* This text was reproduced and reformatted from the text available at the Supreme Court website (visited May 26, 2010) http://www.supremecourt.gov/opinions/09pdf/09-35.pdf.

1 In the late 1980s, I covered the human rights situation under Noriega’s regime as a monitor for Human Rights Watch (HRW) in various field missions to Panama; I was also dispatched by HRW within a day of the U.S. invasion to monitor the conduct of both sides. Subsequently, as a lawyer with Human Rights Watch at the time of Noriega’s original trial, I authored and submitted on that organization’s behalf an amicus brief essentially urging the view that Noriega was, indeed, a POW; this conclusion and its rationale was largely endorsed by the District Court. I have had no further contact with the case or any of its actors.

2 The District Court expressed reservations that the Bureau of Prisons would, in fact, be able to satisfy the confinement conditions of the Third Geneva Convention, while at the same time expressing doubt as to the authority of the court to issue post-sentencing orders under domestic law. As a practical matter, this concern went away because the Federal government had already constructed a special place of confinement for Noriega as part of preparation for the trial, which, in agreement by all parties, had met the requirements of the Third Geneva Convention. Noriega remained there to serve his sentence.

3 John, Elwood, Court Action at Last in Noriega v. Pastrana, Volokh Conspiracy, Jan. 25, 2010 Google Scholar, http://volokh.com/2010/01/25/court-action-at-last-in-noreiga-v-pastrana/.

4 Noriega v. Pastrana, No. 09-35, at 2 (U.S. Jan. 25, 2010).

5 Boumediene v. Bush, 553 U.S. 723 (2008).

6 Military Commissions Act of 2006, Pub. L. No. 109-366, § 7 (2006).

7 See Noriega v. Pastrana, No. 08-11021, at 6 (11th Cir. Apr. 8, 2009).

8 Government Reply Brief Opposing Certiorari., Noriega v. Pastrana, No. 08-11021 (11th Cir. Apr. 8, 2009).

9 Noriega, No. 09-35, at 5 (citing government brief citing Medellin).

1 We 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).

2 Citing International Red Cross and academic commentary in support of its ‘‘belie[f] [that the Third] Geneva [Convention] is self-executing 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.

3 The 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, 2007WL2947981, *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).

4 The Government also challenged Noriega’s claims as meritless and outside the scope of habeas review under Circuit precedent.

5 Recent 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).

6 Although 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.

7 The 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.

8 Compare 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 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)).

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

10 This 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 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).

11 See, e.g., Elsea, J., Thomas, K., & Garcia, M., CRS Report for Congress, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, 36, 41-43 (2009)Google Scholar.

12 Because 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).

13 MCA §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.

14 Both 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.

15 The 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, 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 separationof-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.

16 As 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.