribunal disinterested in the outcome and
committed to procedures designed to ensure its own inde
pendence. These dynamics are not inherent in executive
detention orders or executive review procedures. In this
context the need for habeas corpus is more urgent. The
intended duration of the detention and the reasons for it
bear upon the precise scope of the inquiry. Habeas corpus
proceedings need not resemble a criminal trial, even when
the detention is by executive order. But the writ must be
effective. The habeas court must have sufficient authority
to conduct a meaningful review of both the cause for de
tention and the Executive’s power to detain.
To determine the necessary scope of habeas corpus
review, therefore, we must assess the CSRT process, the
mechanism through which petitioners’ designation as
enemy combatants became final. Whether one character
izes the CSRT process as direct review of the Executive’s
battlefield determination that the detainee is an enemy
combatant—as the parties have and as we do—or as the
first step in the collateral review of a battlefield determi
nation makes no difference in a proper analysis of whether
the procedures Congress put in place are an adequate
substitute for habeas corpus. What matters is the sum
total of procedural protections afforded to the detainee at
all stages, direct and collateral.
Petitioners identify what they see as myriad deficiencies
in the CSRTs. The most relevant for our purposes are the
constraints upon the detainee’s ability to rebut the factual
basis for the Government’s assertion that he is an enemy
combatant. As already noted, see Part IV–C, supra, at the
CSRT stage the detainee has limited means to find or
present evidence to challenge the Government’s case
against him. He does not have the assistance of counsel
and may not be aware of the most critical allegations that
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the Government relied upon to order his detention. See
App. to Pet. for Cert. in No. 06–1196, at 156, ¶F(8) (noting
that the detainee can access only the “unclassified portion
of the Government Information”). The detainee can con
front witnesses that testify during the CSRT proceedings.
Id., at 144, ¶g(8). But given that there are in effect no
limits on the admission of hearsay evidence—the only
requirement is that the tribunal deem the evidence “rele
vant and helpful,” ibid., ¶g(9)—the detainee’s opportunity
to question witnesses is likely to be more theoretical than
real.
The Government defends the CSRT process, arguing
that it was designed to conform to the procedures sug
gested by the plurality in Hamdi. See 542 U. S., at 538.
Setting aside the fact that the relevant language in Hamdi
did not garner a majority of the Court, it does not control
the matter at hand. None of the parties in Hamdi argued
there had been a suspension of the writ. Nor could they.
The §2241 habeas corpus process remained in place, id., at
525. Accordingly, the plurality concentrated on whether
the Executive had the authority to detain and, if so, what
rights the detainee had under the Due Process Clause.
True, there are places in the Hamdi plurality opinion
where it is difficult to tell where its extrapolation of §2241
ends and its analysis of the petitioner’s Due Process rights
begins. But the Court had no occasion to define the neces
sary scope of habeas review, for Suspension Clause pur
poses, in the context of enemy combatant detentions. The
closest the plurality came to doing so was in discussing
whether, in light of separation-of-powers concerns, §2241
should be construed to forbid the District Court from
inquiring beyond the affidavit Hamdi’s custodian provided
in answer to the detainee’s habeas petition. The plurality
answered this question with an emphatic “no.” Id., at 527
(labeling this argument as “extreme”); id., at 535–536.
Even if we were to assume that the CSRTs satisfy due
56 BOUMEDIENE v. BUSH
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process standards, it would not end our inquiry. Habeas
corpus is a collateral process that exists, in Justice
Holmes’ words, to “cu[t] through all forms and g[o] to the
very tissue of the structure. It comes in from the outside,
not in subordination to the proceedings, and although
every form may have been preserved opens the inquiry
whether they have been more than an empty shell.”
Frank v. Mangum, 237 U. S. 309, 346 (1915) (dissenting
opinion). Even when the procedures authorizing detention
are structurally sound, the Suspension Clause remains
applicable and the writ relevant. See 2 Chambers, Course
of Lectures on English Law 1767–1773, at 6 (“Liberty may
be violated either by arbitrary imprisonment without law
or the appearance of law, or by a lawful magistrate for an
unlawful reason”). This is so, as Hayman and Swain
make clear, even where the prisoner is detained after a
criminal trial conducted in full accordance with the protec
tions of the Bill of Rights. Were this not the case, there
would have been no reason for the Court to inquire into
the adequacy of substitute habeas procedures in Hayman
and Swain. That the prisoners were detained pursuant to
the most rigorous proceedings imaginable, a full criminal
trial, would have been enough to render any habeas sub
stitute acceptable per se.
Although we make no judgment as to whether the
CSRTs, as currently constituted, satisfy due process stan
dards, we agree with petitioners that, even when all the
parties involved in this process act with diligence and in
good faith, there is considerable risk of error in the tribu
nal’s findings of fact. This is a risk inherent in any proc
ess that, in the words of the former Chief Judge of the
Court of Appeals, is “closed and accusatorial.” See Bis-
mullah III, 514 F. 3d, at 1296 (Ginsburg, C. J., concurring
in denial of rehearing en banc). And given that the conse
quence of error may be detention of persons for the dura
tion of hostilities that may last a generation or more, this
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is a risk too significant to ignore.
For the writ of habeas corpus, or its substitute, to func
tion as an effective and proper remedy in this context, the
court that conducts the habeas proceeding must have the
means to correct errors that occurred during the CSRT
proceedings. This includes some authority to assess the
sufficiency of the Government’s evidence against the
detainee. It also must have the authority to admit and
consider relevant exculpatory evidence that was not intro
duced during the earlier proceeding. Federal habeas
petitioners long have had the means to supplement the
record on review, even in the postconviction habeas set
ting. See Townsend v. Sain, 372 U. S. 293, 313 (1963),
overruled in part by Keeney v. Tamayo-Reyes, 504 U. S. 1,
5 (1992). Here that opportunity is constitutionally
required.
Consistent with the historic function and province of the
writ, habeas corpus review may be more circumscribed if
the underlying detention proceedings are more thorough
than they were here. In two habeas cases involving enemy
aliens tried for war crimes, In re Yamashita, 327 U. S. 1
(1946), and Ex parte Quirin, 317 U. S. 1 (1942), for exam
ple, this Court limited its review to determining whether
the Executive had legal authority to try the petitioners by
military commission. See Yamashita, supra, at 8 (“[O]n
application for habeas corpus we are not concerned with
the guilt or innocence of the petitioners. We consider here
only the lawful power of the commission to try the peti
tioner for the offense charged”); Quirin, supra, at 25 (“We
are not here concerned with any question of the guilt or
innocence of petitioners”). Military courts are not courts of
record. See Watkins, 3 Pet., at 209; Church 513. And the
procedures used to try General Yamashita have been
sharply criticized by Members of this Court. See Hamdan,
548 U. S., at 617; Yamashita, supra, at 41–81 (Rutledge,
J., dissenting). We need not revisit these cases, however.
58 BOUMEDIENE v. BUSH
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For on their own terms, the proceedings in Yamashita and
Quirin, like those in Eisentrager, had an adversarial
structure that is lacking here. See Yamashita, supra, at 5
(noting that General Yamashita was represented by six
military lawyers and that “[t]hroughout the proceedings
. . . defense counsel . . . demonstrated their professional
skill and resourcefulness and their proper zeal for the
defense with which they were charged”); Quirin, supra, at
23–24; Exec. Order No. 9185, 7 Fed. Reg. 5103 (1942)
(appointing counsel to represent the German saboteurs).
The extent of the showing required of the Government
in these cases is a matter to be determined. We need not
explore it further at this stage. We do hold that when the
judicial power to issue habeas corpus properly is invoked
the judicial officer must have adequate authority to make
a determination in light of the relevant law and facts and
to formulate and issue appropriate orders for relief, in
cluding, if necessary, an order directing the prisoner’s
release.
C
We now consider whether the DTA allows the Court of
Appeals to conduct a proceeding meeting these standards.
“[W]e are obligated to construe the statute to avoid [con
stitutional] problems” if it is “‘fairly possible’” to do so. St.
Cyr, 533 U. S., at 299–300 (quoting Crowell v. Benson, 285
U. S. 22, 62 (1932)). There are limits to this principle,
however. The canon of constitutional avoidance does not
supplant traditional modes of statutory interpretation.
See Clark v. Martinez, 543 U. S. 371, 385 (2005) (“The
canon of constitutional avoidance comes into play only
when, after the application of ordinary textual analysis,
the statute is found to be susceptible of more than one
construction; and the canon functions as a means of choos-
ing between them”). We cannot ignore the text and pur
pose of a statute in order to save it.
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The DTA does not explicitly empower the Court of Ap
peals to order the applicant in a DTA review proceeding
released should the court find that the standards and
procedures used at his CSRT hearing were insufficient to
justify detention. This is troubling. Yet, for present pur
poses, we can assume congressional silence permits a
constitutionally required remedy. In that case it would be
possible to hold that a remedy of release is impliedly
provided for. The DTA might be read, furthermore, to
allow the petitioners to assert most, if not all, of the legal
claims they seek to advance, including their most basic
claim: that the President has no authority under the
AUMF to detain them indefinitely. (Whether the Presi
dent has such authority turns on whether the AUMF
authorizes—and the Constitution permits—the indefinite
detention of “enemy combatants” as the Department of
Defense defines that term. Thus a challenge to the Presi
dent’s authority to detain is, in essence, a challenge to the
Department’s definition of enemy combatant, a “standard”
used by the CSRTs in petitioners’ cases.) At oral argu
ment, the Solicitor General urged us to adopt both these
constructions, if doing so would allow MCA §7 to remain
intact. See Tr. of Oral Arg. 37, 53.
The absence of a release remedy and specific language
allowing AUMF challenges are not the only constitutional
infirmities from which the statute potentially suffers,
however. The more difficult question is whether the DTA
permits the Court of Appeals to make requisite findings of
fact. The DTA enables petitioners to request “review” of
their CSRT determination in the Court of Appeals, DTA
§1005(e)(2)(B)(i), 119 Stat. 2742; but the “Scope of Review”
provision confines the Court of Appeals’ role to reviewing
whether the CSRT followed the “standards and proce
dures” issued by the Department of Defense and assessing
whether those “standards and procedures” are lawful.
§1005(e)(C), ibid. Among these standards is “the require
60 BOUMEDIENE v. BUSH
Opinion of the Court
ment that the conclusion of the Tribunal be supported by a
preponderance of the evidence . . . allowing a rebuttable
presumption in favor of the Government’s evidence.”
§1005(e)(C)(i), ibid.
Assuming the DTA can be construed to allow the Court
of Appeals to review or correct the CSRT’s factual deter
minations, as opposed to merely certifying that the tribu
nal applied the correct standard of proof, we see no way to
construe the statute to allow what is also constitutionally
required in this context: an opportunity for the detainee to
present relevant exculpatory evidence that was not made
part of the record in the earlier proceedings.
On its face the statute allows the Court of Appeals to
consider no evidence outside the CSRT record. In the
parallel litigation, however, the Court of Appeals deter
mined that the DTA allows it to order the production of all
“‘reasonably available information in the possession of the
U. S. Government bearing on the issue of whether the
detainee meets the criteria to be designated as an enemy
combatant,’” regardless of whether this evidence was put
before the CSRT. See Bismullah I, 501 F. 3d, at 180. The
Government, see Pet. for Cert. pending in Gates v. Bismul-
lah, No. 07–1054 (hereinafter Bismullah Pet.), with sup
port from five members of the Court of Appeals, see Bis-
mullah III, 514 F. 3d, at 1299 (Henderson, J., dissenting
from denial of rehearing en banc); id., at 1302 (opinion of
Randolph, J.) (same); id., at 1306 (opinion of Brown, J.)
(same), disagrees with this interpretation. For present
purposes, however, we can assume that the Court of Ap
peals was correct that the DTA allows introduction and
consideration of relevant exculpatory evidence that was
“reasonably available” to the Government at the time of
the CSRT but not made part of the record. Even so, the
DTA review proceeding falls short of being a constitution
ally adequate substitute, for the detainee still would have
no opportunity to present evidence discovered after the
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CSRT proceedings concluded.
Under the DTA the Court of Appeals has the power to
review CSRT determinations by assessing the legality of
standards and procedures. This implies the power to
inquire into what happened at the CSRT hearing and,
perhaps, to remedy certain deficiencies in that proceeding.
But should the Court of Appeals determine that the CSRT
followed appropriate and lawful standards and proce
dures, it will have reached the limits of its jurisdiction.
There is no language in the DTA that can be construed to
allow the Court of Appeals to admit and consider newly
discovered evidence that could not have been made part of
the CSRT record because it was unavailable to either the
Government or the detainee when the CSRT made its
findings. This evidence, however, may be critical to the
detainee’s argument that he is not an enemy combatant
and there is no cause to detain him.
This is not a remote hypothetical. One of the petition
ers, Mohamed Nechla, requested at his CSRT hearing that
the Government contact his employer. The petitioner
claimed the employer would corroborate Nechla’s conten
tion he had no affiliation with al Qaeda. Although the
CSRT determined this testimony would be relevant, it also
found the witness was not reasonably available to testify
at the time of the hearing. Petitioner’s counsel, however,
now represents the witness is available to be heard. See
Brief for Boumediene Petitioners 5. If a detainee can
present reasonably available evidence demonstrating
there is no basis for his continued detention, he must have
the opportunity to present this evidence to a habeas cor
pus court. Even under the Court of Appeals’ generous
construction of the DTA, however, the evidence identified
by Nechla would be inadmissible in a DTA review proceed
ing. The role of an Article III court in the exercise of its
habeas corpus function cannot be circumscribed in this
manner.
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Opinion of the Court
By foreclosing consideration of evidence not presented or
reasonably available to the detainee at the CSRT proceed
ings, the DTA disadvantages the detainee by limiting the
scope of collateral review to a record that may not be
accurate or complete. In other contexts, e.g., in post-trial
habeas cases where the prisoner already has had a full
and fair opportunity to develop the factual predicate of his
claims, similar limitations on the scope of habeas review
may be appropriate. See Williams v. Taylor, 529 U. S.
420, 436–437 (2000) (noting that §2254 “does not equate
prisoners who exercise diligence in pursuing their claims
with those who do not”). In this context, however, where
the underlying detention proceedings lack the necessary
adversarial character, the detainee cannot be held respon
sible for all deficiencies in the record.
