# II.

This brings us to the constitutional issue: whether the MCA, in depriving the courts of jurisdiction over the detainees’ habeas petitions, violates the Suspension Clause of the Constitution, U.S. Const. art. I, § 9, cl. 2, which states 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.”
The Supreme Court has stated the Suspension Clause protects the writ “as it existed in 1789,” when the first Judiciary Act created the federal courts and granted jurisdiction to issue writs of habeas corpus. St. Cyr, 533 U.S. at 301; cf. Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 170 (1970). The detainees rely mainly on three cases to claim that in 1789 the privilege of the writ extended to aliens outside the sovereign’s territory. In Lockington’s Case, Bright. (N.P.) 269 (Pa. 1813), a British resident of Philadelphia had been imprisoned after failing to comply with a federal marshal’s order to relocate. The War of 1812 made Lockington an “enemy alien” under the Alien Enemies Act of 1798. Although he lost on the merits of his petition for habeas corpus before the Pennsylvania Supreme Court, two of three Pennsylvania justices held that he was entitled to review of his detention. In The Case of Three Spanish Sailors, 96 Eng. Rep. 775 (C.P. 1779), three Spanish seamen had boarded a merchant vessel bound for England with a promise of wages on arrival. After arriving in England, the English captain refused to pay their wages and turned them over to a warship as prisoners of war. The King’s Bench denied the sailors’ petitions because they were “alien enemies and prisoners of war, and therefore not entitled to any of the privileges of Englishmen; much less to be set at liberty on a habeas corpus.” Id. at 776. The detainees claim that, as in Lockington’s Case, the King’s Bench exercised jurisdiction and reached the merits. The third case – Rex v. Schiever, 97 Eng. Rep. 551 (K.B. 1759) – involved a citizen of Sweden intent on entering the English merchant trade. While at sea on an English merchant’s ship, a French privateer took Schiever along with the rest of the crew as prisoners, transferred the crew to another French ship, and let the English prisoners go free. An English ship thereafter captured the French ship and its crew, and carried them to Liverpool where Schiever was imprisoned. From Liverpool Schiever petitioned for habeas corpus, claiming he was a citizen of Sweden and only by force entered the service of the French. The court denied him relief because it found ample evidence that he was a prisoner of war. Id. at 552.
None of these cases involved an alien outside the territory of the sovereign. Lockington was a resident of Philadelphia. And the three Spanish sailors and Schiever were all held within English sovereign territory. The detainees cite no case and no historical treatise showing that the English common law writ of habeas corpus extended to aliens beyond the Crown’s dominions. Our review shows the contrary. See William F. Duker, A Constitutional History of Habeas Corpus 53 (1980); 9 William Holdsworth, A History of English Law 116-17, 124 (1982 ed.); 3 Blackstone, Commentaries 131 (1768); see also 1 Op. Att’y Gen. 47 (1794); In re Ning Yi-Ching, 56 T. L. R. 3, 5 (Vacation Ct. 1939) (noting prior judge “had listened in vain for a case in which the writ of habeas corpus had issued in respect of a foreigner detained in a part of the world which was not a part of the King’s dominions or realm”). Robert Chambers, the successor to Blackstone at Oxford, wrote in his lectures that the writ of habeas corpus extended only to the King’s dominions. 2 Robert Chambers, A Course of Lectures on the English Law Delivered at Oxford 1767-1773 (composed in association with Samuel Johnson), at 7-8 (Thomas M. Curley ed., 1986). Chambers cited Rex v. Cowle, 97 Eng. Rep. (2 Burr.) 587 (K.B. 1759), in which Lord Mansfield stated that “[t]o foreign dominions … this Court has no power to send any writ of any kind. We cannot send a habeas corpus to Scotland, or to the electorate; but to Ireland, the Isle of Man, the plantations [American colonies] … we may.” Every territory that Mansfield, Blackstone, and Chambers cited as a jurisdiction to which the writ extended (e.g., Ireland, the Isle of Man, the colonies, the Cinque Ports, and Wales) was a sovereign territory of the Crown.
When agents of the Crown detained prisoners outside the Crown’s dominions, it was understood that they were outside the jurisdiction of the writ. See Holdsworth, supra, at 116-17. Even British citizens imprisoned in “remote islands, garrisons, and other places” were “prevent[ed] from the benefit of the law,” 2 Henry Hallam, The Constitutional History of England 127-28 (William S. Hein Co. 1989) (1827), which included access to habeas corpus, see Duker, supra, at 51-53; Holdsworth, supra, at 116; see also Johan Steyn, Guantanamo Bay: The Legal Black Hole, 53 Int’l & Comp. L.Q. 1, 8 (2004) (“the writ of habeas corpus would not be available” in “remote islands, garrisons, and other places” (internal quotation marks omitted)). Compliance with a writ from overseas was also completely impractical given the habeas law at the time. In Cowle, Lord Mansfield explained that even in the far off territories “annexed to the Crown,” the Court would not send the writ, “notwithstanding the power.” 97 Eng. Rep. at 600. This is doubtless because of the Habeas Corpus Act of 1679. The great innovation of this statute was in setting time limits for producing the prisoner and imposing fines on the custodian if those limits were not met. See Chambers, supra, at 11. For a prisoner detained over 100 miles from the court, the detaining officer had twenty days after receiving the writ to produce the body before the court. See id. If he did not produce the body, he incurred a fine. One can easily imagine the practical problems this would have entailed if the writ had run outside the sovereign territory of the Crown and reached British soldiers holding foreign prisoners in overseas conflicts, such as the War of 1812. The short of the matter is that given the history of the writ in England prior to the founding, habeas corpus would not have been available in 1789 to aliens without presence or property within the United States.
