Cite as: 559 U. S. ____ (2010) 1 

THOMAS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

MANUEL ANTONIO NORIEGA v. GEORGE

PASTRANA, WARDEN

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 09–35. Decided January 25, 2010 

The petition for a writ of certiorari is denied. 

JUSTICE THOMAS, with whom JUSTICE SCALIA joins,

dissenting from denial of certiorari. 

“[I]n our tripartite system of government,” it is the duty

of this Court to “say ‘what the law is.’ ” Boumediene v. 

Bush, 553 U. S. ___ (2008) (slip op., at 36) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)). This duty is

particularly compelling in cases that present an opportunity to decide the constitutionality or enforceability of 

federal statutes in a manner “insulated from the pressures 

of the moment,” and in time to guide courts and the political branches in resolving difficult questions concerning the 

proper “exercise of governmental power.” Hamdan v. 

Rumsfeld, 548 U. S. 557, 637 (2006) (KENNEDY, J., concurring in part); see generally Sanchez-Llamas v. Oregon, 548 

U. S. 331, 353–354 (2006); Hamdan, supra, at 588 (quoting Ex parte Quirin, 317 U. S. 1, 19 (1942)). This is such a 

case. 

The questions presented are, in the Solicitor General’s 

words: “1. Whether Section 5 of the Military Commissions

Act of 2006, Pub. L. No. 109–366, 120 Stat. 2631, precludes petitioner from invoking the Geneva Convention

Relative to the Treatment of Prisoners of War, Aug. 12, 

1949, as a source of rights in a habeas corpus proceeding”;

and “2. Whether, assuming petitioner can assert a claim 

based on the Geneva Convention, his extradition to France 

would violate the Convention.” Brief in Opposition i (some 
2 NORIEGA v. PASTRANA 

THOMAS, J., dissenting 

citations omitted).1 Answering just the first of these questions would provide much-needed guidance on two important issues with which the political branches and federal 

courts have struggled since we decided Boumediene. The 

first is the extent, if any, to which provisions like Section 5 

affect 28 U. S. C. §2241 in a manner that implicates the 

constitutional guarantee of habeas corpus. The second is 

whether the Geneva Conventions are self-executing and 

judicially enforceable.

It is incumbent upon us to provide what guidance we

can on these issues now. Whatever conclusion we reach, 

our opinion will help the political branches and the courts 

discharge their responsibilities over detainee cases, and

will spare detainees and the Government years of unnecessary litigation. These considerations alone justify review. That petitioner was convicted in federal court 

(rather than in a military commission) in criminal proceedings uncomplicated by classified information or issues 

relating to extraterritorial detention is an additional 

reason to grant certiorari. It is our duty to say what the

law is on important matters within our jurisdiction. That 

is what we should do. 

I 

Petitioner General Manuel Noriega is the former head of

the Panamanian Defense Forces. In 1988, a federal grand 

jury indicted Noriega, and the U. S. military thereafter 

brought him to Florida. A federal jury convicted him of 

various federal narcotics-related offenses, and the District 

Court sentenced him to a 30-year prison term. In response to Noriega’s concerns about the type of care he 

—————— 

1We routinely grant certiorari on questions the Solicitor General

presents in a brief in opposition, see, e.g., Weyhrauch v. United States, 

557 U. S. __ (2009), or in an amicus brief, see, e.g., Hamilton v. 

Lanning, ante, p. ___; Republic of Philippines v. Pimental, 552 U. S 

1061 (2007). 
Cite as: 559 U. S. ____ (2010) 3 

THOMAS, J., dissenting 

would receive in the custody of the Bureau of Prisons, the

District Court designated Noriega a prisoner of war (POW) 

entitled to the protections of the Geneva Conventions. See 

United States v. Noriega, 808 F. Supp. 791 (SD Fla., 

1992).2 Noriega’s conviction and sentence were affirmed

in proceedings not relevant here. See United States v. 

