# C.

The question, then, is whether by attempting to eliminate all federal court jurisdiction to consider petitions for writs of habeas corpus, Congress has overstepped the boundary established by the Suspension Clause. The Supreme Court has stated on several occasions that “at the absolute minimum, the Suspension Clause protects the writ ‘as it existed in 1789.’” St. Cyr, 533 U.S. at 301 (quoting Felker v. Turpin, 518 U.S. 651, 663-64 (1996)) (emphasis added). Therefore, at least insofar as habeas corpus exists and existed in 1789, Congress cannot suspend the writ without providing an adequate alternative except in the narrow exception specified in the Constitution. This proscription applies equally to removing the writ itself and to removing all jurisdiction to issue the writ. See United States v. Klein, 80 U.S. (13 Wall.) 128 (1872). See generally Erwin Chemerinsky, Federal Jurisdiction § 3.2 (4th ed. 2003).

## 1.

Assessing the state of the law in 1789 is no trivial feat, and the court’s analysis today demonstrates how quickly a few missteps can obscure history. In conducting its historical review, the court emphasizes that no English cases predating 1789 award the relief that the detainees seek in their petitions. Op. at 15-17. “The short of the matter,” the court concludes, is that “habeas corpus would not have been available in 1789 to aliens without presence or property within the United States.” Op. at 17. But this misses the mark. There may well be no case at common law in which a court exercises jurisdiction over the habeas corpus claim of an alien from a friendly nation, who may himself be an enemy, who is captured abroad and held outside the sovereign territory of England but within the Crown’s exclusive control without being charged with a crime or violation of the Laws of War. On the other hand, the court can point to no case where an English court has refused to exercise habeas jurisdiction because the enemy being held, while under the control of the Crown, was not within the Crown’s dominions. The paucity of direct precedent is a consequence of the unique confluence of events that defines the situation of these detainees and not a commentary on the reach of the writ at common law.
The question is whether by the process of inference from similar, if not identical, situations the reach of the writ at common law would have extended to the detainees’ petitions. At common law, we know that “the reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of ‘the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown.’” Rasul, 542 U.S. at 482 (quoting Ex parte Mwenya, [1960] 1 Q.B. 241, 303 (C.A.) (Lord Evershed, M.R.)). We also know that the writ extended not only to citizens of the realm, but to aliens, see id. at 481 & n.11, even in wartime, see id. at 474-75; Case of Three Spanish Sailors, 2 Black. W. 1324, 96 Eng. Rep. 775 (C.P. 1779); Rex v. Schiever, 2 Burr. 765, 97 Eng. Rep. 551 (K.B. 1759). A War of 1812-era case in which Chief Justice John Marshall granted a habeas writ to a British subject establishes that even conceded enemies of the United States could test in its courts detention that they claimed was unauthorized. See Gerald L. Neuman & Charles F. Hobson, John Marshall and the Enemy Alien: A Case Missing from the Canon, 9 Green Bag 2d 39 (2005) (reporting United States v. Williams (C.C.D. Va. Dec. 4, 1813)).
To draw the ultimate conclusion as to whether the writ at common law would have extended to aliens under the control (if not within the sovereign territory) of the Crown requires piecing together the considerable circumstantial evidence, a step that the court is unwilling to take. Analysis of one of these cases, the 1759 English case of Rex v. Schiever, shows just how small this final inference is. Barnard Schiever was the subject of a neutral nation (Sweden), who was detained by the Crown when England was at war with France. Schiever, 2 Burr. at 765, 97 Eng. Rep. at 551. He claimed that his classification as a “prisoner of war” was factually inaccurate, because he “was desirous of entering into the service of the merchants of England” until he was seized on the high seas by a French privateer, which in turn was captured by the British Navy. Id. In an affidavit, he swore that his French captor “detained him against his will and inclination … and treated him with so much severity that [his captor] would not suffer him to go on shore when in port … but closely confined him to duty [on board the ship].” Id. at 765-66, 97 Eng. Rep. at 551. The habeas court ultimately determined, on the basis of Schiever’s own testimony, that he was properly categorized and thus lawfully detained. Id. at 766, 97 Eng. Rep. at 551-52.
