Boumediene v. Bush, 128 S.Ct. 2229, 171 L.Ed.2d 41 (U.S. 06/12/2008)

[1] SUPREME COURT OF THE UNITED STATES


[2] Nos. 06-1195 and 06-1196


[3] 128 S.Ct. 2229, 171 L.Ed.2d 41, 2008 Daily Journal D.A.R. 8677, 76 USLW 4391, 76 USLW 4406, 08 Cal. Daily Op. Serv. 7144,


[4] June 12, 2008


[5] LAKHDAR BOUMEDIENE, ET AL., PETITIONERS
v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, ET AL.
KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI KHALID ABDULLAH FAHAD AL ODAH, ET AL., PETITIONERS
v.
UNITED STATES ET AL.


[6] SYLLABUS BY THE COURT


[7] OCTOBER TERM, 2007


[8] Argued December 5, 2007


[9] In the Authorization for Use of Military Force (AUMF), Congress empowered the President "to use all necessary and appropriate force against those ... he determines planned, authorized, committed, or aided the terrorist attacks ... on September 11, 2001." In Hamdi v. Rumsfeld, 542 U. S. 507, 518, 588-589, five Justices recognized that detaining individuals captured while fighting against the United States in Afghanistan for the duration of that conflict was a fundamental and accepted incident to war. Thereafter, the Defense Department established Combatant Status Review Tribunals (CSRTs) to determine whether individuals detained at the U. S. Naval Station at Guantanamo Bay, Cuba, were "enemy combatants."


[10] Petitioners are aliens detained at Guantanamo after being captured in Afghanistan or elsewhere abroad and designated enemy combatants by CSRTs. Denying membership in the al Qaeda terrorist network that carried out the September 11 attacks and the Taliban regime that supported al Qaeda, each petitioner sought a writ of habeas corpus in the District Court, which ordered the cases dismissed for lack of jurisdiction because Guantanamo is outside sovereign U. S. territory. The D. C. Circuit affirmed, but this Court reversed, holding that 28 U. S. C. §2241 extended statutory habeas jurisdiction to Guantanamo. See Rasul v. Bush, 542 U. S. 466, 473. Petitioners' cases were then consolidated into two proceedings. In the first, the district judge granted the Government's motion to dismiss, holding that the detainees had no rights that could be vindicated in a habeas action. In the second, the judge held that the detainees had due process rights.


[11] While appeals were pending, Congress passed the Detainee Treatment Act of 2005 (DTA), §1005(e) of which amended 28 U. S. C. §2241 to provide that "no court, justice, or judge shall have jurisdiction to ... consider ... an application for ... habeas corpus filed by or on behalf of an alien detained ... at Guantanamo," and gave the D. C. Court of Appeals "exclusive" jurisdiction to review CSRT decisions. In Hamdan v. Rumsfeld, 548 U. S. 557, 576-577, the Court held this provision inapplicable to cases (like petitioners') pending when the DTA was enacted. Congress responded with the Military Commissions Act of 2006 (MCA), §7(a) of which amended §2241(e)(1) to deny jurisdiction with respect to habeas actions by detained aliens determined to be enemy combatants, while §2241(e)(2) denies jurisdiction as to "any other action against the United States ... relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of a detained alien determined to be an enemy combatant. MCA §7(b) provides that the 2241(e) amendments "shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after [that] date ... which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained ... since September 11, 2001."


[12] The D. C. Court of Appeals concluded that MCA §7 must be read to strip from it, and all federal courts, jurisdiction to consider petitioners' habeas applications; that petitioners are not entitled to habeas or the protections of the Suspension Clause, U. S. Const., Art. I, §9, cl. 2, which provides that "[t]he 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"; and that it was therefore unnecessary to consider whether the DTA provided an adequate and effective substitute for habeas.


[13] Held:


[14] 1. MCA §7 denies the federal courts jurisdiction to hear habeas actions, like the instant cases, that were pending at the time of its enactment. Section §7(b)'s effective date provision undoubtedly applies to habeas actions, which, by definition, "relate to ... detention" within that section's meaning. Petitioners argue to no avail that §7(b) does not apply to a §2241(e)(1) habeas action, but only to "any other action" under §2241(e)(2), because it largely repeats that section's language. The phrase "other action" in §2241(e)(2) cannot be understood without referring back to §2241(e)(1), which explicitly mentions the "writ of habeas corpus." Because the two paragraphs' structure implies that habeas is a type of action "relating to any aspect of ... detention," etc., pending habeas actions are in the category of cases subject to the statute's jurisdictional bar. This is confirmed by the MCA's legislative history. Thus, if MCA §7 is valid, petitioners' cases must be dismissed. Pp. 5-8.


[15] 2. Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension Clause's protections because they have been designated as enemy combatants or because of their presence at Guantanamo. Pp. 8-41.


[16] (a) A brief account of the writ's history and origins shows that protection for the habeas privilege was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights; in the system the Framers conceived, the writ has a centrality that must inform proper interpretation of the Suspension Clause. That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken in the Suspension Clause to specify the limited grounds for its suspension: The writ may be suspended only when public safety requires it in times of rebellion or invasion. The Clause is designed to protect against cyclical abuses of the writ by the Executive and Legislative Branches. It protects detainee rights by a means consistent with the Constitution's essential design, ensuring that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the "delicate balance of governance." Hamdi, supra, at 536. Separation-of-powers principles, and the history that influenced their design, inform the Clause's reach and purpose. Pp. 8-15.


[17] (b) A diligent search of founding-era precedents and legal commentaries reveals no certain conclusions. None of the cases the parties cite reveal whether a common-law court would have granted, or refused to hear for lack of jurisdiction, a habeas petition by a prisoner deemed an enemy combatant, under a standard like the Defense Department's in these cases, and when held in a territory, like Guantanamo, over which the Government has total military and civil control. The evidence as to the writ's geographic scope at common law is informative, but, again, not dispositive. Petitioners argue that the site of their detention is analogous to two territories outside England to which the common-law writ ran, the exempt jurisdictions and India, but critical differences between these places and Guantanamo render these claims unpersuasive. The Government argues that Guantanamo is more closely analogous to Scotland and Hanover, where the writ did not run, but it is unclear whether the common-law courts lacked the power to issue the writ there, or whether they refrained from doing so for prudential reasons. The parties' arguments that the very lack of a precedent on point supports their respective positions are premised upon the doubtful assumptions that the historical record is complete and that the common law, if properly understood, yields a definite answer to the questions before the Court. Pp. 15-22.


[18] (c) The Suspension Clause has full effect at Guantanamo. The Government's argument that the Clause affords petitioners no rights because the United States does not claim sovereignty over the naval station is rejected. Pp. 22-42.


[19] (i) The Court does not question the Government's position that Cuba maintains sovereignty, in the legal and technical sense, over Guantanamo, but it does not accept the Government's premise that de jure sovereignty is the touchstone of habeas jurisdiction. Common-law habeas' history provides scant support for this proposition, and it is inconsistent with the Court's precedents and contrary to fundamental separation-of-powers principles. Pp. 22-25.


[20] (ii) Discussions of the Constitution's extraterritorial application in cases involving provisions other than the Suspension Clause undermine the Government's argument. Fundamental questions regarding the Constitution's geographic scope first arose when the Nation acquired Hawaii and the noncontiguous Territories ceded by Spain after the Spanish-American War, and Congress discontinued its prior practice of extending constitutional rights to territories by statute. In the so-called Insular Cases, the Court held that the Constitution had independent force in the territories that was not contingent upon acts of legislative grace. See, e.g., Dorr v. United States, 195 U. S. 138. Yet because of the difficulties and disruption inherent in transforming the former Spanish colonies' civil-law system into an Anglo-American system, the Court adopted 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. See, e.g., id., at 143. Practical considerations likewise influenced the Court's analysis in Reid v. Covert, 354 U. S. 1, where, in applying the jury provisions of the Fifth and Sixth Amendments to American civilians being tried by the U. S. military abroad, both the plurality and the concurrences noted the relevance of practical considerations, related not to the petitioners' citizenship, but to the place of their confinement and trial. Finally, in holding that habeas jurisdiction did not extend to enemy aliens, convicted of violating the laws of war, who were detained in a German prison during the Allied Powers' post-World War II occupation, the Court, in Johnson v. Eisentrager, 339 U. S. 763, stressed the practical difficulties of ordering the production of the prisoners, id., at 779. The Government's reading of Eisentrager as adopting a formalistic test for determining the Suspension Clause's reach is rejected because: (1) the discussion of practical considerations in that case was integral to a part of the Court's opinion that came before it announced its holding, see id., at 781; (2) it mentioned the concept of territorial sovereignty only twice in its opinion, in contrast to its significant discussion of practical barriers to the running of the writ; and (3) if the Government's reading were correct, the opinion would have marked not only a change in, but a complete repudiation of, the Insular Cases' (and later Reid's) functional approach. A constricted reading of Eisentrager overlooks what the Court sees as a common thread uniting all these cases: The idea that extraterritoriality questions turn on objective factors and practical concerns, not formalism. Pp. 25-34.


[21] (iii) The Government's sovereignty-based test raises troubling separation-of-powers concerns, which are illustrated by Guantanamo's political history. Although the United States has maintained complete and uninterrupted control of Guantanamo for over 100 years, the Government's view is that the Constitution has no effect there, at least as to noncitizens, because the United States disclaimed formal sovereignty in its 1903 lease with Cuba. The Nation's basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say "what the law is." Marbury v. Madison, 1 Cranch 137, 177. These concerns have particular bearing upon the Suspension Clause question here, for the habeas writ is itself an indispensable mechanism for monitoring the separation of powers. Pp. 34-36.


[22] (iv) Based on Eisentrager, supra, at 777, and the Court's reasoning in its other extraterritoriality opinions, at least three factors are relevant in determining the Suspension Clause's reach: (1) the detainees' citizenship and status and the adequacy of the process through which that status was determined; (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. Application of this framework reveals, first, that petitioners' status is in dispute: They are not American citizens, but deny they are enemy combatants; and although they have been afforded some process in CSRT proceedings, there has been no Eisentrager-style trial by military commission for violations of the laws of war. Second, while the sites of petitioners' apprehension and detention weigh against finding they have Suspension Clause rights, there are critical differences between Eisentrager's German prison, circa 1950, and the Guantanamo Naval Station in 2008, given the Government's absolute and indefinite control over the naval station. Third, although the Court is sensitive to the financial and administrative costs of holding the Suspension Clause applicable in a case of military detention abroad, these factors are not dispositive because the Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas courts had jurisdiction. The situation in Eisentrager was far different, given the historical context and nature of the military's mission in post-War Germany. Pp. 36-41.


[23] (d) Petitioners are therefore entitled to the habeas privilege, and if that privilege is to be denied them, Congress must act in accordance with the Suspension Clause's requirements. Cf. Rasul, 542 U. S., at 564. Pp. 41-42.


[24] 3. Because the DTA's procedures for reviewing detainees' status are not an adequate and effective substitute for the habeas writ, MCA §7 operates as an unconstitutional suspension of the writ. Pp. 42-64.


[25] (a) Given its holding that the writ does not run to petitioners, the D. C. Circuit found it unnecessary to consider whether there was an adequate substitute for habeas. This Court usually remands for consideration of questions not decided below, but departure from this rule is appropriate in "exceptional" circumstances, see, e.g., Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 169, here, the grave separation-of-powers issues raised by these cases and the fact that petitioners have been denied meaningful access to a judicial forum for years. Pp. 42-44.


[26] (b) Historically, Congress has taken care to avoid suspensions of the writ. For example, the statutes at issue in the Court's two leading cases addressing habeas substitutes, Swain v. Pressley, 430 U. S. 372, and United States v. Hayman, 342 U. S. 205, were attempts to streamline habeas relief, not to cut it back. Those cases provide little guidance here because, inter alia, the statutes in question gave the courts broad remedial powers to secure the historic office of the writ, and included saving clauses to preserve habeas review as an avenue of last resort. In contrast, Congress intended the DTA and the MCA to circumscribe habeas review, as is evident from the unequivocal nature of MCA §7's jurisdiction-stripping language, from the DTA's text limiting the Court of Appeals' jurisdiction to assessing whether the CSRT complied with the "standards and procedures specified by the Secretary of Defense," DTA §1005(e)(2)(C), and from the absence of a saving clause in either Act. That Congress intended to create a more limited procedure is also confirmed by the legislative history and by a comparison of the DTA and the habeas statute that would govern in MCA §7's absence, 28 U. S. C. §2241. In §2241, Congress authorized "any justice" or "circuit judge" to issue the writ, thereby accommodating the necessity for factfinding that will arise in some cases by allowing the appellate judge or Justice to transfer the case to a district court. See §2241(b). However, by granting the D. C. Circuit "exclusive" jurisdiction over petitioners' cases, see DTA §1005(e)(2)(A), Congress has foreclosed that option in these cases. Pp. 44-49.


[27] (c) This Court does not endeavor to offer a comprehensive summary of the requisites for an adequate habeas substitute. It is uncontroversial, however, that the habeas privilege entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to "the erroneous application or interpretation" of relevant law, INS v. St. Cyr, 533 U. S. 289, 302, and the habeas court must have the power to order the conditional release of an individual unlawfully detained. But more may be required depending on the circumstances. Petitioners identify what they see as myriad deficiencies in the CSRTs, the most relevant being the constraints upon the detainee's ability to rebut the factual basis for the Government's assertion that he is an enemy combatant. At the CSRT stage the detainee has limited means to find or present evidence to challenge the Government's case, does not have the assistance of counsel, and may not be aware of the most critical allegations that the Government relied upon to order his detention. His opportunity to confront witnesses is likely to be more theoretical than real, given that there are no limits on the admission of hearsay. The Court therefore agrees with petitioners that there is considerable risk of error in the tribunal's findings of fact. And given that the consequence of error may be detention for the duration of hostilities that may last a generation or more, the risk is too significant to ignore. Accordingly, for the habeas writ, or its substitute, to function as an effective and meaningful remedy in this context, the court conducting the collateral proceeding must have some ability to correct any errors, to assess the sufficiency of the Government's evidence, and to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding. In re Yamashita, 327 U. S. 1, 5, 8, and Ex parte Quirin, 317 U. S. 1, 23-25, distinguished. Pp. 49-57.


[28] (d) Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas. Among the constitutional infirmities from which the DTA potentially suffers are the absence of provisions allowing petitioners to challenge the President's authority under the AUMF to detain them indefinitely, to contest the CSRT's findings of fact, to supplement the record on review with exculpatory evidence discovered after the CSRT proceedings, and to request release. The statute cannot be read to contain each of these constitutionally required procedures. MCA §7 thus effects an unconstitutional suspension of the writ. There is no jurisdictional bar to the District Court's entertaining petitioners' claims. Pp. 57-64.


[29] 4. Nor are there prudential barriers to habeas review. Pp. 64-70.


[30] (a) Petitioners need not seek review of their CSRT determinations in the D. C. Circuit before proceeding with their habeas actions in the District Court. If these cases involved detainees held for only a short time while awaiting their CSRT determinations, or were it probable that the Court of Appeals could complete a prompt review of their applications, the case for requiring temporary abstention or exhaustion of alternative remedies would be much stronger. But these qualifications no longer pertain here. In some instances six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands. To require these detainees to pursue the limited structure of DTA review before proceeding with habeas actions would be to require additional months, if not years, of delay. This holding should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. Except in cases of undue delay, such as the present, federal courts should refrain from entertaining an enemy combatant's habeas petition at least until after the CSRT has had a chance to review his status. Pp. 64-67.


[31] (b) In effectuating today's holding, certain accommodations -- including channeling future cases to a single district court and requiring that court to use its discretion to accommodate to the greatest extent possible the Government's legitimate interest in protecting sources and intelligence gathering methods -- should be made to reduce the burden habeas proceedings will place on the military, without impermissibly diluting the writ's protections. Pp. 67-68.


[32] 5. In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, the courts must accord proper deference to the political branches. However, security subsists, too, in fidelity to freedom's first principles, chief among them being freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. Pp. 68-70.


[33] 476 F. 3d 981, reversed and remanded.


[34] Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Souter, J., filed a concurring opinion, in which Ginsburg and Breyer, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas and Alito, JJ., joined.


[35] On Writs of Certiorari to the United States Court of Appeals for the District of Columbia Ccircuit Court Below: 476 F. 3d 981


[36] Seth P. Waxman argued the cause for petitioners in both cases. With him on the briefs for petitioner Lakhdar Boumediene et al. in No. 06-1195 were Paul R. Q. Wolfson, Jonathan G. Cedarbaum, Douglas F. Curtis, Paul M. Winke, Stephen H. Oleskey, Robert C. Kirsch, Mark C. Fleming, and Pratik A. Shah. David J. Cynamon, Matthew J. MacLean, David H. Remes, and Marc D. Falkoff filed briefs for petitioner Khaled A. F. Al Odah et al. in No. 06-1196. Thomas B. Wilner, Neil H. Koslowe, George Brent Mickum IV, John J. Gibbons, Lawrence S. Lustberg, Michael Ratner, J. Wells Dixon, Shayana Kadidal, Mark S. Sullivan, Pamela Rogers Chepiga, Joseph Margulies, Erwin Chemerinsky, Baher Azmy, Kristine Huskey, Douglas J. Behr, and Clive Stafford Smith filed briefs for petitioner Jamil El-Banna et al. in No. 06-1196. William C. Kuebler, Rebecca Snyder, and Walter Dellinger filed a brief for Omar Khadr as respondent in No. 06-1196 under this Court?s Rule 12.6 in support of petitioners.


[37] Solicitor General Clement argued the cause for respondents in both cases. With him on the brief were Acting Solicitor General Garre, Assistant Attorney General Keisler, Principal Deputy Associate Attorney General Katsas, Eric D. Miller, Douglas N. Letter, Robert M. Loeb, August E. Flentje, Pamela M. Stahl, and Jennifer Paisner.


[38] Briefs of amici curiae urging reversal in both cases were filed for the American Bar Association by William H. Neukom and Sidney S. Rosdeitcher; for the American Civil Liberties Union et al. by Cecillia D. Wang, Lucas Guttentag, Steven R. Shapiro, Arthur H. Bryant, and Victoria W. Ni; for the Association of the Bar of the City of New York by Arthur F. Fergenson and David E. Nachman; for Canadian Parliamentarians and Professors of Law by William R. Stein and Scott H. Christensen; for the Cato Institute by Timothy Lynch; for the Coalition of Non-Governmental Organizations by Jonathan S. Franklin, Stephen M. McNabb, Sharon Bradford Franklin, and John W. Whitehead; for the Federal Public Defender for the Southern District of Florida by Paul M. Rashkind; for Former Federal Judges by Beth S. Brinkmann, Seth M. Galanter, Ketanji Brown Jackson, and Agnieszka M. Fryszman; for Former United States Diplomat Diego C. Asencio et al. by Douglass Cassel; for International Humanitarian Law Experts by Harrison J. Frahn IV and Beth Van Schaack; for Professors of Constitutional Law and Federal Jurisdiction by Margaret L. Sanner, Gerald L. Neuman, pro se, and Harold Hongju Koh, pro se; for Retired Military Officers by James C. Schroeder, Gary A. Isaac, and Philip Allen Lacovara; for Specialists in Israeli Military Law and Constitutional Law by Stephen J. Schulhofer, Charles T. Lester, Jr., John A. Chandler, and Avital Stadler; for the United Nations High Commissioner for Human Rights by Donald Francis Donovan, Catherine M. Amirfar, and William H. Taft V; for Salim Hamdan by Neal K. Katyal, Harry H. Schneider, Jr., Joseph M. McMillan, Laurence H. Tribe, Kevin K. Russell, and Charles Swift; and for United States Senator Arlen Specter, by Sen. Specter, pro se.


[39] Briefs of amici curiae urging affirmance in both cases were filed for the Criminal Justice Legal Foundation by Kent S. Scheidegger; and for Retired Generals and Admirals et al. by Daniel J. Popeo and Richard A. Samp.


[40] Briefs of amici curiae in were filed in both cases for 383 United Kingdom and European Parliamentarians by Claude B. Stansbury; for the American Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, and Robert W. Ash; for Amnesty International et al. by Paul L. Hoffman and William J. Aceves; for the Commonwealth Lawyers Association by John Townsend Rich and Stephen J. Pollak; for Federal Courts and International Law Professors by David C. Vladeck; for Legal Historians by James Oldhman, Michael J. Wishnie, and Jonathan Hafetz; for the National Institute of Military Justice by Jennifer S. Martinez, Ronald W. Meister, Stephen A. Saltzburg, and Arnon D. Siegel; and for Scholar Paul Finkelman et al. by David Overlock Stewart.


[41] Andrew G. McBride filed a brief for the Foundation for Defense of Democracies et al. as amici curiae urging affirmance in No. 06-1195.


[42] Briefs of amici curiae were filed for International Law Scholars by Sarah H. Paoletti in No. 06-1196; and for the Juvenile Law Center et al. by Marsha L. Levick.


[43] The opinion of the court was delivered by: Justice Kennedy


[44] Opinion of the Court


[45] 553 U. S. ____ (2008)


[46] Petitioners are aliens designated as enemy combatants and detained at the United States Naval Station at Guantanamo Bay, Cuba. There are others detained there, also aliens, who are not parties to this suit.


[47] 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, Art. I, §9, cl. 2. We hold these petitioners do have the habeas corpus privilege. Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, 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), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court.


[48] I.


[49] Under the Authorization for Use of Military Force (AUMF), §2(a), 115 Stat. 224, note following 50 U. S. C. §1541 (2000 ed., Supp. V), the President is authorized "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."


[50] In Hamdi v. Rumsfeld, 542 U. S. 507 (2004), five Members of the Court recognized that detention of individuals who fought against the United States in Afghanistan "for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the `necessary and appropriate force' Congress has authorized the President to use." Id., at 518 (plurality opinion of O'Connor, J.), id., at 588-589 (Thomas, J., dissenting). After Hamdi, the Deputy Secretary of Defense established Combatant Status Review Tribunals (CSRTs) to determine whether individuals detained at Guantanamo were "enemy combatants," as the Department defines that term. See App. to Pet. for Cert. in No. 06-1195, p. 81a. A later memorandum established procedures to implement the CSRTs. See App. to Pet. for Cert. in No. 06-1196, p. 147. The Government maintains these procedures were designed to comply with the due process requirements identified by the plurality in Hamdi. See Brief for Respondents 10.


[51] Interpreting the AUMF, the Department of Defense ordered the detention of these petitioners, and they were transferred to Guantanamo. Some of these individuals were apprehended on the battlefield in Afghanistan, others in places as far away from there as Bosnia and Gambia. All are foreign nationals, but none is a citizen of a nation now at war with the United States. Each denies he is a member of the al Qaeda terrorist network that carried out the September 11 attacks or of the Taliban regime that provided sanctuary for al Qaeda. Each petitioner appeared before a separate CSRT; was determined to be an enemy combatant; and has sought a writ of habeas corpus in the United States District Court for the District of Columbia.


[52] The first actions commenced in February 2002. The District Court ordered the cases dismissed for lack of jurisdiction because the naval station is outside the sovereign territory of the United States. See Rasul v. Bush, 215 F. Supp. 2d 55 (2002). The Court of Appeals for the District of Columbia Circuit affirmed. See Al Odah v. United States, 321 F. 3d 1134, 1145 (2003). We granted certiorari and reversed, holding that 28 U. S. C. §2241 extended statutory habeas corpus jurisdiction to Guantanamo. See Rasul v. Bush, 542 U. S. 466, 473 (2004). The constitutional issue presented in the instant cases was not reached in Rasul. Id., at 476.


[53] After Rasul, petitioners' cases were consolidated and entertained in two separate proceedings. In the first set of cases, Judge Richard J. Leon granted the Government's motion to dismiss, holding that the detainees had no rights that could be vindicated in a habeas corpus action. In the second set of cases Judge Joyce Hens Green reached the opposite conclusion, holding the detainees had rights under the Due Process Clause of the Fifth Amendment. See Khalid v. Bush, 355 F. Supp. 2d 311, 314 (DC 2005); In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 464 (DC 2005).


[54] While appeals were pending from the District Court decisions, Congress passed the DTA. Subsection (e) of §1005 of the DTA amended 28 U. S. C. §2241 to provide that "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 Department of Defense at Guantanamo Bay, Cuba." 119 Stat. 2742. Section 1005 further provides that the Court of Appeals for the District of Columbia Circuit shall have "exclusive" jurisdiction to review decisions of the CSRTs. Ibid.


[55] In Hamdan v. Rumsfeld, 548 U. S. 557, 576-577 (2006), the Court held this provision did not apply to cases (like petitioners') pending when the DTA was enacted. Congress responded by passing the MCA, 10 U. S. C. A. §948a et seq. (Supp. 2007), which again amended §2241. The text of the statutory amendment is discussed below. See Part II, infra. (Four Members of the Hamdan majority noted that "[n]othing prevent[ed] the President from returning to Congress to seek the authority he believes necessary." 548 U. S., at 636 (Breyer, J., concurring). The authority to which the concurring opinion referred was the authority to "create military commissions of the kind at issue" in the case. Ibid. Nothing in that opinion can be construed as an invitation for Congress to suspend the writ.)


[56] Petitioners' cases were consolidated on appeal, and the parties filed supplemental briefs in light of our decision in Hamdan. The Court of Appeals' ruling, 476 F. 3d 981 (CADC 2007), is the subject of our present review and today's decision.


[57] The Court of Appeals concluded that MCA §7 must be read to strip from it, and all federal courts, jurisdiction to consider petitioners' habeas corpus applications, id., at 987; that petitioners are not entitled to the privilege of the writ or the protections of the Suspension Clause, id., at 990-991; and, as a result, that it was unnecessary to consider whether Congress provided an adequate and effective substitute for habeas corpus in the DTA.


[58] We granted certiorari. 551 U. S. ___ (2007).


[59] II.


[60] As a threshold matter, we must decide whether MCA §7 denies the federal courts jurisdiction to hear habeas corpus actions pending at the time of its enactment. We hold the statute does deny that jurisdiction, so that, if the statute is valid, petitioners' cases must be dismissed.


[61] As amended by the terms of the MCA, 28 U. S. C. A. §2241(e) (Supp. 2007) now provides:


[62] "(1) 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.


[63] "(2) Except as provided in [§§1005(e)(2) and (e)(3) of the DTA] no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."


[64] Section 7(b) of the MCA provides the effective date for the amendment of §2241(e). It states:


[65] "The amendment made by [MCA §7(a)] shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001." 120 Stat. 2636.


[66] There is little doubt that the effective date provision applies to habeas corpus actions. Those actions, by definition, are cases "which relate to ... detention." See Black's Law Dictionary 728 (8th ed. 2004) (defining habeas corpus as "[a] writ employed to bring a person before a court, most frequently to ensure that the party's imprisonment or detention is not illegal"). Petitioners argue, nevertheless, that MCA §7(b) is not a sufficiently clear statement of congressional intent to strip the federal courts of jurisdiction in pending cases. See Ex parte Yerger, 8 Wall. 85, 102-103 (1869). We disagree.


[67] Their argument is as follows: Section 2241(e)(1) refers to "a writ of habeas corpus." The next paragraph, §2241(e)(2), refers to "any other action ... relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who ... [has] been properly detained as an enemy combatant or is awaiting such determination." There are two separate paragraphs, the argument continues, so there must be two distinct classes of cases. And the effective date subsection, MCA §7(b), it is said, refers only to the second class of cases, for it largely repeats the language of §2241(e)(2) by referring to "cases ... which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States."


[68] Petitioners' textual argument would have more force were it not for the phrase "other action" in §2241(e)(2). The phrase cannot be understood without referring back to the paragraph that precedes it, §2241(e)(1), which explicitly mentions the term "writ of habeas corpus." The structure of the two paragraphs implies that habeas actions are a type of action "relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained ... as an enemy combatant." Pending habeas actions, then, are in the category of cases subject to the statute's jurisdictional bar.


[69] We acknowledge, moreover, the litigation history that prompted Congress to enact the MCA. In Hamdan the Court found it unnecessary to address the petitioner's Suspension Clause arguments but noted the relevance of the clear statement rule in deciding whether Congress intended to reach pending habeas corpus cases. See 548 U. S., at 575 (Congress should "not be presumed to have effected such denial [of habeas relief] absent an unmistakably clear statement to the contrary"). This interpretive rule facilitates a dialogue between Congress and the Court. Cf. Hilton v. South Carolina Public Railways Comm'n, 502 U. S. 197, 206 (1991); H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1209-1210 (W. Eskridge & P. Frickey eds. 1994). If the Court invokes a clear statement rule to advise that certain statutory interpretations are favored in order to avoid constitutional difficulties, Congress can make an informed legislative choice either to amend the statute or to retain its existing text. If Congress amends, its intent must be respected even if a difficult constitutional question is presented. The usual presumption is that Members of Congress, in accord with their oath of office, considered the constitutional issue and determined the amended statute to be a lawful one; and the Judiciary, in light of that determination, proceeds to its own independent judgment on the constitutional question when required to do so in a proper case.


[70] If this ongoing dialogue between and among the branches of Government is to be respected, we cannot ignore that the MCA was a direct response to Hamdan's holding that the DTA's jurisdiction-stripping provision had no application to pending cases. The Court of Appeals was correct to take note of the legislative history when construing the statute, see 476 F. 3d, at 986, n. 2 (citing relevant floor statements); and we agree with its conclusion that the MCA deprives the federal courts of jurisdiction to entertain the habeas corpus actions now before us.


[71] III.


[72] In deciding the constitutional questions now presented we must determine whether petitioners are barred from seeking the writ or invoking the protections of the Suspension Clause either because of their status, i.e., petitioners' designation by the Executive Branch as enemy combatants, or their physical location, i.e., their presence at Guantanamo Bay. The Government contends that noncitizens designated as enemy combatants and detained in territory located outside our Nation's borders have no constitutional rights and no privilege of habeas corpus. Petitioners contend they do have cognizable constitutional rights and that Congress, in seeking to eliminate recourse to habeas corpus as a means to assert those rights, acted in violation of the Suspension Clause.


[73] We begin with a brief account of the history and origins of the writ. Our account proceeds from two propositions. First, protection for the privilege of habeas corpus was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights. In the system conceived by the Framers the writ had a centrality that must inform proper interpretation of the Suspension Clause. Second, to the extent there were settled precedents or legal commentaries in 1789 regarding the extraterritorial scope of the writ or its application to enemy aliens, those authorities can be instructive for the present cases.


[74] A.


[75] The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom. Experience taught, however, that the common-law writ all too often had been insufficient to guard against the abuse of monarchial power. That history counseled the necessity for specific language in the Constitution to secure the writ and ensure its place in our legal system.


[76] Magna Carta decreed that no man would be imprisoned contrary to the law of the land. Art. 39, in Sources of Our Liberties 17 (R. Perry & J. Cooper eds. 1959) ("No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land"). Important as the principle was, the Barons at Runnymede prescribed no specific legal process to enforce it. Holdsworth tells us, however, that gradually the writ of habeas corpus became the means by which the promise of Magna Carta was fulfilled. 9 W. Holdsworth, A History of English Law 112 (1926) (hereinafter Holdsworth).


[77] The development was painstaking, even by the centuries-long measures of English constitutional history. The writ was known and used in some form at least as early as the reign of Edward I. Id., at 108-125. Yet at the outset it was used to protect not the rights of citizens but those of the King and his courts. The early courts were considered agents of the Crown, designed to assist the King in the exercise of his power. See J. Baker, An Introduction to English Legal History 38-39 (4th ed. 2002). Thus the writ, while it would become part of the foundation of liberty for the King's subjects, was in its earliest use a mechanism for securing compliance with the King's laws. See Halliday & White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L. Rev. (forthcoming 2008) (hereinafter Halliday & White) (manuscript, at 11, online at http://papers.ssrn.com/sol3 /papers.cfm?abstract_id=1008252 (all Internet materials as visited June 9, 2008, and available in Clerk of Court's case file) (noting that "conceptually the writ arose from a theory of power rather than a theory of liberty")). Over time it became clear that by issuing the writ of habeas corpus common-law courts sought to enforce the King's prerogative to inquire into the authority of a jailer to hold a prisoner. See M. Hale, Prerogatives of the King 229 (D. Yale ed. 1976); 2 J. Story, Commentaries on the Constitution of the United States §1341, p. 237 (3d ed. 1858) (noting that the writ ran "into all parts of the king's dominions; for it is said, that the king is entitled, at all times, to have an account, why the liberty of any of his subjects is restrained").


[78] Even so, from an early date it was understood that the King, too, was subject to the law. As the writers said of Magna Carta, "it means this, that the king is and shall be below the law." 1 F. Pollock & F. Maitland, History of English Law 173 (2d ed. 1909); see also 2 Bracton On the Laws and Customs of England 33 (S. Thorne transl. 1968) ("The king must not be under man but under God and under the law, because law makes the king"). And, by the 1600's, the writ was deemed less an instrument of the King's power and more a restraint upon it. See Collings, Habeas Corpus for Convicts -- Constitutional Right or Legislative Grace, 40 Calif. L. Rev. 335, 336 (1952) (noting that by this point the writ was "the appropriate process for checking illegal imprisonment by public officials").


[79] Still, the writ proved to be an imperfect check. Even when the importance of the writ was well understood in England, habeas relief often was denied by the courts or suspended by Parliament. Denial or suspension occurred in times of political unrest, to the anguish of the imprisoned and the outrage of those in sympathy with them.


[80] A notable example from this period was Darnel's Case, 3 How. St. Tr. 1 (K. B. 1627). The events giving rise to the case began when, in a display of the Stuart penchant for authoritarian excess, Charles I demanded that Darnel and at least four others lend him money. Upon their refusal, they were imprisoned. The prisoners sought a writ of habeas corpus; and the King filed a return in the form of a warrant signed by the Attorney General. Ibid. The court held this was a sufficient answer and justified the subjects' continued imprisonment. Id., at 59.


[81] There was an immediate outcry of protest. The House of Commons promptly passed the Petition of Right, 3 Car. 1, ch. 1 (1627), 5 Statutes of the Realm 23, 24 (reprint 1963), which condemned executive "imprison[ment] without any cause" shown, and declared that "no freeman in any such manner as is before mencioned [shall] be imprisoned or deteined." Yet a full legislative response was long delayed. The King soon began to abuse his authority again, and Parliament was dissolved. See W. Hall & R. Albion, A History of England and the British Empire 328 (3d ed. 1953) (hereinafter Hall & Albion). When Parliament reconvened in 1640, it sought to secure access to the writ by statute. The Act of 1640, 16 Car. 1, ch. 10, 5 Statutes of the Realm, at 110, expressly authorized use of the writ to test the legality of commitment by command or warrant of the King or the Privy Council. Civil strife and the Interregnum soon followed, and not until 1679 did Parliament try once more to secure the writ, this time through the Habeas Corpus Act of 1679, 31 Car. 2, ch. 2, id., at 935. The Act, which later would be described by Blackstone as the "stable bulwark of our liberties," 1 W. Blackstone, Commentaries *137 (hereinafter Blackstone), established procedures for issuing the writ; and it was the model upon which the habeas statutes of the 13 American Colonies were based, see Collings, supra, at 338-339.


[82] This history was known to the Framers. It no doubt confirmed their view that pendular swings to and away from individual liberty were endemic to undivided, uncontrolled power. The Framers' inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty. See Loving v. United States, 517 U. S. 748, 756 (1996) (noting that "[e]ven before the birth of this country, separation of powers was known to be a defense against tyranny"); cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring) ("[T]he Constitution diffuses power the better to secure liberty"); Clinton v. City of New York, 524 U. S. 417, 450 (1998) (Kennedy, J., concurring) ("Liberty is always at stake when one or more of the branches seek to transgress the separation of powers"). Because the Constitution's separation-of-powers structure, like the substantive guarantees of the Fifth and Fourteenth Amendments, see Yick Wo v. Hopkins, 118 U. S. 356, 374 (1886), protects persons as well as citizens, foreign nationals who have the privilege of litigating in our courts can seek to enforce separation-of-powers principles, see, e.g., INS v. Chadha, 462 U. S. 919, 958-959 (1983).


[83] That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken to specify the limited grounds for its suspension: "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." Art. I, §9, cl. 2; see Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425, 1509, n. 329 (1987) ("[T]he non-suspension clause is the original Constitution's most explicit reference to remedies"). The word "privilege" was used, perhaps, to avoid mentioning some rights to the exclusion of others. (Indeed, the only mention of the term "right" in the Constitution, as ratified, is in its clause giving Congress the power to protect the rights of authors and inventors. See Art. I, §8, cl. 8.)


[84] Surviving accounts of the ratification debates provide additional evidence that the Framers deemed the writ to be an essential mechanism in the separation-of-powers scheme. In a critical exchange with Patrick Henry at the Virginia ratifying convention Edmund Randolph referred to the Suspension Clause as an "exception" to the "power given to Congress to regulate courts." See 3 Debates in the Several State Conventions on the Adoption of the Federal Constitution 460-464 (J. Elliot 2d ed. 1876) (hereinafter Elliot's Debates). A resolution passed by the New York ratifying convention made clear its understanding that the Clause not only protects against arbitrary suspensions of the writ but also guarantees an affirmative right to judicial inquiry into the causes of detention. See Resolution of the New York Ratifying Convention (July 26, 1788), in 1 Elliot's Debates 328 (noting the convention's understanding "[t]hat every person restrained of his liberty is entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof if unlawful; and that such inquiry or removal ought not to be denied or delayed, except when, on account of public danger, the Congress shall suspend the privilege of the writ of habeas corpus"). Alexander Hamilton likewise explained that by providing the detainee a judicial forum to challenge detention, the writ preserves limited government. As he explained in The Federalist No. 84:


[85] "[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone ... are well worthy of recital: `To bereave a man of life ... or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.' And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls `the bulwark of the British Constitution.' " C. Rossiter ed., p. 512 (1961) (quoting 1 Blackstone *136, 4 id., at *438).


[86] Post-1789 habeas developments in England, though not bearing upon the Framers' intent, do verify their foresight. Those later events would underscore the need for structural barriers against arbitrary suspensions of the writ. Just as the writ had been vulnerable to executive and parliamentary encroachment on both sides of the Atlantic before the American Revolution, despite the Habeas Corpus Act of 1679, the writ was suspended with frequency in England during times of political unrest after 1789. Parliament suspended the writ for much of the period from 1792 to 1801, resulting in rampant arbitrary imprisonment. See Hall & Albion 550. Even as late as World War I, at least one prominent English jurist complained that the Defence of the Realm Act, 1914, 4 & 5 Geo. 5, ch. 29(1)(a), effectively had suspended the privilege of habeas corpus for any person suspected of "communicating with the enemy." See King v. Halliday, [1917] A. C. 260, 299 (Lord Shaw, dissenting); see generally A. Simpson, In the Highest Degree Odious: Detention Without Trial in Wartime Britain 6-7, 24-25 (1992).


[87] In our own system the Suspension Clause is designed to protect against these cyclical abuses. The Clause protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the "delicate balance of governance" that is itself the surest safeguard of liberty. See Hamdi, 542 U. S., at 536 (plurality opinion). The Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account. See Preiser v. Rodriguez, 411 U. S. 475, 484 (1973) ("[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody"); cf. In re Jackson, 15 Mich. 417, 439-440 (1867) (Cooley, J., concurring) ("The important fact to be observed in regard to the mode of procedure upon this [habeas] writ is, that it is directed to, and served upon, not the person confined, but his jailer"). The separation-of-powers doctrine, and the history that influenced its design, therefore must inform the reach and purpose of the Suspension Clause.


[88] B.


[89] The broad historical narrative of the writ and its function is central to our analysis, but we seek guidance as well from founding-era authorities addressing the specific question before us: 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. The Court has been careful not to foreclose the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments that define the present scope of the writ. See INS v. St. Cyr, 533 U. S. 289, 300-301 (2001). But the analysis may begin with precedents as of 1789, for the Court has said that "at the absolute minimum" the Clause protects the writ as it existed when the Constitution was drafted and ratified. Id., at 301.


[90] To support their arguments, the parties in these cases have examined historical sources to construct a view of the common-law writ as it existed in 1789 -- as have amici whose expertise in legal history the Court has relied upon in the past. See Brief for Legal Historians as Amici Curiae; see also St. Cyr, supra, at 302, n. 16. The Government argues the common-law writ ran only to those territories over which the Crown was sovereign. See Brief for Respondents 27. Petitioners argue that jurisdiction followed the King's officers. See Brief for Petitioner Boumediene et al. 11. Diligent search by all parties reveals no certain conclusions. In none of the cases cited do we find that a common-law court would or would not have granted, or refused to hear for lack of jurisdiction, a petition for a writ of habeas corpus brought by a prisoner deemed an enemy combatant, under a standard like the one the Department of Defense has used in these cases, and when held in a territory, like Guantanamo, over which the Government has total military and civil control.


[91] We know that at common law a petitioner's status as an alien was not a categorical bar to habeas corpus relief. See, e.g., Sommersett's Case, 20 How. St. Tr. 1, 80-82 (1772) (ordering an African slave freed upon finding the custodian's return insufficient); see generally Khera v. Secretary of State for the Home Dept., [1984] A. C. 74, 111 ("Habeas corpus protection is often expressed as limited to `British subjects.' Is it really limited to British nationals? Suffice it to say that the case law has given an emphatic `no' to the question"). We know as well that common-law courts entertained habeas petitions brought by enemy aliens detained in England -- "entertained" at least in the sense that the courts held hearings to determine the threshold question of entitlement to the writ. See Case of Three Spanish Sailors, 2 Black. W. 1324, 96 Eng. Rep. 775 (C. P. 1779); King v. Schiever, 2 Burr. 765, 97 Eng. Rep. 551 (K. B. 1759); Du Castro's Case, Fort. 195, 92 Eng. Rep. 816 (K. B. 1697).


[92] In Schiever and the Spanish Sailors' case, the courts denied relief to the petitioners. Whether the holdings in these cases were jurisdictional or based upon the courts' ruling that the petitioners were detained lawfully as prisoners of war is unclear. See Spanish Sailors, supra, at 1324, 96 Eng. Rep., at 776; Schiever, supra, at 766, 97 Eng. Rep., at 552. In Du Castro's Case, the court granted relief, but that case is not analogous to petitioners' because the prisoner there appears to have been detained in England. See Halliday & White 27, n. 72. To the extent these authorities suggest the common-law courts abstained altogether from matters involving prisoners of war, there was greater justification for doing so in the context of declared wars with other nation states. Judicial intervention might have complicated the military's ability to negotiate exchange of prisoners with the enemy, a wartime practice well known to the Framers. See Resolution of Mar. 30, 1778, 10 Journals of the Continental Congress 1774-1789, p. 295 (W. Ford ed. 1908) (directing General Washington not to exchange prisoners with the British unless the enemy agreed to exempt citizens from capture).


[93] We find the evidence as to the geographic scope of the writ at common law informative, but, again, not dispositive. Petitioners argue the site of their detention is analogous to two territories outside of England to which the writ did run: the so-called "exempt jurisdictions," like the Channel Islands; and (in former times) India. There are critical differences between these places and Guantanamo, however.


[94] As the Court noted in Rasul, 542 U. S., at 481-482, and nn. 11-12, common-law courts granted habeas corpus relief to prisoners detained in the exempt jurisdictions. But these areas, while not in theory part of the realm of England, were nonetheless under the Crown's control. See 2 H. Hallam, Constitutional History of England: From the Accession of Henry VII to the Death of George II, pp. 232-233 (reprint 1989). And there is some indication that these jurisdictions were considered sovereign territory. King v. Cowle, 2 Burr. 834, 854, 855, 97 Eng. Rep. 587, 599 (K. B. 1759) (describing one of the exempt jurisdictions, Berwick-upon-Tweed, as under the "sovereign jurisdiction" and "subjection of the Crown of England"). Because the United States does not maintain formal sovereignty over Guantanamo Bay, see Part IV, infra, the naval station there and the exempt jurisdictions discussed in the English authorities are not similarly situated.


[95] Petitioners and their amici further rely on cases in which British courts in India granted writs of habeas corpus to noncitizens detained in territory over which the Moghul Emperor retained formal sovereignty and control. See supra, at 12-13; Brief for Legal Historians as Amici Curiae 12-13. The analogy to the present cases breaks down, however, because of the geographic location of the courts in the Indian example. The Supreme Court of Judicature (the British Court) sat in Calcutta; but no federal court sits at Guantanamo. The Supreme Court of Judicature was, moreover, a special court set up by Parliament to monitor certain conduct during the British Raj. See Regulating Act of 1773, 13 Geo. 3, §§13-14. That it had the power to issue the writ in nonsovereign territory does not prove that common-law courts sitting in England had the same power. If petitioners were to have the better of the argument on this point, we would need some demonstration of a consistent practice of common-law courts sitting in England and entertaining petitions brought by alien prisoners detained abroad. We find little support for this conclusion.


