* Warner-Booker Distinguished Professor of International Law and Class of 1963 Research Professor, University of Virginia. The thesis presented here also draws upon some of the author’s experience as General Counsel to the Immigration and Naturalization Service, Department of Justice, 1995–98. The author expresses warm thanks for research assistance provided by Elizabeth Reilly-Hodes and Thomas Wintner.
1 Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004); Rasul v. Bush, 124 S. Ct. 2686 (2004); Rumsfeld v. Padilla, 124 S. Ct. 2711 (2004).
2 Rasul, 124 S. Ct. at 2695–97.
3 Id. at 2692–93.
4 On the Anglo-American tradition, see Daniel John Meador, Habeas Corpus and Magna Carta: Dualism of Power and Liberty (1966); Zechariah Chafee, Jr., The Most Important Human Right in the Constitution, 32 B.U. L. Rev. 143 (1952) (describing the right to habeas corpus protected by U.S. Const., art. 1, § 9, cl. 2); Hamdi, 124 S. Ct. at 2650-52; Rasul, 124 S. Ct. at 2696-97. Equivalent rights are protected in many major international human rights treaties. See, e.g., International Covenant on Civil and Political Rights, adopted by the General Assembly Dec. 19, 1966, art. 9(4), 999 U.N.T.S. 171; European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 5(4), Nov. 4, 1950, 213 U.N.T.S. 221, E.T.S. 5; American Convention on Human Rights, arts. 7(6), 25, Nov. 22, 1969, 1144 U.N.T.S. 123, 9 I.L.M. 673 (1970). In a 1987 advisory opinion, the Inter-American Court of Human Rights emphasized the central importance of habeas corpus protection and ruled that it may not be suspended in times of emergency. Habeas Corpus in Emergency Situations (Arts. 27(2) and 7(6) of the American Convention on Human Rights), Advisory Opinion OC-8/87, paras. 33-40, Jan. 30, 1987, Inter-Am. Ct. H.R. (Ser. A) No. 8 (1987).
5 124 S. Ct. at 2693.
6 Agreement Between Cuba and U.S. for Lease of Lands for Coaling Naval Stations, Feb. 23, 1903, U.S.-Cuba, art. III, T.S. No. 418 [hereinafter Agreement Between Cuba and U.S.].
7 I deal here only with the question of adequate checks and balances before people are subjected to lengthy preventive detention, of the kind the Bush administration apparently contemplates for many or most “enemy combatants.” I do not address the use of military commissions under President Bush’s order of November 13, 2001, to hear criminal charges against a minority of such detainees, principally for alleged breaches of the laws of war, and to impose punishments, including capital punishment. Exec. Order, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13, 2001) [hereinafter Exec. Order]. I also do not address the courts’ role in reviewing conditions of confinement, including the validity of interrogation techniques. Some of my discussion, however, would be relevant in assessing a court’s role in either setting.
8 339 U.S. 763 (1950); see Rasul, 124 S. Ct. at 2693–99.
9 See Eisentrager, 339 U.S. at 776–81.
10 317 U.S. 1, 24–25 (1942). See generally Louis Fisher, Nazi Saboteurs on Trial: A Military Tribunal and American Law (2003).
11 In re Yamashita, 327 U.S. 1, 25–26 (1946).
12 Id. at 23–26; Ex parte Quirin, 317 U.S. at 47–48.
13 See, e.g., Fisher, supra note 11, at 127–44, 171–75 (critiquing Quirin); Waldemar A. Solf, A Response to Telford Taylor’s “Nuremberg and Vietnam: An American Tragedy”, in 4 The Vietnam War and International Law: The Concluding Phase 421, 439–46 (Richard A. Falk ed., 1976) (critiquing Yamashita).
14 See 339 U.S. at 765–67.
15 See id. at 776–81.
16 Id. at 770–71.
17 Eisentrager, 339 U.S. at 775. The Alien Enemies Act is the one component of the infamous Alien and Sedition Acts of 1798, enacted as part of President John Adams’ crackdown on foreign subversion as war with France loomed, that did not draw the condemnation of the Jeffersonians—nor of history. See David A. Martin, Graduated Application of Constitutional Protections for Aliens: The Real Meaning of Zadvydas v. Davis, 2001 Sup. Ct. Rev. 47, 110 n.164 (2002). The current version of the statute appears at 50 U.S.C. §§ 21–24 (2000).
