Hamdi v. Rumsfeld, 124 S.Ct. 2633, 542 U.S. 507, 159 L.Ed.2d 578 (U.S. 06/28/2004)

[1] SUPREME COURT OF THE UNITED STATES


[2] No. 03-6696


[3] 124 S.Ct. 2633, 542 U.S. 507, 159 L.Ed.2d 578, 2004 Daily Journal D.A.R. 7803, 72 USLW 4607, 4 Cal. Daily Op. Serv. 5669, 04 Cal. Daily Op. Serv. 5669

[4] June 28, 2004


[5] YASER ESAM HAMDI AND ESAM FOUAD HAMDI, AS NEXT FRIEND OF YASER ESAM HAMDI, PETITIONERS
v.
DONALD H. RUMSFELD, SECRETARY OF DEFENSE, ET AL.


[6] SYLLABUS BY THE COURT


[7] OCTOBER TERM, 2003


[8] Argued April 28, 2004


[9] After Congress passed a resolution -- the Authorization for Use of Military Force (AUMF) -- empowering the President to "use all necessary and appropriate force" against "nations, organizations, or persons" that he determines "planned, authorized, committed, or aided" in the September 11, 2001, al Qaeda terrorist attacks, the President ordered the Armed Forces to Afghanistan to subdue al Qaeda and quell the supporting Taliban regime. Petitioner Hamdi, an American citizen whom the Government has classified as an "enemy combatant" for allegedly taking up arms with the Taliban during the conflict, was captured in Afghanistan and presently is detained at a naval brig in Charleston, S. C. Hamdi's father filed this habeas petition on his behalf under 28 U. S. C. §2241, alleging, among other things, that the Government holds his son in violation of the Fifth and Fourteenth Amendments. Although the petition did not elaborate on the factual circumstances of Hamdi's capture and detention, his father has asserted in other documents in the record that Hamdi went to Afghanistan to do "relief work" less than two months before September 11 and could not have received military training. The Government attached to its response to the petition a declaration from Michael Mobbs (Mobbs Declaration), a Defense Department official. The Mobbs Declaration alleges various details regarding Hamdi's trip to Afghanistan, his affiliation there with a Taliban unit during a time when the Taliban was battling U. S allies, and his subsequent surrender of an assault rifle. The District Court found that the Mobbs Declaration, standing alone, did not support Hamdi's detention and ordered the Government to turn over numerous materials for in camera review. The Fourth Circuit reversed, stressing that, because it was undisputed that Hamdi was captured in an active combat zone, no factual inquiry or evidentiary hearing allowing Hamdi to be heard or to rebut the Government's assertions was necessary or proper. Concluding that the factual averments in the Mobbs Declaration, if accurate, provided a sufficient basis upon which to conclude that the President had constitutionally detained Hamdi, the court ordered the habeas petition dismissed. The appeals court held that, assuming that express congressional authorization of the detention was required by 18 U. S. C. §4001(a) -- which provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress" -- the AUMF's "necessary and appropriate force" language provided the authorization for Hamdi's detention. It also concluded that Hamdi is entitled only to a limited judicial inquiry into his detention's legality under the war powers of the political branches, and not to a searching review of the factual determinations underlying his seizure.


[10] Held: The judgment is vacated, and the case is remanded.


[11] Justice O'Connor, joined by The Chief Justice, Justice Kennedy, and Justice Breyer, concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. Pp. 14-15.


[12] Justice Souter, joined by Justice Ginsburg, concluded that Hamdi's detention is unauthorized, but joined with the plurality to conclude that on remand Hamdi should have a meaningful opportunity to offer evidence that he is not an enemy combatant. Pp. 2-3, 15.


[13] O'Connor, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and Kennedy and Breyer, JJ., joined. Souter, J., filed an opinion concurring in part, dissenting in part, and concurring in the judgment, in which Ginsburg, J., joined. Scalia, J., filed a dissenting opinion, in which Stevens, J., joined. Thomas, J., filed a dissenting opinion.


[14] On Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit


[15] Frank W. Dunham, Jr., argued the cause for petitioners. With him on the briefs were Geremy C. Kamens, Kenneth P. Troccoli, and Frances H. Pratt.


[16] Deputy Solicitor General Clement argued the cause for respondents. With him on the brief were Solicitor General Olson, Gregory G. Garre, and John A. Drennan.


[17] Briefs of amici curiae urging reversal were filed for the American Bar Association by Dennis W. Archer and Barry Sullivan; for AmeriCares et al. by Steven M. Pesner, Michael Small, and Jeffrey P. Kehne; for the American Civil Liberties Union et al. by Steven R. Shapiro, Sharon M. McGowan, David Saperstein, Jeffrey Sinensky, Kara Stein, and Arthur Bryant; for the Cato Institute by Timothy Lynch; for Global Rights by James F. Fitzpatrick, Kathleen A. Behan, and Gay J. McDougall; for William J. Aceves et al. by Douglas W. Baruch; for Charles B. Gittings, Jr., by Donald G. Rehkopf, Jr.; for the Honorable Nathaniel R. Jones et al. by Robert P. LoBue; for Douglas Peterson et al. by Philip Allen Lacovara and Andrew J. Pincus; and for Mary Robinson et al. by Harold Hongju Koh and Jonathan M. Freiman.


[18] Briefs of amici curiae urging affirmance were filed for the American Center for Law & Justice by Jay Alan Sekulow, Thomas P. Monaghan, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., Joel H. Thornton, John P. Tuskey, and Shannon D. Woodruff; for the Center for American Unity et al. by Barnaby W. Zall; for the Claremont Institute Center for Constitutional Jurisprudence by John C. Eastman and Edwin Meese III; for Citizens for the Common Defence by Adam H. Charnes; and for the Washington Legal Foundation et al. by Thomas V. Loran, William T. DeVinney, Daniel J. Popeo, and Richard A. Samp.


[19] A brief of amici curiae urging affirmance in No. 03-6696 and reversal in No. 03-1027 was filed for Senator John Cornyn et al. by Senator Cornyn, pro se.


[20] Karen B. Tripp filed a brief for the Eagle Forum Education & Legal Defense Fund as amicus curiae.


[21] The opinion of the court was delivered by: Justice O'Connor


[22] 542 U. S. ____ (2004)


[23] Justice O'Connor announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Kennedy, and Justice Breyer join.


[24] At this difficult time in our Nation's history, we are called upon to consider the legality of the Government's detention of a United States citizen on United States soil as an "enemy combatant" and to address the process that is constitutionally owed to one who seeks to challenge his classification as such. The United States Court of Appeals for the Fourth Circuit held that petitioner's detention was legally authorized and that he was entitled to no further opportunity to challenge his enemy-combatant label. We now vacate and remand. We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.


[25] I.


[26] On September 11, 2001, the al Qaeda terrorist network used hijacked commercial airliners to attack prominent targets in the United States. Approximately 3,000 people were killed in those attacks. One week later, in response to these "acts of treacherous violence," Congress passed a 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Authorization for Use of Military Force ("the AUMF"), 115 Stat. 224. Soon thereafter, the President ordered United States Armed Forces to Afghanistan, with a mission to subdue al Qaeda and quell the Taliban regime that was known to support it.


[27] This case arises out of the detention of a man whom the Government alleges took up arms with the Taliban during this conflict. His name is Yaser Esam Hamdi. Born an American citizen in Louisiana in 1980, Hamdi moved with his family to Saudi Arabia as a child. By 2001, the parties agree, he resided in Afghanistan. At some point that year, he was seized by members of the Northern Alliance, a coalition of military groups opposed to the Taliban government, and eventually was turned over to the United States military. The Government asserts that it initially detained and interrogated Hamdi in Afghanistan before transferring him to the United States Naval Base in Guantanamo Bay in January 2002. In April 2002, upon learning that Hamdi is an American citizen, authorities transferred him to a naval brig in Norfolk, Virginia, where he remained until a recent transfer to a brig in Charleston, South Carolina. The Government contends that Hamdi is an "enemy combatant," and that this status justifies holding him in the United States indefinitely -- without formal charges or proceedings -- unless and until it makes the determination that access to counsel or further process is warranted.


[28] In June 2002, Hamdi's father, Esam Fouad Hamdi, filed the present petition for a writ of habeas corpus under 28 U. S. C. §2241 in the Eastern District of Virginia, naming as petitioners his son and himself as next friend. The elder Hamdi alleges in the petition that he has had no contact with his son since the Government took custody of him in 2001, and that the Government has held his son "without access to legal counsel or notice of any charges pending against him." App. 103, 104. The petition contends that Hamdi's detention was not legally authorized. Id., at 105. It argues that, "[a]s an American citizen, ... Hamdi enjoys the full protections of the Constitution," and that Hamdi's detention in the United States without charges, access to an impartial tribunal, or assistance of counsel "violated and continue[s] to violate the Fifth and Fourteenth Amendments to the United States Constitution." Id., at 107. The habeas petition asks that the court, among other things, (1) appoint counsel for Hamdi; (2) order respondents to cease interrogating him; (3) declare that he is being held in violation of the Fifth and Fourteenth Amendments; (4) "[t]o the extent Respondents contest any material factual allegations in this Petition, schedule an evidentiary hearing, at which Petitioners may adduce proof in support of their allegations"; and (5) order that Hamdi be released from his "unlawful custody." Id., at 108-109. Although his habeas petition provides no details with regard to the factual circumstances surrounding his son's capture and detention, Hamdi's father has asserted in documents found elsewhere in the record that his son went to Afghanistan to do "relief work," and that he had been in that country less than two months before September 11, 2001, and could not have received military training. Id., at 188-189. The 20-year-old was traveling on his own for the first time, his father says, and "[b]ecause of his lack of experience, he was trapped in Afghanistan once that military campaign began." Id., at 188-189.


[29] The District Court found that Hamdi's father was a proper next friend, appointed the federal public defender as counsel for the petitioners, and ordered that counsel be given access to Hamdi. Id., at 113-116. The United States Court of Appeals for the Fourth Circuit reversed that order, holding that the District Court had failed to extend appropriate deference to the Government's security and intelligence interests. 296 F. 3d 278, 279, 283 (2002). It directed the District Court to consider "the most cautious procedures first," id., at 284, and to conduct a deferential inquiry into Hamdi's status, id., at 283. It opined that "if Hamdi is indeed an `enemy combatant' who was captured during hostilities in Afghanistan, the government's present detention of him is a lawful one." Ibid.


[30] On remand, the Government filed a response and a motion to dismiss the petition. It attached to its response a declaration from one Michael Mobbs (hereinafter "Mobbs Declaration"), who identified himself as Special Advisor to the Under Secretary of Defense for Policy. Mobbs indicated that in this position, he has been "substantially involved with matters related to the detention of enemy combatants in the current war against the al Qaeda terrorists and those who support and harbor them (including the Taliban)." App. 148. He expressed his "familiar[ity]" with Department of Defense and United States military policies and procedures applicable to the detention, control, and transfer of al Qaeda and Taliban personnel, and declared that "[b]ased upon my review of relevant records and reports, I am also familiar with the facts and circumstances related to the capture of ... Hamdi and his detention by U. S. military forces." Ibid.


[31] Mobbs then set forth what remains the sole evidentiary support that the Government has provided to the courts for Hamdi's detention. The declaration states that Hamdi "traveled to Afghanistan" in July or August 2001, and that he thereafter "affiliated with a Taliban military unit and received weapons training." Ibid. It asserts that Hamdi "remained with his Taliban unit following the attacks of September 11" and that, during the time when Northern Alliance forces were "engaged in battle with the Taliban," "Hamdi's Taliban unit surrendered" to those forces, after which he "surrender[ed] his Kalishnikov assault rifle" to them. Id., at 148-149. The Mobbs Declaration also states that, because al Qaeda and the Taliban "were and are hostile forces engaged in armed conflict with the armed forces of the United States," "individuals associated with" those groups "were and continue to be enemy combatants." Id., at 149. Mobbs states that Hamdi was labeled an enemy combatant "[b]ased upon his interviews and in light of his association with the Taliban." Ibid. According to the declaration, a series of "U. S. military screening team[s]" determined that Hamdi met "the criteria for enemy combatants," and "a subsequent interview of Hamdi has confirmed that he surrendered and gave his firearm to Northern Alliance forces, which supports his classification as an enemy combatant." Id., at 149-150.


[32] After the Government submitted this declaration, the Fourth Circuit directed the District Court to proceed in accordance with its earlier ruling and, specifically, to " `consider the sufficiency of the Mobbs Declaration as an independent matter before proceeding further.' " 316 F. 3d at 450, 462 (2003). The District Court found that the Mobbs Declaration fell "far short" of supporting Hamdi's detention. App. 292. It criticized the generic and hearsay nature of the affidavit, calling it "little more than the government's `say-so.' " Id., at 298. It ordered the Government to turn over numerous materials for in camera review, including copies of all of Hamdi's statements and the notes taken from interviews with him that related to his reasons for going to Afghanistan and his activities therein; a list of all interrogators who had questioned Hamdi and their names and addresses; statements by members of the Northern Alliance regarding Hamdi's surrender and capture; a list of the dates and locations of his capture and subsequent detentions; and the names and titles of the United States Government officials who made the determinations that Hamdi was an enemy combatant and that he should be moved to a naval brig. Id., at 185-186. The court indicated that all of these materials were necessary for "meaningful judicial review" of whether Hamdi's detention was legally authorized and whether Hamdi had received sufficient process to satisfy the Due Process Clause of the Constitution and relevant treaties or military regulations. Id., at 291-292.


[33] The Government sought to appeal the production order, and the District Court certified the question of whether the Mobbs Declaration, " `standing alone, is sufficient as a matter of law to allow meaningful judicial review of [Hamdi's] classification as an enemy combatant.' " 316 F. 3d, at 462. The Fourth Circuit reversed, but did not squarely answer the certified question. It instead stressed that, because it was "undisputed that Hamdi was captured in a zone of active combat in a foreign theater of conflict," no factual inquiry or evidentiary hearing allowing Hamdi to be heard or to rebut the Government's assertions was necessary or proper. Id., at 459. Concluding that the factual averments in the Mobbs Declaration, "if accurate," provided a sufficient basis upon which to conclude that the President had constitutionally detained Hamdi pursuant to the President's war powers, it ordered the habeas petition dismissed. Id., at 473. The Fourth Circuit emphasized that the "vital purposes" of the detention of uncharged enemy combatants -- preventing those combatants from rejoining the enemy while relieving the military of the burden of litigating the circumstances of wartime captures halfway around the globe -- were interests "directly derived from the war powers of Articles I and II." Id., at 465-466. In that court's view, because "Article III contains nothing analogous to the specific powers of war so carefully enumerated in Articles I and II," id., at 463, separation of powers principles prohibited a federal court from "delv[ing] further into Hamdi's status and capture," id., at 473. Accordingly, the District Court's more vigorous inquiry "went far beyond the acceptable scope of review." Ibid.


[34] On the more global question of whether legal authorization exists for the detention of citizen enemy combatants at all, the Fourth Circuit rejected Hamdi's arguments that 18 U. S. C. §4001(a) and Article 5 of the Geneva Convention rendered any such detentions unlawful. The court expressed doubt as to Hamdi's argument that §4001(a), which provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress," required express congressional authorization of detentions of this sort. But it held that, in any event, such authorization was found in the post-September 11 Authorization for Use of Military Force. 316 F. 3d, at 467. Because "capturing and detaining enemy combatants is an inherent part of warfare," the court held, "the `necessary and appropriate force' referenced in the congressional resolution necessarily includes the capture and detention of any and all hostile forces arrayed against our troops." Ibid.; see also id., at 467-468 (noting that Congress, in 10 U. S. C. §956(5), had specifically authorized the expenditure of funds for keeping prisoners of war and persons whose status was determined "to be similar to prisoners of war," and concluding that this appropriation measure also demonstrated that Congress had "authorized [these individuals'] detention in the first instance"). The court likewise rejected Hamdi's Geneva Convention claim, concluding that the convention is not self-executing and that, even if it were, it would not preclude the Executive from detaining Hamdi until the cessation of hostilities. 316 F. 3d, at 468-469.


[35] Finally, the Fourth Circuit rejected Hamdi's contention that its legal analyses with regard to the authorization for the detention scheme and the process to which he was constitutionally entitled should be altered by the fact that he is an American citizen detained on American soil. Relying on Ex parte Quirin, 317 U. S. 1 (1942), the court emphasized that "[o]ne who takes up arms against the United States in a foreign theater of war, regardless of his citizenship, may properly be designated an enemy combatant and treated as such." 316 F.3d, at 475. "The privilege of citizenship," the court held, "entitles Hamdi to a limited judicial inquiry into his detention, but only to determine its legality under the war powers of the political branches. At least where it is undisputed that he was present in a zone of active combat operations, we are satisfied that the Constitution does not entitle him to a searching review of the factual determinations underlying his seizure there." Ibid.


[36] The Fourth Circuit denied rehearing en banc, 337 F. 3d 335 (2003), and we granted certiorari. 540 U. S. __ (2004). We now vacate the judgment below and remand.


[37] II.


[38] The threshold question before us is whether the Executive has the authority to detain citizens who qualify as "enemy combatants." There is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such. It has made clear, however, that, for purposes of this case, the "enemy combatant" that it is seeking to detain is an individual who, it alleges, was " `part of or supporting forces hostile to the United States or coalition partners' " in Afghanistan and who " `engaged in an armed conflict against the United States' " there. Brief for Respondents 3. We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized.


[39] The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention, through the AUMF.


[40] Our analysis on that point, set forth below, substantially overlaps with our analysis of Hamdi's principal argument for the illegality of his detention. He posits that his detention is forbidden by 18 U. S. C. §4001(a). Section 4001(a) states that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Congress passed §4001(a) in 1971 as part of a bill to repeal the Emergency Detention Act of 1950, 50 U. S. C. §811 et seq., which provided procedures for executive detention, during times of emergency, of individuals deemed likely to engage in espionage or sabotage. Congress was particularly concerned about the possibility that the Act could be used to reprise the Japanese internment camps of World War II. H. R. Rep. No. 92-116 (1971); id., at 4 ("The concentration camp implications of the legislation render it abhorrent").The Government again presses two alternative positions. First, it argues that §4001(a), in light of its legislative history and its location in Title 18, applies only to "the control of civilian prisons and related detentions," not to military detentions. Brief for Respondents 21. Second, it maintains that §4001(a) is satisfied, because Hamdi is being detained "pursuant to an Act of Congress" -- the AUMF. Id., at 21-22. Again, because we conclude that the Government's second assertion is correct, we do not address the first. In other words, for the reasons that follow, we conclude that the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe (assuming, without deciding, that such authorization is required), and that the AUMF satisfied §4001(a)'s requirement that a detention be "pursuant to an Act of Congress" (assuming, without deciding, that §4001(a) applies to military detentions).


[41] The AUMF authorizes the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.


[42] The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by "universal agreement and practice," are "important incident[s] of war." Ex parte Quirin, 317 U. S., at 28. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. Naqvi, Doubtful Prisoner-of-War Status, 84 Int'l Rev. Red Cross 571, 572 (2002) ("[C]aptivity in war is `neither revenge, nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war' " (quoting decision of Nuremberg Military Tribunal, reprinted in 41 Am. J. Int'l L. 172, 229 (1947)); W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920) ("The time has long passed when `no quarter' was the rule on the battlefield ... . It is now recognized that `Captivity is neither a punishment nor an act of vengeance,' but `merely a temporary detention which is devoid of all penal character.' ... `A prisoner of war is no convict; his imprisonment is a simple war measure.' " (citations omitted); cf. In re Territo, 156 F. 2d 142, 145 (CA9 1946) ("The object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from then on must be removed as completely as practicable from the front, treated humanely, and in time exchanged, repatriated, or otherwise released" (footnotes omitted)).


[43] There is no bar to this Nation's holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. 317 U. S., at 20. We held that "[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of ... the law of war." Id., at 37-38. While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. See id., at 30-31. See also Lieber Code, ¶ ;153, Instructions for the Government of Armies of the United States in the Field, Gen. Order No. 100 (1863), reprinted in 2 Lieber, Miscellaneous Writings, p. 273 (contemplating, in code binding the Union Army during the Civil War, that "captured rebels" would be treated "as prisoners of war"). Nor can we see any reason for drawing such a line here. A citizen, no less than an alien, can be "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States," Brief for Respondents 3; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict.


[44] In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.


[45] Hamdi objects, nevertheless, that Congress has not authorized the indefinite detention to which he is now subject. The Government responds that "the detention of enemy combatants during World War II was just as `indefinite' while that war was being fought." Id., at 16. We take Hamdi's objection to be not to the lack of certainty regarding the date on which the conflict will end, but to the substantial prospect of perpetual detention. We recognize that the national security underpinnings of the "war on terror," although crucially important, are broad and malleable. As the Government concedes, "given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement." Ibid. The prospect Hamdi raises is therefore not far-fetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi's detention could last for the rest of his life.


[46] It is a clearly established principle of the law of war that detention may last no longer than active hostilities. See Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3406, T. I. A. S. No. 3364 ("Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities"). See also Article 20 of the Hague Convention (II) on Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1817 (as soon as possible after "conclusion of peace"); Hague Convention (IV), supra, Oct. 18, 1907, 36 Stat. 2301("conclusion of peace" (Art. 20)); Geneva Convention, supra, July 27, 1929, 47 Stat. 2055 (repatriation should be accomplished with the least possible delay after conclusion of peace (Art. 75)); Praust, Judicial Power to Determine the Status and Rights of Persons Detained without Trial, 44 Harv. Int'l L. J. 503, 510-511 (2003) (prisoners of war "can be detained during an armed conflict, but the detaining country must release and repatriate them `without delay after the cessation of active hostilities,' unless they are being lawfully prosecuted or have been lawfully convicted of crimes and are serving sentences" (citing Arts. 118, 85, 99, 119, 129, Geneva Convention (III), 6 T. I .A. S., at 3384, 3392, 3406, 3418)).


[47] Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress' grant of authority for the use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. See, e.g., Constable, U. S. Launches New Operation in Afghanistan, Washington Post, Mar. 14, 2004, p. A22 (reporting that 13,500 United States troops remain in Afghanistan, including several thousand new arrivals); J. Abizaid, Dept. of Defense, Gen. Abizaid Central Command Operations Update Briefing, Apr. 30, 2004, http://www.defenselink.mil/transcripts/2004/tr20040430-1402.html (as visited June 8, 2004, and available in the Clerk of Court's case file) (media briefing describing ongoing operations in Afghanistan involving 20,000 United States troops). The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States." If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of "necessary and appropriate force," and therefore are authorized by the AUMF.


[48] Ex parte Milligan, 4 Wall. 2, 125 (1866), does not undermine our holding about the Government's authority to seize enemy combatants, as we define that term today. In that case, the Court made repeated reference to the fact that its inquiry into whether the military tribunal had jurisdiction to try and punish Milligan turned in large part on the fact that Milligan was not a prisoner of war, but a resident of Indiana arrested while at home there. Id., at 118, 131. That fact was central to its conclusion. Had Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different. The Court's repeated explanations that Milligan was not a prisoner of war suggest that had these different circumstances been present he could have been detained under military authority for the duration of the conflict, whether or not he was a citizen.*fn1


[49] Moreover, as Justice Scalia acknowledges, the Court in Ex parte Quirin, 317 U. S. 1 (1942), dismissed the language of Milligan that the petitioners had suggested prevented them from being subject to military process. Post, at 17-18 (dissenting opinion). Clear in this rejection was a disavowal of the New York State cases cited in Milligan, 4 Wall., at 128-129, on which Justice Scalia relies. See id., at 128-129. Both Smith v. Shaw, 12 Johns. *257 (N. Y. 1815), and M'Connell v. Hampton, 12 Johns. *234 (N. Y. 1815), were civil suits for false imprisonment. Even accepting that these cases once could have been viewed as standing for the sweeping proposition for which Justice Scalia cites them -- that the military does not have authority to try an American citizen accused of spying against his country during wartime -- Quirin makes undeniably clear that this is not the law today. Haupt, like the citizens in Smith and M'Connell, was accused of being a spy. The Court in Quirin found him "subject to trial and punishment by [a] military tribunal[ ]" for those acts, and held that his citizenship did not change this result. 317 U. S., at 31, 37-38.


