BOUMEDIENE et al. v. BUSH, PRESIDENT OF THE UNITED STATES, et al.

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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 empow
ered 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 indi
viduals captured while fighting against the United States in Afghanistan
for the duration of that conflict was a fundamental and accepted incident
to war. Thereafter, the Defense Department established Combatant
Status Review Tribunals (CSRTs) to determine whether individuals de
tained at the U. S. Naval Station at Guantanamo Bay, Cuba, were
“enemy combatants.”
Petitioners are aliens detained at Guantanamo after being captured
in Afghanistan or elsewhere abroad and designated enemy combatants
by CSRTs. Denying membership in the al Qaeda terrorist network
that carried out the September 11 attacks and the Taliban regime that
supported al Qaeda, each petitioner sought a writ of habeas corpus in
the District Court, which ordered the cases dismissed for lack of juris
diction because Guantanamo is outside sovereign U. S. territory. The
D. C. Circuit affirmed, but this Court reversed, 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 consoli
dated into two proceedings. In the first, the District Judge granted the
Government’s motion to dismiss, holding that the detainees had no
rights that could be vindicated in a habeas action. In the second, the
judge held that the detainees 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 “exclu
sive” jurisdiction to review CSRT decisions. In Hamdan v. Rumsfeld,
548 U. S. 557, 576–577, the Court held this provision inapplicable to
*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.

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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 jurisdiction 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) amend
ments “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 aspect of the detention, transfer, treatment,
trial, or conditions of detention 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’ habeas ap
plications; 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 sus
pended, unless when in Cases of Rebellion or Invasion the public Safety
may require it”; and that it was therefore unnecessary 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 enact
ment. Section 7(b)’s effective date provision undoubtedly applies to ha
beas 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 section’s language. The
phrase “other action” in § 2241(e)(2) cannot be understood without refer
ring 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 aspect of . . . detention,” etc., pend
ing habeas actions are in the category of cases subject to the statute’s
jurisdictional bar. This is confirmed by the MCA’s legislative his
tory. Thus, if MCA § 7 is valid, petitioners’ cases must be dismissed.
Pp. 736–739.
2. Petitioners have the constitutional privilege of habeas corpus.
They are not barred from seeking the writ or invoking the Suspension
Clause’s protections because they have been designated as enemy com
batants or because of their presence at Guantanamo. Pp. 739–771.

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(a) A brief account of the writ’s history and origins shows that pro
tection 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 centrality that must
inform proper interpretation of the Suspension Clause. That the Fram
ers considered the writ a vital instrument for the protection of individ
ual liberty is evident from the care taken in the Suspension Clause to
specify the limited grounds for its suspension: The writ may be sus
pended only when public safety requires it in times of rebellion or inva
sion. The Clause is designed to protect against cyclical abuses of the
writ by the Executive and Legislative Branches. It protects detainee
rights by a means consistent with the Constitution’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 bal
ance 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. 739–746.
(b) A diligent search of founding-era precedents and legal commen
taries reveals no certain conclusions. None of the cases the parties 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 Department’s in
these cases, and when held in a territory, like Guantanamo, over which
the Government has total military and civil control. 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 India, but critical differences be
tween 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 refrained from doing so for prudential reasons.
The parties’ arguments that the very lack of a precedent on point sup
ports their respective positions are premised upon the doubtful assump
tions that the historical record is complete and that the common law, if
properly understood, yields a definite answer to the questions before
the Court. Pp. 746–752.
(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. 753–771.

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(1) The Court does not question the Government’s position that
Cuba maintains sovereignty, in the legal and technical sense, over Guan
tanamo, but it does not accept the Government’s premise that de jure
sovereignty is the touchstone of habeas jurisdiction. Common-law ha
beas’ 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. 753–755.
(2) Discussions of the Constitution’s extraterritorial application
in cases involving provisions other than the Suspension Clause under
mine the Government’s argument. Fundamental questions regarding
the Constitution’s geographic scope first arose when the Nation 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 Constitution had independ
ent force in the Territories that was not contingent upon acts of legisla
tive 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 incorporated Territories surely destined
for statehood but only in part in unincorporated Territories. See, e. g.,
id., at 143. Practical considerations likewise influenced the Court’s
analysis in Reid v. Covert, 354 U. S. 1, where, in applying the jury provi
sions of the Fifth and Sixth Amendments to American civilians being
tried by the U. S. military abroad, both the plurality and the concur
rences 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 during the Allied Powers’ post-World War II occupation,
the Court, in Johnson v. Eisentrager, 339 U. S. 763, stressed the practi
cal difficulties of ordering the production of the prisoners, id., at 779.
The Government’s reading of Eisentrager as adopting a formalistic test
for determining the Suspension Clause’s reach is rejected because:
(1) The discussion of practical considerations in that case was integral
to a part of the Court’s opinion that came before it announced its hold
ing, see id., at 781; (2) it mentioned the concept of territorial sovereignty
only twice in its opinion, in contrast to its significant discussion of practi
cal barriers to the running of the writ; and (3) if the Government’s read
ing 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 Eisentrager overlooks

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what the Court sees as a common thread uniting all these cases: the idea
that extraterritoriality questions turn on objective factors and practical
concerns, not formalism. Pp. 755–764.
(3) The Government’s sovereignty-based test raises troubling
separation-of-powers concerns, which are illustrated by Guantanamo’s
political history. Although the United States has maintained complete
and uninterrupted control of Guantanamo for over 100 years, the Gov
ernment’s view is that the Constitution has no effect there, at least as
to noncitizens, because the United States disclaimed formal sovereignty
in its 1903 lease with Cuba. The Nation’s basic charter cannot be con
tracted away like this. The Constitution grants Congress and the Pres
ident 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 Constitution 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 particu
lar bearing upon the Suspension Clause question here, for the habeas
writ is itself an indispensable mechanism for monitoring the separation
of powers. Pp. 764–766.
(4) Based on Eisentrager, supra, at 777, and the Court’s reason
ing 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 apprehen
sion and then detention took place; and (3) the practical obstacles inher
ent 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 Ger
man 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 Court is sensitive to the financial and ad
ministrative 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 mis
sion at Guantanamo would be compromised if habeas courts had jurisdic
tion. The situation in Eisentrager was far different, given the histori
cal context and nature of the military’s mission in post-War Germany.
Pp. 766–771.

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(d) Petitioners are therefore entitled to the habeas privilege, and if
that privilege is to be denied them, Congress must act in accordance
with the Suspension Clause’s requirements. Cf. Hamdi, 542 U. S., at
564. P. 771.
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. 771–792.
(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 consid
eration of questions not decided below, but departure from this rule
is appropriate in “exceptional” circumstances, see, e. g., Cooper Indus
tries, 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 peti
tioners have been denied meaningful access to a judicial forum for
years. Pp. 771–773.
(b) Historically, Congress has taken care to avoid suspensions of
the writ. For example, the statutes at issue in the Court’s two leading
cases addressing habeas substitutes, Swain v. Pressley, 430 U. S. 372,
and United States v. Hayman, 342 U. S. 205, were attempts to stream
line 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 nature 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 accommodating the necessity for fact
finding that will arise in some cases by allowing the appellate judge or
Justice to transfer the case to a district court. See § 2241(b). How
ever, by granting the D. C. Circuit “exclusive” jurisdiction over petition
ers’ cases, see DTA § 1005(e)(2)(A), Congress has foreclosed that option
in these cases. Pp. 773–779.
(c) This Court does not endeavor to offer a comprehensive sum
mary of the requisites for an adequate habeas substitute. It is uncon
troversial, however, that the habeas privilege entitles the prisoner to a

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meaningful opportunity to demonstrate that he is being held pursuant
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 circumstances. Petition
ers identify what they see as myriad deficiencies in the CSRTs, the most
relevant being the constraints upon the detainee’s ability to rebut the
factual basis for the Government’s assertion that he is an enemy combat
ant. At the CSRT stage the detainee has limited means to find or pre
sent evidence to challenge the Government’s case, does not have the
assistance of counsel, and may not be aware of the most critical allega
tions that the Government relied upon to order his detention. His op
portunity 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 petitioners that there is considerable risk of error
in the tribunal’s findings of fact. And given that the consequence of
error may be detention 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 rele
vant exculpatory 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. 779–787.
(d) Petitioners have met their burden of establishing that the DTA
review process is, on its face, an inadequate substitute for habeas.
Among the constitutional infirmities from which the DTA potentially
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 re
view 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. There is no jurisdictional bar
to the District Court’s entertaining petitioners’ claims. Pp. 787–792.
4. Nor are there prudential barriers to habeas review. Pp. 793–796.
(a) Petitioners need not seek review of their CSRT determinations
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 appli

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cations, the case for requiring temporary abstention or exhaustion of
alternative remedies would be much stronger. But these qualifications
no longer pertain here. In some instances six years have elapsed with
out 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 present, federal courts should refrain
from entertaining an enemy combatant’s habeas petition at least until
after the CSRT has had a chance to review his status. Pp. 793–795.
(b) In effectuating today’s holding, certain accommodations—in
cluding channeling future cases to a single district court and requiring
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 reduce the burden
habeas proceedings will place on the military, without impermissibly
diluting the writ’s protections. Pp. 795–796.
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 free
dom from arbitrary and unlawful restraint and the personal liberty that
is secured by adherence to the separation of powers. Pp. 796–798.
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, post, p. 798.
Roberts, C. J., filed a dissenting opinion, in which Scalia, Thomas, and
Alito, JJ., joined, post, p. 801. Scalia, J., filed a dissenting opinion, in
which Roberts, C. J., and Thomas and Alito, JJ., joined, post, p. 826.
Seth P. Waxman argued the cause for petitioners in both
cases. With him on the briefs for petitioner Lakhdar
Boumediene et al. in No. 06–1195 were Paul R. Q. Wolfson,
Jonathan G. Cedarbaum, Douglas F. Curtis, Paul M. Winke,
Stephen H. Oleskey, Robert C. Kirsch, Mark C. Fleming, and
Pratik A. Shah. David J. Cynamon, Matthew J. MacLean,

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Counsel
David H. Remes, and Marc D. Falkoff filed briefs for peti
tioner Khaled A. F. Al Odah et al. in No. 06–1196. Thomas
B. Wilner, Neil H. Koslowe, George Brent Mickum IV, John
J. Gibbons, Lawrence S. Lustberg, Michael Ratner, J. Wells
Dixon, Shayana Kadidal, Mark S. Sullivan, Pamela Rogers
Chepiga, Joseph Margulies, Erwin Chemerinsky, Baher
Azmy, Kristine Huskey, Douglas J. Behr, and Clive Stafford
Smith filed briefs for petitioner Jamil El-Banna et al. in
No. 06–1196. William C. Kuebler, Rebecca Snyder, and
Walter Dellinger filed a brief for Omar Khadr as respondent
in No. 06–1196 under this Court’s Rule 12.6 in support of
petitioners.
Former Solicitor General Clement argued the cause for
respondents in both cases. With him on the brief were Act
ing Solicitor General Garre, Assistant Attorney General
Keisler, Principal Deputy Associate Attorney General Kat
sas, Eric D. Miller, Douglas N. Letter, Robert M. Loeb,
August E. Flentje, Pamela M. Stahl, and Jennifer Paisner.†
†Briefs of amici curiae urging reversal in both cases were filed for the
American Bar Association by William H. Neukom and Sidney S. Rosdeit
cher; for the American Civil Liberties Union et al. by Cecillia D. Wang,
Lucas Guttentag, Steven R. Shapiro, Arthur H. Bryant, and Victoria W.
Ni; for the Association of the Bar of the City of New York by Arthur F.
Fergenson and David E. Nachman; for Canadian Parliamentarians and
Professors of Law by William R. Stein and Scott H. Christensen; for the
Cato Institute by Timothy Lynch; for the Coalition of Non-Governmental
Organizations by Jonathan S. Franklin, Stephen M. McNabb, Sharon
Bradford Franklin, and John W. Whitehead; for the Federal Public De
fender for the Southern District of Florida by Paul M. Rashkind; for For
mer Federal Judges by Beth S. Brinkmann, Seth M. Galanter, Ketanji
Brown Jackson, and Agnieszka M. Fryszman; for Former United States
Diplomat Diego C. Asencio et al. by Douglass Cassel; for International
Humanitarian Law Experts by Harrison J. Frahn IV and Beth Van
Schaack; for Professors of Constitutional Law and Federal Jurisdiction by
Margaret L. Sanner, Gerald L. Neuman, pro se, and Harold Hongju Koh,
pro se; for Retired Military Officers by James C. Schroeder, Gary A. Isaac,
and Philip Allen Lacovara; for Specialists in Israeli Military Law and

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732 BOUMEDIENE v. BUSH
Opinion of the Court
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 earlier
cases relating to the detention of aliens at Guantanamo:
whether they have the constitutional privilege of habeas cor
pus, 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
Constitutional Law by Stephen J. Schulhofer, Charles T. Lester, Jr., John
A. Chandler, and Avital Stadler; for the United Nations High Commis
sioner for Human Rights by Donald Francis Donovan, Catherine M.
Amirfar, and William H. Taft V; for Salim Hamdan by Neal K. Katyal,
Harry H. Schneider, Jr., Joseph M. McMillan, Laurence H. Tribe, Kevin
K. Russell, and Charles Swift; and for United States Senator Arlen Spec
ter, by Sen. Specter, pro se.
Briefs of amici curiae urging affirmance in both cases were filed for the
Criminal Justice Legal Foundation by Kent S. Scheidegger; and for Re
tired Generals and Admirals et al. by Daniel J. Popeo and Richard A.
Samp.
Briefs of amici curiae were filed in both cases for 383 United Kingdom
and European Parliamentarians by Claude B. Stansbury; for the Ameri
can Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, and
Robert W. Ash; for Amnesty International et al. by Paul L. Hoffman and
William J. Aceves; for the Commonwealth Lawyers Association by John
Townsend Rich and Stephen J. Pollak; for Federal Courts and Interna
tional Law Professors by David C. Vladeck; for Legal Historians by James
Oldham, Michael J. Wishnie, and Jonathan Hafetz; for the National Insti
tute of Military Justice by Jennifer S. Martinez, Ronald W. Meister, Ste
phen A. Saltzburg, and Arnon D. Siegel; and for Scholar Paul Finkelman
et al. by David Overlock Stewart.
Andrew G. McBride filed a brief for the Foundation for Defense of De
mocracies et al. as amici curiae urging affirmance in No. 06–1195.
Briefs of amici curiae were filed in No. 06–1196 for International Law
Scholars by Sarah H. Paoletti; and for the Juvenile Law Center et al. by
Marsha L. Levick.

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Opinion of the Court
(DTA), 119 Stat. 2739, that provides certain procedures for
review of the detainees’ status. We hold that those proce
dures are not an adequate and effective substitute for habeas
corpus. Therefore § 7 of the Military Commissions Act of
2006 (MCA), 28 U. S. C. § 2241(e), operates as an unconstitu
tional suspension of the writ. We do not address whether
the President has authority to detain these petitioners nor
do we hold that the writ must issue. These and other ques
tions regarding the legality of the detention are to be re
solved 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, the President is authorized “to use all necessary
and appropriate force against those nations, organizations,
or persons he determines planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11,
2001, or harbored such organizations or persons, in order
to prevent any future acts of international terrorism
against the United States by such nations, organizations or
persons.”
In Hamdi v. Rumsfeld, 542 U. S. 507 (2004), five Members
of the Court recognized that detention of individuals who
fought against the United States in Afghanistan “for the du
ration 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., dissent
ing). After Hamdi, the Deputy Secretary of Defense estab
lished Combatant Status Review Tribunals (CSRTs) to de
termine whether individuals detained at Guantanamo were
“enemy combatants,” as the Department defines that term.
See App. to Pet. for Cert. in No. 06–1195, p. 81a. A later
memorandum established procedures to implement the

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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 Federal Respond
ents 10.
Interpreting the AUMF, the Department of Defense or
dered the detention of these petitioners, and they were
transferred to Guantanamo. Some of these individuals were
apprehended on the battlefield in Afghanistan, others in
places as far away from there as Bosnia and Gambia. All
are foreign nationals, but none is a citizen of a nation now at
war with the United States. Each denies he is a member of
the al Qaeda terrorist network that carried out the Septem
ber 11 attacks or of the Taliban regime that provided sanc
tuary 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 Dis
trict Court ordered the cases dismissed for lack of jurisdic
tion because the naval station is outside the sovereign terri
tory of the United States. See Rasul v. Bush, 215 F. Supp.
2d 55 (2002). The Court of Appeals for the District of Co
lumbia 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 cor
pus jurisdiction to Guantanamo. See Rasul v. Bush, 542
U. S. 466, 473 (2004). The constitutional issue presented in
the instant cases was not reached in Rasul. Id., at 476.
After Rasul, petitioners’ cases were consolidated and en
tertained in two separate proceedings. In the first set of
cases, Judge Richard J. Leon granted the Government’s mo
tion to dismiss, holding that the detainees had no rights that
could be vindicated in a habeas corpus action. In the second
set of cases Judge Joyce Hens Green reached the opposite
conclusion, holding the detainees had rights under the Due

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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 deci
sions, 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 con
sider . . . an application for a writ of habeas corpus filed by
or on behalf of an alien detained by the Department of De
fense at Guantanamo Bay, Cuba.” 119 Stat. 2742. Section
1005 further provides that the Court of Appeals for the Dis
trict 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 petition
ers’) pending when the DTA was enacted. Congress re
sponded by passing the MCA, 10 U. S. C. § 948a et seq., which
again amended § 2241. The text of the statutory amend
ment is discussed below. See Part II, infra. (Four Mem
bers of the Hamdan majority noted that “[n]othing pre
vent[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 con
curring opinion referred was the authority to “create mili
tary commissions of the kind at issue” in the case. Ibid.
Nothing in that opinion can be construed as an invitation for
Congress to suspend the writ.)
Petitioners’ cases were consolidated on appeal, and the
parties filed supplemental briefs in light of our decision in
Hamdan. The Court of Appeals’ ruling, 476 F. 3d 981
(CADC 2007), is the subject of our present review and to
day’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

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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. 1160 (2007).
II
As a threshold matter, we must decide whether MCA § 7
denies the federal courts jurisdiction to hear habeas corpus
actions pending at the time of its enactment. We hold the
statute does deny that jurisdiction, so that, if the statute is
valid, petitioners’ cases must be dismissed.
As amended by the terms of the MCA, 28 U. S. C. § 2241(e)
now provides:
“(1) No court, justice, or judge shall have jurisdiction
to hear or consider an application for a writ of habeas
corpus filed by or on behalf of an alien detained by the
United States who has been determined by the United
States to have been properly detained as an enemy com
batant 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 jurisdic
tion 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 con
finement of an alien who is or was detained by the
United States and has been determined by the United
States to have been properly detained as an enemy com
batant or is awaiting such determination.”
Section 7(b) of the MCA provides the effective date for the
amendment of § 2241(e). It states:
“The amendment made by [MCA § 7(a)] shall take effect
on the date of the enactment of this Act, and shall apply
to all cases, without exception, pending on or after the

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date of the enactment of this Act which relate to any
aspect of the detention, transfer, treatment, trial, or con
ditions 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 ap
plies to habeas corpus actions. Those actions, by definition,
are cases “which relate to . . . detention.” See Black’s Law
Dictionary 728 (8th ed. 2004) (defining habeas corpus as “[a]
writ employed to bring a person before a court, most fre
quently to ensure that the party’s imprisonment or detention
is not illegal”). Petitioners argue, nevertheless, that MCA
§ 7(b) is not a sufficiently clear statement of congressional
intent to strip the federal courts of jurisdiction in pending
cases. See Ex parte Yerger, 8 Wall. 85, 102–103 (1869).
We disagree.
Their argument is as follows: Section 2241(e)(1) refers to
“a writ of habeas corpus.” The next paragraph, § 2241(e)(2),
refers to “any other action . . . relating to any aspect of the
detention, transfer, treatment, trial, or conditions of con
finement of an alien who . . . [has] been properly detained
as an enemy combatant or is awaiting such determination.”
There are two separate paragraphs, the argument continues,
so there must be two distinct classes of cases. And the ef
fective 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 condi
tions of detention of an alien detained by the United States.”
Petitioners’ textual argument would have more force were
it not for the phrase “other action” in § 2241(e)(2). The
phrase cannot be understood without referring back to the
paragraph that precedes it, § 2241(e)(1), which explicitly men
tions the term “writ of habeas corpus.” The structure of
the two paragraphs implies that habeas actions are a type
of action “relating to any aspect of the detention, transfer,
treatment, trial, or conditions of confinement of an alien who

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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 Sus
pension Clause arguments but noted the relevance of the
clear statement rule in deciding whether Congress intended
to reach pending habeas corpus cases. See 548 U. S., at 575
(Congress should “not be presumed to have effected such
denial [of habeas relief] absent an unmistakably clear state
ment to the contrary”). This interpretive rule facilitates a
dialogue between Congress and the Court. Cf. Hilton v.
South Carolina Public Railways Comm’n, 502 U. S. 197, 206
(1991); H. Hart & A. Sacks, The Legal Process: Basic Prob
lems 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 inter
pretations are favored in order to avoid constitutional diffi
culties, 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 dif
ficult constitutional question is presented. The usual pre
sumption is that Members of Congress, in accord with their
oath of office, considered the constitutional issue and de
termined the amended statute to be a lawful one; and the
Judiciary, in light of that determination, proceeds to its own
independent judgment on the constitutional question when
required to do so in a proper case.
If this ongoing dialogue between and among the branches
of Government is to be respected, we cannot ignore that the
MCA was a direct response to Hamdan’s holding that the
DTA’s jurisdiction-stripping provision had no application to
pending cases. The Court of Appeals was correct to take
note of the legislative history when construing the statute,
see 476 F. 3d, at 986, n. 2 (citing relevant floor statements);