[96] The Government argues, in turn, that Guantanamo is more closely analogous to Scotland and Hanover, territories that were not part of England but nonetheless controlled by the English monarch (in his separate capacities as King of Scotland and Elector of Hanover). See Cowle, 2 Burr., at 856, 97 Eng. Rep., at 600. Lord Mansfield can be cited for the proposition that, at the time of the founding, English courts lacked the "power" to issue the writ to Scotland and Hanover, territories Lord Mansfield referred to as "foreign." Ibid. But what matters for our purposes is why common-law courts lacked this power. Given the English Crown's delicate and complicated relationships with Scotland and Hanover in the 1700's, we cannot disregard the possibility that the common-law courts' refusal to issue the writ to these places was motivated not by formal legal constructs but by what we would think of as prudential concerns. This appears to have been the case with regard to other British territories where the writ did not run. See 2 R. Chambers, A Course of Lectures on English Law 1767-1773, p. 8 (T. Curley ed. 1986) (quoting the view of Lord Mansfield in Cowle that "[n]otwithstanding the power which the judges have, yet where they cannot judge of the cause, or give relief upon it, they would not think proper to interpose; and therefore in the case of imprisonments in Guernsey, Jersey, Minorca, or the plantations, the most usual way is to complain to the king in Council" (internal quotation marks omitted)). And after the Act of Union in 1707, through which the kingdoms of England and Scotland were merged politically, Queen Anne and her successors, in their new capacity as sovereign of Great Britain, ruled the entire island as one kingdom. Accordingly, by the time Lord Mansfield penned his opinion in Cowle in 1759, Scotland was no longer a "foreign" country vis-À-vis England -- at least not in the sense in which Cuba is a foreign country vis-À-vis the United States.


[97] Scotland remained "foreign" in Lord Mansfield's day in at least one important respect, however. Even after the Act of Union, Scotland (like Hanover) continued to maintain its own laws and court system. See 1 Blackstone *98, *109. Under these circumstances prudential considerations would have weighed heavily when courts sitting in England received habeas petitions from Scotland or the Electorate. Common-law decisions withholding the writ from prisoners detained in these places easily could be explained as efforts to avoid either or both of two embarrassments: conflict with the judgments of another court of competent jurisdiction; or the practical inability, by reason of distance, of the English courts to enforce their judgments outside their territorial jurisdiction. Cf. Munaf v. Geren, ante, at 15 (opinion of the Court) (recognizing that " `prudential concerns' ... such as comity and the orderly administration of criminal justice" affect the appropriate exercise of habeas jurisdiction).


[98] By the mid-19th century, British courts could issue the writ to Canada, notwithstanding the fact that Canadian courts also had the power to do so. See 9 Holdsworth 124 (citing Ex parte Anderson, 3 El. and El. 487 (1861)). This might be seen as evidence that the existence of a separate court system was no barrier to the running of the common-law writ. The Canada of the 1800's, however, was in many respects more analogous to the exempt jurisdictions or to Ireland, where the writ ran, than to Scotland or Hanover in the 1700's, where it did not. Unlike Scotland and Hanover, Canada followed English law. See B. Laskin, The British Tradition in Canadian Law 50-51 (1969).


[99] In the end a categorical or formal conception of sovereignty does not provide a comprehensive or altogether satisfactory explanation for the general understanding that prevailed when Lord Mansfield considered issuance of the writ outside England. In 1759 the writ did not run to Scotland but did run to Ireland, even though, at that point, Scotland and England had merged under the rule of a single sovereign, whereas the Crowns of Great Britain and Ireland remained separate (at least in theory). See Cowle, supra, at 856-857, 97 Eng. Rep., 600; 1 Blackstone *100-101. But there was at least one major difference between Scotland's and Ireland's relationship with England during this period that might explain why the writ ran to Ireland but not to Scotland. English law did not generally apply in Scotland (even after the Act of Union) but it did apply in Ireland. Blackstone put it as follows: "[A]s Scotland and England are now one and the same kingdom, and yet differ in their municipal laws; so England and Ireland are, on the other hand, distinct kingdoms, and yet in general agree in their laws." Id., at *100. This distinction, and not formal notions of sovereignty, may well explain why the writ did not run to Scotland (and Hanover) but would run to Ireland.


[100] The prudential barriers that may have prevented the English courts from issuing the writ to Scotland and Hanover are not relevant here. We have no reason to believe an order from a federal court would be disobeyed at Guantanamo. No 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. The modern-day relations between the United States and Guantanamo thus differ in important respects from the 18th-century relations between England and the kingdoms of Scotland and Hanover. This is reason enough for us to discount the relevance of the Government's analogy.


[101] Each side in the present matter argues that the very lack of a precedent on point supports its position. The Government points out there is no evidence that a court sitting in England granted habeas relief to an enemy alien detained abroad; petitioners respond there is no evidence that a court refused to do so for lack of jurisdiction.


[102] Both arguments are premised, however, upon the assumption that the historical record is complete and that the common law, if properly understood, yields a definite answer to the questions before us. There are reasons to doubt both assumptions. Recent scholarship points to the inherent shortcomings in the historical record. See Halliday & White 14-15 (noting that most reports of 18th-century habeas proceedings were not printed). And 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 confronted cases with close parallels to this one. We decline, therefore, to infer too much, one way or the other, from the lack of historical evidence on point. Cf. Brown v. Board of Education, 347 U. S. 483, 489 (1954) (noting evidence concerning the circumstances surrounding the adoption of the Fourteenth Amendment, discussed in the parties' briefs and uncovered through the Court's own investigation, "convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive"); Reid v. Covert, 354 U. S. 1, 64 (1957) (Frankfurter, J., concurring in result) (arguing constitutional adjudication should not be based upon evidence that is "too episodic, too meager, to form a solid basis in history, preceding and contemporaneous with the framing of the Constitution").


[103] IV.


[104] Drawing from its position that at common law the writ ran only to territories over which the Crown was sovereign, the Government says the Suspension Clause affords petitioners no rights because the United States does not claim sovereignty over the place of detention.


[105] Guantanamo Bay is not formally part of the United States. See DTA §1005(g), 119 Stat. 2743. And under the terms of the lease between the United States and Cuba, Cuba retains "ultimate sovereignty" over the territory while the United States exercises "complete jurisdiction and control." See Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, U. S.-Cuba, Art. III, T. S. No. 418 (hereinafter 1903 Lease Agreement); Rasul, 542 U. S., at 471. Under the terms of the 1934 Treaty, however, Cuba effectively has no rights as a sovereign until the parties agree to modification of the 1903 Lease Agreement or the United States abandons the base. See Treaty Defining Relations with Cuba, May 29, 1934, U. S.-Cuba, Art. III, 48 Stat. 1683, T. S. No. 866.


[106] The United States contends, nevertheless, that Guantanamo is not within its sovereign control. This was the Government's position well before the events of September 11, 2001. See, e.g., Brief for Petitioners in Sale v. Haitian Centers Council, Inc., O. T. 1992, No. 92-344, p. 31 (arguing that Guantanamo is territory "outside the United States"). And in other contexts the Court has held that questions of sovereignty are for the political branches to decide. See Vermilya-Brown Co. v. Connell, 335 U. S. 377, 380 (1948) ("[D]etermination of sovereignty over an area is for the legislative and executive departments"); see also Jones v. United States, 137 U. S. 202 (1890); Williams v. Suffolk Ins. Co., 13 Pet. 415, 420 (1839). Even if this were a treaty interpretation case that did not involve a political question, the President's construction of the lease agreement would be entitled to great respect. See Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176, 184-185 (1982).


[107] We therefore do not question the Government's position that Cuba, not the United States, maintains sovereignty, in the legal and technical sense of the term, over Guantanamo Bay. But this does not end the analysis. Our cases do not hold it is improper for us to inquire into the objective degree of control the Nation asserts over foreign territory. As commentators have noted, " `[s]overeignty' is a term used in many senses and is much abused. " See 1 Restatement (Third) of Foreign Relations Law of the United States §206, Comment b, p. 94 (1986). When we have stated that sovereignty is a political question, we have referred not to sovereignty in the general, colloquial sense, meaning the exercise of dominion or power, see Webster's New International Dictionary 2406 (2d ed. 1934) ("sovereignty," definition 3), but sovereignty in the narrow, legal sense of the term, meaning a claim of right, see 1 Restatement (Third) of Foreign Relations, supra, §206, Comment b, at 94 (noting that sovereignty "implies a state's lawful control over its territory generally to the exclusion of other states, authority to govern in that territory, and authority to apply law there"). Indeed, it is not altogether uncommon for a territory to be under the de jure sovereignty of one nation, while under the plenary control, or practical sovereignty, of another. This condition can occur when the territory is seized during war, as Guantanamo was during the Spanish-American War. See, e.g., Fleming v. Page, 9 How. 603, 614 (1850) (noting that the port of Tampico, conquered by the United States during the war with Mexico, was "undoubtedly ... subject to the sovereignty and dominion of the United States," but that it "does not follow that it was a part of the United States, or that it ceased to be a foreign country"); King v. Earl of Crewe ex parte Sekgome, [1910] 2 K. B. 576, 603-604 (C. A.) (opinion of Williams, L. J.) (arguing that the Bechuanaland Protectorate in South Africa was "under His Majesty's dominion in the sense of power and jurisdiction, but is not under his dominion in the sense of territorial dominion"). Accordingly, for purposes of our analysis, we accept the Government's position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we 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. See 542 U. S., at 480; id., at 487 (Kennedy, J., concurring in judgment).


[108] 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.


[109] A.


[110] The Court has discussed the issue of the Constitution's extraterritorial application on many occasions. These decisions undermine the Government's argument that, at least as applied to noncitizens, the Constitution necessarily stops where de jure sovereignty ends.


[111] The Framers foresaw that the United States would expand and acquire new territories. See American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 542 (1828). Article IV, §3, cl. 1, grants Congress the power to admit new States. Clause 2 of the same section grants Congress the "Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." Save for a few notable (and notorious) exceptions, e.g., Dred Scott v. Sandford, 19 How. 393 (1857), throughout most of our history there was little need to explore the outer boundaries of the Constitution's geographic reach. When Congress exercised its power to create new territories, it guaranteed constitutional protections to the inhabitants by statute. See, e.g., An Act: to establish a Territorial Government for Utah, 9 Stat. 458 ("[T]he Constitution and laws of the United States are hereby extended over and declared to be in force in said Territory of Utah"); Rev. Stat. §1891 ("The Constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect within all the organized Territories, and in every Territory hereafter organized as elsewhere within the United States"); see generally Burnett, Untied States: American Expansion and Territorial Deannexation, 72 U. Chi. L. Rev. 797, 825-827 (2005). In particular, there was no need to test the limits of the Suspension Clause because, as early as 1789, Congress extended the writ to the Territories. See Act of Aug. 7, 1789, 1 Stat. 52 (reaffirming Art. II of Northwest Ordinance of 1787, which provided that "[t]he inhabitants of the said territory, shall always be entitled to the benefits of the writ of habeas corpus").


[112] Fundamental questions regarding the Constitution's geographic scope first arose at the dawn of the 20th century when the Nation acquired noncontiguous Territories: Puerto Rico, Guam, and the Philippines -- ceded to the United States by Spain at the conclusion of the Spanish-American War -- and Hawaii -- annexed by the United States in 1898. At this point Congress chose to discontinue its previous practice of extending constitutional rights to the territories by statute. See, e.g., An Act Temporarily to provide for the administration of the affairs of civil government in the Philippine Islands, and for other purposes, 32 Stat. 692 (noting that Rev. Stat. §1891 did not apply to the Philippines).


[113] In a series of opinions later known as the Insular Cases, the Court addressed whether the Constitution, by its own force, applies in any territory that is not a State. See De Lima v. Bidwell, 182 U. S. 1 (1901); Dooley v. United States, 182 U. S. 222 (1901); Armstrong v. United States, 182 U. S. 243 (1901); Downes v. Bidwell, 182 U. S. 244 (1901); Hawaii v. Mankichi, 190 U. S. 197 (1903); Dorr v. United States, 195 U. S. 138 (1904). The Court held that the Constitution has independent force in these territories, a force not contingent upon acts of legislative grace. Yet it took note of the difficulties inherent in that position.


[114] Prior to their cession to the United States, the former Spanish colonies operated under a civil-law system, without experience in the various aspects of the Anglo-American legal tradition, for instance the use of grand and petit juries. 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. See An Act To declare the purpose of the people of the United States as to the future political status of the people of the Philippine Islands, and to provide a more autonomous government for those islands (Jones Act), 39 Stat. 545 (noting that "it was never the intention of the people of the United States in the incipiency of the War with Spain to make it a war of conquest or for territorial aggrandizement" and that "it is, as it has always been, the purpose of the people of the United States to withdraw their sovereignty over the Philippine Islands and to recognize their independence as soon as a stable government can be established therein"). The Court thus was reluctant to risk the uncertainty and instability that could result from a rule that displaced altogether the existing legal systems in these newly acquired Territories. See Downes, supra, at 282 ("It is obvious that in the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws and customs of the people, and from differences of soil, climate and production ... ").


[115] These considerations 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. See Dorr, supra, at 143 ("Until Congress shall see fit to incorporate territory ceded by treaty into the United States, ... the territory is to be governed under the power existing in Congress to make laws for such territories and subject to such constitutional restrictions upon the powers of that body as are applicable to the situation"); Downes, supra, at 293 (White, J., concurring) ("[T]he determination of what particular provision of the Constitution is applicable, generally speaking, in all cases, involves an inquiry into the situation of the territory and its relations to the United States"). As the Court later made clear, "the real issue in the Insular Cases was not whether the Constitution extended to the Philippines or Porto Rico when we went there, but which of its provisions were applicable by way of limitation upon the exercise of executive and legislative power in dealing with new conditions and requirements." Balzac v. Porto Rico, 258 U. S. 298, 312 (1922). It may well be that over time the ties between the United States and any of its unincorporated Territories strengthen in ways that are of constitutional significance. Cf. Torres v. Puerto Rico, 442 U. S. 465, 475-476 (1979) (Brennan, J., concurring in judgment) ("Whatever the validity of the [Insular Cases] in the particular historical context in which they were decided, those cases are clearly not authority for questioning the application of the Fourth Amendment -- or any other provision of the Bill of Rights -- to the Commonwealth of Puerto Rico in the 1970's"). But, as early as Balzac in 1922, the Court took for granted that even in unincorporated Territories the Government of the United States was bound to provide to noncitizen inhabitants "guaranties of certain fundamental personal rights declared in the Constitution." 258 U. S., at 312; see also Late Corp. of Church of Jesus Christ of Latter-day Saints v. United States, 136 U. S. 1, 44 (1890) ("Doubtless Congress, in legislating for the Territories would be subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments"). Yet noting the inherent practical difficulties of enforcing all constitutional provisions "always and everywhere," Balzac, supra, at 312, the Court devised in the Insular Cases a doctrine that allowed it to use its power sparingly and where it would be most needed. This century-old doctrine informs our analysis in the present matter.


[116] Practical considerations likewise influenced the Court's analysis a half-century later in Reid, 354 U. S. 1. The petitioners there, spouses of American servicemen, lived on American military bases in England and Japan. They were charged with crimes committed in those countries and tried before military courts, consistent with executive agreements the United States had entered into with the British and Japanese governments. Id., at 15-16, and nn. 29-30 (plurality opinion). Because the petitioners were not themselves military personnel, they argued they were entitled to trial by jury.


[117] Justice Black, writing for the plurality, contrasted the cases before him with the Insular Cases, which involved territories "with wholly dissimilar traditions and institutions" that Congress intended to govern only "temporarily." Id., at 14. Justice Frankfurter argued that the "specific circumstances of each particular case" are relevant in determining the geographic scope of the Constitution. Id., at 54 (opinion concurring in result). And Justice Harlan, who had joined an opinion reaching the opposite result in the case in the previous Term, Reid v. Covert, 351 U. S. 487 (1956), was most explicit in rejecting a "rigid and abstract rule" for determining where constitutional guarantees extend. Reid, 354 U. S., at 74 (opinion concurring in result). He read the Insular Cases to teach that whether a constitutional provision has extraterritorial effect depends upon the "particular circumstances, the practical necessities, and the possible alternatives which Congress had before it" and, in particular, whether judicial enforcement of the provision would be "impracticable and anomalous." Id., at 74-75; see also United States v. Verdugo-Urquidez, 494 U. S. 259, 277-278 (1990) (Kennedy, J., concurring) (applying the "impracticable and anomalous" extraterritoriality test in the Fourth Amendment context).


[118] That the petitioners in Reid were American citizens was a key factor in the case and was central to the plurality's conclusion that the Fifth and Sixth Amendments apply to American civilians tried outside the United States. But practical considerations, related not to the petitioners' citizenship but to the place of their confinement and trial, were relevant to each Member of the Reid majority. And to Justices Harlan and Frankfurter (whose votes were necessary to the Court's disposition) these considerations were the decisive factors in the case.


[119] Indeed the majority splintered on this very point. The key disagreement between the plurality and the concurring Justices in Reid was over the continued precedential value of the Court's previous opinion in In re Ross, 140 U. S. 453 (1891), which the Reid Court understood as holding that under some circumstances Americans abroad have no right to indictment and trial by jury. The petitioner in Ross was a sailor serving on an American merchant vessel in Japanese waters who was tried before an American consular tribunal for the murder of a fellow crewman. 140 U. S., at 459, 479. The Ross Court held that the petitioner, who was a British subject, had no rights under the Fifth and Sixth Amendments. Id., at 464. The petitioner's citizenship played no role in the disposition of the case, however. The Court assumed (consistent with the maritime custom of the time) that Ross had all the rights of a similarly situated American citizen. Id., at 479 (noting that Ross was "under the protection and subject to the laws of the United States equally with the seaman who was native born"). The Justices in Reid therefore properly understood Ross as standing for the proposition that, at least in some circumstances, the jury provisions of the Fifth and Sixth Amendments have no application to American citizens tried by American authorities abroad. See 354 U. S., at 11-12 (plurality opinion) (describing Ross as holding that "constitutional protections applied `only to citizens and others within the United States ... and not to residents or temporary sojourners abroad' " (quoting Ross, supra, at 464)); 354 U. S., at 64 (Frankfurter, J., concurring in result) (noting that the consular tribunals upheld in Ross "w[ere] based on long-established custom and they were justified as the best possible means for securing justice for the few Americans present in [foreign] countries"); 354 U. S., at 75 (Harlan, J., concurring in result) ("what 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").


[120] The Reid plurality doubted that Ross was rightly decided, precisely because it believed the opinion was insufficiently protective of the rights of American citizens. See 354 U. S., at 10-12; see also id., at 78 (Clark, J., dissenting) (noting that "four of my brothers would specifically overrule and two would impair the long-recognized vitality of an old and respected precedent in our law, the case of In re Ross, 140 U. S. 453 (1891)"). But Justices Harlan and Frankfurter, while willing to hold that the American citizen petitioners in the cases before them were entitled to the protections of Fifth and Sixth Amendments, were unwilling to overturn Ross. 354 U. S., at 64 (Frankfurter, J., concurring in result); id., at 75 (Harlan, J., concurring in result). Instead, the two concurring Justices distinguished Ross from the cases before them, not on the basis of the citizenship of the petitioners, but on practical considerations that made jury trial a more feasible option for them than it was for the petitioner in Ross. If citizenship had been the only relevant factor in the case, it would have been necessary for the Court to overturn Ross, something Justices Harlan and Frankfurter were unwilling to do. See Verdugo-Urquidez, supra, at 277 (Kennedy, J., concurring) (noting that Ross had not been overruled).


[121] Practical considerations weighed heavily as well in Johnson v. Eisentrager, 339 U. S. 763 (1950), where the Court addressed whether habeas corpus jurisdiction extended to enemy aliens who had been convicted of violating the laws of war. The prisoners were detained at Landsberg Prison in Germany during the Allied Powers' postwar occupation. The Court stressed the difficulties of ordering the Government to produce the prisoners in a habeas corpus proceeding. It "would require allocation of shipping space, guarding personnel, billeting and rations" and would damage the prestige of military commanders at a sensitive time. Id., at 779. In considering these factors the Court sought to balance the constraints of military occupation with constitutional necessities. Id., at 769-779; see Rasul, 542 U. S., at 475-476 (discussing the factors relevant to Eisentrager's constitutional holding); 542 U. S., at 486 (Kennedy, J., concurring in judgment) (same).


[122] True, the Court in Eisentrager denied access to the writ, and it noted the prisoners "at no relevant time were within any territory over which the United States is sovereign, and [that] 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." 339 U. S., at 778. The Government seizes upon this language as proof positive that the Eisentrager Court adopted a formalistic, sovereignty-based test for determining the reach of the Suspension Clause. See Brief for Respondents 18-20. We reject this reading for three reasons.


[123] First, we do not accept the idea that the above-quoted passage from Eisentrager is the only authoritative language in the opinion and that all the rest is dicta. The Court's further determinations, based on practical considerations, were integral to Part II of its opinion and came before the decision announced its holding. See 339 U. S., at 781.


[124] Second, because the United States lacked both de jure sovereignty and plenary control over Landsberg Prison, see infra, at 34-35, 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. See supra, at 21. The Justices who decided Eisentrager would have understood sovereignty as a multifaceted concept. See Black's Law Dictionary 1568 (4th ed. 1951) (defining "sovereignty" as "[t]he supreme, absolute, and uncontrollable power by which any independent state is governed"; "the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation"; and "[t]he power to do everything in a state without accountability"); Ballentine's Law Dictionary with Pronunciations 1216 (2d ed. 1948) (defining "sovereignty" as "[t]hat public authority which commands in civil society, and orders and directs what each citizen is to perform to obtain the end of its institution"). In its principal brief in Eisentrager, the Government advocated a bright-line test for determining the scope of the writ, similar to the one it advocates in these cases. See Brief for Petitioners in Johnson v. Eisentrager, O. T. 1949, No. 306, pp. 74-75. Yet the Court mentioned the concept of territorial sovereignty only twice in its opinion. See Eisentrager, supra, at 778, 780. That the Court devoted a significant portion of Part II to a discussion of practical barriers to the running of the writ suggests 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. Even if we assume the Eisentrager Court considered the United States' lack of formal legal sovereignty over Landsberg Prison as the decisive factor in that case, its holding is not inconsistent with a functional approach to questions of extraterritoriality. The formal legal status of a given territory affects, at least to some extent, the political branches' control over that territory. De jure sovereignty is a factor that bears upon which constitutional guarantees apply there.


[125] Third, if the Government's reading of Eisentrager were correct, the opinion would have marked not only a change in, but a complete repudiation of, the Insular Cases' (and later Reid's) functional approach to questions of extraterritoriality. We cannot accept the Government's view. 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] B.


[127] The Government's formal sovereignty-based test raises troubling separation-of-powers concerns as well. The political history of Guantanamo illustrates the deficiencies of this approach. The United States has maintained complete and uninterrupted control of the bay for over 100 years. At the close of the Spanish-American War, Spain ceded control over the entire island of Cuba to the United States and specifically "relinquishe[d] all claim[s] of sovereignty ... and title." See Treaty of Paris, Dec. 10, 1898, U. S.-Spain, Art. I, 30 Stat. 1755, T. S. No. 343. From the date the treaty with Spain was signed until the Cuban Republic was established on May 20, 1902, the United States governed the territory "in trust" for the benefit of the Cuban people. Neely v. Henkel, 180 U. S. 109, 120 (1901); H. Thomas, Cuba or The Pursuit of Freedom 436, 460 (1998). And although it recognized, by entering into the 1903 Lease Agreement, that Cuba retained "ultimate sovereignty" over Guantanamo, the United States continued to maintain the same plenary control it had enjoyed since 1898. Yet the Government's view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.


[128] Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not "absolute and unlimited" but are subject "to such restrictions as are expressed in the Constitution." Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court's recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say "what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803).


[129] These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.


[130] C.


[131] As we recognized in Rasul, 542 U. S., at 476; id., at 487 (Kennedy, J., concurring in judgment), the outlines of a framework for determining the reach of the Suspension Clause are suggested by the factors the Court relied upon in Eisentrager. In addition to the practical concerns discussed above, the Eisentrager Court found relevant that each petitioner:


[132] "(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.


[133] Based on this language from Eisentrager, and the reasoning in our other extraterritoriality opinions, we 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.


[134] Applying this framework, we note at the onset that the status of these detainees is a matter of dispute. The petitioners, like those in Eisentrager, are not American citizens. But the petitioners in Eisentrager did not contest, it seems, the Court's assertion that they were "enemy alien[s]." Ibid. In the instant cases, by contrast, the detainees deny they are enemy combatants. They have been afforded some process in CSRT proceedings to determine their status; but, unlike in Eisentrager, supra, at 766, there has been no trial by military commission for violations of the laws of war. The difference is not trivial. The records from the Eisentrager trials suggest that, well before the petitioners brought their case to this Court, there had been a rigorous adversarial process to test the legality of their detention. The Eisentrager petitioners were charged by a bill of particulars that made detailed factual allegations against them. See 14 United Nations War Crimes Commission, Law Reports of Trials of War Criminals 8-10 (1949) (reprint 1997). To rebut the accusations, they were entitled to representation by counsel, allowed to introduce evidence on their own behalf, and permitted to cross-examine the prosecution's witnesses. See Memorandum by Command of Lt. Gen. Wedemeyer, Jan. 21, 1946 (establishing "Regulations Governing the Trial of War Criminals" in the China Theater), in Tr. of Record in Johnson v. Eisentrager, O. T. 1949, No. 306, pp. 34-40.


[135] In comparison the procedural protections afforded to the detainees in the CSRT hearings are far more limited, and, we conclude, fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review. 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." See App. to Pet. for Cert. in No. 06-1196, at 155, 172. The Government's evidence is accorded a presumption of validity. Id., at 159. The detainee is allowed to present "reasonably available" evidence, id., at 155, 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. And although the detainee can seek review of his status determination in the Court of Appeals, that review process cannot cure all defects in the earlier proceedings. See Part V, infra.


[136] As to the second factor relevant to this analysis, the detainees here are similarly situated to the Eisentrager petitioners in that the sites of their apprehension and detention are technically outside the sovereign territory of the United States. As noted earlier, this is a factor that weighs against finding they have rights under the Suspension Clause. But there are critical differences between Landsberg Prison, circa 1950, and the United States Naval Station at Guantanamo Bay in 2008. Unlike its present control over the naval station, the United States' control over the prison in Germany was neither absolute nor indefinite. Like all parts of occupied Germany, the prison was under the jurisdiction of the combined Allied Forces. See Declaration Regarding the Defeat of Germany and the Assumption of Supreme Authority with Respect to Germany, June 5, 1945, U. S.-U. S. S. R.-U. K.-Fr., 60 Stat. 1649, T. I. A. S. No. 1520. The United States was therefore answerable to its Allies for all activities occurring there. Cf. Hirota v. MacArthur, 338 U. S. 197, 198 (1948) (per curiam) (military tribunal set up by Gen. Douglas MacArthur, acting as "the agent of the Allied Powers," was not a "tribunal of the United States"). 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. See Agreements Respecting Basic Principles for Merger of the Three Western German Zones of Occupation, and Other Matters, Apr. 8, 1949, U. S.-U. K.-Fr., Art. 1, 63 Stat. 2819, T. I. A. S. No. 2066 (establishing a governing framework "[d]uring the period in which it is necessary that the occupation continue" and expressing the desire "that the German people shall enjoy self-government to the maximum possible degree consistent with such occupation"). The Court's holding in Eisentrager was thus consistent with the Insular Cases, where it had held there was no need to extend full constitutional protections to territories the United States did not intend to govern indefinitely. Guantanamo Bay, 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. See Rasul, 542 U. S., at 480; id., at 487 (Kennedy, J., concurring in judgment).


[137] As to the third factor, we recognize, as the Court did in Eisentrager, that there are costs to holding the Suspension Clause applicable in a case of military detention abroad. Habeas corpus proceedings may require expenditure of funds by the Government and may divert the attention of military personnel from other pressing tasks. While we are sensitive to these concerns, we do not find them dispositive. Compliance with any judicial process requires some incremental expenditure of resources. Yet civilian courts and the Armed Forces have functioned along side each other at various points in our history. See, e.g., Duncan v. Kahanamoku, 327 U. S. 304 (1946); Ex parte Milligan, 4 Wall. 2 (1866). The Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees' claims. And in light of the plenary control the United States asserts over the base, none are apparent to us.


[138] The situation in Eisentrager was far different, given the historical context and nature of the military's mission in post-War Germany. When hostilities in the European Theater came to an end, the United States became responsible for an occupation zone encompassing over 57,000 square miles with a population of 18 million. See Letter from President Truman to Secretary of State Byrnes, (Nov. 28, 1945), in 8 Documents on American Foreign Relations 257 (R. Dennett & R. Turner eds. 1948); Pollock, A Territorial Pattern for the Military Occupation of Germany, 38 Am. Pol. Sci. Rev. 970, 975 (1944). In addition to supervising massive reconstruction and aid efforts the American forces stationed in Germany faced potential security threats from a defeated enemy. In retrospect the post-War occupation may seem uneventful. But at the time Eisentrager was decided, the Court was right to be concerned about judicial interference with the military's efforts to contain "enemy elements, guerilla fighters, and `were-wolves.' " 339 U. S., at 784.


[139] Similar threats are not apparent here; nor does the Government argue that they are. The United States Naval Station at Guantanamo Bay consists of 45 square miles of land and water. The base has been used, at various points, to house migrants and refugees temporarily. At present, however, other than the detainees themselves, the only long-term residents are American military personnel, their families, and a small number of workers. See History of Guantanamo Bay online at https://www.cnic. navy.mil/Guantanamo/AboutGTMO/gtmohistorygeneral/ gtmohistgeneral. The detainees have been deemed enemies of the United States. At present, dangerous as they may be if released, they are contained in a secure prison facility located on an isolated and heavily fortified military base.


[140] There is no indication, furthermore, that adjudicating a habeas corpus petition would cause friction with the host government. No Cuban court has jurisdiction over American military personnel at Guantanamo or the enemy combatants detained there. While obligated to abide by the terms of the lease, the United States is, for all practical purposes, answerable to no other sovereign for its acts on the base. Were that not the case, or if the detention facility were located in an active theater of war, arguments that issuing the writ would be "impracticable or anomalous" would have more weight. See Reid, 354 U. S., at 74 (Harlan, J., concurring in result). Under the facts presented here, however, there are few practical barriers to the running of the writ. To the extent barriers arise, habeas corpus procedures likely can be modified to address them. See Part VI-B, infra.


[141] It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999). The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding.


[142] We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. Cf. Hamdi, 542 U. S., at 564 (Scalia, J., dissenting) ("[I]ndefinite imprisonment on reasonable suspicion is not an available option of treatment for those accused of aiding the enemy, absent a suspension of the writ"). This Court may not impose a de facto suspension by abstaining from these controversies. See Hamdan, 548 U. S., at 585, n. 16 ("[A]bstention is not appropriate in cases ... in which the legal challenge `turn[s] on the status of the persons as to whom the military asserted its power' " (quoting Schlesinger v. Councilman, 420 U. S. 738, 759 (1975))). The MCA does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention.


[143] V.


[144] In light of this holding the question becomes whether the statute stripping jurisdiction to issue the writ avoids the Suspension Clause mandate because Congress has provided adequate substitute procedures for habeas corpus. The Government submits there has been compliance with the Suspension Clause because the DTA review process in the Court of Appeals, see DTA §1005(e), provides an adequate substitute. Congress has granted that court jurisdiction to consider


[145] "(i) whether the status determination of the [CSRT] ... was consistent with the standards and procedures specified by the Secretary of Defense ... and (ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States." §1005(e)(2)(C), 119 Stat. 2742.


[146] The Court of Appeals, having decided that the writ does not run to the detainees in any event, found it unnecessary to consider whether an adequate substitute has been provided. In the ordinary course we would remand to the Court of Appeals to consider this question in the first instance. See Youakim v. Miller, 425 U. S. 231, 234 (1976) (per curiam). It is well settled, however, that the Court's practice of declining to address issues left unresolved in earlier proceedings is not an inflexible rule. Ibid. Departure from the rule is appropriate in "exceptional" circumstances. See Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 169 (2004); Duignan v. United States, 274 U. S. 195, 200 (1927).


[147] The gravity of the separation-of-powers issues raised by these cases and the fact that these detainees have been denied meaningful access to a judicial forum for a period of years render these cases exceptional. The parties before us have addressed the adequacy issue. While we would have found it informative to consider the reasoning of the Court of Appeals on this point, we must weigh that against the harms petitioners may endure from additional delay. And, given there are few precedents addressing what features an adequate substitute for habeas corpus must contain, in all likelihood a remand simply would delay ultimate resolution of the issue by this Court.


[148] We do have the benefit of the Court of Appeals' construction of key provisions of the DTA. When we granted certiorari in these cases, we noted "it would be of material assistance to consult any decision" in the parallel DTA review proceedings pending in the Court of Appeals, specifically any rulings in the matter of Bismullah v. Gates. 551 U. S. ___ (2007). Although the Court of Appeals has yet to complete a DTA review proceeding, the three-judge panel in Bismullah has issued an interim order giving guidance as to what evidence can be made part of the record on review and what access the detainees can have to counsel and to classified information. See 501 F. 3d 178 (CADC) (Bismullah I), reh'g denied, 503 F. 3d 137 (CADC 2007) (Bismullah II). In that matter the full court denied the Government's motion for rehearing en banc, see Bismullah v. Gates, 514 F. 3d 1291 (CADC 2008) (Bismullah III). The order denying rehearing was accompanied by five separate statements from members of the court, which offer differing views as to scope of the judicial review Congress intended these detainees to have. Ibid.


[149] Under the circumstances we believe the costs of further delay substantially outweigh any benefits of remanding to the Court of Appeals to consider the issue it did not address in these cases.


[150] A.


[151] Our case law does not contain extensive discussion of standards defining suspension of the writ or of circumstances under which suspension has occurred. This simply confirms the care Congress has taken throughout our Nation's history to preserve the writ and its function. Indeed, most of the major legislative enactments pertaining to habeas corpus have acted not to contract the writ's protection but to expand it or to hasten resolution of prisoners' claims. See, e.g., Habeas Corpus Act of 1867, ch. 28, §1, 14 Stat. 385 (current version codified at 28 U. S. C. §2241 (2000 ed. and Supp. V) (extending the federal writ to state prisoners)); Cf. Harris v. Nelson, 394 U. S. 286, 299-300 (1969) (interpreting the All Writs Act, 28 U. S. C. §1651, to allow discovery in habeas corpus proceedings); Peyton v. Rowe, 391 U. S. 54, 64-65 (1968) (interpreting the then-existing version of §2241 to allow petitioner to proceed with his habeas corpus action, even though he had not yet begun to serve his sentence).


[152] There are exceptions, of course. Title I of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), §106, 110 Stat. 1220, contains certain gatekeeping provisions that restrict a prisoner's ability to bring new and repetitive claims in "second or successive" habeas corpus actions. We upheld these provisions against a Suspension Clause challenge in Felker v. Turpin, 518 U. S. 651, 662-664 (1996). The provisions at issue in Felker, however, did not constitute a substantial departure from common-law habeas procedures. The provisions, for the most part, codified the longstanding abuse-of-the-writ doctrine. Id., at 664; see also McCleskey v. Zant, 499 U. S. 467, 489 (1991). AEDPA applies, moreover, to federal, post-conviction review after criminal proceedings in state court have taken place. As of this point, cases discussing the implementation of that statute give little helpful instruction (save perhaps by contrast) for the instant cases, where no trial has been held.


[153] The two leading cases addressing habeas substitutes, Swain v. Pressley, 430 U. S. 372 (1977), and United States v. Hayman, 342 U. S. 205 (1952), likewise provide little guidance here. The statutes at issue were attempts to streamline habeas corpus relief, not to cut it back.


[154] The statute discussed in Hayman was 28 U. S. C. §2255. It replaced traditional habeas corpus for federal prisoners (at least in the first instance) with a process that allowed the prisoner to file a motion with the sentencing court on the ground that his sentence was, inter alia, " `imposed in violation of the Constitution or laws of the United States.' " 342 U. S., at 207, n. 1. The purpose and effect of the statute was not to restrict access to the writ but to make post-conviction proceedings more efficient. It directed claims not to the court that had territorial jurisdiction over the place of the petitioner's confinement but to the sentencing court, a court already familiar with the facts of the case. As the Hayman Court explained


[155] "Section 2255 ... was passed at the instance of the Judicial Conference to meet practical difficulties that had arisen in administering the habeas corpus jurisdiction of the federal courts. Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners' rights of collateral attack upon their convictions. On the contrary, the sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum." Id., at 219.


[156] See also Hill v. United States, 368 U. S. 424, 427, 428, and n. 5 (1962) (noting that §2255 provides a remedy in the sentencing court that is "exactly commensurate" with the pre-existing federal habeas corpus remedy).


[157] The statute in Swain, D. C. Code Ann. §23-110(g) (1973), applied to prisoners in custody under sentence of the Superior Court of the District of Columbia. Before enactment of the District of Columbia Court Reform and Criminal Procedure Act of 1970 (D. C. Court Reform Act), 84 Stat. 473, those prisoners could file habeas petitions in the United States District Court for the District of Columbia. The Act, which was patterned on §2255, substituted a new collateral process in the Superior Court for the pre-existing habeas corpus procedure in the District Court. See Swain, 430 U. S., at 374-378. But, again, the purpose and effect of the statute was to expedite consideration of the prisoner's claims, not to delay or frustrate it. See id., at 375, n. 4 (noting that the purpose of the D. C. Court Reform Act was to "alleviate" administrative burdens on the District Court).


[158] That the statutes in Hayman and Swain were designed to strengthen, rather than dilute, the writ's protections was evident, furthermore, from this significant fact: Neither statute eliminated traditional habeas corpus relief. In both cases the statute at issue had a saving clause, providing that a writ of habeas corpus would be available if the alternative process proved inadequate or ineffective. Swain, supra, at 381; Hayman, supra, at 223. The Court placed explicit reliance upon these provisions in upholding the statutes against constitutional challenges. See Swain, supra, at 381 (noting that the provision "avoid[ed] any serious question about the constitutionality of the statute"); Hayman, supra, at 223 (noting that, because habeas remained available as a last resort, it was unnecessary to "reach constitutional questions").


[159] Unlike in Hayman and Swain, here we confront statutes, the DTA and the MCA, that were intended to circumscribe habeas review. Congress' purpose is evident not only from the unequivocal nature of MCA §7's jurisdiction-stripping language, 28 U. S. C. A. §2241(e)(1) (Supp. 2007) ("No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus . . ."), but also from a comparison of the DTA to the statutes at issue in Hayman and Swain. When interpreting a statute, we examine related provisions in other parts of the U. S. Code. See, e.g., West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, 88-97 (1991); Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687, 717-718 (1995) (Scalia, J., dissenting); see generally W. Eskridge, P. Frickey, & E. Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 1039 (3d ed. 2001). When Congress has intended to replace traditional habeas corpus with habeas-like substitutes, as was the case in Hayman and Swain, it has granted to the courts broad remedial powers to secure the historic office of the writ. In the §2255 context, for example, Congress has granted to the reviewing court power to "determine the issues and make findings of fact and conclusions of law" with respect to whether "the judgment [of conviction] was rendered without jurisdiction, or ... the sentence imposed was not authorized by law or otherwise open to collateral attack." 28 U. S. C. A. §2255(b) (Supp. 2008). The D. C. Court Reform Act, the statute upheld in Swain, contained a similar provision. §23-110(g), 84 Stat. 609.


[160] In contrast the DTA's jurisdictional grant is quite limited. The Court of Appeals has jurisdiction not to inquire into the legality of the detention generally but only to assess whether the CSRT complied with the "standards and procedures specified by the Secretary of Defense" and whether those standards and procedures are lawful. DTA §1005(e)(2)(C), 119 Stat. 2742. If Congress had envisioned DTA review as coextensive with traditional habeas corpus, it would not have drafted the statute in this manner. Instead, it would have used language similar to what it used in the statutes at issue in Hayman and Swain. Cf. Russello v. United States, 464 U. S. 16, 23 (1983) (" `[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion' " (quoting United States v. Wong Kim Bo, 472 F. 2d 720, 722 (CA5 1972))). Unlike in Hayman and Swain, moreover, there has been no effort to preserve habeas corpus review as an avenue of last resort. No saving clause exists in either the MCA or the DTA. And MCA §7 eliminates habeas review for these petitioners.


[161] The differences between the DTA and the habeas statute that would govern in MCA §7's absence, 28 U. S. C. §2241 (2000 ed. and Supp. V), are likewise telling. In §2241 (2000 ed.) Congress confirmed the authority of "any justice" or "circuit judge" to issue the writ. Cf. Felker, 518 U. S., at 660-661 (interpreting Title I of AEDPA to not strip from this Court the power to entertain original habeas corpus petitions). That statute accommodates the necessity for factfinding that will arise in some cases by allowing the appellate judge or Justice to transfer the case to a district court of competent jurisdiction, whose institutional capacity for factfinding is superior to his or her own. See 28 U. S. C. §2241(b). By granting the Court of Appeals "exclusive" jurisdiction over petitioners' cases, see DTA §1005(e)(2)(A), 119 Stat. 2742, Congress has foreclosed that option. This choice indicates Congress intended the Court of Appeals to have a more limited role in enemy combatant status determinations than a district court has in habeas corpus proceedings. The DTA should be interpreted to accord some latitude to the Court of Appeals to fashion procedures necessary to make its review function a meaningful one, but, if congressional intent is to be respected, the procedures adopted cannot be as extensive or as protective of the rights of the detainees as they would be in a §2241 proceeding. Otherwise there would have been no, or very little, purpose for enacting the DTA.


[162] To the extent any doubt remains about Congress' intent, the legislative history confirms what the plain text strongly suggests: In passing the DTA Congress did not intend to create a process that differs from traditional habeas corpus process in name only. It intended to create a more limited procedure. See, e.g., 151 Cong. Rec. S14263 (Dec. 21, 2005) (statement of Sen. Graham) (noting that the DTA "extinguish[es] these habeas and other actions in order to effect a transfer of jurisdiction over these cases to the DC Circuit Court" and agreeing that the bill "create[s] in their place a very limited judicial review of certain military administrative decisions"); id., at S14268 (statement of Sen. Kyl) ("It is important to note that the limited judicial review authorized by paragraphs 2 and 3 of subsection (e) [of DTA §1005] are not habeas-corpus review. It is a limited judicial review of its own nature").


[163] It is against this background that we must interpret the DTA and assess its adequacy as a substitute for habeas corpus. The present cases thus test the limits of the Suspension Clause in ways that Hayman and Swain did not.


[164] B.


[165] We do not endeavor to offer a comprehensive summary of the requisites for an adequate substitute for habeas corpus. We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to "the erroneous application or interpretation" of relevant law. St. Cyr, 533 U. S., at 302. And the habeas court must have the power to order the conditional release of an individual unlawfully detained -- though release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted. See Ex parte Bollman, 4 Cranch 75, 136 (1807) (where imprisonment is unlawful, the court "can only direct [the prisoner] to be discharged"); R. Hurd, Treatise on the Right of Personal Liberty, and On the Writ of Habeas Corpus and the Practice Connected with It: With a View of the Law of Extradition of Fugitives 222 (2d ed. 1876) ("It cannot be denied where `a probable ground is shown that the party is imprisoned without just cause, and therefore, hath a right to be delivered,' for the writ then becomes a `writ of right, which may not be denied but ought to be granted to every man that is committed or detained in prison or otherwise restrained of his liberty' "). But see Chessman v. Teets, 354 U. S. 156, 165-166 (1957) (remanding in a habeas case for retrial within a "reasonable time"). These are the easily identified attributes of any constitutionally adequate habeas corpus proceeding. But, depending on the circumstances, more may be required.


[166] Indeed, common-law habeas corpus was, above all, an adaptable remedy. Its precise application and scope changed depending upon the circumstances. See 3 Blackstone *131 (describing habeas as "the great and efficacious writ, in all manner of illegal confinement"); see also Schlup v. Delo, 513 U. S. 298, 319 (1995) (Habeas "is, at its core, an equitable remedy"); Jones v. Cunningham, 371 U. S. 236, 243 (1963) (Habeas is not "a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose"). It appears the common-law habeas court's role was most extensive in cases of pretrial and non-criminal detention, where there had been little or no previous judicial review of the cause for detention. Notably, the black-letter rule that prisoners could not controvert facts in the jailer's return was not followed (or at least not with consistency) in such cases. Hurd, supra, at 271 (noting that the general rule was "subject to exceptions" including cases of bail and impressment); Oakes, Legal History in the High Court -- Habeas Corpus, 64 Mich. L. Rev. 451, 457 (1966) ("[W]hen a prisoner applied for habeas corpus before indictment or trial, some courts examined the written depositions on which he had been arrested or committed, and others even heard oral testimony to determine whether the evidence was sufficient to justifying holding him for trial" (footnotes omitted)); Fallon & Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror, 120 Harv. L. Rev. 2029, 2102 (2007) ("[T]he early practice was not consistent: courts occasionally permitted factual inquiries when no other opportunity for judicial review existed").


