Does the Suspension Clause of the Constitution Apply to Detainees?
The detainees also argue that, under INS v. St. Cyr, the Suspension Clause applies to them because the common law writ of habeas corpus, as it existed in 1789, would have extended to them. See Brief for Petitioners Al Odah at 13. In St. Cyr, the Supreme Court announced that “at the absolute minimum, the Suspension Clause protects the writ ‘as it existed in 1789,'” when the Constitution was ratified. 533 U.S. at 301. In support of their position, the detainees cite Rasul’s analysis of English cases prior to 1789 demonstrating that the writ was available to aliens held outside English sovereign territory in areas subject to the Crown’s de facto control. See Brief for Boumediene Petitioners at 12-13. In their amicus brief, the Legal Historians note that English courts in India issued writs prior to Britain’s 1813 assertion of formal sovereignty. See Brief of Legal Historians as Amici Curiae in Support of Petitioners at 13. Finally, the detainees point to the Rasul court’s finding that Gua
