page 649 note 1 Boumediene v. Bush, 128 S. Ct. 2229 (2008).

page 649 note 2 Authorization for the Use of Military Force (AUMF), § 2(a), 115 Stat. 224, note following 50 U.S.C. § 1541 (2000 ed., Supp. V).

page 649 note 3 542 U.S. 466 (2004).

page 649 note 4 542 U.S. 507 (2004). Hamdi was a splintered decision, with the principal plurality opinion authored by Justice O'Connor and a significant concurring opinion authored by Justice Souter.

page 649 note 5 Immediately after the Supreme Court's decision requiring the Justice Department to demonstrate proof for its allegations about Hamdi, the government opened negotiations with his lawyers to release him. Brinkley, Joel &Lichtblau, Eric, U.S. Releases Saudi-American It Had Captured in Afghanistan, N.Y. Times A15 (Oct. 12, 2004).Google Scholar He was sent back to Saudi Arabia in October 2004, a little over three months after the decision.

page 649 note 6 Boumediene appears to have displaced Hamdi —or at least sharply curtailed its significance—as governing authority on the scope of habeas corpus procedures. Boumediene, 128 S. Ct. at 2269-2270 (suggesting that Hamdi's analysis is more relevant as an assessment of “the petitioner's Due Process rights, not as “an extrapolation of [the habeas corpus statute]”).

page 649 note 7 Detainee Treatment Act of 2005 (DTA), Pub. L. 109-148, 119 Stat. 2739 (2005). The executive review procedures, conducted before newly created administrative “Combatant Status Review Tribunals” (CSRTs), were themselves sharply limited. They prohibited detainees from seeing much of the evidence against them, prevented any access to lawyers, permitted the introduction of coerced evidence, and presumed that all evidence against the detainees was accurate.

page 649 note 8 548 U.S. 557 (2006).

page 649 note 9 Military Commissions Act of 2006 (MCA) § 7, Pub. L. No. 109-366, 120 Stat. 2600 (2006).

page 649 note 10 U.S. Const, art. I, § 9. The Government did not contend in Boumediene that the prerequisites for a constitutional Suspension had been satisfied.

page 649 note 11 Boumediene, 128 S. Ct. at 2251.

page 649 note 12 Id. at 2258. See also id. at 2259 (holding that the reach of the Suspension Clause depends on “(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”).

page 649 note 13 Boumediene, 128 S. Ct. at 2259-2262.

page 649 note 14 Twentieth century precedent in the domestic criminal context suggests that a procedure need not be called habeas corpus in order to pass constitutional muster under the Suspension Clause, so long as it is (at a minimum) an adequate substitute for the Great Writ. See Swain v. Pressley, 430 U.S. 372 (1977); United States v. Hayman, 342 U.S. 205 (1952).

page 649 note 15 Boumediene, 128 S. Ct. at 2268.

page 649 note 16 Boumediene, 128 S. Ct. at 2270. See supra n.7 for a partial summary of the executive review procedures’ limitations.

page 649 note 17 Id. at 2274.

page 649 note 18 Id.

page 649 note 19 542 U.S. at 516-524.

page 649 note 20 Memorandum from Deputy Sec'y of Defense Paul Wolfowitz to the Sec'y of the Navy, Order Establishing Combatant Status Review Tribunal (July 7, 2004), available at http://www.defenselink.mil/news/Jul2004/d20040707review.pdf.

page 649 note 21 Parhat v. Gates, 532 F.3d 834, 848 (D.C. Cir. 2008) (observing that “[t]he fact that the government has ‘said it thrice’ does not make an allegation true'’ in rejecting on their face multiple intelligence documents supporting the conclusion that the Guantanamo detainee was an enemy combatant).

page 649 note 22 Boumediene, 128 S. Ct. at 2259; cf. Munaf v. Geren, 128 S. Ct. 2207 (2008) (finding statutory jurisdiction over habeas claims by United States citizens held in Iraq by the United States military).

page 649 note 23 See, e.g., Benjamin Wittes, Law& The Long War: The Future Of Justice In The Age Of Terror (2008).

page 649 note 24 See, e.g., Enemy Combatant Detention Review Act of 2008, H.R. 6705,110th Cong. (2008) (introduced in House) (proposing to grant authority to “detain enemy combatants in connection with the continuing armed conflict with al Qaeda, the Taliban, and associated forces, regardless of the place of capture, until the termination of hostilities“).

page 649 note 25 Boumediene, 128 S. Ct. at 2277; see generally Julian Davis Mortenson, Deference Reconsidered, Opinio Juris, June 13, 2008, http://opiniojuris.org/2008/06/17/deference-reconsidered/ (arguing that “a serious and systematic effort to lay down rules— certainly procedural, and perhaps to some extent even substantive—governing preventive detention is likely to be respected by [the] Court“).

page 650 note * This text was reproduced and reformatted from the text appearing at the U.S. Supreme Court website: (visited September 11, 2008, 2008) <http://www.supremecourtus.gov/opinions/07pdf/06-1195.pdf> at the detainee's status as a subject was material to the resolution of the case," 542 U.S., at 504.

page 650 note † Together with No. 06-1196, Al Odah, Next Friend of Al Odah, et al. v. United States et al., also on certiorari to thesame court.

page 694 note 1 In light of the foregoing, the concurrence is wrong to suggest that [“insufficiently appreciate]” the issue of delay in these cases. See ante, at 2 (opinion of Souter, J.). This Court issued its decisions in Rasul v. Bush, 542 U.S. 466, and Hamdi v. Rumsfeld 542 U.S. 507, in 2004. The concurrence makes it sound as if the political branches have done nothing in the interim. In fact, Congress responded 18 months later by enacting the DTA. Congress cannot be faulted for taking that time to consider how best to accommodate both the detainees’ interests and the need to keep the American people safe. Since the DTA became law, petitioners have steadfastly refused to avail themselves of the statute's review mechanisms. It is unfair to complain that the DTA system involves too much delay when petitioners have consistently refused to use it, preferring to litigate instead. Today's decision obligating district courts to craft new procedures to replace those in the DTA will only prolong the process—and delay relief.

