certiorari to the united states court of appeals for the district of columbia circuit
Decided 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of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art.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 provides 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), 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.
Under the Authorization for Use of Military Force (AUMF), §2(a), 115 Stat. 224, 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
(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." 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. A later
memorandum established procedures to implement the CSRTs. The
Government maintains these
procedures were designed to comply with the due process requirements
identified by the plurality in Hamdi.
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. The
Appeals for the District of Columbia Circuit affirmed. We granted
certiorari and reversed,
holding that 28 U. S. C. §2241 extended statutory habeas
jurisdiction to Guantanamo. The constitutional issue presented in the
instant cases was not reached in Rasul.
After Rasul, petitioners' cases
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 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.
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."
In Hamdan v. Rumsfeld (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.
Petitioners' cases were consolidated on appeal, and the parties filed supplemental briefs in light of our decision in Hamdan. The Court of Appeals' ruling 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, that petitioners are not entitled to the privilege of the writ or the protections of the Suspension Clause 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.
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....
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 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.
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 common-law 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. 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
The development was painstaking, even by
measures of English constitutional history. The writ was known and used
in some form at least as early as the reign of Edward I. 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 agents of the Crown, designed to assist the King in the
exercise of his power....
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." And, by the 1600's,
the writ was deemed
less an instrument of the King's power and more a restraint upon it.
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.....
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 be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Art. I, §9, cl. 2.
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....
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 of the writ. 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.
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. The Government argues the common-law writ ran only to those territories over which the Crown was sovereign. Petitioners argue that jurisdiction followed the King's officers. 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
We find the evidence as to the geographic
scope of the writ at
common law informative, but, again, not dispositive....
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 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. And given the unique
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.
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 States. And under the terms of the lease
the United States and Cuba, Cuba retains "ultimate sovereignty" over
the territory while the United States exercises "complete jurisdiction
and control." 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.
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. And in other contexts the
Court has held that
questions of sovereignty are for the political branches to decide. 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.
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 objective degree of control the Nation asserts over foreign
territory. As commentators have noted, " '[s]overeignty' is a term
in many senses and is much abused. " 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, but sovereignty in the
narrow, legal sense of the term, meaning a
claim of right. Indeed,
it is not altogether uncommon for a territory to be under the de
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.
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 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.
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.
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. Article IV, §3,
cl. 1, grants
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. 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
Fundamental questions regarding the
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 Spanish-American 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.
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. 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....
These considerations resulted in 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. 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....Yet noting the inherent practical difficulties of enforcing all constitutional provisions "always and everywhere," 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 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. In
considering these factors the Court sought to balance the constraints
of military occupation with constitutional necessities.
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." The Government seizes upon this language as proof positive that the Eisentrager Court adopted a formalistic, sovereignty-based test for determining the reach of the Suspension Clause. 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....
Second, because the United States lacked
both de jure sovereignty and plenary control over Landsberg
Prison, it is far from clear that the Eisentrager
used the term sovereignty only in the narrow technical sense and not to
connote the degree of control the military asserted over the
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' 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.... 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.
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 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." 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." 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 recognition 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."
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.
As we recognized in Rasul, 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."
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 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
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, there
has been no trial by military commission for violations of
the laws of war. The difference is not trivial....
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
"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." The Government's evidence is
presumption of validity. The detainee is allowed
to present "reasonably available" evidence, 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.
As to the second factor relevant to this
analysis, the detainees here are similarly situated to the Eisentrager
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
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. 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 the plenary control the United States asserts over the base, none are apparent to us.
The situation in Eisentrager was
given the historical context and nature of the military's mission in
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. 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.
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....
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. 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. 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.
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 provides an adequate substitute....
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....
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.
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....
The two leading cases addressing habeas
It is against this background that we
must interpret the DTA and
assess its adequacy as a substitute for habeas corpus....
We do not endeavor to offer a comprehensive summary of the requisites for an adequate substitute for habeas 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. 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. 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
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....
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....
Where a person is detained by executive order, rather than, say, after being tried and convicted in a court, the 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 the Government relied upon to order his detention. The detainee can confront witnesses that testify during the CSRT proceedings. 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," the detainee's opportunity to question witnesses is likely to be more theoretical than real....
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)[Leo Frank case]....
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." 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 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. Here that opportunity is constitutionally required....
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.
We now consider whether the DTA allows the Court of Appeals to conduct a proceeding meeting these standards....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 is, on its face, an inadequate substitute for habeas corpus.
Although we do not hold that an
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
VIIt 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 petitioners 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.
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 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....
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.
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.
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. 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. 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 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.....
Exploring Constitutional Conflicts
War & Treaty Powers Under the Constitution