(Slip Opinion) OCTOBER TERM, 2007 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

BOUMEDIENE ET AL. v. BUSH, PRESIDENT OF THE 

UNITED STATES, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE DISTRICT OF COLUMBIA CIRCUIT 

No. 06–1195. Argued December 5, 2007—Decided June 12, 2008* 

In the Authorization for Use of Military Force (AUMF), Congress empowered the President “to use all necessary and appropriate force

against those . . . he determines planned, authorized, committed, or

aided the terrorist attacks . . . on September 11, 2001.” In Hamdi v. 

Rumsfeld, 542 U. S. 507, 518, 588–589, five Justices recognized that

detaining individuals captured while fighting against the United

States in Afghanistan for the duration of that conflict was a fundamental and accepted incident to war. Thereafter, the Defense Department established Combatant Status Review Tribunals (CSRTs)

to determine whether individuals detained at the U. S. Naval Station 

at Guantanamo Bay, Cuba, were “enemy combatants.” 

Petitioners are aliens detained at Guantanamo after being captured in Afghanistan or elsewhere abroad and designated enemy

combatants by CSRTs. Denying membership in the al Qaeda terrorist network that carried out the September 11 attacks and the Taliban regime that supported al Qaeda, each petitioner sought a writ of 

habeas corpus in the District Court, which ordered the cases dismissed for lack of jurisdiction because Guantanamo is outside sovereign U. S. territory. The D. C. Circuit affirmed, but this Court reversed, holding that 28 U. S. C. §2241 extended statutory habeas

jurisdiction to Guantanamo. See Rasul v. Bush, 542 U. S. 466, 473. 

Petitioners’ cases were then consolidated into two proceedings. In 

the first, the district judge granted the Government’s motion to dismiss, holding that the detainees had no rights that could be vindi-

—————— 

*Together with No. 06–1196, Al Odah, Next Friend of Al Odah, et al. 

v. United States et al., also on certiorari to the same court. 
 

 

 

2 BOUMEDIENE v. BUSH 

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cated in a habeas action. In the second, the judge held that the detainees had due process rights.

While appeals were pending, Congress passed the Detainee Treatment Act of 2005 (DTA), §1005(e) of which amended 28 U. S. C. §2241 

to provide that “no court, justice, or judge shall have jurisdiction to 

. . . consider . . . an application for . . . habeas corpus filed by or on 

behalf of an alien detained . . . at Guantanamo,” and gave the D. C. 

Circuit “exclusive” jurisdiction to review CSRT decisions. In Hamdan v. Rumsfeld, 548 U. S. 557, 576–577, the Court held this provision inapplicable to cases (like petitioners’) pending when the DTA 

was enacted. Congress responded with the Military Commissions Act 

of 2006 (MCA), §7(a) of which amended §2241(e)(1) to deny jurisdiction with respect to habeas actions by detained aliens determined to 

be enemy combatants, while §2241(e)(2) denies jurisdiction as to “any 

other action against the United States . . . relating to any aspect of 

the detention, transfer, treatment, trial, or conditions of confinement” 

of a detained alien determined to be an enemy combatant. MCA 

§7(b) provides that the 2241(e) amendments “shall take effect on the 

date of the enactment of this Act, and shall apply to all cases, without 

exception, pending on or after [that] date . . . which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained . . . since September 11, 2001.” 

The D. C. Circuit concluded that MCA §7 must be read to strip 

from it, and all federal courts, jurisdiction to consider petitioners’ habeas applications; that petitioners are not entitled to habeas or the 

protections of the Suspension Clause, U. S. Const., Art. I, §9, cl. 2, 

which provides that “[t]he Privilege of the Writ of Habeas Corpus 

shall not be suspended, unless when in Cases of Rebellion or Invasion 

the public Safety may require it”; and that it was therefore unnecessary to consider whether the DTA provided an adequate and effective 

substitute for habeas. 

Held: 

1. MCA §7 denies the federal courts jurisdiction to hear habeas actions, like the instant cases, that were pending at the time of its enactment. Section §7(b)’s effective date provision undoubtedly applies

to habeas actions, which, by definition, “relate to . . . detention” 

within that section’s meaning. Petitioners argue to no avail that

§7(b) does not apply to a §2241(e)(1) habeas action, but only to “any

other action” under §2241(e)(2), because it largely repeats that section’s language. The phrase “other action” in §2241(e)(2) cannot be

understood without referring back to §2241(e)(1), which explicitly 

mentions the “writ of habeas corpus.” Because the two paragraphs’

structure implies that habeas is a type of action “relating to any as-
 

 

 

Cite as: 553 U. S. ____ (2008) 3 

Syllabus 

pect of . . . detention,” etc., pending habeas actions are in the category

of cases subject to the statute’s jurisdictional bar. This is confirmed 

by the MCA’s legislative history. Thus, if MCA §7 is valid, petitioners’ cases must be dismissed. Pp. 5–8.

2. Petitioners have the constitutional privilege of habeas corpus. 

They are not barred from seeking the writ or invoking the Suspension Clause’s protections because they have been designated as enemy combatants or because of their presence at Guantanamo. Pp. 8– 

41. 

(a) A brief account of the writ’s history and origins shows that

protection for the habeas privilege was one of the few safeguards of

liberty specified in a Constitution that, at the outset, had no Bill of

Rights; in the system the Framers conceived, the writ has a centrality that must inform proper interpretation of the Suspension Clause. 

That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken in the Suspension Clause to specify the limited grounds for its suspension: The

writ may be suspended only when public safety requires it in times of

rebellion or invasion. The Clause is designed to protect against cyclical abuses of the writ by the Executive and Legislative Branches. It 

protects detainee rights by a means consistent with the Constitution’s essential design, ensuring that, except during periods of formal 

suspension, the Judiciary will have a time-tested device, the writ, to 

maintain the “delicate balance of governance.” Hamdi, supra, at 536. 

Separation-of-powers principles, and the history that influenced their 

design, inform the Clause’s reach and purpose. Pp. 8–15.

(b) A diligent search of founding-era precedents and legal commentaries reveals no certain conclusions. None of the cases the parties cite reveal whether a common-law court would have granted, or

refused to hear for lack of jurisdiction, a habeas petition by a prisoner

deemed an enemy combatant, under a standard like the Defense Department’s in these cases, and when held in a territory, like Guantanamo, over which the Government has total military and civil control. The evidence as to the writ’s geographic scope at common law is 

informative, but, again, not dispositive. Petitioners argue that the

site of their detention is analogous to two territories outside England

to which the common-law writ ran, the exempt jurisdictions and India, but critical differences between these places and Guantanamo

render these claims unpersuasive. The Government argues that

Guantanamo is more closely analogous to Scotland and Hanover, 

where the writ did not run, but it is unclear whether the common-law 

courts lacked the power to issue the writ there, or whether they refrained from doing so for prudential reasons. The parties’ arguments 

that the very lack of a precedent on point supports their respective 
 

 

 

4 BOUMEDIENE v. BUSH 

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positions are premised upon the doubtful assumptions that the historical record is complete and that the common law, if properly understood, yields a definite answer to the questions before the Court.

Pp. 15–22. 

 (c) The Suspension Clause has full effect at Guantanamo. The 

Government’s argument that the Clause affords petitioners no rights

because the United States does not claim sovereignty over the naval 

station is rejected. Pp. 22–42. 

(i) The Court does not question the Government’s position that

Cuba maintains sovereignty, in the legal and technical sense, over 

Guantanamo, but it does not accept the Government’s premise that 

de jure sovereignty is the touchstone of habeas jurisdiction. Common-law habeas’ history provides scant support for this proposition,

and it is inconsistent with the Court’s precedents and contrary to

fundamental separation-of-powers principles. Pp. 22–25.

(ii) Discussions of the Constitution’s extraterritorial application in cases involving provisions other than the Suspension Clause

undermine the Government’s argument. Fundamental questions regarding the Constitution’s geographic scope first arose when the Nation acquired Hawaii and the noncontiguous Territories ceded by

Spain after the Spanish-American War, and Congress discontinued 

its prior practice of extending constitutional rights to territories by 

statute. In the so-called Insular Cases, the Court held that the Constitution had independent force in the territories that was not contingent upon acts of legislative grace. See, e.g., Dorr v. United States, 

195 U. S. 138. Yet because of the difficulties and disruption inherent

in transforming the former Spanish colonies’ civil-law system into an 

Anglo-American system, the Court adopted the doctrine of territorial

incorporation, under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in

unincorporated Territories. See, e.g., id., at 143. Practical considerations likewise influenced the Court’s analysis in Reid v. Covert, 354 

U. S. 1, where, in applying the jury provisions of the Fifth and Sixth 

Amendments to American civilians being tried by the U. S. military

abroad, both the plurality and the concurrences noted the relevance 

of practical considerations, related not to the petitioners’ citizenship,

but to the place of their confinement and trial. Finally, in holding

that habeas jurisdiction did not extend to enemy aliens, convicted of 

violating the laws of war, who were detained in a German prison during the Allied Powers’ post-World War II occupation, the Court, in 

Johnson v. Eisentrager, 339 U. S. 763, stressed the practical difficulties of ordering the production of the prisoners, id., at 779. The Government’s reading of Eisentrager as adopting a formalistic test for determining the Suspension Clause’s reach is rejected because: (1) the 
 

 

Cite as: 553 U. S. ____ (2008) 5 

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discussion of practical considerations in that case was integral to a

part of the Court’s opinion that came before it announced its holding, 

see id., at 781; (2) it mentioned the concept of territorial sovereignty

only twice in its opinion, in contrast to its significant discussion of

practical barriers to the running of the writ; and (3) if the Government’s reading were correct, the opinion would have marked not only 

a change in, but a complete repudiation of, the Insular Cases’ (and

later Reid’s) functional approach. A constricted reading of Eisentrager overlooks what the Court sees as a common thread uniting all 

these cases: The idea that extraterritoriality questions turn on objective factors and practical concerns, not formalism. Pp. 25–34. 

(iii) The Government’s sovereignty-based test raises troubling 

separation-of-powers concerns, which are illustrated by Guantanamo’s political history. Although the United States has maintained complete and uninterrupted control of Guantanamo for over 

100 years, the Government’s view is that the Constitution has no effect there, at least as to noncitizens, because the United States disclaimed formal sovereignty in its 1903 lease with Cuba. The Nation’s 

basic charter cannot be contracted away like this. The Constitution 

grants Congress and the President the power to acquire, dispose of,

and govern territory, not the power to decide when and where its 

terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not

this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 

137, 177. These concerns have particular bearing upon the Suspension Clause question here, for the habeas writ is itself an indispensable mechanism for monitoring the separation of powers. Pp. 34–36.

 (iv) Based on Eisentrager, supra, at 777, and the Court’s reasoning in its other extraterritoriality opinions, at least three factors 

are relevant in determining the Suspension Clause’s reach: (1) the

detainees’ citizenship and status and the adequacy of the process 

through which that status was determined; (2) the nature of the sites 

where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the

writ. Application of this framework reveals, first, that petitioners’

status is in dispute: They are not American citizens, but deny they

are enemy combatants; and although they have been afforded some

process in CSRT proceedings, there has been no Eisentrager–style 

trial by military commission for violations of the laws of war. Second, 

while the sites of petitioners’ apprehension and detention weigh 

against finding they have Suspension Clause rights, there are critical 

differences between Eisentrager’s German prison, circa 1950, and the

Guantanamo Naval Station in 2008, given the Government’s absolute

and indefinite control over the naval station. Third, although the 
 

 

 

 

6 BOUMEDIENE v. BUSH 

Syllabus 

Court is sensitive to the financial and administrative costs of holding

the Suspension Clause applicable in a case of military detention 

abroad, these factors are not dispositive because the Government 

presents no credible arguments that the military mission at Guantanamo would be compromised if habeas courts had jurisdiction. The 

situation in Eisentrager was far different, given the historical context 

and nature of the military’s mission in post-War Germany. Pp. 36– 

41. 

(d) Petitioners are therefore entitled to the habeas privilege, and 

if that privilege is to be denied them, Congress must act in accordance with the Suspension Clause’s requirements. Cf. Rasul, 542 

U. S., at 564. Pp. 41–42. 

3. Because the DTA’s procedures for reviewing detainees’ status

are not an adequate and effective substitute for the habeas writ,

MCA §7 operates as an unconstitutional suspension of the writ. Pp.

42–64. 

(a) Given its holding that the writ does not run to petitioners, the 

D. C. Circuit found it unnecessary to consider whether there was an

adequate substitute for habeas. This Court usually remands for consideration of questions not decided below, but departure from this 

rule is appropriate in “exceptional” circumstances, see, e.g., Cooper 

Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 169, here, the 

grave separation-of-powers issues raised by these cases and the fact 

that petitioners have been denied meaningful access to a judicial forum for years. Pp. 42–44.

(b) Historically, Congress has taken care to avoid suspensions of

the writ. For example, the statutes at issue in the Court’s two leading cases addressing habeas substitutes, Swain v. Pressley, 430 U. S. 

372, and United States v. Hayman, 342 U. S. 205, were attempts to

streamline habeas relief, not to cut it back. Those cases provide little 

guidance here because, inter alia, the statutes in question gave the

courts broad remedial powers to secure the historic office of the writ, 

and included saving clauses to preserve habeas review as an avenue

of last resort. In contrast, Congress intended the DTA and the MCA 

to circumscribe habeas review, as is evident from the unequivocal nature of MCA §7’s jurisdiction-stripping language, from the DTA’s text 

limiting the Court of Appeals’ jurisdiction to assessing whether the 

CSRT complied with the “standards and procedures specified by the

Secretary of Defense,” DTA §1005(e)(2)(C), and from the absence of a 

saving clause in either Act. That Congress intended to create a more

limited procedure is also confirmed by the legislative history and by a 

comparison of the DTA and the habeas statute that would govern in 

MCA §7’s absence, 28 U. S. C. §2241. In §2241, Congress authorized

“any justice” or “circuit judge” to issue the writ, thereby accommodat-
 

 

 

Cite as: 553 U. S. ____ (2008) 7 

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ing the necessity for factfinding that will arise in some cases by allowing the appellate judge or Justice to transfer the case to a district 

court. See §2241(b). However, by granting the D. C. Circuit “exclusive” jurisdiction over petitioners’ cases, see DTA §1005(e)(2)(A), 

Congress has foreclosed that option in these cases. Pp. 44–49. 

(c) This Court does not endeavor to offer a comprehensive summary of the requisites for an adequate habeas substitute. It is uncontroversial, however, that the habeas privilege entitles the prisoner 

to a meaningful opportunity to demonstrate that he is being held pursuant to “the erroneous application or interpretation” of relevant law, 

INS v. St. Cyr, 533 U. S. 289, 302, and the habeas court must have 

the power to order the conditional release of an individual unlawfully

detained. But more may be required depending on the circumstances. Petitioners identify what they see as myriad deficiencies in 

the CSRTs, the most relevant being the constraints upon the detainee’s ability to rebut the factual basis for the Government’s assertion that he is an enemy combatant. At the CSRT stage the detainee

has limited means to find or present evidence to challenge the Government’s case, does not have the assistance of counsel, and may not 

be aware of the most critical allegations that the Government relied 

upon to order his detention. His opportunity to confront witnesses is 

likely to be more theoretical than real, given that there are no limits

on the admission of hearsay. The Court therefore agrees with petitioners that there is considerable risk of error in the tribunal’s findings of fact. And given that the consequence of error may be detention for the duration of hostilities that may last a generation or more, 

the risk is too significant to ignore. Accordingly, for the habeas writ,

or its substitute, to function as an effective and meaningful remedy in 

this context, the court conducting the collateral proceeding must have

some ability to correct any errors, to assess the sufficiency of the

Government’s evidence, and to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding. 

In re Yamashita, 327 U. S. 1, 5, 8, and Ex parte Quirin, 317 U. S. 1, 

23–25, distinguished. Pp. 49–57. 

(d) Petitioners have met their burden of establishing that the

DTA review process is, on its face, an inadequate substitute for habeas. Among the constitutional infirmities from which the DTA potentially suffers are the absence of provisions allowing petitioners to

challenge the President’s authority under the AUMF to detain them

indefinitely, to contest the CSRT’s findings of fact, to supplement the

record on review with exculpatory evidence discovered after the

CSRT proceedings, and to request release. The statute cannot be 

read to contain each of these constitutionally required procedures. 

MCA §7 thus effects an unconstitutional suspension of the writ. 
 

 

 

 

8 BOUMEDIENE v. BUSH 

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There is no jurisdictional bar to the District Court’s entertaining petitioners’ claims. Pp. 57–64. 

4. Nor are there prudential barriers to habeas review. Pp. 64–70. 

(a) Petitioners need not seek review of their CSRT determinations in the D. C. Circuit before proceeding with their habeas actions 

in the District Court. If these cases involved detainees held for only a

short time while awaiting their CSRT determinations, or were it

probable that the Court of Appeals could complete a prompt review of 

their applications, the case for requiring temporary abstention or exhaustion of alternative remedies would be much stronger. But these 

qualifications no longer pertain here. In some instances six years 

have elapsed without the judicial oversight that habeas corpus or an

adequate substitute demands. To require these detainees to pursue 

the limited structure of DTA review before proceeding with habeas

actions would be to require additional months, if not years, of delay.

This holding should not be read to imply that a habeas court should 

intervene the moment an enemy combatant steps foot in a territory

where the writ runs. Except in cases of undue delay, such as the present, federal courts should refrain from entertaining an enemy combatant’s habeas petition at least until after the CSRT has had a

chance to review his status. Pp. 64–67.

(b) In effectuating today’s holding, certain accommodations— 

including channeling future cases to a single district court and requiring that court to use its discretion to accommodate to the greatest

extent possible the Government’s legitimate interest in protecting

sources and intelligence gathering methods—should be made to reduce the burden habeas proceedings will place on the military, without impermissibly diluting the writ’s protections. Pp. 67–68.

5. In considering both the procedural and substantive standards

used to impose detention to prevent acts of terrorism, the courts must

accord proper deference to the political branches. However, security

subsists, too, in fidelity to freedom’s first principles, chief among 

them being freedom from arbitrary and unlawful restraint and the

personal liberty that is secured by adherence to the separation of 

powers. Pp. 68–70. 

476 F. 3d 981, reversed and remanded. 

KENNEDY, J., delivered the opinion of the Court, in which STEVENS, 

SOUTER, GINSBURG, and BREYER, JJ., joined. SOUTER, J., filed a concurring opinion, in which GINSBURG and BREYER, JJ., joined. ROBERTS, 

C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO, 

JJ., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS, 

C. J., and THOMAS and ALITO, JJ., joined. 
 

 

_________________ 

_________________ 

Cite as: 553 U. S. ____ (2008) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

Nos. 06–1195 and 06–1196 

LAKHDAR BOUMEDIENE, ET AL., PETITIONERS 

06–1195 v. 

GEORGE W. BUSH, PRESIDENT OF THE UNITED 

STATES, ET AL. 

KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI 

KHALID ABDULLAH FAHAD AL ODAH, ET AL., 

PETITIONERS 

06–1196 v. 

UNITED STATES ET AL. 

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 

[June 12, 2008] 

JUSTICE KENNEDY delivered the opinion of the Court. 

Petitioners are aliens designated as enemy combatants

and detained at the United States Naval Station at Guantanamo Bay, Cuba. There are others detained there, also 

aliens, who are not parties to this suit. 

Petitioners present a question not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of

habeas corpus, a privilege not to be withdrawn except in

conformance with the Suspension Clause, Art. I, §9, cl. 2. 

We hold these petitioners do have the habeas corpus 

privilege. Congress has enacted a statute, the Detainee 

Treatment Act of 2005 (DTA), 119 Stat. 2739, that pro­
 

2 BOUMEDIENE v. BUSH 

Opinion of the Court 

vides certain procedures for review of the detainees’ 

status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 

U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. We do not address 

whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These 

and other questions regarding the legality of the detention 

are to be resolved in the first instance by the District

Court. 

I 

Under the Authorization for Use of Military Force

(AUMF), §2(a), 115 Stat. 224, note following 50 U. S. C.

§1541 (2000 ed., Supp. V), the President is authorized “to 

use all necessary and appropriate force against those 

nations, organizations, or persons he determines planned,

authorized, committed, or aided the terrorist attacks that 

occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of 

international terrorism against the United States by such

nations, organizations or persons.”

In Hamdi v. Rumsfeld, 542 U. S. 507 (2004), five Members of the Court recognized that detention of individuals

who fought against the United States in Afghanistan “for

the duration of the particular conflict in which they were

captured, is so fundamental and accepted an incident to

war as to be an exercise of the ‘necessary and appropriate

force’ Congress has authorized the President to use.” Id., 

at 518 (plurality opinion of O’Connor, J.), id., at 588–589 

(THOMAS, J., dissenting). After Hamdi, the Deputy Secretary of Defense established Combatant Status Review 

Tribunals (CSRTs) to determine whether individuals

detained at Guantanamo were “enemy combatants,” as the 

Department defines that term. See App. to Pet. for Cert. 
Cite as: 553 U. S. ____ (2008) 3 

Opinion of the Court 

in No. 06–1195, p. 81a. A later memorandum established 

procedures to implement the CSRTs. See App. to Pet. for 

Cert. in No. 06–1196, p. 147. The Government maintains 

these procedures were designed to comply with the due

process requirements identified by the plurality in Hamdi. 

See Brief for Respondents 10.

Interpreting the AUMF, the Department of Defense 

ordered the detention of these petitioners, and they were

transferred to Guantanamo. Some of these individuals 

were apprehended on the battlefield in Afghanistan, others in places as far away from there as Bosnia and Gambia. All are foreign nationals, but none is a citizen of a 

nation now at war with the United States. Each denies he 

is a member of the al Qaeda terrorist network that carried 

out the September 11 attacks or of the Taliban regime

that provided sanctuary for al Qaeda. Each petitioner

appeared before a separate CSRT; was determined to be

an enemy combatant; and has sought a writ of habeas 

corpus in the United States District Court for the District 

of Columbia. 

The first actions commenced in February 2002. The 

District Court ordered the cases dismissed for lack of 

jurisdiction because the naval station is outside the sovereign territory of the United States. See Rasul v. Bush, 215 

F. Supp. 2d 55 (2002). The Court of Appeals for the District of Columbia Circuit affirmed. See Al Odah v. United 

States, 321 F. 3d 1134, 1145 (2003). We granted certiorari

and reversed, holding that 28 U. S. C. §2241 extended 

statutory habeas corpus jurisdiction to Guantanamo. See 

Rasul v. Bush, 542 U. S. 466, 473 (2004). The constitutional issue presented in the instant cases was not reached 

in Rasul. Id., at 476. 

After Rasul, petitioners’ cases were consolidated and

entertained in two separate proceedings. In the first set of 

cases, Judge Richard J. Leon granted the Government’s

motion to dismiss, holding that the detainees had no 
 

 

4 BOUMEDIENE v. BUSH 

Opinion of the Court 

rights that could be vindicated in a habeas corpus action.

In the second set of cases Judge Joyce Hens Green reached 

the opposite conclusion, holding the detainees had rights

under the Due Process Clause of the Fifth Amendment. 

See Khalid v. Bush, 355 F. Supp. 2d 311, 314 (DC 2005); 

In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 

464 (DC 2005). 

While appeals were pending from the District Court

decisions, Congress passed the DTA. Subsection (e) of

§1005 of the DTA amended 28 U. S. C. §2241 to provide

that “no court, justice, or judge shall have jurisdiction to 

hear or consider . . . an application for a writ of habeas

corpus filed by or on behalf of an alien detained by the 

Department of Defense at Guantanamo Bay, Cuba.” 119 

Stat. 2742. Section 1005 further provides that the Court

of Appeals for the District of Columbia Circuit shall have 

“exclusive” jurisdiction to review decisions of the CSRTs. 

Ibid.

 In Hamdan v. Rumsfeld, 548 U. S. 557, 576–577 (2006), 

the Court held this provision did not apply to cases (like

petitioners’) pending when the DTA was enacted. Congress responded by passing the MCA, 10 U. S. C. A. §948a 

et seq. (Supp. 2007), which again amended §2241. The 

text of the statutory amendment is discussed below. See 

Part II, infra. (Four Members of the Hamdan majority

noted that “[n]othing prevent[ed] the President from 

returning to Congress to seek the authority he believes 

necessary.” 548 U. S., at 636 (BREYER, J., concurring). 

The authority to which the concurring opinion referred 

was the authority to “create military commissions of the 

kind at issue” in the case. Ibid. Nothing in that opinion

can be construed as an invitation for Congress to suspend

the writ.)

Petitioners’ cases were consolidated on appeal, and the

parties filed supplemental briefs in light of our decision in 

Hamdan. The Court of Appeals’ ruling, 476 F. 3d 981 
Cite as: 553 U. S. ____ (2008) 5 

Opinion of the Court 

(CADC 2007), is the subject of our present review and 

today’s decision. 

The Court of Appeals concluded that MCA §7 must be 

read to strip from it, and all federal courts, jurisdiction to

consider petitioners’ habeas corpus applications, id., at 

987; that petitioners are not entitled to the privilege of the 

writ or the protections of the Suspension Clause, id., at 

990–991; and, as a result, that it was unnecessary to 

consider whether Congress provided an adequate and 

effective substitute for habeas corpus in the DTA. 

We granted certiorari. 551 U. S. ___ (2007). 

II 

As a threshold matter, we must decide whether MCA §7

denies the federal courts jurisdiction to hear habeas corpus actions pending at the time of its enactment. We hold 

the statute does deny that jurisdiction, so that, if the

statute is valid, petitioners’ cases must be dismissed.

As amended by the terms of the MCA, 28 U. S. C. A.

§2241(e) (Supp. 2007) now provides: 

“(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of

habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such 

determination. 

“(2) Except as provided in [§§1005(e)(2) and (e)(3)

of the DTA] no court, justice, or judge shall have jurisdiction to hear or consider any other action

against the United States or its agents relating to

any aspect of the detention, transfer, treatment, 

trial, or conditions of confinement of an alien who is 

or was detained by the United States and has been

determined by the United States to have been properly detained as an enemy combatant or is awaiting 
 

6 BOUMEDIENE v. BUSH 

Opinion of the Court 

such determination.” 

Section 7(b) of the MCA provides the effective date for 

the amendment of §2241(e). It states: 

“The amendment made by [MCA §7(a)] shall take effect on the date of the enactment of this Act, and shall 

apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate 

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.” 120 

Stat. 2636. 

There is little doubt that the effective date provision 

applies to habeas corpus actions. Those actions, by definition, are cases “which relate to . . . detention.” See Black’s 

Law Dictionary 728 (8th ed. 2004) (defining habeas corpus

as “[a] writ employed to bring a person before a court, 

most frequently to ensure that the party’s imprisonment

or detention is not illegal”). Petitioners argue, nevertheless, that MCA §7(b) is not a sufficiently clear statement of 

congressional intent to strip the federal courts of jurisdiction in pending cases. See Ex parte Yerger, 8 Wall. 85, 

102–103 (1869). We disagree.

Their argument is as follows: Section 2241(e)(1) refers to 

“a writ of habeas corpus.” The next paragraph, 

§2241(e)(2), refers to “any other action . . . relating to any 

aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who . . . [has] been properly detained as an enemy combatant or is awaiting such

determination.” There are two separate paragraphs, the

argument continues, so there must be two distinct classes 

of cases. And the effective date subsection, MCA §7(b), it 

is said, refers only to the second class of cases, for it

largely repeats the language of §2241(e)(2) by referring to 

“cases . . . which relate to any aspect of the detention,

transfer, treatment, trial, or conditions of detention of an 
 

Cite as: 553 U. S. ____ (2008) 7 

Opinion of the Court 

alien detained by the United States.” 

Petitioners’ textual argument would have more force

were it not for the phrase “other action” in §2241(e)(2).

The phrase cannot be understood without referring back 

to the paragraph that precedes it, §2241(e)(1), which 

explicitly mentions the term “writ of habeas corpus.” The 

structure of the two paragraphs implies that habeas actions are a type of action “relating to any aspect of the 

detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained . . . as an 

enemy combatant.” Pending habeas actions, then, are in

the category of cases subject to the statute’s jurisdictional

bar. 

We acknowledge, moreover, the litigation history that 

prompted Congress to enact the MCA. In Hamdan the 

Court found it unnecessary to address the petitioner’s 

Suspension Clause arguments but noted the relevance of 

the clear statement rule in deciding whether Congress 

intended to reach pending habeas corpus cases. See 548 

U. S., at 575 (Congress should “not be presumed to have

effected such denial [of habeas relief] absent an unmistakably clear statement to the contrary”). This interpretive rule facilitates a dialogue between Congress and the 

Court. Cf. Hilton v. South Carolina Public Railways 

Comm’n, 502 U. S. 197, 206 (1991); H. Hart & A. Sacks,

The Legal Process: Basic Problems in the Making and 

Application of Law 1209–1210 (W. Eskridge & P. Frickey 

eds. 1994). If the Court invokes a clear statement rule to 

advise that certain statutory interpretations are favored

in order to avoid constitutional difficulties, Congress can 

make an informed legislative choice either to amend the 

statute or to retain its existing text. If Congress amends,

its intent must be respected even if a difficult constitutional question is presented. The usual presumption is

that Members of Congress, in accord with their oath of

office, considered the constitutional issue and determined 
 

8 BOUMEDIENE v. BUSH 

Opinion of the Court 

the amended statute to be a lawful one; and the Judiciary, 

in light of that determination, proceeds to its own independent judgment on the constitutional question when

required to do so in a proper case.