18 On the availability of habeas to test only whether the detainee actually is a national of an enemy nation, see, for example, United States ex rel. Hack v. Clark, 159 F.2d 552, 554 (7th Cir. 1947); Ex parte Gilroy, 257 F. 110, 112–13 (S.D.N.Y. 1919).
19 See Eisentrager, 339 U.S. at 776.
20 Id.
21 See id. at 780–81.
22 See Quirin, 317 U.S. at 45–46.
23 Eisentrager, 339 U.S. at 780.
24 See id.
25 Id. at 778–79.
26 Id. at 779.
27 Id.
28 Eisentrager, 339 U.S. at 779.
29 Id. at 778.
30 See Rasul, 124 S. Ct. at 2693.
31 Agreement Between the United States and Cuba, supra note 6, art. III, T.S. No. 418 (recognizing “ultimate sovereignty” but granting the United States “complete jurisdiction and control” over the leased areas); Treaty of Relations, May 29, 1934, U.S.-Cuba, art. III, 48 Stat. 1682, 1683, T.S. No. 866 (providing that the lease will remain effective so long as the United States does not abandon the base at Guantanamo).
32 Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003). The Rasul and Al Odah cases, both involving habeas petitions on behalf of Guantanamo detainees, were consolidated for decision at both the Court of Appeals and Supreme Court levels, but were known by different captions in the two settings. After the Supreme Court granted certiorari in Rasul, the Ninth Circuit reached a contrary result and found that it had jurisdiction over habeas petitions filed on behalf of detainees at Guantanamo. Gherebi v. Bush, 352 F.3d 1278 (9th Cir. 2003). But no split in the circuits existed at the time the Supreme Court granted certiorari.
33 See Rasul v. Bush, 124 S. Ct. 534 (2003) (order granting certiorari).
34 See Rasul v. Bush, 124 S. Ct. 2686, 2699 (2004).
35 See id.
36 Id. at 2693. In this passage, Stevens was examining their situation with respect to a list of six factors expressly enumerated in Justice Jackson’s Eisentrager opinion. Id.; Johnson v. Eisentrager, 339 U.S. 763, 777 (1950). Stevens suggested that the presence of all six was critical to the Court’s disposition of the constitutional question in a manner that disfavored the petitioners.
37 See Rasul, 124 S. Ct. at 2698–99. The central statutory language pertinent to military detainee cases is the following:
(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions . . . .
(c) The writ of habeas corpus shall not extend to a prisoner unless
(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or . . .
(3) He is in custody in violation of the Constitution or laws or treaties of the United States . . . .
28 U.S.C. § 2241 (2000).
38 See Rasul, 124 S. Ct. at 2694.
39 Ahrens v. Clark, 335 U.S. 188, 190–91 (1948). The Ahrens petitioners were located in another district, not outside U.S. territory, but as a dissenting opinion in Ahrens pointed out, the same jurisdictional holding would a fortiori apply to a petitioner held on foreign soil. Id. at 209 (Rutledge, J., dissenting).
40 124 S. Ct. at 2695 (relying principally on Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973)). Justice Scalia’s dissent sharply disagreed that Braden could be read as overruling this portion of Ahrens. See id. at 2704.
41 See Rasul, 124 S. Ct. at 2695 (citing cases exemplifying this evolution). On the same day as the Rasul decision, however, a differently composed majority persisted in asserting that a habeas petition must be filed in the district of confinement and against the immediate custodian, provided that the person is in “present physical custody” within the United States. Rumsfeld v. Padilla, 124 S. Ct. 2711, 2722–23 (2004). A more relaxed rule applies, permitting filing in other districts (where service can be made on a proper defendant somewhere in the chain of command), if the person is detained outside the boundaries of any judicial district or is not in actual physical custody. In the latter instance, of course, he must still be under constraints sufficient to bring the case within the ambit of habeas corpus. See Hensley v. Mun. Court, 411 U.S. 345, 351 (1973). Once a proper filing is made, the district court retains jurisdiction even if the government thereafter moves the petitioner to another district.
