SCALIA, J., DISSENTING
RASUL V. BUSH
542 U. S. ____ (2004)
SUPREME COURT OF THE UNITED STATES
NOS. 03-334 AND 03-343
SHAFIQ RASUL, et al., PETITIONERS
03–334
v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES,
et al.
FAWZI KHALID ABDULLAH FAHAD AL ODAH, et
al., PETITIONERS
03–343
v.
UNITED STATES et al.
on writs of certiorari to the united states
court of appeals for the district of columbia circuit
[June 28, 2004]
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 by
Braden v.
30th Judicial Circuit Court of
Ky., 410
U. S. 484 (1973)—a decision that dealt with a different issue
and did not so much as mention
Eisentrager—is implausible
in the extreme. This is an irresponsible overturning of settled law
in a matter of extreme importance to our forces currently in the
field. I would leave it to Congress to change §2241, and dissent
from the Court’s unprecedented holding.
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.[
Footnote 1] Accordingly, this case turns on
the words of §2241, a text the Court today largely ignores. Even a
cursory reading of the habeas statute shows that it presupposes a
federal district court with territorial jurisdiction over the
detainee. Section 2241(a) states:
“Writs of habeas corpus may be granted by the
Supreme Court, any justice thereof, the district courts and any
circuit judge
within their respective jurisdictions.”
(Emphasis added).
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.” 28 U. S. C. §2241(a) (emphases added). And §2242
provides that a petition “addressed to the Supreme Court, a justice
thereof or a circuit judge . . . shall state the reasons for
not making application to
the district court of
the
district in which the applicant is held.” (Emphases
added). No matter to whom the writ is directed, custodian or
detainee, the statute could not be clearer that a necessary
requirement for issuing the writ is that
some federal
district court have territorial jurisdiction over the detainee.
Here, as the Court allows, see
ante, at 10, the Guantanamo
Bay detainees are not located within the territorial jurisdiction
of any federal district court. One would think that is the end of
this case.
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
this case. 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 presented to this Court today, was
shortly thereafter resolved in
Eisentrager insofar as
noncitizens are concerned.
Eisentrager involved petitions
for writs of habeas corpus filed in the District Court for the
District of Columbia by German nationals imprisoned in Landsberg
Prison, Germany. The District Court, relying on
Ahrens,
dismissed the petitions because the petitioners were not located
within its territorial jurisdiction. The Court of Appeals reversed.
According to the Court today, the Court of Appeals “implicitly
conceded that the District Court lacked jurisdiction under the
habeas statute as it had been interpreted in
Ahrens,” and
“[i]n essence . . . concluded that the habeas statute, as construed
in
Ahrens, had created an unconstitutional gap that had to
be filled by reference to ‘fundamentals.’ ”
Ante, at
9. That is not so. The Court of Appeals concluded that there
was statutory jurisdiction. It arrived at that conclusion
by applying the canon of constitutional avoidance: “[I]f the
existing jurisdictional act be construed to deny the writ to a
person entitled to it as a substantive right, the act would be
unconstitutional. It should be construed, if possible, to avoid
that result.”
Eisentrager v.
Forrestal, 174
F. 2d 961, 966 (CADC 1949). In cases where there was no
territorial jurisdiction over the detainee, the Court of Appeals
held, the writ would lie at the place of a respondent with
directive power over the detainee. “It is not too violent an
interpretation of ‘custody’ to construe it as including those who
have directive custody, as well as those who have immediate
custody, where such interpretation is necessary to comply with
constitutional requirements. . . .
The statute must be so
construed, lest it be invalid as constituting a suspension of
the writ in violation of the constitutional provision.”