If this ongoing dialogue between and among the 

branches of Government is to be respected, we cannot 

ignore that the MCA was a direct response to Hamdan’s 

holding that the DTA’s jurisdiction-stripping provision 

had no application to pending cases. The Court of Appeals

was correct to take note of the legislative history when

construing the statute, see 476 F. 3d, at 986, n. 2 (citing 

relevant floor statements); and we agree with its conclusion that the MCA deprives the federal courts of jurisdiction to entertain the habeas corpus actions now before us. 

III 

In deciding the constitutional questions now presented 

we must determine whether petitioners are barred from

seeking the writ or invoking the protections of the Suspension Clause either because of their status, i.e., petitioners’

designation by the Executive Branch as enemy combatants, or their physical location, i.e., their presence at 

Guantanamo Bay. The Government contends that noncitizens designated as enemy combatants and detained in

territory located outside our Nation’s borders have no

constitutional rights and no privilege of habeas corpus. 

Petitioners contend they do have cognizable constitutional 

rights and that Congress, in seeking to eliminate recourse 

to habeas corpus as a means to assert those rights, acted 

in violation of the Suspension Clause. 

We begin with a brief account of the history and origins

of the writ. Our account proceeds from two propositions. 

First, protection for the privilege of habeas corpus was one

of the few safeguards of liberty specified in a Constitution

that, at the outset, had no Bill of Rights. In the system

conceived by the Framers the writ had a centrality that 
Cite as: 553 U. S. ____ (2008) 9 

Opinion of the Court 

must inform proper interpretation of the Suspension 

Clause. Second, to the extent there were settled precedents or legal commentaries in 1789 regarding the extraterritorial scope of the writ or its application to enemy 

aliens, those authorities can be instructive for the present 

cases. 

A 

The Framers viewed freedom from unlawful restraint as 

a fundamental precept of liberty, and they understood the

writ of habeas corpus as a vital instrument to secure that

freedom. Experience taught, however, that the commonlaw writ all too often had been insufficient to guard 

against the abuse of monarchial power. That history

counseled the necessity for specific language in the Constitution to secure the writ and ensure its place in our legal 

system.

Magna Carta decreed that no man would be imprisoned 

contrary to the law of the land. Art. 39, in Sources of Our 

Liberties 17 (R. Perry & J. Cooper eds. 1959) (“No free

man shall be taken or imprisoned or dispossessed, or

outlawed, or banished, or in any way destroyed, nor will 

we go upon him, nor send upon him, except by the legal 

judgment of his peers or by the law of the land”). Important as the principle was, the Barons at Runnymede prescribed no specific legal process to enforce it. Holdsworth 

tells us, however, that gradually the writ of habeas corpus 

became the means by which the promise of Magna Carta

was fulfilled. 9 W. Holdsworth, A History of English Law 

112 (1926) (hereinafter Holdsworth). 

The development was painstaking, even by the centuries-long measures of English constitutional history. The 

writ was known and used in some form at least as early as 

the reign of Edward I. Id., at 108–125. Yet at the outset 

it was used to protect not the rights of citizens but those of 

the King and his courts. The early courts were considered 
 

 

10 BOUMEDIENE v. BUSH 

Opinion of the Court 

agents of the Crown, designed to assist the King in the

exercise of his power. See J. Baker, An Introduction to 

English Legal History 38–39 (4th ed. 2002). Thus the 

writ, while it would become part of the foundation of 

liberty for the King’s subjects, was in its earliest use a 

mechanism for securing compliance with the King’s

laws. See Halliday & White, The Suspension Clause: 

English Text, Imperial Contexts, and American Implications, 94 Va. L. Rev. (forthcoming 2008) (hereinafter

Halliday & White) (manuscript, at 11, online at 

http://papers.ssrn.com/sol3 /papers.cfm?abstract_id=100

8252 (all Internet materials as visited June 9, 2008, and 

available in Clerk of Court’s case file) (noting that “conceptually the writ arose from a theory of power rather than a 

theory of liberty”)). Over time it became clear that by

issuing the writ of habeas corpus common-law courts

sought to enforce the King’s prerogative to inquire into the

authority of a jailer to hold a prisoner. See M. Hale, Prerogatives of the King 229 (D. Yale ed. 1976); 2 J. Story,

Commentaries on the Constitution of the United States 

§1341, p. 237 (3d ed. 1858) (noting that the writ ran “into 

all parts of the king’s dominions; for it is said, that the 

king is entitled, at all times, to have an account, why the 

liberty of any of his subjects is restrained”).

Even so, from an early date it was understood that the 

King, too, was subject to the law. As the writers said of 

Magna Carta, “it means this, that the king is and shall be

below the law.” 1 F. Pollock & F. Maitland, History of

English Law 173 (2d ed. 1909); see also 2 Bracton On the 

Laws and Customs of England 33 (S. Thorne transl. 1968)

(“The king must not be under man but under God and

under the law, because law makes the king”). And, by the 

1600’s, the writ was deemed less an instrument of the 

King’s power and more a restraint upon it. See Collings,

Habeas Corpus for Convicts—Constitutional Right or 

Legislative Grace, 40 Calif. L. Rev. 335, 336 (1952) (noting 
Cite as: 553 U. S. ____ (2008) 11 

Opinion of the Court 

that by this point the writ was “the appropriate process for 

checking illegal imprisonment by public officials”).

Still, the writ proved to be an imperfect check. Even 

when the importance of the writ was well understood in 

England, habeas relief often was denied by the courts or 

suspended by Parliament. Denial or suspension occurred 

in times of political unrest, to the anguish of the imprisoned and the outrage of those in sympathy with them. 

A notable example from this period was Darnel’s Case, 3 

How. St. Tr. 1 (K. B. 1627). The events giving rise to the 

case began when, in a display of the Stuart penchant for 

authoritarian excess, Charles I demanded that Darnel and 

at least four others lend him money. Upon their refusal,

they were imprisoned. The prisoners sought a writ of 

habeas corpus; and the King filed a return in the form of a 

warrant signed by the Attorney General. Ibid. The court 

held this was a sufficient answer and justified the subjects’ continued imprisonment. Id., at 59. 

There was an immediate outcry of protest. The House of 

Commons promptly passed the Petition of Right, 3 Car. 1,

ch. 1 (1627), 5 Statutes of the Realm 23, 24 (reprint 1963),

which condemned executive “imprison[ment] without any 

cause” shown, and declared that “no freeman in any such 

manner as is before mencioned [shall] be imprisoned or 

deteined.” Yet a full legislative response was long delayed. The King soon began to abuse his authority again,

and Parliament was dissolved. See W. Hall & R. Albion, A 

History of England and the British Empire 328 (3d ed. 

1953) (hereinafter Hall & Albion). When Parliament 

reconvened in 1640, it sought to secure access to the writ

by statute. The Act of 1640, 16 Car. 1, ch. 10, 5 Statutes of 

the Realm, at 110, expressly authorized use of the writ to

test the legality of commitment by command or warrant of 

the King or the Privy Council. Civil strife and the Interregnum soon followed, and not until 1679 did Parliament 

try once more to secure the writ, this time through the 
 

 

12 BOUMEDIENE v. BUSH 

Opinion of the Court 

Habeas Corpus Act of 1679, 31 Car. 2, ch. 2, id., at 935. 

The Act, which later would be described by Blackstone as

the “stable bulwark of our liberties,” 1 W. Blackstone, 

Commentaries *137 (hereinafter Blackstone), established

procedures for issuing the writ; and it was the model upon 

which the habeas statutes of the 13 American Colonies 

were based, see Collings, supra, at 338–339. 

This history was known to the Framers. It no doubt 

confirmed their view that pendular swings to and away

from individual liberty were endemic to undivided, uncontrolled power. The Framers’ inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three 

independent branches. This design serves not only to

make Government accountable but also to secure individual liberty. See Loving v. United States, 517 U. S. 748, 

756 (1996) (noting that “[e]ven before the birth of this 

country, separation of powers was known to be a defense

against tyranny”); cf. Youngstown Sheet & Tube Co. v. 

Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring) 

(“[T]he Constitution diffuses power the better to secure 

liberty”); Clinton v. City of New York, 524 U. S. 417, 450 

(1998) (KENNEDY, J., concurring) (“Liberty is always at 

stake when one or more of the branches seek to transgress 

the separation of powers”). Because the Constitution’s 

separation-of-powers structure, like the substantive guarantees of the Fifth and Fourteenth Amendments, see Yick 

Wo v. Hopkins, 118 U. S. 356, 374 (1886), protects persons

as well as citizens, foreign nationals who have the privilege of litigating in our courts can seek to enforce separation-of-powers principles, see, e.g., INS v. Chadha, 462 

U. S. 919, 958–959 (1983).

That the Framers considered the writ a vital instrument 

for the protection of individual liberty is evident from the 

care taken to specify the limited grounds for its suspension: “The Privilege of the Writ of Habeas Corpus shall not 
 

Cite as: 553 U. S. ____ (2008) 13 

Opinion of the Court 

be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Art. I, §9, cl. 2; see 

Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425, 

1509, n. 329 (1987) (“[T]he non-suspension clause is the 

original Constitution’s most explicit reference to remedies”). The word “privilege” was used, perhaps, to avoid

mentioning some rights to the exclusion of others. (Indeed, the only mention of the term “right” in the Constitution, as ratified, is in its clause giving Congress the power 

to protect the rights of authors and inventors. See Art. I, 

§8, cl. 8.)

Surviving accounts of the ratification debates provide

additional evidence that the Framers deemed the writ to 

be an essential mechanism in the separation-of-powers

scheme. In a critical exchange with Patrick Henry at the

Virginia ratifying convention Edmund Randolph referred

to the Suspension Clause as an “exception” to the “power 

given to Congress to regulate courts.” See 3 Debates in 

the Several State Conventions on the Adoption of the

Federal Constitution 460–464 (J. Elliot 2d ed. 1876) (hereinafter Elliot’s Debates). A resolution passed by the New

York ratifying convention made clear its understanding

that the Clause not only protects against arbitrary suspensions of the writ but also guarantees an affirmative

right to judicial inquiry into the causes of detention. See 

Resolution of the New York Ratifying Convention (July 26,

1788), in 1 Elliot’s Debates 328 (noting the convention’s

understanding “[t]hat every person restrained of his liberty is entitled to an inquiry into the lawfulness of such

restraint, and to a removal thereof if unlawful; and that 

such inquiry or removal ought not to be denied or delayed, 

except when, on account of public danger, the Congress 

shall suspend the privilege of the writ of habeas corpus”).

Alexander Hamilton likewise explained that by providing 

the detainee a judicial forum to challenge detention, the

writ preserves limited government. As he explained in 
 

 

14 BOUMEDIENE v. BUSH 

Opinion of the Court 

The Federalist No. 84: 

“[T]he practice of arbitrary imprisonments, have been,

in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious 

Blackstone . . . are well worthy of recital: ‘To bereave 

a man of life . . . or by violence to confiscate his estate,

without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the

alarm of tyranny throughout the whole nation; but 

confinement of the person, by secretly hurrying him to

jail, where his sufferings are unknown or forgotten, is 

a less public, a less striking, and therefore a more 

dangerous engine of arbitrary government.’ And as a 

remedy for this fatal evil he is everywhere peculiarly 

emphatical in his encomiums on the habeas corpus 

act, which in one place he calls ‘the BULWARK of the 

British Constitution.’” C. Rossiter ed., p. 512 (1961)

(quoting 1 Blackstone *136, 4 id., at *438). 

Post-1789 habeas developments in England, though not 

bearing upon the Framers’ intent, do verify their foresight.

Those later events would underscore the need for structural barriers against arbitrary suspensions of the writ. 

Just as the writ had been vulnerable to executive and 

parliamentary encroachment on both sides of the Atlantic

before the American Revolution, despite the Habeas Corpus Act of 1679, the writ was suspended with frequency in

England during times of political unrest after 1789. Parliament suspended the writ for much of the period from 

1792 to 1801, resulting in rampant arbitrary imprisonment. See Hall & Albion 550. Even as late as World War 

I, at least one prominent English jurist complained that 

the Defence of the Realm Act, 1914, 4 & 5 Geo. 5, ch. 

29(1)(a), effectively had suspended the privilege of habeas

corpus for any person suspected of “communicating with

the enemy.” See King v. Halliday, [1917] A. C. 260, 299 
Cite as: 553 U. S. ____ (2008) 15 

Opinion of the Court 

(Lord Shaw, dissenting); see generally A. Simpson, In the 

Highest Degree Odious: Detention Without Trial in Wartime Britain 6–7, 24–25 (1992). 

In our own system the Suspension Clause is designed to

protect against these cyclical abuses. The Clause protects

the rights of the detained by a means consistent with the 

essential design of the Constitution. It ensures that, 

except during periods of formal suspension, the Judiciary 

will have a time-tested device, the writ, to maintain the 

“delicate balance of governance” that is itself the surest 

safeguard of liberty. See Hamdi, 542 U. S., at 536 (plurality opinion). The Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account. See Preiser v. Rodriguez, 

411 U. S. 475, 484 (1973) (“[T]he essence of habeas corpus 

is an attack by a person in custody upon the legality of 

that custody”); cf. In re Jackson, 15 Mich. 417, 439–440 

(1867) (Cooley, J., concurring) (“The important fact to be

observed in regard to the mode of procedure upon this 

[habeas] writ is, that it is directed to, and served upon, not

the person confined, but his jailer”). The separation-ofpowers doctrine, and the history that influenced its design, therefore must inform the reach and purpose of the 

Suspension Clause. 

B 

The broad historical narrative of the writ and its function is central to our analysis, but we seek guidance as 

well from founding-era authorities addressing the specific 

question before us: whether foreign nationals, apprehended and detained in distant countries during a time of

serious threats to our Nation’s security, may assert the 

privilege of the writ and seek its protection. The Court 

has been careful not to foreclose the possibility that the 

protections of the Suspension Clause have expanded along 

with post-1789 developments that define the present scope 
 

16 BOUMEDIENE v. BUSH 

Opinion of the Court 

of the writ. See INS v. St. Cyr, 533 U. S. 289, 300–301 

(2001). But the analysis may begin with precedents as of 

1789, for the Court has said that “at the absolute minimum” the Clause protects the writ as it existed when the

Constitution was drafted and ratified. Id., at 301. 

To support their arguments, the parties in these cases 

have examined historical sources to construct a view of the 

common-law writ as it existed in 1789—as have amici 

whose expertise in legal history the Court has relied upon

in the past. See Brief for Legal Historians as Amici Curiae; see also St. Cyr, supra, at 302, n. 16. The Government argues the common-law writ ran only to those territories over which the Crown was sovereign. See Brief for 

Respondents 27. Petitioners argue that jurisdiction followed the King’s officers. See Brief for Petitioner Boumediene et al. 11. Diligent search by all parties reveals no

certain conclusions. In none of the cases cited do we find 

that a common-law court would or would not have 

granted, or refused to hear for lack of jurisdiction, a petition for a writ of habeas corpus brought by a prisoner 

deemed an enemy combatant, under a standard like the 

one the Department of Defense has used in these cases, 

and when held in a territory, like Guantanamo, over 

which the Government has total military and civil control. 

We know that at common law a petitioner’s status as an

alien was not a categorical bar to habeas corpus relief. 

See, e.g., Sommersett’s Case, 20 How. St. Tr. 1, 80–82 

(1772) (ordering an African slave freed upon finding the

custodian’s return insufficient); see generally Khera v. 

Secretary of State for the Home Dept., [1984] A. C. 74, 111 

(“Habeas corpus protection is often expressed as limited to 

‘British subjects.’ Is it really limited to British nationals? 

Suffice it to say that the case law has given an emphatic

‘no’ to the question”). We know as well that common-law 

courts entertained habeas petitions brought by enemy

aliens detained in England—“entertained” at least in the 
Cite as: 553 U. S. ____ (2008) 17 

Opinion of the Court 

sense that the courts held hearings to determine the

threshold question of entitlement to the writ. See Case of 

Three Spanish Sailors, 2 Black. W. 1324, 96 Eng. Rep. 775 

(C. P. 1779); King v. Schiever, 2 Burr. 765, 97 Eng. Rep. 

551 (K. B. 1759); Du Castro’s Case, Fort. 195, 92 Eng. Rep. 

816 (K. B. 1697). 

In Schiever and the Spanish Sailors’ case, the courts 

denied relief to the petitioners. Whether the holdings in

these cases were jurisdictional or based upon the courts’

ruling that the petitioners were detained lawfully as

prisoners of war is unclear. See Spanish Sailors, supra, at 

1324, 96 Eng. Rep., at 776; Schiever, supra, at 766, 97 

Eng. Rep., at 552. In Du Castro’s Case, the court granted

relief, but that case is not analogous to petitioners’ because the prisoner there appears to have been detained in 

England. See Halliday & White 27, n. 72. To the extent 

these authorities suggest the common-law courts abstained altogether from matters involving prisoners of

war, there was greater justification for doing so in the

context of declared wars with other nation states. Judicial 

intervention might have complicated the military’s ability 

to negotiate exchange of prisoners with the enemy, a 

wartime practice well known to the Framers. See Resolution of Mar. 30, 1778, 10 Journals of the Continental 

Congress 1774–1789, p. 295 (W. Ford ed. 1908) (directing 

General Washington not to exchange prisoners with the

British unless the enemy agreed to exempt citizens from 

capture).

We find the evidence as to the geographic scope of the 

writ at common law informative, but, again, not dispositive. Petitioners argue the site of their detention is analogous to two territories outside of England to which the

writ did run: the so-called “exempt jurisdictions,” like the 

Channel Islands; and (in former times) India. There are 

critical differences between these places and Guantanamo,

however. 
 

 

 

 

18 BOUMEDIENE v. BUSH 

Opinion of the Court 

As the Court noted in Rasul, 542 U. S., at 481–482, and 

nn. 11–12, common-law courts granted habeas corpus

relief to prisoners detained in the exempt jurisdictions. 

But these areas, while not in theory part of the realm of 

England, were nonetheless under the Crown’s control. See 

2 H. Hallam, Constitutional History of England: From the 

Accession of Henry VII to the Death of George II, pp. 232–

233 (reprint 1989). And there is some indication that 

these jurisdictions were considered sovereign territory. 

King v. Cowle, 2 Burr. 834, 854, 855, 97 Eng. Rep. 587,

599 (K. B. 1759) (describing one of the exempt jurisdictions, Berwick-upon-Tweed, as under the “sovereign jurisdiction” and “subjection of the Crown of England”). Because the United States does not maintain formal 

sovereignty over Guantanamo Bay, see Part IV, infra, the 

naval station there and the exempt jurisdictions discussed 

in the English authorities are not similarly situated.

Petitioners and their amici further rely on cases in 

which British courts in India granted writs of habeas

corpus to noncitizens detained in territory over which the

Moghul Emperor retained formal sovereignty and control.

See supra, at 12–13; Brief for Legal Historians as Amici 

Curiae 12–13. The analogy to the present cases breaks

down, however, because of the geographic location of the 

courts in the Indian example. The Supreme Court of 

Judicature (the British Court) sat in Calcutta; but no 

federal court sits at Guantanamo. The Supreme Court of

Judicature was, moreover, a special court set up by Parliament to monitor certain conduct during the British Raj. 

See Regulating Act of 1773, 13 Geo. 3, §§13–14. That it 

had the power to issue the writ in nonsovereign territory

does not prove that common-law courts sitting in England

had the same power. If petitioners were to have the better 

of the argument on this point, we would need some demonstration of a consistent practice of common-law courts

sitting in England and entertaining petitions brought by 
 

Cite as: 553 U. S. ____ (2008) 19 

Opinion of the Court 

alien prisoners detained abroad. We find little support for

this conclusion. 

The Government argues, in turn, that Guantanamo is

more closely analogous to Scotland and Hanover, territories that were not part of England but nonetheless controlled by the English monarch (in his separate capacities

as King of Scotland and Elector of Hanover). See Cowle, 2 

Burr., at 856, 97 Eng. Rep., at 600. Lord Mansfield can be 

cited for the proposition that, at the time of the founding,

English courts lacked the “power” to issue the writ to

Scotland and Hanover, territories Lord Mansfield referred 

to as “foreign.” Ibid. But what matters for our purposes is

why common-law courts lacked this power. Given the 

English Crown’s delicate and complicated relationships

with Scotland and Hanover in the 1700’s, we cannot disregard the possibility that the common-law courts’ refusal to 

issue the writ to these places was motivated not by formal

legal constructs but by what we would think of as prudential concerns. This appears to have been the case with 

regard to other British territories where the writ did not 

run. See 2 R. Chambers, A Course of Lectures on English

Law 1767–1773, p. 8 (T. Curley ed. 1986) (quoting the

view of Lord Mansfield in Cowle that “[n]otwithstanding 

the power which the judges have, yet where they cannot

judge of the cause, or give relief upon it, they would not 

think proper to interpose; and therefore in the case of 

imprisonments in Guernsey, Jersey, Minorca, or the plantations, the most usual way is to complain to the king in 

Council” (internal quotation marks omitted)). And after 

the Act of Union in 1707, through which the kingdoms of 

England and Scotland were merged politically, Queen

Anne and her successors, in their new capacity as sovereign of Great Britain, ruled the entire island as one kingdom. Accordingly, by the time Lord Mansfield penned his

opinion in Cowle in 1759, Scotland was no longer a “foreign” country vis-à-vis England—at least not in the sense 
 

20 BOUMEDIENE v. BUSH 

Opinion of the Court 

in which Cuba is a foreign country vis-à-vis the United

States. 

Scotland remained “foreign” in Lord Mansfield’s day in 

at least one important respect, however. Even after the 

Act of Union, Scotland (like Hanover) continued to maintain its own laws and court system. See 1 Blackstone *98, 

*109. Under these circumstances prudential considerations would have weighed heavily when courts sitting in

England received habeas petitions from Scotland or the

Electorate. Common-law decisions withholding the writ

from prisoners detained in these places easily could be

explained as efforts to avoid either or both of two embarrassments: conflict with the judgments of another court of 

competent jurisdiction; or the practical inability, by reason

of distance, of the English courts to enforce their judgments outside their territorial jurisdiction. Cf. Munaf v. 

Geren, ante, at 15 (opinion of the Court) (recognizing that 

“‘prudential concerns’ . . . such as comity and the orderly 

administration of criminal justice” affect the appropriate

exercise of habeas jurisdiction). 

By the mid-19th century, British courts could issue the 

writ to Canada, notwithstanding the fact that Canadian 

courts also had the power to do so. See 9 Holdsworth 124 

(citing Ex parte Anderson, 3 El. and El. 487 (1861)). This 

might be seen as evidence that the existence of a separate

court system was no barrier to the running of the commonlaw writ. The Canada of the 1800’s, however, was in 

many respects more analogous to the exempt jurisdictions 

or to Ireland, where the writ ran, than to Scotland or 

Hanover in the 1700’s, where it did not. Unlike Scotland 

and Hanover, Canada followed English law. See B. 

Laskin, The British Tradition in Canadian Law 50–51 

(1969).

In the end a categorical or formal conception of sovereignty does not provide a comprehensive or altogether 

satisfactory explanation for the general understanding 
 

Cite as: 553 U. S. ____ (2008) 21 

Opinion of the Court 

that prevailed when Lord Mansfield considered issuance of 

the writ outside England. In 1759 the writ did not run to 

Scotland but did run to Ireland, even though, at that 

point, Scotland and England had merged under the rule of 

a single sovereign, whereas the Crowns of Great Britain 

and Ireland remained separate (at least in theory). See 

Cowle, supra, at 856–857, 97 Eng. Rep., 600; 1 Blackstone 

*100–101. But there was at least one major difference

between Scotland’s and Ireland’s relationship with England during this period that might explain why the writ 

ran to Ireland but not to Scotland. English law did not 

generally apply in Scotland (even after the Act of Union)

but it did apply in Ireland. Blackstone put it as follows:

“[A]s Scotland and England are now one and the same 

kingdom, and yet differ in their municipal laws; so England and Ireland are, on the other hand, distinct kingdoms, and yet in general agree in their laws.” Id., at *100. 

This distinction, and not formal notions of sovereignty,

may well explain why the writ did not run to Scotland 

(and Hanover) but would run to Ireland.

The prudential barriers that may have prevented the

English courts from issuing the writ to Scotland and

Hanover are not relevant here. We have no reason to 

believe an order from a federal court would be disobeyed 

at Guantanamo. No Cuban court has jurisdiction to hear

these petitioners’ claims, and no law other than the laws

of the United States applies at the naval station. The 

modern-day relations between the United States and 

Guantanamo thus differ in important respects from the 

18th-century relations between England and the kingdoms

of Scotland and Hanover. This is reason enough for us to 

discount the relevance of the Government’s analogy. 

Each side in the present matter argues that the very

lack of a precedent on point supports its position. The 

Government points out there is no evidence that a court

sitting in England granted habeas relief to an enemy alien 
 

22 BOUMEDIENE v. BUSH 

Opinion of the Court 

detained abroad; petitioners respond there is no evidence

that a court refused to do so for lack of jurisdiction. 

Both arguments are premised, however, upon the assumption that the historical record is complete and that 

the common law, if properly understood, yields a definite

answer to the questions before us. There are reasons to 

doubt both assumptions. Recent scholarship points to the

inherent shortcomings in the historical record. See Halliday & White 14–15 (noting that most reports of 18thcentury habeas proceedings were not printed). And given 

the unique status of Guantanamo Bay and the particular 

dangers of terrorism in the modern age, the common-law 

courts simply may not have confronted cases with close

parallels to this one. We decline, therefore, to infer too 

much, one way or the other, from the lack of historical

evidence on point. Cf. Brown v. Board of Education, 347 

U. S. 483, 489 (1954) (noting evidence concerning the

circumstances surrounding the adoption of the Fourteenth

Amendment, discussed in the parties’ briefs and uncovered through the Court’s own investigation, “convince us 

that, although these sources cast some light, it is not

enough to resolve the problem with which we are faced. 

At best, they are inconclusive”); Reid v. Covert, 354 U. S. 

1, 64 (1957) (Frankfurter, J., concurring in result) (arguing constitutional adjudication should not be based upon 

evidence that is “too episodic, too meager, to form a solid 

basis in history, preceding and contemporaneous with the 

framing of the Constitution”). 

IV 

Drawing from its position that at common law the writ

ran only to territories over which the Crown was sovereign, the Government says the Suspension Clause affords 

petitioners no rights because the United States does not 

claim sovereignty over the place of detention. 

Guantanamo Bay is not formally part of the United 
Cite as: 553 U. S. ____ (2008) 23 

Opinion of the Court 

States. See DTA §1005(g), 119 Stat. 2743. And under the 

terms of the lease between the United States and Cuba, 

Cuba retains “ultimate sovereignty” over the territory 

while the United States exercises “complete jurisdiction

and control.” See Lease of Lands for Coaling and Naval

Stations, Feb. 23, 1903, U. S.-Cuba, Art. III, T. S. No. 418 

(hereinafter 1903 Lease Agreement); Rasul, 542 U. S., at 

471. Under the terms of the 1934 Treaty, however, Cuba

effectively has no rights as a sovereign until the parties

agree to modification of the 1903 Lease Agreement or the 

United States abandons the base. See Treaty Defining

Relations with Cuba, May 29, 1934, U. S.-Cuba, Art. III, 

48 Stat. 1683, T. S. No. 866. 

The United States contends, nevertheless, that Guantanamo is not within its sovereign control. This was the 

Government’s position well before the events of September 

11, 2001. See, e.g., Brief for Petitioners in Sale v. Haitian 

Centers Council, Inc., O. T. 1992, No. 92–344, p. 31 (arguing that Guantanamo is territory “outside the United 

States”). And in other contexts the Court has held that 

questions of sovereignty are for the political branches to 

decide. See Vermilya-Brown Co. v. Connell, 335 U. S. 377, 

380 (1948) (“[D]etermination of sovereignty over an area is

for the legislative and executive departments”); see also 

Jones v. United States, 137 U. S. 202 (1890); Williams v. 

Suffolk Ins. Co., 13 Pet. 415, 420 (1839). Even if this were 

a treaty interpretation case that did not involve a political 

question, the President’s construction of the lease agreement would be entitled to great respect. See Sumitomo 

Shoji America, Inc. v. Avagliano, 457 U. S. 176, 184–185 

(1982).

We therefore do not question the Government’s position

that Cuba, not the United States, maintains sovereignty,

in the legal and technical sense of the term, over Guantanamo Bay. But this does not end the analysis. Our 

cases do not hold it is improper for us to inquire into the 
 

 

24 BOUMEDIENE v. BUSH 

Opinion of the Court 

objective degree of control the Nation asserts over foreign 

territory. As commentators have noted, “‘[s]overeignty’ is 

a term used in many senses and is much abused.” See 1 

Restatement (Third) of Foreign Relations Law of the

United States §206, Comment b, p. 94 (1986). When we 

have stated that sovereignty is a political question, we

have referred not to sovereignty in the general, colloquial 

sense, meaning the exercise of dominion or power, see 

Webster’s New International Dictionary 2406 (2d ed. 