42 Rasul, 124 S. Ct. at 2695.
43 See id. at 2698. The penultimate paragraph of the opinion, dealing briefly with the other non-habeas claims filed by the Rasul petitioners, also points in the same direction: “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.” Id. (emphasis added, internal quotation marks and citations omitted).
44 Id. at 2696.
45 See id. The government’s argument about the canon suffered significantly from its inescapable concession that, in view of prior U.S. practice, the habeas statute would afford jurisdiction over a petition filed by a U.S. citizen detained on Guantanamo. The Court saw “little reason to think that Congress intended the geographical coverage of the statute to vary depending on the detainee’s citizenship.” Id. at 2695.
46 Id. at 2697.
47 Rasul, 124 S. Ct. at 2697 (citations omitted). Justice Scalia’s dissent took strong exception to this reading of British practice. See id. at 2708–10 (Scalia, J., dissenting).
48 Id. at 2696.
49 The United States reportedly holds approximately 300 detainees at Bagram, out of roughly 9000 detained by U.S. military authorities worldwide. See Dana Priest & Joe Stephens, Secret World of U.S. Interrogation: Long History of Tactics in Overseas Prisons is Coming to Light, Wash. Post, May 11, 2004, at A1.
50 124 S. Ct. at 2699–701 (Kennedy, J., concurring). Justice Kennedy was the sixth vote for reversal, but wrote only for himself.
51 Id. at 2700 (Kennedy, J., concurring).
52 See id. (Kennedy, J., concurring).
53 Id. (Kennedy, J., concurring).
54 Id. (Kennedy, J., concurring).
55 See Rasul, 124 S. Ct. at 2697.
56 124 S. Ct. 2633 (2004). The Court’s holdings in Hamdi are, strictly speaking, applicable only to U.S. citizens picked up in combat areas and detained as enemy combatants. So far as is known, to date only Hamdi fits that description. But the Department of Defense, in developing procedures for the foreign-national Guantanamo detainees after Rasul, appears to have drawn significantly on the procedures specified in Hamdi. This was a logical place for the military to look, because Hamdi surely provides a high-water mark for the kinds of protections the Supreme Court could conceivably decree for the latter detainees. See id. at 2644, 2650–52. For these reasons, in this paper I will often look to the Hamdi standards as benchmarks, without continually observing that Hamdi is, in the end, potentially distinguishable.
57 339 U.S. 763, 777(1950).
58 See id. at 785–90; Meador, supra note 4, at 41-42; David Glazier, Kangaroo Court or Competent Tribunal?: Judging the 21st Century Military Commission, 89 Va. L. Rev. 2005, 2072 (2003).
59 339 U.S. at 780.
60 Id. at 771 (emphasis added).
61 Id. at 776 (emphasis added) (quoting Ex parte Kawato, 317 U.S. 69, 75 (1942)).
62 Id. at 768–69.
63 Part II of his opinion, which contains the central reasoning for the denial of the petitioners’ access claims, starts by lamenting “how much further we must go if we are to invest these enemy aliens, resident, captured and imprisoned abroad, with standing to demand access to our courts.” Id. at 777 (emphasis added).
64 See David A. Martin, Preventive Detention: Immigration Law Lessons for the Enemy Combatant Debate, 18 Geo. Immigr. L.J. 305, 321–23 (2004).
65 Those relying on Quirin and Eisentrager in shaping their suggestions for our response to terrorism usually ignore the fact that the law has evolved considerably since that time— both in providing greater protections for all persons, whether civilian or military, charged with a crime, and in expanding the protections given prisoners of war. See, e.g., William P. Barr & Andrew G. McBride, Military Justice for al Qaeda, Wash. Post, Nov. 18, 2001, at B7. For example, the 1929 Geneva Conventions, operative during the key events in both those cases, were replaced by the 1949 Conventions, based on lessons learned during World War II. Glazier, supra note 58, at 2073–84.