[50] Quirin was a unanimous opinion. It both postdates and clarifies Milligan, providing us with the most apposite precedent that we have on the question of whether citizens may be detained in such circumstances. Brushing aside such precedent -- particularly when doing so gives rise to a host of new questions never dealt with by this Court -- is unjustified and unwise.


[51] To the extent that Justice Scalia accepts the precedential value of Quirin, he argues that it cannot guide our inquiry here because "[i]n Quirin it was uncontested that the petitioners were members of enemy forces," while Hamdi challenges his classification as an enemy combatant. Post, at 19. But it is unclear why, in the paradigm outlined by Justice Scalia, such a concession should have any relevance. Justice Scalia envisions a system in which the only options are congressional suspension of the writ of habeas corpus or prosecution for treason or some other crime. Post, at 1. He does not explain how his historical analysis supports the addition of a third option -- detention under some other process after concession of enemy-combatant status -- or why a concession should carry any different effect than proof of enemy-combatant status in a proceeding that comports with due process. To be clear, our opinion only finds legislative authority to detain under the AUMF once it is sufficiently clear that the individual is, in fact, an enemy combatant; whether that is established by concession or by some other process that verifies this fact with sufficient certainty seems beside the point.


[52] Further, Justice Scalia largely ignores the context of this case: a United States citizen captured in a foreign combat zone. Justice Scalia refers to only one case involving this factual scenario -- a case in which a United States citizen-POW (a member of the Italian army) from World War II was seized on the battlefield in Sicily and then held in the United States. The court in that case held that the military detention of that United States citizen was lawful. See In re Territo, 156 F. 2d, at 148.


[53] Justice Scalia's treatment of that case -- in a footnote -- suffers from the same defect as does his treatment of Quirin: Because Justice Scalia finds the fact of battlefield capture irrelevant, his distinction based on the fact that the petitioner "conceded" enemy combatant status is beside the point. See supra, at 15-16. Justice Scalia can point to no case or other authority for the proposition that those captured on a foreign battlefield (whether detained there or in U. S. territory) cannot be detained outside the criminal process.


[54] Moreover, Justice Scalia presumably would come to a different result if Hamdi had been kept in Afghanistan or even Guantanamo Bay. See post, at 25 (Scalia, J., dissenting). This creates a perverse incentive. Military authorities faced with the stark choice of submitting to the full-blown criminal process or releasing a suspected enemy combatant captured on the battlefield will simply keep citizen-detainees abroad. Indeed, the Government transferred Hamdi from Guantanamo Bay to the United States naval brig only after it learned that he might be an American citizen. It is not at all clear why that should make a determinative constitutional difference.


[55] III.


[56] Even in cases in which the detention of enemy combatants is legally authorized, there remains the question of what process is constitutionally due to a citizen who disputes his enemy-combatant status. Hamdi argues that he is owed a meaningful and timely hearing and that "extra-judicial detention [that] begins and ends with the submission of an affidavit based on third-hand hearsay" does not comport with the Fifth and Fourteenth Amendments. Brief for Petitioners 16. The Government counters that any more process than was provided below would be both unworkable and "constitutionally intolerable." Brief for Respondents 46. Our resolution of this dispute requires a careful examination both of the writ of habeas corpus, which Hamdi now seeks to employ as a mechanism of judicial review, and of the Due Process Clause, which informs the procedural contours of that mechanism in this instance.


[57] A.


[58] Though they reach radically different conclusions on the process that ought to attend the present proceeding, the parties begin on common ground. All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States. U. S. Const., Art. I, §9, cl. 2 ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it"). Only in the rarest of circumstances has Congress seen fit to suspend the writ. See, e.g., Act of Mar. 3, 1863, ch. 81, §1, 12 Stat. 755; Act of April 20, 1871, ch. 22, §4, 17 Stat. 14. At all other times, it has remained a critical check on the Executive, ensuring that it does not detain individuals except in accordance with law. See INS v. St. Cyr, 533 U. S. 289, 301 (2001). All agree suspension of the writ has not occurred here. Thus, it is undisputed that Hamdi was properly before an Article III court to challenge his detention under 28 U. S. C. §2241. Brief for Respondents 12. Further, all agree that §2241 and its companion provisions provide at least a skeletal outline of the procedures to be afforded a petitioner in federal habeas review. Most notably, §2243 provides that "the person detained may, under oath, deny any of the facts set forth in the return or allege any other material facts," and §2246 allows the taking of evidence in habeas proceedings by deposition, affidavit, or interrogatories.


[59] The simple outline of §2241 makes clear both that Congress envisioned that habeas petitioners would have some opportunity to present and rebut facts and that courts in cases like this retain some ability to vary the ways in which they do so as mandated by due process. The Government recognizes the basic procedural protections required by the habeas statute, Id., at 37-38, but asks us to hold that, given both the flexibility of the habeas mechanism and the circumstances presented in this case, the presentation of the Mobbs Declaration to the habeas court completed the required factual development. It suggests two separate reasons for its position that no further process is due.


[60] B.


[61] First, the Government urges the adoption of the Fourth Circuit's holding below -- that because it is "undisputed" that Hamdi's seizure took place in a combat zone, the habeas determination can be made purely as a matter of law, with no further hearing or factfinding necessary. This argument is easily rejected. As the dissenters from the denial of rehearing en banc noted, the circumstances surrounding Hamdi's seizure cannot in any way be characterized as "undisputed," as "those circumstances are neither conceded in fact, nor susceptible to concession in law, because Hamdi has not been permitted to speak for himself or even through counsel as to those circumstances." 337 F. 3d 335, 357 (CA4 2003) (Luttig, J., dissenting from denial of rehearing en banc); see also id., at 371-372 (Motz, J., dissenting from denial of rehearing en banc). Further, the "facts" that constitute the alleged concession are insufficient to support Hamdi's detention. Under the definition of enemy combatant that we accept today as falling within the scope of Congress' authorization, Hamdi would need to be "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States" to justify his detention in the United States for the duration of the relevant conflict. Brief for Respondents 3. The habeas petition states only that "[w]hen seized by the United States Government, Mr. Hamdi resided in Afghanistan." App. 104. An assertion that one resided in a country in which combat operations are taking place is not a concession that one was "captured in a zone of active combat operations in a foreign theater of war," 316 F. 3d, at 459 (emphasis added), and certainly is not a concession that one was "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States." Accordingly, we reject any argument that Hamdi has made concessions that eliminate any right to further process.


[62] C.


[63] The Government's second argument requires closer consideration. This is the argument that further factual exploration is unwarranted and inappropriate in light of the extraordinary constitutional interests at stake. Under the Government's most extreme rendition of this argument, "[r]espect for separation of powers and the limited institutional capabilities of courts in matters of military decision-making in connection with an ongoing conflict" ought to eliminate entirely any individual process, restricting the courts to investigating only whether legal authorization exists for the broader detention scheme. Brief for Respondents 26. At most, the Government argues, courts should review its determination that a citizen is an enemy combatant under a very deferential "some evidence" standard. Id., at 34 ("Under the some evidence standard, the focus is exclusively on the factual basis supplied by the Executive to support its own determination" (citing Superintendent, Mass. Correctional Institution at Walpole v. Hill, 472 U. S. 445, 455-457 (1985) (explaining that the some evidence standard "does not require" a "weighing of the evidence," but rather calls for assessing "whether there is any evidence in the record that could support the conclusion")). Under this review, a court would assume the accuracy of the Government's articulated basis for Hamdi's detention, as set forth in the Mobbs Declaration, and assess only whether that articulated basis was a legitimate one. Brief for Respondents 36; see also 316 F. 3d, at 473-474 (declining to address whether the "some evidence" standard should govern the adjudication of such claims, but noting that "[t]he factual averments in the [Mobbs] affidavit, if accurate, are sufficient to confirm" the legality of Hamdi's detention).


[64] In response, Hamdi emphasizes that this Court consistently has recognized that an individual challenging his detention may not be held at the will of the Executive without recourse to some proceeding before a neutral tribunal to determine whether the Executive's asserted justifications for that detention have basis in fact and warrant in law. See, e.g., Zadvydas v. Davis, 533 U. S. 678, 690 (2001); Addington v. Texas, 441 U. S. 418, 425-427 (1979). He argues that the Fourth Circuit inappropriately "ceded power to the Executive during wartime to define the conduct for which a citizen may be detained, judge whether that citizen has engaged in the proscribed conduct, and imprison that citizen indefinitely," Brief for Petitioners 21, and that due process demands that he receive a hearing in which he may challenge the Mobbs Declaration and adduce his own counter evidence. The District Court, agreeing with Hamdi, apparently believed that the appropriate process would approach the process that accompanies a criminal trial. It therefore disapproved of the hearsay nature of the Mobbs Declaration and anticipated quite extensive discovery of various military affairs. Anything less, it concluded, would not be "meaningful judicial review." App. 291.


[65] Both of these positions highlight legitimate concerns. And both emphasize the tension that often exists between the autonomy that the Government asserts is necessary in order to pursue effectively a particular goal and the process that a citizen contends he is due before he is deprived of a constitutional right. The ordinary mechanism that we use for balancing such serious competing interests, and for determining the procedures that are necessary to ensure that a citizen is not "deprived of life, liberty, or property, without due process of law," U. S. Const., Amdt. 5, is the test that we articulated in Mathews v. Eldridge, 424 U. S. 319 (1976). See, e.g., Heller v. Doe, 509 U. S. 312, 330-331 (1993); Zinermon v. Burch, 494 U. S. 113, 127-128 (1990); United States v. Salerno, 481 U. S. 739, 746 (1987); Schall v. Martin, 467 U. S. 253, 274-275 (1984); Addington v. Texas, supra, at 425. Mathews dictates that the process due in any given instance is determined by weighing "the private interest that will be affected by the official action" against the Government's asserted interest, "including the function involved" and the burdens the Government would face in providing greater process. 424 U. S., at 335. The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of "the risk of an erroneous deprivation" of the private interest if the process were reduced and the "probable value, if any, of additional or substitute safeguards." Ibid. We take each of these steps in turn.


[66] 1.


[67] It is beyond question that substantial interests lie on both sides of the scale in this case. Hamdi's "private interest ... affected by the official action," ibid., is the most elemental of liberty interests -- the interest in being free from physical detention by one's own government. Foucha v. Louisiana, 504 U. S. 71, 80 (1992) ("Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action"); see also Parham v. J. R., 442 U. S. 584, 600 (1979) (noting the "substantial liberty interest in not being confined unnecessarily"). "In our society liberty is the norm," and detention without trial "is the carefully limited exception." Salerno, supra, at 755. "We have always been careful not to `minimize the importance and fundamental nature' of the individual's right to liberty," Foucha, supra, at 80 (quoting Salerno, supra, at 750), and we will not do so today.


[68] Nor is the weight on this side of the Mathews scale offset by the circumstances of war or the accusation of treasonous behavior, for "[i]t is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection," Jones v. United States, 463 U. S. 354, 361 (1983) (emphasis added; internal quotation marks omitted), and at this stage in the Mathews calculus, we consider the interest of the erroneously detained individual. Carey v. Piphus, 435 U. S. 247, 259 (1978) ("Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property"); see also id., at 266 (noting "the importance to organized society that procedural due process be observed," and emphasizing that "the right to procedural due process is `absolute' in the sense that it does not depend upon the merits of a claimant's substantive assertions"). Indeed, as amicus briefs from media and relief organizations emphasize, the risk of erroneous deprivation of a citizen's liberty in the absence of sufficient process here is very real. See Brief for AmeriCares et al. as Amici Curiae 13-22 (noting ways in which "[t]he nature of humanitarian relief work and journalism present a significant risk of mistaken military detentions"). Moreover, as critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat. See Ex parte Milligan, 4 Wall., at 125 ("[The Founders] knew -- the history of the world told them -- the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell; and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen"). Because we live in a society in which "[m]ere public intolerance or animosity cannot constitutionally justify the deprivation of a person's physical liberty," O'Connor v. Donaldson, 422 U. S. 563, 575 (1975), our starting point for the Mathews v. Eldridge analysis is unaltered by the allegations surrounding the particular detainee or the organizations with which he is alleged to have associated. We reaffirm today the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law, and we weigh the opposing governmental interests against the curtailment of liberty that such confinement entails.


[69] 2.


[70] On the other side of the scale are the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States. As discussed above, supra, at 10, the law of war and the realities of combat may render such detentions both necessary and appropriate, and our due process analysis need not blink at those realities. Without doubt, our Constitution recognizes that core strategic matters of warmaking belong in the hands of those who are best positioned and most politically accountable for making them. Department of Navy v. Egan, 484 U. S. 518, 530 (1988) (noting the reluctance of the courts "to intrude upon the authority of the Executive in military and national security affairs"); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 587 (1952) (acknowledging "broad powers in military commanders engaged in day-to-day fighting in a theater of war").


[71] The Government also argues at some length that its interests in reducing the process available to alleged enemy combatants are heightened by the practical difficulties that would accompany a system of trial-like process. In its view, military officers who are engaged in the serious work of waging battle would be unnecessarily and dangerously distracted by litigation half a world away, and discovery into military operations would both intrude on the sensitive secrets of national defense and result in a futile search for evidence buried under the rubble of war. Brief for Respondents 46-49. To the extent that these burdens are triggered by heightened procedures, they are properly taken into account in our due process analysis.


[72] 3.


[73] Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. See Kennedy v. Mendoza&nbhyph;Martinez, 372 U. S. 144, 164-165 (1963) ("The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with guarantees which, it is feared, will inhibit government action"); see also United States v. Robel, 389 U. S. 258, 264 (1967) ("It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties ... which makes the defense of the Nation worthwhile").


[74] With due recognition of these competing concerns, we believe that neither the process proposed by the Government nor the process apparently envisioned by the District Court below strikes the proper constitutional balance when a United States citizen is detained in the United States as an enemy combatant. That is, "the risk of erroneous deprivation" of a detainee's liberty interest is unacceptably high under the Government's proposed rule, while some of the "additional or substitute procedural safeguards" suggested by the District Court are unwarranted in light of their limited "probable value" and the burdens they may impose on the military in such cases. Mathews, 424 U. S., at 335.


[75] We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker. See Cleveland Bd. of Ed. v. Loudermill, 470 U. S. 532, 542 (1985) ("An essential principle of due process is that a deprivation of life, liberty, or property `be preceded by notice and opportunity for hearing appropriate to the nature of the case' " (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950)); Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U. S. 602, 617 (1993) ("due process requires a `neutral and detached judge in the first instance' " (quoting Ward v. Monroeville, 409 U. S. 57, 61-62 (1972)). "For more than a century the central meaning of procedural due process has been clear: `Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.' It is equally fundamental that the right to notice and an opportunity to be heard `must be granted at a meaningful time and in a meaningful manner.' " Fuentes v. Shevin, 407 U. S. 67, 80 (1972) (quoting Baldwin v. Hale, 1 Wall. 223, 233 (1864); Armstrong v. Manzo, 380 U. S. 545, 552 (1965) (other citations omitted)). These essential constitutional promises may not be eroded.


[76] At the same time, the exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant. In the words of Mathews, process of this sort would sufficiently address the "risk of erroneous deprivation" of a detainee's liberty interest while eliminating certain procedures that have questionable additional value in light of the burden on the Government. 424 U. S., at 335.*fn2


[77] We think it unlikely that this basic process will have the dire impact on the central functions of warmaking that the Government forecasts. The parties agree that initial captures on the battlefield need not receive the process we have discussed here; that process is due only when the determination is made to continue to hold those who have been seized. The Government has made clear in its briefing that documentation regarding battlefield detainees already is kept in the ordinary course of military affairs. Brief for Respondents 3-4. Any factfinding imposition created by requiring a knowledgeable affiant to summarize these records to an independent tribunal is a minimal one. Likewise, arguments that military officers ought not have to wage war under the threat of litigation lose much of their steam when factual disputes at enemy-combatant hearings are limited to the alleged combatant's acts. This focus meddles little, if at all, in the strategy or conduct of war, inquiring only into the appropriateness of continuing to detain an individual claimed to have taken up arms against the United States. While we accord the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of a war, and recognize that the scope of that discretion necessarily is wide, it does not infringe on the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims like those presented here. Cf. Korematsu v. United States, 323 U. S. 214, 233-234 (1944) (Murphy, J., dissenting) ("[L]ike other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled"); Sterling v. Constantin, 287 U. S. 378, 401 (1932) ("What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions").


[78] In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen's core rights to challenge meaningfully the Government's case and to be heard by an impartial adjudicator.


[79] D.


[80] In so holding, we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Sheet & Tube, 343 U. S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. Mistretta v. United States, 488 U. S. 361, 380 (1989) (it was "the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty"); Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 426 (1934) (The war power "is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties"). Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive's discretion in the realm of detentions. See St. Cyr, 533 U. S., at 301 ("At 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"). Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.


[81] Because we conclude that due process demands some system for a citizen detainee to refute his classification, the proposed "some evidence" standard is inadequate. Any process in which the Executive's factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short. As the Government itself has recognized, we have utilized the "some evidence" standard in the past as a standard of review, not as a standard of proof. Brief for Respondents 35. That is, it primarily has been employed by courts in examining an administrative record developed after an adversarial proceeding -- one with process at least of the sort that we today hold is constitutionally mandated in the citizen enemy-combatant setting. See, e.g., St. Cyr, supra; Hill, 472 U. S., at 455-457. This standard therefore is ill suited to the situation in which a habeas petitioner has received no prior proceedings before any tribunal and had no prior opportunity to rebut the Executive's factual assertions before a neutral decisionmaker.


[82] Today we are faced only with such a case. Aside from unspecified "screening" processes, Brief for Respondents 3-4, and military interrogations in which the Government suggests Hamdi could have contested his classification, Tr. of Oral Arg. 40, 42, Hamdi has received no process. An interrogation by one's captor, however effective an intelligence-gathering tool, hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker. Compare Brief for Respondents 42-43 (discussing the "secure interrogation environment," and noting that military interrogations require a controlled "interrogation dynamic" and "a relationship of trust and dependency" and are "a critical source" of "timely and effective intelligence") with Concrete Pipe, 508 U. S., at 617-618 ("one is entitled as a matter of due process of law to an adjudicator who is not in a situation which would offer a possible temptation to the average man as a judge . . . which might lead him not to hold the balance nice, clear and true" (internal quotation marks omitted). That even purportedly fair adjudicators "are disqualified by their interest in the controversy to be decided is, of course, the general rule." Tumey v. Ohio, 273 U. S. 510, 522 (1927). Plainly, the "process" Hamdi has received is not that to which he is entitled under the Due Process Clause.


[83] There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal. Indeed, it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Convention. See Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Regulation 190-8, §1-6 (1997). In the absence of such process, however, a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved. Both courts below recognized as much, focusing their energies on the question of whether Hamdi was due an opportunity to rebut the Government's case against him. The Government, too, proceeded on this assumption, presenting its affidavit and then seeking that it be evaluated under a deferential standard of review based on burdens that it alleged would accompany any greater process. As we have discussed, a habeas court in a case such as this may accept affidavit evidence like that contained in the Mobbs Declaration, so long as it also permits the alleged combatant to present his own factual case to rebut the Government's return. We anticipate that a District Court would proceed with the caution that we have indicated is necessary in this setting, engaging in a factfinding process that is both prudent and incremental. We have no reason to doubt that courts faced with these sensitive matters will pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns.


[84] IV.


[85] Hamdi asks us to hold that the Fourth Circuit also erred by denying him immediate access to counsel upon his detention and by disposing of the case without permitting him to meet with an attorney. Brief for Petitioners 19. Since our grant of certiorari in this case, Hamdi has been appointed counsel, with whom he has met for consultation purposes on several occasions, and with whom he is now being granted unmonitored meetings. He unquestionably has the right to access to counsel in connection with the proceedings on remand. No further consideration of this issue is necessary at this stage of the case.


[86] The judgment of the United States Court of Appeals for the Fourth Circuit is vacated, and the case is remanded for further proceedings.


[87] It is so ordered.


[88] Scalia, J., dissenting


[89] Justice Scalia, with whom Justice Stevens joins, dissenting.


[90] Petitioner, a presumed American citizen, has been imprisoned without charge or hearing in the Norfolk and Charleston Naval Brigs for more than two years, on the allegation that he is an enemy combatant who bore arms against his country for the Taliban. His father claims to the contrary, that he is an inexperienced aid worker caught in the wrong place at the wrong time. This case brings into conflict the competing demands of national security and our citizens' constitutional right to personal liberty. Although I share the Court's evident unease as it seeks to reconcile the two, I do not agree with its resolution.


[91] Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause. Accordingly, I would reverse the decision below.


[92] I.


[93] The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive. Blackstone stated this principle clearly:


[94] "Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper ... there would soon be an end of all other rights and immunities. ... To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. ...


[95] "To make imprisonment lawful, it must either be, by process from the courts of judicature, or by warrant from some legal officer, having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into (if necessary) upon a habeas corpus. If there be no cause expressed, the gaoler is not bound to detain the prisoner. For the law judges in this respect, ... that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged against him." 1 W. Blackstone, Commentaries on the Laws of England 132-133 (1765) (hereinafter Blackstone).


[96] These words were well known to the Founders. Hamilton quoted from this very passage in The Federalist No. 84, p. 444 (G. Carey & J. McClellan eds. 2001). The two ideas central to Blackstone's understanding -- due process as the right secured, and habeas corpus as the instrument by which due process could be insisted upon by a citizen illegally imprisoned -- found expression in the Constitution's Due Process and Suspension Clauses. See Amdt. 5; Art. I, §9, cl. 2.


[97] The gist of the Due Process Clause, as understood at the founding and since, was to force the Government to follow those common-law procedures traditionally deemed necessary before depriving a person of life, liberty, or property. When a citizen was deprived of liberty because of alleged criminal conduct, those procedures typically required committal by a magistrate followed by indictment and trial. See, e.g., 2 & 3 Phil. & M., c. 10 (1555); 3 J. Story, Commentaries on the Constitution of the United States §1783, p. 661 (1833) (hereinafter Story) (equating "due process of law" with "due presentment or indictment, and being brought in to answer thereto by due process of the common law"). The Due Process Clause "in effect affirms the right of trial according to the process and proceedings of the common law." Ibid. See also T. Cooley, General Principles of Constitutional Law 224 (1880) ("When life and liberty are in question, there must in every instance be judicial proceedings; and that requirement implies an accusation, a hearing before an impartial tribunal, with proper jurisdiction, and a conviction and judgment before the punishment can be inflicted" (internal quotation marks omitted)).


[98] To be sure, certain types of permissible non-criminal detention -- that is, those not dependent upon the contention that the citizen had committed a criminal act -- did not require the protections of criminal procedure. However, these fell into a limited number of well-recognized exceptions --civil commitment of the mentally ill, for example, and temporary detention in quarantine of the infectious. See Opinion on the Writ of Habeas Corpus, 97 Eng. Rep. 29, 36-37 (H. L. 1758) (Wilmot, J.). It is unthinkable that the Executive could render otherwise criminal grounds for detention non-criminal merely by disclaiming an intent to prosecute, or by asserting that it was incapacitating dangerous offenders rather than punishing wrongdoing. Cf. Kansas v. Hendricks, 521 U. S. 346, 358 (1997) ("A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment").