1934) (“sovereignty,” definition 3), but sovereignty in the

narrow, legal sense of the term, meaning a claim of right,

see 1 Restatement (Third) of Foreign Relations, supra,

§206, Comment b, at 94 (noting that sovereignty “implies 

a state’s lawful control over its territory generally to the

exclusion of other states, authority to govern in that territory, and authority to apply law there”). Indeed, it is not 

altogether uncommon for a territory to be under the de 

jure sovereignty of one nation, while under the plenary 

control, or practical sovereignty, of another. This condition can occur when the territory is seized during war, as

Guantanamo was during the Spanish-American War. See, 

e.g., Fleming v. Page, 9 How. 603, 614 (1850) (noting that 

the port of Tampico, conquered by the United States during the war with Mexico, was “undoubtedly . . . subject to 

the sovereignty and dominion of the United States,” but 

that it “does not follow that it was a part of the United

States, or that it ceased to be a foreign country”); King v. 

Earl of Crewe ex parte Sekgome, [1910] 2 K. B. 576, 603–

604 (C. A.) (opinion of Williams, L. J.) (arguing that the

Bechuanaland Protectorate in South Africa was “under 

His Majesty’s dominion in the sense of power and jurisdiction, but is not under his dominion in the sense of territorial dominion”). Accordingly, for purposes of our analysis,

we accept the Government’s position that Cuba, and not 

the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take notice 
 

Cite as: 553 U. S. ____ (2008) 25 

Opinion of the Court 

of the obvious and uncontested fact that the United States, 

by virtue of its complete jurisdiction and control over the 

base, maintains de facto sovereignty over this territory. 

See 542 U. S., at 480; id., at 487 (KENNEDY, J., concurring 

in judgment).

Were we to hold that the present cases turn on the

political question doctrine, we would be required first to

accept the Government’s premise that de jure sovereignty

is the touchstone of habeas corpus jurisdiction. This 

premise, however, is unfounded. For the reasons indicated above, the history of common-law habeas corpus 

provides scant support for this proposition; and, for the 

reasons indicated below, that position would be inconsistent with our precedents and contrary to fundamental 

separation-of-powers principles. 

A 

The Court has discussed the issue of the Constitution’s 

extraterritorial application on many occasions. These 

decisions undermine the Government’s argument that, at 

least as applied to noncitizens, the Constitution necessarily stops where de jure sovereignty ends.

The Framers foresaw that the United States would 

expand and acquire new territories. See American Ins. Co. 

v. 356 Bales of Cotton, 1 Pet. 511, 542 (1828). Article IV, 

§3, cl. 1, grants Congress the power to admit new States. 

Clause 2 of the same section grants Congress the “Power 

to dispose of and make all needful Rules and Regulations 

respecting the Territory or other Property belonging to the 

United States.” Save for a few notable (and notorious) 

exceptions, e.g., Dred Scott v. Sandford, 19 How. 393 

(1857), throughout most of our history there was little 

need to explore the outer boundaries of the Constitution’s

geographic reach. When Congress exercised its power to 

create new territories, it guaranteed constitutional protections to the inhabitants by statute. See, e.g., An Act: to 
 

26 BOUMEDIENE v. BUSH 

Opinion of the Court 

establish a Territorial Government for Utah, 9 Stat. 458 

(“[T]he Constitution and laws of the United States are

hereby extended over and declared to be in force in said 

Territory of Utah”); Rev. Stat. §1891 (“The Constitution 

and all laws of the United States which are not locally 

inapplicable shall have the same force and effect within all 

the organized Territories, and in every Territory hereafter 

organized as elsewhere within the United States”); see 

generally Burnett, Untied States: American Expansion 

and Territorial Deannexation, 72 U. Chi. L. Rev. 797, 825– 

827 (2005). In particular, there was no need to test the 

limits of the Suspension Clause because, as early as 1789, 

Congress extended the writ to the Territories. See Act of 

Aug. 7, 1789, 1 Stat. 52 (reaffirming Art. II of Northwest

Ordinance of 1787, which provided that “[t]he inhabitants

of the said territory, shall always be entitled to the benefits of the writ of habeas corpus”).

Fundamental questions regarding the Constitution’s 

geographic scope first arose at the dawn of the 20th century when the Nation acquired noncontiguous Territories:

Puerto Rico, Guam, and the Philippines—ceded to the

United States by Spain at the conclusion of the SpanishAmerican War—and Hawaii—annexed by the United 

States in 1898. At this point Congress chose to discontinue its previous practice of extending constitutional 

rights to the territories by statute. See, e.g., An Act Temporarily to provide for the administration of the affairs of 

civil government in the Philippine Islands, and for other 

purposes, 32 Stat. 692 (noting that Rev. Stat. §1891 did 

not apply to the Philippines). 

In a series of opinions later known as the Insular Cases, 

the Court addressed whether the Constitution, by its own 

force, applies in any territory that is not a State. See De 

Lima v. Bidwell, 182 U. S. 1 (1901); Dooley v. United 

States, 182 U. S. 222 (1901); Armstrong v. United States, 

182 U. S. 243 (1901); Downes v. Bidwell, 182 U. S. 244 
 

Cite as: 553 U. S. ____ (2008) 27 

Opinion of the Court 

(1901); Hawaii v. Mankichi, 190 U. S. 197 (1903); Dorr v. 

United States, 195 U. S. 138 (1904). The Court held that 

the Constitution has independent force in these territories, a force not contingent upon acts of legislative grace.

Yet it took note of the difficulties inherent in that position. 

Prior to their cession to the United States, the former 

Spanish colonies operated under a civil-law system, without experience in the various aspects of the AngloAmerican legal tradition, for instance the use of grand and 

petit juries. At least with regard to the Philippines, a 

complete transformation of the prevailing legal culture

would have been not only disruptive but also unnecessary, 

as the United States intended to grant independence to

that Territory. See An Act To declare the purpose of the

people of the United States as to the future political status 

of the people of the Philippine Islands, and to provide a 

more autonomous government for those islands (Jones

Act), 39 Stat. 545 (noting that “it was never the intention 

of the people of the United States in the incipiency of the

War with Spain to make it a war of conquest or for territorial aggrandizement” and that “it is, as it has always been, 

the purpose of the people of the United States to withdraw 

their sovereignty over the Philippine Islands and to recognize their independence as soon as a stable government 

can be established therein”). The Court thus was reluctant to risk the uncertainty and instability that could 

result from a rule that displaced altogether the existing

legal systems in these newly acquired Territories. See 

Downes, supra, at 282 (“It is obvious that in the annexation of outlying and distant possessions grave questions 

will arise from differences of race, habits, laws and customs of the people, and from differences of soil, climate 

and production . . . ”).

These considerations resulted in the doctrine of territorial incorporation, under which the Constitution applies in 

full in incorporated Territories surely destined for state­
 

 

28 BOUMEDIENE v. BUSH 

Opinion of the Court 

hood but only in part in unincorporated Territories. See 

Dorr, supra, at 143 (“Until Congress shall see fit to incorporate territory ceded by treaty into the United States, . . . 

the territory is to be governed under the power existing in 

Congress to make laws for such territories and subject to

such constitutional restrictions upon the powers of that

body as are applicable to the situation”); Downes, supra, at 

293 (White, J., concurring) (“[T]he determination of what 

particular provision of the Constitution is applicable,

generally speaking, in all cases, involves an inquiry into 

the situation of the territory and its relations to the

United States”). As the Court later made clear, “the real 

issue in the Insular Cases was not whether the Constitution extended to the Philippines or Porto Rico when we

went there, but which of its provisions were applicable by

way of limitation upon the exercise of executive and legislative power in dealing with new conditions and requirements.” Balzac v. Porto Rico, 258 U. S. 298, 312 (1922). It 

may well be that over time the ties between the United

States and any of its unincorporated Territories 

strengthen in ways that are of constitutional significance.

Cf. Torres v. Puerto Rico, 442 U. S. 465, 475–476 (1979) 

(Brennan, J., concurring in judgment) (“Whatever the

validity of the [Insular Cases] in the particular historical

context in which they were decided, those cases are clearly

not authority for questioning the application of the Fourth 

Amendment—or any other provision of the Bill of Rights—

to the Commonwealth of Puerto Rico in the 1970’s”). But, 

as early as Balzac in 1922, the Court took for granted that 

even in unincorporated Territories the Government of the 

United States was bound to provide to noncitizen inhabitants “guaranties of certain fundamental personal rights 

declared in the Constitution.” 258 U. S., at 312; see also 

Late Corp. of Church of Jesus Christ of Latter-day Saints 

v. United States, 136 U. S. 1, 44 (1890) (“Doubtless Congress, in legislating for the Territories would be subject to 
Cite as: 553 U. S. ____ (2008) 29 

Opinion of the Court 

those fundamental limitations in favor of personal rights

which are formulated in the Constitution and its amendments”). Yet noting the inherent practical difficulties of 

enforcing all constitutional provisions “always and everywhere,” Balzac, supra, at 312, the Court devised in the 

Insular Cases a doctrine that allowed it to use its power

sparingly and where it would be most needed. This century-old doctrine informs our analysis in the present 

matter. 

Practical considerations likewise influenced the Court’s 

analysis a half-century later in Reid, 354 U. S. 1. The 

petitioners there, spouses of American servicemen, lived

on American military bases in England and Japan. They

were charged with crimes committed in those countries 

and tried before military courts, consistent with executive 

agreements the United States had entered into with the

British and Japanese governments. Id., at 15–16, and nn. 

29–30 (plurality opinion). Because the petitioners were

not themselves military personnel, they argued they were

entitled to trial by jury.

Justice Black, writing for the plurality, contrasted the

cases before him with the Insular Cases, which involved 

territories “with wholly dissimilar traditions and institutions” that Congress intended to govern only “temporarily.” Id., at 14. Justice Frankfurter argued that the “specific circumstances of each particular case” are relevant in

determining the geographic scope of the Constitution. Id., 

at 54 (opinion concurring in result). And Justice Harlan, 

who had joined an opinion reaching the opposite result in

the case in the previous Term, Reid v. Covert, 351 U. S. 

487 (1956), was most explicit in rejecting a “rigid and 

abstract rule” for determining where constitutional guarantees extend. Reid, 354 U. S., at 74 (opinion concurring 

in result). He read the Insular Cases to teach that 

whether a constitutional provision has extraterritorial

effect depends upon the “particular circumstances, the 
 

30 BOUMEDIENE v. BUSH 

Opinion of the Court 

practical necessities, and the possible alternatives which

Congress had before it” and, in particular, whether judicial enforcement of the provision would be “impracticable 

and anomalous.” Id., at 74–75; see also United States v. 

Verdugo-Urquidez, 494 U. S. 259, 277–278 (1990)

(KENNEDY, J., concurring) (applying the “impracticable 

and anomalous” extraterritoriality test in the Fourth 

Amendment context).

That the petitioners in Reid were American citizens was 

a key factor in the case and was central to the plurality’s

conclusion that the Fifth and Sixth Amendments apply to 

American civilians tried outside the United States. But 

practical considerations, related not to the petitioners’ 

citizenship but to the place of their confinement and trial,

were relevant to each Member of the Reid majority. And 

to Justices Harlan and Frankfurter (whose votes were 

necessary to the Court’s disposition) these considerations 

were the decisive factors in the case. 

Indeed the majority splintered on this very point. The 

key disagreement between the plurality and the concurring Justices in Reid was over the continued precedential

value of the Court’s previous opinion in In re Ross, 140 

U. S. 453 (1891), which the Reid Court understood as 

holding that under some circumstances Americans abroad

have no right to indictment and trial by jury. The petitioner in Ross was a sailor serving on an American merchant vessel in Japanese waters who was tried before an

American consular tribunal for the murder of a fellow 

crewman. 140 U. S., at 459, 479. The Ross Court held 

that the petitioner, who was a British subject, had no

rights under the Fifth and Sixth Amendments. Id., at 464. 

The petitioner’s citizenship played no role in the disposition of the case, however. The Court assumed (consistent

with the maritime custom of the time) that Ross had all 

the rights of a similarly situated American citizen. Id., at 

479 (noting that Ross was “under the protection and sub­
Cite as: 553 U. S. ____ (2008) 31 

Opinion of the Court 

ject to the laws of the United States equally with the 

seaman who was native born”). The Justices in Reid 

therefore properly understood Ross as standing for the 

proposition that, at least in some circumstances, the jury

provisions of the Fifth and Sixth Amendments have no

application to American citizens tried by American authorities abroad. See 354 U. S., at 11–12 (plurality opinion) (describing Ross as holding that “constitutional protections applied ‘only to citizens and others within the 

United States . . . and not to residents or temporary sojourners abroad’” (quoting Ross, supra, at 464)); 354 U. S.,

at 64 (Frankfurter, J., concurring in result) (noting that

the consular tribunals upheld in Ross “w[ere] based on 

long-established custom and they were justified as the

best possible means for securing justice for the few Americans present in [foreign] countries”); 354 U. S., at 75 

(Harlan, J., concurring in result) (“what Ross and the 

Insular Cases hold is that the particular local setting, the 

practical necessities, and the possible alternatives are 

relevant to a question of judgment, namely, whether jury

trial should be deemed a necessary condition of the exercise of Congress’ power to provide for the trial of Americans overseas”).

The Reid plurality doubted that Ross was rightly decided, precisely because it believed the opinion was insufficiently protective of the rights of American citizens. See 

354 U. S., at 10–12; see also id., at 78 (Clark, J., dissenting) (noting that “four of my brothers would specifically 

overrule and two would impair the long-recognized vitality 

of an old and respected precedent in our law, the case of In 

re Ross, 140 U. S. 453 (1891)”). But Justices Harlan and 

Frankfurter, while willing to hold that the American 

citizen petitioners in the cases before them were entitled

to the protections of Fifth and Sixth Amendments, were 

unwilling to overturn Ross. 354 U. S., at 64 (Frankfurter, 

J., concurring in result); id., at 75 (Harlan, J., concurring 
 

 

32 BOUMEDIENE v. BUSH 

Opinion of the Court 

in result). Instead, the two concurring Justices distinguished Ross from the cases before them, not on the basis 

of the citizenship of the petitioners, but on practical considerations that made jury trial a more feasible option for 

them than it was for the petitioner in Ross. If citizenship

had been the only relevant factor in the case, it would 

have been necessary for the Court to overturn Ross, something Justices Harlan and Frankfurter were unwilling to

do. See Verdugo-Urquidez, supra, at 277 (KENNEDY, J., 

concurring) (noting that Ross had not been overruled).

Practical considerations weighed heavily as well in 

Johnson v. Eisentrager, 339 U. S. 763 (1950), where the 

Court addressed whether habeas corpus jurisdiction extended to enemy aliens who had been convicted of violating the laws of war. The prisoners were detained at 

Landsberg Prison in Germany during the Allied Powers’ 

postwar occupation. The Court stressed the difficulties of 

ordering the Government to produce the prisoners in a 

habeas corpus proceeding. It “would require allocation of

shipping space, guarding personnel, billeting and rations” 

and would damage the prestige of military commanders at 

a sensitive time. Id., at 779. In considering these factors 

the Court sought to balance the constraints of military 

occupation with constitutional necessities. Id., at 769– 

779; see Rasul, 542 U. S., at 475–476 (discussing the 

factors relevant to Eisentrager’s constitutional holding);

542 U. S., at 486 (KENNEDY, J., concurring in judgment) 

(same).

True, the Court in Eisentrager denied access to the writ, 

and it noted the prisoners “at no relevant time were

within any territory over which the United States is sovereign, and [that] the scenes of their offense, their capture, 

their trial and their punishment were all beyond the

territorial jurisdiction of any court of the United States.”

339 U. S., at 778. The Government seizes upon this language as proof positive that the Eisentrager Court adopted 
 

Cite as: 553 U. S. ____ (2008) 33 

Opinion of the Court 

a formalistic, sovereignty-based test for determining the 

reach of the Suspension Clause. See Brief for Respondents 18–20. We reject this reading for three reasons.

First, we do not accept the idea that the above-quoted

passage from Eisentrager is the only authoritative language in the opinion and that all the rest is dicta. The 

Court’s further determinations, based on practical considerations, were integral to Part II of its opinion and came 

before the decision announced its holding. See 339 U. S., 

at 781. 

Second, because the United States lacked both de jure

sovereignty and plenary control over Landsberg Prison, 

see infra, at 34–35, it is far from clear that the Eisentrager

Court used the term sovereignty only in the narrow technical sense and not to connote the degree of control the 

military asserted over the facility. See supra, at 21. The 

Justices who decided Eisentrager would have understood 

sovereignty as a multifaceted concept. See Black’s Law 

Dictionary 1568 (4th ed. 1951) (defining “sovereignty” as

“[t]he supreme, absolute, and uncontrollable power by 

which any independent state is governed”; “the international independence of a state, combined with the right 

and power of regulating its internal affairs without foreign

dictation”; and “[t]he power to do everything in a state

without accountability”); Ballentine’s Law Dictionary with 

Pronunciations 1216 (2d ed. 1948) (defining “sovereignty” 

as “[t]hat public authority which commands in civil society, and orders and directs what each citizen is to perform

to obtain the end of its institution”). In its principal brief

in Eisentrager, the Government advocated a bright-line

test for determining the scope of the writ, similar to the

one it advocates in these cases. See Brief for Petitioners in 

Johnson v. Eisentrager, O. T. 1949, No. 306, pp. 74–75.

Yet the Court mentioned the concept of territorial sovereignty only twice in its opinion. See Eisentrager, supra, at 

778, 780. That the Court devoted a significant portion of 
 

 

34 BOUMEDIENE v. BUSH 

Opinion of the Court 

Part II to a discussion of practical barriers to the running 

of the writ suggests that the Court was not concerned

exclusively with the formal legal status of Landsberg

Prison but also with the objective degree of control the 

United States asserted over it. Even if we assume the 

Eisentrager Court considered the United States’ lack of 

formal legal sovereignty over Landsberg Prison as the 

decisive factor in that case, its holding is not inconsistent

with a functional approach to questions of extraterritoriality. The formal legal status of a given territory affects, at

least to some extent, the political branches’ control over

that territory. De jure sovereignty is a factor that bears

upon which constitutional guarantees apply there. 

Third, if the Government’s reading of Eisentrager were 

correct, the opinion would have marked not only a change 

in, but a complete repudiation of, the Insular Cases’ (and

later Reid’s) functional approach to questions of extraterritoriality. We cannot accept the Government’s view. 

Nothing in Eisentrager says that de jure sovereignty is or

has ever been the only relevant consideration in determining the geographic reach of the Constitution or of habeas 

corpus. Were that the case, there would be considerable 

tension between Eisentrager, on the one hand, and the 

Insular Cases and Reid, on the other. Our cases need not 

be read to conflict in this manner. A constricted reading of 

Eisentrager overlooks what we see as a common thread 

uniting the Insular Cases, Eisentrager, and Reid: the idea 

that questions of extraterritoriality turn on objective 

factors and practical concerns, not formalism. 

B 

The Government’s formal sovereignty-based test raises

troubling separation-of-powers concerns as well. The 

political history of Guantanamo illustrates the deficiencies

of this approach. The United States has maintained 

complete and uninterrupted control of the bay for over 100 
 

Cite as: 553 U. S. ____ (2008) 35 

Opinion of the Court 

years. At the close of the Spanish-American War, Spain 

ceded control over the entire island of Cuba to the United 

States and specifically “relinquishe[d] all claim[s] of sovereignty . . . and title.” See Treaty of Paris, Dec. 10, 1898,

U. S.-Spain, Art. I, 30 Stat. 1755, T. S. No. 343. From the 

date the treaty with Spain was signed until the Cuban

Republic was established on May 20, 1902, the United 

States governed the territory “in trust” for the benefit of 

the Cuban people. Neely v. Henkel, 180 U. S. 109, 120 

(1901); H. Thomas, Cuba or The Pursuit of Freedom 436, 

460 (1998). And although it recognized, by entering into

the 1903 Lease Agreement, that Cuba retained “ultimate

sovereignty” over Guantanamo, the United States continued to maintain the same plenary control it had enjoyed

since 1898. Yet the Government’s view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the

formal sense of the term. The necessary implication of the

argument is that by surrendering formal sovereignty over

any unincorporated territory to a third party, while at the 

same time entering into a lease that grants total control 

over the territory back to the United States, it would be 

possible for the political branches to govern without legal

constraint. 

Our basic charter cannot be contracted away like this.

The Constitution grants Congress and the President the

power to acquire, dispose of, and govern territory, not the

power to decide when and where its terms apply. Even 

when the United States acts outside its borders, its powers

are not “absolute and unlimited” but are subject “to such 

restrictions as are expressed in the Constitution.” Murphy 

v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the 

power to switch the Constitution on or off at will is quite

another. The former position reflects this Court’s recogni­
 

36 BOUMEDIENE v. BUSH 

Opinion of the Court 

tion that certain matters requiring political judgments are 

best left to the political branches. The latter would permit 

a striking anomaly in our tripartite system of government, 

leading to a regime in which Congress and the President,

not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the

writ of habeas corpus is itself an indispensable mechanism 

for monitoring the separation of powers. The test for 

determining the scope of this provision must not be subject 

to manipulation by those whose power it is designed to

restrain. 

C 

As we recognized in Rasul, 542 U. S., at 476; id., at 487 

(KENNEDY, J., concurring in judgment), the outlines of a 

framework for determining the reach of the Suspension 

Clause are suggested by the factors the Court relied upon

in Eisentrager. In addition to the practical concerns discussed above, the Eisentrager Court found relevant that 

each petitioner: 

“(a) is an enemy alien; (b) has never been or resided in 

the United States; (c) was captured outside of our territory and there held in military custody as a prisoner 

of war; (d) was tried and convicted by a Military 

Commission sitting outside the United States; (e) for 

offenses against laws of war committed outside the

United States; (f) and is at all times imprisoned outside the United States.” 339 U. S., at 777. 

Based on this language from Eisentrager, and the reasoning in our other extraterritoriality opinions, we conclude 

that at least three factors are relevant in determining the

reach of the Suspension Clause: (1) the citizenship and 

status of the detainee and the adequacy of the process 
 

Cite as: 553 U. S. ____ (2008) 37 

Opinion of the Court 

through which that status determination was made; (2) 

the nature of the sites where apprehension and then

detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ. 

Applying this framework, we note at the onset that the

status of these detainees is a matter of dispute. The petitioners, like those in Eisentrager, are not American citizens. But the petitioners in Eisentrager did not contest, it 

seems, the Court’s assertion that they were “enemy

alien[s].” Ibid. In the instant cases, by contrast, the 

detainees deny they are enemy combatants. They have

been afforded some process in CSRT proceedings to determine their status; but, unlike in Eisentrager, supra, at 

766, there has been no trial by military commission for 

violations of the laws of war. The difference is not trivial. 

The records from the Eisentrager trials suggest that, well

before the petitioners brought their case to this Court, 

there had been a rigorous adversarial process to test the

legality of their detention. The Eisentrager petitioners

were charged by a bill of particulars that made detailed

factual allegations against them. See 14 United Nations 

War Crimes Commission, Law Reports of Trials of War 

Criminals 8–10 (1949) (reprint 1997). To rebut the accusations, they were entitled to representation by counsel, 

allowed to introduce evidence on their own behalf, and 

permitted to cross-examine the prosecution’s witnesses. 

See Memorandum by Command of Lt. Gen. Wedemeyer,

Jan. 21, 1946 (establishing “Regulations Governing the

Trial of War Criminals” in the China Theater), in Tr. of

Record in Johnson v. Eisentrager, O. T. 1949, No. 306, pp.

34–40. 

In comparison the procedural protections afforded to the

detainees in the CSRT hearings are far more limited, and, 

we conclude, fall well short of the procedures and adversarial mechanisms that would eliminate the need for 

habeas corpus review. Although the detainee is assigned a 
 

38 BOUMEDIENE v. BUSH 

Opinion of the Court 

“Personal Representative” to assist him during CSRT

proceedings, the Secretary of the Navy’s memorandum 

makes clear that person is not the detainee’s lawyer or

even his “advocate.” See App. to Pet. for Cert. in No. 06– 

1196, at 155, 172. The Government’s evidence is accorded 

a presumption of validity. Id., at 159. The detainee is 

allowed to present “reasonably available” evidence, id., at 

155, but his ability to rebut the Government’s evidence

against him is limited by the circumstances of his confinement and his lack of counsel at this stage. And although the detainee can seek review of his status determination in the Court of Appeals, that review process

cannot cure all defects in the earlier proceedings. See Part 

V, infra. 

As to the second factor relevant to this analysis, the

detainees here are similarly situated to the Eisentrager

petitioners in that the sites of their apprehension and 

detention are technically outside the sovereign territory of

the United States. As noted earlier, this is a factor that 

weighs against finding they have rights under the Suspension Clause. But there are critical differences between 

Landsberg Prison, circa 1950, and the United States Naval Station at Guantanamo Bay in 2008. Unlike its present control over the naval station, the United States’ 

control over the prison in Germany was neither absolute

nor indefinite. Like all parts of occupied Germany, the

prison was under the jurisdiction of the combined Allied 

Forces. See Declaration Regarding the Defeat of Germany

and the Assumption of Supreme Authority with Respect to 

Germany, June 5, 1945, U. S.-U. S. S. R.-U. K.-Fr., 60 

Stat. 1649, T. I. A. S. No. 1520. The United States was 

therefore answerable to its Allies for all activities occurring there. Cf. Hirota v. MacArthur, 338 U. S. 197, 198 

(1948) (per curiam) (military tribunal set up by Gen. 

Douglas MacArthur, acting as “the agent of the Allied 

Powers,” was not a “tribunal of the United States”). The 
Cite as: 553 U. S. ____ (2008) 39 

Opinion of the Court 

Allies had not planned a long-term occupation of Germany, nor did they intend to displace all German institutions even during the period of occupation. See Agreements Respecting Basic Principles for Merger of the Three

Western German Zones of Occupation, and Other Matters,

Apr. 8, 1949, U. S.-U. K.-Fr., Art. 1, 63 Stat. 2819,

T. I. A. S. No. 2066 (establishing a governing framework 

“[d]uring the period in which it is necessary that the occupation continue” and expressing the desire “that the German people shall enjoy self-government to the maximum

possible degree consistent with such occupation”). The 

Court’s holding in Eisentrager was thus consistent with 

the Insular Cases, where it had held there was no need to 

extend full constitutional protections to territories the 

United States did not intend to govern indefinitely. Guantanamo Bay, on the other hand, is no transient possession.

In every practical sense Guantanamo is not abroad; it is 

within the constant jurisdiction of the United States. See 

Rasul, 542 U. S., at 480; id., at 487 (KENNEDY, J., concurring in judgment).

As to the third factor, we recognize, as the Court did in 

Eisentrager, that there are costs to holding the Suspension 

Clause applicable in a case of military detention abroad.

Habeas corpus proceedings may require expenditure of 

funds by the Government and may divert the attention of 

military personnel from other pressing tasks. While we 

are sensitive to these concerns, we do not find them dispositive. Compliance with any judicial process requires 

some incremental expenditure of resources. Yet civilian 

courts and the Armed Forces have functioned along side

each other at various points in our history. See, e.g., 

Duncan v. Kahanamoku, 327 U. S. 304 (1946); Ex parte 

Milligan, 4 Wall. 2 (1866). The Government presents no

credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had 

jurisdiction to hear the detainees’ claims. And in light of 
 

40 BOUMEDIENE v. BUSH 

Opinion of the Court 

the plenary control the United States asserts over the 

base, none are apparent to us. 

The situation in Eisentrager was far different, given the

historical context and nature of the military’s mission in 

post-War Germany. When hostilities in the European

Theater came to an end, the United States became responsible for an occupation zone encompassing over 57,000 

square miles with a population of 18 million. See Letter 

from President Truman to Secretary of State Byrnes, 

(Nov. 28, 1945), in 8 Documents on American Foreign

Relations 257 (R. Dennett & R. Turner eds. 1948); Pollock,

A Territorial Pattern for the Military Occupation of Germany, 38 Am. Pol. Sci. Rev. 970, 975 (1944). In addition to 

supervising massive reconstruction and aid efforts the

American forces stationed in Germany faced potential

security threats from a defeated enemy. In retrospect the 

post-War occupation may seem uneventful. But at the 

time Eisentrager was decided, the Court was right to be

concerned about judicial interference with the military’s

efforts to contain “enemy elements, guerrilla fighters, and

‘were-wolves.’” 339 U. S., at 784. 

Similar threats are not apparent here; nor does the 

Government argue that they are. The United States 

Naval Station at Guantanamo Bay consists of 45 square 

miles of land and water. The base has been used, at various points, to house migrants and refugees temporarily.

At present, however, other than the detainees themselves, 

the only long-term residents are American military personnel, their families, and a small number of workers. See 

History of Guantanamo Bay online at https://www.cnic.

navy.mil/Guantanamo/AboutGTMO/gtmohistorygeneral/ 

gtmohistgeneral. The detainees have been deemed enemies of the United States. At present, dangerous as they

may be if released, they are contained in a secure prison 

facility located on an isolated and heavily fortified military 

base. 
 

Cite as: 553 U. S. ____ (2008) 41 

Opinion of the Court 

There is no indication, furthermore, that adjudicating a

habeas corpus petition would cause friction with the host 

government. No Cuban court has jurisdiction over American military personnel at Guantanamo or the enemy

combatants detained there. While obligated to abide by

the terms of the lease, the United States is, for all practical purposes, answerable to no other sovereign for its acts 

on the base. Were that not the case, or if the detention 

facility were located in an active theater of war, arguments that issuing the writ would be “impracticable or 

anomalous” would have more weight. See Reid, 354 U. S., 

at 74 (Harlan, J., concurring in result). Under the facts 

presented here, however, there are few practical barriers

to the running of the writ. To the extent barriers arise, 

habeas corpus procedures likely can be modified to address them. See Part VI–B, infra. 

