Z
ACHARY
M. V
AUGHAN
*
T
ABLE OF
C
ONTENTS
I
NTRODUCTION
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
869
I.
T
HE
P
OLITICAL
Q
UESTION
D
OCTRINE
. . . . . . . . . . . . . . . . . . . . . . .
870
A
.
EARLY CASES
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
871
B
.
MODERN DOCTRINE
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
872
II.
B
OUMEDIENE V
. B
USH
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
875
A
.
EVENTS LEADING UP TO BOUMEDIENE
. . . . . . . . . . . . . . . . . . . .
876
B
.
JUSTICE KENNEDY
’
S MAJORITY OPINION
. . . . . . . . . . . . . . . . . .
877
1.
Historical Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . .
878
2.
Supreme Court Precedent . . . . . . . . . . . . . . . . . . . . . . .
881
3.
Applying the Factors . . . . . . . . . . . . . . . . . . . . . . . . . .
884
III.
A
PPLYING
B
OUMEDIENE TO
O
THER
D
ETENTION
S
ITES
. . . . . . . . . . . .
886
A
.
DID BOUMEDIENE REALLY REJECT FORMALISM?
. . . . . . . . . . . . . .
886
B
.
EXTENDING THE SUSPENSION CLAUSE TO AFGHANISTAN
. . . . . . . .
888
IV.
W
AS
B
OUMEDIENE
J
USTICIABLE
? . . . . . . . . . . . . . . . . . . . . . . . . . .
892
A
.
TEXTUAL CONSIDERATIONS
. . . . . . . . . . . . . . . . . . . . . . . . . . .
894
B
.
FUNCTIONAL CONSIDERATIONS
. . . . . . . . . . . . . . . . . . . . . . . .
897
C
.
PRUDENTIAL CONSIDERATIONS
. . . . . . . . . . . . . . . . . . . . . . . .
898
C
ONCLUSION
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
899
I
NTRODUCTION
In June 2008, the Supreme Court issued a stern rebuke to the Executive
* Georgetown Law, J.D. expected 2011; Dartmouth College, B.A. 2005. © 2011, Zachary M.
Vaughan. I would like to thank Professor Nadia Asancheyev for her help in developing this Note.
Thanks also to Allison W. Meredith and all the editors and staff of The Georgetown Law Journal for their assistance.
869

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Branch in Boumediene v. Bush , which held that the Suspension Clause 1
Constitution applies to the Guantanamo Bay Naval Base in Cuba.
2 of the
The Court did not state whether its holding was broad or narrow; commentators began arguing over whether Boumediene applied only to Guantanamo or also to other sites where the United States holds terrorism suspects. Of particular interest to scholars has also been the question of whether the Court should have taken up the issue at all—whether the Court should have found the case nonjusticiable based on the “political question” therein.
3
This Note defends Justice Kennedy’s majority opinion in Boumediene against two separate lines of attack. First, this Note attempts to rebuff scholarly commentary that tries to read into Boumediene a formalist holding about the territorial reach of the Suspension Clause—it is simply not there. Second, this
Note examines the question of whether the political question doctrine should restrain judges in the first instance from making determinations about the territorial reach of the Suspension Clause. Part I gives an overview of the political question doctrine from its origins through its refinement in Baker v.
Carr 4 and examines a few modern applications of the doctrine. Part II examines
Justice Kennedy’s majority opinion in Boumediene, the extent to which the political question doctrine constrained the Court in that case, and the steps
Justice Kennedy took to work around the doctrine in his opinion. Part III examines Judge Bates’s opinion in Al Maqaleh v. Gates 5 and its application of
Boumediene to detainees at Bagram and shows that, despite scholarly commentary to the contrary, Judge Bates’s reading of Boumediene was correct. Finally,
Part IV argues that, although Justice Kennedy failed to address Baker v. Carr and its progeny in Boumediene , his opinion demonstrates that the question of whether the Suspension Clause extends to places like Guantanamo and Bagram is one that courts may address.
I. T
HE
P
OLITICAL
Q
UESTION
D
OCTRINE
The political question doctrine is a branch of justiciability doctrine under which federal judges decline to resolve questions that they feel are best left to the political branches.
6 Sometimes described as the “most confusing of the justiciability doctrines,”
7 the political question doctrine has generally been
1. U.S. C
ONST
. art. I, § 9, cl. 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.”).
2. 553 U.S. 723, 732 (2008).
3.
See infra section III.A.
4. 369 U.S. 186 (1962).
5. 604 F. Supp. 2d 205 (D.D.C. 2009), rev’d , 605 F.3d 84 (D.C. Cir. 2010).
6. E
RWIN
C
HEMERINSKY
, C
ONSTITUTIONAL
L
AW
: P
RINCIPLES AND
P
OLICIES
129 (3d ed. 2006).
7.
Id.
; see also, e.g.
, David Stras, The Decline of the Political Question Doctrine , B
ALKINIZATION
(Dec. 29, 2008, 2:30 PM), http://balkin.blogspot.com/2008/12/decline-of-political-question-doctrine.
html (“For those of us who teach federal courts, one of the most elusive concepts is the political question doctrine, primarily because it is so difficult to reconcile with the other justiciability doctrines such as standing, mootness, or ripeness. Unlike those three other doctrines, the political question

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871 applied in six areas: the Guarantee Clause and the electoral process; Congress’s ability to regulate its internal processes; the process for ratifying constitutional amendments; instances where federal courts cannot shape effective equitable relief; the impeachment process; and foreign affairs.
8
A
.
EARLY CASES
Like judicial review itself, the political question doctrine stems from Marbury v. Madison , in which Chief Justice Marshall declared that “[q]uestions, in their nature political, or which are by the constitution and laws, submitted to the executive can never be made in this court.”
9
Chief Justice Marshall distinguished political questions from issues involving individual rights, which could never be political questions.
10
This definition of the doctrine was quite narrow, excluding from judicial review only “matters where the president had unlimited discretion, and there was thus no allegation of a constitutional violation.” 11 Such matters included the President’s decision to veto legislation or of whom to appoint to a vacancy on the federal judiciary.
12
Since Marbury , however, the Court has expanded the doctrine to include cases where plaintiffs have alleged specific constitutional violations resulting in concrete injuries.
13 One of the first of these cases was Luther v. Borden , which involved Article IV’s Guarantee Clause
14 and a dispute over which of two governments was the legitimate government of Rhode Island.
15 By 1840, the
Rhode Island legislature had become severely malapportioned and was controlled by a small rural minority.
16 In 1841, a convention met to draft a new constitution, but the existing government enacted a law preventing the new constitution from taking effect.
17 Elections were held anyway, and a new government was elected with Thomas Dorr at its head as the new governor.
18
In
April 1842, Sheriff Luther Borden, acting under the authority of the original charter government, broke into the house of one of the election commissioners,
Martin Luther, in search of evidence of participation in the illegal election.
19
Luther sued Borden for trespassing, alleging that Borden acted pursuant to an doctrine is unrelated to the question of whether a particular plaintiff has a sufficient personal stake in a controversy to bring a lawsuit. Instead, the political question doctrine focuses on whether the resolution of a particular issue is a matter for the judiciary or one of the political departments of government.”).
8. C
HEMERINSKY
, supra note 6, at 131.
9. 5 U.S. (1 Cranch) 137, 170 (1803).
10.
Id.
11. C
HEMERINSKY
, supra note 6, at 130.
12.
Id.
13.
Id .
14. U.S. C
ONST
. art. IV, § 4 (“The United States shall guarantee to every State in this Union a
Republican Form of Government . . . .”).
15.
See 48 U.S. (7 How.) 1, 34–35 (1849).
16. C
HEMERINSKY
, supra note 6, at 135.
17.
Id .
18.
Luther , 48 U.S. at 36–37.
19. C
HEMERINSKY
, supra note 6, at 135.

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[Vol. 99:869 unconstitutional government’s orders, and argued that Rhode Island’s government violated the Guarantee Clause.
20
Chief Justice Taney, writing for the Supreme Court, refused to decide the matter.
He observed at the outset that the case presented a serious question, and that a ruling against the charter government would mean that “the laws passed by its legislature during that time were nullities; its taxes wrongfully collected; . . . the judgments and sentences of its courts in civil and criminal cases null and void, and the officers who carried their decisions into operation answerable as trespassers, if not in some cases as criminals.” 21 “When the decision of this court might lead to such results,” he concluded, “it becomes its duty to examine very carefully its own powers before it undertakes to exercise jurisdiction.” 22
After discussing the arguments on each side, and the Guarantee Clause itself,
Chief Justice Taney concluded that it rests with Congress to decide what government is the established one in a
State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the
State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the
Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal.
23
B
.
MODERN DOCTRINE
The Luther Court’s declaration that the Guarantee Clause is a nonjusticiable political question has been consistently followed, 24 including in challenges to malapportioned state legislatures.
25 By the middle of the twentieth century, many state legislatures were badly malapportioned, due mostly to the population’s shift from rural areas to cities.
26 Cases challenging congressional districting occasionally made their way up to the Supreme Court through the 1940s and
50s, where they were dismissed under Luther .
One of these cases was Colegrove v. Green , in which a group of voters challenged the constitutionality of Illinois’s malapportioned congressional dis-
20.
Id .
21.
Luther , 48 U.S. at 38–39.
22.
Id.
at 39.
23.
Id.
at 42.
24.
See, e.g.
, Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 141, 151 (1912) (refusing to decide whether a law passed through a voter initiative was direct democracy rather than republican government, in violation of the Guarantee Clause); Taylor v. Beckham, 178 U.S. 548, 574, 580 (1900)
(refusing to decide whether Kentucky’s resolution of a disputed gubernatorial race violated the
Guarantee Clause).
25. C
HEMERINSKY
, supra note 6, at 136.
26.
Id .