[99] These due process rights have historically been vindicated by the writ of habeas corpus. In England before the founding, the writ developed into a tool for challenging executive confinement. It was not always effective. For example, in Darnel's Case, 3 How. St. Tr. 1 (K. B. 1627), King Charles I detained without charge several individuals for failing to assist England's war against France and Spain. The prisoners sought writs of habeas corpus, arguing that without specific charges, "imprisonment shall not continue on for a time, but for ever; and the subjects of this kingdom may be restrained of their liberties perpetually." Id., at 8. The Attorney General replied that the Crown's interest in protecting the realm justified imprisonment in "a matter of state ... not ripe nor timely" for the ordinary process of accusation and trial. Id., at 37. The court denied relief, producing widespread outrage, and Parliament responded with the Petition of Right, accepted by the King in 1628, which expressly prohibited imprisonment without formal charges, see 3 Car. 1, c. 1, §§5, 10.


[100] The struggle between subject and Crown continued, and culminated in the Habeas Corpus Act of 1679, 31 Car. 2, c. 2, described by Blackstone as a "second magna charta, and stable bulwark of our liberties." 1 Blackstone 133. The Act governed all persons "committed or detained ... for any crime." §3. In cases other than felony or treason plainly expressed in the warrant of commitment, the Act required release upon appropriate sureties (unless the commitment was for a nonbailable offense). Ibid. Where the commitment was for felony or high treason, the Act did not require immediate release, but instead required the Crown to commence criminal proceedings within a specified time. §7. If the prisoner was not "indicted some Time in the next Term," the judge was "required ... to set at Liberty the Prisoner upon Bail" unless the King was unable to produce his witnesses. Ibid. Able or no, if the prisoner was not brought to trial by the next succeeding term, the Act provided that "he shall be discharged from his Imprisonment." Ibid. English courts sat four terms per year, see 3 Blackstone 275-277, so the practical effect of this provision was that imprisonment without indictment or trial for felony or high treason under §7 would not exceed approximately three to six months.


[101] The writ of habeas corpus was preserved in the Constitution -- the only common-law writ to be explicitly mentioned. See Art. I, §9, cl. 2. Hamilton lauded "the establishment of the writ of habeas corpus" in his Federalist defense as a means to protect against "the practice of arbitrary imprisonments ... in all ages, [one of] the favourite and most formidable instruments of tyranny." The Federalist No. 84, supra, at 444. Indeed, availability of the writ under the new Constitution (along with the requirement of trial by jury in criminal cases, see Art. III, §2, cl. 3) was his basis for arguing that additional, explicit procedural protections were unnecessary. See The Federalist No. 83, at 433.


[102] II.


[103] The allegations here, of course, are no ordinary accusations of criminal activity. Yaser Esam Hamdi has been imprisoned because the Government believes he participated in the waging of war against the United States. The relevant question, then, is whether there is a different, special procedure for imprisonment of a citizen accused of wrongdoing by aiding the enemy in wartime.


[104] A.


[105] Justice O'Connor, writing for a plurality of this Court, asserts that captured enemy combatants (other than those suspected of war crimes) have traditionally been detained until the cessation of hostilities and then released. Ante, at 10-11. That is probably an accurate description of wartime practice with respect to enemy aliens. The tradition with respect to American citizens, however, has been quite different. Citizens aiding the enemy have been treated as traitors subject to the criminal process.


[106] As early as 1350, England's Statute of Treasons made it a crime to "levy War against our Lord the King in his Realm, or be adherent to the King's Enemies in his Realm, giving to them Aid and Comfort, in the Realm, or elsewhere." 25 Edw. 3, Stat. 5, c. 2. In his 1762 Discourse on High Treason, Sir Michael Foster explained:


[107] "With regard to Natural-born Subjects there can be no Doubt. They owe Allegiance to the Crown at all Times and in all Places.


[108] "The joining with Rebels in an Act of Rebellion, or with Enemies in Acts of Hostility, will make a Man a Traitor: in the one Case within the Clause of Levying War, in the other within that of Adhering to the King's enemies.


[109] "States in Actual Hostility with Us, though no War be solemnly Declared, are Enemies within the meaning of the Act. And therefore in an Indictment on the Clause of Adhering to the King's Enemies, it is sufficient to Aver that the Prince or State Adhered to is an Enemy, without shewing any War Proclaimed... . And if the Subject of a Foreign Prince in Amity with Us, invadeth the Kingdom without Commission from his Sovereign, He is an Enemy. And a Subject of England adhering to Him is a Traitor within this Clause of the Act." A Report of Some Proceedings on the Commission ... for the Trial of the Rebels in the Year 1746 in the County of Surry, and of Other Crown Cases, Introduction, §1, p. 183; Ch. 2, §8, p. 216; §12, p. 219.


[110] Subjects accused of levying war against the King were routinely prosecuted for treason. E.g., Harding's Case, 2 Ventris 315, 86 Eng. Rep. 461 (K. B. 1690); Trial of Parkyns, 13 How. St. Tr. 63 (K. B. 1696); Trial of Vaughan, 13 How. St. Tr. 485 (K. B. 1696); Trial of Downie, 24 How. St. Tr. 1 (1794). The Founders inherited the understanding that a citizen's levying war against the Government was to be punished criminally. The Constitution provides: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort"; and establishes a heightened proof requirement (two witnesses) in order to "convic[t]" of that offense. Art. III, §3, cl. 1.


[111] In more recent times, too, citizens have been charged and tried in Article III courts for acts of war against the United States, even when their noncitizen co-conspirators were not. For example, two American citizens alleged to have participated during World War I in a spying conspiracy on behalf of Germany were tried in federal court. See United States v. Fricke, 259 F. 673 (SDNY 1919); United States v. Robinson, 259 F. 685 (SDNY 1919). A German member of the same conspiracy was subjected to military process. See United States ex rel. Wessels v. McDonald, 265 F. 754 (EDNY 1920). During World War II, the famous German saboteurs of Ex parte Quirin, 317 U. S. 1 (1942), received military process, but the citizens who associated with them (with the exception of one citizen-saboteur, discussed below) were punished under the criminal process. See Haupt v. United States, 330 U. S. 631 (1947); L. Fisher, Nazi Saboteurs on Trial 80-84 (2003); see also Cramer v. United States, 325 U. S. 1 (1945).


[112] The modern treason statute is 18 U. S. C. §2381; it basically tracks the language of the constitutional provision. Other provisions of Title 18 criminalize various acts of warmaking and adherence to the enemy. See, e.g., §32 (destruction of aircraft or aircraft facilities), §2332a (use of weapons of mass destruction), §2332b (acts of terrorism transcending national boundaries), §2339A (providing material support to terrorists), §2339B (providing material support to certain terrorist organizations), §2382 (misprision of treason), §2383 (rebellion or insurrection), §2384 (seditious conspiracy), §2390 (enlistment to serve in armed hostility against the United States). See also 31 CFR §595.204 (2003) (prohibiting the "making or receiving of any contribution of funds, goods, or services" to terrorists); 50 U. S. C. §1705(b) (criminalizing violations of 31 CFR §595.204). The only citizen other than Hamdi known to be imprisoned in connection with military hostilities in Afghanistan against the United States was subjected to criminal process and convicted upon a guilty plea. See United States v. Lindh, 212 F. Supp. 2d 541 (ED Va. 2002) (denying motions for dismissal); Seelye, N. Y. Times, Oct. 5, 2002, p. A1, col. 5.


[113] B.


[114] There are times when military exigency renders resort to the traditional criminal process impracticable. English law accommodated such exigencies by allowing legislative suspension of the writ of habeas corpus for brief periods. Blackstone explained:


[115] "And yet sometimes, when the state is in real danger, even this [i.e., executive detention] may be a necessary measure. But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great, as to render this measure expedient. For the parliament only, or legislative power, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing... . In like manner this experiment ought only to be tried in case of extreme emergency; and in these the nation parts with it[s] liberty for a while, in order to preserve it for ever." 1 Blackstone 132.


[116] Where the Executive has not pursued the usual course of charge, committal, and conviction, it has historically secured the Legislature's explicit approval of a suspension. In England, Parliament on numerous occasions passed temporary suspensions in times of threatened invasion or rebellion. E.g., 1 W. & M., c. 7 (1688) (threatened return of James II); 7 & 8 Will. 3, c. 11 (1696) (same); 17 Geo. 2, c. 6 (1744) (threatened French invasion); 19 Geo. 2, c. 1 (1746) (threatened rebellion in Scotland); 17 Geo. 3, c. 9 (1777) (the American Revolution). Not long after Massachusetts had adopted a clause in its constitution explicitly providing for habeas corpus, see Mass. Const. pt. 2, ch. 6, art. VII (1780), reprinted in 3 Federal and State Constitutions, Colonial Charters and Other Organic Laws 1888, 1910 (F. Thorpe ed. 1909), it suspended the writ in order to deal with Shay's Rebellion, see Act for Suspending the Privilege of the Writ of Habeas Corpus, ch. 10, 1786 Mass. Acts 510.


[117] Our Federal Constitution contains a provision explicitly permitting suspension, but limiting the situations in which it may be invoked: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Art. I, §9, cl. 2. Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause's placement in Article I. See Ex parte Bollman, 4 Cranch 75, 101 (1807); Ex parte Merryman, 17 F. Cas. 144, 151-152 (CD Md. 1861) (Taney, C. J., rejecting Lincoln's unauthorized suspension); 3 Story §1336, at 208-209.


[118] The Suspension Clause was by design a safety valve, the Constitution's only "express provision for exercise of extraordinary authority because of a crisis," Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 650 (1952) (Jackson, J., concurring). Very early in the Nation's history, President Jefferson unsuccessfully sought a suspension of habeas corpus to deal with Aaron Burr's conspiracy to overthrow the Government. See 16 Annals of Congress 402-425 (1807). During the Civil War, Congress passed its first Act authorizing Executive suspension of the writ of habeas corpus, see Act of Mar. 3, 1863, 12 Stat. 755, to the relief of those many who thought President Lincoln's unauthorized proclamations of suspension (e.g., Proclamation No. 1, 13 Stat. 730 (1862)) unconstitutional. Later Presidential proclamations of suspension relied upon the congressional authorization, e.g., Proclamation No. 7, 13 Stat. 734 (1863). During Reconstruction, Congress passed the Ku Klux Klan Act, which included a provision authorizing suspension of the writ, invoked by President Grant in quelling a rebellion in nine South Carolina counties. See Act of Apr. 20, 1871, ch. 22, §4, 17 Stat. 14; A Proclamation [of Oct. 17, 1871], 7 Compilation of the Messages and Papers of the Presidents 136-138 (J. Richardson ed. 1899) (hereinafter Messages and Papers); id., at 138-139.


[119] Two later Acts of Congress provided broad suspension authority to governors of U. S. possessions. The Philippine Civil Government Act of 1902 provided that the Governor of the Philippines could suspend the writ in case of rebellion, insurrection, or invasion. Act of July 1, 1902, ch. 1369, §5, 32 Stat. 691. In 1905 the writ was suspended for nine months by proclamation of the Governor. See Fisher v. Baker, 203 U. S. 174, 179-181 (1906). The Hawaiian Organic Act of 1900 likewise provided that the Governor of Hawaii could suspend the writ in case of rebellion or invasion (or threat thereof). Ch. 339, §67, 31 Stat. 153.


[120] III.


[121] Of course the extensive historical evidence of criminal convictions and habeas suspensions does not necessarily refute the Government's position in this case. When the writ is suspended, the Government is entirely free from judicial oversight. It does not claim such total liberation here, but argues that it need only produce what it calls "some evidence" to satisfy a habeas court that a detained individual is an enemy combatant. See Brief for Respondents 34. Even if suspension of the writ on the one hand, and committal for criminal charges on the other hand, have been the only traditional means of dealing with citizens who levied war against their own country, it is theoretically possible that the Constitution does not require a choice between these alternatives.


[122] I believe, however, that substantial evidence does refute that possibility. First, the text of the 1679 Habeas Corpus Act makes clear that indefinite imprisonment on reasonable suspicion is not an available option of treatment for those accused of aiding the enemy, absent a suspension of the writ. In the United States, this Act was read as "enforc[ing] the common law," Ex parte Watkins, 3 Pet. 193, 202 (1830), and shaped the early understanding of the scope of the writ. As noted above, see supra, at 5, §7 of the Act specifically addressed those committed for high treason, and provided a remedy if they were not indicted and tried by the second succeeding court term. That remedy was not a bobtailed judicial inquiry into whether there were reasonable grounds to believe the prisoner had taken up arms against the King. Rather, if the prisoner was not indicted and tried within the prescribed time, "he shall be discharged from his Imprisonment." 31 Car. 2, c. 2, §7. The Act does not contain any exception for wartime. That omission is conspicuous, since §7 explicitly addresses the offense of "High Treason," which often involved offenses of a military nature. See cases cited supra, at 7.


[123] Writings from the founding generation also suggest that, without exception, the only constitutional alternatives are to charge the crime or suspend the writ. In 1788, Thomas Jefferson wrote to James Madison questioning the need for a Suspension Clause in cases of rebellion in the proposed Constitution. His letter illustrates the constraints under which the Founders understood themselves to operate:


[124] "Why suspend the Hab. corp. in insurrections and rebellions? The parties who may be arrested may be charged instantly with a well defined crime. Of course the judge will remand them. If the publick safety requires that the government should have a man imprisoned on less probable testimony in those than in other emergencies; let him be taken and tried, retaken and retried, while the necessity continues, only giving him redress against the government for damages." 13 Papers of Thomas Jefferson 442 (July 31, 1788) (J. Boyd ed. 1956).


[125] A similar view was reflected in the 1807 House debates over suspension during the armed uprising that came to be known as Burr's conspiracy:


[126] "With regard to those persons who may be implicated in the conspiracy, if the writ of habeas corpus be not suspended, what will be the consequence? When apprehended, they will be brought before a court of justice, who will decide whether there is any evidence that will justify their commitment for farther prosecution. From the communication of the Executive, it appeared there was sufficient evidence to authorize their commitment. Several months would elapse before their final trial, which would give time to collect evidence, and if this shall be sufficient, they will not fail to receive the punishment merited by their crimes, and inflicted by the laws of their country." 16 Annals of Congress, at 405 (remarks of Rep. Burwell).


[127] The absence of military authority to imprison citizens indefinitely in wartime -- whether or not a probability of treason had been established by means less than jury trial -- was confirmed by three cases decided during and immediately after the War of 1812. In the first, In re Stacy, 10 Johns. *328 (N. Y. 1813), a citizen was taken into military custody on suspicion that he was "carrying provisions and giving information to the enemy." Id., at *330 (emphasis deleted). Stacy petitioned for a writ of habeas corpus, and, after the defendant custodian attempted to avoid complying, Chief Justice Kent ordered attachment against him. Kent noted that the military was "without any color of authority in any military tribunal to try a citizen for that crime" and that it was "holding him in the closest confinement, and contemning the civil authority of the state." Id., at *333-*334.


[128] Two other cases, later cited with approval by this Court in Ex parte Milligan, 4 Wall. 2, 128-129 (1866), upheld verdicts for false imprisonment against military officers. In Smith v. Shaw, 12 Johns. *257 (N. Y. 1815), the court affirmed an award of damages for detention of a citizen on suspicion that he was, among other things, "an enemy's spy in time of war." Id., at *265. The court held that "[n]one of the offences charged against Shaw were cognizable by a court-martial, except that which related to his being a spy; and if he was an American citizen, he could not be charged with such an offence. He might be amenable to the civil authority for treason; but could not be punished, under martial law, as a spy." Ibid. "If the defendant was justifiable in doing what he did, every citizen of the United States would, in time of war, be equally exposed to a like exercise of military power and authority." Id., at *266. Finally, in M'Connell v. Hampton, 12 Johns. *234 (N. Y. 1815), a jury awarded $9,000 for false imprisonment after a military officer confined a citizen on charges of treason; the judges on appeal did not question the verdict but found the damages excessive, in part because "it does not appear that [the defendant] ... knew [the plaintiff] was a citizen." Id., at *238 (Spencer, J.). See generally Wuerth, The President's Power to Detain "Enemy Combatants": Modern Lessons from Mr. Madison's Forgotten War, 98 Nw. U. L. Rev. (forthcoming 2004) (available in Clerk of Court's case file).


[129] President Lincoln, when he purported to suspend habeas corpus without congressional authorization during the Civil War, apparently did not doubt that suspension was required if the prisoner was to be held without criminal trial. In his famous message to Congress on July 4, 1861, he argued only that he could suspend the writ, not that even without suspension, his imprisonment of citizens without criminal trial was permitted. See Special Session Message, 6 Messages and Papers 20-31.


[130] Further evidence comes from this Court's decision in Ex parte Milligan, supra. There, the Court issued the writ to an American citizen who had been tried by military commission for offenses that included conspiring to overthrow the Government, seize munitions, and liberate prisoners of war. Id., at 6-7. The Court rejected in no uncertain terms the Government's assertion that military jurisdiction was proper "under the `laws and usages of war,' " id., at 121:


[131] "It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed." Ibid.*fn3


[132] Milligan is not exactly this case, of course, since the petitioner was threatened with death, not merely imprisonment. But the reasoning and conclusion of Milligan logically cover the present case. The Government justifies imprisonment of Hamdi on principles of the law of war and admits that, absent the war, it would have no such authority. But if the law of war cannot be applied to citizens where courts are open, then Hamdi's imprisonment without criminal trial is no less unlawful than Milligan's trial by military tribunal.


[133] Milligan responded to the argument, repeated by the Government in this case, that it is dangerous to leave suspected traitors at large in time of war:


[134] "If it was dangerous, in the distracted condition of affairs, to leave Milligan unrestrained of his liberty, because he `conspired against the government, afforded aid and comfort to rebels, and incited the people to insurrection,' the law said arrest him, confine him closely, render him powerless to do further mischief; and then present his case to the grand jury of the district, with proofs of his guilt, and, if indicted, try him according to the course of the common law. If this had been done, the Constitution would have been vindicated, the law of 1863 enforced, and the securities for personal liberty preserved and defended." Id., at 122.


[135] Thus, criminal process was viewed as the primary means -- and the only means absent congressional action suspending the writ -- not only to punish traitors, but to incapacitate them.


[136] The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders' general mistrust of military power permanently at the Executive's disposal. In the Founders' view, the "blessings of liberty" were threatened by "those military establishments which must gradually poison its very fountain." The Federalist No. 45, p. 238 (J. Madison). No fewer than 10 issues of the Federalist were devoted in whole or part to allaying fears of oppression from the proposed Constitution's authorization of standing armies in peacetime. Many safeguards in the Constitution reflect these concerns. Congress's authority "[t]o raise and support Armies" was hedged with the proviso that "no Appropriation of Money to that Use shall be for a longer Term than two Years." U. S. Const., Art. 1, §8, cl. 12. Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II. As Hamilton explained, the President's military authority would be "much inferior" to that of the British King:


[137] "It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature." The Federalist No. 69, p. 357.


[138] A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions.


[139] IV.


[140] The Government argues that our more recent jurisprudence ratifies its indefinite imprisonment of a citizen within the territorial jurisdiction of federal courts. It places primary reliance upon Ex parte Quirin, 317 U. S. 1 (1942), a World War II case upholding the trial by military commission of eight German saboteurs, one of whom, Hans Haupt, was a U. S. citizen. The case was not this Court's finest hour. The Court upheld the commission and denied relief in a brief per curiam issued the day after oral argument concluded, see id., at 18-19, unnumbered note; a week later the Government carried out the commission's death sentence upon six saboteurs, including Haupt. The Court eventually explained its reasoning in a written opinion issued several months later.


[141] Only three paragraphs of the Court's lengthy opinion dealt with the particular circumstances of Haupt's case. See id., at 37-38, 45-46. The Government argued that Haupt, like the other petitioners, could be tried by military commission under the laws of war. In agreeing with that contention, Quirin purported to interpret the language of Milligan quoted above (the law of war "can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed") in the following manner:


[142] "Elsewhere in its opinion ... the Court was at pains to point out that Milligan, a citizen twenty years resident in Indiana, who had never been a resident of any of the states in rebellion, was not an enemy belligerent either entitled to the status of a prisoner of war or subject to the penalties imposed upon unlawful belligerents. We construe the Court's statement as to the inapplicability of the law of war to Milligan's case as having particular reference to the facts before it. From them the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war ... ." 317 U. S., at 45.


[143] In my view this seeks to revise Milligan rather than describe it. Milligan had involved (among other issues) two separate questions: (1) whether the military trial of Milligan was justified by the laws of war, and if not (2) whether the President's suspension of the writ, pursuant to congressional authorization, prevented the issuance of habeas corpus. The Court's categorical language about the law of war's inapplicability to citizens where the courts are open (with no exception mentioned for citizens who were prisoners of war) was contained in its discussion of the first point. See 4 Wall., at 121. The factors pertaining to whether Milligan could reasonably be considered a belligerent and prisoner of war, while mentioned earlier in the opinion, see id., at 118, were made relevant and brought to bear in the Court's later discussion, see id., at 131, of whether Milligan came within the statutory provision that effectively made an exception to Congress's authorized suspension of the writ for (as the Court described it) "all parties, not prisoners of war, resident in their respective jurisdictions, ... who were citizens of states in which the administration of the laws in the Federal tribunals was unimpaired," id., at 116. Milligan thus understood was in accord with the traditional law of habeas corpus I have described: Though treason often occurred in wartime, there was, absent provision for special treatment in a congressional suspension of the writ, no exception to the right to trial by jury for citizens who could be called "belligerents" or "prisoners of war."*fn4


[144] But even if Quirin gave a correct description of Milligan, or made an irrevocable revision of it, Quirin would still not justify denial of the writ here. In Quirin it was uncontested that the petitioners were members of enemy forces. They were "admitted enemy invaders," 317 U. S., at 47 (emphasis added), and it was "undisputed" that they had landed in the United States in service of German forces, id., at 20. The specific holding of the Court was only that, "upon the conceded facts," the petitioners were "plainly within [the] boundaries" of military jurisdiction, id., at 46 (emphasis added).*fn5 But where those jurisdictional facts are not conceded -- where the petitioner insists that he is not a belligerent -- Quirin left the pre-existing law in place: Absent suspension of the writ, a citizen held where the courts are open is entitled either to criminal trial or to a judicial decree requiring his release.*fn6


[145] V.


[146] It follows from what I have said that Hamdi is entitled to a habeas decree requiring his release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus. A suspension of the writ could, of course, lay down conditions for continued detention, similar to those that today's opinion prescribes under the Due Process Clause. Cf. Act of Mar. 3, 1863, 12 Stat. 755. But there is a world of difference between the people's representatives' determining the need for that suspension (and prescribing the conditions for it), and this Court's doing so.


[147] The plurality finds justification for Hamdi's imprisonment in the Authorization for Use of Military Force, 115 Stat. 224, which provides:


[148] "That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." §2(a).


[149] This is not remotely a congressional suspension of the writ, and no one claims that it is. Contrary to the plurality's view, I do not think this statute even authorizes detention of a citizen with the clarity necessary to satisfy the interpretive canon that statutes should be construed so as to avoid grave constitutional concerns, see Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988); with the clarity necessary to comport with cases such as Ex parte Endo, 323 U. S. 283, 300 (1944), and Duncan v. Kahanamoku, 327 U. S. 304, 314-316, 324 (1946); or with the clarity necessary to overcome the statutory prescription that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." 18 U. S. C. §4001(a).*fn7 But even if it did, I would not permit it to overcome Hamdi's entitlement to habeas corpus relief. The Suspension Clause of the Constitution, which carefully circumscribes the conditions under which the writ can be withheld, would be a sham if it could be evaded by congressional prescription of requirements other than the common-law requirement of committal for criminal prosecution that render the writ, though available, unavailing. If the Suspension Clause does not guarantee the citizen that he will either be tried or released, unless the conditions for suspending the writ exist and the grave action of suspending the writ has been taken; if it merely guarantees the citizen that he will not be detained unless Congress by ordinary legislation says he can be detained; it guarantees him very little indeed.