The court discounts Schiever because, after England captured the French privateer while en route to Norway, it was carried into Liverpool, England, where Schiever was held in the town jail. Id., 97 Eng. Rep. at 551. As such, the case did not involve “an alien outside the territory of the sovereign.” Op. at 14-15. However, Schiever surely was not voluntarily brought into England, so his mere presence conferred no additional rights. As the Supreme Court observed in Verdugo-Urquidez, “involuntary [presence] is not the sort to indicate any substantial connection with our country.” 494 U.S. at 271. Any gap between Schiever and the detainees’ detention at Guantanamo Bay is thus exceedingly narrow.
This court need not make the final inference. It has already been made for us. In Rasul, the Supreme Court stated that “[a]pplication of the habeas statute to persons detained at the [Guantanamo] base is consistent with the historical reach of the writ of habeas corpus.” 542 U.S. at 481. By reaching a contrary conclusion, the court ignores the settled principle that “carefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative.” Sierra Club v. EPA, 322 F.3d 718, 724 (D.C. Cir. 2003) (quoting United States v. Oakar, 111 F.3d 146, 153 (D.C. Cir. 1997)) (internal quotation marks omitted). Even setting aside this principle, the court offers no convincing analysis to compel the contrary conclusion. The court makes three assertions: First, Lord Mansfield’s opinion in Rex v. Cowle, 2 Burr. 834, 97 Eng. Rep. 587 (K.B. 1759), disavows the right claimed by the detainees. Second, it would have been impractical for English courts to extend the writ extraterritorially. Third, Johnson v. Eisentrager, 339 U.S. 763 (1949), is controlling. None of these assertions withstands scrutiny.
In Cowle, Lord Mansfield wrote that “[t]here is no doubt as to the power of this Court; where the place is under the subjection of the Crown of England; the only question is, as to the propriety.” 2 Burr. at 856, 97 Eng. Rep. at 599. He noted thereafter, by way of qualification, that the writ would not extend “[t]o foreign dominions, which belong to a prince who succeeds to the throne of England.” Id., 97 Eng. Rep. at 599-600. Through the use of ellipsis marks, the court excises the qualification and concludes that the writ does not extend “[t]o foreign dominions.” Op. at 16. This masks two problems in its analysis. A “foreign dominion” is not a foreign country, as the court’s reasoning implies, but rather “a country which at some time formed part of the dominions of a foreign state or potentate, but which by conquest or cession has become a part of the dominions of the Crown of England.” Ex parte Brown, 5 B. & S. 280, 122 Eng. Rep. 835 (K.B. 1864). And the exception noted in Lord Mansfield’s qualification has nothing to do with extraterritoriality: Instead, habeas from mainland courts was unnecessary for territories like Scotland that were controlled by princes in the line of succession because they had independent court systems. See William Blackstone, 1 Commentaries *95-98; James E. Pfander, The Limits of Habeas Jurisdiction and the Global War on Terror, 91 Cornell L. Rev. 497, 512-13 (2006). In the modern-day parallel, where a suitable alternative for habeas exists, the writ need not extend. See 2 Robert Chambers, A Course of Lectures on the English Law Delivered at Oxford 1767-1773, at 8 (Thomas M. Curley, ed., 1986) (quoting Cowle as indicating that, notwithstanding the power to issue the writ “in Guernsey, Jersey, Minorca, or the plantations,” courts would not think it “proper to interpose” because “the most usual way is to complain to the king in Council, the supreme court of appeal from those provincial governments”); see also infra Part C.2. The relationship between England and principalities was the only instance where it was “found necessary to restrict the scope of the writ.” 9 William Holdsworth, A History of English Law 124 (1938). Cowle, by its plain language, then, must be read as recognizing that the writ of habeas corpus ran even to places that were “no part of the realm,” where the Crown’s other writs did not run, nor did its laws apply. 2 Burr. at 835-36, 853-55, 97 Eng. Rep. at 587-88, 598-99. The Supreme Court has adopted this logical reading. See Rasul, 542 U.S. at 481-82; see also Mitchell B. Malachowski, From Gitmo with Love: Redefining Habeas Corpus Jurisdiction in the Wake of the Enemy Combatant Cases of 2004, 52 Naval L. Rev. 118, 122-23 (2005).
