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Boumediene v. Bush / Odah v. United States - Brief (Merits)

Docket Number
Nos. 06-1195 and 06-1196
Supreme Court Term
2007 Term
Merits Stage Brief
Court Level
Supreme Court

Nos. 06-1195 and 06-1196


In the Supreme Court of the United States









Solicitor General
Counsel of Record
Assistant Attorney General
Principal Deputy Associate
Attorney General
Deputy Solicitor General
Assistant to the Solicitor
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217


1. Whether the Military Commissions Act of 2006 (MCA), Pub. L. No. 109-366, 120 Stat. 2600, removes federal court jurisdiction over habeas petitions filed by aliens detained as enemy combatants at Guantanamo Bay, Cuba.

2. Whether aliens detained as enemy combatants at Guantanamo Bay have rights under the Suspension Clause of Article I, Section 9 of the United States Con stitution.

3. Whether, if aliens detained at Guantanamo Bay have such rights, the MCA violates the Suspension Clause.

4. Whether petitioners may challenge the adequacy of the judicial review available under the MCA and the Detainee Treatment Act of 2005, Pub. L. No. 109-148, Tit. X, 119 Stat. 2739, before they have exhausted such review.

5. Whether petitioners' detention is lawful.

In the Supreme Court of the United States

No. 06-1195




No. 06-1196







The opinion of the court of appeals (Pet. App. 1a-50a) is reported at 476 F.3d 981.1 The opinions of the district court are reported at 355 F. Supp. 2d 311 (Pet. App. 51a- 79a), and 355 F. Supp. 2d 443 (06-1196 Pet. App. 61-127).


The judgment of the court of appeals was entered on February 20, 2007. The petitions for a writ of certiorari were filed on March 5, 2007, and granted on June 29, 2007. The jurisdiction of this Court rests on 28 U.S.C. 1254(1).


1. In response to the attacks of September 11, 2001, Congress approved the President's use of "all necessary and appropriate force against those nations, organiza tions, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." Authorization for Use of Mili tary Force (AUMF), Pub. L. No. 107-40, § 2(a), 115 Stat. 224. The President ordered the Armed Forces to sub due both the al Qaeda terrorist network and the Taliban regime that harbored it in Afghanistan. Although our troops have removed the Taliban from power, armed combat with al Qaeda and the Taliban remains ongoing. In connection with those conflicts, the United States has seized many hostile persons and detained a small frac tion of them as enemy combatants. Approximately 340 of these enemy combatants are being held at the U.S. Naval Base at Guantanamo Bay, Cuba. Each of them was captured abroad and is a foreign national.

2. a. With the exception of two recently arrived de tainees, every Guantanamo Bay detainee has received a hearing before a military Combatant Status Review Tri bunal (CSRT). Those tribunals were created "to deter mine, in a fact-based proceeding, whether the individu als detained * * * are properly classified as enemy combatants and to permit each detainee the opportunity to contest such designation." 06-1196 Pet. App. 147.

During the CSRT proceedings, each detainee re ceived procedural protections modeled on an Army reg ulation (U.S. Dep't of the Army et al., Regulation 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees (Nov. 1, 1997) (Army Reg. 190-8)), which specifies procedures for determining the status of detainees under the Geneva Convention. Among other things, the CSRT procedures provided for each detainee to receive notice of the unclassified factual basis for his designation as an enemy combatant, as well as an opportunity to testify, call reasonably available witnesses, and present relevant and reasonably avail able evidence. 06-1196 Pet. App. 143-144. They also provided that each detainee would receive assistance from a military officer designated as his "personal repre sentative." Id. at 141. Another military officer, the re corder of each tribunal, was charged with presenting evidence regarding whether the detainee should be des ignated as an enemy combatant, including evidence that the detainee should not be so designated. Id. at 165. Each tribunal consisted of three military officers sworn to render an impartial decision and who were not "in volved in the apprehension, detention, interrogation, or previous determination of status of the detainee." Id. at 142. And each tribunal decision was subject to manda tory review first by the CSRT Legal Advisor and then by the CSRT Director. Id. at 163-164. The CSRT pro cess has led to determinations that 38 now-released de tainees were no longer enemy combatants. See Combat ant Status Review Tribunal Summary (visited Oct. 9, 2007) < d20050329csrt.pdf> (CSRT Summary).

In addition to the CSRT review process, the Depart ment of Defense also conducts an annual administrative examination of whether it is appropriate to release or repatriate an enemy combatant. The 328 administrative reviews conducted in 2006 resulted in determinations that 55 detainees (roughly 17%) should no longer be de tained at Guantanamo Bay. See Office of the Asst. Sec'y of Def. (Pub. Affairs), U.S. DoD, Annual Administra tive Review Boards for Enemy Combatants Held at Guantanamo Attributable to Senior Defense Officials (Mar. 6, 2007) < transcript.aspx?transcriptid=3902>. Since 2002, about 390 detainees have been transferred or released through this or other processes. See ibid. Today, approximately 340 detainees remain at Guantanamo Bay.

b. Each detainee's enemy combatant determination is based on a specific record unique to his case, and most of the CSRT conclusions are based in significant part on classified information. The CSRT decision reports were included in the factual returns to the habeas petitions and are part of the district court record.

3. Habeas corpus petitions have been filed on behalf of numerous Guantanamo Bay detainees. In Rasul v. Bush, 542 U.S. 466 (2004), this Court held that district courts had jurisdiction under 28 U.S.C. 2241 to consider habeas petitions filed by detainees at Guantanamo Bay. The Court reasoned that the statutory holding of John son v. Eisentrager, 339 U.S. 763 (1950), had implicitly rested on the narrow construction of the habeas statute adopted in Ahrens v. Clark, 335 U.S. 188 (1948), which did not survive the Court's decision in Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973). See Rasul, 542 U.S. at 477-479. Accordingly, this Court had no oc casion to revisit Eisentrager's constitutional holding and instead concluded, as a statutory matter, that Section 2241 "confer[red] * * * jurisdiction to hear petitioners' habeas corpus challenges to the legality of their deten tion at the Guantanamo Bay Naval Base." Id. at 484. The Court emphasized that it had decided "only whether the federal courts have jurisdiction," and not "the merits of petitioners' claims." Id. at 485.

4. After the remand in Rasul, numerous other Guan tanamo Bay detainees filed habeas petitions. Their ac tions include 13 cases, involving more than 60 detainees, which were coordinated in the district court for limited procedural purposes. Respondents moved to dismiss the claims of each detainee. The district court, acting on eleven of the consolidated cases, granted the motions in part and denied them in part, concluding that Due Pro cess Clause of the Fifth Amendment applies extra territorially to aliens held at Guantanamo Bay, and that the CSRT procedures are constitutionally deficient.

06-1196 Pet. App. 61-127 (Green, J.). The district court, acting on two other cases, granted the motions to dis miss in full, holding that the petitioners' detention was authorized by the AUMF, and that the Constitution does not protect aliens outside sovereign United States terri tory, including at Guantanamo Bay. Pet. App. 51a-79a (Leon, J.). Both decisions were appealed.

5. While these appeals were pending, Congress- recognizing that detainee litigation was consuming enor mous resources and disrupting the operation of the Guantanamo Bay Naval Base-enacted the Detainee Treatment Act of 2005 (DTA), Pub. L. No. 109-148, Tit. X, 119 Stat. 2739. Section 1005(e)(1) of that Act amend ed the federal habeas corpus statute to provide that "no court, justice, or judge shall have jurisdiction" to con sider habeas petitions filed by aliens detained at Guantanamo Bay. DTA § 1005(e)(1), 119 Stat. 2742.

Section 1005(e)(2) of the DTA provides that the Court of Appeals for the District of Columbia Circuit "shall have exclusive jurisdiction to determine the valid ity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant." DTA § 1005(e)(2)(A), 119 Stat. 2742. The DTA specifies that the court of appeals may determine whether a final CSRT decision "was consistent with the standards and procedures specified by the Secretary of Defense," and "to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determina tion is consistent with the Constitution and laws of the United States." § 1005(e)(2)(C), 119 Stat. 2742. Sec tion 1005(e)(3) creates a parallel exclusive-review mech anism for Guantanamo Bay detainees seeking to chal lenge final criminal convictions issued by military com missions. § 1005(e)(3)(A), 119 Stat. 2743; see Military Commission Order No. 1 (DoD Aug. 31, 2005) <http:// pdf>.

6. Several months later, this Court decided Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006). In Hamdan, the Court held that Section 1005(e)(1), the jurisdiction-re moving provision of the DTA, does not apply to habeas claims filed before the DTA was enacted. See id. at 2762-2769. In reaching that conclusion, the Court ob served that the statute made the exclusive-review provi sions in Section 1005(e)(2) and (3) of the DTA "expressly * * * applicable to pending cases." Id. at 2764 (citing DTA § 1005(h)(2), 119 Stat. 2743). The Court noted the absence of such language regarding Section 1005(e)(1), and therefore drew a "negative inference" as to Con gress' intent to apply Section 1005(e)(1) to pending cases. Id. at 2766.

7. In the wake of this Court's decision in Hamdan, Congress enacted the Military Commissions Act of 2006 (MCA), Pub. L. No. 109-366, 120 Stat. 2600. Section 7(a) of the MCA, 120 Stat. 2635, amends 28 U.S.C. 2241(e) to provide that "[n]o court, justice, or judge shall have ju risdiction 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 en emy combatant or is awaiting such determination." MCA § 7(a), 120 Stat. 2636. Section 7(a) also eliminates federal court jurisdiction, except as provided by Section 1005(e)(2) and (3) of the DTA, over "any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of such an alien. Ibid. The MCA provides that these amendments "shall take effect on the date of the enactment of this Act," and that they "shall apply to all cases, without exception, pending on or after the date of the enactment of this Act, which re late to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001." § 7(b), 120 Stat. 2636.

8. On February 20, 2007, the court of appeals dis missed these cases for lack of jurisdiction.

a. The court of appeals observed that each of peti tioners' pending habeas cases "relates to an 'aspect' of detention and * * * deals with the detention of an 'alien' after September 11, 2001." Pet. App. 6a. The court concluded that the MCA applies to those cases and eliminates federal court jurisdiction over the petitions. Id. at 6a-9a.

The court of appeals further held that the MCA is consistent with the Suspension Clause, U.S. Const. Art. I, § 9, for two independent reasons. First, the court noted that the Suspension Clause "protects the writ 'as it existed in 1789,'" Pet. App. 10a, but "the history of the writ in England prior to the founding" shows that "habeas corpus would not have been available in 1789 to aliens without presence or property in the United States," id. at 12a-13a. Second, the court held that, as aliens outside the sovereign territory of the United States, petitioners have no constitutional rights under the Suspension Clause. The court observed that in Eisentrager, this Court "rejected the proposition 'that the Fifth Amendment confers rights upon all persons, whatever their nationality, wherever they are located and whatever their offenses.'" Id. at 14a (quoting Eisentrager, 339 U.S. at 783); see id. at 15a (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990), and Zadvydas v. Davis, 533 U.S. 678, 693 (2001)).

The court of appeals also held that petitioners' sug gestion that this Court's decision in Rasul overruled the constitutional holding in Eisentrager was mistaken. Pet. App. 13a. The court explained that Rasul interpreted only the statutory right to habeas, so it "could not possi bly have affected the constitutional holding of Eisen trager," id. at 15a n.10, in which this Court explicitly held that aliens detained outside the sovereign territory of the United States do not have a constitutionally pro tected right to the writ, see 339 U.S. at 781.

Having concluded that the MCA eliminates jurisdic tion in petitioners' cases, the court vacated the district courts' decisions and dismissed the cases for want of jurisdiction. Pet. App. 19a-20a.

b. Judge Rogers dissented. She agreed that Con gress intended the MCA to withdraw federal jurisdiction over the detainees' claims, but she found the statute to be inconsistent with the Suspension Clause, because "Congress has neither provided an adequate alternative remedy * * * nor invoked the exception to the Clause by making the required findings to suspend the writ." Pet. App. 21a-22a.


I. The court of appeals correctly concluded that the Military Commissions Act does not violate the Suspen sion Clause. Petitioners are aliens with no connection to this country who were captured abroad in the course of an ongoing military conflict and who have at all times been detained outside the sovereign territory of the United States. They have had the benefit of a legal pro ceeding-employing procedures authorized by Con gress-to review their status, and they have been ad judged to be enemy combatants. In addition, they have the right to challenge those status determinations be fore the District of Columbia Circuit and may seek fur ther review in this Court if they do not prevail in the court of appeals. Petitioners, along with the other en emy combatants being held at Guantanamo Bay, enjoy more procedural protections than any other captured enemy combatants in the history of warfare.

The court of appeals properly rejected petitioners' claims that they are entitled to greater procedural protections than those afforded by the military and au thorized by Congress. First, as aliens held outside the sovereign territory of the United States, petitioners may not invoke the protections of our Constitution, including those guaranteed by the Suspension Clause. That con clusion is alone compelled by Johnson v. Eisentrager, 339 U.S. 763 (1950), and its progeny, and there is no ba sis to upset that longstanding constitutional rule here.

Second, even if petitioners could assert rights under the Suspension Clause, their claims would be unavailing. The baseline for reviewing Suspension Clause claims is the writ that existed in 1789. Because the common-law writ of habeas corpus would not have extended to alien enemy combatants held outside the territory of the United States, either in 1789 or at any later date, peti tioners cannot show the deprivation of any interest pro tected by the Suspension Clause.

Third, even if petitioners could show a historical pre cedent for habeas corpus in the extraordinary circum stances here, Congress has afforded them a constitu tionally adequate substitute for challenging their deten tion. Although Congress expressly chose to foreclose detainees from challenging their status via habeas, it decided that aliens detained at Guantanamo Bay as en emy combatants should receive administrative hearings before a military tribunal, subject to judicial review in the District of Columbia Circuit. That system builds additional protections upon those that are available even to conventional prisoners of war under the Geneva Con vention, and it was designed to track the requirements for due process deemed sufficient for American citizens in Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

The laws that establish that system-the Military Commissions Act and the Detainee Treatment Act- represent an effort by the political branches to strike an appropriate balance between the need to preserve lib erty and the need to accommodate "the weighty and sen

sitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States." Hamdi, 542 U.S. at 531 (plurality opinion). And the laws reflect pre cisely the kind of consultation between the President and Congress that "strengthens the Nation's ability to determine-through democratic means-how best" to confront national security threats during an ongoing military conflict. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2799 (2006) (Breyer, J., concurring).