[167] There is evidence from 19th-century American sources indicating that, even in States that accorded strong res judicata effect to prior adjudications, habeas courts in this country routinely allowed prisoners to introduce exculpatory evidence that was either unknown or previously unavailable to the prisoner. See, e.g., Ex parte Pattison, 56 Miss. 161, 164 (1878) (noting that "[w]hile the former adjudication must be considered as conclusive on the testimony then adduced" "newly developed exculpatory evidence ... may authorize the admission to bail"); Ex parte Foster, 5 Tex. Ct. App. 625, 644 (1879) (construing the State's habeas statute to allow for the introduction of new evidence "where important testimony has been obtained, which, though not newly discovered, or which, though known to [the petitioner], it was not in his power to produce at the former hearing; [and] where the evidence was newly discovered"); People v. Martin, 7 N. Y. Leg. Obs. 49, 56 (1848) ("If in custody on criminal process before indictment, the prisoner has an absolute right to demand that the original depositions be looked into to see whether any crime is in fact imputed to him, and the inquiry will by no means be confined to the return. Facts out of the return may be gone into to ascertain whether the committing magistrate may not have arrived at an illogical conclusion upon the evidence given before him ..."); see generally W. Church, Treatise on the Writ of Habeas Corpus §182, p. 235 1886) (hereinafter Church) (noting that habeas courts would "hear evidence anew if justice require it"). Justice McLean, on Circuit in 1855, expressed his view that a habeas court should consider a prior judgment conclusive "where there was clearly jurisdiction and a full and fair hearing; but that it might not be so considered when any of these requisites were wanting." Ex parte Robinson, 20 F. Cas. 969, 971, (No. 11,935) (CC Ohio 1855). To illustrate the circumstances in which the prior adjudication did not bind the habeas court, he gave the example of a case in which "[s]everal unimpeached witnesses" provided new evidence to exculpate the prisoner. Ibid.


[168] The idea that the necessary scope of habeas review in part depends upon the rigor of any earlier proceedings accords with our test for procedural adequacy in the due process context. See Mathews v. Eldridge, 424 U. S. 319, 335 (1976) (noting that the Due Process Clause requires an assessment of, inter alia, "the risk of an erroneous deprivation of [a liberty interest;] and the probable value, if any, of additional or substitute procedural safeguards"). This principle has an established foundation in habeas corpus jurisprudence as well, as Chief Justice Marshall's opinion in Ex parte Watkins, 3 Pet. 193 (1830), demonstrates. Like the petitioner in Swain, Watkins sought a writ of habeas corpus after being imprisoned pursuant to a judgment of a District of Columbia court. In holding that the judgment stood on "high ground," 3 Pet., at 209, the Chief Justice emphasized the character of the court that rendered the original judgment, noting it was a "court of record, having general jurisdiction over criminal cases." Id., at 203. In contrast to "inferior" tribunals of limited jurisdiction, ibid., courts of record had broad remedial powers, which gave the habeas court greater confidence in the judgment's validity. See generally Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961, 982-983 (1998).


[169] Accordingly, where relief is sought from a sentence that resulted from the judgment of a court of record, as was the case in Watkins and indeed in most federal habeas cases, considerable deference is owed to the court that ordered confinement. See Brown v. Allen, 344 U. S. 443, 506 (1953) (opinion of Frankfurter, J.) (noting that a federal habeas court should accept a state court's factual findings unless "a vital flaw be found in the process of ascertaining such facts in the State court"). Likewise in those cases the prisoner should exhaust adequate alternative remedies before filing for the writ in federal court. See Ex parte Royall, 117 U. S. 241, 251-252 (1886) (requiring exhaustion of state collateral processes). Both aspects of federal habeas corpus review are justified because it can be assumed that, in the usual course, a court of record provides defendants with a fair, adversary proceeding. In cases involving state convictions this framework also respects federalism; and in federal cases it has added justification because the prisoner already has had a chance to seek review of his conviction in a federal forum through a direct appeal. The present cases fall outside these categories, however; for here the detention is by executive order.


[170] Where a person is detained by executive order, rather than, say, after being tried and convicted in a court, the need for collateral review is most pressing. A criminal conviction in the usual course occurs after a judicial hearing before a tribunal disinterested in the outcome and committed to procedures designed to ensure its own independence. These dynamics are not inherent in executive detention orders or executive review procedures. In this context the need for habeas corpus is more urgent. The intended duration of the detention and the reasons for it bear upon the precise scope of the inquiry. Habeas corpus proceedings need not resemble a criminal trial, even when the detention is by executive order. But the writ must be effective. The habeas court must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive's power to detain.


[171] To determine the necessary scope of habeas corpus review, therefore, we must assess the CSRT process, the mechanism through which petitioners' designation as enemy combatants became final. Whether one characterizes the CSRT process as direct review of the Executive's battlefield determination that the detainee is an enemy combatant -- as the parties have and as we do -- or as the first step in the collateral review of a battlefield determination makes no difference in a proper analysis of whether the procedures Congress put in place are an adequate substitute for habeas corpus. What matters is the sum total of procedural protections afforded to the detainee at all stages, direct and collateral.


[172] Petitioners identify what they see as myriad deficiencies in the CSRTs. The most relevant for our purposes are the constraints upon the detainee's ability to rebut the factual basis for the Government's assertion that he is an enemy combatant. As already noted, see Part IV-C, supra, at the CSRT stage the detainee has limited means to find or present evidence to challenge the Government's case against him. He does not have the assistance of counsel and may not be aware of the most critical allegations that the Government relied upon to order his detention. See App. to Pet. for Cert. in No. 06-1196, at 156, ¶F(8) (noting that the detainee can access only the "unclassified portion of the Government Information"). The detainee can confront witnesses that testify during the CSRT proceedings. Id., at 144, ¶g(8). But given that there are in effect no limits on the admission of hearsay evidence -- the only requirement is that the tribunal deem the evidence "relevant and helpful," ibid., ¶g(9) -- the detainee's opportunity to question witnesses is likely to be more theoretical than real.


[173] The Government defends the CSRT process, arguing that it was designed to conform to the procedures suggested by the plurality in Hamdi. See 542 U. S., at 538. Setting aside the fact that the relevant language in Hamdi did not garner a majority of the Court, it does not control the matter at hand. None of the parties in Hamdi argued there had been a suspension of the writ. Nor could they. The §2241 habeas corpus process remained in place, id., at 525. Accordingly, the plurality concentrated on whether the Executive had the authority to detain and, if so, what rights the detainee had under the Due Process Clause. True, there are places in the Hamdi plurality opinion where it is difficult to tell where its extrapolation of §2241 ends and its analysis of the petitioner's Due Process rights begins. But the Court had no occasion to define the necessary scope of habeas review, for Suspension Clause purposes, in the context of enemy combatant detentions. The closest the plurality came to doing so was in discussing whether, in light of separation-of-powers concerns, §2241 should be construed to forbid the District Court from inquiring beyond the affidavit Hamdi's custodian provided in answer to the detainee's habeas petition. The plurality answered this question with an emphatic "no." Id., at 527 (labeling this argument as "extreme"); id., at 535-536.


[174] Even if we were to assume that the CSRTs satisfy due process standards, it would not end our inquiry. Habeas corpus is a collateral process that exists, in Justice Holmes' words, to "cu[t] through all forms and g[o] to the very tissue of the structure. It comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved opens the inquiry whether they have been more than an empty shell." Frank v. Mangum, 237 U. S. 309, 346 (1915) (dissenting opinion). Even when the procedures authorizing detention are structurally sound, the Suspension Clause remains applicable and the writ relevant. See 2 Chambers, Course of Lectures on English Law 1767-1773, at 6 ("Liberty may be violated either by arbitrary imprisonment without law or the appearance of law, or by a lawful magistrate for an unlawful reason"). This is so, as Hayman and Swain make clear, even where the prisoner is detained after a criminal trial conducted in full accordance with the protections of the Bill of Rights. Were this not the case, there would have been no reason for the Court to inquire into the adequacy of substitute habeas procedures in Hayman and Swain. That the prisoners were detained pursuant to the most rigorous proceedings imaginable, a full criminal trial, would have been enough to render any habeas substitute acceptable per se.


[175] Although we make no judgment as to whether the CSRTs, as currently constituted, satisfy due process standards, we agree with petitioners that, even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal's findings of fact. This is a risk inherent in any process that, in the words of the former Chief Judge of the Court of Appeals, is "closed and accusatorial." See Bismullah III, 514 F. 3d, at 1296 (Ginsburg, C. J., concurring in denial of rehearing en banc). And given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore.


[176] For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government's evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding. Federal habeas petitioners long have had the means to supplement the record on review, even in the post-conviction habeas setting. See Townsend v. Sain, 372 U. S. 293, 313 (1963), overruled in part by Keeney v. Tamayo-Reyes, 504 U. S. 1, 5 (1992). Here that opportunity is constitutionally required.


[177] Consistent with the historic function and province of the writ, habeas corpus review may be more circumscribed if the underlying detention proceedings are more thorough than they were here. In two habeas cases involving enemy aliens tried for war crimes, In re Yamashita, 327 U. S. 1 (1946), and Ex parte Quirin, 317 U. S. 1 (1942), for example, this Court limited its review to determining whether the Executive had legal authority to try the petitioners by military commission. See Yamashita, supra, at 8 ("[O]n application for habeas corpus we are not concerned with the guilt or innocence of the petitioners. We consider here only the lawful power of the commission to try the petitioner for the offense charged"); Quirin, supra, at 25 ("We are not here concerned with any question of the guilt or innocence of petitioners"). Military courts are not courts of record. See Watkins, 3 Pet., at 209; Church 513. And the procedures used to try General Yamashita have been sharply criticized by Members of this Court. See Hamdan, 548 U. S., at 617; Yamashita, supra, at 41-81 (Rutledge, J., dissenting). We need not revisit these cases, however. For on their own terms, the proceedings in Yamashita and Quirin, like those in Eisentrager, had an adversarial structure that is lacking here. See Yamashita, supra, at 5 (noting that General Yamashita was represented by six military lawyers and that "[t]hroughout the proceedings ... defense counsel ... demonstrated their professional skill and resourcefulness and their proper zeal for the defense with which they were charged"); Quirin, supra, at 23-24; Exec. Order No. 9185, 7 Fed. Reg. 5103 (1942) (appointing counsel to represent the German saboteurs).


[178] The extent of the showing required of the Government in these cases is a matter to be determined. We need not explore it further at this stage. We do hold that when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner's release.


[179] C.


[180] We now consider whether the DTA allows the Court of Appeals to conduct a proceeding meeting these standards. "[W]e are obligated to construe the statute to avoid [constitutional] problems" if it is " `fairly possible' " to do so. St. Cyr, 533 U. S., at 299-300 (quoting Crowell v. Benson, 285 U. S. 22, 62 (1932)). There are limits to this principle, however. The canon of constitutional avoidance does not supplant traditional modes of statutory interpretation. See Clark v. Martinez, 543 U. S. 371, 385 (2005) ("The canon of constitutional avoidance comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction; and the canon functions as a means of choosing between them"). We cannot ignore the text and purpose of a statute in order to save it.


[181] The DTA does not explicitly empower the Court of Appeals to order the applicant in a DTA review proceeding released should the court find that the standards and procedures used at his CSRT hearing were insufficient to justify detention. This is troubling. Yet, for present purposes, we can assume congressional silence permits a constitutionally required remedy. In that case it would be possible to hold that a remedy of release is impliedly provided for. The DTA might be read, furthermore, to allow the petitioners to assert most, if not all, of the legal claims they seek to advance, including their most basic claim: that the President has no authority under the AUMF to detain them indefinitely. (Whether the President has such authority turns on whether the AUMF authorizes -- and the Constitution permits -- the indefinite detention of "enemy combatants" as the Department of Defense defines that term. Thus a challenge to the President's authority to detain is, in essence, a challenge to the Department's definition of enemy combatant, a "standard" used by the CSRTs in petitioners' cases.) At oral argument, the Solicitor General urged us to adopt both these constructions, if doing so would allow MCA §7 to remain intact. See Tr. of Oral Arg. 37, 53.


[182] The absence of a release remedy and specific language allowing AUMF challenges are not the only constitutional infirmities from which the statute potentially suffers, however. The more difficult question is whether the DTA permits the Court of Appeals to make requisite findings of fact. The DTA enables petitioners to request "review" of their CSRT determination in the Court of Appeals, DTA §1005(e)(2)(B)(i), 119 Stat. 2742; but the "Scope of Review" provision confines the Court of Appeals' role to reviewing whether the CSRT followed the "standards and procedures" issued by the Department of Defense and assessing whether those "standards and procedures" are lawful. §1005(e)(C), ibid. Among these standards is "the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence ... allowing a rebuttable presumption in favor of the Government's evidence." §1005(e)(C)(i), ibid.


[183] Assuming the DTA can be construed to allow the Court of Appeals to review or correct the CSRT's factual determinations, as opposed to merely certifying that the tribunal applied the correct standard of proof, we see no way to construe the statute to allow what is also constitutionally required in this context: an opportunity for the detainee to present relevant exculpatory evidence that was not made part of the record in the earlier proceedings.


[184] On its face the statute allows the Court of Appeals to consider no evidence outside the CSRT record. In the parallel litigation, however, the Court of Appeals determined that the DTA allows it to order the production of all " `reasonably available information in the possession of the U. S. Government bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant,' " regardless of whether this evidence was put before the CSRT. See Bismullah I, 501 F. 3d, at 180. The Government, see Pet. for Cert. pending in Gates v. Bismullah, No. 07-1054 (hereinafter Bismullah Pet.), with support from five members of the Court of Appeals, see Bismullah III, 514 F. 3d, at 1299 (Henderson, J., dissenting from denial of rehearing en banc); id., at 1302 (opinion of Randolph, J.) (same); id., at 1306 (opinion of Brown, J.) (same), disagrees with this interpretation. For present purposes, however, we can assume that the Court of Appeals was correct that the DTA allows introduction and consideration of relevant exculpatory evidence that was "reasonably available" to the Government at the time of the CSRT but not made part of the record. Even so, the DTA review proceeding falls short of being a constitutionally adequate substitute, for the detainee still would have no opportunity to present evidence discovered after the CSRT proceedings concluded.


[185] Under the DTA the Court of Appeals has the power to review CSRT determinations by assessing the legality of standards and procedures. This implies the power to inquire into what happened at the CSRT hearing and, perhaps, to remedy certain deficiencies in that proceeding. But should the Court of Appeals determine that the CSRT followed appropriate and lawful standards and procedures, it will have reached the limits of its jurisdiction. There is no language in the DTA that can be construed to allow the Court of Appeals to admit and consider newly discovered evidence that could not have been made part of the CSRT record because it was unavailable to either the Government or the detainee when the CSRT made its findings. This evidence, however, may be critical to the detainee's argument that he is not an enemy combatant and there is no cause to detain him.


[186] This is not a remote hypothetical. One of the petitioners, Mohamed Nechla, requested at his CSRT hearing that the Government contact his employer. The petitioner claimed the employer would corroborate Nechla's contention he had no affiliation with al Qaeda. Although the CSRT determined this testimony would be relevant, it also found the witness was not reasonably available to testify at the time of the hearing. Petitioner's counsel, however, now represents the witness is available to be heard. See Brief for Boumediene Petitioners 5. If a detainee can present reasonably available evidence demonstrating there is no basis for his continued detention, he must have the opportunity to present this evidence to a habeas corpus court. Even under the Court of Appeals' generous construction of the DTA, however, the evidence identified by Nechla would be inadmissible in a DTA review proceeding. The role of an Article III court in the exercise of its habeas corpus function cannot be circumscribed in this manner.


[187] By foreclosing consideration of evidence not presented or reasonably available to the detainee at the CSRT proceedings, the DTA disadvantages the detainee by limiting the scope of collateral review to a record that may not be accurate or complete. In other contexts, e.g., in post-trial habeas cases where the prisoner already has had a full and fair opportunity to develop the factual predicate of his claims, similar limitations on the scope of habeas review may be appropriate. See Williams v. Taylor, 529 U. S. 420, 436-437 (2000) (noting that §2254 "does not equate prisoners who exercise diligence in pursuing their claims with those who do not"). In this context, however, where the underlying detention proceedings lack the necessary adversarial character, the detainee cannot be held responsible for all deficiencies in the record.


[188] The Government does not make the alternative argument that the DTA allows for the introduction of previously unavailable exculpatory evidence on appeal. It does point out, however, that if a detainee obtains such evidence, he can request that the Deputy Secretary of Defense convene a new CSRT. See Supp. Brief for Respondents 4. Whatever the merits of this procedure, it is an insufficient replacement for the factual review these detainees are entitled to receive through habeas corpus. The Deputy Secretary's determination whether to initiate new proceedings is wholly a discretionary one. See Dept. of Defense, Office for the Administrative Review of the Detention of Enemy Combatants, Instruction 5421.1, Procedure for Review of "New Evidence" Relating to Enemy Combatant (EC) Status ¶5(d) (May 7, 2007) (Instruction 5421.1) ("The decision to convene a CSRT to reconsider the basis of the detainee's [enemy combatant] status in light of `new evidence' is a matter vested in the unreviewable discretion of the [Deputy Secretary of Defense]"). And we see no way to construe the DTA to allow a detainee to challenge the Deputy Secretary's decision not to open a new CSRT pursuant to Instruction 5421.1. Congress directed the Secretary of Defense to devise procedures for considering new evidence, see DTA §1005(a)(3), but the detainee has no mechanism for ensuring that those procedures are followed. DTA §1005(e)(2)(C), 119 Stat. 2742, makes clear that the Court of Appeals' jurisdiction is "limited to consideration of ... whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the standards and procedures specified by the Secretary of Defense ... and ... whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States." DTA §1005(e)(2)(A), ibid., further narrows the Court of Appeals' jurisdiction to reviewing "any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant." The Deputy Secretary's determination whether to convene a new CSRT is not a "status determination of the Combatant Status Review Tribunal," much less a "final decision" of that body.


[189] We do not imply DTA review would be a constitutionally sufficient replacement for habeas corpus but for these limitations on the detainee's ability to present exculpatory evidence. For even if it were possible, as a textual matter, to read into the statute each of the necessary procedures we have identified, we could not overlook the cumulative effect of our doing so. To hold that the detainees at Guantanamo may, under the DTA, challenge the President's legal authority to detain them, contest the CSRT's findings of fact, supplement the record on review with exculpatory evidence, and request an order of release would come close to reinstating the §2241 habeas corpus process Congress sought to deny them. The language of the statute, read in light of Congress' reasons for enacting it, cannot bear this interpretation. Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas corpus.


[190] Although we do not hold that an adequate substitute must duplicate §2241 in all respects, it suffices that the Government has not established that the detainees' access to the statutory review provisions at issue is an adequate substitute for the writ of habeas corpus. MCA §7 thus effects an unconstitutional suspension of the writ. In view of our holding we need not discuss the reach of the writ with respect to claims of unlawful conditions of treatment or confinement.


[191] VI.


[192] A.


[193] In light of our conclusion that there is no jurisdictional bar to the District Court's entertaining petitioners' claims the question remains whether there are prudential barriers to habeas corpus review under these circumstances.


[194] The Government argues petitioners must seek review of their CSRT determinations in the Court of Appeals before they can proceed with their habeas corpus actions in the District Court. As noted earlier, in other contexts and for prudential reasons this Court has required exhaustion of alternative remedies before a prisoner can seek federal habeas relief. Most of these cases were brought by prisoners in state custody, e.g., Ex parte Royall, 117 U. S. 241, and thus involved federalism concerns that are not relevant here. But we have extended this rule to require defendants in courts-martial to exhaust their military appeals before proceeding with a federal habeas corpus action. See Schlesinger, 420 U. S., at 758.


[195] The real risks, the real threats, of terrorist attacks are constant and not likely soon to abate. The ways to disrupt our life and laws are so many and unforeseen that the Court should not attempt even some general catalogue of crises that might occur. Certain principles are apparent, however. Practical considerations and exigent circumstances inform the definition and reach of the law's writs, including habeas corpus. The cases and our tradition reflect this precept.


[196] In cases involving foreign citizens detained abroad by the Executive, it likely would be both an impractical and unprecedented extension of judicial power to assume that habeas corpus would be available at the moment the prisoner is taken into custody. If and when habeas corpus jurisdiction applies, as it does in these cases, then proper deference can be accorded to reasonable procedures for screening and initial detention under lawful and proper conditions of confinement and treatment for a reasonable period of time. Domestic exigencies, furthermore, might also impose such onerous burdens on the Government that here, too, the Judicial Branch would be required to devise sensible rules for staying habeas corpus proceedings until the Government can comply with its requirements in a responsible way. Cf. Ex parte Milligan, 4 Wall., at 127 ("If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course"). Here, as is true with detainees apprehended abroad, a relevant consideration in determining the courts' role is whether there are suitable alternative processes in place to protect against the arbitrary exercise of governmental power.


[197] The cases before us, however, do not involve detainees who have been held for a short period of time while awaiting their CSRT determinations. Were that the case, or were it probable that the Court of Appeals could complete a prompt review of their applications, the case for requiring temporary abstention or exhaustion of alternative remedies would be much stronger. These qualifications no longer pertain here. In some of these cases six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands. And there has been no showing that the Executive faces such onerous burdens that it cannot respond to habeas corpus actions. To require these detainees to complete DTA review before proceeding with their habeas corpus actions would be to require additional months, if not years, of delay. The first DTA review applications were filed over a year ago, but no decisions on the merits have been issued. While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.


[198] Our decision today holds only that the petitioners before us are entitled to seek the writ; that the DTA review procedures are an inadequate substitute for habeas corpus; and that the petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with their habeas actions in the District Court. The only law we identify as unconstitutional is MCA §7, 28 U. S. C. A. §2241(e) (Supp. 2007). Accordingly, both the DTA and the CSRT process remain intact. Our holding with regard to exhaustion should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. The Executive is entitled to a reasonable period of time to determine a detainee's status before a court entertains that detainee's habeas corpus petition. The CSRT process is the mechanism Congress and the President set up to deal with these issues. Except in cases of undue delay, federal courts should refrain from entertaining an enemy combatant's habeas corpus petition at least until after the Department, acting via the CSRT, has had a chance to review his status.


[199] B.


[200] Although we hold that the DTA is not an adequate and effective substitute for habeas corpus, it does not follow that a habeas corpus court may disregard the dangers the detention in these cases was intended to prevent. Felker, Swain, and Hayman stand for the proposition that the Suspension Clause does not resist innovation in the field of habeas corpus. Certain accommodations can be made to reduce the burden habeas corpus proceedings will place on the military without impermissibly diluting the protections of the writ.


[201] In the DTA Congress sought to consolidate review of petitioners' claims in the Court of Appeals. Channeling future cases to one district court would no doubt reduce administrative burdens on the Government. This is a legitimate objective that might be advanced even without an amendment to §2241. If, in a future case, a detainee files a habeas petition in another judicial district in which a proper respondent can be served, see Rumsfeld v. Padilla, 542 U. S. 426, 435-436 (2004), the Government can move for change of venue to the court that will hear these petitioners' cases, the United States District Court for the District of Columbia. See 28 U. S. C. §1404(a); Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 499, n. 15 (1973).


[202] Another of Congress' reasons for vesting exclusive jurisdiction in the Court of Appeals, perhaps, was to avoid the widespread dissemination of classified information. The Government has raised similar concerns here and elsewhere. See Brief for Respondents 55-56; Bismullah Pet. 30. We make no attempt to anticipate all of the evidentiary and access-to-counsel issues that will arise during the course of the detainees' habeas corpus proceedings. We recognize, however, that the Government has a legitimate interest in protecting sources and methods of intelligence gathering; and we expect that the District Court will use its discretion to accommodate this interest to the greatest extent possible. Cf. United States v. Reynolds, 345 U. S. 1, 10 (1953) (recognizing an evidentiary privilege in a civil damages case where "there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged").


[203] These and the other remaining questions are within the expertise and competence of the District Court to address in the first instance.


[204] In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches. See United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 320 (1936). Unlike the President and some designated Members of Congress, neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people. The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security.


[205] Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation's present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not. Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.


[206] Our opinion does not undermine the Executive's powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.


[207] Because our Nation's past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism. Cf. Hamdan, 548 U. S., at 636 (Breyer, J., concurring) ("[J]udicial insistence upon that consultation does not weaken our Nation's ability to deal with danger. To the contrary, that insistence strengthens the Nation's ability to determine -- through democratic means -- how best to do so").


[208] It bears repeating that our opinion does not address the content of the law that governs petitioners' detention. That is a matter yet to be determined. We hold that petitioners may invoke the fundamental procedural protections of habeas corpus. The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.


[209] The determination by the Court of Appeals that the Suspension Clause and its protections are inapplicable to petitioners was in error. The judgment of the Court of Appeals is reversed. The cases are remanded to the Court of Appeals with instructions that it remand the cases to the District Court for proceedings consistent with this opinion.


[210] It is so ordered.


[211] Justice Souter, with whom Justice Ginsburg and Justice Breyer join, concurring.


[212] I join the Court's opinion in its entirety and add this afterword only to emphasize two things one might overlook after reading the dissents.


[213] Four years ago, this Court in Rasul v. Bush, 542 U. S. 466 (2004) held that statutory habeas jurisdiction extended to claims of foreign nationals imprisoned by the United States at Guantanamo Bay, "to determine the legality of the Executive's potentially indefinite detention" of them, id., at 485. Subsequent legislation eliminated the statutory habeas jurisdiction over these claims, so that now there must be constitutionally based jurisdiction or none at all. Justice Scalia is thus correct that here, for the first time, this Court holds there is (he says "confers") constitutional habeas jurisdiction over aliens imprisoned by the military outside an area of de jure national sovereignty, see post, at 1 (dissenting opinion). But no one who reads the Court's opinion in Rasul could seriously doubt that the jurisdictional question must be answered the same way in purely constitutional cases, given the Court's reliance on the historical background of habeas generally in answering the statutory question. See, e.g., 542 U. S., at 473, 481-483, and nn. 11-14. Indeed, the Court in Rasul directly answered the very historical question that Justice Scalia says is dispositive, see post, at 18; it wrote that "[a]pplication of the habeas statute to persons detained at [Guantanamo] is consistent with the historical reach of the writ of habeas corpus," 542 U. S., at 481. Justice Scalia dismisses the statement as dictum, see post, at 21, but if dictum it was, it was dictum well considered, and it stated the view of five Members of this Court on the historical scope of the writ. Of course, it takes more than a quotation from Rasul, however much on point, to resolve the constitutional issue before us here, which the majority opinion has explored afresh in the detail it deserves. But whether one agrees or disagrees with today's decision, it is no bolt out of the blue.


[214] A second fact insufficiently appreciated by the dissents is the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years, ante, at 66 (opinion of the Court). Hence the hollow ring when the dissenters suggest that the Court is somehow precipitating the judiciary into reviewing claims that the military (subject to appeal to the Court of Appeals for the District of Columbia Circuit) could handle within some reasonable period of time. See, e.g., post, at 3 (opinion of Roberts, C. J.) ("[T]he Court should have declined to intervene until the D. C. Circuit had assessed the nature and validity of the congressionally mandated proceedings in a given detainee's case"); post, at 6 ("[I]t is not necessary to consider the availability of the writ until the statutory remedies have been shown to be inadequate"); post, at 8 ("[The Court] rushes to decide the fundamental question of the reach of habeas corpus when the functioning of the DTA may make that decision entirely unnecessary"). These suggestions of judicial haste are all the more out of place given the Court's realistic acknowledgment that in periods of exigency the tempo of any habeas review must reflect the immediate peril facing the country. See ante, at 64-65.


[215] It is in fact the very lapse of four years from the time Rasul put everyone on notice that habeas process was available to Guantanamo prisoners, and the lapse of six years since some of these prisoners were captured and incarcerated, that stand at odds with the repeated suggestions of the dissenters that these cases should be seen as a judicial victory in a contest for power between the Court and the political branches. See post, at 2, 3, 28 (Roberts, C. J., dissenting); post, at 5, 6, 17, 18, 25 (Scalia, J., dissenting). The several answers to the charge of triumphalism might start with a basic fact of Anglo-American constitutional history: that the power, first of the Crown and now of the Executive Branch of the United States, is necessarily limited by habeas corpus jurisdiction to enquire into the legality of executive detention. And one could explain that in this Court's exercise of responsibility to preserve habeas corpus something much more significant is involved than pulling and hauling between the judicial and political branches. Instead, though, it is enough to repeat that some of these petitioners have spent six years behind bars. After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today's decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation. See ante, at 69.


[216] Chief Justice Roberts, with whom Justice Scalia, Justice Thomas, and Justice Alito join, dissenting.


[217] Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law's operation. And to what effect? The majority merely replaces a review system designed by the people's representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority's ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.


[218] The majority is adamant that the Guantanamo detainees are entitled to the protections of habeas corpus -- its opinion begins by deciding that question. I regard the issue as a difficult one, primarily because of the unique and unusual jurisdictional status of Guantanamo Bay. I nonetheless agree with Justice Scalia's analysis of our precedents and the pertinent history of the writ, and accordingly join his dissent. The important point for me, however, is that the Court should have resolved these cases on other grounds. Habeas is most fundamentally a procedural right, a mechanism for contesting the legality of executive detention. The critical threshold question in these cases, prior to any inquiry about the writ's scope, is whether the system the political branches designed protects whatever rights the detainees may possess. If so, there is no need for any additional process, whether called "habeas" or something else.


[219] Congress entrusted that threshold question in the first instance to the Court of Appeals for the District of Columbia Circuit, as the Constitution surely allows Congress to do. See Detainee Treatment Act of 2005 (DTA), §1005(e)(2)(A), 119 Stat. 2742. But before the D. C. Circuit has addressed the issue, the Court cashiers the statute, and without answering this critical threshold question itself. The Court does eventually get around to asking whether review under the DTA is, as the Court frames it, an "adequate substitute" for habeas, ante, at 42, but even then its opinion fails to determine what rights the detainees possess and whether the DTA system satisfies them. The majority instead compares the undefined DTA process to an equally undefined habeas right -- one that is to be given shape only in the future by district courts on a case-by-case basis. This whole approach is misguided.


[220] It is also fruitless. How the detainees' claims will be decided now that the DTA is gone is anybody's guess. But the habeas process the Court mandates will most likely end up looking a lot like the DTA system it replaces, as the district court judges shaping it will have to reconcile review of the prisoners' detention with the undoubted need to protect the American people from the terrorist threat -- precisely the challenge Congress undertook in drafting the DTA. All that today's opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary.


[221] I believe the system the political branches constructed adequately protects any constitutional rights aliens captured abroad and detained as enemy combatants may enjoy. I therefore would dismiss these cases on that ground. With all respect for the contrary views of the majority, I must dissent.


[222] I.


[223] The Court's opinion makes plain that certiorari to review these cases should never have been granted. As two Members of today's majority once recognized, "traditional rules governing our decision of constitutional questions and our practice of requiring the exhaustion of available remedies ... make it appropriate to deny these petitions." Boumediene v. Bush, 549 U. S. ___ (2007) (slip op., at 1) (citation omitted) (statement of Stevens and Kennedy, JJ., respecting denial of certiorari). Just so. Given the posture in which these cases came to us, the Court should have declined to intervene until the D. C. Circuit had assessed the nature and validity of the congressionally mandated proceedings in a given detainee's case.


[224] The political branches created a two-part, collateral review procedure for testing the legality of the prisoners' detention: It begins with a hearing before a Combatant Status Review Tribunal (CSRT) followed by review in the D. C. Circuit. As part of that review, Congress authorized the D. C. Circuit to decide whether the CSRT proceedings are consistent with "the Constitution and laws of the United States." DTA §1005(e)(2)(C), 119 Stat. 2742. No petitioner, however, has invoked the D. C. Circuit review the statute specifies. See 476 F. 3d 981, 994, and n. 16 (CADC 2007); Brief for Federal Respondents 41-43. As a consequence, that court has had no occasion to decide whether the CSRT hearings, followed by review in the Court of Appeals, vindicate whatever constitutional and statutory rights petitioners may possess. See 476 F. 3d, at 994, and n. 16.


[225] Remarkably, this Court does not require petitioners to exhaust their remedies under the statute; it does not wait to see whether those remedies will prove sufficient to protect petitioners' rights. Instead, it not only denies the D. C. Circuit the opportunity to assess the statute's remedies, it refuses to do so itself: the majority expressly declines to decide whether the CSRT procedures, coupled with Article III review, satisfy due process. See ante, at 54.


[226] It is grossly premature to pronounce on the detainees' right to habeas without first assessing whether the remedies the DTA system provides vindicate whatever rights petitioners may claim. The plurality in Hamdi v. Rumsfeld, 542 U. S. 507, 533 (2004), explained that the Constitution guaranteed an American citizen challenging his detention as an enemy combatant the right to "notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker." The plurality specifically stated that constitutionally adequate collateral process could be provided "by an appropriately authorized and properly constituted military tribunal," given the "uncommon potential to burden the Executive at a time of ongoing military conflict." Id., at 533, 538. This point is directly pertinent here, for surely the Due Process Clause does not afford non-citizens in such circumstances greater protection than citizens are due.


[227] If the CSRT procedures meet the minimal due process requirements outlined in Hamdi, and if an Article III court is available to ensure that these procedures are followed in future cases, see id., at 536; INS v. St. Cyr, 533 U. S. 289, 304 (2001); Heikkila v. Barber, 345 U. S. 229, 236 (1953), there is no need to reach the Suspension Clause question. Detainees will have received all the process the Constitution could possibly require, whether that process is called "habeas" or something else. The question of the writ's reach need not be addressed.


[228] This is why the Court should have required petitioners to exhaust their remedies under the statute. As we explained in Gusik v. Schilder, 340 U. S. 128, 132 (1950), "If an available procedure has not been employed to rectify the alleged error" petitioners complain of, "any interference by [a] federal court may be wholly needless. The procedure established to police the errors of the tribunal whose judgment is challenged may be adequate for the occasion." Because the majority refuses to assess whether the CSRTs comport with the Constitution, it ends up razing a system of collateral review that it admits may in fact satisfy the Due Process Clause and be "structurally sound." Ante, at 56. But if the collateral review procedures Congress has provided -- CSRT review coupled with Article III scrutiny -- are sound, interference by a federal habeas court may be entirely unnecessary.


[229] The only way to know is to require petitioners to use the alternative procedures Congress designed. Mandating that the petitioners exhaust their statutory remedies "is in no sense a suspension of the writ of habeas corpus. It is merely a deferment of resort to the writ until other corrective procedures are shown to be futile." Gusik, supra, at 132. So too here, it is not necessary to consider the availability of the writ until the statutory remedies have been shown to be inadequate to protect the detainees' rights. Cf. 28 U. S. C. §2254(b)(1)(A) ("An application for a writ of habeas corpus ... shall not be granted unless it appears that ... the applicant has exhausted the remedies available in the courts of the State"). Respect for the judgments of Congress -- whose Members take the same oath we do to uphold the Constitution -- requires no less.


[230] In the absence of any assessment of the DTA's remedies, the question whether detainees are entitled to habeas is an entirely speculative one. Our precedents have long counseled us to avoid deciding such hypothetical questions of constitutional law. See Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101, 105 (1944) ("If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality ... unless such [questions are] unavoidable"); see also Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring) (Constitutional questions should not be decided unless " `absolutely necessary to a decision of the case' " (quoting Burton v. United States, 196 U. S. 283, 295 (1905))). This is a "fundamental rule of judicial restraint." Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 157 (1984).


[231] The Court acknowledges that "the ordinary course" would be not to decide the constitutionality of the DTA at this stage, but abandons that "ordinary course" in light of the "gravity" of the constitutional issues presented and the prospect of additional delay. Ante, at 43. It is, however, precisely when the issues presented are grave that adherence to the ordinary course is most important. A principle applied only when unimportant is not much of a principle at all, and charges of judicial activism are most effectively rebutted when courts can fairly argue they are following normal practices.


[232] The Court is also concerned that requiring petitioners to pursue "DTA review before proceeding with their habeas corpus actions" could involve additional delay. Ante, at 66. The nature of the habeas remedy the Court instructs lower courts to craft on remand, however, is far more unsettled than the process Congress provided in the DTA. See ante, at 69 ("[O]ur opinion does not address the content of the law that governs petitioners' detention. That is a matter yet to be determined"). There is no reason to suppose that review according to procedures the Federal Judiciary will design, case by case, will proceed any faster than the DTA process petitioners disdained.


[233] On the contrary, the system the Court has launched (and directs lower courts to elaborate) promises to take longer. The Court assures us that before bringing their habeas petitions, detainees must usually complete the CSRT process. See ante, at 66. Then they may seek review in federal district court. Either success or failure there will surely result in an appeal to the D. C. Circuit -- exactly where judicial review starts under Congress's system. The effect of the Court's decision is to add additional layers of quite possibly redundant review. And because nobody knows how these new layers of "habeas" review will operate, or what new procedures they will require, their contours will undoubtedly be subject to fresh bouts of litigation. If the majority were truly concerned about delay, it would have required petitioners to use the DTA process that has been available to them for 212 years, with its Article III review in the D. C. Circuit. That system might well have provided petitioners all the relief to which they are entitled long before the Court's newly installed habeas review could hope to do so.*fn1


[234] The Court's refusal to require petitioners to exhaust the remedies provided by Congress violates the "traditional rules governing our decision of constitutional questions." Boumediene, 549 U. S., at ___ (slip op., at 1) (statement of Stevens and Kennedy, JJ., respecting denial of certiorari). The Court's disrespect for these rules makes its decision an awkward business. It rushes to decide the fundamental question of the reach of habeas corpus when the functioning of the DTA may make that decision entirely unnecessary, and it does so with scant idea of how DTA judicial review will actually operate.


[235] II.


[236] The majority's overreaching is particularly egregious given the weakness of its objections to the DTA. Simply put, the Court's opinion fails on its own terms. The majority strikes down the statute because it is not an "adequate substitute" for habeas review, ante, at 42, but fails to show what rights the detainees have that cannot be vindicated by the DTA system.


[237] Because the central purpose of habeas corpus is to test the legality of executive detention, the writ requires most fundamentally an Article III court able to hear the prisoner's claims and, when necessary, order release. See Brown v. Allen, 344 U. S. 443, 533 (1953) (Jackson, J., concurring in result). Beyond that, the process a given prisoner is entitled to receive depends on the circumstances and the rights of the prisoner. See Mathews v. Eldridge, 424 U. S. 319, 335 (1976). After much hemming and hawing, the majority appears to concede that the DTA provides an Article III court competent to order release. See ante, at 61. The only issue in dispute is the process the Guantanamo prisoners are entitled to use to test the legality of their detention. Hamdi concluded that American citizens detained as enemy combatants are entitled to only limited process, and that much of that process could be supplied by a military tribunal, with review to follow in an Article III court. That is precisely the system we have here. It is adequate to vindicate whatever due process rights petitioners may have.


[238] A.


[239] The Court reaches the opposite conclusion partly because it misreads the statute. The majority appears not to understand how the review system it invalidates actually works -- specifically, how CSRT review and review by the D. C. Circuit fit together. After briefly acknowledging in its recitation of the facts that the Government designed the CSRTs "to comply with the due process requirements identified by the plurality in Hamdi," ante, at 3, the Court proceeds to dismiss the tribunal proceedings as no more than a suspect method used by the Executive for determining the status of the detainees in the first instance, see ante, at 43. This leads the Court to treat the review the DTA provides in the D. C. Circuit as the only opportunity detainees have to challenge their status determination. See ante, at 49.


[240] The Court attempts to explain its glancing treatment of the CSRTs by arguing that "[w]hether one characterizes the CSRT process as direct review of the Executive's battlefield determination . . . or as the first step in the collateral review of a battlefield determination makes no difference." Ante, at 54. First of all, the majority is quite wrong to dismiss the Executive's determination of detainee status as no more than a "battlefield" judgment, as if it were somehow provisional and made in great haste. In fact, detainees are designated "enemy combatants" only after "multiple levels of review by military officers and officials of the Department of Defense." Memorandum of the Secretary of the Navy, Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at Guantanamo Bay Naval Base (July 29, 2004), App. J to Pet. for Cert. in No. 06-1196, p. 150 (hereinafter Implementation Memo).


[241] The majority is equally wrong to characterize the CSRTs as part of that initial determination process. They are instead a means for detainees to challenge the Government's determination. The Executive designed the CSRTs to mirror Army Regulation 190-8, see Brief for Federal Respondents 48, the very procedural model the plurality in Hamdi said provided the type of process an enemy combatant could expect from a habeas court, see 542 U. S., at 538 (plurality opinion). The CSRTs operate much as habeas courts would if hearing the detainee's collateral challenge for the first time: They gather evidence, call witnesses, take testimony, and render a decision on the legality of the Government's detention. See Implementation Memo, App. J to Pet. for Cert. in No. 06-1196, at 153-162. If the CSRT finds a particular detainee has been improperly held, it can order release. See id., at 164.


[242] The majority insists that even if "the CSRTs satisf[ied] due process standards," full habeas review would still be necessary, because habeas is a collateral remedy available even to prisoners "detained pursuant to the most rigorous proceedings imaginable." Ante, at 55, 56. This comment makes sense only if the CSRTs are incorrectly viewed as a method used by the Executive for determining the prisoners' status, and not as themselves part of the collateral review to test the validity of that determination. See Gusik, 340 U. S., at 132. The majority can deprecate the importance of the CSRTs only by treating them as something they are not.


[243] The use of a military tribunal such as the CSRTs to review the aliens' detention should be familiar to this Court in light of the Hamdi plurality, which said that the due process rights enjoyed by American citizens detained as enemy combatants could be vindicated "by an appropriately authorized and properly constituted military tribunal." 542 U. S., at 538. The DTA represents Congress' considered attempt to provide the accused alien combatants detained at Guantanamo a constitutionally adequate opportunity to contest their detentions before just such a tribunal.


[244] But Congress went further in the DTA. CSRT review is just the first tier of collateral review in the DTA system. The statute provides additional review in an Article III court. Given the rationale of today's decision, it is well worth recalling exactly what the DTA provides in this respect. The statute directs the D. C. Circuit to consider whether a particular alien's status determination "was consistent with the standards and procedures specified by the Secretary of Defense" and "whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States." DTA §1005(e)(2)(C), 119 Stat. 2742. That is, a court determines whether the CSRT procedures are constitutional, and a court determines whether those procedures were followed in a particular case.


[245] In short, the Hamdi plurality concluded that this type of review would be enough to satisfy due process, even for citizens. See 542 U. S., at 538. Congress followed the Court's lead, only to find itself the victim of a constitutional bait and switch.


[246] Hamdi merits scant attention from the Court -- a remarkable omission, as Hamdi bears directly on the issues before us. The majority attempts to dismiss Hamdi's relevance by arguing that because the availability of §2241 federal habeas was never in doubt in that case, "the Court had no occasion to define the necessary scope of habeas review . . . in the context of enemy combatant detentions." Ante, at 55. Hardly. Hamdi was all about the scope of habeas review in the context of enemy combatant detentions. The petitioner, an American citizen held within the United States as an enemy combatant, invoked the writ to challenge his detention. 542 U. S., at 510-511. After "a careful examination both of the writ ... and of the Due Process Clause," this Court enunciated the "basic process" the Constitution entitled Hamdi to expect from a habeas court under §2241. Id., at 525, 534. That process consisted of the right to "receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker." Id., at 533. In light of the Government's national security responsibilities, the plurality found the process could be "tailored to alleviate [the] uncommon potential to burden the Executive at a time of ongoing military conflict." Ibid. For example, the Government could rely on hearsay and could claim a presumption in favor of its own evidence. See id., at 533-534.


[247] Hamdi further suggested that this "basic process" on collateral review could be provided by a military tribunal. It pointed to prisoner-of-war tribunals as a model that would satisfy the Constitution's requirements. See id., at 538. Only "[i]n the absence of such process" before a military tribunal, the Court held, would Article III courts need to conduct full-dress habeas proceedings to "ensure that the minimum requirements of due process are achieved." Ibid. (emphasis added). And even then, the petitioner would be entitled to no more process than he would have received from a properly constituted military review panel, given his limited due process rights and the Government's weighty interests. See id., at 533-534, 538.


[248] Contrary to the majority, Hamdi is of pressing relevance because it establishes the procedures American citizens detained as enemy combatants can expect from a habeas court proceeding under §2241. The DTA system of military tribunal hearings followed by Article III review looks a lot like the procedure Hamdi blessed. If nothing else, it is plain from the design of the DTA that Congress, the President, and this Nation's military leaders have made a good-faith effort to follow our precedent.


[249] The Court, however, will not take "yes" for an answer. The majority contends that "[i]f Congress had envisioned DTA review as coextensive with traditional habeas corpus," it would have granted the D. C. Circuit far broader review authority. Ante, at 48. Maybe so, but that comment reveals the majority's misunderstanding. "[T]raditional habeas corpus" takes no account of what Hamdi recognized as the "uncommon potential to burden the Executive at a time of ongoing military conflict." 542 U. S., at 533. Besides, Congress and the Executive did not envision "DTA review" -- by which I assume the Court means D. C. Circuit review, see ante, at 48 -- as the detainees' only opportunity to challenge their detentions. Instead, the political branches crafted CSRT and D. C. Circuit review to operate together, with the goal of providing noncitizen detainees the level of collateral process Hamdi said would satisfy the due process rights of American citizens. See Brief for Federal Respondents 48-53.


[250] B.