Noriega, 117 F. 3d 1206 (CA11 1997), cert. denied, 523

U. S. 1060 (1998).

In July 2007, two months before Noriega was scheduled 

to be released on parole, he filed a habeas corpus petition

under 28 U. S. C. §2255. Relying on the District Court’s

POW designation, Noriega alleged that the United States

violated the Geneva Conventions when it acquiesced in

the French Government’s request to extradite him to 

France so he could face criminal charges there upon his

release from U. S. custody. See United States v. Noriega, 

No. 88−0079−CR, 2007 WL 2947572 (SD Fla., Aug. 24, 

2007). The District Court agreed with Noriega that his 

—————— 

2Citing International Red Cross and academic commentary in support of its “belie[f] [that the Third] Geneva [Convention] is selfexecuting and provides General Noriega with a right of action in a U. S.

court for violation of its provisions,” the District Court addressed 

Noriega’s status under the treaty. United States v. Noriega, 808 

F. Supp., at 794. The District Judge found that the hostilities in

Panama constituted an “ ‘armed conflict’ ” within the meaning of Article 

2 of the Third Geneva Convention, that Noriega was a member of the 

armed forces of a party to the conflict under Article 4 of the Third

Convention, and that the District Court was a “ ‘competent tribunal’ ” to

determine Noriega’s POW status under Article 5 of the Third Convention. See id., at 793–796. Accordingly, the court concluded that, 

notwithstanding various separation-of-powers and justiciability concerns, “Noriega is in fact a prisoner of war as defined by Geneva III,

and as such must be afforded the protections established by the treaty” 

while in federal custody. Id., at 796. The court then identified Convention rights that it believed would govern Noriega’s confinement, see id., 

at 799–803, and observed that “[w]hether or not those rights can be 

fully provided in a maximum security penitentiary setting is open to

serious question,” id., at 803. 
4 NORIEGA v. PASTRANA 

THOMAS, J., dissenting 

POW status entitled him to the Conventions’ protection 

until his “final release and repatriation,” but dismissed 

his §2255 petition on the ground that his extradition

challenge was not directed to “any defect in [his] sentence,” and thus was not cognizable under §2255. Id., at 

*1 (internal quotation marks and citation omitted).

Noriega then filed the same claims under 28 U. S. C. 

§2241, and the District Court ultimately3 stayed his extradition pending appeal on the ground that his challenge 

rested on “credible arguments . . ., particularly with regard to the interpretation of certain provisions of the 

Geneva Convention[s],” on which “no other federal court

has ruled.” No. 07−CV−22816−PCH, 2008 WL 331394, *3 

(SD Fla., Jan. 31, 2008). 

On appeal, Noriega argued that his extradition to 

France would violate several provisions of the Third Convention and that the District Court erred in concluding

otherwise. In response, the Government asserted that the 

court lacked jurisdiction over Noriega’s claims because 

§5(a) of the Military Commissions Act of 2006 (MCA) 

establishes that “[t]he Geneva Conventions are not selfexecuting” or judicially enforceable in habeas corpus actions. Brief for United States in No. 08–11021–F (CA11),

p. 13 (hereinafter Brief for United States).4 MCA §5(a)

provides: 

—————— 

3The District Court dismissed Noriega’s initial §2241 petition because the court concluded that it lacked jurisdiction to consider the 

petition’s extradition challenge in Noriega’s criminal case as opposed to

a separate action challenging his certificate of extraditability. See 

United States v. Noriega, No. 88−0079−CR, 2007 WL 2947981, *1 (SD

Fla., Sept. 7, 2007) (dismissing the petition without prejudice but

reiterating the merits concerns with Noriega’s Geneva Convention 

claims that the court articulated in dicta in dismissing his §2255 

petition). 4The Government also challenged Noriega’s claims as meritless and 

outside the scope of habeas review under Circuit precedent. 
Cite as: 559 U. S. ____ (2010) 5 

THOMAS, J., dissenting 

“No person may invoke the Geneva Conventions or 

any protocols thereto in any habeas corpus or other 

civil action or proceeding to which the United States, 

or a current or former officer, employee, member of 

the Armed Forces, or other agent of the United States 

is a party as a source of rights in any court of the

United States or its States or territories. 120 Stat. 

