1 Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006).

2 Military Commissions Act of 2006, Pub. L. No. 109-366,120 Stat. 2600 (to be codified at 10 U.S.C. §§948a-950w and other sections of titles 10, 18, 28, and 42) [hereinafter MCA].

3 This tension was nicely captured in successive rounds of litigation involving the use of secret evidence in a deportation case. In an opinion sharply critical of the government, the district court judge held that due process precluded the use of such information. Kiareldeen v. Reno, 71 F.Supp.2d 402 (D.N.J. 1999). The government’s effort to deport had drawn widespread and mostly critical media attention, and the Clinton administration decided not to appeal. But the individual then sought attorneys’ fees, asserting, as the fee statute required, that the government’s position was not “substantially justified.” Appeal of that award reached the court of appeals after September 11, 2001. The court denied fees, adding strong language about the need to protect intelligence sources and methods and strongly hinting that the original decision (which was already final) had been wrong. Kiareldeen v. Ashcroft, 273 F.3d 542, 552-53 (3d Cir. 2001).

4 See David, A. Martin, Graduated Application of Constitutional Protections for Aliens: The Real Meaning of Zadvydas v. Davis, 2001 Sup. Ct. Rev. 47, 126–36.Google Scholar

5 The text of the U.S. Constitution is remarkably economical in acknowledging that rights might be limited in times of emergency, but it does permit habeas corpus to be suspended, thus allowing for preventive detention, when invasion or rebellion necessitates such a step. U.S. Const. Art. I, §9, cl. 2. And interpretation of specific constitutional rights has often allowed greater scope for government action at times of genuine risk. See, e.g., Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398,425-26 (1934); Schenck v. United States, 249 U.S. 47 (1919). International human rights treaties are typically more explicit regarding the possibilities for limitations, as a typical formula puts it, “in the interests of national security[,] … public safety, [or] public order (ordre publique).” International Covenant on Civil and Political Rights, Art. 22 (freedom of association), Dec. 16, 1966, 999 UNTS 171. And in time of serious public emergency, officially declared, a state party may derogate from most, but not all, human rights obligations “to the extent strictly required by the exigencies of the situation.” Id., Art. 4(1).

6 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952).

7 See Dames & Moore v. Regan, 453 U.S. 654, 668-69 (1981).

8 See Ashwander v. TVA, 297 U.S. 288, 346-49 (1936) (Brandeis, J., concurring). Our tradition’s treatment of treaties is more complex because with a sufficiently clear statutory statement, Congress can override a treaty, as far as domestic application is concerned. But well-established doctrine calls for courts to construe statutes so as to avoid conflict with international treaties whenever possible. See “Surviving Prospects for Constructive Use of International Law in Applying the Act,” text at notes 3 9 - 4 3 infra.

9 Alexander, M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 176 (2ded. 1986).Google Scholar

10 Id. at 173.

11 See Neal, K. Katyal & Laurence, H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals, 111Yale L.J. 1259, 1275–77, 1308-09 (2002)Google Scholar; Curtis, A. Bradley, The Military Commissions Act, Habeas Corpus, and the Geneva Conventions, 101 AJIL 322, 322 (2007)Google Scholar (in this Agora).

12 Bickel, supra note 9, at 181.

13 Id. at 156, 159 (emphasis added).

14 Id. at 156.

15 533 U.S. 289 (2001).

16 U.S. Const. Art. I, §9, d. 2 (“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.”)

17 533 U.S. at 305.

18 Id. at 327 (Scalia, J., dissenting).

19 REAL ID Act of 2005,Pub.L.No. 109-13, div. B, §106,119 Stat. §§302, 310-11 (amending Immigration and Nationality Act (INA) §242, 8 U.S.C. §1252). The quoted language, section 106(a) (1) (A) (iii), appears in a new INA §242(a)(2)(D).