[251] Given the statutory scheme the political branches adopted, and given Hamdi, it simply will not do for the majority to dismiss the CSRT procedures as "far more limited" than those used in military trials, and therefore beneath the level of process "that would eliminate the need for habeas corpus review." Ante, at 37. The question is not how much process the CSRTs provide in comparison to other modes of adjudication. The question is whether the CSRT procedures -- coupled with the judicial review specified by the DTA -- provide the "basic process" Hamdi said the Constitution affords American citizens detained as enemy combatants. See 542 U. S., at 534.


[252] By virtue of its refusal to allow the D. C. Circuit to assess petitioners' statutory remedies, and by virtue of its own refusal to consider, at the outset, the fit between those remedies and due process, the majority now finds itself in the position of evaluating whether the DTA system is an adequate substitute for habeas review without knowing what rights either habeas or the DTA is supposed to protect. The majority attempts to elide this problem by holding that petitioners have a right to habeas corpus and then comparing the DTA against the "historic office" of the writ. Ante, at 47. But habeas is, as the majority acknowledges, a flexible remedy rather than a substantive right. Its "precise application ... change[s] depending upon the circumstances." Ante, at 50. The shape of habeas review ultimately depends on the nature of the rights a petitioner may assert. See, e.g., Reid v. Covert, 354 U. S. 1, 75 (1957) (Harlan, J., concurring in result) ("[T]he question of which specific safeguards of the Constitution are appropriately to be applied in a particular context ... can be reduced to the issue of what process is `due' a defendant in the particular circumstances of a particular case").


[253] The scope of federal habeas review is traditionally more limited in some contexts than in others, depending on the status of the detainee and the rights he may assert. See St. Cyr, 533 U. S., at 306 ("In [immigration cases], other than the question whether there was some evidence to support the [deportation] order, the courts generally did not review factual determinations made by the Executive" (footnote omitted)); Burns v. Wilson, 346 U. S. 137, 139 (1953) (plurality opinion) ("[I]n military habeas corpus the inquiry, the scope of matters open for review, has always been more narrow than in civil cases"); In re Yamashita, 327 U. S. 1, 8 (1946) ("The courts may inquire whether the detention complained of is within the authority of those detaining the petitioner. If the military tribunals have lawful authority to hear, decide and condemn, their action is not subject to judicial review"); Ex parte Quirin, 317 U. S. 1, 25 (1942) (federal habeas review of military commission verdict limited to determining commission's jurisdiction).


[254] Declaring that petitioners have a right to habeas in no way excuses the Court from explaining why the DTA does not protect whatever due process or statutory rights petitioners may have. Because if the DTA provides a means for vindicating petitioners' rights, it is necessarily an adequate substitute for habeas corpus. See Swain v. Pressley, 430 U. S. 372, 381 (1977); United States v. Hayman, 342 U. S. 205, 223 (1952).


[255] For my part, I will assume that any due process rights petitioners may possess are no greater than those of American citizens detained as enemy combatants. It is worth noting again that the Hamdi controlling opinion said the Constitution guarantees citizen detainees only "basic" procedural rights, and that the process for securing those rights can "be tailored to alleviate [the] uncommon potential to burden the Executive at a time of ongoing military conflict." 542 U. S., at 533. The majority, however, objects that "the procedural protections afforded to the detainees in the CSRT hearings are ... limited." Ante, at 37. But the evidentiary and other limitations the Court complains of reflect the nature of the issue in contest, namely, the status of aliens captured by our Armed Forces abroad and alleged to be enemy combatants. Contrary to the repeated suggestions of the majority, DTA review need not parallel the habeas privileges enjoyed by noncombatant American citizens, as set out in 28 U. S. C. §2241 (2000 ed. and Supp V). Cf. ante, at 46-47. It need only provide process adequate for noncitizens detained as alleged combatants.


[256] To what basic process are these detainees due as habeas petitioners? We have said that "at the absolute minimum," the Suspension Clause protects the writ " `as it existed in 1789.' " St. Cyr, supra, at 301 (quoting Felker v. Turpin, 518 U. S. 651, 663-664 (1996)). The majority admits that a number of historical authorities suggest that at the time of the Constitution's ratification, "common-law courts abstained altogether from matters involving prisoners of war." Ante, at 17. If this is accurate, the process provided prisoners under the DTA is plainly more than sufficient -- it allows alleged combatants to challenge both the factual and legal bases of their detentions.


[257] Assuming the constitutional baseline is more robust, the DTA still provides adequate process, and by the majority's own standards. Today's Court opines that the Suspension Clause guarantees prisoners such as the detainees "a meaningful opportunity to demonstrate that [they are] being held pursuant to the erroneous application or interpretation of relevant law." Ante, at 50 (internal quotation marks omitted). Further, the Court holds that to be an adequate substitute, any tribunal reviewing the detainees' cases "must have the power to order the conditional release of an individual unlawfully detained." Ibid. The DTA system -- CSRT review of the Executive's determination followed by D. C. Circuit review for sufficiency of the evidence and the constitutionality of the CSRT process -- meets these criteria.


[258] C.


[259] At the CSRT stage, every petitioner has the right to present evidence that he has been wrongfully detained. This includes the right to call witnesses who are reasonably available, question witnesses called by the tribunal, introduce documentary evidence, and testify before the tribunal. See Implementation Memo, App. J to Pet. for Cert. in No. 06-1196, at 154-156, 158-159, 161.


[260] While the Court concedes detainees may confront all witnesses called before the tribunal, it suggests this right is "more theoretical than real" because "there are in effect no limits on the admission of hearsay evidence." Ante, at 55. The Court further complains that petitioners lack "the assistance of counsel," and -- given the limits on their access to classified information -- "may not be aware of the most critical allegations" against them. Ante, at 54. None of these complaints is persuasive.


[261] Detainees not only have the opportunity to confront any witness who appears before the tribunal, they may call witnesses of their own. The Implementation Memo requires only that detainees' witnesses be "reasonably available," App. J to Pet. for Cert. in No. 06-1196, at 155, a requirement drawn from Army Regulation 190-8, ch. 1, §1-6(e)(6), and entirely consistent with the Government's interest in avoiding "a futile search for evidence" that might burden warmaking responsibilities, Hamdi, supra, at 532. The dangerous mission assigned to our forces abroad is to fight terrorists, not serve subpoenas. The Court is correct that some forms of hearsay evidence are admissible before the CSRT, but Hamdi expressly approved this use of hearsay by habeas courts. 542 U. S., at 533-534 ("Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government").


[262] As to classified information, while detainees are not permitted access to it themselves, the Implementation Memo provides each detainee with a "Personal Representative" who may review classified documents at the CSRT stage and summarize them for the detainee. Implementation Memo, supra, at 152, 154-155, 156; Brief for Federal Respondents 54-55. The prisoner's counsel enjoys the same privilege on appeal before the D. C. Circuit. That is more access to classified material for alleged alien enemy combatants than ever before provided. I am not aware of a single instance -- and certainly the majority cites none -- in which detainees such as petitioners have been provided access to classified material in any form. Indeed, prisoners of war who challenge their status determinations under the Geneva Convention are afforded no such access, see Army Regulation 190-8, ch. 1, §§1-6(e)(3) and (5), and the prisoner-of-war model is the one Hamdi cited as consistent with the demands of due process for citizens, see 542 U. S., at 538.


[263] What alternative does the Court propose? Allow free access to classified information and ignore the risk the prisoner may eventually convey what he learns to parties hostile to this country, with deadly consequences for those who helped apprehend the detainee? If the Court can design a better system for communicating to detainees the substance of any classified information relevant to their cases, without fatally compromising national security interests and sources, the majority should come forward with it. Instead, the majority fobs that vexing question off on district courts to answer down the road.


[264] Prisoners of war are not permitted access to classified information, and neither are they permitted access to counsel, another supposed failing of the CSRT process. And yet the Guantanamo detainees are hardly denied all legal assistance. They are provided a "Personal Representative" who, as previously noted, may access classified information, help the detainee arrange for witnesses, assist the detainee's preparation of his case, and even aid the detainee in presenting his evidence to the tribunal. See Implementation Memo, supra, at 161. The provision for a personal representative on this order is one of several ways in which the CSRT procedures are more generous than those provided prisoners of war under Army Regulation 190-8.


[265] Keep in mind that all this is just at the CSRT stage. Detainees receive additional process before the D. C. Circuit, including full access to appellate counsel and the right to challenge the factual and legal bases of their detentions. DTA §1005(e)(2)(C) empowers the Court of Appeals to determine not only whether the CSRT observed the "procedures specified by the Secretary of Defense," but also "whether the use of such standards and procedures ... is consistent with the Constitution and laws of the United States." 119 Stat. 2742. These provisions permit detainees to dispute the sufficiency of the evidence against them. They allow detainees to challenge a CSRT panel's interpretation of any relevant law, and even the constitutionality of the CSRT proceedings themselves. This includes, as the Solicitor General acknowledges, the ability to dispute the Government's right to detain alleged combatants in the first place, and to dispute the Government's definition of "enemy combatant." Brief for Federal Respondents 59. All this before an Article III court -- plainly a neutral decisionmaker.


[266] All told, the DTA provides the prisoners held at Guantanamo Bay adequate opportunity to contest the bases of their detentions, which is all habeas corpus need allow. The DTA provides more opportunity and more process, in fact, than that afforded prisoners of war or any other alleged enemy combatants in history.


[267] D.


[268] Despite these guarantees, the Court finds the DTA system an inadequate habeas substitute, for one central reason: Detainees are unable to introduce at the appeal stage exculpatory evidence discovered after the conclusion of their CSRT proceedings. See ante, at 58. The Court hints darkly that the DTA may suffer from other infirmities, see ante, at 63 ("We do not imply DTA review would be a constitutionally sufficient replacement for habeas corpus but for these limitations on the detainee's ability to present exculpatory evidence"), but it does not bother to name them, making a response a bit difficult. As it stands, I can only assume the Court regards the supposed defect it did identify as the gravest of the lot.


[269] If this is the most the Court can muster, the ice beneath its feet is thin indeed. As noted, the CSRT procedures provide ample opportunity for detainees to introduce exculpatory evidence -- whether documentary in nature or from live witnesses -- before the military tribunals. See infra, at 21-23; Implementation Memo, App. J to Pet. for Cert. in No. 06-196, at 155-156. And if their ability to introduce such evidence is denied contrary to the Constitution or laws of the United States, the D. C. Circuit has the authority to say so on review.


[270] Nevertheless, the Court asks us to imagine an instance in which evidence is discovered after the CSRT panel renders its decision, but before the Court of Appeals reviews the detainee's case. This scenario, which of course has not yet come to pass as no review in the D. C. Circuit has occurred, provides no basis for rejecting the DTA as a habeas substitute. While the majority is correct that the DTA does not contemplate the introduction of "newly discovered" evidence before the Court of Appeals, petitioners and the Solicitor General agree that the DTA does permit the D. C. Circuit to remand a detainee's case for a new CSRT determination. Brief for Petitioner Boumediene et al. in No. 06-1195, at 30; Brief for Federal Respondents 60-61. In the event a detainee alleges that he has obtained new and persuasive exculpatory evidence that would have been considered by the tribunal below had it only been available, the D. C. Circuit could readily remand the case to the tribunal to allow that body to consider the evidence in the first instance. The Court of Appeals could later review any new or reinstated decision in light of the supplemented record.


[271] If that sort of procedure sounds familiar, it should. Federal appellate courts reviewing factual determinations follow just such a procedure in a variety of circumstances. See, e.g., United States v. White, 492 F. 3d 380, 413 (CA6 2007) (remanding new-evidence claim to the district court for a Brady evidentiary hearing); Avila v. Roe, 298 F. 3d 750, 754 (CA9 2002) (remanding habeas claim to the district court for evidentiary hearing to clarify factual record); United States v. Leone, 215 F. 3d 253, 256 (CA2 2000) (observing that when faced on direct appeal with an underdeveloped claim for ineffective assistance of counsel, the appellate court may remand to the district court for necessary factfinding).


[272] A remand is not the only relief available for detainees caught in the Court's hypothetical conundrum. The DTA expressly directs the Secretary of Defense to "provide for periodic review of any new evidence that may become available relating to the enemy combatant status of a detainee." DTA §1005(a)(3). Regulations issued by the Department of Defense provide that when a detainee puts forward new, material evidence "not previously presented to the detainee's CSRT," the Deputy Secretary of Defense " `will direct that a CSRT convene to reconsider the basis of the detainee's ... status in light of the new information.' " Office for the Administrative Review of the Detention of Enemy Combatants, Instruction 5421.1, Procedure for Review of "New Evidence" Relating to Enemy Combatant (EC) Status ¶¶4(a)(1), 5(b) (May 7, 2007); Brief for Federal Respondents 56, n. 30. Pursuant to DTA §1005(e)(2)(A), the resulting CSRT determination is again reviewable in full by the D. C. Circuit.*fn2


[273] In addition, DTA §1005(d)(1) further requires the Department of Defense to conduct a yearly review of the status of each prisoner. See 119 Stat. 2741. The Deputy Secretary of Defense has promulgated concomitant regulations establishing an Administrative Review Board to assess "annually the need to continue to detain each enemy combatant." Deputy Secretary of Defense Order OSD 06942-04 (May 11, 2004), App. K to Pet. for Cert. in No. 06-1196, p. 189. In the words of the implementing order, the purpose of this annual review is to afford every detainee the opportunity "to explain why he is no longer a threat to the United States" and should be released. Ibid. The Board's findings are forwarded to a presidentially appointed, Senate-confirmed civilian within the Department of Defense whom the Secretary of Defense has designated to administer the review process. This designated civilian official has the authority to order release upon the Board's recommendation. Id., at 201.


[274] The Court's hand wringing over the DTA's treatment of later-discovered exculpatory evidence is the most it has to show after a roving search for constitutionally problematic scenarios. But "[t]he delicate power of pronouncing an Act of Congress unconstitutional," we have said, "is not to be exercised with reference to hypothetical cases thus imagined." United States v. Raines, 362 U. S. 17, 22 (1960). The Court today invents a sort of reverse facial challenge and applies it with gusto: If there is any scenario in which the statute might be constitutionally infirm, the law must be struck down. Cf. United States v. Salerno, 481 U. S. 739, 745 (1987) ("A facial challenge ... must establish that no set of circumstances exists under which the Act would be valid"); see also Washington v. Glucksberg, 521 U. S. 702, 739-740, and n. 7 (1997) (Stevens, J., concurring in judgments) (facial challenge must fail where the statute has " `plainly legitimate sweep' " (quoting Broadrick v. Oklahoma, 413 U. S. 601, 615 (1973))). The Court's new method of constitutional adjudication only underscores its failure to follow our usual procedures and require petitioners to demonstrate that they have been harmed by the statute they challenge. In the absence of such a concrete showing, the Court is unable to imagine a plausible hypothetical in which the DTA is unconstitutional.


[275] E.


[276] The Court's second criterion for an adequate substitute is the "power to order the conditional release of an individual unlawfully detained." Ante, at 50. As the Court basically admits, the DTA can be read to permit the D. C. Circuit to order release in light of our traditional principles of construing statutes to avoid difficult constitutional issues, when reasonably possible. See ante, at 56-57.


[277] The Solicitor General concedes that remedial authority of some sort must be implied in the statute, given that the DTA -- like the general habeas law itself, see 28 U. S. C. §2243 -- provides no express remedy of any kind. Brief for Federal Respondents 60-61. The parties agree that at the least, the DTA empowers the D. C. Circuit to remand a prisoner's case to the CSRT with instructions to perform a new status assessment. Brief for Petitioner Boumediene et al. in No. 06-1195, at 30; Brief for Federal Respondents 60-61. To avoid constitutional infirmity, it is reasonable to imply more, see Ashwander, 297 U. S., at 348 (Brandeis, J., concurring) ("When the validity of an act of the Congress is drawn in question ... it is a cardinal principle that this Court will ... ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided" (internal quotation marks omitted)); see also St. Cyr, 533 U. S., at 299-300, especially in view of the Solicitor General's concession at oral argument and in his Supplemental Brief that authority to release might be read in the statute, see Tr. of Oral Arg. 37; Supplemental Brief for Federal Respondents 9.


[278] The Court grudgingly suggests that "Congress' silence on the question of remedies suggests acquiescence to any constitutionally required remedy." Ante, at 58. But the argument in favor of statutorily authorized release is stronger than that. The DTA's parallels to 28 U. S. C. §2243 on this score are noteworthy. By way of remedy, the general federal habeas statute provides only that the court, having heard and determined the facts, shall "dispose of the matter as law and justice require." Ibid. We have long held, and no party here disputes, that this includes the power to order release. See Wilkinson v. Dotson, 544 U. S. 74, 79 (2005) ("[T]he writ's history makes clear that it traditionally has been accepted as the specific instrument to obtain release from [unlawful] confinement" (internal quotation marks omitted)).


[279] The DTA can be similarly read. Because Congress substituted DTA review for habeas corpus and because the "unique purpose" of the writ is "to release the applicant ... from unlawful confinement," Allen v. McCurry, 449 U. S. 90, 98, n. 12 (1980), DTA §1005(e)(2) can and should be read to confer on the Court of Appeals the authority to order release in appropriate circumstances. Section 1005(e)(2)(D) plainly contemplates release, addressing the effect "release of [an] alien from the custody of the Department of Defense" will have on the jurisdiction of the court. 119 Stat. 2742-2743. This reading avoids serious constitutional difficulty and is consistent with the text of the statute.


[280] The D. C. Circuit can thus order release, the CSRTs can order release, and the head of the Administrative Review Boards can, at the recommendation of those panels, order release. These multiple release provisions within the DTA system more than satisfy the majority's requirement that any tribunal substituting for a habeas court have the authority to release the prisoner.


[281] The basis for the Court's contrary conclusion is summed up in the following sentence near the end of its opinion: "To hold that the detainees at Guantanamo may, under the DTA, challenge the President's legal authority to detain them, contest the CSRT's findings of fact, supplement the record on review with newly discovered or previously unavailable evidence, and request an order of release would come close to reinstating the §2241 habeas corpus process Congress sought to deny them." Ante, at 63. In other words, any interpretation of the statute that would make it an adequate substitute for habeas must be rejected, because Congress could not possibly have intended to enact an adequate substitute for habeas. The Court could have saved itself a lot of trouble if it had simply announced this Catch-22 approach at the beginning rather than the end of its opinion.


[282] III.


[283] For all its eloquence about the detainees' right to the writ, the Court makes no effort to elaborate how exactly the remedy it prescribes will differ from the procedural protections detainees enjoy under the DTA. The Court objects to the detainees' limited access to witnesses and classified material, but proposes no alternatives of its own. Indeed, it simply ignores the many difficult questions its holding presents. What, for example, will become of the CSRT process? The majority says federal courts should generally refrain from entertaining detainee challenges until after the petitioner's CSRT proceeding has finished. See ante, at 66 ("[e]xcept in cases of undue delay"). But to what deference, if any, is that CSRT determination entitled?


[284] There are other problems. Take witness availability. What makes the majority think witnesses will become magically available when the review procedure is labeled "habeas"? Will the location of most of these witnesses change -- will they suddenly become easily susceptible to service of process? Or will subpoenas issued by American habeas courts run to Basra? And if they did, how would they be enforced? Speaking of witnesses, will detainees be able to call active-duty military officers as witnesses? If not, why not?


[285] The majority has no answers for these difficulties. What it does say leaves open the distinct possibility that its "habeas" remedy will, when all is said and done, end up looking a great deal like the DTA review it rejects. See ante, at 66 (opinion of the court) ("We recognize, however, that the Government has a legitimate interest in protecting sources and methods of intelligence gathering, and we expect that the District Court will use its discretion to accommodate this interest to the greatest extent possible"). But "[t]he role of the judiciary is limited to determining whether the procedures meet the essential standard of fairness under the Due Process Clause and does not extend to imposing procedures that merely displace congressional choices of policy." Landon v. Plasencia, 459 U. S. 21, 34-35 (1982).


[286] The majority rests its decision on abstract and hypothetical concerns. Step back and consider what, in the real world, Congress and the Executive have actually granted aliens captured by our Armed Forces overseas and found to be enemy combatants:


[287] The right to hear the bases of the charges against them, including a summary of any classified evidence.


[288] The ability to challenge the bases of their detention before military tribunals modeled after Geneva Convention procedures. Some 38 detainees have been released as a result of this process. Brief for Federal Respondents 57, 60.


[289] The right, before the CSRT, to testify, introduce evidence, call witnesses, question those the Government calls, and secure release, if and when appropriate.


[290] The right to the aid of a personal representative in arranging and presenting their cases before a CSRT.


[291] Before the D. C. Circuit, the right to employ counsel, challenge the factual record, contest the lower tribunal's legal determinations, ensure compliance with the Constitution and laws, and secure release, if any errors below establish their entitlement to such relief.


[292] In sum, the DTA satisfies the majority's own criteria for assessing adequacy. This statutory scheme provides the combatants held at Guantanamo greater procedural protections than have ever been afforded alleged enemy detainees -- whether citizens or aliens -- in our national history.


[293] So who has won? Not the detainees. The Court's analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit -- where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to "determine -- through democratic means -- how best" to balance the security of the American people with the detainees' liberty interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636 (2006) (Breyer, J., concurring), has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation's foreign policy to unelected, politically unaccountable judges.


[294] I respectfully dissent.


[295] Justice Scalia, with whom The Chief Justice, Justice Thomas, and Justice Alito join, dissenting.


[296] Today, for the first time in our Nation's history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war. The Chief Justice's dissent, which I join, shows that the procedures prescribed by Congress in the Detainee Treatment Act provide the essential protections that habeas corpus guarantees; there has thus been no suspension of the writ, and no basis exists for judicial intervention beyond what the Act allows. My problem with today's opinion is more fundamental still: The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court's intervention in this military matter is entirely ultra vires.


[297] I shall devote most of what will be a lengthy opinion to the legal errors contained in the opinion of the Court. Contrary to my usual practice, however, I think it appropriate to begin with a description of the disastrous consequences of what the Court has done today.


[298] I.


[299] America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen. See National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, pp. 60-61, 70, 190 (2004). On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D. C., and 40 in Pennsylvania. See id., at 552, n. 9. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed.


[300] The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court's blatant abandonment of such a principle that produces the decision today. The President relied on our settled precedent in Johnson v. Eisentrager, 339 U. S. 763 (1950), when he established the prison at Guantanamo Bay for enemy aliens. Citing that case, the President's Office of Legal Counsel advised him "that the great weight of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at [Guantanamo Bay]." Memorandum from Patrick F. Philbin and John C. Yoo, Deputy Assistant Attorneys General, Office of Legal Counsel, to William J. Haynes II, General Counsel, Dept. of Defense (Dec. 28, 2001). Had the law been otherwise, the military surely would not have transported prisoners there, but would have kept them in Afghanistan, transferred them to another of our foreign military bases, or turned them over to allies for detention. Those other facilities might well have been worse for the detainees themselves.


[301] In the long term, then, the Court's decision today accomplishes little, except perhaps to reduce the well-being of enemy combatants that the Court ostensibly seeks to protect. In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield. See S. Rep. No. 110-90, pt. 7, p. 13 (2007) (Minority Views of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn) (hereinafter Minority Report). Some have been captured or killed. See ibid.; see also Mintz, Released Detainees Rejoining the Fight, Washington Post, Oct. 22, 2004, pp. A1, A12. But others have succeeded in carrying on their atrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes. See Khan & Lancaster, Pakistanis Rescue Hostage; 2nd Dies, Washington Post, Oct. 15, 2004, p. A18. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. Mintz, supra. Still another murdered an Afghan judge. See Minority Report 13. It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq. See White, Ex-Guantanamo Detainee Joined Iraq Suicide Attack, Washington Post, May 8, 2008, p. A18.


[302] These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection. Astoundingly, the Court today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary rules that go beyond what Congress has specified. As The Chief Justice's dissent makes clear, we have no idea what those procedural and evidentiary rules are, but they will be determined by civil courts and (in the Court's contemplation at least) will be more detainee-friendly than those now applied, since otherwise there would no reason to hold the congressionally prescribed procedures unconstitutional. If they impose a higher standard of proof (from foreign battlefields) than the current procedures require, the number of the enemy returned to combat will obviously increase.


[303] But even when the military has evidence that it can bring forward, it is often foolhardy to release that evidence to the attorneys representing our enemies. And one escalation of procedures that the Court is clear about is affording the detainees increased access to witnesses (perhaps troops serving in Afghanistan?) and to classified information. See ante, at 54-55. During the 1995 prosecution of Omar Abdel Rahman, federal prosecutors gave the names of 200 unindicted co-conspirators to the "Blind Sheik's" defense lawyers; that information was in the hands of Osama Bin Laden within two weeks. See Minority Report 14-15. In another case, trial testimony revealed to the enemy that the United States had been monitoring their cellular network, whereupon they promptly stopped using it, enabling more of them to evade capture and continue their atrocities. See id., at 15.


[304] And today it is not just the military that the Court elbows aside. A mere two Terms ago in Hamdan v. Rumsfeld, 548 U. S. 557 (2006), when the Court held (quite amazingly) that the Detainee Treatment Act of 2005 had not stripped habeas jurisdiction over Guantanamo petitioners' claims, four Members of today's five-Justice majority joined an opinion saying the following:


[305] "Nothing prevents the President from returning to Congress to seek the authority [for trial by military commission] he believes necessary.


[306] "Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation's ability to deal with danger. To the contrary, that insistence strengthens the Nation's ability to determine -- through democratic means -- how best to do so. The Constitution places its faith in those democratic means." Id., at 636 (Breyer, J., concurring).*fn3


[307] Turns out they were just kidding. For in response, Congress, at the President's request, quickly enacted the Military Commissions Act, emphatically reasserting that it did not want these prisoners filing habeas petitions. It is therefore clear that Congress and the Executive -- both political branches -- have determined that limiting the role of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting. As the Solicitor General argued, "the Military Commissions Act and the Detainee Treatment Act ... represent an effort by the political branches to strike an appropriate balance between the need to preserve liberty and the need to accommodate the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States." Brief for Respondents 10-11 (internal quotation marks omitted).


[308] But it does not matter. The Court today decrees that no good reason to accept the judgment of the other two branches is "apparent." Ante, at 40. "The Government," it declares, "presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees' claims." Id., at 39. What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today's opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.


[309] II.


[310] A.


[311] The Suspension Clause of the Constitution provides: "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." Art. I, §9, cl. 2. As a court of law operating under a written Constitution, our role is to determine whether there is a conflict between that Clause and the Military Commissions Act. A conflict arises only if the Suspension Clause preserves the privilege of the writ for aliens held by the United States military as enemy combatants at the base in Guantanamo Bay, located within the sovereign territory of Cuba.


[312] We have frequently stated that we owe great deference to Congress's view that a law it has passed is constitutional. See, e.g., Department of Labor v. Triplett, 494 U. S. 715, 721 (1990); United States v. National Dairy Products Corp., 372 U. S. 29, 32 (1963); see also American Communications Assn. v. Douds, 339 U. S. 382, 435 (1950) (Jackson, J., concurring in part and dissenting in part). That is especially so in the area of foreign and military affairs; "perhaps in no other area has the Court accorded Congress greater deference." Rostker v. Goldberg, 453 U. S. 57, 64-65 (1981). Indeed, we accord great deference even when the President acts alone in this area. See Department of Navy v. Egan, 484 U. S. 518, 529-530 (1988); Regan v. Wald, 468 U. S. 222, 243 (1984).


[313] In light of those principles of deference, the Court's conclusion that "the common law [does not] yiel[d] a definite answer to the questions before us," ante, at 22, leaves it no choice but to affirm the Court of Appeals. The writ as preserved in the Constitution could not possibly extend farther than the common law provided when that Clause was written. See Part III, infra. The Court admits that it cannot determine whether the writ historically extended to aliens held abroad, and it concedes (necessarily) that Guantanamo Bay lies outside the sovereign territory of the United States. See ante, at 22-23; Rasul v. Bush, 542 U. S. 466, 500-501 (2004) (Scalia, J., dissenting). Together, these two concessions establish that it is (in the Court's view) perfectly ambiguous whether the common-law writ would have provided a remedy for these petitioners. If that is so, the Court has no basis to strike down the Military Commissions Act, and must leave undisturbed the considered judgment of the coequal branches.*fn4


[314] How, then, does the Court weave a clear constitutional prohibition out of pure interpretive equipoise? The Court resorts to "fundamental separation-of-powers principles" to interpret the Suspension Clause. Ante, at 25. According to the Court, because "the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers," the test of its extraterritorial reach "must not be subject to manipulation by those whose power it is designed to restrain." Ante, at 36.


[315] That approach distorts the nature of the separation of powers and its role in the constitutional structure. The "fundamental separation-of-powers principles" that the Constitution embodies are to be derived not from some judicially imagined matrix, but from the sum total of the individual separation-of-powers provisions that the Constitution sets forth. Only by considering them one-by-one does the full shape of the Constitution's separation-of-powers principles emerge. It is nonsensical to interpret those provisions themselves in light of some general "separation-of-powers principles" dreamed up by the Court. Rather, they must be interpreted to mean what they were understood to mean when the people ratified them. And if the understood scope of the writ of habeas corpus was "designed to restrain" (as the Court says) the actions of the Executive, the understood limits upon that scope were (as the Court seems not to grasp) just as much "designed to restrain" the incursions of the Third Branch. "Manipulation" of the territorial reach of the writ by the Judiciary poses just as much a threat to the proper separation of powers as "manipulation" by the Executive. As I will show below, manipulation is what is afoot here. The understood limits upon the writ deny our jurisdiction over the habeas petitions brought by these enemy aliens, and entrust the President with the crucial wartime determinations about their status and continued confinement.


[316] B.


[317] The Court purports to derive from our precedents a "functional" test for the extraterritorial reach of the writ, ante, at 34, which shows that the Military Commissions Act unconstitutionally restricts the scope of habeas. That is remarkable because the most pertinent of those precedents, Johnson v. Eisentrager, 339 U. S. 763, conclusively establishes the opposite. There we were confronted with the claims of 21 Germans held at Landsberg Prison, an American military facility located in the American Zone of occupation in postwar Germany. They had been captured in China, and an American military commission sitting there had convicted them of war crimes -- collaborating with the Japanese after Germany's surrender. Id., at 765-766. Like the petitioners here, the Germans claimed that their detentions violated the Constitution and international law, and sought a writ of habeas corpus. Writing for the Court, Justice Jackson held that American courts lacked habeas jurisdiction:


[318] "We are cited to [sic] no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes." Id., at 768.


[319] Justice Jackson then elaborated on the historical scope of the writ:


[320] "The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society... .


[321] "But, in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act." Id., at 770-771.


[322] Lest there be any doubt about the primacy of territorial sovereignty in determining the jurisdiction of a habeas court over an alien, Justice Jackson distinguished two cases in which aliens had been permitted to seek habeas relief, on the ground that the prisoners in those cases were in custody within the sovereign territory of the United States. Id., at 779-780 (discussing Ex parte Quirin, 317 U. S. 1 (1942), and In re Yamashita, 327 U. S. 1 (1946)). "By reason of our sovereignty at that time over [the Philippines]," Jackson wrote, "Yamashita stood much as did Quirin before American courts." 339 U. S., at 780.


[323] Eisentrager thus held -- held beyond any doubt -- that the Constitution does not ensure habeas for aliens held by the United States in areas over which our Government is not sovereign.*fn5


[324] The Court would have us believe that Eisentrager rested on "[p]ractical considerations," such as the "difficulties of ordering the Government to produce the prisoners in a habeas corpus proceeding." Ante, at 32. Formal sovereignty, says the Court, is merely one consideration "that bears upon which constitutional guarantees apply" in a given location. Ante, at 34. This is a sheer rewriting of the case. Eisentrager mentioned practical concerns, to be sure -- but not for the purpose of determining under what circumstances American courts could issue writs of habeas corpus for aliens abroad. It cited them to support its holding that the Constitution does not empower courts to issue writs of habeas corpus to aliens abroad in any circumstances. As Justice Black accurately said in dissent, "the Court's opinion inescapably denies courts power to afford the least bit of protection for any alien who is subject to our occupation government abroad, even if he is neither enemy nor belligerent and even after peace is officially declared." 339 U. S., at 796.


[325] The Court also tries to change Eisentrager into a "functional" test by quoting a paragraph that lists the characteristics of the German petitioners:


[326] "To support [the] assumption [of a constitutional right to habeas corpus] we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (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." Id., at 777 (quoted in part, ante, at 36).


[327] But that paragraph is introduced by a sentence stating that "[t]he foregoing demonstrates 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." 339 U. S., at 777 (emphasis added). How much further than what? Further than the rule set forth in the prior section of the opinion, which said that "in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act." Id., at 771. In other words, the characteristics of the German prisoners were set forth, not in application of some "functional" test, but to show that the case before the Court represented an a fortiori application of the ordinary rule. That is reaffirmed by the sentences that immediately follow the listing of the Germans' characteristics:


[328] "We have pointed out that the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied protection. No such basis can be invoked here, for these prisoners at no relevant time were 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." Id., at 777-778.


[329] Eisentrager nowhere mentions a "functional" test, and the notion that it is based upon such a principle is patently false.*fn6


[330] The Court also reasons that Eisentrager must be read as a "functional" opinion because of our prior decisions in the Insular Cases. See ante, at 26-29. It cites our statement in Balzac v. Porto Rico, 258 U. S. 298, 312 (1922), that " `the real issue in the Insular Cases was not whether the Constitution extended to the Philippines or Porto Rico when we went there, but which of its provisions were applicable by way of limitation upon the exercise of executive and legislative power in dealing with new conditions and requirements.' " Ante, at 28. But the Court conveniently omits Balzac's predicate to that statement: "The Constitution of the United States is in force in Porto Rico as it is wherever and whenever the sovereign power of that government is exerted." 258 U. S., at 312 (emphasis added). The Insular Cases all concerned territories acquired by Congress under its Article IV authority and indisputably part of the sovereign territory of the United States. See United States v. Verdugo-Urquidez, 494 U. S. 259, 268 (1990); Reid v. Covert, 354 U. S. 1, 13 (1957) (plurality opinion of Black, J.). None of the Insular Cases stands for the proposition that aliens located outside U. S. sovereign territory have constitutional rights, and Eisentrager held just the opposite with respect to habeas corpus. As I have said, Eisentrager distinguished Yamashita on the ground of "our sovereignty [over the Philippines]," 339 U. S., at 780.


[331] The Court also relies on the "[p]ractical considerations" that influenced our decision in Reid v. Covert, supra. See ante, at 29-32. But all the Justices in the majority except Justice Frankfurter limited their analysis to the rights of citizens abroad. See Reid, supra, at 5-6 (plurality opinion of Black, J.); id., at 74-75 (Harlan, J., concurring in result). (Frankfurter limited his analysis to the even narrower class of civilian dependents of American military personnel abroad, see id., at 45 (opinion concurring in result).) In trying to wring some kind of support out of Reid for today's novel holding, the Court resorts to a chain of logic that does not hold. The members of the Reid majority, the Court says, were divided over whether In re Ross, 140 U. S. 453 (1891), which had (according to the Court) held that under certain circumstances American citizens abroad do not have indictment and jury-trial rights, should be overruled. In the Court's view, the Reid plurality would have overruled Ross, but Justices Frankfurter and Harlan preferred to distinguish it. The upshot: "If citizenship had been the only relevant factor in the case, it would have been necessary for the Court to overturn Ross, something Justices Harlan and Frankfurter were unwilling to do." Ante, at 32. What, exactly, is this point supposed to prove? To say that "practical considerations" determine the precise content of the constitutional protections American citizens enjoy when they are abroad is quite different from saying that "practical considerations" determine whether aliens abroad enjoy any constitutional protections whatever, including habeas. In other words, merely because citizenship is not a sufficient factor to extend constitutional rights abroad does not mean that it is not a necessary one.


[332] The Court tries to reconcile Eisentrager with its holding today by pointing out that in postwar Germany, the United States was "answerable to its Allies" and did not "pla[n] a long-term occupation." Ante, at 38, 39. Those factors were not mentioned in Eisentrager. Worse still, it is impossible to see how they relate to the Court's asserted purpose in creating this "functional" test -- namely, to ensure a judicial inquiry into detention and prevent the political branches from acting with impunity. Can it possibly be that the Court trusts the political branches more when they are beholden to foreign powers than when they act alone?


[333] After transforming the a fortiori elements discussed above into a "functional" test, the Court is still left with the difficulty that most of those elements exist here as well with regard to all the detainees. To make the application of the newly crafted "functional" test produce a different result in the present cases, the Court must rely upon factors (d) and (e): The Germans had been tried by a military commission for violations of the laws of war; the present petitioners, by contrast, have been tried by a Combatant Status Review Tribunal (CSRT) whose procedural protections, according to the Court's ipse dixit, "fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review." Ante, at 37. But no one looking for "functional" equivalents would put Eisentrager and the present cases in the same category, much less place the present cases in a preferred category. The difference between them cries out for lesser procedures in the present cases. The prisoners in Eisentrager were prosecuted for crimes after the cessation of hostilities; the prisoners here are enemy combatants detained during an ongoing conflict. See Hamdi v. Rumsfeld, 542 U. S. 507, 538 (2004) (plurality opinion) (suggesting, as an adequate substitute for habeas corpus, the use of a tribunal akin to a CSRT to authorize the detention of American citizens as enemy combatants during the course of the present conflict).


[334] The category of prisoner comparable to these detainees are not the Eisentrager criminal defendants, but the more than 400,000 prisoners of war detained in the United States alone during World War II. Not a single one was accorded the right to have his detention validated by a habeas corpus action in federal court -- and that despite the fact that they were present on U. S. soil. See Bradley, The Military Commissions Act, Habeas Corpus, and the Geneva Conventions, 101 Am. J. Int'l L. 322, 338 (2007). The Court's analysis produces a crazy result: Whereas those convicted and sentenced to death for war crimes are without judicial remedy, all enemy combatants detained during a war, at least insofar as they are confined in an area away from the battlefield over which the United States exercises "absolute and indefinite" control, may seek a writ of habeas corpus in federal court. And, as an even more bizarre implication from the Court's reasoning, those prisoners whom the military plans to try by full-dress Commission at a future date may file habeas petitions and secure release before their trials take place.


[335] There is simply no support for the Court's assertion that constitutional rights extend to aliens held outside U. S. sovereign territory, see Verdugo-Urquidez, 494 U. S., at 271, and Eisentrager could not be clearer that the privilege of habeas corpus does not extend to aliens abroad. By blatantly distorting Eisentrager, the Court avoids the difficulty of explaining why it should be overruled. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 854-855 (1992) (identifying stare decisis factors). The rule that aliens abroad are not constitutionally entitled to habeas corpus has not proved unworkable in practice; if anything, it is the Court's "functional" test that does not (and never will) provide clear guidance for the future. Eisentrager forms a coherent whole with the accepted proposition that aliens abroad have no substantive rights under our Constitution. Since it was announced, no relevant factual premises have changed. It has engendered considerable reliance on the part of our military. And, as the Court acknowledges, text and history do not clearly compel a contrary ruling. It is a sad day for the rule of law when such an important constitutional precedent is discarded without an apologia, much less an apology.


[336] C.


[337] What drives today's decision is neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judicial supremacy. The Court says that if the extraterritorial applicability of the Suspension Clause turned on formal notions of sovereignty, "it would be possible for the political branches to govern without legal constraint" in areas beyond the sovereign territory of the United States. Ante, at 35. That cannot be, the Court says, because it is the duty of this Court to say what the law is. Id., at 35-36. It would be difficult to imagine a more question-begging analysis. "The very foundation of the power of the federal courts to declare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies properly before them." United States v. Raines, 362 U. S. 17, 20-21 (1960) (citing Marbury v. Madison, 1 Cranch 137 (1803); emphasis added). Our power "to say what the law is" is circumscribed by the limits of our statutorily and constitutionally conferred jurisdiction. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 573-578 (1992). And that is precisely the question in these cases: whether the Constitution confers habeas jurisdiction on federal courts to decide petitioners' claims. It is both irrational and arrogant to say that the answer must be yes, because otherwise we would not be supreme.


[338] But so long as there are some places to which habeas does not run -- so long as the Court's new "functional" test will not be satisfied in every case -- then there will be circumstances in which "it would be possible for the political branches to govern without legal constraint." Or, to put it more impartially, areas in which the legal determinations of the other branches will be (shudder!) supreme. In other words, judicial supremacy is not really assured by the constitutional rule that the Court creates. The gap between rationale and rule leads me to conclude that the Court's ultimate, unexpressed goal is to preserve the power to review the confinement of enemy prisoners held by the Executive anywhere in the world. The "functional" test usefully evades the precedential landmine of Eisentrager but is so inherently subjective that it clears a wide path for the Court to traverse in the years to come.


[339] III.


[340] Putting aside the conclusive precedent of Eisentrager, it is clear that the original understanding of the Suspension Clause was that habeas corpus was not available to aliens abroad, as Judge Randolph's thorough opinion for the court below detailed. See 476 F. 3d 981, 988-990 (CADC 2007).


[341] The Suspension Clause reads: "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." U. S. Const., Art. I, §9, cl. 2. The proper course of constitutional interpretation is to give the text the meaning it was understood to have at the time of its adoption by the people. See, e.g., Crawford v. Washington, 541 U. S. 36, 54 (2004). That course is especially demanded when (as here) the Constitution limits the power of Congress to infringe upon a pre-existing common-law right. The nature of the writ of habeas corpus that cannot be suspended must be defined by the common-law writ that was available at the time of the founding. See McNally v. Hill, 293 U. S. 131, 135-136 (1934); see also INS v. St. Cyr, 533 U. S. 289, 342 (2001) (Scalia, J., dissenting); D'Oench, Duhme & Co. v. FDIC, 315 U. S. 447, 471, n. 9 (1942) (Jackson, J., concurring).


[342] It is entirely clear that, at English common law, the writ of habeas corpus did not extend beyond the sovereign territory of the Crown. To be sure, the writ had an "extraordinary territorial ambit," because it was a so-called "prerogative writ," which, unlike other writs, could extend beyond the realm of England to other places where the Crown was sovereign. R. Sharpe, The Law of Habeas Corpus 188 (2d ed. 1989) (hereinafter Sharpe); see also Note on the Power of the English Courts to Issue the Writ of Habeas to Places Within the Dominions of the Crown, But Out of England, and On the Position of Scotland in Relation to that Power, 8 Jurid. Rev. 157 (1896) (hereinafter Note on Habeas); King v. Cowle, 2 Burr. 834, 855-856, 97 Eng. Rep. 587, 599 (K. B. 1759).


[343] But prerogative writs could not issue to foreign countries, even for British subjects; they were confined to the King's dominions -- those areas over which the Crown was sovereign. See Sharpe 188; 2 R. Chambers, A Course of Lectures on the English Law 1767-1773, pp. 7-8 (Curley ed. 1986); 3 W. Blackstone, Commentaries on the Laws of England 131 (1768) (hereinafter Blackstone). Thus, the writ has never extended to Scotland, which, although united to England when James I succeeded to the English throne in 1603, was considered a foreign dominion under a different Crown -- that of the King of Scotland. Sharpe 191; Note on Habeas 158.*fn7 That is why Lord Mansfield wrote that "[t]o foreign dominions, which belong to a prince who succeeds to the throne of England, this Court has no power to send any writ of any kind. We cannot send a habeas corpus to Scotland . . . ." Cowle, supra, at 856, 97 Eng. Rep., at 599-600.


[344] The common-law writ was codified by the Habeas Corpus Act of 1679, which "stood alongside Magna Charta and the English Bill of Rights of 1689 as a towering common law lighthouse of liberty -- a beacon by which framing lawyers in America consciously steered their course." Amar, Sixth Amendment First Principles, 84 Geo. L. J. 641, 663 (1996). The writ was established in the Colonies beginning in the 1690's and at least one colony adopted the 1679 Act almost verbatim. See Dept. of Political Science, Okla. State Univ., Research Reports, No. 1, R. Walker, The American Reception of the Writ of Liberty 12-16 (1961). Section XI of the Act stated where the writ could run. It "may be directed and run into any county palatine, the cinque-ports, or other privileged places within the kingdom of England, dominion of Wales, or town of Berwick upon Tweed, and the islands of Jersey or Guernsey." 31 Car. 2, ch. 2. The cinque-ports and county palatine were so-called "exempt jurisdictions" -- franchises granted by the Crown in which local authorities would manage municipal affairs, including the court system, but over which the Crown maintained ultimate sovereignty. See 3 Blackstone 78-79. The other places listed -- Wales, Berwick-upon-Tweed, Jersey, and Guernsey -- were territories of the Crown even though not part England proper. See Cowle, supra, at 853-854, 97 Eng. Rep., at 598 (Wales and Berwick-upon-Tweed); 1 Blackstone 104 (Jersey and Guernsey); Sharpe 192 (same).


[345] The Act did not extend the writ elsewhere, even though the existence of other places to which British prisoners could be sent was recognized by the Act. The possibility of evading judicial review through such spiriting-away was eliminated, not by expanding the writ abroad, but by forbidding (in Article XII of the Act) the shipment of prisoners to places where the writ did not run or where its execution would be difficult. See 31 Car. 2, ch. 2; see generally Nutting, The Most Wholesome Law -- The Habeas Corpus Act of 1679, 65 Am. Hist. Rev. 527 (1960).