Id., at 967 (emphasis added).[
Footnote 2]
This Court’s judgment in
Eisentrager
reversed the Court of Appeals. The opinion was largely devoted to
rejecting the lower court’s constitutional analysis, since the
doctrine of constitutional avoidance underlay its statutory
conclusion. But the opinion
had to pass judgment on
whether the statute granted jurisdiction, since that was the basis
for the judgments of both lower courts. A conclusion of no
constitutionally conferred right would obviously not support
reversal of a judgment that rested upon a statutorily conferred
right.[
Footnote 3] And absence
of a right to the writ under the clear wording of the habeas
statute is what the
Eisentrager opinion held: “Nothing in
the text of the Constitution extends such a right,
nor does
anything in our statutes.” 339 U. S., at 768 (emphasis added).
“[T]hese 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.”
Id., at 777–778. See also
id., at
781 (concluding that “no right to the writ of
habeas
corpus appears”);
id., at 790 (finding “no basis for
invoking federal judicial power in any district”). The brevity of
the Court’s statutory analysis signifies nothing more than that the
Court considered it obvious (as indeed it is) 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.
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 to
Eisentrager’s holding,”
ante, at 11 (emphasis
added), by which it means the statutory analysis of
Ahrens. Even assuming, for the moment, that
Braden overruled some aspect of
Ahrens, inasmuch
as
Ahrens did not pass upon any of the statutory issues
decided by
Eisentrager, it is hard to see how any of that
case’s “statutory predicate” could have been impaired.
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.
“A further,
critical development since our
decision in
Ahrens is the emergence of
new classes of
prisoners who are able to petition for habeas corpus because
of the adoption of a more expansive definition of the ‘custody’
requirement of the habeas statute. The overruling of
McNally v.
Hill, 293 U. S. 131 (1934),
made it possible for prisoners in custody under one sentence to
attack a sentence which they had not yet begun to serve. And it
also enabled a petitioner held in one State to attack a detainer
lodged against him by another State. In such a case, the State
holding the prisoner in immediate confinement acts as agent for the
demanding State, and the custodian State is presumably indifferent
to the resolution of the prisoner’s attack on the detainer. Here,
for example, the petitioner is confined in Alabama, but his dispute
is with the Commonwealth of Kentucky, not the State of Alabama.
Under these circumstances, it would serve no useful
purpose to apply the
Ahrens rule and require that the
action be brought in Alabama.” 410 U. S., at 498–499 (citations and
footnotes omitted; emphases added).
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.[
Footnote 4]
The considerations of forum convenience that
drove the analysis in
Braden do not call into question
Eisentrager’s holding. The
Braden opinion is
littered with venue reasoning of the following sort: “The expense
and risk of transporting the petitioner to the Western District of
Kentucky, should his presence at a hearing prove necessary, would
in all likelihood be outweighed by the difficulties of transporting
records and witnesses from Kentucky to the district where
petitioner is confined.” 410 U. S., at 494. Of course nothing could
be
more inconvenient than what the Court (on the alleged
authority of
Braden) prescribes today: a domestic hearing
for persons held abroad, dealing with events that transpired
abroad.
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 10.
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 petitioners’ absence from the
district does not present a jurisdictional obstacle to
consideration of the claim.” 410 U. S., at 498 (emphasis added). Of
course “the existence of unaddressed jurisdictional defects has no
precedential effect,”
Lewis v.
Casey, 518 U. S. 343, 352,
n. 2 (1996) (citing cases), but we need not “overrule” those
implicit holdings to decide this case. Since
Eisentrager
itself made an exception for such cases, they in no way
impugn its holding. “With the citizen,”
Eisentrager said,
“we are now little concerned, except to set his case apart
as
untouched by this decision and to take measure of the
difference between his status and that of all categories of
aliens.” 339 U. S., at 769. The constitutional doubt that the Court
of Appeals in
Eisentrager had erroneously attributed to
the lack of habeas for an alien abroad might indeed exist with
regard to a
citizen abroad—justifying a strained
construction of the habeas statute, or (more honestly) a
determination of constitutional right to habeas. Neither party to
the present case challenges the atextual extension of the habeas
statute to United States citizens held beyond the territorial
jurisdictions of the United States courts; but the possibility of
one atextual exception thought to be required by the Constitution
is no justification for abandoning the clear application of the
text to a situation in which it raises no constitutional doubt.