II. There is no reason for this Court to pass on the merits of petitioners' detention before the lower court has done so. In any event, if the Court does review the merits of petitioners' detention in this case, it should hold that their detention is lawful. Congress has autho rized the President to use "all necessary and appropri ate force" against those "organizations" that "he deter mines" committed the terrorist attacks of September 11, 2001. Al Qaeda is such an organization, and this Court squarely held in Hamdi that detention is part and parcel of the force authorized by Congress. See 542 U.S. at 518 (plurality opinion). Petitioners are properly detained because they have been determined by a military tribu nal to be "part of or supporting Taliban or al Qaida forces." Pet. App. 81a. Petitioners may challenge that determination under the procedures authorized by Con gress, but they have provided no basis for upsetting that determination at this preliminary stage.


Four Terms ago, in Rasul v. Bush, 542 U.S. 466 (2004), a group of Guantanamo Bay detainees-including the Al Odah petitioners here-came to this Court claim ing through a habeas corpus action a right to military review of their enemy combatant designations under a process modeled on Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 3322, 75 U.N.T.S. 135, 140 (Geneva Convention or Convention). As their counsel proclaimed at oral argument, their request was modest, and if they were provided such military review, they "would not" be here. Tr. Oral Arg. at 10, Rasul, supra (No. 03-343).2 Since then, these same detainees-like the other Guan tanamo Bay detainees-have received an opportunity to contest their enemy combatant status before a military tribunal that affords protections greater than those out lined by Article 5 of the Geneva Convention, and have been granted by Congress a statutory right to challenge such status determinations in court. The detainees now enjoy greater procedural protections and statutory rights to challenge their wartime detentions than any other captured enemy combatants in the history of war. Yet they claim an entitlement to more. That contention should be rejected, and petitioners should be directed to raise their claims through the unprecedented review procedures established by Congress.


In the MCA, Congress plainly and unambiguously removed jurisdiction over habeas corpus petitions filed on behalf of aliens held at Guantanamo Bay as enemy combatants, MCA § 7, 120 Stat. 2635, and substituted in its place a review scheme that permits such detainees to challenge their CSRT enemy combatant determinations in a petition to the District of Columbia Circuit.3 Peti tioners contend that they have a constitutional right under the Suspension Clause to pursue relief in habeas corpus that trumps the scheme established by Congress. For several independent reasons, the court of appeals properly rejected that contention. First, as aliens held outside the sovereign territory of the United States, petitioners enjoy no rights under the Suspension Clause. Second, even if they could invoke the Suspension Clause, it would not entitle them to relief because they seek an expansion of the writ well beyond its historic scope. And third, the DTA in any event provides an adequate alter native to any habeas rights petitioners may have.

A. As Aliens Held Outside The Sovereign Territory Of The United States, Petitioners Do Not Enjoy Any Rights Un der The Suspension Clause

Petitioners' constitutional claim fails at the outset because, as aliens outside the sovereign territory of the United States, petitioners do not fall within the ambit of the Suspension Clause. See Pet. App. 14a-19a. "[C]on stitutional protections" must be interpreted "in light of the undoubted power of the United States to take ac tions to assert its legitimate power and authority abroad." United States v. Verdugo-Urquidez, 494 U.S. 259, 277 (1990) (Kennedy, J., concurring). The text and history of the Suspension Clause demonstrate that it does not confer rights on enemy combatants seized by our military and held abroad, and this Court's prece dents confirm that such aliens have no constitutional right to petition our courts for a writ of habeas corpus.4

1. Text and history demonstrate that the Suspension Clause has only domestic application

The framers recognized that wartime exigencies might require the suspension of habeas corpus. They therefore authorized suspension of the writ "when in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const. Art. I, § 9, Cl. 2. Significantly, both of those exigencies-rebellion and invasion-per tain to wartime conditions within the United States. Nor can there be any doubt but that the "public safety" referred to in the Clause refers to safety at home rather than abroad. The Suspension Clause does not speak to the application of the writ in the context of military op erations abroad. That omission is powerful evidence that the protection afforded by the Suspension Clause does not extend to overseas detentions of aliens in the first place. It would be absurd for Congress to have the power to suspend the writ within the United States but to lack any such authority, regardless of exigency, as to military operations on foreign soil.

The "Rebellion" and "Invasion" language of the Sus pension Clause parallels that of the provision authoriz ing Congress to employ the militia. Congress may "call[] forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions," U.S. Const. Art. I, § 8, Cl. 15-all of which occur domesti cally. See Authority of the President to Send Militia into a Foreign Country, 29 Op. Att'y Gen. 322 (1912); cf. Perpich v. DoD, 496 U.S. 334 (1990).

By contrast, the powers of Congress to "declare War" and create an army and a navy, see U.S. Const. Art. I, § 8, Cls. 11-13, and the power of the President as "Commander in Chief of the Army and Navy," id. Art. II, § 2, Cl. 1, are not geographically limited. The army and navy routinely operate beyond our borders, and, when doing so, they are not governed by the same con stitutional restrictions that apply domestically. For ex ample, in 1798, Congress enacted a statute authorizing the seizure of French ships on the high seas. See Act of July 9, 1798, ch. 68, 1 Stat. 578. The statute directed that all "French persons and others" aboard the seized ships "be delivered to the custody of the marshal, * * * who shall take charge for their safe keeping," and it pro vided no avenue for judicial review of such "custody," whether through habeas or otherwise. § 8, 1 Stat. 580. In Verdugo-Urquidez, this Court cited that statute's authorization of seizures as evidence that the framers did not understand the Fourth Amendment to "apply to activities of the United States directed against aliens in foreign territory." 494 U.S. at 267. The statute's autho rization of "custody" likewise demonstrates that the framers did not understand the Suspension Clause to limit the authority of Congress to order the imprison ment of enemy aliens captured on the high seas.

The founders recognized that the Constitution needed to make allowances for the special circumstances of the military and the possibility of invasion where it did apply. Accordingly, not only does the Suspension Clause allow suspension in cases of invasion or rebellion, but the Fifth Amendment limits its application "in cases arising in the land or naval forces." Equally important, the Constitution makes allowances for military opera tions abroad by limiting its reach. Then-Representative John Marshall raised both these points in his floor speech on the extradition of Thomas Nash:

The clause of the Constitution declaring that the trial of all crimes shall be by jury, has never even been construed to extend to the trial of crimes committed in the land and naval forces of the United States. Had such a construction prevailed, it would most probably have prostrated the Constitution itself, with the liberties and independence of the nation, before the first disciplined invader who should ap proach our shores. * * * If, then, this clause does not extend to offences committed in the fleets and armies of the United States, how can it be construed to extend to offences committed in the fleets and ar mies of Britain or of France, or of the Ottoman or Russian Empires?

10 Annals of Cong. 611-612 (1800), reprinted in 18 U.S. (5 Wheat.) 1 App. at 24. Accord Johnson v. Eisentrager, 339 U.S. 763, 783 (1950) ("Can there be any doubts that our foes would also have been excepted [from the reach of the Fifth Amendment], but for the assumption 'any person' would never be read to include those in arms against us?"); Ex parte Quirin, 317 U.S. 1, 41 (1942) (Quirin) (concluding that the Fifth and Sixth Amend ments did not guarantee rights to enemy combatants tried by military commissions even on the assumption that the military commissions there did not arise in the land forces and observing: "No exception is necessary to exclude from the operation of these provisions cases never deemed to be within their terms.").

Ultimately, the founders expected that the Congress and President, together, would determine the appropri ate process for individuals detained overseas during military operations-just as those political branches together share in important respects responsibility for the national defense and the constitutionally conferred war powers. See The Federalist No. 26, at 168 (Alexan der Hamilton) (C. Rossiter ed., 1961) ("The idea of re straining the legislative authority in the means of pro viding for the national defense is one of those refine ments which owe their origin to a zeal for liberty more ardent than enlightened."). There is no evidence that the framers intended such foreign military operations to be governed by the strictures of the Suspension Clause.5

2. Eisentrager confirms that the Suspension Clause does not confer rights on aliens held abroad

In Eisentrager, this Court held that aliens detained as enemies outside the United States are not "entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus." 339 U.S. at 777. That constitutional holding is controlling here and should not be overruled.

a. In rejecting a claim that alien prisoners in U.S.- occupied Germany were constitutionally entitled to ha beas, the Court in Eisentrager emphasized two key facts. First, the petitioners were aliens who lacked any voluntary connection to the United States. As the Court explained, "our law does not abolish inherent distinc tions recognized throughout the civilized world between citizens and aliens." 339 U.S. at 769. Accord Verdugo- Urquidez, 494 U.S. at 275 (Kennedy, J., concurring) ("The 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."); 10 Annals of Cong. at 611 (statement of Rep. John Marshall on the extradition of Thomas Nash), reprinted in 18 U.S. (5 Wheat) at 23 App. (noting, with respect to the Sixth Amendment, "certainly this clause in the Constitution of the United States cannot be thought obligatory on, and for the benefit of, the whole world").

Second, "at no relevant time" were the petitioners "within any territory over which the United States is sovereign." Eisentrager, 339 U.S. at 778. The Court observed that "extraterritorial application of organic law would have been so significant an innovation in the prac tice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary com ment" at the time of the framers. Id. at 784. But "[n]ot one word can be cited. No decision of this Court sup ports such a view. None of the learned commentators on our Constitution has even hinted at it. The practice of every modern government is opposed to it." Ibid. (cita tion omitted); see United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 318 (1936) ("Neither the Constitu tion nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens."); In re Ross, 140 U.S. 453, 464 (1891).

The Court recognized that extension of the writ to alien enemies held abroad would "hamper the war effort and bring aid and comfort to the enemy." Eisentrager, 339 U.S. at 779. Indeed, "[i]t would be difficult to devise a more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to sub mission to call him to account in his own civil courts and divert his efforts and attention from the military offen sive abroad to the legal defensive at home." Ibid.

This Court has repeatedly reaffirmed Eisentrager's constitutional holding. "It is well established that cer tain constitutional protections available to persons in side the United States are unavailable to aliens outside of our geographic borders." Zadvydas v. Davis, 533 U.S. 678, 693 (2001). Instead, this Court has declared, aliens "receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country." Verdugo-Urquidez, 494 U.S. at 271.

Likewise, the courts of appeals have consistently applied those precedents in various contexts. See, e.g., People's Mojahedin Org. of Iran v. United States Dep't of State, 182 F.3d 17, 22 (D.C. Cir. 1999) (People's Moja hedin) ("A foreign entity without property or presence in this country has no constitutional rights, under the due process clause or otherwise."), cert. denied, 529 U.S. 1104 (2000). And with respect to aliens detained at Guantanamo Bay specifically, the Eleventh Circuit has stated that aliens there "have no First Amendment or Fifth Amendment rights." Cuban Am. Bar Ass'n v. Christopher, 43 F.3d 1412, 1428, cert. denied, 515 U.S. 1142, and 516 U.S. 913 (1995).

b. Eisentrager compels the conclusion that peti tioner lack rights under the Suspension Clause. It is undisputed that petitioners are aliens who have no vol untary connections to the United States and who were seized abroad. They have not "accepted [any] societal obligations," Verdugo-Urquidez, 494 U.S. at 273, and their only previous "connection" to this country is that they have been part of forces who are hostile to it. In addition, petitioners have at all times been detained out side the United States, and they are currently being held at Guantanamo Bay, Cuba, an area that is not a sovereign territory of the United States. See pp. 33-36, infra. Thus, as in Eisentrager, "these prisoners at no relevant time were within any territory over which the United States is sovereign." 339 U.S. at 778; cf. Ver dugo-Urquidez, 494 U.S. at 269 (aliens are not "entitled to Fifth Amendment rights outside the sovereign terri tory of the United States").

Petitioners note (Br. 17) that the Eisentrager peti tioners were determined by a military tribunal to have been "actual enemies" of the United States. 339 U.S. at 778. The same is true here. As in Eisentrager, each petitioner has had "access to [a] tribunal," Rasul, 542 U.S. at 476-i.e., the CSRT-and has been individually determined to be an "actual enem[y]." Eisentrager, 339 U.S. at 778. Indeed, the petitioners here have more pro cess available to them than the petitioners in Eisen trager because they may challenge those tribunal deter minations in a United States court. That sets the pres ent juncture of this litigation apart from Rasul, where the detainees had been "without benefit of any legal pro ceeding to determine their status" and therefore could not "show that they were 'of friendly personal disposi tion' and not enemy aliens." Rasul, 542 U.S. at 487-488 (Kennedy, J., concurring in the judgment).6 As in Eisentrager, but unlike Rasul, petitioners have "already been subject to procedures establishing their status," id. at 488 (Kennedy, J., concurring in the judgment), and so Eisentrager fully supports the conclusion that they have no constitutional right to the writ, especially when a statutory substitute is provided.

c. While adopting petitioners' position would require overruling Eisentrager's constitutional holding, petition ers "fail to discuss the doctrine of stare decisis or the Court's cases elaborating on the circumstances in which it is appropriate to reconsider a prior constitutional deci sion." Randall v. Sorrell, 126 S. Ct. 2479, 2500 (2006) (Alito, J., concurring in part and concurring in the judg ment). That is a sufficient basis for declining to overrule a precedent, see id. at 2500-2501 (Alito, J.), especially one as longstanding and recently reaffirmed as Eisen trager. Moreover, consideration of the relevant factors underscores that there is no basis for overruling Eisentrager. As this Court has observed, "the very con cept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable." Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992). And "[e]ven in constitutional cases," stare decisis "carries such persuasive force that we have always required a departure from precedent to be supported by some 'spe cial justification.'" United States v. IBM, 517 U.S. 843, 856 (1996) (citation omitted).