It is true that before today the Court has never held

that noncitizens detained by our Government in territory

over which another country maintains de jure sovereignty

have any rights under our Constitution. But the cases 

before us lack any precise historical parallel. They involve

individuals detained by executive order for the duration of

a conflict that, if measured from September 11, 2001, to

the present, is already among the longest wars in American history. See Oxford Companion to American Military 

History 849 (1999). The detainees, moreover, are held in a 

territory that, while technically not part of the United

States, is under the complete and total control of our 

Government. Under these circumstances the lack of a 

precedent on point is no barrier to our holding. 

We hold that Art. I, §9, cl. 2, of the Constitution has full

effect at Guantanamo Bay. If the privilege of habeas

corpus is to be denied to the detainees now before us,

Congress must act in accordance with the requirements of 

the Suspension Clause. Cf. Hamdi, 542 U. S., at 564 

(SCALIA, J., dissenting) (“[I]ndefinite imprisonment on 
 

 

42 BOUMEDIENE v. BUSH 

Opinion of the Court 

reasonable suspicion is not an available option of treatment for those accused of aiding the enemy, absent a

suspension of the writ”). This Court may not impose a de 

facto suspension by abstaining from these controversies. 

See Hamdan, 548 U. S., at 585, n. 16 (“[A]bstention is not 

appropriate in cases . . . in which the legal challenge

‘turn[s] on the status of the persons as to whom the military asserted its power’” (quoting Schlesinger v. Councilman, 420 U. S. 738, 759 (1975))). The MCA does not 

purport to be a formal suspension of the writ; and the

Government, in its submissions to us, has not argued that

it is. Petitioners, therefore, are entitled to the privilege of 

habeas corpus to challenge the legality of their detention. 

V 

In light of this holding the question becomes whether 

the statute stripping jurisdiction to issue the writ avoids

the Suspension Clause mandate because Congress has 

provided adequate substitute procedures for habeas corpus. The Government submits there has been compliance 

with the Suspension Clause because the DTA review 

process in the Court of Appeals, see DTA §1005(e), provides an adequate substitute. Congress has granted that 

court jurisdiction to consider 

“(i) whether the status determination of the [CSRT]

. . . was consistent with the standards and procedures 

specified by the Secretary of Defense . . . and (ii) to the

extent the Constitution and laws of the United States 

are applicable, whether the use of such standards and 

procedures to make the determination is consistent 

with the Constitution and laws of the United States.” 

§1005(e)(2)(C), 119 Stat. 2742. 

The Court of Appeals, having decided that the writ does

not run to the detainees in any event, found it unnecessary to consider whether an adequate substitute has been 
Cite as: 553 U. S. ____ (2008) 43 

Opinion of the Court 

provided. In the ordinary course we would remand to the 

Court of Appeals to consider this question in the first 

instance. See Youakim v. Miller, 425 U. S. 231, 234 (1976) 

(per curiam). It is well settled, however, that the Court’s 

practice of declining to address issues left unresolved in

earlier proceedings is not an inflexible rule. Ibid. Departure from the rule is appropriate in “exceptional” circumstances. See Cooper Industries, Inc. v. Aviall Services, 

Inc., 543 U. S. 157, 169 (2004); Duignan v. United States, 

274 U. S. 195, 200 (1927).

The gravity of the separation-of-powers issues raised by

these cases and the fact that these detainees have been 

denied meaningful access to a judicial forum for a period of

years render these cases exceptional. The parties before

us have addressed the adequacy issue. While we would 

have found it informative to consider the reasoning of the

Court of Appeals on this point, we must weigh that

against the harms petitioners may endure from additional 

delay. And, given there are few precedents addressing 

what features an adequate substitute for habeas corpus

must contain, in all likelihood a remand simply would 

delay ultimate resolution of the issue by this Court.

We do have the benefit of the Court of Appeals’ construction of key provisions of the DTA. When we granted

certiorari in these cases, we noted “it would be of material 

assistance to consult any decision” in the parallel DTA

review proceedings pending in the Court of Appeals, specifically any rulings in the matter of Bismullah v. Gates. 

551 U. S. ___ (2007). Although the Court of Appeals has

yet to complete a DTA review proceeding, the three-judge

panel in Bismullah has issued an interim order giving 

guidance as to what evidence can be made part of the 

record on review and what access the detainees can have 

to counsel and to classified information. See 501 F. 3d 178 

(CADC) (Bismullah I), reh’g denied, 503 F. 3d 137 (CADC 

2007) (Bismullah II). In that matter the full court denied 
 

44 BOUMEDIENE v. BUSH 

Opinion of the Court 

the Government’s motion for rehearing en banc, see Bismullah v. Gates, 514 F. 3d 1291 (CADC 2008) (Bismullah 

III). The order denying rehearing was accompanied by

five separate statements from members of the court, which

offer differing views as to scope of the judicial review 

Congress intended these detainees to have. Ibid. 

Under the circumstances we believe the costs of further 

delay substantially outweigh any benefits of remanding to

the Court of Appeals to consider the issue it did not address in these cases. 

A 

Our case law does not contain extensive discussion of 

standards defining suspension of the writ or of circumstances under which suspension has occurred. This simply confirms the care Congress has taken throughout our

Nation’s history to preserve the writ and its function. 

Indeed, most of the major legislative enactments pertaining to habeas corpus have acted not to contract the writ’s

protection but to expand it or to hasten resolution of prisoners’ claims. See, e.g., Habeas Corpus Act of 1867, ch. 28, 

§1, 14 Stat. 385 (current version codified at 28 U. S. C.

§2241 (2000 ed. and Supp. V) (extending the federal writ 

to state prisoners)); Cf. Harris v. Nelson, 394 U. S. 286, 

299–300 (1969) (interpreting the All Writs Act, 28 U. S. C.

§1651, to allow discovery in habeas corpus proceedings); 

Peyton v. Rowe, 391 U. S. 54, 64–65 (1968) (interpreting

the then-existing version of §2241 to allow petitioner to 

proceed with his habeas corpus action, even though he had 

not yet begun to serve his sentence). 

There are exceptions, of course. Title I of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

§106, 110 Stat. 1220, contains certain gatekeeping provisions that restrict a prisoner’s ability to bring new and 

repetitive claims in “second or successive” habeas corpus 

actions. We upheld these provisions against a Suspension 
Cite as: 553 U. S. ____ (2008) 45 

Opinion of the Court 

Clause challenge in Felker v. Turpin, 518 U. S. 651, 662– 

664 (1996). The provisions at issue in Felker, however, did 

not constitute a substantial departure from common-law 

habeas procedures. The provisions, for the most part,

codified the longstanding abuse-of-the-writ doctrine. Id., 

at 664; see also McCleskey v. Zant, 499 U. S. 467, 489 

(1991). AEDPA applies, moreover, to federal, postconviction review after criminal proceedings in state court have

taken place. As of this point, cases discussing the implementation of that statute give little helpful instruction

(save perhaps by contrast) for the instant cases, where no

trial has been held. 

The two leading cases addressing habeas substitutes, 

Swain v. Pressley, 430 U. S. 372 (1977), and United States 

v. Hayman, 342 U. S. 205 (1952), likewise provide little 

guidance here. The statutes at issue were attempts to 

streamline habeas corpus relief, not to cut it back. 

The statute discussed in Hayman was 28 U. S. C. §2255. 

It replaced traditional habeas corpus for federal prisoners

(at least in the first instance) with a process that allowed

the prisoner to file a motion with the sentencing court on 

the ground that his sentence was, inter alia, “‘imposed in

violation of the Constitution or laws of the United States.’” 

342 U. S., at 207, n. 1. The purpose and effect of the statute was not to restrict access to the writ but to make 

postconviction proceedings more efficient. It directed 

claims not to the court that had territorial jurisdiction 

over the place of the petitioner’s confinement but to the 

sentencing court, a court already familiar with the facts of

the case. As the Hayman Court explained 

“Section 2255 . . . was passed at the instance of the 

Judicial Conference to meet practical difficulties that

had arisen in administering the habeas corpus jurisdiction of the federal courts. Nowhere in the history 

of Section 2255 do we find any purpose to impinge 
 

 

46 BOUMEDIENE v. BUSH 

Opinion of the Court 

upon prisoners’ rights of collateral attack upon their

convictions. On the contrary, the sole purpose was to

minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another

and more convenient forum.” Id., at 219. 

See also Hill v. United States, 368 U. S. 424, 427, 428, and 

n. 5 (1962) (noting that §2255 provides a remedy in the

sentencing court that is “exactly commensurate” with the 

pre-existing federal habeas corpus remedy). 

The statute in Swain, D. C. Code Ann. §23–110(g) 

(1973), applied to prisoners in custody under sentence of 

the Superior Court of the District of Columbia. Before 

enactment of the District of Columbia Court Reform and 

Criminal Procedure Act of 1970 (D. C. Court Reform Act),

84 Stat. 473, those prisoners could file habeas petitions in 

the United States District Court for the District of Columbia. The Act, which was patterned on §2255, substituted a

new collateral process in the Superior Court for the preexisting habeas corpus procedure in the District Court.

See Swain, 430 U. S., at 374–378. But, again, the purpose 

and effect of the statute was to expedite consideration of

the prisoner’s claims, not to delay or frustrate it. See id., 

at 375, n. 4 (noting that the purpose of the D. C. Court 

Reform Act was to “alleviate” administrative burdens on 

the District Court). 

That the statutes in Hayman and Swain were designed 

to strengthen, rather than dilute, the writ’s protections

was evident, furthermore, from this significant fact: Neither statute eliminated traditional habeas corpus relief. 

In both cases the statute at issue had a saving clause,

providing that a writ of habeas corpus would be available 

if the alternative process proved inadequate or ineffective. 

Swain, supra, at 381; Hayman, supra, at 223. The Court 

placed explicit reliance upon these provisions in upholding 

the statutes against constitutional challenges. See Swain, 
Cite as: 553 U. S. ____ (2008) 47 

Opinion of the Court 

supra, at 381 (noting that the provision “avoid[ed] any 

serious question about the constitutionality of the statute”); Hayman, supra, at 223 (noting that, because habeas 

remained available as a last resort, it was unnecessary to 

“reach constitutional questions”).

 Unlike in Hayman and Swain, here we confront statutes, the DTA and the MCA, that were intended to circumscribe habeas review. Congress’ purpose is evident 

not only from the unequivocal nature of MCA §7’s jurisdiction-stripping language, 28 U. S. C. A. §2241(e)(1) (Supp.

2007) (“No court, justice, or judge shall have jurisdiction to 

hear or consider an application for a writ of habeas corpus 

. . .”), but also from a comparison of the DTA to the statutes at issue in Hayman and Swain. When interpreting a

statute, we examine related provisions in other parts of 

the U. S. Code. See, e.g., West Virginia Univ. Hospitals, 

Inc. v. Casey, 499 U. S. 83, 88–97 (1991); Babbitt v. Sweet 

Home Chapter, Communities for Great Ore., 515 U. S. 687, 

717–718 (1995) (SCALIA, J., dissenting); see generally W.

Eskridge, P. Frickey, & E. Garrett, Cases and Materials 

on Legislation: Statutes and the Creation of Public Policy 

1039 (3d ed. 2001). When Congress has intended to replace traditional habeas corpus with habeas-like substitutes, as was the case in Hayman and Swain, it has 

granted to the courts broad remedial powers to secure the

historic office of the writ. In the §2255 context, for example, Congress has granted to the reviewing court power to

“determine the issues and make findings of fact and conclusions of law” with respect to whether “the judgment [of 

conviction] was rendered without jurisdiction, or . . . the 

sentence imposed was not authorized by law or otherwise

open to collateral attack.” 28 U. S. C. A. §2255(b) (Supp. 

2008). The D. C. Court Reform Act, the statute upheld in 

Swain, contained a similar provision. §23–110(g), 84 Stat. 

609. 

In contrast the DTA’s jurisdictional grant is quite lim­
 

 

48 BOUMEDIENE v. BUSH 

Opinion of the Court 

ited. The Court of Appeals has jurisdiction not to inquire

into the legality of the detention generally but only to

assess whether the CSRT complied with the “standards

and procedures specified by the Secretary of Defense” and 

whether those standards and procedures are lawful. DTA 

§1005(e)(2)(C), 119 Stat. 2742. If Congress had envisioned 

DTA review as coextensive with traditional habeas corpus, 

it would not have drafted the statute in this manner. 

Instead, it would have used language similar to what it

used in the statutes at issue in Hayman and Swain. Cf. 

Russello v. United States, 464 U. S. 16, 23 (1983)

(“‘[W]here Congress includes particular language in one 

section of a statute but omits it in another section of the 

same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or 

exclusion’” (quoting United States v. Wong Kim Bo, 472 

F. 2d 720, 722 (CA5 1972))). Unlike in Hayman and 

Swain, moreover, there has been no effort to preserve 

habeas corpus review as an avenue of last resort. No 

saving clause exists in either the MCA or the DTA. And 

MCA §7 eliminates habeas review for these petitioners. 

The differences between the DTA and the habeas statute that would govern in MCA §7’s absence, 28 U. S. C.

§2241 (2000 ed. and Supp. V), are likewise telling. In 

§2241 (2000 ed.) Congress confirmed the authority of “any 

justice” or “circuit judge” to issue the writ. Cf. Felker, 518 

U. S., at 660–661 (interpreting Title I of AEDPA to not 

strip from this Court the power to entertain original habeas corpus petitions). That statute accommodates the 

necessity for factfinding that will arise in some cases by 

allowing the appellate judge or Justice to transfer the case 

to a district court of competent jurisdiction, whose institutional capacity for factfinding is superior to his or her own. 

See 28 U. S. C. §2241(b). By granting the Court of Appeals “exclusive” jurisdiction over petitioners’ cases, see 

DTA §1005(e)(2)(A), 119 Stat. 2742, Congress has fore­
 

Cite as: 553 U. S. ____ (2008) 49 

Opinion of the Court 

closed that option. This choice indicates Congress intended the Court of Appeals to have a more limited role in 

enemy combatant status determinations than a district

court has in habeas corpus proceedings. The DTA should 

be interpreted to accord some latitude to the Court of 

Appeals to fashion procedures necessary to make its review function a meaningful one, but, if congressional 

intent is to be respected, the procedures adopted cannot be 

as extensive or as protective of the rights of the detainees 

as they would be in a §2241 proceeding. Otherwise there 

would have been no, or very little, purpose for enacting the

DTA. 

To the extent any doubt remains about Congress’ intent,

the legislative history confirms what the plain text

strongly suggests: In passing the DTA Congress did not

intend to create a process that differs from traditional 

habeas corpus process in name only. It intended to create 

a more limited procedure. See, e.g., 151 Cong. Rec. S14263 

(Dec. 21, 2005) (statement of Sen. Graham) (noting that 

the DTA “extinguish[es] these habeas and other actions in 

order to effect a transfer of jurisdiction over these cases to

the DC Circuit Court” and agreeing that the bill “create[s] 

in their place a very limited judicial review of certain

military administrative decisions”); id., at S14268 (statement of Sen. Kyl) (“It is important to note that the limited 

judicial review authorized by paragraphs 2 and 3 of subsection (e) [of DTA §1005] are not habeas-corpus review.

It is a limited judicial review of its own nature”). 

It is against this background that we must interpret the

DTA and assess its adequacy as a substitute for habeas 

corpus. The present cases thus test the limits of the Suspension Clause in ways that Hayman and Swain did not. 

B 

We do not endeavor to offer a comprehensive summary 

of the requisites for an adequate substitute for habeas 
 

 

50 BOUMEDIENE v. BUSH 

Opinion of the Court 

corpus. We do consider it uncontroversial, however, that 

the privilege of habeas corpus entitles the prisoner to a 

meaningful opportunity to demonstrate that he is being 

held pursuant to “the erroneous application or interpretation” of relevant law. St. Cyr, 533 U. S., at 302. And the 

habeas court must have the power to order the conditional

release of an individual unlawfully detained—though

release need not be the exclusive remedy and is not the

appropriate one in every case in which the writ is granted. 

See Ex parte Bollman, 4 Cranch 75, 136 (1807) (where

imprisonment is unlawful, the court “can only direct [the

prisoner] to be discharged”); R. Hurd, Treatise on the 

Right of Personal Liberty, and On the Writ of Habeas

Corpus and the Practice Connected with It: With a View of 

the Law of Extradition of Fugitives 222 (2d ed. 1876) (“It

cannot be denied where ‘a probable ground is shown that

the party is imprisoned without just cause, and therefore, 

hath a right to be delivered,’ for the writ then becomes a

‘writ of right, which may not be denied but ought to be

granted to every man that is committed or detained in

prison or otherwise restrained of his liberty’”). But see 

Chessman v. Teets, 354 U. S. 156, 165–166 (1957) (remanding in a habeas case for retrial within a “reasonable

time”). These are the easily identified attributes of any 

constitutionally adequate habeas corpus proceeding.

But, depending on the circumstances, more may be 

required. 

Indeed, common-law habeas corpus was, above all, an

adaptable remedy. Its precise application and scope 

changed depending upon the circumstances. See 3 Blackstone *131 (describing habeas as “the great and efficacious

writ, in all manner of illegal confinement”); see also 

Schlup v. Delo, 513 U. S. 298, 319 (1995) (Habeas “is, at

its core, an equitable remedy”); Jones v. Cunningham, 371 

U. S. 236, 243 (1963) (Habeas is not “a static, narrow,

formalistic remedy; its scope has grown to achieve its 
 

Cite as: 553 U. S. ____ (2008) 51 

Opinion of the Court 

grand purpose”). It appears the common-law habeas

court’s role was most extensive in cases of pretrial and

noncriminal detention, where there had been little or no 

previous judicial review of the cause for detention. Notably, the black-letter rule that prisoners could not controvert facts in the jailer’s return was not followed (or at least 

not with consistency) in such cases. Hurd, supra, at 271 

(noting that the general rule was “subject to exceptions”

including cases of bail and impressment); Oakes, Legal 

History in the High Court—Habeas Corpus, 64 Mich. L. 

Rev. 451, 457 (1966) (“[W]hen a prisoner applied for habeas corpus before indictment or trial, some courts examined the written depositions on which he had been arrested or committed, and others even heard oral testimony

to determine whether the evidence was sufficient to justifying holding him for trial” (footnotes omitted)); Fallon &

Meltzer, Habeas Corpus Jurisdiction, Substantive Rights,

and the War on Terror, 120 Harv. L. Rev. 2029, 2102 

(2007) (“[T]he early practice was not consistent: courts 

occasionally permitted factual inquiries when no other

opportunity for judicial review existed”). 

There is evidence from 19th-century American sources

indicating that, even in States that accorded strong res

judicata effect to prior adjudications, habeas courts in this

country routinely allowed prisoners to introduce exculpatory evidence that was either unknown or previously 

unavailable to the prisoner. See, e.g., Ex parte Pattison, 

56 Miss. 161, 164 (1878) (noting that “[w]hile the former 

adjudication must be considered as conclusive on the 

testimony then adduced” “newly developed exculpatory 

evidence . . . may authorize the admission to bail”); Ex 

parte Foster, 5 Tex. Ct. App. 625, 644 (1879) (construing 

the State’s habeas statute to allow for the introduction of 

new evidence “where important testimony has been obtained, which, though not newly discovered, or which, 

though known to [the petitioner], it was not in his power 
 

 

52 BOUMEDIENE v. BUSH 

Opinion of the Court 

to produce at the former hearing; [and] where the evidence

was newly discovered”); People v. Martin, 7 N. Y. Leg. Obs. 

49, 56 (1848) (“If in custody on criminal process before

indictment, the prisoner has an absolute right to demand

that the original depositions be looked into to see whether 

any crime is in fact imputed to him, and the inquiry will

by no means be confined to the return. Facts out of the 

return may be gone into to ascertain whether the committing magistrate may not have arrived at an illogical conclusion upon the evidence given before him . . .”); see 

generally W. Church, Treatise on the Writ of Habeas 

Corpus §182, p. 235 1886) (hereinafter Church) (noting 

that habeas courts would “hear evidence anew if justice

require it”). Justice McLean, on Circuit in 1855, expressed

his view that a habeas court should consider a prior judgment conclusive “where there was clearly jurisdiction and

a full and fair hearing; but that it might not be so considered when any of these requisites were wanting.” Ex parte 

Robinson, 20 F. Cas. 969, 971, (No. 11,935) (CC Ohio 

1855). To illustrate the circumstances in which the prior 

adjudication did not bind the habeas court, he gave the 

example of a case in which “[s]everal unimpeached witnesses” provided new evidence to exculpate the prisoner. 

Ibid. 

The idea that the necessary scope of habeas review in

part depends upon the rigor of any earlier proceedings

accords with our test for procedural adequacy in the due 

process context. See Mathews v. Eldridge, 424 U. S. 319, 

335 (1976) (noting that the Due Process Clause requires 

an assessment of, inter alia, “the risk of an erroneous 

deprivation of [a liberty interest;] and the probable value,

if any, of additional or substitute procedural safeguards”).

This principle has an established foundation in habeas

corpus jurisprudence as well, as Chief Justice Marshall’s

opinion in Ex parte Watkins, 3 Pet. 193 (1830), demonstrates. Like the petitioner in Swain, Watkins sought a 
 

Cite as: 553 U. S. ____ (2008) 53 

Opinion of the Court 

writ of habeas corpus after being imprisoned pursuant to a 

judgment of a District of Columbia court. In holding that

the judgment stood on “high ground,” 3 Pet., at 209, the 

Chief Justice emphasized the character of the court that

rendered the original judgment, noting it was a “court of

record, having general jurisdiction over criminal cases.” 

Id., at 203. In contrast to “inferior” tribunals of limited 

jurisdiction, ibid., courts of record had broad remedial 

powers, which gave the habeas court greater confidence in 

the judgment’s validity. See generally Neuman, Habeas

Corpus, Executive Detention, and the Removal of Aliens, 

98 Colum. L. Rev. 961, 982–983 (1998). 

Accordingly, where relief is sought from a sentence that 

resulted from the judgment of a court of record, as was the

case in Watkins and indeed in most federal habeas cases, 

considerable deference is owed to the court that ordered 

confinement. See Brown v. Allen, 344 U. S. 443, 506 

(1953) (opinion of Frankfurter, J.) (noting that a federal 

habeas court should accept a state court’s factual findings

unless “a vital flaw be found in the process of ascertaining 

such facts in the State court”). Likewise in those cases the 

prisoner should exhaust adequate alternative remedies

before filing for the writ in federal court. See Ex parte 

Royall, 117 U. S. 241, 251–252 (1886) (requiring exhaustion of state collateral processes). Both aspects of federal

habeas corpus review are justified because it can be assumed that, in the usual course, a court of record provides

defendants with a fair, adversary proceeding. In cases 

involving state convictions this framework also respects 

federalism; and in federal cases it has added justification 

because the prisoner already has had a chance to seek 

review of his conviction in a federal forum through a direct

appeal. The present cases fall outside these categories,

however; for here the detention is by executive order. 

Where a person is detained by executive order, rather

than, say, after being tried and convicted in a court, the 
 

 

54 BOUMEDIENE v. BUSH 

Opinion of the Court 

need for collateral review is most pressing. A criminal 

conviction in the usual course occurs after a judicial hearing before a tribunal disinterested in the outcome and

committed to procedures designed to ensure its own independence. These dynamics are not inherent in executive

detention orders or executive review procedures. In this 

context the need for habeas corpus is more urgent. The 

intended duration of the detention and the reasons for it 

bear upon the precise scope of the inquiry. Habeas corpus

proceedings need not resemble a criminal trial, even when 

the detention is by executive order. But the writ must be 

effective. The habeas court must have sufficient authority 

to conduct a meaningful review of both the cause for detention and the Executive’s power to detain. 

To determine the necessary scope of habeas corpus

review, therefore, we must assess the CSRT process, the 

mechanism through which petitioners’ designation as

enemy combatants became final. Whether one characterizes the CSRT process as direct review of the Executive’s 

battlefield determination that the detainee is an enemy 

combatant—as the parties have and as we do—or as the 

first step in the collateral review of a battlefield determination makes no difference in a proper analysis of whether 

the procedures Congress put in place are an adequate

substitute for habeas corpus. What matters is the sum 

total of procedural protections afforded to the detainee at 

all stages, direct and collateral. 

Petitioners identify what they see as myriad deficiencies 

in the CSRTs. The most relevant for our purposes are the 

constraints upon the detainee’s ability to rebut the factual

basis for the Government’s assertion that he is an enemy 

combatant. As already noted, see Part IV–C, supra, at the 

CSRT stage the detainee has limited means to find or 

present evidence to challenge the Government’s case 

against him. He does not have the assistance of counsel 

and may not be aware of the most critical allegations that 
 

Cite as: 553 U. S. ____ (2008) 55 

Opinion of the Court 

the Government relied upon to order his detention. See 

App. to Pet. for Cert. in No. 06–1196, at 156, ¶F(8) (noting 

that the detainee can access only the “unclassified portion

of the Government Information”). The detainee can confront witnesses that testify during the CSRT proceedings. 

Id., at 144, ¶g(8). But given that there are in effect no 

limits on the admission of hearsay evidence—the only

requirement is that the tribunal deem the evidence “relevant and helpful,” ibid., ¶g(9)—the detainee’s opportunity 

to question witnesses is likely to be more theoretical than

real. 

The Government defends the CSRT process, arguing 

that it was designed to conform to the procedures suggested by the plurality in Hamdi. See 542 U. S., at 538. 

Setting aside the fact that the relevant language in Hamdi 

did not garner a majority of the Court, it does not control 

the matter at hand. None of the parties in Hamdi argued 

there had been a suspension of the writ. Nor could they. 

The §2241 habeas corpus process remained in place, id., at 

525. Accordingly, the plurality concentrated on whether 

the Executive had the authority to detain and, if so, what 

rights the detainee had under the Due Process Clause. 

True, there are places in the Hamdi plurality opinion

where it is difficult to tell where its extrapolation of §2241

ends and its analysis of the petitioner’s Due Process rights

begins. But the Court had no occasion to define the necessary scope of habeas review, for Suspension Clause purposes, in the context of enemy combatant detentions. The 

closest the plurality came to doing so was in discussing

whether, in light of separation-of-powers concerns, §2241 

should be construed to forbid the District Court from 

inquiring beyond the affidavit Hamdi’s custodian provided 

in answer to the detainee’s habeas petition. The plurality

answered this question with an emphatic “no.” Id., at 527 

(labeling this argument as “extreme”); id., at 535–536. 

Even if we were to assume that the CSRTs satisfy due 
 

56 BOUMEDIENE v. BUSH 

Opinion of the Court 

process standards, it would not end our inquiry. Habeas 

corpus is a collateral process that exists, in Justice 

Holmes’ words, to “cu[t] through all forms and g[o] to the 

very tissue of the structure. It comes in from the outside, 

not in subordination to the proceedings, and although

every form may have been preserved opens the inquiry 

whether they have been more than an empty shell.” 

Frank v. Mangum, 237 U. S. 309, 346 (1915) (dissenting 

opinion). Even when the procedures authorizing detention 

are structurally sound, the Suspension Clause remains

applicable and the writ relevant. See 2 Chambers, Course 

of Lectures on English Law 1767–1773, at 6 (“Liberty may 

be violated either by arbitrary imprisonment without law 

or the appearance of law, or by a lawful magistrate for an

unlawful reason”). This is so, as Hayman and Swain 

make clear, even where the prisoner is detained after a 

criminal trial conducted in full accordance with the protections of the Bill of Rights. Were this not the case, there 

would have been no reason for the Court to inquire into

the adequacy of substitute habeas procedures in Hayman 

and Swain. That the prisoners were detained pursuant to 

the most rigorous proceedings imaginable, a full criminal 

trial, would have been enough to render any habeas substitute acceptable per se. 

Although we make no judgment as to whether the

CSRTs, as currently constituted, satisfy due process standards, we agree with petitioners that, even when all the

parties involved in this process act with diligence and in

good faith, there is considerable risk of error in the tribunal’s findings of fact. This is a risk inherent in any process that, in the words of the former Chief Judge of the

Court of Appeals, is “closed and accusatorial.” See Bismullah III, 514 F. 3d, at 1296 (Ginsburg, C. J., concurring

in denial of rehearing en banc). And given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this 
Cite as: 553 U. S. ____ (2008) 57 

Opinion of the Court 

is a risk too significant to ignore.

For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the 

court that conducts the habeas proceeding must have the

means to correct errors that occurred during the CSRT

proceedings. This includes some authority to assess the 

sufficiency of the Government’s evidence against the 

detainee. It also must have the authority to admit and 

consider relevant exculpatory evidence that was not introduced during the earlier proceeding. Federal habeas 

petitioners long have had the means to supplement the

record on review, even in the postconviction habeas setting. See Townsend v. Sain, 372 U. S. 293, 313 (1963), 

overruled in part by Keeney v. Tamayo-Reyes, 504 U. S. 1, 

5 (1992). Here that opportunity is constitutionally 

required.