[346] The Habeas Corpus Act, then, confirms the consensus view of scholars and jurists that the writ did not run outside the sovereign territory of the Crown. The Court says that the idea that "jurisdiction followed the King's officers" is an equally credible view. Ante, at 16. It is not credible at all. The only support the Court cites for it is a page in Boumediene's brief, which in turn cites this Court's dicta in Rasul, 542 U. S., at 482, mischaracterizing Lord Mansfield's statement that the writ ran to any place that was "under the subjection of the Crown," Cowle, supra, at 856, 97 Eng. Rep., at 599. It is clear that Lord Mansfield was saying that the writ extended outside the realm of England proper, not outside the sovereign territory of the Crown.*fn8


[347] The Court dismisses the example of Scotland on the grounds that Scotland had its own judicial system and that the writ could not, as a practical matter, have been enforced there. Ante, at 20. Those explanations are totally unpersuasive. The existence of a separate court system was never a basis for denying the power of a court to issue the writ. See 9 W. Holdsworth, A History of English Law 124 (3d ed. 1944) (citing Ex parte Anderson, 3 El. and El. 487 (1861)). And as for logistical problems, the same difficulties were present for places like the Channel Islands, where the writ did run. The Court attempts to draw an analogy between the prudential limitations on issuing the writ to such remote areas within the sovereign territory of the Crown and the jurisdictional prohibition on issuing the writ to Scotland. See ante, at 19-20. But the very authority that the Court cites, Lord Mansfield, expressly distinguished between these two concepts, stating that English courts had the "power" to send the writ to places within the Crown's sovereignty, the "only question" being the "propriety," while they had "no power to send any writ of any kind" to Scotland and other "foreign dominions." Cowle, supra, at 856, 97 Eng. Rep., at 599-600. The writ did not run to Scotland because, even after the Union, "Scotland remained a foreign dominion of the prince who succeeded to the English throne," and "union did not extend the prerogative of the English crown to Scotland." Sharpe 191; see also Sir Matthew Hale's The Prerogatives of the King 19 (D. Yale ed. 1976).*fn9


[348] In sum, all available historical evidence points to the conclusion that the writ would not have been available at common law for aliens captured and held outside the sovereign territory of the Crown. Despite three opening briefs, three reply briefs, and support from a legion of amici, petitioners have failed to identify a single case in the history of Anglo-American law that supports their claim to jurisdiction. The Court finds it significant that there is no recorded case denying jurisdiction to such prisoners either. See ante, at 21-22. But a case standing for the remarkable proposition that the writ could issue to a foreign land would surely have been reported, whereas a case denying such a writ for lack of jurisdiction would likely not. At a minimum, the absence of a reported case either way leaves unrefuted the voluminous commentary stating that habeas was confined to the dominions of the Crown.


[349] What history teaches is confirmed by the nature of the limitations that the Constitution places upon suspension of the common-law writ. It can be suspended only "in Cases of Rebellion or Invasion." Art. I, §9, cl. 2. The latter case (invasion) is plainly limited to the territory of the United States; and while it is conceivable that a rebellion could be mounted by American citizens abroad, surely the overwhelming majority of its occurrences would be domestic. If the extraterritorial scope of habeas turned on flexible, "functional" considerations, as the Court holds, why would the Constitution limit its suspension almost entirely to instances of domestic crisis? Surely there is an even greater justification for suspension in foreign lands where the United States might hold prisoners of war during an ongoing conflict. And correspondingly, there is less threat to liberty when the Government suspends the writ's (supposed) application in foreign lands, where even on the most extreme view prisoners are entitled to fewer constitutional rights. It makes no sense, therefore, for the Constitution generally to forbid suspension of the writ abroad if indeed the writ has application there.


[350] It may be objected that the foregoing analysis proves too much, since this Court has already suggested that the writ of habeas corpus does run abroad for the benefit of United States citizens. "[T]he position that United States citizens throughout the world may be entitled to habeas corpus rights ... is precisely the position that this Court adopted in Eisentrager, see 339 U. S., at 769-770, even while holding that aliens abroad did not have habeas corpus rights." Rasul, 542 U. S., at 501, 502 (Scalia, J., dissenting) (emphasis deleted). The reason for that divergence is not difficult to discern. The common-law writ, as received into the law of the new constitutional Republic, took on such changes as were demanded by a system in which rule is derived from the consent of the governed, and in which citizens (not "subjects") are afforded defined protections against the Government. As Justice Story wrote for the Court,


[351] "The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation." Van Ness v. Pacard, 2 Pet. 137, 144 (1829).


[352] See also Hall, The Common Law: An Account of its Reception in the United States, 4 Vand. L. Rev. 791 (1951). It accords with that principle to say, as the plurality opinion said in Reid: "When the Government reaches out to punish a citizen who is abroad, 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." 354 U. S., at 6; see also Verdugo-Urquidez, 494 U. S., at 269-270. On that analysis, "[t]he distinction between citizens and aliens follows from the undoubted proposition that the Constitution does not create, nor do general principles of law create, any juridical relation between our country and some undefined, limitless class of noncitizens who are beyond our territory." Id., at 275 (Kennedy, J., concurring).


[353] In sum, because I conclude that the text and history of the Suspension Clause provide no basis for our jurisdiction, I would affirm the Court of Appeals even if Eisentrager did not govern these cases.


[354] Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable "functional" test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson's opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.


[355] The Nation will live to regret what the Court has done today. I dissent.



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Opinion Footnotes

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[356] *fn1 In light of the foregoing, the concurrence is wrong to suggest that I "insufficiently appreciat[e]" the issue of delay in these cases. See ante, at 2 (opinion of Souter, J.). This Court issued its decisions in Rasul v. Bush, 542 U. S. 466, and Hamdi v. Rumsfeld 542 U. S. 507, in 2004. The concurrence makes it sound as if the political branches have done nothing in the interim. In fact, Congress responded 18 months later by enacting the DTA. Congress cannot be faulted for taking that time to consider how best to accommodate both the detainees' interests and the need to keep the American people safe. Since the DTA became law, petitioners have steadfastly refused to avail themselves of the statute's review mechanisms. It is unfair to complain that the DTA system involves too much delay when petitioners have consistently refused to use it, preferring to litigate instead. Today's decision obligating district courts to craft new procedures to replace those in the DTA will only prolong the process -- and delay relief.


[357] *fn2 The Court wonders what might happen if the detainee puts forward new material evidence but the Deputy Secretary refuses to convene a new CSRT. See ante, at 62-63. The answer is that the detainee can petition the D. C. Circuit for review. The DTA directs that the procedures for review of new evidence be included among "[t]he procedures submitted under paragraph (1)(A)" governing CSRT review of enemy combatant status §1405(a)(3), 119 Stat. 3476. It is undisputed that the D. C. Circuit has statutory authority to review and enforce these procedures. See DTA §1005(e)(2)(C)(i), id., at 2742.


[358] *fn3 Even today, the Court cannot resist striking a pose of faux deference to Congress and the President. Citing the above quoted passage, the Court says: "The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism." Ante, at 69. Indeed. What the Court apparently means is that the political branches can debate, after which the Third Branch will decide.


[359] *fn4 The opinion seeks to avoid this straightforward conclusion by saying that the Court has been "careful not to foreclose the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments that define the present scope of the writ." Ante, at 15-16 (citing INS v. St. Cyr, 533 U. S. 289 300-301 (2001)). But not foreclosing the possibility that they have expanded is not the same as demonstrating (or at least holding without demonstration, which seems to suffice for today's majority) that they have expanded. The Court must either hold that the Suspension Clause has "expanded" in its application to aliens abroad, or acknowledge that it has no basis to set aside the actions of Congress and the President. It does neither.


[360] *fn5 In its failed attempt to distinguish Eisentrager, the Court comes up with the notion that "de jure sovereignty" is simply an additional factor that can be added to (presumably) "de facto sovereignty" (i.e., practical control) to determine the availability of habeas for aliens, but that it is not a necessary factor, whereas de facto sovereignty is. It is perhaps in this de facto sense, the Court speculates, that Eisentrager found "sovereignty" lacking. See ante, at 23-25. If that were so, one would have expected Eisentrager to explain in some detail why the United States did not have practical control over the American zone of occupation. It did not (and probably could not). Of course this novel de facto-de jure approach does not explain why the writ never issued to Scotland, which was assuredly within the de facto control of the English crown. See infra, at 22.
To support its holding that de facto sovereignty is relevant to the reach of habeas corpus, the Court cites our decision in Fleming v. Page, 9 How. 603 (1850), a case about the application of a customs statute to a foreign port occupied by U. S. forces. See ante, at 24. The case used the phrase "subject to the sovereignty and dominion of the United States" to refer to the United States' practical control over a "foreign country." 9 How., at 614. But Fleming went on to explain that because the port remained part of the "enemy's country," even though under U. S. military occupation, "its subjugation did not compel the United States, while they held it, to regard it as part of their dominions, nor to give to it any form of civil government, nor to extend to it our laws." Id., at 618. If Fleming is relevant to these cases at all, it undermines the Court's holding.


[361] *fn6 Justice Souter's concurrence relies on our decision four Terms ago in Rasul v. Bush, 542 U. S. 466 (2004), where the Court interpreted the habeas statute to extend to aliens held at Guantanamo Bay. He thinks that "no one who reads the Court's opinion in Rasul could seriously doubt that the jurisdictional question must be answered the same way in purely constitutional cases." Ante, at 1-2. But Rasul was devoted primarily to an explanation of why Eisentrager's statutory holding no longer controlled given our subsequent decision in Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973). See Rasul, supra, at 475-479. And the opinion of the Court today -- which Justice Souter joins -- expressly rejects the historical evidence cited in Rasul to support its conclusion about the reach of habeas corpus. Compare id., at 481-482, with ante, at 18. Moreover, even if one were to accept as true what Justice Souter calls Rasul's "well-considered" dictum, that does not explain why Eisentrager's constitutional holding must be overruled or how it can be distinguished. (After all, Rasul distinguished Eisentrager's statutory holding on a ground inapplicable to its constitutional holding.) In other words, even if the Court were to conclude that Eisentrager's rule was incorrect as an original matter, the Court would have to explain the justification for departing from that precedent. It therefore cannot possibly be true that Rasul controls this case, as Justice Souter suggests.


[362] *fn7 My dissent in Rasul v. Bush, 542 U. S. 466, 503 (2004), mistakenly included Scotland among the places to which the writ could run.


[363] *fn8 The dicta in Rasul also cited Ex parte Mwenya, [1960] 1 Q. B. 241, (C. A.), but as I explained in dissent, "[e]ach judge [in Mwenya] made clear that the detainee's status as a subject was material to the resolution of the case," 542 U. S., at 504.


[364] *fn9 The Court also argues that the fact that the writ could run to Ireland, even though it was ruled under a "separate" crown, shows that formal sovereignty was not the touchstone of habeas jurisdiction. Ante, at 21. The passage from Blackstone that the Court cites, however, describes Ireland as "a dependent, subordinate kingdom" that was part of the "king's dominions." 1 Blackstone 98, 100 (internal quotation marks omitted). And Lord Mansfield's opinion in Cowle plainly understood Ireland to be "a dominion of the Crown of England," in contrast to the "foreign dominio[n]" of Scotland, and thought that distinction dispositive of the question of habeas jurisdiction. Cowle, supra, at 856, 97 Eng. Rep., at 599-600.

Giles v. California, 128 S.Ct. 2678, 171 L.Ed.2d 488 (U.S. 06/25/2008)

[1] SUPREME COURT OF THE UNITED STATES


[2] No. 07-6053


[3] 128 S.Ct. 2678, 171 L.Ed.2d 488, 2008 Daily Journal D.A.R. 9491, 76 USLW 4568, 08 Cal. Daily Op. Serv. 7838,


[4] June 25, 2008


[5] DWAYNE GILES, PETITIONER
v.
CALIFORNIA


[6] SYLLABUS BY THE COURT


[7] OCTOBER TERM, 2007


[8] Argued April 22, 2008


[9] At petitioner Giles' murder trial, the court allowed prosecutors to introduce statements that the murder victim had made to a police officer responding to a domestic violence call. Giles was convicted. While his appeal was pending, this Court held that the Sixth Amendment's Confrontation Clause gives defendants the right to cross-examine witnesses who give testimony against them, except in cases where an exception to the confrontation right was recognized at the founding. Crawford v. Washington, 541 U. S. 36, 53-54. The State Court of Appeal concluded that the Confrontation Clause permitted the trial court to admit into evidence the unconfronted testimony of the murder victim under a doctrine of forfeiture by wrongdoing. It concluded that Giles had forfeited his right to confront the victim's testimony because it found Giles had committed the murder for which he was on trial -- an intentional criminal act that made the victim unavailable to testify. The State Supreme Court affirmed on the same ground.


[10] Held: The California Supreme Court's theory of forfeiture by wrongdoing is not an exception to the Sixth Amendment's confrontation requirement because it was not an exception established at the founding. Pp. 3-20; 22-24.


[11] (a) Common-law courts allowed the introduction of statements by an absent witness who was "detained" or "kept away" by "means or procurement" of the defendant. Cases and treatises indicate that this rule applied only when the defendant engaged in conduct designed to prevent the witness from testifying. Pp. 4-7.


[12] (b) The manner in which this forfeiture rule was applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying. In cases where the evidence suggested that the defendant wrongfully caused the absence of a witness, but had not done so to prevent the witness from testifying, unconfronted testimony was excluded unless it fell within the separate common-law exception to the confrontation requirement for statements made by speakers who were both on the brink of death and aware that they were dying. Pp. 7-11.


[13] (c) Not only was California's proposed exception to the confrontation right plainly not an "exceptio[n] established at the time of the founding," Crawford, supra, at 54; it is not established in American jurisprudence since the founding. No case before 1985 applied forfeiture to admit statements outside the context of conduct designed to prevent a witness from testifying. The view that the exception applies only when the defendant intends to make a witness unavailable is also supported by modern authorities, such as Federal Rule of Evidence 804(b)(6), which "codifies the forfeiture doctrine," Davis v. Washington, 547 U. S 813, 833. Pp. 11-14.


[14] (d) The dissent's contention that no testimony would come in at common law under a forfeiture theory unless it was confronted is not supported by the cases. In any event, if the dissent's theory were true, it would not support a broader forfeiture exception but would eliminate the forfeiture exception entirely. Previously confronted testimony by an unavailable witness is always admissible, wrongful procurement or not. See Crawford, supra, at 68. Pp. 15-20.


[15] (e) Acts of domestic violence are often intended to dissuade a victim from resorting to outside help. A defendant's prior abuse, or threats of abuse, intended to dissuade a victim from resorting to outside help would be highly relevant to determining the intent of a defendant's subsequent act causing the witness's absence, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify. Here, the state courts did not consider Giles' intent, which they found irrelevant under their interpretation of the forfeiture doctrine. They are free to consider intent on remand. Pp. 23-24.


[16] 40 Cal. 4th 833, 152 P. 3d 433, vacated and remanded.


[17] Scalia, J., delivered the opinion of the Court, except as to Part II-D-2. Roberts, C. J., and Thomas and Alito, JJ., joined that opinion in full, and Souter and Ginsburg, JJ., joined as to all but Part II-D-2. Thomas, J., and Alito, J., filed concurring opinions. Souter, J., filed an opinion concurring in part, in which Ginsburg, J., joined. Breyer, J., filed a dissenting opinion, in which Stevens and Kennedy, JJ., joined.


[18] On Writ Of Certiorari To The Supreme Court Of California Court Below: 40 Cal. 4th 833, 152 P. 3d 433


[19] Marilyn G. Burkhardt argued the cause for petitioner. With her on the briefs were Donald B. Ayer, Meir Feder, Samuel Estreicher, and James F. Flanagan.


[20] Donald E. de Nicola, Deputy State Solicitor General of California, argued the cause for respondent. With him on the brief were Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Manuel M. Medeiros, State Solicitor General, Pamela C. Hamanaka, Senior Assistant Attorney General, and Kristofer Jorstad, and Russell A. Lehman, Deputy Attorneys General.


[21] Jeffrey A. Lamken filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal.


[22] Briefs of amici curiae urging affirmance were filed for the State of Illinois et al. by Lisa Madigan, Attorney General of Illinois, Michael A. Scodro, Solicitor General, and Jane Elinor Notz, Deputy Solicitor General, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Terry Goddard of Arizona, John W. Suthers of Colorado, Joseph R. Biden III of Delaware, Bill McCollum of Florida, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Steve Carter of Indiana, Tom Miller of Iowa, Stephen N. Six of Kansas, G. Steven Rowe of Maine, Douglas F. Gansler of Maryland, Michael A. Cox of Michigan, Lori Swanson of Minnesota, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Jon Bruning of Nebraska, Catherine Cortez Masto of Nevada, Kelly A. Ayotte of New Hampshire, Anne Milgram of New Jersey, Gary K. King of New Mexico, Roy Cooper of North Carolina, Wayne Stenehjem of North Dakota, Marc Dann of Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Patrick C. Lynch of Rhode Island, Lawrence E. Long of South Dakota, Robert E. Cooper of Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Robert M. McKenna of Washington, Darrell V. McGraw, Jr., of West Virginia, J. B. Van Hollen of Wisconsin, and Bruce A. Salzburg of Wyoming; for the Battered Women?s Justice Project et al. by Peter A. Barile III; for the Domestic Violence Legal Empowerment and Appeals Project et al. by David Salmons, Jennifer K. Brown, Lynn Hecht Schafran, and Joan S. Meier; and for the National Crime Victim Law Institute by Douglas Beloof.


[23] Briefs of amici curiae were filed for the National Association of Counsel for Children et al. by Laura W. Brill, Barry Sullivan, and Bill S. Forcade; for the National Association to Prevent Sexual Abuse of Children?s National Child Protection Training Center by Thomas J. Harbinson; and for Richard D. Friedman by Mr. Friedman, pro se.


[24] The opinion of the court was delivered by: Justice Scalia


[25] Opinion of the Court


[26] 554 U. S. ____ (2008)


[27] Justice Scalia delivered the opinion of the Court, except as to Part II-D-2.


[28] We consider whether a defendant forfeits his Sixth Amendment right to confront a witness against him when a judge determines that a wrongful act by the defendant made the witness unavailable to testify at trial.


[29] I.


[30] On September 29, 2002, petitioner Dwayne Giles shot his ex-girlfriend, Brenda Avie, outside the garage of his grandmother's house. No witness saw the shooting, but Giles' niece heard what transpired from inside the house. She heard Giles and Avie speaking in conversational tones. Avie then yelled "Granny" several times and a series of gunshots sounded. Giles' niece and grandmother ran outside and saw Giles standing near Avie with a gun in his hand. Avie, who had not been carrying a weapon, had been shot six times. One wound was consistent with Avie's holding her hand up at the time she was shot, another was consistent with her having turned to her side, and a third was consistent with her having been shot while lying on the ground. Giles fled the scene after the shooting. He was apprehended by police about two weeks later and charged with murder.


[31] At trial, Giles testified that he had acted in self-defense. Giles described Avie as jealous, and said he knew that she had once shot a man, that he had seen her threaten people with a knife, and that she had vandalized his home and car on prior occasions. He said that on the day of the shooting, Avie came to his grandmother's house and threatened to kill him and his new girlfriend, who had been at the house earlier. He said that Avie had also threatened to kill his new girlfriend when Giles and Avie spoke on the phone earlier that day. Giles testified that after Avie threatened him at the house, he went into the garage and retrieved a gun, took the safety off, and started walking toward the back door of the house. He said that Avie charged at him, and that he was afraid she had something in her hand. According to Giles, he closed his eyes and fired several shots, but did not intend to kill Avie.


[32] Prosecutors sought to introduce statements that Avie had made to a police officer responding to a domestic-violence report about three weeks before the shooting. Avie, who was crying when she spoke, told the officer that Giles had accused her of having an affair, and that after the two began to argue, Giles grabbed her by the shirt, lifted her off the floor, and began to choke her. According to Avie, when she broke free and fell to the floor, Giles punched her in the face and head, and after she broke free again, he opened a folding knife, held it about three feet away from her, and threatened to kill her if he found her cheating on him. Over Giles' objection, the trial court admitted these statements into evidence under a provision of California law that permits admission of out-of-court statements describing the infliction or threat of physical injury on a declarant when the declarant is unavailable to testify at trial and the prior statements are deemed trustworthy. Cal. Evid. Code Ann. §1370 (West Supp. 2008).


[33] A jury convicted Giles of first-degree murder. He appealed. While his appeal was pending, this Court decided in Crawford v. Washington, 541 U. S. 36, 53-54 (2004), that the Confrontation Clause requires that a defendant have the opportunity to confront the witnesses who give testimony against him, except in cases where an exception to the confrontation right was recognized at the time of the founding. The California Court of Appeal held that the admission of Avie's unconfronted statements at Giles' trial did not violate the Confrontation Clause as construed by Crawford because Crawford recognized a doctrine of forfeiture by wrongdoing. 19 Cal. Rptr. 3d 843, 847 (2004) (officially depublished). It concluded that Giles had forfeited his right to confront Avie because he had committed the murder for which he was on trial, and because his intentional criminal act made Avie unavailable to testify. The California Supreme Court affirmed on the same ground. 40 Cal. 4th 833, 837, 152 P. 3d 433, 435 (2007). We granted certiorari. 552 U. S. ___ (2008).


[34] II.


[35] The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The Amendment contemplates that a witness who makes testimonial statements admitted against a defendant will ordinarily be present at trial for cross-examination, and that if the witness is unavailable, his prior testimony will be introduced only if the defendant had a prior opportunity to cross-examine him. Crawford, 541 U. S., at 68. The State does not dispute here, and we accept without deciding, that Avie's statements accusing Giles of assault were testimonial. But it maintains (as did the California Supreme Court) that the Sixth Amendment did not prohibit prosecutors from introducing the statements because an exception to the confrontation guarantee permits the use of a witness's unconfronted testimony if a judge finds, as the judge did in this case, that the defendant committed a wrongful act that rendered the witness unavailable to testify at trial. We held in Crawford that the Confrontation Clause is "most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding." Id., at 54. We therefore ask whether the theory of forfeiture by wrongdoing accepted by the California Supreme Court is a founding-era exception to the confrontation right.


[36] A.


[37] We have previously acknowledged that two forms of testimonial statements were admitted at common law even though they were unconfronted. See id., at 56, n. 6, 62. The first of these were declarations made by a speaker who was both on the brink of death and aware that he was dying. See, e.g., King v. Woodcock, 1 Leach 500, 501-504, 168 Eng. Rep. 352, 353-354 (1789); State v. Moody, 3 N. C. 31 (Super. L. & Eq. 1798); United States v. Veitch, 28 F. Cas. 367, 367-368 (No. 16,614) (CC DC 1803); King v. Commonwealth, 4 Va. 78, 80-81 (Gen. Ct. 1817). Avie did not make the unconfronted statements admitted at Giles' trial when she was dying, so her statements do not fall within this historic exception.


[38] A second common-law doctrine, which we will refer to as forfeiture by wrongdoing, permitted the introduction of statements of a witness who was "detained" or "kept away" by the "means or procurement" of the defendant. See, e.g., Lord Morley's Case, 6 How. St. Tr. 769, 771 (H. L. 1666) ("detained"); Harrison's Case, 12 How. St. Tr. 833, 851 (H. L. 1692) ("made him keep away"); Queen v. Scaife, 117 Q. B. 238, 242, 117 Eng. Rep. 1271, 1273 (K. B. 1851) ("kept away"); see also 2 W. Hawkins, Pleas of the Crown 425 (4th ed. 1762) (hereinafter Hawkins) (same); T. Peake, Compendium of the Law of Evidence 62 (2d ed. 1804) ("sent" away); 1 G. Gilbert, Law of Evidence 214 (1791) ("detained and kept back from appearing by the means and procurement of the prisoner"). The doctrine has roots in the 1666 decision in Lord Morley's Case, at which judges concluded that a witness's having been "detained by the means or procurement of the prisoner," provided a basis to read testimony previously given at a coroner's inquest. 6 How. St. Tr., at 770-771. Courts and commentators also concluded that wrongful procurement of a witness's absence was among the grounds for admission of statements made at bail and committal hearings conducted under the Marian statutes, which directed justices of the peace to take the statements of felony suspects and the persons bringing the suspects before the magistrate, and to certify those statements to the court, Crawford, supra, at 43-44; J. Langbein, Prosecuting Crime in the Renaissance 10-12, 16-20 (1974). See 2 Hawkins 429. This class of confronted statements was also admissible if the witness who made them was dead or unable to travel. Ibid.


[39] The terms used to define the scope of the forfeiture rule suggest that the exception applied only when the defendant engaged in conduct designed to prevent the witness from testifying. The rule required the witness to have been "kept back" or "detained" by "means or procurement" of the defendant. Although there are definitions of "procure" and "procurement" that would merely require that a defendant have caused the witness's absence, other definitions would limit the causality to one that was designed to bring about the result "procured." See 2 N. Webster, An American Dictionary of the English Language (1828) (defining "procure" as "to contrive and effect" (emphasis added)); ibid. (defining "procure" as "to get; to gain; to obtain; as by request, loan, effort, labor or purchase"); 12 Oxford English Dictionary 559 (2d ed. 1989) (def. I(3)) (defining "procure" as "[t]o contrive or devise with care (an action or proceeding); to endeavour to cause or bring about (mostly something evil) to or for a person"). Similarly, while the term "means" could sweep in all cases in which a defendant caused a witness to fail to appear, it can also connote that a defendant forfeits confrontation rights when he uses an intermediary for the purpose of making a witness absent. See 9 id., at 516 ("[A] person who intercedes for another or uses influence in order to bring about a desired result"); N. Webster, An American Dictionary of the English Language 822 (1869) ("That through which, or by the help of which, an end is attained").


[40] Cases and treatises of the time indicate that a purpose-based definition of these terms governed. A number of them said that prior testimony was admissible when a witness was kept away by the defendant's "means and contrivance." See 1 J. Chitty, A Practical Treatise on the Criminal Law 81 (1816) ("kept away by the means and contrivance of the prisoner"); S. Phillipps, A Treatise on the Law of Evidence 165 (1814) ("kept out of the way by the means and contrivance of the prisoner"); Drayton v. Wells, 10 S. C. L. 409, 411 (S. C. 1819) ("kept away by the contrivance of the opposite party"). This phrase requires that the defendant have schemed to bring about the absence from trial that he "contrived." Contrivance is commonly defined as the act of "inventing, devising or planning," 1 Webster, supra, at 47, "ingeniously endeavoring the accomplishment of anything," "the bringing to pass by planning, scheming, or stratagem," or "[a]daption of means to an end; design, intention," 3 Oxford English Dictionary, supra, at 850.*fn1


[41] An 1858 treatise made the purpose requirement more explicit still, stating that the forfeiture rule applied when a witness "had been kept out of the way by the prisoner, or by some one on the prisoner's behalf, in order to prevent him from giving evidence against him." E. Powell, The Practice of the Law of Evidence 166 (1st ed. 1858) (emphasis added). The wrongful-procurement exception was invoked in a manner consistent with this definition. We are aware of no case in which the exception was invoked although the defendant had not engaged in conduct designed to prevent a witness from testifying, such as offering a bribe.


[42] B.


[43] The manner in which the rule was applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying. In cases where the evidence suggested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifying -- as in the typical murder case involving accusatorial statements by the victim -- the testimony was excluded unless it was confronted or fell within the dying-declaration exception. Prosecutors do not appear to have even argued that the judge could admit the unconfronted statements because the defendant committed the murder for which he was on trial.


[44] Consider King v. Woodcock. William Woodcock was accused of killing his wife, Silvia, who had been beaten and left near death. A Magistrate took Silvia Woodcock's account of the crime, under oath, and she died about 48 hours later. The judge stated that "[g]reat as a crime of this nature must always appear to be, yet the inquiry into it must proceed upon the rules of evidence." 1 Leach, at 500, 168 Eng. Rep., at 352. Aside from testimony given at trial in the presence of the prisoner, the judge said, there were "two other species which are admitted by law: The one is the dying declaration of a person who has received a fatal blow; the other is the examination of a prisoner, and the depositions of the witnesses who may be produced against him" taken under the Marian bail and committal statutes. Id., at 501, 168 Eng. Rep., at 352-353 (footnote omitted). Silvia Woodcock's statement could not be admitted pursuant to the Marian statutes because it was unconfronted -- the defendant had not been brought before the examining Magistrate and "the prisoner therefore had no opportunity of contradicting the facts it contains." Id., at 502, 168 Eng. Rep., at 353. Thus, the statements were admissible only if the witness "apprehended that she was in such a state of mortality as would inevitably oblige her soon to answer before her Maker for the truth or falsehood of her assertions." Id., at 503, 168 Eng. Rep., at 353-354 (footnote omitted). Depending on the account one credits, the court either instructed the jury to consider the statements only if Woodcock was "in fact under the apprehension of death," id., at 504, 168 Eng. Rep., at 354, or determined for itself that Woodcock was "quietly resigned and submitting to her fate" and admitted her statements into evidence, 1 E. East, Pleas of the Crown 356 (1803).


[45] King v. Dingler, 2 Leach 561, 168 Eng. Rep. 383 (1791), applied the same test to exclude unconfronted statements by a murder victim. George Dingler was charged with killing his wife Jane, who suffered multiple stab wounds that left her in the hospital for 12 days before she died. The day after the stabbing, a Magistrate took Jane Dingler's deposition -- as in Woodcock, under oath -- "of the facts and circumstances which had attended the outrage committed upon her." 2 Leach, at 561, 168 Eng. Rep., at 383. George Dingler's attorney argued that the statements did not qualify as dying declarations and were not admissible Marian examinations because they were not taken in the presence of the prisoner, with the result that the defendant did not "have, as he is entitled to have, the benefit of cross-examination." Id., at 562, 168 Eng. Rep., at 384. The prosecutor agreed, but argued the deposition should still be admitted because "it was the best evidence that the nature of the case would afford." Id., at 563, 168 Eng. Rep., at 384. Relying on Woodcock, the court "refused to receive the examination into evidence." Id., at 563, 168 Eng. Rep., at 384.


[46] Many other cases excluded victims' statements when there was insufficient evidence that the witness was aware he was about to die. See Thomas John's Case, 1 East 357, 358 (P. C. 1790); Welbourn's Case, 1 East 358, 360 (P. C. 1792); United States v. Woods, 28 F. Cas. 762, 763 (No. 16,760) (CC DC 1834); Lewis v. State, 17 Miss. 115, 120 (1847); Montgomery v. State, 11 Ohio 424, 425-426 (1842); Nelson v. State, 26 Tenn. 542, 543 (1847); Smith v. State, 28 Tenn. 9, 23 (1848). Courts in all these cases did not even consider admitting the statements on the ground that the defendant's crime was to blame for the witness's absence -- even when the evidence establishing that was overwhelming. The reporter in Woodcock went out of his way to comment on the strength of the case against the defendant: "The evidence, independent of the information or declarations of the deceased, was of a very pressing and urgent nature against the prisoner." 1 Leach, at 501, 168 Eng. Rep., at 352.


[47] Similarly, in Smith v. State, supra, the evidence that the defendant had caused the victim's death included, but was not limited to, the defendant's having obtained arsenic from a local doctor a few days before his wife became violently ill; the defendant's paramour testifying at trial that the defendant admitted to poisoning his wife; the defendant's having asked a physician "whether the presence of arsenic could be discovered in the human stomach a month after death"; and, the answer to that inquiry apparently not having been satisfactory, the defendant's having tried to hire a person to burn down the building containing his wife's body. Id., at 10-11. If the State's reading of common law were correct, the dying declarations in these cases and others like them would have been admissible.


[48] Judges and prosecutors also failed to invoke forfeiture as a sufficient basis to admit unconfronted statements in the cases that did apply the dying-declarations exception. This failure, too, is striking. At a murder trial, presenting evidence that the defendant was responsible for the victim's death would have been no more difficult than putting on the government's case in chief. Yet prosecutors did not attempt to obtain admission of dying declarations on wrongful-procurement-of-absence grounds before going to the often considerable trouble of putting on evidence to show that the crime victim had not believed he could recover. See, e.g., King v. Commonwealth, 4 Va., at 80-81 (three witnesses called to testify on the point); Gibson v. Commonwealth, 4 Va. 111, 116-117 (Gen. Ct. 1817) (testimony elicited from doctor and witness); Anthony v. State, 19 Tenn. 265, 278-279 (1838) (doctor questioned about expected fatality of victim's wound and about victim's demeanor).


[49] The State offers another explanation for the above cases. It argues that when a defendant committed some act of wrongdoing that rendered a witness unavailable, he forfeited his right to object to the witness's testimony on confrontation grounds, but not on hearsay grounds. See Brief for Respondent 23-24. No case or treatise that we have found, however, suggested that a defendant who committed wrongdoing forfeited his confrontation rights but not his hearsay rights. And the distinction would have been a surprising one, because courts prior to the founding excluded hearsay evidence in large part because it was unconfronted. See, e.g., 2 Hawkins 606 (6th ed. 1787); 2 M. Bacon, A New Abridgment of the Law 313 (1736). As the plurality said in Dutton v. Evans, 400 U. S. 74, 86 (1970), "[i]t seems apparent that the Sixth Amendment's Confrontation Clause and the evidentiary hearsay rule stem from the same roots."


[50] The State and the dissent note that common-law authorities justified the wrongful-procurement rule by invoking the maxim that a defendant should not be permitted to benefit from his own wrong. See, e.g., G. Gilbert, Law of Evidence 140-141 (1756) (if a witness was "detained and kept back from appearing by the means and procurement" testimony would be read because a defendant "shall never be admitted to shelter himself by such evil Practices on the Witness, that being to give him Advantage of his own Wrong"). But as the evidence amply shows, the "wrong" and the "evil Practices" to which these statements referred was conduct designed to prevent a witness from testifying. The absence of a forfeiture rule covering this sort of conduct would create an intolerable incentive for defendants to bribe, intimidate, or even kill witnesses against them. There is nothing mysterious about courts' refusal to carry the rationale further. The notion that judges may strip the defendant of a right that the Constitution deems essential to a fair trial, on the basis of a prior judicial assessment that the defendant is guilty as charged, does not sit well with the right to trial by jury. It is akin, one might say, to "dispensing with jury trial because a defendant is obviously guilty." Crawford, 541 U. S., at 62.


[51] C.


[52] Not only was the State's proposed exception to the right of confrontation plainly not an "exceptio[n] established at the time of the founding," id., at 54; it is not established in American jurisprudence since the founding. American courts never -- prior to 1985 -- invoked forfeiture outside the context of deliberate witness tampering.


[53] This Court first addressed forfeiture in Reynolds v. United States, 98 U. S. 145 (1879), where, after hearing testimony that suggested the defendant had kept his wife away from home so that she could not be subpoenaed to testify, the trial court permitted the government to introduce testimony of the defendant's wife from the defendant's prior trial. See id., at 148-150. On appeal, the Court held that admission of the statements did not violate the right of the defendant to confront witnesses at trial, because when a witness is absent by the defendant's "wrongful procurement," the defendant "is in no condition to assert that his constitutional rights have been violated" if "their evidence is supplied in some lawful way." Id., at 158. Reynolds invoked broad forfeiture principles to explain its holding. The decision stated, for example, that "[t]he Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts," ibid., and that the wrongful-procurement rule "has its foundation" in the principle that no one should be permitted to take advantage of his wrong, and is "the outgrowth of a maxim based on the principles of common honesty," id., at 159.


[54] Reynolds relied on these maxims (as the common-law authorities had done) to be sure. But it relied on them (as the common-law authorities had done) to admit prior testimony in a case where the defendant had engaged in wrongful conduct designed to prevent a witness's testimony. The Court's opinion indicated that it was adopting the common-law rule. It cited leading common-law cases -- Lord Morley's Case, Harrison's Case, and Scaife -- described itself as "content with" the "long-established usage" of the forfeiture principle, and admitted prior confronted statements under circumstances where admissibility was open to no doubt under Lord Morley's Case. Reynolds, supra, at 158-159.


[55] If the State's rule had an historical pedigree in the common law or even in the 1879 decision in Reynolds, one would have expected it to be routinely invoked in murder prosecutions like the one here, in which the victim's prior statements inculpated the defendant. It was never invoked in this way. The earliest case identified by the litigants and amici curiae which admitted unconfronted statements on a forfeiture theory without evidence that the defendant had acted with the purpose of preventing the witness from testifying was decided in 1985. United States v. Rouco, 765 F. 2d 983 (CA11).


[56] In 1997, this Court approved a Federal Rule of Evidence, entitled "Forfeiture by wrongdoing," which applies only when the defendant "engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." Fed. Rule of Evid. 804(b)(6). We have described this as a rule "which codifies the forfeiture doctrine." Davis v. Washington, 547 U. S. 813, 833 (2006). Every commentator we are aware of has concluded the requirement of intent "means that the exception applies only if the defendant has in mind the particular purpose of making the witness unavailable." 5 C. Mueller & L. Kirkpatrick, Federal Evidence §8:134, p. 235 (3d ed. 2007); 5 J. Weinstein & M. Berger, Weinstein's Federal Evidence §804.03[7][b], p. 804-32 (J. McLaughlin ed., 2d ed. 2008); 2 S. Brown, McCormick on Evidence 176 (6th ed. 2006).*fn2 The commentators come out this way because the dissent's claim that knowledge is sufficient to show intent is emphatically not the modern view. See 1 W. LaFave, Substantive Criminal Law §5.2, p. 340 (2d ed. 2003).


[57] In sum, our interpretation of the common-law forfeiture rule is supported by (1) the most natural reading of the language used at common law; (2) the absence of common-law cases admitting prior statements on a forfeiture theory when the defendant had not engaged in conduct designed to prevent a witness from testifying; (3) the common law's uniform exclusion of unconfronted inculpatory testimony by murder victims (except testimony given with awareness of impending death) in the innumerable cases in which the defendant was on trial for killing the victim, but was not shown to have done so for the purpose of preventing testimony; (4) a subsequent history in which the dissent's broad forfeiture theory has not been applied. The first two and the last are highly persuasive; the third is in our view conclusive.


[58] D.


[59] 1.


[60] The dissent evades the force of that third point by claiming that no testimony would come in at common law based on a forfeiture theory unless it was confronted. It explains the exclusion of murder victims' testimony by arguing that wrongful procurement was understood to be a basis for admission of Marian depositions -- which the defendant would have had the opportunity to confront -- but not for the admission of unconfronted testimony. See post, at 15.


[61] That explanation is not supported by the cases. In Harrison's Case, the leading English case finding wrongful procurement, the witness's statements were admitted without regard to confrontation. An agent of the defendant had attempted to bribe a witness, who later disappeared under mysterious circumstances. The prosecutor contended that he had been "spirited, or withdrawn from us, by a gentleman that said he came to [the witness] from the prisoner, and desired him to be kind to the prisoner." 12 How. St. Tr., at 851. The court allowed the witness's prior statements before the coroner to be read, id., at 852, although there was no reason to think the defendant would have been present at the prior examination.*fn3


[62] The reasoning of the common-law authorities reinforces the conclusion that the wrongful-procurement rule did not depend on prior confrontation. The judge in Harrison's Case, after being told that "Mr. Harrison's agents or friends have, since the last sessions, made or conveyed away a young man that was a principal evidence against him," declared that if this were proved, "it will no way conduce to Mr. Harrison's advantage." Id., at 835-836. Similarly, a leading treatise's justification of the use of statements from coroner's inquests when a witness was "detained and kept back from appearing by the means and procurement" of the defendant was that the defendant "shall never be admitted to shelter himself by such evil Practices on the Witness, that being to give him Advantage of his own Wrong." G. Gilbert, Law of Evidence 140 (1756). But if the defendant could keep out unconfronted prior testimony of a wrongfully detained witness he would profit from "such evil Practices."


[63] While American courts understood the admissibility of statements made at prior proceedings (including coroner's inquests like the one in Harrison's Case) to turn on prior opportunity for cross-examination as a general matter, see Crawford, 541 U. S., at 47, n. 2, no such limit was applied or expressed in early wrongful-procurement cases. In Rex v. Barber, 1 Root 76 (Conn. Super. Ct. 1775), "[o]ne White, who had testified before the justice and before the grand-jury against Barber, and minutes taken of his testimony, was sent away by one Bullock, a friend of Barber's, and by his instigation; so that he could not be had to testify before the petit-jury. The court admitted witnesses to relate what White had before testified." Two leading evidentiary treatises and a Delaware case reporter cite that case for the proposition that grand jury statements were admitted on a wrongful-procurement theory. See Phillipps, Treatise on Evidence, at 200, n. (a); T. Peake, Compendium of the Law of Evidence 91, n. (m) (American ed. 1824); State v. Lewis, 1 Del. Cas. 608, 609, n. 1 (Ct. Quarter Sess. 1818). (Of course the standard practice since approximately the 17th century has been to conduct grand jury proceedings in secret, without confrontation, in part so that the defendant does not learn the State's case in advance. S. Beale, W. Bryson, J. Felman, & M. Elston, Grand Jury Law and Practice §5.2 (2d ed. 2005); see also 8 J. Wigmore Evidence §2360, pp. 728-735 (J. McNaughton rev. 1961)).*fn4


[64] The Georgia Supreme Court's articulation of the forfeiture rule similarly suggests that it understood forfeiture to be a basis for admitting unconfronted testimony. The court wrote that Lord Morley's Case established that if a witness "who had been examined by the Crown, and was then absent, was detained by the means or procurement of the prisoner," "then the examination should be read" into evidence. Williams v. State, 19 Ga. 402, 403 (1856). Its rule for all cases in which the witness "had been examined by the Crown" carried no confrontation limit, and indeed, the court adopted the rule from Lord Morley's Case which involved not Marian examinations carrying a confrontation requirement, but coroner's inquests that lacked one.


[65] The leading American case on forfeiture of the confrontation right by wrongful procurement was our 1879 decision in Reynolds. That case does not set forth prior confrontation as a requirement for the doctrine's application, and begins its historical analysis with a full description of the rule set forth in Lord Morley's Case, which itself contained no indication that the admitted testimony must have been previously confronted. It followed that description with a citation of Harrison's Case -- which, like Lord Morley's Case, applied wrongful procurement to coroner's inquests, not confronted Marian examinations -- saying that the rule in those cases "seems to have been recognized as the law of England ever since." 98 U. S., at 158. The opinion's description of the forfeiture rule is likewise unconditioned by any requirement of prior confrontation:


[66] "The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he kept away. . . . [The Constitution] grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated." Ibid.


[67] There is no mention in this paragraph of a need for prior confrontation, even though if the Court believed such a limit applied, the phrase "their evidence is supplied" would more naturally have read "their previously confronted evidence is supplied." Crawford reaffirmed this understanding by citing Reynolds for a forfeiture exception to the confrontation right. 541 U. S., at 54. And what Reynolds and Crawford described as the law became a seeming holding of this Court in Davis, which, after finding an absent witness's unconfronted statements introduced at trial to have been testimonial, and after observing that "one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation," 547 U. S., at 833, remanded with the instruction that "[t]he Indiana courts may (if they are asked) determine on remand whether . . . a claim of forfeiture is properly raised and, if so, whether it is meritorious," id. at 834.


[68] Although the case law is sparse, in light of these decisions and the absence of even a single case declining to admit unconfronted statements of an absent witness on wrongful-procurement grounds when the defendant sought to prevent the witness from testifying, we are not persuaded to displace the understanding of our prior cases that wrongful procurement permits the admission of prior unconfronted testimony.


[69] But the parsing of cases aside, the most obvious problem with the dissent's theory that the forfeiture rule applied only to confronted testimony is that it amounts to self-immolation. If it were true, it would destroy not only our case for a narrow forfeiture rule, but the dissent's case for a broader one as well. Prior confronted statements by witnesses who are unavailable are admissible whether or not the defendant was responsible for their unavailability. Id., at 68. If the forfeiture doctrine did not admit unconfronted prior testimony at common law, the conclusion must be, not that the forfeiture doctrine requires no specific intent in order to render unconfronted testimony available, but that unconfronted testimony is subject to no forfeiture doctrine at all.*fn5


[70] 2.


[71] Having destroyed its own case, the dissent issues a thinly veiled invitation to overrule Crawford and adopt an approach not much different from the regime of Ohio v. Roberts, 448 U. S. 56 (1980), under which the Court would create the exceptions that it thinks consistent with the policies underlying the confrontation guarantee, regardless of how that guarantee was historically understood. The "basic purposes and objectives" of forfeiture doctrine, it says, require that a defendant who wrongfully caused the absence of a witness be deprived of his confrontation rights, whether or not there was any such rule applicable at common law. Post, at 4.