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27 Justice Frankfurter, writing for a three-justice plurality, stated that
“petitioners ask of this Court what it is beyond its competence to grant,”
28 warned that “[c]ourts ought not to enter this political thicket.” 29 and
Justice Frankfurter seemed to be expressing the view that an issue can be a “political question” simply because it is of particular concern to one or more of the political branches of government, rather than for any strictly constitutional reason.
30
In 1962 the Court in Baker v. Carr decisively rejected Justice Frankfurter’s
Colgrove analysis by announcing that “[t]he doctrine of which we treat is one of
‘political questions,’ not one of ‘political cases.’”
31
The Baker Court used the
Equal Protection Clause, 32 not the Guarantee Clause (thus distinguishing, not overturning, Luther v. Borden ), to hold that malapportionment claims are justiciable.
33 In doing so, the Court outlined six elements that serve to identify cases involving political questions:
[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or
[2] a lack of judicially discoverable and manageable standards for resolving it; or
[3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or
[4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or
[5] an unusual need for unquestioning adherence to a political decision already made; or
[6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
34
“Unless one of these formulations is inextricable from the case at bar,” the
Court held, “there should be no dismissal for [nonjusticiability] on the ground of a political question’s presence.”
35
Two postBaker cases, Powell v. McCormack 36 and Nixon v. United States , 37
27. 328 U.S. 549, 550–51 (1946) (plurality opinion). Only seven Justices participated in the decision of the case; Justice Rutledge concurred in the judgment, arguing that the cases should be dismissed for want of equity.
Id . at 565 (Rutledge, J., concurring). Justice Black dissented, joined by Justices Douglas and Murphy, arguing that the case was justiciable.
Id . at 568–69 (Black, J., dissenting).
28.
Id.
at 552 (plurality opinion).
29.
Id.
at 556.
30.
See L
AWRENCE
H. T
RIBE
, A
MERICAN
C
ONSTITUTIONAL
L
AW
§ 3-13, at 369–71 (3d ed. 2000).
31. 369 U.S. 186, 217 (1962).
32. U.S. C
ONST
. amend. XIV, § 1 (“No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”).
33.
Baker , 369 U.S. at 207–08.
34.
Id.
at 217. For an in-depth discussion of these factors and their application to Boumediene , see infra Part IV.
35.
Baker , 369 U.S. at 217.
36. 395 U.S. 486 (1969).

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[Vol. 99:869 help illustrate the issue. In Powell the Court determined the constitutionality of a House resolution denying a seat to Adam Clayton Powell, Jr., who had been elected to the House of Representatives to represent New York.
38 It was conceded that Powell met the age, citizenship, and residency requirements of
Article I, Section 2, but he was nevertheless denied his seat because a House
Committee found that, during his prior terms in the House, he had “asserted an unwarranted privilege and immunity from the processes of the courts of New
York; that he had wrongfully diverted House funds for the use of others and himself; and that he had made false reports on expenditures of foreign currency to the Committee on House Administration.”
39
Along with a number of voters from his congressional district, Powell sued for a declaration that his exclusion was unconstitutional because, he claimed, Article I, Section 2 “sets forth the exclusive qualifications for membership.” 40
Writing for the Court, Chief Justice Warren held that Article I, Section 5, which provides that “[e]ach House shall be the Judge of the . . . Qualifications of its own Members,”
41 is “at most a ‘textually demonstrable commitment’ to
Congress to judge only the qualifications expressly set forth in the Constitution,”
42 and that allowing the House, by simple majority vote, to deny Powell a seat “would effectively nullify the Convention’s decision to require a two-thirds vote for expulsion.”
43
Given the lack of a “textually demonstrable commitment” to the House of plenary decision-making power in this arena, the Court held the case justiciable.
44
In Nixon v. United States , the Court rejected an argument from former judge
Walter L. Nixon—who had been impeached, convicted, and removed from office by Congress—that the Senate violated the Constitution by delegating to a select committee the task of hearing the testimony of witnesses against him.
45
Nixon claimed that Article I, Section 3, which grants the Senate the “sole Power to try all Impeachments,”
46
“imposes by implication an additional requirement on the Senate in that proceedings must be in the nature of a judicial trial,” and thereby prevents the Senate from delegating the hearing of testimony to a select committee.
47
37. 506 U.S. 224 (1993).
38.
Powell , 395 U.S. at 489.
39.
Id . at 492.
40.
Id.
at 493–94; see also U.S. C
ONST
. art. I, § 2, cl. 2 (“No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United
States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”).
41. U.S. C
ONST
. art. I, § 5, cl. 1.
42.
Powell , 395 U.S. at 548.
43.
Id.
; see U.S. C
ONST
. art. I, § 5, cl. 2 (“Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a
Member.”).
44.
Powell , 395 U.S. at 548.
45. 506 U.S. 224, 226–28 (1993).
46. U.S. C
ONST
. art. I, § 3, cl. 6.
47.
Nixon , 506 U.S. at 229.

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Chief Justice Rehnquist, writing for the Court, held that Article I, Section 3’s grant to the Senate of “the sole Power to try all Impeachments”
48 constituted a
“textually demonstrable commitment” of that power to the Senate.
49 “We think that the word ‘sole’ is of considerable significance,” Chief Justice Rehnquist wrote.
50 He continued:
Indeed, the word “sole” appears only one other time in the Constitution—with respect to the House of Representatives’ “ sole Power of Impeachment.” The commonsense meaning of the word “sole” is that the Senate alone shall have authority to determine whether an individual should be acquitted or convicted.
The dictionary definition bears this out. “Sole” is defined as “having no companion,” “solitary,” “being the only one,” and “functioning . . . independently and without assistance or interference.” If the courts may review the actions of the
Senate in order to determine whether that body “tried” an impeached official, it is difficult to see how the Senate would be “functioning . . . independently and without assistance or interference.”
51
The Nixon Court also determined that the word “try” in Article I, Section 3,
Clause 5 “lacks sufficient precision to afford any judicially manageable standard of review.” 52 This became especially clear to the Court when it compared the first sentence of the clause to the “three very specific requirements that the
Constitution does impose on the Senate” in Article I, Section 3, Clause 6.
53
“These limitations are quite precise,” the Chief Justice noted, “and their nature suggests that the Framers did not intend to impose additional limitations on the form of the Senate proceedings by the use of the word ‘try’ in the first sentence.” 54 The Baker court recognized that “much confusion” over the political question doctrine “results from the capacity of the ‘political question’ label to obscure the need for case-by-case inquiry .” 55 The willingness to embrace subtlety and to reject formalism that the Court displayed in cases like Baker ,
McCormack , and Nixon would greatly influence the analysis of Justice Kennedy in Boumediene .
II.
B
OUMEDIENE V
. B
USH
The political question doctrine was a major obstacle to the petitioners in
48. U.S. C
ONST
. art. I, § 3, cl. 6 (emphasis added).
49.
Nixon , 506 U.S. at 229.
50.
Id.
at 230.
51.
Id.
at 230–31 (citations omitted) (ellipses in original).
52.
Id.
at 230.
53.
Id.
; see U.S. C
ONST
. art. I, § 3, cl. 6 (“The Senate shall have the sole Power to try all
Impeachments. When sitting for that purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the Concurrence of two thirds of the Members present.”).
54.
Nixon , 506 U.S. at 230.
55. Baker v. Carr, 369 U.S. 186, 210–11 (1962) (emphasis added).

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Boumediene v. Bush that threatened to derail their case before the Court even reached the merits of their claims.
56
After a short discussion of preliminary events, this Part presents an in-depth examination of the Court’s analysis in
Boumediene and demonstrates the common thread that unifies Justice Kennedy’s seemingly meandering discussion of history and precedent: the central importance of “practical considerations.”
57
A
.
EVENTS LEADING UP TO BOUMEDIENE
In 2004, the Court decided Rasul v. Bush , which held that the federal habeas statute, 28 U.S.C. § 2241, extended to detainees held at Guantanamo Bay.
58
In
Rasul , the government relied chiefly on Johnson v. Eisentrager , in which the
Court denied habeas relief to a group of German enemy aliens who, after
Germany’s surrender in World War II, had been captured in China and convicted of war crimes before military commissions.
59
The Eisentrager Court held that petitioners, who were being held at Landsberg Prison in the American sector of occupied Germany, had no access to habeas because “at no relevant time were [they] within any territory over which the United States is sovereign, and 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.” 60
Justice Stevens, writing for the Rasul majority, acknowledged Eisentrager as precedent but argued that the instant petitioners differed from the Eisentrager petitioners in important respects:
[The Rasul petitioners] are not nationals of countries at war with the United
States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United
States exercises exclusive jurisdiction and control .
61
The way the Rasul Court distinguished Landsberg Prison from Guantanamo
Bay would become important to the majority in Boumediene : Landsberg Prison
56.
See 553 U.S. 723, 775 (2008) (“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.”).
57.
See id.
at 793.
58. 542 U.S. 466, 484 (2004), superseded by statute , Detainee Treatment Act of 2005, Pub. L. No.
109-148, 119 Stat. 2739 (codified as amended at 10 U.S.C. § 801, 28 U.S.C. § 2241, and 42 U.S.C.
§ 2000dd).
59.
See id.
at 475; Johnson v. Eisentrager, 339 U.S. 763, 790–91 (1950).
60.
Eisentrager , 339 U.S. at 778.
61.
Rasul , 542 U.S. at 476 (emphasis added).