Here, all of the traditional stare decisis factors coun sel strongly against overruling Eisentrager. The rule in Eisentrager "has in no sense proven 'unworkable,' rep resenting as it does a simple limitation beyond which" the Suspension Clause does not operate. Casey, 505 U.S. at 855 (citation omitted). To the contrary, by mak ing the application of constitutional rights turn on the easily administrable test of sovereignty, Eisentrager is far more workable than any alternative "de facto con trol" rule. See p. 25, infra. Moreover, compelling reli ance interests counsel against overruling Eisentrager. Cf. Casey, 505 U.S. at 855-856. There is perhaps no greater reliance interest than the interest of the Execu tive in relying on this Court's constitutional decisions in the conduct of military and foreign affairs.

Likewise, "[n]o evolution of legal principle" has un dermined the doctrinal foundations of Eisentrager. Casey, 505 U.S. at 857. Just the opposite is true. Since Eisentrager, this Court has repeatedly reaffirmed the proposition "that certain constitutional protections available to persons inside the United States are un available to aliens outside of our geographic borders." Zadvydas, 533 U.S. at 693; see Verdugo-Urquidez, 494 U.S. at 269. And in Rasul, 542 U.S. at 478-479, this Court went out of its way to make clear that it was not upsetting Eisentrager's constitutional holding, and its conclusion that Eisentrager's statutory holding had been superseded was based on a decision, Braden v. 30th Ju dicial Circuit Court, 410 U.S. 484, 495 (1973), that did not touch on Eisentrager's constitutional holding.7 There is, in short, no basis for overruling Eisentrager, either expressly or by necessary implication.

3. Indeterminate concepts of "jurisdiction" and "con trol" do not extend the Suspension Clause beyond United States territory

Petitioners assert (Br. 16; El-Banna Br. 20-25) that Eisentrager's constitutional holding is inapplicable here on the theory that the United States exercises complete control over Guantanamo Bay. That is incorrect. The constitutional holding of Eisentrager turned on territo rial sovereignty rather than indeterminate notions of control or jurisdiction. That is clear not only from the language of Justice Jackson's opinion, see 339 U.S. at 778, but also from the facts. After all, the military cer tainly had control over the Landsberg prison in post-war Germany in 1950. See id. at 766. And finding Eisen trager inapplicable to areas under United States "con trol" would overrule Eisentrager's constitutional holding and extend the Suspension Clause worldwide. For secu rity reasons alone, the United States would not detain captured combatants on any long-term basis at a facility that it did not control.

Indeed, a control or jurisdiction test is also in tension with the basic law of war requiring a captor to remove captured enemy combatants from the field of battle to a safe location away from the hostilities. That principle was recognized at the founding, cf. W. Winthrop, Mili tary Law and Precedents 789 n.98 (2d ed. 1920) (Win throp), and, at least with respect to prisoners of war, it has since been adopted by the Geneva Convention, see Geneva Convention Art. 19, 6 U.S.T. at 3334, 75 U.N.T.S. at 152 ("Prisoners of war shall be evacuated, as soon as possible after their capture, to camps situated in an area far enough from the combat zone for them to be out of danger.").

Moreover, making the application of the Suspension Clause turn on concepts of jurisdiction or control would involve the courts in sensitive foreign-affairs questions by requiring them to determine the level of de facto con trol exercised by the United States in the areas of for eign countries where detainees might be held. During wartime, the extent of control would vary over time and implicate a variety of sensitive foreign policy and mili tary considerations. At other times, judicial determina tions about the degree of United States control could complicate diplomatic relationships. Sovereignty, by contrast, offers an administrable bright-line rule that not only is deeply entrenched in this Court's existing precedent but, as explained next, is firmly grounded in the history of habeas corpus.

B. The Suspension Clause Does Not Entitle Petitioners To Any Additional Process Because Habeas Corpus Would Not Have Been Available To Them In 1789

Even assuming that petitioners may invoke any rights under the Suspension Clause, the MCA is consis tent with the Suspension Clause because, at common law, the writ of habeas corpus would not have extended to alien enemy combatants detained at Guantanamo Bay. As the court of appeals recognized, the Suspension Clause protects the writ "as it existed in 1789." Pet. App. 10a (quoting INS v. St. Cyr, 533 U.S. 289, 301 (2001)).8 And in 1789, habeas corpus would not have been available to petitioners, for two independent rea sons. First, the common-law writ was unavailable out side the sovereign territory of the Crown, and Guantanamo Bay is not sovereign United States terri tory. See Eisentrager, 339 U.S. at 768 ("We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdic tion."). Second, the common-law writ was simply not available to aliens detained as enemy combatants.

1. At common law, the writ of habeas corpus was not available outside the sovereign territories of the Crown

At common law, the writ of habeas corpus ran throughout the "dominion[s] of the Crown of England." Rex v. Cowle, 97 Eng. Rep. 587, 599 (K.B. 1759); see 3 William Blackstone, Commentaries *131 (Blackstone) (describing habeas as "running into all parts of the king's dominions"); accord 9 W.S. Holdsworth, A His tory of English Law 124 (1926). The Crown's dominions, in turn, consisted of territories under the Crown's sover eignty, such as England, Wales, and Ireland; the town of Berwick; the islands of Jersey, Guernsey, and Man; and the North American colonies. Although many of those territories exercised substantial legal autonomy from England and thus formed no part of its "kingdom," 1 Blackstone *93, or its "realm," Cowle, 97 Eng. Rep. at 598, all were sovereign territories of the Crown. See Sir Matthew Hale's the Prerogatives of the King 19 (D.E.C. Yale ed., 1976) (Hale) (defining "dominions" as consist ing of territories "such as the king hath in right of the crown of England as parcel thereof or annexed thereto" and naming the territories listed above) (emphasis added); 1 Blackstone *94-105 (listing only sovereign ter ritories in describing the Crown's "dominions").9

Accordingly, when delineating the reach of habeas in Cowle, Lord Mansfield listed only sovereign territories of the Crown:10 "We cannot send a habeas corpus to Scotland or to the electorate: but to Ireland, the Isle of Man, the plantations, and, as since the loss of the Dutchy of Normandy, they have been considered as an nexed to the Crown, in some respects, to Guernsey and Jersey, we may; and formerly, it lay to Calais; which was a conquest, and yielded to the Crown of England by the treaty." Cowle, 97 Eng. Rep. at 600 (footnote omitted).11 See 2 R. Chambers, A Course of Lectures on the English Law Delivered at the University of Oxford, 1767-1773, at 8 (Thomas M. Curley ed., 1986) ("[A] habeas corpus ad subjiciendum might always by common law, and may now by the express words of the Habeas Corpus Act, be directed to any county palatine, the Cinque Ports or any other privileged place within the kingdom of England, as well as to Wales, Berwick, or the Isles of Jersey and Guernsey."). The writ did indeed have an "extraordi nary territorial ambit," Rasul, 542 U.S. at 482 n.12 (quoting R. Sharpe, The Law of Habeas Corpus 188-189 (2d ed. 1989) (Sharpe))-at the time, the sun virtually did not set on Britain's empire-but its reach was not unlimited. And the line describing its reach was drawn at formal sovereignty, not at de facto control.

That conclusion is confirmed by the Habeas Corpus Act, 1679, 31 Car. 2, ch. 2 (Eng.) (1679 Act), enacted in response to abuses by the Earl of Clarendon, who was impeached for sending persons "to be imprisoned against law in remote islands, garrisons, and other places, thereby to prevent them from the benefit of the law." Proceedings in Parliament Against Edward Earl of Clarendon, Lord High Chancellor of England, for High Treason, and Other High Crimes and Misdemean ors: 15 and 19 Charles II. A.D. 1663-1667, in 6 Cobbett's Complete Collection of State Trials 291, 330 (T.B. Howell ed., 1816). The 1679 Act integrated two origi nally separate pieces of legislation that were directed at two distinct problems presented by the Clarendon affair.

The first piece of legislation was intended to rein force the reach of the common-law writ and end a vari ety of abuses that had made the writ ineffective. Thus, among other things, the Act confirmed that "an habeas corpus * * * 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; any law or usage to the contrary notwith standing." 1679 Act § 11. All of those places were sov ereign territories of the Crown (even if outside the king dom or realm of England). See H. Nutting, The Most Wholesome Law-The Habeas Corpus Act of 1679, 65 Am. Hist. Rev. 527, 529-530 (1960); 2 H. Hallam, The Constitutional History of England 232-233 (photo. re print 1989) (5th ed. 1846).

The second piece of legislation was directed at the problem of the transportation of prisoners beyond the reach of habeas. After all, merely confirming the writ's scope was insufficient if one within the territory of the Crown could be sent to territories where "no Habeas Corpus can reach him." W. Duker, A Constitutional History of Habeas Corpus 53 (1980) (quoting T. Lee in 1 A. Grey, Debates of the House of Commons 237 (1763)). Thus the Act provided that "no subject of this realm" who is "an inhabitant or resident of this kingdom of England, dominion of Wales, or town of Berwick upon Tweed, shall or may be sent prisoner into Scotland, Ire land, Jersey, Guernsey, Tangier, or into parts, garrison islands or places beyond the seas, which are or at any time hereafter shall be within or without the dominions of his Majesty." 1679 Act § 12 (last emphasis added). That list of places included territories within the Crown's dominions where practical difficulties made it impossible to issue the writ. See Cowle, 97 Eng. Rep. at 599-600. Significantly, the list also included territories outside the Crown's dominions where the writ simply did not run (e.g., Scotland, see id. at 600). The latter category would have included places under the Crown's control but not its sovereign authority.

Petitioners and their many amici offer not a single example of common law habeas reaching territories out side the Crown's sovereignty. They make much of the Indian cases (Br. 12; Al Odah Br. 14), but the Indian courts were set up by a charter that explicitly granted "the like jurisdiction and authority as may be executed by the chief justice and other justices of the court of King's Bench in England." Charter for Erecting a Su preme Court of Judicature at Fort William, in Bengal, Dated 26th March, 1774, in A Collection of Statutes Concerning the Incorporation, Trade, and Commerce of the East India Company xlv App. (F. Russell ed., 1794); id. at l. The Supreme Court of Judicature at Calcutta explicitly drew upon that statutory grant of power in issuing writs of habeas corpus. See Rex v. Mitter, 1 In dian Dec. (O.S.) 1008 (Calcutta S.C. 1781). Notably, be cause the statute only granted to the court "the powers of Justices of the * * * King's Bench" and not "the general powers of the * * * King's Bench," the Court at Calcutta concluded that while its justices severally had the power to issue habeas, it "has not authority to issue the writ" as a court. Ibid. Mitter demonstrates that the Indian courts would not have had authority to grant the writ in the absence of the statutory grant of power; nor is there any evidence that habeas ran from England to India.

Two cases from the first half of the twentieth century underscore that habeas was limited to the Crown's sov ereign territories. In Rex v. Earl of Crewe [1910] 2 K.B. 576, 622-623 (Eng.) (Crewe), Lord Justice Kennedy rea soned that habeas did not run to the Bechuanaland Pro tectorate (now Botswana) because it was not part of the King's dominions. "'His Majesty's dominions' means regions over and in which His Majesty has and exercises the whole collection or bundle of separable powers * * * which constitute territorial sovereignty." Id. at 622. Even though the chiefs of local tribes in Beu chuanaland had "abandoned all rights and jurisdiction" over the land to Britain, the King had "never annexed" it "to the possessions of the British Crown"; conse quently, it "cannot properly be treated as part of [the King's] dominions." Id. at 623.

Similarly, In re Ning Yi-Ching, 56 T.L.R. 3 (Vacation Ct. 1939) (Eng.), held that habeas did not run to Tien tsin, where four Chinese subjects were detained in the British Concession. The court ruled that Tientsin, over which Britain had "acquired a lease of land and had been granted by treaty the right to administer justice to its own subjects," id. at 6, was "part of a foreign country within which the King had certain jurisdiction," but had "never been acquired by settlement or otherwise" and thus was not part of the King's dominions. Id. at 5.12

Petitioners assert (Br. 11) that Rasul resolved the availability of the common-law writ outside the sover eign territory of the Crown. That is incorrect. The only question considered in Rasul was the scope of the ha beas statute, see 542 U.S. at 475, and the Court an swered that question by concluding that Guantanamo Bay detainees "are entitled to invoke the federal courts' authority under § 2241." Id. at 481. Only after reaching that conclusion-and answering the question pre sented-did the Court offer the observation that its in terpretation of the statute was "consistent with the his torical reach of the writ." Ibid. That discussion was therefore not necessary to the Court's holding.

In discussing the history of habeas corpus, Rasul stated that, "[a]t common law, courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm, as well as the claims of persons detained in the so-called 'exempt jurisdictions,' where ordinary writs did not run, and all other domin ions under the sovereign's control." 542 U.S. at 481-482 (footnotes omitted). That statement is correct, since the "exempt jurisdictions" and the "other dominions" cited were all sovereign territories of the Crown. The Court did not cite any case demonstrating that the 1789 writ would have extended to territories where Britain was not sovereign.13 See id. at 502-505 (Scalia, J., dissent ing). Moreover, the cases cited by the Court involved British subjects and therefore did not consider the ap plication of the writ to foreign nationals. See id. at 503- 504; note 12, supra. In any event, because it was ad dressed to the statutory question that the Court re solved in Rasul, the Court's brief historical discussion does not control the constitutional issue presented here and therefore does not foreclose a proper understanding of the historical backdrop against which the Suspension Clause was enacted.