2631, note following 28 U. S. C. §2241.”5 

Emphasizing that a non-self-executing treaty “‘addresses 

itself to the political, not the judicial department,’” the

Government observed that “no court of appeals has held 

that the provisions of the Geneva Conventions are judicially enforceable in any context.” Brief for United States 

13 (quoting Medellín v. Texas, 552 U. S. 491, 516 (2008)). 

The Government then argued that “confirmation of this 

[view] can be found in the enactment of [MCA §5(a)], 

which “codifie[d] the principle that the Geneva Conventions [a]re not judicially enforceable by private parties,”

but did so in a narrow way that does not purport to strip

courts of habeas jurisdiction, and thus does “not implicate” 

the Suspension Clause analysis in Boumediene. Brief for 

United States 14, n. 6.6 

—————— 

5Recent amendments to the Military Commissions Act of 2006, collectively titled the Military Commissions Act of 2009, see National Defense Authorization Act for Fiscal Year 2010, see §§1801–1807, 123

Stat. 2574–2614, do not affect MCA §5(a). The 2009 amendments 

principally update provisions relevant to the Guantanamo habeas

corpus cases pending in the U.S. District Court for the District of 

Columbia and clarify the due process protections available in those and

other noncitizen detainee cases to which the constitutional and treaty

issues in this case relate. See ibid.; see also J. Elsea, CRS Report for

Congress, Comparison of Rights in Military Commission Trials and

Trials in Federal Criminal Court, 2–4 (Nov. 19, 2009). 6Although the Government distinguishes MCA §5(a) from the jurisdiction-stripping provision the Court invalidated in Boumediene, it 

stops short of asserting that §5(a) is constitutional. See Brief in Opposition 8, n. 
6 NORIEGA v. PASTRANA 

THOMAS, J., dissenting 

The Eleventh Circuit accepted the District Court’s designation of Noriega as a POW, but agreed with the Government’s interpretation of MCA §5(a): 

“We affirm and hold that §5 of the Military Commissions Act of 2006 precludes Noriega from invoking 

the Geneva Convention as a source of rights in a habeas proceeding and therefore deny Noriega’s habeas 

petition. 

. . . . . 

“The issues present in Boumediene v. Bush concerning 

the constitutionality of §7 of the MCA, are not presented by §5 . . . . In Boumediene, the Supreme Court

found §7 of the MCA, which explicitly removed the jurisdiction of courts to consider habeas actions by enemy combatants, to be unconstitutional . . . . Section 

5, in contrast, as discussed more fully, infra, at most 

changes one substantive provision of law upon which

a party might rely in seeking habeas relief. We are 

[thus] not presented with a situation in which potential petitioners are effectively banned from seeking 

habeas relief because any constitutional rights

or claims are made unavailable. 564 F. 3d 1290, 

1292, 1294 (CA11 2009) (citations and parenthetical 

omitted).”7 

Noriega’s petition challenges both the Eleventh Circuit’s

interpretation of MCA §5(a) and the provision’s constitutionality. Noriega begins by asserting that the Court of 

Appeals erred in holding “that [MCA §5(a)] absolutely and 

unambiguously prohibits persons from raising any claim 

based upon the four Geneva Conventions” in a habeas 

—————— 

7The Court of Appeals also concluded that, “assuming arguendo” 

Noriega is correct that “§5 of the MCA does not preclude [his] claim,” 