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and we agree with its conclusion that the MCA deprives the
federal courts of jurisdiction to entertain the habeas corpus
actions now before us.
III
In deciding the constitutional questions now presented we
must determine whether petitioners are barred from seeking
the writ or invoking the protections of the Suspension Clause
either because of their status, i. e., petitioners’ designation
by the Executive Branch as enemy combatants, or their
physical location, i. e., their presence at Guantanamo Bay.
The Government contends that noncitizens designated as
enemy combatants and detained in territory located outside
our Nation’s borders have no constitutional rights and no
privilege of habeas corpus. Petitioners contend they do
have cognizable constitutional rights and that Congress, in
seeking to eliminate recourse to habeas corpus as a means
to assert those rights, acted in violation of the Suspension
Clause.
We begin with a brief account of the history and origins
of the writ. Our account proceeds from two propositions.
First, protection for the privilege of habeas corpus was one
of the few safeguards of liberty specified in a Constitution
that, at the outset, had no Bill of Rights. In the system
conceived by the Framers the writ had a centrality that must
inform proper interpretation of the Suspension Clause.
Second, to the extent there were settled precedents or legal
commentaries in 1789 regarding the extraterritorial scope of
the writ or its application to enemy aliens, those authorities
can be instructive for the present cases.
A
The Framers viewed freedom from unlawful restraint as a
fundamental precept of liberty, and they understood the writ
of habeas corpus as a vital instrument to secure that free
dom. Experience taught, however, that the common-law
writ all too often had been insufficient to guard against the

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abuse of monarchial power. That history counseled the ne
cessity for specific language in the Constitution to secure the
writ and ensure its place in our legal system.
Magna Carta decreed that no man would be imprisoned
contrary to the law of the land. Art. 39, in Sources of Our
Liberties 17 (R. Perry & J. Cooper eds. 1959) (“No free man
shall be taken or imprisoned or dispossessed, or outlawed, or
banished, or in any way destroyed, nor will we go upon him,
nor send upon him, except by the legal judgment of his peers
or by the law of the land”). Important as the principle was,
the Barons at Runnymede prescribed no specific legal proc
ess to enforce it. Holdsworth tells us, however, that gradu
ally the writ of habeas corpus became the means by which
the promise of Magna Carta was fulfilled. 9 W. Holds
worth, A History of English Law 112 (1926) (hereinafter
Holdsworth).
The development was painstaking, even by the centuries
long measures of English constitutional history. The writ
was known and used in some form at least as early as the
reign of Edward I. Id., at 108–125. Yet at the outset it
was used to protect not the rights of citizens but those of
the King and his courts. The early courts were considered
agents of the Crown, designed to assist the King in the exer
cise of his power. See J. Baker, An Introduction to English
Legal History 38–39 (4th ed. 2002). Thus the writ, while it
would become part of the foundation of liberty for the King’s
subjects, was in its earliest use a mechanism for securing
compliance with the King’s laws. See Halliday & White,
The Suspension Clause: English Text, Imperial Contexts,
and American Implications, 94 Va. L. Rev. 575, 585 (2008)
(hereinafter Halliday & White) (manuscript, at 11, online at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1008252
(all Internet materials as visited June 9, 2008, and available
in Clerk of Court’s case file) (noting that “conceptually the
writ arose from a theory of power rather than a theory of
liberty”)). Over time it became clear that by issuing the

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writ of habeas corpus common-law courts sought to enforce
the King’s prerogative to inquire into the authority of a jailer
to hold a prisoner. See M. Hale, Prerogatives of the King
229 (D. Yale ed. 1976); 2 J. Story, Commentaries on the Con
stitution of the United States § 1341, p. 237 (3d ed. 1858) (not
ing 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 Eng
lish 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
Cal. L. Rev. 335, 336 (1952) (noting that by this point the
writ was “the appropriate process for checking illegal im
prisonment by public officials”).
Still, the writ proved to be an imperfect check. Even
when the importance of the writ was well understood in Eng
land, habeas relief often was denied by the courts or sus
pended by Parliament. Denial or suspension occurred in
times of political unrest, to the anguish of the imprisoned
and the outrage of those in sympathy with them.
A notable example from this period was Darnel’s Case, 3
How. St. Tr. 1 (K. B. 1627). The events giving rise to the
case began when, in a display of the Stuart penchant for au
thoritarian 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

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was a sufficient answer and justified the subjects’ continued
imprisonment. Id., at 59.
There was an immediate outcry of protest. The House of
Commons promptly passed the Petition of Right, 3 Car. 1,
ch. 1 (1627), 5 Statutes of the Realm 23, 24 (reprint 1963),
which condemned executive “imprison[ment] without any
cause” shown, and declared that “no freeman in any such
manner as is before mencioned [shall] be imprisoned or de
teined.” Yet a full legislative response was long delayed.
The King soon began to abuse his authority again, and Par
liament was dissolved. See W. Hall & R. Albion, A History
of England and the British Empire 328 (3d ed. 1953) (herein
after Hall & Albion). When Parliament reconvened in 1640,
it sought to secure access to the writ by statute. The Act
of 1640, 16 Car. 1, ch. 10, 5 Statutes of the Realm, at 110,
expressly authorized use of the writ to test the legality of
commitment by command or warrant of the King or the
Privy Council. Civil strife and the Interregnum soon fol
lowed, and not until 1679 did Parliament try once more to
secure the writ, this time through the Habeas Corpus Act of
1679, 31 Car. 2, ch. 2, id., at 935. The Act, which later would
be described by Blackstone as the “stable bulwark of our
liberties,” 1 W. Blackstone, Commentaries *137 (hereinafter
Blackstone), established procedures for issuing the writ;
and it was the model upon which the habeas statutes of the
13 American Colonies were based, see Collings, supra, at
338–339.
This history was known to the Framers. It no doubt con
firmed their view that pendular swings to and away from
individual liberty were endemic to undivided, uncontrolled
power. The Framers’ inherent distrust of governmental
power was the driving force behind the constitutional plan
that allocated powers among three independent branches.
This design serves not only to make Government accountable
but also to secure individual liberty. See Loving v. United
States, 517 U. S. 748, 756 (1996) (noting that “[e]ven before

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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., con
curring) (“[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 guaran
tees of the Fifth and Fourteenth Amendments, see Yick Wo
v. Hopkins, 118 U. S. 356, 374 (1886), protects persons as well
as citizens, foreign nationals who have the privilege of liti
gating in our courts can seek to enforce separation-of-powers
principles, see, e. g., INS v. Chadha, 462 U. S. 919, 958–959
(1983).
That the Framers considered the writ a vital instrument
for the protection of individual liberty is evident from the
care taken to specify the limited grounds for its suspension:
“The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it.” Art. I, § 9, cl. 2; see Amar, Of
Sovereignty and Federalism, 96 Yale L. J. 1425, 1509, n. 329
(1987) (“[T]he non-suspension clause is the original Consti
tution’s most explicit reference to remedies”). The word
“privilege” was used, perhaps, to avoid mentioning some
rights to the exclusion of others. (Indeed, the only mention
of the term “right” in the Constitution, as ratified, is in its
clause giving Congress the power to protect the rights of
authors and inventors. See Art. I, § 8, cl. 8.)
Surviving accounts of the ratification debates provide ad
ditional 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 Sus
pension Clause as an “exception” to the “power given to Con
gress to regulate courts.” See 3 Debates in the Several

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State Conventions on the Adoption of the Federal Constitu
tion 460–464 (J. Elliot 2d ed. 1876). A resolution passed by
the New York ratifying convention made clear its under
standing that the Clause not only protects against arbitrary
suspensions of the writ but also guarantees an affirmative
right to judicial inquiry into the causes of detention. See
Resolution of the New York Ratifying Convention (July 26,
1788), in 1 id., at 328 (noting the convention’s understanding
“[t]hat every person restrained of his liberty is entitled to an
inquiry into the lawfulness of such restraint, and to a re
moval thereof if unlawful; and that such inquiry or removal
ought not to be denied or delayed, except when, on account
of public danger, the Congress shall suspend the privilege of
the writ of habeas corpus”). Alexander Hamilton likewise
explained that by providing the detainee a judicial forum to
challenge detention, the writ preserves limited government.
As he explained in The Federalist No. 84:
“[T]he practice of arbitrary imprisonments, have been,
in all ages, the favorite and most formidable instruments
of tyranny. The observations of the judicious Black
stone . . . are well worthy of recital: ‘To bereave a man
of life . . . or by violence to confiscate his estate, without
accusation or trial, would be so gross and notorious an
act of despotism as must at once convey the alarm of
tyranny throughout the whole nation; but confinement
of the person, by secretly hurrying him to jail, where
his sufferings are unknown or forgotten, is a less public,
a less striking, and therefore a more dangerous engine
of arbitrary government.’ And as a remedy for this
fatal evil he is everywhere peculiarly emphatical in his
encomiums on the habeas corpus act, which in one place
he calls ‘the bulwark of the British Constitution.’ ” C.
Rossiter ed., p. 512 (1961) (quoting 1 Blackstone *136, 4
id., at *438).

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Post-1789 habeas developments in England, though not
bearing upon the Framers’ intent, do verify their foresight.
Those later events would underscore the need for structural
barriers against arbitrary suspensions of the writ. Just as
the writ had been vulnerable to executive and parliamentary
encroachment on both sides of the Atlantic before the Ameri
can Revolution, despite the Habeas Corpus Act of 1679, the
writ was suspended with frequency in England during times
of political unrest after 1789. Parliament suspended the
writ for much of the period from 1792 to 1801, resulting in
rampant arbitrary imprisonment. See Hall & Albion 550.
Even as late as World War I, at least one prominent English
jurist complained that the Defence of the Realm Act, 1914,
4 & 5 Geo. 5, ch. 29(1)(a), effectively had suspended the privi
lege of habeas corpus for any person suspected of “communi
cating with the enemy.” See King v. Halliday, [1917] A. C.
260, 299 (Lord Shaw, dissenting); see generally A. Simpson,
In the Highest Degree Odious: Detention Without Trial in
Wartime Britain 6–7, 24–25 (1992).
In our own system the Suspension Clause is designed to
protect against these cyclical abuses. The Clause protects
the rights of the detained by a means consistent with the
essential design of the Constitution. It ensures that, except
during periods of formal suspension, the Judiciary will have
a time-tested device, the writ, to maintain the “delicate bal
ance of governance” that is itself the surest safeguard of lib
erty. See Hamdi, 542 U. S., at 536 (plurality opinion). The
Clause protects the rights of the detained by affirming the
duty and authority of the Judiciary to call the jailer to ac
count. 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 proce
dure upon this [habeas] writ is, that it is directed to, and

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served upon, not the person confined, but his jailer”). The
separation-of-powers doctrine, and the history that influ
enced its design, therefore must inform the reach and pur
pose of the Suspension Clause.
B
The broad historical narrative of the writ and its function
is central to our analysis, but we seek guidance as well from
founding-era authorities addressing the specific question be
fore us: whether foreign nationals, apprehended and de
tained 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 Suspen
sion Clause have expanded along with post-1789 develop
ments that define the present scope of the writ. See INS v.
St. Cyr, 533 U. S. 289, 300–301 (2001). But the analysis may
begin with precedents as of 1789, for the Court has said that
“at the absolute minimum” the Clause protects the writ as
it existed when the Constitution was drafted and ratified.
Id., at 301.
To support their arguments, the parties in these cases
have examined historical sources to construct a view of the
common-law writ as it existed in 1789—as have amici whose
expertise in legal history the Court has relied upon in the
past. See Brief for Legal Historians as Amici Curiae; see
also St. Cyr, supra, at 302, n. 16. The Government argues
the common-law writ ran only to those territories over which
the Crown was sovereign. See Brief for Federal Respond
ents 27. Petitioners argue that jurisdiction followed the
King’s officers. See Brief for Petitioner Boumediene et al.
11. Diligent search by all parties reveals no certain conclu
sions. In none of the cases cited do we find that a common
law court would or would not have granted, or refused to
hear for lack of jurisdiction, a petition for a writ of habeas
corpus brought by a prisoner deemed an enemy combatant,

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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) (or
dering 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 ques
tion”). We know as well that common-law courts enter
tained habeas petitions brought by enemy aliens detained in
England—“entertained” at least in the sense that the courts
held hearings to determine the threshold question of entitle
ment 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 Cas
tro’s Case, Fort. 195, 92 Eng. Rep. 816 (K. B. 1697).
In Schiever and the Spanish Sailors’ case, the courts de
nied relief to the petitioners. Whether the holdings in these
cases were jurisdictional or based upon the courts’ ruling
that the petitioners were detained lawfully as prisoners of
war is unclear. See Spanish Sailors, supra, at 1324, 96 Eng.
Rep., at 776; Schiever, supra, at 766, 97 Eng. Rep., at 552.
In Du Castro’s Case, the court granted relief, but that case
is not analogous to petitioners’ because the prisoner there
appears to have been detained in England. See Halliday &
White 27, n. 72. To the extent these authorities suggest the
common-law courts abstained altogether from matters in
volving 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

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enemy, a wartime practice well known to the Framers. See
Resolution of Mar. 30, 1778, 10 Journals of the Continental
Congress 1774–1789, p. 295 (W. Ford ed. 1908) (directing Gen
eral Washington not to exchange prisoners with the British
unless the enemy agreed to exempt citizens from capture).
We find the evidence as to the geographic scope of the
writ at common law informative, but, again, not dispositive.
Petitioners argue the site of their detention is analogous to
two territories outside of England to which the writ did run:
the so-called “exempt jurisdictions,” like the Channel Is
lands; and (in former times) India. There are critical differ
ences between these places and Guantanamo, however.
As the Court noted in Rasul, 542 U. S., at 481–482, and
nn. 11–12, common-law courts granted habeas corpus relief
to prisoners detained in the exempt jurisdictions. But these
areas, while not in theory part of the realm of England, were
nonetheless under the Crown’s control. See 2 H. Hallam,
Constitutional History of England: From the Accession of
Henry VII to the Death of George II, pp. 232–233 (reprint
1989). And there is some indication that these jurisdictions
were considered sovereign territory. King v. Cowle, 2 Burr.
834, 854, 855, 856, 97 Eng. Rep. 587, 599 (K. B. 1759) (describ
ing one of the exempt jurisdictions, Berwick-upon-Tweed, as
under the “sovereign jurisdiction” and “subjection of the
Crown of England”). Because the United States does not
maintain formal sovereignty over Guantanamo Bay, see
Part IV, infra, the naval station there and the exempt juris
dictions discussed in the English authorities are not simi
larly situated.
Petitioners and their amici further rely on cases in which
British courts in India granted writs of habeas corpus to non
citizens detained in territory over which the Moghul Em
peror retained formal sovereignty and control. See Brief
for Petitioner Boumediene et al. 12–13; Brief for Legal Histo
rians as Amici Curiae 12–13. The analogy to the present
cases breaks down, however, because of the geographic loca

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tion 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 Parlia
ment to monitor certain conduct during the British Raj.
See Regulating Act of 1773, 13 Geo. 3, ch. 63, §§ 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
alien prisoners detained abroad. We find little support for
this conclusion.
The Government argues, in turn, that Guantanamo is more
closely analogous to Scotland and Hanover, territories that
were not part of England but nonetheless controlled by the
English monarch (in his separate capacities as King of Scot
land 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 Han
over, territories Lord Mansfield referred to as “foreign.”
Ibid. But what matters for our purposes is why common
law courts lacked this power. Given the English Crown’s
delicate and complicated relationships with Scotland and
Hanover in the 1700’s, we cannot disregard the possibility
that the common-law courts’ refusal to issue the writ to these
places was motivated not by formal legal constructs but by
what we would think of as prudential concerns. This ap
pears 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) (discussing 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

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upon it, they would not think proper to interpose; and there
fore in the case of imprisonments in Guernsey, Jersey, Mi
norca, or the plantations, the most usual way is to complain
to the king in Council” (internal quotation marks omitted)).
And after the Act of Union in 1707, through which the king
doms of England and Scotland were merged politically,
Queen Anne and her successors, in their new capacity as sov
ereign 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 “foreign”
country vis-a` -vis England—at least not in the sense in which
Cuba is a foreign country vis-a` -vis the United States.
Scotland remained “foreign” in Lord Mansfield’s day in at
least one important respect, however. Even after the Act
of Union, Scotland (like Hanover) continued to maintain its
own laws and court system. See 1 Blackstone *98, *106.
Under these circumstances prudential considerations would
have weighed heavily when courts sitting in England re
ceived habeas petitions from Scotland or the Electorate.
Common-law decisions withholding the writ from prisoners
detained in these places easily could be explained as efforts
to avoid either or both of two embarrassments: conflict with
the judgments of another court of competent jurisdiction; or
the practical inability, by reason of distance, of the English
courts to enforce their judgments outside their territorial
jurisdiction. Cf. Munaf v. Geren, ante, at 693 (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,
and n. 6 (citing Ex parte Anderson, 3 El. and El. 487, 121
Eng. Rep. 525 (K. B. 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

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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. Un
like 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 satis
factory explanation for the general understanding that pre
vailed 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 sover
eign, whereas the Crowns of Great Britain and Ireland re
mained separate (at least in theory). See Cowle, supra, at
856–857, 97 Eng. Rep., at 600; 1 Blackstone *100–*101. But
there was at least one major difference between Scotland’s
and Ireland’s relationship with England during this period
that might explain why the writ ran to Ireland but not to
Scotland. English law did not generally apply in Scotland
(even after the Act of Union), but it did apply in Ireland.
Blackstone put it as follows: “[A]s Scotland and England are
now one and the same kingdom, and yet differ in their munic
ipal laws; so England and Ireland are, on the other hand,
distinct kingdoms, and yet in general agree in their laws.”
Id., at *100 (footnote omitted). 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 Eng
lish 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 Guantan
amo. No Cuban court has jurisdiction to hear these peti
tioners’ claims, and no law other than the laws of the United
States applies at the naval station. The modern-day rela

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tions between the United States and Guantanamo thus differ
in important respects from the 18th-century relations be
tween 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 Govern
ment points out there is no evidence that a court sitting in
England granted habeas relief to an enemy alien detained
abroad; petitioners respond there is no evidence that a court
refused to do so for lack of jurisdiction.
Both arguments are premised, however, upon the assump
tion that the historical record is complete and that the com
mon law, if properly understood, yields a definite answer to
the questions before us. There are reasons to doubt both
assumptions. Recent scholarship points to the inherent
shortcomings in the historical record. See Halliday &
White 14–15 (noting that most reports of 18th-century ha
beas proceedings were not printed). And given the unique
status of Guantanamo Bay and the particular dangers of ter
rorism in the modern age, the common-law courts simply
may not have confronted cases with close parallels to this
one. We decline, therefore, to infer too much, one way or
the other, from the lack of historical evidence on point.
Cf. Brown v. Board of Education, 347 U. S. 483, 489 (1954)
(noting evidence concerning the circumstances surrounding
the adoption of the Fourteenth Amendment, discussed in the
parties’ briefs and uncovered through the Court’s own inves
tigation, “convince us that, although these sources cast some
light, it is not enough to resolve the problem with which we
are faced. At best, they are inconclusive”); Reid v. Covert,
354 U. S. 1, 64 (1957) (Frankfurter, J., concurring in result)
(arguing constitutional adjudication should not be based
upon evidence that is “too episodic, too meager, to form a
solid basis in history, preceding and contemporaneous with
the framing of the Constitution”).

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IV
Drawing from its position that at common law the writ ran
only to territories over which the Crown was sovereign, the
Government says the Suspension Clause affords petitioners
no rights because the United States does not claim sover
eignty over the place of detention.
Guantanamo Bay is not formally part of the United States.
See DTA § 1005(g), 119 Stat. 2743. And under the terms of
the lease between the United States and Cuba, Cuba retains
“ultimate sovereignty” over the territory while the United
States exercises “complete jurisdiction and control.” See
Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903,
U. S.-Cuba, Art. III, T. S. No. 418 (hereinafter 1903 Lease
Agreement); Rasul, 542 U. S., at 471. Under the terms of
the 1934 treaty, however, Cuba effectively has no rights as a
sovereign until the parties agree to modification of the 1903
Lease Agreement or the United States abandons the base.
See Treaty Defining Relations with Cuba, May 29, 1934,
U. S.-Cuba, Art. III, 48 Stat. 1683, T. S. No. 866.
The United States contends, nevertheless, that Guantan
amo is not within its sovereign control. This was the Gov
ernment’s position well before the events of September 11,
2001. See, e. g., Brief for Petitioners in Sale v. Haitian Cen
ters Council, Inc., O. T. 1992, No. 92–344, p. 31 (arguing that
Guantanamo is territory “outside the United States”). And
in other contexts the Court has held that questions of sov
ereignty 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 leg
islative 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 inter
pretation case that did not involve a political question, the
President’s construction of the lease agreement would be
entitled to great respect. See Sumitomo Shoji America,
Inc. v. Avagliano, 457 U. S. 176, 184–185 (1982).

