# Footnotes

1 ↑  The Suspension Clause is also distinct from the First Amendment, which has been interpreted as a guarantor of individual rights. See, e.g., United States v. Robel, 389 U.S. 258, 263 (1967); Gitlow v. New York, 268 U.S. 652, 666 (1925). The court cannot seriously maintain that the two provisions are alike while acknowledging that the First Amendment confers an individual right enforceable by the courts and simultaneously claiming that the Suspension Clause does not, see Op. at 13 n.5 (citing Bollman, 8 U.S. (4 Cranch) at 95); see also In re Barry, 42 F. 113, 122 (C.C.S.D.N.Y. 1844), error dismissed sub nom. Barry v. Mercein, 46 U.S. 103 (1847) (“The ninth section of the first article of the constitution, par. 2, declaring that ‘the privilege of the writ of habeas corpus shall not be suspended unless, when in cases of rebellion or invasion, the public safety may require it,’ does not purport to convey power or jurisdiction to the judiciary. It is in restraint of executive and legislative powers, and no further affects the judiciary than to impose on them the necessity, if the privilege of habeas corpus is suspended by any authority, to decide whether the exigency demanded by the constitution exists to sanction the act.”).
2 ↑  Suspensions and bills of attainder have a shared history. In England, suspensions occasionally named specific individuals and therefore amounted to bills of attainder. See Rex A. Collings, Jr., Habeas Corpus for Convicts — Constitutional Right or Legislative Grace?, 40 Cal. L. Rev. 335, 339 (1952).
3 ↑  The court cites a number of cases for the proposition that the Attainder Clause confers an individual right instead of operating as a structural limitation on Congress. See Op. at 23 n.13. None of these cases makes the court’s point. In South Carolina v. Katzenbach, 383 U.S. 301, 323-24 (1966), the Supreme Court held that it is not a bill of attainder for Congress to punish a state. This speaks to the definition of a bill of attainder and says nothing about the operation of the Attainder Clause. Weaver v. Graham, 450 U.S. 24, 30 (1981), says the opposite of what the court asserts. In Weaver, the Supreme Court emphasized that the Ex Post Facto Clause is not intended to protect individual rights but governs the operation of government institutions:
   The presence or absence of an affirmative, enforceable right is not relevant, however, to the ex post facto prohibition, which forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.
The Court also emphasized the structural nature of the limitations of Article I, section 9, in Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 469 (1977) (noting that “the Bill of Attainder Clause [is] … one of the organizing principles of our system of government”). Unsurprisingly, the court cites no authority that would support its novel construction of section 9 by providing that certain individuals lack Attainder Clause or Ex Post Facto Clause rights.
4 ↑  For this point, the court quotes, without context, from H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525 (1949), see Op. at 22. In that case, the Supreme Court emphasized that the Bill of Rights limited the powers of Congress and did not affect the powers of the individual states, H.P. Hood & Sons, 336 U.S. at 534, at least until certain amendments were incorporated after ratification of the Fourteenth Amendment. This says nothing about the distinction, relevant here, between individual rights and limitations on Congress.
5 ↑  It is unnecessary to resolve the question of whether the Constitution provides for an affirmative right to habeas corpus — either through the Suspension Clause, the Fifth Amendment guarantee of due process, or the Sixth Amendment — or presumed the continued vitality of this “writ antecedent to statute,” Williams v. Kaiser, 323 U.S. 471, 484 n.2 (1945) (internal quotation marks omitted). Because the Supreme Court in Rasul held that the writ existed in 2004 and that there was, therefore, something to suspend, it is sufficient to assess whether the writ sought here existed in 1789. Given my conclusion, see infra Part C.1, it is also unnecessary to resolve the question of whether the Suspension Clause protects the writ of habeas corpus as it has developed since 1789. Compare St. Cyr, 533 U.S. at 304-05, and LaGuerre v. Reno, 164 F.3d 1035, 1038 (7th Cir. 1998), with Felker, 518 U.S. at 663-64, and Gerald L. Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961, 970 (1998). The court oddly chooses to ignore the issue by truncating its reference to St. Cyr, without comment, and omitting the qualifier “at the absolute minimum.” See Op. at 14.
6 ↑  The court’s assertion that “extraterritorial detention was not unknown in Eighteenth Century England,” Op. at 18 n.9, is of no moment. The court references the 1667 impeachment of the Earl of Clarendon, Lord High Chancellor of England. See id. at 16, 18 n.9. Clarendon was accused of sending enemies to faraway lands to deprive them of effective legal process. The court makes the unsupported inference that habeas corpus was therefore unavailable abroad. Nothing in the Clarendon affair suggests that habeas corpus was sought and refused. Instead, as remains the case today, legal process can be evaded when prisoners are detained without access to the courts. That the detainees at Guantanamo were able to procure next friends and attorneys to pursue their petitions whereas seventeenth-century Englishmen would have found this difficult, if not impossible, says nothing about the availability of the writ at common law. The court’s obfuscation as to the distinction between impracticality and unavailability is further addressed infra.