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 courts even though
it has never before been thought to be within their
jurisdiction—and thus making it a foolish place to have housed
alien wartime detainees.
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 10. Endorsement of that proposition is repeated
in Part IV.
Ante, at 16 (“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 of the Constitution
or laws or treaties of the United States.’ ”
Ante, at
15, n. 15 (citing
United States v.
Verdugo-Urquidez, 494 U. S. 259, 277–278
(1990) (Kennedy, J., concurring)). From this point forward, federal
courts will entertain petitions from these prisoners, and others
like them around the world, challenging actions and events far
away, and forcing the courts to oversee one aspect of the
Executive’s conduct of a foreign war.
Today’s carefree Court disregards, without a
word of acknowledgment, the dire warning of a more circumspect
Court in
Eisentrager:
“To grant the writ to these prisoners might
mean that our army must transport them across the seas for hearing.
This would require allocation for shipping space, guarding
personnel, billeting and rations. It might also require
transportation for whatever witnesses the prisoners desired to call
as well as transportation for those necessary to defend legality of
the sentence. The writ, since it is held to be a matter of right,
would be equally available to enemies during active hostilities as
in the present twilight between war and peace. Such trials would
hamper the war effort and bring aid and comfort to the enemy. They
would diminish the prestige of our commanders, not only with
enemies but with wavering neutrals. It would be difficult to devise
more effective fettering of a field commander than to allow the
very enemies he is ordered to reduce to submission to call him to
account in his own civil courts and divert his efforts and
attention from the military offensive abroad to the legal defensive
at home. Nor is it unlikely that the result of such enemy
litigiousness would be conflict between judicial and military
opinion highly comforting to enemies of the United States.” 339 U.
S., at 778–779.
These results should not be brought about
lightly, and certainly not without a textual basis in the statute
and on the strength of nothing more than a decision dealing with an
Alabama prisoner’s ability to seek habeas in Kentucky.
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 11. 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 15–16. 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) that “the United States exercises ‘complete
jurisdiction and control’ over the Guantanamo Bay Naval Base [under
the terms of a 1903 lease agreement], and may continue to exercise
such control permanently if it so chooses [under the terms of a
1934 Treaty].”
Ante, at 12; see
ante, at 2–3. But
that lease agreement explicitly recognized “the continuance of the
ultimate sovereignty of the Republic of Cuba over the [leased
areas],” Lease of Lands for Coaling and Naval Stations, Feb. 23,
1903, U. S.-Cuba, Art. III, T. S. No. 418, and the Executive
Branch—whose head is “exclusively responsible” for the “conduct of
diplomatic and foreign affairs,”
Eisentrager,
supra, at 789—affirms that the lease and treaty do not
render Guantanamo Bay the sovereign territory of the United States,
see Brief for Respondents 21.
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 12–13. 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, Justice
Souter, is that citizens of the United States, because of their
constitutional circumstances, may have greater rights with respect
to the scope and reach of the Habeas Statute as the Court has or
would interpret it.” Tr. of Oral Arg. 40. See also
id., at
27–28. And
that position—the position that United States
citizens throughout the world may be entitled to habeas corpus
rights—is precisely the position that this Court adopted in
Eisentrager, see 339 U. S., at 769–770, even while holding
that aliens abroad
did not have habeas corpus rights.
Quite obviously, the Court’s second reason has no force
whatever.
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 13. 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 13,
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 13–14, 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 *78–*79 (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 over private disputes among residents (although review
was still available in the royal courts by writ of error). See
id., at *79. Habeas jurisdiction nevertheless extended to
those regions on the theory that the delegation of the King’s
authority did not include his own prerogative writs.
Ibid.; R. Sharpe, Law of Habeas Corpus 188–189 (2d
ed. 1989) (hereinafter Sharpe). Guantanamo Bay involves no
comparable local delegation of pre-existing sovereign
authority.
