These two cases present the narrow but important question whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba.
I
On September 11, 2001, agents of the al Qaeda terrorist network hijacked four commercial airliners and used them as missiles to attack American targets. While one of the four attacks was foiled by the heroism of the plane's passengers, the other three killed approximately 3,000 innocent civilians, destroyed hundreds of millions of dollars of property, and severely damaged the U. S. economy. In response to the attacks, Congress passed a joint resolution authorizing the President to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks . . . or harbored such organizations or persons." Authorization for Use of Military Force, Pub. L. 107-40, §§ 1-2, 115 Stat. 224. Acting pursuant to that authorization, the President sent U. S. Armed Forces into Afghanistan to wage a military campaign against al Qaeda and the Taliban regime that had supported it.
Petitioners in these cases are 2 Australian citizens and 12 Kuwaiti citizens who were captured abroad during hostilities
In 2002, petitioners, through relatives acting as their next friends, filed various actions in the U.S. District Court for the District of Columbia challenging the legality of their detention at the base. All alleged that none of the petitioners has ever been a combatant against the United States or has
The two Australians, Mamdouh Habib and David Hicks, each filed a petition for writ of habeas corpus, seeking release from custody, access to counsel, freedom from interrogations, and other relief. Id., at 98-99, 124-126. Fawzi Khalid Abdullah Fahad Al Odah and the 11 other Kuwaiti detainees filed a complaint seeking to be informed of the charges against them, to be allowed to meet with their families and with counsel, and to have access to the courts or some other impartial tribunal. Id., at 34. They claimed that denial of these rights violates the Constitution, international law, and treaties of the United States. Invoking the court's jurisdiction under 28 U.S.C. §§ 1331 and 1350, among other statutory bases, they asserted causes of action under the Administrative Procedure Act, 5 U.S.C. §§ 555, 702, 706; the Alien Tort Statute, 28 U.S.C. § 1350; and the general federal habeas corpus statute, §§ 2241-2243. App. 19.
Construing all three actions as petitions for writs of habeas corpus, the District Court dismissed them for want of jurisdiction. The court held, in reliance on our opinion in Johnson v. Eisentrager, 339 U.S. 763 (1950), that "aliens detained outside the sovereign territory of the United States
II
Congress has granted federal district courts, "within their respective jurisdictions," the authority to hear applications for habeas corpus by any person who claims to be held "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §§ 2241(a), (c)(3). The statute traces its ancestry to the first grant of federal-court jurisdiction: Section 14 of the Judiciary Act of 1789 authorized federal courts to issue the writ of habeas corpus to prisoners who are "in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the same." Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 82. In 1867, Congress extended the protections of the writ to "all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States." Act of Feb. 5, 1867, ch. 28, 14 Stat. 385. See Felker v. Turpin, 518 U.S. 651, 659-660 (1996).
Habeas corpus is, however, "a writ antecedent to statute, ... throwing its root deep into the genius of our common law." Williams v. Kaiser, 323 U.S. 471, 484, n. 2 (1945) (internal quotation marks omitted). The writ appeared in English law several centuries ago, became "an integral part of our common-law heritage" by the time the
As it has evolved over the past two centuries, the habeas statute clearly has expanded habeas corpus "beyond the limits that obtained during the 17th and 18th centuries." Swain v. Pressley, 430 U.S. 372, 380, n. 13 (1977). But "[a]t its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest." INS v. St. Cyr, 533 U.S. 289, 301 (2001). See also Brown v. Allen, 344 U.S. 443, 533 (1953) (Jackson, J., concurring in result) ("The historic purpose of the writ has been to relieve detention by executive authorities without judicial trial"). As Justice Jackson wrote in an opinion respecting the availability of habeas corpus to aliens held in U.S. custody:
Consistent with the historic purpose of the writ, this Court has recognized the federal courts' power to review applications for habeas relief in a wide variety of cases involving Executive detention, in wartime as well as in times of peace. The Court has, for example, entertained the habeas petitions of an American citizen who plotted an attack on military installations during the Civil War, Ex parte
The question now before us is whether the habeas statute confers a right to judicial review of the legality of Executive detention of aliens in a territory over which the United States exercises plenary and exclusive jurisdiction, but not "ultimate sovereignty."