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877 was under the joint control of the Allied Powers following World War II, 62 but
Guantanamo Bay, by virtue of its lease with Cuba, is under the “complete jurisdiction and control” of the United States.
63 Based on this fact, Justice
Kennedy’s Rasul concurrence argued that Guantanamo “is in every practical respect a United States territory.” 64
In direct response to Rasul , Congress enacted the Detainee Treatment Act of
2005 (DTA), 65 which purported to strip federal courts of jurisdiction to entertain writs of habeas corpus from detainees at Guantanamo.
66
In June 2006, however, the Supreme Court decided Hamdan v. Rumsfeld , which held that the DTA did not apply to habeas petitions that were already pending at the time of the statute’s enactment.
67 In response to Hamdan , Congress enacted the Military
Commissions Act of 2006 (MCA),
68 which amended the federal habeas statute to strip from federal courts any and all “jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”
69
B
.
JUSTICE KENNEDY
’
S MAJORITY OPINION
In Boumediene , the Court for the first time was faced directly with the issue of whether the Suspension Clause
70 extended the writ of habeas corpus to
Guantanamo Bay.
71 If so, Section 7 of the MCA, which purported to strip all federal courts of jurisdiction to consider writs of habeas corpus from Guantanamo detainees, 72 was an unconstitutional use of Congress’s power to determine the jurisdiction of the federal courts.
73
62.
See Declaration Regarding the Defeat of Germany and the Assumption of Supreme Authority by Allied Powers, U.S.–Fr.–U.S.S.R.–U.K., art. VI, June 5, 1945, 60 Stat. 1649, 3 B
EVANS
1254
[hereinafter German Occupation Treaty], available at http://avalon.law.yale.edu/wwii/ger01.asp.
63. Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval
Stations, U.S.–Cuba, art. III, Feb. 23, 1903, T.S. No. 418 [hereinafter Guantanamo Lease], available at http://avalon.law.yale.edu/20th_century/dip_cuba002.asp.
64.
Rasul , 542 U.S. at 487 (Kennedy, J., concurring).
65.
See Pub. L. No. 109-148, 119 Stat. 2739 (2005) (codified as amended at 10 U.S.C. § 801, 28
U.S.C. § 2241, and 42 U.S.C. § 2000dd).
66.
Id.
at § 1005(c)(1) (codified at 28 U.S.C. § 2241).
67. 548 U.S. 557, 584, n.15 (2006), superseded by statute , Military Commissions Act of 2006, Pub.
L. No. 109-366, 120 Stat. 2600 (2006).
68. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006), invalidated by
Boumediene v Bush, 553 U.S. 723, 792 (2008).
69. 28 U.S.C. § 2241(e)(1) (2006).
70. U.S. C
ONST
. art. I, § 9, cl. 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.”).
71.
Boumediene , 553 U.S. at 732 (“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 . . . .”).
72.
See supra notes 68–69 and accompanying text.
73. Under current doctrine, Congress has authority under the Exceptions Clause to make “Exceptions, and . . . Regulations” to the Supreme Court’s appellate jurisdiction.
See U.S. C
ONST
. art. III, § 2; see also, e.g.
, Ex parte McCardle, 74 U.S. (7 Wall.) 506, 515 (1868). Further, pursuant to the

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Justice Kennedy analyzed the territorial reach of the Suspension Clause in three parts. First, he discussed the territorial reach of the common law writ of habeas corpus, and concluded that the historical evidence was unclear.
74 Next,
Justice Kennedy turned to three key Supreme Court precedents dealing with the extraterritorial reach of the Constitution, and determined that through each of them ran the common theme of “practical considerations.”
75
Finally, from these cases Justice Kennedy derived a three-part functional test for determining the territorial reach of the Suspension Clause, and applied this test to the petitioners.
76
1. Historical Evidence
After answering in the affirmative the threshold question of whether the
MCA in fact purported to strip courts of jurisdiction over habeas actions that were pending at the time of its enactment (as petitioners’ actions had been), 77 the Court turned to the question of whether habeas would have extended to
Madisonian Compromise, which grants Congress discretion whether or not to establish lower federal courts at all, the Court has held that Congress has the authority to restrict lower federal courts’ jurisdiction.
See U.S. C
ONST
. art. I, § 8, cl. 9 (granting Congress power to “constitute Tribunals inferior to the supreme Court”); U.S. C
ONST
. art. III, § 2 (vesting the judicial power of the United States “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish”); R
ICHARD
H. F
ALLON
,
ET AL
., H
ART AND
W
ECHSLER
’
S
T
HE
F
EDERAL
C
OURTS AND THE
F
EDERAL
S
YSTEM
275 (6th ed. 2009) (“Under the resolution reached by the ‘Madisonian Compromise’, Congress is authorized but not obligated to ‘ordain and establish’ federal tribunals ‘inferior’ to the Supreme
Court—a power that has generally been understood to include the power to create lower federal courts vested with less than the maximum jurisdiction that the Constitution would allow.” (quoting U.S.
C
ONST
. art. III, § 2)); see, e.g.
, Sheldon v. Sill, 49 U.S. (8 How.) 441, 448–49 (1850). Courts and commentators have recognized, however, that certain substantive constitutional guarantees impose
“external limits” on Congress’s jurisdiction-stripping power.
See Laurence H. Tribe, Jurisdictional
Gerrymandering: Zoning Disfavored Rights Out of the Federal Courts , 16 H
ARV
. C.R.-C.L. L. R
EV
. 129,
139 (1981) (“Nothing in the text, history, or structure of the Constitution remotely suggests that
[invocation of] Congress’ power over article III jurisdiction . . . should magically give Congress a free ride through the rest of the document.”); see also, e.g.
, Webster v. Doe, 486 U.S. 592, 603 (1988)
(requiring a “heightened showing” of Congressional intent to strip federal courts’ jurisdiction to hear constitutional claims “in part to avoid the ‘serious constitutional question’ that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim”) (citing Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 681 n.12 (1986)); United States v. Klein, 80 U.S.
(13 Wall.) 128, 145–46 (1871) (suggesting that jurisdiction-stripping legislation enacted “as a means to an end” that is itself constitutionally impermissible “is not an exercise of the acknowledged power of
Congress to make exceptions and prescribe regulations to the appellate power”); cf.
Williams v.
Rhodes, 393 U.S. 23, 29 (1968) (“[T]he Constitution is filled with provisions that grant Congress or the
States specific power to legislate in certain areas; these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the
Constitution.”).
74.
Boumediene , 553 U.S. at 746–52.
75.
Id.
at 756–64.
76.
Id.
at 766–67.
77.
Id.
at 736–39.

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879 petitioners at common law.
78 To begin this inquiry, the Court outlined a brief history of the writ in England, from its origins in Magna Carta, through the
Habeas Corpus Act of 1679, and finally to its adoption by the Framers in the
Constitution.
79
Following this historical account, the Court turned to the specific question of
“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.”
80
The government argued that at common law the writ extended only to places within the sovereign realm of England; petitioners contended that “jurisdiction followed the King’s officers.”
81
In particular, petitioners pointed to India, where “British judges . . . issued the writ in favor of Indian petitioners, even though the Crown had not asserted formal sovereignty over India and did not do so until 1813.” 82 The Court rejected this argument, noting that a special court, the Supreme Court of Judicature, had been set up by Parliament in India during the British Raj and sat in Calcutta, “but no federal court sits at Guantanamo.”
83
Of more use to petitioners were the examples of Scotland and Hanover— territories that were not part of England but were nevertheless controlled by the
King. The government argued that these territories, to which the writ did not extend at common law, were more analogous to Guantanamo than was India.
84
The Court rejected this analogy, however, pointing out the key difference between places like Scotland and places like Canada and Ireland, which were outside England but to which habeas corpus did extend: Scotland and Hanover maintained their own laws and court systems, while Canada and Ireland operated under English common law.
85 Because of this difference in laws, the Court noted, “ prudential considerations would have weighed heavily when courts sitting in England received habeas petitions from Scotland or [Hanover].” 86 In
Guantanamo, however, “[n]o Cuban court has jurisdiction to hear these petitioners’ claims, and no law other than the laws of the United States applies at the naval station.”
87
In the end, the Court concluded that the historical evidence was unavailing, and that “given the unique status of Guantanamo Bay and the particular dangers of terrorism in the modern age, the common-law courts simply may not have
78.
Id.
at 739–40; see also Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289, 301 (2001)
(acknowledging that “at the absolute minimum, the Suspension Clause protects the writ ‘as it existed in
1789’” (quoting Felker v. Turpin, 518 U.S. 651, 663–64 (1996))).
79.
Boumediene , 553 U.S. at 739–46.
80.
Id.
at 746.
81.
Id.
82. Brief for Petitioners at 12, Boumediene v. Bush, 553 U.S. 723 (2008) (No. 06-1195).
83.
Boumediene , 553 U.S. at 748–49.
84.
Id.
at 749.
85.
Id.
at 749–51.
86.
Id.
at 750 (emphasis added).
87.
Id.
at 751.

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[Vol. 99:869 confronted cases with close parallels to this one.” 88 The Court then turned to face the question at the heart of its inquiry: whether the fact that the United
States’ lease with Cuba expressly disclaims de jure sovereignty over Guantanamo Bay should end the inquiry and prevent the Suspension Clause from affording petitioners any rights to habeas relief.
89 The Court rejected this argument, and while acknowledging that de jure sovereignty is a political question and therefore beyond the scope of its inquiry, held that the analysis did not end there and that prior precedent did not make it “improper” for the Court to “inquire into the objective degree of control the Nation asserts over foreign territory.”
90
The Court then announced that it would “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.”
91
“Were we to hold that the present cases turn on the political question doctrine,” the Court continued, 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. . . . [T]he 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.
92
This emphatic rejection of formalism as a means of determining the reach of the Suspension Clause is key to understanding Justice Kennedy’s majority opinion. Any recognition of de jure sovereignty as the “touchstone” of habeas jurisdiction would have ended the inquiry right there, as the Court would have been forced to hold the matter a nonjusticiable political question.
93
Instead, the heart of Justice Kennedy’s opinion lay in its repeated assertions that “practical considerations,” not formalism, would guide the Court’s inquiry. Practical considerations, Justice Kennedy explained, informed the analysis of English common law courts in determining the status of habeas in Scotland, Hanover,
Canada, and Ireland, 94 and as the Court’s analysis of its own precedents would show, they were important to habeas jurisdiction under the U.S. Constitution as well.
95
88.
Id.
at 752.
89.
Id.
at 753; s ee also Guantanamo Lease, supra note 63 (recognizing “the ultimate sovereignty of the Republic of Cuba” over the leasehold).
90.
Boumediene , 553 U.S. at 754.
91.
Id.
at 755.
92.
Id.
93.
See id.
; see also id.
at 753 (recognizing that “in other contexts the Court has held that questions of [de jure] sovereignty are for the political branches to decide”).
94.
See supra notes 84–87 and accompanying text.
95.
See infra section II.B.2.