Noriega, 564 F. 3d, at 1297, the Third Geneva Convention does not bar 

his extradition to France and the “United States has fully complied 

with” the treaty, id., at 1298. 
Cite as: 559 U. S. ____ (2010) 7 

THOMAS, J., dissenting 

corpus action. Pet. for Cert. 10; see also id., at 12 (“At 

best, the statutory scheme is ambiguous”). Noriega next

asserts that, if the Eleventh Circuit’s interpretation of 

§5(a) is correct, the provision violates the Supremacy

Clause, see id., at 11−12, and the Suspension Clause, see 

Reply to Brief in Opposition 2. Noriega’s Supremacy

Clause argument is that, to the extent MCA §5(a) governs

his Geneva Convention claims, the provision impermissibly effects a “complete repudiation” of the treaty. Pet. for 

Cert. 11. The Government responds that this argument

suffers from two fatal flaws. First, this Court has held 

that a treaty, which is “‘primarily a compact between

independent nations,’” remains in force as the supreme

law of the land even where its enforcement is left to “international negotiations” rather than “domestic courts.” 

Brief in Opposition 7 (quoting Head Money Cases, 112 

U. S. 580, 598 (1884)); see Medellín, supra, at 505, and 

n. 3. Second, “[w]hatever the domestic effect of the Third

Geneva Convention before the enactment of the MCA,” 

this Court has held that ‘it is within Congress’ power to

change domestic law, even if the law originally arose from

a self-executing treaty.’ ” Brief in Opposition 7 (quoting 

Noriega, supra, at 1295–1296); see also Medellín, supra, at 

509, n. 5. Accordingly, the Government agrees with the

Eleventh Circuit that MCA §5(a) “does not change the

international obligations of the United States under the 

Geneva Conventions,” but does “supersed[e] whatever 

domestic effect the Geneva Conventions may have had in

actions such as this.” Brief in Opposition 7–8 (internal 

quotation marks and citation omitted). That brings

Noriega to his Suspension Clause argument. He replies

that, if MCA §5(a) operates in the manner the Government describes and the Eleventh Circuit held, the provision is unconstitutional under Boumediene because it 

“effectively works a suspension of the writ.” Reply to Brief 

in Opposition 2 (asserting that “to divorce the writ from 
8 NORIEGA v. PASTRANA 

THOMAS, J., dissenting 

the law is to destroy the writ”). 

II 

As the Eleventh Circuit’s opinion makes clear, the 

threshold question in this case is whether MCA §5(a) is 

valid. Answering that question this Term would provide 

courts and the political branches with much needed guidance on issues we left open in Boumediene. See Boumediene, 553 U. S, at ___, ___ (slip op. at 64−66, 68−70). Providing that guidance in this case would allow us to say 

what the law is without the unnecessary delay and other 

complications that could burden a decision on these questions in Guantanamo or other detainee litigation arising 

out of the conflict with Al Qaeda. 

Boumediene invalidated MCA §7’s attempt to strip

federal courts of habeas jurisdiction over claims by a

specified class of non-citizen detainees (“unlawful enemy 

combatants”), but did not determine the “content of the 

law that governs petitioners’ detention,” id., at ___ (slip 

op. at 69), or the extent to which §2241’s substantive 

provisions affect the constitutional “procedural protections 

of habeas corpus,” id., at ___ (slip op. at 70). Section 2241 

broadly confers jurisdiction over a habeas corpus action by 

any person who claims to be held “in custody in violation

of the Constitution or laws or treaties of the United 

States.” See Rasul v. Bush, 542 U. S. 466, 473 (2004).

MCA §5(a) eliminates the Geneva Conventions as a source 

of rights upon which §2241 petitioners may rely in challenging their detentions. Statutory amendments to an

existing law ordinarily involve nothing more than a valid 

exercise of Congress’ Article I authority. See, e.g., Chew 

Heong v. United States, 112 U. S. 536, 562–563 (1884). 