The court next disposes of Cowle and the historical record by suggesting that the “power” to issue the writ acknowledged by Lord Mansfield can be explained by the Habeas Corpus Act of 1679, 31 Car. 2, c. 2. See Op. at 16. The Supreme Court has stated that the Habeas Corpus Act “enforces the common law,” Ex parte Watkins, 28 U.S. (3 Pet.) 193, 202 (1730), thus hardly suggesting that the “power” recognized by Lord Mansfield was statutory and not included within the 1789 scope of the common-law writ. To the extent that the court makes the curious argument that the Habeas Corpus Act would have made it too impractical to produce prisoners if applied extraterritorially because it imposed fines on jailers who did not quickly produce the body, Op. at 16-17, the court cites no precedent that suggests that “practical problems” eviscerate “the precious safeguard of personal liberty [for which] there is no higher duty than to maintain it unimpaired,” Bowen v. Johnston, 306 U.S. 19, 26 (1939). This line of reasoning employed by the court fails for two main reasons:
First, the Habeas Corpus Act of 1679 was expressly limited to those who “have beene committed for criminall or supposed criminall Matters.” 31 Car. 2, c. 2, § 1. Hence, the burden of expediency imposed by the Act could scarcely have prevented common-law courts from exercising habeas jurisdiction in noncriminal matters such as the petitions in these appeals. Statutory habeas in English courts did not extend to non-criminal detention until the Habeas Corpus Act of 1816, 56 Geo. 3, c. 100, although courts continued to exercise their common-law powers in the interim. See 2 Chambers, supra, at 11; 9 Holdsworth, supra, at 121.
Second, there is ample evidence that the writ did issue to faraway lands. In Ex parte Anderson, 3 El. & El. 487, 121 Eng. Rep. 525 (Q.B. 1861), superseded by statute, 25 & 26 Vict., c. 20, § 1, the Court of Queen’s Bench exercised its common-law powers to issue a writ of habeas corpus to Quebec in Upper Canada after expressly acknowledging that it was “sensible of the inconvenience which may result from such a step.” Id. at 494-95, 121 Eng. Rep. at 527-28; see also Brown, 5 B. & S. 280, 122 Eng. Rep. 835 (issuing a writ to the Isle of Man in the sea between England and Ireland). English common-law courts also recognized the power to issue habeas corpus in India, even to non-subjects, and did so notwithstanding competition from local courts, well before England recognized its sovereignty in India. See B.N. Pandey, The Introduction of English Law Into India 112, 149, 151 (1967); see also Rex v. Mitter, Morton 210 (Sup. Ct., Calcutta 1781), reprinted in 1 The Indian Decisions (Old Series) 1008 (T.A. Venkasawmy Row ed., 1911); Rex v. Hastings, Morton 206, 208-09 (Sup. Ct., Calcutta 1775) (opinion of Chambers, J.), reprinted in 1 The Indian Decisions, supra, at 1005, 1007; id. at 209 (opinion of Impey, C.J.); Kal Raustiala, The Geography of Justice, 73 Fordham L. Rev. 2501, 2530 n.156 (2005).
Finally, the court reasons that Eisentrager requires the conclusion that there is no constitutional right to habeas for those in the detainees’ posture. See Op. at 17-18. In Eisentrager, the detainees claimed that they were “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. Thus Eisentrager presented a far different question than confronts this court. The detainees do not here contend that the Constitution accords them a positive right to the writ but rather that the Suspension Clause restricts Congress’s power to eliminate a preexisting statutory right. To answer that question does not entail looking to the extent of the detainees’ ties to the United States but rather requires understanding the scope of the writ of habeas corpus at common law in 1789. The court’s reliance on Eisentrager is misplaced.

## 2.

This brings me to the question of whether, absent the writ, Congress has provided an adequate alternative procedure for challenging detention. If it so chooses, Congress may replace the privilege of habeas corpus with a commensurate procedure without overreaching its constitutional ambit. However, as the Supreme Court has cautioned, if a subject of Executive detention “were subject to any substantial procedural hurdles which ma[k]e his remedy … less swift and imperative than federal habeas corpus, the gravest constitutional doubts would be engendered [under the Suspension Clause].” Sanders v. United States, 373 U.S. 1, 14 (1963).