The Government does not make the alternative argu
ment that the DTA allows for the introduction of previ
ously unavailable exculpatory evidence on appeal. It does
point out, however, that if a detainee obtains such evi
dence, he can request that the Deputy Secretary of De
fense convene a new CSRT. See Supp. Brief for Respon
dents 4. Whatever the merits of this procedure, it is an
insufficient replacement for the factual review these de
tainees are entitled to receive through habeas corpus. The
Deputy Secretary’s determination whether to initiate new
proceedings is wholly a discretionary one. See Dept. of
Defense, Office for the Administrative Review of the De
tention of Enemy Combatants, Instruction 5421.1, Proce
dure for Review of “New Evidence” Relating to Enemy
Combatant (EC) Status ¶5(d) (May 7, 2007) (Instruction
5421.1) (“The decision to convene a CSRT to reconsider the
basis of the detainee’s [enemy combatant] status in light of
‘new evidence’ is a matter vested in the unreviewable
discretion of the [Deputy Secretary of Defense]”). And we
see no way to construe the DTA to allow a detainee to
challenge the Deputy Secretary’s decision not to open a
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new CSRT pursuant to Instruction 5421.1. Congress
directed the Secretary of Defense to devise procedures for
considering new evidence, see DTA §1005(a)(3), but the
detainee has no mechanism for ensuring that those proce
dures are followed. DTA §1005(e)(2)(C), 119 Stat. 2742,
makes clear that the Court of Appeals’ jurisdiction is
“limited to consideration of . . . whether the status deter
mination of the Combatant Status Review Tribunal with
regard to such alien was consistent with the standards
and procedures specified by the Secretary of Defense . . .
and . . . whether the use of such standards and procedures
to make the determination is consistent with the Constitu
tion and laws of the United States.” DTA §1005(e)(2)(A),
ibid., further narrows the Court of Appeals’ jurisdiction to
reviewing “any final decision of a Combatant Status Re
view Tribunal that an alien is properly detained as an
enemy combatant.” The Deputy Secretary’s determination
whether to convene a new CSRT is not a “status determi
nation of the Combatant Status Review Tribunal,” much
less a “final decision” of that body.
We do not imply DTA review would be a constitutionally
sufficient replacement for habeas corpus but for these
limitations on the detainee’s ability to present exculpatory
evidence. For even if it were possible, as a textual matter,
to read into the statute each of the necessary procedures
we have identified, we could not overlook the cumulative
effect of our doing so. To hold that the detainees at Guan
tanamo may, under the DTA, challenge the President’s
legal authority to detain them, contest the CSRT’s find
ings of fact, supplement the record on review with excul
patory evidence, and request an order of release would
come close to reinstating the §2241 habeas corpus process
Congress sought to deny them. The language of the stat
ute, read in light of Congress’ reasons for enacting it,
cannot bear this interpretation. Petitioners have met
their burden of establishing that the DTA review process
64 BOUMEDIENE v. BUSH
Opinion of the Court
is, on its face, an inadequate substitute for habeas corpus.
Although we do not hold that an adequate substitute
must duplicate §2241 in all respects, it suffices that the
Government has not established that the detainees’ access
to the statutory review provisions at issue is an adequate
substitute for the writ of habeas corpus. MCA §7 thus
effects an unconstitutional suspension of the writ. In view
of our holding we need not discuss the reach of the writ
with respect to claims of unlawful conditions of treatment
or confinement.
VI
A
In light of our conclusion that there is no jurisdictional
bar to the District Court’s entertaining petitioners’ claims
the question remains whether there are prudential barri
ers to habeas corpus review under these circumstances.
The Government argues petitioners must seek review of
their CSRT determinations in the Court of Appeals before
they can proceed with their habeas corpus actions in the
District Court. As noted earlier, in other contexts and for
prudential reasons this Court has required exhaustion of
alternative remedies before a prisoner can seek federal
habeas relief. Most of these cases were brought by prison
ers in state custody, e.g., Ex parte Royall, 117 U. S. 241,
and thus involved federalism concerns that are not rele
vant here. But we have extended this rule to require
defendants in courts-martial to exhaust their military
appeals before proceeding with a federal habeas corpus
action. See Schlesinger, 420 U. S., at 758.
The real risks, the real threats, of terrorist attacks are
constant and not likely soon to abate. The ways to disrupt
our life and laws are so many and unforeseen that the
Court should not attempt even some general catalogue of
crises that might occur. Certain principles are apparent,
however. Practical considerations and exigent circum
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stances inform the definition and reach of the law’s writs,
including habeas corpus. The cases and our tradition
reflect this precept.
In cases involving foreign citizens detained abroad by
the Executive, it likely would be both an impractical and
unprecedented extension of judicial power to assume that
habeas corpus would be available at the moment the
prisoner is taken into custody. If and when habeas corpus
jurisdiction applies, as it does in these cases, then proper
deference can be accorded to reasonable procedures for
screening and initial detention under lawful and proper
conditions of confinement and treatment for a reasonable
period of time. Domestic exigencies, furthermore, might
also impose such onerous burdens on the Government that
here, too, the Judicial Branch would be required to devise
sensible rules for staying habeas corpus proceedings until
the Government can comply with its requirements in a
responsible way. Cf. Ex parte Milligan, 4 Wall., at 127
(“If, in foreign invasion or civil war, the courts are actually
closed, and it is impossible to administer criminal justice
according to law, then, on the theatre of active military
operations, where war really prevails, there is a necessity
to furnish a substitute for the civil authority, thus over
thrown, to preserve the safety of the army and society; and
as no power is left but the military, it is allowed to govern
by martial rule until the laws can have their free course”).
Here, as is true with detainees apprehended abroad, a
relevant consideration in determining the courts’ role is
whether there are suitable alternative processes in place
to protect against the arbitrary exercise of governmental
power.
The cases before us, however, do not involve detainees
who have been held for a short period of time while await
ing their CSRT determinations. Were that the case, or
were it probable that the Court of Appeals could complete
a prompt review of their applications, the case for requir
66 BOUMEDIENE v. BUSH
Opinion of the Court
ing temporary abstention or exhaustion of alternative
remedies would be much stronger. These qualifications no
longer pertain here. In some of these cases six years have
elapsed without the judicial oversight that habeas corpus
or an adequate substitute demands. And there has been
no showing that the Executive faces such onerous burdens
that it cannot respond to habeas corpus actions. To re
quire these detainees to complete DTA review before
proceeding with their habeas corpus actions would be to
require additional months, if not years, of delay. The first
DTA review applications were filed over a year ago, but no
decisions on the merits have been issued. While some
delay in fashioning new procedures is unavoidable, the
costs of delay can no longer be borne by those who are held
in custody. The detainees in these cases are entitled to a
prompt habeas corpus hearing.
Our decision today holds only that the petitioners before
us are entitled to seek the writ; that the DTA review
procedures are an inadequate substitute for habeas cor
pus; and that the petitioners in these cases need not ex
haust the review procedures in the Court of Appeals before
proceeding with their habeas actions in the District Court.
The only law we identify as unconstitutional is MCA §7,
28 U. S. C. A. §2241(e) (Supp. 2007). Accordingly, both the
DTA and the CSRT process remain intact. Our holding
with regard to exhaustion should not be read to imply that
a habeas court should intervene the moment an enemy
combatant steps foot in a territory where the writ runs.
The Executive is entitled to a reasonable period of time to
determine a detainee’s status before a court entertains
that detainee’s habeas corpus petition. The CSRT process
is the mechanism Congress and the President set up to
deal with these issues. Except in cases of undue delay,
federal courts should refrain from entertaining an enemy
combatant’s habeas corpus petition at least until after the
Department, acting via the CSRT, has had a chance to
67 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
review his status.
B
Although we hold that the DTA is not an adequate and
effective substitute for habeas corpus, it does not follow
that a habeas corpus court may disregard the dangers the
detention in these cases was intended to prevent. Felker,
Swain, and Hayman stand for the proposition that the
Suspension Clause does not resist innovation in the field
of habeas corpus. Certain accommodations can be made to
reduce the burden habeas corpus proceedings will place on
the military without impermissibly diluting the protec
tions of the writ.
In the DTA Congress sought to consolidate review of
petitioners’ claims in the Court of Appeals. Channeling
future cases to one district court would no doubt reduce
administrative burdens on the Government. This is a
legitimate objective that might be advanced even without
an amendment to §2241. If, in a future case, a detainee
files a habeas petition in another judicial district in which
a proper respondent can be served, see Rumsfeld v.
Padilla, 542 U. S. 426, 435–436 (2004), the Government
can move for change of venue to the court that will hear
these petitioners’ cases, the United States District Court
for the District of Columbia. See 28 U. S. C. §1404(a);
Braden v. 30th Judicial Circuit Court of Ky., 410 U. S.
484, 499, n. 15 (1973).
Another of Congress’ reasons for vesting exclusive juris
diction in the Court of Appeals, perhaps, was to avoid the
widespread dissemination of classified information. The
Government has raised similar concerns here and else
where. See Brief for Respondents 55–56; Bismullah Pet.
30. We make no attempt to anticipate all of the eviden
tiary and access-to-counsel issues that will arise during
the course of the detainees’ habeas corpus proceedings.
We recognize, however, that the Government has a legiti
68 BOUMEDIENE v. BUSH
Opinion of the Court
mate interest in protecting sources and methods of intelli
gence gathering; and we expect that the District Court will
use its discretion to accommodate this interest to the
greatest extent possible. Cf. United States v. Reynolds,
345 U. S. 1, 10 (1953) (recognizing an evidentiary privilege
in a civil damages case where “there is a reasonable dan
ger that compulsion of the evidence will expose military
matters which, in the interest of national security, should
not be divulged”).
These and the other remaining questions are within the
expertise and competence of the District Court to address
in the first instance.
* * *
In considering both the procedural and substantive
standards used to impose detention to prevent acts of
terrorism, proper deference must be accorded to the politi
cal branches. See United States v. Curtiss-Wright Export
Corp., 299 U. S. 304, 320 (1936). Unlike the President and
some designated Members of Congress, neither the Mem
bers of this Court nor most federal judges begin the day
with briefings that may describe new and serious threats
to our Nation and its people. The law must accord the
Executive substantial authority to apprehend and detain
those who pose a real danger to our security.
Officials charged with daily operational responsibility
for our security may consider a judicial discourse on the
history of the Habeas Corpus Act of 1679 and like matters
to be far removed from the Nation’s present, urgent con
cerns. Established legal doctrine, however, must be con
sulted for its teaching. Remote in time it may be; irrele
vant to the present it is not. Security depends upon a
sophisticated intelligence apparatus and the ability of our
Armed Forces to act and to interdict. There are further
considerations, however. Security subsists, too, in fidelity
to freedom’s first principles. Chief among these are free
69 Cite as: 553 U. S. ____ (2008)
Opinion of the Court
dom from arbitrary and unlawful restraint and the per
sonal liberty that is secured by adherence to the separa
tion of powers. It is from these principles that the judicial
authority to consider petitions for habeas corpus relief
derives.
Our opinion does not undermine the Executive’s powers
as Commander in Chief. On the contrary, the exercise of
those powers is vindicated, not eroded, when confirmed by
the Judicial Branch. Within the Constitution’s separa
tion-of-powers structure, few exercises of judicial power
are as legitimate or as necessary as the responsibility to
hear challenges to the authority of the Executive to im
prison a person. Some of these petitioners have been in
custody for six years with no definitive judicial determina
tion as to the legality of their detention. Their access to
the writ is a necessity to determine the lawfulness of their
status, even if, in the end, they do not obtain the relief
they seek.
Because our Nation’s past military conflicts have been of
limited duration, it has been possible to leave the outer
boundaries of war powers undefined. If, as some fear,
terrorism continues to pose dangerous threats to us for
years to come, the Court might not have this luxury. This
result is not inevitable, however. The political branches,
consistent with their independent obligations to interpret
and uphold the Constitution, can engage in a genuine
debate about how best to preserve constitutional values
while protecting the Nation from terrorism. Cf. Hamdan,
548 U. S., at 636 (BREYER, J., concurring) (“[J]udicial
insistence upon that consultation does not weaken our
Nation’s ability to deal with danger. To the contrary, that
insistence strengthens the Nation’s ability to determine—
through democratic means—how best to do so”).
It bears repeating that our opinion does not address the
content of the law that governs petitioners’ detention.
That is a matter yet to be determined. We hold that peti
70 BOUMEDIENE v. BUSH
Opinion of the Court
tioners may invoke the fundamental procedural protec
tions of habeas corpus. The laws and Constitution are
designed to survive, and remain in force, in extraordinary
times. Liberty and security can be reconciled; and in our
system they are reconciled within the framework of the
law. The Framers decided that habeas corpus, a right of
first importance, must be a part of that framework, a part
of that law.
The determination by the Court of Appeals that the
Suspension Clause and its protections are inapplicable to
petitioners was in error. The judgment of the Court of
Appeals is reversed. The cases are remanded to the Court
of Appeals with instructions that it remand the cases to
the District Court for proceedings consistent with this
opinion.
It is so ordered.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
SOUTER, J., concurring
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
JUSTICE SOUTER, with whom JUSTICE GINSBURG and
JUSTICE BREYER join, concurring.
I join the Court’s opinion in its entirety and add this
afterword only to emphasize two things one might over-
look after reading the dissents.
Four years ago, this Court in Rasul v. Bush, 542 U. S.
466 (2004) held that statutory habeas jurisdiction ex-
tended to claims of foreign nationals imprisoned by the
United States at Guantanamo Bay, “to determine the
legality of the Executive’s potentially indefinite detention”
of them, id., at 485. Subsequent legislation eliminated the
statutory habeas jurisdiction over these claims, so that
now there must be constitutionally based jurisdiction or
none at all. JUSTICE SCALIA is thus correct that here, for
the first time, this Court holds there is (he says “confers”)
constitutional habeas jurisdiction over aliens imprisoned
2 BOUMEDIENE v. BUSH
SOUTER, J., concurring
by the military outside an area of de jure national sover-
eignty, see post, at 1 (dissenting opinion). But no one who
reads the Court’s opinion in Rasul could seriously doubt
that the jurisdictional question must be answered the
same way in purely constitutional cases, given the Court’s
reliance on the historical background of habeas generally
in answering the statutory question. See, e.g., 542 U. S.,
at 473, 481–483, and nn. 11–14. Indeed, the Court in
Rasul directly answered the very historical question that
JUSTICE SCALIA says is dispositive, see post, at 18; it wrote
that “[a]pplication of the habeas statute to persons de-
tained at [Guantanamo] is consistent with the historical
reach of the writ of habeas corpus,” 542 U. S., at 481.
JUSTICE SCALIA dismisses the statement as dictum, see
post, at 21, but if dictum it was, it was dictum well consid-
ered, and it stated the view of five Members of this Court
on the historical scope of the writ. Of course, it takes more
than a quotation from Rasul, however much on point, to
resolve the constitutional issue before us here, which the
majority opinion has explored afresh in the detail it de-
serves. But whether one agrees or disagrees with today’s
decision, it is no bolt out of the blue.
A second fact insufficiently appreciated by the dissents
is the length of the disputed imprisonments, some of the
prisoners represented here today having been locked up
for six years, ante, at 66 (opinion of the Court). Hence the
hollow ring when the dissenters suggest that the Court is
somehow precipitating the judiciary into reviewing claims
that the military (subject to appeal to the Court of Appeals
for the District of Columbia Circuit) could handle within
some reasonable period of time. See, e.g., post, at 3 (opin-
ion of ROBERTS, C. J.) (“[T]he Court should have declined
to intervene until the D. C. Circuit had assessed the na-
ture and validity of the congressionally mandated proceed-
ings in a given detainee’s case”); post, at 6 (“[I]t is not
necessary to consider the availability of the writ until the
3 Cite as: 553 U. S. ____ (2008)
SOUTER, J., concurring
statutory remedies have been shown to be inadequate”);
post, at 8 (“[The Court] rushes to decide the fundamental
question of the reach of habeas corpus when the function-
ing of the DTA may make that decision entirely unneces-
sary”). These suggestions of judicial haste are all the more
out of place given the Court’s realistic acknowledgment
that in periods of exigency the tempo of any habeas review
must reflect the immediate peril facing the country. See
ante, at 64–65.