20 See also Zadvydas v. Davis, 533 U.S. 678 (2001). In Zadvydas the Court noted serious constitutional questions when a person ordered deported is instead subjected to lengthy detention because no other country is willing to accept him. Nonetheless, the Court stopped short of ruling on the constitutionality of the practice, instead engaging in a strained reading of the statute at issue to find, in essence, a soft six-month limit on such postorder detention. See generally Hiroshi, Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545 (1990).Google Scholar

21 Rumsfeld v. Padilla, 542 U.S. 426 (2004).

22 Brief for the Petitioner at 35-38, Padilla, 542 U.S. 426 (No. 03-1027), 2004 WL 542777.

23 Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

24 Eric, Lichtblau, In Legal Shift, U.S. Charges Detainee in Terrorism Case, N.Y. Times, Nov. 23, 2005, at A1.Google Scholar The government also avoided further judicial rulings on the exact procedures to be applied on remand in the Hamdi case by reaching an agreement with Hamdi that resulted in his release from detention, his surrender of U.S. citizenship, and his return to Saudi Arabia. Jerry, Markon, Hamdi Returned to Saudi Arabia: U. S. Citizen’s Detention as Enemy Combatant Sparked Fierce Debate, Wash. Post, Oct. 12, 2004, at A2.Google Scholar

25 The exception is Ali Saleh Khalah al-Marri. An appeal from a denial of habeas corpus in a case challenging his indefinite confinement in a navy brig in South Carolina, Al-Marri v. Wright, 443 F.Supp.2d 774 (D.S.C. 2006), was recently heard in the Court of Appeals for the Fourth Circuit.

26 Rasul v. Bush, 542 U.S. 466 (2004).

27 Paul Wolfowitz (then deputy secretary of defense), Order Establishing Combatant Status Review Tribunal (July 7, 2004), available at <http://www.defenselink.mil/news/Jul2004/d20040707review.pdf=. More detailed implementation procedures were provided in a memorandum issued by the secretary of the navy, Gordon England, Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at Guantanamo Bay Naval Base, Cuba (July 29, 2004), available at <http://www.defenselink.mil/news/Jul2004/d20040730comb.pdf= . This was later updated in a memorandum issued by England as deputy secretary of defense, Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at U.S. Naval Base Guantanamo Bay, Cuba (July 14, 2006), available at <https://www.defenselink.mil/news/Aug2006/d20060809CSRTProcedures.pdf= [hereinafter 2006 CSRT Procedures].

28 See, e.g., Bradley, supra note 11, at 335-37; Tom, J. Farer, The Two Faces of Terror, 101 AJIL 363, 375–77 (2007).Google Scholar The CSRTs appear to depart in a few respects from the Hamdi model, particularly regarding the neutrality of the tribunal decision maker, rights to representation by counsel, and the individual’s access to evidence bearing on the case. These elements are ripe for challenge in later rounds of litigation over the CSRTs, which will now apparently take place exclusively before the Court of Appeals for the D.C. Circuit, under the MCA, supra note 2, sec. 7 (10 U.S.C. §801 note). See Boumediene v. Bush, 127 S.Ct. 1478 (2007) (denying certiorari in habeas case challenging CSRT process, over three dissents; separate statement of Justices Stevens and Kennedy, who concurred in denial of certiorari, acknowledged significant issues but noted importance of exhaustion of statutory remedies); see also William, Glaberson, U.S. Asks Court to Limit Lawyers at Guantánamo, N.Y. Times, Apr. 26, 2007, at A1 Google Scholar (discussing litigation over ongoing restrictions in connection with CSRT proceedings).

29 David, A. Martin, Offshore Detainees and the Role of Courts After Rasul v. Bush:The Underappreciated Virtues of Deferential Review, 25 B.C. Third World L.J. 125, 141–43 (2005)Google Scholar; Jeffrey, Rosen, My Gitmo Vacation, New Republic, Mar. 5 & 12, 2007, at 16, 19.Google Scholar A related institution, administrative review boards providing an annual review of detainees’ cases to see whether they no longer pose a threat or can in any event be returned to their home countries, has also resulted in 14 releases and 119 transfers to other countries. Id.