III
Respondents' primary submission is that the answer to the jurisdictional question is controlled by our decision in Eisentrager. In that case, we held that a Federal District Court lacked authority to issue a writ of habeas corpus to 21 German citizens who had been captured by U.S. forces in China, tried and convicted of war crimes by an American military commission headquartered in Nanking, and incarcerated in the Landsberg Prison in occupied Germany. The Court of Appeals in Eisentrager had found jurisdiction, reasoning that "any person who is deprived of his liberty by officials of the United States, acting under purported authority of that Government, and who can show that his confinement is in violation of a prohibition of the Constitution, has a right to the writ." Eisentrager v. Forrestal, 174 F.2d 961, 963 (CADC 1949). In reversing that determination, this Court summarized the six critical facts in the case:
On this set of facts, the Court concluded, "no right to the writ of habeas corpus appears." Id., at 781.
Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.
Not only are petitioners differently situated from the Eisentrager detainees, but the Court in Eisentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners' constitutional entitlement to habeas corpus. Id., at 777. The Court had far less to say on the question of the petitioners' statutory entitlement to habeas review. Its only statement on the subject was a passing reference to the absence of statutory authorization: "Nothing in the text of the Constitution extends such a right, nor does anything in our statutes." Id., at 768.
Reference to the historical context in which Eisentrager was decided explains why the opinion devoted so little attention to the question of statutory jurisdiction. In 1948, just two months after the Eisentrager petitioners filed their petition for habeas corpus in the U.S. District Court for the District of Columbia, this Court issued its decision in Ahrens v. Clark, 335 U.S. 188, a case concerning the application of the habeas statute to the petitions of 120 Germans who were
When the District Court for the District of Columbia reviewed the German prisoners' habeas application in Eisentrager, it thus dismissed their action on the authority of Ahrens. See Eisentrager, 339 U.S., at 767, 790. Although the Court of Appeals reversed the District Court, it implicitly conceded that the District Court lacked jurisdiction under the habeas statute as it had been interpreted in Ahrens. The Court of Appeals instead held that petitioners had a constitutional right to habeas corpus secured by the Suspension Clause, U.S. Const., Art. I, § 9, cl. 2, reasoning that "if a person has a right to a writ of habeas corpus, he cannot be deprived of the privilege by an omission in a federal
Because subsequent decisions of this Court have filled the statutory gap that had occasioned Eisentrager's resort to "fundamentals," persons detained outside the territorial jurisdiction of any federal district court no longer need rely on the Constitution as the source of their right to federal habeas review. In Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 495 (1973), this Court held, contrary to Ahrens, that the prisoner's presence within the territorial jurisdiction of the district court is not "an invariable prerequisite" to the exercise of district court jurisdiction under the federal habeas statute. Rather, because "the 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
Because Braden overruled the statutory predicate to Eisentrager's holding, Eisentrager plainly does not preclude the exercise of § 2241 jurisdiction over petitioners' claims.
IV
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 extra-territoriality 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. Filardo, 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. 1903 Lease Agreement, Art. III; 1934
Application of the habeas statute to persons detained at the base is consistent with the historical reach of the writ of habeas corpus. At common law, courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm,
V
In addition to invoking the District Court's jurisdiction under § 2241, the Al Odah petitioners' complaint invoked the court's jurisdiction under 28 U.S.C. § 1331, the federal-question statute, as well as § 1350, the Alien Tort Statute. The Court of Appeals, again relying on Eisentrager, held that the District Court correctly dismissed the claims founded on § 1331 and § 1350 for lack of jurisdiction, even to the extent that these claims "deal only with conditions of confinement and do not sound in habeas," because petitioners lack the "privilege of litigation" in U.S. courts. 321 F. 3d, at 1144 (internal quotation marks omitted). Specifically, the court held that because petitioners' § 1331 and § 1350 claims "necessarily rest on alleged violations of the same category of laws listed in the habeas corpus statute," they, like claims founded on the habeas statute itself, must be "beyond the jurisdiction of the federal courts." Id., at 1144-1145.