It is in fact the very lapse of four years from the time
Rasul put everyone on notice that habeas process was
available to Guantanamo prisoners, and the lapse of six
years since some of these prisoners were captured and
incarcerated, that stand at odds with the repeated sugges-
tions of the dissenters that these cases should be seen as a
judicial victory in a contest for power between the Court
and the political branches. See post, at 2, 3, 28 (ROBERTS,
C. J., dissenting); post, at 5, 6, 17, 18, 25 (SCALIA, J., dis-
senting). The several answers to the charge of triumphal-
ism might start with a basic fact of Anglo-American con-
stitutional history: that the power, first of the Crown and
now of the Executive Branch of the United States, is nec-
essarily limited by habeas corpus jurisdiction to enquire
into the legality of executive detention. And one could
explain that in this Court’s exercise of responsibility to
preserve habeas corpus something much more significant
is involved than pulling and hauling between the judicial
and political branches. Instead, though, it is enough to
repeat that some of these petitioners have spent six years
behind bars. After six years of sustained executive deten-
tions in Guantanamo, subject to habeas jurisdiction but
without any actual habeas scrutiny, today’s decision is no
judicial victory, but an act of perseverance in trying to
make habeas review, and the obligation of the courts to
provide it, mean something of value both to prisoners and
to the Nation. See ante, at 69.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA,
JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
Today the Court strikes down as inadequate the most
generous set of procedural protections ever afforded aliens
detained by this country as enemy combatants. The po
litical branches crafted these procedures amidst an ongo
ing military conflict, after much careful investigation and
thorough debate. The Court rejects them today out of
hand, without bothering to say what due process rights
the detainees possess, without explaining how the statute
fails to vindicate those rights, and before a single peti
tioner has even attempted to avail himself of the law’s
operation. And to what effect? The majority merely re
places a review system designed by the people’s represen
tatives with a set of shapeless procedures to be defined by
federal courts at some future date. One cannot help but
2 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
think, after surveying the modest practical results of the
majority’s ambitious opinion, that this decision is not
really about the detainees at all, but about control of
federal policy regarding enemy combatants.
The majority is adamant that the Guantanamo detain
ees are entitled to the protections of habeas corpus—its
opinion begins by deciding that question. I regard the
issue as a difficult one, primarily because of the unique
and unusual jurisdictional status of Guantanamo Bay. I
nonetheless agree with JUSTICE SCALIA’s analysis of our
precedents and the pertinent history of the writ, and
accordingly join his dissent. The important point for me,
however, is that the Court should have resolved these
cases on other grounds. Habeas is most fundamentally a
procedural right, a mechanism for contesting the legality
of executive detention. The critical threshold question in
these cases, prior to any inquiry about the writ’s scope, is
whether the system the political branches designed pro
tects whatever rights the detainees may possess. If so,
there is no need for any additional process, whether called
“habeas” or something else.
Congress entrusted that threshold question in the first
instance to the Court of Appeals for the District of Colum
bia Circuit, as the Constitution surely allows Congress to do.
See Detainee Treatment Act of 2005 (DTA), §1005(e)(2)(A),
119 Stat. 2742. But before the D. C. Circuit has addressed
the issue, the Court cashiers the statute, and without
answering this critical threshold question itself. The
Court does eventually get around to asking whether re
view under the DTA is, as the Court frames it, an “ade
quate substitute” for habeas, ante, at 42, but even then its
opinion fails to determine what rights the detainees pos
sess and whether the DTA system satisfies them. The
majority instead compares the undefined DTA process to
an equally undefined habeas right—one that is to be given
shape only in the future by district courts on a case-by
3 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
case basis. This whole approach is misguided.
It is also fruitless. How the detainees’ claims will be
decided now that the DTA is gone is anybody’s guess. But
the habeas process the Court mandates will most likely
end up looking a lot like the DTA system it replaces, as
the district court judges shaping it will have to reconcile
review of the prisoners’ detention with the undoubted
need to protect the American people from the terrorist
threat—precisely the challenge Congress undertook in
drafting the DTA. All that today’s opinion has done is
shift responsibility for those sensitive foreign policy and
national security decisions from the elected branches to
the Federal Judiciary.
I believe the system the political branches constructed
adequately protects any constitutional rights aliens cap
tured abroad and detained as enemy combatants may
enjoy. I therefore would dismiss these cases on that
ground. With all respect for the contrary views of the
majority, I must dissent.
I
The Court’s opinion makes plain that certiorari to re
view these cases should never have been granted. As two
Members of today’s majority once recognized, “traditional
rules governing our decision of constitutional questions
and our practice of requiring the exhaustion of available
remedies . . . make it appropriate to deny these petitions.”
Boumediene v. Bush, 549 U. S. ___ (2007) (slip op., at 1)
(citation omitted) (statement of STEVENS and KENNEDY,
JJ., respecting denial of certiorari). Just so. Given the
posture in which these cases came to us, the Court should
have declined to intervene until the D. C. Circuit had
assessed the nature and validity of the congressionally
mandated proceedings in a given detainee’s case.
The political branches created a two-part, collateral
review procedure for testing the legality of the prisoners’
4 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
detention: It begins with a hearing before a Combatant
Status Review Tribunal (CSRT) followed by review in the
D. C. Circuit. As part of that review, Congress authorized
the D. C. Circuit to decide whether the CSRT proceedings
are consistent with “the Constitution and laws of the
United States.” DTA §1005(e)(2)(C), 119 Stat. 2742. No
petitioner, however, has invoked the D. C. Circuit review
the statute specifies. See 476 F. 3d 981, 994, and n. 16
(CADC 2007); Brief for Federal Respondents 41–43. As a
consequence, that court has had no occasion to decide
whether the CSRT hearings, followed by review in the
Court of Appeals, vindicate whatever constitutional and
statutory rights petitioners may possess. See 476 F. 3d, at
994, and n. 16.
Remarkably, this Court does not require petitioners to
exhaust their remedies under the statute; it does not wait
to see whether those remedies will prove sufficient to
protect petitioners’ rights. Instead, it not only denies the
D. C. Circuit the opportunity to assess the statute’s reme
dies, it refuses to do so itself: the majority expressly de
clines to decide whether the CSRT procedures, coupled
with Article III review, satisfy due process. See ante, at
54.
It is grossly premature to pronounce on the detainees’
right to habeas without first assessing whether the reme
dies the DTA system provides vindicate whatever rights
petitioners may claim. The plurality in Hamdi v. Rums-
feld, 542 U. S. 507, 533 (2004), explained that the Consti
tution guaranteed an American citizen challenging his
detention as an enemy combatant the right to “notice of
the factual basis for his classification, and a fair opportu
nity to rebut the Government’s factual assertions before a
neutral decisionmaker.” The plurality specifically stated
that constitutionally adequate collateral process could be
provided “by an appropriately authorized and properly
constituted military tribunal,” given the “uncommon
5 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
potential to burden the Executive at a time of ongoing
military conflict.” Id., at 533, 538. This point is directly
pertinent here, for surely the Due Process Clause does not
afford non-citizens in such circumstances greater protec
tion than citizens are due.
If the CSRT procedures meet the minimal due process
requirements outlined in Hamdi, and if an Article III
court is available to ensure that these procedures are
followed in future cases, see id., at 536; INS v. St. Cyr, 533
U. S. 289, 304 (2001); Heikkila v. Barber, 345 U. S. 229,
236 (1953), there is no need to reach the Suspension
Clause question. Detainees will have received all the
process the Constitution could possibly require, whether
that process is called “habeas” or something else. The
question of the writ’s reach need not be addressed.
This is why the Court should have required petitioners
to exhaust their remedies under the statute. As we ex
plained in Gusik v. Schilder, 340 U. S. 128, 132 (1950), “If
an available procedure has not been employed to rectify
the alleged error” petitioners complain of, “any interfer
ence by [a] federal court may be wholly needless. The
procedure established to police the errors of the tribunal
whose judgment is challenged may be adequate for the
occasion.” Because the majority refuses to assess whether
the CSRTs comport with the Constitution, it ends up
razing a system of collateral review that it admits may in
fact satisfy the Due Process Clause and be “structurally
sound.” Ante, at 56. But if the collateral review proce
dures Congress has provided—CSRT review coupled with
Article III scrutiny—are sound, interference by a federal
habeas court may be entirely unnecessary.
The only way to know is to require petitioners to use the
alternative procedures Congress designed. Mandating
that the petitioners exhaust their statutory remedies “is in
no sense a suspension of the writ of habeas corpus. It is
merely a deferment of resort to the writ until other correc
6 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
tive procedures are shown to be futile.” Gusik, supra, at
132. So too here, it is not necessary to consider the avail
ability of the writ until the statutory remedies have been
shown to be inadequate to protect the detainees’ rights.
Cf. 28 U. S. C. §2254(b)(1)(A) (“An application for a writ of
habeas corpus . . . shall not be granted unless it appears
that . . . the applicant has exhausted the remedies avail
able in the courts of the State”). Respect for the judg
ments of Congress—whose Members take the same oath
we do to uphold the Constitution—requires no less.
In the absence of any assessment of the DTA’s remedies,
the question whether detainees are entitled to habeas is
an entirely speculative one. Our precedents have long
counseled us to avoid deciding such hypothetical questions
of constitutional law. See Spector Motor Service, Inc. v.
McLaughlin, 323 U. S. 101, 105 (1944) (“If there is one
doctrine more deeply rooted than any other in the process
of constitutional adjudication, it is that we ought not to
pass on questions of constitutionality . . . unless such
[questions are] unavoidable”); see also Ashwander v. TVA,
297 U. S. 288, 347 (1936) (Brandeis, J., concurring) (Con
stitutional questions should not be decided unless “ ‘abso
lutely necessary to a decision of the case’” (quoting Burton
v. United States, 196 U. S. 283, 295 (1905))). This is a
“fundamental rule of judicial restraint.” Three Affiliated
Tribes of Fort Berthold Reservation v. Wold Engineering,
P. C., 467 U. S. 138, 157 (1984).
The Court acknowledges that “the ordinary course”
would be not to decide the constitutionality of the DTA at
this stage, but abandons that “ordinary course” in light of
the “gravity” of the constitutional issues presented and the
prospect of additional delay. Ante, at 43. It is, however,
precisely when the issues presented are grave that adher
ence to the ordinary course is most important. A principle
applied only when unimportant is not much of a principle
at all, and charges of judicial activism are most effectively
7 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
rebutted when courts can fairly argue they are following
normal practices.
The Court is also concerned that requiring petitioners to
pursue “DTA review before proceeding with their habeas
corpus actions” could involve additional delay. Ante, at 66.
The nature of the habeas remedy the Court instructs
lower courts to craft on remand, however, is far more
unsettled than the process Congress provided in the DTA.
See ante, at 69 (“[O]ur opinion does not address the con
tent of the law that governs petitioners’ detention. That is
a matter yet to be determined”). There is no reason to
suppose that review according to procedures the Federal
Judiciary will design, case by case, will proceed any faster
than the DTA process petitioners disdained.
On the contrary, the system the Court has launched
(and directs lower courts to elaborate) promises to take
longer. The Court assures us that before bringing their
habeas petitions, detainees must usually complete the
CSRT process. See ante, at 66. Then they may seek re
view in federal district court. Either success or failure
there will surely result in an appeal to the D. C. Circuit—
exactly where judicial review starts under Congress’s
system. The effect of the Court’s decision is to add addi
tional layers of quite possibly redundant review. And
because nobody knows how these new layers of “habeas”
review will operate, or what new procedures they will
require, their contours will undoubtedly be subject to fresh
bouts of litigation. If the majority were truly concerned
about delay, it would have required petitioners to use the
DTA process that has been available to them for 21⁄2 years,
with its Article III review in the D. C. Circuit. That sys
tem might well have provided petitioners all the relief to
which they are entitled long before the Court’s newly
installed habeas review could hope to do so.1
——————
1
In light of the foregoing, the concurrence is wrong to suggest that I
8 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
The Court’s refusal to require petitioners to exhaust the
remedies provided by Congress violates the “traditional
rules governing our decision of constitutional questions.”
Boumediene, 549 U. S., at ___ (slip op., at 1) (statement of
STEVENS and KENNEDY, JJ., respecting denial of certio
rari). The Court’s disrespect for these rules makes its
decision an awkward business. It rushes to decide the
fundamental question of the reach of habeas corpus when
the functioning of the DTA may make that decision entirely
unnecessary, and it does so with scant idea of how DTA
judicial review will actually operate.
II
The majority’s overreaching is particularly egregious
given the weakness of its objections to the DTA. Simply
put, the Court’s opinion fails on its own terms. The major
ity strikes down the statute because it is not an “adequate
substitute” for habeas review, ante, at 42, but fails to show
what rights the detainees have that cannot be vindicated
by the DTA system.
Because the central purpose of habeas corpus is to test
the legality of executive detention, the writ requires most
fundamentally an Article III court able to hear the pris
——————
“insufficiently appreciat[e]” the issue of delay in these cases. See ante,
at 2 (opinion of SOUTER, J.). This Court issued its decisions in Rasul v.
Bush, 542 U. S. 466, and Hamdi v. Rumsfeld 542 U. S. 507, in 2004.
The concurrence makes it sound as if the political branches have done
nothing in the interim. In fact, Congress responded 18 months later by
enacting the DTA. Congress cannot be faulted for taking that time to
consider how best to accommodate both the detainees’ interests and the
need to keep the American people safe. Since the DTA became law,
petitioners have steadfastly refused to avail themselves of the statute’s
review mechanisms. It is unfair to complain that the DTA system
involves too much delay when petitioners have consistently refused to
use it, preferring to litigate instead. Today’s decision obligating district
courts to craft new procedures to replace those in the DTA will only
prolong the process—and delay relief.
9 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
oner’s claims and, when necessary, order release. See
Brown v. Allen, 344 U. S. 443, 533 (1953) (Jackson, J.,
concurring in result). Beyond that, the process a given
prisoner is entitled to receive depends on the circum
stances and the rights of the prisoner. See Mathews v.
Eldridge, 424 U. S. 319, 335 (1976). After much hemming
and hawing, the majority appears to concede that the DTA
provides an Article III court competent to order release.
See ante, at 61. The only issue in dispute is the process
the Guantanamo prisoners are entitled to use to test the
legality of their detention. Hamdi concluded that Ameri
can citizens detained as enemy combatants are entitled to
only limited process, and that much of that process could
be supplied by a military tribunal, with review to follow in
an Article III court. That is precisely the system we have
here. It is adequate to vindicate whatever due process
rights petitioners may have.