Noriega asserts that the difference in this case is that the 

statutory amendment narrows the scope of §2241. Assuming that is correct, the indeterminate interplay between

the constitutional and statutory guarantees of habeas 
Cite as: 559 U. S. ____ (2010) 9 

THOMAS, J., dissenting 

corpus under our precedents permits Noriega to argue 

that the manner in which MCA §5(a) affects §2241 proceedings implicates the Suspension Clause. Only we can

determine whether the Eleventh Circuit correctly rejected

that argument. 

The Suspension Clause 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.” U. S. Const., Art. I, §9, cl. 2. Because the 

Clause addresses only the suspension—not the content or 

existence—of the “Privilege of the Writ,” ibid., we have 

long recognized the “obligation” the first Congress “must

have felt” to “provid[e] efficient means by which this great

constitutional privilege should receive life and activity.” 

Ex parte Bollman, 4 Cranch 75, 95 (1807). But we have 

also steadfastly declined to adopt a date of reference by 

which the writ’s constitutional content, if any, is to be

judged, see Boumediene, supra, ___ (slip op. at 15−17), and

thus have left open the question whether statutory efforts

to limit §2241 implicate the Suspension Clause, see, e.g., 

INS v. St. Cyr, 533 U. S. 289, 300–301 (2001). This question, which has already divided the Court in other contexts, see ibid.,8 is clearly presented here. Noriega asserts 

—————— 

8Compare St. Cyr, 533 U. S., at 300–301 (2001) (declining to identify

a specific date of reference for judging the constitutional scope of the

writ, but concluding that the Court nonetheless should construe the 

Illegal Immigration Reform and Immigrant Responsibility Act of 1996 

(IIRIRA) to allow §2241 jurisdiction over certain habeas petitions

because doing so would avoid the Suspension Clause question that

otherwise would arise), with id., at 335–341 (SCALIA, J., dissenting) 

(emphasizing that, although IIRIRA displaces §2241 jurisdiction

unambiguously and thus renders the canon of constitutional avoidance 

inapplicable, there is no constitutional question to avoid, because the

Suspension Clause is addressed only to suspension (i.e., temporary

withholding of the operation) of the writ on the terms authorized by the

habeas corpus statute, not to Congress’ power to alter the substance of 

the habeas rights the statute confers) and id., at 340−341, n. 5 (“If, as 
10 NORIEGA v. PASTRANA 

THOMAS, J., dissenting 

that MCA §5(a) is unconstitutional because it “effectively 

works a suspension of the writ” by imposing the same type 

of statutory limitation the Court addressed in St. Cyr. 

Reply to Brief in Opposition 2 (implicitly equating the 

constitutional scope of the writ with §2241’s grant of 

habeas corpus jurisdiction over individuals allegedly “held 

in violation of the Constitution, laws, or treaties of the 

United States”). The Eleventh Circuit, however, saw no 

constitutional problem with the statute and upheld it as

valid and distinguishable from the provision deemed 

unconstitutional in Boumediene. See 564 F. 3d, at 1294. 

Addressing Noriega’s challenge to the Eleventh Circuit’s

decision would resolve the important statutory and constitutional questions here and would guide courts and the 

political branches in addressing the same and similar 

issues in other detainee cases. See, e.g., Al-Bihani, supra, 

at *5 (“The Supreme Court has provided scant guidance on 

these questions, consciously leaving the contours of the 

substantive and procedural law of detention open for lower

courts to shape in a common law fashion.”). Recent court

decisions, as well as recent Executive Branch court filings 

and policy determinations, specifically invoke the Geneva 

Conventions as part of the law that governs detainee 

treatment in the United States and abroad. For example,

in September 2009, the U.S. District Court for the District

of Columbia issued a redacted version of a classified 

memorandum opinion in which it granted habeas corpus

relief in the oldest of the pending Guantanamo cases 

because the petitioner’s indefinite detention was based

“almost exclusively” on unreliable “confessions” obtained

“using abusive techniques that violated the Army Field 

—————— 

the Court concedes, the writ could not be suspended within the meaning of the Suspension Clause until Congress affirmatively provided for 

habeas by statute, then surely Congress may subsequently alter what it

had initially provided for, lest the Clause become a one-way ratchet.”