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2. Supreme Court Precedent
After finishing its historical analysis, the Court examined three key precedents: the Insular Cases , Reid v. Covert , and Johnson v. Eisentrager .
96 Each case, in its own way, showed that the extraterritorial application of Constitutional provisions, including the Suspension Clause, turned not on formalism but on practical considerations.
The Court’s doctrinal analysis began with the Insular Cases , a series of cases decided in the early twentieth century over the question of whether the Constitution should extend in full force to territories the United States acquired during the Spanish–American War, including Puerto Rico and the Philippines.
97
These cases 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.” 98
Justice Kennedy explained that the Court’s decision in the Insular Cases — that Puerto Rico and the Philippines were “unincorporated” territories 99 — largely turned on the fact that prior to their cession to the United States, the two former Spanish colonies had operated under a civil-law system and lacked
“experience in the various aspects of the Anglo-American legal tradition. . . . At least with regard to the Philippines, a complete transformation of the prevailing legal culture would have been not only disruptive but also unnecessary, as the
United States intended to grant independence to that Territory.” 100 This recognition of “practical difficulties,” which led the Court in the Insular Cases to devise “a doctrine that allowed it to use its power sparingly and where it would be most needed,” would “inform” the Court’s analysis in the present case.
101
“Practical considerations,” Justice Kennedy observed, “likewise influenced the Court’s analysis”
102 in Reid v. Covert , a 1957 decision in which the Court declared that the jury trial provisions of the Fifth and Sixth Amendments applied to citizens outside the United States.
103
The respondent in Reid , Mrs.
Clarice Covert, killed her husband, who was a sergeant in the United States Air
Force, at an airbase in England.
104
Mrs. Covert—a civilian—was tried by court-martial for murder under the Uniform Code of Military Justice, before a
96.
Boumediene , 553 U.S. at 754–56.
97.
Id.
at 756–57. The Insular Cases include Dorr v. United States , 195 U.S. 138 (1904); Hawaii v.
Mankichi , 190 U.S. 197 (1903); Downes v. Bidwell , 182 U.S. 244 (1901); Armstrong v. United States,
182 U.S. 243 (1901); Dooley v. United States , 182 U.S. 222 (1901); De Lima v. Bidwell , 182 U.S. 1
(1901).
98.
Boumediene , 553 U.S. at 757; see also Dorr , 195 U.S. at 143 (holding that Congress has power to govern unincorporated territories “subject to such constitutional restrictions upon the powers of that body as are applicable to the situation ” (emphasis added)).
99.
Boumediene , 553 U.S. at 758.
100.
Id.
at 757.
101.
Id.
at 759.
102.
Id.
103.
See Reid v. Covert, 354 U.S. 1, 18–19 (1957) (plurality opinion).
104.
Id.
at 3.

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[Vol. 99:869 jury of Air Force officers.
105 After Mrs. Covert was convicted, she was brought to Washington, D.C. for a proposed retrial by court-martial; there, her counsel petitioned the D.C. District Court for a writ of habeas corpus, on the ground that the Constitution forbade trials of civilians by military authorities.
106
The District Court granted the writ, and while the appeal was pending in the Court of
Appeals for the Fourth Circuit the government appealed to the Supreme Court, which granted certiorari and affirmed.
107
Justice Black, writing for a four-justice plurality, began his opinion by rejecting “the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights.”
108
“When the Government reaches out to punish a citizen who is abroad,” he wrote, “the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land.” 109 Justice
Black acknowledged the Insular Cases , but argued that they were inapposite because they involved the power of Congress to provide rules and regulations
“temporarily” for “territories with wholly dissimilar traditions and institutions.” 110 Since none of the Insular Cases dealt with military trials, they could not “properly be used as vehicles to support an extension of military jurisdiction to civilians.” 111 Justice Black then went further, and announced that “neither the cases nor their reasoning should be given any further expansion,” because
[t]he concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our government. If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the method which it prescribes. But we have no authority, or inclination, to read exceptions into it which are not there.
112
Although four Justices saw Reid as involving textual absolutes, Justice
Kennedy characterized the concurring opinions of Justices Harlan and Frankfurter, whose votes were necessary to the disposition of the case, as emphasizing “practical considerations, related not to the petitioners’ citizenship but to the
105.
Id.
106.
Id.
at 4.
107.
Id.
at 4–5.
108.
Id.
at 5.
109.
Id.
at 6.
110.
Id.
at 14.
111.
Id.
112.
Id.
(footnote omitted).

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883 place of their confinement and trial.” 113 The key disagreement between the plurality and the concurring Justices in Reid was the precedential value of In re
Ross , 114 a nineteenth-century case involving a sailor who was tried before an
American consular tribunal for the murder of a fellow crewman while on board an American merchant vessel.
115 The Ross Court upheld the tribunal’s jurisdiction; 116 sixty-six years later in Reid , both Harlan and Frankfurter saw that result dictated by prudence.
117
The Boumediene Court interpreted this fractured result in Reid as evidence of a foundation of “practical considerations.” 118 “If citizenship had been the only relevant factor in the case,” Justice Kennedy wrote, “it would have been necessary for the Court to overturn Ross , something Justices Harlan and Frankfurter were unwilling to do.”
119
To Justice Kennedy, then, Reid was not only a case in which the Court was willing to apply the Constitution extraterritorially, but one in which it did so by rejecting formalism and embracing practicality.
Finally, the Court examined Johnson v. Eisentrager , 120 which the Court characterized as another case in which “practical considerations weighed heavily.” 121 In its Boumediene brief, the government argued that the Eisentrager
Court relied on the fact that “‘at no relevant time’” were the petitioners “‘within any territory over which the United States is sovereign.’” 122 The Court, however, countered that “it is far from clear that the Eisentrager Court used the term sovereignty only in the narrow technical sense and not to connote the degree of control the military asserted over the facility.”
123
Rather, the Eisentrager Court
“would have understood sovereignty as a multifaceted concept.” 124
Justice Kennedy also argued that the fact that much of Eisentrager dealt with
113.
Boumediene , 553 U.S. at 760; see also Reid , 354 U.S. at 41 (Frankfurter, J., concurring in the judgment); id.
at 65 (Harlan, J., concurring in the judgment).
114.
In re Ross, 140 U.S. 453 (1891).
115.
Boumediene , 553 U.S. at 760. Although the petitioner was a British subject, the maritime custom at the time required he receive the “protection [of] and [be] subject to the laws of the United
States equally with the seaman who was native born.” In re Ross , 140 U.S. at 479.
116.
In re Ross , 140 U.S. at 479.
117.
See Reid , 354 U.S. at 64 (Frankfurter, J., concurring in the judgment) (“The consular court jurisdiction . . . was exercised in countries whose legal systems at the time were considered so inferior that justice could not be obtained in them by our citizens. The existence of these courts was based on long-established custom and they were justified as the best possible means for securing justice for the few Americans present in those countries.” (emphasis added)); id.
at 75 (Harlan, J., concurring in the judgment) (“[W]hat Ross and the Insular Cases hold is that the particular local setting, the practical necessities , and the possible alternatives are relevant to a question of judgment, namely, whether jury trial should be deemed a necessary condition of the exercise of Congress’ power to provide for the trial of Americans overseas.” (emphasis added)).
118.
Boumediene , 553 U.S. at 761.
119.
Id at 761–62 .
120. 339 U.S. 763 (1950).
121.
Boumediene , 553 U.S. at 762.
122. Brief for Respondents at 19, Boumediene v. Bush, 553 U.S. 723 (2008) (Nos. 06-1195 &
06-1196) (quoting Eisentrager , 339 U.S. at 778).
123.
Boumediene , 553 U.S. at 763.
124.
Id.