[150] It should not be thought, however, that the plurality's evisceration of the Suspension Clause augments, principally, the power of Congress. As usual, the major effect of its constitutional improvisation is to increase the power of the Court. Having found a congressional authorization for detention of citizens where none clearly exists; and having discarded the categorical procedural protection of the Suspension Clause; the plurality then proceeds, under the guise of the Due Process Clause, to prescribe what procedural protections it thinks appropriate. It "weigh[s] the private interest ... against the Government's asserted interest," ante, at 22 (internal quotation marks omitted), and -- just as though writing a new Constitution -- comes up with an unheard-of system in which the citizen rather than the Government bears the burden of proof, testimony is by hearsay rather than live witnesses, and the presiding officer may well be a "neutral" military officer rather than judge and jury. See ante, at 26-27. It claims authority to engage in this sort of "judicious balancing" from Mathews v. Eldridge, 424 U. S. 319 (1976), a case involving ... the withdrawal of disability benefits! Whatever the merits of this technique when newly recognized property rights are at issue (and even there they are questionable), it has no place where the Constitution and the common law already supply an answer.


[151] Having distorted the Suspension Clause, the plurality finishes up by transmogrifying the Great Writ -- disposing of the present habeas petition by remanding for the District Court to "engag[e] in a factfinding process that is both prudent and incremental," ante, at 32. "In the absence of [the Executive's prior provision of procedures that satisfy due process], ... a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved." Ante, at 31-32. This judicial remediation of executive default is unheard of. The role of habeas corpus is to determine the legality of executive detention, not to supply the omitted process necessary to make it legal. See Preiser v. Rodriguez, 411 U. S. 475, 484 (1973) ("[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and ... the traditional function of the writ is to secure release from illegal custody"); 1 Blackstone 132-133. It is not the habeas court's function to make illegal detention legal by supplying a process that the Government could have provided, but chose not to. If Hamdi is being imprisoned in violation of the Constitution (because without due process of law), then his habeas petition should be granted; the Executive may then hand him over to the criminal authorities, whose detention for the purpose of prosecution will be lawful, or else must release him.


[152] There is a certain harmony of approach in the plurality's making up for Congress's failure to invoke the Suspension Clause and its making up for the Executive's failure to apply what it says are needed procedures -- an approach that reflects what might be called a Mr. Fix-it Mentality. The plurality seems to view it as its mission to Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are concerned, of the other two branches' actions and omissions. Has the Legislature failed to suspend the writ in the current dire emergency? Well, we will remedy that failure by prescribing the reasonable conditions that a suspension should have included. And has the Executive failed to live up to those reasonable conditions? Well, we will ourselves make that failure good, so that this dangerous fellow (if he is dangerous) need not be set free. The problem with this approach is not only that it steps out of the courts' modest and limited role in a democratic society; but that by repeatedly doing what it thinks the political branches ought to do it encourages their lassitude and saps the vitality of government by the people.


[153] VI.


[154] Several limitations give my views in this matter a relatively narrow compass. They apply only to citizens, accused of being enemy combatants, who are detained within the territorial jurisdiction of a federal court. This is not likely to be a numerous group; currently we know of only two, Hamdi and Jose Padilla. Where the citizen is captured outside and held outside the United States, the constitutional requirements may be different. Cf. Johnson v. Eisentrager, 339 U. S. 763, 769-771 (1950); Reid v. Covert, 354 U. S. 1, 74-75 (1957) (Harlan, J., concurring in result); Rasul v. Bush, ante, at 15-17 (Scalia, J., dissenting). Moreover, even within the United States, the accused citizen-enemy combatant may lawfully be detained once prosecution is in progress or in contemplation. See, e.g., County of Riverside v. McLaughlin, 500 U. S. 44 (1991) (brief detention pending judicial determination after warrantless arrest); United States v. Salerno, 481 U. S. 739 (1987) (pretrial detention under the Bail Reform Act). The Government has been notably successful in securing conviction, and hence long-term custody or execution, of those who have waged war against the state.


[155] I frankly do not know whether these tools are sufficient to meet the Government's security needs, including the need to obtain intelligence through interrogation. It is far beyond my competence, or the Court's competence, to determine that. But it is not beyond Congress's. If the situation demands it, the Executive can ask Congress to authorize suspension of the writ -- which can be made subject to whatever conditions Congress deems appropriate, including even the procedural novelties invented by the plurality today. To be sure, suspension is limited by the Constitution to cases of rebellion or invasion. But whether the attacks of September 11, 2001, constitute an "invasion," and whether those attacks still justify suspension several years later, are questions for Congress rather than this Court. See 3 Story §1336, at 208-209.*fn8 If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this Court.


[156] The Founders well understood the difficult tradeoff between safety and freedom. "Safety from external danger," Hamilton declared,


[157] "is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free." The Federalist No. 8, p. 33.


[158] The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it.


[159] Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis -- that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent.


[160] Thomas, J., dissenting


[161] Justice Thomas, dissenting.


[162] The Executive Branch, acting pursuant to the powers vested in the President by the Constitution and with explicit congressional approval, has determined that Yaser Hamdi is an enemy combatant and should be detained. This detention falls squarely within the Federal Government's war powers, and we lack the expertise and capacity to second-guess that decision. As such, petitioners' habeas challenge should fail, and there is no reason to remand the case. The plurality reaches a contrary conclusion by failing adequately to consider basic principles of the constitutional structure as it relates to national security and foreign affairs and by using the balancing scheme of Mathews v. Eldridge, 424 U. S. 319 (1976). I do not think that the Federal Government's war powers can be balanced away by this Court. Arguably, Congress could provide for additional procedural protections, but until it does, we have no right to insist upon them. But even if I were to agree with the general approach the plurality takes, I could not accept the particulars. The plurality utterly fails to account for the Government's compelling interests and for our own institutional inability to weigh competing concerns correctly. I respectfully dissent.


[163] I.


[164] "It is `obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Haig v. Agee, 453 U. S. 280, 307 (1981) (quoting Aptheker v. Secretary of State, 378 U. S. 500, 509 (1964)). The national security, after all, is the primary responsibility and purpose of the Federal Government. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 662 (1952) (Clark, J., concurring in judgment); The Federalist No. 23, pp. 146-147 (J. Cooke ed. 1961) (A. Hamilton) ("The principle purposes to be answered by Union are these -- The common defence of the members -- the preservation of the public peace as well against internal convulsions as external attacks"). But because the Founders understood that they could not foresee the myriad potential threats to national security that might later arise, they chose to create a Federal Government that necessarily possesses sufficient power to handle any threat to the security of the Nation. The power to protect the Nation


[165] "ought to exist without limitation ... [b]ecause it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent & variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed." Id., at 147.


[166] See also The Federalist Nos. 34 and 41.


[167] The Founders intended that the President have primary responsibility --along with the necessary power -- to protect the national security and to conduct the Nation's foreign relations. They did so principally because the structural advantages of a unitary Executive are essential in these domains. "Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks." The Federalist No. 70, p. 471 (A. Hamilton). The principle "ingredien[t]" for "energy in the executive" is "unity." Id., at 472. This is because "[d]ecision, activity, secrecy, and dispatch will generally characterise the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number." Ibid.


[168] These structural advantages are most important in the national-security and foreign-affairs contexts. "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." The Federalist No. 74, p. 500 (A. Hamilton). Also for these reasons, John Marshall explained that "[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." 10 Annals of Cong. 613 (1800); see id., at 613-614. To this end, the Constitution vests in the President "[t]he executive Power," Art. II, §1, provides that he "shall be Commander in Chief of the" armed forces, §2, and places in him the power to recognize foreign governments, §3.


[169] This Court has long recognized these features and has accordingly held that the President has constitutional authority to protect the national security and that this authority carries with it broad discretion.


[170] "If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority... . Whether the President in fulfilling his duties, as Commander in-chief, in suppressing an insurrection, has met with such armed hostile resistance ... is a question to be decided by him." Prize Cases, 2 Black 635, 668, 670 (1863).


[171] The Court has acknowledged that the President has the authority to "employ [the Nation's Armed Forces] in the manner he may deem most effectual to harass and conquer and subdue the enemy." Fleming v. Page, 9 How. 603, 615 (1850). With respect to foreign affairs as well, the Court has recognized the President's independent authority and need to be free from interference. See, e.g., United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 320 (1936) (explaining that the President "has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results"); Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 111 (1948).


[172] Congress, to be sure, has a substantial and essential role in both foreign affairs and national security. But it is crucial to recognize that judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive. I cannot improve on Justice Jackson's words, speaking for the Court:


[173] "The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry." Ibid.


[174] Several points, made forcefully by Justice Jackson, are worth emphasizing. First, with respect to certain decisions relating to national security and foreign affairs, the courts simply lack the relevant information and expertise to second-guess determinations made by the President based on information properly withheld. Second, even if the courts could compel the Executive to produce the necessary information, such decisions are simply not amenable to judicial determination because "[t]hey are delicate, complex, and involve large elements of prophecy." Ibid. Third, the Court in Chicago & Southern Air Lines and elsewhere has correctly recognized the primacy of the political branches in the foreign-affairs and national-security contexts.


[175] For these institutional reasons and because "Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take or every possible situation in which he might act," it should come as no surprise that "[s]uch failure of Congress ... does not, `especially ... in the areas of foreign policy and national security,' imply `congressional disapproval' of action taken by the Executive." Dames & Moore v. Regan, 453 U. S. 654, 678 (1981) (quoting Agee, 453 U. S., at 291). Rather, in these domains, the fact that Congress has provided the President with broad authorities does not imply -- and the Judicial Branch should not infer -- that Congress intended to deprive him of particular powers not specifically enumerated. See Dames & Moore, 453 U. S., at 678. As far as the courts are concerned, "the enactment of legislation closely related to the question of the President's authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to `invite' `measures on independent presidential responsibility.' " Ibid. (quoting Youngstown, 343 U. S., at 637 (Jackson, J., concurring)).


[176] Finally, and again for the same reasons, where "the President acts pursuant to an express or implied authorization from Congress, he exercises not only his powers but also those delegated by Congress[, and i]n such a case the executive action `would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.' " Dames & Moore, supra, at 668 (quoting Youngstown, supra, at 637 (Jackson, J., concurring)). That is why the Court has explained, in a case analogous to this one, that "the detention[,] ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger[, is] not to be set aside by the courts without the clear conviction that [it is] in conflict with the Constitution or laws of Congress constitutionally enacted." Ex parte Quirin, 317 U. S. 1, 25 (1942). See also Ex parte Milligan, 4 Wall. 2, 133 (1866) (Chase, C. J., concurring in judgment) (stating that a sentence imposed by a military commission "must not be set aside except upon the clearest conviction that it cannot be reconciled with the Constitution and the constitutional legislation of Congress"). This deference extends to the President's determination of all the factual predicates necessary to conclude that a given action is appropriate. See Quirin, supra, at 25 ("We are not here concerned with any question of the guilt or innocence of petitioners"). See also Hirabayashi v. United States, 320 U. S. 81, 93 (1943); Prize Cases, 2 Black, at 670; Martin v. Mott, 12 Wheat. 19, 29-30 (1827).


[177] To be sure, the Court has at times held, in specific circumstances, that the military acted beyond its warmaking authority. But these cases are distinguishable in important ways. In Ex parte Endo, 323 U. S. 283 (1944), the Court held unlawful the detention of an admittedly law-abiding and loyal American of Japanese ancestry. It did so because the Government's asserted reason for the detention had nothing to do with the congressional and executive authorities upon which the Government relied. Those authorities permitted detention for the purpose of preventing espionage and sabotage and thus could not be pressed into service for detaining a loyal citizen. See id., at 301-302. Further, the Court "stress[ed] the silence ... of the [relevant] Act and the Executive Orders." Id., at 301 (emphasis added); see also id., at 301-304. The Court sensibly held that the Government could not detain a loyal citizen pursuant to executive and congressional authorities that could not conceivably be implicated given the Government's factual allegations. And in Youngstown, Justice Jackson emphasized that "Congress ha[d] not left seizure of private property an open field but ha[d] covered it by three statutory policies inconsistent with th[e] seizure." 343 U. S., at 639 (concurring opinion). See also Milligan, supra, at 134 (Chase, C. J., concurring in judgment) (noting that the Government failed to comply with statute directly on point).


[178] I acknowledge that the question whether Hamdi's executive detention is lawful is a question properly resolved by the Judicial Branch, though the question comes to the Court with the strongest presumptions in favor of the Government. The plurality agrees that Hamdi's detention is lawful if he is an enemy combatant. But the question whether Hamdi is actually an enemy combatant is "of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry." Chicago & Southern Air Lines, 333 U. S., at 111. That is, although it is appropriate for the Court to determine the judicial question whether the President has the asserted authority, see, e.g., Ex parte Endo, supra, we lack the information and expertise to question whether Hamdi is actually an enemy combatant, a question the resolution of which is committed to other branches.*fn9 In the words of then-Judge Scalia:


[179] "In Old Testament days, when judges ruled the people of Israel and led them into battle, a court professing the belief that it could order a halt to a military operation in foreign lands might not have been a startling phenomenon. But in modern times, and in a country where such governmental functions have been committed to elected delegates of the people, such an assertion of jurisdiction is extraordinary. The [C]court's decision today reflects a willingness to extend judicial power into areas where we do not know, and have no way of finding out, what serious harm we may be doing." Ramirez de Arellano v. Weinberger, 745 F. 2d 1500, 1550-1551 (CADC 1984) (en banc) (dissenting opinion) (footnote omitted).


[180] See also id., at 1551, n. 1 (noting that "[e]ven the ancient Israelites eventually realized the shortcomings of judicial commanders-in-chief"). The decision whether someone is an enemy combatant is, no doubt, "delicate, complex, and involv[es] large elements of prophecy," Chicago & Southern Air Lines, supra, at 111, which, incidentally might in part explain why "the Government has never provided any court with the full criteria that it uses in classifying individuals as such," ante, at 8. See also infra, at 18-20 (discussing other military decisions).


[181] II.


[182] "The war power of the national government is `the power to wage war successfully.' " Lichter v. United States, 334 U. S. 742, 767, n. 9 (1948) (quoting Hughes, War Powers Under the Constitution, 42 A. B. A. Rep. 232, 238). It follows that this power "is not limited to victories in the field, but carries with it the inherent power to guard against the immediate renewal of the conflict," In re Yamashita, 327 U. S. 1, 12 (1946); see also Stewart v. Kahn, 11 Wall. 493, 507 (1871), and quite obviously includes the ability to detain those (even United States citizens) who fight against our troops or those of our allies, see, e.g., Quirin, 317 U. S., at 28-29, 30-31; id., at 37-39; Duncan v. Kahanamoku, 327 U. S. 304, 313-314 (1946); W. Winthrop, Military Law and Precedents 788 (2d ed. 1920); W. Whiting, War Powers Under the Constitution of the United States 167 (43d ed. 1871); id., at 44-46 (noting that Civil War "rebels" may be treated as foreign belligerents); see also ante, at 10-12.


[183] Although the President very well may have inherent authority to detain those arrayed against our troops, I agree with the plurality that we need not decide that question because Congress has authorized the President to do so. See ante, at 9. The Authorization for Use of Military Force (AUMF), 115 Stat. 224, authorizes 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" of September 11, 2001. Indeed, the Court has previously concluded that language materially identical to the AUMF authorizes the Executive to "make the ordinary use of the soldiers ... ; that he may kill persons who resist and, of course, that he may use the milder measure of seizing [and detaining] the bodies of those whom he considers to stand in the way of restoring peace." Moyer v. Peabody, 212 U. S. 78, 84 (1909).


[184] The plurality, however, qualifies its recognition of the President's authority to detain enemy combatants in the war on terrorism in ways that are at odds with our precedent. Thus, the plurality relies primarily on Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3406, T. I. A. S. No. 3364, for the proposition that "[i]t is a clearly established principle of the law of war that detention may last no longer than active hostilities." Ante, at 12-13. It then appears to limit the President's authority to detain by requiring that the record establis[h] that United States troops are still involved in active combat in Afghanistan because, in that case, detention would be "part of the exercise of `necessary and appropriate force.' " Ante, at 14. But I do not believe that we may diminish the Federal Government's war powers by reference to a treaty and certainly not to a treaty that does not apply. See n. 6, infra. Further, we are bound by the political branches' determination that the United States is at war. See, e.g., Ludecke v. Watkins, 335 U. S. 160, 167-170 (1948); Prize Cases, 2 Black, at 670; Mott, 12 Wheat., at 30. And, in any case, the power to detain does not end with the cessation of formal hostilities. See, e.g., Madsen v. Kinsella, 343 U. S. 341, 360 (1952); Johnson v. Eisentrager, 339 U. S. 763, 786 (1950); cf. Moyer, supra, at 85.


[185] Accordingly, the President's action here is "supported by the strongest of presumptions and the widest latitude of judicial interpretation." Dames & Moore, 453 U. S., at 668 (internal quotation marks omitted).*fn10 The question becomes whether the Federal Government (rather than the President acting alone) has power to detain Hamdi as an enemy combatant. More precisely, we must determine whether the Government may detain Hamdi given the procedures that were used.


[186] III.


[187] I agree with the plurality that the Federal Government has power to detain those that the Executive Branch determines to be enemy combatants. See ante, at 10. But I do not think that the plurality has adequately explained the breadth of the President's authority to detain enemy combatants, an authority that includes making virtually conclusive factual findings. In my view, the structural considerations discussed above, as recognized in our precedent, demonstrate that we lack the capacity and responsibility to second-guess this determination.


[188] This makes complete sense once the process that is due Hamdi is made clear. As an initial matter, it is possible that the Due Process Clause requires only "that our Government must proceed according to the `law of the land' -- that is, according to written constitutional and statutory provisions." In re Winship, 397 U. S. 358, 382 (1970) (Black, J., dissenting). I need not go this far today because the Court has already explained the nature of due process in this context.


[189] In a case strikingly similar to this one, the Court addressed a Governor's authority to detain for an extended period a person the executive believed to be responsible, in part, for a local insurrection. Justice Holmes wrote for a unanimous Court:


[190] "When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process. This was admitted with regard to killing men in the actual clash of arms, and we think it obvious, although it was disputed, that the same is true of temporary detention to prevent apprehended harm." Moyer, 212 U. S., at 85 (citation omitted; emphasis added).


[191] The Court answered Moyer's claim that he had been denied due process by emphasizing that


[192] "it is familiar that what is due process of law depends on circumstances. It varies with the subject-matter and the necessities of the situation. Thus summary proceedings suffice for taxes, and executive decisions for exclusion from the country... . Such arrests are not necessarily for punishment, but are by way of precaution to prevent the exercise of hostile power." Id., at 84-85 (citations omitted).


[193] In this context, due process requires nothing more than a good-faith executive determination.*fn11 To be clear: The Court has held that an executive, acting pursuant to statutory and constitutional authority may, consistent with the Due Process Clause, unilaterally decide to detain an individual if the executive deems this necessary for the public safety even if he is mistaken.


[194] Moyer is not an exceptional case. In Luther v. Borden, 7 How. 1 (1849), the Court discussed the President's constitutional and statutory authority, in response to a request from a state legislature or executive, " `to call forth such number of the militia of any other State or States, as may be applied for, as he may judge sufficient to suppress [an] insurrection.' " Id., at 43 (quoting Act of Feb. 28, 1795). The Court explained that courts could not review the President's decision to recognize one of the competing legislatures or executives. See 7 How., at 43. If a court could second-guess this determination, "it would become the duty of the court (provided it came to the conclusion that the President had decided incorrectly) to discharge those who were arrested or detained by the troops in the service of the United States." Ibid. "If the judicial power extends so far," the Court concluded, "the guarantee contained in the Constitution of the United States [referring to Art. IV, §4] is a guarantee of anarchy, and not of order." Ibid. The Court clearly contemplated that the President had authority to detain as he deemed necessary, and such detentions evidently comported with the Due Process Clause as long as the President correctly decided to call forth the militia, a question the Court said it could not review.


[195] The Court also addressed the natural concern that placing "this power in the President is dangerous to liberty, and may be abused." Id., at 44. The Court noted that "[a]ll power may be abused if placed in unworthy hands," and explained that "it would be difficult ... to point out any other hands in which this power would be more safe, and at the same time equally effectual." Ibid. Putting that aside, the Court emphasized that this power "is conferred upon him by the Constitution and laws of the United States, and must therefore be respected and enforced in its judicial tribunals." Ibid. Finally, the Court explained that if the President abused this power "it would be in the power of Congress to apply the proper remedy. But the courts must administer the law as they find it." Id., at 45.


[196] Almost 140 years later, in United States v. Salerno, 481 U. S. 739, 748 (1987), the Court explained that the Due Process Clause "lays down [no] categorical imperative." The Court continued:


[197] "We have repeatedly held that the Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest. For example, in times of war or insurrection, when society's interest is at its peak, the Government may detain individuals whom the Government believes to be dangerous." Ibid.


[198] The Court cited Ludecke v. Watkins, 335 U. S. 160 (1948), for this latter proposition even though Ludecke actually involved detention of enemy aliens. See also Selective Draft Law Cases, 245 U. S. 366 (1918); Jacobson v. Massachusetts, 197 U. S. 11, 27-29 (1905) (upholding legislated mass vaccinations and approving of forced quarantines of Americans even if they show no signs of illness); cf. Kansas v. Hendricks, 521 U. S. 346 (1997); Juragua Iron Co. v. United States, 212 U. S. 297 (1909).


[199] The Government's asserted authority to detain an individual that the President has determined to be an enemy combatant, at least while hostilities continue, comports with the Due Process Clause. As these cases also show, the Executive's decision that a detention is necessary to protect the public need not and should not be subjected to judicial second-guessing. Indeed, at least in the context of enemy-combatant determinations, this would defeat the unity, secrecy, and dispatch that the Founders believed to be so important to the warmaking function. See Part I, supra.


[200] I therefore cannot agree with Justice Scalia's conclusion that the Government must choose between using standard criminal processes and suspending the writ. See ante, at 26 (dissenting opinion). Justice Scalia relies heavily upon Ex parte Milligan, 4 Wall. 2 (1866), see ante, at 14-16, 17-20, and three cases decided by New York state courts in the wake of the War of 1812, see ante, at 13-14. I admit that Milligan supports his position. But because the Executive Branch there, unlike here, did not follow a specific statutory mechanism provided by Congress, the Court did not need to reach the broader question of Congress' power, and its discussion on this point was arguably dicta, see 4 Wall., at 122, as four Justices believed, see id., at 132, 134-136 (Chase, C. J., joined by Wayne, Swayne, and Miller, JJ., concurring in judgment).


[201] More importantly, the Court referred frequently and pervasively to the criminal nature of the proceedings instituted against Milligan. In fact, this feature serves to distinguish the state cases as well. See In re Stacy, 10 Johns. *328, *334 (N. Y. 1813) ("A military commander is here assuming criminal jurisdiction over a private citizen" (emphasis added)); Smith v. Shaw, 12 Johns. *257, *265 (N. Y. 1815) (Shaw "might be amenable to the civil authority for treason; but could not be punished, under martial law, as a spy" (emphasis added)); M'Connell v. Hampton, 12 Johns. *234 (N. Y. 1815) (same for treason).


[202] Although I do acknowledge that the reasoning of these cases might apply beyond criminal punishment, the punishment-nonpunishment distinction harmonizes all of the precedent. And, subsequent cases have at least implicitly distinguished Milligan in just this way. See, e.g., Moyer, 212 U. S., at 84-85 ("Such arrests are not necessarily for punishment, but are by way of precaution"). Finally, Quirin overruled Milligan to the extent that those cases are inconsistent. See Quirin, 317 U. S., at 45 (limiting Milligan to its facts). Because the Government does not detain Hamdi in order to punish him, as the plurality acknowledges, see ante, at 10-11, Milligan and the New York cases do not control.


[203] Justice Scalia also finds support in a letter Thomas Jefferson wrote to James Madison. See ante, at 12. I agree that this provides some evidence for his position. But I think this plainly insufficient to rebut the authorities upon which I have relied. In any event, I do not believe that Justice Scalia's evidence leads to the necessary "clear conviction that [the detention is] in conflict with the Constitution or laws of Congress constitutionally enacted," Quirin, supra, at 25, to justify nullifying the President's wartime action.