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We therefore do not question the Government’s position
that Cuba, not the United States, maintains sovereignty, in
the legal and technical sense of the term, over Guantanamo
Bay. But this does not end the analysis. Our cases do not
hold it is improper for us to inquire into the objective degree
of control the Nation asserts over foreign territory. As
commentators have noted, “ ‘[s]overeignty’ is a term used in
many senses and is much abused.” See 1 Restatement
(Third) of Foreign Relations Law of the United States § 206,
Comment b, p. 94 (1986). When we have stated that sover
eignty is a political question, we have referred not to sover
eignty in the general, colloquial sense, meaning the exercise
of dominion or power, see Webster’s New International Dic
tionary 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 Rela
tions, supra, § 206, Comment b, at 94 (noting that sover
eignty “implies a state’s lawful control over its territory gen
erally to the exclusion of other states, authority to govern in
that territory, and authority to apply law there”). Indeed,
it is not altogether uncommon for a territory to be under the
de jure sovereignty of one nation, while under the plenary
control, or practical sovereignty, of another. This condition
can occur when the territory is seized during war, as Guan
tanamo was during the Spanish-American War. See, e. g.,
Fleming v. Page, 9 How. 603, 614 (1850) (noting that the port
of Tampico, conquered by the United States during the war
with Mexico, was “undoubtedly . . . subject to the sover
eignty 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 Protector
ate in South Africa was “under His Majesty’s dominion in
the sense of power and jurisdiction, but is not under his do
minion in the sense of territorial dominion”). Accordingly,

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for purposes of our analysis, we accept the Government’s po
sition that Cuba, and not the United States, retains de jure
sovereignty over Guantanamo Bay. As we did in Rasul,
however, we take notice of the obvious and uncontested fact
that the United States, by virtue of its complete jurisdiction
and control over the base, maintains de facto sovereignty
over this territory. See 542 U. S., at 480; id., at 487 (Ken
nedy, 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 touch
stone of habeas corpus jurisdiction. This premise, however,
is unfounded. For the reasons indicated above, the history
of common-law habeas corpus provides scant support for this
proposition; and, for the reasons indicated below, that posi
tion would be inconsistent with our precedents and contrary
to fundamental separation-of-powers principles.
A
The Court has discussed the issue of the Constitution’s ex
traterritorial application on many occasions. These deci
sions undermine the Government’s argument that, at least
as applied to noncitizens, the Constitution necessarily stops
where de jure sovereignty ends.
The Framers foresaw that the United States would expand
and acquire new territories. See American Ins. Co. v. 356
Bales of Cotton, 1 Pet. 511, 542 (1828). Article IV, § 3, cl. 1,
grants Congress the power to admit new States. Clause 2
of the same section grants Congress the “Power to dispose
of and make all needful Rules and Regulations respecting
the Territory or other Property belonging to the United
States.” Save for a few notable (and notorious) exceptions,
e. g., Dred Scott v. Sandford, 19 How. 393 (1857), throughout
most of our history there was little need to explore the outer
boundaries of the Constitution’s geographic reach. When
Congress exercised its power to create new territories, it

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guaranteed constitutional protections to the inhabitants by
statute. See, e. g., An Act: to establish a Territorial Govern
ment for Utah, § 17, 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 Ter
ritory hereafter organized as elsewhere within the United
States”); see generally Burnett, Untied States: American
Expansion and Territorial Deannexation, 72 U. Chi. L. Rev.
797, 825–827 (2005). In particular, there was no need to test
the limits of the Suspension Clause because, as early as 1789,
Congress extended the writ to the Territories. See Act of
Aug. 7, 1789, 1 Stat. 52 (reaffirming Art. II of Northwest
Ordinance of 1787, which provided that “[t]he inhabitants of
the said territory, shall always be entitled to the benefits of
the writ of habeas corpus”).
Fundamental questions regarding the Constitution’s geo
graphic scope first arose at the dawn of the 20th century
when the Nation acquired noncontiguous Territories: Puerto
Rico, Guam, and the Philippines—ceded to the United States
by Spain at the conclusion of the Spanish-American War—
and Hawaii—annexed by the United States in 1898. At this
point Congress chose to discontinue its previous practice of
extending constitutional rights to the Territories by statute.
See, e. g., An Act Temporarily to provide for the administra
tion of the affairs of civil government in the Philippine Is
lands, and for other purposes, 32 Stat. 692 (noting that Rev.
Stat. § 1891 did not apply to the Philippines).
In a series of opinions later known as the Insular Cases,
the Court addressed whether the Constitution, by its own
force, applies in any territory that is not a State. See De
Lima v. Bidwell, 182 U. S. 1 (1901); Dooley v. United States,
182 U. S. 222 (1901); Armstrong v. United States, 182 U. S.
243 (1901); Downes v. Bidwell, 182 U. S. 244 (1901); Hawaii

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v. Mankichi, 190 U. S. 197 (1903); Dorr v. United States, 195
U. S. 138 (1904). The Court held that the Constitution has
independent force in these Territories, a force not contingent
upon acts of legislative grace. Yet it took note of the diffi
culties inherent in that position.
Prior to their cession to the United States, the former
Spanish colonies operated under a civil-law system, without
experience in the various aspects of the Anglo-American
legal tradition, for instance the use of grand and petit juries.
At least with regard to the Philippines, a complete transfor
mation of the prevailing legal culture would have been not
only disruptive but also unnecessary, as the United States
intended to grant independence to that Territory. See An
Act To declare the purpose of the people of the United States
as to the future political status of the people of the Philippine
Islands, and to provide a more autonomous government for
those islands (Jones Act), 39 Stat. 545 (noting that “it was
never the intention of the people of the United States in the
incipiency of the War with Spain to make it a war of conquest
or for territorial aggrandizement” and that “it is, as it has
always been, the purpose of the people of the United States
to withdraw their sovereignty over the Philippine Islands
and to recognize their independence as soon as a stable gov
ernment can be established therein”). The Court thus was
reluctant to risk the uncertainty and instability that could
result from a rule that displaced altogether the existing legal
systems in these newly acquired Territories. See Downes,
supra, at 282 (“It is obvious that in the annexation of outly
ing and distant possessions grave questions will arise from
differences of race, habits, laws and customs of the people,
and from differences of soil, climate and production . . . ”).
These considerations resulted in the doctrine of territorial
incorporation, under which the Constitution applies in full in
incorporated Territories surely destined for statehood but
only in part in unincorporated Territories. See Dorr, supra,
at 143 (“Until Congress shall see fit to incorporate territory

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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 constitu
tional restrictions upon the powers of that body as are appli
cable to the situation”); Downes, supra, at 293 (White, J.,
concurring) (“[T]he determination of what particular provi
sion of the Constitution is applicable, generally speaking, in
all cases, involves an inquiry into the situation of the terri
tory and its relations to the United States”). As the Court
later made clear, “the real issue in the Insular Cases was
not whether the Constitution extended to the Philippines or
Porto Rico when we went there, but which of its provisions
were applicable by way of limitation upon the exercise of
executive and legislative power in dealing with new condi
tions and requirements.” Balzac v. Porto Rico, 258 U. S.
298, 312 (1922). It may well be that over time the ties be
tween the United States and any of its unincorporated Terri
tories strengthen in ways that are of constitutional signifi
cance. 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 con
text in which they were decided, those cases are clearly not
authority for questioning the application of the Fourth
Amendment—or any other provision of the Bill of Rights—
to the Commonwealth of Puerto Rico in the 1970’s”). But,
as early as Balzac in 1922, the Court took for granted that
even in unincorporated Territories the Government of the
United States was bound to provide to noncitizen inhabitants
“guaranties of certain fundamental personal rights declared
in the Constitution.” 258 U. S., at 312; see also Late Corp.
of Church of Jesus Christ of Latter-day Saints v. United
States, 136 U. S. 1, 44 (1890) (“Doubtless Congress, in legis
lating for the Territories would be subject to those funda
mental limitations in favor of personal rights which are for
mulated in the Constitution and its amendments”). Yet

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noting the inherent practical difficulties of enforcing all con
stitutional provisions “always and everywhere,” Balzac,
supra, at 312, the Court devised in the Insular Cases a doc
trine that allowed it to use its power sparingly and where it
would be most needed. This century-old doctrine informs
our analysis in the present matter.
Practical considerations likewise influenced the Court’s
analysis a half century later in Reid, 354 U. S. 1. The peti
tioners 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 Jap
anese Governments. Id., at 15–16, and nn. 29–30 (plurality
opinion). Because the petitioners were not themselves mili
tary 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 ter
ritories “with wholly dissimilar traditions and institutions”
that Congress intended to govern only “temporarily.” Id.,
at 14. Justice Frankfurter argued that the “specific circum
stances 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 deter
mining where constitutional guarantees extend. Reid, 354
U. S., at 74 (opinion concurring in result). He read the Insu
lar Cases to teach that whether a constitutional provision
has extraterritorial effect depends upon the “particular cir
cumstances, the practical necessities, and the possible alter
natives which Congress had before it” and, in particular,
whether judicial enforcement of the provision would be “im
practicable and anomalous.” Id., at 74–75; see also United

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States v. Verdugo-Urquidez, 494 U. S. 259, 277–278 (1990)
(Kennedy, J., concurring) (applying the “impracticable and
anomalous” extraterritoriality test in the Fourth Amend
ment 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’ citi
zenship but to the place of their confinement and trial, were
relevant to each Member of the Reid majority. And to Jus
tices Harlan and Frankfurter (whose votes were necessary
to the Court’s disposition) these considerations were the de
cisive factors in the case.
Indeed the majority splintered on this very point. The
key disagreement between the plurality and the concurring
Justices in Reid was over the continued precedential value
of the Court’s previous opinion in In re Ross, 140 U. S. 453
(1891), which the Reid Court understood as holding that
under some circumstances Americans abroad have no right
to indictment and trial by jury. The petitioner in Ross was
a sailor serving on an American merchant vessel in Japanese
waters who was tried before an American consular tribunal
for the murder of a fellow crewman. 140 U. S., at 459, 479.
The Ross Court held that the petitioner, who was a British
subject, had no rights under the Fifth and Sixth Amend
ments. Id., at 464. The petitioner’s citizenship played no
role in the disposition of the case, however. The Court as
sumed (consistent with the maritime custom of the time) that
Ross had all the rights of a similarly situated American citi
zen. Id., at 479 (noting that Ross was “under the protection
and subject to the laws of the United States equally with
the seaman who was native born”). The Justices in Reid
therefore properly understood Ross as standing for the prop
osition that, at least in some circumstances, the jury provi
sions of the Fifth and Sixth Amendments have no application

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to American citizens tried by American authorities abroad.
See 354 U. S., at 11–12 (plurality opinion) (describing Ross
as holding that “constitutional protections applied ‘only to
citizens and others within the United States . . . and not to
residents or temporary sojourners abroad’ ” (quoting Ross,
supra, at 464)); 354 U. S., at 64 (Frankfurter, J., concurring
in result) (noting that the consular tribunals upheld in Ross
“w[ere] based on long-established custom and they were jus
tified as the best possible means for securing justice for the
few Americans present in [foreign] countries”); 354 U. S., at
75 (Harlan, J., concurring in result) (“[W]hat Ross and the
Insular Cases hold is that the particular local setting, the
practical necessities, and the possible alternatives are rele
vant to a question of judgment, namely, whether jury trial
should be deemed a necessary condition of the exercise
of Congress’ power to provide for the trial of Americans
overseas”).
The Reid plurality doubted that Ross was rightly decided,
precisely because it believed the opinion was insufficiently
protective of the rights of American citizens. See 354 U. S.,
at 10–12; see also id., at 78 (Clark, J., dissenting) (noting that
“four of my brothers would specifically overrule and two
would impair the long-recognized vitality of an old and re
spected precedent in our law, the case of In re Ross, 140 U. S.
453 (1891)”). But Justices Harlan and Frankfurter, while
willing to hold that the American citizen petitioners in the
cases before them were entitled to the protections of Fifth
and Sixth Amendments, were unwilling to overturn Ross.
354 U. S., at 64 (Frankfurter, J., concurring in result); id., at
75 (Harlan, J., concurring in result). Instead, the two con
curring Justices distinguished Ross from the cases before
them, not on the basis of the citizenship of the petitioners,
but on practical considerations that made jury trial a more
feasible option for them than it was for the petitioner in
Ross. If citizenship had been the only relevant factor in the
case, it would have been necessary for the Court to overturn

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Ross, something Justices Harlan and Frankfurter were un
willing to do. See Verdugo-Urquidez, supra, at 277 (Ken
nedy, J., concurring) (noting that Ross had not been
overruled).
Practical considerations weighed heavily as well in John
son v. Eisentrager, 339 U. S. 763 (1950), where the Court
addressed whether habeas corpus jurisdiction extended to
enemy aliens who had been convicted of violating the laws
of war. The prisoners were detained at Landsberg Prison
in Germany during the Allied Powers’ post-War occupation.
The Court stressed the difficulties of ordering the Govern
ment to produce the prisoners in a habeas corpus proceeding.
It “would require allocation of shipping space, guarding per
sonnel, 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 neces
sities. Id., at 769–779; see Rasul, 542 U. S., at 475–476 (dis
cussing the factors relevant to Eisentrager’s constitutional
holding); 542 U. S., at 486 (Kennedy, J., concurring in judg
ment) (same).
True, the Court in Eisentrager denied access to the writ,
and it noted the prisoners “at no relevant time were within
any territory over which the United States is sovereign, and
[that] the scenes of their offense, their capture, their trial
and their punishment were all beyond the territorial jur
isdiction of any court of the United States.” 339 U. S., at
778. The Government seizes upon this language as proof
positive that the Eisentrager Court adopted a formalistic,
sovereignty-based test for determining the reach of the Sus
pension Clause. See Brief for Federal Respondents 18–20.
We reject this reading for three reasons.
First, we do not accept the idea that the above-quoted pas
sage from Eisentrager is the only authoritative language in
the opinion and that all the rest is dicta. The Court’s fur

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ther determinations, based on practical considerations, were
integral to Part II of its opinion and came before the decision
announced its holding. See 339 U. S., at 781.
Second, because the United States lacked both de jure
sovereignty and plenary control over Landsberg Prison, see
infra, at 768, it is far from clear that the Eisentrager Court
used the term sovereignty only in the narrow technical sense
and not to connote the degree of control the military asserted
over the facility. See supra, at 751–752. 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, ab
solute, and uncontrollable power by which any independent
state is governed”; “the international independence of a
state, combined with the right and power of regulating its
internal affairs without foreign dictation”; and “[t]he power
to do everything in a state without accountability”); Ballen
tine’s Law Dictionary With Pronunciations 1216 (2d ed. 1948)
(defining “sovereignty” as “[t]hat public authority which
commands in civil society, and orders and directs what each
citizen is to perform to obtain the end of its institution”). In
its principal brief in Eisentrager, the Government advocated
a bright-line test for determining the scope of the writ, simi
lar to the one it advocates in these cases. See Brief for Peti
tioners in Johnson v. Eisentrager, O. T. 1949, No. 306,
pp. 74–75. Yet the Court mentioned the concept of territo
rial sovereignty only twice in its opinion. See Eisentrager,
supra, at 778, 780. That the Court devoted a significant por
tion of Part II to a discussion of practical barriers to the
running of the writ suggests that the Court was not con
cerned 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 for
mal legal sovereignty over Landsberg Prison as the decisive

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factor in that case, its holding is not inconsistent with a func
tional approach to questions of extraterritoriality. The for
mal 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 consti
tutional 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 extraterritorial
ity. We cannot accept the Government’s view. Nothing in
Eisentrager says that de jure sovereignty is or has ever been
the only relevant consideration in determining the geo
graphic 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 over
looks what we see as a common thread uniting the Insular
Cases, Eisentrager, and Reid: the idea that questions of ex
traterritoriality turn on objective factors and practical con
cerns, not formalism.
B
The Government’s formal sovereignty-based test raises
troubling separation-of-powers concerns as well. The politi
cal history of Guantanamo illustrates the deficiencies of this
approach. The United States has maintained complete and
uninterrupted control of the bay for over 100 years. At the
close of the Spanish-American War, Spain ceded control over
the entire island of Cuba to the United States and specifically
“relinquishe[d] all claim[s] of sovereignty . . . and title.” See
Treaty of Paris, Dec. 10, 1898, U. S.-Spain, Art. I, 30 Stat.
1755, T. S. No. 343. From the date the treaty with Spain
was signed until the Cuban Republic was established on May
20, 1902, the United States governed the territory “in trust”
for the benefit of the Cuban people. Neely v. Henkel, 180

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U. S. 109, 120 (1901); H. Thomas, Cuba or The Pursuit of
Freedom 436, 460 (1998). And although it recognized, by
entering into the 1903 Lease Agreement, that Cuba retained
“ultimate sovereignty” over Guantanamo, the United States
continued to maintain the same plenary control it had en
joyed since 1898. Yet the Government’s view is that the
Constitution had no effect there, at least as to noncitizens,
because the United States disclaimed sovereignty in the for
mal sense of the term. The necessary implication of the ar
gument 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 gover
nance 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
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. Madison, 1
Cranch 137, 177 (1803).
These concerns have particular bearing upon the Suspen
sion 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 deter

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mining the scope of this provision must not be subject to
manipulation by those whose power it is designed to restrain.
C
As we recognized in Rasul, 542 U. S., at 476; id., at 487
(Kennedy, J., concurring in judgment), the outlines of a
framework for determining the reach of the Suspension
Clause are suggested by the factors the Court relied upon in
Eisentrager. In addition to the practical concerns discussed
above, the Eisentrager Court found relevant that each
petitioner:
“(a) is an enemy alien; (b) has never been or resided in
the United States; (c) was captured outside of our terri
tory and there held in military custody as a prisoner of
war; (d) was tried and convicted by a Military Commis
sion sitting outside the United States; (e) for offenses
against laws of war committed outside the United
States; (f) and is at all times imprisoned outside the
United States.” 339 U. S., at 777.
Based on this language from Eisentrager, and the reasoning
in our other extraterritoriality opinions, we conclude that at
least three factors are relevant in determining the reach of
the Suspension Clause: (1) the citizenship and status of the
detainee and the adequacy of the process through which that
status determination was made; (2) the nature of the sites
where apprehension and then detention took place; and
(3) the practical obstacles inherent in resolving the prisoner’s
entitlement to the writ.
Applying this framework, we note at the onset that the
status of these detainees is a matter of dispute. Petitioners,
like those in Eisentrager, are not American citizens. But
the petitioners in Eisentrager did not contest, it seems, the
Court’s assertion that they were “enemy alien[s].” Ibid.
In the instant cases, by contrast, the detainees deny they are
enemy combatants. They have been afforded some process

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in CSRT proceedings to determine their status; but, unlike
in Eisentrager, supra, at 766, there has been no trial by mili
tary commission for violations of the laws of war. The dif
ference 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 Eisen
trager petitioners were charged by a bill of particulars that
made detailed factual allegations against them. See 14
United Nations War Crimes Commission, Law Reports of
Trials of War Criminals 8–10 (1949) (reprint 1997). To rebut
the accusations, they were entitled to representation by
counsel, allowed to introduce evidence on their own behalf,
and permitted to cross-examine the prosecution’s witnesses.
See Memorandum by Command of Lt. Gen. Wedemeyer, Jan.
21, 1946 (establishing “Regulations Governing the Trial of
War Criminals” in the China Theater), in Tr. of Record in
Johnson v. Eisentrager, O. T. 1949, No. 306, pp. 34–40.
In comparison the procedural protections afforded to the
detainees in the CSRT hearings are far more limited, and,
we conclude, fall well short of the procedures and adversarial
mechanisms that would eliminate the need for habeas corpus
review. Although the detainee is assigned a “Personal Rep
resentative” to assist him during CSRT proceedings, the
Secretary of the Navy’s memorandum makes clear that per
son is not the detainee’s lawyer or even his “advocate.” See
App. to Pet. for Cert. in No. 06–1196, at 155, ¶F(1), 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, ¶F(1), but his ability to rebut
the Government’s evidence against him is limited by the cir
cumstances of his confinement and his lack of counsel at this
stage. And although the detainee can seek review of his
status determination in the Court of Appeals, that review
process cannot cure all defects in the earlier proceedings.
See Part V, infra.