Johnson v. Eisentrager, 339 U.S. 763 (1950), ends any doubt about the scope of common law habeas. “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 jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.” Id. at 768; see also Note, Habeas Corpus Protection Against Illegal Extraterritorial Detention, 51 Colum. L. Rev. 368, 368 (1951). The detainees claim they are in a different position than the prisoners in Eisentrager, and that this difference is material for purposes of common law habeas. They point to dicta in Rasul, 542 U.S. 481-82, in which the Court discussed English habeas cases and the “historical reach of the writ.” Rasul refers to several English and American cases involving varying combinations of territories of the Crown and relationships between the petitioner and the country in which the writ was sought. See id. But as Judge Robertson found in Hamdan, “[n]ot one of the cases mentioned in Rasul held that an alien captured abroad and detained outside the United States – or in ‘territory over which the United States exercises exclusive jurisdiction and control,’ Rasul, 542 U.S. at 475 – had a common law or constitutionally protected right to the writ of habeas corpus.” Hamdan v. Rumsfeld, No. 04-1519, 2006 WL 3625015, at *7 (D.D.C. Dec. 13, 2006). Justice Scalia made the same point in his Rasul dissent, see Rasul, 542 U.S. at 502-05 & n.5 (Scalia, J., dissenting) (noting the absence of “a single case holding that aliens held outside the territory of the sovereign were within reach of the writ”), and the dissent acknowledges it here, see Dissent at 12. We are aware of no case prior to 1789 going the detainees’ way, and we are convinced that the writ in 1789 would not have been available to aliens held at an overseas military base leased from a foreign government.
The detainees encounter another difficulty with their Suspension Clause claim. Precedent in this court and the Supreme Court holds that the Constitution does not confer rights on aliens without property or presence within the United States. As we explained in Al Odah, 321 F.3d at 1140-41, the controlling case is Johnson v. Eisentrager. There twenty-one German nationals confined in custody of the U.S. Army in Germany filed habeas corpus petitions. Although the German prisoners alleged they were civilian agents of the German government, a military commission convicted them of war crimes arising from military activity against the United States in China after Germany’s surrender. They claimed their convictions and imprisonment violated various constitutional provisions and the Geneva Conventions. The Supreme Court rejected the proposition “that the Fifth Amendment confers rights upon all persons, whatever their nationality, wherever they are located and whatever their offenses,” 339 U.S. at 783. The Court continued: “If the Fifth Amendment confers its rights on all the world … [it] would mean that during military occupation irreconcilable enemy elements, guerrilla fighters, and ‘werewolves’ could require the American Judiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against ‘unreasonable’ searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments.” Id. at 784. (Shortly before Germany’s surrender, the Nazis began training covert forces called “werewolves” to conduct terrorist activities during the Allied occupation. See http://www.archives.gov/iwg/declassified_records/oss_records_263_wilhelm_hoettl.html.)
Later Supreme Court decisions have followed Eisentrager. In 1990, for instance, the Court stated that Eisentrager “rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.” United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990). After describing the facts of Eisentrager and quoting from the opinion, the Court concluded that with respect to aliens, “our rejection of extraterritorial application of the Fifth Amendment was emphatic.” Id. By analogy, the Court held that the Fourth Amendment did not protect nonresident aliens against unreasonable searches or seizures conducted outside the sovereign territory of the United States. Id. at 274-75. Citing Eisentrager again, the Court explained that to extend the Fourth Amendment to aliens abroad “would have significant and deleterious consequences for the United States in conducting activities beyond its boundaries,” particularly since the government “frequently employs Armed Forces outside this country,” id. at 273. A decade after Verdugo-Urquidez, the Court – again citing Eisentrager – found it “well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
Any distinction between the naval base at Guantanamo Bay and the prison in Landsberg, Germany, where the petitioners in Eisentrager were held, is immaterial to the application of the Suspension Clause. The United States occupies the Guantanamo Bay Naval Base under an indefinite lease it entered into in 1903. See Al Odah, 321 F.3d at 1142. The text of the lease and decisions of circuit courts and the Supreme Court all make clear that Cuba – not the United States – has sovereignty over Guantanamo Bay. See Vermilya-Brown Co. v. Connell, 335 U.S. 377, 381 (1948); Cuban Am. Bar Ass’n v. Christopher, 43 F.3d 1412 (11th Cir. 1995). The “determination of sovereignty over an area,” the Supreme Court has held, “is for the legislative and executive departments.” Vermilya-Brown, 335 U.S. at 380. Here the political departments have firmly and clearly spoken: “‘United States,’ when used in a geographic sense … does not include the United States Naval Station, Guantanamo Bay, Cuba.” DTA § 1005(g).