The Supreme Court has, on three occasions, found a replacement to habeas corpus to be adequate. In United States v. Hayman, 342 U.S. 205 (1952), the Court reviewed 42 U.S.C. § 2255, which extinguished the writ as to those convicted of federal crimes before Article III judges in exchange for recourse before the sentencing court. Prior to the enactment of section 2255, the writ was available in the jurisdiction of detention, not the jurisdiction of conviction. The Court concluded that this substitute was acceptable in part because the traditional habeas remedy remained available by statute where section 2255 proved “inadequate or ineffective.” Id. at 223. The Court came to a similar conclusion in Swain v. Pressley, 430 U.S. 372 (1977), reviewing a statute with a similar “inadequate or ineffective” escape hatch, id. at 381 (reviewing D.C. Code § 23-110). In that case, the Court concluded that a procedure for hearing habeas in the District of Columbia’s courts, as distinct from the federal courts, was an adequate alternative. Finally, in Felker, 518 U.S. at 663-64, the Court found no Suspension Clause violation in the restrictions on successive petitions for the writ under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1217, concluding that these were “well within the compass of [the] evolutionary process” of the habeas corpus protocol for abuse of the writ and did not impose upon the writ itself.
These cases provide little cover for the government. As the Supreme Court has stated, “[a]t its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.” St. Cyr, 533 U.S. at 301. With this in mind, the government is mistaken in contending that the combatant status review tribunals (“CSRTs”) established by the DTA suitably test the legitimacy of Executive detention. Far from merely adjusting the mechanism for vindicating the habeas right, the DTA imposes a series of hurdles while saddling each Guantanamo detainee with an assortment of handicaps that make the obstacles insurmountable.
At the core of the Great Writ is the ability to “inquire into illegal detention with a view to an order releasing the petitioner.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (internal quotation marks and alteration omitted). An examination of the CSRT procedure and this court’s CSRT review powers reveals that these alternatives are neither adequate to test whether detention is unlawful nor directed toward releasing those who are unlawfully held.
“Petitioners in habeas corpus proceedings … are entitled to careful consideration and plenary processing of their claims including full opportunity for the presentation of the relevant facts.” Harris v. Nelson, 394 U.S. 286, 298 (1969). The offerings of CSRTs fall far short of this mark. Under the common law, when a detainee files a habeas petition, the burden shifts to the government to justify the detention in its return of the writ. When not facing an imminent trial, the detainee then must be afforded an opportunity to traverse the writ, explaining why the grounds for detention are inadequate in fact or in law. See, e.g., 28 U.S.C. §§ 2243, 2248; Bollman, 8 U.S. (4 Cranch) at 125; Ex parte Beeching, 4 B. & C. 137, 107 Eng. Rep. 1010 (K.B. 1825); Schiever, 2 Burr. 765, 97 Eng. Rep. 551; cf. Hamdi, 542 U.S. at 537-38 (plurality opinion). A CSRT works quite differently. See Order Establishing Combatant Status Review Tribunal (July 7, 2004), available at http://www.defenselink.mil/news/Jul2004/d20040707review.pdf. The detainee bears the burden of coming forward with evidence explaining why he should not be detained. The detainee need not be informed of the basis for his detention (which may be classified), need not be allowed to introduce rebuttal evidence (which is sometimes deemed by the CSRT too impractical to acquire), and must proceed without the benefit of his own counsel. Moreover, these proceedings occur before a board of military judges subject to command influence, see Hamdan, 126 S. Ct. at 2804, 2806 (Kennedy, J., concurring in part); Weiss v. United States, 510 U.S. 163, 179-80 (1994); cf. 10 U.S.C. § 837(a). Insofar as each of these practices impedes the process of determining the true facts underlying the lawfulness of the challenged detention, they are inimical to the nature of habeas review.
This court’s review of CSRT determinations, see DTA § 1005(e)(2), 119 Stat. at 2742, is not designed to cure these inadequacies. This court may review only the record developed by the CSRT to assess whether the CSRT has complied with its own standards. Because a detainee still has no means to present evidence rebutting the government’s case — even assuming the detainee could learn of its contents — assessing whether the government has more evidence in its favor than the detainee is hardly the proper antidote. The fact that this court also may consider whether the CSRT process “is consistent with the Constitution and laws of the United States,” DTA § 1005(e)(2)(C)(ii), 119 Stat. at 2742, does not obviate the need for habeas. Whereas a cognizable constitutional, statutory, or treaty violation could defeat the lawfulness of the government’s cause for detention, the writ issues whenever the Executive lacks a lawful justification for continued detention. The provisions of DTA § 1005(e)(2) cannot be reconciled with the purpose of habeas corpus, as they handcuff attempts to combat “the great engines of judicial despotism,” The Federalist No. 83, at 456 (Alexander Hamilton) (E.H. Scott ed. 1898).