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As to the second factor relevant to this analysis, the de
tainees here are similarly situated to the Eisentrager peti
tioners in that the sites of their apprehension and detention
are technically outside the sovereign territory of the United
States. As noted earlier, this is a factor that weighs against
finding they have rights under the Suspension Clause. But
there are critical differences between Landsberg Prison,
circa 1950, and the United States Naval Station at Guan
tanamo Bay in 2008. Unlike its present control over the
naval station, the United States’ control over the prison in
Germany was neither absolute nor indefinite. Like all parts
of occupied Germany, the prison was under the jurisdic
tion of the combined Allied Forces. See Declaration Re
garding the Defeat of Germany and the Assumption of Su
preme Authority with Respect to Germany, June 5, 1945,
U. S.-U. S. S. R.-U. K.-Fr., 60 Stat. 1649, T. I. A. S. No. 1520.
The United States was therefore answerable to its Allies for
all activities occurring there. Cf. Hirota v. MacArthur, 338
U. S. 197, 198 (1948) (per curiam) (military tribunal set up by
Gen. Douglas MacArthur, acting as “the agent of the Allied
Powers,” was not a “tribunal of the United States”). The
Allies had not planned a long-term occupation of Germany,
nor did they intend to displace all German institutions even
during the period of occupation. See Agreements Respect
ing Basic Principles for Merger of the Three Western Ger
man 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 (es
tablishing a governing framework “[d]uring the period in
which it is necessary that the occupation continue” and ex
pressing the desire “that the German people shall enjoy
self-government to the maximum possible degree consistent
with such occupation”). The Court’s holding in Eisentrager
was thus consistent with the Insular Cases, where it had held
there was no need to extend full constitutional protections
to territories the United States did not intend to govern in
definitely. Guantanamo Bay, on the other hand, is no tran

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sient possession. In every practical sense Guantanamo is
not abroad; it is within the constant jurisdiction of the
United States. See Rasul, 542 U. S., at 480; id., at 487
(Kennedy, J., concurring in judgment).
As to the third factor, we recognize, as the Court did in
Eisentrager, that there are costs to holding the Suspension
Clause applicable in a case of military detention abroad.
Habeas corpus proceedings may require expenditure of funds
by the Government and may divert the attention of military
personnel from other pressing tasks. While we are sensi
tive to these concerns, we do not find them dispositive.
Compliance with any judicial process requires some incre
mental expenditure of resources. Yet civilian courts and the
Armed Forces have functioned alongside each other at vari
ous points in our history. See, e. g., Duncan v. Kahana
moku, 327 U. S. 304 (1946); Ex parte Milligan, 4 Wall. 2
(1866). The Government presents no credible arguments
that the military mission at Guantanamo would be compro
mised if habeas corpus courts had jurisdiction to hear the
detainees’ claims. And in light of the plenary control the
United States asserts over the base, none are apparent to us.
The situation in Eisentrager was far different, given the
historical context and nature of the military’s mission in
post-War Germany. When hostilities in the European The
ater came to an end, the United States became responsible
for an occupation zone encompassing over 57,000 square
miles with a population of 18 million. See Letter from Pres
ident Truman to Secretary of State Byrnes (Nov. 28, 1945),
in 8 Documents on American Foreign Relations 257 (R. Den
nett & R. Turner eds. 1948); Pollock, A Territorial Pattern
for the Military Occupation of Germany, 38 Am. Pol. Sci. Rev.
970, 975 (1944). In addition to supervising massive recon
struction 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

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Court was right to be concerned about judicial interference
with the military’s efforts to contain “enemy elements, guer
rilla fighters, and ‘werewolves.’ ” 339 U. S., at 784.
Similar threats are not apparent here; nor does the Gov
ernment argue that they are. The United States Naval
Station at Guantanamo Bay consists of 45 square miles of
land and water. The base has been used, at various points,
to house migrants and refugees temporarily. At present,
however, other than the detainees themselves, the only
long-term residents are American military personnel, their
families, and a small number of workers. See History of
Guantanamo Bay, online at https://www.cnic.navy.mil/
Guantanamo/AboutGTMO/gtmohistgeneral/gtmohistgeneral.
The detainees have been deemed enemies of the United
States. At present, dangerous as they may be if released,
they are contained in a secure prison facility located on an
isolated and heavily fortified military base.
There is no indication, furthermore, that adjudicating a ha
beas corpus petition would cause friction with the host gov
ernment. No Cuban court has jurisdiction over American
military personnel at Guantanamo or the enemy combatants
detained there. While obligated to abide by the terms of
the lease, the United States is, for all practical purposes,
answerable to no other sovereign for its acts on the base.
Were that not the case, or if the detention facility were lo
cated in an active theater of war, arguments that issuing the
writ would be “impracticable or anomalous” would have
more weight. See Reid, 354 U. S., at 74 (Harlan, J., concur
ring in result). Under the facts presented here, however,
there are few practical barriers to the running of the writ.
To the extent barriers arise, habeas corpus procedures likely
can be modified to address them. See Part VI–B, infra.
It is true that before today the Court has never held that
noncitizens detained by our Government in territory over
which another country maintains de jure sovereignty have
any rights under our Constitution. But the cases before us

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lack any precise historical parallel. They involve individu
als detained by executive order for the duration of a conflict
that, if measured from September 11, 2001, to the present, is
already among the longest wars in American history. See
Oxford Companion to American Military History 849 (1999).
The detainees, moreover, are held in a territory that, while
technically not part of the United States, is under the com
plete and total control of our Government. Under these cir
cumstances 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 Suspen
sion Clause. Cf. Hamdi, 542 U. S., at 564 (Scalia, J., dis
senting) (“[I]ndefinite imprisonment on reasonable suspicion
is not an available option of treatment for those accused of
aiding the enemy, absent a suspension of the writ”). This
Court may not impose a de facto suspension by abstaining
from these controversies. See Hamdan, 548 U. S., at 585,
n. 16 (“[A]bstention is not appropriate in cases . . . in which
the legal challenge ‘turn[s] on the status of the persons as to
whom the military asserted its power’ ” (quoting Schlesinger
v. Councilman, 420 U. S. 738, 759 (1975))). The MCA does
not purport to be a formal suspension of the writ; and the
Government, in its submissions to us, has not argued that
it is. Petitioners, therefore, are entitled to the privilege of
habeas corpus to challenge the legality of their detention.
V
In light of this holding the question becomes whether the
statute stripping jurisdiction to issue the writ avoids the
Suspension Clause mandate because Congress has provided
adequate substitute procedures for habeas corpus. The
Government submits there has been compliance with the
Suspension Clause because the DTA review process in the

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Court of Appeals, see DTA § 1005(e), provides an adequate
substitute. Congress has granted that court jurisdiction to
consider
“(i) whether the status determination of the [CSRT] . . .
was consistent with the standards and procedures speci
fied by the Secretary of Defense . . . and (ii) to the extent
the Constitution and laws of the United States are appli
cable, whether the use of such standards and procedures
to make the determination is consistent with the Consti
tution and laws of the United States.” § 1005(e)(2)(C),
119 Stat. 2742.
The Court of Appeals, having decided that the writ does
not run to the detainees in any event, found it unnecessary
to consider whether an adequate substitute has been pro
vided. In the ordinary course we would remand to the
Court of Appeals to consider this question in the first in
stance. 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 ear
lier proceedings is not an inflexible rule. Ibid. Departure
from the rule is appropriate in “exceptional” circumstances.
See Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S.
157, 169 (2004); Duignan v. United States, 274 U. S. 195,
200 (1927).
The gravity of the separation-of-powers issues raised by
these cases and the fact that these detainees have been de
nied 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

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likelihood a remand simply would delay ultimate resolution
of the issue by this Court.
We do have the benefit of the Court of Appeals’ construc
tion of key provisions of the DTA. When we granted certio
rari in these cases, we noted “it would be of material assist
ance to consult any decision” in the parallel DTA review
proceedings pending in the Court of Appeals, specifically any
rulings in the matter of Bismullah v. Gates. 551 U. S. 1160
(2007). Although the Court of Appeals has yet to complete
a DTA review proceeding, the three-judge panel in Bismul
lah has issued an interim order giving guidance as to what
evidence can be made part of the record on review and what
access the detainees can have to counsel and to classified
information. See 501 F. 3d 178 (CADC) (Bismullah I), reh’g
denied, 503 F. 3d 137 (CADC 2007) (Bismullah II). In that
matter the full court denied the Government’s motion for
rehearing en banc, see Bismullah v. Gates, 514 F. 3d 1291
(CADC 2008) (Bismullah III). The order denying rehear
ing was accompanied by five separate statements from mem
bers of the court, which offer differing views as to the scope
of the judicial review Congress intended these detainees to
have. Ibid.
Under the circumstances we believe the costs of further
delay substantially outweigh any benefits of remanding to
the Court of Appeals to consider the issue it did not address
in these cases.
A
Our case law does not contain extensive discussion of
standards defining suspension of the writ or of circumstances
under which suspension has occurred. This simply confirms
the care Congress has taken throughout our Nation’s history
to preserve the writ and its function. Indeed, most of the
major legislative enactments pertaining to habeas corpus
have acted not to contract the writ’s protection but to ex
pand it or to hasten resolution of prisoners’ claims. See,

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e. g., Habeas Corpus Act of 1867, ch. 28, § 1, 14 Stat. 385 (cur
rent version codified at 28 U. S. C. § 2241 (2000 ed. and Supp.
V) (extending the federal writ to state prisoners)); Cf. Har
ris 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 provisions that
restrict a prisoner’s ability to bring new and repetitive
claims in “second or successive” habeas corpus actions. We
upheld these provisions against a Suspension Clause chal
lenge 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 proce
dures. The provisions, for the most part, codified the long
standing abuse-of-the-writ doctrine. Id., at 664; see also
McCleskey v. Zant, 499 U. S. 467, 489 (1991). AEDPA ap
plies, moreover, to federal, postconviction review after crimi
nal proceedings in state court have taken place. As of this
point, cases discussing the implementation of that statute
give little helpful instruction (save perhaps by contrast) for
the instant cases, where no trial has been held.
The two leading cases addressing habeas substitutes,
Swain v. Pressley, 430 U. S. 372 (1977), and United States v.
Hayman, 342 U. S. 205 (1952), likewise provide little guid
ance here. The statutes at issue were attempts to stream
line 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 viola

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tion of the Constitution or laws of the United States.’ ” 342
U. S., at 207, n. 1. The purpose and effect of the statute was
not to restrict access to the writ but to make postconviction
proceedings more efficient. It directed claims not to the
court that had territorial jurisdiction over the place of the
petitioner’s confinement but to the sentencing court, a court
already familiar with the facts of the case. As the Hayman
Court explained:
“Section 2255 . . . was passed at the instance of the Judi
cial Conference to meet practical difficulties that had
arisen in administering the habeas corpus jurisdiction of
the federal courts. Nowhere in the history of Section
2255 do we find any purpose to impinge upon prisoners’
rights of collateral attack upon their convictions. On
the contrary, the sole purpose was to minimize the diffi
culties encountered in habeas corpus hearings by afford
ing 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 sen
tencing 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 Supe
rior Court of the District of Columbia. Before enactment of
the District of Columbia Court Reform and Criminal Proce
dure Act of 1970 (D. C. Court Reform Act), 84 Stat. 473,
those prisoners could file habeas petitions in the United
States District Court for the District of Columbia. The Act,
which was patterned on § 2255, substituted a new collateral
process in the Superior Court for the pre-existing habeas
corpus procedure in the District Court. See Swain, 430
U. S., at 374–378. But, again, the purpose and effect of the
statute was to expedite consideration of the prisoner’s
claims, not to delay or frustrate it. See id., at 375, n. 4 (not

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ing that the purpose of the D. C. Court Reform Act was to
“alleviate” administrative burdens on the District Court).
That the statutes in Hayman and Swain were designed
to strengthen, rather than dilute, the writ’s protections was
evident, furthermore, from this significant fact: Neither stat
ute 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 reli
ance upon these provisions in upholding the statutes against
constitutional challenges. See Swain, supra, at 381 (noting
that the provision “avoid[ed] any serious question about the
constitutionality of the statute”); Hayman, supra, at 223
(noting that, because habeas remained available as a last re
sort, it was unnecessary to “reach constitutional questions”).
Unlike in Hayman and Swain, here we confront statutes,
the DTA and the MCA, that were intended to circumscribe
habeas review. Congress’ purpose is evident not only from
the unequivocal nature of MCA § 7’s jurisdiction-stripping
language, 28 U. S. C. § 2241(e)(1) (“No court, justice, or
judge shall have jurisdiction to hear or consider an applica
tion for a writ of habeas corpus . . . ”), but also from a com
parison of the DTA to the statutes at issue in Hayman and
Swain. When interpreting a statute, we examine related
provisions in other parts of the U. S. Code. See, e. g., West
Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, 88–97
(1991); Babbitt v. Sweet Home Chapter, Communities for
Great Ore., 515 U. S. 687, 717–718 (1995) (Scalia, J., dissent
ing); see generally W. Eskridge, P. Frickey, & E. Garrett,
Cases and Materials on Legislation: Statutes and the Cre
ation of Public Policy 1039 (3d ed. 2001). When Congress
has intended to replace traditional habeas corpus with
habeas-like substitutes, as was the case in Hayman and
Swain, it has granted to the courts broad remedial pow
ers to secure the historic office of the writ. In the § 2255

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context, for example, Congress has granted to the reviewing
court power to “determine the issues and make findings of
fact and conclusions of law” with respect to whether “the
judgment [of conviction] was rendered without jurisdic
tion, or . . . the sentence imposed was not authorized by
law or otherwise open to collateral attack.” 28 U. S. C.
§ 2255(b) (2006 ed., Supp. II). The D. C. Court Reform Act,
the statute upheld in Swain, contained a similar provision.
§ 23–110(g), 84 Stat. 609.
In contrast the DTA’s jurisdictional grant is quite limited.
The Court of Appeals has jurisdiction not to inquire into the
legality of the detention generally but only to assess whether
the CSRT complied with the “standards and procedures
specified by the Secretary of Defense” and whether those
standards and procedures are lawful. DTA § 1005(e)(2)(C),
119 Stat. 2742. If Congress had envisioned DTA review as
coextensive with traditional habeas corpus, it would not have
drafted the statute in this manner. Instead, it would have
used language similar to what it used in the statutes at issue
in Hayman and Swain. Cf. Russello v. United States, 464
U. S. 16, 23 (1983) (“ ‘[W]here Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Con
gress acts intentionally and purposely in the disparate inclu
sion or exclusion’ ” (quoting United States v. Wong Kim Bo,
472 F. 2d 720, 722 (CA5 1972) (per curiam))). Unlike in
Hayman and Swain, moreover, there has been no effort to
preserve habeas corpus review as an avenue of last resort.
No saving clause exists in either the MCA or the DTA. And
MCA § 7 eliminates habeas review for these petitioners.
The differences between the DTA and the habeas statute
that would govern in MCA § 7’s absence, 28 U. S. C. § 2241
(2000 ed. and Supp. V), are likewise telling. In § 2241 (2000
ed.) Congress confirmed the authority of “any justice” or
“circuit judge” to issue the writ. Cf. Felker, 518 U. S., at
660–661 (interpreting Title I of AEDPA to not strip from

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this Court the power to entertain original habeas corpus pe
titions). That statute accommodates the necessity for fact
finding that will arise in some cases by allowing the appellate
judge or Justice to transfer the case to a district court of
competent jurisdiction, whose institutional capacity for fact
finding is superior to his or her own. See 28 U. S. C.
§ 2241(b). By granting the Court of Appeals “exclusive” ju
risdiction over petitioners’ cases, see DTA § 1005(e)(2)(A),
119 Stat. 2742, Congress has foreclosed that option. This
choice indicates Congress intended the Court of Appeals to
have a more limited role in enemy combatant status determi
nations than a district court has in habeas corpus proceed
ings. The DTA should be interpreted to accord some lati
tude to the Court of Appeals to fashion procedures necessary
to make its review function a meaningful one, but, if con
gressional 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. Other
wise 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 “extin
guish[es] these habeas and other actions in order to effect a
transfer of jurisdiction over these cases to the DC Circuit
Court”); ibid. (statement of Sen. Kyl) (agreeing that the bill
“create[s] in their place a very limited judicial review of cer
tain military administrative decisions”); id., at S14268 (same)
(“It is important to note that the limited judicial review au
thorized by paragraphs 2 and 3 of subsection (e) [of DTA
§ 1005] are not habeas-corpus review. It is a limited judicial
review of its own nature”).

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It is against this background that we must interpret the
DTA and assess its adequacy as a substitute for habeas cor
pus. The present cases thus test the limits of the Suspen
sion Clause in ways that Hayman and Swain did not.
B
We do not endeavor to offer a comprehensive summary of
the requisites for an adequate substitute for habeas corpus.
We do consider it uncontroversial, however, that the privi
lege of habeas corpus entitles the prisoner to a meaningful
opportunity to demonstrate that he is being held pursuant to
“the erroneous application or interpretation” of relevant law.
St. Cyr, 533 U. S., at 302. And the habeas court must have
the power to order the conditional release of an individual
unlawfully detained—though release need not be the exclu
sive 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) (remanding
in a habeas case for retrial within a “reasonable time”).
These are the easily identified attributes of any constitution
ally 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

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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 grand purpose”). It ap
pears the common-law habeas court’s role was most exten
sive in cases of pretrial and noncriminal detention, where
there had been little or no previous judicial review of the
cause for detention. Notably, the black-letter rule that pris
oners could not controvert facts in the jailer’s return was
not followed (or at least not with consistency) in such cases.
Hurd, supra, at 271 (noting that the general rule was “sub
ject to exceptions” including cases of bail and impressment);
Oaks, Legal History in the High Court—Habeas Corpus, 64
Mich. L. Rev. 451, 457 (1966) (“[W]hen a prisoner applied for
habeas corpus before indictment or trial, some courts exam
ined the written depositions on which he had been arrested
or committed, and others even heard oral testimony to deter
mine whether the evidence was sufficient to justify 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 in
dicating that, even in States that accorded strong res judi
cata effect to prior adjudications, habeas courts in this coun
try routinely allowed prisoners to introduce exculpatory
evidence that was either unknown or previously unavailable
to the prisoner. See, e. g., Ex parte Pattison, 56 Miss. 161,
164 (1878) (noting that “[w]hile the former adjudication must
be considered as conclusive on the testimony then adduced”
“newly developed exculpatory evidence . . . may authorize
the admission to bail”); Ex parte Foster, 5 Tex. Ct. App. 625,

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644 (1879) (construing the State’s habeas statute to allow for
the introduction of new evidence “where important testi
mony has been obtained, which, though not newly discov
ered, or which, though known to [the petitioner], it was not
in his power to produce at the former hearing; [and] where
the evidence was newly discovered”); People v. Martin, 7
N. Y. Leg. Obs. 49, 56 (1848) (“If in custody on criminal proc
ess before indictment, the prisoner has an absolute right to
demand that the original depositions be looked into to see
whether any crime is in fact imputed to him, and the inquiry
will by no means be confined to the return. Facts out of the
return may be gone into to ascertain whether the committing
magistrate may not have arrived at an illogical conclusion
upon the evidence given before him . . . ”); see generally W.
Church, Treatise on the Writ of Habeas Corpus § 182, p. 235
1886) (hereinafter Church) (noting that habeas courts would
“hear evidence anew if justice require it”). Justice McLean,
on Circuit in 1855, expressed his view that a habeas court
should consider a prior judgment conclusive “where there
was clearly jurisdiction and a full and fair hearing; but that
it might not be so considered when any of these requisites
were wanting.” Ex parte Robinson, 20 F. Cas. 969, 971,
(No. 11,935) (CC Ohio). 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 unim
peached witnesses” provided new evidence to exculpate the
prisoner. Ibid.
The idea that the necessary scope of habeas review in part
depends upon the rigor of any earlier proceedings accords
with our test for procedural adequacy in the due process con
text. 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 lib
erty interest;] and the probable value, if any, of additional
or substitute procedural safeguards”). This principle has an
established foundation in habeas corpus jurisprudence as

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well, as Chief Justice Marshall’s opinion in Ex parte Watkins,
3 Pet. 193 (1830), demonstrates. Like the petitioner in
Swain, Watkins sought a writ of habeas corpus after being
imprisoned pursuant to a judgment of a District of Colum
bia 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 Neu
man, 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 con
finement. 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 pris
oner should exhaust adequate alternative remedies before
filing for the writ in federal court. See Ex parte Royall,
117 U. S. 241, 251–252 (1886) (requiring exhaustion of state
collateral processes). Both aspects of federal habeas corpus
review are justified because it can be assumed that, in the
usual course, a court of record provides defendants with a
fair, adversary proceeding. In cases involving state convic
tions 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 out
side these categories, however; for here the detention is by
executive order.

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Where a person is detained by executive order, rather
than, say, after being tried and convicted in a court, the need
for collateral review is most pressing. A criminal conviction
in the usual course occurs after a judicial hearing before a
tribunal disinterested in the outcome and committed to pro
cedures designed to ensure its own independence. These
dynamics are not inherent in executive detention orders or
executive review procedures. In this context the need for
habeas corpus is more urgent. The intended duration of the
detention and the reasons for it bear upon the precise scope
of the inquiry. Habeas corpus proceedings need not resem
ble 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 re
view of both the cause for detention and the Executive’s
power to detain.
To determine the necessary scope of habeas corpus review,
therefore, we must assess the CSRT process, the mechanism
through which petitioners’ designation as enemy combatants
became final. Whether one characterizes the CSRT process
as direct review of the Executive’s battlefield determination
that the detainee is an enemy combatant—as the parties
have and as we do—or as the first step in the collateral re
view of a battlefield determination makes no difference in a
proper analysis of whether the procedures Congress put in
place are an adequate substitute for habeas corpus. What
matters is the sum total of procedural protections afforded
to the detainee at all stages, direct and collateral.
Petitioners identify what they see as myriad deficiencies
in the CSRTs. The most relevant for our purposes are the
constraints upon the detainee’s ability to rebut the factual
basis for the Government’s assertion that he is an enemy
combatant. As already noted, see Part IV–C, supra, at the
CSRT stage the detainee has limited means to find or pre
sent evidence to challenge the Government’s case against
him. He does not have the assistance of counsel and may

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not be aware of the most critical allegations that the Gov
ernment relied upon to order his detention. See App. to
Pet. for Cert. in No. 06–1196, at 156, ¶ F(8) (noting that
the detainee can access only the “unclassified portion of the
Government Information”). The detainee can confront wit
nesses that testify during the CSRT proceedings. Id., at
144, ¶ g(8). But given that there are in effect no limits on
the admission of hearsay evidence—the only requirement is
that the tribunal deem the evidence “relevant and helpful,”
ibid., ¶ g(9)—the detainee’s opportunity to question wit
nesses is likely to be more theoretical than real.
The Government defends the CSRT process, arguing that
it was designed to conform to the procedures suggested by
the plurality in Hamdi. See 542 U. S., at 538. Setting
aside the fact that the relevant language in Hamdi did not
garner a majority of the Court, it does not control the matter
at hand. None of the parties in Hamdi argued there had
been a suspension of the writ. Nor could they. The § 2241
habeas corpus process remained in place, id., at 525. Ac
cordingly, the plurality concentrated on whether the Execu
tive 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 analy
sis of the petitioner’s due process rights begins. But the
Court had no occasion to define the necessary scope of ha
beas review, for Suspension Clause purposes, in the context
of enemy combatant detentions. The closest the plurality
came to doing so was in discussing whether, in light of
separation-of-powers concerns, § 2241 should be construed to
prohibit the District Court from inquiring beyond the affi
davit 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.