As explained above, Eisentrager itself erects no bar to the exercise of federal-court jurisdiction over the petitioners' habeas corpus claims. It therefore certainly does not bar the exercise of federal-court jurisdiction over claims that merely implicate the "same category of laws listed in the habeas corpus statute." But in any event, nothing in Eisentrager or in any of our other cases categorically excludes aliens detained in military custody outside the United States from the "`privilege of litigation'" in U.S. courts. 321 F. 3d, at 1139. The courts of the United States have traditionally been open to nonresident aliens. Cf. Disconto Gesellschaft v. Umbreit, 208 U.S. 570, 578 (1908) ("Alien citizens, by the policy and practice of the courts of this country, are ordinarily permitted to resort to the courts for the redress of wrongs and the
VI
Whether and what further proceedings may become necessary after respondents make their response to the merits of petitioners' claims are matters that we need not address now. What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing. Answering that question in the affirmative, we reverse the judgment of the Court of Appeals and remand these cases for the District Court to consider in the first instance the merits of petitioners' claims.
It is so ordered.
JUSTICE KENNEDY, concurring in the judgment.
The Court is correct, in my view, to conclude that federal courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals held at the Guantanamo Bay Naval Base in Cuba. While I reach the same conclusion, my analysis follows a different course. JUSTICE SCALIA exposes the weakness in the Court's conclusion that Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973), "overruled the statutory predicate to Eisentrager's holding," ante, at 479. As he explains, the Court's approach is not a plausible reading of Braden or Johnson v. Eisentrager, 339 U.S. 763 (1950). In my view, the correct course is to follow the framework of Eisentrager.
Eisentrager considered the scope of the right to petition for a writ of habeas corpus against the backdrop of the constitutional
The Court began by noting the "ascending scale of rights" that courts have recognized for individuals depending on their connection to the United States. Id., at 770. Citizenship provides a longstanding basis for jurisdiction, the Court noted, and among aliens physical presence within the United States also "gave the Judiciary power to act." Id., at 769, 771. This contrasted with the "essential pattern for seasonable Executive constraint of enemy aliens." Id., at 773. The place of the detention was also important to the jurisdictional question, the Court noted. Physical presence in the United States "implied protection," id., at 777-778, whereas in Eisentrager "th[e] prisoners at no relevant time were within any territory over which the United States is sovereign," id., at 778. The Court next noted that the prisoners in Eisentrager "were actual enemies" of the United States, proven to be so at trial, and thus could not justify "a limited opening of our courts" to distinguish the "many [aliens] of friendly personal disposition to whom the status of enemy" was unproven. Ibid. Finally, the Court considered the extent to which jurisdiction would "hamper the war effort and bring aid and comfort to the enemy." Id., at 779. Because the prisoners in Eisentrager were proven enemy aliens found and detained outside the United States, and because the existence of jurisdiction would have had a clear harmful effect on the Nation's military affairs, the matter was appropriately left to the Executive Branch and there was no jurisdiction for the courts to hear the prisoner's claims.
The facts here are distinguishable from those in Eisentrager in two critical ways, leading to the conclusion that a federal court may entertain the petitions. First, Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities. The opinion of the Court well explains the history of its possession by the United States. In a formal sense, the United States leases the Bay; the 1903 lease agreement states that Cuba retains "ultimate sovereignty" over it. Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, U.S.-Cuba, Art. III, T. S. No. 418. At the same time, this lease is no ordinary lease. Its term is indefinite and at the discretion of the United States. What matters is the unchallenged and indefinite control that the United States has long exercised over Guantanamo Bay. From a practical perspective, the indefinite lease of Guantanamo Bay has produced a place that belongs to the United States, extending the "implied protection" of the United States to it. Eisentrager, supra, at 777-778.
The second critical set of facts is that the detainees at Guantanamo Bay are being held indefinitely, and without
In light of the status of Guantanamo Bay and the indefinite pretrial detention of the detainees, I would hold that federal-court jurisdiction is permitted in these cases. This approach would avoid creating automatic statutory authority to adjudicate the claims of persons located outside the United States, and remains true to the reasoning of Eisentrager. For these reasons, I concur in the judgment of the Court.
JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, dissenting.
The Court today holds that the habeas statute, 28 U.S.C. § 2241, extends to aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts. This is not only a novel holding; it contradicts a half-century-old precedent on which the military undoubtedly relied, Johnson v. Eisentrager, 339 U.S. 763 (1950). The Court's contention that Eisentrager was somehow negated
I
As we have repeatedly said: "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree. It is to be presumed that a cause lies outside this limited jurisdiction...." Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994) (citations omitted). The petitioners do not argue that the Constitution independently requires jurisdiction here.
It further requires that "[t]he order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had." (Emphases added.) And § 2242 provides that a petition "addressed to the Supreme Court, a justice thereof or a circuit judge ...
The Court asserts, however, that the decisions of this Court have placed a gloss on the phrase "within their respective jurisdictions" in § 2241 which allows jurisdiction in these cases. That is not so. In fact, the only case in point holds just the opposite (and just what the statute plainly says). That case is Eisentrager, but to fully understand its implications for the present dispute, I must also discuss our decisions in the earlier case of Ahrens v. Clark, 335 U.S. 188 (1948), and the later case of Braden.
In Ahrens, the Court considered "whether the presence within the territorial jurisdiction of the District Court of the person detained is prerequisite to filing a petition for a writ of habeas corpus." 335 U.S., at 189 (construing 28 U.S.C. § 452, the statutory precursor to § 2241). The Ahrens detainees were held at Ellis Island, New York, but brought their petitions in the District Court for the District of Columbia. Interpreting "within their respective jurisdictions," the Court held that a district court has jurisdiction to issue the writ only on behalf of petitioners detained within its territorial jurisdiction. It was "not sufficient ... that the jailer or custodian alone be found in the jurisdiction." 335 U.S., at 190.
Ahrens explicitly reserved "the question of what process, if any, a person confined in an area not subject to the jurisdiction of any district court may employ to assert federal rights." Id., at 192, n. 4. That question, the same question
Eisentrager's directly-on-point statutory holding makes it exceedingly difficult for the Court to reach the result it desires today. To do so neatly and cleanly, it must either argue that our decision in Braden overruled Eisentrager, or admit that it is overruling Eisentrager. The former course would not pass the laugh test, inasmuch as Braden dealt with a detainee held within the territorial jurisdiction of a district court, and never mentioned Eisentrager. And the latter course would require the Court to explain why our almost categorical rule of stare decisis in statutory cases should be set aside in order to complicate the present war, and, having set it aside, to explain why the habeas statute does not mean what it plainly says. So instead the Court tries an oblique course: "Braden," it claims, "overruled the statutory predicate
But in fact Braden did not overrule Ahrens; it distinguished Ahrens. Braden dealt with a habeas petitioner incarcerated in Alabama. The petitioner filed an application for a writ of habeas corpus in Kentucky, challenging an indictment that had been filed against him in that Commonwealth and naming as respondent the Kentucky court in which the proceedings were pending. This Court held that Braden was in custody because a detainer had been issued against him by Kentucky, and was being executed by Alabama, serving as an agent for Kentucky. We found that jurisdiction existed in Kentucky for Braden's petition challenging the Kentucky detainer, notwithstanding his physical confinement in Alabama. Braden was careful to distinguish that situation from the general rule established in Ahrens.
This cannot conceivably be construed as an overturning of the Ahrens rule in other circumstances. See also Braden, supra, at 499-500 (noting that Ahrens does not establish "an inflexible jurisdictional rule dictating the choice of an inconvenient forum even in a class of cases which could not have been foreseen at the time of that decision" (emphasis added)). Thus, Braden stands for the proposition, and only the proposition, that where a petitioner is in custody in multiple jurisdictions within the United States, he may seek a writ of habeas corpus in a jurisdiction in which he suffers legal confinement, though not physical confinement, if his challenge is to that legal confinement. Outside that class of cases, Braden did not question the general rule of Ahrens (much less that of Eisentrager). Where, as here, present physical custody is at issue, Braden is inapposite, and Eisentrager unquestionably controls.