(internal quotation marks and citations omitted)). 
Cite as: 559 U. S. ____ (2010) 11 

THOMAS, J., dissenting 

Manual and the 1949 Geneva Convention Relative to the 

Treatment of Prisoners of War.” Al Rabiah v. United 

States, Civ. Action No. 02−828, Unclassified Mem. Op. (DC 

Sept. 17, 2009), pp. 1–2, 43.

Several recent D. C. Circuit decisions, one of which is 

now pending before us, similarly implicate the importance 

of the Geneva Convention and MCA §5(a) questions in this 

case. In Kiyemba v. Obama, 555 F. 3d 1022 (2009) (Kiyemba I), cert. granted, ante, p. ___, the petitioners, Guantanamo detainees who prevailed on their habeas corpus 

claims in federal court but cannot return to their home 

country, rely on the Geneva Conventions in claiming a

right to be released in the territorial United States, see 

Pet. for Cert. in No. 08–1234, pp. i, 34. Although the D. C.

Circuit did not address MCA §5(a) in rejecting this claim,

the Government contends before this Court that MCA 

§5(a) bars petitioners’ reliance on the Conventions, see 

Brief in Opposition in No. 08-1234, pp. 23–24, and Judge

Rogers’ opinion concurring in the D. C. Circuit’s judgment

relies upon the same repatriation language in Article 118 

of the Third Convention that Noriega raises here, see 555 

F. 3d, at 1033, n. 2. In Al-Bihani, supra, the D. C. Circuit 

directly invokes MCA §5(a) in rejecting a Guantanamo 

detainee’s claim that he was entitled to habeas corpus 

relief because his detention violated, inter alia, the Third 

Geneva Convention, see id., at *2–3; *6 (stating that MCA 

§5(a), “a provision not altered by the MCA of 2009, explicitly precludes detainees from claiming the Geneva Conventions—which include criteria to determine who is 

entitled to P.O.W. status—as a source of rights”). Finally,

the D. C. Circuit’s decision in Kiyemba v. Obama, 561 

F. 3d 509 (2009) (Kiyemba II), implicates the issues here

in holding, contrary to several recent district court decisions,9 that another MCA provision (MCA §7(a)(2), codified 

—————— 

9See Khadr v. Bush, 587 F. Supp. 2d 225, 235 (DC 2008) (Bates, J.); 
12 NORIEGA v. PASTRANA 

THOMAS, J., dissenting 

at 28 U. S. C. §2241(e)(2)), does not deprive federal habeas

corpus courts of jurisdiction to consider claims in which 

certain classes of detainees challenge their conditions of 

confinement under the Geneva Conventions. See 561 

F. 3d, at 512–513. 

The extent to which noncitizen detainees may rely on

the Geneva Conventions as a source of rights against the 

United States has also been the subject of increasing

debate in the political branches. Recent Executive Branch 

Orders and court filings cite the Conventions in articulating the legal standards that govern detainee treatment.

See, e.g., Exec. Order No. 13491, §3, 74 Fed. Reg. 4894 

(2009) (making “Common Article 3 standards” the “minimum baseline” for the treatment of any individual who, in

the course of “any armed conflict,” comes into the “custody 

or under the effective control of an officer, employee, or 

other agent of the United States” or is “detained within a 

facility owned, operated, or controlled by a department or

agency of the United States”); Brief for United States in 

Misc. No. 08–442 (TFH), p. 1 (Mar. 13, 2009) (apprising 

the court of the Government’s decision to treat detainees 

formerly designated as “unlawful enemy combatants” 

under new standards that draw on the “laws of war,” as 

those laws have “developed over time and have periodically been codified in treaties such as the Geneva Conventions”).10 Congress, in turn, is considering new legislation 