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Even if we were to assume that the CSRTs satisfy due
process standards, it would not end our inquiry. Habeas
corpus is a collateral process that exists, in Justice Holmes’
words, to “cu[t] through all forms and g[o] to the very tissue
of the structure. It comes in from the outside, not in subor
dination 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 im
prisonment without law or the appearance of law, or by a
lawful magistrate for an unlawful reason”). This is so, as
Hayman and Swain make clear, even where the prisoner is
detained after a criminal trial conducted in full accordance
with the protections of the Bill of Rights. Were this not the
case, there would have been no reason for the Court to in
quire into the adequacy of substitute habeas procedures in
Hayman and Swain. That the prisoners were detained pur
suant to the most rigorous proceedings imaginable, a full
criminal trial, would have been enough to render any habeas
substitute acceptable per se.
Although we make no judgment whether the CSRTs, as
currently constituted, satisfy due process standards, we
agree with petitioners that, even when all the parties in
volved in this process act with diligence and in good faith,
there is considerable risk of error in the tribunal’s findings
of fact. This is a risk inherent in any process that, in the
words of the former Chief Judge of the Court of Appeals, is
“closed and accusatorial.” See Bismullah III, 514 F. 3d, at
1296 (Ginsburg, C. J., concurring in denial of rehearing en
banc). And given that the consequence of error may be de
tention of persons for the duration of hostilities that may last
a generation or more, this is a risk too significant to ignore.

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For the writ of habeas corpus, or its substitute, to function
as an effective and proper remedy in this context, the court
that conducts the habeas proceeding must have the means to
correct errors that occurred during the CSRT proceedings.
This includes some authority to assess the sufficiency of the
Government’s evidence against the detainee. It also must
have the authority to admit and consider relevant excul
patory evidence that was not introduced during the earlier
proceeding. Federal habeas petitioners long have had the
means to supplement the record on review, even in the post
conviction habeas setting. See Townsend v. Sain, 372 U. S.
293, 313 (1963), overruled in part by Keeney v. Tamayo-
Reyes, 504 U. S. 1, 5 (1992). Here that opportunity is consti
tutionally required.
Consistent with the historic function and province of the
writ, habeas corpus review may be more circumscribed if the
underlying detention proceedings are more thorough than
they were here. In two habeas cases involving enemy aliens
tried for war crimes, In re Yamashita, 327 U. S. 1 (1946), and
Ex parte Quirin, 317 U. S. 1 (1942), for example, this Court
limited its review to determining whether the Executive had
legal authority to try the petitioners by military commission.
See Yamashita, supra, at 8 (“[O]n application for habeas cor
pus we are not concerned with the guilt or innocence of the
petitioners. We consider here only the lawful power of the
commission to try the petitioner for the offense charged”);
Quirin, supra, at 25 (“We are not here concerned with any
question of the guilt or innocence of petitioners”). Military
courts are not courts of record. See Watkins, 3 Pet., at 209;
Church 513. And the procedures used to try General Ya
mashita have been sharply criticized by Members of this
Court. See Hamdan, 548 U. S., at 617; Yamashita, supra,
at 41–81 (Rutledge, J., dissenting). We need not revisit
these cases, however. For on their own terms, the proceed
ings in Yamashita and Quirin, like those in Eisentrager, had
an adversarial structure that is lacking here. See Yama

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shita, supra, at 5 (noting that General Yamashita was repre
sented by six military lawyers and that “[t]hroughout the
proceedings . . . defense counsel . . . demonstrated their pro
fessional 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) (ap
pointing 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 ex
plore 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 de
termination in light of the relevant law and facts and to for
mulate and issue appropriate orders for relief, including, if
necessary, an order directing the prisoner’s release.
C
We now consider whether the DTA allows the Court of
Appeals to conduct a proceeding meeting these standards.
“[W]e are obligated to construe the statute to avoid [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 choosing between them”). We
cannot ignore the text and purpose of a statute in order to
save it.
The DTA does not explicitly empower the Court of Ap
peals to order the applicant in a DTA review proceeding re
leased should the court find that the standards and proce
dures used at his CSRT hearing were insufficient to justify

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detention. This is troubling. Yet, for present purposes, we
can assume congressional silence permits a constitutionally
required remedy. In that case it would be possible to hold
that a remedy of release is impliedly provided for. The DTA
might be read, furthermore, to allow petitioners to assert
most, if not all, of the legal claims they seek to advance,
including their most basic claim: that the President has no
authority under the AUMF to detain them indefinitely.
(Whether the President has such authority turns on whether
the AUMF authorizes—and the Constitution permits—the
indefinite detention of “enemy combatants” as the Depart
ment of Defense defines that term. Thus a challenge to the
President’s authority to detain is, in essence, a challenge to
the Department’s definition of enemy combatant, a “stand
ard” used by the CSRTs in petitioners’ cases.) At oral argu
ment, the Solicitor General urged us to adopt both these con
structions, 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, how
ever. The more difficult question is whether the DTA per
mits the Court of Appeals to make requisite findings of
fact. The DTA enables petitioners to request “review” of
their CSRT determination in the Court of Appeals, DTA
§ 1005(e)(2)(B)(i), 119 Stat. 2742; but the “Scope of Review”
provision confines the Court of Appeals’ role to reviewing
whether the CSRT followed the “standards and procedures”
issued by the Department of Defense and assessing whether
those “standards and procedures” are lawful, § 1005(e)(2)(C),
ibid. Among these standards is “the requirement that the
conclusion of the Tribunal be supported by a preponderance
of the evidence . . . allowing a rebuttable presumption in
favor of the Government’s evidence.” § 1005(e)(2)(C)(i), ibid.
Assuming the DTA can be construed to allow the Court of
Appeals to review or correct the CSRT’s factual determina

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tions, as opposed to merely certifying that the tribunal ap
plied the correct standard of proof, we see no way to con
strue 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 con
sider no evidence outside the CSRT record. In the parallel
litigation, however, the Court of Appeals determined that
the DTA allows it to order the production of all “ ‘reasonably
available information in the possession of the U. S. Govern
ment bearing on the issue whether the detainee meets the
criteria to be designated as an enemy combatant,’ ” regard
less of whether this evidence was put before the CSRT.
Bismullah I, 501 F. 3d, at 180. The Government, see Pet.
for Cert. pending in Gates v. Bismullah, No. 07–1054 (herein
after Bismullah Pet.), with support from five members of
the Court of Appeals, see Bismullah III, 514 F. 3d, at 1299
(Henderson, J., dissenting from denial of rehearing en banc);
id., at 1302 (opinion of Randolph, J.) (same); id., at 1306 (opin
ion of Brown, J.) (same), disagrees with this interpretation.
For present purposes, however, we can assume that the
Court of Appeals was correct that the DTA allows introduc
tion and consideration of relevant exculpatory evidence that
was “reasonably available” to the Government at the time of
the CSRT but not made part of the record. Even so, the
DTA review proceeding falls short of being a constitutionally
adequate substitute, for the detainee still would have no op
portunity to present evidence discovered after the CSRT
proceedings concluded.
Under the DTA the Court of Appeals has the power to
review CSRT determinations by assessing the legality of
standards and procedures. This implies the power to in
quire 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 fol

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lowed appropriate and lawful standards and procedures, it
will have reached the limits of its jurisdiction. There is no
language in the DTA that can be construed to allow the
Court of Appeals to admit and consider newly discovered
evidence that could not have been made part of the CSRT
record because it was unavailable to either the Government
or the detainee when the CSRT made its findings. This evi
dence, however, may be critical to the detainee’s argument
that he is not an enemy combatant and there is no cause
to detain him.
This is not a remote hypothetical. One of the petitioners,
Mohamed Nechla, requested at his CSRT hearing that the
Government contact his employer. Petitioner claimed the
employer would corroborate Nechla’s contention he had no
affiliation with al Qaeda. Although the CSRT determined
this testimony would be relevant, it also found the witness
was not reasonably available to testify at the time of the
hearing. Petitioner’s counsel, however, now represents the
witness is available to be heard. See Brief for Boumediene
Petitioners 5. If a detainee can present reasonably available
evidence demonstrating there is no basis for his continued
detention, he must have the opportunity to present this evi
dence to a habeas corpus court. Even under the Court of
Appeals’ generous construction of the DTA, however, the ev
idence identified by Nechla would be inadmissible in a DTA
review proceeding. The role of an Article III court in the
exercise of its habeas corpus function cannot be circum
scribed in this manner.
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 accu
rate or complete. In other contexts, e. g., in post-trial ha
beas 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 ap

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propriate. See Williams v. Taylor, 529 U. S. 420, 436–437
(2000) (noting that § 2254 “does not equate prisoners who ex
ercise diligence in pursuing their claims with those who do
not”). In this context, however, where the underlying de
tention proceedings lack the necessary adversarial character,
the detainee cannot be held responsible for all deficiencies in
the record.
The Government does not make the alternative argument
that the DTA allows for the introduction of previously un
available exculpatory evidence on appeal. It does point out,
however, that if a detainee obtains such evidence, he can re
quest that the Deputy Secretary of Defense convene a new
CSRT. See Supp. Brief for Federal Respondents 4. What
ever the merits of this procedure, it is an insufficient replace
ment for the factual review these detainees are entitled to
receive through habeas corpus. The Deputy Secretary’s de
termination whether to initiate new proceedings is wholly a
discretionary one. See Dept. of Defense, Office for the Ad
ministrative Review of the Detention of Enemy Combatants,
Instruction 5421.1, Procedure for Review of “New Evidence”
Relating to Enemy Combatant (EC) Status ¶ 5(d) (May 7,
2007) (Instruction 5421.1) (“The decision to convene a CSRT
to reconsider the basis of the detainee’s [enemy combatant]
status in light of ‘new evidence’ is a matter vested in the
unreviewable discretion of the [Deputy Secretary of De
fense]”). And we see no way to construe the DTA to allow
a detainee to challenge the Deputy Secretary’s decision not
to open a new CSRT pursuant to Instruction 5421.1. Con
gress directed the Secretary of Defense to devise procedures
for considering new evidence, see DTA § 1005(a)(3), 119 Stat.
2741, but the detainee has no mechanism for ensuring that
those procedures are followed. DTA § 1005(e)(2)(C), id., at
2742, makes clear that the Court of Appeals’ jurisdiction is
“limited to consideration of . . . whether the status deter
mination of the [CSRT] with regard to such alien was con
sistent with the standards and procedures specified by the

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Secretary of Defense . . . and . . . whether the use of such
standards and procedures to make the determination is con
sistent with the Constitution and laws of the United States.”
DTA § 1005(e)(2)(A), ibid., further narrows the Court of Ap
peals’ jurisdiction to reviewing “any final decision of a
[CSRT] that an alien is properly detained as an enemy com
batant.” The Deputy Secretary’s determination whether to
convene a new CSRT is not a “status determination of the
[CSRT],” 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 limita
tions on the detainee’s ability to present exculpatory evi
dence. For even if it were possible, as a textual matter, to
read into the statute each of the necessary procedures we
have identified, we could not overlook the cumulative effect
of our doing so. To hold that the detainees at Guantanamo
may, under the DTA, challenge the President’s legal author
ity to detain them, contest the CSRT’s findings of fact, sup
plement the record on review with exculpatory evidence, and
request an order of release would come close to reinstating
the § 2241 habeas corpus process Congress sought to deny
them. The language of the statute, read in light of Con
gress’ reasons for enacting it, cannot bear this interpreta
tion. Petitioners have met their burden of establishing that
the DTA review process is, on its face, an inadequate substi
tute for habeas corpus.
Although we do not hold that an adequate substitute must
duplicate § 2241 in all respects, it suffices that the Govern
ment has not established that the detainees’ access to the
statutory review provisions at issue is an adequate substi
tute 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.

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Opinion of the Court
VI
A
In light of our conclusion that there is no jurisdictional bar
to the District Court’s entertaining petitioners’ claims the
question remains whether there are prudential barriers to
habeas corpus review under these circumstances.
The Government argues petitioners must seek review of
their CSRT determinations in the Court of Appeals before
they can proceed with their habeas corpus actions in the Dis
trict Court. As noted earlier, in other contexts and for pru
dential reasons this Court has required exhaustion of alter
native remedies before a prisoner can seek federal habeas
relief. Most of these cases were brought by prisoners in
state custody, e. g., Ex parte Royall, 117 U. S. 241, and thus
involved federalism concerns that are not relevant here.
But we have extended this rule to require defendants in
courts-martial to exhaust their military appeals before pro
ceeding with a federal habeas corpus action. See Schle
singer, 420 U. S., at 758.
The real risks, the real threats, of terrorist attacks are
constant and not likely soon to abate. The ways to disrupt
our life and laws are so many and unforeseen that the Court
should not attempt even some general catalogue of crises
that might occur. Certain principles are apparent, however.
Practical considerations and exigent circumstances inform
the definition and reach of the law’s writs, including habeas
corpus. The cases and our tradition reflect this precept.
In cases involving foreign citizens detained abroad by the
Executive, it likely would be both an impractical and unprec
edented 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 ini
tial detention under lawful and proper conditions of con

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finement and treatment for a reasonable period of time. Do
mestic exigencies, furthermore, might also impose such oner
ous 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 adminis
ter criminal justice according to law, then, on the theatre of
active military operations, where war really prevails, there
is a necessity to furnish a substitute for the civil authority,
thus overthrown, to preserve the safety of the army and soci
ety; 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 governmen
tal power.
The cases before us, however, do not involve detainees who
have been held for a short period of time while awaiting
their CSRT determinations. Were that the case, or were it
probable that the Court of Appeals could complete a prompt
review of their applications, the case for requiring temporary
abstention or exhaustion of alternative remedies would be
much stronger. These qualifications no longer pertain here.
In some of these cases six years have elapsed without the
judicial oversight that habeas corpus or an adequate substi
tute demands. And there has been no showing that the Ex
ecutive faces such onerous burdens that it cannot respond to
habeas corpus actions. To require these detainees to com
plete DTA review before proceeding with their habeas cor
pus actions would be to require additional months, if not
years, of delay. The first DTA review applications were
filed over two years ago, but no decisions on the merits have
been issued. While some delay in fashioning new proce

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dures 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 petitioners before us
are entitled to seek the writ; that the DTA review proce
dures are an inadequate substitute for habeas corpus; and
that petitioners in these cases need not exhaust the review
procedures in the Court of Appeals before proceeding with
their habeas actions in the District Court. The only law
we identify as unconstitutional is MCA § 7, 28 U. S. C.
§ 2241(e). 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 inter
vene the moment an enemy combatant steps foot in a terri
tory 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 peti
tion. 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 entertain
ing an enemy combatant’s habeas corpus petition at least
until after the Department, acting via the CSRT, has had a
chance to review his status.
B
Although we hold that the DTA is not an adequate and
effective substitute for habeas corpus, it does not follow that
a habeas corpus court may disregard the dangers the deten
tion 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 cor
pus. Certain accommodations can be made to reduce the
burden habeas corpus proceedings will place on the military
without impermissibly diluting the protections of the writ.
In the DTA Congress sought to consolidate review of peti
tioners’ claims in the Court of Appeals. Channeling future

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cases to one district court would no doubt reduce administra
tive burdens on the Government. This is a legitimate objec
tive 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 elsewhere.
See Brief for Federal Respondents 55–56; Bismullah Pet. 30.
We make no attempt to anticipate all of the evidentiary and
access-to-counsel issues that will arise during the course of
the detainees’ habeas corpus proceedings. We recognize,
however, that the Government has a legitimate interest in
protecting sources and methods of intelligence gathering;
and we expect that the District Court will use its discretion
to accommodate this interest to the greatest extent possible.
Cf. United States v. Reynolds, 345 U. S. 1, 10 (1953) (recog
nizing an evidentiary privilege in a civil damages case where
“there is a reasonable danger that compulsion of the evi
dence 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 stand
ards used to impose detention to prevent acts of terrorism,
proper deference must be accorded to the political branches.
See United States v. Curtiss-Wright Export Corp., 299 U. S.

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304, 320 (1936). Unlike the President and some designated
Members of Congress, neither the Members of this Court
nor most federal judges begin the day with briefings that
may describe new and serious threats to our Nation and its
people. The law must accord the Executive substantial au
thority to apprehend and detain those who pose a real dan
ger to our security.
Officials charged with daily operational responsibility for
our security may consider a judicial discourse on the history
of the Habeas Corpus Act of 1679 and like matters to be far
removed from the Nation’s present, urgent concerns. Es
tablished legal doctrine, however, must be consulted for its
teaching. Remote in time it may be; irrelevant to the pres
ent it is not. Security depends upon a sophisticated intelli
gence apparatus and the ability of our Armed Forces to act
and to interdict. There are further considerations, however.
Security subsists, too, in fidelity to freedom’s first principles.
Chief among these are freedom from arbitrary and unlawful
restraint and the personal liberty that is secured by adher
ence to the separation of powers. It is from these principles
that the judicial authority to consider petitions for habeas
corpus relief derives.
Our opinion does not undermine the Executive’s powers as
Commander in Chief. On the contrary, the exercise of those
powers is vindicated, not eroded, when confirmed by the
Judicial Branch. Within the Constitution’s separation-of
powers structure, few exercises of judicial power are as
legitimate or as necessary as the responsibility to hear
challenges to the authority of the Executive to imprison a
person. Some of these petitioners have been in custody for
six years with no definitive judicial determination as to the
legality of their detention. Their access to the writ is a ne
cessity 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

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Souter, J., concurring
boundaries of war powers undefined. If, as some fear, ter
rorism continues to pose dangerous threats to us for years
to come, the Court might not have this luxury. This re
sult is not inevitable, however. The political branches, con
sistent with their independent obligations to interpret and
uphold the Constitution, can engage in a genuine debate
about how best to preserve constitutional values while pro
tecting 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 strength
ens the Nation’s ability to determine—through democratic
means—how best to do so”).
It bears repeating that our opinion does not address the
content of the law that governs petitioners’ detention. That
is a matter yet to be determined. We hold that petitioners
may invoke the fundamental procedural protections of ha
beas corpus. The laws and Constitution are designed to sur
vive, 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 Sus
pension Clause and its protections are inapplicable to peti
tioners 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.
Justice Souter, with whom Justice Ginsburg and Jus
tice Breyer join, concurring.
I join the Court’s opinion in its entirety and add this after
word only to emphasize two things one might overlook after
reading the dissents.

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Souter, J., concurring
Four years ago, this Court in Rasul v. Bush, 542 U. S. 466
(2004), held that statutory habeas jurisdiction extended to
claims of foreign nationals imprisoned by the United States
at Guantanamo Bay, “to determine the legality of the Execu
tive’s potentially indefinite detention” of them, id., at 485.
Subsequent legislation eliminated the statutory habeas juris
diction over these claims, so that now there must be constitu
tionally based jurisdiction or none at all. Justice Scalia
is thus correct that here, for the first time, this Court holds
there is (he says “confers”) constitutional habeas jurisdiction
over aliens imprisoned by the military outside an area of de
jure national sovereignty, see post, at 826 (dissenting opin
ion). 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 ques
tion that Justice Scalia says is dispositive, see post, at 843;
it wrote that “[a]pplication of the habeas statute to persons
detained at [Guantanamo] is consistent with the historical
reach of the writ of habeas corpus,” 542 U. S., at 481. Jus
tice Scalia dismisses the statement as dictum, see post, at
846, but if dictum it was, it was dictum well considered, and
it stated the view of five Members of this Court on the his
torical 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 opin
ion has explored afresh in the detail it deserves. But
whether one agrees or disagrees with today’s decision, it is
no bolt out of the blue.
A second fact insufficiently appreciated by the dissents is
the length of the disputed imprisonments, some of the pris
oners represented here today having been locked up for six
years, ante, at 794 (opinion of the Court). Hence the hollow
ring when the dissenters suggest that the Court is somehow

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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 rea
sonable period of time. See, e. g., post, at 803 (opinion of
Roberts, C. J.) (“[T]he Court should have declined to inter
vene until the D. C. Circuit had assessed the nature and va
lidity of the congressionally mandated proceedings in a given
detainee’s case”); post, at 805 (“[I]t is not necessary to con
sider the availability of the writ until the statutory remedies
have been shown to be inadequate”); post, at 807 (“[The
Court] rushes to decide the fundamental question of the
reach of habeas corpus when the functioning of the DTA may
make that decision entirely unnecessary”). These sugges
tions 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 793–794.
It is in fact the very lapse of four years from the time
Rasul put everyone on notice that habeas process was avail
able to Guantanamo prisoners, and the lapse of six years
since some of these prisoners were captured and incarcer
ated, that stand at odds with the repeated suggestions of
the dissenters that these cases should be seen as a judicial
victory in a contest for power between the Court and the
political branches. See post, at 801, 802, 826 (opinion of
Roberts, C. J.); post, at 830–831, 842–843, 849–850 (opinion
of Scalia, J.). The several answers to the charge of trium
phalism 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 neces
sarily 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 ha
beas 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

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Roberts, C. J., dissenting
of these petitioners have spent six years behind bars. After
six years of sustained executive detentions in Guantanamo,
subject to habeas jurisdiction but without any actual habeas
scrutiny, today’s decision is no judicial victory, but an act
of perseverance in trying to make habeas review, and the
obligation of the courts to provide it, mean something of
value both to prisoners and to the Nation. See ante, at 797.
Chief Justice Roberts, with whom Justice Scalia,
Justice Thomas, and Justice Alito join, dissenting.
Today the Court strikes down as inadequate the most gen
erous set of procedural protections ever afforded aliens de
tained by this country as enemy combatants. The political
branches crafted these procedures amidst an ongoing mili
tary 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 pos
sess, without explaining how the statute fails to vindicate
those rights, and before a single petitioner has exhausted
the procedures under the law. And to what effect? The
majority merely replaces a review system designed by the
people’s representatives with a set of shapeless procedures
to be defined by federal courts at some future date. One
cannot help but think, after surveying the modest practical
results of the majority’s ambitious opinion, that this decision
is not really about the detainees at all, but about control of
federal policy regarding enemy combatants.
The majority is adamant that the Guantanamo detainees
are entitled to the protections of habeas corpus—its opinion
begins by deciding that question. I regard the issue as a
difficult one, primarily because of the unique and unusual
jurisdictional status of Guantanamo Bay. I nonetheless
agree with Justice Scalia’s analysis of our precedents and
the pertinent history of the writ, and accordingly join his
dissent. The important point for me, however, is that the
Court should have resolved these cases on other grounds.