Attempting to paint Braden as a refutation of Ahrens (and thereby, it is suggested, Eisentrager), today's Court imprecisely describes Braden as citing with approval post-Ahrens cases in which "habeas petitioners" located overseas were allowed to proceed (without consideration of the jurisdictional issue) in the District Court for the District of Columbia. Ante, at 479. In fact, what Braden said is that "[w]here American citizens confined overseas (and thus outside the territory of any district court) have sought relief in habeas corpus, we have held, if only implicitly, that the
The reality is this: Today's opinion, and today's opinion alone, overrules Eisentrager; today's opinion, and today's opinion alone, extends the habeas statute, for the first time, to aliens held beyond the sovereign territory of the United States and beyond the territorial jurisdiction of its courts. No reasons are given for this result; no acknowledgment of its consequences made. By spurious reliance on Braden the Court evades explaining why stare decisis can be disregarded, and why Eisentrager was wrong. Normally, we consider the interests of those who have relied on our decisions. Today, the Court springs a trap on the Executive, subjecting Guantanamo Bay to the oversight of the federal
II
In abandoning the venerable statutory line drawn in Eisentrager, the Court boldly extends the scope of the habeas statute to the four corners of the earth. Part III of its opinion asserts that Braden stands for the proposition that "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.'" Ante, at 478-479. Endorsement of that proposition is repeated in Part IV. Ante, at 483-484 ("Section 2241, by its terms, requires nothing more [than the District Court's jurisdiction over petitioners' custodians]").
The consequence of this holding, as applied to aliens outside the country, is breathtaking. It permits an alien captured in a foreign theater of active combat to bring a § 2241 petition against the Secretary of Defense. Over the course of the last century, the United States has held millions of alien prisoners abroad. See, e.g., Department of Army, G. Lewis & J. Mewha, History of Prisoner of War Utilization by the United States Army 1776-1945, Pamphlet No. 20-213, p. 244 (1955) (noting that, "[b]y the end of hostilities [in World War II], U.S. forces had in custody approximately two million enemy soldiers"). A great many of these prisoners would no doubt have complained about the circumstances of their capture and the terms of their confinement. The military is currently detaining over 600 prisoners at Guantanamo Bay alone; each detainee undoubtedly has complaints — real or contrived — about those terms and circumstances. The Court's unheralded expansion of federal-court jurisdiction is not even mitigated by a comforting assurance that the legion of ensuing claims will be easily resolved on the merits. To the contrary, the Court says that the "[p]etitioners' allegations . . . unquestionably describe `custody in violation
Today's carefree Court disregards, without a word of acknowledgment, the dire warning of a more circumspect Court in Eisentrager:
These results should not be brought about lightly, and certainly not without a textual basis in the statute and on the
III
Part IV of the Court's opinion, dealing with the status of Guantanamo Bay, is a puzzlement. The Court might have made an effort (a vain one, as I shall discuss) to distinguish Eisentrager on the basis of a difference between the status of Landsberg Prison in Germany and Guantanamo Bay Naval Base. But Part III flatly rejected such an approach, holding that the place of detention of an alien has no bearing on the statutory availability of habeas relief, but "is strictly relevant only to the question of the appropriate forum." Ante, at 479. That rejection is repeated at the end of Part IV: "In the end, the answer to the question presented is clear. . . . No party questions the District Court's jurisdiction over petitioners' custodians. . . . Section 2241, by its terms, requires nothing more." Ante, at 483-484. Once that has been said, the status of Guantanamo Bay is entirely irrelevant to the issue here. The habeas statute is (according to the Court) being applied domestically, to "petitioners' custodians," and the doctrine that statutes are presumed to have no extraterritorial effect simply has no application.
Nevertheless, the Court spends most of Part IV rejecting respondents' invocation of that doctrine on the peculiar ground that it has no application to Guantanamo Bay. Of course if the Court is right about that, not only § 2241 but presumably all United States law applies there — including, for example, the federal cause of action recognized in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), which would allow prisoners to sue their captors for damages. Fortunately, however, the Court's irrelevant discussion also happens to be wrong.