page 694 note 2 The Court wonders what might happen if the detainee puts forward new material evidence but the Deputy Secretary refuses to convene a new CSRT. See ante, at 62-63. The answer is that the detainee can petition the D.C. Circuit for review. The DTA directs that the procedures for review of new evidence be included among “[t]he procedures submitted under paragraph (1)(A)” governing CSRT review of enemy combatant status §1405(a)(3), 119 Stat. 3476. It is undisputed that the D.C. Circuit has statutory authority to review and enforce these procedures. See DTA §1005(e)(2)(C)(i), id, at 2742.

page 703 note 1 Even today, the Court cannot resist striking a pose of faux deference to Congress and the President. Citing the above quoted passage, the Court says: “The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.” Ante, at 69. Indeed. What the Court apparently means is that the political branches can debate, after which the Third Branch will decide.

page 703 note 2 The opinion seeks to avoid this straightforward conclusion by saying that the Court has been “careful not to foreclose the possibility that the protections of the Suspension Clause have expanded along with post 17 89 developments that define the present scope of the writ.” Ante, at 15-16 (citing Ins v. St. Cyr, 533 U.S. 289 300-301 (2001)). But not foreclosing the possibility that they have expanded is not the same as demonstrating (or at least holding without demonstration, which seems to suffice for today's majority) that they have expanded. The Court must either hold that the Suspension Clause has “expanded” in its application to aliens abroad, or acknowledge that it has no basis to set aside the actions of Congress and the President. It does neither.

page 704 note 3 In its failed attempt to distinguish Eisentrager, the Court comes up with the notion that “dejure sovereignty” is simply an additional factor that can be added to (presumably) “de facto sovereignty” (i.e., practical control) to determine the availability of habeas for aliens, but that it is not a necessary factor, whereas de facto sovereignty is. It is perhaps in this de facto sense, the Court speculates, that Eisentrager found “sovereignty” lacking. See ante, at 23-25. If that were so, one would have expected Eisentrager to explain in some detail why the United States did not have practical control over the American zone of occupation. It did not (and probably could not). Of course this novel de facto-de jure approach does not explain why the writ never issued to Scotland, which was assuredly within the de facto control of the English crown. See infra, at 22. To support its holding that de facto sovereignty is relevant to the reach of habeas corpus, the Court cites our decision in Fleming v. Page, 9 How. 603 (1850), a case about the application of a customs statute to a foreign port occupied by U.S. forces. See ante, at 24. The case used the phrase “subject to the sovereignty and dominion of the United States” to refer to the United States’ practical control over a “foreign country.” 9 How., at 614. But Fleming went on to explain that because the port remained part of the “enemy's country,” even though under U.S. military occupation, “its subjugation did not compel the United States, while they held it, to regard it as part of their dominions, nor to give to it any form of civil government, nor to extend to it our laws.” Id., at 618. If Fleming is relevant to these cases at all, it undermines the Court's holding.

page 704 note 4 Justice Souter's concurrence relies on our decision four Terms ago in Rasul v. Bush, 542 U.S. 466 (2004), where the Court interpreted the habeas statute to extend to aliens held at Guantanamo Bay. He thinks that “no one who reads the Court's opinion in Rasul could seriously doubt that the jurisdictional question must be answered the same way in purely constitutional cases.” Ante, at 1-2. But Rasul was devoted primarily to an explanation of why Eisentrager's statutory holding no longer controlled given our subsequent decision in Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973). See Rasul, supra, at 475-479. And the opinion of the Court today—which Justice Souter joins—expressly rejects the historical evidence cited in Rasul to support its conclusion about the reach of habeas corpus. Compare id., at 481-482, with ante, at 18. Moreover, even if one were to accept as true what Justice Souter calls Rasul's “ well-considered” dictum, that does not explain why Eisentrager's constitutional holding must be overruled or how it can be distinguished. (After all, Rasul distinguished Eisentrager's statutory holding on a ground inapplicable to its constitutional holding.) In other words, even if the Court were to conclude that Eisentrager 's rule was incorrect as an original matter, the Court would have to explain the justification for departing from that precedent. It therefore cannot possibly be true that Rasul controls this case, as Justice Souter suggests.

page 704 note 5 My dissent in Rasul v. Bush, 542 U.S. 466, 503 (2004), mistakenly included Scotland among the places to which the writ could run.

page 704 note 6 The dicta in Rasul also cited Ex parte Mwenya, [1960] 1 Q. B. 241, (C. A.), but as I explained in dissent, “[e]ach judge [in Mwenya] made clear that the detainee's status as a subject was material to the resolution of the case,” 542 U.S., at 504.

page 704 note 7 The Court also argues that the fact that the writ could run to Ireland, even though it was ruled under a “separate” crown, shows that formal sovereignty was not the touchstone of habeas jurisdiction. Ante, at 21. The passage from Blackstone that the Court cites, however, describes Ireland as “a dependent, subordinate kingdom” that was part of the “king's dominions.” 1 Blackstone 98, 100 (internal quotation marks omitted). And Lord Mansfield's opinion in Cowle plainly understood Ireland to be “a dominion of the Crown of England,” in contrast to the “foreign dominio[n]” of Scotland, and thought that distinction dispositive of the question of habeas jurisdiction. Cowle, supra, at 856, 97 Eng. Rep., at 599-600.