Additionally, and more significant still, continued detention may be justified by a CSRT on the basis of evidence resulting from torture. Testimony procured by coercion is notoriously unreliable and unspeakably inhumane. See generally Intelligence Science Board, Educing Information: Interrogation: Science and Art (2006), available at http://www.fas.org/irp/dni/educing.pdf. This basic point has long been recognized by the common law, which “has regarded torture and its fruits with abhorrence for over 500 years.” A. v. Sec’y of State, [2006] 2 A.C. 221 ¶ 51 (H.L.) (appeal taken from Eng.) (Bingham, L.); see also Hamdan, 126 S. Ct. at 2786; Jackson v. Denno, 378 U.S. 368, 386 (1964); Proceedings Against Felton, 3 Howell’s St. Tr. 367, 371 (1628) (Eng.); John H. Langbein, Torture and the Law of Proof 73 (1977) (“Already in the fifteenth and sixteenth centuries, … the celebrated Renaissance ‘panegyrists’ of English law were … extolling the absence of torture in England.”) (footnote omitted). The DTA implicitly endorses holding detainees on the basis of such evidence by including an anti-torture provision that applies only to future CSRTs. DTA § 1005(b)(2), 119 Stat. at 2741. Even for these future proceedings, however, the Secretary of Defense is required only to develop procedures to assess whether evidence obtained by torture is probative, not to require its exclusion. Id. § 1005(b)(1), 119 Stat. at 2741.
Even if the CSRT protocol were capable of assessing whether a detainee was unlawfully held and entitled to be released, it is not an adequate substitute for the habeas writ because this remedy is not guaranteed. Upon concluding that detention is unjustified, a habeas court “can only direct [the prisoner] to be discharged.” Bollman, 8 U.S. (4 Cranch) at 136; see also 2 Story, supra, § 1339. But neither the DTA nor the MCA require this, and a recent report studying CSRT records shows that when at least three detainees were found by CSRTs not to be enemy combatants, they were subjected to a second, and in one case a third, CSRT proceeding until they were finally found to be properly classified as enemy combatants. Mark Denbeaux et al., No-Hearing Hearings: CSRT: The Modern Habeas Corpus?, at 37-39 (2006), http://law.shu.edu/news/final_no_hearing_hearings_report.pdf.

## 3.

Therefore, because Congress in enacting the MCA has revoked the privilege of the writ of habeas corpus where it would have issued under the common law in 1789, without providing an adequate alternative, the MCA is void unless Congress’s action fits within the exception in the Suspension Clause: Congress may suspend the writ “when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2. However, Congress has not invoked this power.
Suspension has been an exceedingly rare event in the history of the United States. On only four occasions has Congress seen fit to suspend the writ. These examples follow a clear pattern: Each suspension has made specific reference to a state of “Rebellion” or “Invasion” and each suspension was limited to the duration of that necessity. In 1863, recognizing “the present rebellion,” Congress authorized President Lincoln during the Civil War “whenever, in his judgment, the public safety may require it, … to suspend the writ of habeas corpus.” Act of Mar. 3, 1863, ch. 81, § 1, 12 Stat. 755, 755. As a result, no writ was to issue “so long as said suspension by the President shall remain in force, and said rebellion continue.” Id. In the Ku Klux Klan Act of 1871, Congress agreed to authorize suspension whenever “the unlawful combinations named [in the statute] shall be organized and armed, and so numerous and powerful as to be able, by violence, to either overthrow or set at defiance the constituted authorities of such State, and of the United States within such State,” finding that these circumstances “shall be deemed a rebellion against the government of the United States.” Act of Apr. 20, 1871, ch. 22, § 4, 17 Stat. 13, 14-15. Suspension was also authorized “when in cases of rebellion, insurrection, or invasion the public safety may require it” in two territories of the United States: the Philippines, Act of July 1, 1902, ch. 1369, § 5, 32 Stat. 691, 692, and Hawaii, Hawaiian Organic Act, ch. 339, § 67, 31 Stat. 141, 153 (1900); see Duncan v. Kahanamoku, 327 U.S. 304, 307-08 (1946). See also Duker, supra, at 149, 178 n.190.
Because the MCA contains neither of these hallmarks of suspension, and because there is no indication that Congress sought to avail itself of the exception in the Suspension Clause, its attempt to revoke federal jurisdiction that the Supreme Court held to exist exceeds the powers of Congress. The MCA therefore has no effect on the jurisdiction of the federal courts to consider these petitions and their related appeals.