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 14,
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, 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 all her
subjects.” Sharpe,
supra, at 188 (emphasis
added). Likewise, Blackstone explained that the writ “run[s] into
all parts of the king’s dominions” because “the king is at all
times entitled to have an account why the liberty of any of his
subjects is restrained.” 3 Blackstone *131 (emphasis
added).
Ex parte Mwenya, [1960] 1 Q. B. 241 (C. A.),
which can hardly be viewed as evidence of the
historic
scope of the writ, only confirms the ongoing relevance of the
sovereign-subject relationship to the scope of the writ. There, the
question was whether “the Court of Queen’s Bench can be debarred
from making an order in favour of a British citizen unlawfully or
arbitrarily detained” in Northern Rhodesia, which was at the time a
protectorate of the Crown.
Id., at 300 (Lord Evershed
M. R.). Each judge made clear that the detainee’s status as a
subject was material to the resolution of the case. See
id., at 300, 302 (Lord Evershed, M. R.);
id., at 305 (Romer, L. J.) (“[I]t is difficult to see
why the sovereign should be deprived of her right to be informed
through her High Court as to the validity of the detention of her
subjects in that territory”);
id., at 311 (Sellers,
L. J.) (“I am not prepared to say, as we are solely asked to
say on this appeal, that the English courts have no jurisdiction in
any circumstances to entertain an application for a writ of habeas
corpus ad subjiciendum in respect of an unlawful detention of a
British subject in a British protectorate”). None of the
exempt-jurisdiction or dominion cases the Court cites involves
someone not a subject of the Crown.
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 (Vacation 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 issue to a foreigner detained there. The
Solicitor-General had argued that “[t]here was no case on record in
which a writ of
habeas corpus had been obtained
on behalf of a foreign subject on foreign territory,”
id.,
at 5, and the court “listened in vain for a case in which the writ
of
habeas corpus had issued in respect of a foreigner
detained in a part of the world which was not a part of the King’s
dominions or realm,”
id., at 6.[
Footnote 5]
In sum, the Court’s treatment of Guantanamo
Bay, like its treatment of §2241, is a wrenching departure from
precedent.[
Footnote 6]
* * *
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,[
Footnote 7] instead of by today’s clumsy,
countertextual reinterpretation that confers upon wartime prisoners
greater habeas rights than domestic detainees. The latter must
challenge their present physical confinement in the district of
their confinement, see
Rumsfeld v.
Padilla,
ante, whereas under today’s strange holding Guantanamo Bay
detainees can petition in any of the 94 federal judicial districts.
The fact that extraterritorially located detainees lack the
district of detention that the statute requires has been converted
from a factor that precludes their ability to bring a petition at
all into a factor that frees them to petition wherever they
wish—and, as a result, to forum shop. For this Court to create such
a monstrous scheme in time of war, and in frustration of our
military commanders’ reliance upon clearly stated prior law, is
judicial adventurism of the worst sort. I dissent.
Footnote 1
See Tr. of Oral Arg. 5 (“Question: And you
don’t raise the issue of any potential jurisdiction on the basis of
the Constitution alone. We are here debating the jurisdiction under
the Habeas Statute, is that right? [Answer]: That’s correct. .
.”).
Footnote 2
The parties’ submissions to the Court in
Eisentrager construed the Court of Appeals’ decision as I
do. See Pet. for Cert., O. T. 1949, No. 306, pp. 8–9 (“[T]he court
felt constrained to construe the habeas corpus jurisdictional
statute—despite its reference to the ‘respective jurisdictions’ of
the various courts and the gloss put on that terminology in the
Ahrens and previous decisions—to permit a petition to be
filed in the district court with territorial jurisdiction over the
officials who have directive authority over the immediate jailer in
Germany”); Brief for Respondent, O. T. 1949, No. 306, p. 9
(“Respondent contends that the U. S. Court of Appeals . . . was
correct in its holding that the statute, 28 U. S. C. 2241,
provides that the U. S. District Court for the District of Columbia
has jurisdiction to entertain the petition for a writ of habeas
corpus in the case at bar”). Indeed, the briefing in
Eisentrager was mainly devoted to the question of whether
there was statutory jurisdiction. See,
e.g., Brief for
Petitioner, O. T. 1949, No. 306, pp. 15–59; Brief for Respondent,
O. T. 1949, No. 306, pp. 9–27, 38–49.
Footnote 3
The Court does not seriously dispute my
analysis of the Court of Appeals’ holding in
Eisentrager.