[204] Finally, Justice Scalia's position raises an additional concern. Justice Scalia apparently does not disagree that the Federal Government has all power necessary to protect the Nation. If criminal processes do not suffice, however, Justice Scalia would require Congress to suspend the writ. See ante, at 26. But the fact that the writ may not be suspended "unless when in Cases of Rebellion or Invasion the public Safety may require it," Art. I, §9, cl. 2, poses two related problems. First, this condition might not obtain here or during many other emergencies during which this detention authority might be necessary. Congress would then have to choose between acting unconstitutionally*fn12 and depriving the President of the tools he needs to protect the Nation. Second, I do not see how suspension would make constitutional otherwise unconstitutional detentions ordered by the President. It simply removes a remedy. Justice Scalia's position might therefore require one or both of the political branches to act unconstitutionally in order to protect the Nation. But the power to protect the Nation must be the power to do so lawfully.


[205] Accordingly, I conclude that the Government's detention of Hamdi as an enemy combatant does not violate the Constitution. By detaining Hamdi, the President, in the prosecution of a war and authorized by Congress, has acted well within his authority. Hamdi thereby received all the process to which he was due under the circumstances. I therefore believe that this is no occasion to balance the competing interests, as the plurality unconvincingly attempts to do.


[206] IV.


[207] Although I do not agree with the plurality that the balancing approach of Mathews v. Eldridge, 424 U. S. 319 (1976), is the appropriate analytical tool with which to analyze this case,*fn13 I cannot help but explain that the plurality misapplies its chosen framework, one that if applied correctly would probably lead to the result I have reached. The plurality devotes two paragraphs to its discussion of the Government's interest, though much of those two paragraphs explain why the Government's concerns are misplaced. See ante, at 24-25. But: "It is `obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Agee, 453 U. S., at 307 (quoting Aptheker, 378 U. S., at 509). In Moyer, the Court recognized the paramount importance of the Governor's interest in the tranquility of a Colorado town. At issue here is the far more significant interest of the security of the Nation. The Government seeks to further that interest by detaining an enemy soldier not only to prevent him from rejoining the ongoing fight. Rather, as the Government explains, detention can serve to gather critical intelligence regarding the intentions and capabilities of our adversaries, a function that the Government avers has become all the more important in the war on terrorism. See Brief for Respondents 15; App. 347-351.


[208] Additional process, the Government explains, will destroy the intelligence gathering function. Brief for Respondents 43-45. It also does seem quite likely that, under the process envisioned by the plurality, various military officials will have to take time to litigate this matter. And though the plurality does not say so, a meaningful ability to challenge the Government's factual allegations will probably require the Government to divulge highly classified information to the purported enemy combatant, who might then upon release return to the fight armed with our most closely held secrets.


[209] The plurality manages to avoid these problems by discounting or entirely ignoring them. After spending a few sentences putatively describing the Government's interests, the plurality simply assures the Government that the alleged burdens "are properly taken into account in our due process analysis." Ante, at 25. The plurality also announces that "the risk of erroneous deprivation of a detainee's liberty interest is unacceptably high under the Government's proposed rule." Ante, at 26 (internal quotation marks omitted). But there is no particular reason to believe that the federal courts have the relevant information and expertise to make this judgment. And for the reasons discussed in Part I, supra, there is every reason to think that courts cannot and should not make these decisions.


[210] The plurality next opines that "[w]e think it unlikely that this basic process will have the dire impact on the central functions of warmaking that the Government forecasts." Ante, at 27. Apparently by limiting hearings "to the alleged combatant's acts," such hearings "meddl[e] little, if at all, in the strategy or conduct of war." Ante, at 28. Of course, the meaning of the combatant's acts may become clear only after quite invasive and extensive inquiry. And again, the federal courts are simply not situated to make these judgments.


[211] Ultimately, the plurality's dismissive treatment of the Government's asserted interests arises from its apparent belief that enemy-combatant determinations are not part of "the actual prosecution of a war," ibid., or one of the "central functions of warmaking," ante, at 27. This seems wrong: Taking and holding enemy combatants is a quintessential aspect of the prosecution of war. See, e.g., ante, at 10-11; Quirin, 317 U. S., at 28. Moreover, this highlights serious difficulties in applying the plurality's balancing approach here. First, in the war context, we know neither the strength of the Government's interests nor the costs of imposing additional process.


[212] Second, it is at least difficult to explain why the result should be different for other military operations that the plurality would ostensibly recognize as "central functions of warmaking." As the plurality recounts:


[213] "Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified. It is equally fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner." Ante, at 26 (internal quotation marks omitted).


[214] See also ibid. ("notice" of the Government's factual assertions and "a fair opportunity to rebut [those] assertions before a neutral decisionmaker" are essential elements of due process). Because a decision to bomb a particular target might extinguish life interests, the plurality's analysis seems to require notice to potential targets. To take one more example, in November 2002, a Central Intelligence Agency (CIA) Predator drone fired a Hellfire missile at a vehicle in Yemen carrying an al Qaeda leader, a citizen of the United States, and four others. See Priest, CIA Killed U. S. Citizen In Yemen Missile Strike, Washington Post, Nov. 8, 2002, p. A1. It is not clear whether the CIA knew that an American was in the vehicle. But the plurality's due process would seem to require notice and opportunity to respond here as well. Cf. Tennessee v. Garner, 471 U. S. 1 (1985). I offer these examples not because I think the plurality would demand additional process in these situations but because it clearly would not. The result here should be the same.


[215] I realize that many military operations are, in some sense, necessary. But many, if not most, are merely expedient, and I see no principled distinction between the military operation the plurality condemns today (the holding of an enemy combatant based on the process given Hamdi) from a variety of other military operations. In truth, I doubt that there is any sensible, bright-line distinction. It could be argued that bombings and missile strikes are an inherent part of war, and as long as our forces do not violate the laws of war, it is of no constitutional moment that civilians might be killed. But this does not serve to distinguish this case because it is also consistent with the laws of war to detain enemy combatants exactly as the Government has detained Hamdi.*fn14 This, in fact, bolsters my argument in Part III to the extent that the laws of war show that the power to detain is part of a sovereign's war powers.


[216] Undeniably, Hamdi has been deprived of a serious interest, one actually protected by the Due Process Clause. Against this, however, is the Government's overriding interest in protecting the Nation. If a deprivation of liberty can be justified by the need to protect a town, the protection of the Nation, a fortiori, justifies it.


[217] I acknowledge that under the plurality's approach, it might, at times, be appropriate to give detainees access to counsel and notice of the factual basis for the Government's determination. See ante, at 25-27. But properly accounting for the Government's interests also requires concluding that access to counsel and to the factual basis would not always be warranted. Though common sense suffices, the Government thoroughly explains that counsel would often destroy the intelligence gathering function. See Brief for Respondents 42-43. See also App. 347-351 (affidavit of Col. D. Woolfolk). Equally obvious is the Government's interest in not fighting the war in its own courts, see, e.g., Johnson v. Eisentrager, 339 U. S., at 779, and protecting classified information, see, e.g., Department of Navy v. Egan, 484 U. S. 518, 527 (1988) (President's "authority to classify and control access to information bearing on national security and to determine" who gets access "flows primarily from [the Commander-in-Chief Clause] and exists quite apart from any explicit congressional grant"); Agee, 453 U. S., at 307 (upholding revocation of former CIA employee's passport in large part by reference to the Government's need "to protect the secrecy of [its] foreign intelligence operations").*fn15


[218] For these reasons, I would affirm the judgment of the Court of Appeals.


[219] Opinion of Souter, J.


[220] Justice Souter, with whom Justice Ginsburg joins, concurring in part, dissenting in part, and concurring in the judgment.


[221] According to Yaser Hamdi's petition for writ of habeas corpus, brought on his behalf by his father, the Government of the United States is detaining him, an American citizen on American soil, with the explanation that he was seized on the field of battle in Afghanistan, having been on the enemy side. It is undisputed that the Government has not charged him with espionage, treason, or any other crime under domestic law. It is likewise undisputed that for one year and nine months, on the basis of an Executive designation of Hamdi as an "enemy combatant," the Government denied him the right to send or receive any communication beyond the prison where he was held and, in particular, denied him access to counsel to represent him.*fn16 The Government asserts a right to hold Hamdi under these conditions indefinitely, that is, until the Government determines that the United States is no longer threatened by the terrorism exemplified in the attacks of September 11, 2001.


[222] In these proceedings on Hamdi's petition, he seeks to challenge the facts claimed by the Government as the basis for holding him as an enemy combatant. And in this Court he presses the distinct argument that the Government's claim, even if true, would not implicate any authority for holding him that would satisfy 18 U. S. C. §4001(a) (Non-Detention Act), which bars imprisonment or detention of a citizen "except pursuant to an Act of Congress."


[223] The Government responds that Hamdi's incommunicado imprisonment as an enemy combatant seized on the field of battle falls within the President's power as Commander in Chief under the laws and usages of war, and is in any event authorized by two statutes. Accordingly, the Government contends that Hamdi has no basis for any challenge by petition for habeas except to his own status as an enemy combatant; and even that challenge may go no further than to enquire whether "some evidence" supports Hamdi's designation, see Brief for Respondents 34-36; if there is "some evidence," Hamdi should remain locked up at the discretion of the Executive. At the argument of this case, in fact, the Government went further and suggested that as long as a prisoner could challenge his enemy combatant designation when responding to interrogation during incommunicado detention he was accorded sufficient process to support his designation as an enemy combatant. See Tr. of Oral Arg. 40; id., at 42 ("[H]e has an opportunity to explain it in his own words" "[d]uring interrogation"). Since on either view judicial enquiry so limited would be virtually worthless as a way to contest detention, the Government's concession of jurisdiction to hear Hamdi's habeas claim is more theoretical than practical, leaving the assertion of Executive authority close to unconditional.


[224] The plurality rejects any such limit on the exercise of habeas jurisdiction and so far I agree with its opinion. The plurality does, however, accept the Government's position that if Hamdi's designation as an enemy combatant is correct, his detention (at least as to some period) is authorized by an Act of Congress as required by §4001(a), that is, by the Authorization for Use of Military Force, 115 Stat. 224 (hereinafter Force Resolution). Ante, at 9-14. Here, I disagree and respectfully dissent. The Government has failed to demonstrate that the Force Resolution authorizes the detention complained of here even on the facts the Government claims. If the Government raises nothing further than the record now shows, the Non-Detention Act entitles Hamdi to be released.


[225] I.


[226] The Government's first response to Hamdi's claim that holding him violates §4001(a), prohibiting detention of citizens "except pursuant to an Act of Congress," is that the statute does not even apply to military wartime detentions, being beyond the sphere of domestic criminal law. Next, the Government says that even if that statute does apply, two Acts of Congress provide the authority §4001(a) demands: a general authorization to the Department of Defense to pay for detaining "prisoners of war" and "similar" persons, 10 U. S. C. §956(5), and the Force Resolution, passed after the attacks of 2001. At the same time, the Government argues that in detaining Hamdi in the manner described, the President is in any event acting as Commander in Chief under Article II of the Constitution, which brings with it the right to invoke authority under the accepted customary rules for waging war. On the record in front of us, the Government has not made out a case on any theory.


[227] II.


[228] The threshold issue is how broadly or narrowly to read the Non-Detention Act, the tone of which is severe: "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Should the severity of the Act be relieved when the Government's stated factual justification for incommunicado detention is a war on terrorism, so that the Government may be said to act "pursuant" to congressional terms that fall short of explicit authority to imprison individuals? With one possible though important qualification, see infra, at 10-11, the answer has to be no. For a number of reasons, the prohibition within §4001(a) has to be read broadly to accord the statute a long reach and to impose a burden of justification on the Government.


[229] First, the circumstances in which the Act was adopted point the way to this interpretation. The provision superseded a cold-war statute, the Emergency Detention Act of 1950 (formerly 50 U. S. C. §811 et seq. (1970 ed.)), which had authorized the Attorney General, in time of emergency, to detain anyone reasonably thought likely to engage in espionage or sabotage. That statute was repealed in 1971 out of fear that it could authorize a repetition of the World War II internment of citizens of Japanese ancestry; Congress meant to preclude another episode like the one described in Korematsu v. United States, 323 U. S. 214 (1944). See H. R. Rep. No. 92-116, pp. 2, 4-5 (1971). While Congress might simply have struck the 1950 statute, in considering the repealer the point was made that the existing statute provided some express procedural protection, without which the Executive would seem to be subject to no statutory limits protecting individual liberty. See id., at 5 (mere repeal "might leave citizens subject to arbitrary executive action, with no clear demarcation of the limits of executive authority"); 117 Cong. Rec. 31544 (1971) (Emergency Detention Act "remains as the only existing barrier against the future exercise of executive power which resulted in" the Japanese internment); cf. id., at 31548 (in the absence of further procedural provisions, even §4001(a) "will virtually leave us stripped naked against the great power ... which the President has"). It was in these circumstances that a proposed limit on Executive action was expanded to the inclusive scope of §4001(a) as enacted.


[230] The fact that Congress intended to guard against a repetition of the World War II internments when it repealed the 1950 statute and gave us §4001(a) provides a powerful reason to think that §4001(a) was meant to require clear congressional authorization before any citizen can be placed in a cell. It is not merely that the legislative history shows that §4001(a) was thought necessary in anticipation of times just like the present, in which the safety of the country is threatened. To appreciate what is most significant, one must only recall that the internments of the 1940's were accomplished by Executive action. Although an Act of Congress ratified and confirmed an Executive order authorizing the military to exclude individuals from defined areas and to accommodate those it might remove, see Ex parte Endo, 323 U. S. 283, 285-288 (1944), the statute said nothing whatever about the detention of those who might be removed, id., at 300-301; internment camps were creatures of the Executive, and confinement in them rested on assertion of Executive authority, see id., at 287-293. When, therefore, Congress repealed the 1950 Act and adopted §4001(a) for the purpose of avoiding another Korematsu, it intended to preclude reliance on vague congressional authority (for example, providing "accommodations" for those subject to removal) as authority for detention or imprisonment at the discretion of the Executive (maintaining detention camps of American citizens, for example). In requiring that any Executive detention be "pursuant to an Act of Congress," then, Congress necessarily meant to require a congressional enactment that clearly authorized detention or imprisonment.


[231] Second, when Congress passed §4001(a) it was acting in light of an interpretive regime that subjected enactments limiting liberty in wartime to the requirement of a clear statement and it presumably intended §4001(a) to be read accordingly. This need for clarity was unmistakably expressed in Ex parte Endo, supra, decided the same day as Korematsu. Endo began with a petition for habeas corpus by an interned citizen claiming to be loyal and law-abiding and thus "unlawfully detained." 323 U. S., at 294. The petitioner was held entitled to habeas relief in an opinion that set out this principle for scrutinizing wartime statutes in derogation of customary liberty:


[232] "In interpreting a wartime measure we must assume that [its] purpose was to allow for the greatest possible accommodation between ... liberties and the exigencies of war. We must assume, when asked to find implied powers in a grant of legislative or executive authority, that the law makers intended to place no greater restraint on the citizen than was clearly and unmistakably indicated by the language they used." Id., at 300.


[233] Congress's understanding of the need for clear authority before citizens are kept detained is itself therefore clear, and §4001(a) must be read to have teeth in its demand for congressional authorization.


[234] Finally, even if history had spared us the cautionary example of the internments in World War II, even if there had been no Korematsu, and Endo had set out no principle of statutory interpretation, there would be a compelling reason to read §4001(a) to demand manifest authority to detain before detention is authorized. The defining character of American constitutional government is its constant tension between security and liberty, serving both by partial helpings of each. In a government of separated powers, deciding finally on what is a reasonable degree of guaranteed liberty whether in peace or war (or some condition in between) is not well entrusted to the Executive Branch of Government, whose particular responsibility is to maintain security. For reasons of inescapable human nature, the branch of the Government asked to counter a serious threat is not the branch on which to rest the Nation's entire reliance in striking the balance between the will to win and the cost in liberty on the way to victory; the responsibility for security will naturally amplify the claim that security legitimately raises. A reasonable balance is more likely to be reached on the judgment of a different branch, just as Madison said in remarking that "the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other -- that the private interest of every individual may be a sentinel over the public rights." The Federalist No. 51, p. 349 (J. Cooke ed. 1961). Hence the need for an assessment by Congress before citizens are subject to lockup, and likewise the need for a clearly expressed congressional resolution of the competing claims.


[235] III.


[236] Under this principle of reading §4001(a) robustly to require a clear statement of authorization to detain, none of the Government's arguments suffices to justify Hamdi's detention.


[237] A.


[238] First, there is the argument that §4001(a) does not even apply to wartime military detentions, a position resting on the placement of §4001(a) in Title 18 of the United States Code, the gathering of federal criminal law. The text of the statute does not, however, so limit its reach, and the legislative history of the provision shows its placement in Title 18 was not meant to render the statute more restricted than its terms. The draft of what is now §4001(a) as contained in the original bill prohibited only imprisonment unauthorized by Title 18. See H. R. Rep. No. 92- 116, at 4. In response to the Department of Justice's objection that the original draft seemed to assume wrongly that all provisions for the detention of convicted persons would be contained in Title 18, the provision was amended by replacing a reference to that title with the reference to an "Act of Congress." Id., at 3. The Committee on the Judiciary, discussing this change, stated that "[limiting] detention of citizens ... to situations in which ... an Act of Congres[s] exists" would "assure that no detention camps can be established without at least the acquiescence of the Congress." Id., at 5. See also supra, at 4-6. This understanding, that the amended bill would sweep beyond imprisonment for crime and apply to Executive detention in furtherance of wartime security, was emphasized in an extended debate. Representative Ichord, chairman of the House Internal Security Committee and an opponent of the bill, feared that the redrafted statute would "deprive the President of his emergency powers and his most effective means of coping with sabotage and espionage agents in war-related crises." 117 Cong. Rec., at 31542. Representative Railsback, the bill's sponsor, spoke of the bill in absolute terms: "[I]n order to prohibit arbitrary executive action, [the bill] assures that no detention of citizens can be undertaken by the Executive without the prior consent of Congress." Id., at 31551. This legislative history indicates that Congress was aware that §4001(a) would limit the Executive's power to detain citizens in wartime to protect national security, and it is fair to say that the prohibition was thus intended to extend not only to the exercise of power to vindicate the interests underlying domestic criminal law, but to statutorily unauthorized detention by the Executive for reasons of security in wartime, just as Hamdi claims.*fn17


[239] B.


[240] Next, there is the Government's claim, accepted by the Court, that the terms of the Force Resolution are adequate to authorize detention of an enemy combatant under the circumstances described,*fn18 a claim the Government fails to support sufficiently to satisfy §4001(a) as read to require a clear statement of authority to detain. Since the Force Resolution was adopted one week after the attacks of September 11, 2001, it naturally speaks with some generality, but its focus is clear, and that is on the use of military power. It is fairly read to authorize the use of armies and weapons, whether against other armies or individual terrorists. But, like the statute discussed in Endo, it never so much as uses the word detention, and there is no reason to think Congress might have perceived any need to augment Executive power to deal with dangerous citizens within the United States, given the well-stocked statutory arsenal of defined criminal offenses covering the gamut of actions that a citizen sympathetic to terrorists might commit. See, e.g., 18 U. S. C. §2339A (material support for various terrorist acts); §2339B (material support to a foreign terrorist organization); §2332a (use of a weapon of mass destruction, including conspiracy and attempt); §2332b(a)(1) (acts of terrorism "transcending national boundaries," including threats, conspiracy, and attempt); 18 U. S. C. A. §2339C (Supp. 2004) (financing of certain terrorist acts); see also 18 U. S. C. §3142(e) (pretrial detention). See generally Brief for Janet Reno et al. as Amici Curiae in Rumsfeld v. Padilla, O. T. 2003, No. 03-1027, pp. 14-19, and n. 17 (listing the tools available to the Executive to fight terrorism even without the power the Government claims here); Brief for Louis Henkin et al. as Amici Curiae in Rumsfeld v. Padilla, O. T. 2003, No. 03-1027, p. 23, n. 27.*fn19


[241] C.


[242] Even so, there is one argument for treating the Force Resolution as sufficiently clear to authorize detention of a citizen consistently with §4001(a). Assuming the argument to be sound, however, the Government is in no position to claim its advantage.


[243] Because the Force Resolution authorizes the use of military force in acts of war by the United States, the argument goes, it is reasonably clear that the military and its Commander in Chief are authorized to deal with enemy belligerents according to the treaties and customs known collectively as the laws of war. Brief for Respondents 20- 22; see ante, at 9-14 (accepting this argument). Accordingly, the United States may detain captured enemies, and Ex parte Quirin, 317 U. S. 1 (1942), may perhaps be claimed for the proposition that the American citizenship of such a captive does not as such limit the Government's power to deal with him under the usages of war. Id., at 31, 37-38. Thus, the Government here repeatedly argues that Hamdi's detention amounts to nothing more than customary detention of a captive taken on the field of battle: if the usages of war are fairly authorized by the Force Resolution, Hamdi's detention is authorized for purposes of §4001(a).


[244] There is no need, however, to address the merits of such an argument in all possible circumstances. For now it is enough to recognize that the Government's stated legal position in its campaign against the Taliban (among whom Hamdi was allegedly captured) is apparently at odds with its claim here to be acting in accordance with customary law of war and hence to be within the terms of the Force Resolution in its detention of Hamdi. In a statement of its legal position cited in its brief, the Government says that "the Geneva Convention applies to the Taliban detainees." Office of the White House Press Secretary, Fact Sheet, Status of Detainees at Guantanamo (Feb. 7, 2002), www.whitehouse.gov/news/releases/2002/ 02/20020207-13.html (as visited June 18, 2004, and available in Clerk of Court's case file) (hereinafter White House Press Release) (cited in Brief for Respondents 24, n. 9). Hamdi presumably is such a detainee, since according to the Government's own account, he was taken bearing arms on the Taliban side of a field of battle in Afghanistan. He would therefore seem to qualify for treatment as a prisoner of war under the Third Geneva Convention, to which the United States is a party. Article 4 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3320, T. I. A. S. No. 3364.


[245] By holding him incommunicado, however, the Government obviously has not been treating him as a prisoner of war, and in fact the Government claims that no Taliban detainee is entitled to prisoner of war status. See Brief for Respondents 24; White House Press Release. This treatment appears to be a violation of the Geneva Convention provision that even in cases of doubt, captives are entitled to be treated as prisoners of war "until such time as their status has been determined by a competent tribunal." Art. 5, 6 U. S. T., at 3324. The Government answers that the President's determination that Taliban detainees do not qualify as prisoners of war is conclusive as to Hamdi's status and removes any doubt that would trigger application of the Convention's tribunal requirement. See Brief for Respondents 24. But reliance on this categorical pronouncement to settle doubt is apparently at odds with the military regulation, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Reg. 190-8, §§1-5, 1-6 (1997), adopted to implement the Geneva Convention, and setting out a detailed procedure for a military tribunal to determine an individual's status. See, e.g., id., §1-6 ("A competent tribunal shall be composed of three commissioned officers"; a "written record shall be made of proceedings"; "[p]roceedings shall be open" with certain exceptions; "[p]ersons whose status is to be determined shall be advised of their rights at the beginning of their hearings," "allowed to attend all open sessions," "allowed to call witnesses if reasonably available, and to question those witnesses called by the Tribunal," and to "have a right to testify"; and a tribunal shall determine status by a "[p]reponderance of evidence"). One of the types of doubt these tribunals are meant to settle is whether a given individual may be, as Hamdi says he is, an "[i]nnocent civilian who should be immediately returned to his home or released." Id., 1-6e(10)(c). The regulation, jointly promulgated by the Headquarters of the Departments of the Army, Navy, Air Force, and Marine Corps, provides that "[p]ersons who have been determined by a competent tribunal not to be entitled to prisoner of war status may not be executed, imprisoned, or otherwise penalized without further proceedings to determine what acts they have committed and what penalty should be imposed." Id., §1-6g. The regulation also incorporates the Geneva Convention's presumption that in cases of doubt, "persons shall enjoy the protection of the ... Convention until such time as their status has been determined by a competent tribunal." Id., §1-6a. Thus, there is reason to question whether the United States is acting in accordance with the laws of war it claims as authority.