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“ practical barriers to the running of the writ” suggested that the Court was “not concerned exclusively with the formal legal status of Landsberg Prison but also with the objective degree of control the United States asserted over it.” 125 He continued:
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. Were that the case, there would be considerable tension between Eisentrager , on the one hand, and the Insular Cases and Reid , on the other. Our cases need not be read to conflict in this manner. 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.
126
Here again, Justice Kennedy makes explicit his rejection of formalism as a means of determining the reach of the Suspension Clause, and his embrace of case-by-case analysis.
3. Applying the Factors
Based on its determination that Eisentrager turned on the “objective degree of control” the United States asserted over Landsberg Prison, 127 the Court laid out a three-factor test to determine the reach of the Suspension Clause, which it based on the six factors 128 the Eisentrager Court found relevant about its petitioners:
[W]e 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.
129
125.
Id.
(emphases added).
126.
Id.
at 764.
127.
Id.
at 763.
128. The Eisentrager Court found it 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.
339 U.S. at 777 (paragraph rendered into list form).
129.
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In applying the first of these factors, the Boumediene Court noted first that the status of the detainees, unlike those in Eisentrager , was a matter of dispute: while the Eisentrager petitioners did not challenge their status as “enemy aliens,” the Boumediene petitioners denied that they were enemy combatants.
130
The legality of the Eisentrager detainees’ detention was determined by a
“rigorous adversarial process” in which they received actual notice of the allegations against them, representation by counsel, the ability to introduce evidence on their own behalf, and the right to cross-examine the prosecution’s witnesses.
131 The status of the Boumediene petitioners, on the other hand, was determined by a Combatant Status Review Tribunal (CSRT), which the Court described as falling “well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review.”
132
The Court explained:
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 accorded a 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.
133
Turning to the second factor, the Court noted that petitioners were similar to the Eisentrager detainees in that the sites of their apprehension and detention were “technically outside the sovereign territory of the United States,” but pointed to “critical differences” between Guantanamo Bay and Landsberg
Prison that distinguished the two situations.
134 As the Court did in Rasul , Justice
Kennedy noted that Landsberg Prison was under the joint control of Allied forces after World War II, while Guantanamo Bay is under the “complete jurisdiction and control” of the United States pursuant to its lease with Cuba.
135
Evoking the Insular Cases , the Court further noted that the Allies “had not planned a long-term occupation of Germany, nor did they intend to displace all
German institutions even during the period of occupation.” 136 Guantanamo, on the other hand, “is no transient possession. In every practical sense Guantanamo is not abroad; it is within the constant jurisdiction of the United States.” 137
As to the third factor, the Court noted two important differences between the instant case and Eisentrager . First, although “there are costs to holding the
130.
Id.
131.
Id.
at 767.
132.
Id.
133.
Id.
(citations omitted).
134.
Id.
at 768.
135.
Id.
at 768–69; see also supra notes 61–64 and accompanying text.
136.
Boumediene , 553 U.S. at 768.
137.
Id.
at 768–69.

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Suspension Clause applicable in a case of military detention abroad,” the costs at Guantanamo, a secure facility, would be far less than they would have been in post-war occupied Germany, where the Eisentrager Court “was right to be concerned about judicial interference with the military’s efforts to contain
‘enemy elements, guerilla fighters, and “were-wolves.”’” 138 Second, whereas a grant of habeas to the Eisentrager petitioners might have caused “friction” with the host country and with other Allied forces, the Court found “no indication . . . that adjudicating a habeas corpus petition would cause friction with the [Cuban] government,” because “[n]o Cuban court has jurisdiction over
American military personnel at Guantanamo or the enemy combatants detained there. . . . [T]he United States is, for all practical purposes, answerable to no other sovereign for its acts on the base.”
139
Taking all three factors into account, the Court held that the Suspension
Clause “has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before [the Court], Congress must act in accordance with the requirements of the Suspension Clause.”
140
III. A
PPLYING
B
OUMEDIENE TO
O
THER
D
ETENTION
S
ITES
Although the functional test that Justice Kennedy outlined in Boumediene seemed straightforward enough, there was disagreement afterwards among scholars and practitioners over its application and over whether the Court had, as it claimed to have done, actually rejected sovereignty as the formalistic
“touchstone” of habeas. This Part examines two different perspectives on this issue—one scholarly, and one jurisprudential—and argues that Boumediene is best understood as just what it claims to be: a real-world application of objective and functional factors to the question of the Suspension Clause’s extraterritorial reach.
A
.
DID BOUMEDIENE REALLY REJECT FORMALISM?
In April 2009, Southern Methodist University law professor Anthony Colangelo wrote an article which purported to explain the seeming contradiction of the Court’s discussion of “de facto sovereignty” followed by its announcement of a multi-factor test which seemed to ignore sovereignty altogether.
141
In this article, Professor Colangelo suggests that the Boumediene Court employed de facto sovereignty in a specific and unique way, and that this use “may hold a key to unlocking some of the mystery behind whether the Court will find habeas to extend to noncitizens in other situations of extraterritorial detention.”
142
138.
Id.
at 769–70 (quoting Johnson v. Eisentrager, 339 U.S. 763, 784 (1950)).
139.
Id.
at 770.
140.
Id.
at 771.
141. Anthony J. Colangelo, “ De facto Sovereignty”: Boumediene and Beyond , 77 G
EO
. W
ASH
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. 623, 626–27 (2009).
142.
Id.
at 624.

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Professor Colangelo bases his article on a tripartite theory of jurisdiction: (1) de jure sovereignty, which the Boumediene court referred to as “formal” or
“technical” sovereignty and is a pure political question; (2) “practical sovereignty,” which means “practical control” over an area and is completely open to judicial inquiry; and (3) “de facto” sovereignty, which means “ both practical control and jurisdiction over a territory, such that the de facto sovereign’s laws and legal system govern the territory,” and which Colangelo refers to as a
“type” of political question.
143
Although a court may not inquire into de facto sovereignty on its own, Colangelo argues, it may “look to political branch determinations establishing jurisdiction and control over a territory to conclude that de facto sovereignty exists.” 144
Colangelo claims that this is exactly what the Boumediene Court did when it rejected de jure sovereignty as the “touchstone of habeas corpus jurisdiction,”
145 and then “[took] 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”
146 at Guantanamo Bay:
One might be tempted to read the Court as saying that sovereignty is not the touchstone of habeas. But that is not what the Court said; rather, it said specifically “de jure sovereignty” is not the touchstone. This specific choice of terms is difficult to ignore given the entire section is devoted to distinguishing
Cuba’s de jure sovereignty in the lease from other types of sovereignty—in particular, the sovereignty the United States maintains over Guantanamo. If sovereignty were not important, it would be strange for the Court to go out of its way to develop and distinguish another type of sovereignty from the sovereignty in the lease. The Court, in other words, did not respond to the government by saying sovereignty is not important; instead, it responded by saying the specific type of sovereignty you’re talking about is not pivotal, because there is another type of sovereignty that is relevant.
147
This “obvious and uncontested fact” of which Justice Kennedy “[took] notice,” of course, was the clause in the United States’ lease with Cuba providing for “complete jurisdiction and control” by the United States.
148
This combination of plenary control and plenary jurisdiction (as the Court noted, “no law other than the laws of the United States applies at the naval station”)
149 helps to explain the dichotomy the Court noted in the status at common law between, on the one hand, Scotland and Hanover, and on the other, Ireland and
143.
Id.
at 625–26.
144.
Id.
at 626.
145.
Boumediene , 553 U.S. at 755.
146.
Id.
147. Colangelo, supra note 141, at 635 (emphasis added).
148.
Boumediene , 553 U.S. at 755; see also Guantanamo Lease, supra note 63.
149.
Boumediene , 553 U.S. at 751.

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Canada.
150 According to Colangelo’s theory, the Court’s explanation of the difference between these two sets of locations—that Ireland and Canada were common law jurisdictions while Scotland and Hanover had their own legal systems—was correct, but missed the final step of the analysis: this difference in jurisdiction meant that England had de facto sovereignty for purposes of habeas jurisdiction over Ireland and Canada, but not Scotland and Hanover.
151
Toward the end of his article, Professor Colangelo takes his theory of concurrent sovereignty and uses it to determine whether the United States has de facto sovereignty over bases in Afghanistan, such as Bagram Airfield.
152
Colangelo examines the Status of Forces Agreement (SOFA) the United States has with Afghanistan, and concludes that because the SOFA: may be revoked by the Afghani government, does not purport to create territorial jurisdiction but only applies to a limited class of U.S. persons, does not otherwise displace Afghanistan’s legislative jurisdiction over its territory, and indeed even preserves Afghani judicial jurisdiction over U.S. personnel covered by the agreement for civil and administrative actions concerning activity outside of their official duties, the SOFA does not establish “complete jurisdiction” by the United States over any Afghani territory.
153
Therefore, Colangelo argues, “if the Court continues to use the jurisdictional aspect of de facto sovereignty to inform the constitutional scope of habeas, as it did in Boumediene ,” detainees at places like Bagram “likely will not constitutionally have access to the writ.”
154
B
.
EXTENDING THE SUSPENSION CLAUSE TO AFGHANISTAN
In early 2009, Judge John D. Bates of the United States District Court for the
District of Columbia—bound by the holding in Boumediene —was faced with this very issue in Al Maqaleh v. Gates , and proved to be unpersuaded by any formalistic analysis like that of Professor Colangelo.
155
The Al Maqaleh petitioners were foreign nationals captured outside of Afghanistan, yet held at Bagram
Airfield in Afghanistan for six years or more.
156
In order to determine whether the court had jurisdiction over petitioners’ habeas claims—in other words, whether habeas ran to Bagram—Judge Bates immediately turned to the three
Boumediene factors, 157 which he split up for purposes of his analysis into six factors:
150.
See supra notes 84–87 and accompanying text.
151. Colangelo, supra note 141, at 657–59.
152.
Id.
at 667–69.
153.
Id.
at 668.
154.
Id.
at 667–68.
155.
See 604 F. Supp. 2d 205 (D.D.C. 2009), rev’d , 605 F.3d 84 (D.C. Cir. 2010).
156.
Id.
at 207.
157.
See supra notes 128–40 and accompanying text.