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Habeas is most fundamentally a procedural right, a mecha
nism for contesting the legality of executive detention. The
critical threshold question in these cases, prior to any inquiry
about the writ’s scope, is whether the system the political
branches designed protects whatever rights the detainees
may possess. If so, there is no need for any additional proc
ess, whether called “habeas” or something else.
Congress entrusted that threshold question in the first in
stance to the Court of Appeals for the District of Columbia
Circuit, as the Constitution surely allows Congress to do.
See Detainee Treatment Act of 2005 (DTA), § 1005(e)(2)(A),
119 Stat. 2742. But before the D. C. Circuit has addressed
the issue, the Court cashiers the statute, and without an
swering this critical threshold question itself. The Court
does eventually get around to asking whether review under
the DTA is, as the Court frames it, an “adequate substitute”
for habeas, ante, at 772, but even then its opinion fails to
determine what rights the detainees possess and whether
the DTA system satisfies them. The majority instead com
pares the undefined DTA process to an equally undefined
habeas right—one that is to be given shape only in the future
by district courts on a case-by-case basis. This whole ap
proach is misguided.
It is also fruitless. How the detainees’ claims will be de
cided 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 ad
equately protects any constitutional rights aliens captured

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Roberts, C. J., dissenting
abroad and detained as enemy combatants may enjoy.
I therefore would dismiss these cases on that ground. With
all respect for the contrary views of the majority, I must
dissent.
I
The Court’s opinion makes plain that certiorari to review
these cases should never have been granted. As two Mem
bers 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. 1328, 1329 (2007) (Stevens and Kennedy,
JJ., statement respecting denial of certiorari) (citation
omitted). Just so. Given the posture in which these cases
came to us, the Court should have declined to intervene
until the D. C. Circuit had assessed the nature and validity
of the congressionally mandated proceedings in a given
detainee’s case.
The political branches created a two-part, collateral review
procedure for testing the legality of the prisoners’ detention:
It begins with a hearing before a Combatant Status Review
Tribunal (CSRT) followed by review in the D. C. Circuit. As
part of that review, Congress authorized the D. C. Circuit to
decide whether the CSRT proceedings are consistent with
“the Constitution and laws of the United States.” DTA
§ 1005(e)(2)(C), 119 Stat. 2742. No petitioner, however, has
invoked the D. C. Circuit review the statute specifies. See
476 F. 3d 981, 994, and n. 16 (CADC 2007); Brief for Federal
Respondents 41–43. As a consequence, that court has had
no occasion to decide whether the CSRT hearings, followed
by review in the Court of Appeals, vindicate whatever con
stitutional and statutory rights petitioners may possess.
See 476 F. 3d, at 994, and n. 16.
Remarkably, this Court does not require petitioners to ex
haust their remedies under the statute; it does not wait to
see whether those remedies will prove sufficient to protect

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petitioners’ rights. Instead, it not only denies the D. C. Cir
cuit the opportunity to assess the statute’s remedies, it re
fuses to do so itself: The majority expressly declines to de
cide whether the CSRT procedures, coupled with Article III
review, satisfy due process. See ante, at 785.
It is grossly premature to pronounce on the detainees’
right to habeas without first assessing whether the remedies
the DTA system provides vindicate whatever rights petition
ers may claim. The plurality in Hamdi v. Rumsfeld, 542
U. S. 507, 533 (2004), explained that the Constitution guaran
teed an American citizen challenging his detention as an
enemy combatant the right to “notice of the factual basis for
his classification, and a fair opportunity to rebut the Govern
ment’s factual assertions before a neutral decisionmaker.”
The plurality specifically stated that constitutionally ade
quate collateral process could be provided “by an appropri
ately authorized and properly constituted military tribunal,”
given the “uncommon potential to burden the Executive at a
time of ongoing military conflict.” Id., at 533, 538. This
point is directly pertinent here, for surely the Due Process
Clause does not afford non-citizens in such circumstances
greater protection than citizens are due.
If the CSRT procedures meet the minimal due process re
quirements outlined in Hamdi, and if an Article III court is
available to ensure that these procedures are followed in fu
ture 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 pos
sibly require, whether that process is called “habeas” or
something else. The question of the writ’s reach need not
be addressed.
This is why the Court should have required petitioners to
exhaust their remedies under the statute. As we explained
in Gusik v. Schilder, 340 U. S. 128, 132 (1950): “If an available
procedure has not been employed to rectify the alleged

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error” petitioners complain of, “any interference by [a] fed
eral court may be wholly needless. The procedure estab
lished 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 re
view that it admits may in fact satisfy the Due Process
Clause and be “structurally sound.” Ante, at 785. But if
the collateral review procedures Congress has provided—
CSRT review coupled with Article III scrutiny—are sound,
interference by a federal habeas court may be entirely
unnecessary.
The only way to know is to require petitioners to use the
alternative procedures Congress designed. Mandating that
petitioners exhaust their statutory remedies “is in no sense
a suspension of the writ of habeas corpus. It is merely a
deferment of resort to the writ until other corrective proce
dures are shown to be futile.” Gusik, supra, at 132. So too
here, it is not necessary to consider the availability of the
writ until the statutory remedies have been shown to be in
adequate 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 ap
plicant has exhausted the remedies available in the courts
of the State”). Respect for the judgments of Congress—
whose Members take the same oath we do to uphold the Con
stitution—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 coun
seled us to avoid deciding such hypothetical questions of con
stitutional law. See Spector Motor Service, Inc. v. Mc-
Laughlin, 323 U. S. 101, 105 (1944) (“If there is one doctrine
more deeply rooted than any other in the process of constitu
tional adjudication, it is that we ought not to pass on ques
tions of constitutionality . . . unless such [questions are] un

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806 BOUMEDIENE v. BUSH
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avoidable”); see also Ashwander v. TVA, 297 U. S. 288, 347
(1936) (Brandeis, J., concurring) (Constitutional questions
should not be decided unless “ ‘absolutely necessary to a deci
sion of the case’ ” (quoting Burton v. United States, 196 U. S.
283, 295 (1905))). This is a “fundamental rule of judicial re
straint.” Three Affiliated Tribes of Fort Berthold Reserva
tion 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 pros
pect of additional delay. Ante, at 772. It is, however, pre
cisely when the issues presented are grave that adherence
to the ordinary course is most important. A principle ap
plied only when unimportant is not much of a principle at all,
and charges of judicial activism are most effectively rebutted
when courts can fairly argue they are following normal
practices.
The Court is also concerned that requiring petitioners to
pursue “DTA review before proceeding with their habeas
corpus actions” could involve additional delay. Ante, at 794.
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 798 (“[O]ur opinion does not address the content of the
law that governs petitioners’ detention. That is a matter
yet to be determined”). There is no reason to suppose that
review according to procedures the Federal Judiciary will
design, case by case, will proceed any faster than the DTA
process petitioners disdained.
On the contrary, the system the Court has launched (and
directs lower courts to elaborate) promises to take longer.
The Court assures us that before bringing their habeas peti
tions, detainees must usually complete the CSRT process.
See ante, at 795. Then they may seek review in federal dis
trict court. Either success or failure there will surely result

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in an appeal to the D. C. Circuit—exactly where judicial re
view starts under Congress’s system. The effect of the
Court’s decision is to add additional layers of quite possibly
redundant review. And because nobody knows how these
new layers of “habeas” review will operate, or what new pro
cedures 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 petition
ers 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 system might well have provided petitioners all the re
lief to which they are entitled long before the Court’s newly
installed habeas review could hope to do so.1
The Court’s refusal to require petitioners to exhaust the
remedies provided by Congress violates the “traditional
rules governing our decision of constitutional questions.”
Boumediene, 549 U. S., at 1329 (Stevens and Kennedy,
JJ., statement respecting denial of certiorari). The Court’s
disrespect for these rules makes its decision an awkward
business. It rushes to decide the fundamental question of
the reach of habeas corpus when the functioning of the
DTA may make that decision entirely unnecessary, and it
1 In light of the foregoing, the concurrence is wrong to suggest that I
“insufficiently appreciat[e]” the issue of delay in these cases. See ante,
at 799 (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 resisted the statute’s review mechanisms, preferring to
proceed under habeas. It is unfair to complain that the DTA system in
volves too much delay when petitioners have opted to litigate rather than
pursue its procedures. Today’s decision obligating district courts to craft
new procedures to replace those in the DTA will only prolong the proc
ess—and delay relief.

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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 772, but fails to show
what rights the detainees have that cannot be vindicated by
the DTA system.
Because the central purpose of habeas corpus is to test
the legality of executive detention, the writ requires most
fundamentally an Article III court able to hear the prisoner’s
claims and, when necessary, order release. See Brown v.
Allen, 344 U. S. 443, 533 (1953) (Jackson, J., concurring in
result). Beyond that, the process a given prisoner is enti
tled to receive depends on the circumstances and the rights
of the prisoner. See Mathews v. Eldridge, 424 U. S. 319,
335 (1976). After much hemming and hawing, the majority
appears to concede that the DTA provides an Article III
court competent to order release. See ante, at 787–788.
The only issue in dispute is the process the Guantanamo pris
oners are entitled to use to test the legality of their deten
tion. Hamdi concluded that American citizens detained as
enemy combatants are entitled to only limited process, and
that much of that process could be supplied by a military
tribunal, with review to follow in an Article III court. That
is precisely the system we have here. It is adequate to vin
dicate whatever due process rights petitioners may have.
A
The Court reaches the opposite conclusion partly because
it misreads the statute. The majority appears not to under
stand 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 reci

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tation of the facts that the Government designed the CSRTs
“to comply with the due process requirements identified by
the plurality in Hamdi,” ante, at 734, the Court proceeds to
dismiss the tribunal proceedings as no more than a suspect
method used by the Executive for determining the status of
the detainees in the first instance, see ante, at 783. This
leads the Court to treat the review the DTA provides in the
D. C. Circuit as the only opportunity detainees have to chal
lenge their status determination. See ante, at 778.
The Court attempts to explain its glancing treatment of
the CSRTs by arguing that “[w]hether one characterizes the
CSRT process as direct review of the Executive’s battlefield
determination . . . or as the first step in the collateral review
of a battlefield determination makes no difference.” Ante,
at 783. 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 provi
sional and made in great haste. In fact, detainees are desig
nated “enemy combatants” only after “multiple levels of re
view by military officers and officials of the Department of
Defense.” Memorandum of the Secretary of the Navy, Im
plementation of Combatant Status Review Tribunal Proce
dures for Enemy Combatants Detained at Guantanamo Bay
Naval Base (July 29, 2004), App. J to Pet. for Cert. in
No. 06–1196, p. 150 (hereinafter Implementation Memo).
The majority is equally wrong to characterize the CSRTs
as part of that initial determination process. They are in
stead a means for detainees to challenge the Government’s
determination. The Executive designed the CSRTs to mir
ror Army Regulation 190–8, see Brief for Federal Respond
ents 48, the very procedural model the plurality in Hamdi
said provided the type of process an enemy combatant could
expect from a habeas court, see 542 U. S., at 538 (plurality
opinion). The CSRTs operate much as habeas courts would
if hearing the detainee’s collateral challenge for the first
time: They gather evidence, call witnesses, take testimony,

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and render a decision on the legality of the Government’s
detention. See Implementation Memo 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 nec
essary, because habeas is a collateral remedy available even
to prisoners “detained pursuant to the most rigorous pro
ceedings imaginable.” Ante, at 785. This comment makes
sense only if the CSRTs are incorrectly viewed as a method
used by the Executive for determining the prisoners’ status,
and not as themselves part of the collateral review to test
the validity of that determination. See Gusik, 340 U. S., at
132. The majority can deprecate the importance of the
CSRTs only by treating them as something they are not.
The use of a military tribunal such as the CSRTs to review
the aliens’ detention should be familiar to this Court in light
of the Hamdi plurality, which said that the due process
rights enjoyed by American citizens detained as enemy
combatants could be vindicated “by an appropriately author
ized and properly constituted military tribunal.” 542 U. S.,
at 538. The DTA represents Congress’s considered attempt
to provide the accused alien combatants detained at Guan
tanamo 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 re
spect. The statute directs the D. C. Circuit to consider
whether a particular alien’s status determination “was con
sistent with the standards and procedures specified by the
Secretary of Defense” and “whether the use of such stand
ards and procedures to make the determination is consistent
with the Constitution and laws of the United States.” DTA

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Roberts, C. J., dissenting
§ 1005(e)(2)(C), 119 Stat. 2742. That is, a court determines
whether the CSRT procedures are constitutional, and a court
determines whether those procedures were followed in a
particular case.
In short, the Hamdi plurality concluded that this type of
review would be enough to satisfy due process, even for citi
zens. See 542 U. S., at 538. Congress followed the Court’s
lead, only to find itself the victim of a constitutional bait
and switch.
Hamdi merits scant attention from the Court—a remark
able 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 784.
Hardly. Hamdi was all about the scope of habeas review in
the context of enemy combatant detentions. The petitioner,
an American citizen held within the United States as an
enemy combatant, invoked the writ to challenge his deten
tion. 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 enti
tled 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 be
fore a neutral decisionmaker.” Id., at 533. In light of the
Government’s national security responsibilities, the plurality
found the process could be “tailored to alleviate [the] uncom
mon potential to burden the Executive at a time of ongoing
military conflict.” Ibid. For example, the Government
could rely on hearsay and could claim a presumption in favor
of its own evidence. See id., at 533–534.
Hamdi further suggested that this “basic process” on col
lateral review could be provided by a military tribunal. It

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pointed to prisoner-of-war tribunals as a model that would
satisfy the Constitution’s requirements. See id., at 538.
Only “[i]n the absence of such process” before a military
tribunal, the Court held, would Article III courts need to
conduct full-dress habeas proceedings to “ensure that the
minimum requirements of due process are achieved.” Ibid.
(emphasis added). And even then, the petitioner would be
entitled to no more process than he would have received
from a properly constituted military review panel, given his
limited due process rights and the Government’s weighty in
terests. See id., at 533–534, 538.
Contrary to the majority, Hamdi is of pressing relevance
because it establishes the procedures American citizens de
tained as enemy combatants can expect from a habeas court
proceeding under § 2241. The DTA system of military tribu
nal 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 777. Maybe so, but that comment re
veals the majority’s misunderstanding. “[T]raditional ha
beas corpus” takes no account of what Hamdi recognized as
the “uncommon potential to burden the Executive at a time
of ongoing military conflict.” 542 U. S., at 533. Besides,
Congress and the Executive did not envision “DTA re
view”—by which I assume the Court means D. C. Circuit
review, see ante, at 777—as the detainees’ only opportu
nity 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

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process rights of American citizens. See Brief for Federal
Respondents 48–53.
B
Given the statutory scheme the political branches adopted,
and given Hamdi, it simply will not do for the majority to
dismiss the CSRT procedures as “far more limited” than
those used in military trials, and therefore beneath the level
of process “that would eliminate the need for habeas cor
pus review.” Ante, at 767. The question is not how much
process the CSRTs provide in comparison to other modes of
adjudication. The question is whether the CSRT proce
dures—coupled with the judicial review specified by the
DTA—provide the “basic process” Hamdi said the Constitu
tion affords American citizens detained as enemy combat
ants. 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 re
fusal to consider, at the outset, the fit between those reme
dies and due process, the majority now finds itself in the
position of evaluating whether the DTA system is an ade
quate 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 peti
tioners have a right to habeas corpus and then comparing
the DTA against the “historic office” of the writ. Ante,
at 776. But habeas is, as the majority acknowledges, a flex
ible remedy rather than a substantive right. Its “precise
application . . . change[s] depending upon the circumstances.”
Ante, at 779. The shape of habeas review ultimately de
pends 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 safe
guards 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”).

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The scope of federal habeas review is traditionally more
limited in some contexts than in others, depending on the
status of the detainee and the rights he may assert. See
St. Cyr, 533 U. S., at 306 (“In [immigration cases], other than
the question whether there was some evidence to support
the [deportation] order, the courts generally did not review
factual determinations made by the Executive” (footnote
omitted)); Burns v. Wilson, 346 U. S. 137, 139 (1953) (plural
ity opinion) (“[I]n military habeas corpus the inquiry, the
scope of matters open for review, has always been more nar
row than in civil cases”); In re Yamashita, 327 U. S. 1, 8
(1946) (“The courts may inquire whether the detention com
plained of is within the authority of those detaining the peti
tioner. If the military tribunals have lawful authority to
hear, decide and condemn, their action is not subject to judi
cial review”); Ex parte Quirin, 317 U. S. 1, 25 (1942) (federal
habeas review of military commission verdict limited to de
termining commission’s jurisdiction).
Declaring that petitioners have a right to habeas in no way
excuses the Court from explaining why the DTA does not
protect whatever due process or statutory rights petitioners
may have. Because if the DTA provides a means for vindi
cating petitioners’ rights, it is necessarily an adequate sub
stitute for habeas corpus. See Swain v. Pressley, 430 U. S.
372, 381 (1977); United States v. Hayman, 342 U. S. 205, 223
(1952).
For my part, I will assume that any due process rights
petitioners may possess are no greater than those of Ameri
can citizens detained as enemy combatants. It is worth not
ing again that the Hamdi controlling opinion said the Consti
tution guarantees citizen detainees only “basic” procedural
rights, and that the process for securing those rights can “be
tailored to alleviate [the] uncommon potential to burden the
Executive at a time of ongoing military conflict.” 542 U. S.,
at 533. The majority, however, objects that “the procedural
protections afforded to the detainees in the CSRT hearings

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Roberts, C. J., dissenting
are . . . limited.” Ante, at 767. But the evidentiary and
other limitations the Court complains of reflect the nature of
the issue in contest, namely, the status of aliens captured by
our Armed Forces abroad and alleged to be enemy combat
ants. Contrary to the repeated suggestions of the majority,
DTA review need not parallel the habeas privileges enjoyed
by noncombatant American citizens, as set out in 28 U. S. C.
§ 2241 (2000 ed. and Supp. V). Cf. ante, at 777–778. It need
only provide process adequate for noncitizens detained as al
leged combatants.
To what basic process are these detainees due as habeas
petitioners? We have said that “at the absolute minimum,”
the Suspension Clause protects the writ “ ‘as it existed in
1789.’ ” St. Cyr, supra, at 301 (quoting Felker v. Turpin,
518 U. S. 651, 663–664 (1996)). The majority admits that a
number of historical authorities suggest that at the time of
the Constitution’s ratification, “common-law courts abstained
altogether from matters involving prisoners of war.” Ante,
at 747. If this is accurate, the process provided prisoners
under the DTA is plainly more than sufficient—it allows al
leged 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 mean
ingful opportunity to demonstrate that [they are] being held
pursuant to the erroneous application or interpretation of
relevant law.” Ante, at 779 (internal quotation marks omit
ted). Further, the Court holds that to be an adequate sub
stitute, any tribunal reviewing the detainees’ cases “must
have the power to order the conditional release of an individ
ual unlawfully detained.” Ibid. The DTA system—CSRT
review of the Executive’s determination followed by D. C.
Circuit review for sufficiency of the evidence and the consti
tutionality of the CSRT process—meets these criteria.

