* 124 S. Ct. 2633; 159 L. Ed. 2d 578

1 Here the basis asserted for detention by the military is that Hamdi was carrying a weapon against American troops on a foreign battlefield; that is, that he was an enemy combatant. The legal category of enemy combatant has not been elaborated upon in great detail. The permissible bounds of the category will be defined by the lower courts as subsequent cases are presented to them.

2 Because we hold that Hamdi is constitutionally entitled to the process described above, we need not address at this time whether any treaty guarantees him similar access to a tribunal for a determination of his status.

1 The Government has since February 2004 permitted Hamdi to consult with counsel as a matter of policy, but does not concede that it has an obligation to allow this. Brief for Respondents 9, 39—46.

2 Nor is it possible to distinguish between civilian and military authority to detain based on the congressional object of avoiding another Korematsu v. United States, 323 U.S. 214 (1944). See Brief for Respondents 21 (arguing that military detentions are exempt). Although a civilian agency authorized by Executive order ran the detention camps, the relocation and detention of American citizens was ordered by the military under authority of the President as Commander in Chief. See Exparte Endo, 323 U.S. 283, 285—288 (1944). The World War II internment was thus ordered under the same Presidential power invoked here and the intent to bar a repetition goes to the action taken and authority claimed here.

3 As noted, supra, at 3, the Government argues that a required Act of Congress is to be found in a statutory authorization to spend money appropriated for the care of prisoners of war and of other, similar prisoners, 10 U.S.C. §956(5). It is enough to say that this statute is an authorization to spend money if there are prisoners, not an authorization to imprison anyone to provide the occasion for spending money.

4 Even a brief examination of the reported cases in which the Government has chosen to proceed criminally against those who aided the Taliban shows the Government has found no shortage of offenses to allege. See United States v. Lindh, 212 F. Supp. 2d 541, 547 (ED Va. 2002); United States v. Khan, 309 F. Supp. 2d 789, 796 (ED Va. 2004).

1 As I shall discuss presently, see infra, at 17—19, the Court purported to limit this language in Ex parte Quirin, 317U.S. 1,45 (1942). Whatever Quirin's effect on Milligaris precedential value, however, it cannot undermine its value as an indicator of original meaning. Cf. Reidv. Covert, 354 U.S. 1, 30 (1957) (plurality opinion) (Milligan remains “one of the great landmarks in this Court's history”).

2 Without bothering to respond to this analysis, the plurality states that Milligan “turned in large part” upon the defendant's lack of prisoner-of-war status, and that the Milligan Court explicitly and repeatedly said so. See ante, at 14. Neither is true. To the extent, however, that prisoner-of-war status was relevant in Milligan, it was only because prisoners of war received different statutory treatment under the conditional suspension then in effect.

3 The only two Court of Appeals cases from World War II cited by the Government in which citizens were detained without trial likewise involved petitioners who were conceded to have been members of enemy forces. See/n re Territo, 156 F. 2d 142,143—145 (CA9 1946); Colepaugh v. Looney, 235 F. 2d 429, 432 (CA10 1956). The plurality complains that Territo is the only case I have identified in which “a United States citizen [was] captured in zforeign combat zone,” ante, at 16. Indeed it is; such cases must surely be rare. But given the constitutional tradition I have described, the burden is not upon me to find cases in which the writ was granted to citizens in this country who had been captured on foreign battlefields; it is upon those who would carve out an exception for such citizens (as the plurality's complaint suggests it would) to find a single case (other than one where enemy status was admitted) in which habeas was denied.

4 The plurality 's assertion that Quirin somehow “clarifies” Milligan, ante, at 15, is simply false. As I discuss supra, at 17—19, the Quirin Court propounded a mistaken understanding of Milligan; but nonetheless its holding was limited to “the case presented by the present record,” and to “the conceded facts,” and thus avoided conflict with the earlier case. See 317 U.S., at 45—46 (emphasis added). The plurality, ignoring this expressed limitation, thinks it “beside the point” whether belligerency is conceded or found “by some other process” ((not necessarily a jury trial) “that verifies this fact with sufficient certainty.” Ante, at 16. But the whole point of the procedural guarantees in the Bill of Rights is to limit the methods by which the Government can determine facts that the citizen disputes and on which the citizen's liberty depends. The plurality's claim that Quirin's one-paragraph discussion of Milligan provides a “[c]lear . . . disavowal” of two false imprisonment cases from the War of 1812, ante, at 15, thus defies logic; unlike the plaintiffs in those cases, Haupt was concededly a member of an enemy force.