The Court gives only two reasons why the presumption against extraterritorial effect does not apply to Guantanamo Bay. First, the Court says (without any further elaboration)
The Court does not explain how "complete jurisdiction and control" without sovereignty causes an enclave to be part of the United States for purposes of its domestic laws. Since "jurisdiction and control" obtained through a lease is no different in effect from "jurisdiction and control" acquired by lawful force of arms, parts of Afghanistan and Iraq should logically be regarded as subject to our domestic laws. Indeed, if "jurisdiction and control" rather than sovereignty were the test, so should the Landsberg Prison in Germany, where the United States held the Eisentrager detainees.
The second and last reason the Court gives for the proposition that domestic law applies to Guantanamo Bay is the Solicitor General's concession that there would be habeas jurisdiction over a United States citizen in Guantanamo Bay. "Considering that the statute draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the geographical coverage of the statute to vary depending on the detainee's citizenship." Ante, at 481. But the reason the Solicitor General conceded there would be jurisdiction over a detainee who was a United States citizen had nothing to do with the special status of Guantanamo Bay: "Our answer to that question,
The last part of the Court's Part IV analysis digresses from the point that the presumption against extraterritorial application does not apply to Guantanamo Bay. Rather, it is directed to the contention that the Court's approach to habeas jurisdiction — applying it to aliens abroad — is "consistent with the historical reach of the writ." Ante, at 481. None of the authorities it cites comes close to supporting that claim. Its first set of authorities involves claims by aliens detained in what is indisputably domestic territory. Ante, at 481-482, n. 11. Those cases are irrelevant because they do not purport to address the territorial reach of the writ. The remaining cases involve issuance of the writ to "`exempt jurisdictions'" and "other dominions under the sovereign's control." Ante, at 482, and nn. 12-13. These cases are inapposite for two reasons: Guantanamo Bay is not a sovereign dominion, and even if it were, jurisdiction would be limited to subjects.
"Exempt jurisdictions" — the Cinque Ports and Counties Palatine (located in modern-day England) — were local franchises granted by the Crown. See 1 W. Holdsworth, History of English Law 108, 532 (7th ed. rev. 1956); 3 W. Blackstone, Commentaries on the Laws of England 78-79 (1768) (hereinafter Blackstone). These jurisdictions were "exempt" in the sense that the Crown had ceded management of municipal affairs to local authorities, whose courts had exclusive jurisdiction
The cases involving "other dominions under the sovereign's control" fare no better. These cases stand only for the proposition that the writ extended to dominions of the Crown outside England proper. The authorities relating to Jersey and the other Channel Islands, for example, see ante, at 482, n. 13, involve territories that are "dominions of the crown of Great Britain" even though not "part of the kingdom of England," 1 Blackstone 102-105 (1765), much as were the colonies in America, id., at 104-105, and Scotland, Ireland, and Wales, id., at 93. See also King v. Cowle, 2 Burr. 834, 853-854, 97 Eng. Rep. 587, 598 (K. B. 1759) (even if Berwick was "no part of the realm of England," it was still a "dominion of the Crown"). All of the dominions in the cases the Court cites — and all of the territories Blackstone lists as dominions, see 1 Blackstone 93-106 — are the sovereign territory of the Crown: colonies, acquisitions and conquests, and so on. It is an enormous extension of the term to apply it to installations merely leased for a particular use from another nation that still retains ultimate sovereignty.
The Court's historical analysis fails for yet another reason: To the extent the writ's "extraordinary territorial ambit" did extend to exempt jurisdictions, outlying dominions, and the like, that extension applied only to British subjects. The very sources the majority relies on say so: Sharpe explains the "broader ambit" of the writ on the ground that it is "said to depend not on the ordinary jurisdiction of the court for its effectiveness, but upon the authority of the sovereign over
The rule against issuing the writ to aliens in foreign lands was still the law when, in In re Ning Yi-Ching, 56 T. L. R. 3 (K. B. Vac. Ct. 1939), an English court considered the habeas claims of four Chinese subjects detained on criminal charges in Tientsin, China, an area over which Britain had by treaty acquired a lease and "therewith exercised certain rights of administration and control." Id., at 4. The court held that Tientsin was a foreign territory, and that the writ would not
In sum, the Court's treatment of Guantanamo Bay, like its treatment of § 2241, is a wrenching departure from precedent.
