“As preliminary to any investigation of the merits of this motion, this court deems it proper to declare that it disclaims all jurisdiction not given by the constitution, or by the laws of the United States.

Courts which originate in the common law possess a jurisdiction which must be regulated by their common law, until some statute shall change their established principles; but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction. It is unnecessary to state the reasoning on which this opinion is founded, because it has been repeatedly given by this court; and with the decisions heretofore rendered on this point, no member of the bench has, even for an instant, been dissatisfied. The reasoning from the bar, in relation to it, may be answered by the single observation, that for the meaning of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law.

This opinion is not to be considered as abridging the power of courts over their own officers, or to protect themselves, and their members, from being disturbed in the exercise of their functions. It extends only to the power of taking cognizance of any question between individuals, or between the government and individuals.

To enable the court to decide on such question, the power to determine it must he given by written law.

The inquiry therefore on this motion will be, whether by any statute, compatible with the constitution of the United States, the power to award a writ of habeas corpus, in such a case as that of Erick Bollman and Samuel Swartwout, has been given to this court.”

In other words, part of the rationale for the decision was that the Court had to rely on the statute because it otherwise would have lacked the authority to issue the writ.

And even if this statement in Bollman can be treated as dictum, it is foundational and deeply embedded in the law of habeas corpus. As the Supreme Court put it in 1996, “we have long recognized that ‘the power to award the writ by any of the courts of the United States, must be given by written law.’” Felker v. Turpin, 518 U.S. 651 (citing Bollman).

I do not think it will be necessary in the Guantanamo cases to decide if the Suspension Clause requires the writ of habeas corpus in its common law extent, because these prisoners are not within the common law extent. (More on that coming next week, if the Court hasn’t drop-kicked the case by then.)

Expanding on Richard’s comment, Rasul expressly distinguished Eisentrager’s constitutional holding from its statutory one. It is still good law on the constitutional point.

That opinion begins:

“The Court today holds that the habeas statute, 28 U.S.C. § 2241 extends to aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts. This is not only a novel holding; it contradicts a half-century-old precedent on which the military undoubtedly relied, Johnson v. Eisentrager, 339 U.S. 763 (1950). The Court’s contention that Eisentrager was somehow negated by Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973)–a decision that dealt with a different issue and did not so much as mention Eisentrager–is implausible in the extreme. This is an irresponsible overturning of settled law in a matter of extreme importance to our forces currently in the field. I would leave it to Congress to change §2241, and dissent from the Court’s unprecedented holding.”

Since when are dissenting opinions the law, and majority opinions to be disregarded.

“As explained above, Eisentrager itself erects no bar to the exercise of federal court jurisdiction over the petitioners’ habeas corpus claims. It therefore certainly does not bar the exercise of federal-court jurisdiction over claims that merely implicate the “same category of laws listed in the habeas corpus statute.” But in any event, nothing in Eisentrager or in any of our other cases categorically excludes aliens detained in military custody outside the United States from the “ ‘privilege of litigation’ ” in U.S. courts. The courts of the United States have traditionally been open to nonresident aliens. And indeed, 28 U.S.C. § 1350 explicitly confers the privilege of suing for an actionable “tort … committed in violation of the law of nations or a treaty of the United States” on aliens alone. The fact that petitioners in these cases are being held in military custody is immaterial to the question of the District Court’s jurisdiction over their nonhabeas statutory claims.

VI

Whether and what further proceedings may become necessary after respondents make their response to the merits of petitioners’ claims are matters that we need not address now. What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing. Answering that question in the affirmative, we reverse the judgment of the Court of Appeals and remand for the District Court to consider in the first instance the merits of petitioners’ claims.”

In either Hamdi or Padilla, I forget which, there was some stipulation over who holds sovereignty over Gitmo. The Justice Departments statement of ‘held abroad’ is unclear in this regard. Are they speaking of rendition?

Simon (and anyone else who may know), why do you think Chief Justice Roberts will participate in this case, after having been a member of the panel on the Court of Appeals?

Well, that’s a fair point, but even if he recuses, I would say that only goes to strengthen my point (viz., that the majority opinion in Hamdi was the best the government would get out of that case, then or now), doesn’t it?