Consistent with the historic function and province of the

writ, habeas corpus review may be more circumscribed if 

the underlying detention proceedings are more thorough

than they were here. In two habeas cases involving enemy 

aliens tried for war crimes, In re Yamashita, 327 U. S. 1 

(1946), and Ex parte Quirin, 317 U. S. 1 (1942), for example, this Court limited its review to determining whether

the Executive had legal authority to try the petitioners by

military commission. See Yamashita, supra, at 8 (“[O]n

application for habeas corpus we are not concerned with

the guilt or innocence of the petitioners. We consider here 

only the lawful power of the commission to try the petitioner for the offense charged”); Quirin, supra, at 25 (“We 

are not here concerned with any question of the guilt or 

innocence of petitioners”). Military courts are not courts of 

record. See Watkins, 3 Pet., at 209; Church 513. And the 

procedures used to try General Yamashita have been 

sharply criticized by Members of this Court. See Hamdan, 

548 U. S., at 617; Yamashita, supra, at 41–81 (Rutledge,

J., dissenting). We need not revisit these cases, however. 
 

 

 

58 BOUMEDIENE v. BUSH 

Opinion of the Court 

For on their own terms, the proceedings in Yamashita and 

Quirin, like those in Eisentrager, had an adversarial 

structure that is lacking here. See Yamashita, supra, at 5 

(noting that General Yamashita was represented by six

military lawyers and that “[t]hroughout the proceedings 

. . . defense counsel . . . demonstrated their professional 

skill and resourcefulness and their proper zeal for the 

defense with which they were charged”); Quirin, supra, at 

23–24; Exec. Order No. 9185, 7 Fed. Reg. 5103 (1942) 

(appointing counsel to represent the German saboteurs). 

The extent of the showing required of the Government 

in these cases is a matter to be determined. We need not 

explore it further at this stage. We do hold that when the 

judicial power to issue habeas corpus properly is invoked 

the judicial officer must have adequate authority to make

a determination in light of the relevant law and facts and 

to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s

release. 

C 

We now consider whether the DTA allows the Court of 

Appeals to conduct a proceeding meeting these standards.

“[W]e are obligated to construe the statute to avoid [constitutional] problems” if it is “‘fairly possible’” to do so. St. 

Cyr, 533 U. S., at 299–300 (quoting Crowell v. Benson, 285 

U. S. 22, 62 (1932)). There are limits to this principle,

however. The canon of constitutional avoidance does not 

supplant traditional modes of statutory interpretation.

See Clark v. Martinez, 543 U. S. 371, 385 (2005) (“The 

canon of constitutional avoidance comes into play only 

when, after the application of ordinary textual analysis, 

the statute is found to be susceptible of more than one

construction; and the canon functions as a means of choosing between them”). We cannot ignore the text and purpose of a statute in order to save it. 
 

Cite as: 553 U. S. ____ (2008) 59 

Opinion of the Court 

The DTA does not explicitly empower the Court of Appeals to order the applicant in a DTA review proceeding 

released should the court find that the standards and 

procedures used at his CSRT hearing were insufficient to

justify detention. This is troubling. Yet, for present purposes, we can assume congressional silence permits a 

constitutionally required remedy. In that case it would be 

possible to hold that a remedy of release is impliedly 

provided for. The DTA might be read, furthermore, to 

allow the petitioners to assert most, if not all, of the legal

claims they seek to advance, including their most basic

claim: that the President has no authority under the 

AUMF to detain them indefinitely. (Whether the President has such authority turns on whether the AUMF

authorizes—and the Constitution permits—the indefinite

detention of “enemy combatants” as the Department of

Defense defines that term. Thus a challenge to the President’s authority to detain is, in essence, a challenge to the 

Department’s definition of enemy combatant, a “standard” 

used by the CSRTs in petitioners’ cases.) At oral argument, the Solicitor General urged us to adopt both these

constructions, if doing so would allow MCA §7 to remain 

intact. See Tr. of Oral Arg. 37, 53.

The absence of a release remedy and specific language

allowing AUMF challenges are not the only constitutional 

infirmities from which the statute potentially suffers,

however. The more difficult question is whether the DTA 

permits the Court of Appeals to make requisite findings of 

fact. The DTA enables petitioners to request “review” of 

their CSRT determination in the Court of Appeals, DTA

§1005(e)(2)(B)(i), 119 Stat. 2742; but the “Scope of Review” 

provision confines the Court of Appeals’ role to reviewing

whether the CSRT followed the “standards and procedures” issued by the Department of Defense and assessing 

whether those “standards and procedures” are lawful.

§1005(e)(C), ibid. Among these standards is “the require­
 

60 BOUMEDIENE v. BUSH 

Opinion of the Court 

ment that the conclusion of the Tribunal be supported by a

preponderance of the evidence . . . allowing a rebuttable

presumption in favor of the Government’s evidence.”

§1005(e)(C)(i), ibid. 

Assuming the DTA can be construed to allow the Court

of Appeals to review or correct the CSRT’s factual determinations, as opposed to merely certifying that the tribunal applied the correct standard of proof, we see no way to 

construe the statute to allow what is also constitutionally

required in this context: an opportunity for the detainee to 

present relevant exculpatory evidence that was not made 

part of the record in the earlier proceedings. 

On its face the statute allows the Court of Appeals to

consider no evidence outside the CSRT record. In the 

parallel litigation, however, the Court of Appeals determined that the DTA allows it to order the production of all

“‘reasonably available information in the possession of the

U. S. Government bearing on the issue of whether the 

detainee meets the criteria to be designated as an enemy

combatant,’” regardless of whether this evidence was put 

before the CSRT. See Bismullah I, 501 F. 3d, at 180. The 

Government, see Pet. for Cert. pending in Gates v. Bismullah, No. 07–1054 (hereinafter Bismullah Pet.), with support from five members of the Court of Appeals, see Bismullah III, 514 F. 3d, at 1299 (Henderson, J., dissenting 

from denial of rehearing en banc); id., at 1302 (opinion of 

Randolph, J.) (same); id., at 1306 (opinion of Brown, J.) 

(same), disagrees with this interpretation. For present

purposes, however, we can assume that the Court of Appeals was correct that the DTA allows introduction and

consideration of relevant exculpatory evidence that was

“reasonably available” to the Government at the time of

the CSRT but not made part of the record. Even so, the 

DTA review proceeding falls short of being a constitutionally adequate substitute, for the detainee still would have

no opportunity to present evidence discovered after the 
Cite as: 553 U. S. ____ (2008) 61 

Opinion of the Court 

CSRT proceedings concluded. 

Under the DTA the Court of Appeals has the power to

review CSRT determinations by assessing the legality of 

standards and procedures. This implies the power to

inquire into what happened at the CSRT hearing and,

perhaps, to remedy certain deficiencies in that proceeding. 

But should the Court of Appeals determine that the CSRT

followed appropriate and lawful standards and procedures, it will have reached the limits of its jurisdiction. 

There is no language in the DTA that can be construed to

allow the Court of Appeals to admit and consider newly 

discovered evidence that could not have been made part of

the CSRT record because it was unavailable to either the 

Government or the detainee when the CSRT made its 

findings. This evidence, however, may be critical to the

detainee’s argument that he is not an enemy combatant 

and there is no cause to detain him. 

This is not a remote hypothetical. One of the petitioners, Mohamed Nechla, requested at his CSRT hearing that

the Government contact his employer. The petitioner

claimed the employer would corroborate Nechla’s contention he had no affiliation with al Qaeda. Although the

CSRT determined this testimony would be relevant, it also

found the witness was not reasonably available to testify 

at the time of the hearing. Petitioner’s counsel, however, 

now represents the witness is available to be heard. See 

Brief for Boumediene Petitioners 5. If a detainee can 

present reasonably available evidence demonstrating

there is no basis for his continued detention, he must have 

the opportunity to present this evidence to a habeas corpus court. Even under the Court of Appeals’ generous

construction of the DTA, however, the evidence identified 

by Nechla would be inadmissible in a DTA review proceeding. The role of an Article III court in the exercise of its 

habeas corpus function cannot be circumscribed in this 

manner. 
 

62 BOUMEDIENE v. BUSH 

Opinion of the Court 

By foreclosing consideration of evidence not presented or 

reasonably available to the detainee at the CSRT proceedings, the DTA disadvantages the detainee by limiting the 

scope of collateral review to a record that may not be

accurate or complete. In other contexts, e.g., in post-trial 

habeas cases where the prisoner already has had a full

and fair opportunity to develop the factual predicate of his 

claims, similar limitations on the scope of habeas review 

may be appropriate. See Williams v. Taylor, 529 U. S. 

420, 436–437 (2000) (noting that §2254 “does not equate

prisoners who exercise diligence in pursuing their claims 

with those who do not”). In this context, however, where 

the underlying detention proceedings lack the necessary 

adversarial character, the detainee cannot be held responsible for all deficiencies in the record. 

The Government does not make the alternative argument that the DTA allows for the introduction of previously unavailable exculpatory evidence on appeal. It does 

point out, however, that if a detainee obtains such evidence, he can request that the Deputy Secretary of Defense convene a new CSRT. See Supp. Brief for Respondents 4. Whatever the merits of this procedure, it is an 

insufficient replacement for the factual review these detainees are entitled to receive through habeas corpus. The 

Deputy Secretary’s determination whether to initiate new 

proceedings is wholly a discretionary one. See Dept. of

Defense, Office for the Administrative Review of the Detention of Enemy Combatants, Instruction 5421.1, Procedure for Review of “New Evidence” Relating to Enemy 

Combatant (EC) Status ¶5(d) (May 7, 2007) (Instruction 

5421.1) (“The decision to convene a CSRT to reconsider the

basis of the detainee’s [enemy combatant] status in light of 

‘new evidence’ is a matter vested in the unreviewable 

discretion of the [Deputy Secretary of Defense]”). And we 

see no way to construe the DTA to allow a detainee to 

challenge the Deputy Secretary’s decision not to open a 
Cite as: 553 U. S. ____ (2008) 63 

Opinion of the Court 

new CSRT pursuant to Instruction 5421.1. Congress

directed the Secretary of Defense to devise procedures for 

considering new evidence, see DTA §1005(a)(3), but the

detainee has no mechanism for ensuring that those procedures are followed. DTA §1005(e)(2)(C), 119 Stat. 2742, 

makes clear that the Court of Appeals’ jurisdiction is 

“limited to consideration of . . . whether the status determination of the Combatant Status Review Tribunal with 

regard to such alien was consistent with the standards

and procedures specified by the Secretary of Defense . . . 

and . . . whether the use of such standards and procedures 

to make the determination is consistent with the Constitution and laws of the United States.” DTA §1005(e)(2)(A), 

ibid., further narrows the Court of Appeals’ jurisdiction to 

reviewing “any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an

enemy combatant.” The Deputy Secretary’s determination 

whether to convene a new CSRT is not a “status determination of the Combatant Status Review Tribunal,” much 

less a “final decision” of that body. 

We do not imply DTA review would be a constitutionally 

sufficient replacement for habeas corpus but for these

limitations on the detainee’s ability to present exculpatory

evidence. For even if it were possible, as a textual matter,

to read into the statute each of the necessary procedures

we have identified, we could not overlook the cumulative 

effect of our doing so. To hold that the detainees at Guantanamo may, under the DTA, challenge the President’s 

legal authority to detain them, contest the CSRT’s findings of fact, supplement the record on review with exculpatory evidence, and request an order of release would 

come close to reinstating the §2241 habeas corpus process 

Congress sought to deny them. The language of the statute, read in light of Congress’ reasons for enacting it, 

cannot bear this interpretation. Petitioners have met 

their burden of establishing that the DTA review process 
 

64 BOUMEDIENE v. BUSH 

Opinion of the Court 

is, on its face, an inadequate substitute for habeas corpus. 

Although we do not hold that an adequate substitute

must duplicate §2241 in all respects, it suffices that the 

Government has not established that the detainees’ access 

to the statutory review provisions at issue is an adequate

substitute for the writ of habeas corpus. MCA §7 thus

effects an unconstitutional suspension of the writ. In view 

of our holding we need not discuss the reach of the writ

with respect to claims of unlawful conditions of treatment

or confinement. 

VI 

A 

In light of our conclusion that there is no jurisdictional 

bar to the District Court’s entertaining petitioners’ claims 

the question remains whether there are prudential barriers to habeas corpus review under these circumstances. 

The Government argues petitioners must seek review of 

their CSRT determinations in the Court of Appeals before 

they can proceed with their habeas corpus actions in the 

District Court. As noted earlier, in other contexts and for 

prudential reasons this Court has required exhaustion of 

alternative remedies before a prisoner can seek federal 

habeas relief. Most of these cases were brought by prisoners in state custody, e.g., Ex parte Royall, 117 U. S. 241, 

and thus involved federalism concerns that are not relevant here. But we have extended this rule to require 

defendants in courts-martial to exhaust their military 

appeals before proceeding with a federal habeas corpus

action. See Schlesinger, 420 U. S., at 758. 

The real risks, the real threats, of terrorist attacks are 

constant and not likely soon to abate. The ways to disrupt 

our life and laws are so many and unforeseen that the

Court should not attempt even some general catalogue of

crises that might occur. Certain principles are apparent, 

however. Practical considerations and exigent circum­
Cite as: 553 U. S. ____ (2008) 65 

Opinion of the Court 

stances inform the definition and reach of the law’s writs, 

including habeas corpus. The cases and our tradition 

reflect this precept.

In cases involving foreign citizens detained abroad by

the Executive, it likely would be both an impractical and 

unprecedented extension of judicial power to assume that

habeas corpus would be available at the moment the 

prisoner is taken into custody. If and when habeas corpus

jurisdiction applies, as it does in these cases, then proper 

deference can be accorded to reasonable procedures for 

screening and initial detention under lawful and proper 

conditions of confinement and treatment for a reasonable 

period of time. Domestic exigencies, furthermore, might 

also impose such onerous burdens on the Government that 

here, too, the Judicial Branch would be required to devise 

sensible rules for staying habeas corpus proceedings until

the Government can comply with its requirements in a 

responsible way. Cf. Ex parte Milligan, 4 Wall., at 127 

(“If, in foreign invasion or civil war, the courts are actually

closed, and it is impossible to administer criminal justice

according to law, then, on the theatre of active military 

operations, where war really prevails, there is a necessity 

to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and

as no power is left but the military, it is allowed to govern 

by martial rule until the laws can have their free course”).

Here, as is true with detainees apprehended abroad, a 

relevant consideration in determining the courts’ role is 

whether there are suitable alternative processes in place 

to protect against the arbitrary exercise of governmental 

power.

The cases before us, however, do not involve detainees 

who have been held for a short period of time while awaiting their CSRT determinations. Were that the case, or 

were it probable that the Court of Appeals could complete

a prompt review of their applications, the case for requir­
 

66 BOUMEDIENE v. BUSH 

Opinion of the Court 

ing temporary abstention or exhaustion of alternative 

remedies would be much stronger. These qualifications no 

longer pertain here. In some of these cases six years have 

elapsed without the judicial oversight that habeas corpus 

or an adequate substitute demands. And there has been 

no showing that the Executive faces such onerous burdens

that it cannot respond to habeas corpus actions. To require these detainees to complete DTA review before 

proceeding with their habeas corpus actions would be to 

require additional months, if not years, of delay. The first 

DTA review applications were filed over a year ago, but no 

decisions on the merits have been issued. While some 

delay in fashioning new procedures is unavoidable, the

costs of delay can no longer be borne by those who are held

in custody. The detainees in these cases are entitled to a 

prompt habeas corpus hearing. 

Our decision today holds only that the petitioners before 

us are entitled to seek the writ; that the DTA review 

procedures are an inadequate substitute for habeas corpus; and that the petitioners in these cases need not exhaust the review procedures in the Court of Appeals before 

proceeding with their habeas actions in the District Court. 

The only law we identify as unconstitutional is MCA §7,

28 U. S. C. A. §2241(e) (Supp. 2007). Accordingly, both the 

DTA and the CSRT process remain intact. Our holding

with regard to exhaustion should not be read to imply that

a habeas court should intervene the moment an enemy 

combatant steps foot in a territory where the writ runs. 

The Executive is entitled to a reasonable period of time to

determine a detainee’s status before a court entertains 

that detainee’s habeas corpus petition. The CSRT process

is the mechanism Congress and the President set up to

deal with these issues. Except in cases of undue delay,

federal courts should refrain from entertaining an enemy 

combatant’s habeas corpus petition at least until after the

Department, acting via the CSRT, has had a chance to 
Cite as: 553 U. S. ____ (2008) 67 

Opinion of the Court 

review his status. 

B 

Although we hold that the DTA is not an adequate and 

effective substitute for habeas corpus, it does not follow 

that a habeas corpus court may disregard the dangers the 

detention in these cases was intended to prevent. Felker, 

Swain, and Hayman stand for the proposition that the

Suspension Clause does not resist innovation in the field 

of habeas corpus. Certain accommodations can be made to 

reduce the burden habeas corpus proceedings will place on

the military without impermissibly diluting the protections of the writ. 

In the DTA Congress sought to consolidate review of 

petitioners’ claims in the Court of Appeals. Channeling

future cases to one district court would no doubt reduce 

administrative burdens on the Government. This is a 

legitimate objective that might be advanced even without

an amendment to §2241. If, in a future case, a detainee 

files a habeas petition in another judicial district in which

a proper respondent can be served, see Rumsfeld v. 

Padilla, 542 U. S. 426, 435–436 (2004), the Government 

can move for change of venue to the court that will hear

these petitioners’ cases, the United States District Court

for the District of Columbia. See 28 U. S. C. §1404(a); 

Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 

484, 499, n. 15 (1973). 

Another of Congress’ reasons for vesting exclusive jurisdiction in the Court of Appeals, perhaps, was to avoid the 

widespread dissemination of classified information. The 

Government has raised similar concerns here and elsewhere. See Brief for Respondents 55–56; Bismullah Pet. 

30. We make no attempt to anticipate all of the evidentiary and access-to-counsel issues that will arise during 

the course of the detainees’ habeas corpus proceedings. 

We recognize, however, that the Government has a legiti­
 

 

 

68 BOUMEDIENE v. BUSH 

Opinion of the Court 

mate interest in protecting sources and methods of intelligence gathering; and we expect that the District Court will 

use its discretion to accommodate this interest to the 

greatest extent possible. Cf. United States v. Reynolds, 

345 U. S. 1, 10 (1953) (recognizing an evidentiary privilege 

in a civil damages case where “there is a reasonable danger that compulsion of the evidence will expose military 

matters which, in the interest of national security, should 

not be divulged”).

These and the other remaining questions are within the

expertise and competence of the District Court to address 

in the first instance. 

* * * 

In considering both the procedural and substantive

standards used to impose detention to prevent acts of 

terrorism, proper deference must be accorded to the political branches. See United States v. Curtiss-Wright Export 

Corp., 299 U. S. 304, 320 (1936). Unlike the President and 

some designated Members of Congress, neither the Members of this Court nor most federal judges begin the day 

with briefings that may describe new and serious threats

to our Nation and its people. The law must accord the 

Executive substantial authority to apprehend and detain

those who pose a real danger to our security.

Officials charged with daily operational responsibility

for our security may consider a judicial discourse on the 

history of the Habeas Corpus Act of 1679 and like matters

to be far removed from the Nation’s present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not. Security depends upon a 

sophisticated intelligence apparatus and the ability of our 

Armed Forces to act and to interdict. There are further 

considerations, however. Security subsists, too, in fidelity 

to freedom’s first principles. Chief among these are free­
Cite as: 553 U. S. ____ (2008) 69 

Opinion of the Court 

dom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial 

authority to consider petitions for habeas corpus relief 

derives. 

Our opinion does not undermine the Executive’s powers 

as Commander in Chief. On the contrary, the exercise of

those powers is vindicated, not eroded, when confirmed by 

the Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of judicial power 

are as legitimate or as necessary as the responsibility to

hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in

custody for six years with no definitive judicial determination as to the legality of their detention. Their access to 

the writ is a necessity to determine the lawfulness of their

status, even if, in the end, they do not obtain the relief 

they seek.

Because our Nation’s past military conflicts have been of 

limited duration, it has been possible to leave the outer 

boundaries of war powers undefined. If, as some fear, 

terrorism continues to pose dangerous threats to us for

years to come, the Court might not have this luxury. This 

result is not inevitable, however. The political branches,

consistent with their independent obligations to interpret

and uphold the Constitution, can engage in a genuine

debate about how best to preserve constitutional values

while protecting the Nation from terrorism. Cf. Hamdan, 

548 U. S., at 636 (BREYER, J., concurring) (“[J]udicial 

insistence upon that consultation does not weaken our 

Nation’s ability to deal with danger. To the contrary, that 

insistence strengthens the Nation’s ability to determine—

through democratic means—how best to do so”). 

It bears repeating that our opinion does not address the

content of the law that governs petitioners’ detention.

That is a matter yet to be determined. We hold that peti­
 

70 BOUMEDIENE v. BUSH 

Opinion of the Court 

tioners may invoke the fundamental procedural protections of habeas corpus. The laws and Constitution are 

designed to survive, and remain in force, in extraordinary

times. Liberty and security can be reconciled; and in our

system they are reconciled within the framework of the 

law. The Framers decided that habeas corpus, a right of

first importance, must be a part of that framework, a part 

of that law. 

The determination by the Court of Appeals that the

Suspension Clause and its protections are inapplicable to

petitioners was in error. The judgment of the Court of 

Appeals is reversed. The cases are remanded to the Court 

of Appeals with instructions that it remand the cases to 

the District Court for proceedings consistent with this 

opinion. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 553 U. S. ____ (2008) 1 

SOUTER, J., concurring 

SUPREME COURT OF THE UNITED STATES 

Nos. 06–1195 and 06–1196 

LAKHDAR BOUMEDIENE, ET AL., PETITIONERS 

06–1195 v. 

GEORGE W. BUSH, PRESIDENT OF THE UNITED 

STATES, ET AL. 

KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI 

KHALID ABDULLAH FAHAD AL ODAH, ET AL., 

PETITIONERS 

06–1196 v. 

UNITED STATES ET AL. 

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 

[June 12, 2008] 

JUSTICE SOUTER, with whom JUSTICE GINSBURG and 

JUSTICE BREYER join, concurring. 

I join the Court’s opinion in its entirety and add this

afterword only to emphasize two things one might overlook after reading the dissents.

Four years ago, this Court in Rasul v. Bush, 542 U. S. 

466 (2004) held that statutory habeas jurisdiction extended to claims of foreign nationals imprisoned by the 

United States at Guantanamo Bay, “to determine the 

legality of the Executive’s potentially indefinite detention” 

of them, id., at 485. Subsequent legislation eliminated the

statutory habeas jurisdiction over these claims, so that

now there must be constitutionally based jurisdiction or

none at all. JUSTICE SCALIA is thus correct that here, for 

the first time, this Court holds there is (he says “confers”) 

constitutional habeas jurisdiction over aliens imprisoned 
 

2 BOUMEDIENE v. BUSH 

SOUTER, J., concurring 

by the military outside an area of de jure national sovereignty, see post, at 1 (dissenting opinion). But no one who 

reads the Court’s opinion in Rasul could seriously doubt

that the jurisdictional question must be answered the 

same way in purely constitutional cases, given the Court’s 

reliance on the historical background of habeas generally 

in answering the statutory question. See, e.g., 542 U. S., 

at 473, 481–483, and nn. 11–14. Indeed, the Court in 

Rasul directly answered the very historical question that 

JUSTICE SCALIA says is dispositive, see post, at 18; it wrote 

that “[a]pplication of the habeas statute to persons detained at [Guantanamo] is consistent with the historical 

reach of the writ of habeas corpus,” 542 U. S., at 481. 

JUSTICE SCALIA dismisses the statement as dictum, see 

post, at 21, but if dictum it was, it was dictum well considered, and it stated the view of five Members of this Court 

on the historical scope of the writ. Of course, it takes more 

than a quotation from Rasul, however much on point, to

resolve the constitutional issue before us here, which the 

majority opinion has explored afresh in the detail it deserves. But whether one agrees or disagrees with today’s 

decision, it is no bolt out of the blue. 

A second fact insufficiently appreciated by the dissents

is the length of the disputed imprisonments, some of the

prisoners represented here today having been locked up 

for six years, ante, at 66 (opinion of the Court). Hence the 

hollow ring when the dissenters suggest that the Court is

somehow precipitating the judiciary into reviewing claims

that the military (subject to appeal to the Court of Appeals

for the District of Columbia Circuit) could handle within 

some reasonable period of time. See, e.g., post, at 3 (opinion of ROBERTS, C. J.) (“[T]he Court should have declined

to intervene until the D. C. Circuit had assessed the nature and validity of the congressionally mandated proceedings in a given detainee’s case”); post, at 6 (“[I]t is not

necessary to consider the availability of the writ until the 
Cite as: 553 U. S. ____ (2008) 3 

SOUTER, J., concurring 

statutory remedies have been shown to be inadequate”); 

post, at 8 (“[The Court] rushes to decide the fundamental

question of the reach of habeas corpus when the functioning of the DTA may make that decision entirely unnecessary”). These suggestions of judicial haste are all the more 

out of place given the Court’s realistic acknowledgment

that in periods of exigency the tempo of any habeas review 

must reflect the immediate peril facing the country. See 

ante, at 64–65. 

It is in fact the very lapse of four years from the time 

Rasul put everyone on notice that habeas process was

available to Guantanamo prisoners, and the lapse of six 

years since some of these prisoners were captured and 

incarcerated, that stand at odds with the repeated suggestions of the dissenters that these cases should be seen as a 

judicial victory in a contest for power between the Court

and the political branches. See post, at 2, 3, 28 (ROBERTS, 

C. J., dissenting); post, at 5, 6, 17, 18, 25 (SCALIA, J., dissenting). The several answers to the charge of triumphalism might start with a basic fact of Anglo-American constitutional history: that the power, first of the Crown and 

now of the Executive Branch of the United States, is necessarily limited by habeas corpus jurisdiction to enquire

into the legality of executive detention. And one could 

explain that in this Court’s exercise of responsibility to

preserve habeas corpus something much more significant

is involved than pulling and hauling between the judicial

and political branches. Instead, though, it is enough to 

repeat that some of these petitioners have spent six years 

behind bars. After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but 

without any actual habeas scrutiny, today’s decision is no 

judicial victory, but an act of perseverance in trying to

make habeas review, and the obligation of the courts to 

provide it, mean something of value both to prisoners and 

to the Nation. See ante, at 69. 
 

_________________ 

_________________ 

Cite as: 553 U. S. ____ (2008) 1 

ROBERTS, C. J., dissenting 

SUPREME COURT OF THE UNITED STATES 

Nos. 06–1195 and 06–1196 

LAKHDAR BOUMEDIENE, ET AL., PETITIONERS 

06–1195 v. 

GEORGE W. BUSH, PRESIDENT OF THE UNITED 

STATES, ET AL. 

KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI 

KHALID ABDULLAH FAHAD AL ODAH, ET AL., 

PETITIONERS 

06–1196 v. 

UNITED STATES ET AL. 

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 

[June 12, 2008] 

CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA, 

JUSTICE THOMAS, and JUSTICE ALITO join, dissenting. 

Today the Court strikes down as inadequate the most 

generous set of procedural protections ever afforded aliens 

detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and 

thorough debate. The Court rejects them today out of 

hand, without bothering to say what due process rights

the detainees possess, without explaining how the statute 

fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s 

operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by 

federal courts at some future date. One cannot help but 
 

 

2 BOUMEDIENE v. BUSH 

ROBERTS, C. J., dissenting 

think, after surveying the modest practical results of the 

majority’s ambitious opinion, that this decision is not

really about the detainees at all, but about control of 

federal policy regarding enemy combatants. 

The majority is adamant that the Guantanamo detainees are entitled to the protections of habeas corpus—its 

opinion begins by deciding that question. I regard the 

issue as a difficult one, primarily because of the unique 

and unusual jurisdictional status of Guantanamo Bay. I 

nonetheless agree with JUSTICE SCALIA’s analysis of our 

precedents and the pertinent history of the writ, and 

accordingly join his dissent. The important point for me,

however, is that the Court should have resolved these 

cases on other grounds. Habeas is most fundamentally a

procedural right, a mechanism for contesting the legality

of executive detention. The critical threshold question in 

these cases, prior to any inquiry about the writ’s scope, is

whether the system the political branches designed protects whatever rights the detainees may possess. If so, 

there is no need for any additional process, whether called

“habeas” or something else.

Congress entrusted that threshold question in the first

instance to the Court of Appeals for the District of Columbia Circuit, as the Constitution surely allows Congress to do. 

See Detainee Treatment Act of 2005 (DTA), §1005(e)(2)(A), 

119 Stat. 2742. But before the D. C. Circuit has addressed 

the issue, the Court cashiers the statute, and without 

answering this critical threshold question itself. The 

Court does eventually get around to asking whether review under the DTA is, as the Court frames it, an “adequate substitute” for habeas, ante, at 42, but even then its 

opinion fails to determine what rights the detainees possess and whether the DTA system satisfies them. The 

majority instead compares the undefined DTA process to 

an equally undefined habeas right—one that is to be given

shape only in the future by district courts on a case-by­
 

Cite as: 553 U. S. ____ (2008) 3 

ROBERTS, C. J., dissenting 

case basis. This whole approach is misguided. 

It is also fruitless. How the detainees’ claims will be 

decided now that the DTA is gone is anybody’s guess. But 

the habeas process the Court mandates will most likely 

end up looking a lot like the DTA system it replaces, as

the district court judges shaping it will have to reconcile

review of the prisoners’ detention with the undoubted 

need to protect the American people from the terrorist

threat—precisely the challenge Congress undertook in

drafting the DTA. All that today’s opinion has done is

shift responsibility for those sensitive foreign policy and 

national security decisions from the elected branches to

the Federal Judiciary.