The Government also cites Moyerv. Peabody, 212 U.S. 78 (1909), a suit for damages against the Governor of Colorado, for violation of due process in detaining the alleged ringleader of a rebellion quelled by the state militia after the Governor's declaration of a state of insurrection and (he contended) suspension of the writ “as incident thereto.” Ex parte Moyer, 35 Colo. 154, 157, 91 P. 738, 740 (1905). But the holding of Moyer v. Peabody (even assuming it is transferable from state-militia detention after state suspension to federal standing-army detention without suspension) is simply that “[s]o long as such arrests [were] made in good faith and in the honest belief that they [were]needed in order to head the insurrection off,” 212 U.S., at 85, an action in damages could not lie. This “good-faith” analysis is a forebear of our modern doctrine of qualified immunity. Cf. Scheuer v. Rhodes, 416 U.S. 232, 247—248 (1974) (understanding Moyer in this way). Moreover, the detention at issue in Moyer lasted about two and a half months, see 212 U.S., at 85, roughly the length of time permissible under the 1679 Habeas Corpus Act, see supra, at 4—5.

In addition to Moyer v. Peabody, JUSTICE THOMAS relies upon Luther v. Borden, 1 How. 1(1849), a case in which the state legislature had imposed martial law — a step even more drastic than suspension of the writ. Secpost, at 13—14 (dissenting opinion). But martial law has not been imposed here, and in any case is limited to “the theatre of active military operations, where war really prevails,” and where therefore the courts are closed. Ex parte Milligan, 4 Wall. 2, 127 (1866); see also id., at 129—130 (distinguishing Luther).

5 The plurality rejects any need for “specific language of detention” on the ground that detention of alleged combatants is a “fundamental incident of waging war.” Ante, at 12. Its authorities do not support that holding in the context of the present case. Some are irrelevant because they do not address the detention of American citizens. E.g., Naqvi, Doubtful Prisoner-of-War Status, 84 Int' Rev. Red Cross 571, 572 (2002). The plurality's assertion that detentions of citizen and alien combatants are equally authorized has no basis in law or common sense. Citizens and non-citizens, even if equally dangerous, are not similarly situated. See, e.g., Milligan, supra; Johnson v. Eisentrager, 339 U.S. 763 (1950); Rev. Stat. 4067, 50 U.S.C. §21 (Alien Enemy Act). That captivity may be consistent with the principles of international law does not prove that it also complies with the restrictions that the Constitution places on the American Government's treatment of its own citizens. Of the authorities cited by the plurality that do deal with detention of citizens, Quirin and Territo have already been discussed and rejected. See supra, at 19—20, and n. 3. The remaining authorities pertain to U.S. detention of citizens during the Civil War, and are irrelevant for two reasons: (1) the Lieber Code was issued following a congressional authorization of suspension of the writ, see Instructions for the Government of Armies of the United States in the Field, Gen. Order No. 100 (1863), reprinted in 2 Lieber, Miscellaneous Writings, p. 246; Act of Mar. 3,1863, 12 Stat. 755, ʧʧ1,2; and (2) citizens of the Confederacy, while citizens of the United States, were also regarded as citizens of a hostile power.

6 JUSTICE THOMAS worries that the constitutional conditions for suspension of the writ will not exist “during many ……… emergencies

6 JUSTICE THOMAS worries that the constitutional conditions for suspension of the writ will not exist “during many ……… emergencies during which … …… detention authority might be necessary,” post, at 16. It is difficult to imagine situations in which security is so seriously threatened as to justify indefinite imprisonment without trial, and yet the constitutional conditions of rebellion or invasion are not met.

1 Although I have emphasized national-security concerns, the President's foreign-affairs responsibilities are also squarely implicated by this case. The Government avers that Northern Alliance forces captured Hamdi, and the District Court demanded that the Government turn over information relating to statements made by members of the Northern Alliance. See316F.3d450,462 (C A4 2003).

2 It could be argued that the habeas statutes are evidence of congressional intent that enemy combatants are entitled to challenge the factual basis for the Government’ s determination. See, e.g. , 28 U.S.C. §§2243, 2246. But factual development is needed only to the extent necessary to resolve the legal challenge to the detention. See, e.g., Walker v. Johnston, 312 U.S. 275, 284 (1941).

3 Indeed, it is not even clear that the Court required good faith. See Moyer, 212 U.S., at 85 (“It is not alleged that [the Governor's] judgment was not honest, if that be material, or that [Moyer] was detained after fears of the insurrection were at an end”).

4 I agree with Justice Scalia that this Court could not review Congress¹ decision to suspend the writ. See ante, at 26.

5 Evidently, neither do the parties, who do not cite Mathews even once.

6 Hamdi's detention comports with the laws of war, including the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U.S.T. 3406, T.I.A.S. No. 3364. See Brief for Respondents 22—24.

7 These observations cast still more doubt on the appropriateness and usefulness of Mathews v. Eldridge, 424 U.S. 319 (1976), in this context. It is, for example, difficult to see how the plurality can insist that Hamdi unquestionably has the right to access to counsel in connection with the proceedings on remand, when new information could become available to the Government showing that such access would pose a grave risk to national security. In that event, would the Government need to hold a hearing before depriving Hamdi of his newly acquired right to counsel even if that hearing would itself pose a grave threat?