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C
At the CSRT stage, every petitioner has the right to pre
sent evidence that he has been wrongfully detained. This
includes the right to call witnesses who are reasonably avail
able, question witnesses called by the tribunal, introduce
documentary evidence, and testify before the tribunal. See
Implementation Memo 154–156, 158–159, 161.
While the Court concedes detainees may confront all wit
nesses 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 784.
The Court further complains that petitioners lack “the as
sistance of counsel,” and—given the limits on their access to
classified information—“may not be aware of the most criti
cal allegations” against them. Ante, at 783–784. None of
these complaints is persuasive.
Detainees not only have the opportunity to confront any
witness who appears before the tribunal, they may call wit
nesses of their own. The Implementation Memo requires
only that detainees’ witnesses be “reasonably available,”
App. J to Pet. for Cert. in No. 06–1196, ¶F(6), at 155, a
requirement drawn from Army Regulation 190–8, ch. 1,
§ 1–6(e)(6), and entirely consistent with the Government’s in
terest in avoiding “a futile search for evidence” that might
burden warmaking responsibilities, Hamdi, supra, at 532.
The dangerous mission assigned to our forces abroad is to
fight terrorists, not serve subpoenas. The Court is correct
that some forms of hearsay evidence are admissible before
the CSRT, but Hamdi expressly approved this use of hear
say by habeas courts. 542 U. S., at 533–534 (“Hearsay, for
example, may need to be accepted as the most reliable avail
able evidence from the Government”).
As to classified information, while detainees are not per
mitted access to it themselves, the Implementation Memo
provides each detainee with a “Personal Representative”
who may review classified documents and comment on this

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evidence to the CSRT on the detainee’s behalf. Implemen
tation Memo 152, 154–156; 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 clas
sified 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 mate
rial in any form. Indeed, prisoners of war who challenge
their status determinations under the Geneva Convention
are afforded no such access, see Army Regulation 190–8,
ch. 1, §§ 1–6(e)(3) and (5), and the prisoner-of-war model is
the one Hamdi cited as consistent with the demands of due
process for citizens, see 542 U. S., at 538.
What alternative does the Court propose? Allow free ac
cess 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 major
ity fobs that vexing question off on district courts to answer
down the road.
Prisoners of war are not permitted access to classified in
formation, and neither are they permitted access to counsel,
another supposed failing of the CSRT process. And yet the
Guantanamo detainees are hardly denied all legal assistance.
They are provided a “Personal Representative” who, as
previously noted, may access classified information, help the
detainee arrange for witnesses, assist the detainee’s prep
aration of his case, and even aid the detainee in presenting
his evidence to the tribunal. See Implementation Memo
161. The provision for a personal representative on this
order is one of several ways in which the CSRT procedures

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are more generous than those provided prisoners of war
under Army Regulation 190–8.
Keep in mind that all this is just at the CSRT stage. De
tainees 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 deter
mine 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 suf
ficiency of the evidence against them. They allow detainees
to challenge a CSRT panel’s interpretation of any relevant
law, and even the constitutionality of the CSRT proceed
ings themselves. This includes, as the Solicitor General ac
knowledges, the ability to dispute the Government’s right to
detain alleged combatants in the first place, and to dispute
the Government’s definition of “enemy combatant.” Brief
for Federal Respondents 59. All this before an Article III
court—plainly a neutral decisionmaker.
All told, the DTA provides the prisoners held at Guantan
amo Bay adequate opportunity to contest the bases of their
detentions, which is all habeas corpus need allow. The DTA
provides more opportunity and more process, in fact, than
that afforded prisoners of war or any other alleged enemy
combatants in history.
D
Despite these guarantees, the Court finds the DTA system
an inadequate habeas substitute, for one central reason: De
tainees are unable to introduce at the appeal stage exculpa
tory evidence discovered after the conclusion of their CSRT
proceedings. See ante, at 790. The Court hints darkly that
the DTA may suffer from other infirmities, see ante, at 792
(“We do not imply DTA review would be a constitutionally
sufficient replacement for habeas corpus but for these limita

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Roberts, C. J., dissenting
tions on the detainee’s ability to present exculpatory evi
dence”), but it does not bother to name them, making a re
sponse a bit difficult. As it stands, I can only assume the
Court regards the supposed defect it did identify as the grav
est 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 ev
idence—whether documentary in nature or from live wit
nesses—before the military tribunals. See supra, at 816–
817; Implementation Memo 155–156. And if their ability to
introduce such evidence is denied contrary to the Constitu
tion or laws of the United States, the D. C. Circuit has the
authority to say so on review.
Nevertheless, the Court asks us to imagine an instance in
which evidence is discovered after the CSRT panel renders
its decision, but before the Court of Appeals reviews the de
tainee’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 substi
tute. While the majority is correct that the DTA does not
contemplate the introduction of “newly discovered” evidence
before the Court of Appeals, petitioners and the Solicitor
General agree that the DTA does permit the D. C. Circuit
to remand a detainee’s case for a new CSRT determination.
Brief for Petitioner Boumediene et al. in No. 06–1195, p. 30;
Brief for Federal Respondents 60–61. In the event a de
tainee alleges that he has obtained new and persuasive ex
culpatory evidence that would have been considered by the
tribunal below had it only been available, the D. C. Circuit
could readily remand the case to the tribunal to allow that
body to consider the evidence in the first instance. The
Court of Appeals could later review any new or reinstated
decision in light of the supplemented record.
If that sort of procedure sounds familiar, it should. Fed
eral appellate courts reviewing factual determinations follow

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820 BOUMEDIENE v. BUSH
Roberts, C. J., dissenting
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 inef
fective 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 avail
able relating to the enemy combatant status of a detainee.”
§ 1005(a)(3), 119 Stat. 2741. Regulations issued by the De
partment of Defense provide that when a detainee puts for
ward 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 Re
view of “New Evidence” Relating to Enemy Combatant (EC)
Status ¶¶ 4(a)(1), 5(b) (May 7, 2007); Brief for Federal Re
spondents 56, n. 30. Pursuant to DTA § 1005(e)(2)(A), the
resulting CSRT determination is again reviewable in full by
the D. C. Circuit.2
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 791–792. The answer is that the detainee can peti
tion the D. C. Circuit for review. The DTA directs that the procedures
for review of new evidence be included among “[t]he procedures submitted
under paragraph (1)(A)” governing CSRT review of enemy combatant sta
tus. § 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.

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In addition, DTA § 1005(d)(1) further requires the Depart
ment of Defense to conduct a yearly review of the status of
each prisoner. See 119 Stat. 2741. The Deputy Secretary
of Defense has promulgated concomitant regulations estab
lishing an Administrative Review Board to assess “annually
the need to continue to detain each enemy combatant.”
Deputy Secretary of Defense Order OSD 06942–04 (May 11,
2004), App. K to Pet. for Cert. in No. 06–1196, at 189. In
the words of the implementing order, the purpose of this
annual review is to afford every detainee the opportunity “to
explain why he is no longer a threat to the United States”
and should be released. Ibid. The Board’s findings are for
warded to a presidentially appointed, Senate-confirmed civil
ian within the Department of Defense whom the Secretary
of Defense has designated to administer the review process.
This designated civilian official has the authority to order
release upon the Board’s recommendation. Id., at 201.
The Court’s hand wringing over the DTA’s treatment of
later discovered exculpatory evidence is the most it has to
show after a roving search for constitutionally problematic
scenarios. But “[t]he delicate power of pronouncing an Act
of Congress unconstitutional,” we have said, “is not to be
exercised with reference to hypothetical cases thus imag
ined.” United States v. Raines, 362 U. S. 17, 22 (1960). The
Court today invents a sort of reverse facial challenge and
applies it with gusto: If there is any scenario in which the
statute might be constitutionally infirm, the law must be
struck down. Cf. United States v. Salerno, 481 U. S. 739,
745 (1987) (“A facial challenge . . . must establish that no set
of circumstances exists under which the Act would be
valid”); see also Washington v. Glucksberg, 521 U. S. 702,
739–740, and n. 7 (1997) (Stevens, J., concurring in judg
ments) (facial challenge must fail where the statute has
“ ‘plainly legitimate sweep’ ” (quoting Broadrick v. Okla
homa, 413 U. S. 601, 615 (1973))). The Court’s new method

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Roberts, C. J., dissenting
of constitutional adjudication only underscores its failure to
follow our usual procedures and require petitioners to dem
onstrate that they have been harmed by the statute they
challenge. In the absence of such a concrete showing, the
Court is unable to imagine a plausible hypothetical in which
the DTA is unconstitutional.
E
The Court’s second criterion for an adequate substitute is
the “power to order the conditional release of an individual
unlawfully detained.” Ante, at 779. As the Court basically
admits, the DTA can be read to permit the D. C. Circuit to
order release in light of our traditional principles of constru
ing statutes to avoid difficult constitutional issues, when rea
sonably possible. See ante, at 787–788.
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 pris
oner’s case to the CSRT with instructions to perform a new
status assessment. Brief for Petitioner Boumediene et al.
in No. 06–1195, at 30; Brief for Federal Respondents 60–61.
To avoid constitutional infirmity, it is reasonable to imply
more, see Ashwander, 297 U. S., at 348 (Brandeis, J., concur
ring) (“When the validity of an act of the Congress is drawn
in question . . . it is a cardinal principle that this Court
will . . . ascertain whether a construction of the statute is
fairly possible by which the [constitutional] question may
be avoided” (internal quotation marks omitted)); see also
St. Cyr, 533 U. S., at 299–300, especially in view of the Solici
tor General’s concession at oral argument and in his supple
mental brief that authority to release might be read in the
statute, see Tr. of Oral Arg. 37; Supplemental Brief for Fed
eral Respondents 9.

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Roberts, C. J., dissenting
The Court grudgingly suggests that “we can assume con
gressional silence permits a constitutionally required rem
edy.” Ante, at 788. But the argument in favor of statuto
rily 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 pro
vides only that the court, having heard and determined the
facts, shall “dispose of the matter as law and justice require.”
Ibid. We have long held, and no party here disputes, that
this includes the power to order release. See Wilkinson v.
Dotson, 544 U. S. 74, 79 (2005) (“[T]he writ’s history makes
clear that it traditionally has been accepted as the specific
instrument to obtain release from [unlawful] confinement”
(internal quotation marks omitted)).
The DTA can be similarly read. Because Congress substi
tuted DTA review for habeas corpus and because the “unique
purpose” of the writ is “to release the applicant . . . from
unlawful confinement,” Allen v. McCurry, 449 U. S. 90, 98,
n. 12 (1980), DTA § 1005(e)(2) can and should be read to con
fer on the Court of Appeals the authority to order release
in appropriate circumstances. Section 1005(e)(2)(D) plainly
contemplates release, addressing the effect “release of [an]
alien from the custody of the Department of Defense” will
have on the jurisdiction of the court. 119 Stat. 2742–2743.
This reading avoids serious constitutional difficulty and is
consistent with the text of the statute.
The D. C. Circuit can thus order release, the CSRTs can
order release, and the head of the Administrative Review
Boards can, at the recommendation of those panels, order
release. These multiple release provisions within the DTA
system more than satisfy the majority’s requirement that
any tribunal substituting for a habeas court have the author
ity 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,

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Roberts, C. J., dissenting
challenge the President’s legal authority to detain them, con
test the CSRT’s findings of fact, supplement the record on
review with exculpatory evidence, and request an order of
release would come close to reinstating the § 2241 habeas
corpus process Congress sought to deny them.” Ante, at
792. In other words, any interpretation of the statute that
would make it an adequate substitute for habeas must be
rejected, because Congress could not possibly have intended
to enact an adequate substitute for habeas. The Court could
have saved itself a lot of trouble if it had simply announced
this Catch-22 approach at the beginning rather than the end
of its opinion.
III
For all its eloquence about the detainees’ right to the writ,
the Court makes no effort to elaborate how exactly the rem
edy it prescribes will differ from the procedural protections
detainees enjoy under the DTA. The Court objects to the
detainees’ limited access to witnesses and classified material,
but proposes no alternatives of its own. Indeed, it simply
ignores the many difficult questions its holding presents.
What, for example, will become of the CSRT process? The
majority says federal courts should generally refrain from
entertaining detainee challenges until after the petitioner’s
CSRT proceeding has finished. See ante, at 795 (“[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 magi
cally 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?

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Roberts, C. J., dissenting
The majority has no answers for these difficulties. What
it does say leaves open the distinct possibility that its “ha
beas” remedy will, when all is said and done, end up looking
a great deal like the DTA review it rejects. See ante, at
796 (“We recognize, however, that the Government has a le
gitimate interest in protecting sources and methods of intel
ligence gathering; and we expect that the District Court
will use its discretion to accommodate this interest to the
greatest extent possible”). But “[t]he role of the judiciary
is limited to determining whether the procedures meet the
essential standard of fairness under the Due Process Clause
and does not extend to imposing procedures that merely dis
place congressional choices of policy.” Landon v. Plasencia,
459 U. S. 21, 34–35 (1982).
The majority rests its decision on abstract and hypotheti
cal concerns. Step back and consider what, in the real
world, Congress and the Executive have actually granted
aliens captured by our Armed Forces overseas and found to
be enemy combatants:
• The right to hear the bases of the charges against them,
including a summary of any classified evidence.
• The ability to challenge the bases of their detention be
fore 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 evi
dence, call witnesses, question those the Government
calls, and secure release, if and when appropriate.
• The right to the aid of a personal representative in ar
ranging and presenting their cases before a CSRT.
• Before the D. C. Circuit, the right to employ counsel,
challenge the factual record, contest the lower tribunal’s
legal determinations, ensure compliance with the Consti

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826 BOUMEDIENE v. BUSH
Scalia, J., dissenting
tution 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 protec
tions than have ever been afforded alleged enemy detain
ees—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, followed
by further litigation to resolve their particular cases, fol
lowed by further litigation before the D. C. Circuit—where
they could have started had they invoked the DTA proce
dure. Not Congress, whose attempt to “determine—
through democratic means—how best” to balance the se
curity 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 en
hanced by its extension to a jurisdictionally quirky outpost,
with no tangible benefit to anyone. Not the rule of law, un
less by that is meant the rule of lawyers, who will now argu
ably have a greater role than military and intelligence offi
cials in shaping policy for alien enemy combatants. And
certainly not the American people, who today lose a bit more
control over the conduct of this Nation’s foreign policy to
unelected, politically unaccountable judges.
I respectfully dissent.
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 ene
mies detained abroad by our military forces in the course of

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Scalia, J., dissenting
an ongoing war. The Chief Justice’s dissent, which I join,
shows that the procedures prescribed by Congress in the
Detainee Treatment Act provide the essential protections
that habeas corpus guarantees; there has thus been no sus
pension of the writ, and no basis exists for judicial interven
tion beyond what the Act allows. My problem with today’s
opinion is more fundamental still: The writ of habeas corpus
does not, and never has, run in favor of aliens abroad; the
Suspension Clause thus has no application, and the Court’s
intervention in this military matter is entirely ultra vires.
I shall devote most of what will be a lengthy opinion to
the legal errors contained in the opinion of the Court. Con
trary to my usual practice, however, I think it appropriate
to begin with a description of the disastrous consequences of
what the Court has done today.
I
America is at war with radical Islamists. The enemy
began by killing Americans and American allies abroad: 241
at the Marine barracks in Lebanon, 19 at the Khobar Towers
in Dhahran, 224 at our embassies in Dar es Salaam and Nai
robi, and 17 on the USS Cole in Yemen. See National Com
mission on Terrorist Attacks Upon the United States, The
9/11 Commission Report, pp. 60–61, 70, 190 (2004). On Sep
tember 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 Pennsyl
vania. See id., at 552, n. 188. It has threatened further
attacks against our homeland; one need only walk about
buttressed and barricaded Washington, or board a plane any
where 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 coun
trymen 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

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828 BOUMEDIENE v. BUSH
Scalia, J., dissenting
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 blatant
abandonment of such a principle that produces the decision
today. The President relied on our settled precedent in
Johnson v. Eisentrager, 339 U. S. 763 (1950), when he estab
lished the prison at Guantanamo Bay for enemy aliens. Cit
ing that case, the President’s Office of Legal Counsel advised
him “that the great weight of legal authority indicates that
a federal district court could not properly exercise habeas
jurisdiction over an alien detained at [Guantanamo Bay].”
Memorandum from Patrick F. Philbin and John C. Yoo, Dep
uty Assistant Attorneys General, Office of Legal Counsel, to
William J. Haynes II, General Counsel, Dept. of Defense, p. 1
(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 accom
plishes little, except perhaps to reduce the well-being of
enemy combatants that the Court ostensibly seeks to pro
tect. In the short term, however, the decision is devastat
ing. 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) (herein
after Minority Report). Some have been captured or killed.
See ibid.; see also Mintz, Released Detainees Rejoining the
Fight, Washington Post, Oct. 22, 2004, pp. A1, A12. But
others have succeeded in carrying on their atrocities against
innocent civilians. In one case, a detainee released from
Guantanamo Bay masterminded the kidnaping of two Chi

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Scalia, J., dissenting
nese dam workers, one of whom was later shot to death when
used as a human shield against Pakistani commandoes. See
Khan & Lancaster, Pakistanis Rescue Hostage; 2nd Dies,
Washington Post, Oct. 15, 2004, p. A18. Another former de
tainee promptly resumed his post as a senior Taliban com
mander and murdered a United Nations engineer and three
Afghan soldiers. Mintz, supra. Still another murdered an
Afghan judge. See Minority Report 13. It was reported
only last month that a released detainee carried out a suicide
bombing against Iraqi soldiers in Mosul, Iraq. See White,
Ex-Guantanamo Detainee Joined Iraq Suicide Attack, 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 rig
orous evidence collection. Astoundingly, the Court today
raises the bar, requiring military officials to appear before
civilian courts and defend their decisions under procedural
and evidentiary rules that go beyond what Congress has
specified. As The Chief Justice’s dissent makes clear, we
have no idea what those procedural and evidentiary rules
are, but they will be determined by civil courts and (in
the Court’s contemplation at least) will be more detainee
friendly than those now applied, since otherwise there would
be no reason to hold the congressionally prescribed proce
dures unconstitutional. If they impose a higher standard of
proof (from foreign battlefields) than the current procedures
require, the number of the enemy returned to combat will
obviously increase.
But even when the military has evidence that it can bring
forward, it is often foolhardy to release that evidence to the
attorneys representing our enemies. And one escalation of
procedures that the Court is clear about is affording the de
tainees increased access to witnesses (perhaps troops serv

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ing in Afghanistan?) and to classified information. See ante,
at 783–784. During the 1995 prosecution of Omar Abdel Rah
man, federal prosecutors gave the names of 200 unindicted
co-conspirators to the “Blind Sheik’s” defense lawyers; that
information was in the hands of Osama Bin Laden within
two weeks. See Minority Report 14–15. In another case,
trial testimony revealed to the enemy that the United States
had been monitoring their cellular network, whereupon they
promptly stopped using it, enabling more of them to evade
capture and continue their atrocities. See id., at 15.
And today it is not just the military that the Court elbows
aside. A mere two Terms ago in Hamdan v. Rumsfeld, 548
U. S. 557 (2006), when the Court held (quite amazingly) that
the Detainee Treatment Act of 2005 had not stripped habeas
jurisdiction over Guantanamo petitioners’ claims, four Mem
bers of today’s five-Justice majority joined an opinion saying
the following:
“Nothing prevents the President from returning to Con
gress to seek the authority [for trial by military commis
sion] he believes necessary.
“Where, as here, no emergency prevents consultation
with Congress, judicial insistence upon that consultation
does not weaken our Nation’s ability to deal with dan
ger. 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
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 obli
gations 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 798. Indeed. What the Court ap
parently means is that the political branches can debate, after which the
Third Branch will decide.

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Turns out they were just kidding. For in response, Con
gress, at the President’s request, quickly enacted the Mili
tary Commissions Act, emphatically reasserting that it did
not want these prisoners filing habeas petitions. It is there
fore clear that Congress and the Executive—both political
branches—have determined that limiting the role of civilian
courts in adjudicating whether prisoners captured abroad
are properly detained is important to success in the war that
some 190,000 of our men and women are now fighting. As
the Solicitor General argued, “the Military Commissions Act
and the Detainee Treatment Act . . . represent an effort by
the political branches to strike an appropriate balance be
tween the need to preserve liberty and the need to accommo
date the weighty and sensitive governmental interests in en
suring that those who have in fact fought with the enemy
during a war do not return to battle against the United
States.” Brief for Federal 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 769. “The Government,”
it declares, “presents no credible arguments that the military
mission at Guantanamo would be compromised if habeas cor
pus courts had jurisdiction to hear the detainees’ claims.”
Ibid. 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 none
theless. Henceforth, as today’s opinion makes unnervingly
clear, how to handle enemy prisoners in this war will ulti
mately lie with the branch that knows least about the na
tional 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 sus

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pended, unless when in Cases of Rebellion or Invasion the
public Safety may require it.” Art. I, § 9, cl. 2. As a court
of law operating under a written Constitution, our role is to
determine whether there is a conflict between that Clause
and the Military Commissions Act. A conflict arises only if
the Suspension Clause preserves the privilege of the writ for
aliens held by the United States military as enemy combat
ants at the base in Guantanamo Bay, located within the sov
ereign territory of Cuba.
We have frequently stated that we owe great deference to
Congress’s view that a law it has passed is constitutional.
See, e. g., Department of Labor v. Triplett, 494 U. S. 715, 721
(1990); United States v. National Dairy Products Corp., 372
U. S. 29, 32 (1963); see also American Communications
Assn. v. Douds, 339 U. S. 382, 435 (1950) (Jackson, J., concur
ring 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 conclu
sion that “the common law [does not] yiel[d] a definite answer
to the questions before us,” ante, at 752, 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 deter
mine 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 752–754; Rasul v. Bush, 542 U. S. 466, 500–501
(2004) (Scalia, J., dissenting). Together, these two conces
sions establish that it is (in the Court’s view) perfectly am
biguous whether the common-law writ would have provided

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a remedy for these petitioners. If that is so, the Court has
no basis to strike down the Military Commissions Act, and
must leave undisturbed the considered judgment of the co
equal 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 755. According
to the Court, because “the writ of habeas corpus is itself
an indispensable mechanism for monitoring the separation of
powers,” the test of its extraterritorial reach “must not be
subject to manipulation by those whose power it is designed
to restrain.” Ante, at 765, 766.
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 Con
stitution embodies are to be derived not from some judicially
imagined matrix, but from the sum total of the individual
separation-of-powers provisions that the Constitution sets
forth. Only by considering them one-by-one does the full
shape of the Constitution’s separation-of-powers principles
emerge. It is nonsensical to interpret those provisions
themselves in light of some general “separation-of-powers
principles” dreamed up by the Court. Rather, they must be
interpreted to mean what they were understood to mean
when the people ratified them. And if the understood scope
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 746
(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 to
day’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.