2. The United States does not exercise sovereignty over Guantanamo Bay, Cuba

It is beyond dispute that Cuba, not the United States, possesses sovereignty over Guantanamo Bay. See Rasul, 542 U.S. at 475 (the United States lacks "ul timate sovereignty" over Guantanamo Bay). The United States operates the naval base at Guantanamo Bay only under the terms of written agreements between it and Cuba. Under those agreements, "the United States rec ognizes the continuance of the ultimate sovereignty of the Republic of Cuba" over the leased area, and "Cuba consents" to United States control over that area, but only "during the period" of the lease. Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, U.S.- Cuba, Art. III, T.S. No. 418 (Lease).14

This Court has held that provisions such as these do not effect a transfer of sovereignty. For example, in Vermilya-Brown Co. v. Connell, 335 U.S. 377 (1948) (Vermilya-Brown), the Supreme Court concluded that a leased military base in Bermuda, over which the United States had "substantially the same" rights as it has over the base in Guantanamo Bay, id. at 383, was "beyond the limits of national sovereignty." Id. at 390. Though the Court held the Fair Labor Standards Act of 1938, 29 U.S.C. 201 et seq., applicable to the base, it did so only after discerning a specific congressional intent to apply the statute "on foreign territory." See Ver milya-Brown, 335 U.S. at 390. Similarly, in United States v. Spelar, 338 U.S. 217 (1949), the Supreme Court held that the "foreign country" exception to the Federal Tort Claims Act, 28 U.S.C. 2680(k), applied to a U.S. military base in Newfoundland because the governing lease had "effected no transfer of sovereignty." Spear, 338 U.S. at 221-222. The lease terms were "the same" as the ones at issue in Vermilya-Brown. See id. at 218.

Nothing in Rasul upsets those settled principles. In Rasul, the Court addressed only the question whether the then-existing habeas statute applied to Guantanamo Bay. See 542 U.S. at 475. In answering that statutory question, the Court considered the extent of the "juris diction and control" that the United States exercises there. Id. at 480 (quoting Lease Art. III); see id. at 487 (Kennedy, J., concurring in the judgment). But as ex plained above, whatever relevance those concepts have for judging the scope of the habeas statute, "jurisdiction and control" did not define the reach of the common law writ. At common law, formal sovereignty was the touch stone, and the King, not the courts, decided whether to extend formal sovereignty to territory over which Brit ain exercised jurisdiction and control. See Crewe, [1910] 2 K.B. at 623 (opinion of Kennedy, L.J.) ("I never heard that you can force a Sovereign to take territory.").

Our own law is in accord with that common-law tradi tion. As this Court has explained, the "determination of sovereignty over an area is for the legislative and execu tive departments." Vermilya-Brown, 335 U.S. at 380; see Jones v. United States, 137 U.S. 202, 212 (1890) ("Who is the sovereign, de jure or de facto, of a territory, is not a judicial, but a political question."); Rose v. Himely, 8 U.S. (4 Cranch) 241, 272 (1808) (Marshall, C.J.) ("It is for governments to decide whether they will consider St. Domingo as an independent nation, and un til such decision shall be made, or France shall relin quish her claim, courts of justice must consider the an cient state of things as remaining unaltered, and the sovereign power of France over that colony as still sub sisting."), overruled in part on other grounds by Hudson v. Guestier, 10 U.S. (6 Cranch) 281 (1810). If courts were to second-guess the political branches regarding who is sovereign over a particular foreign territory, they would not only undermine the President's "lead role * * * in foreign policy," First Nat'l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 767 (1972), but also "compromise the very capacity of the President to speak for the Nation with one voice in dealing with other gov ernments." Crosby v. National Foreign Trade Council, 530 U.S. 363, 381 (2000); see American Ins. Ass'n v. Garamendi, 539 U.S. 396, 413 (2003).

Here, both political branches have recognized Cuba's ultimate sovereignty over Guantanamo Bay. See Lease Art. III; cf. DTA § 1005(g), 119 Stat. 2743 ("the term 'United States' * * * does not include the United States Naval Station, Guantanamo Bay, Cuba"); Cus toms Duties-Goods Brought into United States Naval Station at Guantanamo Bay, Cuba, 35 Op. Att'y Gen. 536, 539 (1929) (Guantanamo Bay is not a "possession" of the United States). The court of appeals was correct in concluding that the United States does not possess sovereignty over Guantanamo Bay, and that the common law writ of habeas corpus would therefore have been unavailable to aliens detained there. Pet. App. 10a-14a.

3. At common law, the writ of habeas corpus was not available to aliens detained as enemy combatants

In 1789, habeas corpus would have been unavailable to petitioners for an independent reason: the common- law writ did not extend to aliens detained as prisoners of war. "One generally understands by a prisoner of war a person captured during the warlike operations by the naval or military forces of the Crown." The King v. Su perintendent of Vine St. Police Station, [1916] 1 K.B. 268, 274 (Eng.) (Vine St.). Petitioners are not "prison ers of war" within the meaning of the Geneva Conven tion because, among other reasons, al Qaeda is not a party to the Convention, and neither al Qaeda nor the Taliban satisfies the requirements of Article 4(A)(2) of the Convention, such as having a fixed distinctive sign and "conducting their operations in accordance with the laws and customs of war." Art. 4(A)(2)(b) and (d), 6 U.S.T. at 3320, 75 U.N.T.S. at 138. Nevertheless, as confirmed enemy combatants they fall within the common-law understanding of "prisoners of war" as to whom habeas was traditionally unavailable. Indeed, given the greater protections available to prisoners of war, the historic unavailability of habeas to vindicate those protections would apply a fortiori to enemy spies and unlawful combatants who did not qualify as prison ers of war. Cf. Quirin, 317 U.S. at 31 (spies and "an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by de struction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war").

At common law, prisoners of war did not have to be captured on the battlefield; "real danger to the realm may * * * exist * * * at distances far from where the actual clash of arms is taking place." Vine St., [1916] 1 K.B. at 278. Nor did it matter where the prisoner was held; even those detained in England had no right to habeas. The "Rights of Prisoners taken in War" were determined by the "Judicial Power" of military officers, not by the civilian courts. M. Hale, The History of the Common Law of England 39 (1713).

Thus, in the Case of Three Spanish Sailors, 96 Eng. Rep. 775, 775 (C.P. 1779), the court held that habeas corpus did not lie for sailors "taken as prisoners of war on board of a Spanish privateer" and subsequently transported to England. Ibid. The court concluded, "[A]lien enemies and prisoners of war * * * [are] not entitled to any of the privileges of Englishmen; much less to be set at liberty on a habeas corpus." Id. at 776.

Similarly, in Rex v. Schiever, 97 Eng. Rep. 551, 551 (K.B. 1759), the court denied the writ to the "subject of a neutral power, taken on board of an enemy's ship" and transported to Liverpool, even though the Swedish peti tioner claimed to have been detained against his will on the French vessel and to have had no hostility to Eng land. The mere fact that he had been on board the French ship was enough for the court to conclude that the petitioner was, "upon his own shewing, clearly a prisoner of war, and lawfully detained as such." Id. at 552. See Furly v. Newnham, 99 Eng. Rep. 269, 269 (K.B. 1780) ("there could be no habeas corpus [ad testifi candum] to bring up a prisoner of war").

Prisoners of war lacked an entitlement to habeas because "the Crown in making a man a prisoner of war is acting under the royal prerogative (under which it wages war) and * * * its act, like certain other acts as a belligerent, is not examinable by the Courts." Lord McNair & A.D. Watts, The Legal Effects of War 95 (1966). Accordingly, when presented with a petition from a prisoner of war, "a complete answer to the writ will be that the applicant is both in fact and in law a pris oner of war detained by authority of the Crown." Sharpe 116. Thus, in Schiever, the court looked no fur ther than the fact that the petitioner had been found aboard an enemy ship. His status as a subject of a neu tral power, and his protestations that he had been forced to serve against his will, did not alter his status as a prisoner of war. See 97 Eng. Rep. at 551-552.

Petitioners rely (Br. 12 n.7) on Lockington's Case, Brightly 269 (Pa. 1813), and United States v. Williams (C.C. Va. Dec. 4, 1813), discussed in G. Neuman & C. Hobson, John Marshall and the Enemy Alien, 9 Green Bag 2d 39, 41, 44-45 (2005) (Neuman & Hobson), for the proposition that courts reached the merits when faced with habeas petitions by alien enemies.15 But nei ther case dealt with prisoners of war seized abroad and determined by the military to be combatants. Rather, both cases involved British citizens who had long resided in the United States and who became enemy aliens solely by operation of law during the war of 1812. See Neuman & Hobson 44-45. Indeed, the court in Locking ton's Case was emphatic that habeas was not available to prisoners of war, even those detained in the United States: "[A] prisoner of war * * * is not entitled to a privilege which never could have been intended for per sons of that description. A prisoner of war is subject to the laws of war; he is brought among us by force; and his interests were never, in any manner, blended with those of the people of this country." Brightly at 276 (Tilghman, C.J.); see id. at 289 (Yeates, J.) ("I do not view [petitioner] as a prisoner of war, subdued and forc ibly brought into the United States.").

C. The DTA Is An Adequate Substitute For Habeas Corpus

Finally, even in contexts to which the Suspension Clause is fully applicable, this Court has held that Con gress may withdraw habeas jurisdiction if it provides an "adequate and effective" alternative remedy. Swain v. Pressley, 430 U.S. 372, 381 (1977); St. Cyr, 533 U.S. at 314 n.38 ("Congress could, without raising any constitu tional questions, provide an adequate substitute through the courts of appeals."); see United States v. Hayman, 342 U.S. 205, 223 (1952); cf. Felker v. Turpin, 518 U.S. 651, 664 (1996) ("[J]udgments about the proper scope of the writ are 'normally for Congress to make.'") (quoting Lonchar v. Thomas, 517 U.S. 314, 323 (1996)). Impor tantly, the yardstick for judging the adequacy of the DTA alternative would be the limited and deferential role of habeas in the context of wartime detentions. DTA review is a fully adequate substitute for habeas corpus in this extraordinary wartime context. Thus, even if petitioners could assert rights under the Suspen sion Clause, and even if habeas would traditionally have been available to enemy combatants held overseas, the MCA would not violate those rights. Although the court of appeals had no occasion to reach that issue, it consti tutes an alternative ground for affirming the judgment.

1. At a minimum, petitioners should be required to ex haust their DTA remedies before challenging the con stitutionality of the MCA

As an initial matter, if this Court determines that petitioners have Suspension Clause rights and that ha beas would have been available to them at common law, it should decline to rule on the adequacy of the DTA at this time, but should instead require petitioners to ex haust their available DTA remedies. Because petition ers have not exhausted their remedies under the DTA, the exact nature of DTA review remains uncertain. This Court should not attempt to evaluate the adequacy of the DTA until the District of Columbia Circuit has had an opportunity to construe the statute and this Court can examine its operation in a concrete setting. Indeed, important questions remain subject to consideration or elaboration as to the scope of the review available under the DTA and will be fleshed out on a case-by-case basis. See, e.g., Bismullah v. Gates, No. 06-1197, 2007 WL 2067938 (D.C. Cir. July 20, 2007).16

The settled rule is that federal courts will decline to consider a habeas petition in circumstances where other judicial or administrative remedies have not been ex hausted. See Rose v. Lundy, 455 U.S. 509, 515-516 (1982). This requirement is most commonly applied in cases where the available remedies are in state-court proceedings, see 28 U.S.C. 2254(b)(1), but it also applies to federal proceedings, see, e.g., Hayman, 342 U.S. at 223, including those conducted by military tribunals, see Clinton v. Goldsmith, 526 U.S. 529, 537 n.11 (1999); Noyd v. Bond, 395 U.S. 683, 693-699 (1969); cf. Schle singer v. Councilman, 420 U.S. 738 (1975). The comity considerations that underlie the exhaustion requirement are especially pressing here, given that petitioners seek to challenge the concurrent judgment of Congress and the President regarding the conduct of an ongoing war. See Hamdi, 542 U.S. at 531 (plurality opinion); Rasul, 542 U.S. at 487 (Kennedy, J., concurring in the judg ment) ("[T]here is a realm of political authority over military affairs where the judicial power may not en ter.").

To be sure, in Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), this Court declined to require exhaustion of the military-commission process before considering a chal lenge to the system of military commissions unilaterally established by the President. The Court emphasized that, while courts ordinarily "should respect the balance that Congress struck," id. at 2770, the military commis sions were not established by Congress and did not pro vide for "independent review," id. at 2771. The contrast between this case and Hamdan, however, is striking. Congress enacted the statute at issue here in direct re sponse to Hamdan. Moreover, the DTA and the MCA expressly recognize and affirm the CSRT process. See DTA § 1005, 119 Stat. 2740; MCA § 3(a)(1), 120 Stat. 2603 (to be codified at 10 U.S.C. 948d(c) (2006)). Under the DTA and the MCA, petitioners will enjoy "inde pendent review" of the CSRT determinations in the Dis trict of Columbia Circuit. Accordingly, this Court should now "respect the balance that Congress struck" and require petitioners to avail themselves of the statu tory procedures created by Congress under the tradi tional rule that a habeas petitioner must first exhaust his remedies before permitting the detainees to chal lenge the scope of review in this Court. Especially when the pertinent question is the adequacy of a statutory alternative to habeas, it only makes sense to evaluate the question in light of the concrete application of the statute in a particular case.

2. The scope of any habeas review that would exist in these circumstances is very limited

If this Court does reach the merits of petitioners' Suspension Clause claim, the baseline for assessing the adequacy of the DTA must be the scope of the pre-exist ing habeas remedy. See Pressley, 430 U.S. at 381-382 (comparing the scope of the remedy provided with the scope of pre-existing habeas corpus remedy). In this case, the analysis must be made with reference to the historical procedures for identifying and detaining ene mies during wartime, as well as with reference to the limited scope of traditional habeas review of military detentions during wartime (where habeas has applied).

a. As explained above, see pp. 37-40, supra, there is no history of providing any habeas review to aliens cap tured abroad during an armed conflict. Only in recent times have those captured on a foreign battlefield been afforded any process, and that process has been ex tremely limited and reflected by the procedures outlined in Article 5 of the Geneva Convention and Army Regula tion 190-8, which provide, as do the CSRTs, for a mili tary tribunal to determine the status of a detainee. See Army Reg. 190-8, paras. 1-6(e)(3) and (5). Those mili tary procedures call for only a circumscribed review of an individual's status and do not include any mechanism for judicial review.