[72] If we were to reason from the "basic purposes and objectives" of the forfeiture doctrine, we are not at all sure we would come to the dissent's favored result. The common-law forfeiture rule was aimed at removing the otherwise powerful incentive for defendants to intimidate, bribe, and kill the witnesses against them -- in other words, it is grounded in "the ability of courts to protect the integrity of their proceedings." Davis, 547 U. S., at 834. The boundaries of the doctrine seem to us intelligently fixed so as to avoid a principle repugnant to our constitutional system of trial by jury: that those murder defendants whom the judge considers guilty (after less than a full trial, mind you, and of course before the jury has pronounced guilt) should be deprived of fair-trial rights, lest they benefit from their judge-determined wrong.*fn6


[73] Since it is most certainly not the norm that trial rights can be "forfeited" on the basis of a prior judicial determination of guilt, the dissent must go far afield to argue even by analogy for its forfeiture rule. See post, at 5 (discussing common-law doctrine that prohibits the murderer from collecting insurance on the life of his victim, or an inheritance from the victim's estate); post, at 6 (noting that many criminal statutes punish a defendant regardless of his purpose). These analogies support propositions of which we have no doubt: States may allocate property rights as they see fit, and a murderer can and should be punished, without regard to his purpose, after a fair trial. But a legislature may not "punish" a defendant for his evil acts by stripping him of the right to have his guilt in a criminal proceeding determined by a jury, and on the basis of evidence the Constitution deems reliable and admissible.


[74] The larger problem with the dissent's argument, however, is that the guarantee of confrontation is no guarantee at all if it is subject to whatever exceptions courts from time to time consider "fair." It is not the role of courts to extrapolate from the words of the Sixth Amendment to the values behind it, and then to enforce its guarantees only to the extent they serve (in the courts' views) those underlying values. The Sixth Amendment seeks fairness indeed -- but seeks it through very specific means (one of which is confrontation) that were the trial rights of Englishmen. It "does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts." Crawford, supra, at 54.*fn7


[75] E.


[76] The dissent closes by pointing out that a forfeiture rule which ignores Crawford would be particularly helpful to women in abusive relationships -- or at least particularly helpful in punishing their abusers. Not as helpful as the dissent suggests, since only testimonial statements are excluded by the Confrontation Clause. Statements to friends and neighbors about abuse and intimidation, and statements to physicians in the course of receiving treatment would be excluded, if at all, only by hearsay rules, which are free to adopt the dissent's version of forfeiture by wrongdoing. In any event, we are puzzled by the dissent's decision to devote its peroration to domestic abuse cases. Is the suggestion that we should have one Confrontation Clause (the one the Framers adopted and Crawford described) for all other crimes, but a special, improvised, Confrontation Clause for those crimes that are frequently directed against women? Domestic violence is an intolerable offense that legislatures may choose to combat through many means -- from increasing criminal penalties to adding resources for investigation and prosecution to funding awareness and prevention campaigns. But for that serious crime, as for others, abridging the constitutional rights of criminal defendants is not in the State's arsenal.


[77] The domestic-violence context is, however, relevant for a separate reason. Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution -- rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify. This is not, as the dissent charges, post, at 25, nothing more than "knowledge-based intent." (Emphasis deleted.)


[78] The state courts in this case did not consider the intent of the defendant because they found that irrelevant to application of the forfeiture doctrine. This view of the law was error, but the court is free to consider evidence of the defendant's intent on remand.


[79] *  *  *


[80] We decline to approve an exception to the Confrontation Clause unheard of at the time of the founding or for 200 years thereafter. The judgment of the California Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.


[81] It is so ordered.


[82] Justice Thomas, concurring.


[83] I write separately to note that I adhere to my view that statements like those made by the victim in this case do not implicate the Confrontation Clause. The contested evidence is indistinguishable from the statements made during police questioning in response to the report of domestic violence in Hammon v. Indiana, decided with Davis v. Washington, 547 U. S. 813 (2006). There, as here, the police questioning was not "a formalized dialogue"; it was not "sufficiently formal to resemble the Marian examinations" because "the statements were neither Mirandized nor custodial, nor accompanied by any similar indicia of formality"; and "there is no suggestion that the prosecution attempted to offer [Ms. Avie's] hearsay evidence at trial in order to evade confrontation." See id., at 840 (Thomas, J., concurring in judgment in part and dissenting in part).


[84] Nonetheless, in this case respondent does not argue that the contested evidence is non-testimonial, ante, at 3; the court below noted "no dispute" on the issue, 40 Cal. 4th 833, 841, 152 P. 3d 433, 438 (2007); and it is outside the scope of the question presented, Brief for Petitioner i. Because the Court's opinion accurately reflects our Confrontation Clause jurisprudence where the applicability of that Clause is not at issue, I join the Court in vacating the decision below.


[85] Justice Alito, concurring.


[86] I join the Court's opinion, but I write separately to make clear that, like Justice Thomas, I am not convinced that the out-of-court statement at issue here fell within the Confrontation Clause in the first place. The dissent's displeasure with the result in this case is understandable, but I suggest that the real problem concerns the scope of the confrontation right. The Confrontation Clause does not apply to out-of-court statements unless it can be said that they are the equivalent of statements made at trial by "witnesses." U. S. Const., Amdt. 6. It is not at all clear that Ms. Avie's statement falls within that category. But the question whether Ms. Avie's statement falls within the scope of the Clause is not before us, and assuming for the sake of argument that the statement falls within the Clause, I agree with the Court's analysis of the doctrine of forfeiture by wrongdoing.


[87] Justice Souter, with whom Justice Ginsburg joins, concurring in part.


[88] I am convinced that the Court's historical analysis is sound and I join all but Part II-D-2 of the opinion. As the Court demonstrates, the confrontation right as understood at the Framing and ratification of the Sixth Amendment was subject to exception on equitable grounds for an absent witness's prior relevant, testimonial statement, when the defendant brought about the absence with intent to prevent testimony. It was, and is, reasonable to place the risk of untruth in an unconfronted, out-of-court statement on a defendant who meant to preclude the testing that confrontation provides. The importance of that intent in assessing the fairness of placing the risk on the defendant is most obvious when a defendant is prosecuted for the very act that causes the witness's absence, homicide being the extreme example. If the victim's prior statement were admissible solely because the defendant kept the witness out of court by committing homicide, admissibility of the victim's statement to prove guilt would turn on finding the defendant guilty of the homicidal act causing the absence; evidence that the defendant killed would come in because the defendant probably killed. The only thing saving admissibility and liability determinations from question begging would be (in a jury case) the distinct functions of judge and jury: judges would find by a preponderance of evidence that the defendant killed (and so would admit the testimonial statement), while the jury could so find only on proof beyond a reasonable doubt. Equity demands something more than this near circularity before the right to confrontation is forfeited, and more is supplied by showing intent to prevent the witness from testifying. Cf. Davis v. Washington, 547 U. S. 813, 833 (2006).


[89] It is this rationale for the limit on the forfeiture exception rather than a dispositive example from the historical record that persuades me that the Court's conclusion is the right one in this case. The contrast between the Court's and Justice Breyer's careful examinations of the historical record tells me that the early cases on the exception were not calibrated finely enough to answer the narrow question here. The historical record as revealed by the exchange simply does not focus on what should be required for forfeiture when the crime charged occurred in an abusive relationship or was its culminating act; today's understanding of domestic abuse had no apparent significance at the time of the Framing, and there is no early example of the forfeiture rule operating in that circumstance.


[90] Examining the early cases and commentary, however, reveals two things that count in favor of the Court's understanding of forfeiture when the evidence shows domestic abuse. The first is the substantial indication that the Sixth Amendment was meant to require some degree of intent to thwart the judicial process before thinking it reasonable to hold the confrontation right forfeited; otherwise the right would in practical terms boil down to a measure of reliable hearsay, a view rejected in Crawford v. Washington, 541 U. S. 36 (2004). The second is the absence from the early material of any reason to doubt that the element of intention would normally be satisfied by the intent inferred on the part of the domestic abuser in the classic abusive relationship, which is meant to isolate the victim from outside help, including the aid of law enforcement and the judicial process. If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say in a fit of anger. The Court's conclusion in Part II-E thus fits the rationale that equity requires and the historical record supports.


[91] Justice Breyer, with whom Justice Stevens and Justice Kennedy join, dissenting.


[92] In Crawford v. Washington, 541 U. S. 36 (2004), we held that the Sixth Amendment's Confrontation Clause bars admission against a criminal defendant of an un-cross-examined "testimonial" statement that an unavailable witness previously made out of court. Id., at 68. We simultaneously recognized an exception: that the defendant, by his own "wrongdoing," can forfeit "on essentially equitable grounds" his Confrontation Clause right. Id., at 62. In Davis v. Washington, 547 U. S. 813 (2006), we again recognized this exception, stating that "one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation." Id., at 833.


[93] This case involves a witness who, crying as she spoke, told a police officer how her former boyfriend (now, the defendant) had choked her, "opened a folding knife," and "threatened to kill her." Ante, at 2 (opinion of the Court). Three weeks later, the defendant did kill her. At his murder trial, the defendant testified that he had acted in self-defense. To support that assertion, he described the victim as jealous, vindictive, aggressive, and violent. To rebut the defendant's claim of self-defense and impeach his testimony, the State introduced into evidence the witness' earlier uncross-examined statements (as state hearsay law permits it to do) to help rebut the defendant's claim of self-defense. It is important to underscore that this case is premised on the assumption, not challenged here, that the witness' statements are testimonial for purposes of the Confrontation Clause. With that understanding, we ask whether the defendant, through his wrongdoing, has forfeited his Confrontation Clause right. The Court concludes that he may not have forfeited that right. In my view, however, he has.


[94] I.


[95] Like the majority, I believe it important to recognize the relevant history and I start where the majority starts, with Lord Morley's Case, 6 How. St. Tr. 769 (H. L. 1666). In that case, the judges of the House of Lords wrote that a coroner's out-of-court "examinations" of witnesses "might be read" in court if "the witnesses . . . were dead or unable to travel." Id., at 770. Additionally, they agreed, an examination "might be read" if the "witness who had been examined by the coroner, and was then absent, was detained by the means or procurement of the prisoner." Id., at 770-771 (emphasis added). Later cases repeated this rule and followed it, admitting depositions where, e.g., "there ha[d] been evidence given of ill practice to take [the witness] out of the way," Harrison's Case, 12 How. St. Tr. 833, 868 (H. L. 1692), where "the prisoner ha[d], by fraudulent and indirect means, procured a person that hath given information against him to a proper magistrate, to withdraw himself," Lord Fenwick's Case, 13 How. St. Tr. 537, 594 (H. C. 1696), where the prisoner "had resorted to a contrivance to keep the witness out of the way," Queen v. Scaife, 17 Ad. E. 238, 242, 117 Eng. Rep. 1271, 1273 (Q. B. 1851), and so forth.


[96] Nineteenth-century American case law on the subject said approximately the same thing. See Reynolds v. United States, 98 U. S. 145, 158 (1879). For example, an 1819 South Carolina case held that a witness' prior formal examination could be admitted because "the witness had been kept away by the contrivance of the opposite party." Drayton v. Wells, 10 S. C. L. 409, 411. An 1856 Georgia case, relying on Lord Morley's Case, held that a similar "examination should be read" if the witness "was detained by means or procurement of the prisoner." Williams v. State, 19 Ga. 403. And in 1878, this Court held that "if a witness is absent by [the defendant's] . . . own wrongful procurement, he cannot complain" about the admission of the witness' prior testimonial statement. Reynolds, supra, at 158.


[97] Reynolds stated that, "if [the defendant] voluntarily keeps the witnesses away, he cannot insist on" the "privilege of being confronted with the witnesses against him," in part because of Lord Morley's Case and in part because the rule of forfeiture "has its foundation in the maxim that no one shall be permitted to take advantage of his own wrong . . . a maxim based on the principles of common honesty." 98 U. S., at 158-159.


[98] These sources make clear that "forfeiture by wrongdoing" satisfies Crawford's requirement that the Confrontation Clause be "read as a reference to the right of confrontation at common law" and that "any exception" must be "established at the time of the founding." 541 U. S., at 54. The remaining question concerns the precise metes and bounds of the forfeiture by wrongdoing exception. We ask how to apply that exception in the present case.


[99] II.


[100] There are several strong reasons for concluding that the forfeiture by wrongdoing exception applies here -- reasons rooted in common-law history, established principles of criminal law and evidence, and the need for a rule that can be applied without creating great practical difficulties and evidentiary anomalies.


[101] First, the language that courts have used in setting forth the exception is broad enough to cover the wrongdoing at issue in the present case (murder) and much else besides. A witness whom a defendant murders is kept from testifying "by the means . . . of the prisoner" i.e., the defendant, Lord Morley's Case, supra, at 771; murder is indeed an "ill practice," that leads to the witness' absence, Harrison's Case, supra, at 868; one can fairly call a murder a "contrivance to keep the witness out of the way", Queen v. Scaife, supra, at 242, 117 Eng. Rep., at 1273; murder, if not a "fraudulent and indirect means" of keeping the witness from testifying, is a far worse, direct one, Fenwick's Case, supra, at 594; and when a witness is "absent" due to murder, the killer likely brought about that absence by his "own wrongful procurement," Reynolds, supra, at 158. All of the relevant English and American cases use approximately similar language. See, e.g., 1 G. Gilbert, Law of Evidence 214-215 (1791) (examinations are "to be read on the Trial" where it can be proved that the witness is "kept back from appearing by the means and procurement of the prisoner"). And I have found no case that uses language that would not bring a murder and a subsequent trial for murder within its scope.


[102] Second, an examination of the forfeiture rule's basic purposes and objectives indicates that the rule applies here. At the time of the founding, a leading treatise writer described the forfeiture rule as designed to assure that the prisoner "shall never be admitted to shelter himself by such evil Practices on the Witness, that being to give him Advantage of his own Wrong." Id., at 214-215. This Court's own leading case explained the exception as finding its "foundation in the maxim that no one shall be permitted to take advantage of his own wrong." Reynolds, supra, at 159. What more "evil practice," what greater "wrong," than to murder the witness? And what greater evidentiary "advantage" could one derive from that wrong than thereby to prevent the witness from testifying, e.g., preventing the witness from describing a history of physical abuse that is not consistent with the defendant's claim that he killed her in self-defense?


[103] Third, related areas of the law motivated by similar equitable principles treat forfeiture or its equivalent similarly. The common law, for example, prohibits a life insurance beneficiary who murders an insured from recovering under the policy. See, e.g., New York Mut. Life Ins. Co. v. Armstrong, 117 U. S. 591, 600 (1886) ("It would be a reproach to the jurisprudence of the country, if one could recover insurance money payable on the death of a party whose life he had feloniously taken"). And it forbids recovery when the beneficiary "feloniously kills the insured, irrespective of the purpose." National Life Ins. Co. v. Hood's Adm'r, 264 Ky. 516, 518, 94 S. W. 2d 1022, 1023 (Ct. App. 1936) (emphasis added) ("no difference of opinion among the courts" on the matter). Similarly, a beneficiary of a will who murders the testator cannot inherit under the will. See 1 W. Page, Wills §17.19, pp. 999-1001 (2003). And this is so "whether the crime was committed for that very purpose or with some other felonious design." Van Alstyne v. Tuffy, 103 Misc. 455, 459, 169 N. Y. S. 173, 175 (1918); see also 1 Page, supra, §17.19, at 1002 ("[T]his common law doctrine applies alike whether the devisee is guilty of murder, or of manslaughter" (footnote omitted)); see generally H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 76-94 (W. Eskridge & P. Frickey eds. 1994) (discussing so-called "slayer's rules"); Wade, Acquisition of Property by Willfully Killing Another -- A Statutory Solution, 49 Harv. L. Rev. 715, 716 (1936) ("[I]t must be recognized that ... the adoption of some means to prevent a slayer from acquiring property as the result of the death of a man whom he has killed is desirable").


[104] Fourth, under the circumstances presented by this case, there is no difficulty demonstrating the defendant's intent. This is because the defendant here knew that murdering his ex-girlfriend would keep her from testifying; and that knowledge is sufficient to show the intent that law ordinarily demands. As this Court put the matter more than a century ago: A " `man who performs an act which it is known will produce a particular result is from our common experience presumed to have anticipated that result and to have intended it.' " Allen v. United States, 164 U. S. 492, 496 (1896); see United States v. Aguilar, 515 U. S. 593, 613 (1995) (Scalia, J., dissenting) ("[T]he jury is entitled to presume that a person intends the natural and probable consequences of his acts"); see also G. Williams, Criminal Law §18, p. 38 (2d ed. 1961) ("There is one situation where a consequence is deemed to be intended though it is not desired. This is where it is foreseen as substantially certain"); ALI, Model Penal Code §2.02(2)(b)(ii) (1962) (a person acts "knowingly" if "the element involves a result of his conduct" and "he is aware that it is practically certain that his conduct will cause such a result"); Restatement (Second) of Torts §8A (1977) ("The word `intent' is used throughout . . . to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it").


[105] With a few criminal law exceptions not here relevant, the law holds an individual responsible for consequences known likely to follow just as if that individual had intended to achieve them. A defendant, in a criminal or a civil case, for example, cannot escape criminal or civil liability for murdering an airline passenger by claiming that his purpose in blowing up the airplane was to kill only a single passenger for her life insurance, not the others on the same flight. See 1 W. LaFave, Substantive Criminal Law §5.2(a), p. 341 (2003).


[106] This principle applies here. Suppose that a husband, H, knows that after he assaulted his wife, W, she gave statements to the police. Based on the fact that W gave statements to the police, H also knows that it is possible he will be tried for assault. If H then kills W, H cannot avoid responsibility for intentionally preventing W from testifying, not even if H says he killed W because he was angry with her and not to keep her away from the assault trial. Of course, the trial here is not for assault; it is for murder. But I should think that this fact, because of the nature of the crime, would count as a stronger, not a weaker, reason for applying the forfeiture rule. Nor should it matter that H, at the time of the murder, may have believed an assault trial more likely to take place than a murder trial, for W's unavailability to testify at any future trial was a certain consequence of the murder. And any reasonable person would have known it. Cf. United States v. Falstaff Brewing Corp., 410 U. S. 526, 570, n. 22 (1973) (Marshall, J., concurring in result) ("[P]erhaps the oldest rule of evidence -- that a man is presumed to intend the natural and probable consequences of his acts -- is based on the common law's preference for objectively measurable data over subjective statements of opinion and intent").


[107] The majority tries to overcome this elementary legal logic by claiming that the "forfeiture rule" applies, not where the defendant intends to prevent the witness from testifying, but only where that is the defendant's purpose, i.e., that the rule applies only where the defendant acts from a particular motive, a desire to keep the witness from trial. See ante, at 5-6 (asserting that the terms used to describe the scope of the forfeiture rule "suggest that the exception applied only when the defendant engaged in conduct designed to prevent the witness from testifying" and that a "purpose-based definition . . . governed"). But the law does not often turn matters of responsibility upon motive, rather than intent. See supra, at 5. And there is no reason to believe that application of the rule of forfeiture constitutes an exception to this general legal principle.


[108] Indeed, to turn application of the forfeiture rule upon proof of the defendant's purpose (rather than intent), as the majority does, creates serious practical evidentiary problems. Consider H who assaults W, knows she has complained to the police, and then murders her. H knows that W will be unable to testify against him at any future trial. But who knows whether H's knowledge played a major role, a middling role, a minor role, or no role at all, in H's decision to kill W? Who knows precisely what passed through H's mind at the critical moment? See, e.g., State v. Romero, 2007-NMSC-013, 156 P. 3d 694, 702-703 (finding it doubtful that evidence associated with the murder would support a finding that the purpose of the murder was to keep the victim's earlier statements to police from the jury).


[109] Moreover, the majority's insistence upon a showing of purpose or motive cannot be squared with the exception's basically ethical objective. If H, by killing W, is able to keep W's testimony out of court, then he has successfully "take[n] advantage of his own wrong." Reynolds, 98 U. S., at 159. And he does so whether he killed her for the purpose of keeping her from testifying, with certain knowledge that she will not be able to testify, or with a belief that rises to a reasonable level of probability. The inequity consists of his being able to use the killing to keep out of court her statements against him. That inequity exists whether the defendant's state of mind is purposeful, intentional (i.e., with knowledge), or simply probabilistic.


[110] Fifth, the majority's approach both creates evidentiary anomalies and aggravates existing evidentiary incongruities. Contrast (a) the defendant who assaults his wife and subsequently threatens her with harm if she testifies, with (b) the defendant who assaults his wife and subsequently murders her in a fit of rage. Under the majority's interpretation, the former (whose threats make clear that his purpose was to prevent his wife from testifying) cannot benefit from his wrong, but the latter (who has committed what is undoubtedly the greater wrong) can. This is anomalous, particularly in this context where an equitable rule applies.


[111] Now consider a trial of H for the murder of W at which H claims self-defense. As the facts of this very case demonstrate, H may be allowed to testify at length and in damning detail about W's behavior -- what she said as well as what she did -- both before and during the crime. See, e.g., Tr. 643-645 (Apr. 1, 2003). H may be able to introduce some of W's statements (as he remembers them) under hearsay exceptions for excited utterances or present sense impressions or to show states of mind (here the victim's statements were admitted through petitioner's testimony to show her state of mind). W, who is dead, cannot reply. This incongruity arises in part from the nature of hearsay and the application of ordinary hearsay rules. But the majority would aggravate the incongruity by prohibiting admission of W's out-of-court statements to the police (which contradict H's account), even when they too fall within a hearsay exception, simply because there is no evidence that H was focused on his future trial when he killed her. There is no reason to do so.


[112] Consider also that California's hearsay rules authorize admission of the out-of-court statement of an unavailable declarant where the statement describes or explains the "infliction or threat of physical injury upon the declarant," if the "statement" was "made at or near the time of the infliction or threat of physical injury." Cal. Evid. Code Ann. §1370 (Supp. 2008). Where a victim's statement is not "testimonial," perhaps because she made it to a nurse, the statement could come into evidence under this rule. But where the statement is made formally to a police officer, the majority's rule would keep it out. Again this incongruity arises in part because of pre-existing confrontation-related rules. See Davis, 547 U. S., at 830, n. 5 ("[F]ormality is indeed essential to testimonial utterance"). But, again, the majority would aggravate the incongruity by prohibiting admission of W's out-of-court statements to the police simply because there is no evidence that H was focused on his future trial when he killed her. Again, there is no reason to do so.


[113] Sixth, to deny the majority's interpretation is not to deny defendants evidentiary safeguards. It does, of course, in this particular area, deny defendants the right always to cross-examine. But the hearsay rule has always contained exceptions that permit the admission of evidence where the need is significant and where alternative safeguards of reliability exist. Those exceptions have evolved over time, see 2 K. Brown, McCormick on Evidence §326 (2006) (discussion the development of the modern hearsay rule); Fed. Rule Evid. 102 ("[T]hese rules shall be construed to secure . . . promotion of growth and development of the law of evidence"), often in a direction that permits admission of hearsay only where adequate alternative assurance of reliability exists, see, e.g., Rule 807 (the "Residual Exception"). Here, for example, the presence in court of a witness who took the declarant's statement permits cross-examination of that witness as to just what the declarant said and as to the surrounding circumstances, while those circumstances themselves provide sufficient guarantees of accuracy to warrant admission under a State's hearsay exception. See Cal. Evid. Code Ann. §1370.


[114] More importantly, to apply the forfeiture exception here simply lowers a constitutional barrier to admission of earlier testimonial statements; it does not require their admission. State hearsay rules remain in place; and those rules will determine when, whether, and how evidence of the kind at issue here will come into evidence. A State, for example, may enact a forfeiture rule as one of its hearsay exceptions, while simultaneously reading into that rule requirements limiting its application. See ante, at 13-14, n. 2. To lower the constitutional barrier to admission is to allow the States to do just that, i.e., to apply their evidentiary rules with flexibility and to revise their rules as experience suggests would be advisable. The majority's rule, which requires exclusion, would deprive the States of this freedom and flexibility.


[115] III.


[116] A.


[117] The majority tries to find support for its view in 17th-, 18th-, and 19th-century law of evidence. But a review of the cases set forth in Part I, supra, makes clear that no case limits forfeiture to instances where the defendant's purpose or motivation is to keep the witness away. See supra, at 2-3. To the contrary, this Court stated in Reynolds that the "Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts." 98 U. S., at 158 (emphasis added). The words "legitimate consequences" do not mean "desired consequences" or refer to purpose or motive; in fact, the words "legitimate consequences" can encompass imputed consequences as well as intended consequences. And this Court's statement in Reynolds that the rule "has its foundation in the maxim that no one shall be permitted to take advantage of his own wrong" suggests that forfeiture applies where the defendant benefits from a witness' absence, regardless of the defendant's specific purpose. Id., at 159.


[118] Rather than limit forfeiture to instances where the defendant's act has absence of the witness as its purpose, the relevant cases suggest that the forfeiture rule would apply where the witness' absence was the known consequence of the defendant's intentional wrongful act. Lord Morley's Case and numerous others upon which the forfeiture rule is based say that a Marian deposition (i.e., a deposition taken by a coroner or magistrate pursuant to the Marian bail and commitment statutes) may be read to the jury if the witness who was absent was detained "by means or procurement of the prisoner." Lord Morley's Case, 6 How. St. Tr., at 771. The phrase "by means of" focuses on what the defendant did, not his motive for (or purpose in) doing it. In Diaz v. United States, 223 U. S. 442 (1912), which followed Reynolds, this Court used the word "by" (the witness was absent "by the wrongful act of" the accused), a word that suggests causation, not motive or purpose. Id., at 452; see Eureka Lake & Yuba Canal Co. v. Superior Court of Yuba Cty., 116 U. S. 410, 418 (1886). And in Motes v. United States, 178 U. S. 458, 473-474 (1900), the Court spoke of absence "with the assent of" the defendant, a phrase perfectly consistent with an absence that is a consequence of, not the purpose of, what the assenting defendant hoped to accomplish.


[119] Petitioner's argument that the word "procurement" implies purpose or motive is unpersuasive. See Brief for Petitioner 26-28. Although a person may "procure" a result purposefully, a person may also "procure" a result by causing it, as the word "procure" can, and at common law did, mean "cause," "bring about," and "effect," all words that say nothing about motive or purpose. 2 N. Webster, An American Dictionary of the English Language (1828); see also 2 C. Richardson, New Dictionary of the English Language 1514 (1839) (defining "procure" to mean "[t]o take care for; to take care or heed, ... that any thing be done; to urge or endeavor, to manage or contrive that it be done; to acquire; to obtain"). The majority's similar argument about the word "contrivance" fares no better. See ante, at 6 (citing, e.g., 1 J. Chitty, A Practical Treatise on the Criminal Law 81 (1816) (hereinafter Chitty) ("kept away by the means and contrivance of the prisoner")). Even if a defendant had contrived, i.e., devised or planned, to murder a victim, thereby keeping her away, it does not mean that he did so with the purpose of keeping her away in mind. Regardless, the relevant phrase in Lord Morley's Case is "by means or procurement of" the defendant. 6 How. St. Tr., at 771 (emphasis added). And, as I have explained, an absence "by means of" the defendant's actions may, or may not, refer to an absence that the defendant desired, as compared to an absence that the defendant caused.


[120] The sole authority that expressly supports the majority's interpretation is an 1858 treatise stating that depositions were admissible if the witness "had been kept out of the way by the prisoner, or by some one on the prisoner's behalf, in order to prevent him from giving evidence against him." E. Powell, Practice of the Law of Evidence 166. This treatise was written nearly 70 years after the founding; it does not explain the basis for this conclusion; and, above all, it concerns a complete exception to the hearsay rule. Were there no such limitation, all a murder victim's hearsay statements, not simply the victim's testimonial statements, could be introduced into evidence. Here we deal only with a constitutional bar to the admission of testimonial statements. And an exception from the general constitutional bar does not automatically admit the evidence. Rather, it leaves the State free to decide, via its own hearsay rules and hearsay exceptions, which such statements are sufficiently reliable to admit.


[121] B.


[122] Given the absence of any evidence squarely requiring purpose rather than intent, what is the majority to say? The majority first tries to draw support from the absence of any murder case in which the victim's Marian statement was read to the jury on the ground that the defendant had killed the victim. See ante, at 7-10. I know of no instance in which this Court has drawn a conclusion about the meaning of a common-law rule solely from the absence of cases showing the contrary -- at least not where there are other plausible explanations for that absence. And there are such explanations here.


[123] The most obvious reason why the majority cannot find an instance where a court applied the rule of forfeiture at a murder trial is that many (perhaps all) common-law courts thought the rule of forfeiture irrelevant in such cases. In a murder case, the relevant witness, the murder victim, was dead; and historical legal authorities tell us that, when a witness was dead, the common law admitted a Marian statement. See, e.g., Lord Morley's Case, supra, at 770-77 (Marian depositions "might be read" if the witness was "dead or unable to travel"); King v. Woodcock, 1 Leach 500, 502, 168 Eng. Rep. 352, 353 (1789) ("[I]f the deponent should die between the time of examination and the trial of the prisoner, [the Marian deposition] may be substituted in the room of that viva voce testimony which the deponent, if living, could alone have given, and is admitted of necessity as evidence of the fact"); J. Archbold, A Summary of the Law Relative to Pleading and Evidence in Criminal Cases 85 (1822) (where a witness was "dead," "unable to travel," or "kept away by the means or procurement of the prisoner," Marian depositions "may be given in evidence against the prisoner"). Because the Marian statements of a deceased witness were admissible simply by virtue of the witness' death, there would have been no need to argue for their admission pursuant to a forfeiture rule.


[124] Historical authorities also tell us that a Marian statement could not be admitted unless it was a proper Marian deposition, meaning that the statement was given in the presence of the defendant thereby providing an opportunity to cross-examine the witness. And this was the case whether the witness' unavailability was due to death or the "means or procurement" of the defendant. See, e.g., ibid. (Where a witness was "dead," "unable to travel," or "kept away by the means or procurement of the prisoner" depositions could be read but they "must have been taken in the presence of the prisoner, so that he might have had an opportunity of cross examining the witness" (emphasis added)); 2 W. Hawkins, Pleas of the Crown 605-606 (6th ed. 1787) (hereinafter Hawkins); Chitty, 78-80; 2 J. Bishop, New Criminal Procedure §§1194-1195, pp. 1020-1022 (2d ed. 1913) (hereinafter Bishop); Lord Fenwick's Case, 13 Haw., at 602. Thus, in a murder trial, where the witness was dead, either the Marian statement was proper and it came into evidence without the forfeiture exception; or it was improper and the forfeiture exception could not have helped it come in. Cf. King v. Dingler, 2 Leach 561, 563, 168 Eng. Rep. 383, 384 (1791) (a top barrister of the day argued successfully that "it is utterly impossible, unless the prisoner had been present [at the Marian deposition], that depositions thus taken can be read"). No wonder then that the majority cannot find a murder case that refers directly to the forfeiture exception. Common-law courts likely thought the forfeiture exception irrelevant in such a case.


[125] The majority highlights two common-law murder cases that demonstrate this point -- King v. Woodcock and King v. Dingler. See ante, at 7-9. As the majority explains, in each of these two cases, the defendant stood accused of killing his wife. In each case, the victim had given an account of the crime prior to her death. And in each case, the court refused to admit the statements (statements that might have been admitted simply by virtue of the fact that the witness had died) on the ground that they were not properly taken Marian statements, i.e., not made in the presence of the defendant. Because admission pursuant to the forfeiture rule also would have required the statements to have been properly taken, there would have been no reason to argue for their admission on that basis. Instead, in each case, the prosecution argued that the statement be admitted as a dying declaration. In Woodcock, depending on the account, the court either instructed the jury to consider whether the statements were made "under the apprehension of death," or determined for itself that they were and admitted them into evidence. 1 Leach, at 504, 168 Eng. Rep., at 354; see 1 E. East, Pleas of the Crown 356 (1803) (reprinted 2004). In Dingler, because the Crown admitted that the statements were not made "under apprehension of immediate death," the statements were excluded. 2 Leach, at 563, 168 Eng. Rep., at 384. The forfeiture rule thus had no place in Woodcock or Dingler, not because of the state of mind of the defendant when he committed his crime, but because the victim's testimony was not a properly taken Marian statement.


[126] The American murder cases to which the majority refers provide it no more support. See ante, at 9 (citing United States v. Woods, 28 F. Cas. 762, 763 (CC DC 1834); Lewis v. State, 17 Miss. 115, 120 (1847); Montgomery v. State, 11 Ohio 424, 425-426 (1842); Nelson v. State, 26 Tenn. 542, 543 (1847); Smith v. State, 28 Tenn. 9, 23 (1848)). Like Woodcock and Dingler, these are dying declaration cases. While it is true that none refers to the forfeiture exception, it is also true that none of these cases involved a previously given proper Marian deposition or its equivalent.


[127] There are other explanations as well for the absence of authority to which the majority points. The defendant's state of mind only arises as an issue in forfeiture cases where the witness has made prior statements against the defendant and where there is a possible motive for the killing other than to prevent the witness from testifying. (Where that motive is certain, for example where the defendant knows the witness only because she has previously testified against him, the prior statements would be admitted under the majority's purpose rule and the question of intent would not come up.) We can see from modern cases that this occurs almost exclusively in the domestic violence context, where a victim of the violence makes statements to the police and where it is not certain whether the defendant subsequently killed her to prevent her from testifying, to retaliate against her for making statements, or in the course of another abusive incident. But 200 years ago, it might have been seen as futile for women to hale their abusers before a Marian magistrate where they would make such a statement. See, e.g., State v. Rhodes, 61 N. C. 453, 459 (1868) (per curiam) ("We will not inflict upon society the greater evil of raising the curtain upon domestic privacy, to punish the lesser evil of trifling violence").


[128] I also recognize the possibility that there are too few old records available for us to draw firm conclusions. Indeed, the "continuing confusion about the very nature of the law of evidence at the end of the eighteenth century underscores how primitive and undertheorized the subject then was." See J. Langbein, The Origins of Adversary Criminal Trial 248 (2003).


[129] Regardless, the first explanation -- that the forfeiture doctrine could not have helped admit an improperly taken Marian deposition -- provides a sufficient ground to conclude that the majority has found nothing in the common-law murder cases, domestic or foreign, that contradicts the traditional legal principles supporting application of the rule of forfeiture here. See Williams, Criminal Law §18, at 39 (relying on sources at common law for the proposition that the accused "necessarily intends that which must be the consequence of the act" (internal quotation marks omitted)); LaFave, Substantive Criminal Law §5.2(a), at 341 ("the traditional view is that a person who acts . . . intends a result of his act . . . when he knows that that result is practically certain to follow from his conduct, whatever his desire may be as to that result").


[130] The majority next points to a second line of common-law cases, cases in which a court admitted a murdered witness' "dying declaration." But those cases do not support the majority's conclusion. A dying declaration can come into evidence when it is "made in extremity" under a sense of impending death, "when every hope of this world is gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth." Woodcock, supra, at 502, 168 Eng. Rep., at 353; see King v. Drummond, 1 Leach 337, 338, 168 Eng. Rep. 271, 272 (1784) ("[T]he mind, impressed with the awful idea of approaching dissolution, acts under a sanction equally powerful with that which it is presumed to feel by a solemn appeal to God upon an oath"); see also Hawkins 619, n. 10; Mattox v. United States, 156 U. S. 237, 243-244 (1895). The majority notes that prosecutors did not attempt to obtain admission of dying declarations on forfeiture grounds before trying to meet these strict "dying declaratio[n]" requirements. See ante, at 10. This failure, it believes, supports its conclusion that admission pursuant to the forfeiture exception required a showing that the defendant killed the witness with the purpose of securing the absence of that witness at trial.


[131] There is a simpler explanation, however, for the fact that parties did not argue forfeiture in "dying declaration" cases. And it is the explanation I have already mentioned. The forfeiture exception permitted admission only of a properly taken Marian deposition. And where death was at issue, the forfeiture exception was irrelevant. In other words, if the Marian deposition was proper, the rule of forfeiture was unnecessary; if the deposition was improper, the rule of forfeiture was powerless to help. That is why we find lawyers in "dying declaration" cases arguing that the dying declaration was either a proper Marian deposition (in which case it was admitted) or it was a "dying declaration" (in which case it was admitted), or both. See, e.g., Dingler, supra, at 562, 168 Eng. Rep., at 383-384 (discussing the admission of statements either "as a deposition taken pursuant to the [Marian] statutes" or, in the alternative, "as the dying declaration of a party conscious of approaching dissolution"); King v. Radbourne, 1 Leach 457, 46-461, 168 Eng. Rep. 330, 332 (1787) (same); People v. Restell, 3 Hill 289 (N. Y. 1842) (same); see also Chitty 79-81. Under these circumstances, there would have been little reason to add the word "forfeiture." For the same reason, we can find "dying declarations" admitted in murder cases where no proper Marian deposition existed, see, e.g., King v. Woodcock, 1 Leach 500, 168 Eng. Rep. 352; 1 East, Pleas of the Crown, at 356, or in cases involving, say, wills or paternity disputes, where Marian statements were not at all at issue, see 5 J. Wigmore, Evidence §1431, p. 277, n. 2 (J. Chadbourn rev. 1974) (citing such cases from the 18th and 19th centuries). Cf. Langbein, supra, at 245-246, nn. 291, 292 (at common law, there existed both oath-based and cross-examination-based rationales for the hearsay rule, with the latter only becoming dominant around the turn of the 19th century (citing Gallanis, The Rise of Modern Evidence Law, 84 Iowa L. Rev. 499, 516-550 (1999))).


[132] The upshot is that the majority fails to achieve its basic objective. It cannot show that the common law insisted upon a showing that a defendant's purpose or motive in killing a victim was to prevent the victim from testifying. At the least its authority is consistent with my own view, that the prosecution in such a case need show no more than intent (based on knowledge) to do so. And the most the majority might show is that the common law was not clear on the point.


[133] IV.


[134] A.


[135] The majority makes three arguments in response. First, it says that I am wrong about unconfronted statements at common law. According to the majority, when courts found wrongful procurement, they admitted a defendant's statements without regard to whether they were confronted. See ante, at 15-19. That being so, the majority's argument goes, one must wonder why no one argued for admissibility under the forfeiture rule in, say, Woodcock or Dingler. See ante, at 7-11. The reason, the majority concludes, is that the forfeiture rule would not have helped secure admission of the (unconfronted) prior statements in those cases, because the forfeiture rule applied only where the defendant purposely got rid of the witness. See ante, at 7. But the majority's house of cards has no foundation; it is built on what is at most common-law silence on the subject. The cases it cites tell us next to nothing about admission of unconfronted statements.


[136] Fenwick's Case, see ante, at 16 n. 3, for example, was a parliamentary attainder proceeding; Parliament voted to admit unconfronted statements but it is not clear what arguments for admission Parliament relied upon. See generally 13 How. St. Tr. 537. Hence it is not clear that Parliament admitted unconfronted statements pursuant to a forfeiture theory. In fact, the forfeiture rule in a felony case was described in Fenwick's Case as applying where the witness "hath given information against [the defendant] to a proper magistrate," id., at 594 (remarks of Lovel), i.e., a magistrate who normally would have had the defendant before him as well.


[137] Harrison's Case, see ante, at 15-16, did admit an unconfronted statement, but it was a statement made before a coroner. See 12 How. St. Tr., at 852. Coroner's statements seem to have had special status that may sometimes have permitted the admission of prior unconfronted testimonial statements despite lack of cross-examination. But, if so, that special status failed to survive the Atlantic voyage. See Crawford, 541 U. S., at 47, n. 2 (early American authorities "flatly rejected any special status for coroner statements").


[138] The American case upon which the majority primarily relies, Rex v. Barber, 1 Root 76 (Conn. Super. Ct. 1775), see ante, at 16, consists of three sentences that refer to "[o]ne White, who had testified before the justice and before the grand-jury against Barber." 1 Root, at 76. White was "sent away" at Barber's "instigation" and the "court admitted witnesses to relate what White had before testified." Ibid. I cannot tell from the case whether White's statement was made before a grand jury or was taken before a justice where cross-examination would have been possible. At least some commentators seem to think the latter. See W. Best, The Principles of the Law of Evidence 467, 473, n. (e) (American ed. 1883) (listing Barber as a case "of preliminary investigation before a magistrate" where "evidence ha[d] been admitted, there having been a right of cross-examination"); 2 Bishop, §§1194-1197, at 1020-1024 (explaining that where a witness had been "kept out of the way" by the defendant, his prior testimony is admissible "if the defendant had the opportunity to cross-examine the witness against him, not otherwise," and giving as a "[f]amiliar illustration" of this principle cases before a committing magistrate including Barber); J. Stephen, A Digest of the Law of Evidence 161, American Note, General (1902) (citing Barber for the proposition that evidence at a preliminary hearing was admissible "if the party against whom it is offered was present).


[139] The majority's final authority, Williams v. State, 19 Ga. 403 (1856), see ante, at 17, involved the admission of an "examination" taken by "the committing magistrate." Such examinations were ordinarily given in the presence of the defendant. See R. Greene & J. Lumpkin, Georgia Justice 99 (1835) (describing procedures relevant to a magistrate's examination of a witness in Georgia); see also M. M'Kinney, The American Magistrate and Civil Officer 235 (1850) (testimony of the accuser and his witnesses taken by a magistrate "must be done in the presence of the party accused, in order that he may have the advantage of cross-examining the witnesses").


[140] At the same time, every Supreme Court case to apply the forfeiture rule has done so in the context of previously confronted testimony. See, e.g., Reynolds, 98 U. S., at 158 (admitting previously confronted statements pursuant to a forfeiture rule); Diaz, 223 U. S., at 449 (same); Mattox, 156 U. S., at 240 (same); Motes, 178 U. S., at 470-471 (same).


[141] Of course, modern courts have changed the ancient common-law forfeiture rule -- in my view, for the better. They now admit unconfronted prior testimonial statements pursuant to such a rule. See, e.g., United States v. Carlson, 547 F. 2d 1346, 1357-1360 (CA8 1976) (the earliest case to do so); United States v. Mastrangelo, 693 F. 2d 269 (CA2 1982); United States v. Rouco, 765 F. 2d 983 (CA11 1985); see also Davis, 547 U. S., at 834. But, as the dates of these cases indicate, the admission of unconfronted statements under a forfeiture exception is a fairly recent evidentiary development. The majority evidently finds this elephant of a change acceptable -- as do I. Without it, there would be no meaningful modern-day forfeiture exception. Why then does the majority strain so hard at what, comparatively speaking, is a gnat (and a nonexistent gnat at that)?


[142] In sum, I have tried to show the weakness of the foundation upon which the majority erects its claim that the common law applied the forfeiture rule only where it was a defendant's purpose or motive (not his intent based on knowledge) to keep the witness away. The majority says that "the most natural reading of the language used at common law" supports its view. Ante, at 14. As I have shown, that is not so. See supra, at 3-4. The majority next points to "the absence of common-law cases admitting prior statements on a forfeiture theory" where the defendant prevented, but did not purposely prevent, the witness from testifying. Ante, at 14. As I have pointed out, this absence proves nothing because (1) the relevant circumstances (there has been a prior testimonial statement, the witness is now unavailable due to defendant's actions, and the defendant knows that the witness will not testify but that is not his purpose) are likely to arise almost exclusively when the defendant murders the witness, and (2) a forfeiture theory was ordinarily redundant or useless in such cases. See supra, at 14-15. The majority, describing its next argument as "conclusive," points to "innumerable cases" where courts did not admit "unconfronted inculpatory testimony by murder victims" against a defendant. Ante, at 14-15. The majority is referring to those dying declaration cases in which unconfronted statements were not admitted because the witness was not sufficiently aware of his impending death when he made them. See ante, at 9. But as I have explained, the forfeiture rule would have been unhelpful under these circumstances. See supra, at 18. Finally, the majority points to a "subsequent history" in the United States where questions about the defendant's state of mind did not begin to arise until the 1980's. Ante, at 14. I have explained why that history does not support its view. See supra, at 22. Having only begun to swallow the elephant in the late 1970's and early 1980's, it makes sense that courts would not have previously considered the gnat.


[143] While I have set forth what I believe is the better reading of the common-law cases, I recognize that different modern judges might read that handful of cases differently. All the more reason then not to reach firm conclusions about the precise metes and bounds of a contemporary forfeiture exception by trying to guess the state of mind of 18th century lawyers when they decided not to make a particular argument, i.e., forfeiture, in a reported case. That is why, in Part II, supra, I have set forth other, more conclusive reasons in support of the way I would read the exception.


[144] Second, the majority objects to that aspect of the forfeiture rule that requires a judge to make a preliminary assessment of the defendant's wrongful act in order to determine whether the relevant statements should be admitted. See ante, at 23. But any forfeiture rule requires a judge to determine as a preliminary matter that the defendant's own wrongdoing caused the witness to be absent. Regardless, preliminary judicial determinations are not, as the majority puts it "akin . . . to `dispensing with jury trial.' " Ante, at 11. (quoting Crawford, 541 U. S., at 62). We have previously said that courts may make preliminary findings of this kind. For example, where a defendant is charged with conspiracy, the judge is permitted to make an initial finding that the conspiracy existed so as to determine whether a statement can be admitted under the co-conspirator exception to the hearsay rule. See Bourjaily v. United States, 483 U. S. 171, 175-176 (1987) ("The inquiry made by a court concerned with these matters is not whether the proponent of the evidence wins or loses his case on the merits, but whether the evidentiary Rules have been satisfied"). And even the plurality is forced to admit that it is "sometimes" necessary for "judge . . . to inquire into guilt of the charged offense in order to make a preliminary evidentiary ruling." Ante, at 21, n. 6.