A
The Court reaches the opposite conclusion partly be
cause it misreads the statute. The majority appears not to
understand how the review system it invalidates actually
works—specifically, how CSRT review and review by the
D. C. Circuit fit together. After briefly acknowledging in
its recitation of the facts that the Government designed
the CSRTs “to comply with the due process requirements
identified by the plurality in Hamdi,” ante, at 3, the Court
proceeds to dismiss the tribunal proceedings as no more
than a suspect method used by the Executive for deter
mining the status of the detainees in the first instance, see
ante, at 43. This leads the Court to treat the review the
DTA provides in the D. C. Circuit as the only opportunity
detainees have to challenge their status determination.
See ante, at 49.
The Court attempts to explain its glancing treatment of
the CSRTs by arguing that “[w]hether one characterizes
10 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
the CSRT process as direct review of the Executive’s bat
tlefield determination . . . or as the first step in the collat
eral review of a battlefield determination makes no differ
ence.” Ante, at 54. First of all, the majority is quite wrong
to dismiss the Executive’s determination of detainee
status as no more than a “battlefield” judgment, as if it
were somehow provisional and made in great haste. In
fact, detainees are designated “enemy combatants” only
after “multiple levels of review by military officers and
officials of the Department of Defense.” Memorandum of
the Secretary of the Navy, Implementation of Combatant
Status Review Tribunal Procedures for Enemy Combat
ants Detained at Guantanamo Bay Naval Base (July 29,
2004), App. J to Pet. for Cert. in No. 06–1196, p. 150 (here
inafter Implementation Memo).
The majority is equally wrong to characterize the
CSRTs as part of that initial determination process. They
are instead a means for detainees to challenge the Gov
ernment’s determination. The Executive designed the
CSRTs to mirror Army Regulation 190–8, see Brief for
Federal Respondents 48, the very procedural model the
plurality in Hamdi said provided the type of process an
enemy combatant could expect from a habeas court, see
542 U. S., at 538 (plurality opinion). The CSRTs operate
much as habeas courts would if hearing the detainee’s
collateral challenge for the first time: They gather evi
dence, call witnesses, take testimony, and render a deci
sion on the legality of the Government’s detention. See
Implementation Memo, App. J to Pet. for Cert. in No. 06–
1196, at 153–162. If the CSRT finds a particular detainee
has been improperly held, it can order release. See id., at
164.
The majority insists that even if “the CSRTs satisf[ied]
due process standards,” full habeas review would still be
necessary, because habeas is a collateral remedy available
even to prisoners “detained pursuant to the most rigorous
11 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
proceedings imaginable.” Ante, at 55, 56. This comment
makes sense only if the CSRTs are incorrectly viewed as a
method used by the Executive for determining the prison
ers’ status, and not as themselves part of the collateral
review to test the validity of that determination. See
Gusik, 340 U. S., at 132. The majority can deprecate the
importance of the CSRTs only by treating them as some
thing they are not.
The use of a military tribunal such as the CSRTs to
review the aliens’ detention should be familiar to this
Court in light of the Hamdi plurality, which said that the
due process rights enjoyed by American citizens detained
as enemy combatants could be vindicated “by an appropri
ately authorized and properly constituted military tribu
nal.” 542 U. S., at 538. The DTA represents Congress’
considered attempt to provide the accused alien combat
ants detained at Guantanamo a constitutionally adequate
opportunity to contest their detentions before just such a
tribunal.
But Congress went further in the DTA. CSRT review is
just the first tier of collateral review in the DTA system.
The statute provides additional review in an Article III
court. Given the rationale of today’s decision, it is well
worth recalling exactly what the DTA provides in this
respect. The statute directs the D. C. Circuit to consider
whether a particular alien’s status determination “was
consistent with the standards and procedures specified by
the Secretary of Defense” and “whether the use of such
standards and procedures to make the determination is
consistent with the Constitution and laws of the United
States.” DTA §1005(e)(2)(C), 119 Stat. 2742. That is, a
court determines whether the CSRT procedures are consti
tutional, and a court determines whether those procedures
were followed in a particular case.
In short, the Hamdi plurality concluded that this type of
review would be enough to satisfy due process, even for
12 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
citizens. See 542 U. S., at 538. Congress followed the
Court’s lead, only to find itself the victim of a constitu
tional bait and switch.
Hamdi merits scant attention from the Court—a re
markable omission, as Hamdi bears directly on the issues
before us. The majority attempts to dismiss Hamdi’s
relevance by arguing that because the availability of
§2241 federal habeas was never in doubt in that case, “the
Court had no occasion to define the necessary scope of
habeas review . . . in the context of enemy combatant
detentions.” Ante, at 55. Hardly. Hamdi was all about
the scope of habeas review in the context of enemy com
batant detentions. The petitioner, an American citizen
held within the United States as an enemy combatant,
invoked the writ to challenge his detention. 542 U. S., at
510–511. After “a careful examination both of the writ . . .
and of the Due Process Clause,” this Court enunciated the
“basic process” the Constitution entitled Hamdi to expect
from a habeas court under §2241. Id., at 525, 534. That
process consisted of the right to “receive notice of the
factual basis for his classification, and a fair opportunity
to rebut the Government’s factual assertions before a
neutral decisionmaker.” Id., at 533. In light of the Gov
ernment’s national security responsibilities, the plurality
found the process could be “tailored to alleviate [the]
uncommon potential to burden the Executive at a time of
ongoing military conflict.” Ibid. For example, the Gov
ernment could rely on hearsay and could claim a presump
tion in favor of its own evidence. See id., at 533–534.
Hamdi further suggested that this “basic process” on
collateral review could be provided by a military tribunal.
It pointed to prisoner-of-war tribunals as a model that
would satisfy the Constitution’s requirements. See id., at
538. Only “[i]n the absence of such process” before a mili
tary tribunal, the Court held, would Article III courts need
to conduct full-dress habeas proceedings to “ensure that
13 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
the minimum requirements of due process are achieved.”
Ibid. (emphasis added). And even then, the petitioner
would be entitled to no more process than he would have
received from a properly constituted military review panel,
given his limited due process rights and the Government’s
weighty interests. See id., at 533–534, 538.
Contrary to the majority, Hamdi is of pressing relevance
because it establishes the procedures American citizens
detained as enemy combatants can expect from a habeas
court proceeding under §2241. The DTA system of military
tribunal hearings followed by Article III review looks a lot
like the procedure Hamdi blessed. If nothing else, it is
plain from the design of the DTA that Congress, the
President, and this Nation’s military leaders have made a
good-faith effort to follow our precedent.
The Court, however, will not take “yes” for an answer.
The majority contends that “[i]f Congress had envisioned
DTA review as coextensive with traditional habeas corpus,”
it would have granted the D. C. Circuit far broader review
authority. Ante, at 48. Maybe so, but that comment reveals
the majority’s misunderstanding. “[T]raditional habeas
corpus” takes no account of what Hamdi recognized as the
“uncommon potential to burden the Executive at a time of
ongoing military conflict.” 542 U. S., at 533. Besides, Con
gress and the Executive did not envision “DTA review”—
by which I assume the Court means D. C. Circuit review,
see ante, at 48—as the detainees’ only opportunity to
challenge their detentions. Instead, the political branches
crafted CSRT and D. C. Circuit review to operate together,
with the goal of providing noncitizen detainees the level of
collateral process Hamdi said would satisfy the due proc
ess rights of American citizens. See Brief for Federal
Respondents 48–53.
B
Given the statutory scheme the political branches
14 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
adopted, and given Hamdi, it simply will not do for the
majority to dismiss the CSRT procedures as “far more
limited” than those used in military trials, and therefore
beneath the level of process “that would eliminate the
need for habeas corpus review.” Ante, at 37. The question
is not how much process the CSRTs provide in comparison
to other modes of adjudication. The question is whether
the CSRT procedures—coupled with the judicial review
specified by the DTA—provide the “basic process” Hamdi
said the Constitution affords American citizens detained
as enemy combatants. See 542 U. S., at 534.
By virtue of its refusal to allow the D. C. Circuit to
assess petitioners’ statutory remedies, and by virtue of its
own refusal to consider, at the outset, the fit between
those remedies and due process, the majority now finds
itself in the position of evaluating whether the DTA sys
tem is an adequate substitute for habeas review without
knowing what rights either habeas or the DTA is supposed
to protect. The majority attempts to elide this problem by
holding that petitioners have a right to habeas corpus and
then comparing the DTA against the “historic office” of the
writ. Ante, at 47. But habeas is, as the majority acknowl
edges, a flexible remedy rather than a substantive right.
Its “precise application . . . change[s] depending upon the
circumstances.” Ante, at 50. The shape of habeas review
ultimately depends on the nature of the rights a petitioner
may assert. See, e.g., Reid v. Covert, 354 U. S. 1, 75 (1957)
(Harlan, J., concurring in result) (“[T]he question of which
specific safeguards of the Constitution are appropriately to
be applied in a particular context . . . can be reduced to the
issue of what process is ‘due’ a defendant in the particular
circumstances of a particular case”).
The scope of federal habeas review is traditionally more
limited in some contexts than in others, depending on the
status of the detainee and the rights he may assert. See
St. Cyr, 533 U. S., at 306 (“In [immigration cases], other
15 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
than the question whether there was some evidence to
support the [deportation] order, the courts generally did
not review factual determinations made by the Executive”
(footnote omitted)); Burns v. Wilson, 346 U. S. 137, 139
(1953) (plurality opinion) (“[I]n military habeas corpus the
inquiry, the scope of matters open for review, has always
been more narrow than in civil cases”); In re Yamashita,
327 U. S. 1, 8 (1946) (“The courts may inquire whether the
detention complained of is within the authority of those
detaining the petitioner. If the military tribunals have
lawful authority to hear, decide and condemn, their action
is not subject to judicial review”); Ex parte Quirin, 317 U. S.
1, 25 (1942) (federal habeas review of military commission
verdict limited to determining commission’s jurisdiction).
Declaring that petitioners have a right to habeas in no
way excuses the Court from explaining why the DTA does
not protect whatever due process or statutory rights peti
tioners may have. Because if the DTA provides a means
for vindicating petitioners’ rights, it is necessarily an
adequate substitute for habeas corpus. See Swain v.
Pressley, 430 U. S. 372, 381 (1977); United States v. Hay-
man, 342 U. S. 205, 223 (1952).
For my part, I will assume that any due process rights
petitioners may possess are no greater than those of
American citizens detained as enemy combatants. It is
worth noting again that the Hamdi controlling opinion
said the Constitution guarantees citizen detainees only
“basic” procedural rights, and that the process for securing
those rights can “be tailored to alleviate [the] uncommon
potential to burden the Executive at a time of ongoing
military conflict.” 542 U. S., at 533. The majority, how
ever, objects that “the procedural protections afforded to
the detainees in the CSRT hearings are . . . limited.” Ante,
at 37. But the evidentiary and other limitations the Court
complains of reflect the nature of the issue in contest,
namely, the status of aliens captured by our Armed Forces
16 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
abroad and alleged to be enemy combatants. Contrary to
the repeated suggestions of the majority, DTA review need
not parallel the habeas privileges enjoyed by noncombat
ant American citizens, as set out in 28 U. S. C. §2241
(2000 ed. and Supp V). Cf. ante, at 46–47. It need only
provide process adequate for noncitizens detained as
alleged combatants.
To what basic process are these detainees due as habeas
petitioners? We have said that “at the absolute mini
mum,” the Suspension Clause protects the writ “‘as it
existed in 1789.’” St. Cyr, supra, at 301 (quoting Felker v.
Turpin, 518 U. S. 651, 663–664 (1996)). The majority
admits that a number of historical authorities suggest
that at the time of the Constitution’s ratification, “com
mon-law courts abstained altogether from matters involv
ing prisoners of war.” Ante, at 17. If this is accurate, the
process provided prisoners under the DTA is plainly more
than sufficient—it allows alleged combatants to challenge
both the factual and legal bases of their detentions.
Assuming the constitutional baseline is more robust, the
DTA still provides adequate process, and by the majority’s
own standards. Today’s Court opines that the Suspension
Clause guarantees prisoners such as the detainees “a
meaningful opportunity to demonstrate that [they are]
being held pursuant to the erroneous application or inter
pretation of relevant law.” Ante, at 50 (internal quotation
marks omitted). Further, the Court holds that to be an
adequate substitute, any tribunal reviewing the detainees’
cases “must have the power to order the conditional re
lease of an individual unlawfully detained.” Ibid. The
DTA system—CSRT review of the Executive’s determina
tion followed by D. C. Circuit review for sufficiency of the
evidence and the constitutionality of the CSRT process—
meets these criteria.
17 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
C
At the CSRT stage, every petitioner has the right to
present evidence that he has been wrongfully detained.
This includes the right to call witnesses who are reasona
bly available, question witnesses called by the tribunal,
introduce documentary evidence, and testify before the
tribunal. See Implementation Memo, App. J to Pet. for
Cert. in No. 06–1196, at 154–156, 158–159, 161.
While the Court concedes detainees may confront all
witnesses called before the tribunal, it suggests this right
is “more theoretical than real” because “there are in effect
no limits on the admission of hearsay evidence.” Ante, at
55. The Court further complains that petitioners lack “the
assistance of counsel,” and—given the limits on their
access to classified information—“may not be aware of the
most critical allegations” against them. Ante, at 54. None
of these complaints is persuasive.
Detainees not only have the opportunity to confront any
witness who appears before the tribunal, they may call
witnesses of their own. The Implementation Memo re
quires only that detainees’ witnesses be “reasonably avail
able,” App. J to Pet. for Cert. in No. 06–1196, at 155, a
requirement drawn from Army Regulation 190–8, ch. 1,
§1–6(e)(6), and entirely consistent with the Government’s
interest in avoiding “a futile search for evidence” that
might burden warmaking responsibilities, Hamdi, supra,
at 532. The dangerous mission assigned to our forces
abroad is to fight terrorists, not serve subpoenas. The
Court is correct that some forms of hearsay evidence are
admissible before the CSRT, but Hamdi expressly ap
proved this use of hearsay by habeas courts. 542 U. S.,
at 533–534 (“Hearsay, for example, may need to be ac
cepted as the most reliable available evidence from the
Government”).
As to classified information, while detainees are not
permitted access to it themselves, the Implementation
18 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
Memo provides each detainee with a “Personal Represen
tative” who may review classified documents at the CSRT
stage and summarize them for the detainee. Implementa
tion Memo, supra, at 152, 154–155, 156; Brief for Federal
Respondents 54–55. The prisoner’s counsel enjoys the
same privilege on appeal before the D. C. Circuit. That is
more access to classified material for alleged alien enemy
combatants than ever before provided. I am not aware of
a single instance—and certainly the majority cites none—
in which detainees such as petitioners have been provided
access to classified material in any form. Indeed, prison
ers of war who challenge their status determinations
under the Geneva Convention are afforded no such access,
see Army Regulation 190–8, ch. 1, §§1–6(e)(3) and (5), and
the prisoner-of-war model is the one Hamdi cited as con
sistent with the demands of due process for citizens, see
542 U. S., at 538.
What alternative does the Court propose? Allow free
access to classified information and ignore the risk the
prisoner may eventually convey what he learns to parties
hostile to this country, with deadly consequences for those
who helped apprehend the detainee? If the Court can
design a better system for communicating to detainees the
substance of any classified information relevant to their
cases, without fatally compromising national security
interests and sources, the majority should come forward
with it. Instead, the majority fobs that vexing question off
on district courts to answer down the road.
