“ The War of 1812 made Lockington an “enemy alien” under the Alien Enemies Act of 1798. Although he lost on the merits of his petition for habeas corpus before the Pennsylvania Supreme Court, two of three Pennsylvania justices held that he was entitled to review of his detention. ”

“ If he did not produce the body, he incurred a fine. One can easily imagine the practical problems this would have entailed if the writ had run outside the sovereign territory of the Crown and reached British soldiers holding foreign prisoners in overseas conflicts, such as the War of 1812. The short of the matter is that given the history of the writ in England prior to the founding, habeas corpus would not have been available in 1789 to aliens without presence or property within the United States. ”

“ While judgments of military necessity are entitled to deference by the courts and while temporary custody during wartime may be justified in order properly to process those who have been captured, the Executive has had ample opportunity during the past five years during which the detainees have been held at Guantanamo Bay to determine who is being held and for what reason. ”

“ After the Supreme Court of the Federation of Bosnia and Herzegovina ordered the six men to be released in January 2002, [11] they were seized by United States forces and transported to Guantanamo Bay. The Khalid decision also covers the separate case of a French citizen seized in Pakistan and transported to Guantanamo Bay. Rejecting the petitioners’ claim that their detention is unjustified, the district court ruled that “no viable legal theory exists by which [the district court] could issue a writ of habeas corpus under” the circumstances presented, id. ”

“ The Supreme Court has stated the Suspension Clause protects the writ “as it existed in 1789,” when the first Judiciary Act created the federal courts and granted jurisdiction to issue writs of habeas corpus. St. Cyr, 533 U.S. at 301; cf. Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 170 (1970) . The detainees rely mainly on three cases to claim that in 1789 the privilege of the writ extended to aliens outside the sovereign’s territory. ”

“ The government maintains that a series of World War II-era cases undercuts the proposition that habeas review of uncharged detainees requires a factual assessment. It cites several cases in which courts have refused to engage in factual review of the findings of military tribunals imposing sentences under the laws of war. ”

“ Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.” Id. at 768; see also Note, Habeas Corpus Protection Against Illegal Extraterritorial Detention, 51 Colum. L. Rev. 368, 368 (1951) . The detainees claim they are in a different position than the prisoners in Eisentrager, and that this difference is material for purposes of common law habeas. [8] They point to dicta in Rasul, 542 U.S. 481-82, in which the Court discussed English habeas cases and the “historical reach of the writ.” ”

“ II. In In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443 (D.D.C. 2005) , Judge Joyce Hens Green addressed eleven coordinated habeas cases involving 56 aliens being detained by the United States as “enemy combatants” at Guantanamo Bay, id. at 445. These detainees are citizens of friendly nations — Australia, Bahrain, Canada, Kuwait, Libya, Turkey, the United Kingdom, and Yemen — who were seized in Afghanistan, Bosnia and Herzegovina, The Gambia, Pakistan, Thailand, and Zambia. Each detainee maintains that he was wrongly classified as an “enemy combatant.” ”

“ Unlike the uniformed combat that is contemplated by the laws of war, see generally William Winthrop, Military Law and Precedents (2d ed. 1920) , the Geneva Conventions, e.g., Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, and the Constitution, see U.S. Const. art. ”