Instead, it argues that this Court in
Eisentrager
“understood the Court of Appeals’ decision to rest on
constitutional and not statutory grounds.”
Ante, at 10,
n. 8. That is inherently implausible, given that the Court of
Appeals’ opinion clearly reached a statutory holding, and that both
parties argued the case to this Court on that basis, see n. 2,
supra. The only evidence of misunderstanding the Court
adduces today is the
Eisentrager Court’s description of
the Court of Appeals’ reasoning as “that, although no statutory
jurisdiction of such cases is given, courts must be held to possess
it as part of the judicial power of the United States . . . .” 339
U. S., at 767. That is no misunderstanding, but an entirely
accurate description of the Court of Appeals’ reasoning—the
penultimate step of that reasoning rather than its conclusion. The
Court of Appeals went on to hold that, in light of the
constitutional imperative, the statute should be interpreted as
supplying jurisdiction. See
Eisentrager v.
Forrestal, 174 F. 2d 961, 965–967 (CADC 1949). This
Court in
Eisentrager undoubtedly understood that, which is
why it immediately followed the foregoing description with a
description of the Court of Appeals’
conclusion tied to
the language of the habeas statute: “[w]here deprivation of liberty
by an official act occurs outside the territorial jurisdiction of
any District Court, the petition will lie in the District Court
which has territorial jurisdiction over officials who have
directive power over the immediate jailer.” 339 U. S., at 767.
Footnote 4
The Court points to Court of Appeals cases
that have described
Braden as “overruling”
Ahrens. See
ante, at 11, n. 9. Even if that
description (rather than what I think the correct one,
“distinguishing”) is accepted, it would not support the Court’s
view that
Ahrens was overruled
with regard to the
point on which Eisentrager relied. The
ratio
decidendi of
Braden does not call into question the
principle of
Ahrens applied in
Eisentrager: that
habeas challenge to present physical confinement must be made in
the district where the physical confinement exists. The Court is
unable to produce a single authority that agrees with its
conclusion that
Braden overruled
Eisentrager.
Justice Kennedy recognizes that
Eisentrager controls,
ante, at 1 (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 3–4.
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 3? Justice Kennedy’s
approach provides enticing law-school-exam imponderables in an area
where certainty is called for.
Footnote 5
The Court argues at some length that
Ex
parte Mwenya, [1960] 1 Q. B. 241 (C. A.), calls into
question my reliance on
In re Ning Yi-Ching. See
ante, at 15, n. 14. But as I have explained, see
supra, at 17–18,
Mwenya dealt with a British
subject and the court went out of its way to explain that its
expansive description of the scope of the writ was premised on that
fact. The Court cites not a single case holding that aliens held
outside the territory of the sovereign were within reach of the
writ.
Footnote 6
The Court grasps at two other bases for
jurisdiction: the Alien Tort Statute (ATS), 28 U. S. C. §1350,
and the federal-question statute, 28 U. S. C. §1331. The
former is not presented to us. The ATS, while invoked below, was
repudiated as a basis for jurisdiction by all petitioners, either
in their petition for certiorari, in their briefing before this
Court, or at oral argument. See Pet. for Cert. in No. 03–334, p. 2,
n. 1 (“Petitioners withdraw any reliance on the Alien Tort
Claims Act …”); Brief for Petitioners in No. 03–343, p. 13;
Tr. of Oral Arg. 6.
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.
Footnote 7
It could, for example, provide for
jurisdiction by placing Guantanamo Bay within the territory of an
existing district court; or by creating a district court for
Guantanamo Bay, as it did for the Panama Canal Zone, see 22 U.
S. C. §3841(a) (repealed 1979).
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