Prisoners of war are not permitted access to classified
information, and neither are they permitted access to
counsel, another supposed failing of the CSRT process.
And yet the Guantanamo detainees are hardly denied all
legal assistance. They are provided a “Personal Represen
tative” who, as previously noted, may access classified
information, help the detainee arrange for witnesses,
assist the detainee’s preparation of his case, and even aid
19 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
the detainee in presenting his evidence to the tribunal.
See Implementation Memo, supra, at 161. The provision
for a personal representative on this order is one of several
ways in which the CSRT procedures are more generous
than those provided prisoners of war under Army Regula
tion 190–8.
Keep in mind that all this is just at the CSRT stage.
Detainees receive additional process before the D. C.
Circuit, including full access to appellate counsel and the
right to challenge the factual and legal bases of their
detentions. DTA §1005(e)(2)(C) empowers the Court of
Appeals to determine not only whether the CSRT observed
the “procedures specified by the Secretary of Defense,” but
also “whether the use of such standards and procedures
. . . is consistent with the Constitution and laws of the
United States.” 119 Stat. 2742. These provisions permit
detainees to dispute the sufficiency of the evidence against
them. They allow detainees to challenge a CSRT panel’s
interpretation of any relevant law, and even the constitu
tionality of the CSRT proceedings themselves. This in
cludes, as the Solicitor General acknowledges, the ability
to dispute the Government’s right to detain alleged com
batants in the first place, and to dispute the Government’s
definition of “enemy combatant.” Brief for Federal Re
spondents 59. All this before an Article III court—plainly
a neutral decisionmaker.
All told, the DTA provides the prisoners held at Guan
tanamo Bay adequate opportunity to contest the bases of
their detentions, which is all habeas corpus need allow.
The DTA provides more opportunity and more process, in
fact, than that afforded prisoners of war or any other
alleged enemy combatants in history.
D
Despite these guarantees, the Court finds the DTA
system an inadequate habeas substitute, for one central
20 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
reason: Detainees are unable to introduce at the appeal
stage exculpatory evidence discovered after the conclusion
of their CSRT proceedings. See ante, at 58. The Court
hints darkly that the DTA may suffer from other infirmi
ties, see ante, at 63 (“We do not imply DTA review would
be a constitutionally sufficient replacement for habeas
corpus but for these limitations on the detainee’s ability to
present exculpatory evidence”), but it does not bother to
name them, making a response a bit difficult. As it
stands, I can only assume the Court regards the supposed
defect it did identify as the gravest of the lot.
If this is the most the Court can muster, the ice beneath
its feet is thin indeed. As noted, the CSRT procedures
provide ample opportunity for detainees to introduce
exculpatory evidence—whether documentary in nature or
from live witnesses—before the military tribunals. See
infra, at 21–23; Implementation Memo, App. J to Pet. for
Cert. in No. 06–196, at 155–156. And if their ability to
introduce such evidence is denied contrary to the Consti
tution or laws of the United States, the D. C. Circuit has
the authority to say so on review.
Nevertheless, the Court asks us to imagine an instance
in which evidence is discovered after the CSRT panel
renders its decision, but before the Court of Appeals re
views the detainee’s case. This scenario, which of course
has not yet come to pass as no review in the D. C. Circuit
has occurred, provides no basis for rejecting the DTA as a
habeas substitute. While the majority is correct that the
DTA does not contemplate the introduction of “newly
discovered” evidence before the Court of Appeals, petition
ers and the Solicitor General agree that the DTA does
permit the D. C. Circuit to remand a detainee’s case for a
new CSRT determination. Brief for Petitioner Boumedi
ene et al. in No. 06–1195, at 30; Brief for Federal Respon
dents 60–61. In the event a detainee alleges that he has
obtained new and persuasive exculpatory evidence that
21 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
would have been considered by the tribunal below had it
only been available, the D. C. Circuit could readily remand
the case to the tribunal to allow that body to consider the
evidence in the first instance. The Court of Appeals could
later review any new or reinstated decision in light of the
supplemented record.
If that sort of procedure sounds familiar, it should.
Federal appellate courts reviewing factual determinations
follow just such a procedure in a variety of circumstances.
See, e.g., United States v. White, 492 F. 3d 380, 413 (CA6
2007) (remanding new-evidence claim to the district court
for a Brady evidentiary hearing); Avila v. Roe, 298 F. 3d
750, 754 (CA9 2002) (remanding habeas claim to the
district court for evidentiary hearing to clarify factual
record); United States v. Leone, 215 F. 3d 253, 256 (CA2
2000) (observing that when faced on direct appeal with an
underdeveloped claim for ineffective assistance of counsel,
the appellate court may remand to the district court for
necessary factfinding).
A remand is not the only relief available for detainees
caught in the Court’s hypothetical conundrum. The DTA
expressly directs the Secretary of Defense to “provide for
periodic review of any new evidence that may become
available relating to the enemy combatant status of a
detainee.” DTA §1005(a)(3). Regulations issued by the
Department of Defense provide that when a detainee puts
forward new, material evidence “not previously presented
to the detainee’s CSRT,” the Deputy Secretary of Defense
“‘will direct that a CSRT convene to reconsider the basis of
the detainee’s . . . status in light of the new information.’”
Office for the Administrative Review of the Detention of
Enemy Combatants, Instruction 5421.1, Procedure for
Review of “New Evidence” Relating to Enemy Combatant
(EC) Status ¶¶4(a)(1), 5(b) (May 7, 2007); Brief for Federal
Respondents 56, n. 30. Pursuant to DTA §1005(e)(2)(A),
the resulting CSRT determination is again reviewable in
22 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
full by the D. C. Circuit.2
In addition, DTA §1005(d)(1) further requires the De
partment of Defense to conduct a yearly review of the
status of each prisoner. See 119 Stat. 2741. The Deputy
Secretary of Defense has promulgated concomitant regula
tions establishing an Administrative Review Board to
assess “annually the need to continue to detain each en
emy combatant.” Deputy Secretary of Defense Order OSD
06942–04 (May 11, 2004), App. K to Pet. for Cert. in No.
06–1196, p. 189. In the words of the implementing order,
the purpose of this annual review is to afford every de
tainee the opportunity “to explain why he is no longer a
threat to the United States” and should be released. Ibid.
The Board’s findings are forwarded to a presidentially
appointed, Senate-confirmed civilian within the Depart
ment of Defense whom the Secretary of Defense has des
ignated to administer the review process. This designated
civilian official has the authority to order release upon the
Board’s recommendation. Id., at 201.
The Court’s hand wringing over the DTA’s treatment of
later-discovered exculpatory evidence is the most it has to
show after a roving search for constitutionally problematic
scenarios. But “[t]he delicate power of pronouncing an Act
of Congress unconstitutional,” we have said, “is not to be
exercised with reference to hypothetical cases thus imag
ined.” United States v. Raines, 362 U. S. 17, 22 (1960).
The Court today invents a sort of reverse facial challenge
——————
2
The Court wonders what might happen if the detainee puts forward
new material evidence but the Deputy Secretary refuses to convene a
new CSRT. See ante, at 62–63. The answer is that the detainee can
petition the D. C. Circuit for review. The DTA directs that the proce
dures for review of new evidence be included among “[t]he procedures
submitted under paragraph (1)(A)” governing CSRT review of enemy
combatant status §1405(a)(3), 119 Stat. 3476. It is undisputed that the
D. C. Circuit has statutory authority to review and enforce these
procedures. See DTA §1005(e)(2)(C)(i), id., at 2742.
23 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
and applies it with gusto: If there is any scenario in which
the statute might be constitutionally infirm, the law must
be struck down. Cf. United States v. Salerno, 481 U. S.
739, 745 (1987) (“A facial challenge . . . must establish that
no set of circumstances exists under which the Act would
be valid”); see also Washington v. Glucksberg, 521 U. S.
702, 739–740, and n. 7 (1997) (STEVENS, J., concurring in
judgments) (facial challenge must fail where the statute
has “‘plainly legitimate sweep’” (quoting Broadrick v.
Oklahoma, 413 U. S. 601, 615 (1973))). The Court’s new
method of constitutional adjudication only underscores its
failure to follow our usual procedures and require peti
tioners to demonstrate that they have been harmed by the
statute they challenge. In the absence of such a concrete
showing, the Court is unable to imagine a plausible hypo
thetical in which the DTA is unconstitutional.
E
The Court’s second criterion for an adequate substitute
is the “power to order the conditional release of an indi
vidual unlawfully detained.” Ante, at 50. As the Court
basically admits, the DTA can be read to permit the D. C.
Circuit to order release in light of our traditional princi
ples of construing statutes to avoid difficult constitutional
issues, when reasonably possible. See ante, at 56–57.
The Solicitor General concedes that remedial authority
of some sort must be implied in the statute, given that the
DTA—like the general habeas law itself, see 28 U. S. C.
§2243—provides no express remedy of any kind. Brief for
Federal Respondents 60–61. The parties agree that at the
least, the DTA empowers the D. C. Circuit to remand a
prisoner’s case to the CSRT with instructions to perform a
new status assessment. Brief for Petitioner Boumediene
et al. in No. 06–1195, at 30; Brief for Federal Respondents
60–61. To avoid constitutional infirmity, it is reasonable
to imply more, see Ashwander, 297 U. S., at 348 (Brandeis,
24 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
J., concurring) (“When the validity of an act of the Con
gress is drawn in question . . . it is a cardinal principle
that this Court will . . . ascertain whether a construction of
the statute is fairly possible by which the [constitutional]
question may be avoided” (internal quotation marks omit
ted)); see also St. Cyr, 533 U. S., at 299–300, especially in
view of the Solicitor General’s concession at oral argument
and in his Supplemental Brief that authority to release
might be read in the statute, see Tr. of Oral Arg. 37; Sup
plemental Brief for Federal Respondents 9.
The Court grudgingly suggests that “Congress’ silence
on the question of remedies suggests acquiescence to any
constitutionally required remedy.” Ante, at 58. But the
argument in favor of statutorily authorized release is
stronger than that. The DTA’s parallels to 28 U. S. C.
§2243 on this score are noteworthy. By way of remedy,
the general federal habeas statute provides only that the
court, having heard and determined the facts, shall “dis
pose of the matter as law and justice require.” Ibid. We
have long held, and no party here disputes, that this
includes the power to order release. See Wilkinson v.
Dotson, 544 U. S. 74, 79 (2005) (“[T]he writ’s history
makes clear that it traditionally has been accepted as the
specific instrument to obtain release from [unlawful]
confinement” (internal quotation marks omitted)).
The DTA can be similarly read. Because Congress
substituted DTA review for habeas corpus and because
the “unique purpose” of the writ is “to release the appli
cant . . . from unlawful confinement,” Allen v. McCurry,
449 U. S. 90, 98, n. 12 (1980), DTA §1005(e)(2) can and
should be read to confer on the Court of Appeals the
authority to order release in appropriate circumstances.
Section 1005(e)(2)(D) plainly contemplates release, ad
dressing the effect “release of [an] alien from the custody
of the Department of Defense” will have on the jurisdiction
of the court. 119 Stat. 2742–2743. This reading avoids
25 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
serious constitutional difficulty and is consistent with the
text of the statute.
The D. C. Circuit can thus order release, the CSRTs can
order release, and the head of the Administrative Review
Boards can, at the recommendation of those panels, order
release. These multiple release provisions within the DTA
system more than satisfy the majority’s requirement that
any tribunal substituting for a habeas court have the
authority to release the prisoner.
The basis for the Court’s contrary conclusion is summed
up in the following sentence near the end of its opinion:
“To hold that the detainees at Guantanamo may, under
the DTA, challenge the President’s legal authority to
detain them, contest the CSRT’s findings of fact, supple
ment the record on review with newly discovered or previ
ously unavailable evidence, and request an order of re
lease would come close to reinstating the §2241 habeas
corpus process Congress sought to deny them.” Ante, at
63. In other words, any interpretation of the statute that
would make it an adequate substitute for habeas must be
rejected, because Congress could not possibly have in
tended to enact an adequate substitute for habeas. The
Court could have saved itself a lot of trouble if it had
simply announced this Catch-22 approach at the begin
ning rather than the end of its opinion.
III
For all its eloquence about the detainees’ right to the
writ, the Court makes no effort to elaborate how exactly
the remedy it prescribes will differ from the procedural
protections detainees enjoy under the DTA. The Court
objects to the detainees’ limited access to witnesses and
classified material, but proposes no alternatives of its own.
Indeed, it simply ignores the many difficult questions its
holding presents. What, for example, will become of the
CSRT process? The majority says federal courts should
26 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
generally refrain from entertaining detainee challenges
until after the petitioner’s CSRT proceeding has finished.
See ante, at 66 (“[e]xcept in cases of undue delay”). But
to what deference, if any, is that CSRT determination
entitled?
There are other problems. Take witness availability.
What makes the majority think witnesses will become
magically available when the review procedure is labeled
“habeas”? Will the location of most of these witnesses
change—will they suddenly become easily susceptible to
service of process? Or will subpoenas issued by American
habeas courts run to Basra? And if they did, how would
they be enforced? Speaking of witnesses, will detainees be
able to call active-duty military officers as witnesses? If
not, why not?
The majority has no answers for these difficulties. What
it does say leaves open the distinct possibility that its
“habeas” remedy will, when all is said and done, end up
looking a great deal like the DTA review it rejects. See
ante, at 66 (opinion of the court) (“We recognize, however,
that the Government has a legitimate interest in protect
ing sources and methods of intelligence gathering, and we
expect that the District Court will use its discretion to
accommodate this interest to the greatest extent possi
ble”). But “[t]he role of the judiciary is limited to deter
mining whether the procedures meet the essential stan
dard of fairness under the Due Process Clause and does
not extend to imposing procedures that merely displace
congressional choices of policy.” Landon v. Plasencia, 459
U. S. 21, 34–35 (1982).
The majority rests its decision on abstract and hypo
thetical concerns. Step back and consider what, in the
real world, Congress and the Executive have actually
granted aliens captured by our Armed Forces overseas and
found to be enemy combatants:
• The right to hear the bases of the charges against
27 Cite as: 553 U. S. ____ (2008)
ROBERTS, C. J., dissenting
them, including a summary of any classified
evidence.
• The ability to challenge the bases of their detention
before military tribunals modeled after Geneva
Convention procedures. Some 38 detainees have
been released as a result of this process. Brief for
Federal Respondents 57, 60.
• The right, before the CSRT, to testify, introduce
evidence, call witnesses, question those the Gov
ernment calls, and secure release, if and when
appropriate.