66 See Eisentrager, 339 U.S. at 778–79.
67 See id. at 779.
68 Cf. Rivera v. Santirocco, 814 F.2d 859, 860 (2d Cir. 1987); United States v. Mandel, 857 F. Supp. 253, 255 (E.D.N.Y. 1994) (blessing the use of alternative means to obtain the testimony of witnesses commanded to appear via habeas corpus ad testificandum, such alternatives including depositions at the place of confinement or the use of video or audio technology).
69 See Meador, supra note 4, at 39–40; Ronald P. Sokol, Handbook of Federal Habeas Corpus 57–70, 80–82 (1965) (describing the favored practice, as permitted by 28 U.S.C. § 2243 (2000), calling for the use of an order to show cause directed to the custodian, to allow resolution of the petition on legal rulings wherever possible, without having to produce the body of the detainee); cf. 28 U.S.C. § 2255 (2000). Enacted in 1948, section 2255 created a procedure to serve as an alternative to habeas corpus for considering the lawfulness of sentences imposed by federal courts; it expressly provides that “[a] court may entertain and determine such motion without requiring the production of the prisoner at the hearing.” See Sanders v. United States, 373 U.S. 1, 20–21 (1963) (suggesting that section 2255 cases should be resolved without the petitioner’s presence when possible).
70 See Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2652 (2004).
71 Id. at 2635–36.
72 See id. at 2653. In the related case involving Jose Padilla, the government offered a more detailed explanation of its reasons for wanting to deny access to counsel, in the form of an affidavit filed with the district court in connection with a motion to reconsider that court’s initial ruling granting such access. See Padilla v. Rumsfeld, 243 F. Supp. 2d 42, 44 (S.D.N.Y. 2003). In the affidavit, a vice admiral asserted that permitting contact with counsel would interfere with the “psychological pressure” necessary for effective interrogation. Id. at 46.
73 Hamdi v. Rumsfeld, 316 F.3d 450, 472–77 (4th Cir. 2003), vacated and remanded, 124 S. Ct. 2633 (2004).
74 See id. at 473.
75 See id.
76 See id. at 475.
77 Hamdi, 124 S. Ct. at 2652.
78 See id.
79 Id. at 2651. The Court stated:
There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal. Indeed, it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Convention. . . . In the absence of such process, however, a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved.
Id. (citations omitted). It is important to clarify that this would be a far different tribunal system from the military commissions authorized in President Bush’s November 13, 2001, Military Order, which are often also referred to as military tribunals. Exec. Order, supra note 7, at 57,834. The Bush order sets up commissions meant to try charges of criminal violations and assess criminal penalties, including the death penalty. The Hamdi-inspired tribunals are meant to provide an administrative forum for deciding whether the detainee may continue to be held in the preventive detention (similar to that customarily employed for prisoners of war in more conventional conflicts) that the executive branch apparently contemplates for most of those detained as “enemy combatants,” both at Guantanamo and at other U.S.-run foreign facilities. To date, however, these tribunals have been established only at Guantanamo.
80 Hamdi, 124 S. Ct. at 2651–52.
81 John Mintz, Pentagon Sets Hearings for 595 Detainees, Wash. Post, July 8, 2004, at A1; John Mintz, Four Detainees At Guantanamo to Get Hearings, Wash. Post, July 30, 2004, at A5.
82 See Deputy Secretary of Defense, Memorandum for the Secretary of the Navy, Order Establishing Combatant Status Review Tribunal 2–4 (2004), available at http://www.defenselink.mil/news/Jul2004/d20040707review.pdf [hereinafter Tribunal Memorandum]. More detailed implementation procedures were provided in a later memorandum. Enclosure (1), Secretary of the Navy, Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at Guantanamo By Naval Base, Cuba 1–9 (2004), available at http://www.defenselink.mil/news/

83 See, e.g., Human Rights First, Human Rights First Analyzes DOD’s Combatant Status Review Tribunals (Aug. 2, 2004), at http://www.humanrightsfirst.org/us_law/
detainees/status_review_080204.htm [hereinafter Human Rights First].