[246] Whether, or to what degree, the Government is in fact violating the Geneva Convention and is thus acting outside the customary usages of war are not matters I can resolve at this point. What I can say, though, is that the Government has not made out its claim that in detaining Hamdi in the manner described, it is acting in accord with the laws of war authorized to be applied against citizens by the Force Resolution. I conclude accordingly that the Government has failed to support the position that the Force Resolution authorizes the described detention of Hamdi for purposes of §4001(a).


[247] It is worth adding a further reason for requiring the Government to bear the burden of clearly justifying its claim to be exercising recognized war powers before declaring §4001(a) satisfied. Thirty-eight days after adopting the Force Resolution, Congress passed the statute entitled Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT ACT), 115 Stat. 272; that Act authorized the detention of alien terrorists for no more than seven days in the absence of criminal charges or deportation proceedings, 8 U. S. C. §1226a(a)(5) (2000 ed., Supp. I). It is very difficult to believe that the same Congress that carefully circumscribed Executive power over alien terrorists on home soil would not have meant to require the Government to justify clearly its detention of an American citizen held on home soil incommunicado.


[248] D.


[249] Since the Government has given no reason either to deflect the application of §4001(a) or to hold it to be satisfied, I need to go no further; the Government hints of a constitutional challenge to the statute, but it presents none here. I will, however, stray across the line between statutory and constitutional territory just far enough to note the weakness of the Government's mixed claim of inherent, extra-statutory authority under a combination of Article II of the Constitution and the usages of war. It is in fact in this connection that the Government developed its argument that the exercise of war powers justifies the detention, and what I have just said about its inadequacy applies here as well. Beyond that, it is instructive to recall Justice Jackson's observation that the President is not Commander in Chief of the country, only of the military. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 643-644 (1952) (concurring opinion); see also id., at 637-638 (Presidential authority is "at its lowest ebb" where the President acts contrary to congressional will).


[250] There may be room for one qualification to Justice Jackson's statement, however: in a moment of genuine emergency, when the Government must act with no time for deliberation, the Executive may be able to detain a citizen if there is reason to fear he is an imminent threat to the safety of the Nation and its people (though I doubt there is any want of statutory authority, see supra, at 9-10). This case, however, does not present that question, because an emergency power of necessity must at least be limited by the emergency; Hamdi has been locked up for over two years. Cf. Ex parte Milligan, 4 Wall. 2, 127 (1866) (martial law justified only by "actual and present" necessity as in a genuine invasion that closes civilian courts).


[251] Whether insisting on the careful scrutiny of emergency claims or on a vigorous reading of §4001(a), we are heirs to a tradition given voice 800 years ago by Magna Carta, which, on the barons' insistence, confined executive power by "the law of the land."


[252] IV.


[253] Because I find Hamdi's detention forbidden by §4001(a) and unauthorized by the Force Resolution, I would not reach any questions of what process he may be due in litigating disputed issues in a proceeding under the habeas statute or prior to the habeas enquiry itself. For me, it suffices that the Government has failed to justify holding him in the absence of a further Act of Congress, criminal charges, a showing that the detention conforms to the laws of war, or a demonstration that §4001(a) is unconstitutional. I would therefore vacate the judgment of the Court of Appeals and remand for proceedings consistent with this view.


[254] Since this disposition does not command a majority of the Court, however, the need to give practical effect to the conclusions of eight members of the Court rejecting the Government's position calls for me to join with the plurality in ordering remand on terms closest to those I would impose. See Screws v. United States, 325 U. S. 91, 134 (1945) (Rutledge, J., concurring in result). Although I think litigation of Hamdi's status as an enemy combatant is unnecessary, the terms of the plurality's remand will allow Hamdi to offer evidence that he is not an enemy combatant, and he should at the least have the benefit of that opportunity.


[255] It should go without saying that in joining with the plurality to produce a judgment, I do not adopt the plurality's resolution of constitutional issues that I would not reach. It is not that I could disagree with the plurality's determinations (given the plurality's view of the Force Resolution) that someone in Hamdi's position is entitled at a minimum to notice of the Government's claimed factual basis for holding him, and to a fair chance to rebut it before a neutral decision maker, see ante, at 26; nor, of course, could I disagree with the plurality's affirmation of Hamdi's right to counsel, see ante, at 32-33. On the other hand, I do not mean to imply agreement that the Government could claim an evidentiary presumption casting the burden of rebuttal on Hamdi, see ante, at 27, or that an opportunity to litigate before a military tribunal might obviate or truncate enquiry by a court on habeas, see ante, at 31-32.


[256] Subject to these qualifications, I join with the plurality in a judgment of the Court vacating the Fourth Circuit's judgment and remanding the case.



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Opinion Footnotes

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[257] *fn1 Here the basis asserted for detention by the military is that Hamdi was carrying a weapon against American troops on a foreign battlefield; that is, that he was an enemy combatant. The legal category of enemy combatant has not been elaborated upon in great detail. The permissible bounds of the category will be defined by the lower courts as subsequent cases are presented to them.


[258] *fn2 Because we hold that Hamdi is constitutionally entitled to the process described above, we need not address at this time whether any treaty guarantees him similar access to a tribunal for a determination of his status.


[259] *fn3 As I shall discuss presently, see infra, at 17-19, the Court purported to limit this language in Ex parte Quirin, 317 U. S. 1, 45 (1942). Whatever Quirin's effect on Milligan's precedential value, however, it cannot undermine its value as an indicator of original meaning. Cf. Reid v. Covert, 354 U. S. 1, 30 (1957) (plurality opinion) (Milligan remains "one of the great landmarks in this Court's history").


[260] *fn4 Without bothering to respond to this analysis, the plurality states that Milligan "turned in large part" upon the defendant's lack of prisoner-of-war status, and that the Milligan Court explicitly and repeatedly said so. See ante, at 14. Neither is true. To the extent, however, that prisoner-of-war status was relevant in Milligan, it was only because prisoners of war received different statutory treatment under the conditional suspension then in effect.


[261] *fn5 The only two Court of Appeals cases from World War II cited by the Government in which citizens were detained without trial likewise involved petitioners who were conceded to have been members of enemy forces. See In re Territo, 156 F. 2d 142, 143-145 (CA9 1946); Colepaugh v. Looney, 235 F. 2d 429, 432 (CA10 1956). The plurality complains that Territo is the only case I have identified in which "a United States citizen [was] captured in a foreign combat zone," ante, at 16. Indeed it is; such cases must surely be rare. But given the constitutional tradition I have described, the burden is not upon me to find cases in which the writ was granted to citizens in this country who had been captured on foreign battlefields; it is upon those who would carve out an exception for such citizens (as the plurality's complaint suggests it would) to find a single case (other than one where enemy status was admitted) in which habeas was denied.


[262] *fn6 The plurality's assertion that Quirin somehow "clarifies" Milligan, ante, at 15, is simply false. As I discuss supra, at 17-19, the Quirin Court propounded a mistaken understanding of Milligan; but nonetheless its holding was limited to "the case presented by the present record," and to "the conceded facts," and thus avoided conflict with the earlier case. See 317 U. S., at 45-46 (emphasis added). The plurality, ignoring this expressed limitation, thinks it "beside the point" whether belligerency is conceded or found "by some other process" (not necessarily a jury trial) "that verifies this fact with sufficient certainty." Ante, at 16. But the whole point of the procedural guarantees in the Bill of Rights is to limit the methods by which the Government can determine facts that the citizen disputes and on which the citizen's liberty depends. The plurality's claim that Quirin's one-paragraph discussion of Milligan provides a "[c]lear . . . disavowal" of two false imprisonment cases from the War of 1812, ante, at 15, thus defies logic; unlike the plaintiffs in those cases, Haupt was concededly a member of an enemy force. The Government also cites Moyer v. Peabody, 212 U. S. 78 (1909), a suit for damages against the Governor of Colorado, for violation of due process in detaining the alleged ringleader of a rebellion quelled by the state militia after the Governor's declaration of a state of insurrection and (he contended) suspension of the writ "as incident thereto." Ex parte Moyer, 35 Colo. 154, 157, 91 P. 738, 740 (1905). But the holding of Moyer v. Peabody (even assuming it is transferable from state-militia detention after state suspension to federal standing-army detention without suspension) is simply that "[s]o long as such arrests [were] made in good faith and in the honest belief that they [were] needed in order to head the insurrection off," 212 U. S., at 85, an action in damages could not lie. This "good-faith" analysis is a forebear of our modern doctrine of qualified immunity. Cf. Scheuer v. Rhodes, 416 U. S. 232, 247-248 (1974) (understanding Moyer in this way). Moreover, the detention at issue in Moyer lasted about two and a half months, see 212 U. S., at 85, roughly the length of time permissible under the 1679 Habeas Corpus Act, see supra, at 4-5. In addition to Moyer v. Peabody, Justice Thomas relies upon Luther v. Borden, 7 How. 1 (1849), a case in which the state legislature had imposed martial law -- a step even more drastic than suspension of the writ. See post, at 13-14 (dissenting opinion). But martial law has not been imposed here, and in any case is limited to "the theatre of active military operations, where war really prevails," and where therefore the courts are closed. Ex parte Milligan, 4 Wall. 2, 127 (1866); see also id., at 129-130 (distinguishing Luther).


[263] *fn7 The plurality rejects any need for "specific language of detention" on the ground that detention of alleged combatants is a "fundamental incident of waging war." Ante, at 12. Its authorities do not support that holding in the context of the present case. Some are irrelevant because they do not address the detention of American citizens. E.g., Naqvi, Doubtful Prisoner-of-War Status, 84 Int'l Rev. Red Cross 571, 572 (2002). The plurality's assertion that detentions of citizen and alien combatants are equally authorized has no basis in law or common sense. Citizens and noncitizens, even if equally dangerous, are not similarly situated. See, e.g., Milligan, supra; Johnson v. Eisentrager, 339 U. S. 763 (1950); Rev. Stat. 4067, 50 U. S. C. §21 (Alien Enemy Act). That captivity may be consistent with the principles of international law does not prove that it also complies with the restrictions that the Constitution places on the American Government's treatment of its own citizens. Of the authorities cited by the plurality that do deal with detention of citizens, Quirin and Territo have already been discussed and rejected. See supra, at 19-20, and n. 3. The remaining authorities pertain to U. S. detention of citizens during the Civil War, and are irrelevant for two reasons: (1) the Lieber Code was issued following a congressional authorization of suspension of the writ, see Instructions for the Government of Armies of the United States in the Field, Gen. Order No. 100 (1863), reprinted in 2 Lieber, Miscellaneous Writings, p. 246; Act of Mar. 3, 1863, 12 Stat. 755, §§1, 2; and (2) citizens of the Confederacy, while citizens of the United States, were also regarded as citizens of a hostile power.


[264] *fn8 Justice Thomas worries that the constitutional conditions for suspension of the writ will not exist "during many ... emergencies during which ... detention authority might be necessary," post, at 16. It is difficult to imagine situations in which security is so seriously threatened as to justify indefinite imprisonment without trial, and yet the constitutional conditions of rebellion or invasion are not met.


[265] *fn9 Although I have emphasized national-security concerns, the President's foreign-affairs responsibilities are also squarely implicated by this case. The Government avers that Northern Alliance forces captured Hamdi, and the District Court demanded that the Government turn over information relating to statements made by members of the Northern Alliance. See 316 F. 3d 450, 462 (CA4 2003).


[266] *fn10 It could be argued that the habeas statutes are evidence of congressional intent that enemy combatants are entitled to challenge the factual basis for the Government's determination. See, e.g., 28 U. S. C. §§2243, 2246. But factual development is needed only to the extent necessary to resolve the legal challenge to the detention. See, e.g., Walker v. Johnston, 312 U. S. 275, 284 (1941).


[267] *fn11 Indeed, it is not even clear that the Court required good faith. See Moyer, 212 U. S., at 85 ("It is not alleged that [the Governor's] judgment was not honest, if that be material, or that [Moyer] was detained after fears of the insurrection were at an end").


[268] *fn12 I agree with Justice Scalia that this Court could not review Congress' decision to suspend the writ. See ante, at 26.


[269] *fn13 Evidently, neither do the parties, who do not cite Mathews even once.


[270] *fn14 Hamdi's detention comports with the laws of war, including the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3406, T. I. A. S. No. 3364. See Brief for Respondents 22-24.


[271] *fn15 These observations cast still more doubt on the appropriateness and usefulness of Mathews v. Eldridge, 424 U. S. 319 (1976), in this context. It is, for example, difficult to see how the plurality can insist that Hamdi unquestionably has the right to access to counsel in connection with the proceedings on remand, when new information could become available to the Government showing that such access would pose a grave risk to national security. In that event, would the Government need to hold a hearing before depriving Hamdi of his newly acquired right to counsel even if that hearing would itself pose a grave threat?


[272] *fn16 The Government has since February 2004 permitted Hamdi to consult with counsel as a matter of policy, but does not concede that it has an obligation to allow this. Brief for Respondents 9, 39-46.


[273] *fn17 Nor is it possible to distinguish between civilian and military authority to detain based on the congressional object of avoiding another Korematsu v. United States, 323 U. S. 214 (1944). See Brief for Respondents 21 (arguing that military detentions are exempt). Although a civilian agency authorized by Executive order ran the detention camps, the relocation and detention of American citizens was ordered by the military under authority of the President as Commander in Chief. See Ex parte Endo, 323 U. S. 283, 285-288 (1944). The World War II internment was thus ordered under the same Presidential power invoked here and the intent to bar a repetition goes to the action taken and authority claimed here.


[274] *fn18 As noted, supra, at 3, the Government argues that a required Act of Congress is to be found in a statutory authorization to spend money appropriated for the care of prisoners of war and of other, similar prisoners, 10 U. S. C. §956(5). It is enough to say that this statute is an authorization to spend money if there are prisoners, not an authorization to imprison anyone to provide the occasion for spending money.


[275] *fn19 Even a brief examination of the reported cases in which the Government has chosen to proceed criminally against those who aided the Taliban shows the Government has found no shortage of offenses to allege. See United States v. Lindh, 212 F. Supp. 2d 541, 547 (ED Va. 2002); United States v. Khan, 309 F. Supp. 2d 789, 796 (ED Va. 2004).

Rasul v. Bush, 124 S.Ct. 2686, 542 U.S. 466, 159 L.Ed.2d 548 (U.S. 06/28/2004)

[1] SUPREME COURT OF THE UNITED STATES


[2] Nos. 03-334 and 03-343


[3] 124 S.Ct. 2686, 542 U.S. 466, 159 L.Ed.2d 548, 2004 Daily Journal D.A.R. 7777, 72 USLW 4596, 04 Cal. Daily Op. Serv. 5693

[4] June 28, 2004


[5] SHAFIQ RASUL, ET AL., PETITIONERS
v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, ET AL. 03-334
FAWZI KHALID ABDULLAH FAHAD AL ODAH, ET AL., PETITIONERS
v.
UNITED STATES ET AL. 03-343


[6] SYLLABUS BY THE COURT


[7] OCTOBER TERM, 2003


[8] Argued April 20, 2004


[9] Pursuant to Congress' joint resolution authorizing the use of necessary and appropriate force against nations, organizations, or persons that planned, authorized, committed, or aided in the September 11, 2001, al Qaeda terrorist attacks, the President sent Armed Forces into Afghanistan to wage a military campaign against al Qaeda and the Taliban regime that had supported it. Petitioners, 2 Australians and 12 Kuwaitis captured abroad during the hostilities, are being held in military custody at the Guantanamo Bay, Cuba, Naval Base, which the United States occupies under a lease and treaty recognizing Cuba's ultimate sovereignty, but giving this country complete jurisdiction and control for so long as it does not abandon the leased areas. Petitioners filed suits under federal law challenging the legality of their detention, alleging that they had never been combatants against the United States or engaged in terrorist acts, and that they have never been charged with wrongdoing, permitted to consult counsel, or provided access to courts or other tribunals. The District Court construed the suits as habeas petitions and dismissed them for want of jurisdiction, holding that, under Johnson v. Eisentrager, 339 U. S. 763, aliens detained outside United States sovereign territory may not invoke habeas relief. The Court of Appeals affirmed.


[10] Held: United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay. Pp. 4-17.


[11] (a) The District Court has jurisdiction to hear petitioners' habeas challenges under 28 U. S. C. §2241, which authorizes district courts, "within their respective jurisdictions," to entertain habeas applications by persons claiming to be held "in custody in violation of the ... laws ... of the United States," §§2241(a), (c)(3). Such jurisdiction extends to aliens held in a territory over which the United States exercises plenary and exclusive jurisdiction, but not "ultimate sovereignty." Pp. 4-16.


[12] (1) The Court rejects respondents' primary submission that these cases are controlled by Eisentrager's holding that a District Court lacked authority to grant habeas relief to German citizens captured by U. S. forces in China, tried and convicted of war crimes by an American military commission headquartered in Nanking, and incarcerated in occupied Germany. Reversing a Court of Appeals judgment finding jurisdiction, the Eisentrager Court found six critical facts: The German prisoners were (a) enemy aliens who (b) had never been or resided in the United States, (c) were captured outside U. S. territory and there held in military custody, (d) were there tried and convicted by the military (e) for offenses committed there, and (f) were imprisoned there at all times. 339 U. S., at 777. Petitioners here 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 this country; 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. The Eisentrager Court also made clear that all six of the noted critical facts were relevant only to the question of the prisoners' constitutional entitlement to habeas review. Ibid. The Court's only statement on their statutory entitlement was a passing reference to its absence. Id., at 768. This cursory treatment is explained by the Court's then-recent decision in Ahrens v. Clark, 335 U. S. 188, in which it held that the District Court for the District of Columbia lacked jurisdiction to entertain the habeas claims of aliens detained at Ellis Island because the habeas statute's phrase "within their respective jurisdictions" required the petitioners' presence within the court's territorial jurisdiction, id., at 192. However, the Court later held, in Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 494-495, that such presence is not "an invariable prerequisite" to the exercise of §2241 jurisdiction because habeas acts upon the person holding the prisoner, not the prisoner himself, so that the court acts "within [its] respective jurisdiction" if the custodian can be reached by service of process. Because Braden overruled the statutory predicate to Eisentrager's holding, Eisentrager does not preclude the exercise of §2241 jurisdiction over petitioners' claims. Pp. 6-11.


[13] (2) Also rejected is respondents' contention that §2241 is limited by the principle that legislation is presumed not to have extraterritorial application unless Congress clearly manifests such an intent, EEOC v. Arabian American Oil Co., 499 U. S. 244, 248. That presumption has no application to the operation of the habeas statute with respect to persons detained within "the [United States'] territorial jurisdiction." Foley Bros., Inc. v. Filardo, 336 U. S. 281, 285. By the express terms of its agreements with Cuba, the United States exercises complete jurisdiction and control over the Guantanamo Base, and may continue to do so permanently if it chooses. Respondents concede that the habeas statute would create federal-court jurisdiction over the claims of an American citizen held at the base. Considering that §2241 draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the statute's geographical coverage to vary depending on the detainee's citizenship. Aliens held at the base, like American citizens, are entitled to invoke the federal courts' §2241 authority. Pp. 12-15.


[14] (3) Petitioners contend that they are being held in federal custody in violation of United States laws, and the District Court's jurisdiction over petitioners' custodians is unquestioned, cf. Braden, 410 U. S., at 495. Section 2241 requires nothing more and therefore confers jurisdiction on the District Court. Pp. 15-16.


[15] (b) The District Court also has jurisdiction to hear the Al Odah petitioners' complaint invoking 28 U. S. C. §1331, the federal question statute, and §1350, the Alien Tort Statute. The Court of Appeals, again relying on Eisentrager, held that the District Court correctly dismissed these claims for want of jurisdiction because the petitioners lacked the privilege of litigation in U. S. courts. Nothing in Eisentrager or any other of the Court's cases categorically excludes aliens detained in military custody outside the United States from that privilege. United States courts have traditionally been open to nonresident aliens. Cf. Disconto Gesellschaft v. Umbreit, 208 U. S. 570, 578. And indeed, §1350 explicitly confers the privilege of suing for an actionable "tort ... committed in violation of the law of nations or a treaty of the United States" on aliens alone. The fact that petitioners are being held in military custody is immaterial. Pp. 16-17.


[16] (c) Whether and what further proceedings may become necessary after respondents respond to the merits of petitioners' claims are not here addressed. P. 17.


[17] 321 F. 3d 1134, reversed and remanded.


[18] Stevens, J., delivered the opinion of the Court, in which O'Connor, Souter, Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed an opinion concurring in the judgment. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined.


[19] On writs of certiorari to the united states court of appeals for the district of columbia circuit Court Below: 321 F. 3d 1134


[20] John J. Gibbons argued the cause for petitioners in both cases. With him on the briefs for petitioner Rasul et al. in No. 03-334 were Joseph Margulies, Barbara J. Olshansky, and Michael Ratner. Thomas B. Wilner, Neil H. Koslowe, and Kristine A. Huskey filed briefs for petitioner Al Odah et al. in both cases.


[21] Solicitor General Olson argued the cause for respondents in both cases. With him on the brief were Assistant Attorney General Keisler, Deputy Solicitor General Clement, Deputy Assistant Attorney General Katsas, Gregory G. Garre, Douglas N. Letter, Robert M. Loeb, Sharon Swingle, and William H. Taft IV.


[22] Briefs of amici curiae urging reversal in both cases were filed for Hungarian Jews et al. by Steve W. Berman, R. Brent Walton, Jonathan W. Cuneo, David W. Stanley, Michael Waldman, and Samuel J. Dubbin; for the International Commission of Jurists et al. by William J. Butler and A. Hays Butler; for the National Institute of Military Justice by Ronald W. Meister; for Abdullah Al-Joaid by Mary Patricia Michel; for Diego C. Asencio et al. by William M. Hannay; for David M. Brahms et al. by James C. Schroeder; for the Honorable John H. Dalton et al. by Harold Hongju Koh, Gerald L. Neuman, Phillip H. Rudolph, and Daniel Feldman; for Leslie H. Jackson et al. by Thomas F. Cullen, Jr., and Christian G. Vergonis; for the Honorable Nathaniel R. Jones et al. by David J. Bradford; for Omar Ahmed Khadr by John A. E. Pottow; and for Fred Korematsu by Stephen J. Schulhofer, Evan R. Chesler, Dale Minami, and Eric K. Yamamoto.


[23] 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.


[24] 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.


[25] 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.


[26] The opinion of the court was delivered by: Justice Stevens


[27] Together with No. 03-343, Al Odah et al. v. United States et al., also on certiorari to the same court.


[28] Opinion of the Court


[29] 542 U. S. ____ (2004)


[30] 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.


[31] I.


[32] 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.


[33] Petitioners in these cases are 2 Australian citizens and 12 Kuwaiti citizens who were captured abroad during hostilities between the United States and the Taliban.*fn1 Since early 2002, the U. S. military has held them -- along with, according to the Government's estimate, approximately 640 other non-Americans captured abroad -- at the Naval Base at Guantanamo Bay. Brief for United States 6. The United States occupies the Base, which comprises 45 square miles of land and water along the southeast coast of Cuba, pursuant to a 1903 Lease Agreement executed with the newly independent Republic of Cuba in the aftermath of the Spanish-American War. Under the Agreement, "the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the [leased areas]," while "the Republic of Cuba consents that during the period of the occupation by the United States ... the United States shall exercise complete jurisdiction and control over and within said areas."*fn2 In 1934, the parties entered into a treaty providing that, absent an agreement to modify or abrogate the lease, the lease would remain in effect "[s]o long as the United States of America shall not abandon the ... naval station of Guantanamo."*fn3


[34] 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 ever engaged in any terrorist acts.*fn4 They also alleged that none has been charged with any wrongdoing, permitted to consult with counsel, or provided access to the courts or any other tribunal. App. 29, 77, 108.*fn5


[35] 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.