Even in cases where this Court has used habeas to review criminal judgments of military tribunals, the scope of that review has been extraordinarily limited. This Court has held that the habeas review afforded in that context does not examine the guilt or innocence of the defendant, nor does it examine the sufficiency of the evidence. Rather, it is limited to the question whether the military tribunal had jurisdiction. See In re Yamashita, 327 U.S. 1, 8 (1946) ("[O]n application for habeas corpus we are not concerned with the guilt or innocence of the petitioners."); id. at 23 ("[T]he commis sion's rulings on evidence and on the mode of conducting these proceedings against petitioner are not reviewable by the courts."); Quirin, 317 U.S. at 25 ("We are not here concerned with any question of the guilt or inno cence of petitioners."); see also Eisentrager, 339 U.S. at 786; id. at 797 (Black, J., dissenting) (extent of habeas review "is of most limited scope"); cf. Hamdi, 542 U.S. at 535 (plurality opinion) (recognizing that "the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting"). See generally Hiatt v. Brown, 339 U.S. 103, 111 (1950) ("It is well settled that 'by habeas corpus the civil courts exercise no super visory or correcting power over the proceedings of a court martial.'") (quoting In re Grimley, 137 U.S. 147, 150 (1890)); Burns v. Wilson, 346 U.S. 137, 139 (1953) (plurality opinion) ("[I]n military habeas corpus the in quiry, the scope of matters open for review, has always been more narrow than in civil cases."). So long as the tribunals have "lawful authority to hear, decide and con demn, their action is not subject to judicial review merely because they have made a wrong decision on dis puted facts." Yamashita, 327 U.S. at 8.

The type of review available under Yamashita and Quirin-a level of review deemed adequate for an alien enemy within sovereign United States territory who has been convicted by a military commission and sentenced to death-provides the most plausible yardstick for as sessing whether the review provided under the DTA affords an adequate and effective substitute remedy for any applicable habeas right. See Pressley, 430 U.S. at 381. Petitioners are being detained for non-punitive reasons during the ongoing conflict. See Hamdi, 542 U.S. at 518-524 (plurality opinion). Their right to judi cial review can certainly be no greater than that tradi tionally provided to those held for punishment-includ ing death-pursuant to the judgment of a military tribu nal.

While this case involves aliens captured and detained outside the United States with no constitutional habeas rights, it is notable that, even as to a United States citi zen held as an enemy combatant within the United States, the right of habeas review is highly circum scribed and requires deference to any military tribunal. The plurality in Hamdi held that while the citizen peti tioner had due process rights (in contrast to petitioners here), those rights could be satisfied by a straightfor ward and rudimentary procedure fashioned for wartime detention: "notice of the factual basis for his [enemy combatant] classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker." 542 U.S. at 533. Within that general framework, the proceedings "may be tailored to alleviate their uncommon potential to burden the Executive." Ibid. To that end, "[h]earsay * * * may * * * be ac cepted," and there may be "a presumption in favor of the Government's evidence." Id. at 533-534. And in review ing the "administrative record developed after" such a proceeding, courts may employ the "'some evidence' * * * standard of review." Id. at 537.

The plurality explained that the requirements of due process "could be met by an appropriately authorized and properly constituted military tribunal." Hamdi, 542 U.S. at 538. Indeed, the plurality observed, citing Army Reg. 190-8, that "military regulations already provide for such process in related instances." Ibid. (emphasis added). And even when there was no formal administra tive factfinding process, Hamdi expressly rejected "ex tensive discovery of various military affairs" in a federal court. Id. at 528. Instead, the plurality stated that the "factfinding process [must be] both prudential and incre mental." Id. at 539. Rather than allow discovery, the Court stated that a habeas petitioner should be allowed simply "to present his own factual case to rebut the Gov ernment's return." Id. at 538.

b. Petitioners assert (Br. 19-24) that habeas corpus traditionally provided a searching factual review. But with only two exceptions, none of the cases they cite in volved the detention of aliens determined by the military to be enemy combatants. Those exceptions are Schiever and the Case of Three Spanish Sailors, which petition ers contend (Br. 23) stand for the proposition that pris oners of war could "offer evidence supporting release." Cf. Legal Historians Amici Br. 6. Petitioners misread the cases. Although the courts discussed the factual allegations made by the detainees, they did not attempt to adjudicate the truth of those allegations. Instead, the basis for the decisions was that the detainees' claims were legally insufficient. See Schiever, 97 Eng. Rep. at 552 ("the Court thought this man, upon his own shewing, clearly a prisoner of war"); Case of Three Spanish Sail ors, 96 Eng. Rep. at 776 ("these men, upon their own shewing, are alien enemies and prisoners of war"). The cases therefore do not establish that the detainees would have been entitled to an evidentiary hearing in habeas; indeed, they do not even establish that the courts had jurisdiction over claims by aliens held as prisoners of war. See Arbaugh v. Y&H Corp., 546 U.S. 500, 511 (ex plaining that "'drive-by jurisdictional rulings' * * * should be accorded 'no precedential effect'") (quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 91 (1998)).

c. Even outside of the military context, the scope of habeas review of Executive Branch detention decisions is limited. This Court has explained that under tradi tional habeas review, "pure questions of law" are gener ally reviewable, but, "other than the question whether there was some evidence to support the order, the courts generally did not review the factual determinations made by the Executive." St. Cyr, 533 U.S. at 305-306 (footnote omitted); cf. Herrera v. Collins, 506 U.S. 390, 400 (1993) ("[H]abeas courts sit to ensure that individu als are not imprisoned in violation of the Constitu tion-not to correct errors of fact."); 28 U.S.C. 2254(e).17

3. The DTA remedy is adequate and effective

The remedy provided by the DTA and the MCA is neither "inadequate" nor "ineffective" to test the legal ity of petitioners' detention. Pressley, 430 U.S. at 381. Because petitioners challenge the DTA before they have exhausted its procedures, petitioners are in effect mak ing a facial challenge to the validity of the DTA proce dures. That challenge should accordingly be analyzed under the searching standard typically reserved for fa cial challenges, giving every benefit of the doubt to the validity of those procedures in actual cases.

The Defense Department established the CSRT pro cedures using as a baseline the procedures described by the Hamdi plurality-procedures the plurality deemed adequate under the Due Process Clause and described as "already" existing in Army Regulation 190-8. 542 U.S. at 538. Under Hamdi, it is sufficient for military enemy combatant determinations to provide a citizen with "notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker." Id. at 533. Thereafter, judicial review of the military determination may use the "some evidence" standard of review. Id. at 537. The CSRT process, followed by DTA review in the District of Columbia Circuit, more than satisfies these requirements.

a. The CSRT procedures afford notice: the recorder of a tribunal "shall provide the detainee in advance of the proceedings with notice of the unclassified factual basis for the detainees' designation as an enemy combat ant." 06-1196 Pet. App. 143; see Hamdi, 542 U.S. at 533 (plurality opinion).18

The CSRT procedures also afford an opportunity to rebut the Government's case: the detainee has a "right to testify or otherwise address the Tribunal in oral or written form, and to introduce relevant documentary evidence," 06-1196 Pet. App. 144; the detainee "shall be allowed to call witnesses if reasonably available, and to question those witnesses called by the Tribunal," ibid.; and the detainee "shall be allowed to attend all proceed ings," except as to "matters that would compromise na tional security if held in the presence of the detainee," 06-1196 Pet. App. 143; see Hamdi, 542 U.S. at 534 (plu rality opinion).

Finally, the CSRT procedures afford a neutral deci sionmaker: each CSRT is composed of three military officers, "none of whom was involved in the apprehen sion, detention, interrogation, or previous determination of status of the detainee." 06-1196 Pet. App. 142; see Hamdi, 542 U.S. at 533 (plurality opinion).

The CSRT procedures provide detainees a process similar to that called for by Article 5 of the Geneva Con vention, as implemented by Army Regulation 190-8. The CSRT and Army Regulation 190-8 procedures have the following features in common, among others:

oTribunals are composed of three commissioned officers plus a non-voting officer who serves as re corder;19

oTribunal members are sworn to faithfully and im partially execute their duties;20

oThe detainee has the right to attend the open por tions of the proceedings;21

oAn interpreter is provided if necessary;22

oThe detainee has the right to call relevant wit nesses if reasonably available, question witnesses called by the tribunal, and testify or otherwise ad dress the tribunal;23

oThe detainee may not be forced to testify;24

oThe tribunals make decisions by majority vote;25

oThe decision is made based on a preponderance of the evidence;26

oThe tribunals create a written report of their de cision;27 and

oThe tribunal record is reviewed by the Staff Judge Advocate for legal sufficiency.28

The CSRT procedures are more detailed than Army Regulation 190-8 and, in several respects, provide greater procedural protections than those required for Article 5 Tribunals. For example:

oThe CSRTs contain express qualifications to en sure the tribunal's independence. See 06-1196 Pet. App. 150-151. There are no comparable qualifica tions for Article 5 Tribunals.

oThe CSRTs provide the detainee a personal rep resentative to assist him in preparing his case. See 06-1196 Pet. App. 168-172. There is no such require ment in Article 5 Tribunals.

oIn CSRTs, the Recorder is obligated to provide to the Tribunal "evidence to suggest that the detainee should not be designated as an enemy combatant." See 06-1196 Pet. App. 165 (emphasis added). There is no such requirement in Article 5 Tribunals.

oIn CSRTs, the detainee is provided with an un classified summary of the evidence supporting his detention in advance of the hearing. See 06-1196 Pet. App. 143. There is no such requirement in Arti cle 5 Tribunals.

oCSRTs allow the detainee to introduce relevant documentary evidence. See 06-1196 Pet. App. 155. Article 5 Tribunals provide no analogous guarantee.

oEvery CSRT decision is automatically reviewed by a higher authority, who may return the record to the tribunal for further proceedings. See 06-1196 Pet. App. 164. There is no counterpart provision for Article 5 Tribunals.

Under the plurality opinion in Hamdi, these proce dural protections are more than sufficient for a military determination that an American citizen in this country may be held as an enemy combatant. A fortiori, they are sufficient for alien enemy combatants captured and detained outside the United States.

b. Likewise, the DTA's judicial review mechanisms more than satisfy the Hamdi plurality's statement of the appropriate scope of review of military enemy-combat ant determinations. See Hamdi, 542 U.S. at 537-538 (plurality opinion). Section 1005(e)(2)(C) of the DTA specifies the District of Columbia Circuit's "[s]cope of review" of the CSRT's enemy-combatant determination. The court must consider "whether the status determina tion of the [CSRT] with regard to such alien was consis tent with the standards and procedures specified by the Secretary of Defense for [CSRTs] (including the re quirement that the conclusion of the Tribunal be sup ported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government's evidence)." § 1005(e)(2)(C)(i), 119 Stat. 2742. In addi tion, the court must decide, "to the extent the Constitu tion and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitu tion and laws of the United States." § 1005(e)(2)(C)(ii), 119 Stat. 2742. The judgment of the District of Colum bia Circuit, in turn, is reviewable in this Court. See 28 U.S.C. 1254(1). Thus, the statute allows for ample judi cial review both of the procedures used by the CSRTs and of the evidentiary sufficiency of their determina tions.

4. Petitioners' objections to the CSRT process lack merit

Petitioners identify various perceived deficiencies in the CSRT procedures. Even if petitioners were correct, their arguments would not establish that DTA review is inadequate. Under the DTA, the District of Columbia Circuit must decide, "to the extent the Constitution and laws of the United States are applicable, whether the * * * [CSRT] standards and procedures * * * [are] consistent with the Constitution and laws of the United States." DTA § 1005(e)(2)(C)(ii), 119 Stat. 2742. Peti tioners can therefore present their arguments to the District of Columbia Circuit, and if the arguments are meritorious, the District of Columbia Circuit will pro vide relief. The relief available there would necessarily ensure that the combined effect of the CSRTs and the DTA satisfy the Suspension Clause (to the extent it is applicable). That provides a complete answer to petition ers' objections to the CSRT process. In any event, peti tioners' criticisms of the CSRT process are not only pre mature but also without merit.

a. Petitioners complain (Br. 31-32; Al Odah Br. 35) that CSRTs do not permit them to be represented by counsel. They present no evidence that aliens captured on a foreign battlefield and held as enemy combatants have ever been given hearings regarding their enemy combatant status at which they were represented by counsel. To the contrary, the procedures set forth in Army Regulation 190-8-which the Hamdi plurality thought sufficient even for citizens detained as enemy combatants-provide no right to counsel.29 Indeed, even when the criminal punishment of American citizens is at issue, there is generally no right to counsel in adminis trative proceedings like the CSRTs. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 569-570 (1974) (prison disci plinary hearing); Gagnon v. Scarpelli, 411 U.S. 778, 787 (1973) (parole revocation hearing).

Petitioners' alleged right to administrative counsel is even more implausible because the CSRTs afford each detainee a personal representative. That individual is a "military officer, with the appropriate security clear ance" assigned to the detainee "for the purpose of assist ing the detainee" in the CSRT process. 06-1196 Pet. App. 141. The personal representative may attend the entire CSRT proceeding, even where classified informa tion is at issue. Id. at 143. The personal representative fulfills some of the most important functions of counsel: he is required to "explain the nature of the CSRT pro cess to the detainee, explain his opportunity to present evidence and assist the detainee in collecting relevant and reasonably available information and in preparing and presenting information to the Tribunal." Id. at 168. Finally, the personal representative may "comment upon classified information" that bears upon the de tainee's status. Id. at 170.

b. Petitioners also object (Al Odah Br. 33-34; El- Banna Br. 33-38) that they were not given access to clas sified information that, in most cases, formed part of the basis for the government's determination that they were enemy combatants. In effect, petitioners contend that the armed forces cannot legally capture al Qaeda terror ists on a foreign battlefield, and then detain them abroad as enemy combatants, without giving them ac cess to classified information about our sources and methods of intelligence against al Qaeda. Petitioners cite no authority for that startling proposition, which is inconsistent with the conduct of every armed conflict in this country's history; inconsistent with Army Regula tion 190-8, which specifically permits a tribunal to hold proceedings closed to the detainee; and inconsistent with Hamdi, which recognized that, even where the liberty of a citizen is at issue, the danger that "discovery into mili tary operations" might "intrude on the sensitive secrets of national defense" is a consideration "properly taken into account in our due process analysis." 542 U.S. at 532 (plurality opinion).

c. Further, petitioners claim (Br. 27-29; Al Odah Br. 33) that the CSRT procedures precluded them from sub mitting rebuttal evidence. That contention ignores the provisions of those procedures that allow the detainee to testify, to seek the testimony of reasonably available witnesses, and to seek and obtain other reasonably avail able evidence. 06-1196 Pet. App. 144. Detainees are also free to present claims in their DTA proceedings that any particular exclusion of evidence was inconsis tent with the CSRT's standards and procedures or with applicable law. See DTA § 1005(e)(2)(C), 119 Stat. 2742.