• The right to the aid of a personal representative in
arranging and presenting their cases before a
CSRT.
• Before the D. C. Circuit, the right to employ coun
sel, challenge the factual record, contest the lower
tribunal’s legal determinations, ensure compliance
with the Constitution and laws, and secure release,
if any errors below establish their entitlement to
such relief.
In sum, the DTA satisfies the majority’s own criteria
for assessing adequacy. This statutory scheme provides
the combatants held at Guantanamo greater procedural
protections than have ever been afforded alleged enemy
detainees—whether citizens or aliens—in our national
history.
* * *
So who has won? Not the detainees. The Court’s analy
sis leaves them with only the prospect of further litigation
to determine the content of their new habeas right, fol
lowed by further litigation to resolve their particular cases,
followed by further litigation before the D. C. Circuit—
where they could have started had they invoked the DTA
procedure. Not Congress, whose attempt to “determine—
through democratic means—how best” to balance the
28 BOUMEDIENE v. BUSH
ROBERTS, C. J., dissenting
security of the American people with the detainees’ liberty
interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636
(2006) (BREYER, J., concurring), has been unceremoniously
brushed aside. Not the Great Writ, whose majesty is
hardly enhanced by its extension to a jurisdictionally
quirky outpost, with no tangible benefit to anyone. Not the
rule of law, unless by that is meant the rule of lawyers,
who will now arguably have a greater role than military
and intelligence officials in shaping policy for alien enemy
combatants. And certainly not the American people, who
today lose a bit more control over the conduct of this Na
tion’s foreign policy to unelected, politically unaccountable
judges.
I respectfully dissent.
_________________
_________________
1 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 06–1195 and 06–1196
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
06–1195 v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI
KHALID ABDULLAH FAHAD AL ODAH, ET AL.,
PETITIONERS
06–1196 v.
UNITED STATES ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 12, 2008]
JUSTICE SCALIA, with whom THE CHIEF JUSTICE,
JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
Today, for the first time in our Nation’s history, the
Court confers a constitutional right to habeas corpus on
alien enemies detained abroad by our military forces in
the course of an ongoing war. THE CHIEF JUSTICE’s dis-
sent, which I join, shows that the procedures prescribed by
Congress in the Detainee Treatment Act provide the es-
sential protections that habeas corpus guarantees; there
has thus been no suspension of the writ, and no basis
exists for judicial intervention beyond what the Act allows.
My problem with today’s opinion is more fundamental
still: The writ of habeas corpus does not, and never has,
run in favor of aliens abroad; the Suspension Clause thus
has no application, and the Court’s intervention in this
military matter is entirely ultra vires.
2 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
I shall devote most of what will be a lengthy opinion to
the legal errors contained in the opinion of the Court.
Contrary to my usual practice, however, I think it appro-
priate to begin with a description of the disastrous conse-
quences of what the Court has done today.
I
America is at war with radical Islamists. The enemy
began by killing Americans and American allies abroad:
241 at the Marine barracks in Lebanon, 19 at the Khobar
Towers in Dhahran, 224 at our embassies in Dar es Sa-
laam and Nairobi, and 17 on the USS Cole in Yemen. See
National Commission on Terrorist Attacks upon the
United States, The 9/11 Commission Report, pp. 60–61,
70, 190 (2004). On September 11, 2001, the enemy
brought the battle to American soil, killing 2,749 at the
Twin Towers in New York City, 184 at the Pentagon in
Washington, D. C., and 40 in Pennsylvania. See id., at
552, n. 9. It has threatened further attacks against our
homeland; one need only walk about buttressed and barri-
caded Washington, or board a plane anywhere in the
country, to know that the threat is a serious one. Our
Armed Forces are now in the field against the enemy, in
Afghanistan and Iraq. Last week, 13 of our countrymen in
arms were killed.
The game of bait-and-switch that today’s opinion plays
upon the Nation’s Commander in Chief will make the war
harder on us. It will almost certainly cause more Ameri-
cans to be killed. That consequence would be tolerable if
necessary to preserve a time-honored legal principle vital
to our constitutional Republic. But it is this Court’s bla-
tant abandonment of such a principle that produces the
decision today. The President relied on our settled prece-
dent in Johnson v. Eisentrager, 339 U. S. 763 (1950), when
he established the prison at Guantanamo Bay for enemy
aliens. Citing that case, the President’s Office of Legal
3 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
Counsel advised him “that the great weight of legal au-
thority indicates that a federal district court could not
properly exercise habeas jurisdiction over an alien de-
tained at [Guantanamo Bay].” Memorandum from Patrick
F. Philbin and John C. Yoo, Deputy Assistant Attorneys
General, Office of Legal Counsel, to William J. Haynes II,
General Counsel, Dept. of Defense (Dec. 28, 2001). Had
the law been otherwise, the military surely would not have
transported prisoners there, but would have kept them in
Afghanistan, transferred them to another of our foreign
military bases, or turned them over to allies for detention.
Those other facilities might well have been worse for the
detainees themselves.
In the long term, then, the Court’s decision today ac-
complishes little, except perhaps to reduce the well-being
of enemy combatants that the Court ostensibly seeks to
protect. In the short term, however, the decision is devas-
tating. At least 30 of those prisoners hitherto released
from Guantanamo Bay have returned to the battlefield.
See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Views
of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn)
(hereinafter Minority Report). Some have been captured
or killed. See ibid.; see also Mintz, Released Detainees
Rejoining the Fight, Washington Post, Oct. 22, 2004, pp.
A1, A12. But others have succeeded in carrying on their
atrocities against innocent civilians. In one case, a de-
tainee released from Guantanamo Bay masterminded the
kidnapping of two Chinese dam workers, one of whom was
later shot to death when used as a human shield against
Pakistani commandoes. See Khan & Lancaster, Paki-
stanis Rescue Hostage; 2nd Dies, Washington Post, Oct.
15, 2004, p. A18. Another former detainee promptly re-
sumed his post as a senior Taliban commander and mur-
dered a United Nations engineer and three Afghan sol-
diers. Mintz, supra. Still another murdered an Afghan
judge. See Minority Report 13. It was reported only last
4 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
month that a released detainee carried out a suicide bomb-
ing against Iraqi soldiers in Mosul, Iraq. See White, Ex-
Guantanamo Detainee Joined Iraq Suicide Attack, Wash-
ington Post, May 8, 2008, p. A18.
These, mind you, were detainees whom the military had
concluded were not enemy combatants. Their return to
the kill illustrates the incredible difficulty of assessing
who is and who is not an enemy combatant in a foreign
theater of operations where the environment does not lend
itself to rigorous evidence collection. Astoundingly, the
Court today raises the bar, requiring military officials to
appear before civilian courts and defend their decisions
under procedural and evidentiary rules that go beyond
what Congress has specified. As THE CHIEF JUSTICE’s
dissent makes clear, we have no idea what those proce-
dural and evidentiary rules are, but they will be deter-
mined by civil courts and (in the Court’s contemplation at
least) will be more detainee-friendly than those now ap-
plied, since otherwise there would be no reason to hold the
congressionally prescribed procedures unconstitutional. If
they impose a higher standard of proof (from foreign bat-
tlefields) than the current procedures require, the number
of the enemy returned to combat will obviously increase.
But even when the military has evidence that it can
bring forward, it is often foolhardy to release that evidence
to the attorneys representing our enemies. And one esca-
lation of procedures that the Court is clear about is afford-
ing the detainees increased access to witnesses (perhaps
troops serving in Afghanistan?) and to classified informa-
tion. See ante, at 54–55. During the 1995 prosecution of
Omar Abdel Rahman, federal prosecutors gave the names
of 200 unindicted co-conspirators to the “Blind Sheik’s”
defense lawyers; that information was in the hands of
Osama Bin Laden within two weeks. See Minority Report
14–15. In another case, trial testimony revealed to the
enemy that the United States had been monitoring their
5 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
cellular network, whereupon they promptly stopped using
it, enabling more of them to evade capture and continue
their atrocities. See id., at 15.
And today it is not just the military that the Court
elbows aside. A mere two Terms ago in Hamdan v. Rums-
feld, 548 U. S. 557 (2006), when the Court held (quite
amazingly) that the Detainee Treatment Act of 2005 had
not stripped habeas jurisdiction over Guantanamo peti-
tioners’ claims, four Members of today’s five-Justice major-
ity joined an opinion saying the following:
“Nothing prevents the President from returning to
Congress to seek the authority [for trial by military
commission] he believes necessary.
“Where, as here, no emergency prevents consulta-
tion with Congress, judicial insistence upon that con-
sultation does not weaken our Nation’s ability to deal
with danger. To the contrary, that insistence
strengthens the Nation’s ability to determine—
through democratic means—how best to do so. The
Constitution places its faith in those democratic
means.” Id., at 636 (BREYER, J., concurring).1
Turns out they were just kidding. For in response, Con-
gress, at the President’s request, quickly enacted the
Military Commissions Act, emphatically reasserting that
it did not want these prisoners filing habeas petitions. It
is therefore clear that Congress and the Executive—both
political branches—have determined that limiting the role
——————
1
Even today, the Court cannot resist striking a pose of faux deference
to Congress and the President. Citing the above quoted passage, the
Court says: “The political branches, consistent with their independent
obligations to interpret and uphold the Constitution, can engage in a
genuine debate about how best to preserve constitutional values while
protecting the Nation from terrorism.” Ante, at 69. Indeed. What the
Court apparently means is that the political branches can debate, after
which the Third Branch will decide.
6 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
of civilian courts in adjudicating whether prisoners cap-
tured abroad are properly detained is important to success
in the war that some 190,000 of our men and women are
now fighting. As the Solicitor General argued, “the Mili-
tary Commissions Act and the Detainee Treatment Act . . .
represent an effort by the political branches to strike an
appropriate balance between the need to preserve liberty
and the need to accommodate the weighty and sensitive
governmental interests in ensuring that those who have in
fact fought with the enemy during a war do not return to
battle against the United States.” Brief for Respondents
10–11 (internal quotation marks omitted).
But it does not matter. The Court today decrees that no
good reason to accept the judgment of the other two
branches is “apparent.” Ante, at 40. “The Government,” it
declares, “presents no credible arguments that the mili-
tary mission at Guantanamo would be compromised if
habeas corpus courts had jurisdiction to hear the detain-
ees’ claims.” Id., at 39. What competence does the Court
have to second-guess the judgment of Congress and the
President on such a point? None whatever. But the Court
blunders in nonetheless. Henceforth, as today’s opinion
makes unnervingly clear, how to handle enemy prisoners
in this war will ultimately lie with the branch that knows
least about the national security concerns that the subject
entails.
II
A
The Suspension Clause of the Constitution provides:
“The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it.” Art. I, §9, cl. 2. As a
court of law operating under a written Constitution, our
role is to determine whether there is a conflict between
that Clause and the Military Commissions Act. A conflict
7 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
arises only if the Suspension Clause preserves the privi-
lege of the writ for aliens held by the United States mili-
tary as enemy combatants at the base in Guantanamo
Bay, located within the sovereign territory of Cuba.
We have frequently stated that we owe great deference
to Congress’s view that a law it has passed is constitu-
tional. See, e.g., Department of Labor v. Triplett, 494 U. S.
715, 721 (1990); United States v. National Dairy Products
Corp., 372 U. S. 29, 32 (1963); see also American Commu-
nications Assn. v. Douds, 339 U. S. 382, 435 (1950) (Jack-
son, J., concurring in part and dissenting in part). That is
especially so in the area of foreign and military affairs;
“perhaps in no other area has the Court accorded Congress
greater deference.” Rostker v. Goldberg, 453 U. S. 57, 64–
65 (1981). Indeed, we accord great deference even when
the President acts alone in this area. See Department of
Navy v. Egan, 484 U. S. 518, 529–530 (1988); Regan v.
Wald, 468 U. S. 222, 243 (1984).
In light of those principles of deference, the Court’s
conclusion that “the common law [does not] yiel[d] a defi-
nite answer to the questions before us,” ante, at 22, leaves
it no choice but to affirm the Court of Appeals. The writ
as preserved in the Constitution could not possibly extend
farther than the common law provided when that Clause
was written. See Part III, infra. The Court admits that it
cannot determine whether the writ historically extended
to aliens held abroad, and it concedes (necessarily) that
Guantanamo Bay lies outside the sovereign territory of
the United States. See ante, at 22–23; Rasul v. Bush, 542
U. S. 466, 500–501 (2004) (SCALIA, J., dissenting). To-
gether, these two concessions establish that it is (in the
Court’s view) perfectly ambiguous whether the common-
law writ would have provided a remedy for these petition-
ers. If that is so, the Court has no basis to strike down the
Military Commissions Act, and must leave undisturbed
8 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
the considered judgment of the coequal branches.2
How, then, does the Court weave a clear constitutional
prohibition out of pure interpretive equipoise? The Court
resorts to “fundamental separation-of-powers principles”
to interpret the Suspension Clause. Ante, at 25. Accord-
ing to the Court, because “the writ of habeas corpus is
itself an indispensable mechanism for monitoring the
separation of powers,” the test of its extraterritorial reach
“must not be subject to manipulation by those whose
power it is designed to restrain.” Ante, at 36.
That approach distorts the nature of the separation of
powers and its role in the constitutional structure. The
“fundamental separation-of-powers principles” that the
Constitution embodies are to be derived not from some
judicially imagined matrix, but from the sum total of the
individual separation-of-powers provisions that the Con-
stitution sets forth. Only by considering them one-by-one
does the full shape of the Constitution’s separation-of-
powers principles emerge. It is nonsensical to interpret
those provisions themselves in light of some general
“separation-of-powers principles” dreamed up by the
Court. Rather, they must be interpreted to mean what
they were understood to mean when the people ratified
them. And if the understood scope of the writ of habeas
corpus was “designed to restrain” (as the Court says) the
actions of the Executive, the understood limits upon that
——————
2
The opinion seeks to avoid this straightforward conclusion by saying
that the Court has been “careful not to foreclose the possibility that the
protections of the Suspension Clause have expanded along with post-
1789 developments that define the present scope of the writ.” Ante, at
15–16 (citing INS v. St. Cyr, 533 U. S. 289 300–301 (2001)). But not
foreclosing the possibility that they have expanded is not the same as
demonstrating (or at least holding without demonstration, which seems
to suffice for today’s majority) that they have expanded. The Court
must either hold that the Suspension Clause has “expanded” in its
application to aliens abroad, or acknowledge that it has no basis to set
aside the actions of Congress and the President. It does neither.
9 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
scope were (as the Court seems not to grasp) just as much
“designed to restrain” the incursions of the Third Branch.
“Manipulation” of the territorial reach of the writ by the
Judiciary poses just as much a threat to the proper sepa-
ration of powers as “manipulation” by the Executive. As I
will show below, manipulation is what is afoot here. The
understood limits upon the writ deny our jurisdiction over
the habeas petitions brought by these enemy aliens, and
entrust the President with the crucial wartime determina-
tions about their status and continued confinement.