30 Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2799 (2006).

31 Nonetheless, despite its silence on these questions, in holding the president so closely to the standards specified by Congress in Article 21 of the Uniform Code of Military Justice, 10 U.S.C, ch. 47, the Court necessarily declined to accept broad assertions that the president, relying on his inherent authority as chief executive and commander in chief, could establish military commissions on an extrastatutory basis, in ways that might not conform to any specifications by Congress. See Hamdan, 126 S.Ct. at 2773-74; see also Brief for Respondents at 20-23, Hamdan, 126 S.Ct. 2749 (No. 05-184), 2006 WL 460875 (solicitor general’s arguments asserting inherent presidential power to establish military commissions).

32 126 S.Ct. at 2772-75.

33 See Alberto, R. Gonzales, Op-Ed, Martial Justice, Full and Fair, N.Y. Times, Nov. 30, 2001, at A27 Google Scholar (highlighting the capacity of commissions to “dispense justice swiftly”). The initial statement of procedures was issued in March 2002, U.S. Dep’t of Defense, Military Commissions Order No. 1, Procedures for Trials by Military Commissions of Certain Non-citizens in the War Against Terrorism (Mar. 21, 2002), 41 ILM 725 (2002), but the commissions were not fully equipped to proceed with trials until a further set of military instructions were completed, addressing such topics as the list of chargeable crimes and their elements, responsibilities and qualifications for counsel filling various roles, sentencing, and administrative procedure. These instructions (Military Commission Instructions 1 through 8) were published on April 30, 2003. See, e.g., Dep’t of Defense, Military Commission Instruction No. 2, Crimes and Elements for Trials by Military Commission (Apr. 30, 2003), available at <http://www.defenselink.mil/news/May2003/d20030430milcominstno2.pdf=Google Scholar. The first charges initiating actual commission prosecutions were referred in June 2004. See Dep’t of Defense News Release No. 620-04, Military Commission Charges Referred (June 29, 2004), available at <http://www.defenselink.mil/releases/release.aspx?releaseid=7504=.

34 Src Editorial, Ban All the Lawyers: Prisoners at Guantanamo Don’t Really Need Them, or So Says the Justice Department, Wash. Post, Apr. 29, 2007, at B6 Google Scholar (regional ed.).

35 See Carl, Hulse & Todd, S. Purdum, Daschle Defends Democrats’ Stand on Security of U.S., N.Y. Times, Sept. 26, 2002, at A1 Google Scholar; Media Matters for America, NY Times Distorted Democratic Position on Homeland Security Legislation (Dec. 19, 2005), available at <http://mediamatters.org/items/200512190015=.

36 George, W. Bush, Remarks on the War on Terror, 42 Weekly Comp. Pres. Doc. 1569, 1571, 1573 (Sept. 11, 2006), available at <http://www.whitehouse.gov/news/releases/2006/09/20060906-3.html=.Google Scholar

37 The president used these careful words: “The procedures in the bill I am sending to Congress today reflect the reality that we are a nation at war and that it’s essential for us to use all reliable evidence to bring these people to justice.” Id. at 1573. Implicitly, the normal federal court rules for suppressing evidence improperly obtained would preclude the use at trial of some of the information our interrogators had secured.