More importantly, petitioners' claim (Al Odah Br. 35) that DTA counsel is precluded from "supplement[ing] the record" fails to account for the fact that counsel in cases brought on behalf of detainees have actively par ticipated in submitting material for review by the De partment of Defense in considering whether to reopen CSRT proceedings.30 In one recent case, a new CSRT was ordered in response to counsel's submission of new evidence bearing on a detainee's status. See Respon dent's Motion to Remand, Al Ginco v. Gates, No. 07- 1090 (D.C. Cir. filed Sept. 13, 2007).

d. Petitioners assert (Br. 29-30; Al Odah Br. 36; El- Banna Br. 42-45) that the CSRT decisionmaker is not "neutral." But CSRT members cannot have been in volved "in the apprehension, detention, interrogation, or previous determination of status" of the detainees and must swear an oath to discharge their duties faithfully and impartially. 06-1196 Pet. App. 142. That is more protective than Army Regulation 190-8, which includes no standard for neutrality. Furthermore, far from being a rubber stamp, the CSRT process has led to favorable determinations for 38 detainees. See CSRT Summary.

In petitioners' view, the CSRTs cannot fairly adjudi cate individual cases because their members are military officers, and their superiors-the President and the Sec retary of Defense-have stated that the detainees are enemy combatants. That argument ignores not only the dozens of cases in which favorable determinations were made for detainees but also the fact that the CSRT offi cers have been given orders, by the Deputy Secretary of Defense and the Secretary of the Navy, to make a "neu tral" and independent evaluation of the status of each detainee. 06-1196 Pet. App. 142. They can therefore be expected to act as neutral decisionmakers by faithfully carrying out the role assigned to them by their superi ors. Cf. Yamashita, 327 U.S. at 5 (noting that Army officers, in defending accused war criminal before mili tary commission, "demonstrated their professional skill and resourcefulness and their proper zeal for the de fense with which they were charged"). Moreover, peti tioners' reasoning would preclude the use of any mili tary tribunal to adjudicate enemy-combatant status, because all potential panelists would be subordinates of the President and the Secretary of Defense. Petitioners' theory is thus inconsistent with Hamdi's recognition that, even for citizens detained in the United States, a "military tribunal" can satisfy the due process require ment of a "neutral decisionmaker." 542 U.S. at 537-538 (plurality opinion).

e. Finally, petitioners argue (Al Odah Br. 37) that the DTA is inadequate because a "habeas court would not accept evidence procured through torture or coer cion," whereas the "DTA permits such evidence." But the CSRT procedures require tribunals to assess whether the evidence is "relevant and helpful" and whether hearsay evidence is "reliab[le]." 06-1196 Pet. App. 158. Those rules permit the tribunals to reject un reliable evidence based on any concerns regarding coer cion that may have arisen in the proceedings before them. To the extent the rules are deemed insufficient in any concrete situation to ensure that determinations are not based on coerced testimony, the District of Columbia Circuit can say so on DTA review in a case that actually presents such an issue.

4. Petitioners' objections to the scope of DTA review lack merit

a. Petitioners contend (Br. 29; Al Odah Br. 31-32) that they are entitled to "plenary" factual review of the basis for their detention. That is not the law. That is not what habeas has ever provided in the context of mili tary detentions during wartime, and that is not what this Court found necessary for citizens detained in the United States. Instead, this Court has endorsed very limited, if any, habeas review of the factual findings of an Executive Branch tribunal. See Hamdi, 542 U.S. at 537 (plurality opinion) ("some evidence" standard); St. Cyr, 533 U.S. at 306 (same); Yamashita, 327 U.S. at 8 (no factual review at all). The DTA review standard is more rigorous than either of those standards, as the court of appeals is authorized to determine whether the CSRT permissibly applied the requirement that its deci sion be "supported by a preponderance of the evidence." DTA § 1005(e)(2)(C)(i), 119 Stat. 2742.

b. Petitioners also suggest (Al Odah Br. 38) that the DTA is inadequate because they cannot challenge the "[l]egal basis for detention." That ignores the express statutory requirement that the court of appeals consider "whether the use of [the CSRT's] standards and proce dures * * * is consistent with the Constitution and laws of the United States." DTA § 1005(e)(2)(C)(ii), 119 Stat. 2742. That provision allows a petitioner to argue that the CSRT standards and procedures-including the definition of an enemy combatant, 06-1196 Pet. App. 150-is inconsistent with the AUMF.

c. Petitioners contend (Br. 31; El-Banna Br. 45) that the CSRT process is not sufficiently speedy. There is no reason to accept that contention: the CSRTs were com pleted years ago. The first DTA actions were filed just over a year ago, and the District of Columbia Circuit has begun to outline the procedures governing its review, see Bismullah, 2007 WL 2067938, and moved to imple ment those procedures in many of the cases filed before it.31 In addition, while petitioners are of course free to raise whatever appropriate legal challenges they like to existing procedures, the volume and nature of chal lenges that the detainees have made here also have had an impact on the process. Moreover, in light of the lack of historical precedent for the use of habeas in this con text, novel legal questions would (and did, pre-DTA) arise in habeas litigation as well. Indeed, it is unclear why habeas would have any comparative advantage in terms of relative speediness over DTA review.

d. Finally, petitioners argue (Br. 30; Al Odah Br. 39) that the DTA is deficient because the court of appeals lacks express authority to grant release. This argument overlooks the backdrop against which the DTA was en acted. When a CSRT has determined that a detainee is no longer an enemy combatant, the government has taken on itself to transfer the detainee out of Guan tanamo Bay and United States custody. Thus far, every Guantanamo Bay detainee who has been determined no longer to be an enemy combatant has been released. See Notice of Transfer at 3, Kiyemba v. Bush, No. 05- 5487 (D.C. Cir. filed Nov. 21, 2006).

In addition, contrary to petitioners' assumption, the result of a successful habeas petition generally is not immediate release; instead, it is often a remand for fur ther proceedings. See, e.g., Chessman v. Teets, 354 U.S. 156, 165-166 (1956); Mahler v. Eby, 264 U.S. 32 (1924). In the criminal context, for example, habeas courts fre quently order a retrial with correct procedures. See Hilton v. Braunskill, 481 U.S. 770, 775 (1987). Like wise, this Court did not order the petitioner in Hamdi released, even though the military had offered him no process at all to test the validity of his detention. Rather, the Court remanded to allow the application of appropriate procedures. See 542 U.S. at 539 (plurality opinion).

Ordering immediate release rather than a remand would be particularly inappropriate in this context, given the primary role of the Executive in determining when military detention of the enemy is necessary and the sensitive diplomatic concerns raised by the transfer of aliens out of Guantanamo Bay to other countries. Moreover, the merits argument put forward by the petitioners-that the CSRTs misapplied the AUMF and violated procedural due process-would plainly call for remand rather than outright release, since the detainees might well be determined to be enemy combatants even under "correct" procedures and a different interpreta tion of the AUMF. In any event, petitioners may direct to the District of Columbia Circuit any arguments about the appropriate relief in the case (if any) in which such a detainee is not released.32


Petitioners further contend that their detention is unlawful because Congress did not authorize the detentions, and the detentions violate the Fifth Amend ment. Those arguments have not been considered by the court of appeals. However this Court resolves the other issues in this case, this challenge should be ad dressed in the first instance by either the court of ap peals under the DTA or the district court and the court of appeals in habeas. Either way, this Court could con sider the issue after it has been fully litigated below. There is no reason for the Court to act as a court of first view, rather than review, on these issues.

A. The AUMF Authorizes The Detention Of Enemy Com batants As Defined By The CSRT Process

Petitioners argue (Br. 33-44) that the AUMF does not authorize their detention. That argument rests on a misreading of the AUMF, is directly contradicted by this Court's construction of the AUMF in Hamdi, and misunderstands the law of armed conflict.

1. The AUMF authorizes the President to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, autho rized, committed or aided the terrorist attacks" of Sep tember 11, 2001, "or harbored such organizations or per sons." AUMF § 2(a), 115 Stat. 224. In Hamdi, this Court held that the AUMF "clearly and unmistakably" authorized the detention of a citizen enemy combatant captured on the battlefield in Afghanistan. 542 U.S. at 519 (plurality opinion). The Court explained that "[t]here can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for [the September 11] attacks, are individuals Congress sought to target in passing the AUMF." Id. at 518. The same goes for indi viduals who are associates of al Qaeda itself.

One element of the use of force is the detention of those forces determined to be enemies. See Hamdi, 542 U.S. at 518 (plurality opinion) ("The capture and deten tion of lawful combatants and the capture, detention, and trial of unlawful combatants, by 'universal agree ment and practice,' are 'important incident[s] of war.'") (quoting Quirin, 317 U.S. at 28, 30). The CSRT defini tion of "enemy combatant" allows the detention of any "individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition part ners, including any person who has committed a bellig erent act or has directly supported hostilities in aid of enemy armed forces." Pet. App. 81a. That definition reflects a reasonable implementation of the President's responsibility to "determine[]" the object of the use of force authorized by the AUMF.

2. Petitioners make several challenges to the defini tion of "enemy combatant," but none withstands scru tiny. First, petitioners argue (Br. 35-36) that the AUMF requires a specific nexus between each petitioner and the September 11 attacks. That argument finds no sup port in the text of the AUMF and is foreclosed by Hamdi, where this Court held that the AUMF autho rized the detention of an individual who had associated with the Taliban but had no direct connection to Septem ber 11. 542 U.S. at 518 (plurality opinion).

Second, petitioners contend (Br. 37 n.34) that the AUMF imposes territorial limits on the battlefield and precludes the detention of persons found in friendly na tions. But the language of the AUMF imposes no geo graphic limits on the President's authority to use force. Moreover, nothing in the law of armed conflict prevents a party to a conflict from taking custody of and captur ing enemy combatants captured on the territory of a cooperating state. See, e.g., Miller v. United States, 78 U.S. (11 Wall.) 268, 311 (1871). Indeed, in Quirin, this Court upheld the detention of enemy combatants appre hended within the United States. See Hamdi, 542 U.S. at 518 (plurality opinion) (discussing Quirin). And Hamdi himself was held in the United States. Id. at 510.

Third, petitioners assert that "support" for al Qaeda or the Taliban is not sufficient to authorize detention; instead, to be properly detained, an individual must "take a direct part in hostilities." Br. 39 (citations omit ted). In support of that claim, they rely on Hamdi, which upheld the President's authority to detain individ uals who were "part of or supporting forces hostile to the United States" and who had themselves "engaged in an armed conflict against the United States." 542 U.S. at 516 (plurality opinion). Nothing in Hamdi even re motely suggests, however, that the AUMF encompasses only those individuals.

Nor does the law of armed conflict suggest such an implied limitation. To the contrary, the laws of war- including the Geneva Convention-have long permitted the detention of members or supporters of hostile forces. See, e.g., Winthrop 789 ("class of persons" sub ject to detention includes "civil persons * * * in imme diate connection with an army, such as clerks, telegra phists, aeronauts, teamsters, laborers, messengers, guides, scouts, and men employed on transports and military railways"); Adjutant Gen.'s Off., War Dep't, General Orders No. 100, Instructions for the Govern ment of Armies of the United States in the Field, 7 (1863) (Art. 15) ("Military necessity * * * allows of the capturing" of "every armed enemy" and, in addition, "every enemy of importance to the hostile government, or of peculiar danger to the captor."); J. Baker & H. Crocker, The Laws of Land Warfare Concerning the Rights and Duties of Belligerents as Existing on Au gust 1, 1914, at 35 (1919) ("Persons belonging to the aux iliary departments of an army * * * such as commis sariat employees, military police, guides, balloonists, messengers, and telegraphists * * * are still liable to capture."); Geneva Convention Art. 4(A)(4), 6 U.S.T. at 3320, 75 U.N.T.S. at 138 (prisoners of war include "[p]ersons who accompany the armed forces without actually being members thereof, such as * * * war cor respondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces"); id. Art. 33, 6 U.S.T. at 3344, 75 U.N.T.S. at 162 (permitting the retention of "medical personnel and chaplains").

Thus, the laws of war allow for detention not only of uniformed members of an armed force, but also of those persons supporting the enemy. See Eisentrager, 339 U.S. at 765 (noting petitioners' allegation that "their employment * * * was by civilian agencies of the Ger man Government" but concluding that their "exact affili ation is * * * for our purposes immaterial"); Miller, 78 U.S. (11 Wall.) at 312 ("[N]o recognized usage of nations excludes from the category of enemies those who act with, or aid or abet and give comfort to enemies, whether foreign or domestic."). That rule has always been sensible; today, it is essential. Congress has autho rized a war against an international terrorist organiza tion with no uniformed soldiers, and the detention of its members and supporters is a critical component of any such war.

Petitioners cite (Br. 39-41) certain rules of engage ment governing the targeting of civilians in war zones for violent attack. But the capture and detention of en emy combatants is a fundamental incident of warfare. Thus, as petitioners concede (Br. 41 n.41), the military may clearly detain an enemy soldier even in circum stances where the use of deadly force might not be ap propriate because, for example, he has surrendered. Likewise, if a member or supporter of al Qaeda is not brandishing a weapon, the rules of engagement might preclude the use of lethal force against that person, but they do not bar his detention as an enemy.

