In analyzing whether Hamdan was entitled to petition for a writ of habeas corpus, Judge Robertson, citing Eisentrager, wrote:

The Supreme Court held that [the petitioners] were not entitled to habeas relief . . . 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.

But that clearly was not the case for Hamdan, who was held in Guantanamo, which the Supreme Court ruled in Rasul was US territory for habeas purposes:

“[T]he writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody,” a district court acts “within [its] respective jurisdiction” within the meaning of §2241 as long as “the custodian can be reached by service of process.” 410 U. S., at 494–495. . . .Putting Eisentrager and Ahrens to one side, respondents contend that we can discern a limit on §2241 through application of the “longstanding principle of American law” that congressional legislation is presumed not to have extraterritorial application unless such intent is clearly manifested. EEOC v. Arabian American Oil Co., 499 U. S. 244, 248 (1991). Whatever traction the presumption against extraterritoriality might have in other contexts, it certainly has no application to the operation of the habeas statute with respect to persons detained within “the territorial jurisdiction” of the United States. Foley Bros., Inc. v. Fi-lardo, 336 U. S. 281, 285 (1949). By the express terms of its agreements with Cuba, the United States exercises “complete jurisdiction and control” over the Guantanamo Bay Naval Base, and may continue to exercise such control permanently if it so chooses.

While Rasul was interpeting the reach of the habeas statute, it seems inconceivable to me that the Constitution's express mandate concerning the Great Writ would not reach as far as the the power of Congress to grant it. Historically, as the Rasul majority points out, it was not so. For the right to the great Writ extended as far as the King's power.

Clearly that could not be the basis for Judge Robertson's reasoning. Judge Robertson, simply glosses over this fact and continues his analysis, rebutting Hamdan's attempts to distinguish Eisentrager:

Here, however, as in Eisentrager, . . . Hamdan's exact affiliations is for our purposes, immaterial.

But is this what Eisentrager says? Hardly. What Eisentrager was referring to was whether the petitioners were civilian or military was immaterial, not that they were enemy aliens. Judge Robertson completely misconstrues Eisentrager on this point.

But now we come to Judge Robertson's most grievous error:

Hamdan's lengthy detention beyond American borders but within the jurisdictional authority of the United States is historically unique. Nevertheless, . . . his connection to the United States lacks the geographical and volitional predicates necessary to claim a constitutional right to habeas corpus.

This is simply a complete misreading of Eisentrager. What did Eisentrager say on this point?

We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption 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; © 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.

Look at the facts the Eisentrager Court is relying on - the petitioner ARE enemy aliens. The petitioners are being held OUTSIDE US territory. The petitioner were tried OUTSIDE of US territory. The petitioners were at all times imprisoned OUTSIDE of US territory.

None of these are accepted facts in Hamdan. And these are no mere details. They are central to the Eisentrager decision. It is the fact that the petitioners were enemy aliens - an undisputed fact - that is paramount in Eisentrager:

The prisoners rely, however, upon two decisions of this Court to get them over the threshold -- Ex parte Quirin, 317 U.S. 1, and In re Yamashita, 327 U.S. 1. Reliance on the Quirin case is clearly mistaken. Those prisoners were in custody in the District of Columbia. One was, or claimed to be, a citizen. They were tried by a Military Commission sitting in the District of Columbia at a time when civil courts were open and functioning normally. They were arrested by civil authorities and the prosecution was personally directed by the Attorney General, a civilian prosecutor, for acts committed in the United States. . . . None of the places where they were acting, arrested, tried or imprisoned were, it was contended, in a zone of active military operations or under martial law or any other military control, and no circumstances justified transferring them from civil to military jurisdiction. None of these grave grounds for challenging military jurisdiction can be urged in the case now before us.

It is clear that Eisentrager is decided based upon the enemy alien status of the petitioners AND the lack of territorial nexus of the events, NOT because of the petitioners' failure to enmesh themselves in the United States.

The Constitution, if it applies, does not depend upon the actions of the person, but rather upon the actions of the government, as Rasul states. Judge Robertson writes of the "volition" of Hamdan, when it is the volition of the government which is the issue here. The government brought Hamdan to US territory. But according to Robertson's logic, Hamdan could have been held in prison in Washington, DC, but the Constitution would still not apply to him with regard to habeas corpus, whether an enemy alien or not. That simply does not square with Eisentrager, which relies principally on the fact tha the petitioners were indisputably enemy aliens:

Despite this, the doors of our courts have not been summarily closed upon these prisoners. Three courts have considered their application and have provided their counsel opportunity to advance every argument in their support and to show some reason in the petition why they should not be subject to the usual disabilities of nonresident enemy aliens. This is the same preliminary hearing as to sufficiency of application that was extended in Quirin, supra, Yamashita, supra, and Hirota v. MacArthur, 338 U.S. 197. After hearing all contentions they have seen fit to advance and considering every contention we can base on their application and the holdings below, we arrive at the same conclusion the Court reached in each of those cases, viz.: that no right to the writ of habeas corpus appears.

. . . The doctrine that the term "any person" in the Fifth Amendment spreads its protection over alien enemies anywhere in the world engaged in hostilities against us, should be weighed in light of the full text of that Amendment . . . If this Amendment invests enemy aliens in unlawful hostile action against us with immunity from military trial, it puts them in a more protected position than our own soldiers. . . . Can there be any doubt that our foes would also have been excepted, but for the assumption "any person" would never be read to include those in arms against us? It would be a paradox indeed if what the Amendment denied to Americans it guaranteed to enemies. . . The decision below would extend coverage of our Constitution to nonresident alien enemies denied to resident alien enemies. The latter are entitled only to judicial hearing to determine what the petition of these prisoners admits: that they are really alien enemies. When that appears, those resident here may be deprived of liberty by Executive action without hearing. Ludecke v. Watkins, 335 U.S. 160. While this is preventive rather than punitive detention, no reason is apparent why an alien enemy charged with having committed a crime should have greater immunities from Executive action than one who it is only feared might at some future time commit a hostile act.

. . . We hold that the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.

The dissent in Eisentrager correctly points out that the majority indeed provides a pseudo-habeas review on the question of whether the petitioers are in fact enemy aliens, and also concedes that were they held and tried in United States territory, they would have a right to a habeas review, irrespective of their volition. But that is one of two points the majority made - the main one being that the petitioners were in fact admitted enemy aliens.

Judge Robertson's opinion obliterates this requirement and instead holds that any alien ALLEGED to be an enemy without the sufficient territorial nexus has no Constitutional right to petition for habeas relief. This rule would grant to the Executive the unilateral and plenary power to strip persons of their Constitutional rights by mere allegation.

Indeed, it is utterly antithetical to the Great Writ. Interestingly, it appears to me that there is likely strong evidence that Hamdan was in fact an enemy combatant - he was bin Laden's driver for crissake. Thus, he would be subject to military law - including the Geneva Conventions. But Judge Robertson's decision does not require such a finding and will do serious damage to the ability of detained aliens to obtain rulings on their prisoner of war status, to invoke Geneva or to prove that they are in fact NOT enemy aliens.

Far from being the best one could hope for, as Lemieux and Greenwald assert, Judge Robertson's decision strikes me as about as bad as one could have feared. Certainly, it adds nothing to Eisentrager. It detracts from it.