I believe the system the political branches constructed 

adequately protects any constitutional rights aliens captured abroad and detained as enemy combatants may 

enjoy. I therefore would dismiss these cases on that 

ground. With all respect for the contrary views of the

majority, I must dissent. 

I 

The Court’s opinion makes plain that certiorari to review these cases should never have been granted. As two 

Members of today’s majority once recognized, “traditional

rules governing our decision of constitutional questions 

and our practice of requiring the exhaustion of available 

remedies . . . make it appropriate to deny these petitions.” 

Boumediene v. Bush, 549 U. S. ___ (2007) (slip op., at 1) 

(citation omitted) (statement of STEVENS and KENNEDY, 

JJ., respecting denial of certiorari). Just so. Given the 

posture in which these cases came to us, the Court should 

have declined to intervene until the D. C. Circuit had 

assessed the nature and validity of the congressionally 

mandated proceedings in a given detainee’s case.

The political branches created a two-part, collateral

review procedure for testing the legality of the prisoners’ 
 

 

 

4 BOUMEDIENE v. BUSH 

ROBERTS, C. J., dissenting 

detention: It begins with a hearing before a Combatant 

Status Review Tribunal (CSRT) followed by review in the 

D. C. Circuit. As part of that review, Congress authorized 

the D. C. Circuit to decide whether the CSRT proceedings

are consistent with “the Constitution and laws of the 

United States.” DTA §1005(e)(2)(C), 119 Stat. 2742. No 

petitioner, however, has invoked the D. C. Circuit review 

the statute specifies. See 476 F. 3d 981, 994, and n. 16 

(CADC 2007); Brief for Federal Respondents 41–43. As a 

consequence, that court has had no occasion to decide 

whether the CSRT hearings, followed by review in the 

Court of Appeals, vindicate whatever constitutional and 

statutory rights petitioners may possess. See 476 F. 3d, at 

994, and n. 16. 

Remarkably, this Court does not require petitioners to 

exhaust their remedies under the statute; it does not wait 

to see whether those remedies will prove sufficient to

protect petitioners’ rights. Instead, it not only denies the

D. C. Circuit the opportunity to assess the statute’s remedies, it refuses to do so itself: the majority expressly declines to decide whether the CSRT procedures, coupled

with Article III review, satisfy due process. See ante, at 

54. 

It is grossly premature to pronounce on the detainees’

right to habeas without first assessing whether the remedies the DTA system provides vindicate whatever rights

petitioners may claim. The plurality in Hamdi v. Rumsfeld, 542 U. S. 507, 533 (2004), explained that the Constitution guaranteed an American citizen challenging his

detention as an enemy combatant the right to “notice of

the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a 

neutral decisionmaker.” The plurality specifically stated

that constitutionally adequate collateral process could be

provided “by an appropriately authorized and properly 

constituted military tribunal,” given the “uncommon 
 

Cite as: 553 U. S. ____ (2008) 5 

ROBERTS, C. J., dissenting 

potential to burden the Executive at a time of ongoing 

military conflict.” Id., at 533, 538. This point is directly

pertinent here, for surely the Due Process Clause does not

afford non-citizens in such circumstances greater protection than citizens are due. 

If the CSRT procedures meet the minimal due process 

requirements outlined in Hamdi, and if an Article III 

court is available to ensure that these procedures are 

followed in future cases, see id., at 536; INS v. St. Cyr, 533 

U. S. 289, 304 (2001); Heikkila v. Barber, 345 U. S. 229, 

236 (1953), there is no need to reach the Suspension 

Clause question. Detainees will have received all the 

process the Constitution could possibly require, whether 

that process is called “habeas” or something else. The 

question of the writ’s reach need not be addressed. 

This is why the Court should have required petitioners

to exhaust their remedies under the statute. As we explained in Gusik v. Schilder, 340 U. S. 128, 132 (1950), “If 

an available procedure has not been employed to rectify 

the alleged error” petitioners complain of, “any interference by [a] federal court may be wholly needless. The 

procedure established to police the errors of the tribunal 

whose judgment is challenged may be adequate for the

occasion.” Because the majority refuses to assess whether

the CSRTs comport with the Constitution, it ends up 

razing a system of collateral review that it admits may in

fact satisfy the Due Process Clause and be “structurally

sound.” Ante, at 56. But if the collateral review procedures Congress has provided—CSRT review coupled with 

Article III scrutiny—are sound, interference by a federal

habeas court may be entirely unnecessary.

The only way to know is to require petitioners to use the 

alternative procedures Congress designed. Mandating

that the petitioners exhaust their statutory remedies “is in

no sense a suspension of the writ of habeas corpus. It is 

merely a deferment of resort to the writ until other correc­
 

 

6 BOUMEDIENE v. BUSH 

ROBERTS, C. J., dissenting 

tive procedures are shown to be futile.” Gusik, supra, at 

132. So too here, it is not necessary to consider the availability of the writ until the statutory remedies have been 

shown to be inadequate to protect the detainees’ rights. 

Cf. 28 U. S. C. §2254(b)(1)(A) (“An application for a writ of 

habeas corpus . . . shall not be granted unless it appears

that . . . the applicant has exhausted the remedies available in the courts of the State”). Respect for the judgments of Congress—whose Members take the same oath

we do to uphold the Constitution—requires no less.

In the absence of any assessment of the DTA’s remedies, 

the question whether detainees are entitled to habeas is

an entirely speculative one. Our precedents have long

counseled us to avoid deciding such hypothetical questions

of constitutional law. See Spector Motor Service, Inc. v. 

McLaughlin, 323 U. S. 101, 105 (1944) (“If there is one 

doctrine more deeply rooted than any other in the process 

of constitutional adjudication, it is that we ought not to

pass on questions of constitutionality . . . unless such

[questions are] unavoidable”); see also Ashwander v. TVA, 

297 U. S. 288, 347 (1936) (Brandeis, J., concurring) (Constitutional questions should not be decided unless “ ‘absolutely necessary to a decision of the case’” (quoting Burton 

v. United States, 196 U. S. 283, 295 (1905))). This is a 

“fundamental rule of judicial restraint.” Three Affiliated 

Tribes of Fort Berthold Reservation v. Wold Engineering, 

P. C., 467 U. S. 138, 157 (1984).

The Court acknowledges that “the ordinary course” 

would be not to decide the constitutionality of the DTA at

this stage, but abandons that “ordinary course” in light of 

the “gravity” of the constitutional issues presented and the

prospect of additional delay. Ante, at 43. It is, however, 

precisely when the issues presented are grave that adherence to the ordinary course is most important. A principle

applied only when unimportant is not much of a principle 

at all, and charges of judicial activism are most effectively 
 

 

 

 

Cite as: 553 U. S. ____ (2008) 7 

ROBERTS, C. J., dissenting 

rebutted when courts can fairly argue they are following

normal practices.

The Court is also concerned that requiring petitioners to

pursue “DTA review before proceeding with their habeas

corpus actions” could involve additional delay. Ante, at 66. 

The nature of the habeas remedy the Court instructs

lower courts to craft on remand, however, is far more 

unsettled than the process Congress provided in the DTA.

See ante, at 69 (“[O]ur opinion does not address the content of the law that governs petitioners’ detention. That is 

a matter yet to be determined”). There is no reason to 

suppose that review according to procedures the Federal 

Judiciary will design, case by case, will proceed any faster 

than the DTA process petitioners disdained. 

On the contrary, the system the Court has launched 

(and directs lower courts to elaborate) promises to take

longer. The Court assures us that before bringing their

habeas petitions, detainees must usually complete the 

CSRT process. See ante, at 66. Then they may seek review in federal district court. Either success or failure 

there will surely result in an appeal to the D. C. Circuit—

exactly where judicial review starts under Congress’s 

system. The effect of the Court’s decision is to add additional layers of quite possibly redundant review. And 

because nobody knows how these new layers of “habeas” 

review will operate, or what new procedures they will

require, their contours will undoubtedly be subject to fresh 

bouts of litigation. If the majority were truly concerned 

about delay, it would have required petitioners to use the

DTA process that has been available to them for 21⁄2 years,

with its Article III review in the D. C. Circuit. That system might well have provided petitioners all the relief to 

which they are entitled long before the Court’s newly

installed habeas review could hope to do so.1 

—————— 

1 In light of the foregoing, the concurrence is wrong to suggest that I 
 

 

 

 

 

 

8 BOUMEDIENE v. BUSH 

ROBERTS, C. J., dissenting 

The Court’s refusal to require petitioners to exhaust the

remedies provided by Congress violates the “traditional 

rules governing our decision of constitutional questions.” 

Boumediene, 549 U. S., at ___ (slip op., at 1) (statement of 

STEVENS and KENNEDY, JJ., respecting denial of certiorari). The Court’s disrespect for these rules makes its

decision an awkward business. It rushes to decide the 

fundamental question of the reach of habeas corpus when

the functioning of the DTA may make that decision entirely

unnecessary, and it does so with scant idea of how DTA 

judicial review will actually operate. 

II 

The majority’s overreaching is particularly egregious

given the weakness of its objections to the DTA. Simply

put, the Court’s opinion fails on its own terms. The majority strikes down the statute because it is not an “adequate

substitute” for habeas review, ante, at 42, but fails to show 

what rights the detainees have that cannot be vindicated 

by the DTA system.

Because the central purpose of habeas corpus is to test

the legality of executive detention, the writ requires most 

fundamentally an Article III court able to hear the pris­

—————— 

“insufficiently appreciat[e]” the issue of delay in these cases. See ante, 

at 2 (opinion of SOUTER, J.). This Court issued its decisions in Rasul v. 

Bush, 542 U. S. 466, and Hamdi v. Rumsfeld 542 U. S. 507, in 2004. 

The concurrence makes it sound as if the political branches have done

nothing in the interim. In fact, Congress responded 18 months later by 

enacting the DTA. Congress cannot be faulted for taking that time to

consider how best to accommodate both the detainees’ interests and the 

need to keep the American people safe. Since the DTA became law, 

petitioners have steadfastly refused to avail themselves of the statute’s 

review mechanisms. It is unfair to complain that the DTA system

involves too much delay when petitioners have consistently refused to 

use it, preferring to litigate instead. Today’s decision obligating district

courts to craft new procedures to replace those in the DTA will only

prolong the process—and delay relief. 
 

Cite as: 553 U. S. ____ (2008) 9 

ROBERTS, C. J., dissenting 

oner’s claims and, when necessary, order release. See 

Brown v. Allen, 344 U. S. 443, 533 (1953) (Jackson, J.,

concurring in result). Beyond that, the process a given

prisoner is entitled to receive depends on the circumstances and the rights of the prisoner. See Mathews v. 

Eldridge, 424 U. S. 319, 335 (1976). After much hemming 

and hawing, the majority appears to concede that the DTA 

provides an Article III court competent to order release.

See ante, at 61. The only issue in dispute is the process 

the Guantanamo prisoners are entitled to use to test the

legality of their detention. Hamdi concluded that American citizens detained as enemy combatants are entitled to 

only limited process, and that much of that process could 

be supplied by a military tribunal, with review to follow in 

an Article III court. That is precisely the system we have

here. It is adequate to vindicate whatever due process

rights petitioners may have. 

A 

The Court reaches the opposite conclusion partly because it misreads the statute. The majority appears not to

understand how the review system it invalidates actually 

works—specifically, how CSRT review and review by the 

D. C. Circuit fit together. After briefly acknowledging in

its recitation of the facts that the Government designed 

the CSRTs “to comply with the due process requirements

identified by the plurality in Hamdi,” ante, at 3, the Court 

proceeds to dismiss the tribunal proceedings as no more

than a suspect method used by the Executive for determining the status of the detainees in the first instance, see 

ante, at 43. This leads the Court to treat the review the 

DTA provides in the D. C. Circuit as the only opportunity

detainees have to challenge their status determination.

See ante, at 49. 

The Court attempts to explain its glancing treatment of

the CSRTs by arguing that “[w]hether one characterizes 
 

 

10 BOUMEDIENE v. BUSH 

ROBERTS, C. J., dissenting 

the CSRT process as direct review of the Executive’s battlefield determination . . . or as the first step in the collateral review of a battlefield determination makes no difference.” Ante, at 54. First of all, the majority is quite wrong 

to dismiss the Executive’s determination of detainee 

status as no more than a “battlefield” judgment, as if it 

were somehow provisional and made in great haste. In 

fact, detainees are designated “enemy combatants” only 

after “multiple levels of review by military officers and 

officials of the Department of Defense.” Memorandum of 

the Secretary of the Navy, Implementation of Combatant

Status Review Tribunal Procedures for Enemy Combatants Detained at Guantanamo Bay Naval Base (July 29,

2004), App. J to Pet. for Cert. in No. 06–1196, p. 150 (hereinafter Implementation Memo).

The majority is equally wrong to characterize the 

CSRTs as part of that initial determination process. They

are instead a means for detainees to challenge the Government’s determination. The Executive designed the 

CSRTs to mirror Army Regulation 190–8, see Brief for 

Federal Respondents 48, the very procedural model the

plurality in Hamdi said provided the type of process an 

enemy combatant could expect from a habeas court, see

542 U. S., at 538 (plurality opinion). The CSRTs operate

much as habeas courts would if hearing the detainee’s

collateral challenge for the first time: They gather evidence, call witnesses, take testimony, and render a decision on the legality of the Government’s detention. See 

Implementation Memo, App. J to Pet. for Cert. in No. 06–

1196, at 153–162. If the CSRT finds a particular detainee 

has been improperly held, it can order release. See id., at 

164. 

The majority insists that even if “the CSRTs satisf[ied] 

due process standards,” full habeas review would still be

necessary, because habeas is a collateral remedy available 

even to prisoners “detained pursuant to the most rigorous 
 

 

Cite as: 553 U. S. ____ (2008) 11 

ROBERTS, C. J., dissenting 

proceedings imaginable.” Ante, at 55, 56. This comment 

makes sense only if the CSRTs are incorrectly viewed as a 

method used by the Executive for determining the prisoners’ status, and not as themselves part of the collateral 

review to test the validity of that determination. See 

Gusik, 340 U. S., at 132. The majority can deprecate the 

importance of the CSRTs only by treating them as something they are not. 

The use of a military tribunal such as the CSRTs to

review the aliens’ detention should be familiar to this 

Court in light of the Hamdi plurality, which said that the

due process rights enjoyed by American citizens detained 

as enemy combatants could be vindicated “by an appropriately authorized and properly constituted military tribunal.” 542 U. S., at 538. The DTA represents Congress’

considered attempt to provide the accused alien combatants detained at Guantanamo a constitutionally adequate 

opportunity to contest their detentions before just such a 

tribunal. 

But Congress went further in the DTA. CSRT review is 

just the first tier of collateral review in the DTA system.

The statute provides additional review in an Article III 

court. Given the rationale of today’s decision, it is well 

worth recalling exactly what the DTA provides in this 

respect. The statute directs the D. C. Circuit to consider 

whether a particular alien’s status determination “was

consistent with the standards and procedures specified by 

the Secretary of Defense” and “whether the use of such 

standards and procedures to make the determination is 

consistent with the Constitution and laws of the United 

States.” DTA §1005(e)(2)(C), 119 Stat. 2742. That is, a 

court determines whether the CSRT procedures are constitutional, and a court determines whether those procedures 

were followed in a particular case.

In short, the Hamdi plurality concluded that this type of 

review would be enough to satisfy due process, even for 
 

 

 

 

12 BOUMEDIENE v. BUSH 

ROBERTS, C. J., dissenting 

citizens. See 542 U. S., at 538. Congress followed the

Court’s lead, only to find itself the victim of a constitutional bait and switch. 

Hamdi merits scant attention from the Court—a remarkable omission, as Hamdi bears directly on the issues 

before us. The majority attempts to dismiss Hamdi’s 

relevance by arguing that because the availability of 

§2241 federal habeas was never in doubt in that case, “the 

Court had no occasion to define the necessary scope of

habeas review . . . in the context of enemy combatant 

detentions.” Ante, at 55. Hardly. Hamdi was all about 

the scope of habeas review in the context of enemy combatant detentions. The petitioner, an American citizen

held within the United States as an enemy combatant, 

invoked the writ to challenge his detention. 542 U. S., at 

510–511. After “a careful examination both of the writ . . . 

and of the Due Process Clause,” this Court enunciated the 

“basic process” the Constitution entitled Hamdi to expect

from a habeas court under §2241. Id., at 525, 534. That 

process consisted of the right to “receive notice of the

factual basis for his classification, and a fair opportunity 

to rebut the Government’s factual assertions before a 

neutral decisionmaker.” Id., at 533. In light of the Government’s national security responsibilities, the plurality

found the process could be “tailored to alleviate [the]

uncommon potential to burden the Executive at a time of 

ongoing military conflict.” Ibid. For example, the Government could rely on hearsay and could claim a presumption in favor of its own evidence. See id., at 533–534.

 Hamdi further suggested that this “basic process” on

collateral review could be provided by a military tribunal. 

It pointed to prisoner-of-war tribunals as a model that

would satisfy the Constitution’s requirements. See id., at 

538. Only “[i]n the absence of such process” before a military tribunal, the Court held, would Article III courts need

to conduct full-dress habeas proceedings to “ensure that 
 

 

 

 

Cite as: 553 U. S. ____ (2008) 13 

ROBERTS, C. J., dissenting 

the minimum requirements of due process are achieved.” 

Ibid. (emphasis added). And even then, the petitioner 

would be entitled to no more process than he would have 

received from a properly constituted military review panel, 

given his limited due process rights and the Government’s

weighty interests. See id., at 533–534, 538. 

Contrary to the majority, Hamdi is of pressing relevance

because it establishes the procedures American citizens 

detained as enemy combatants can expect from a habeas

court proceeding under §2241. The DTA system of military

tribunal hearings followed by Article III review looks a lot 

like the procedure Hamdi blessed. If nothing else, it is 

plain from the design of the DTA that Congress, the

President, and this Nation’s military leaders have made a 

good-faith effort to follow our precedent. 

The Court, however, will not take “yes” for an answer. 

The majority contends that “[i]f Congress had envisioned 

DTA review as coextensive with traditional habeas corpus,”

it would have granted the D. C. Circuit far broader review

authority. Ante, at 48. Maybe so, but that comment reveals 

the majority’s misunderstanding. “[T]raditional habeas 

corpus” takes no account of what Hamdi recognized as the

“uncommon potential to burden the Executive at a time of 

ongoing military conflict.” 542 U. S., at 533. Besides, Congress and the Executive did not envision “DTA review”—

by which I assume the Court means D. C. Circuit review, 

see ante, at 48—as the detainees’ only opportunity to 

challenge their detentions. Instead, the political branches 

crafted CSRT and D. C. Circuit review to operate together, 

with the goal of providing noncitizen detainees the level of 

collateral process Hamdi said would satisfy the due process rights of American citizens. See Brief for Federal 

Respondents 48–53. 

B 

Given the statutory scheme the political branches 
 

 

 

 

14 BOUMEDIENE v. BUSH 

ROBERTS, C. J., dissenting 

adopted, and given Hamdi, it simply will not do for the

majority to dismiss the CSRT procedures as “far more

limited” than those used in military trials, and therefore

beneath the level of process “that would eliminate the 

need for habeas corpus review.” Ante, at 37. The question

is not how much process the CSRTs provide in comparison 

to other modes of adjudication. The question is whether 

the CSRT procedures—coupled with the judicial review 

specified by the DTA—provide the “basic process” Hamdi 

said the Constitution affords American citizens detained 

as enemy combatants. See 542 U. S., at 534. 

By virtue of its refusal to allow the D. C. Circuit to

assess petitioners’ statutory remedies, and by virtue of its 

own refusal to consider, at the outset, the fit between 

those remedies and due process, the majority now finds 

itself in the position of evaluating whether the DTA system is an adequate substitute for habeas review without 

knowing what rights either habeas or the DTA is supposed 

to protect. The majority attempts to elide this problem by

holding that petitioners have a right to habeas corpus and 

then comparing the DTA against the “historic office” of the

writ. Ante, at 47. But habeas is, as the majority acknowledges, a flexible remedy rather than a substantive right.

Its “precise application . . . change[s] depending upon the 

circumstances.” Ante, at 50. The shape of habeas review 

ultimately depends on the nature of the rights a petitioner 

may assert. See, e.g., Reid v. Covert, 354 U. S. 1, 75 (1957) 

(Harlan, J., concurring in result) (“[T]he question of which 

specific safeguards of the Constitution are appropriately to 

be applied in a particular context . . . can be reduced to the 

issue of what process is ‘due’ a defendant in the particular 

circumstances of a particular case”). 

The scope of federal habeas review is traditionally more

limited in some contexts than in others, depending on the 

status of the detainee and the rights he may assert. See 

St. Cyr, 533 U. S., at 306 (“In [immigration cases], other 
 

 

Cite as: 553 U. S. ____ (2008) 15 

ROBERTS, C. J., dissenting 

than the question whether there was some evidence to

support the [deportation] order, the courts generally did 

not review factual determinations made by the Executive”

(footnote omitted)); Burns v. Wilson, 346 U. S. 137, 139 

(1953) (plurality opinion) (“[I]n military habeas corpus the

inquiry, the scope of matters open for review, has always 

been more narrow than in civil cases”); In re Yamashita, 

327 U. S. 1, 8 (1946) (“The courts may inquire whether the 

detention complained of is within the authority of those

detaining the petitioner. If the military tribunals have

lawful authority to hear, decide and condemn, their action

is not subject to judicial review”); Ex parte Quirin, 317 U. S. 

1, 25 (1942) (federal habeas review of military commission

verdict limited to determining commission’s jurisdiction). 

Declaring that petitioners have a right to habeas in no 

way excuses the Court from explaining why the DTA does 

not protect whatever due process or statutory rights petitioners may have. Because if the DTA provides a means 

for vindicating petitioners’ rights, it is necessarily an 

adequate substitute for habeas corpus. See Swain v. 

Pressley, 430 U. S. 372, 381 (1977); United States v. Hayman, 342 U. S. 205, 223 (1952).

For my part, I will assume that any due process rights 

petitioners may possess are no greater than those of 

American citizens detained as enemy combatants. It is 

worth noting again that the Hamdi controlling opinion 

said the Constitution guarantees citizen detainees only

“basic” procedural rights, and that the process for securing

those rights can “be tailored to alleviate [the] uncommon

potential to burden the Executive at a time of ongoing 

military conflict.” 542 U. S., at 533. The majority, however, objects that “the procedural protections afforded to

the detainees in the CSRT hearings are . . . limited.” Ante, 

at 37. But the evidentiary and other limitations the Court

complains of reflect the nature of the issue in contest, 

namely, the status of aliens captured by our Armed Forces 
 

 

16 BOUMEDIENE v. BUSH 

ROBERTS, C. J., dissenting 

abroad and alleged to be enemy combatants. Contrary to

the repeated suggestions of the majority, DTA review need

not parallel the habeas privileges enjoyed by noncombatant American citizens, as set out in 28 U. S. C. §2241

(2000 ed. and Supp V). Cf. ante, at 46–47. It need only

provide process adequate for noncitizens detained as 

alleged combatants. 

To what basic process are these detainees due as habeas

petitioners? We have said that “at the absolute minimum,” the Suspension Clause protects the writ “‘as it

existed in 1789.’” St. Cyr, supra, at 301 (quoting Felker v. 

Turpin, 518 U. S. 651, 663–664 (1996)). The majority

admits that a number of historical authorities suggest

that at the time of the Constitution’s ratification, “common-law courts abstained altogether from matters involving prisoners of war.” Ante, at 17. If this is accurate, the 

process provided prisoners under the DTA is plainly more 

than sufficient—it allows alleged combatants to challenge

both the factual and legal bases of their detentions. 

Assuming the constitutional baseline is more robust, the

DTA still provides adequate process, and by the majority’s 

own standards. Today’s Court opines that the Suspension 

Clause guarantees prisoners such as the detainees “a 

meaningful opportunity to demonstrate that [they are] 

being held pursuant to the erroneous application or interpretation of relevant law.” Ante, at 50 (internal quotation 

marks omitted). Further, the Court holds that to be an 

adequate substitute, any tribunal reviewing the detainees’ 

cases “must have the power to order the conditional release of an individual unlawfully detained.” Ibid. The 

DTA system—CSRT review of the Executive’s determination followed by D. C. Circuit review for sufficiency of the 

evidence and the constitutionality of the CSRT process—

meets these criteria. 
 

Cite as: 553 U. S. ____ (2008) 17 

ROBERTS, C. J., dissenting
 

C 

At the CSRT stage, every petitioner has the right to

present evidence that he has been wrongfully detained.

This includes the right to call witnesses who are reasonably available, question witnesses called by the tribunal, 

introduce documentary evidence, and testify before the 

tribunal. See Implementation Memo, App. J to Pet. for 

Cert. in No. 06–1196, at 154–156, 158–159, 161. 

While the Court concedes detainees may confront all

witnesses called before the tribunal, it suggests this right

is “more theoretical than real” because “there are in effect 

no limits on the admission of hearsay evidence.” Ante, at 

55. The Court further complains that petitioners lack “the 

assistance of counsel,” and—given the limits on their 

access to classified information—“may not be aware of the

most critical allegations” against them. Ante, at 54. None 

of these complaints is persuasive. 

Detainees not only have the opportunity to confront any

witness who appears before the tribunal, they may call 

witnesses of their own. The Implementation Memo requires only that detainees’ witnesses be “reasonably available,” App. J to Pet. for Cert. in No. 06–1196, at 155, a 

requirement drawn from Army Regulation 190–8, ch. 1,

§1–6(e)(6), and entirely consistent with the Government’s

interest in avoiding “a futile search for evidence” that

might burden warmaking responsibilities, Hamdi, supra, 

at 532. The dangerous mission assigned to our forces 

abroad is to fight terrorists, not serve subpoenas. The 

Court is correct that some forms of hearsay evidence are 

admissible before the CSRT, but Hamdi expressly approved this use of hearsay by habeas courts. 542 U. S., 

at 533–534 (“Hearsay, for example, may need to be accepted as the most reliable available evidence from the 

Government”).

As to classified information, while detainees are not 

permitted access to it themselves, the Implementation 
 

 

18 BOUMEDIENE v. BUSH 

ROBERTS, C. J., dissenting 

Memo provides each detainee with a “Personal Representative” who may review classified documents at the CSRT

stage and summarize them for the detainee. Implementation Memo, supra, at 152, 154–155, 156; Brief for Federal 

Respondents 54–55. The prisoner’s counsel enjoys the

same privilege on appeal before the D. C. Circuit. That is 

more access to classified material for alleged alien enemy 

combatants than ever before provided. I am not aware of 

a single instance—and certainly the majority cites none—

in which detainees such as petitioners have been provided

access to classified material in any form. Indeed, prisoners of war who challenge their status determinations 

under the Geneva Convention are afforded no such access, 

see Army Regulation 190–8, ch. 1, §§1–6(e)(3) and (5), and 

the prisoner-of-war model is the one Hamdi cited as consistent with the demands of due process for citizens, see 

542 U. S., at 538. 

What alternative does the Court propose? Allow free 

access to classified information and ignore the risk the 

prisoner may eventually convey what he learns to parties

hostile to this country, with deadly consequences for those

who helped apprehend the detainee? If the Court can 

design a better system for communicating to detainees the 

substance of any classified information relevant to their 

cases, without fatally compromising national security

interests and sources, the majority should come forward

with it. Instead, the majority fobs that vexing question off 

on district courts to answer down the road. 

Prisoners of war are not permitted access to classified

information, and neither are they permitted access to

counsel, another supposed failing of the CSRT process. 

And yet the Guantanamo detainees are hardly denied all 

legal assistance. They are provided a “Personal Representative” who, as previously noted, may access classified 

information, help the detainee arrange for witnesses, 

assist the detainee’s preparation of his case, and even aid 
 

 

 

Cite as: 553 U. S. ____ (2008) 19 

ROBERTS, C. J., dissenting 

the detainee in presenting his evidence to the tribunal.

See Implementation Memo, supra, at 161. The provision

for a personal representative on this order is one of several 

ways in which the CSRT procedures are more generous

than those provided prisoners of war under Army Regulation 190–8. 

Keep in mind that all this is just at the CSRT stage.

Detainees receive additional process before the D. C. 

Circuit, including full access to appellate counsel and the 

right to challenge the factual and legal bases of their

detentions. DTA §1005(e)(2)(C) empowers the Court of

Appeals to determine not only whether the CSRT observed 

the “procedures specified by the Secretary of Defense,” but 

also “whether the use of such standards and procedures

. . . is consistent with the Constitution and laws of the 

United States.” 119 Stat. 2742. These provisions permit

detainees to dispute the sufficiency of the evidence against 

them. They allow detainees to challenge a CSRT panel’s

interpretation of any relevant law, and even the constitutionality of the CSRT proceedings themselves. This includes, as the Solicitor General acknowledges, the ability 

to dispute the Government’s right to detain alleged combatants in the first place, and to dispute the Government’s

definition of “enemy combatant.” Brief for Federal Respondents 59. All this before an Article III court—plainly 

a neutral decisionmaker. 

All told, the DTA provides the prisoners held at Guantanamo Bay adequate opportunity to contest the bases of 

their detentions, which is all habeas corpus need allow. 