Ultimately, much of petitioners' argument rests on the flawed premise (Br. 39) that they are "civilians." But a member or supporter of an entity engaged in armed conflict against the United States is not, in any relevant sense, a "civilian." Al Qaeda is unquestionably such an entity-as recognized by Congress, see AUMF § 2(a), 115 Stat. 224; the President, see Military Order of Nov. 13, 2001, 3 C.F.R. 918 (2001); America's allies, see, e.g., Statement of Lord Robertson, NATO Sec'y Gen. (Oct. 2, 2001) < 2001/s011002a.htm> (describing the September 11 at tack as an "armed attack" under Article 5 of the North Atlantic Treaty, Apr. 4, 1949, 63 Stat. 2241, 2244, 34 U.N.T.S. 243, 246); and al Qaeda itself, see, e.g., World Islamic Front, Jihad Against Jews and Crusaders (Feb. 23, 1998) < 980223-fatwa.htm>. The AUMF plainly authorizes peti tioners' detentions.

3. Finally, even apart from the AUMF, petitioners' detention is independently justified by the President's constitutional authority. By its terms, Article II of the Constitution vests "[t]he executive Power" of the United States in the President, whom it designates as the "Commander in Chief of the Army and Navy of the Unites States." U.S. Const. Art. II, §§ 1, 2. Construing those provisions, this Court has long held that the Presi dent, as Commander in Chief, "is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the man ner he may deem most effectual to harass and conquer and subdue the enemy." Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850); see, e.g., The Prize Cases, 67 U.S. (2 Black) 635, 668, 670 (1863); Hirota v. MacArthur, 338 U.S. 197, 215 (1949) (Douglas, J., concurring) ("[T]he capture and control of those who were responsible for the Pearl Harbor incident was a political question on which the President as Commander-in-Chief, and as spokesman for the nation in foreign affairs, had the final say."). In adopting the AUMF, Congress itself recog nized that "the President has authority under the Con stitution to take action to deter and prevent acts of in ternational terrorism." AUMF Preamble, 115 Stat. 224 (emphasis added).

As in Hamdi, see 542 U.S. at 518 (plurality opinion), however, there is no need here for the Court to decide the President's ability to act without congressional back ing. The AUMF clearly authorizes these detentions and therefore this is a circumstance where the President acts pursuant to his own long-recognized authority and congressional authorization and so "his authority is at its maximum." Youngstown Sheet & Tube Co. v. Saw yer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) (Youngstown). His actions are "supported by the stron gest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily on any who might attack it." Id. at 637 (Jackson, J., concurring). Petitioners have not come close to meet ing that burden here.

B. Petitioners' Detention Does Not Violate The Due Pro cess Clause

Petitioners contend (Br. 44-49) that their detention violates the Fifth Amendment. That contention fails for two independent reasons. First, as aliens captured and held outside the sovereign territory of the United States, petitioners have no due process or other consti tutional rights. Second, petitioners have been afforded a level of process that would be sufficient in the extraor dinary circumstances of this case even if the Fifth Amendment were applicable.

1. It is well established that the Fifth Amendment, including its Due Process Clause, does not apply to aliens who have no presence in any territory over which the United States is sovereign. See Eisentrager, 339 U.S. at 784-785. In Verdugo-Urquidez, the Court stated that "we have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign terri tory of the United States" in "emphatic" terms. 494 U.S. at 269; see id. at 275 (Kennedy, J., concurring); Zadvy das, 533 U.S. at 693 (The "Fifth Amendment's protec tions do not extend to aliens outside the territorial boundaries" of the United States.). Eisentrager and its progeny make clear that the applicability of the Fifth Amendment to aliens turns on whether the United States is sovereign, not whether it merely exercises con trol, over the territory at issue. See Verdugo-Urquidez, 494 U.S. at 269 (aliens are not "entitled to Fifth Amend ment rights outside the sovereign territory of the United States" (emphasis added)). Accordingly, for the same reason that there is no constitutional right to ha beas here, the Fifth Amendment also does not protect petitioners. See pp. 15-25, supra.

As discussed above, nothing in Rasul upset the con stitutional holding of Eisentrager. Petitioners nonethe less point (Br. 45) to a single footnote in Rasul, which states: "Petitioners' allegations * * * unquestionably describe 'custody in violation of the Constitution or laws or treaties of the United States.' 28 U.S.C. § 2241(c)(3)." Rasul, 542 U.S. at 483 n.15. That footnote, however, cannot possibly be read as an implicit repudiation of the substantive holdings in Eisentrager, Verdugo-Urquidez, and their numerous predecessors and progeny. Such a reading would be inconsistent with the repeated assur ances throughout Rasul that habeas jurisdiction was the "only" question raised in or resolved by the Court. Moreover, footnote 15 is appended to a paragraph fo cused entirely on the question of statutory jurisdiction under 28 U.S.C. 2241, and to a sentence describing what "[p]etitioners contend" for jurisdictional purposes. Id. at 483. To say that these allegations are sufficient for jurisdictional purposes, a reading of footnote 15 strongly suggested by context, establishes only that they are not "wholly insubstantial" or "frivolous" on the merits. See, e.g., Steel Co., 523 U.S. at 89; Bell v. Hood, 327 U.S. 678, 682-683 (1946). On the other hand, to con strue footnote 15 as implicitly overruling the substantive Fifth Amendment holding of Eisentrager, thereby jetti soning decades of settled law in a single ambiguous sen tence (and all in an opinion that went to length to distin guish as outmoded, but not to overrule, the statutory holding of Eisentrager), would be implausible in the ex treme. See Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994) ("[G]eneral expressions, in every opinion, are to be taken in connection with the case in which those expressions are used.") (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821)).

Petitioners also claim support (Br. 44-50) from the Insular Cases; the splintered opinion in Reid v. Covert, 354 U.S. 1 (1957); and Justice Kennedy's concurring opinion in Verdugo-Urquidez. Petitioners misread each of those opinions. The Insular Cases do not support peti tioners' claim to Fifth Amendment protection because those cases addressed whether certain constitutional and federal statutory provisions were applicable in terri tories that had been ceded to the United States and over which the United States therefore was sovereign. See, e.g., Balzac v. Porto Rico, 258 U.S. 298 (1922); Treaty of Peace, Dec. 10, 1898, U.S.-Spain, Art. II, 30 Stat. 1754 (Spain "cedes to the United States the island of Porto Rico and other islands now under Spanish sovereignty in the West Indies"). As discussed, Guantanamo Bay is Cuban-not United States-territory. In any event, to the extent the Insular Cases could be applied, they sug gest that any Fifth Amendment analysis of petitioners' detention would have to take into account the unique circumstances of their overseas detention.33

Petitioners' reliance on Reid is also misplaced. Peti tioners in Reid were United States citizen spouses of members of the military tried by courts-martial for crimes committed on United States military bases over seas. The Court addressed the question whether these spouses could invoke the Fifth and Sixth Amendments. A plurality of the Court concluded that "citizens abroad" are generally protected by the Bill of Rights. See 354 U.S. at 5-6. The narrower controlling opinions agreed with respect to the Fifth and Sixth Amendments but, even as to the rights of citizens, cautioned against wholesale extraterritorial application of the Constitu tion. See id. at 75 (Harlan, J., concurring in the judg ment). Moreover, in Verdugo-Urquidez, a majority of the Court specifically rejected the proposition that Reid has any bearing on the constitutional rights of aliens. See 494 U.S. at 270. In reaffirming Eisentrager's "em phatic" rejection of extraterritorial application of the Fifth Amendment to aliens, the Court specifically lim ited Reid to the proposition that "citizens stationed abroad could invoke the protection of the Fifth and Sixth Amendments." Id. at 269-270 (emphasis added).

Petitioners further err in claiming support from Jus tice Kennedy's concurrence in Verdugo-Urquidez. In that case, Justice Kennedy joined in full a majority opin ion that expressly reaffirmed the "emphatic" Fifth Amendment holding of Eisentrager. 494 U.S. at 269. The opinion of the Court authored by the Chief Justice in Verdugo-Urquidez was just that: an opinion for the Court. Justice Kennedy's concurrence in that majority opinion obviously informs his own concurring opinion. In any event, even on its own terms, his Verdugo- Urquidez concurrence does not help petitioners here. In that opinion, Justice Kennedy observed that Eisen trager, and not Reid, governs "extraterritorial applica tion of the Constitution" where the "person claiming its protection is * * * an alien." Id. at 275. Moreover, citing the controlling concurrence in Reid, he stressed that even citizens do not necessarily enjoy the full mea sure of constitutional rights abroad, and, citing the In sular Cases, he stressed that Congress need not "imple ment all constitutional guarantees" even "in its territo ries." Id. at 277-278. Finally, he noted the unexcep tional proposition that the Fifth Amendment would ap ply to aliens wherever apprehended during a domestic criminal trial in an Article III court. See id. at 278.34

2. Even if the Fifth Amendment had some limited application to aliens held at Guantanamo Bay, the CSRT process and judicial review available under the DTA would readily satisfy any due process requirements for detaining such aliens as enemy combatants. Assuming that such aliens have any due process rights at all, those rights are plainly less extensive than those of American citizens in this country. See Eisentrager, 339 U.S. at 769; Harisiades v. Shaughnessy, 342 U.S. 580, 586-587 (1952) ("War, of course, is the most usual occasion" for distinguishing between the rights of aliens and citizens.). As explained above, see pp. 49-52, supra, the CSRTs exceed the due process requirements that the Hamdi plurality said would be constitutionally sufficient even for American citizens held in this country. A fortiori, they are constitutionally sufficient for alien enemy com batants held overseas.

C. Petitioners' Selective Reliance On Foreign Law Is Unavailing

Finally, petitioners rely (Br. 49-50) on the proce dures that Israeli courts have held must be provided to suspected terrorists. Those procedures are not relevant in construing either the Suspension Clause or the Due Process Clause, because, inter alia, the history of our Constitution is unique and the role of the courts in Israel is very different from the role of the courts under our Constitution. For example, the Israeli Supreme Court has the power to order the Prime Minister to dismiss members of his cabinet upon mere accusations of mis conduct. See H.C. 3094/93, Movement for Quality Gov't in Israel v. Israel, 47(5) P.D. 404.

In a legal system such as Israel's, it is perhaps not surprising that the courts engage in a level of superin tendence of ongoing military operations that would be unthinkable in our country. For example, Israeli courts have reviewed the quantity of supplies that the army allows to reach forces it is besieging, see H.C. 3451/02, Almandi v. Minister of Def., 56(3) P.D. 30. In the United States, by contrast, Congress is vested with the power to declare war, see U.S. Const. Art. I, § 8, Cl. 11, and the President is the Commander in Chief of the armed forces, see id. Art. II, § 2, Cl. 1. See Department of the Navy v. Egan, 484 U.S. 518, 530 (1998) (noting the reluctance of the courts "to intrude on the authority of the Executive in military and national security affairs"); Youngstown, 343 U.S. at 587 (acknowledging "broad powers in military commanders engaged in day-to-day fighting in a theater of war").

In any event, even if recent foreign law were an ap propriate benchmark for evaluating the scope of the Suspension Clause, the procedures used by Israel for detentions, whether within its sovereign territory or within the occupied territories-which are connected to Israel's sovereign territory-are hardly an appropriate, much less controlling, comparison for evaluating the detention of enemy combatants captured by the military on another continent, and held overseas in a country that the United States does not occupy and uses only under the terms of a lease that reserves sovereignty to the lessor-Cuba.


The judgment of the court of appeals should be af firmed.

Respectfully submitted.


Solicitor General
Assistant Attorney General
Principal Deputy Associate
Attorney General
Deputy Solicitor General
Assistant to the Solicitor




1 Unless otherwise noted, all references to "Pet.," "Pet. App.," and "Br." are to the petition, appendix, and petitioners' brief in No. 06-1195.

2 The Al Odah petitioners represented to the Court in Rasul, supra, that they sought only a military tribunal process to determine the validity of their detention, and "have never sought to have Article III courts make any individualized determinations of petitioners' alleged status as enemies or to second-guess military determinations as to which aliens pose a threat to the United States." Al Odah Reply Br. at 13 (No. 03-343); see Tr. Oral Arg. at 9-10, 15, 18-19 (No. 03-343).

3 Some of the petitioners contend (Br. 10 n.6; Al Odah Br. 26-29; but see El-Banna Br. 29-30) that the MCA does not apply to pending cases. That claim lacks merit. Section 7(a) amends 28 U.S.C. 2241 to eliminate jurisdiction over any petition for a writ of habeas corpus filed by an alien detained as enemy combatant. MCA § 7(a), 120 Stat. 2635. And Section 7(b) provides that Section 7(a) "shall take effect on the date of the enactment of this Act" and "shall apply to all cases, without excep tion, pending on or after the date of enactment of this Act." MCA § 7(b), 120 Stat. 2636. As the court of appeals observed, the statute "could not be clearer." Pet. App. 7a. "It is almost as if the proponents of these words were slamming their fists on the table shouting 'When we say "all," we mean all-without exception!'" Ibid.

4 Petitioners argue (El-Banna Br. 16-18) that the Suspension Clause is a structural provision that limits Congress's authority without regard to whether petitioners have constitutional rights. The court of appeals correctly rejected that argument. Pet. App. 17a-19a. Petitioners' theory is inconsistent with the text of the Suspension Clause, which refers to the "Privilege of the Writ of Habeas Corpus." U.S. Const. Art I, § 9, Cl. 2. The term "privilege" is more consistent with the language in several of the Bill of Rights provisions, such as the Fourth Amend ment. See, e.g., id. Amend. IV (protecting "[t]he right of the people" to be free from unreasonable searches and seizures). In interpreting that provision, this Court rejected the suggestion that it worked as a struc tural constraint and therefore applied globally. See Verdugo-Urquidez, 494 U.S. at 270. But even if the extraterritorial reach of the Suspension Clause does not stand or fall with the extraterritorial reach of the Bill of Rights, it does not assist petitioners. Petitioners' argument is con tradicted by this Court's decision in Johnson v. Eisentrager, 339 U.S. 763 (1950), where the Court held that overseas military detainees lacked the constitutional right to petition for habeas corpus. See id. at 777.