[145] Third, the plurality seems to believe that an ordinary intent requirement, rather than a purpose or motive requirement, would let in too much out-of-court testimonial evidence. See ante, at 20-22. Ordinarily a murderer would know that his victim would not be able to testify at a murder trial. Hence all of the victim's prior testimonial statements would come in at trial for use against a defendant. To insist upon a showing of purpose rather than plain (knowledge-based) intent would limit the amount of unconfronted evidence that the jury might hear.


[146] This argument fails to account for the fact that overcoming a constitutional objection does not guarantee admissibility of the testimonial evidence at issue. The States will still control admissibility through hearsay rules and exceptions. And why not? What important constitutional interest is served, say, where a prior testimonial statement of a victim of abuse is at issue, by a constitutional rule that lets that evidence in if the defendant killed a victim purposely to stop her from testifying, but keeps it out if the defendant killed her knowing she could no longer testify while acting out of anger or revenge?


[147] B.


[148] Even the majority appears to recognize the problem with its "purpose" requirement, for it ends its opinion by creating a kind of presumption that will transform purpose into knowledge-based intent -- at least where domestic violence is at issue; and that is the area where the problem is most likely to arise.


[149] Justice Souter, concurring in part, says:


[150] "[The requisite] element of intention would normally be satisfied by the intent inferred on the part of the domestic abuser in the classic abusive relationship, which is meant to isolate the victim from outside help, including the aid of law enforcement and the judicial process. If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say in a fit of anger." Ante, at 3.


[151] This seems to say that a showing of domestic abuse is sufficient to call into play the protection of the forfeiture rule in a trial for murder of the domestic abuse victim. Doing so when, in fact, the abuser may have had other matters in mind apart from preventing the witness from testifying, is in effect not to insist upon a showing of "purpose." Consequently, I agree with this formulation, though I would apply a simple intent requirement across the board.


[152] V.


[153] The rule of forfeiture is implicated primarily where domestic abuse is at issue. In such a case, a murder victim may have previously given a testimonial statement, say, to the police, about an abuser's attacks; and introduction of that statement may be at issue in a later trial for the abuser's subsequent murder of the victim. This is not an uncommon occurrence. Each year, domestic violence results in more than 1,500 deaths and more than 2 million injuries; it accounts for a substantial portion of all homicides; it typically involves a history of repeated violence; and it is difficult to prove in court because the victim is generally reluctant or unable to testify. See Bureau of Justice Statistics, Homicide trends in the U. S., http://www.ojp.usdoj.gov/bjs/homicide/tables/relationshiptab.htm (as visited June 23, 2008, and available in Clerk of Court's case file); Dept. of Health and Human Services, Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, Costs of Intimate Partner Violence Against Women in the United States 19 (2003); N. Websdale, Understanding Domestic Homicide 207 (1999); Lininger, Prosecuting Batterers after Crawford, 91 Va. L. Rev. 747, 751, 768-769 (2005).


[154] Regardless of a defendant's purpose, threats, further violence, and ultimately murder, can stop victims from testifying. See id., at 769 (citing finding that batterers threaten retaliatory violence in as many as half of all cases, and 30 percent of batterers assault their victims again during the prosecution). A constitutional evidentiary requirement that insists upon a showing of purpose (rather than simply intent or probabilistic knowledge) may permit the domestic partner who made the threats, caused the violence, or even murdered the victim to avoid conviction for earlier crimes by taking advantage of later ones.In Davis, we recognized that "domestic violence" cases are "notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial." 547 U. S., at 832-833. We noted the concern that "[w]hen this occurs, the Confrontation Clause gives the criminal a windfall." Id., at 833. And we replied to that concern by stating that "one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation." Ibid. To the extent that it insists upon an additional showing of purpose, the Court breaks the promise implicit in those words and, in doing so, grants the defendant not fair treatment, but a windfall. I can find no history, no underlying purpose, no administrative consideration, and no constitutional principle that requires this result.


[155] Insofar as Justice Souter's rule in effect presumes "purpose" based on no more than evidence of a history of domestic violence, I agree with it. In all other respects, however, I must respectfully dissent.



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Opinion Footnotes

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[156] *fn1 The dissent asserts that a defendant could have "contrived, i.e., devised or planned ... to murder a victim" without the purpose of keeping the victim away from trial. See post, at 12 (opinion of Breyer, J.). But that would not be contriving to keep the witness away. The dissent further suggests that these authorities are irrelevant because "the relevant phrase" in Lord Morley's Case itself is " `by means or procurement' " of the defendant and means "may, or may not, refer to an absence that the defendant desired, as compared to an absence that the defendant caused." Post, at 12-13 (emphasis added). But the authorities we cited resolve this ambiguity in favor of purpose by substituting for the "means or procurement" of Lord Morley's Case either "contrivance" or "means and contrivance." (Emphasis added.)


[157] *fn2 Only a single state evidentiary code appears to contain a forfeiture rule broader than our holding in this case (and in Crawford) allow. Seven of the 12 States that recognize wrongdoing as grounds for forfeiting objection to out-of-court statements duplicate the language of the federal forfeiture provision that requires purpose, see Del. Rule Evid. 804(b)(6) (2001); Ky. Rule Evid. 804(b)(5) (2004); N. D. Rule Evid. 804(b)(6) (2007); Pa. Rule Evid. 804(b)(6) (2005); Vt. Rule Evid. 804(b)(6) (2004); see also Tenn. Rule Evid. 804(b)(6) (2003) (identical except that it excludes mention of acquiescence); Mich. Rule Evid. 804(b)(6) (2008) (substitutes "engaged in or encouraged" for "engaged or acquiesced in"). Two others require "purpose" by their terms. Ohio Rule Evid. 804(B)(6) (2008); Cal. Evid. Code Ann. §1350 (West Supp. 2008). Two of the three remaining forfeiture provisions require the defendant to have "procured" the unavailability of a witness, Haw. Rule 804(b)(7) (2007); Md. Cts. & Jud. Proc. Code Ann. §10-901 (Lexis 2006) -- which, as we have discussed, is a term traditionally used in the forfeiture context to require intent. Maryland's rule has thus been described as "requir[ing] that the judge must find that [the] wrongdoing or misconduct was undertaken with the intent of making the witness unavailable to testify." 6A L. McLain, Maryland Evidence, State and Federal §804(6):1, p. 230 (West Supp. 2007-2008). These rules cast more than a little doubt on the dissent's assertion that the historic forfeiture rule creates intolerable problems of proof. The lone forfeiture exception whose text reaches more broadly than the rule we adopt is an Oregon rule adopted in 2005. See 2005 Ore. Laws p. 1232, Ch. 458 (S. B. 287).


[158] *fn3 Wrongful procurement was also described as grounds for admitting unconfronted testimony in Fenwick's Case, 13 How. St. Tr. 537 (H. C. 1696), a parliamentary attainder proceeding. Although many speakers argued for admission of unconfronted testimony simply because Parliament was not bound by the rules of evidence for felony cases, see Crawford v. Washington, 541 U. S. 36, 46 (2004), it was also argued that witness tampering could be a basis for admitting unconfronted statements even in common-law felony trials: "[W]here persons do stand upon their lives, accused for crimes, if it appears to the court that the prisoner hath, by fraudulent and indirect means, procured a person that hath given information against him to a proper magistrate, to withdraw himself, so that he cannot give evidence as regularly as they used to do; in that case his information hath been read; which, I suppose, with humble submission, is this case . . . ." 13 How. St. Tr., at 594 (remarks of Lovel). The dissent responds that in most circumstances in which a witness had given information against a defendant before " `a proper magistrate,' " the testimony would have been confronted. Post, at 20. Perhaps so, but the speaker was arguing that the wrongful-procurement exception applied in "this case" -- Fenwick's Case, in which the testimony was unconfronted, see 13 How. St. Tr., at 591-592.


[159] *fn4 Three commentators writing more than a century after the Barber decision, said, without explanation, that they understood the case to have admitted only confronted testimony at a preliminary examination. W. Best, The Principles of the Law of Evidence 473, n. (e) (American ed. 1883); J. Stephen, A Digest of the Law of Evidence 161 (1902); 2 J. Bishop, New Criminal Procedure §1197, p. 1024 (2d ed. 1913). We know of no basis for that understanding. The report of the case does not limit the admitted testimony to statements that were confronted.


[160] *fn5 The dissent attempts to reconcile its approach with Crawford by saying the wrongful-procurement cases used language "broad enough" to reach every case in which a defendant committed wrongful acts that caused the absence of a victim, and that there was therefore an "`exception" "established at the time of the founding,' " post, at 3, reaching all such misconduct. But an exception to what? The dissent contends that it was not an exception to confrontation. Were that true, it would be the end of the Crawford inquiry.


[161] *fn6 The dissent identifies one circumstance -- and only one -- in which a court may determine the outcome of a case before it goes to the jury: A judge may determine the existence of a conspiracy in order to make incriminating statements of co-conspirators admissible against the defendant under Federal Rule of Evidence 801(d)(2)(E). Bourjaily v. United States, 483 U. S. 171 (1987), held that admission of the evidence did not violate the Confrontation Clause because it "falls within a firmly rooted hearsay exception" -- the test under Ohio v. Roberts, 448 U. S. 56, 66 (1980), the case that Crawford overruled. In fact it did not violate the Confrontation Clause for the quite different reason that it was not (as an incriminating statement in furtherance of the conspiracy would probably never be) testimonial. The co-conspirator hearsay rule does not pertain to a constitutional right and is in fact quite unusual.
We do not say, of course, that a judge can never be allowed to inquire into guilt of the charged offense in order to make a preliminary evidentiary ruling. That must sometimes be done under the forfeiture rule that we adopt -- when, for example, the defendant is on trial for murdering a witness in order to prevent his testimony. But the exception to ordinary practice that we support is (1) needed to protect the integrity of court proceedings, (2) based upon longstanding precedent, and (3) much less expansive than the exception proposed by the dissent.


[162] *fn7 The dissent also implies that we should not adhere to Crawford because the confrontation guarantee limits the evidence a State may introduce without limiting the evidence a defendant may introduce. See post, at 9. That is true. Just as it is true that the State cannot decline to provide testimony harmful to its case or complain of the lack of a speedy trial. The asymmetrical nature of the Constitution's criminal-trial guarantees is not an anomaly, but the intentional conferring of privileges designed to prevent criminal conviction of the innocent. The State is at no risk of that.

Rothgery v. Gillespie County, Texas, 128 S.Ct. 2578, 171 L.Ed.2d 366 (U.S. 06/23/2008)

[1] SUPREME COURT OF THE UNITED STATES


[2] No. 07-440


[3] 128 S.Ct. 2578, 171 L.Ed.2d 366, 2008 Daily Journal D.A.R. 9324, 76 USLW 4520, 08 Cal. Daily Op. Serv. 7771,

[4] June 23, 2008


[5] WALTER A. ROTHGERY, PETITIONER
v.
GILLESPIE COUNTY, TEXAS


[6] SYLLABUS BY THE COURT


[7] OCTOBER TERM, 2007


[8] Argued March 17, 2008


[9] Texas police relied on erroneous information that petitioner Rothgery had a previous felony conviction to arrest him as a felon in possession of a firearm. The officers brought Rothgery before a magistrate judge, as required by state law, for a so-called "article 15.17 hearing," at which the Fourth Amendment probable-cause determination was made, bail was set, and Rothgery was formally apprised of the accusation against him. After the hearing, the magistrate judge committed Rothgery to jail, and he was released after posting a surety bond. Rothgery had no money for a lawyer and made several unheeded oral and written requests for appointed counsel. He was subsequently indicted and rearrested, his bail was increased, and he was jailed when he could not post the bail. Subsequently, Rothgery was assigned a lawyer, who assembled the paperwork that prompted the indictment's dismissal.


[10] Rothgery then brought this 42 U. S. C. §1983 action against respondent County, claiming that if it had provided him a lawyer within a reasonable time after the article 15.17 hearing, he would not have been indicted, rearrested, or jailed. He asserts that the County's unwritten policy of denying appointed counsel to indigent defendants out on bond until an indictment is entered violates his Sixth Amendment right to counsel. The District Court granted the County summary judgment, and the Fifth Circuit affirmed, considering itself bound by Circuit precedent to the effect that the right to counsel did not attach at the article 15.17 hearing because the relevant prosecutors were not aware of, or involved in, Rothgery's arrest or appearance at the hearing, and there was no indication that the officer at Rothgery's appearance had any power to commit the State to prosecute without a prosecutor's knowledge or involvement.


[11] Held: A criminal defendant's initial appearance before a magistrate judge, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Attachment does not also require that a prosecutor (as distinct from a police officer) be aware of that initial proceeding or involved in its conduct. Pp. 5-20.


[12] (a) Texas's article 15.17 hearing marks the point of attachment, with the consequent state obligation to appoint counsel within a reasonable time once a request for assistance is made. This Court has twice held that the right to counsel attaches at the initial appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty. See Michigan v. Jackson, 475 U. S. 625, 629, n. 3; Brewer v. Williams, 430 U. S. 387, 398-399. Rothgery's hearing was an initial appearance: he was taken before a magistrate judge, informed of the formal accusation against him, and sent to jail until he posted bail. Thus, Brewer and Jackson control. Pp. 5-10.


[13] (b) In McNeil v. Wisconsin, 501 U. S. 171, 180-181, the Court reaffirmed that "[t]he Sixth Amendment right to counsel attaches at the first formal proceeding against an accused," and observed that "in most States ... free counsel is made available at that time." That observation remains true today. The overwhelming consensus practice conforms to the rule that the first formal proceeding is the point of attachment. The Court is advised without contradiction that not only the Federal Government, including the District of Columbia, but 43 States take the first step toward appointing counsel before, at, or just after initial appearance. To the extent the remaining 7 States have been denying appointed counsel at that time, they are a distinct minority. Pp. 10-12.


[14] (c) Neither the Fifth Circuit nor the County offers an acceptable justification for the minority practice. Pp. 12-19.


[15] (1) The Fifth Circuit found the determining factor to be that no prosecutor was aware of Rothgery's article 15.17 hearing or involved in it. This prosecutorial awareness standard is wrong. Neither Brewer nor Jackson said a word about the prosecutor's involvement as a relevant fact, much less a controlling one. Those cases left no room for the factual enquiry the Circuit would require, and with good reason: an attachment rule that turned on determining the moment of a prosecutor's first involvement would be "wholly unworkable and impossible to administer," Escobedo v. Illinois, 378 U. S. 478, 496. The Fifth Circuit derived its rule from the statement, in Kirby v. Illinois, 406 U. S. 682, 689, that the right to counsel attaches when the government has "committed itself to prosecute." But what counts as such a commitment is an issue of federal law unaffected by allocations of power among state officials under state law, cf. Moran v. Burbine, 475 U. S. 412, 429, n. 3, and under the federal standard, an accusation filed with a judicial officer is sufficiently formal, and the government's commitment to prosecute it sufficiently concrete, when the accusation prompts arraignment and restrictions on the accused's liberty, see, e.g., Kirby, supra, at 689. Pp. 12-15.


[16] (2) The County relies on United States v. Gouveia, 467 U. S. 180, in arguing that in considering the initial appearance's significance, this Court must ignore prejudice to a defendant's pretrial liberty, it being the concern, not of the right to counsel, but of the speedy-trial right and the Fourth Amendment. But the County's suggestion that Fifth Amendment protections at the early stage obviate attachment of the Sixth Amendment right at initial appearance was refuted by Jackson, 475 U. S., at 629, n. 3. And since the Court is not asked to extend the right to counsel to a point earlier than formal judicial proceedings (as in Gouveia), but to defer it to those proceedings in which a prosecutor is involved, Gouveia does not speak to the question at issue. Pp. 15-17.


[17] (3) The County's third tack gets it no further. Stipulating that the properly formulated test is whether the State has objectively committed itself to prosecute, the County says that prosecutorial involvement is but one form of evidence of such commitment and that others include (1) the filing of formal charges or the holding of an adversarial preliminary hearing to determine probable cause to file such charges, and (2) a court appearance following arrest on an indictment. Either version runs up against Brewer and Jackson: an initial appearance following a charge signifies a sufficient commitment to prosecute regardless of a prosecutor's participation, indictment, information, or what the County calls a "formal" complaint. The County's assertions that Brewer and Jackson are "vague" and thus of limited, if any, precedential value are wrong. Although the Court in those cases saw no need for lengthy disquisitions on the initial appearance's significance, that was because it found the attachment issue an easy one. See, e.g., Brewer, supra, at 399. Pp. 17-19.


[18] 491 F. 3d 293, vacated and remanded.


[19] Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Ginsburg, Breyer, and Alito, JJ., joined. Roberts, C. J., filed a concurring opinion, in which Scalia, J., joined. Alito, J., filed a concurring opinion, in which Roberts, C. J., and Scalia, J., joined. Thomas, J., filed a dissenting opinion.


[20] On Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Court Below: 491 F. 3d 293


[21] Danielle Spinelli argued the cause for petitioner. With her on the briefs were Seth P. Waxman, Craig Goldblatt, Andrea Marsh, and William Christian.


[22] Gregory S. Coleman argued the cause for respondent. With him on the brief were Edward C. Dawson, Marc S. Tabolsky, and Charles S. Frigerio.


[23] Briefs of amici curiae urging reversal were filed for the American Bar Association by William H. Neukom and Jeffrey T. Green; for the Brennan Center for Justice et al. by Anthony J. Franze and Son B. Nguyen; for the National Association of Criminal Defense Lawyers by Ian Heath Gershengorn and Pamela Harris; and for Twenty-four Professors of Law by Christopher J. Wright and Timothy J. Simeone.


[24] Briefs of amici curiae urging affirmance were filed for the State of Texas et al. by Greg Abbott, Attorney General of Texas, R. Ted Cruz, Solicitor General, Kent C. Sullivan, First Assistant Attorney General, Thomas M. Lipovski, Danica L. Milios, and Susanna G. Dokupil, Assistant Solicitors General, and Eric J. R. Nichols, Deputy Attorney General, by Roberto J. Sánchez-Ramos, Secretary of Justice of Puerto Rico, and by the Attorneys General for their respective States as follows: Troy King of Alabama, John W. Suthers of Colorado, Mark J. Bennett of Hawaii, Tom Miller of Iowa, G. Steven Rowe of Maine, Jim Hood of Mississippi, Mike McGrath of Montana, Catherine Cortez Masto of Nevada, Kelly A. Ayotte of New Hampshire, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Henry D. McMaster of South Carolina, Lawrence E. Long of South Dakota, Robert E. Cooper, Jr., of Tennessee, Mark L. Shurtleff of Utah, and Robert F. McDonnell of Virginia; and for the Texas Association of Counties et al. by Alan Keith Curry.


[25] The opinion of the court was delivered by: Justice Souter


[26] Opinion of the Court


[27] 554 U. S. ____ (2008)


[28] This Court has held that the right to counsel guaranteed by the Sixth Amendment applies at the first appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty. See Brewer v. Williams, 430 U. S. 387, 398-399 (1977); Michigan v. Jackson, 475 U. S. 625, 629, n. 3 (1986). The question here is whether attachment of the right also requires that a public prosecutor (as distinct from a police officer) be aware of that initial proceeding or involved in its conduct. We hold that it does not.


[29] I.


[30] A.


[31] Although petitioner Walter Rothgery has never been convicted of a felony,*fn1 a criminal background check disclosed an erroneous record that he had been, and on July 15, 2002, Texas police officers relied on this record to arrest him as a felon in possession of a firearm. The officers lacked a warrant, and so promptly brought Rothgery before a magistrate judge, as required by Tex. Crim. Proc. Code Ann., Art. 14.06(a) (West Supp. 2007).*fn2 Texas law has no formal label for this initial appearance before a magistrate, see 41 G. Dix & R. Dawson, Texas Practice Series: Criminal Practice and Procedure §15.01 (2d ed. 2001), which is sometimes called the "article 15.17 hearing," see, e.g., Kirk v. State, 199 S. W. 3d 467, 476-477 (Tex. App. 2006); it combines the Fourth Amendment's required probable-cause determination*fn3 with the setting of bail, and is the point at which the arrestee is formally apprised of the accusation against him, see Tex. Crim. Proc. Code Ann., Art. 15.17(a).


[32] Rothgery's article 15.17 hearing followed routine. The arresting officer submitted a sworn "Affidavit Of Probable Cause" that described the facts supporting the arrest and "charge[d] that ... Rothgery ... commit[ted] the offense of unlawful possession of a firearm by a felon -- 3rd degree felony [Tex. Penal Code Ann. §46.04]," App. to Pet. for Cert. 33a. After reviewing the affidavit, the magistrate judge "determined that probable cause existed for the arrest." Id., at 34a. The magistrate judge informed Rothgery of the accusation, set his bail at $5,000, and committed him to jail, from which he was released after posting a surety bond. The bond, which the Gillespie County deputy sheriff signed, stated that "Rothgery stands charged by complaint duly filed ... with the offense of a ... felony, to wit: Unlawful Possession of a Firearm by a Felon." Id., at 39a. The release was conditioned on the defendant's personal appearance in trial court "for any and all subsequent proceedings that may be had relative to the said charge in the course of the criminal action based on said charge." Ibid.


[33] Rothgery had no money for a lawyer and made several oral and written requests for appointed counsel,*fn4 which went unheeded.*fn5 The following January, he was indicted by a Texas grand jury for unlawful possession of a firearm by a felon, resulting in rearrest the next day, and an order increasing bail to $15,000. When he could not post it, he was put in jail and remained there for three weeks.


[34] On January 23, 2003, six months after the article 15.17 hearing, Rothgery was finally assigned a lawyer, who promptly obtained a bail reduction (so Rothgery could get out of jail), and assembled the paperwork confirming that Rothgery had never been convicted of a felony. Counsel relayed this information to the district attorney, who in turn filed a motion to dismiss the indictment, which was granted.


[35] B.


[36] Rothgery then brought this 42 U. S. C. §1983 action against respondent Gillespie County, claiming that if the County had provided a lawyer within a reasonable time after the article 15.17 hearing, he would not have been indicted, rearrested, or jailed for three weeks. The County's failure is said to be owing to its unwritten policy of denying appointed counsel to indigent defendants out on bond until at least the entry of an information or indictment.*fn6 Rothgery sees this policy as violating his Sixth Amendment right to counsel.*fn7


[37] The District Court granted summary judgment to the County, see 413 F. Supp. 2d 806, 807 (WD Tex. 2006), and the Court of Appeals affirmed, see 491 F. 3d 293, 294 (CA5 2007). The Court of Appeals felt itself bound by Circuit precedent, see id., at 296-297 (citing Lomax v. Alabama, 629 F. 2d 413 (CA5 1980), and McGee v. Estelle, 625 F. 2d 1206 (CA5 1980)), to the effect that the Sixth Amendment right to counsel did not attach at the article 15.17 hearing, because "the relevant prosecutors were not aware of or involved in Rothgery's arrest or appearance before the magistrate on July 16, 2002," and "[t]here is also no indication that the officer who filed the probable cause affidavit at Rothgery's appearance had any power to commit the state to prosecute without the knowledge or involvement of a prosecutor," 491 F. 3d, at 297.


[38] We granted certiorari, 552 U. S. ___ (2007), and now vacate and remand.


[39] II.


[40] The Sixth Amendment right of the "accused" to assistance of counsel in "all criminal prosecutions"*fn8 is limited by its terms: "it does not attach until a prosecution is commenced." McNeil v. Wisconsin, 501 U. S. 171, 175 (1991); see also Moran v. Burbine, 475 U. S. 412, 430 (1986). We have, for purposes of the right to counsel, pegged commencement to " `the initiation of adversary judicial criminal proceedings -- whether by way of formal charge, preliminary hearing, indictment, information, or arraignment,' " United States v. Gouveia, 467 U. S. 180, 188 (1984) (quoting Kirby v. Illinois, 406 U. S. 682, 689 (1972) (plurality opinion)). The rule is not "mere formalism," but a recognition of the point at which "the government has committed itself to prosecute," "the adverse positions of government and defendant have solidified," and the accused "finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law." Kirby, supra, at 689. The issue is whether Texas's article 15.17 hearing marks that point, with the consequent state obligation to appoint counsel within a reasonable time once a request for assistance is made.


[41] A.


[42] When the Court of Appeals said no, because no prosecutor was aware of Rothgery's article 15.17 hearing or involved in it, the court effectively focused not on the start of adversarial judicial proceedings, but on the activities and knowledge of a particular state official who was presumably otherwise occupied. This was error.


[43] As the Court of Appeals recognized, see 491 F. 3d, at 298, we have twice held that the right to counsel attaches at the initial appearance before a judicial officer, see Jackson, 475 U. S., at 629, n. 3; Brewer 430 U. S., at 399. This first time before a court, also known as the " `preliminary arraignment' " or " `arraignment on the complaint,' " see 1 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §1.4(g), p. 135 (3d ed. 2007), is generally the hearing at which "the magistrate informs the defendant of the charge in the complaint, and of various rights in further proceedings," and "determine[s] the conditions for pretrial release," ibid. Texas's article 15.17 hearing is an initial appearance: Rothgery was taken before a magistrate judge, informed of the formal accusation against him, and sent to jail until he posted bail. See supra, at 2-3.*fn9 Brewer and Jackson control.


[44] The Brewer defendant surrendered to the police after a warrant was out for his arrest on a charge of abduction. He was then "arraigned before a judge ... on the outstanding arrest warrant," and at the arraignment, "[t]he judge advised him of his Miranda [v. Arizona, 384 U. S. 436 (1966)] rights and committed him to jail." Brewer, 430 U. S., at 391. After this preliminary arraignment, and before an indictment on the abduction charge had been handed up, police elicited incriminating admissions that ultimately led to an indictment for first-degree murder. Because neither of the defendant's lawyers had been present when the statements were obtained, the Court found it "clear" that the defendant "was deprived of ... the right to the assistance of counsel." Id., at 397-398. In plain terms, the Court said that "[t]here can be no doubt in the present case that judicial proceedings had been initiated" before the defendant made the incriminating statements. Id., at 399. Although it noted that the State had conceded the issue, the Court nevertheless held that the defendant's right had clearly attached for the reason that "[a] warrant had been issued for his arrest, he had been arraigned on that warrant before a judge in a ... courtroom, and he had been committed by the court to confinement in jail." Ibid.*fn10


[45] In Jackson, the Court was asked to revisit the question whether the right to counsel attaches at the initial appearance, and we had no more trouble answering it the second time around. Jackson was actually two consolidated cases, and although the State conceded that respondent Jackson's arraignment "represented the initiation of formal legal proceedings," 475 U. S., at 629, n. 3, it argued that the same was not true for respondent Bladel. In briefing us, the State explained that "[i]n Michigan, any person charged with a felony, after arrest, must be brought before a Magistrate or District Court Judge without unnecessary delay for his initial arraignment." Brief for Petitioner in Michigan v. Bladel, O. T. 1985, No. 84-1539, p. 24. The State noted that "[w]hile [Bladel] had been arraigned ... , there is also a second arraignment in Michigan procedure ... , at which time defendant has his first opportunity to enter a plea in a court with jurisdiction to render a final decision in a felony case." Id., at 25. The State contended that only the latter proceeding, the "arraignment on the information or indictment," Y. Kamisar, W. LaFave, J. Israel, & N. King, Modern Criminal Procedure 28 (9th ed. 1999) (emphasis deleted), should trigger the Sixth Amendment right.*fn11 "The defendant's rights," the State insisted, "are fully protected in the context of custodial interrogation between initial arraignment and preliminary examination by the Fifth Amendment right to counsel" and by the preliminary examination itself.*fn12 See Bladel Brief, supra, at 26.


[46] We flatly rejected the distinction between initial arraignment and arraignment on the indictment, the State's argument being "untenable" in light of the "clear language in our decisions about the significance of arraignment." Jackson, supra, at 629, n. 3. The conclusion was driven by the same considerations the Court had endorsed in Brewer: by the time a defendant is brought before a judicial officer, is informed of a formally lodged accusation, and has restrictions imposed on his liberty in aid of the prosecution, the State's relationship with the defendant has become solidly adversarial. And that is just as true when the proceeding comes before the indictment (in the case of the initial arraignment on a formal complaint) as when it comes after it (at an arraignment on an indictment).*fn13 See Coleman v. Alabama, 399 U. S. 1, 8 (1970) (plurality opinion) (right to counsel applies at preindictment preliminary hearing at which the "sole purposes ... are to determine whether there is sufficient evidence against the accused to warrant presenting his case to the grand jury, and, if so, to fix bail if the offense is bailable"); cf. Owen v. State, 596 So. 2d 985, 989, n. 7 (Fla. 1992) ("The term `arraign' simply means to be called before a court officer and charged with a crime").


[47] B.


[48] Our latest look at the significance of the initial appearance was McNeil, 501 U. S. 171, which is no help to the County. In McNeil the State had conceded that the right to counsel attached at the first appearance before a county court commissioner, who set bail and scheduled a preliminary examination. See id., at 173; see also id., at 175 ("It is undisputed, and we accept for purposes of the present case, that at the time petitioner provided the incriminating statements at issue, his Sixth Amendment right had attached ..."). But we did more than just accept the concession; we went on to reaffirm that "[t]he Sixth Amendment right to counsel attaches at the first formal proceeding against an accused," and observed that "in most States, at least with respect to serious offenses, free counsel is made available at that time ... ." Id., at 180-181.


[49] That was 17 years ago, the same is true today, and the overwhelming consensus practice conforms to the rule that the first formal proceeding is the point of attachment. We are advised without contradiction that not only the Federal Government, including the District of Columbia, but 43 States take the first step toward appointing counsel "before, at, or just after initial appearance." App. to Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 1a; see id., at 1a-7a (listing jurisdictions);*fn14 see also Brief for American Bar Association as Amicus Curiae 5-8 (describing the ABA's position for the past 40 years that counsel should be appointed "certainly no later than the accused's initial appearance before a judicial officer"). And even in the remaining 7 States (Alabama, Colorado, Kansas, Oklahoma, South Carolina, Texas, and Virginia) the practice is not free of ambiguity. See App. to Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 5a-7a (suggesting that the practice in Alabama, Kansas, South Carolina, and Virginia might actually be consistent with the majority approach); see also n. 7, supra. In any event, to the extent these States have been denying appointed counsel on the heels of the first appearance, they are a distinct minority.


[50] C.


[51] The only question is whether there may be some arguable justification for the minority practice. Neither the Court of Appeals in its opinion, nor the County in its briefing to us, has offered an acceptable one.


[52] 1.


[53] The Court of Appeals thought Brewer and Jackson could be distinguished on the ground that "neither case addressed the issue of prosecutorial involvement," and the cases were thus "neutral on the point," 491 F. 3d, at 298. With Brewer and Jackson distinguished, the court then found itself bound by Circuit precedent that " `an adversary criminal proceeding has not begun in a case where the prosecution officers are unaware of either the charges or the arrest.' " See 491 F. 3d, at 297 (quoting McGee v. Estelle, 625 F. 3d 1206, 1208 (CA5 1980)). Under this standard of prosecutorial awareness, attachment depends not on whether a first appearance has begun adversary judicial proceedings, but on whether the prosecutor had a hand in starting it. That standard is wrong.


[54] Neither Brewer nor Jackson said a word about the prosecutor's involvement as a relevant fact, much less a controlling one. Those cases left no room for the factual enquiry the Court of Appeals would require, and with good reason: an attachment rule that turned on determining the moment of a prosecutor's first involvement would be "wholly unworkable and impossible to administer," Escobedo v. Illinois, 378 U. S. 478, 496 (1964) (White, J., dissenting), guaranteed to bog the courts down in prying enquiries into the communication between police (who are routinely present at defendants' first appearances) and the State's attorneys (who are not), see Brief for Petitioner 39-41. And it would have the practical effect of resting attachment on such absurd distinctions as the day of the month an arrest is made, see Brief for Brennan Center of Justice et al. as Amici Curiae 10 (explaining that "jails may be required to report their arrestees to county prosecutor offices on particular days" (citing Tex. Crim. Proc. Code Ann., Art. 2.19)); or "the sophistication, or lack thereof, of a jurisdiction's computer intake system," Brief for Brennan Center, supra, at 11; see also id., at 10-12 (noting that only "[s]ome Texas counties ... have computer systems that provide arrest and detention information simultaneously to prosecutors, law enforcement officers, jail personnel, and clerks. Prosecutors in these jurisdictions use the systems to prescreen cases early in the process before an initial appearance" (citing D. Carmichael, M. Gilbert, & M. Voloudakis, Texas A&M U., Public Policy Research Inst., Evaluating the Impact of Direct Electronic Filing in Criminal Cases: Closing the Paper Trap 2-3 (2006), online at http://www.courts.state.tx. us/tfid/pdf/FinalReport7-12-06wackn.pdf (as visited June 19, 2008, and available in Clerk of Court's case file))).


[55] It is not that the Court of Appeals believed that any such regime would be desirable, but it thought originally that its rule was implied by this Court's statement that the right attaches when the government has "committed itself to prosecute." Kirby, 406 U. S., at 689. The Court of Appeals reasoned that because "the decision not to prosecute is the quintessential function of a prosecutor" under Texas law, 491 F. 3d, at 297 (internal quotation marks omitted), the State could not commit itself to prosecution until the prosecutor signaled that it had.


[56] But what counts as a commitment to prosecute is an issue of federal law unaffected by allocations of power among state officials under a State's law, cf. Moran, 475 U. S., at 429, n. 3 ("[T]he type of circumstances that would give rise to the right would certainly have a federal definition"), and under the federal standard, an accusation filed with a judicial officer is sufficiently formal, and the government's commitment to prosecute it sufficiently concrete, when the accusation prompts arraignment and restrictions on the accused's liberty to facilitate the prosecution, see Jackson, 475 U. S., at 629, n. 3; Brewer, 430 U. S., at 399; Kirby, supra, at 689; see also n. 9, supra. From that point on, the defendant is "faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law" that define his capacity and control his actual ability to defend himself against a formal accusation that he is a criminal. Kirby, supra, at 689. By that point, it is too late to wonder whether he is "accused" within the meaning of the Sixth Amendment, and it makes no practical sense to deny it. See Grano, Rhode Island v. Innis: A Need to Reconsider the Constitutional Premises Underlying the Law of Confessions, 17 Am. Crim. L. Rev. 1, 31 (1979) ("[I]t would defy common sense to say that a criminal prosecution has not commenced against a defendant who, perhaps incarcerated and unable to afford judicially imposed bail, awaits preliminary examination on the authority of a charging document filed by the prosecutor, less typically by the police, and approved by a court of law" (internal quotation marks omitted)). All of this is equally true whether the machinery of prosecution was turned on by the local police or the state attorney general. In this case, for example, Rothgery alleges that after the initial appearance, he was "unable to find any employment for wages" because "all of the potential employers he contacted knew or learned of the criminal charge pending against him." Original Complaint in No. 1:04-CV-00456-LY (WD Tex., July 15, 2004), p. 5. One may assume that those potential employers would still have declined to make job offers if advised that the county prosecutor had not filed the complaint.


[57] 2.


[58] The County resists this logic with the argument that in considering the significance of the initial appearance, we must ignore prejudice to a defendant's pretrial liberty, reasoning that it is the concern, not of the right to counsel, but of the speedy-trial right and the Fourth Amendment. See Brief for Respondent 47-51. And it cites Gouveia, 467 U. S. 180, in support of its contention. See Brief for Respondent 49; see also Brief for Texas et al. as Amici Curiae 8-9. We think the County's reliance on Gouveia is misplaced, and its argument mistaken.


[59] The defendants in Gouveia were prison inmates, suspected of murder, who had been placed in an administrative detention unit and denied counsel up until an indictment was filed. Although no formal judicial proceedings had taken place prior to the indictment, see 467 U. S., at 185, the defendants argued that their administrative detention should be treated as an accusation for purposes of the right to counsel because the government was actively investigating the crimes. We recognized that "because an inmate suspected of a crime is already in prison, the prosecution may have little incentive promptly to bring formal charges against him, and that the resulting preindictment delay may be particularly prejudicial to the inmate," id., at 192, but we noted that statutes of limitation and protections of the Fifth Amendment guarded against delay, and that there was no basis for "depart[ing] from our traditional interpretation of the Sixth Amendment right to counsel in order to provide additional protections for [the inmates]," ibid.


[60] Gouveia's holding that the Sixth Amendment right to counsel had not attached has no application here. For one thing, Gouveia does not affect the conclusion we reaffirmed two years later in Jackson, that bringing a defendant before a court for initial appearance signals a sufficient commitment to prosecute and marks the start of adversary judicial proceedings. (Indeed, Jackson refutes the County's argument that Fifth Amendment protections at the early stage obviate attachment of the Sixth Amendment right at initial appearance. See supra, at 8-9.) And since we are not asked to extend the right to counsel to a point earlier than formal judicial proceedings (as in Gouveia), but to defer it to those proceedings in which a prosecutor is involved, Gouveia does not speak to the question before us.


[61] The County also tries to downplay the significance of the initial appearance by saying that an attachment rule unqualified by prosecutorial involvement would lead to the conclusion "that the State has statutorily committed to prosecute every suspect arrested by the police," given that "state law requires [an article 15.17 hearing] for every arrestee." Brief for Respondent 24 (emphasis in original). The answer, though, is that the State has done just that, subject to the option to change its official mind later. The State may rethink its commitment at any point: it may choose not to seek indictment in a felony case, say, or the prosecutor may enter nolle prosequi after the case gets to the jury room. But without a change of position, a defendant subject to accusation after initial appearance is headed for trial and needs to get a lawyer working, whether to attempt to avoid that trial or to be ready with a defense when the trial date arrives.


[62] 3.


[63] A third tack on the County's part, slightly different from the one taken by the Fifth Circuit, gets it no further. The County stipulates that "the properly formulated test is not ... merely whether prosecutors have had any involvement in the case whatsoever, but instead whether the State has objectively committed itself to prosecute." Id., at 31. It then informs us that "[p]rosecutorial involvement is merely one form of evidence of such commitment." Ibid. Other sufficient evidentiary indications are variously described: first (expansively) as "the filing of formal charges ... by information, indictment or formal complaint, or the holding of an adversarial preliminary hearing to determine probable cause to file such charges," ibid. (citing Kirby, 406 U. S., at 689); then (restrictively) as a court appearance following "arrest ... on an indictment or information," Brief for Respondent 32. Either version, in any event, runs up against Brewer and Jackson: an initial appearance following a charge signifies a sufficient commitment to prosecute regardless of a prosecutor's participation, indictment, information, or what the County calls a "formal" complaint.


[64] So the County is reduced to taking aim at those cases. Brewer and Jackson, we are told, are "vague" and thus of "limited, if any, precedential value." Brief for Respondent 33, 35; see also id., at 32, n. 13 (asserting that Brewer and Jackson "neither provide nor apply an analytical framework for determining attachment"). And, according to the County, our cases (Brewer and Jackson aside) actually establish a "general rule that the right to counsel attaches at the point that [what the County calls] formal charges are filed," Brief for Respondent 19, with exceptions allowed only in the case of "a very limited set of specific preindictment situations," id., at 23. The County suggests that the latter category should be limited to those appearances at which the aid of counsel is urgent and " `the dangers to the accused of proceeding without counsel' " are great. Id., at 28 (quoting Patterson v. Illinois, 487 U. S. 285, 298 (1988)). Texas's article 15.17 hearing should not count as one of those situations, the County says, because it is not of critical significance, since it "allows no presentation of witness testimony and provides no opportunity to expose weaknesses in the government's evidence, create a basis for later impeachment, or even engage in basic discovery." Brief for Respondent 29.


[65] We think the County is wrong both about the clarity of our cases and the substance that we find clear. Certainly it is true that the Court in Brewer and Jackson saw no need for lengthy disquisitions on the significance of the initial appearance, but that was because it found the attachment issue an easy one. The Court's conclusions were not vague; Brewer expressed "no doubt" that the right to counsel attached at the initial appearance, 430 U. S., at 399, and Jackson said that the opposite result would be "untenable," 475 U. S., at 629, n. 3.


[66] If, indeed, the County had simply taken the cases at face value, it would have avoided the mistake of merging the attachment question (whether formal judicial proceedings have begun) with the distinct "critical stage" question (whether counsel must be present at a postattachment proceeding unless the right to assistance is validly waived). Attachment occurs when the government has used the judicial machinery to signal a commitment to prosecute as spelled out in Brewer and Jackson. Once attachment occurs, the accused at least*fn15 is entitled to the presence of appointed counsel during any "critical stage" of the postattachment proceedings; what makes a stage critical is what shows the need for counsel's presence.*fn16 Thus, counsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself.


[67] The County thus makes an analytical mistake in its assumption that attachment necessarily requires the occurrence or imminence of a critical stage. See Brief for Respondent 28-30. On the contrary, it is irrelevant to attachment that the presence of counsel at an article 15.17 hearing, say, may not be critical, just as it is irrelevant that counsel's presence may not be critical when a prosecutor walks over to the trial court to file an information. As we said in Jackson, "[t]he question whether arraignment signals the initiation of adversary judicial proceedings ... is distinct from the question whether the arraignment itself is a critical stage requiring the presence of counsel." 475 U. S., at 630, n. 3. Texas's article 15.17 hearing plainly signals attachment, even if it is not itself a critical stage.*fn17


[68] III.


[69] Our holding is narrow. We do not decide whether the 6-month delay in appointment of counsel resulted in prejudice to Rothgery's Sixth Amendment rights, and have no occasion to consider what standards should apply in deciding this. We merely reaffirm what we have held before and what an overwhelming majority of American jurisdictions understand in practice: a criminal defendant's initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Because the Fifth Circuit came to a different conclusion on this threshold issue, its judgment is vacated, and the case is remanded for further proceedings consistent with this opinion.


[70] It is so ordered.


[71] Chief Justice Roberts, with whom Justice Scalia joins, concurring.


[72] Justice Thomas's analysis of the present issue is compelling, but I believe the result here is controlled by Brewer v. Williams, 430 U. S. 387 (1977), and Michigan v. Jackson, 475 U. S. 625 (1986). A sufficient case has not been made for revisiting those precedents, and accordingly I join the Court's opinion.


[73] I also join Justice Alito's concurrence, which correctly distinguishes between the time the right to counsel attaches and the circumstances under which counsel must be provided.


[74] Justice Alito, with whom The Chief Justice and Justice Scalia join, concurring.


[75] I join the Court's opinion because I do not understand it to hold that a defendant is entitled to the assistance of appointed counsel as soon as his Sixth Amendment right attaches. As I interpret our precedents, the term "attachment" signifies nothing more than the beginning of the defendant's prosecution. It does not mark the beginning of a substantive entitlement to the assistance of counsel. I write separately to elaborate on my understanding of the term "attachment" and its relationship to the Amendment's substantive guarantee of "the Assistance of Counsel for [the] defence."


[76] The Sixth Amendment provides in pertinent part that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." The Amendment thus defines the scope of the right to counsel in three ways: It provides who may assert the right ("the accused"); when the right may be asserted ("[i]n all criminal prosecutions"); and what the right guarantees ("the right ... to have the Assistance of Counsel for his defence").


[77] It is in the context of interpreting the Amendment's answer to the second of these questions -- when the right may be asserted -- that we have spoken of the right "attaching." In Kirby v. Illinois, 406 U. S. 682, 688 (1972), a plurality of the Court explained that "a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him." A majority of the Court elaborated on that explanation in Moore v. Illinois, 434 U. S. 220 (1977):


[78] "In Kirby v. Illinois, the plurality opinion made clear that the right to counsel announced in Wade and Gilbert attaches only to corporeal identifications conducted at or after the initiation of adversary judicial criminal proceedings -- whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. This is so because the initiation of such proceedings marks the commencement of the `criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable. Thus, in Kirby the plurality held that the prosecution's evidence of a robbery victim's one-on-one stationhouse identification of an uncounseled suspect shortly after the suspect's arrest was admissible because adversary judicial criminal proceedings had not yet been initiated." Id., at 226-227 (internal quotation marks and citations omitted).


[79] When we wrote in Kirby and Moore that the Sixth Amendment right had "attached," we evidently meant nothing more than that a "criminal prosecutio[n]" had begun. Our cases have generally used the term in that narrow fashion. See Texas v. Cobb, 532 U. S. 162, 167 (2001) (internal quotation marks omitted); McNeil v. Wisconsin, 501 U. S. 171, 175 (1991); Michigan v. Harvey, 494 U. S. 344, 353 (1990); Satterwhite v. Texas, 486 U. S. 249, 254-255 (1988); Michigan v. Jackson, 475 U. S. 625, 629, and n. 3 (1986); Moran v. Burbine, 475 U. S. 412, 428 (1986); United States v. Gouveia, 467 U. S. 180, 188 (1984); Edwards v. Arizona, 451 U. S. 477, 480, n. 7 (1981); Doggett v. United States, 505 U. S. 647, 663, n. 2 (1992) (Thomas, J., dissenting); Patterson v. Illinois, 487 U. S. 285, 303-304 (1988) (Stevens, J., dissenting); United States v. Ash, 413 U. S. 300, 322 (1973) (Stewart, J., concurring in judgment). But see Estelle v. Smith, 451 U. S. 454, 469 (1981) ("[W]e have held that the right to counsel granted by the Sixth Amendment means that a person is entitled to the help of a lawyer at or after the time that adversary judicial proceedings have been initiated against him ..." (internal quotation marks omitted)); Brewer v. Williams, 430 U. S. 387, 398 (1977) ("[T]he right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him ...").