* * *
Departure from our rule of stare decisis in statutory cases is always extraordinary; it ought to be unthinkable when the departure has a potentially harmful effect upon the Nation's conduct of a war. The Commander in Chief and his subordinates had every reason to expect that the internment of combatants at Guantanamo Bay would not have the consequence of bringing the cumbersome machinery of our domestic courts into military affairs. Congress is in session. If it wished to change federal judges' habeas jurisdiction from what this Court had previously held that to be, it could have done so. And it could have done so by intelligent revision of the statute,
FootNotes
Briefs of amici curiae urging affirmance in both cases were filed for the State of Alabama et al. by John J. Park, Jr., Assistant Attorney General of Alabama, Richard F. Allen, Acting Attorney General of Alabama, and Kevin Newsom, Solicitor General, and by the Attorneys General for their respective States as follows: Jim Petro of Ohio, Greg Abbott of Texas, and Jerry W. Kilgore of Virginia; for the Honorable Bill Owens, Governor of Colorado, et al. by Richard A. Westfall and Allan L. Hale; for the American Center for Law & Justice et al. by Jay Alan Sekulow, Thomas P. Monaghan, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., Joel H. Thornton, and Robert W. Ash; for Citizens for the Common Defence by Carter G. Phillips; for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp; for Professor Kenneth Anderson et al. by David B. Rivkin, Jr., Lee A Casey, Darin R. Bartram, Ruth Wedgwood, Charles Fried, and Max Kampelman; and for the Honorable William P. Barr et al. by Andrew G. McBride.
Briefs of amici curiae were filed in both cases for the Bipartisan Coalition of National and International Non-Governmental Organizations by Jonathan M. Freiman; for the Center for Justice and Accountability et al. by Nicholas W. Van Aelstyn, Warrington S. Parker III, Thomas P. Brown, Christian E. Mammen, and Elizabeth A. Brown; for the Commonwealth Lawyers Association by Stephen J Pollak and John Townsend Rich; for the Human Rights Institute of the International Bar Association by Pamela Rogers Chepiga; for International Law Expert by James R. Klimaski; for Sir J. H. Baker et al. by James Oldham and Michael J. Wishnie; for Professor John H. Barton et al. by Mr. Barton, pro se, and Barry E. Carter; and for 175 Members of Both Houses of the Parliament of the United Kingdom of Great Britain and Northern Ireland by Edwin S. Matthews, Jr., and Edward H. Tillinghast III.
A brief of amicus curiae was filed in No. 03-343 for Military Attorneys Assigned to the Defense in the Office of Military Commissions by Neal Katyal, Sharon A. Shaffer, Philip Sundel, Mark A. Bridges, and Michael D Mori.
"[I]f absence of the body detained from the territorial jurisdiction of the court having jurisdiction of the jailer creates a total and irremediable void in the court's capacity to act, ... then it is hard to see how that gap can be filled by such extraneous considerations as whether there is no other court in the place of detention from which remedy might be had ...." 335 U.S., at 209.
The dissent also disingenuously contends that the continuing vitality of Ahrens' jurisdictional holding is irrelevant to the question presented in these cases, "inasmuch as Ahrens did not pass upon any of the statutory issues decided by Eisentrager." Post, at 494. But what JUSTICE SCALIA describes as Eisentrager's statutory holding — "that, unaided by the canon of constitutional avoidance, the statute did not confer jurisdiction over an alien detained outside the territorial jurisdiction of the courts of the United States," post, at 493—is little more than the rule of Ahrens cloaked in the garb of Eisentrager's facts. To contend plausibly that this holding survived Braden, JUSTICE SCALIA at a minimum must find a textual basis for the rule other than the phrase "within their respective jurisdictions"— a phrase which, after Braden, can no longer be read to require the habeas petitioner's physical presence within the territorial jurisdiction of a federal district court. Two references to the district of confinement in provisions relating to recordkeeping and pleading requirements in proceedings before circuit judges hardly suffice in that regard. See post, at 489-490 (citing 28 U.S.C. §§ 2241(a), 2242).