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(1) the citizenship of the detainee;
(2) the status of the detainee;
(3) the adequacy of the process through which the status determination was made;
(4) the nature of the site of apprehension;
(5) the nature of the site of detention; and
(6) the practical obstacles inherent in resolving the petitioner’s entitlement to the writ.
158
As to factors one, two, and four, Judge Bates found the petitioners “situated no differently than the detainees in Boumediene.
” 159 No petitioner was a U.S.
citizen; each petitioner had been determined to be an “enemy combatant” and each contested this label; and all petitioners were held “‘outside the sovereign territory of the United States.’” 160 As to the “adequacy of process” factor, Judge
Bates determined that the process used for status determinations at Bagram was even “less comprehensive than the CSRT process used for the Guantanamo detainees.” 161 He explained:
Unlike a CSRT, where a petitioner has access to a “personal representative,”
Bagram detainees represent themselves. Obvious obstacles, including language and cultural differences, obstruct effective self-representation by petitioners such as these. Detainees cannot even speak for themselves; they are only permitted to submit a written statement. But in submitting that statement, detainees do not know what evidence the United States relies upon to justify an “enemy combatant” designation—so they lack a meaningful opportunity to rebut that evidence.
162
Turning to the “site of detention” factor, Judge Bates observed that the
“touchstone” of the determination “is the ‘objective degree of control’ the
United States has over Bagram.” 163 To assess the objective degree of control,
Judge Bates surmised that he had to determine “whether Bagram is more like
Guantanamo Bay . . . or like Landsberg Prison.” 164 He noted at the outset that
“the United States appears to have near-total operational control at Bagram,” 165 but then went on to observe that the SOFA between the United States and
Afghanistan does not confer jurisdiction that is “quite as plenary” as does the
United States’ lease for Guantanamo Bay, 166 which gives the United States
158.
Al Maqaleh , 604 F. Supp. 2d at 214–15 (paragraph rendered into list form).
159.
Id.
at 217–18.
160.
Id.
at 218 (quoting Boumediene v. Bush, 553 U.S. 723, 768 (2008)).
161.
Id.
at 227.
162.
Id.
163.
Id.
at 221 (quoting Boumediene , 753 U.S. at 754).
164.
Id.
165.
Id.
at 222.
166.
Id.
at 223.

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“complete jurisdiction and control” over the area.
167
At this point, if Judge Bates had subscribed to the theory of habeas jurisdiction set forth by Professor Colangelo, 168 he would have been forced to conclude that, because the United States lacks “complete jurisdiction and control” over
Bagram Airfield, the United States does not maintain de facto sovereignty over the base, and therefore habeas should not lie. Instead, Judge Bates concluded that these differences in control and jurisdiction . . . do not significantly reduce the
“objective degree of control” the United States has at Bagram. The existence of a SOFA and the presence of non-U.S. personnel does not affect the actual control the United States exercises at the Bagram detention facility, which is practically absolute. . . . “Jurisdiction,” like “sovereignty,” is merely a label, and Boumediene rejected the argument that a label like “sovereignty” is determinative in assessing the reach of the Suspension Clause.
169
It is thus apparent that Judge Bates subscribes to a different theory of
Boumediene ’s holding than does Professor Colangelo. Instead of reading Boumediene to reject de jure sovereignty as the touchstone of habeas and substitute in its place a new theory of de facto sovereignty,
170
Judge Bates read Boumediene as a pure multi-factor totality-of-the-circumstances test. The question then becomes: who is right? For if Professor Colangelo’s theory prevails, then the necessary conclusion is that, under the holding of Boumediene , Guantanamo is sui generis and habeas will not run to places like Bagram without a new
Supreme Court decision. As a matter of fairness, Judge Bates’s application of
Boumediene seems preferable: if Boumediene were really about Guantanamo and only Guantanamo, and the Executive can merely ship everyone at Camp
Delta to somewhere like Bagram and be free of habeas corpus concerns, then
Boumediene would have accomplished very little.
This seeming impasse resolves itself when one recognizes that Justice Kennedy, himself an avowed pragmatist during his tenure on the Court, 171 was serious
167. Guantanamo Lease, supra note 63.
168.
See supra section III.A.
169.
Al Maqaleh , 604 F. Supp. 2d at 223 (citation omitted).
170.
See supra notes 143–47 and accompanying text.
171.
See, e.g.
, Rapanos v. United States, 547 U.S. 715, 782 (2006) (Kennedy, J., concurring)
(arguing for a “case-by-case” determination of federal Commerce Clause jurisdiction over wetlands adjacent to non-navigable tributaries); Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 124
(2005) (Ginsberg, J., dissenting) (objecting, with Justice Kennedy, to criticisms of balancing tests as
“rudderless” and pointing out that “one must ask, as in life’s choices generally, what is the alternative”);
United States v. Lopez, 514 U.S. 549, 573–74 (1995) (Kennedy, J., concurring) (acknowledging the
Court’s “definitive commitment” to a “practical conception” of the Commerce Clause); Lucas v. South
Carolina Coastal Council, 505 U.S. 1003, 1033–35 (1992) (Kennedy, J., concurring in the judgment)
(rejecting the majority’s per se total-loss-of-value test in Takings Clause cases in favor of a balancing of state regulatory interests against property owners’ “reasonable, investment-backed expectations”); Lee v. Weisman, 505 U.S. 577, 595 (1992) (“Law reaches past formalism. And to say a teenage student has

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891 when he announced that the Court was rejecting formalism and replacing it with
“objective factors and practical concerns.”
172
Professor Colangelo, despite his in-depth treatment of the subject, sees in Boumediene a formalism that is simply not there. Judge Bates, on the other hand, recognized in Al Maqaleh that under
Boumediene , although courts must “accord proper deference to the political branches, particularly during conflicts abroad,” “the courts still must fulfill their responsibility to review” the actions of those branches, 173 and that to do so entails the rejection of formalism and the embrace of Boumediene ’s “multifactor functional test.” 174
In May 2010, the D.C. Circuit reversed Judge Bates’s decision on the merits, and dismissed the writs that had been issued to the Al Maqaleh detainees.
175
Even a superficial reading of Chief Judge Sentelle’s opinion, however, reveals that the panel generally agreed with Judge Bates as to the correct reading of
Boumediene , and that it was the way that Judge Bates weighed the Boumediene factors, not the factors themselves, that caused the case’s reversal.
At the outset, the panel noted that “each of the parties has asserted both an extreme understanding of the law after Boumediene and a more nuanced set of arguments.”
176
The Obama Administration had argued that the Boumediene
Court had considered Guantanamo to be a location uniquely within the complete control of the United States, and that “where, as here, detainees seek to extend the reach of the Suspension Clause to a location that does not share
Guantanamo’s defining attributes, and that resembles, instead, the detention facilities the United States has maintained in foreign countries during past wars, petitioners should bear a heavy burden” to justify the extension.
177
The court, however, rejected this invitation to reduce Boumediene to a formalist, brightline test, noting instead that “the Court in Boumediene expressly repudiated the argument of the United States in that case to the effect ‘that the Eisentrager
Court adopted a formalistic, sovereignty-based test for determining the reach of the Suspension Clause.’” 178
The court then turned to Boumediene ’s three-factor test.
179
On the first factor, the “‘citizenship and status of the detainee and the adequacy of the process through which that status determination was made,’”
180 the D.C. Circuit panel a real choice not to attend her high school graduation is formalistic in the extreme.”); see also Akhil
Reed Amar, Justice Kennedy and the Ideal of Equality , 28 P
AC
. L.J. 515, 530 (1997) (describing Justice
Kennedy’s majority opinion in Romer v. Evans as “an elegant blending of legal formalism and legal realism at their best”).
172.
Boumediene v. Bush , 553 U.S. 723, 764 (2008).
173.
Al Maqaleh , 604 F. Supp. 2d at 208.
174.
Id.
at 207.
175.
See Al Maqaleh v. Gates, 605 F.3d 84, 99 (D.C. Cir. 2010).
176.
Id.
at 94.
177. Brief for Respondents-Appellants at 28, Al Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010)
(Nos. 09-5265, 09-5266, 09-5277).
178.
Al Maqaleh , 605 F.3d at 94 (quoting Boumediene v. Bush, 553 U.S. 723, 762 (2008)).
179.
Id.
at 95.
180.
Id.
(quoting Boumediene , 553 U.S. at 766).

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[Vol. 99:869 found, as Judge Bates had, that (1) the instant petitioners’ citizenship status
“differ[ed] in no material respect from the petitioners at Guantanamo”;
181 and (2) “[s]o far as the adequacy of the process through which [their] status determination was made, the petitioners are in a stronger position for the availability of the writ than were either the Eisentrager or Boumediene petitioners.”
182
On the second and third Boumediene factors, however, the court disagreed with Judge Bates’s analysis. As to the nature of Bagram itself, the panel found
“no indication [on the part of the United States] of any intent to occupy the base with permanence, nor is there hostility on the part of the ‘host’ country.”
183
The court believed that this difference between Bagram and Guantanamo caused the site-of-detention factor to weigh in favor of the United States, but not dispositively so.
184 What the court did find determinative, however, were the “‘practical obstacles’” inherent in granting the writ to detainees in Bagram.
185
“It is undisputed,” Chief Judge Sentelle wrote, “that Bagram, indeed the entire nation of Afghanistan, remains a theater of war. . . . The United States asserts, and petitioners cannot credibly dispute, that all of the attributes of a facility exposed to the vagaries of war are present in Bagram.”
186
Although acknowledging the detainees’ argument that the United States chose the place of detention and therefore might be able “to evade judicial review of Executive detention decisions by transferring detainees into active conflict zones, thereby granting the Executive ‘the power to switch the Constitution on or off at will,’”
187 the panel decided that it “need make no determination on the importance of this possibility, given that it remains only a possibility; its resolution can await a case in which the claim is a reality rather than a speculation.” 188
IV. W
AS
B
OUMEDIENE
J
USTICIABLE
?
If Judge Bates was correct to read Boumediene as announcing a practical test—and the D.C. Circuit’s review of his opinion, its ultimate disposition aside, seems to have confirmed that he was—the question remains: was Boumediene right to hold that its decision was not barred by the political question doctrine?
189 Perhaps the answer lies in a case that, although never mentioned by name in Boumediene , nonetheless must have informed the Court’s analysis:
181.
Id.
at 96.
182.
Id.
183.
Id.
at 97.
184.
Id.
185.
Id.
(quoting Boumediene , 553 U.S. at 766).
186.
Id.
187. Joint Brief for Petitioners-Appellees at 34, Al Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010)
(Nos. 09-5265, 09-5266, 09-5277) (quoting Boumediene , 553 U.S. at 765).
188.
Al Maqaleh , 605 F.3d at 98.
189.
See Boumediene , 553 U.S. at 755 (“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.”).