B
The Court purports to derive from our precedents a
“functional” test for the extraterritorial reach of the writ,
ante, at 34, which shows that the Military Commissions
Act unconstitutionally restricts the scope of habeas. That
is remarkable because the most pertinent of those prece-
dents, Johnson v. Eisentrager, 339 U. S. 763, conclusively
establishes the opposite. There we were confronted with
the claims of 21 Germans held at Landsberg Prison, an
American military facility located in the American Zone of
occupation in postwar Germany. They had been captured
in China, and an American military commission sitting
there had convicted them of war crimes—collaborating
with the Japanese after Germany’s surrender. Id., at 765–
766. Like the petitioners here, the Germans claimed that
their detentions violated the Constitution and interna-
tional law, and sought a writ of habeas corpus. Writing
for the Court, Justice Jackson held that American courts
lacked habeas jurisdiction:
“We are cited to [sic] no instance where a court, in
this or any other country where the writ is known, has
issued it on behalf of an alien enemy who, at no rele-
vant time and in no stage of his captivity, has been
within its territorial jurisdiction. Nothing in the text
of the Constitution extends such a right, nor does any-
10 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
thing in our statutes.” Id., at 768.
Justice Jackson then elaborated on the historical scope
of the writ:
“The alien, to whom the United States has been tra-
ditionally hospitable, has been accorded a generous
and ascending scale of rights as he increases his iden-
tity with our society. . . .
“But, in extending constitutional protections beyond
the citizenry, the Court has been at pains to point out
that it was the alien’s presence within its territorial
jurisdiction that gave the Judiciary power to act.” Id.,
at 770–771.
Lest there be any doubt about the primacy of territorial
sovereignty in determining the jurisdiction of a habeas
court over an alien, Justice Jackson distinguished two
cases in which aliens had been permitted to seek habeas
relief, on the ground that the prisoners in those cases were
in custody within the sovereign territory of the United
States. Id., at 779–780 (discussing Ex parte Quirin, 317
U. S. 1 (1942), and In re Yamashita, 327 U. S. 1 (1946)).
“By reason of our sovereignty at that time over [the Phil-
ippines],” Jackson wrote, “Yamashita stood much as did
Quirin before American courts.” 339 U. S., at 780.
Eisentrager thus held—held beyond any doubt—that the
Constitution does not ensure habeas for aliens held by the
United States in areas over which our Government is not
sovereign.3
——————
3
In its failed attempt to distinguish Eisentrager, the Court comes up
with the notion that “de jure sovereignty” is simply an additional factor
that can be added to (presumably) “de facto sovereignty” (i.e., practical
control) to determine the availability of habeas for aliens, but that it is
not a necessary factor, whereas de facto sovereignty is. It is perhaps in
this de facto sense, the Court speculates, that Eisentrager found “sover-
eignty” lacking. See ante, at 23–25. If that were so, one would have
expected Eisentrager to explain in some detail why the United States
11 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
The Court would have us believe that Eisentrager rested
on “[p]ractical considerations,” such as the “difficulties of
ordering the Government to produce the prisoners in a
habeas corpus proceeding.” Ante, at 32. Formal sover-
eignty, says the Court, is merely one consideration “that
bears upon which constitutional guarantees apply” in a
given location. Ante, at 34. This is a sheer rewriting of
the case. Eisentrager mentioned practical concerns, to be
sure—but not for the purpose of determining under what
circumstances American courts could issue writs of habeas
corpus for aliens abroad. It cited them to support its
holding that the Constitution does not empower courts to
issue writs of habeas corpus to aliens abroad in any cir-
cumstances. As Justice Black accurately said in dissent,
“the Court’s opinion inescapably denies courts power to
afford the least bit of protection for any alien who is sub-
ject to our occupation government abroad, even if he is
neither enemy nor belligerent and even after peace is
officially declared.” 339 U. S., at 796.
The Court also tries to change Eisentrager into a “func-
——————
did not have practical control over the American zone of occupation. It
did not (and probably could not). Of course this novel de facto-de jure
approach does not explain why the writ never issued to Scotland, which
was assuredly within the de facto control of the English crown. See
infra, at 22.
To support its holding that de facto sovereignty is relevant to the
reach of habeas corpus, the Court cites our decision in Fleming v. Page,
9 How. 603 (1850), a case about the application of a customs statute to
a foreign port occupied by U. S. forces. See ante, at 24. The case used
the phrase “subject to the sovereignty and dominion of the United
States” to refer to the United States’ practical control over a “foreign
country.” 9 How., at 614. But Fleming went on to explain that because
the port remained part of the “enemy’s country,” even though under
U. S. military occupation, “its subjugation did not compel the United
States, while they held it, to regard it as part of their dominions, nor to
give to it any form of civil government, nor to extend to it our laws.”
Id., at 618. If Fleming is relevant to these cases at all, it undermines
the Court’s holding.
12 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
tional” test by quoting a paragraph that lists the charac-
teristics of the German petitioners:
“To support [the] assumption [of a constitutional right
to habeas corpus] we must hold that a prisoner of our
military authorities is constitutionally entitled to the
writ, even though he (a) is an enemy alien; (b) has
never been or resided in the United States; (c) was
captured outside of our territory and there held in
military custody as a prisoner of war; (d) was tried
and convicted by a Military Commission sitting out-
side the United States; (e) for offenses against laws of
war committed outside the United States; (f) and is at
all times imprisoned outside the United States.” Id.,
at 777 (quoted in part, ante, at 36).
But that paragraph is introduced by a sentence stating
that “[t]he foregoing demonstrates how much further we
must go if we are to invest these enemy aliens, resident,
captured and imprisoned abroad, with standing to demand
access to our courts.” 339 U. S., at 777 (emphasis added).
How much further than what? Further than the rule set
forth in the prior section of the opinion, which said that “in
extending constitutional protections beyond the citizenry,
the Court has been at pains to point out that it was the
alien’s presence within its territorial jurisdiction that gave
the Judiciary power to act.” Id., at 771. In other words,
the characteristics of the German prisoners were set forth,
not in application of some “functional” test, but to show
that the case before the Court represented an a fortiori
application of the ordinary rule. That is reaffirmed by the
sentences that immediately follow the listing of the Ger-
mans’ characteristics:
“We have pointed out that the privilege of litigation
has been extended to aliens, whether friendly or en-
emy, only because permitting their presence in the
country implied protection. No such basis can be in-
13 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
voked here, for these prisoners at no relevant time
were within any territory over which the United
States is sovereign, and the scenes of their offense,
their capture, their trial and their punishment were
all beyond the territorial jurisdiction of any court of
the United States.” Id., at 777–778.
Eisentrager nowhere mentions a “functional” test, and the
notion that it is based upon such a principle is patently
false.4
The Court also reasons that Eisentrager must be read as
a “functional” opinion because of our prior decisions in the
Insular Cases. See ante, at 26–29. It cites our statement
in Balzac v. Porto Rico, 258 U. S. 298, 312 (1922), that
“‘the real issue in the Insular Cases was not whether the
Constitution extended to the Philippines or Porto Rico
when we went there, but which of its provisions were
——————
4
JUSTICE SOUTER’s concurrence relies on our decision four Terms ago
in Rasul v. Bush, 542 U. S. 466 (2004), where the Court interpreted the
habeas statute to extend to aliens held at Guantanamo Bay. He thinks
that “no one who reads the Court’s opinion in Rasul could seriously
doubt that the jurisdictional question must be answered the same way
in purely constitutional cases.” Ante, at 1–2. But Rasul was devoted
primarily to an explanation of why Eisentrager’s statutory holding no
longer controlled given our subsequent decision in Braden v. 30th
Judicial Circuit Court of Ky., 410 U. S. 484 (1973). See Rasul, supra, at
475–479. And the opinion of the Court today—which JUSTICE SOUTER
joins—expressly rejects the historical evidence cited in Rasul to support
its conclusion about the reach of habeas corpus. Compare id., at 481–
482, with ante, at 18. Moreover, even if one were to accept as true what
JUSTICE SOUTER calls Rasul’s “well-considered” dictum, that does not
explain why Eisentrager’s constitutional holding must be overruled or
how it can be distinguished. (After all, Rasul distinguished Eisen-
trager’s statutory holding on a ground inapplicable to its constitutional
holding.) In other words, even if the Court were to conclude that
Eisentrager’s rule was incorrect as an original matter, the Court would
have to explain the justification for departing from that precedent. It
therefore cannot possibly be true that Rasul controls this case, as
JUSTICE SOUTER suggests.
14 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
applicable by way of limitation upon the exercise of execu-
tive and legislative power in dealing with new conditions
and requirements.’” Ante, at 28. But the Court conven-
iently omits Balzac’s predicate to that statement: “The
Constitution of the United States is in force in Porto Rico
as it is wherever and whenever the sovereign power of that
government is exerted.” 258 U. S., at 312 (emphasis
added). The Insular Cases all concerned territories ac-
quired by Congress under its Article IV authority and
indisputably part of the sovereign territory of the United
States. See United States v. Verdugo-Urquidez, 494 U. S.
259, 268 (1990); Reid v. Covert, 354 U. S. 1, 13 (1957)
(plurality opinion of Black, J.). None of the Insular Cases
stands for the proposition that aliens located outside U. S.
sovereign territory have constitutional rights, and Eisen-
trager held just the opposite with respect to habeas corpus.
As I have said, Eisentrager distinguished Yamashita on
the ground of “our sovereignty [over the Philippines],” 339
U. S., at 780.
The Court also relies on the “[p]ractical considerations”
that influenced our decision in Reid v. Covert, supra. See
ante, at 29–32. But all the Justices in the majority except
Justice Frankfurter limited their analysis to the rights of
citizens abroad. See Reid, supra, at 5–6 (plurality opinion
of Black, J.); id., at 74–75 (Harlan, J., concurring in re-
sult). (Frankfurter limited his analysis to the even nar-
rower class of civilian dependents of American military
personnel abroad, see id., at 45 (opinion concurring in
result).) In trying to wring some kind of support out of
Reid for today’s novel holding, the Court resorts to a chain
of logic that does not hold. The members of the Reid
majority, the Court says, were divided over whether In re
Ross, 140 U. S. 453 (1891), which had (according to the
Court) held that under certain circumstances American
citizens abroad do not have indictment and jury-trial
rights, should be overruled. In the Court’s view, the Reid
15 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
plurality would have overruled Ross, but Justices Frank-
furter and Harlan preferred to distinguish it. The upshot:
“If citizenship had been the only relevant factor in the
case, it would have been necessary for the Court to over-
turn Ross, something Justices Harlan and Frankfurter
were unwilling to do.” Ante, at 32. What, exactly, is this
point supposed to prove? To say that “practical considera-
tions” determine the precise content of the constitutional
protections American citizens enjoy when they are abroad
is quite different from saying that “practical considera-
tions” determine whether aliens abroad enjoy any consti-
tutional protections whatever, including habeas. In other
words, merely because citizenship is not a sufficient factor
to extend constitutional rights abroad does not mean that
it is not a necessary one.
The Court tries to reconcile Eisentrager with its holding
today by pointing out that in postwar Germany, the
United States was “answerable to its Allies” and did not
“pla[n] a long-term occupation.” Ante, at 38, 39. Those
factors were not mentioned in Eisentrager. Worse still, it
is impossible to see how they relate to the Court’s asserted
purpose in creating this “functional” test—namely, to
ensure a judicial inquiry into detention and prevent the
political branches from acting with impunity. Can it
possibly be that the Court trusts the political branches
more when they are beholden to foreign powers than when
they act alone?
After transforming the a fortiori elements discussed
above into a “functional” test, the Court is still left with
the difficulty that most of those elements exist here as
well with regard to all the detainees. To make the appli-
cation of the newly crafted “functional” test produce a
different result in the present cases, the Court must rely
upon factors (d) and (e): The Germans had been tried by a
military commission for violations of the laws of war; the
present petitioners, by contrast, have been tried by a
16 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
Combatant Status Review Tribunal (CSRT) whose proce-
dural protections, according to the Court’s ipse dixit, “fall
well short of the procedures and adversarial mechanisms
that would eliminate the need for habeas corpus review.”
Ante, at 37. But no one looking for “functional” equiva-
lents would put Eisentrager and the present cases in the
same category, much less place the present cases in a
preferred category. The difference between them cries out
for lesser procedures in the present cases. The prisoners
in Eisentrager were prosecuted for crimes after the cessa-
tion of hostilities; the prisoners here are enemy combat-
ants detained during an ongoing conflict. See Hamdi v.
Rumsfeld, 542 U. S. 507, 538 (2004) (plurality opinion)
(suggesting, as an adequate substitute for habeas corpus,
the use of a tribunal akin to a CSRT to authorize the
detention of American citizens as enemy combatants dur-
ing the course of the present conflict).
The category of prisoner comparable to these detainees
are not the Eisentrager criminal defendants, but the more
than 400,000 prisoners of war detained in the United
States alone during World War II. Not a single one was
accorded the right to have his detention validated by a
habeas corpus action in federal court—and that despite
the fact that they were present on U. S. soil. See Bradley,
The Military Commissions Act, Habeas Corpus, and the
Geneva Conventions, 101 Am. J. Int’l L. 322, 338 (2007).
The Court’s analysis produces a crazy result: Whereas
those convicted and sentenced to death for war crimes are
without judicial remedy, all enemy combatants detained
during a war, at least insofar as they are confined in an
area away from the battlefield over which the United
States exercises “absolute and indefinite” control, may
seek a writ of habeas corpus in federal court. And, as an
even more bizarre implication from the Court’s reasoning,
those prisoners whom the military plans to try by full-
dress Commission at a future date may file habeas peti-
17 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
tions and secure release before their trials take place.
There is simply no support for the Court’s assertion that
constitutional rights extend to aliens held outside U. S.
sovereign territory, see Verdugo-Urquidez, 494 U. S., at
271, and Eisentrager could not be clearer that the privilege
of habeas corpus does not extend to aliens abroad. By
blatantly distorting Eisentrager, the Court avoids the
difficulty of explaining why it should be overruled. See
Planned Parenthood of Southeastern Pa. v. Casey, 505
U. S. 833, 854–855 (1992) (identifying stare decisis fac-
tors). The rule that aliens abroad are not constitutionally
entitled to habeas corpus has not proved unworkable in
practice; if anything, it is the Court’s “functional” test that
does not (and never will) provide clear guidance for the
future. Eisentrager forms a coherent whole with the ac-
cepted proposition that aliens abroad have no substantive
rights under our Constitution. Since it was announced, no
relevant factual premises have changed. It has engen-
dered considerable reliance on the part of our military.
And, as the Court acknowledges, text and history do not
clearly compel a contrary ruling. It is a sad day for the
rule of law when such an important constitutional pre-
cedent is discarded without an apologia, much less an
apology.
C
What drives today’s decision is neither the meaning of
the Suspension Clause, nor the principles of our prece-
dents, but rather an inflated notion of judicial supremacy.