American courts followed a similar practice in the early years of the Republic. See, e.g., United States v. Villato, 2 Dall. 370 (CC Pa. 1797) (granting habeas relief to Spanish-born prisoner charged with treason on the ground that he had never become a citizen of the United States); Ex parte D'Olivera, 7 F. Cas. 853 (No. 3,967) (CC Mass. 1813) (Story, J., on circuit) (ordering the release of Portuguese sailors arrested for deserting their ship); Wilson v. Izard, 30 F. Cas. 131 (No. 17,810) (CC NY 1815) (Livingston, J., on circuit) (reviewing the habeas petition of enlistees who claimed that they were entitled to discharge because of their status as enemy aliens).
"Lord Mansfield gave the writ the greatest breadth of application which in the then circumstances could well be conceived.... `Subjection' is fully appropriate to the powers exercised or exercisable by this country irrespective of territorial sovereignty or dominion, and it embraces in outlook the power of the Crown in the place concerned.'" 1 Q. B., at 310.
JUSTICE SCALIA cites In re Ning Yi-Ching, 56 T. L. R. 3 (K. B. Vac. Ct. 1939), for the broad proposition that habeas corpus has been categorically unavailable to aliens held outside sovereign territory. Post, at 504. Ex parte Mwenya, however, casts considerable doubt on this narrow view of the territorial reach of the writ. 1 Q. B., at 295 (Lord Evershed, M. R.) (noting that In re Ning Yi-Ching relied on Lord Justice Kennedy's opinion in Ex parte Sekgome concerning the territorial reach of the writ, despite the opinions of two members of the court who "took a different view upon this matter"). And In re Ning Yi-Ching itself made quite clear that "the remedy of habeas corpus was not confined to British subjects," but would extend to "any person... detained" within reach of the writ. 56 T. L. R., at 5 (citing Ex parte Sekgome, 2 K. B., at 620 (Kennedy, L. J.)). Moreover, the result in that case can be explained by the peculiar nature of British control over the area where the petitioners, four Chinese nationals accused of various criminal offenses, were being held pending transfer to the local district court. Although the treaties governing the British Concession at Tientsin did confer on Britain "certain rights of administration and control," "the right to administer justice" to Chinese nationals was not among them. 56 T. L. R., at 4-6.
JUSTICE KENNEDY recognizes that Eisentrager controls, ante, at 485 (opinion concurring in judgment), but misconstrues that opinion. He thinks it makes jurisdiction under the habeas statute turn on the circumstances of the detainees' confinement — including, apparently, the availability of legal proceedings and the length of detention, see ante, at 487-488. The Eisentrager Court mentioned those circumstances, however, only in the course of its constitutional analysis, and not in its application of the statute. It is quite impossible to read § 2241 as conditioning its geographic scope upon them. Among the consequences of making jurisdiction turn upon circumstances of confinement are (1) that courts would always have authority to inquire into circumstances of confinement, and (2) that the Executive would be unable to know with certainty that any given prisoner-of-war camp is immune from writs of habeas corpus. And among the questions this approach raises: When does definite detention become indefinite? How much process will suffice to stave off jurisdiction? If there is a terrorist attack at Guantanamo Bay, will the area suddenly fall outside the habeas statute because it is no longer "far removed from any hostilities," ante, at 487? JUSTICE KENNEDY's approach provides enticing law-school-exam imponderables in an area where certainty is called for.
With respect to § 1331, petitioners assert a variety of claims arising under the Constitution, treaties, and laws of the United States. In Eisentrager, though the Court's holding focused on § 2241, its analysis spoke more broadly: "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." 339 U.S., at 777-778. That reasoning dooms petitioners' claims under § 1331, at least where Congress has erected a jurisdictional bar to their raising such claims in habeas.
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