[36] 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 [may not] invok[e] a petition for a writ of habeas corpus." 215 F. Supp. 2d 55, 68 (DC 2002). The Court of Appeals affirmed. Reading Eisentrager to hold that " `the privilege of litigation' does not extend to aliens in military custody who have no presence in `any territory over which the United States is sovereign,' " 321 F. 3d 1134, 1144 (CADC 2003) (quoting Eisentrager, 339 U. S., at 777-778), it held that the District Court lacked jurisdiction over petitioners' habeas actions, as well as their remaining federal statutory claims that do not sound in habeas. We granted certiorari, 540 U. S. 1003 (2003), and now reverse.


[37] II.


[38] 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 "in custody, under or by colour of the authority of the United States, or 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).


[39] 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 Colonies achieved independence, Preiser v. Rodriguez, 411 U. S. 475, 485 (1973), and received explicit recognition in the Constitution, which forbids suspension of "[t]he Privilege of the Writ of Habeas Corpus ... unless when in Cases of Rebellion or Invasion the public Safety may require it," Art. I, §9, cl. 2.


[40] 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:


[41] "Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint." Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206, 218-219 (1953) (dissenting opinion).


[42] 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 Milligan, 4 Wall. 2 (1866), and of admitted enemy aliens convicted of war crimes during a declared war and held in the United States, Ex parte Quirin, 317 U. S. 1 (1942), and its insular possessions, In re Yamashita, 327 U. S. 1 (1946).


[43] 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."*fn6


[44] III.


[45] 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:


[46] "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; (c) 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." 339 U. S., at 777.


[47] On this set of facts, the Court concluded, "no right to the writ of habeas corpus appears." Id., at 781.


[48] 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.


[49] 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.


[50] Reference to the historical context in which Eisentrager was decided explains why the opinion devoted so little attention to 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 then being detained at Ellis Island, New York, for deportation to Germany. The Ahrens detainees had also filed their petitions in the U. S. District Court for the District of Columbia, naming the Attorney General as the respondent. Reading the phrase "within their respective jurisdictions" as used in the habeas statute to require the petitioners' presence within the district court's territorial jurisdiction, the Court held that the District of Columbia court lacked jurisdiction to entertain the detainees' claims. Id., at 192. Ahrens expressly 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., 192, n. 4. But as the dissent noted, if the presence of the petitioner in the territorial jurisdiction of a federal district court were truly a jurisdictional requirement, there could be only one response to that question. Id., at 209 (opinion of Rutledge, J.).*fn7


[51] 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 jurisdictional statute." Eisentrager v. Forrestal, 174 F. 2d, at 965. In essence, the Court of Appeals concluded that the habeas statute, as construed in Ahrens, had created an unconstitutional gap that had to be filled by reference to "fundamentals." 174 F. 2d, at 963. In its review of that decision, this Court, like the Court of Appeals, proceeded from the premise that "nothing in our statutes" conferred federal-court jurisdiction, and accordingly evaluated the Court of Appeals' resort to "fundamentals" on its own terms. 339 U. S., at 768.*fn8


[52] 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 can be reached by service of process." 410 U. S., at 494-495. Braden reasoned that its departure from the rule of Ahrens was warranted in light of developments that "had a profound impact on the continuing vitality of that decision." 410 U. S., at 497. These developments included, notably, decisions of this Court in cases involving habeas petitioners "confined overseas (and thus outside the territory of any district court)," in which the Court "held, if only implicitly, that the petitioners' absence from the district does not present a jurisdictional obstacle to the consideration of the claim." Id., at 498 (citing Burns v. Wilson, 346 U. S. 137 (1953), rehearing denied, 346 U. S. 844, 851-852 (opinion of Frankfurter, J.); United States ex rel. Toth v. Quarles, 350 U. S. 11 (1955); Hirota v. MacArthur, 338 U. S. 197, 199 (1948) (Douglas, J., concurring)). Braden thus established that Ahrens can no longer be viewed as establishing "an inflexible jurisdictional rule," and is strictly relevant only to the question of the appropriate forum, not to whether the claim can be heard at all. 410 U. S., at 499-500.


[53] Because Braden overruled the statutory predicate to Eisentrager's holding, Eisentrager plainly does not preclude the exercise of §2241 jurisdiction over petitioners' claims.*fn9


[54] IV.


[55] 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. 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 Treaty, Art. III. Respondents themselves concede that the habeas statute would create federal-court jurisdiction over the claims of an American citizen held at the base. Tr. of Oral Arg. 27. 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.*fn10 Aliens held at the base, no less than American citizens, are entitled to invoke the federal courts' authority under §2241.


[56] 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,*fn11 as well as the claims of persons detained in the so-called "exempt jurisdictions," where ordinary writs did not run,*fn12 and all other dominions under the sovereign's control.*fn13 As Lord Mansfield wrote in 1759, even if a territory was "no part of the realm," there was "no doubt" as to the court's power to issue writs of habeas corpus if the territory was "under the subjection of the Crown." King v. Cowle, 2 Burr. 834, 854-855, 97 Eng. Rep. 587, 598-599 (K. B.). Later cases confirmed that the reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of "the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown." Ex parte Mwenya, [1960] 1 Q. B. 241, 303 (C. A.) (Lord Evershed, M. R.).*fn14


[57] In the end, the answer to the question presented is clear. Petitioners contend that they are being held in federal custody in violation of the laws of the United States.*fn15 No party questions the District Court's jurisdiction over petitioners' custodians. Cf. Braden, 410 U. S., at 495. Section 2241, by its terms, requires nothing more. We therefore hold that §2241 confers on the District Court jurisdiction to hear petitioners' habeas corpus challenges to the legality of their detention at the Guantanamo Bay Naval Base.


[58] V.


[59] 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.


[60] 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 protection of their rights"). And indeed, 28 U. S. C. §1350 explicitly confers the privilege of suing for an actionable "tort ... committed in violation of the law of nations or a treaty of the United States" on aliens alone. The fact that petitioners in these cases are being held in military custody is immaterial to the question of the District Court's jurisdiction over their nonhabeas statutory claims.


[61] VI.


[62] 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 for the District Court to consider in the first instance the merits of petitioners' claims.


[63] It is so ordered.


[64] Kennedy, J., concurring in judgment


[65] Justice Kennedy, concurring in the judgment.


[66] 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 10-11. 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.


[67] Eisentrager considered the scope of the right to petition for a writ of habeas corpus against the backdrop of the constitutional command of the separation of powers. The issue before the Court was whether the Judiciary could exercise jurisdiction over the claims of German prisoners held in the Landsberg prison in Germany following the cessation of hostilities in Europe. The Court concluded the petition could not be entertained. The petition was not within the proper realm of the judicial power. It concerned matters within the exclusive province of the Executive, or the Executive and Congress, to determine.


[68] 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. Id., at 778. 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.


[69] The decision in Eisentrager indicates that there is a realm of political authority over military affairs where the judicial power may not enter. The existence of this realm acknowledges the power of the President as Commander in Chief, and the joint role of the President and the Congress, in the conduct of military affairs. A faithful application of Eisentrager, then, requires an initial inquiry into the general circumstances of the detention to determine whether the Court has the authority to entertain the petition and to grant relief after considering all of the facts presented. A necessary corollary of Eisentrager is that there are circumstances in which the courts maintain the power and the responsibility to protect persons from unlawful detention even where military affairs are implicated. See also Ex parte Milligan, 4 Wall. 2 (1866).


[70] 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.


[71] The second critical set of facts is that the detainees at Guantanamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status. In Eisentrager, the prisoners were tried and convicted by a military commission of violating the laws of war and were sentenced to prison terms. Having already been subject to procedures establishing their status, they could not justify "a limited opening of our courts" to show that they were "of friendly personal disposition" and not enemy aliens. 339 U. S., at 778. Indefinite detention without trial or other proceeding presents altogether different considerations. It allows friends and foes alike to remain in detention. It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus. Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.


[72] 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.


[73] Scalia, J., dissenting


[74] Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting.


[75] 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.


[76] I.


[77] 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.*fn16 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:


[78] "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).


[79] 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.


[80] 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.


[81] 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.


[82] 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).*fn17


[83] 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.*fn18 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.


[84] 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.


[85] 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.


[86] "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).


[87] 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.*fn19


[88] 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.


[89] 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.


[90] 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.


[91] II.


[92] 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]").


[93] 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.


[94] Today's carefree Court disregards, without a word of acknowledgment, the dire warning of a more circumspect Court in Eisentrager:


[95] "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.


[96] 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.


[97] III.


[98] 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.


[99] 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.


[100] 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.


[101] 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.


[102] 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.


[103] 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.


[104] "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.


[105] 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.


[106] 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.


[107] 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.*fn20


[108] In sum, the Court's treatment of Guantanamo Bay, like its treatment of §2241, is a wrenching departure from precedent.*fn21


[109] 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,*fn22 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.



--------------------------------------------------------------------------------

Opinion Footnotes

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[110] *fn1 When we granted certiorari, the petitioners also included two British citizens, Shafiq Rasul and Asif Iqbal. These petitioners have since been released from custody.


[111] *fn2 Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, U. S.-Cuba, Art. III, T. S. No. 418 (hereinafter 1903 Lease Agreement). A supplemental lease agreement, executed in July 1903, obligates the United States to pay an annual rent in the amount of "two thousand dollars, in gold coin of the United States" and to maintain "permanent fences" around the base. Lease of Certain Areas for Naval or Coaling Stations, July 2, 1903, U. S.-Cuba, Arts. I-II, T. S. No. 426.


[112] *fn3 Treaty Defining Relations with Cuba, May 29, 1934, U. S.-Cuba, Art. III, 48 Stat. 1683, T. S. No. 866 (hereinafter 1934 Treaty).


[113] *fn4 Relatives of the Kuwaiti detainees allege that the detainees were taken captive "by local villagers seeking promised bounties or other financial rewards" while they were providing humanitarian aid in Afghanistan and Pakistan, and were subsequently turned over to U. S. custody. App. 24-25. The Australian David Hicks was allegedly captured in Afghanistan by the Northern Alliance, a coalition of Afghan groups opposed to the Taliban, before he was turned over to the United States. Id., at 84. The Australian Mamdouh Habib was allegedly arrested in Pakistan by Pakistani authorities and turned over to Egyptian authorities, who in turn transferred him to U. S. custody. Id., at 110-111.


[114] *fn5 David Hicks has since been permitted to meet with counsel. Brief for United States 9.


[115] *fn6 1903 Lease Agreement, Art. III.


[116] *fn7 Justice Rutledge wrote: "[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.


[117] *fn8 Although Justice Scalia disputes the basis for the Court of Appeals' holding, post, at 4, what is most pertinent for present purposes is that this Court clearly understood the Court of Appeals' decision to rest on constitutional and not statutory grounds. Eisentrager, 339 U. S., at 767 ("[The Court of Appeals] concluded that any person, including an enemy alien, deprived of his liberty anywhere under any purported authority of the United States is entitled to the writ if he can show that extension to his case of any constitutional rights or limitations would show his imprisonment illegal; [and] 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 ..." (emphasis added)).


[118] *fn9 The dissent argues that Braden did not overrule Ahrens' jurisdictional holding, but simply distinguished it. Post, at 7. Of course, Braden itself indicated otherwise, 410 U. S., at 495-500, and a long line of judicial and scholarly interpretations, beginning with then-Justice Rehnquist's dissenting opinion, have so understood the decision. See, e.g., id., at 502 ("Today the Court overrules Ahrens"); Moore v. Olson, 368 F. 3d 757, 758 (CA7 2004) ("[A]fter Braden ... , which overruled Ahrens, the location of a collateral attack is best understood as a matter of venue"); Armentero v. INS, 340 F. 3d 1058, 1063 (CA9 2003) ("[T]he Court in [Braden] declared that Ahrens was overruled" (citations omitted)); Henderson v. INS, 157 F. 3d 106, 126, n. 20 (CA2 1998) ("On the issue of territorial jurisdiction, Ahrens was subsequently overruled by Braden"); Chatman-Bey v. Thornburgh, 864 F. 2d 804, 811 (CADC 1988) (en banc) ("[I]n Braden, the Court cut back substantially on Ahrens (and indeed overruled its territorially-based jurisdictional holding)"). See also, e.g., Patterson v. McLean Credit Union, 485 U. S. 617, 618 (1988) (per curiam); Eskridge, Overruling Statutory Precedents, 76 Geo. L. J. 1361, App. A (1988). 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 7. 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 6 -- 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 2 (citing 28 U. S. C. §§2241(a), 2242).


[119] *fn10 Justice Scalia appears to agree that neither the plain text of the statute nor his interpretation of that text provides a basis for treating American citizens differently from aliens. Post, at 10. But resisting the practical consequences of his position, he suggests that he might nevertheless recognize an "atextual exception" to his statutory rule for citizens held beyond the territorial jurisdiction of the federal district courts. Ibid.


[120] *fn11 See, e.g., King v. Schiever, 2 Burr. 765, 97 Eng. Rep. 551 (K. B. 1759) (reviewing the habeas petition of a neutral alien deemed a prisoner of war because he was captured aboard an enemy French privateer during a war between England and France); Sommersett v. Stewart, 20 How. St. Tr. 1, 79-82 (K. B. 1772) (releasing on habeas an African slave purchased in Virginia and detained on a ship docked in England and bound for Jamaica); Case of the Hottentot Venus, 13 East 195, 104 Eng. Rep. 344 (K. B. 1810) (reviewing the habeas petition of a "native of South Africa" allegedly held in private custody). 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).


[121] *fn12 See, e.g., Bourn's Case, Cro. Jac. 543, 79 Eng. Rep. 465 (K. B. 1619) (writ issued to the Cinque-Ports town of Dover); Alder v. Puisy, 1 Freeman 12, 89 Eng. Rep. 10 (K. B. 1671) (same); Jobson's Case, Latch 160, 82 Eng. Rep. 325 (K. B. 1626) (entertaining the habeas petition of a prisoner held in the County Palatine of Durham). See also 3 W. Blackstone, Commentaries on the Laws of England 79 (1769) (hereinafter Blackstone) ("[A]ll prerogative writs (as those of habeas corpus, prohibition, certiorari, and mandamus) may issue ... to all these exempt jurisdictions; because the privilege, that the king's writ runs not, must be intended between party and party, for there can be no such privilege against the king" (footnotes omitted)); R. Sharpe, Law of Habeas Corpus 188-189 (2d ed. 1989) (describing the "extraordinary territorial ambit" of the writ at common law).


[122] *fn13 See, e.g., King v. Overton, 1 Sid. 387, 82 Eng. Rep. 1173 (K. B. 1668) (writ issued to Isle of Jersey); King v. Salmon, 2 Keble 450, 84 Eng. Rep. 282 (K. B. 1669) (same). See also 3 Blackstone 131 (habeas corpus "run[s] into all parts of the king's dominions: for the king is at all times [e]ntitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted" (footnotes omitted)); M. Hale, History of the Common Law 120-121 (C. Gray ed. 1971) (writ of habeas corpus runs to the Channel Islands, even though "they are not Parcel of the Realm of England").


[123] *fn14 Ex parte Mwenya held that the writ ran to a territory described as a "foreign country within which [the Crown] ha[d] power and jurisdiction by treaty, grant, usage, sufferance, and other lawful means." Ex parte Mwenya, 1 Q. B., at 265 (internal quotation marks omitted). See also King v. The Earl of Crewe ex parte Sekgome, [1910] 2 K. B. 576, 606 (C. A.) (Williams, L. J.) (concluding that the writ would run to such a territory); id., at 618 (Farwell, L. J.) (same). As Lord Justice Sellers explained: "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 (Vacation Ct. 1939), for the broad proposition that habeas corpus has been categorically unavailable to aliens held outside sovereign territory. Post, at 18. Ex parte Mwenya, however, casts considerable doubt on this narrow view of the territorial reach of the writ. See Ex parte Mwenya, 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.


[124] *fn15 Petitioners' allegations -- that, although they have engaged neither in combat nor in acts of terrorism against the United States, they have been held in Executive detention for more than two years in territory subject to the long-term, exclusive jurisdiction and control of the United States, without access to counsel and without being charged with any wrongdoing --unquestionably describe "custody in violation of the Constitution or laws or treaties of the United States." 28 U. S. C. §2241(c)(3). Cf. United States v. Verdugo-Urquidez, 494 U. S. 259, 277-278 (1990) (Kennedy, J., concurring), and cases cited therein.


[125] *fn16 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. . .").


[126] *fn17 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.


[127] *fn18 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.


[128] *fn19 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.


[129] *fn20 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.


[130] *fn21 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.


[131] *fn22 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).

Rumsfeld v. Padilla, 124 S.Ct. 2711, 542 U.S. 426, 159 L.Ed.2d 513 (U.S. 06/28/2004)

[1] SUPREME COURT OF THE UNITED STATES


[2] No. 03-1027


[3] 124 S.Ct. 2711, 542 U.S. 426, 159 L.Ed.2d 513, 2004 Daily Journal D.A.R. 7765, 72 USLW 4584, 04 Cal. Daily Op. Serv. 5701, 4 Cal. Daily Op. Serv. 5701

[4] June 28, 2004


[5] DONALD H. RUMSFELD, SECRETARY OF DEFENSE, PETITIONER
v.
JOSE PADILLA AND DONNA R. NEWMAN, AS NEXT FRIEND OF JOSE PADILLA


[6] SYLLABUS BY THE COURT


[7] OCTOBER TERM, 2003


[8] Argued April 28, 2004


[9] Respondent Padilla, a United States citizen, was brought to New York for detention in federal criminal custody after federal agents apprehended him while executing a material witness warrant issued by the District Court for the Southern District of New York (Southern District) in connection with its grand jury investigation into the September 11, 2001, al Qaeda terrorist attacks. While his motion to vacate the warrant was pending, the President issued an order to Secretary of Defense Rumsfeld designating Padilla an "enemy combatant" and directing that he be detained in military custody. Padilla was later moved to a Navy brig in Charleston, S. C., where he has been held ever since. His counsel then filed in the Southern District a habeas petition under 28 U. S. C. §2241, which, as amended, alleged that Padilla's military detention violates the Constitution, and named as respondents the President, the Secretary, and Melanie Marr, the brig's commander. The Government moved to dismiss, arguing, inter alia, that Commander Marr, as Padilla's immediate custodian, was the only proper respondent, and that the District Court lacked jurisdiction over her because she is located outside the Southern District. That court held that the Secretary's personal involvement in Padilla's military custody rendered him a proper respondent, and that it could assert jurisdiction over the Secretary under New York's long-arm statute, notwithstanding his absence from the District. On the merits, the court accepted the Government's contention that the President has authority as Commander in Chief to detain as enemy combatants citizens captured on American soil during a time of war. The Second Circuit agreed that the Secretary was a proper respondent and that the Southern District had jurisdiction over the Secretary under New York's long-arm statute. The appeals court reversed on the merits, however, holding that the President lacks authority to detain Padilla militarily.


[10] Held:


[11] 1. Because this Court answers the jurisdictional question in the negative, it does not reach the question whether the President has authority to detain Padilla militarily. P. 1.


[12] 2. The Southern District lacks jurisdiction over Padilla's habeas petition. Pp. 5-23.


[13] (a) Commander Marr is the only proper respondent to Padilla's petition because she, not Secretary Rumsfeld, is Padilla's custodian. The federal habeas statute straightforwardly provides that the proper respondent is "the person" having custody over the petitioner. §§2242, §2243. Its consistent use of the definite article indicates that there is generally only one proper respondent, and the custodian is "the person" with the ability to produce the prisoner's body before the habeas court, see Wales v. Whitney, 114 U. S. 564, 574. In accord with the statutory language and Wales' immediate custodian rule, longstanding federal-court practice confirms that, in "core" habeas challenges to present physical confinement, the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official. No exceptions to this rule, either recognized or proposed, apply here. Padilla does not deny the immediate custodian rule's general applicability, but argues that the rule is flexible and should not apply on the unique facts of this case. The Court disagrees. That the Court's understanding of custody has broadened over the years to include restraints short of physical confinement does nothing to undermine the rationale or statutory foundation of the Wales rule where, in core proceedings such as the present, physical custody is at issue. Indeed, that rule has consistently been applied in this core context. The Second Circuit erred in taking the view that this Court has relaxed the immediate custodian rule with respect to prisoners detained for other than federal criminal violations, and in holding that the proper respondent is the person exercising the "legal reality of control" over the petitioner. The statute itself makes no such distinction, nor does the Court's case law support a deviation from the immediate custodian rule here. Rather, the cases Padilla cites stand for the simple proposition that the immediate physical custodian rule, by its terms, does not apply when a habeas petitioner challenges something other than his present physical confinement. See, e.g., Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484; Strait v. Laird, 406 U. S. 341. That is not the case here: Marr exercises day-to-day control over Padilla's physical custody. The petitioner cannot name someone else just because Padilla's physical confinement stems from a military order by the President. Identification of the party exercising legal control over the detainee only comes into play when there is no immediate physical custodian. Ex parte Endo, 323 U. S. 283, 304-305, distinguished. Although Padilla's detention is unique in many respects, it is at bottom a simple challenge to physical custody imposed by the Executive. His detention is thus not unique in any way that would provide arguable basis for a departure from the immediate custodian rule. Pp. 5-13.


[14] (b) The Southern District does not have jurisdiction over Commander Marr. Section §2241(a)'s language limiting district courts to granting habeas relief "within their respective jurisdictions" requires "that the court issuing the writ have jurisdiction over the custodian," Braden, supra, at 495. Because Congress added the "respective jurisdictions" clause to prevent judges anywhere from issuing the Great Writ on behalf of applicants far distantly removed, Carbo v. United States, 364 U. S. 611, 617, the traditional rule has always been that habeas relief is issuable only in the district of confinement, id., at 618. This commonsense reading is supported by other portions of the habeas statute, e.g., §2242, and by Federal Rule of Appellate Procedure 22(a). Congress has also legislated against the background of the "district of confinement" rule by fashioning explicit exceptions: E.g., when a petitioner is serving a state criminal sentence in a State containing more than one federal district, "the district . . . wherein [he] is in custody" and "the district . . . within which the State court was held which convicted and sentenced him" have "concurrent jurisdiction," §2241(d). Such exceptions would have been unnecessary if, as the Second Circuit believed, §2241 permits a prisoner to file outside the district of confinement. Despite this ample statutory and historical pedigree, Padilla urges that, under Braden and Strait, jurisdiction lies in any district in which the respondent is amenable to service of process. The Court disagrees, distinguishing those two cases. Padilla seeks to challenge his present physical custody in South Carolina. Because the immediate-custodian rule applies, the proper respondent is Commander Marr, who is present in South Carolina. There is thus no occasion to designate a "nominal" custodian and determine whether he or she is "present" in the same district as petitioner. The habeas statute's "respective jurisdictions" proviso forms an important corollary to the immediate custodian rule in challenges to present physical custody under §2241. Together they compose a simple rule that has been consistently applied in the lower courts, including in the context of military detentions: Whenever a §2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement. This rule serves the important purpose of preventing forum shopping by habeas petitioners. The District of South Carolina, not the Southern District of New York, was where Padilla should have brought his habeas petition. Pp. 13-19.


[15] (c) The Court rejects additional arguments made by the dissent in support of the mistaken view that exceptions exist to the immediate custodian and district of confinement rules whenever exceptional, special, or unusual cases arise. Pp. 19-23.


[16] 352 F. 3d 695, reversed and remanded.


[17] Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Kennedy, J., filed a concurring opinion, in which O'Connor, J., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined.


[18] On Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit Court Below: 352 F. 3d 695


[19] Deputy Solicitor General Clement argued the cause for petitioner. With him on the briefs were Solicitor General Olson, Sri Srinivasan, and Jonathan L. Marcus.