The Court says that if the extraterritorial applicability of
the Suspension Clause turned on formal notions of sover-
eignty, “it would be possible for the political branches to
govern without legal constraint” in areas beyond the
sovereign territory of the United States. Ante, at 35. That
cannot be, the Court says, because it is the duty of this
Court to say what the law is. Id., at 35–36. It would be
18 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
difficult to imagine a more question-begging analysis.
“The very foundation of the power of the federal courts to
declare Acts of Congress unconstitutional lies in the power
and duty of those courts to decide cases and controversies
properly before them.” United States v. Raines, 362 U. S.
17, 20–21 (1960) (citing Marbury v. Madison, 1 Cranch
137 (1803); emphasis added). Our power “to say what the
law is” is circumscribed by the limits of our statutorily and
constitutionally conferred jurisdiction. See Lujan v. De-
fenders of Wildlife, 504 U. S. 555, 573–578 (1992). And
that is precisely the question in these cases: whether the
Constitution confers habeas jurisdiction on federal courts
to decide petitioners’ claims. It is both irrational and
arrogant to say that the answer must be yes, because
otherwise we would not be supreme.
But so long as there are some places to which habeas
does not run—so long as the Court’s new “functional” test
will not be satisfied in every case—then there will be cir-
cumstances in which “it would be possible for the political
branches to govern without legal constraint.” Or, to put it
more impartially, areas in which the legal determinations
of the other branches will be (shudder!) supreme. In other
words, judicial supremacy is not really assured by the
constitutional rule that the Court creates. The gap be-
tween rationale and rule leads me to conclude that the
Court’s ultimate, unexpressed goal is to preserve the
power to review the confinement of enemy prisoners held
by the Executive anywhere in the world. The “functional”
test usefully evades the precedential landmine of Eisen-
trager but is so inherently subjective that it clears a wide
path for the Court to traverse in the years to come.
III
Putting aside the conclusive precedent of Eisentrager, it
is clear that the original understanding of the Suspension
Clause was that habeas corpus was not available to aliens
19 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
abroad, as Judge Randolph’s thorough opinion for the
court below detailed. See 476 F. 3d 981, 988–990 (CADC
2007).
The Suspension Clause reads: “The Privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may
require it.” U. S. Const., Art. I, §9, cl. 2. The proper
course of constitutional interpretation is to give the text
the meaning it was understood to have at the time of its
adoption by the people. See, e.g., Crawford v. Washington,
541 U. S. 36, 54 (2004). That course is especially de-
manded when (as here) the Constitution limits the power
of Congress to infringe upon a pre-existing common-law
right. The nature of the writ of habeas corpus that cannot
be suspended must be defined by the common-law writ
that was available at the time of the founding. See
McNally v. Hill, 293 U. S. 131, 135–136 (1934); see also
INS v. St. Cyr, 533 U. S. 289, 342 (2001) (SCALIA, J., dis-
senting); D’Oench, Duhme & Co. v. FDIC, 315 U. S. 447,
471, n. 9 (1942) (Jackson, J., concurring).
It is entirely clear that, at English common law, the writ
of habeas corpus did not extend beyond the sovereign
territory of the Crown. To be sure, the writ had an “ex-
traordinary territorial ambit,” because it was a so-called
“prerogative writ,” which, unlike other writs, could extend
beyond the realm of England to other places where the
Crown was sovereign. R. Sharpe, The Law of Habeas
Corpus 188 (2d ed. 1989) (hereinafter Sharpe); see also
Note on the Power of the English Courts to Issue the Writ
of Habeas to Places Within the Dominions of the Crown,
But Out of England, and On the Position of Scotland in
Relation to that Power, 8 Jurid. Rev. 157 (1896) (hereinaf-
ter Note on Habeas); King v. Cowle, 2 Burr. 834, 855–856,
97 Eng. Rep. 587, 599 (K. B. 1759).
But prerogative writs could not issue to foreign coun-
tries, even for British subjects; they were confined to the
20 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
King’s dominions—those areas over which the Crown was
sovereign. See Sharpe 188; 2 R. Chambers, A Course of
Lectures on the English Law 1767–1773, pp. 7–8 (Curley
ed. 1986); 3 W. Blackstone, Commentaries on the Laws of
England 131 (1768) (hereinafter Blackstone). Thus, the
writ has never extended to Scotland, which, although
united to England when James I succeeded to the English
throne in 1603, was considered a foreign dominion under a
different Crown—that of the King of Scotland. Sharpe
191; Note on Habeas 158.5 That is why Lord Mansfield
wrote that “[t]o foreign dominions, which belong to a
prince who succeeds to the throne of England, this Court
has no power to send any writ of any kind. We cannot
send a habeas corpus to Scotland . . . .” Cowle, supra, at
856, 97 Eng. Rep., at 599–600.
The common-law writ was codified by the Habeas Cor-
pus Act of 1679, which “stood alongside Magna Charta and
the English Bill of Rights of 1689 as a towering common
law lighthouse of liberty—a beacon by which framing
lawyers in America consciously steered their course.”
Amar, Sixth Amendment First Principles, 84 Geo. L. J.
641, 663 (1996). The writ was established in the Colonies
beginning in the 1690’s and at least one colony adopted
the 1679 Act almost verbatim. See Dept. of Political Sci-
ence, Okla. State Univ., Research Reports, No. 1, R.
Walker, The American Reception of the Writ of Liberty
12–16 (1961). Section XI of the Act stated where the writ
could run. It “may be directed and run into any county
palatine, the cinque-ports, or other privileged places
within the kingdom of England, dominion of Wales, or
town of Berwick upon Tweed, and the islands of Jersey or
Guernsey.” 31 Car. 2, ch. 2. The cinque-ports and county
palatine were so-called “exempt jurisdictions”—franchises
——————
5
My dissent in Rasul v. Bush, 542 U. S. 466, 503 (2004), mistakenly
included Scotland among the places to which the writ could run.
21 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
granted by the Crown in which local authorities would
manage municipal affairs, including the court system, but
over which the Crown maintained ultimate sovereignty.
See 3 Blackstone 78–79. The other places listed—Wales,
Berwick-upon-Tweed, Jersey, and Guernsey—were terri-
tories of the Crown even though not part England proper.
See Cowle, supra, at 853–854, 97 Eng. Rep., at 598 (Wales
and Berwick-upon-Tweed); 1 Blackstone 104 (Jersey and
Guernsey); Sharpe 192 (same).
The Act did not extend the writ elsewhere, even though
the existence of other places to which British prisoners
could be sent was recognized by the Act. The possibility of
evading judicial review through such spiriting-away was
eliminated, not by expanding the writ abroad, but by
forbidding (in Article XII of the Act) the shipment of pris-
oners to places where the writ did not run or where its
execution would be difficult. See 31 Car. 2, ch. 2; see
generally Nutting, The Most Wholesome Law—The Ha-
beas Corpus Act of 1679, 65 Am. Hist. Rev. 527 (1960).
The Habeas Corpus Act, then, confirms the consensus
view of scholars and jurists that the writ did not run
outside the sovereign territory of the Crown. The Court
says that the idea that “jurisdiction followed the King’s
officers” is an equally credible view. Ante, at 16. It is not
credible at all. The only support the Court cites for it is a
page in Boumediene’s brief, which in turn cites this
Court’s dicta in Rasul, 542 U. S., at 482, mischaracterizing
Lord Mansfield’s statement that the writ ran to any place
that was “under the subjection of the Crown,” Cowle,
supra, at 856, 97 Eng. Rep., at 599. It is clear that Lord
Mansfield was saying that the writ extended outside the
realm of England proper, not outside the sovereign terri-
tory of the Crown.6
——————
6
The dicta in Rasul also cited Ex parte Mwenya, [1960] 1 Q. B. 241,
(C. A.), but as I explained in dissent, “[e]ach judge [in Mwenya] made
22 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
The Court dismisses the example of Scotland on the
grounds that Scotland had its own judicial system and
that the writ could not, as a practical matter, have been
enforced there. Ante, at 20. Those explanations are to-
tally unpersuasive. The existence of a separate court
system was never a basis for denying the power of a court
to issue the writ. See 9 W. Holdsworth, A History of Eng-
lish Law 124 (3d ed. 1944) (citing Ex parte Anderson, 3 El.
and El. 487 (1861)). And as for logistical problems, the
same difficulties were present for places like the Channel
Islands, where the writ did run. The Court attempts to
draw an analogy between the prudential limitations on
issuing the writ to such remote areas within the sovereign
territory of the Crown and the jurisdictional prohibition on
issuing the writ to Scotland. See ante, at 19–20. But the
very authority that the Court cites, Lord Mansfield, ex-
pressly distinguished between these two concepts, stating
that English courts had the “power” to send the writ to
places within the Crown’s sovereignty, the “only question”
being the “propriety,” while they had “no power to send
any writ of any kind” to Scotland and other “foreign do-
minions.” Cowle, supra, at 856, 97 Eng. Rep., at 599–600.
The writ did not run to Scotland because, even after the
Union, “Scotland remained a foreign dominion of the
prince who succeeded to the English throne,” and “union
did not extend the prerogative of the English crown to
Scotland.” Sharpe 191; see also Sir Matthew Hale’s The
Prerogatives of the King 19 (D. Yale ed. 1976).7
——————
clear that the detainee’s status as a subject was material to the resolu-
tion of the case,” 542 U. S., at 504.
7
The Court also argues that the fact that the writ could run to Ire-
land, even though it was ruled under a “separate” crown, shows that
formal sovereignty was not the touchstone of habeas jurisdiction. Ante,
at 21. The passage from Blackstone that the Court cites, however,
describes Ireland as “a dependent, subordinate kingdom” that was part
of the “king’s dominions.” 1 Blackstone 98, 100 (internal quotation
23 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
In sum, all available historical evidence points to the
conclusion that the writ would not have been available at
common law for aliens captured and held outside the
sovereign territory of the Crown. Despite three opening
briefs, three reply briefs, and support from a legion of
amici, petitioners have failed to identify a single case in
the history of Anglo-American law that supports their
claim to jurisdiction. The Court finds it significant that
there is no recorded case denying jurisdiction to such
prisoners either. See ante, at 21–22. But a case standing
for the remarkable proposition that the writ could issue to
a foreign land would surely have been reported, whereas a
case denying such a writ for lack of jurisdiction would
likely not. At a minimum, the absence of a reported case
either way leaves unrefuted the voluminous commentary
stating that habeas was confined to the dominions of the
Crown.
What history teaches is confirmed by the nature of the
limitations that the Constitution places upon suspension
of the common-law writ. It can be suspended only “in
Cases of Rebellion or Invasion.” Art. I, §9, cl. 2. The latter
case (invasion) is plainly limited to the territory of the
United States; and while it is conceivable that a rebellion
could be mounted by American citizens abroad, surely the
overwhelming majority of its occurrences would be domes-
tic. If the extraterritorial scope of habeas turned on flexi-
ble, “functional” considerations, as the Court holds, why
would the Constitution limit its suspension almost en-
tirely to instances of domestic crisis? Surely there is an
even greater justification for suspension in foreign lands
where the United States might hold prisoners of war
——————
marks omitted). And Lord Mansfield’s opinion in Cowle plainly under-
stood Ireland to be “a dominion of the Crown of England,” in contrast to
the “foreign dominio[n]” of Scotland, and thought that distinction
dispositive of the question of habeas jurisdiction. Cowle, supra, at 856,
97 Eng. Rep., at 599–600.
24 BOUMEDIENE v. BUSH
SCALIA, J., dissenting
during an ongoing conflict. And correspondingly, there is
less threat to liberty when the Government suspends the
writ’s (supposed) application in foreign lands, where even
on the most extreme view prisoners are entitled to fewer
constitutional rights. It makes no sense, therefore, for the
Constitution generally to forbid suspension of the writ
abroad if indeed the writ has application there.
It may be objected that the foregoing analysis proves too
much, since this Court has already suggested that the writ
of habeas corpus does run abroad for the benefit of United
States citizens. “[T]he position that United States citizens
throughout the world may be entitled to habeas corpus
rights . . . is precisely the position that this Court adopted
in Eisentrager, see 339 U. S., at 769–770, even while
holding that aliens abroad did not have habeas corpus
rights.” Rasul, 542 U. S., at 501, 502 (SCALIA, J., dissent-
ing) (emphasis deleted). The reason for that divergence is
not difficult to discern. The common-law writ, as received
into the law of the new constitutional Republic, took on
such changes as were demanded by a system in which rule
is derived from the consent of the governed, and in which
citizens (not “subjects”) are afforded defined protections
against the Government. As Justice Story wrote for the
Court,
“The common law of England is not to be taken in all
respects to be that of America. Our ancestors brought
with them its general principles, and claimed it as
their birthright; but they brought with them and
adopted only that portion which was applicable to
their situation.” Van Ness v. Pacard, 2 Pet. 137, 144
(1829).
See also Hall, The Common Law: An Account of its Recep-
tion in the United States, 4 Vand. L. Rev. 791 (1951). It
accords with that principle to say, as the plurality opinion
said in Reid: “When the Government reaches out to punish
25 Cite as: 553 U. S. ____ (2008)
SCALIA, J., dissenting
a citizen who is abroad, the shield which the Bill of Rights
and other parts of the Constitution provide to protect his
life and liberty should not be stripped away just because
he happens to be in another land.” 354 U. S., at 6; see also
Verdugo-Urquidez, 494 U. S., at 269–270. On that analy-
sis, “[t]he distinction between citizens and aliens follows
from the undoubted proposition that the Constitution does
not create, nor do general principles of law create, any
juridical relation between our country and some unde-
fined, limitless class of noncitizens who are beyond our
territory.” Id., at 275 (KENNEDY, J., concurring).
In sum, because I conclude that the text and history of
the Suspension Clause provide no basis for our jurisdic-
tion, I would affirm the Court of Appeals even if Eisen-
trager did not govern these cases.
* * *
Today the Court warps our Constitution in a way that
goes beyond the narrow issue of the reach of the Suspen-
sion Clause, invoking judicially brainstormed separation-
of-powers principles to establish a manipulable “func-
tional” test for the extraterritorial reach of habeas corpus
(and, no doubt, for the extraterritorial reach of other
constitutional protections as well). It blatantly misde-
scribes important precedents, most conspicuously Justice
Jackson’s opinion for the Court in Johnson v. Eisentrager.
It breaks a chain of precedent as old as the common law
that prohibits judicial inquiry into detentions of aliens
abroad absent statutory authorization. And, most tragi-
cally, it sets our military commanders the impossible task
of proving to a civilian court, under whatever standards
this Court devises in the future, that evidence supports
the confinement of each and every enemy prisoner.
The Nation will live to regret what the Court has done
today. I dissent.
Liberal Troll-
In case you haven't read my profile, I am a civilian attorney and am currently serving in the IRR.
Which means I have the same constitutional rights as any other civilian.
I would have thought you would see that in your Daily Kossack world- since you libs were the ones defending other losers who wore their uniforms to protest the war while in the IRR.
Funny that now you try and shut down someone in the same classification because they don't agree with your defeatism and anti-Americanism. But what is good for the goose is good for the gander. Unfortunately for you...
You have been reported to the DOD IG hotline. Good luck.
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