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Baker v. Carr .
190 As discussed above in Part I, the Baker Court outlined six factors which serve to identify cases involving political questions:
[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or
[2] a lack of judicially discoverable and manageable standards for resolving it; or
[3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or
[4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or
[5] an unusual need for unquestioning adherence to a political decision already made; or
[6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
191
As Professor Lawrence Tribe has argued, these six factors reflect “at least three different theories of the role of the Court (as well as federal courts generally) with regard to the other branches of the government.”
192
The first factor, the existence of a “textually demonstrable” commitment of an issue to a
“coordinate political department,” Tribe argues, reflects a classical view of the role of the Court—one that would “impose on the Court the requirement of deciding all cases and issues before it unless the Court finds . . . that the
Constitution itself has committed the determination of the issue to the autonomous decision of another branch or agency of government.”
193
The second two factors show a functional approach, which would have the Court consider factors such as judicial access to information, the need for uniformity of decision, and the wider responsibilities of government, when determining whether to decide a certain issue or case.
194
Finally, the last three factors reflect a prudential view of the Court’s role, which would treat the political question doctrine as a means to avoid undermining the Court’s authority or forcing it to compromise an important principle.
195 This Part will consider these three views of the federal judiciary and will argue that the Boumediene Court—if it had discussed the issue of justiciability under Baker v. Carr —would have been able to show, under each view, that the question of whether the Suspension Clause reached detainees at Guantanamo is a justiciable one.
190. 369 U.S. 186 (1962); see also supra notes 31–35 and accompanying text.
191.
Baker , 369 U.S. at 217 (numbers added and paragraph rendered into list form).
192.
See T
RIBE
, supra note 30, § 3-13, at 366.
193.
Id.
at 366 & n.6.
194.
Id.
195.
Id.

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A
.
TEXTUAL CONSIDERATIONS
Under the first Baker factor, a political question can be demonstrated by the existence of a “textually demonstrable constitutional commitment of [an] issue to a coordinate political department.”
196 trate the issue: Powell v. McCormack 197
Two Supreme Court cases help illusand Nixon v. United States 198 (discussed in detail in Part I).
In Powell , the Court held that it could inquire into the constitutionality of a
House resolution preventing Adam Clayton Powell, Jr., who had been elected to the House from New York, from taking his seat.
199 It was conceded that Powell met the membership requirements of Article I, Section 2, but he was denied his seat on the basis of a House Committee report that found he had committed wrongdoings during his prior terms in the House.
200
Powell then sued for a declaration that his exclusion was unconstitutional because, he claimed, Article
I, Section 2 “sets forth the exclusive qualifications for membership.”
201
The Supreme Court agreed with Powell that the case did not present a political question.
202
Chief Justice Warren, writing for the Court, held that
Article I, Section 5, which provides that “[e]ach House shall be the Judge of the . . . Qualifications of its own Members,”
203 is “at most a ‘textually demonstrable commitment’ to Congress to judge only the qualifications expressly set forth in the Constitution,”
204 and that allowing the House to deny Powell a seat by simple majority vote “would effectively nullify the Convention’s decision to require a two-thirds vote for expulsion.”
205
Given the lack of a “textually demonstrable commitment” to the House of plenary decision-making power in this arena, the Court held the case justiciable.
206
In Nixon v. United States , however, the Court refused to decide a case brought by a former federal judge alleging that the Senate violated the Constitution during his impeachment trial by delegating to a select committee the task of hearing the testimony of witnesses against him.
207
Nixon claimed that Article I,
Section 3, which grants the Senate the “sole Power to try all Impeachments,” 208
196.
Baker , 369 U.S. at 217.
197. 395 U.S. 486 (1969).
198. 506 U.S. 224 (1993).
199.
Powell , 395 U.S. at 489, 512.
200.
Id.
at 492–93.
201.
Id.
at 493; see also U.S. C
ONST
. art. I, § 2, cl. 2 (“No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”).
202.
Powell , 395 U.S. at 548.
203. U.S. C
ONST
. art. I, § 5, cl. 1.
204.
Powell , 395 U.S. at 548.
205.
Id.
; see also U.S. C
ONST
. art. I, § 5, cl. 2 (“Each House may determine the Rules of its
Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”).
206.
Powell , 395 U.S. at 549.
207. Nixon v. United States, 506 U.S. 224, 226 (1993).
208. U.S. C
ONST
. art. I, § 3, cl. 6.

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“imposes by implication an additional requirement on the Senate in that proceedings must be in the nature of a judicial trial” and thereby prevents the Senate from delegating the hearing of testimony to a select committee, as it did.
209 But
Chief Justice Rehnquist, writing for the Court, held that the grant of Article I,
Section 3 to the Senate of “the sole Power to try all Impeachments” 210 constituted a textually demonstrable commitment of that power to the Senate, and that the case was therefore nonjusticiable.
211
The phrase “habeas corpus” appears only once in the Constitution: the
Suspension Clause of Article I, Section 9, which provides an exception to the general rule that the writ of habeas corpus may not be suspended.
212
President
Lincoln attempted to use this provision to suspend habeas corpus in and around
Baltimore during the Civil War, but he was rebuffed by Chief Justice Taney who, sitting as a circuit judge in Maryland, held that the Clause’s placement in
Article I meant that only Congress had the power to invoke it.
213
Although
President Lincoln simply ignored Taney’s ruling, and Congress retroactively authorized Lincoln’s actions two years later,
214
Ex parte Merryman was an important early attempt by federal courts to check the growing power of the
Executive.
Of course, the question whether the power to suspend habeas corpus may be employed by the Congress, the President, or both is separate from the question whether the political act of suspension is reviewable by Article III courts. On this issue, modern scholars have disagreed.
215
But Congress never purported
209.
Nixon , 506 U.S. at 229.
210. U.S. C
ONST
. art. I, § 3, cl. 6 (emphasis added).
211.
Nixon , 506 U.S. at 228–29.
212. U.S. C
ONST
. art. I, § 9, cl. 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.”); see also
Jesse H. Choper, The Political Question Doctrine: Suggested Criteria , 54 D
UKE
L.J. 1457, 1498 (2005).
213.
Ex parte Merryman, 17 F. Cas. 144, 148–49 (Taney, Circuit Justice, C.C.D. Md. 1861) (No.
9487).
214.
See Choper, supra note 212, at 1498 & n.195, 1499 n.196.
215.
Compare Amanda L. Tyler, Is Suspension a Political Question?
, 59 S
TAN
L. R
EV
. 333, 336
(2006) (“By its very terms, the Suspension Clause requires that there be an ‘Invasion’ or ‘Rebellion’ before Congress may suspend the writ. Congress’s suspension power also is limited by external constitutional restraints, such as the Fifth Amendment’s Due Process Clause and likely its equal protection component. An argument that suspension is a nonjusticiable political question would lead to the result that suspension is a matter on which the Constitution imposes such restraints, but that many, if not all, of those restraints are not subject to judicial enforcement. This conclusion should be rejected because it is at odds with the Great Writ’s heritage and place in our constitutional structure and because it would have troubling ramifications for the separation of powers and the institution of judicial review.” (citation omitted)), with Choper, supra note 212, at 1499 (characterizing the questions of
“whether a state of ‘rebellion’ currently exists, [and] whether the ‘public safety’ requires the suspension” as “plainly candidates for substantial judicial deference to the properly constituted political bodies, if not for a conclusion of no manageable standards, which would foreclose any further judicial involvement whatsoever”).
See also Hamdi v. Rumsfeld, 542 U.S. 507, 578 (2004) (Scalia, J., dissenting) (“If the situation demands it, the Executive can ask Congress to authorize suspension of the writ—which can be made subject to whatever conditions Congress deems appropriate . . . . To be sure, suspension is limited by the Constitution to cases of rebellion or invasion. But whether the attacks of

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[Vol. 99:869 actually to suspend habeas in Guantanamo by passing the MCA.
216 Although
Justice Kennedy’s opinion in Boumediene does refer to the MCA as a “suspension” of the writ of habeas corpus, 217 it is, at best, an effective suspension. Since no political branch has actually engaged in the political act of suspending habeas corpus—an act which, when not couched in the legalistic, jurisdictionstripping language of the MCA,
218 carries with it significant political risks—the
Suspension Clause cannot serve as a “textually demonstrable commitment” of the reach of habeas jurisdiction to any “coordinate political department.”
219
Looking beyond the Suspension Clause, some commentators have pointed to the various war powers that the Constitution grants to the Congress and to the
President as “textually demonstrable commitments” of plenary wartime decisionmaking authority to the political branches.
220
But the Supreme Court’s precedents show that the judicial branch “often speaks to matters in this context, and the proverbial sky has yet to fall as a result.”
221
In Youngstown Sheet & Tube
Co. v. Sawyer , the Court held that President Truman exceeded his constitutional authority as commander in chief when he seized several steel mills during the
Korean War without Congressional authorization.
222 Two decades later, in
Pentagon Papers , the Court found itself fully able to address and reject the
President’s assertion that the publication of a classified study of Vietnam War policies would threaten the American military situation in Southeast Asia.
223
The Baker v. Carr Court addressed a related issue when it remarked that, although there have been “sweeping statements to the effect that all questions
September 11, 2001, constitute an ‘invasion,’ and whether those attacks still justify suspension several years later, are questions for Congress rather than this Court.”); id.
at 594 n.4 (Thomas, J., dissenting)
(“I agree with Justice Scalia that this Court could not review Congress’[s] decision to suspend the writ.”).
216.
See Brief for Petitioners at 9, Boumediene v. Bush, 553 U.S. 723 (2008) (06-1195) (“The government has never contended in this case that the MCA meets the requirements for a valid suspension of the writ. Nor could it do so, given that suspension is only a temporary measure in times of ‘Rebellion or Invasion.’” (quoting U.S. C
ONST
. art. I, § 9, cl. 2)).
217. Boumediene v. Bush, 553 U.S. 723, 733–34 (2008) (“Congress has enacted a statute, the
Detainee Treatment Act of 2005 (DTA), 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) operates as an unconstitutional suspension of the writ.” (citations omitted)).
218.
See 28 U.S.C. § 2241(e)(1) (2006) (“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
United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”), invalidated by Boumediene , 553 U.S. at 792.
219.
See Baker v. Carr, 369 U.S. 186, 217 (1962).
220.
See, e.g.
, Heather P. Scribner, A Fundamental Misconception of Separation of Powers: Boumediene v. Bush, 14 T
EX
. R
EV
. L. & P
OL
. 90, 145–47 (2009); Lee A. Casey & David B. Rivkin Jr., Judges
Who Would Be King , S
LATE
(Aug. 14, 2009), http://www.slate.com/id/2224943/ (“The conduct of
American foreign-policy and military actions overseas is, of course, at the very core of those powers reserved to the political branches.”).
221. Tyler, supra note 215, at 404 (citation omitted).
222. Youngstown Sheet & Tube Co. v. Sawyer ( Steel Seizure ), 343 U.S. 579, 583, 589 (1952).
223.
See N.Y. Times Co. v. United States ( Pentagon Papers ), 403 U.S. 713, 714 (1971) (per curiam).