7 ↑  The significance of a 1794 opinion by the U.S. Attorney General, see Op. at 15, which expresses the view that the writ should issue to the foreign commander of a foreign ship-of-war in U.S. ports, reasoning that the foreign ship has “no exemption from the jurisdiction of the country into which he comes,” 1 Op. Att’y Gen. 47 (1794), is unclear. Nor is it clear what point the court is making by referencing In re Ning Yi-Ching, 56 T.L.R. 3 (K.B. Vacation Ct. 1939). In Rasul, the Supreme Court noted that Ning Yi-Ching “made quite clear that ‘the remedy of habeas corpus was not confined to British subjects,’ but would extend to ‘any person … detained’ within the reach of the writ,” 542 U.S. at 483 n.13 (quoting Ning Yi-Ching, 56 T.L.R. at 5), and that the case does not support a “narrow view of the territorial reach of the writ,” id. Here, the court provides a parenthetical quotation for Ning Yi-Ching that recalls a dissenting position from a prior case that was later repudiated. See Rasul, 542 U.S. at 483 n.14; Mwenya, [1960] 1 Q.B. at 295 (Lord Evershed, M.R.).
8 ↑  To the extent that the court relies on Eisentrager as proof of its historical theory, the Supreme Court rejected that approach in Rasul, see 542 U.S. at 475-79.
9 ↑  At common law, where criminal charges were pending, a prisoner filing a habeas writ would be remanded, although habeas incorporated a speedy-trial guarantee. See, e.g., Ex parte Beeching, 4 B. & C. 137, 107 Eng. Rep. 1010 (K.B. 1825); Bushell’s Case, Vaugh. 135, 124 Eng. Rep. 1006, 1009-10 (C.P. 1670). But see MCA § 3(a)(1), 120 Stat. at 2602 (codified at 10 U.S.C. § 948b(d)(A)). Once there was “a judgment of conviction rendered by a court of general criminal jurisdiction,” release under the writ was unavailable. Hayman, 342 U.S. at 210-11.
10 ↑  With a few possible exceptions, the Guantanamo detainees before the federal courts are unlikely to be fluent in English or to be familiar with legal procedures and, as their detentions far from home and cut off from their families have been lengthy, they are likely ill prepared to be able to obtain evidence to support their claims that they are not enemies of the United States.
11 ↑  See Supreme Court of the Federation of Bosnia and Herzegovina, Sarajevo, Jan. 17, 2003, Ki-1001/01.
12 ↑  Prior to Ableman v. Booth, 62 U.S. (21 How.) 506 (1859), and Tarble’s Case, 80 U.S. (13 Wall.) 397, 411-12 (1872), state courts regularly issued writs of habeas corpus as to federal prisoners.
13 ↑  There is also good reason to distinguish between these detainees’ cases and parallel cases where detainees have been accorded prisoner-of-war status and the benefits of Army Regulation 190-8, which implements the Third Geneva Convention. These provisions contemplate the end of hostilities and prisoner exchanges, id. §§ 3-11, 3-13, and provide for more extensive process for determining the status of prisoners, id. § 1-6. The regulations further specify that:
   Persons who have been determined by a competent tribunal not to be entitled to prisoner of war status may not be executed, imprisoned, or otherwise penalized without further proceedings to determine what acts they have committed and what penalty should be imposed. The record of every Tribunal proceeding resulting in a determination denying [Enemy Prisoner of War] status shall be reviewed for legal sufficiency when the record is received at the office of the Staff Judge Advocate for the convening authority.
Id. § 1-6g. In Hamdi, the Supreme Court recognized that it was conceivable that procedures similar to Army Regulation 190-8 may suffice to provide due process to a citizen-detainee. 542 U.S. at 538 (plurality opinion); id. at 550-51 (Souter, J., with whom Ginsburg, J., joins, concurring in part, dissenting in part, and concurring in the judgment). Even assuming that according Guantanamo detainees rights under Army Regulation 190-8 would provide adequate and independent factual review of their claims sufficient to satisfy the dictates of habeas corpus, as well as any treaty obligations that the detainees are able to enforce, the Executive has declined to accord such detainees prisoner-of-war status, see, e.g., The President’s News Conference With Chairman Hamid Karzai of the Afghan Interim Authority, 1 Pub. Papers 121, 123 (Jan. 28, 2002).
14 ↑  Because the Suspension Clause question must be decided by the Supreme Court in the detainees’ favor in order for the district court proceedings to occur, I leave for another day questions relating to the evolving and unlimited definition of “enemy combatant,” see Guantanamo Detainee Cases, 355 F. Supp. 2d at 474-75, a detainee’s inability to rebut evidence withheld on national security grounds, see id. at 468-72, as well as the detainees’ claims under other statutes, international conventions, and treaties, and whether challenges to the conditions of confinement are cognizable in habeas. Compare Khalid, 355 F. Supp. 2d at 324-25, with Miller v. Overholser, 206 F.2d 415, 419-21 (D.C. Cir. 1953). Congressional action may also clarify matters. See, e.g., S. 185, S. 576, 110th Cong. (2007).