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of the writ of habeas corpus was “designed to restrain” (as
the Court says) the actions of the Executive, the understood
limits upon that scope were (as the Court seems not to
grasp) just as much “designed to restrain” the incursions
of the Third Branch. “Manipulation” of the territorial reach
of the writ by the Judiciary poses just as much a threat to
the proper separation of powers as “manipulation” by the
Executive. As I will show below, manipulation is what is
afoot here. The understood limits upon the writ deny our
jurisdiction over the habeas petitions brought by these
enemy aliens, and entrust the President with the crucial
wartime determinations about their status and continued
confinement.
B
The Court purports to derive from our precedents a “func
tional” test for the extraterritorial reach of the writ, ante,
at 764, which shows that the Military Commissions Act un
constitutionally restricts the scope of habeas. That is re
markable because the most pertinent of those precedents,
Johnson v. Eisentrager, 339 U. S. 763, conclusively estab
lishes 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 petitioners
here, the Germans claimed that their detentions violated the
Constitution and international law, and sought a writ of ha
beas corpus. Writing for the Court, Justice Jackson held
that American courts lacked habeas jurisdiction:
“We are cited to [sic] no instance where a court, in
this or any other country where the writ is known, has
issued it on behalf of an alien enemy who, at no relevant
time and in no stage of his captivity, has been within

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its territorial jurisdiction. Nothing in the text of the
Constitution extends such a right, nor does anything in
our statutes.” Id., at 768.
Justice Jackson then elaborated on the historical scope of
the writ:
“The alien, to whom the United States has been tradi
tionally hospitable, has been accorded a generous and
ascending scale of rights as he increases his identity
with our society. . . .
“But, in extending constitutional protections beyond
the citizenry, the Court has been at pains to point out
that it was the alien’s presence within its territorial ju
risdiction 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 sov
ereignty at that time over [the Philippines],” Jackson wrote,
“Yamashita stood much as did Quirin before American
courts.” 339 U. S., at 780.
Eisentrager thus held—held beyond any doubt—that the
Constitution does not ensure habeas for aliens held by the
United States in areas over which our Government is not
sovereign.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 “sovereignty”

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The Court would have us believe that Eisentrager rested
on “[p]ractical considerations,” such as the “difficulties of or
dering the Government to produce the prisoners in a habeas
corpus proceeding.” Ante, at 762. Formal sovereignty,
says the Court, is merely one consideration “that bears upon
which constitutional guarantees apply” in a given location.
Ante, at 764. This is a sheer rewriting of the case. Eisen
trager 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 Con
stitution does not empower courts to issue writs of habeas
corpus to aliens abroad in any circumstances. As Justice
Black accurately said in dissent, “the Court’s opinion ines
capably denies courts power to afford the least bit of protec
tion for any alien who is subject to our occupation govern
ment abroad, even if he is neither enemy nor belligerent and
even after peace is officially declared.” 339 U. S., at 796.
lacking. See ante, at 755, 763–764. If that were so, one would have ex
pected Eisentrager to explain in some detail why the United States did
not have practical control over the American zone of occupation. It did
not (and probably could not). Of course this novel de facto-de jure ap
proach 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 846–847.
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 754. 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 a part of their dominions, nor to give to it any form of civil govern
ment, 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.

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The Court also tries to change Eisentrager into a “func
tional” test by quoting a paragraph that lists the characteris
tics 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 cus
tody 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.” Id., at 777 (quoted in part,
ante, at 766).
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 characteris
tics of the German prisoners were set forth, not in applica
tion of some “functional” test, but to show that the case be
fore the Court represented an a fortiori application of the
ordinary rule. That is reaffirmed by the sentences that im
mediately follow the listing of the Germans’ characteristics:
“We have pointed out that the privilege of litigation
has been extended to aliens, whether friendly or enemy,
only because permitting their presence in the country
implied protection. No such basis can be invoked here,

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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 juris
diction 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 756–759. It cites our state
ment in Balzac v. Porto Rico, 258 U. S. 298, 312 (1922), that
“ ‘the real issue in the Insular Cases was not whether the
Constitution extended to the Philippines or Porto Rico when
we went there, but which of its provisions were applicable
by way of limitation upon the exercise of executive and legis
lative power in dealing with new conditions and require
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 799. 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, 542 U. S., at 475–479. And the
opinion of the Court today—which Justice Souter joins—expressly re
jects the historical evidence cited in Rasul to support its conclusion about
the reach of habeas corpus. Compare id., at 481–482, with ante, at 748.
Moreover, even if one were to accept as true what Justice Souter calls
Rasul’s “well-considered” dictum, that does not explain why Eisentrager’s
constitutional holding must be overruled or how it can be distinguished.
(After all, Rasul distinguished Eisentrager’s statutory holding on a
ground inapplicable to its constitutional holding.) In other words, even if
the Court were to conclude that Eisentrager’s rule was incorrect as an
original matter, the Court would have to explain the justification for de
parting from that precedent. It therefore cannot possibly be true that
Rasul controls these cases, as Justice Souter suggests.

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ments.’ ” Ante, at 758. But the Court conveniently omits
Balzac’s predicate to that statement: “The Constitution of
the United States is in force in Porto Rico as it is wherever
and whenever the sovereign power of that government is
exerted.” 258 U. S., at 312 (emphasis added). The Insular
Cases all concerned Territories acquired by Congress under
its Article IV authority and indisputably part of the sover
eign territory of the United States. See United States v.
Verdugo-Urquidez, 494 U. S. 259, 268 (1990); Reid v. Covert,
354 U. S. 1, 13 (1957) (plurality opinion of Black, J.). None
of the Insular Cases stands for the proposition that aliens
located outside U. S. sovereign territory have constitutional
rights, and Eisentrager held just the opposite with respect
to habeas corpus. As I have said, Eisentrager distinguished
Yamashita on the ground of “our sovereignty [over the Phil
ippines],” 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 759–762. But all the Justices in the majority except
Justice Frankfurter limited their analysis to the rights of
citizens abroad. See Reid, 354 U. S., at 5–6 (plurality opin
ion of Black, J.); id., at 74–75 (Harlan, J., concurring in result).
(Frankfurter limited his analysis to the even narrower
class of civilian dependents of American military personnel
abroad, see id., at 45 (opinion concurring in result).) In try
ing to wring some kind of support out of Reid for today’s
novel holding, the Court resorts to a chain of logic that does
not hold. The members of the Reid majority, the Court
says, were divided over whether In re Ross, 140 U. S. 453
(1891), which had (according to the Court) held that under
certain circumstances American citizens abroad do not have
indictment and jury-trial rights, should be overruled. In
the Court’s view, the Reid plurality would have overruled
Ross, but Justices Frankfurter and Harlan preferred to dis
tinguish it. The upshot: “If citizenship had been the only
relevant factor in the case, it would have been necessary for

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the Court to overturn Ross, something Justices Harlan and
Frankfurter were unwilling to do.” Ante, at 761–762.
What, exactly, is this point supposed to prove? To say that
“practical considerations” determine the precise content of
the constitutional protections American citizens enjoy when
they are abroad is quite different from saying that “practical
considerations” determine whether aliens abroad enjoy any
constitutional protections whatever, including habeas. In
other words, merely because citizenship is not a sufficient
factor to extend constitutional rights abroad does not mean
that it is not a necessary one.
The Court tries to reconcile Eisentrager with its holding
today by pointing out that in postwar Germany, the United
States was “answerable to its Allies” and did not “pla[n] a
long-term occupation.” Ante, at 768. 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 be
holden to foreign powers than when they act alone?
After transforming the a fortiori elements discussed
above into a “functional” test, the Court is still left with the
difficulty that most of those elements exist here as well with
regard to all the detainees. To make the application of the
newly crafted “functional” test produce a different result in
the present cases, the Court must rely upon factors (d) and
(e): The Germans had been tried by a military commission
for violations of the laws of war; the present petitioners, by
contrast, have been tried by a Combatant Status Review Tri
bunal (CSRT) whose procedural protections, according to the
Court’s ipse dixit, “fall well short of the procedures and ad
versarial mechanisms that would eliminate the need for ha
beas corpus review.” Ante, at 767. But no one looking for
“functional” equivalents would put Eisentrager and the pres

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ent cases in the same category, much less place the present
cases in a preferred category. The difference between them
cries out for lesser procedures in the present cases. The
prisoners in Eisentrager were prosecuted for crimes after
the cessation of hostilities; the prisoners here are enemy
combatants detained during an ongoing conflict. See
Hamdi v. Rumsfeld, 542 U. S. 507, 538 (2004) (plurality opin
ion) (suggesting, as an adequate substitute for habeas corpus,
the use of a tribunal akin to a CSRT to authorize the deten
tion of American citizens as enemy combatants during the
course of the present conflict).
The category of prisoner comparable to these detainees
are not the Eisentrager criminal defendants, but the more
than 400,000 prisoners of war detained in the United States
alone during World War II. Not a single one was accorded
the right to have his detention validated by a habeas corpus
action in federal court—and that despite the fact that they
were present on U. S. soil. See Bradley, The Military Com
missions Act, Habeas Corpus, and the Geneva Conventions,
101 Am. J. Int’l L. 322, 338 (2007). The Court’s analysis pro
duces 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
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. sov
ereign territory, see Verdugo-Urquidez, supra, at 271, and
Eisentrager could not be clearer that the privilege of habeas
corpus does not extend to aliens abroad. By blatantly dis
torting Eisentrager, the Court avoids the difficulty of ex

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plaining why it should be overruled. See Planned Parent
hood of Southeastern Pa. v. Casey, 505 U. S. 833, 854–855
(1992) (identifying stare decisis factors). The rule that
aliens abroad are not constitutionally entitled to habeas cor
pus has not proved unworkable in practice; if anything, it is
the Court’s “functional” test that does not (and never will)
provide clear guidance for the future. Eisentrager forms a
coherent whole with the accepted proposition that aliens
abroad have no substantive rights under our Constitution.
Since it was announced, no relevant factual premises have
changed. It has engendered considerable reliance on the
part of our military. And, as the Court acknowledges, text
and history do not clearly compel a contrary ruling. It is a
sad day for the rule of law when such an important constitu
tional precedent is discarded without an apologia, much less
an apology.
C
What drives today’s decision is neither the meaning of the
Suspension Clause, nor the principles of our precedents, but
rather an inflated notion of judicial supremacy. The Court
says that if the extraterritorial applicability of the Suspen
sion Clause turned on formal notions of sovereignty, “it
would be possible for the political branches to govern with
out legal constraint” in areas beyond the sovereign territory
of the United States. Ante, at 765. That cannot be, the
Court says, because it is the duty of this Court to say what
the law is. Ibid. It would be difficult to imagine a more
question-begging analysis. “The very foundation of the
power of the federal courts to declare Acts of Congress
unconstitutional lies in the power and duty of those courts
to decide cases and controversies properly before them.”
United States v. Raines, 362 U. S. 17, 20–21 (1960) (citing
Marbury v. Madison, 1 Cranch 137 (1803); emphasis added).
Our power “to say what the law is” is circumscribed by the
limits of our statutorily and constitutionally conferred juris
diction. See Lujan v. Defenders of Wildlife, 504 U. S. 555,

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573–578 (1992). And that is precisely the question in these
cases: whether the Constitution confers habeas jurisdiction
on federal courts to decide petitioners’ claims. It is both
irrational and arrogant to say that the answer must be yes,
because otherwise we would not be supreme.
But so long as there are some places to which habeas does
not run—so long as the Court’s new “functional” test will not
be satisfied in every case—then there will be circumstances
in which “it would be possible for the political branches to
govern without legal constraint.” Or, to put it more impar
tially, areas in which the legal determinations of the other
branches will be (shudder!) supreme. In other words, judi
cial supremacy is not really assured by the constitutional
rule that the Court creates. The gap between rationale and
rule leads me to conclude that the Court’s ultimate, unex
pressed goal is to preserve the power to review the con
finement of enemy prisoners held by the Executive anywhere
in the world. The “functional” test usefully evades the prec
edential landmine of Eisentrager but is so inherently subjec
tive that it clears a wide path for the Court to traverse in
the years to come.
III
Putting aside the conclusive precedent of Eisentrager, it is
clear that the original understanding of the Suspension
Clause was that habeas corpus was not available to aliens
abroad, as Judge Randolph’s thorough opinion for the court
below detailed. See 476 F. 3d 981, 988–990 (CADC 2007).
The Suspension Clause reads: “The Privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may require
it.” U. S. Const., Art. I, § 9, cl. 2. The proper course of
constitutional interpretation is to give the text the meaning
it was understood to have at the time of its adoption by the
people. See, e. g., Crawford v. Washington, 541 U. S. 36, 54
(2004). That course is especially demanded when (as here)
the Constitution limits the power of Congress to infringe

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upon a pre-existing common-law right. The nature of the
writ of habeas corpus that cannot be suspended must be de
fined by the common-law writ that was available at the time
of the founding. See McNally v. Hill, 293 U. S. 131, 135–136
(1934); see also INS v. St. Cyr, 533 U. S. 289, 342 (2001)
(Scalia, J., dissenting); D’Oench, Duhme & Co. v. FDIC, 315
U. S. 447, 471, n. 9 (1942) (Jackson, J., concurring).
It is entirely clear that, at English common law, the writ
of habeas corpus did not extend beyond the sovereign terri
tory of the Crown. To be sure, the writ had an “extraordi
nary territorial ambit,” because it was a so-called “preroga
tive writ,” which, unlike other writs, could extend beyond
the realm of England to other places where the Crown was
sovereign. R. Sharpe, The Law of Habeas Corpus 188 (2d
ed. 1989) (hereinafter Sharpe); see also Note on the Power
of the English Courts to Issue the Writ of Habeas to Places
Within the Dominions of the Crown, But Out of England,
and On the Position of Scotland in Relation to that Power,
8 Jurid. Rev. 157 (1896) (hereinafter Note on Habeas);
King v. Cowle, 2 Burr. 834, 855–856, 97 Eng. Rep. 587, 599
(K. B. 1759).
But prerogative writs could not issue to foreign countries,
even for British subjects; they were confined to the King’s
dominions—those areas over which the Crown was sover
eign. See Sharpe 188; 2 R. Chambers, A Course of Lectures
on the English Law 1767–1773, pp. 7–8 (T. 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 domin
ions, which belong to a prince who succeeds to the throne of
5 My dissent in Rasul v. Bush, 542 U. S. 466, 503 (2004), mistakenly in
cluded Scotland among the places to which the writ could run.

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England, this Court has no power to send any writ of any
kind. We cannot send a habeas corpus to Scotland . . . .”
Cowle, supra, at 856, 97 Eng. Rep., at 599–600.
The common-law writ was codified by the Habeas Corpus
Act of 1679, which “stood alongside Magna Charta and the
English Bill of Rights of 1689 as a towering common law
lighthouse of liberty—a beacon by which framing lawyers
in America consciously steered their course.” Amar, Sixth
Amendment First Principles, 84 Geo. L. J. 641, 663 (1996).
The writ was established in the Colonies beginning in the
1690’s and at least one colony adopted the 1679 Act almost
verbatim. See Dept. of Political Science, Okla. State Univ.,
Research Reports, No. 1, R. Walker, The American Recep
tion 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 counties palatine were so-called “exempt jurisdic
tions”—franchises granted by the Crown in which local au
thorities would manage municipal affairs, including the court
system, but over which the Crown maintained ultimate
sovereignty. See 3 Blackstone 78–79. The other places
listed—Wales, Berwick-upon-Tweed, Jersey, and Guernsey—
were territories of the Crown even though not part of Eng
land 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 evad
ing judicial review through such spiriting-away was elimi
nated, not by expanding the writ abroad, but by forbidding
(in Section XII of the Act) the shipment of prisoners to
places where the writ did not run or where its execution

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would be difficult. See 31 Car. 2, ch. 2; see generally Nut
ting, The Most Wholesome Law—The Habeas Corpus Act of
1679, 65 Am. Hist. Rev. 527 (1960).
The Habeas Corpus Act, then, confirms the consensus view
of scholars and jurists that the writ did not run outside
the sovereign territory of the Crown. The Court says that
the idea that “jurisdiction followed the King’s officers” is
an equally credible view. Ante, at 746. 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 out
side the sovereign territory of the Crown.6
The Court dismisses the example of Scotland on the
grounds that Scotland had its own judicial system and that
the writ could not, as a practical matter, have been enforced
there. Ante, at 750. Those explanations are totally unper
suasive. The existence of a separate court system was
never a basis for denying the power of a court to issue the
writ. See 9 W. Holdsworth, A History of English Law 124,
and n. 6 (3d ed. 1944) (citing Ex parte Anderson, 3 El. and El.
487, 121 Eng. Rep. 525 (K. B. 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 limita
tions on issuing the writ to such remote areas within the
sovereign territory of the Crown and the jurisdictional pro
hibition on issuing the writ to Scotland. See ante, at 749–
750. But the very authority that the Court cites, Lord
6 The dicta in Rasul also cited Ex parte Mwenya, [1960] 1 Q. B. 241
(C. A.), but as I explained in dissent, “[e]ach judge [in Mwenya] made clear
that the detainee’s status as a subject was material to the resolution of
the case,” 542 U. S., at 504.

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847 Cite as: 553 U. S. 723 (2008)
Scalia, J., dissenting
Mansfield, expressly distinguished between these two con
cepts, stating that English courts had the “power” to send
the writ to places within the Crown’s sovereignty, the “only
question” being the “propriety,” while they had “no power
to send any writ of any kind” to Scotland and other “foreign
dominions.” Cowle, 2 Burr., 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
In sum, all available historical evidence points to the con
clusion that the writ would not have been available at com
mon 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 deny
ing jurisdiction to such prisoners either. See ante, at 752.
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 ju
risdiction would likely not. At a minimum, the absence of a
reported case either way leaves unrefuted the voluminous
7 The Court also argues that the fact that the writ could run to Ireland,
even though it was ruled under a “separate” crown, shows that formal
sovereignty was not the touchstone of habeas jurisdiction. Ante, at 751.
The passage from Blackstone that the Court cites, however, describes Ire
land as “a dependent, subordinate kingdom” that was part of the “king’s
dominions.” 1 Blackstone 98, 100 (internal quotation marks omitted).
And Lord Mansfield’s opinion in Cowle plainly understood Ireland to be
“a dominion of the Crown of England,” in contrast to the “foreign domin
io[n]” of Scotland, and thought that distinction dispositive of the question
of habeas jurisdiction. 2 Burr., at 856, 97 Eng. Rep., at 599–600.

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848 BOUMEDIENE v. BUSH
Scalia, J., dissenting
commentary stating that habeas was confined to the domin
ions 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 over
whelming majority of its occurrences would be domestic. If
the extraterritorial scope of habeas turned on flexible, “func
tional” considerations, as the Court holds, why would the
Constitution limit its suspension almost entirely to instances
of domestic crisis? Surely there is an even greater justifi
cation for suspension in foreign lands where the United
States might hold prisoners of war during an ongoing con
flict. And correspondingly, there is less threat to liberty
when the Government suspends the writ’s (supposed) appli
cation 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, supra, at 501, 502 (Scalia, J., dissenting) (empha
sis 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

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Scalia, J., dissenting
the consent of the governed, and in which citizens (not “sub
jects”) are afforded defined protections against the Govern
ment. 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
a citizen who is abroad, the shield which the Bill of Rights
and other parts of the Constitution provide to protect his
life and liberty should not be stripped away just because
he happens to be in another land.” 354 U. S., at 6; see also
Verdugo-Urquidez, 494 U. S., at 269–270. On that analysis,
“[t]he distinction between citizens and aliens follows from the
undoubted proposition that the Constitution does not create,
nor do general principles of law create, any juridical relation
between our country and some undefined, limitless class of
noncitizens who are beyond our territory.” Id., at 275 (Ken
nedy, J., concurring).
In sum, because I conclude that the text and history of
the Suspension Clause provide no basis for our jurisdiction,
I would affirm the Court of Appeals even if Eisentrager did
not govern these cases.
* * *
Today the Court warps our Constitution in a way that
goes beyond the narrow issue of the reach of the Suspen
sion Clause, invoking judicially brainstormed separation-of
powers principles to establish a manipulable “functional” test
for the extraterritorial reach of habeas corpus (and, no doubt,

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850 BOUMEDIENE v. BUSH
Scalia, J., dissenting
for the extraterritorial reach of other constitutional protec
tions as well). It blatantly misdescribes important prece
dents, most conspicuously Justice Jackson’s opinion for the
Court in Johnson v. Eisentrager. It breaks a chain of prece
dent as old as the common law that prohibits judicial inquiry
into detentions of aliens abroad absent statutory authoriza
tion. And, most tragically, it sets our military commanders
the impossible task of proving to a civilian court, under
whatever standards this Court devises in the future, that
evidence supports the confinement of each and every enemy
prisoner.
The Nation will live to regret what the Court has done
today. I dissent.