84 Josh White, Suspect Is Freed From Guantanamo: Release Is First Under Tribunals, Wash. Post, Sept. 9, 2004, at A3. As of early November 2004, 317 such hearings had been held and 131 decisions issued, still with only the one ruling for release. Carol D. Leonnig & John Mintz, Judge Says Detainees’ Trials are Unlawful, Wash. Post, Nov. 9, 2004, at A1.
85 See, e.g., Respondents’ Response to Petitions for Writ of Habeas Corpus and Motion to Dismiss or for Judgment as a Matter of Law and Memorandum in Support at 43–51, Hicks v. Bush, No. 02-CV-0299, Al Odah v. Bush, No. 02-CV-0828, Habib v. Bush, No. 02-CV-1130, Kurnaz v. Bush, No. 04-CV-1135, O.K. v. Bush, No. O4-CV-1136, Begg v. Bush, No. 04-CV-1137, Khalid v. Bush, No. 04-CV-1142, El-Banna v. Bush, No. 04-CV-1144, Gherebi v. Bush, No. 04-CV-1164, Boumediene v. Bush, No. 04-CV-1166, Anam v. Bush, No. 04-CV-1194, Almurbati v. Bush, No. 04-CV-1227, Abdah v. Bush, No. 04-CV-1254 (D.D.C. filed Oct. 4, 2004). Advocates for the detainees are attempting to hold on to a more extensive role for the federal courts, despite the creation of the combatant status review tribunals. See Human Rights First, supra note 83.
86 See, e.g., Bakhtriger v. Elwood, 360 F.3d 414, 420–24 (3d Cir. 2004) (summarizing Supreme Court cases describing the core scope of review required by the Constitution in habeas corpus cases).
87 See, e.g., Carol D. Leonnig, Charges for Detainees Ordered, Wash. Post, Sept. 21, 2004, at A2 (describing the major Guantanamo habeas litigation being pursued after the remand in Rasul).
88 Johnson v. Eisentrager, 339 U.S. 763, 779 (1950).
89 See id. at 777–81. His similarly rigid approach to due process (considering that it either did not apply or, if applicable, demanded a rather comprehensive set of procedures approaching that of a judicial trial) has likewise been rejected by the Court in favor of a more flexible and contextual approach to deciding what process is due. Matthews v. Eldridge, 424 U.S. 319 (1976); see Thomas Alexander Aleinikoff, David A. Martin & Hiroshi Motomura, Immigration and Citizenship: Process and Policy 481 (5th ed. 2003).
90 See, e.g., Swain v. Pressley, 430 U.S. 372, 379–82 (1977) (allowing traditional habeas in an Article III court to be statutorily displaced by a procedure that permitted an Article I court to resolve the key legal and constitutional issues; the “substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person’s detention does not constitute a suspension of the writ of habeas corpus”).
91 124 S. Ct. 2633, 2649.
92 Id. Technically, this passage from Justice O’Connor’s opinion for the plurality notes only that the parties in Hamdi agreed to this initial insulation of battlefield captures—but the discussion strongly suggests that the Court also subscribes to such an approach. Justice Kennedy’s concurring opinion in Rasul also suggests that such line-drawing is appropriate to shield battlefield detentions from judicial inquiry. Id. at 2700 (Kennedy, J., concurring).
93 The issue may not even come up on any significant scale; it seems unlikely that many battlefront detainees will be in a position to file habeas actions, even through “next friends.” (“Next friends” are persons allowed to act for an otherwise incapable party in litigation. This practice can be especially important to challenging executive branch detention, because the detainee may not be in a position to file court papers. The Hamdi petition, for example, was filed by the detainee’s father as next friend. Id. at 2636.)
94 The military is continuing to move new prisoners to Guantanamo—a sign that it does not consider the tribunal review system adopted in the wake of Rasul to unduly impede necessary military operations. Nation in Brief, Wash. Post, Sept. 22, 2004, at A12 (reporting the move of ten detainees from Afghanistan to Guantanamo).
95 Rasul, 124 S. Ct. at 2696–99.
96 The current procedures allow for only limited review by the Convening Authority. Tribunal Memorandum, supra note 82, para. h.