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897 touching foreign relations are political questions,” 224 it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action.
225
The Court recognized that “[m]uch [of the] confusion” over the political question doctrine “results from the capacity of the ‘political question’ label to obscure the need for case-by-case inquiry .” 226
B
.
FUNCTIONAL CONSIDERATIONS
According to Professor Tribe’s tripartite classification of the Baker factors,
“functional” considerations play a role in the second two factors.
227 The Nixon
Court displayed this view when it determined that the word “try” in Article I,
Section 3, Clause 5 “lacks sufficient precision to afford any judicially manageable standard of review.”
228
The Bush Administration made a functional argument to the Supreme Court in Boumediene when it claimed that making the application of the Suspension Clause turn on concepts of jurisdiction or control would involve the courts in sensitive foreign-affairs questions by requiring them to determine the level of de facto control exercised by the
United States in the areas of foreign countries where detainees might be held.
During wartime, the extent of control would vary over time and implicate a variety of sensitive foreign policy and military considerations. At other times, judicial determinations about the degree of United States control could complicate diplomatic relationships. Sovereignty, by contrast, offers an administrable bright-line rule that not only is deeply entrenched in this Court’s existing precedent but, as explained next, is firmly grounded in the history of habeas corpus.
229
To Justice Kennedy, however, the three-factor test
230 that the Court announced provided a sufficiently manageable standard of review. And the subsequent history of detainee habeas cases in the District Court has proven the wisdom of
224. 369 U.S. at 211.
225.
Id.
at 211–12.
226.
Id.
at 210–11 (emphasis added).
227.
See T
RIBE
, supra note 30, § 3-13, at 366 n.6.
228. Nixon v. United States, 506 U.S. 224, 230 (1993).
229. Brief for Respondents at 25, Boumediene v. Bush, 553 U.S. 723 (2008) (Nos. 06-1195 &
06-1196).
230.
See supra notes 129–40 and accompanying text.

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231
C
.
PRUDENTIAL CONSIDERATIONS
According to Professor Tribe, the final three Baker factors reflect a prudential view of the political question doctrine, which sees the doctrine as “a means to avoid passing on the merits of a question when reaching the merits would force the Court to compromise an important principle or would undermine the Court’s authority.”
232
Commentators who claim that Boumediene should have been dismissed as a political question express prudential concerns when they claim, for instance, that the Boumediene Court “lost sight of the limits of the judiciary’s institutional capacity.” 233 Justice Souter, concurring in the judgment in
Nixon , reflected this view when he explained that the political question doctrine
“derive[s] in large part from prudential concerns about the respect we owe the political departments.”
234
Nevertheless, Justice Souter acknowledged in Nixon , as the Court did in
Baker , that “‘the “political question” label’ tends ‘to obscure the need for case-by-case inquiry,’” and that the “nature of the political question doctrine requires analysis of ‘the precise facts and posture of the particular case,’ and precludes ‘resolution by any semantic cataloguing.’” 235 Although he agreed with the majority that the case at bar involved a nonjusticiable political question, he argued that it was possible to “envision different and unusual circumstances that might justify a more searching review of impeachment proceedings.” 236 He continued:
If the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin toss, or upon a summary determination that an officer of the United States was simply “‘a bad guy,’” judicial interference might well be appropriate. In such circumstances, the Senate’s action might be so far beyond the scope of its constitutional authority, and the consequent impact on the Republic so great, as to merit a judicial response despite the prudential concerns that would ordinarily counsel silence. “The political question doctrine, a tool for maintenance of governmental order, will not be so applied as to promote only disorder.”
237
Thus, Justice Souter seems to have been saying, the “respect due coordinate
231. C
ENTER FOR
C
ONSTITUTIONAL
R
IGHTS
, G
UANTANAMO
H
ABEAS
S
CORECARD
1 (2010), available at http://ccrjustice.org/learn-more/faqs/guantanamo-bay-habeas-decision-scorecard.
232. T
RIBE
, supra note 30, § 3-13, at 366.
233.
See Scribner, supra note 220, at 149.
234. Nixon v. United States, 506 U.S. 224, 253 (1993) (Souter, J., concurring in the judgment).
235.
Id.
at 252 (quoting Baker v. Carr, 369 U.S. 186, 210–11, 217 (1962)).
236.
Id.
at 253.
237.
Id.
at 253–54 (citation omitted) (quoting Baker , 369 U.S. at 215).

2011] T
HE
R
EACH OF THE
W
RIT
899 branches of government” 238 factor only goes so far: there exist certain actions that a political branch could take that are so beyond the pale that they override the prudential concerns at the heart of the final three Baker factors.
239
This rejection of formalism was echoed by the Court in Boumediene , not only in its announcement that “[i]n every practical sense Guantanamo is not abroad,”
240 but in its rejection of CSRTs as adequate substitutes for habeas proceedings.
241 As Seth Waxman explained during oral arguments in Boumediene , his six clients, who had been through the CSRT process, “all have been confined at Guantanamo for almost six years, yet not one has ever had meaningful notice of the factual grounds of detention or a fair opportunity to dispute those grounds before a neutral decision-maker.” 242 Even if every other Baker factor indicated that the question in Boumediene was a political one, and even if it was established that, in general, Congress should be free to fashion habeas-like procedures for detainees held overseas, the sheer inadequacy of the CSRT process merited, as Justice Souter’s hypothetical did in Nixon , “a judicial response despite the prudential concerns that would ordinarily counsel silence.” 243
C
ONCLUSION
On remand, Judge Richard Leon of the D.C. District Court granted the writ as to five of the six Algerian detainees at issue in Boumediene , and ordered the government to release them “forthwith.” 244 In an “unusual moment” 245 after announcing his decision in open court, Judge Leon pleaded with government lawyers to forego their right to appeal the case, and to let justice finally be served:
The Court appreciates fully that the Government has a right to appeal its decision as to these five detainees whose petitions I have granted. I have a right, too, to appeal to the senior-most leadership at the Department of Justice,
Department of Defense, and the CIA and other intelligence agencies. My appeal to them is to strongly urge them to take a hard look at the evidence, both presented and lacking, as to these five detainees. Seven years of waiting for our legal system to give them an answer to a question so important, in my judgment, is more than plenty.
The appellate process for these five detainees would, at a minimum,
238.
Baker , 369 U.S. at 217.
239.
Nixon , 506 U.S. at 253 (Souter, J., concurring in the judgment).
240. Boumediene v. Bush, 553 U.S. 723, 769 (2008).
241.
Id.
at 792.
242. Transcript of Oral Argument at 4, Boumediene v. Bush, 553 U.S. 723 (2008) (Nos. 06-1195 &
06-1196); see also supra notes 130–33 and accompanying text.
243.
See Nixon , 506 U.S. at 254 (Souter, J., concurring in the judgment).
244. Boumediene v. Bush, 579 F. Supp. 2d 191, 198–99 (D.D.C. 2008).
245. Del Quentin Wilber, 5 at Guantanamo Ordered Released , W
ASH
. P
OST
, Nov. 21, 2008, at A2, available at http://www.washingtonpost.com/wp-dyn/content/article/2008/11/20/AR2008112001714.html.

900 T
HE
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EORGETOWN
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AW
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OURNAL
[Vol. 99:869 constitute another eighteen months to two years of their lives. It seems to me that there comes a time when the desire to resolve novel, legal questions and decisions which are not binding on my colleagues pales in comparison to effecting a just result based on the state of the record.
246
Judge Leon’s plea served as a reminder to many in the courtroom that day that the lofty legal issues at stake in cases like Boumediene were important only insofar as they touched the lives of real people. And although this Note has tried to present legal reasons why the political question doctrine should not apply to cases like Boumediene and Al Maqaleh , perhaps the most compelling reason is also the most simple: as Chief Justice Marshall announced over two centuries ago, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” 247 This nation’s judicial system should not and must not be blind to abuses against justice perpetrated by the political branches.
246. Transcript of Open Habeas Opinion Hearing Before the Honorable Richard J. Leon, United
States District Judge, at 28–30, Boumediene v. Bush, 579 F. Supp. 2d 191 (D.D.C. 2008) (No.
CV04-1166).
247. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (emphasis added).