—————— 

In re Guantanamo Bay Detainee Litigation, 577 F. Supp. 2d 312, 314 

(DC 2008) (Hogan, J.); In re Guantanamo Bay Detainee Litigation, 570 

F. Supp. 2d 13, 18 (DC 2008) (Urbina, J.). 10This standard presumably will control the Government’s position in

habeas corpus actions that arise in other circuits pursuant to the 

President’s recent decision to prosecute or imprison (or both) certain 

Guantanamo detainees in New York and Illinois. See Hearings Before 

the Senate Committee on the Judiciary, Testimony of Attorney General

Eric Holder pp. 8–9 (Nov. 18, 2009); Federal News Service, Remarks by

Former Attorney General Michael Mukasey (Nov. 13, 2009); Presidential Memorandum, Closure of Detention Facilities at the Guantanamo 
Cite as: 559 U. S. ____ (2010) 13 

THOMAS, J., dissenting 

that would further clarify the extent to which detainees 

can enforce Geneva Convention obligations against the 

United States in federal courts, but progress on these 

proposals has been complicated by uncertainty over the 

statutory and constitutional questions in this case.11 

As noted, addressing these questions now,12 if only the

statutory issues, would avoid years of litigation and uncertainty no matter what we conclude on the merits. A decision upholding MCA §5(a) would obviate the need for 

detainees, the Government, and federal courts to struggle 

—————— 

Bay Naval Base (Dec. 15, 2009); Some Guantanamo Detainees to Move

to Illinois Prison, Am. Forces Press Serv. (Dec. 15, 2009); Letter to Pat

Quirin, Governor of Illinois, from the Attorney General, the Secretaries

of State, Defense, and Homeland Security, and the Director of National

Intelligence, at 2 (Dec. 15, 2009) (all sources available in Clerk of

Court’s case file). 11See, e.g., J. Elsea, K. Thomas, & M. Garcia, CRS Report for Congress, Enemy Combatant Detainees: Habeas Corpus Challenges in 

Federal Court, 36, 41-43 (2009). 12Because the D. C. Circuit’s majority opinion in Kiyemba I does not 

address MCA §5(a), the provision’s validity is not squarely presented in 

that case. See Kiyemba v. Obama, 555 F. 3d 1022 (CADC 2009) (Kiyemba I), cert. granted, ante, p. ___ (2009). And granting review of the 

D. C. Circuit’s decision in Al-Bihani, which does address MCA §5(a),

would not guarantee a decision on the statute’s validity. See Al-Bihani 

v. Obama, No. 09−5051, 2010 WL 10411 (CADC 2010). Al-Bihani 

addresses MCA §5(a) in rejecting only one of many claims for habeas

corpus relief, so it is not clear that the Court would need to address the

statute’s validity in deciding the case. And even if the Court were to 

address §5(a), the decision would come next Term, thus providing no

guidance to courts that must adjudicate pending habeas corpus actions

this spring and summer. In contrast, addressing MCA §5(a)’s validity

in this case would timely provide such guidance. Doing so could also 

aid our disposition of Kiyemba I because answering the questions 

presented here could clarify the constitutional scope of the writ of 

habeas corpus in a manner that could affect the Kiyemba I petitioners’

argument about the inherent remedial power of habeas corpus courts.

See Pet. for Cert. in No. 08–1234, pp. 14–16, 22–23; see generally 

Kiyemba I, 555 F. 3d, at 1026–1027; St. Cyr, 533 U. S., at 335–340 

(SCALIA, J., dissenting). 
14 NORIEGA v. PASTRANA 

THOMAS, J., dissenting 

(as they did here) with Geneva Convention claims in

habeas corpus proceedings.13 And, it would give the political branches a clearer sense of the constitutional limits to 

which new legislative or policy initiatives must adhere. 