5 Even as to the first territories and possessions acquired by the United States, Congress believed that it was necessary to specify affir matively that habeas rights would be conferred upon inhabitants thereof. See, e.g., Northwest Territory Ordinance of 1787, Art. II, 1 Stat. 52 (specifying that "inhabitants of the said territory, shall always be entitled to the benefits of the writ of habeas corpus"); Act of Mar. 26, 1804, ch. 38, § 5, 2 Stat. 284 (Louisiana Territory); Act of Mar. 30, 1822, ch. 13, § 10, 3 Stat. 658 (Florida Territory); see also Downes v. Bidwell, 182 U.S. 244, 279 (1901). That is strong evidence that, in the early days of the United States, it was understood that affirmative congressional action was needed to entitle inhabitants of areas beyond the borders of the continental United States to the privilege of habeas corpus. Cf. Sere v. Pitot, 10 U.S. (6 Cranch) 332 (1810).

6 Eisentrager involved an effort to review the imposition of criminal punishment on enemy detainees, whereas here petitioners are seeking review of the legality of detention only. The review of enemy-combat ant detention determinations is even more likely to "hamper the war effort," 339 U.S. at 779, given the much greater number of such deten tions and the fact that they occur throughout the conflict, unlike efforts at punishment which often are delayed until the end of the entire con flict. See In re Yamashita, 327 U.S. 1, 12 (1946). Additionally, the courts have traditionally had a greater role in reviewing the imposition of criminal penalties. See, e.g., MCA § 3(a)(1), 120 Stat. 2622 (to be codified at 10 U.S.C. 950g (2006)) (judicial review of military commis sion proceedings). International law likewise recognizes that criminal sanctions call for more procedural protections than wartime detention determinations. Compare Geneva Convention Art. 5, 6 U.S.T. at 3324, 75 U.N.T.S. at 142 (providing that prisioner of war status is to be "determined by a competent tribunal"), with id. Arts. 82-108, 6 U.S.T. at 3382-3400, 75 U.N.T.S. at 200-218 (procedures for imposing criminal punishment upon prisoners of war); cf. Salim Hamdan Amicus Br. 6.

7 In contending (Br. 15-18; Al Odah Br. 24-26) that Eisentrager does not govern in the wake of this Court's decision in Rasul, petitioners misread Rasul. Rasul held that the "statutory predicate" for the Court's holding in Eisentrager had been overruled by Braden, and it therefore rejected the District of Columbia Circuit's broad holding, based on Eisentrager, that statutory habeas jurisdiction was unavail able to aliens at Guantanamo Bay. See Rasul, 542 U.S. at 475, 479. Rasul did not, however, cast any doubt on Eisentrager's constitutional holding-or the holdings of subsequent cases relying on that holding- that aliens held abroad do not have a constitutionally guaranteed right to habeas corpus. See id. at 478. On the contrary, Rasul expressly reserved all constitutional questions. See id. at 485. Thus, nothing in Rasul suggests that the Court implicitly overruled Eisentrager or the many other precedents governing the territorial scope of constitutional rights.

8 Petitioners rely (Br. 15 n.14) on Felker v. Turpin, 518 U.S. 651, 663-664 (1996), in which the Court "assume[d]," but did not decide, that the Suspension Clause "refers to the writ as it exists today, rather than as it existed in 1789." In their view, "post-1789 development[s]" have given them a right to the issuance of the writ. They identify no such developments, for none have occurred: there is no historical practice, either before or after 1789, of extending habeas to aliens detained as enemy combatants outside of sovereign territory. Petitioners also note (ibid.) that the framers were aware of the British prohibition on the practice of offshore detention. That may be true, but the practice has no relevance here, since it involved removing citizens from the country, not detaining aliens who had never even entered the country. See 4 William Blackstone, Commentaries *116 (noting that the 1679 Habeas Corpus Act, 31 Car. 2, ch.2, made it unlawful to "send any subject of this realm a prisoner into parts beyond the seas"); see also p. 30, infra.

9 Hale also describes a second type of "dominions": territories held by the king personally rather than in his capacity as monarch of England. See Hale 19. Scotland fell into this category; its king, James VI, succeeded to the English throne in 1603 as James I. In Cowle, Lord Mansfield labels such territories "foreign dominions, which belong to a prince who succeeds to the throne of England," and makes clear that as to those dominions "this Court has no power to send any writ of any kind." Cowle, 97 Eng. Rep. at 599-600. See 1 Blackstone *106 (describ ing "foreign dominions which may belong to the person of the king by hereditary descent, by purchase, or other acquisition," such as Han over, as "entirely unconnected with the laws of England").

10 The island of Minorca, to which Lord Mansfield says the court had "the power" to send the writ but did not do so in practice, Cowle, 97 Eng. Rep. at 600, was also a sovereign territory of the Crown. It was conquered from Spain in 1708, and Spain recognized the British claim in the 1713 Treaty of Utrecht. 2 Historical Dictionary of the British Empire 749 (J. Olson & R. Shadle eds., 1996).

11 Petitioners misread Cowle's statement, immediately preceding the text just quoted above, that "[t]here is no doubt as to the power of this Court [to issue habeas]; where the place is under the subjection of the Crown of England." Cowle, 97 Eng. Rep. at 599; Br. 11. Once that phrase is placed into context with the passage quoted above, which lists only sovereign territories of the Crown, it is clear that by "subjection" Lord Mansfield meant territorial sovereignty, not mere control.

12 Petitioners rely (Br. 11) upon In re Mwenya, [1960] 1 Q.B. 241 (Eng.), for the proposition that the reach of habeas did not depend upon territorial sovereignty. But that case dates from 1960-even later than Crewe and Ning Yi-Ching-and, standing alone, is hardly a reliable guide to English practice 171 years earlier. In addition, the opinions in Mwenya repeatedly stressed the petitioner's status as a British subject, id. at 300, 302 (Lord Evershed); id. at 304, 306 (Romer, L.J.); id. at 307, 311 (Sellers, L.J.), and the court's willingness to stretch the writ's traditional territorial limitations could be explained on that ground.

13 The Court did cite Mwenya, see Rasul, 542 U.S. at 482 & n.14, but as explained above, see note 12, supra, that case is not evidence of the territorial scope of the writ in 1789.

14 See Lease of Certain Areas for Naval or Coaling Stations, July 2, 1903, U.S.-Cuba, T.S. No. 426 (Supp. Lease); Treaty on Relations with Cuba, May 29, 1934, U.S.-Cuba, 48 Stat. 1682 (Treaty). The United States is also restricted in how it can use Guantanamo Bay: it may "fit the premises for use as coaling or naval stations only, and for no other purpose." Lease Art. II. Thus, it may not allow civilian settlement at Guantanamo Bay, or establish "commercial" or "industrial" enterprises there, Supp. Lease Art. III, or allow the land to remain idle, see Lease Art. I; Treaty Art. III, 48 Stat. 1683. In addition, the United States lacks the right to exclude vessels "engaged in the Cuban trade" from the waters of the bay. Lease Art. II. The United States does not have the authority to establish a territorial government in Guantanamo Bay, make Guantanamo Bay a State, offer it independence, sell it, or cede it to a third country. Such restrictions are incompatible with the exercise of sovereignty.

15 "In the primary meaning of the words, * * * an alien enemy is the subject of a foreign state at war with the United States." Eisentrager, 339 U.S. at 769 n.2 (quoting Techt v. Hughes, 128 N.E. 185, 186 (N.Y. 1920) (Cardozo, J.)). However, the category also includes citizens of neutral countries who have engaged in or supported hostilities against this country or associated with those who have. See Vaughan's Case, 91 Eng. Rep. 535, 536 (K.B. 1696) ("If * * * certain Dutchmen * * * fight under command of the French King, they are inimici to us, and Gallici subditi; for the French subjection makes them French subjects in respect of all other nations but their own."); Miller v. United States, 78 U.S. (11 Wall.) 268, 311 (1871) ("[T]hose must be considered as public enemies, and amenable to the laws of war as such, who, though subjects of a state in amity with the United States, are in the service of a state at war with them, and this not because they are inhabitants of such a state, but because of their hostile acts in the war.").

16 In Bismullah, the court of appeals held that the record on review includes-and the government is obligated to produce-"all the infor mation the [CSRT] is authorized to obtain and consider," whether or not the CSRT actually obtained or considered it in making its decision. 2007 WL 2067938, at *1. The government has filed a petition for rehearing. See Pet. Reh'gs, Bismullah, supra (D.C. Cir. filed Sept. 7, 2007). On October 3, 2007, the court of appeals panel denied rehearing, but issued a decision elaborating on its initial decision. See Bismullah v. Gates, No. 06-1197, 2007 WL 2851702. The government's petition for rehearing en banc remains pending.

17 For example, in the immigration context, this Court has historically approved a very limited scope of habeas review. See St. Cyr, 533 U.S. at 314 n.38 (recognizing that "the scope of review on habeas is consider ably more limited than on APA-style review"). Until the enactment of the Immigration and Nationality Act, 8 U.S.C. 1001 et seq., in 1952, the sole means by which an alien could test the legality of his or her deportation order was through a habeas corpus action. See, e.g., United States v. Jung Ah Lung, 124 U.S. 621 (1888); Ng Fung Ho v. White, 259 U.S. 276 (1922). "In such cases, other than the question whether there was some evidence to support the order, the courts generally did not review factual determinations made by the Executive. However, they did review the Executive's legal determinations." St. Cyr, 533 U.S. at 306 (footnote and citation omitted); see Ekiu v. United States, 142 U.S. 651, 663 (1892) (review was limited to the question whether the immi gration inspector was "acting within the jurisdiction conferred upon him").

18 Although the CSRT procedures do not allow the detainee to review classified information, neither does Army Regulation 190-8. Compare Army Reg. 190-8, paras. 1-6(e)(3) and (5), with 06-1196 Pet. App. 143, 155.

19 Compare Army Reg. 190-8, para. 1-6(c), with 06-1196 Pet. App. 142.

20 Compare Army Reg. 190-8, para. 1-6(e)(1), with 06-1196 Pet. App. 143.

21 Compare Army Reg. 190-8, para. 1-6(e)(5), with 06-1196 Pet. App. 143.

22 Compare Army Reg. 190-8, para. 1-6(e)(5), with 06-1196 Pet. App. 143.

23 Compare Army Reg. 190-8, para. 1-6(e)(6), with 06-1196 Pet. App. 144.

24 Compare Army Reg. 190-8, para. 1-6(e)(8), with 06-1196 Pet. App. 144.

25 Compare Army Reg. 190-8, para. 1-6(e)(9), with 06-1196 Pet. App. 144.

26 Compare Army Reg. 190-8, para. 1-6(e)(9), with 06-1196 Pet. App. 144.

27 Compare Army Reg. 190-8, para. 1-6(e)(10), with 06-1196 Pet. App. 163.

28 Compare Army Reg. 190-8, para. 1-6(g), with 06-1196 Pet. App. 163- 164.

29 Although the Geneva Convention provides right to counsel when a prisoner of war is subjected to a criminal trial, see Geneva Convention, Art. 99, 6 U.S.T. at 3392, 75 U.N.T.S. at 210; id. Art. 105, 6 U.S.T. at 3396, 75 U.N.T.S. at 214, it provides no right to counsel in an Article 5 tribunal to determine a detainee's status.

30 Under instructions issued by the Department of Defense Office for the Administrative Review of the Detention of Enemy Combatants (OARDEC), upon the receipt of new evidence that "was not previously presented to the detainee's CSRT" and that is "material to the factual question of whether the detainee" is an enemy combatant, the Deputy Secretary of Defense "will direct that a CSRT convene to reconsider the basis of the detainee's [enemy combatant] status in light of the new information." See OARDEC Instruction 5421.1, Procedure for Review of "New Evidence" Relating to Enemy Combatant (EC) Status paras. 4(a)(1) and (2), 5(b) (May 7, 2007) < May2007/New%20Evidence%20Instruction.pdf>.

31 The government filed a petition for rehearing en banc in Bismullah and requested expedited consideration of the petition so that it could determine what steps would be appropriate in the event that the District of Columbia Circuit does not reconsider its decision, including seeking review in this Court while these consolidated cases are pending before the Court. See note 16, supra.

32 If this Court concludes that the DTA affords an adequate substitute for any habeas corpus rights that petitioners might have, it could assume the applicability of the Suspension Clause without deciding the threshold question whether (or to what extent) Guantanamo Bay de tainees enjoy any Suspension Clause rights. See Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2677 (2006) ("Because we conclude that [peti tioners] are not in any event entitled to relief on their claims, we find it unnecessary to resolve the question whether the Vienna Convention grants individuals enforceable rights.").

33 Petitioner El-Banna (Br. 21) cites additional cases that are equally inapplicable because they address constitutional rights of aliens located within the United States.

34 Petitioners contend (El-Banna Br. 48-49) that they also wish to assert claims under Article 3 of the Geneva Convention, 6 U.S.T. at 3318, 75 U.N.T.S. at 136. That provision governs the treatment of detainees; it does not confer any right to release, let alone a right that would be privately enforceable in a habeas action. See Hamdan, 126 S. Ct. at 2794, Eisentrager, 339 U.S. at 789 n.14. In addition, several amici suggest that petitioners' detention violates the International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, S. Exec. Doc. E, 95th Cong., 2d Sess. (1978), 999 U.N.T.S. 171 (ICCPR). But this Court has held that the ICCPR does not "create obligations enforceable in the federal courts," Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004), and in any event the ICCPR applies only within the "territory" of member nations. Art. 2.1, S. Exec. Doc. E at 24, 999 U.N.T.S. at 173. That limitation was drafted precisely to fore close application of the ICCPR to areas such as "leased territories," where a signatory country would be acting "outside its territory," al though perhaps "technically within its jurisdiction for certain pur poses," Summary Record of the 138th Meeting, U.N. ESCOR Hum. Rts. Comm., 6th Sess., 138th mtg. at 10, U.N. Doc. E/CN.4/SR.138 (1950). Since becoming a party to the ICCPR, the United States has consistently interpreted the treaty in this manner. See Summary Record of the 1405th Meeting, U.N. ESCOR Hum. Rts. Comm., 53d Sess., 1504th mtg. at 3, 6-7 (paras. 7, 20), U.N. Doc. CCPR/C/SR.1405 (1995).

Updated October 21, 2014