97 See Glazier, supra note 58, at 2075–77(describing important reforms pursuant to the Military Justice Acts of 1968 and 1983, Pub. L. No. 90-632, 82 Stat. 1335 (1968); Pub. L. No. 98-209, 97 Stat. 1393 (1983)).
98 124 S. Ct. at 2651. Justice O’Connor writes, “An interrogation by one’s captor, however effective an intelligence-gathering tool, hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker.” Id.
99 See, e.g., Human Rights First, supra note 83. A properly structured role for military attorneys possessing high-level security clearances, as representatives for the detainees, could also help afford a fair system for dealing with classified information. A model could be the role provided by statute for individual counsel drawn from a roster of attorneys possessing top-secret security clearances in proceedings before the Alien Terrorist Removal Court. INA §§ 502(e), 504(e)(3)(F), 8 U.S.C. §§ 1552(e), 1554(e)(3)(F) (2000). See Peter H. Schuck, Commentary, Terrorism Cases Demand New Hybrid Courts, L.A. Times, July 9, 2004, at B13. See generally Martin, supra note 17, at 126–36. Difficult questions remain about what role, if any, outside civilian counsel might play.
100 327 U.S. 1, 8 (1946), quoted in Johnson v. Eisentrager, 339 U.S. 763, 786–87 (1950).
101 See Alexander M. Bickel, Foreword: The Passive Virtues, 75 Harv. L. Rev. 40 (1961).
102 124 S. Ct. at 2652.
103 In response to a government argument, the plurality wrote:
the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers . . . . Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge.
Id. at 2650.
104 See Gerald L. Neuman, The Constitutional Requirement of “Some Evidence,” 25 San Diego L. Rev. 631, 636–58 (1988) (summarizing the history of usage of the “some evidence” standard).
105 124 S. Ct. at 2651. To be sure, the Court signaled the likely application of the “some evidence” standard to the suggested military tribunal procedures in a backhanded way in Hamdi. In the course of rejecting the government’s assertion that that standard should be applied to evaluate the ex parte DOD affidavit filed to justify Hamdi’s confinement, the Court said this:
As the Government itself has recognized, we have utilized the “some evidence” standard in the past as a standard of review, not as a standard of proof. That is, it primarily has been employed by courts in examining an administrative record developed after an adversarial proceeding—one with process at least of the sort that we today hold is constitutionally mandated in the citizen enemy-combatant setting. This standard therefore is ill suited to the situation in which a habeas petitioner has received no prior proceedings before any tribunal and had no prior opportunity to rebut the Executive’s factual assertions before a neutral decisionmaker.
106 See Universal Camera Corp. v. NLRB, 340 U.S. 474 (1950). The Administrative Procedure Act provides for “substantial evidence” review at 5 U.S.C. § 706(2)(E) (2000); see Neuman, supra note 104, at 714, 730–32.
107 See Neuman, supra note 104, at 713–17. This article contains a thoughtful and nuanced discussion of the “some evidence” standard and the manner in which it should be applied.
108 Hamdi v. Rumsfeld, 337 F.3d 335, 357–76 (4th Cir. 2003) (Luttig, J., and Motz, J., dissenting) (disagreeing with the denial of rehearing en banc).
109 Id. at 360–68, 371–75.
110 Id. at 341–45.
111 Id. at 342–44.
112 Id. at 342–43.
113 124 S. Ct. at 2649.
114 Id.
115 337 F.3d at 343.
116 See, e.g., Human Rights Watch, Background Briefing: Making Sense of the Guantanamo Bay Tribunals, (Aug. 16, 2004), available at http://hrw.org/english/docs/
2004/08/16/usdom9235.htm [hereinafter Human Rights Watch Briefing]; Adam Liptak, In First Rulings, Military Tribunals Uphold Detentions of 4, N.Y. Times, Aug. 14, 2004, at A11.

117 See, e.g., Human Rights First, supra note 83; Human Rights Watch Briefing, supra note 116.
118 Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (setting up a three-part balancing test that is now regularly used to assess the adequacy of procedures under the due process clause). The Hamdi plurality employed this methodology at length in reaching its conclusions about what due process requires in that specific enemy combatant context. See 124 S. Ct. at 2646–48.