38 R. Jeffrey, Smith, Detainee Measure to Have Fewer Restrictions: White House Reaches Accord with Lawmakers, Wash. Post, Sept. 26, 2006, at A1 Google Scholar; Carl, Hulse & Kate, Zernike, Deal Likely on Detainees but Not on Wiretapping, N.Y. Times, Sept. 27, 2006, at A1.Google Scholar

39 See Michael, J. Matheson, The Amendment of the War Crimes Act, 101 AJIL 48 (2007)Google Scholar; Jack, M. Beard, The Geneva Boomerang: The Military Commissions Act of 2006 and U.S. Countertenor Operations, 101 AJIL 56 (2007)Google Scholar; Carlos Manuel, Vázquez, The Military Commissions Act, the Geneva Conventions, and the Courts: A Critical Guide, 101 AJIL 73 (2007)Google Scholar; Farer, supra note 28. The main problem areas include the departures from court-martial procedures, standards that may permit the use in commission proceedings of evidence obtained through improperly coercive techniques, the provisions for the use of classified information, the watering down of some Geneva standards for purposes of criminal prosecutions of U.S. personnel under the War Crimes Act, and the element that I will focus on in part III, the constriction of judicial review, particularly by way of habeas corpus.

40 MCA, supra note 2, sees. 3 (new 10 U.S.C. §948(b)(g)), 5(a) (28 U.S.C. §2241 note).

41 Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 188 (1804); see Vázquez, supra note 39, at 80-81.

42 This conclusion is bolstered by the contrast of the quoted language with the wording of MCA section 6, which deals with prosecutions under the War Crimes Act, 18 U.S.C. §2441. Section 6, but not the former language dealing with the invocation of the Geneva Conventions, expressly limits what courts themselves may do: “No foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in subsection (d) of such section 2441” (emphasis added).

43 See, e.g., Josh, White, Bill Would Restore Detainees’ Rights, Define ‘Combatant, ‘Wash. Post, Feb. 14, 2007, at A8.Google Scholar Restoring a wider scope for habeas corpus review of the treatment of offshore prisoners was almost accomplished in the September 2006 Senate bill, but an amendment to this end by Senator Arlen Specter failed by a vote of 48-51. See Charles, Babington & Jonathan, Weisman, Senate Approves Detainee Bill Backed by Bush: Constitutional Challenges Predicted, Wash. Post, Sept. 29, 2006, at A1.Google Scholar

44 Military Order, Detention, Treatment, and Trial of Certain Non-citizens in the War Against Terrorism, 66 Fed. Reg. 57,833, sec. 7(b)(2) (Nov. 16, 2001), reprinted in Al ILM 252 (2002).

45 Gonzales, supra note 33. His reference, though not spelled out, was to the Nazi saboteur case, Ex parte Quirin, 317 U.S. 1 (1942).

46 See Hamdiv. Rumsfeld, 542 U.S. 507, 540-41 (2004) (Souter, J. .concurring in part and dissenting in part). The most revealing account of the lengths to which the administration wished to go appeared in the documents filed to support the government’s motion for reconsideration of an initial order in the Padilla case commanding access to his attorney. One affidavit asserted that it was essential to the interrogation process to keep the individual isolated. Contact with an attorney might provide hope and therefore undo the crucial aura of utter dependency on the interrogator that the government had spent much time creating. See Padilla v. Rumsfeld, 243 F.Supp.2d 42, 44 (S.D.N.Y. 2003). The district court did not grant reconsideration, but lengthy appeals meant that Padilla did not see counsel (or, apparently, family members) for many additional months. Doctors who eventually examined him at the behest of the defense to determine his fitness to stand trial, in his later federal criminal proceeding, found mental impairment and post-traumatic stress disorder. See Deborah, Sontag, Defense Calls Padilla Incompetent for Trial, N.Y. Times, Feb. 23, 2007, at A18.Google Scholar

47 Hamdi v. Rumsfeld contemplated direct fact-finding of this type by a habeas court, at least where a U.S. citizen was the petitioner and had enjoyed no previous opportunity to contest the facts allegedly supporting the designation. But the Court there also made clear that the government could instead shift such fact-finding to an administrative process, subject to more deferential judicial review, if it created such a process containing adequate procedural safeguards. 542 U.S. at 538-39.