The DTA provides more opportunity and more process, in

fact, than that afforded prisoners of war or any other 

alleged enemy combatants in history. 

D 

Despite these guarantees, the Court finds the DTA

system an inadequate habeas substitute, for one central 
 

 

20 BOUMEDIENE v. BUSH 

ROBERTS, C. J., dissenting 

reason: Detainees are unable to introduce at the appeal

stage exculpatory evidence discovered after the conclusion 

of their CSRT proceedings. See ante, at 58. The Court 

hints darkly that the DTA may suffer from other infirmities, see ante, at 63 (“We do not imply DTA review would 

be a constitutionally sufficient replacement for habeas 

corpus but for these limitations on the detainee’s ability to 

present exculpatory evidence”), but it does not bother to

name them, making a response a bit difficult. As it 

stands, I can only assume the Court regards the supposed 

defect it did identify as the gravest of the lot. 

If this is the most the Court can muster, the ice beneath 

its feet is thin indeed. As noted, the CSRT procedures 

provide ample opportunity for detainees to introduce 

exculpatory evidence—whether documentary in nature or

from live witnesses—before the military tribunals. See 

infra, at 21–23; Implementation Memo, App. J to Pet. for 

Cert. in No. 06–196, at 155–156. And if their ability to

introduce such evidence is denied contrary to the Constitution or laws of the United States, the D. C. Circuit has 

the authority to say so on review.

Nevertheless, the Court asks us to imagine an instance

in which evidence is discovered after the CSRT panel 

renders its decision, but before the Court of Appeals reviews the detainee’s case. This scenario, which of course 

has not yet come to pass as no review in the D. C. Circuit

has occurred, provides no basis for rejecting the DTA as a 

habeas substitute. While the majority is correct that the 

DTA does not contemplate the introduction of “newly 

discovered” evidence before the Court of Appeals, petitioners and the Solicitor General agree that the DTA does 

permit the D. C. Circuit to remand a detainee’s case for a

new CSRT determination. Brief for Petitioner Boumediene et al. in No. 06–1195, at 30; Brief for Federal Respondents 60–61. In the event a detainee alleges that he has

obtained new and persuasive exculpatory evidence that 
 

Cite as: 553 U. S. ____ (2008) 21 

ROBERTS, C. J., dissenting 

would have been considered by the tribunal below had it 

only been available, the D. C. Circuit could readily remand 

the case to the tribunal to allow that body to consider the

evidence in the first instance. The Court of Appeals could 

later review any new or reinstated decision in light of the 

supplemented record.

If that sort of procedure sounds familiar, it should. 

Federal appellate courts reviewing factual determinations 

follow just such a procedure in a variety of circumstances. 

See, e.g., United States v. White, 492 F. 3d 380, 413 (CA6 

2007) (remanding new-evidence claim to the district court 

for a Brady evidentiary hearing); Avila v. Roe, 298 F. 3d 

750, 754 (CA9 2002) (remanding habeas claim to the

district court for evidentiary hearing to clarify factual 

record); United States v. Leone, 215 F. 3d 253, 256 (CA2 

2000) (observing that when faced on direct appeal with an

underdeveloped claim for ineffective assistance of counsel, 

the appellate court may remand to the district court for

necessary factfinding).

A remand is not the only relief available for detainees 

caught in the Court’s hypothetical conundrum. The DTA 

expressly directs the Secretary of Defense to “provide for

periodic review of any new evidence that may become

available relating to the enemy combatant status of a 

detainee.” DTA §1005(a)(3). Regulations issued by the

Department of Defense provide that when a detainee puts

forward new, material evidence “not previously presented 

to the detainee’s CSRT,” the Deputy Secretary of Defense 

“‘will direct that a CSRT convene to reconsider the basis of 

the detainee’s . . . status in light of the new information.’” 

Office for the Administrative Review of the Detention of 

Enemy Combatants, Instruction 5421.1, Procedure for 

Review of “New Evidence” Relating to Enemy Combatant

(EC) Status ¶¶4(a)(1), 5(b) (May 7, 2007); Brief for Federal

Respondents 56, n. 30. Pursuant to DTA §1005(e)(2)(A), 

the resulting CSRT determination is again reviewable in 
 

 

 

22 BOUMEDIENE v. BUSH 

ROBERTS, C. J., dissenting 

full by the D. C. Circuit.2 

In addition, DTA §1005(d)(1) further requires the Department of Defense to conduct a yearly review of the

status of each prisoner. See 119 Stat. 2741. The Deputy

Secretary of Defense has promulgated concomitant regulations establishing an Administrative Review Board to 

assess “annually the need to continue to detain each enemy combatant.” Deputy Secretary of Defense Order OSD

06942–04 (May 11, 2004), App. K to Pet. for Cert. in No. 

06–1196, p. 189. In the words of the implementing order,

the purpose of this annual review is to afford every detainee the opportunity “to explain why he is no longer a 

threat to the United States” and should be released. Ibid. 

The Board’s findings are forwarded to a presidentially

appointed, Senate-confirmed civilian within the Department of Defense whom the Secretary of Defense has designated to administer the review process. This designated

civilian official has the authority to order release upon the

Board’s recommendation. Id., at 201. 

The Court’s hand wringing over the DTA’s treatment of 

later-discovered exculpatory evidence is the most it has to 

show after a roving search for constitutionally problematic

scenarios. But “[t]he delicate power of pronouncing an Act 

of Congress unconstitutional,” we have said, “is not to be

exercised with reference to hypothetical cases thus imagined.” United States v. Raines, 362 U. S. 17, 22 (1960). 

The Court today invents a sort of reverse facial challenge 

—————— 

2The Court wonders what might happen if the detainee puts forward 

new material evidence but the Deputy Secretary refuses to convene a 

new CSRT. See ante, at 62–63. The answer is that the detainee can 

petition the D. C. Circuit for review. The DTA directs that the procedures for review of new evidence be included among “[t]he procedures

submitted under paragraph (1)(A)” governing CSRT review of enemy 

combatant status §1405(a)(3), 119 Stat. 3476. It is undisputed that the

D. C. Circuit has statutory authority to review and enforce these

procedures. See DTA §1005(e)(2)(C)(i), id., at 2742. 
 

Cite as: 553 U. S. ____ (2008) 23 

ROBERTS, C. J., dissenting 

and applies it with gusto: If there is any scenario in which 

the statute might be constitutionally infirm, the law must 

be struck down. Cf. United States v. Salerno, 481 U. S. 

739, 745 (1987) (“A facial challenge . . . must establish that 

no set of circumstances exists under which the Act would 

be valid”); see also Washington v. Glucksberg, 521 U. S. 

702, 739–740, and n. 7 (1997) (STEVENS, J., concurring in 

judgments) (facial challenge must fail where the statute

has “‘plainly legitimate sweep’” (quoting Broadrick v. 

Oklahoma, 413 U. S. 601, 615 (1973))). The Court’s new 

method of constitutional adjudication only underscores its

failure to follow our usual procedures and require petitioners to demonstrate that they have been harmed by the 

statute they challenge. In the absence of such a concrete 

showing, the Court is unable to imagine a plausible hypothetical in which the DTA is unconstitutional. 

E 

The Court’s second criterion for an adequate substitute

is the “power to order the conditional release of an individual unlawfully detained.” Ante, at 50. As the Court 

basically admits, the DTA can be read to permit the D. C.

Circuit to order release in light of our traditional principles of construing statutes to avoid difficult constitutional 

issues, when reasonably possible. See ante, at 56–57. 

The Solicitor General concedes that remedial authority 

of some sort must be implied in the statute, given that the

DTA—like the general habeas law itself, see 28 U. S. C.

§2243—provides no express remedy of any kind. Brief for 

Federal Respondents 60–61. The parties agree that at the

least, the DTA empowers the D. C. Circuit to remand a

prisoner’s case to the CSRT with instructions to perform a 

new status assessment. Brief for Petitioner Boumediene 

et al. in No. 06–1195, at 30; Brief for Federal Respondents 

60–61. To avoid constitutional infirmity, it is reasonable 

to imply more, see Ashwander, 297 U. S., at 348 (Brandeis, 
 

 

24 BOUMEDIENE v. BUSH 

ROBERTS, C. J., dissenting 

J., concurring) (“When the validity of an act of the Congress is drawn in question . . . it is a cardinal principle 

that this Court will . . . ascertain whether a construction of 

the statute is fairly possible by which the [constitutional] 

question may be avoided” (internal quotation marks omitted)); see also St. Cyr, 533 U. S., at 299–300, especially in

view of the Solicitor General’s concession at oral argument 

and in his Supplemental Brief that authority to release 

might be read in the statute, see Tr. of Oral Arg. 37; Supplemental Brief for Federal Respondents 9. 

The Court grudgingly suggests that “Congress’ silence 

on the question of remedies suggests acquiescence to any 

constitutionally required remedy.” Ante, at 58. But the 

argument in favor of statutorily authorized release is

stronger than that. The DTA’s parallels to 28 U. S. C.

§2243 on this score are noteworthy. By way of remedy, 

the general federal habeas statute provides only that the 

court, having heard and determined the facts, shall “dispose of the matter as law and justice require.” Ibid. We 

have long held, and no party here disputes, that this

includes the power to order release. See Wilkinson v. 

Dotson, 544 U. S. 74, 79 (2005) (“[T]he writ’s history 

makes clear that it traditionally has been accepted as the 

specific instrument to obtain release from [unlawful]

confinement” (internal quotation marks omitted)). 

The DTA can be similarly read. Because Congress

substituted DTA review for habeas corpus and because

the “unique purpose” of the writ is “to release the applicant . . . from unlawful confinement,” Allen v. McCurry, 

449 U. S. 90, 98, n. 12 (1980), DTA §1005(e)(2) can and 

should be read to confer on the Court of Appeals the 

authority to order release in appropriate circumstances. 

Section 1005(e)(2)(D) plainly contemplates release, addressing the effect “release of [an] alien from the custody

of the Department of Defense” will have on the jurisdiction 

of the court. 119 Stat. 2742–2743. This reading avoids 
 

Cite as: 553 U. S. ____ (2008) 25 

ROBERTS, C. J., dissenting 

serious constitutional difficulty and is consistent with the 

text of the statute. 

The D. C. Circuit can thus order release, the CSRTs can 

order release, and the head of the Administrative Review 

Boards can, at the recommendation of those panels, order 

release. These multiple release provisions within the DTA 

system more than satisfy the majority’s requirement that 

any tribunal substituting for a habeas court have the

authority to release the prisoner. 

The basis for the Court’s contrary conclusion is summed

up in the following sentence near the end of its opinion: 

“To hold that the detainees at Guantanamo may, under

the DTA, challenge the President’s legal authority to

detain them, contest the CSRT’s findings of fact, supplement the record on review with newly discovered or previously unavailable evidence, and request an order of release would come close to reinstating the §2241 habeas

corpus process Congress sought to deny them.” Ante, at 

63. In other words, any interpretation of the statute that 

would make it an adequate substitute for habeas must be 

rejected, because Congress could not possibly have intended to enact an adequate substitute for habeas. The 

Court could have saved itself a lot of trouble if it had 

simply announced this Catch-22 approach at the beginning rather than the end of its opinion. 

III 

For all its eloquence about the detainees’ right to the

writ, the Court makes no effort to elaborate how exactly

the remedy it prescribes will differ from the procedural

protections detainees enjoy under the DTA. The Court 

objects to the detainees’ limited access to witnesses and 

classified material, but proposes no alternatives of its own. 

Indeed, it simply ignores the many difficult questions its 

holding presents. What, for example, will become of the 

CSRT process? The majority says federal courts should 
 

 

26 BOUMEDIENE v. BUSH 

ROBERTS, C. J., dissenting 

generally refrain from entertaining detainee challenges

until after the petitioner’s CSRT proceeding has finished. 

See ante, at 66 (“[e]xcept in cases of undue delay”). But 

to what deference, if any, is that CSRT determination 

entitled? 

There are other problems. Take witness availability.

What makes the majority think witnesses will become

magically available when the review procedure is labeled 

“habeas”? Will the location of most of these witnesses 

change—will they suddenly become easily susceptible to

service of process? Or will subpoenas issued by American 

habeas courts run to Basra? And if they did, how would 

they be enforced? Speaking of witnesses, will detainees be

able to call active-duty military officers as witnesses? If 

not, why not?

The majority has no answers for these difficulties. What 

it does say leaves open the distinct possibility that its

“habeas” remedy will, when all is said and done, end up

looking a great deal like the DTA review it rejects. See 

ante, at 66 (opinion of the court) (“We recognize, however, 

that the Government has a legitimate interest in protecting sources and methods of intelligence gathering, and we

expect that the District Court will use its discretion to 

accommodate this interest to the greatest extent possible”). But “[t]he role of the judiciary is limited to determining whether the procedures meet the essential standard of fairness under the Due Process Clause and does 

not extend to imposing procedures that merely displace 

congressional choices of policy.” Landon v. Plasencia, 459 

U. S. 21, 34–35 (1982).

The majority rests its decision on abstract and hypothetical concerns. Step back and consider what, in the 

real world, Congress and the Executive have actually

granted aliens captured by our Armed Forces overseas and 

found to be enemy combatants: 

• The right to hear the bases of the charges against 
 

 

 

Cite as: 553 U. S. ____ (2008) 27 

ROBERTS, C. J., dissenting 

them, including a summary of any classified 

evidence. 

•	 The ability to challenge the bases of their detention 

before military tribunals modeled after Geneva 

Convention procedures. Some 38 detainees have 

been released as a result of this process. Brief for 

Federal Respondents 57, 60. 

•	 The right, before the CSRT, to testify, introduce 

evidence, call witnesses, question those the Government calls, and secure release, if and when 

appropriate. 

•	 The right to the aid of a personal representative in 

arranging and presenting their cases before a 

CSRT. 

•	 Before the D. C. Circuit, the right to employ counsel, challenge the factual record, contest the lower

tribunal’s legal determinations, ensure compliance 

with the Constitution and laws, and secure release, 

if any errors below establish their entitlement to

such relief. 

In sum, the DTA satisfies the majority’s own criteria 

for assessing adequacy. This statutory scheme provides

the combatants held at Guantanamo greater procedural 

protections than have ever been afforded alleged enemy 

detainees—whether citizens or aliens—in our national 

history. 

* * * 

So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation 

to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, 

followed by further litigation before the D. C. Circuit—

where they could have started had they invoked the DTA 

procedure. Not Congress, whose attempt to “determine— 

through democratic means—how best” to balance the 
 

 

28 BOUMEDIENE v. BUSH 

ROBERTS, C. J., dissenting 

security of the American people with the detainees’ liberty

interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636 

(2006) (BREYER, J., concurring), has been unceremoniously 

brushed aside. Not the Great Writ, whose majesty is 

hardly enhanced by its extension to a jurisdictionally

quirky outpost, with no tangible benefit to anyone. Not the 

rule of law, unless by that is meant the rule of lawyers,

who will now arguably have a greater role than military 

and intelligence officials in shaping policy for alien enemy 

combatants. And certainly not the American people, who

today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable 

judges. 

I respectfully dissent. 
_________________ 

_________________ 

Cite as: 553 U. S. ____ (2008) 1 

SCALIA, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

Nos. 06–1195 and 06–1196 

LAKHDAR BOUMEDIENE, ET AL., PETITIONERS 

06–1195 v. 

GEORGE W. BUSH, PRESIDENT OF THE UNITED 

STATES, ET AL. 

KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI 

KHALID ABDULLAH FAHAD AL ODAH, ET AL., 

PETITIONERS 

06–1196 v. 

UNITED STATES ET AL. 

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 

[June 12, 2008] 

JUSTICE SCALIA, with whom THE CHIEF JUSTICE, 

JUSTICE THOMAS, and JUSTICE ALITO join, dissenting. 

Today, for the first time in our Nation’s history, the

Court confers a constitutional right to habeas corpus on

alien enemies detained abroad by our military forces in

the course of an ongoing war. THE CHIEF JUSTICE’s dissent, which I join, shows that the procedures prescribed by 

Congress in the Detainee Treatment Act provide the essential protections that habeas corpus guarantees; there 

has thus been no suspension of the writ, and no basis 

exists for judicial intervention beyond what the Act allows. 

My problem with today’s opinion is more fundamental

still: The writ of habeas corpus does not, and never has, 

run in favor of aliens abroad; the Suspension Clause thus

has no application, and the Court’s intervention in this 

military matter is entirely ultra vires. 
 

 

2 BOUMEDIENE v. BUSH 

SCALIA, J., dissenting 

I shall devote most of what will be a lengthy opinion to 

the legal errors contained in the opinion of the Court.

Contrary to my usual practice, however, I think it appropriate to begin with a description of the disastrous consequences of what the Court has done today. 

I 

America is at war with radical Islamists. The enemy

began by killing Americans and American allies abroad: 

241 at the Marine barracks in Lebanon, 19 at the Khobar 

Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen. See 

National Commission on Terrorist Attacks upon the 

United States, The 9/11 Commission Report, pp. 60–61, 

70, 190 (2004). On September 11, 2001, the enemy 

brought the battle to American soil, killing 2,749 at the 

Twin Towers in New York City, 184 at the Pentagon in

Washington, D. C., and 40 in Pennsylvania. See id., at 

552, n. 9. It has threatened further attacks against our 

homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the 

country, to know that the threat is a serious one. Our 

Armed Forces are now in the field against the enemy, in 

Afghanistan and Iraq. Last week, 13 of our countrymen in 

arms were killed. 

The game of bait-and-switch that today’s opinion plays

upon the Nation’s Commander in Chief will make the war

harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if 

necessary to preserve a time-honored legal principle vital 

to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the

decision today. The President relied on our settled precedent in Johnson v. Eisentrager, 339 U. S. 763 (1950), when

he established the prison at Guantanamo Bay for enemy 

aliens. Citing that case, the President’s Office of Legal 
 

 

Cite as: 553 U. S. ____ (2008) 3 

SCALIA, J., dissenting 

Counsel advised him “that the great weight of legal authority indicates that a federal district court could not

properly exercise habeas jurisdiction over an alien detained at [Guantanamo Bay].” Memorandum from Patrick 

F. Philbin and John C. Yoo, Deputy Assistant Attorneys 

General, Office of Legal Counsel, to William J. Haynes II, 

General Counsel, Dept. of Defense (Dec. 28, 2001). Had 

the law been otherwise, the military surely would not have 

transported prisoners there, but would have kept them in 

Afghanistan, transferred them to another of our foreign 

military bases, or turned them over to allies for detention.

Those other facilities might well have been worse for the 

detainees themselves. 

In the long term, then, the Court’s decision today accomplishes little, except perhaps to reduce the well-being

of enemy combatants that the Court ostensibly seeks to 

protect. In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released 

from Guantanamo Bay have returned to the battlefield.

See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Views

of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn) 

(hereinafter Minority Report). Some have been captured 

or killed. See ibid.; see also Mintz, Released Detainees 

Rejoining the Fight, Washington Post, Oct. 22, 2004, pp.

A1, A12. But others have succeeded in carrying on their

atrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the 

kidnapping of two Chinese dam workers, one of whom was 

later shot to death when used as a human shield against 

Pakistani commandoes. See Khan & Lancaster, Pakistanis Rescue Hostage; 2nd Dies, Washington Post, Oct. 

15, 2004, p. A18. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. Mintz, supra. Still another murdered an Afghan

judge. See Minority Report 13. It was reported only last 
 

4 BOUMEDIENE v. BUSH 

SCALIA, J., dissenting 

month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq. See White, ExGuantanamo Detainee Joined Iraq Suicide Attack, Washington Post, May 8, 2008, p. A18.

These, mind you, were detainees whom the military had 

concluded were not enemy combatants. Their return to 

the kill illustrates the incredible difficulty of assessing 

who is and who is not an enemy combatant in a foreign 

theater of operations where the environment does not lend 

itself to rigorous evidence collection. Astoundingly, the

Court today raises the bar, requiring military officials to 

appear before civilian courts and defend their decisions 

under procedural and evidentiary rules that go beyond

what Congress has specified. As THE CHIEF JUSTICE’s 

dissent makes clear, we have no idea what those procedural and evidentiary rules are, but they will be determined by civil courts and (in the Court’s contemplation at

least) will be more detainee-friendly than those now applied, since otherwise there would be no reason to hold the 

congressionally prescribed procedures unconstitutional. If 

they impose a higher standard of proof (from foreign battlefields) than the current procedures require, the number 

of the enemy returned to combat will obviously increase. 

But even when the military has evidence that it can 

bring forward, it is often foolhardy to release that evidence 

to the attorneys representing our enemies. And one escalation of procedures that the Court is clear about is affording the detainees increased access to witnesses (perhaps

troops serving in Afghanistan?) and to classified information. See ante, at 54–55. During the 1995 prosecution of

Omar Abdel Rahman, federal prosecutors gave the names

of 200 unindicted co-conspirators to the “Blind Sheik’s”

defense lawyers; that information was in the hands of 

Osama Bin Laden within two weeks. See Minority Report 

14–15. In another case, trial testimony revealed to the

enemy that the United States had been monitoring their 
Cite as: 553 U. S. ____ (2008) 5 

SCALIA, J., dissenting 

cellular network, whereupon they promptly stopped using 

it, enabling more of them to evade capture and continue

their atrocities. See id., at 15. 

And today it is not just the military that the Court

elbows aside. A mere two Terms ago in Hamdan v. Rumsfeld, 548 U. S. 557 (2006), when the Court held (quite

amazingly) that the Detainee Treatment Act of 2005 had 

not stripped habeas jurisdiction over Guantanamo petitioners’ claims, four Members of today’s five-Justice majority joined an opinion saying the following: 

“Nothing prevents the President from returning to

Congress to seek the authority [for trial by military 

commission] he believes necessary. 

“Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal 

with danger. To the contrary, that insistence 

strengthens the Nation’s ability to determine— 

through democratic means—how best to do so. The 

Constitution places its faith in those democratic

means.” Id., at 636 (BREYER, J., concurring).1 

Turns out they were just kidding. For in response, Congress, at the President’s request, quickly enacted the 

Military Commissions Act, emphatically reasserting that 

it did not want these prisoners filing habeas petitions. It 

is therefore clear that Congress and the Executive—both 

political branches—have determined that limiting the role 

—————— 

1Even today, the Court cannot resist striking a pose of faux deference

to Congress and the President. Citing the above quoted passage, the

Court says: “The political branches, consistent with their independent 

obligations to interpret and uphold the Constitution, can engage in a 

genuine debate about how best to preserve constitutional values while 

protecting the Nation from terrorism.” Ante, at 69. Indeed. What the 

Court apparently means is that the political branches can debate, after

which the Third Branch will decide. 
 

 

6 BOUMEDIENE v. BUSH 

SCALIA, J., dissenting 

of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success

in the war that some 190,000 of our men and women are 

now fighting. As the Solicitor General argued, “the Military Commissions Act and the Detainee Treatment Act . . .

represent an effort by the political branches to strike an

appropriate balance between the need to preserve liberty 

and the need to accommodate the weighty and sensitive

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.” Brief for Respondents 

10–11 (internal quotation marks omitted).

But it does not matter. The Court today decrees that no 

good reason to accept the judgment of the other two 

branches is “apparent.” Ante, at 40. “The Government,” it 

declares, “presents no credible arguments that the military mission at Guantanamo would be compromised if 

habeas corpus courts had jurisdiction to hear the detainees’ claims.” Id., at 39. What competence does the Court 

have to second-guess the judgment of Congress and the 

President on such a point? None whatever. But the Court 

blunders in nonetheless. Henceforth, as today’s opinion 

makes unnervingly clear, how to handle enemy prisoners

in this war will ultimately lie with the branch that knows

least about the national security concerns that the subject 

entails. 

II 

A 

The Suspension Clause of the Constitution provides: 

“The Privilege of the Writ of Habeas Corpus shall not be 

suspended, unless when in Cases of Rebellion or Invasion 

the public Safety may require it.” Art. I, §9, cl. 2. As a 

court of law operating under a written Constitution, our 

role is to determine whether there is a conflict between 

that Clause and the Military Commissions Act. A conflict 
 

Cite as: 553 U. S. ____ (2008) 7 

SCALIA, J., dissenting 

arises only if the Suspension Clause preserves the privilege of the writ for aliens held by the United States military as enemy combatants at the base in Guantanamo 

Bay, located within the sovereign territory of Cuba. 

We have frequently stated that we owe great deference 

to Congress’s view that a law it has passed is constitutional. See, e.g., Department of Labor v. Triplett, 494 U. S. 

715, 721 (1990); United States v. National Dairy Products 

Corp., 372 U. S. 29, 32 (1963); see also American Communications Assn. v. Douds, 339 U. S. 382, 435 (1950) (Jackson, J., concurring in part and dissenting in part). That is 

especially so in the area of foreign and military affairs;

“perhaps in no other area has the Court accorded Congress

greater deference.” Rostker v. Goldberg, 453 U. S. 57, 64– 

65 (1981). Indeed, we accord great deference even when 

the President acts alone in this area. See Department of 

Navy v. Egan, 484 U. S. 518, 529–530 (1988); Regan v. 

Wald, 468 U. S. 222, 243 (1984). 

In light of those principles of deference, the Court’s 

conclusion that “the common law [does not] yiel[d] a definite answer to the questions before us,” ante, at 22, leaves 

it no choice but to affirm the Court of Appeals. The writ 

as preserved in the Constitution could not possibly extend 

farther than the common law provided when that Clause 

was written. See Part III, infra. The Court admits that it 

cannot determine whether the writ historically extended 

to aliens held abroad, and it concedes (necessarily) that 

Guantanamo Bay lies outside the sovereign territory of 

the United States. See ante, at 22–23; Rasul v. Bush, 542 

U. S. 466, 500–501 (2004) (SCALIA, J., dissenting). Together, these two concessions establish that it is (in the

Court’s view) perfectly ambiguous whether the commonlaw writ would have provided a remedy for these petitioners. If that is so, the Court has no basis to strike down the 

Military Commissions Act, and must leave undisturbed 
 

 

8 BOUMEDIENE v. BUSH 

SCALIA, J., dissenting 

the considered judgment of the coequal branches.2 

How, then, does the Court weave a clear constitutional 

prohibition out of pure interpretive equipoise? The Court 

resorts to “fundamental separation-of-powers principles”

to interpret the Suspension Clause. Ante, at 25. According to the Court, because “the writ of habeas corpus is

itself an indispensable mechanism for monitoring the 

separation of powers,” the test of its extraterritorial reach

“must not be subject to manipulation by those whose 

power it is designed to restrain.” Ante, at 36. 

That approach distorts the nature of the separation of 

powers and its role in the constitutional structure. The 

“fundamental separation-of-powers principles” that the 

Constitution embodies are to be derived not from some 

judicially imagined matrix, but from the sum total of the 

individual separation-of-powers provisions that the Constitution sets forth. Only by considering them one-by-one 

does the full shape of the Constitution’s separation-ofpowers principles emerge. It is nonsensical to interpret

those provisions themselves in light of some general

“separation-of-powers principles” dreamed up by the 

Court. Rather, they must be interpreted to mean what

they were understood to mean when the people ratified 

them. And if the understood scope of the writ of habeas

corpus was “designed to restrain” (as the Court says) the

actions of the Executive, the understood limits upon that 

—————— 

2The opinion seeks to avoid this straightforward conclusion by saying 

that the Court has been “careful not to foreclose the possibility that the

protections of the Suspension Clause have expanded along with post1789 developments that define the present scope of the writ.” Ante, at 

15–16 (citing INS v. St. Cyr, 533 U. S. 289 300–301 (2001)). But not 

foreclosing the possibility that they have expanded is not the same as 

demonstrating (or at least holding without demonstration, which seems 

to suffice for today’s majority) that they have expanded. The Court 

must either hold that the Suspension Clause has “expanded” in its 

application to aliens abroad, or acknowledge that it has no basis to set

aside the actions of Congress and the President. It does neither. 
 

Cite as: 553 U. S. ____ (2008) 9 

SCALIA, J., dissenting 

scope were (as the Court seems not to grasp) just as much 

“designed to restrain” the incursions of the Third Branch. 

“Manipulation” of the territorial reach of the writ by the 

Judiciary poses just as much a threat to the proper separation of powers as “manipulation” by the Executive. As I 

will show below, manipulation is what is afoot here. The 

understood limits upon the writ deny our jurisdiction over 

the habeas petitions brought by these enemy aliens, and 

entrust the President with the crucial wartime determinations about their status and continued confinement. 

B 

The Court purports to derive from our precedents a

“functional” test for the extraterritorial reach of the writ, 

ante, at 34, which shows that the Military Commissions

Act unconstitutionally restricts the scope of habeas. That 

is remarkable because the most pertinent of those precedents, Johnson v. Eisentrager, 339 U. S. 763, conclusively 

establishes the opposite. There we were confronted with 

the claims of 21 Germans held at Landsberg Prison, an 

American military facility located in the American Zone of 

occupation in postwar Germany. They had been captured

in China, and an American military commission sitting 

there had convicted them of war crimes—collaborating

with the Japanese after Germany’s surrender. Id., at 765– 

766. Like the petitioners here, the Germans claimed that

their detentions violated the Constitution and international law, and sought a writ of habeas corpus. Writing

for the Court, Justice Jackson held that American courts 

lacked habeas jurisdiction: 

“We are cited to [sic] no instance where a court, in 

this or any other country where the writ is known, has 

issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been 

within its territorial jurisdiction. Nothing in the text

of the Constitution extends such a right, nor does any-
 

 

 

10 BOUMEDIENE v. BUSH 

SCALIA, J., dissenting 

thing in our statutes.” Id., at 768. 