The latter benefit would also follow if we were to invalidate MCA §5(a). In addition, such a ruling could well 

allow us to reach the question we left open in Hamdan— 

whether the Geneva Conventions are self-executing and 

judicially enforceable—because this case is not governed

by the Uniform Code of Military Justice provisions on 

which the Hamdan majority relied in holding Common 

Article III applicable to the proceedings in that case. See 

Hamdan, 548 U. S., at 627–628; see also id., at 637, 642– 

643 (KENNEDY, J., concurring in part). Finally, if the 

Court were to conclude that the Conventions are selfexecuting and judicially enforceable in habeas corpus

proceedings, this case would present two additional questions relevant to noncitizen detainee litigation: whether 

federal courts may classify such detainees as POWs under

the Third Convention, and whether any of the Conventions requires the United States immediately to repatriate 

detainees entitled to release from U. S. custody.14 

Against these considerations, the Government provides no compelling reason to decline review.15 Accord-

—————— 

13MCA §5(a) applies not only to individuals who, like Noriega, have 

(rightly or not) been designated POWs, but also to “any person” who 

invokes the Conventions as a source of rights in any “habeas or other 

civil action” to which the United States is a party, see 120 Stat. 2631,

note following 28 U. S. C. §2241. 14Both questions are subsumed in the second question in the Solicitor 

General’s brief: “[w]hether, assuming petitioner can assert a claim 

based on the Geneva Convention, his extradition to France would 

violate the Convention.” Brief in Opposition i. 15The Solicitor General’s principal ground for opposing certiorari is

that the Eleventh Circuit’s decision does not conflict with the decision 

of any other Circuit. See Brief in Opposition 6. That is true but not 

surprising. The original version of the MCA is only three years old and, 
Cite as: 559 U. S. ____ (2010) 15 

THOMAS, J., dissenting 

ingly, I would take the case and decide the questions 

presented in the Solicitor General’s brief.16 

—————— 

as the Solicitor General is careful to note, Noriega is “the only person 

currently detained by the United States as a prisoner of war.” Ibid. 

(emphasis added). Accordingly, the lack of a circuit split on the question whether MCA §5(a) bars POWs in federal custody in the United 

States from invoking the Geneva Conventions in habeas proceedings

does not negate the compelling reasons to grant review. Indeed, the 

Court has taken cases in this area without the benefit of any opinion 

from a court of appeals, see Ex parte Quirin, supra, and in splitless 

cases involving rare facts and ongoing diplomatic negotiations, see 

Kiyemba I, ante, p. ___. The Court has also granted review of separation-of-powers and other important legal questions on records far less 

developed than that here, see, e.g., Robertson v. United States ex rel. 

Watson, ante, p. ___; Christian Legal Soc. Chapter of Univ. of Cal. 

Hasting College of Law v. Martinez, ante, p. ___; on petitions that have

required us to reformulate the questions presented, see, e.g., Robertson, 

supra; Reed Elsevier, Inc. v. Muchnick, 555 U. S. ___ (2009); and even 

on petitions we initially denied, see Boumediene v. Bush, 551 U. S. 1160 

(2007). The Solicitor General also claims (again based on the fact that

Noriega is “currently” the only POW in U. S. custody) that review is not

warranted because the Eleventh Circuit’s decision is of “limited ongoing 

significance.” Ibid. This assertion is not persuasive for the reasons set 

forth above. 16As noted, the Solicitor General’s first question presented is whether 

MCA §5(a) “precludes petitioner from invoking” the Third Geneva

Convention “as a source of rights in a habeas corpus proceeding.” Brief 

in Opposition i. Such statutory questions do not automatically, or even 

typically, require a court to consider the statute’s constitutionality.

Here, however, Noriega has consistently argued that, if the statute 

precludes him from invoking the Geneva Conventions in the manner

the Solicitor General’s question describes and the Eleventh Circuit 

held, the statute would violate the Suspension Clause. See supra, at 

6−7. Thus, the Suspension Clause issue may in this case fairly be

viewed as implicit in the statutory question presented.