48 Pub. L. No. 109-148, sec. 1005(e), 119 Stat. 2739,2740-43 (2005) (to be codified at 10 U.S.C. §801 note) [hereinafter DTA].

49 Swain v. Pressley, 430 U.S. 372 (1977). See generally Richard, H. Fallon Jr. & Daniel, J. Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror, 120 Harv. L. Rev. 2029 (2007).Google Scholar

50 The D.C. Circuit has not been receptive to detainees’ claims in the post-September 11 era. See, e.g., Boumedienev. Bush, 476 F.3d 981,991-92 (D.C. Cir. 2007), cert, denied, 127S.Ct. 1478 (2007) (rejecting habeas claim of Guantánamo petitioners in part because they have no constitutional rights to assert, being aliens who lacked “presence or property” in the United States).

51 MCA, supra note 2, sec. 7 (28 U.S.C. §2241 (e)). By the same token, the MCA bars habeas and other review of detainee treatment issues not only for Guantanamo detainees, as did the DTA, but for equivalent detainees anywhere.

52 DTA, supra note 48, sec. 1005(e)(2)(C) & (3)(C), 10 U.S.C. §801 note, as amended by MCA, supra note 2, sec. 9.

53 See Fallon & Meltzer, supra note 49, at 2090-95; Farer, supra note 28, at 366-67, 376-77.

54 See Fallon & Meltzer, supra note 49, at 2109 - 10 . The operative definition of “enemy combatant” remains less than optimally clear. Regulations revised in July 2006 still use a standard that is based on the definition the Supreme Court extracted from government filings in the Hamdi case, but revised to cover a wider range of persons:

2006 CRST Procedures, supra note 27, Enclosure 1 (Combatant Status Review Tribunal Process), at 1. The MCA provides a broader definition of unlawful enemy combatant, but, formally at least, only for purposes of determining who is subject to prosecution before a military commission, not for purposes of indefinite noncriminal detention. See 10 U.S.C. §948a(l) and (2), as added by MCA, supra note 2, section 3.

55 DTA, supra note 48, sec. 1003(a) (10 U.S.C. §801 note).

56 28 U.S.C. §2241 (e), as added by MCA, supra note 2, sec. 7 (emphasis added).

57 In their disparate comments in separate opinions accompanying the April 2007 denial of certiorari in Boumediene v. Bush, five Justices rather clearly signaled that they would find jurisdiction over such a claim of delay. Boumediene v. Bush, 127 S.Ct. 1478 (2007). Justices Stevens and Kennedy, in their separate statement, id. at 1478, noted serious issues surrounding the CSRTs and the lengthy detention of the petitioners, but voted to deny certiorari now because petitioners had not yet exhausted the direct review process in the D.C. Circuit. Justices Breyer, Souter, and Ginsburg dissented from the denial of certiorari and described their reasons at some length. Id. at 1479 - 80.

58 Martin, supra note 29, at 136-60. In that article, I develop the arguments for such factual deference at greater length. I also endeavor, drawing on my own years of experience in the executive branch, to explain why, in the real world of interactions between judges and administrators, even a deferential standard of review can have important salutary effects. As long as some form of judicial review is preserved, no administrative fact finder can know in advance exactly how closely, in actual practice in the district court, his or her rulings will be scrutinized. This uncertainty creates incentives for greater care and for the adoption of wider protections, while yet preserving space for flexibility and adaptation. The very presence of judicial review fosters better internal executive branch consideration, and also helps to strengthen the hand (or at least to avoid the sidelining) of players who favor more protective measures.

59 Quoted in Eric, Schmitt, Senate Approves Limiting Rights of U.S. Detainees, N.Y. Times, Nov. 11, 2005, at A1.Google Scholar

60 Statement from U.S. Senator Lindsey Graham on the al Odah Decision, Press Release from Graham Office (Feb. 20, 2007), available at <http://www.senate.gov/~lgraham/index.cfm?mode=presspage&id=269573=.