[80] Because pretrial criminal procedures vary substantially from jurisdiction to jurisdiction, there is room for disagreement about when a "prosecution" begins for Sixth Amendment purposes. As the Court, notes, however, we have previously held that "arraignments" that were functionally indistinguishable from the Texas magistration marked the point at which the Sixth Amendment right to counsel "attached." See ante, at 6 (discussing Jackson, supra, and Brewer, supra).


[81] It does not follow, however, and I do not understand the Court to hold, that the county had an obligation to appoint an attorney to represent petitioner within some specified period after his magistration. To so hold, the Court would need to do more than conclude that petitioner's criminal prosecution had begun. It would also need to conclude that the assistance of counsel in the wake of a Texas magistration is part of the substantive guarantee of the Sixth Amendment. That question lies beyond our reach, petitioner having never sought our review of it. See Pet. for Cert. i (inviting us to decide whether the Fifth Circuit erred in concluding "that adversary judicial proceedings ... had not commenced, and petitioner's Sixth Amendment rights had not attached"). To recall the framework laid out earlier, we have been asked to address only the when question, not the what question. Whereas the temporal scope of the right is defined by the words "[i]n all criminal prosecutions," the right's substantive guarantee flows from a different textual font: the words "Assistance of Counsel for his defence."


[82] In interpreting this latter phrase, we have held that "defence" means defense at trial, not defense in relation to other objectives that may be important to the accused. See Gouveia, supra, at 190 ("[T]he right to counsel exists to protect the accused during trial-type confrontations with the prosecutor ..."); Ash, supra, at 309 ("[T]he core purpose of the counsel guarantee was to assure `Assistance' at trial ..."). We have thus rejected the argument that the Sixth Amendment entitles the criminal defendant to the assistance of appointed counsel at a probable cause hearing. See Gerstein v. Pugh, 420 U. S. 103, 122-123 (1975) (observing that the Fourth Amendment hearing "is addressed only to pretrial custody" and has an insubstantial effect on the defendant's trial rights). More generally, we have rejected the notion that the right to counsel entitles the defendant to a "preindictment private investigator." Gouveia, supra, at 191.


[83] At the same time, we have recognized that certain pretrial events may so prejudice the outcome of the defendant's prosecution that, as a practical matter, the defendant must be represented at those events in order to enjoy genuinely effective assistance at trial. See, e.g., Ash, supra, at 309-310; United States v. Wade, 388 U. S. 218, 226 (1967). Thus, we have held that an indigent defendant is entitled to the assistance of appointed counsel at a preliminary hearing if "substantial prejudice ... inheres in the ... confrontation" and "counsel [may] help avoid that prejudice." Coleman v. Alabama, 399 U. S. 1, 9 (1970) (plurality opinion) (internal quotation marks omitted); see also White v. Maryland, 373 U. S. 59, 60 (1963) (per curiam). We have also held that the assistance of counsel is guaranteed at a pretrial lineup, since "the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial." Wade, supra, at 228. Other "critical stages" of the prosecution include pretrial interrogation, a pretrial psychiatric exam, and certain kinds of arraignments. See Harvey, 494 U. S., at 358, n. 4; Estelle, supra, at 470-471; Coleman, supra, at 7-8 (plurality opinion).


[84] Weaving together these strands of authority, I interpret the Sixth Amendment to require the appointment of counsel only after the defendant's prosecution has begun, and then only as necessary to guarantee the defendant effective assistance at trial. Cf. McNeil, 501 U. S., at 177-178 ("The purpose of the Sixth Amendment counsel guarantee -- and hence the purpose of invoking it -- is to protec[t] the unaided layman at critical confrontations with his expert adversary, the government, after the adverse positions of government and defendant have solidified with respect to a particular alleged crime" (emphasis and alteration in original; internal quotation marks omitted)). It follows that defendants in Texas will not necessarily be entitled to the assistance of counsel within some specified period after their magistrations. See ante, at 19 (opinion of the Court) (pointing out the "analytical mistake" of assuming "that attachment necessarily requires the occurrence or imminence of a critical stage"). Texas counties need only appoint counsel as far in advance of trial, and as far in advance of any pretrial "critical stage," as necessary to guarantee effective assistance at trial. Cf. ibid. ("[C]counsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself" (emphasis added)).


[85] The Court expresses no opinion on whether Gillespie County satisfied that obligation in this case. Petitioner has asked us to decide only the limited question whether his magistration marked the beginning of his "criminal prosecutio[n]" within the meaning of the Sixth Amendment. Because I agree with the Court's resolution of that limited question, I join its opinion in full.


[86] Justice Thomas, dissenting.


[87] The Court holds today -- for the first time after plenary consideration of the question -- that a criminal prosecution begins, and that the Sixth Amendment right to counsel therefore attaches, when an individual who has been placed under arrest makes an initial appearance before a magistrate for a probable-cause determination and the setting of bail. Because the Court's holding is not supported by the original meaning of the Sixth Amendment or any reasonable interpretation of our precedents, I respectfully dissent.


[88] I.


[89] The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." The text of the Sixth Amendment thus makes clear that the right to counsel arises only upon initiation of a "criminal prosecutio[n]." For that reason, the Court has repeatedly stressed that the Sixth Amendment right to counsel "does not attach until a prosecution is commenced." McNeil v. Wisconsin, 501 U. S. 171, 175 (1991); see also United States v. Gouveia, 467 U. S. 180, 188 (1984) ("[T]he literal language of the Amendment ... requires the existence of both a `criminal prosecutio[n]' and an `accused' "). Echoing this refrain, the Court today reiterates that "[t]he Sixth Amendment right of the `accused' to assistance of counsel in `all criminal prosecutions' is limited by its terms." Ante, at 5 (footnote omitted).


[90] Given the Court's repeated insistence that the right to counsel is textually limited to "criminal prosecutions," one would expect the Court's jurisprudence in this area to be grounded in an understanding of what those words meant when the Sixth Amendment was adopted. Inexplicably, however, neither today's decision nor any of the other numerous decisions in which the Court has construed the right to counsel has attempted to discern the original meaning of "criminal prosecutio[n]." I think it appropriate to examine what a "criminal prosecutio[n]" would have been understood to entail by those who adopted the Sixth Amendment.


[91] A.


[92] There is no better place to begin than with Blackstone, "whose works constituted the preeminent authority on English law for the founding generation." Alden v. Maine, 527 U. S. 706, 715 (1999). Blackstone devoted more than 100 pages of his Commentaries on the Laws of England to a discussion of the "regular and ordinary method of proceeding in the courts of criminal jurisdiction." 4 W. Blackstone, Commentaries *289 (hereinafter Blackstone).


[93] At the outset of his discussion, Blackstone organized the various stages of a criminal proceeding "under twelve general heads, following each other in a progressive order." Ibid. The first six relate to pretrial events: "1. Arrest; 2. Commitment and bail; 3. Prosecution; 4. Process; 5. Arraignment, and it's incidents; 6. Plea, and issue." Ibid. (emphasis added). Thus, the first significant fact is that Blackstone did not describe the entire criminal process as a "prosecution," but rather listed prosecution as the third step in a list of successive stages. For a more complete understanding of what Blackstone meant by "prosecution," however, we must turn to chapter 23, entitled "Of the Several Modes of Prosecution." Id., at *301. There, Blackstone explained that -- after arrest and examination by a justice of the peace to determine whether a suspect should be discharged, committed to prison, or admitted to bail, id., at *296 -- the "next step towards the punishment of offenders is their prosecution, or the manner of their formal accusation," id., at *301 (emphasis added).


[94] Blackstone thus provides a definition of "prosecution": the manner of an offender's "formal accusation." The modifier "formal" is significant because it distinguishes "prosecution" from earlier stages of the process involving a different kind of accusation: the allegation of criminal conduct necessary to justify arrest and detention. Blackstone's discussion of arrest, commitment, and bail makes clear that a person could not be arrested and detained without a "charge" or "accusation," i.e., an allegation, supported by probable cause, that the person had committed a crime. See id., at *289-*300. But the accusation justifying arrest and detention was clearly preliminary to the "formal accusation" that Blackstone identified with "prosecution." See id., at *290, *318.


[95] By "formal accusation," Blackstone meant, in most cases, "indictment, the most usual and effectual means of prosecution." Id., at *302. Blackstone defined an "indictment" as "a written accusation of one or more persons of a crime or misdemeanor, preferred to, and presented upon oath by, a grand jury." Ibid. (emphasis deleted). If the grand jury was "satisfied of the truth of the accusation," it endorsed the indictment, id., at *305-*306, which was then "publicly delivered into court," id., at *306, "afterwards to be tried and determined," id., at *303, "before an officer having power to punish the [charged] offence," 2 T. Cunningham, A New and Complete Law Dictionary (2d ed. 1771).


[96] In addition to indictment, Blackstone identified two other "methods of prosecution at the suit of the king." 4 Blackstone *312. The first was presentment, which, like an indictment, was a grand jury's formal accusation "of an offence, inquirable in the Court where it [was] presented." 5 G. Jacob, The Law-Dictionary 278-279 (1811). The principal difference was that the accusation arose from "the notice taken by a grand jury of any offence from their own knowledge or observation" rather than from a "bill of indictment laid before them." 4 Blackstone *301. The second was information, "the only species of proceeding at the suit of the king, without a previous indictment or presentment by a grand jury." Id., at *308. After an information was filed, it was "tried," id., at *309, in the same way as an indictment: "The same notice was given, the same process was issued, the same pleas were allowed, the same trial by jury was had, the same judgment was given by the same judges, as if the prosecution had originally been by indictment," id., at *310.


[97] From the foregoing, the basic elements of a criminal "prosecution" emerge with reasonable clarity. "Prosecution," as Blackstone used the term, referred to "instituting a criminal suit," id., at *309, by filing a formal charging document -- an indictment, presentment, or information -- upon which the defendant was to be tried in a court with power to punish the alleged offense. And, significantly, Blackstone's usage appears to have accorded with the ordinary meaning of the term. See 2 N. Webster, An American Dictionary of the English Language (1828) (defining "prosecution" as "[t]he institution or commencement and continuance of a criminal suit; the process of exhibiting formal charges against an offender before a legal tribunal, and pursuing them to final judgment," and noting that "[p]rosecutions may be by presentment, information or indictment").


[98] B.


[99] With Blackstone as our guide, it is significant that the Framers used the words "criminal prosecutions" in the Sixth Amendment rather than some other formulation such as "criminal proceedings" or "criminal cases." Indeed, elsewhere in the Bill of Rights we find just such an alternative formulation: In contrast to the Sixth Amendment, the Fifth Amendment refers to "criminal case[s]." U. S. Const., Amdt. 5 ("No person ... shall be compelled in any criminal case to be a witness against himself").


[100] In Counselman v. Hitchcock, 142 U. S. 547 (1892), the Court indicated that the difference in phraseology was not accidental. There the Court held that the Fifth Amendment right not to be compelled to be a witness against oneself "in any criminal case" could be invoked by a witness testifying before a grand jury. The Court rejected the argument that there could be no "criminal case" prior to indictment, reasoning that a "criminal case" under the Fifth Amendment is much broader than a "criminal prosecutio[n]" under the Sixth Amendment. Id., at 563.


[101] The following Term, the Court construed the phrase "criminal prosecution" in a statutory context, and this time the Court squarely held that a "prosecution" does not encompass preindictment stages of the criminal process. In Virginia v. Paul, 148 U. S. 107 (1893), the Court considered Revised Statute §643, which authorized removal to federal court of any " `criminal prosecution' " " `commenced in any court of a State' " against a federal officer. Id., at 115. The respondent, a deputy marshal, had been arrested by Virginia authorities on a warrant for murder and was held in county jail awaiting his appearance before a justice of the peace "with a view to a commitment to await the action of the grand jury." Id., at 118. He filed a petition for removal of " `said cause' " to federal court. Ibid. The question before the Court was whether a " `criminal prosecution' " had " `commenced' " within the meaning of the statute at the time the respondent filed his removal petition.


[102] The Court held that a criminal prosecution had not commenced, and that removal was therefore not authorized by the terms of the statute. The Court noted that under Virginia law murder could be prosecuted only "by indictment found in the county court," and that "a justice of the peace, upon a previous complaint, [could] do no more than to examine whether there [was] good cause for believing that the accused [was] guilty, and to commit him for trial before the court having jurisdiction of the offence." Ibid. Accordingly, where "no indictment was found, or other action taken, in the county court," there was as yet no " `criminal prosecution.' " Id., at 119. The appearance before the justice of the peace did not qualify as a "prosecution":


[103] "Proceedings before a magistrate to commit a person to jail, or to hold him to bail, in order to secure his appearance to answer for a crime or offence which the magistrate has no jurisdiction himself to try, before the court in which he may be prosecuted and tried, are but preliminary to the prosecution, and are no more a commencement of the prosecution, than is an arrest by an officer without a warrant for a felony committed in his presence." Ibid.


[104] C.


[105] The foregoing historical summary is strong evidence that the term "criminal prosecutio[n]" in the Sixth Amendment refers to the commencement of a criminal suit by filing formal charges in a court with jurisdiction to try and punish the defendant. And on this understanding of the Sixth Amendment, it is clear that petitioner's initial appearance before the magistrate did not commence a "criminal prosecutio[n]." No formal charges had been filed. The only document submitted to the magistrate was the arresting officer's affidavit of probable cause. The officer stated that he "ha[d] good reason to believe" that petitioner was a felon and had been "walking around [an] RV park with a gun belt on, carrying a pistol, handcuffs, mace spray, extra bullets and a knife." App. to Pet. for Cert. 33a. The officer therefore "charge[d]" that petitioner had "commit[ted] the offense of unlawful possession of a firearm by a felon -- 3rd degree felony." Ibid. The magistrate certified that he had examined the affidavit and "determined that probable cause existed for the arrest of the individual accused therein." Id., at 34a. Later that day, petitioner was released on bail, and did not hear from the State again until he was indicted six months later.


[106] The affidavit of probable cause clearly was not the type of formal accusation Blackstone identified with the commencement of a criminal "prosecution." Rather, it was the preliminary accusation necessary to justify arrest and detention -- stages of the criminal process that Blackstone placed before prosecution. The affidavit was not a pleading that instituted a criminal prosecution, such as an indictment, presentment, or information; and the magistrate to whom it was presented had no jurisdiction to try and convict petitioner for the felony offense charged therein. See Teal v. State, 230 S. W. 3d 172, 174 (Tex. Crim. App. 2007) ("The Texas Constitution requires that, unless waived by the defendant, the State must obtain a grand jury indictment in a felony case"); Tex. Crim. Proc. Code Ann., Arts. 4.05, 4.11(a) (West 2005). That is most assuredly why the magistrate informed petitioner that charges "will be filed" in district court. App. to Pet. for Cert. 35a (emphasis added).


[107] The original meaning of the Sixth Amendment, then, cuts decisively against the Court's conclusion that petitioner's right to counsel attached at his initial appearance before the magistrate. But we are not writing on a blank slate: This Court has a substantial body of more recent precedent construing the Sixth Amendment right to counsel.


[108] II.


[109] As the Court notes, our cases have "pegged commencement" of a criminal prosecution, ante, at 5, to "the initiation of adversary judicial criminal proceedings -- whether by way of formal charge, preliminary hearing, indictment, information, or arraignment," Kirby v. Illinois, 406 U. S. 682, 689 (1972) (plurality opinion). The Court has repeated this formulation in virtually every right-to-counsel case decided since Kirby. Because Kirby's formulation of the attachment test has been accorded such precedential significance, it is important to determine precisely what Kirby said:


[110] "In a line of constitutional cases in this Court stemming back to the Court's landmark opinion in Powell v. Alabama, 287 U. S. 45 [(1932)], it has been firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. See Powell v. Alabama, supra; Johnson v. Zerbst, 304 U. S. 458 [(1938)]; Hamilton v. Alabama, 368 U. S. 52 [(1961)]; Gideon v. Wainwright, 372 U. S. 335 [(1963)]; White v. Maryland, 373 U. S. 59 [(1963) (per curiam)]; Massiah v. United States, 377 U. S. 201 [(1964)]; United States v. Wade, 388 U. S. 218 [(1967)]; Gilbert v. California, 388 U. S. 263 [(1967)]; Coleman v. Alabama, 399 U. S. 1 [(1970)].


[111] "This is not to say that a defendant in a criminal case has a constitutional right to counsel only at the trial itself. The Powell case makes clear that the right attaches at the time of arraignment, and the Court has recently held that it exists also at the time of a preliminary hearing. Coleman v. Alabama, supra. But the point is that, while members of the Court have differed as to existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings -- whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Id., at 688-689 (footnote omitted).


[112] It is noteworthy that Kirby did not purport to announce anything new; rather, it simply catalogued what the Court had previously held. And the point of the plurality's discussion was that the criminal process contains stages prior to commencement of a criminal prosecution. The holding of the case was that the right to counsel did not apply at a station house lineup that took place "before the defendant had been indicted or otherwise formally charged with any criminal offense." Id., at 684.


[113] Kirby gave five examples of events that initiate "adversary judicial criminal proceedings": formal charge, preliminary hearing, indictment, information, and arraignment. None of these supports the result the Court reaches today. I will apply them seriatim. No indictment or information had been filed when petitioner appeared before the magistrate. Nor was there any other formal charge. Although the plurality in Kirby did not define "formal charge," there is no reason to believe it would have included an affidavit of probable cause in that category. None of the cases on which it relied stood for that proposition. Indeed, all of them -- with the exception of White v. Maryland, 373 U. S. 59 (1963) (per curiam), and Coleman v. Alabama, 399 U. S. 1 (1970) -- involved post-indictment proceedings. See Powell v. Alabama, 287 U. S. 45, 49 (1932) (post-indictment arraignment); Johnson v. Zerbst, 304 U. S. 458, 460 (1938) (trial); Hamilton v. Alabama, 368 U. S. 52, 53, n. 3 (1961) (post-indictment arraignment); Gideon v. Wainwright, 372 U. S. 335, 337 (1963) (trial); Massiah v. United States, 377 U. S. 201 (1964) (post-indictment interrogation); United States v. Wade, 388 U. S. 218, 219-220 (1967) (post-indictment lineup); Gilbert v. California, 388 U. S. 263, 269 (1967) (post-indictment lineup).


[114] Nor was petitioner's initial appearance a preliminary hearing. The comparable proceeding in Texas is called an "examining trial." See ante, at 9, n. 12. More importantly, petitioner's initial appearance was unlike the preliminary hearings that were held to constitute "critical stages" in White and Coleman, because it did not involve entry of a plea, cf. White, supra, at 60, and was non-adversarial, cf. Coleman, supra, at 9. There was no prosecutor present, there were no witnesses to cross-examine, there was no case to discover, and the result of the proceeding was not to bind petitioner over to the grand jury or the trial court.


[115] Finally, petitioner's initial appearance was not what Kirby described as an "arraignment." An arraignment, in its traditional and usual sense, is a post-indictment proceeding at which the defendant enters a plea. See, e.g., W. LaFave, J. Israel, & N. King, Criminal Procedure §1.3(n), p. 19 (4th ed. 2004); 4 Blackstone *322. Although the word "arraignment" is sometimes used to describe an initial appearance before a magistrate, see LaFave, supra, §1.3(j), at 16, that is not what Kirby meant when it said that the right to counsel attaches at an "arraignment." Rather, it meant the traditional, post-indictment arraignment where the defendant enters a plea. This would be the most reasonable assumption even if there were nothing else to go on, since that is the primary meaning of the word, especially when used unmodified.


[116] But there is no need to assume. Kirby purported to describe only what the Court had already held, and none of the cases Kirby cited involved an initial appearance. Only two of the cases involved arraignments, and both were post-indictment arraignments at which the defendant entered a plea. Hamilton, supra, at 53, n. 3; Powell, 287 U. S., at 49. And the considerations that drove the Court's analysis in those cases are not present here. See id., at 57 (emphasizing that "from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation were vitally important, the defendants did not have the aid of counsel"); Hamilton, supra, at 53-55 (emphasizing that the defendant entered a plea and was required to raise or waive certain defenses). Kirby's inclusion of "arraignment" in the list of adversary judicial proceedings that trigger the right to counsel thus provides no support for the view that the right to counsel attaches at an initial appearance before a magistrate.


[117] III.


[118] It is clear that when Kirby was decided in 1972 there was no precedent in this Court for the conclusion that a criminal prosecution begins, and the right to counsel therefore attaches, at an initial appearance before a magistrate. The Court concludes, however, that two subsequent decisions -- Brewer v. Williams, 430 U. S. 387 (1977), and Michigan v. Jackson, 475 U. S. 625 (1986) -- stand for that proposition. Those decisions, which relied almost exclusively on Kirby, cannot bear the weight the Court puts on them.*fn18


[119] In Brewer, the defendant challenged his conviction for murdering a 10-year-old girl on the ground that his Sixth Amendment right to counsel had been violated when detectives elicited incriminating statements from him while transporting him from Davenport, Iowa, where he had been arrested on a warrant for abduction and "arraigned before a judge ... on the outstanding arrest warrant," to Des Moines, where he was to be tried. 430 U. S., at 390-391. The principal issue was whether the defendant had waived his right to have counsel present during police questioning when he voluntarily engaged one of the detectives in a "wide-ranging conversation." Id., at 392. He subsequently agreed to lead the detectives to the girl's body in response to the so-called " `Christian burial speech,' " in which one of the detectives told the defendant that " `the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas [E]ve and murdered.' " Id., at 392-393. Not surprisingly, the parties vigorously disputed the waiver issue, and it sharply divided the Court.


[120] In contrast, the question whether the defendant's right to counsel had attached was neither raised in the courts below nor disputed before this Court. Nonetheless, the Court, after quoting Kirby's formulation of the test, offered its conclusory observations:


[121] "There can be no doubt in the present case that judicial proceedings had been initiated against Williams before the start of the automobile ride from Davenport to Des Moines. A warrant had been issued for his arrest, he had been arraigned on that warrant before a judge in a Davenport courtroom, and he had been committed by the court to confinement in jail. The State does not contend otherwise." 430 U. S., at 399.


[122] Brewer's cursory treatment of the attachment issue demonstrates precisely why, when "an issue [is] not addressed by the parties," it is "imprudent of us to address it ... with any pretense of settling it for all time." Metropolitan Stevedore Co. v. Rambo, 521 U. S. 121, 136 (1997). As an initial matter, the Court's discussion of the facts reveals little about what happened at the proceeding. There is no indication, for example, whether it was adversarial or whether the defendant was required to enter a plea or raise or waive any defenses -- facts that earlier cases such as Hamilton, White, and Coleman had found significant.


[123] Even assuming, however, that the arraignment in Brewer was functionally identical to the initial appearance here, Brewer offered no reasoning for its conclusion that the right to counsel attached at such a proceeding. One is left with the distinct impression that the Court simply saw the word "arraignment" in Kirby's attachment test and concluded that the right must have attached because the defendant had been "arraigned." There is no indication that Brewer considered the difference between an arraignment on a warrant and an arraignment at which the defendant pleads to the indictment.


[124] The Court finds it significant that Brewer expressed " `no doubt' " that the right had attached. Ante, at 19 (quoting 430 U. S., at 399). There was no need for a "lengthy disquisitio[n]," the Court says, because Brewer purportedly "found the attachment issue an easy one." Ante, at 18-19. What the Court neglects to mention is that Brewer's attachment holding is indisputably no longer good law. That is because we have subsequently held that the Sixth Amendment right to counsel is "offense specific," meaning that it attaches only to those offenses for which the defendant has been formally charged, and not to "other offenses `closely related factually' to the charged offense." Texas v. Cobb, 532 U. S. 162, 164 (2001). Because the defendant in Brewer had been arraigned only on the abduction warrant, there is no doubt that, under Cobb, his right to counsel had not yet attached with respect to the murder charges that were subsequently brought. See 532 U. S., at 184 (Breyer, J., dissenting) (noting that under the majority's rule, "[the defendant's] murder conviction should have remained undisturbed"). But the Court in Cobb did not consider itself bound by Brewer's implicit holding on the attachment question. See 532 U. S., at 169 ("Constitutional rights are not defined by inferences from opinions which did not address the question at issue"). And here, as in Cobb, Brewer did not address the fact that the arraignment on the warrant was not the same type of arraignment at which the right to counsel had previously been held to attach, and the parties did not argue the question. Brewer is thus entitled to no more precedential weight here than it was in Cobb.


[125] Nor does Jackson control. In Jackson, as in Brewer, the attachment issue was secondary. The question presented was "not whether respondents had a right to counsel at their postarraignment, custodial interrogations," 475 U. S., at 629, but "whether respondents validly waived their right to counsel," id., at 630. And, as in Brewer, the Court's waiver holding was vigorously disputed. See 475 U. S., at 637-642 (Rehnquist, J., dissenting); see also Cobb, supra, at 174-177 (Kennedy, J., concurring) (questioning Jackson's vitality). Unlike in Brewer, however, the attachment question was at least contested in Jackson -- but barely. With respect to respondent Jackson, the State conceded the issue. Jackson, supra, at 629, n. 3. And with respect to respondent Bladel, the State had conceded the issue below, see People v. Bladel, 421 Mich. 39, 77, 365 N. W. 2d 56, 74 (1984) (Boyle, J., dissenting), and raised it for the first time before this Court, devoting only three pages of its brief to the question, see Brief for Petitioner in Michigan v. Bladel, O. T. 1985, No. 84-1539, pp. 24-26.


[126] The Court disposed of the issue in a footnote. See Jackson, supra, at 629-630, n. 3. As in Brewer, the Court did not describe the nature of the proceeding. It stated only that the respondents were "arraigned." 475 U. S., at 627-628. The Court phrased the question presented in terms of "arraignment," id., at 626 ("The question presented by these two cases is whether the same rule applies to a defendant who has been formally charged with a crime and who has requested appointment of counsel at his arraignment"), and repeated the words "arraignment" or "postarraignment" no fewer than 35 times in the course of its opinion.


[127] There is no way to know from the Court's opinion in Jackson whether the arraignment at issue there was the same type of arraignment at which the right to counsel had been held to attach in Powell and Hamilton. Only upon examination of the parties' briefs does it become clear that the proceeding was in fact an initial appearance. But Jackson did not even acknowledge, much less "flatly rejec[t] the distinction between initial arraignment and arraignment on the indictment." Ante, at 9. Instead, it offered one sentence of analysis -- "In view of the clear language in our decisions about the significance of arraignment, the State's argument is untenable" -- followed by a string citation to four cases, each of which quoted Kirby. 475 U. S., at 629-630, n. 3. For emphasis, the Court italicized the words "or arraignment" in Kirby's attachment test. 475 U. S., at 629, n. 3 (internal quotation marks omitted).


[128] The only rule that can be derived from the face of the opinion in Jackson is that if a proceeding is called an "arraignment," the right to counsel attaches.*fn19 That rule would not govern this case because petitioner's initial appearance was not called an "arraignment" (the parties refer to it as a "magistration"). And that would, in any case, be a silly rule. The Sixth Amendment consequences of a proceeding should turn on the substance of what happens there, not on what the State chooses to call it. But the Court in Jackson did not focus on the substantive distinction between an initial arraignment and an arraignment on the indictment. Instead, the Court simply cited Kirby and left it at that. In these circumstances, I would recognize Jackson for what it was -- a cursory treatment of an issue that was not the primary focus of the Court's opinion. Surely Jackson's footnote must yield to our reasoned precedents.


[129] And our reasoned precedents provide no support for the conclusion that the right to counsel attaches at an initial appearance before a magistrate. Kirby explained why the right attaches "after the initiation of adversary judicial criminal proceedings":


[130] "The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the `criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable." 406 U. S., at 689-690 (plurality opinion).


[131] None of these defining characteristics of a "criminal prosecution" applies to petitioner's initial appearance before the magistrate. The initial appearance was not an "adversary" proceeding, and petitioner was not "faced with the prosecutorial forces of organized society." Instead, he stood in front of a "little glass window," filled out various forms, and was read his Miranda rights. Brief for Respondent 5. The State had not committed itself to prosecute -- only a prosecutor may file felony charges in Texas, see Tex. Code Ann., Crim. Proc. Arts. 2.01, 2.02 (West 2005), and there is no evidence that any prosecutor was even aware of petitioner's arrest or appearance. The adverse positions of government and defendant had not yet solidified -- the State's prosecutorial officers had not yet decided whether to press charges and, if so, which charges to press. And petitioner was not immersed in the intricacies of substantive and procedural criminal law -- shortly after the proceeding he was free on bail, and no further proceedings occurred until six months later when he was indicted.


[132] Moreover, the Court's holding that the right to counsel attaches at an initial appearance is untethered from any interest that we have heretofore associated with the right to counsel. The Court has repeatedly emphasized that "[t]he purpose of the constitutional guaranty of a right to counsel is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights." Johnson, 304 U. S., at 465. The "core purpose" of the right, the Court has said, is to "assure `Assistance' at trial, when the accused [is] confronted with both the intricacies of the law and the advocacy of the public prosecutor." United States v. Ash, 413 U. S. 300, 309 (1973). The Court has extended the right to counsel to pretrial events only when the absence of counsel would derogate from the defendant's right to a fair trial. See, e.g., Wade, 388 U. S., at 227.


[133] Neither petitioner nor the Court identifies any way in which petitioner's ability to receive a fair trial was undermined by the absence of counsel during the period between his initial appearance and his indictment. Nothing during that period exposed petitioner to the risk that he would be convicted as the result of ignorance of his rights. Instead, the gravamen of petitioner's complaint is that if counsel had been appointed earlier, he would have been able to stave off indictment by convincing the prosecutor that petitioner was not guilty of the crime alleged. But the Sixth Amendment protects against the risk of erroneous conviction, not the risk of unwarranted prosecution. See Gouveia, 467 U. S., at 191 (rejecting the notion that the "purpose of the right to counsel is to provide a defendant with a preindictment private investigator").


[134] Petitioner argues that the right to counsel is implicated here because restrictions were imposed on his liberty when he was required to post bail. But we have never suggested that the accused's right to the assistance of counsel "for his defence" entails a right to use counsel as a sword to contest pretrial detention. To the contrary, we have flatly rejected that notion, reasoning that a defendant's liberty interests are protected by other constitutional guarantees. See id., at 190 ("While the right to counsel exists to protect the accused during trial-type confrontations with the prosecutor, the speedy trial right exists primarily to protect an individual's liberty interest," including the interest in reducing the " `impairment of liberty imposed on an accused while released on bail' ").


[135] IV.


[136] In sum, neither the original meaning of the Sixth Amendment right to counsel nor our precedents interpreting the scope of that right supports the Court's holding that the right attaches at an initial appearance before a magistrate. Because I would affirm the judgment below, I respectfully dissent.



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Opinion Footnotes

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[137] *fn1 "[F]elony charges ... had been dismissed after Rothgery completed a diversionary program, and both sides agree that [he] did not have a felony conviction." 491 F. 3d 293, 294 (CA5 2007) (case below).


[138] *fn2 A separate article of the Texas Code of Criminal Procedure requires prompt presentment in the case of arrests under warrant as well. See Art. 15.17(a) (West Supp. 2007). Whether the arrest is under warrant or warrantless, article 15.17 details the procedures a magistrate judge must follow upon presentment. See Art. 14.06(a) (in cases of warrantless arrest, "[t]he magistrate shall immediately perform the duties described in Article 15.17 of this Code").


[139] *fn3 See Gerstein v. Pugh, 420 U. S. 103, 113-114 (1975) ("[A] policeman's on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest[,] ... . [but] the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest").


[140] *fn4 Because respondent Gillespie County obtained summary judgment in the current case, we accept as true that Rothgery made multiple requests.


[141] *fn5 Rothgery also requested counsel at the article 15.17 hearing itself, but the magistrate judge informed him that the appointment of counsel would delay setting bail (and hence his release from jail). Given the choice of proceeding without counsel or remaining in custody, Rothgery waived the right to have appointed counsel present at the hearing. See 491 F. 3d, at 295, n. 2.


[142] *fn6 Rothgery does not challenge the County's written policy for appointment of counsel, but argues that the County was not following that policy in practice. See 413 F. Supp. 2d 806, 809-810 (WD Tex. 2006).


[143] *fn7 Such a policy, if proven, arguably would also be in violation of Texas state law, which appears to require appointment of counsel for indigent defendants released from custody, at the latest, when the "first court appearance" is made. See Tex. Crim. Proc. Code Ann., Art. 1.051(j). See also Brief for Texas Association of Counties et al. as Amici Curiae 13 (asserting that Rothgery "was statutorily entitled to the appointment of counsel within three days after having requested it").


[144] *fn8 The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence."


[145] *fn9 The Court of Appeals did not resolve whether the arresting officer's formal accusation would count as a "formal complaint" under Texas state law. See 491 F. 3d, at 298-300 (noting the confusion in the Texas state courts). But it rightly acknowledged (albeit in considering the separate question whether the complaint was a "formal charge") that the constitutional significance of judicial proceedings cannot be allowed to founder on the vagaries of state criminal law, lest the attachment rule be rendered utterly "vague and unpredictable." Virginia v. Moore, 553 U. S. ___, ___ (2008) (slip op., at 10). See 491 F. 3d, at 300 ("[W]e are reluctant to rely on the formalistic question of whether the affidavit here would be considered a `complaint' or its functional equivalent under Texas case law and Article 15.04 of the Texas Code of Criminal Procedures -- a question to which the answer is itself uncertain. Instead, we must look to the specific circumstances of this case and the nature of the affidavit filed at Rothgery's appearance before the magistrate" (footnote omitted)). What counts is that the complaint filed with the magistrate judge accused Rothgery of committing a particular crime and prompted the judicial officer to take legal action in response (here, to set the terms of bail and order the defendant locked up).


[146] *fn10 The dissent says that "Brewer's attachment holding is indisputably no longer good law" because "we have subsequently held that the Sixth Amendment right to counsel is ` "offense specific," ' " post, at 13 (opinion of Thomas, J.) (quoting Texas v. Cobb, 532 U. S. 162, 164 (2001)), i.e., that it does not "exten[d] to crimes that are `factually related' to those that have actually been charged," Cobb, supra, at 167. It is true that Brewer appears to have assumed that attachment of the right with respect to the abduction charge should prompt attachment for the murder charge as well. But the accuracy of the dissent's assertion ends there, for nothing in Cobb's conclusion that the right is offense specific casts doubt on Brewer's separate, emphatic holding that the initial appearance marks the point at which the right attaches. Nor does Cobb reflect, as the dissent suggests, see post, at 14, a more general disapproval of our opinion in Brewer. While Brewer failed even to acknowledge the issue of offense specificity, it spoke clearly and forcefully about attachment. Cobb merely declined to follow Brewer's unmentioned assumption, and thus it lends no support to the dissent's claim that we should ignore what Brewer explicitly said.


[147] *fn11 The State continued to press this contention at oral argument. See Tr. of Oral Arg. in Michigan v. Jackson, O. T. 1985, No. 84-1531 etc., p. 4 ("[T]he Michigan Supreme Court held that if a defendant, while at his initial appearance before a magistrate who has no jurisdiction to accept a final plea in the case, whose only job is ministerial, in other words to advise a defendant of the charge against him, set bond if bond is appropriate, and to advise him of his right to counsel and to get the administrative process going if he's indigent, the Michigan Supreme Court said if the defendant asked for appointed counsel at that stage, the police are forevermore precluded from initiating interrogation of that defendant"); id., at 8 ("First of all, as a practical matter, at least in our courts, the police are rarely present for arraignment, for this type of an arraignment, for an initial appearance, I guess we should use the terminology... . The prosecutor is not there for initial appearance. We have people brought through a tunnel. A court officer picks them up. They take them down and the judge goes through this procedure... . There is typically nobody from our side, if you will, there to see what's going on").


[148] *fn12 The preliminary examination is a preindictment stage at which the defendant is allowed to test the prosecution's evidence against him, and to try to dissuade the prosecutor from seeking an indictment. See Coleman v. Alabama, 399 U. S. 1 (1970). In Texas, the defendant is notified of his right to a preliminary hearing, which in Texas is called an "examining trial," at the article 15.17 hearing. See Tex. Crim. Proc. Code Ann., Art. 15.17(a). The examining trial in Texas is optional only, and the defendant must affirmatively request it. See Reply Brief for Petitioner 25.


[149] *fn13 The County, in its brief to this Court, suggests that although Brewer and Jackson spoke of attachment at the initial appearance, the cases might actually have turned on some unmentioned fact. As to Brewer, the County speculates that an information might have been filed before the defendant's initial appearance. See Brief for Respondent 34-36. But as Rothgery points out, the initial appearance in Brewer was made in municipal court, and a felony information could not have been filed there. See Reply Brief for Petitioner 11. As to Jackson, the County suggests that the Court might have viewed Michigan's initial arraignment as a significant proceeding only because the defendant could make a statement at that hearing, and because respondent Bladel did in fact purport to enter a plea of not guilty. See Brief for Respondent 36-37. But this attempt to explain Jackson as a narrow holding is impossible to square with Jackson's sweeping rejection of the State's claims. It is further undermined by the fact that the magistrate judge in Bladel's case, like the one in Texas's article 15.17 hearing, had no jurisdiction to accept a plea of guilty to a felony charge. See Reply Brief for Petitioner 11-12.


[150] *fn14 The 43 States are these: (1) Alaska: see Alaska Stat. §18.85.100 (2006); Alaska Rule Crim. Proc. 5 (Lexis 2006-2007); (2) Arizona: see Ariz. Rules Crim. Proc. 4.2, 6.1 (West Supp. 2007), (West 1998); (3) Arkansas: see Ark. Rule Crim. Proc. 8.2 (2006); Bradford v. State, 325 Ark. 278, 927 S. W. 2d 329 (1996); (4) California: see Cal. Penal Code §§858, 859 (West Supp. 2008); In re Johnson, 62 Cal. 2d 325, 329-330, 398 P. 2d 420, 422-423 (1965); (5) Connecticut: see Conn. Gen. Stat. §54-1b (2005); Conn. Super. Ct. Crim. Rules §§37-1, 37-3, 37-6 (West 2008); State v. Pierre, 277 Conn. 42, 95-96, 890 A. 2d 474, 507 (2006); (6) Delaware: see Del. Code Ann., Tit. 29, §4604 (2003); Del. Super. Ct. Crim. Rules 5, 44 (2008); Deputy v. State, 500 A. 2d 581 (Del. 1985); (7) Florida: see Fla. Rule Crim. Proc. 3.111 (West 2007); (8) Georgia: see Ga. Code Ann. §§17-4-26 (2004), 17-12-23 (Supp. 2007); O'Kelley v. State, 278 Ga. 564, 604 S. E. 2d 509 (2004); (9) Hawaii: see Haw. Rev. Stat. §§802-1, 803-9 (1993); (10) Idaho: see Idaho Crim. Rules 5, 44 (Lexis 2007); Idaho Code §19-852 (Lexis 2004); (11) Illinois: see Ill. Comp. Stat., ch. 725, §5/109-1 (2006); (12) Indiana: see Ind. Code §§35-33-7-5, 35-33-7-6 (West 2004); (13) Iowa: see Iowa Rules Crim. Proc. §§2.2, 2.28 (West 2008); (14) Kentucky: see Ky. Rule Crim. Proc. §3.05 (Lexis 2008); (15) Louisiana: see La. Code Crim. Proc. Ann., Art 230.1 (West Supp. 2008); (16) Maine: see Me. Rule Crim. Proc. 5C (West 2007); (17) Maryland: see Md. Ann. Code, Art. 27A, §4 (Lexis Supp. 2007); Md. Rule 4-214 (Lexis 2008); McCarter v. State, 363 Md. 705, 770 A. 2d 195 (2001); (18) Massachusetts: see Mass. Rule Crim. Proc. 7 (West 2006); (19) Michigan: see Mich. Rules Crim. Proc 6.005 (West 2008); (20) Minnesota: see Minn. Rules Crim. Proc. 5.01, 5.02 (2006); (21) Mississippi: see Jimpson v. State, 532 So. 2d 985 (Miss. 1988); (22) Missouri: see Mo. Rev. Stat. §600.048 (2000); (23) Montana: see Mont. Code Ann. §46-8-101 (2007); (24) Nebraska: see Neb. Rev. Stat. §29-3902 (1995); (25) Nevada: see Nev. Rev. Stat. §178.397 (2007); (26) New Hampshire: see N. H. Rev. Stat. Ann. §604-A:3 (2001); (27) New Jersey: see N. J. Rule Crim. Proc. 3:4-2 (West 2008); State v. Tucker, 137 N. J. 259, 645 A. 2d 111 (1994); (28) New Mexico: see N. M. Stat. Ann. §31-16-3 (2000); (29) New York: see N. Y. Crim. Proc. Law Ann. §180.10 (West 2007); (30) North Carolina: see N. C. Gen. Stat. Ann. §7A-451 (Lexis 2007); (31) North Dakota: see N. D. Rules Crim. Proc. 5, 44 (Lexis 2008-2009); (32) Ohio: see Ohio Rules Crim. Proc. 5, 44 (Lexis 2006); (33) Oregon: see Ore. Rev. Stat. §§135.010, 135.040, 135.050 (2007); (34) Pennsylvania: see Pa. Rules Crim. Proc. 122, 519 (West 2008); (35) Rhode Island: see R. I. Dist. Ct. Rules Crim. Proc. 5, 44 (2007); (36) South Dakota: see S. D. Rule Crim. Proc. §23A-40-6 (2007); (37) Tennessee: see Tenn. Rule Crim. Proc. 44 (2007); (38) Utah: see Utah Code Ann. §77-32-302 (Lexis Supp. 2007); (39) Vermont: see Vt. Stat. Ann., Tit. 13, §5234 (1998); Vt. Rules Crim. Proc. 5, 44 (2003); (40) Washington: see Wash. Super. Ct. Crim. Rule 3.1 (West 2008); (41) West Virginia: see W. Va. Code Ann. §50-4-3 (Lexis 2000); State v. Barrow, 178 W. Va. 406, 359 S. E. 2d 844 (1987); (42) Wisconsin: see Wis. Stat. §967.06 (2003-2004); (43) Wyoming: see Wyo. Stat. Ann. §7-6-105 (2007); Wyo. Rules Crim. Proc. 5, 44 (2007).


[151] *fn15 We do not here purport to set out the scope of an individual's postattachment right to the presence of counsel. It is enough for present purposes to highlight that the enquiry into that right is a different one from the attachment analysis.


[152] *fn16 The cases have defined critical stages as proceedings between an individual and agents of the State (whether "formal or informal, in court or out," see United States v. Wade, 388 U. S. 218, 226 (1967)) that amount to "trial-like confrontations," at which counsel would help the accused "in coping with legal problems or ... meeting his adversary," United States v. Ash, 413 U. S. 300, 312-313 (1973); see also Massiah v. United States, 377 U. S. 201 (1964).


[153] *fn17 The dissent likewise anticipates an issue distinct from attachment when it claims Rothgery has suffered no harm the Sixth Amendment recognizes. Post, at 18. Whether the right has been violated and whether Rothgery has suffered cognizable harm are separate questions from when the right attaches, the sole question before us.


[154] *fn18 The Court also relies on McNeil v. Wisconsin, 501 U. S. 171 (1991), to support its assertion that the right to counsel attaches upon an initial appearance before a magistrate. Ante, at 10-11. But in McNeil, the Court expressed no view whatsoever on the attachment issue. Rather, it noted that the issue was "undisputed," and "accept[ed] for purposes of the present case, that ... [the defendant's] Sixth Amendment right had attached." 501 U. S., at 175. We do not ordinarily give weight to assumptions made in prior cases about matters that were not in dispute.


[155] *fn19 The Court asserts that Jackson's "conclusion was driven by the same considerations the Court had endorsed in Brewer," namely, that "by the time a defendant is brought before a judicial officer, is informed of a formally lodged accusation, and has restrictions imposed on his liberty in aid of the prosecution, the State's relationship with the defendant has become solidly adversarial." Ante, at 9. But Jackson said nothing of the sort.
Moreover, even looking behind the opinion, Jackson does not support the result the Court reaches today. Respondent Bladel entered a "not guilty" plea at his arraignment, see Brief for Petitioner in Michigan v. Bladel, O. T. 1985, No. 84-1539, p. 4, and both Hamilton v. Alabama, 368 U. S. 52 (1961), and White v. Maryland, 373 U. S. 59 (1963) (per curiam), had already held that a defendant has a right to counsel when he enters a plea. The Court suggests that this fact is irrelevant because the magistrate in Bladel's case "had no jurisdiction to accept a plea of guilty to a felony charge." Ante, at 10, n. 13. But that distinction does not appear in either Hamilton or White. See Hamilton, supra, at 55 ("Only the presence of counsel could have enabled this accused to know all the defenses available to him and to plead intelligently"); White, supra, at 60 ("[P]petitioner entered a plea before the magistrate and that plea was taken at a time when he had no counsel"). Thus, the most that Jackson can possibly be made to stand for is that the right to counsel attaches at an initial appearance where the defendant enters a plea. And that rule would not govern this case because petitioner did not enter a plea at his initial appearance.