119 See, e.g., Human Rights Watch, U.S.: Review Panels No Fix for Guantanamo, (July 27, 2004), at http://hrw.org/english/docs/2004/07/27/usdom9135.htm. Some have criticized the combatant status review panel arrangements for presuming that a detainee is an enemy combatant and effectively placing the burden of proof on the detainee. Id. This element of the procedure, however, seems rather clearly based on the plurality’s dictum in Hamdi, issued in the course of its Eldridge-based due process discussion, stating that “the Constitution would not be offended by a presumption in favor of the government’s evidence.” 124 S. Ct. at 2649. It bears noting, however, that the plurality, in sharp contrast to the Fourth Circuit, insisted that the presumption be rebuttable and that the procedures afford a genuine opportunity for the detainee to be heard in that process. See id.
120 124 S. Ct. at 2639 (“There is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such.”).
121 This authority was recently and emphatically reaffirmed in INS v. St. Cyr, 533 U.S. 289, 30003 (2001).
122 But see Neuman, supra note 104, at 633–36 (thoughtfully defending a version of the significant, though deferential, review authority that a court should exert when applying the “some evidence” standard).
123 See supra Part III.E.
124 See generally U.S. to Release 140 From Guantanamo; No Time Frame Given for Letting Detainees Go, Wash. Post, Dec. 1, 2003, at A7; Report: Guantánamo Inmates to be Released (NPR radio broadcast, Dec. 1, 2003), available at http://www.npr.org/templates/story/story.php?storyId

125 See Tribunal Memorandum, supra note 82, at 2–4 (issued July 7, 2004). Well before the Supreme Court’s final rulings, but after the Court had granted certiorari in Rasul, the military also instituted another form of review panel, meant to conduct annual reviews of the cases of Guantanamo prisoners, with an opportunity for the detainee and his country of nationality to present information bearing on the decision. Apparently the panel was to judge whether the person could now be released in view of current dangerousness and any ongoing intelligence value. John Mintz, U.S. Outlines Plan for Detainee Review, Wash. Post, Mar. 4, 2004, at A10.
126 See Aleinikoff, Martin & Motomura, supra note 89, at 1267–79.
127 See, e.g., Kiareldeen v. Reno, 71 F. Supp. 2d 402, 407–414 (D.N.J. 1999); Al Najjar v. Reno, 97 F. Supp. 2d 1329, 1349–60 (S.D. Fla. 2000).
128 See Alien Held on Secret Evidence Released from Detention, 76 Interpreter Releases 1713, 1719 (Dec. 3, 1999).
129 See House Holds Hearings on Use of Secret Evidence, Visa Waiver Pilot Program, 77 Interpreter Releases 301, 303 (2000); Niels W. Frenzen National Security and Procedural Fairness: Secret Evidence and the Immigration Laws, 76 Interpreter Releases 1677, 1683–84 (Nov. 22, 1999).
130 The original secret evidence ruling in Kiareldeen was not appealed because the INS decided to drop its deportation efforts. But the Third Circuit later reversed the district court’s award of attorney’s fees against the government, harshly criticizing the merits of the district court’s initial secret evidence rulings. Kiareldeen v. Ashcroft, 273 F.3d 542, 552–56 (3d Cir. 2001). The Al Najjar ruling, finding due process violations in the use of secret evidence, was eventually vacated on the grounds of mootness. Al Najjar v. Ashcroft, 273 F.3d 1330, 1335–36 (11th Cir. 2001).
131 See, e.g., Aleinikoff, Martin & Motomura, supra note 89, at 208–10; Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and its Progeny, 100 Harv. L. Rev. 853 (1987); Stephen H. Legomsky, Ten More Years of Plenary Power: Immigration, Congress, and the Courts, 22 Hastings Const. L.Q. 925 (1995).
132 This metaphor was first introduced into the legal discourse, so far as I know, by Meir Dan-Cohen, Decision Rules and Conduct Rules: on Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625 (1984). I employ the concept here in a related but slightly different fashion from the framework used in that article.