Justice Jackson then elaborated on the historical scope

of the writ: 

“The alien, to whom the United States has been traditionally hospitable, has been accorded a generous

and ascending scale of rights as he increases his identity with our society. . . . 

“But, in extending constitutional protections beyond 

the citizenry, the Court has been at pains to point out 

that it was the alien’s presence within its territorial 

jurisdiction that gave the Judiciary power to act.” Id., 

at 770–771. 

Lest there be any doubt about the primacy of territorial

sovereignty in determining the jurisdiction of a habeas 

court over an alien, Justice Jackson distinguished two

cases in which aliens had been permitted to seek habeas

relief, on the ground that the prisoners in those cases were 

in custody within the sovereign territory of the United

States. Id., at 779–780 (discussing Ex parte Quirin, 317 

U. S. 1 (1942), and In re Yamashita, 327 U. S. 1 (1946)).

“By reason of our sovereignty at that time over [the Philippines],” Jackson wrote, “Yamashita stood much as did 

Quirin before American courts.” 339 U. S., at 780. 

Eisentrager thus held—held beyond any doubt—that the 

Constitution does not ensure habeas for aliens held by the 

United States in areas over which our Government is not 

sovereign.3 

—————— 

3 In its failed attempt to distinguish Eisentrager, the Court comes up 

with the notion that “de jure sovereignty” is simply an additional factor

that can be added to (presumably) “de facto sovereignty” (i.e., practical

control) to determine the availability of habeas for aliens, but that it is

not a necessary factor, whereas de facto sovereignty is. It is perhaps in 

this de facto sense, the Court speculates, that Eisentrager found “sovereignty” lacking. See ante, at 23–25. If that were so, one would have 

expected Eisentrager to explain in some detail why the United States 
 

 

 

Cite as: 553 U. S. ____ (2008) 11 

SCALIA, J., dissenting 

The Court would have us believe that Eisentrager rested 

on “[p]ractical considerations,” such as the “difficulties of 

ordering the Government to produce the prisoners in a 

habeas corpus proceeding.” Ante, at 32. Formal sovereignty, says the Court, is merely one consideration “that

bears upon which constitutional guarantees apply” in a

given location. Ante, at 34. This is a sheer rewriting of 

the case. Eisentrager mentioned practical concerns, to be

sure—but not for the purpose of determining under what 

circumstances American courts could issue writs of habeas 

corpus for aliens abroad. It cited them to support its 

holding that the Constitution does not empower courts to

issue writs of habeas corpus to aliens abroad in any circumstances. As Justice Black accurately said in dissent,

“the Court’s opinion inescapably denies courts power to

afford the least bit of protection for any alien who is subject to our occupation government abroad, even if he is

neither enemy nor belligerent and even after peace is 

officially declared.” 339 U. S., at 796. 

The Court also tries to change Eisentrager into a “func-

—————— 

did not have practical control over the American zone of occupation. It 

did not (and probably could not). Of course this novel de facto-de jure 

approach does not explain why the writ never issued to Scotland, which 

was assuredly within the de facto control of the English crown. See 

infra, at 22. 

To support its holding that de facto sovereignty is relevant to the

reach of habeas corpus, the Court cites our decision in Fleming v. Page, 

9 How. 603 (1850), a case about the application of a customs statute to

a foreign port occupied by U. S. forces. See ante, at 24. The case used 

the phrase “subject to the sovereignty and dominion of the United

States” to refer to the United States’ practical control over a “foreign 

country.” 9 How., at 614. But Fleming went on to explain that because

the port remained part of the “enemy’s country,” even though under

U. S. military occupation, “its subjugation did not compel the United

States, while they held it, to regard it as part of their dominions, nor to

give to it any form of civil government, nor to extend to it our laws.” 

Id., at 618. If Fleming is relevant to these cases at all, it undermines 

the Court’s holding. 
 

 

 

12 BOUMEDIENE v. BUSH 

SCALIA, J., dissenting 

tional” test by quoting a paragraph that lists the characteristics of the German petitioners: 

“To support [the] assumption [of a constitutional right 

to habeas corpus] we must hold that a prisoner of our 

military authorities is constitutionally entitled to the

writ, even though he (a) is an enemy alien; (b) has 

never been or resided in the United States; (c) was 

captured outside of our territory and there held in 

military custody as a prisoner of war; (d) was tried 

and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of 

war committed outside the United States; (f) and is at 

all times imprisoned outside the United States.” Id., 

at 777 (quoted in part, ante, at 36). 

But that paragraph is introduced by a sentence stating 

that “[t]he foregoing demonstrates how much further we 

must go if we are to invest these enemy aliens, resident, 

captured and imprisoned abroad, with standing to demand 

access to our courts.” 339 U. S., at 777 (emphasis added).

How much further than what? Further than the rule set 

forth in the prior section of the opinion, which said that “in

extending constitutional protections beyond the citizenry, 

the Court has been at pains to point out that it was the

alien’s presence within its territorial jurisdiction that gave 

the Judiciary power to act.” Id., at 771. In other words, 

the characteristics of the German prisoners were set forth,

not in application of some “functional” test, but to show

that the case before the Court represented an a fortiori 

application of the ordinary rule. That is reaffirmed by the 

sentences that immediately follow the listing of the Germans’ characteristics: 

“We have pointed out that the privilege of litigation 

has been extended to aliens, whether friendly or enemy, only because permitting their presence in the 

country implied protection. No such basis can be in-
Cite as: 553 U. S. ____ (2008) 13 

SCALIA, J., dissenting 

voked here, for these prisoners at no relevant time 

were within any territory over which the United

States is sovereign, and the scenes of their offense,

their capture, their trial and their punishment were

all beyond the territorial jurisdiction of any court of

the United States.” Id., at 777–778. 

Eisentrager nowhere mentions a “functional” test, and the 

notion that it is based upon such a principle is patently 

false.4 

The Court also reasons that Eisentrager must be read as 

a “functional” opinion because of our prior decisions in the 

Insular Cases. See ante, at 26–29. It cites our statement 

in Balzac v. Porto Rico, 258 U. S. 298, 312 (1922), that 

“‘the real issue in the Insular Cases was not whether the 

Constitution extended to the Philippines or Porto Rico 

when we went there, but which of its provisions were 

—————— 

4 JUSTICE SOUTER’s concurrence relies on our decision four Terms ago 

in Rasul v. Bush, 542 U. S. 466 (2004), where the Court interpreted the 

habeas statute to extend to aliens held at Guantanamo Bay. He thinks 

that “no one who reads the Court’s opinion in Rasul could seriously

doubt that the jurisdictional question must be answered the same way 

in purely constitutional cases.” Ante, at 1–2. But Rasul was devoted 

primarily to an explanation of why Eisentrager’s statutory holding no

longer controlled given our subsequent decision in Braden v. 30th 

Judicial Circuit Court of Ky., 410 U. S. 484 (1973). See Rasul, supra, at 

475–479. And the opinion of the Court today—which JUSTICE SOUTER 

joins—expressly rejects the historical evidence cited in Rasul to support

its conclusion about the reach of habeas corpus. Compare id., at 481– 

482, with ante, at 18. Moreover, even if one were to accept as true what 

JUSTICE SOUTER calls Rasul’s “well-considered” dictum, that does not 

explain why Eisentrager’s constitutional holding must be overruled or

how it can be distinguished. (After all, Rasul distinguished Eisentrager’s statutory holding on a ground inapplicable to its constitutional

holding.) In other words, even if the Court were to conclude that 

Eisentrager’s rule was incorrect as an original matter, the Court would 

have to explain the justification for departing from that precedent. It 

therefore cannot possibly be true that Rasul controls this case, as 

JUSTICE SOUTER suggests. 
 

 

14 BOUMEDIENE v. BUSH 

SCALIA, J., dissenting 

applicable by way of limitation upon the exercise of executive and legislative power in dealing with new conditions 

and requirements.’” Ante, at 28. But the Court conveniently omits Balzac’s predicate to that statement: “The 

Constitution of the United States is in force in Porto Rico 

as it is wherever and whenever the sovereign power of that 

government is exerted.” 258 U. S., at 312 (emphasis 

added). The Insular Cases all concerned territories acquired by Congress under its Article IV authority and 

indisputably part of the sovereign territory of the United

States. See United States v. Verdugo-Urquidez, 494 U. S. 

259, 268 (1990); Reid v. Covert, 354 U. S. 1, 13 (1957) 

(plurality opinion of Black, J.). None of the Insular Cases 

stands for the proposition that aliens located outside U. S.

sovereign territory have constitutional rights, and Eisentrager held just the opposite with respect to habeas corpus.

As I have said, Eisentrager distinguished Yamashita on 

the ground of “our sovereignty [over the Philippines],” 339 

U. S., at 780. 

The Court also relies on the “[p]ractical considerations”

that influenced our decision in Reid v. Covert, supra. See 

ante, at 29–32. But all the Justices in the majority except

Justice Frankfurter limited their analysis to the rights of 

citizens abroad. See Reid, supra, at 5–6 (plurality opinion 

of Black, J.); id., at 74–75 (Harlan, J., concurring in result). (Frankfurter limited his analysis to the even narrower class of civilian dependents of American military 

personnel abroad, see id., at 45 (opinion concurring in 

result).) In trying to wring some kind of support out of 

Reid for today’s novel holding, the Court resorts to a chain

of logic that does not hold. The members of the Reid 

majority, the Court says, were divided over whether In re 

Ross, 140 U. S. 453 (1891), which had (according to the 

Court) held that under certain circumstances American

citizens abroad do not have indictment and jury-trial 

rights, should be overruled. In the Court’s view, the Reid 
Cite as: 553 U. S. ____ (2008) 15 

SCALIA, J., dissenting 

plurality would have overruled Ross, but Justices Frankfurter and Harlan preferred to distinguish it. The upshot:

“If citizenship had been the only relevant factor in the 

case, it would have been necessary for the Court to overturn Ross, something Justices Harlan and Frankfurter 

were unwilling to do.” Ante, at 32. What, exactly, is this

point supposed to prove? To say that “practical considerations” determine the precise content of the constitutional 

protections American citizens enjoy when they are abroad 

is quite different from saying that “practical considerations” determine whether aliens abroad enjoy any constitutional protections whatever, including habeas. In other 

words, merely because citizenship is not a sufficient factor 

to extend constitutional rights abroad does not mean that

it is not a necessary one. 

The Court tries to reconcile Eisentrager with its holding 

today by pointing out that in postwar Germany, the

United States was “answerable to its Allies” and did not 

“pla[n] a long-term occupation.” Ante, at 38, 39. Those 

factors were not mentioned in Eisentrager. Worse still, it 

is impossible to see how they relate to the Court’s asserted 

purpose in creating this “functional” test—namely, to 

ensure a judicial inquiry into detention and prevent the 

political branches from acting with impunity. Can it 

possibly be that the Court trusts the political branches

more when they are beholden to foreign powers than when

they act alone?

After transforming the a fortiori elements discussed 

above into a “functional” test, the Court is still left with 

the difficulty that most of those elements exist here as 

well with regard to all the detainees. To make the application of the newly crafted “functional” test produce a

different result in the present cases, the Court must rely

upon factors (d) and (e): The Germans had been tried by a

military commission for violations of the laws of war; the 

present petitioners, by contrast, have been tried by a 
 

 

 

16 BOUMEDIENE v. BUSH 

SCALIA, J., dissenting 

Combatant Status Review Tribunal (CSRT) whose procedural protections, according to the Court’s ipse dixit, “fall 

well short of the procedures and adversarial mechanisms 

that would eliminate the need for habeas corpus review.” 

Ante, at 37. But no one looking for “functional” equivalents would put Eisentrager and the present cases in the 

same category, much less place the present cases in a

preferred category. The difference between them cries out 

for lesser procedures in the present cases. The prisoners 

in Eisentrager were prosecuted for crimes after the cessation of hostilities; the prisoners here are enemy combatants detained during an ongoing conflict. See Hamdi v. 

Rumsfeld, 542 U. S. 507, 538 (2004) (plurality opinion) 

(suggesting, as an adequate substitute for habeas corpus, 

the use of a tribunal akin to a CSRT to authorize the 

detention of American citizens as enemy combatants during the course of the present conflict).

The category of prisoner comparable to these detainees 

are not the Eisentrager criminal defendants, but the more 

than 400,000 prisoners of war detained in the United 

States alone during World War II. Not a single one was 

accorded the right to have his detention validated by a 

habeas corpus action in federal court—and that despite 

the fact that they were present on U. S. soil. See Bradley, 

The Military Commissions Act, Habeas Corpus, and the

Geneva Conventions, 101 Am. J. Int’l L. 322, 338 (2007).

The Court’s analysis produces a crazy result: Whereas

those convicted and sentenced to death for war crimes are 

without judicial remedy, all enemy combatants detained

during a war, at least insofar as they are confined in an 

area away from the battlefield over which the United 

States exercises “absolute and indefinite” control, may

seek a writ of habeas corpus in federal court. And, as an 

even more bizarre implication from the Court’s reasoning,

those prisoners whom the military plans to try by fulldress Commission at a future date may file habeas peti-
 

Cite as: 553 U. S. ____ (2008) 17 

SCALIA, J., dissenting 

tions and secure release before their trials take place. 

There is simply no support for the Court’s assertion that

constitutional rights extend to aliens held outside U. S. 

sovereign territory, see Verdugo-Urquidez, 494 U. S., at 

271, and Eisentrager could not be clearer that the privilege

of habeas corpus does not extend to aliens abroad. By

blatantly distorting Eisentrager, the Court avoids the 

difficulty of explaining why it should be overruled. See 

Planned Parenthood of Southeastern Pa. v. Casey, 505 

U. S. 833, 854–855 (1992) (identifying stare decisis factors). The rule that aliens abroad are not constitutionally

entitled to habeas corpus has not proved unworkable in 

practice; if anything, it is the Court’s “functional” test that 

does not (and never will) provide clear guidance for the

future. Eisentrager forms a coherent whole with the accepted proposition that aliens abroad have no substantive 

rights under our Constitution. Since it was announced, no 

relevant factual premises have changed. It has engendered considerable reliance on the part of our military. 

And, as the Court acknowledges, text and history do not

clearly compel a contrary ruling. It is a sad day for the

rule of law when such an important constitutional precedent is discarded without an apologia, much less an 

apology. 

C 

What drives today’s decision is neither the meaning of 

the Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judicial supremacy.

The Court says that if the extraterritorial applicability of 

the Suspension Clause turned on formal notions of sovereignty, “it would be possible for the political branches to 

govern without legal constraint” in areas beyond the 

sovereign territory of the United States. Ante, at 35. That 

cannot be, the Court says, because it is the duty of this

Court to say what the law is. Id., at 35–36. It would be 
 

18 BOUMEDIENE v. BUSH 

SCALIA, J., dissenting 

difficult to imagine a more question-begging analysis. 

“The very foundation of the power of the federal courts to

declare Acts of Congress unconstitutional lies in the power 

and duty of those courts to decide cases and controversies 

properly before them.” United States v. Raines, 362 U. S. 

17, 20–21 (1960) (citing Marbury v. Madison, 1 Cranch 

137 (1803); emphasis added). Our power “to say what the 

law is” is circumscribed by the limits of our statutorily and

constitutionally conferred jurisdiction. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 573–578 (1992). And 

that is precisely the question in these cases: whether the 

Constitution confers habeas jurisdiction on federal courts

to decide petitioners’ claims. It is both irrational and 

arrogant to say that the answer must be yes, because 

otherwise we would not be supreme.

But so long as there are some places to which habeas 

does not run—so long as the Court’s new “functional” test

will not be satisfied in every case—then there will be circumstances in which “it would be possible for the political

branches to govern without legal constraint.” Or, to put it

more impartially, areas in which the legal determinations

of the other branches will be (shudder!) supreme. In other 

words, judicial supremacy is not really assured by the 

constitutional rule that the Court creates. The gap between rationale and rule leads me to conclude that the 

Court’s ultimate, unexpressed goal is to preserve the 

power to review the confinement of enemy prisoners held

by the Executive anywhere in the world. The “functional” 

test usefully evades the precedential landmine of Eisentrager but is so inherently subjective that it clears a wide 

path for the Court to traverse in the years to come. 

III 

Putting aside the conclusive precedent of Eisentrager, it 

is clear that the original understanding of the Suspension

Clause was that habeas corpus was not available to aliens 
Cite as: 553 U. S. ____ (2008) 19 

SCALIA, J., dissenting 

abroad, as Judge Randolph’s thorough opinion for the 

court below detailed. See 476 F. 3d 981, 988–990 (CADC 

2007).

The Suspension Clause reads: “The Privilege of the Writ 

of Habeas Corpus shall not be suspended, unless when in

Cases of Rebellion or Invasion the public Safety may 

require it.” U. S. Const., Art. I, §9, cl. 2. The proper

course of constitutional interpretation is to give the text

the meaning it was understood to have at the time of its 

adoption by the people. See, e.g., Crawford v. Washington, 

541 U. S. 36, 54 (2004). That course is especially demanded when (as here) the Constitution limits the power

of Congress to infringe upon a pre-existing common-law 

right. The nature of the writ of habeas corpus that cannot 

be suspended must be defined by the common-law writ

that was available at the time of the founding. See 

McNally v. Hill, 293 U. S. 131, 135–136 (1934); see also 

INS v. St. Cyr, 533 U. S. 289, 342 (2001) (SCALIA, J., dissenting); D’Oench, Duhme & Co. v. FDIC, 315 U. S. 447, 

471, n. 9 (1942) (Jackson, J., concurring). 

It is entirely clear that, at English common law, the writ

of habeas corpus did not extend beyond the sovereign 

territory of the Crown. To be sure, the writ had an “extraordinary territorial ambit,” because it was a so-called 

“prerogative writ,” which, unlike other writs, could extend

beyond the realm of England to other places where the

Crown was sovereign. R. Sharpe, The Law of Habeas

Corpus 188 (2d ed. 1989) (hereinafter Sharpe); see also

Note on the Power of the English Courts to Issue the Writ

of Habeas to Places Within the Dominions of the Crown, 

But Out of England, and On the Position of Scotland in 

Relation to that Power, 8 Jurid. Rev. 157 (1896) (hereinafter Note on Habeas); King v. Cowle, 2 Burr. 834, 855–856, 

97 Eng. Rep. 587, 599 (K. B. 1759). 

But prerogative writs could not issue to foreign countries, even for British subjects; they were confined to the 
 

20 BOUMEDIENE v. BUSH 

SCALIA, J., dissenting 

King’s dominions—those areas over which the Crown was

sovereign. See Sharpe 188; 2 R. Chambers, A Course of

Lectures on the English Law 1767–1773, pp. 7–8 (Curley 

ed. 1986); 3 W. Blackstone, Commentaries on the Laws of 

England 131 (1768) (hereinafter Blackstone). Thus, the 

writ has never extended to Scotland, which, although 

united to England when James I succeeded to the English

throne in 1603, was considered a foreign dominion under a

different Crown—that of the King of Scotland. Sharpe

191; Note on Habeas 158.5 That is why Lord Mansfield

wrote that “[t]o foreign dominions, which belong to a 

prince who succeeds to the throne of England, this Court

has no power to send any writ of any kind. We cannot 

send a habeas corpus to Scotland . . . .” Cowle, supra, at 

856, 97 Eng. Rep., at 599–600.

The common-law writ was codified by the Habeas Corpus Act of 1679, which “stood alongside Magna Charta and 

the English Bill of Rights of 1689 as a towering common 

law lighthouse of liberty—a beacon by which framing 

lawyers in America consciously steered their course.” 

Amar, Sixth Amendment First Principles, 84 Geo. L. J. 

641, 663 (1996). The writ was established in the Colonies 

beginning in the 1690’s and at least one colony adopted

the 1679 Act almost verbatim. See Dept. of Political Science, Okla. State Univ., Research Reports, No. 1, R.

Walker, The American Reception of the Writ of Liberty 

12–16 (1961). Section XI of the Act stated where the writ 

could run. It “may be directed and run into any county 

palatine, the cinque-ports, or other privileged places 

within the kingdom of England, dominion of Wales, or 

town of Berwick upon Tweed, and the islands of Jersey or

Guernsey.” 31 Car. 2, ch. 2. The cinque-ports and county

palatine were so-called “exempt jurisdictions”—franchises 

—————— 

5My dissent in Rasul v. Bush, 542 U. S. 466, 503 (2004), mistakenly

included Scotland among the places to which the writ could run. 
Cite as: 553 U. S. ____ (2008) 21 

SCALIA, J., dissenting 

granted by the Crown in which local authorities would 

manage municipal affairs, including the court system, but 

over which the Crown maintained ultimate sovereignty. 

See 3 Blackstone 78–79. The other places listed—Wales,

Berwick-upon-Tweed, Jersey, and Guernsey—were territories of the Crown even though not part England proper. 

See Cowle, supra, at 853–854, 97 Eng. Rep., at 598 (Wales

and Berwick-upon-Tweed); 1 Blackstone 104 (Jersey and 

Guernsey); Sharpe 192 (same). 

The Act did not extend the writ elsewhere, even though 

the existence of other places to which British prisoners 

could be sent was recognized by the Act. The possibility of 

evading judicial review through such spiriting-away was

eliminated, not by expanding the writ abroad, but by

forbidding (in Article XII of the Act) the shipment of prisoners to places where the writ did not run or where its 

execution would be difficult. See 31 Car. 2, ch. 2; see 

generally Nutting, The Most Wholesome Law—The Habeas Corpus Act of 1679, 65 Am. Hist. Rev. 527 (1960).

The Habeas Corpus Act, then, confirms the consensus 

view of scholars and jurists that the writ did not run

outside the sovereign territory of the Crown. The Court 

says that the idea that “jurisdiction followed the King’s 

officers” is an equally credible view. Ante, at 16. It is not 

credible at all. The only support the Court cites for it is a

page in Boumediene’s brief, which in turn cites this 

Court’s dicta in Rasul, 542 U. S., at 482, mischaracterizing 

Lord Mansfield’s statement that the writ ran to any place 

that was “under the subjection of the Crown,” Cowle, 

supra, at 856, 97 Eng. Rep., at 599. It is clear that Lord 

Mansfield was saying that the writ extended outside the 

realm of England proper, not outside the sovereign territory of the Crown.6 

—————— 

6The dicta in Rasul also cited Ex parte Mwenya, [1960] 1 Q. B. 241,

(C. A.), but as I explained in dissent, “[e]ach judge [in Mwenya] made 
 

22 BOUMEDIENE v. BUSH 

SCALIA, J., dissenting 

The Court dismisses the example of Scotland on the

grounds that Scotland had its own judicial system and 

that the writ could not, as a practical matter, have been 

enforced there. Ante, at 20. Those explanations are totally unpersuasive. The existence of a separate court 

system was never a basis for denying the power of a court 

to issue the writ. See 9 W. Holdsworth, A History of English Law 124 (3d ed. 1944) (citing Ex parte Anderson, 3 El. 

and El. 487 (1861)). And as for logistical problems, the 

same difficulties were present for places like the Channel 

Islands, where the writ did run. The Court attempts to

draw an analogy between the prudential limitations on

issuing the writ to such remote areas within the sovereign 

territory of the Crown and the jurisdictional prohibition on

issuing the writ to Scotland. See ante, at 19–20. But the 

very authority that the Court cites, Lord Mansfield, expressly distinguished between these two concepts, stating

that English courts had the “power” to send the writ to

places within the Crown’s sovereignty, the “only question” 

being the “propriety,” while they had “no power to send

any writ of any kind” to Scotland and other “foreign dominions.” Cowle, supra, at 856, 97 Eng. Rep., at 599–600. 

The writ did not run to Scotland because, even after the 

Union, “Scotland remained a foreign dominion of the

prince who succeeded to the English throne,” and “union

did not extend the prerogative of the English crown to

Scotland.” Sharpe 191; see also Sir Matthew Hale’s The

Prerogatives of the King 19 (D. Yale ed. 1976).7 

—————— 

clear that the detainee’s status as a subject was material to the resolution of the case,” 542 U. S., at 504. 7The Court also argues that the fact that the writ could run to Ireland, even though it was ruled under a “separate” crown, shows that 

formal sovereignty was not the touchstone of habeas jurisdiction. Ante, 

at 21. The passage from Blackstone that the Court cites, however,

describes Ireland as “a dependent, subordinate kingdom” that was part

of the “king’s dominions.” 1 Blackstone 98, 100 (internal quotation 
 

Cite as: 553 U. S. ____ (2008) 23 

SCALIA, J., dissenting 

In sum, all available historical evidence points to the

conclusion that the writ would not have been available at 

common law for aliens captured and held outside the

sovereign territory of the Crown. Despite three opening 

briefs, three reply briefs, and support from a legion of 

amici, petitioners have failed to identify a single case in

the history of Anglo-American law that supports their 

claim to jurisdiction. The Court finds it significant that

there is no recorded case denying jurisdiction to such 

prisoners either. See ante, at 21–22. But a case standing 

for the remarkable proposition that the writ could issue to

a foreign land would surely have been reported, whereas a

case denying such a writ for lack of jurisdiction would

likely not. At a minimum, the absence of a reported case

either way leaves unrefuted the voluminous commentary 

stating that habeas was confined to the dominions of the 

Crown. 

What history teaches is confirmed by the nature of the

limitations that the Constitution places upon suspension 

of the common-law writ. It can be suspended only “in 

Cases of Rebellion or Invasion.” Art. I, §9, cl. 2. The latter 

case (invasion) is plainly limited to the territory of the 

United States; and while it is conceivable that a rebellion 

could be mounted by American citizens abroad, surely the

overwhelming majority of its occurrences would be domestic. If the extraterritorial scope of habeas turned on flexible, “functional” considerations, as the Court holds, why 

would the Constitution limit its suspension almost entirely to instances of domestic crisis? Surely there is an

even greater justification for suspension in foreign lands 

where the United States might hold prisoners of war 

—————— 

marks omitted). And Lord Mansfield’s opinion in Cowle plainly understood Ireland to be “a dominion of the Crown of England,” in contrast to

the “foreign dominio[n]” of Scotland, and thought that distinction 

dispositive of the question of habeas jurisdiction. Cowle, supra, at 856, 

97 Eng. Rep., at 599–600. 
 

24 BOUMEDIENE v. BUSH 

SCALIA, J., dissenting 

during an ongoing conflict. And correspondingly, there is

less threat to liberty when the Government suspends the 

writ’s (supposed) application in foreign lands, where even 

on the most extreme view prisoners are entitled to fewer 

constitutional rights. It makes no sense, therefore, for the 

Constitution generally to forbid suspension of the writ

abroad if indeed the writ has application there.

It may be objected that the foregoing analysis proves too

much, since this Court has already suggested that the writ

of habeas corpus does run abroad for the benefit of United 

States citizens. “[T]he position that United States citizens

throughout the world may be entitled to habeas corpus 

rights . . . is precisely the position that this Court adopted

in Eisentrager, see 339 U. S., at 769–770, even while 

holding that aliens abroad did not have habeas corpus

rights.” Rasul, 542 U. S., at 501, 502 (SCALIA, J., dissenting) (emphasis deleted). The reason for that divergence is 

not difficult to discern. The common-law writ, as received 

into the law of the new constitutional Republic, took on 

such changes as were demanded by a system in which rule

is derived from the consent of the governed, and in which

citizens (not “subjects”) are afforded defined protections 

against the Government. As Justice Story wrote for the 

Court, 

“The common law of England is not to be taken in all 

respects to be that of America. Our ancestors brought

with them its general principles, and claimed it as

their birthright; but they brought with them and 

adopted only that portion which was applicable to 

their situation.” Van Ness v. Pacard, 2 Pet. 137, 144 

(1829). 

See also Hall, The Common Law: An Account of its Reception in the United States, 4 Vand. L. Rev. 791 (1951). It 

accords with that principle to say, as the plurality opinion

said in Reid: “When the Government reaches out to punish 
 

 

Cite as: 553 U. S. ____ (2008) 25 

SCALIA, J., dissenting 

a citizen who is abroad, the shield which the Bill of Rights 

and other parts of the Constitution provide to protect his

life and liberty should not be stripped away just because

he happens to be in another land.” 354 U. S., at 6; see also 

Verdugo-Urquidez, 494 U. S., at 269–270. On that analysis, “[t]he distinction between citizens and aliens follows

from the undoubted proposition that the Constitution does 

not create, nor do general principles of law create, any

juridical relation between our country and some undefined, limitless class of noncitizens who are beyond our 

territory.” Id., at 275 (KENNEDY, J., concurring). 

In sum, because I conclude that the text and history of

the Suspension Clause provide no basis for our jurisdiction, I would affirm the Court of Appeals even if Eisentrager did not govern these cases. 

* * * 

Today the Court warps our Constitution in a way that

goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separationof-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus

(and, no doubt, for the extraterritorial reach of other 

constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice 

Jackson’s opinion for the Court in Johnson v. Eisentrager. 

It breaks a chain of precedent as old as the common law 

that prohibits judicial inquiry into detentions of aliens

abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task 

of proving to a civilian court, under whatever standards

this Court devises in the future, that evidence supports 

the confinement of each and every enemy prisoner. 

The Nation will live to regret what the Court has done

today. I dissent.