61 See Hamdi, 542 U.S. at 534-35; see also Rasul, 542 U.S. at 488 (Kennedy, J., concurring); Martin, supra note 29, at 144.

62 Mail delivery to detainees is not some low-value dispensation gratuitously bestowed or withheld. The Third Geneva Convention devotes an entire treaty section, consisting of nine articles, to “relations of prisoners of war with the exterior,” including detailed provisions on the nature and frequency of mailings and the type of censorship permitted. Geneva Convention Relative to the Treatment of Prisoners of War, Arts. 69-77, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135; see also id., Arts. 29-32 (on hygiene and medical attention).

63 Bradley, supra note 11, at 332-33.

64 For further discussion of the limits and qualifications of this conclusion, see Martin, supra note 29, at 143-45.

65 See, e.g., Brendan, Miniter, Editorial, When Miranda Met Osama, Wall St. J. Online, Sept. 19, 2006, available at <http://www.opinionjournal.com/columnists/bminiter/?id=110008962=Google Scholar; Face the Nation (CBS News television broadcast Feb. 5, 2006) (Sen. Jeff Sessions: “[W]hen you authorize our military to use force, they can kill the enemy without a Miranda warning. They can put them in jail without a trial.”), quoted in Specter Says Congress Never Authorized Warrantless Domestic Surveillance, Frontrunner, Feb. 6, 2006, available in Lexis, News Library, Wire Service Stories File.

66 Boumediene v. Bush, 476 F.3d 981, 992 (D.C. Cir. 2007), cert, denied, 127 S.Ct. 1478 (2007) (quoting People’s Mojahedin Org. of Iran v. U.S. Dep’t of State, 182 F.3d 17, 22 (D.C. Cir. 1999)).

67 In re Ross, 140 U.S. 453, 464 (1891).

68 Reid v. Covert, 354 U.S. 1 (1957).

69 See, e.g., id. at 7 (plurality opinion) (“The language of Art. III, §2 manifests that constitutional protections for the individual were designed to restrict the United Sates Government when it acts outside of this country, as well as here at home.”) (emphasis added).

70 In an article whose writing spanned the September 11 attacks, I wrestled with some of these issues involving the use of classified information, with a special focus on its use in immigration proceedings. See Martin, supra note 4, at 126-36.

71 See, e.g., Dowries v.Bidwell, 182 U.S. 244 (1901); Hawaii v. Mankichi, 190 U.S. 197 (1903); Dorr v. United States, 195 U.S. 138 (1904); Balzac v. Porto Rico, 258 U.S. 298 (1922).

72 See, e.g., T. Alexander, Aleinikoff, Semblances of Sovereignty: The Constitution, The State, And American Citizenship 21–32, 74–94 (2002)Google Scholar; Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution (Christina Duffy, Burnett & Burke, Marshall eds., 2001).Google Scholar But see Christina Duffy, Burnett, Untied States: American Expansion and Territorial Deannexation, 72 U. Chi. L. Rev. 797 (2005).Google Scholar

73 See Martin, supra note 4, at 79-101.

74 354 U.S. at 3.

75 United States v. Verdugo-Urquidez, 494 U.S. 259,275-78 (1990). Justice Kennedy concurred in the opinion and judgment of the Court, but his rationale is markedly different from Justice Rehnquist’s opinion for the majority. Justice Stevens concurred only in the result. His one-paragraph explanation seems more in keeping with the Harlan approach. Id. at 279. Three Justices dissented.

76 Gerald, L. Neuman, Strangers to The Constitution: Immigrants, Borders, and Fundamental Law 92–93, 102-03, 113–17 (1996).Google Scholar

77 See Gerald, L. Neuman, Extraterritorial Rights and Constitutional Methodology After Rasul v. Bush, 153 U. Pa. L. Rev. 2073, 2076-77, 2083 (2005).Google Scholar