The detainees cite the Insular Cases in which “fundamental personal rights” extended to U.S. territories. See Balzac v. Porto Rico, 258 U.S. 298, 312-13 (1922); Dorr v. United States, 195 U.S. 138, 148 (1904); see also Ralpho v. Bell, 569 F.2d 607 (D.C. Cir. 1977). But in each of those cases, Congress had exercised its power under Article IV, Section 3 of the Constitution to regulate “Territory or other Property belonging to the United States,” U.S. Const., art. IV, § 3, cl. 2. These cases do not establish anything regarding the sort of de facto sovereignty the detainees say exists at Guantanamo. Here Congress and the President have specifically disclaimed the sort of territorial jurisdiction they asserted in Puerto Rico, the Philippines, and Guam.
Precedent in this circuit also forecloses the detainees’ claims to constitutional rights. In Harbury v. Deutch, 233 F.3d 596, 604 (D.C. Cir. 2000), rev’d on other grounds sub nom. Christopher v. Harbury, 536 U.S. 403 (2002), we quoted extensively from Verdugo-Urquidez and held that the Court’s description of Eisentrager was “firm and considered dicta that binds this court.” Other decisions of this court are firmer still. Citing Eisentrager, we held in Pauling v. McElroy, 278 F.2d 252, 254 n.3 (D.C. Cir. 1960) (per curiam), that “non-resident aliens … plainly cannot appeal to the protection of the Constitution or laws of the United States.” The law of this circuit is that a “foreign entity without property or presence in this country has no constitutional rights, under the due process clause or otherwise.” People’s Mojahedin Org. of Iran v. U.S. Dep’t of State, 182 F.3d 17, 22 (D.C. Cir. 1999); see also 32 County Sovereignty Comm. v. U.S. Dep’t of State, 292 F.3d 797, 799 (D.C. Cir. 2002).
As against this line of authority, the dissent offers the distinction that the Suspension Clause is a limitation on congressional power rather than a constitutional right. But this is no distinction at all. Constitutional rights are rights against the government and, as such, are restrictions on governmental power. See H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 534 (1949) (“Even the Bill of Rights amendments were framed only as a limitation upon the powers of Congress.”). Consider the First Amendment. (In contrasting the Suspension Clause with provisions in the Bill of Rights, see Dissent at 3, the dissent is careful to ignore the First Amendment.) Like the Suspension Clause, the First Amendment is framed as a limitation on Congress: “Congress shall make no law ….” Yet no one would deny that the First Amendment protects the rights to free speech and religion and assembly.
The dissent’s other arguments are also filled with holes. It is enough to point out three of the larger ones.
There is the notion that the Suspension Clause is different from the Fourth, Fifth, and Sixth Amendments because it does not mention individuals and those amendments do (respectively, “people,” “person,” and “the accused”). See Dissent at 3. Why the dissent thinks this is significant eludes us. Is the point that if a provision does not mention individuals there is no constitutional right? That cannot be right. The First Amendment’s guarantees of freedom of speech and free exercise of religion do not mention individuals; nor does the Eighth Amendment’s prohibition on cruel and unusual punishment or the Seventh Amendment’s guarantee of a civil jury. Of course it is fair to assume that these provisions apply to individuals, just as it is fair to assume that petitions for writs of habeas corpus are filed by individuals.
The dissent also looks to the Bill of Attainder and Ex Post Facto Clauses, both located next to the Suspension Clause in Article I, Section 9. We do not understand what the dissent is trying to make of this juxtaposition. The citation to United States v. Lovett, 328 U.S. 303 (1946), is particularly baffling. Lovett held only that the Bill of Attainder Clause was justiciable. The dissent’s point cannot be that the Bill of Attainder Clause and the Ex Post Facto Clause do not protect individual rights. Numerous courts have held the opposite. “The fact that the Suspension Clause abuts the prohibitions on bills of attainder and ex post facto laws, provisions well-accepted to protect individual liberty, further supports viewing the habeas privilege as a core individual right.” Amanda L. Tyler, Is Suspension a Political Question?, 59 Stan. L. Rev. 333, 374 & n.227 (2006) (emphasis added).
Why is the dissent so fixated on how to characterize the Suspension Clause? The unstated assumption must be that the reasoning of our decisions and the Supreme Court’s in denying constitutional rights to aliens outside the United States would not apply if a constitutional provision could be characterized as protecting something other than a “right.” On this theory, for example, aliens outside the United States are entitled to the protection of the Separation of Powers because they have no individual rights under the Separation of Powers. Where the dissent gets this strange idea is a mystery, as is the reasoning behind it.