[20] Jennifer S. Martinez argued the cause for respondents. With her on the brief were Donna R. Newman, Andrew G. Patel, Jonathan M. Freiman, David W. DeBruin, William M. Hohengarten, and Matthew Hersh.


[21] Briefs of amici curiae urging reversal were filed for the Commonwealth of Virginia by Jerry W. Kilgore, Attorney General of Virginia, William H. Hurd, State Solicitor, Maureen Riley Matsen and William E. Thro, Deputy State Solicitors, Alison P. Landry, Senior Assistant Attorney General, and Courtney M. Malveaux and Russell E. McGuire, Assistant Attorneys General; for the American Center for Law & Justice 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 the Cato Institute by Timothy Lynch; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp.


[22] Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Steven R. Shapiro, Sharon M. McGowan, Lucas Guttentag, Robin L. Goldfaden, Arthur N. Eisenberg, Arthur H. Bryant, and Rebecca E. Epstein; for the Association of the Bar of the City of New York et al. by Joseph Gerard Davis; for the Beverly Hills Bar Association et al. by Bridget Arimond, Stephen F. Rohde, and Marc J. Poster; for the Center for National Security Studies et al. by John Payton, Seth P. Waxman, Paul R. Q. Wolfson, Kate Martin, and Joseph Onek; for Global Rights by James F. Fitzpatrick, Kathleen A. Behan, and Gay J. McDougall; for Others Are Us et al. by Jonathan D. Wallace; for the Rutherford Institute et al. by Carter G. Phillips, Mark E. Haddad, Joseph R. Guerra, and Elliot M. Mincberg; for the Spartacist League et al. by Rachel H. Wolkenstein; for Bruce A. Ackerman et al. by Jules Lobel, Barbara Olshansky, Nancy Chang, and Shayana Kadidal; for Susan Akram et al. by Daniel Kanstroom; for Philip Alston et al. by David N. Rosen, Homer E. Moyer, Jr., and Michael T. Brady; for the Honorable John Conyers, Jr., et al. by Brian S. Koukoutchos; for Samuel R. Gross et al. by Jonathan L. Hafetz, Lawrence S. Lustberg, and Michael J. Wishnie; for Louis Henkin et al. by Donald Francis Donovan, Carl Micarelli, and J. Paul Oetken; for Fred Korematsu et al. by Arturo J. Gonz lez and Jon B. Streeter; and for Janet Reno et al. by Robert S. Litt and Theodore D. Frank.


[23] Briefs of amici curiae were filed for the National Association of Criminal Defense Lawyers et al. by Donald G. Rehkopf, Jr., and Lisa B. Kemler; for the Public Defender Service for the District of Columbia by Catharine F. Easterly, Giovanna Shay, and Timothy P. O'Toole; for William J. Aceves et al. by Linda A. Malone and Jordan J. Paust; for Payam Akhavan et al. by Allison Marston Danner; for the Honorable Shirley M. Hufstedler et al. by Robert P. LoBue; and for David J. Scheffer et al. by Mr. Scheffer, pro se.


[24] A brief of amici curiae urging affirmance in No. 03-6696 and reversal in No. 03-1027 was filed for Senator John Cornyn et al. by Senator Cornyn, pro se.


[25] The opinion of the court was delivered by: Chief Justice Rehnquist


[26] 542 U. S. ____ (2004)


[27] Respondent Jose Padilla is a United States citizen detained by the Department of Defense pursuant to the President's determination that he is an "enemy combatant" who conspired with al Qaeda to carry out terrorist attacks in the United States. We confront two questions: First, did Padilla properly file his habeas petition in the Southern District of New York; and second, did the President possess authority to detain Padilla militarily. We answer the threshold question in the negative and thus do not reach the second question presented.


[28] Because we do not decide the merits, we only briefly recount the relevant facts. On May 8, 2002, Padilla flew from Pakistan to Chicago's O'Hare International Airport. As he stepped off the plane, Padilla was apprehended by federal agents executing a material witness warrant issued by the United States District Court for the Southern District of New York (Southern District) in connection with its grand jury investigation into the September 11th terrorist attacks. Padilla was then transported to New York, where he was held in federal criminal custody. On May 22, acting through appointed counsel, Padilla moved to vacate the material witness warrant.


[29] Padilla's motion was still pending when, on June 9, the President issued an order to Secretary of Defense Donald H. Rumsfeld designating Padilla an "enemy combatant" and directing the Secretary to detain him in military custody. App. D to Brief for Petitioner 5a (June 9 Order). In support of this action, the President invoked his authority as "Commander in Chief of the U. S. armed forces" and the Authorization for Use of Military Force Joint Resolution, Pub. L. 107-40, 115 Stat. 224 (AUMF),*fn1 enacted by Congress on September 18, 2001. June 9 Order 5a. The President also made several factual findings explaining his decision to designate Padilla an enemy combatant.*fn2 Based on these findings, the President concluded that it is "consistent with U. S. law and the laws of war for the Secretary of Defense to detain Mr. Padilla as an enemy combatant." Id., at 6a.


[30] That same day, Padilla was taken into custody by Department of Defense officials and transported to the Consolidated Naval Brig in Charleston, South Carolina.*fn3 He has been held there ever since.


[31] On June 11, Padilla's counsel, claiming to act as his next friend, filed in the Southern District a habeas corpus petition under 28 U. S. C. §2241. The petition, as amended, alleged that Padilla's military detention violates the Fourth, Fifth, and Sixth Amendments and the Suspension Clause, Art. I, §9, cl. 2, of the United States Constitution. The amended petition named as respondents President Bush, Secretary Rumsfeld, and Melanie A. Marr, Commander of the Consolidated Naval Brig.


[32] The Government moved to dismiss, arguing that Commander Marr, as Padilla's immediate custodian, is the only proper respondent to his habeas petition, and that the District Court lacks jurisdiction over Commander Marr because she is located outside the Southern District. On the merits, the Government contended that the President has authority to detain Padilla militarily pursuant to the Commander in Chief Clause of the Constitution, Art. II, §2, cl. 1, the congressional AUMF, and this Court's decision in Ex parte Quirin, 317 U. S. 1 (1942).


[33] The District Court issued its decision in December 2002. Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564. The court held that the Secretary's "personal involvement" in Padilla's military custody renders him a proper respondent to Padilla's habeas petition, and that it can assert jurisdiction over the Secretary under New York's long-arm statute, notwithstanding his absence from the Southern District.*fn4 Id., at 581-587. On the merits, however, the court accepted the Government's contention that the President has authority to detain as enemy combatants citizens captured on American soil during a time of war. Id., at 587-599.*fn5


[34] The Court of Appeals for the Second Circuit reversed. 352 F. 3d 695 (2003). The court agreed with the District Court that Secretary Rumsfeld is a proper respondent, reasoning that in cases where the habeas petitioner is detained for "other than federal criminal violations, the Supreme Court has recognized exceptions to the general practice of naming the immediate physical custodian as respondent." Id., at 704-708. The Court of Appeals concluded that on these "unique" facts Secretary Rumsfeld is Padilla's custodian because he exercises "the legal reality of control" over Padilla and because he was personally involved in Padilla's military detention. Id., at 707-708. The Court of Appeals also affirmed the District Court's holding that it has jurisdiction over the Secretary under New York's long-arm statute. Id., at 708-710.


[35] Reaching the merits, the Court of Appeals held that the President lacks authority to detain Padilla militarily. Id., at 710-724. The court concluded that neither the President's Commander-in-Chief power nor the AUMF authorizes military detentions of American citizens captured on American soil. Id., at 712-718, 722-723. To the contrary, the Court of Appeals found in both our case law and in the Non-Detention Act, 18 U. S. C. §4001(a),*fn6 a strong presumption against domestic military detention of citizens absent explicit congressional authorization. 352 F. 3d, at 710-722. Accordingly, the court granted the writ of habeas corpus and directed the Secretary to release Padilla from military custody within 30 days. Id., at 724.


[36] We granted the Government's petition for certiorari to review the Court of Appeals' rulings with respect to the jurisdictional and the merits issues, both of which raise important questions of federal law. 540 U. S. ___ (2004).*fn7


[37] The question whether the Southern District has jurisdiction over Padilla's habeas petition breaks down into two related subquestions. First, who is the proper respondent to that petition? And second, does the Southern District have jurisdiction over him or her? We address these questions in turn.


[38] I.


[39] The federal habeas statute straightforwardly provides that the proper respondent to a habeas petition is "the person who has custody over [the petitioner]." 28 U. S. C. §2242; see also §2243 ("The writ, or order to show cause shall be directed to the person having custody of the person detained"). The consistent use of the definite article in reference to the custodian indicates that there is generally only one proper respondent to a given prisoner's habeas petition. This custodian, moreover, is "the person" with the ability to produce the prisoner's body before the habeas court. Ibid. We summed up the plain language of the habeas statute over 100 years ago in this way: "[T]hese provisions contemplate a proceeding against some person who has the immediate custody of the party detained, with the power to produce the body of such party before the court or judge, that he may be liberated if no sufficient reason is shown to the contrary." Wales v. Whitney, 114 U. S. 564, 574 (1885) (emphasis added); see also Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 494-495 (1973) ("The writ of habeas corpus" acts upon "the person who holds [the detainee] in what is alleged to be unlawful custody," citing Wales, supra, at 574); Braden, supra, at 495 (" `[T]his writ ... is directed to ... [the] jailer,' " quoting In the Matter of Jackson, 15 Mich. 417, 439-440 (1867)).


[40] In accord with the statutory language and Wales' immediate custodian rule, longstanding practice confirms that in habeas challenges to present physical confinement -- "core challenges" -- the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official. See, e.g., Hogan v. Hanks, 97 F. 3d 189, 190 (CA7 1996), Brittingham v. United States, 982 F. 2d 378, 379 (CA9 1992); Blango v. Thornburgh, 942 F. 2d 1487, 1491-1492 (CA10 1991) (per curiam); Brennan v. Cunningham, 813 F. 2d 1, 12 (CA1 1987); Guerra v. Meese, 786 F. 2d 414, 416 (CADC 1986); Billiteri v. United States Bd. of Parole, 541 F. 2d 938, 948 (CA2 1976); Sanders v. Bennett, 148 F. 2d 19, 20 (CADC 1945); Jones v. Biddle, 131 F. 2d 853, 854 (CA8 1942).*fn8 No exceptions to this rule, either recognized*fn9 or proposed, see post, at 4-5 (Kennedy, J., concurring), apply here.


[41] If the Wales immediate custodian rule applies in this case, Commander Marr -- the equivalent of the warden at the military brig -- is the proper respondent, not Secretary Rumsfeld. See Al-Marri v. Rumsfeld, 360 F. 3d 707, 708-709 (CA7 2004) (holding in the case of an alleged enemy combatant detained at the Consolidated Naval Brig, the proper respondent is Commander Marr, not Secretary Rumsfeld); Monk v. Secretary of the Navy, 793 F. 2d 364, 369 (CADC 1986) (holding that the proper respondent in a habeas action brought by a military prisoner is the commandant of the military detention facility, not the Secretary of the Navy); cf. 10 U. S. C. §951(c) (providing that the Commanding Officer of a military correctional facility "shall have custody and control" of the prisoners confined therein). Neither Padilla, nor the courts below, nor Justice Stevens' dissent deny the general applicability of the immediate custodian rule to habeas petitions challenging physical custody. Post, at 4. They argue instead that the rule is flexible and should not apply on the "unique facts" of this case. Brief for Respondents 44. We disagree.


[42] First, Padilla notes that the substantive holding of Wales -- that a person released on his own recognizance is not "in custody" for habeas purposes --was disapproved in Hensley v. Municipal Court, San Jose&nbhyph;Milpitas Judicial Dist., Santa Clara Cty., 411 U. S. 345, 350, n. 8 (1973), as part of this Court's expanding definition of "custody" under the habeas statute.*fn10 Padilla seems to contend, and the dissent agrees, post, at 7, that because we no longer require physical detention as a prerequisite to habeas relief, the immediate custodian rule, too, must no longer bind us, even in challenges to physical custody. That argument, as the Seventh Circuit aptly concluded, is a "non sequitur." Al-Marri, supra, at 711. That our understanding of custody has broadened to include restraints short of physical confinement does nothing to undermine the rationale or statutory foundation of Wales' immediate custodian rule where physical custody is at issue. Indeed, as the cases cited above attest, it has consistently been applied in this core habeas context within the United States.*fn11


[43] The Court of Appeals' view that we have relaxed the immediate custodian rule in cases involving prisoners detained for "other than federal criminal violations," and that in such cases the proper respondent is the person exercising the "legal reality of control" over the petitioner, suffers from the same logical flaw. 352 F. 3d, at 705, 707. Certainly the statute itself makes no such distinction based on the source of the physical detention. Nor does our case law support a deviation from the immediate custodian rule here. Rather, the cases cited by Padilla stand for the simple proposition that the immediate physical custodian rule, by its terms, does not apply when a habeas petitioner challenges something other than his present physical confinement.


[44] In Braden, for example, an Alabama prisoner filed a habeas petition in the Western District of Kentucky. He did not contest the validity of the Alabama conviction for which he was confined, but instead challenged a detainer lodged against him in Kentucky state court. Noting that petitioner sought to challenge a "confinement that would be imposed in the future," we held that petitioner was "in custody" in Kentucky by virtue of the detainer. 410 U. S., at 488-489. In these circumstances, the Court held that the proper respondent was not the prisoner's immediate physical custodian (the Alabama warden), but was instead the Kentucky court in which the detainer was lodged. This made sense because the Alabama warden was not "the person who [held] him in what [was] alleged to be unlawful custody." Id., at 494-495 (citing Wales, 114 U. S., at 574); Hensley, supra, at 351, n. 9 (observing that the petitioner in Braden "was in the custody of Kentucky officials for purposes of his habeas corpus action"). Under Braden, then, a habeas petitioner who challenges a form of "custody" other than present physical confinement may name as respondent the entity or person who exercises legal control with respect to the challenged "custody." But nothing in Braden supports departing from the immediate custodian rule in the traditional context of challenges to present physical confinement. See Al-Marri, supra, at 711-712; Monk, supra, at 369. To the contrary, Braden cited Wales favorably and reiterated the traditional rule that a prisoner seeking release from confinement must sue his "jailer." 410 U. S., at 495 (internal quotation marks omitted).


[45] For the same reason, Strait v. Laird, 406 U. S. 341 (1972), does not aid Padilla. Strait involved an inactive reservist domiciled in California who filed a §2241 petition seeking relief from his military obligations. We noted that the reservist's "nominal" custodian was a commanding officer in Indiana who had charge of petitioner's Army records. Id., at 344. As in Braden, the immediate custodian rule had no application because petitioner was not challenging any present physical confinement.


[46] In Braden and Strait, the immediate custodian rule did not apply because there was no immediate physical custodian with respect to the "custody" being challenged. That is not the case here: Commander Marr exercises day-to-day control over Padilla's physical custody. We have never intimated that a habeas petitioner could name someone other than his immediate physical custodian as respondent simply because the challenged physical custody does not arise out of a criminal conviction. Nor can we do so here just because Padilla's physical confinement stems from a military order by the President.


[47] It follows that neither Braden nor Strait supports the Court of Appeals' conclusion that Secretary Rumsfeld is the proper respondent because he exercises the "legal reality of control" over Padilla.*fn12 As we have explained, identification of the party exercising legal control only comes into play when there is no immediate physical custodian with respect to the challenged "custody." In challenges to present physical confinement, we reaffirm that the immediate custodian, not a supervisory official who exercises legal control, is the proper respondent. If the "legal control" test applied to physical-custody challenges, a convicted prisoner would be able to name the State or the Attorney General as a respondent to a §2241 petition. As the statutory language, established practice, and our precedent demonstrate, that is not the case.*fn13


[48] At first blush Ex parte Endo, 323 U. S. 283 (1944), might seem to lend support to Padilla's "legal control" argument. There, a Japanese-American citizen interned in California by the War Relocation Authority (WRA) sought relief by filing a §2241 petition in the Northern District of California, naming as a respondent her immediate custodian. After she filed the petition, however, the Government moved her to Utah. Thus, the prisoner's immediate physical custodian was no longer within the jurisdiction of the District Court. We held, nonetheless, that the Northern District "acquired jurisdiction in this case and that [Endo's] removal ... did not cause it to lose jurisdiction where a person in whose custody she is remains within the district." 323 U. S., at 306. We held that, under these circumstances, the assistant director of the WRA, who resided in the Northern District, would be an "appropriate respondent" to whom the District Court could direct the writ. Id., at 304-305.


[49] While Endo did involve a petitioner challenging her present physical confinement, it did not, as Padilla and Justice Stevens contend, hold that such a petitioner may properly name as respondent someone other than the immediate physical custodian. Post, at 7-8 (citing Endo as supporting a "more functional approach" that allows habeas petitioners to name as respondent an individual with "control" over the petitioner). Rather, the Court's holding that the writ could be directed to a supervisory official came not in our holding that the District Court initially acquired jurisdiction -- it did so because Endo properly named her immediate custodian and filed in the district of confinement -- but in our holding that the District Court could effectively grant habeas relief despite the Government-procured absence of petitioner from the Northern District.*fn14 Thus, Endo stands for the important but limited proposition that when the Government moves a habeas petitioner after she properly files a petition naming her immediate custodian, the District Court retains jurisdiction and may direct the writ to any respondent within its jurisdiction who has legal authority to effectuate the prisoner's release.


[50] Endo's holding does not help respondents here. Padilla was moved from New York to South Carolina before his lawyer filed a habeas petition on his behalf. Unlike the District Court in Endo, therefore, the Southern District never acquired jurisdiction over Padilla's petition.


[51] Padilla's argument reduces to a request for a new exception to the immediate custodian rule based upon the "unique facts" of this case. While Padilla's detention is undeniably unique in many respects, it is at bottom a simple challenge to physical custody imposed by the Executive -- the traditional core of the Great Writ. There is no indication that there was any attempt to manipulate behind Padilla's transfer -- he was taken to the same facility where other al Qaeda members were already being held, and the Government did not attempt to hide from Padilla's lawyer where it had taken him. Infra, at 20-21 and n. 17; post, at 5 (Kennedy, J., concurring). His detention is thus not unique in any way that would provide arguable basis for a departure from the immediate custodian rule. Accordingly, we hold that Commander Marr, not Secretary Rumsfeld, is Padilla's custodian and the proper respondent to his habeas petition.


[52] II.


[53] We turn now to the second subquestion. District courts are limited to granting habeas relief "within their respective jurisdictions." 28 U. S. C. §2241(a). We have interpreted this language to require "nothing more than that the court issuing the writ have jurisdiction over the custodian." Braden, 410 U. S., at 495. Thus, jurisdiction over Padilla's habeas petition lies in the Southern District only if it has jurisdiction over Commander Marr. We conclude it does not.


[54] Congress added the limiting clause -- "within their respective jurisdictions" -- to the habeas statute in 1867 to avert the "inconvenient [and] potentially embarrassing" possibility that "every judge anywhere [could] issue the Great Writ on behalf of applicants far distantly removed from the courts whereon they sat." Carbo v. United States, 364 U. S. 611, 617 (1961). Accordingly, with respect to habeas petitions "designed to relieve an individual from oppressive confinement," the traditional rule has always been that the Great Writ is "issuable only in the district of confinement." Id., at 618.


[55] Other portions of the habeas statute support this commonsense reading of §2241(a). For example, if a petitioner seeks habeas relief in the court of appeals, or from this Court or a Justice thereof, the petition must "state the reasons for not making application to the district court of the district in which the applicant is held." 28 U. S. C. §2242 (emphases added). Moreover, the court of appeals, this Court, or a Justice thereof "may decline to entertain an application for a writ of habeas corpus and may transfer the application ... to the district court having jurisdiction to entertain it." §2241(b) (emphasis added). The Federal Rules similarly provide that an "application for a writ of habeas corpus must be made to the appropriate district court." Fed. Rule App. Proc. 22(a) (emphasis added).


[56] Congress has also legislated against the background of the "district of confinement" rule by fashioning explicit exceptions to the rule in certain circumstances. For instance, §2241(d) provides that when a petitioner is serving a state criminal sentence in a State that contains more than one federal district, he may file a habeas petition not only "in the district court for the district wherein [he] is in custody," but also "in the district court for the district within which the State court was held which convicted and sentenced him;" and "each of such district courts shall have concurrent jurisdiction to entertain the application." Similarly, until Congress directed federal criminal prisoners to file certain post-conviction petitions in the sentencing courts by adding §2255 to the habeas statute, federal prisoners could litigate such collateral attacks only in the district of confinement. See United States v. Hayman, 342 U. S. 205, 212-219 (1952). Both of these provisions would have been unnecessary if, as the Court of Appeals believed, §2241's general habeas provisions permit a prisoner to file outside the district of confinement.


[57] The plain language of the habeas statute thus confirms the general rule that for core habeas petitions challenging present physical confinement, jurisdiction lies in only one district: the district of confinement. Despite this ample statutory and historical pedigree, Padilla contends, and the Court of Appeals held, that the district of confinement rule no longer applies to core habeas challenges. Rather, Padilla, as well as today's dissenters, post, at 8-10, urge that our decisions in Braden and Strait stand for the proposition that jurisdiction will lie in any district in which the respondent is amenable to service of process. We disagree.


[58] Prior to Braden, we had held that habeas jurisdiction depended on the presence of both the petitioner and his custodian within the territorial confines of the district court. See Ahrens v. Clark, 335 U. S. 188, 190-192 (1948). By allowing an Alabama prisoner to challenge a Kentucky detainer in the Western District of Kentucky, Braden changed course and held that habeas jurisdiction requires only "that the court issuing the writ have jurisdiction over the custodian." 410 U. S., at 495.


[59] But we fail to see how Braden's requirement of jurisdiction over the respondent alters the district of confinement rule for challenges to present physical custody. Braden itself did not involve such a challenge; rather, Braden challenged his future confinement in Kentucky by suing his Kentucky custodian. We reasoned that "[u]nder these circumstances it would serve no useful purpose to apply the Ahrens rule and require that the action be brought in Alabama." Id., at 499. In habeas challenges to present physical confinement, by contrast, the district of confinement is synonymous with the district court that has territorial jurisdiction over the proper respondent. This is because, as we have held, the immediate custodian rule applies to core habeas challenges to present physical custody. By definition, the immediate custodian and the prisoner reside in the same district.


[60] Rather than focusing on the holding and historical context of Braden, Justice Stevens, post, at 8, like the Court of Appeals, seizes on dicta in which we referred to "service of process" to contend that the Southern District could assert jurisdiction over Secretary Rumsfeld under New York's long-arm statute. See Braden, 410 U. S., at 495 ("So long as the custodian can be reached by service of process, the court can issue a writ `within its jurisdiction' ... even if the prisoner himself is confined outside the court's territorial jurisdiction"). But that dicta did not indicate that a custodian may be served with process outside of the district court's territorial jurisdiction. To the contrary, the facts and holding of Braden dictate the opposite inference. Braden served his Kentucky custodian in Kentucky. Accordingly, we concluded that the Western District of Kentucky had jurisdiction over the petition "since the respondent was properly served in that district." Id., at 500 (emphasis added); see also Endo, supra, at 304-305 (noting that the court could issue the writ to a WRA official "whose office is at San Francisco, which is within the jurisdiction of the [Northern District of California]"). Thus, Braden in no way authorizes district courts to employ long-arm statutes to gain jurisdiction over custodians who are outside of their territorial jurisdiction. See Al-Marri, 360 F. 3d, at 711; Guerra, 786 F. 2d, at 417. Indeed, in stating its holding, Braden favorably cites Schlanger v. Seamans, 401 U. S. 487 (1971), a case squarely holding that the custodian's absence from the territorial jurisdiction of the district court is fatal to habeas jurisdiction. 410 U. S., at 500. Thus, Braden does not derogate from the traditional district of confinement rule for core habeas petitions challenging present physical custody.


[61] The Court of Appeals also thought Strait supported its long-arm approach to habeas jurisdiction. But Strait offers even less help than Braden. In Strait, we held that the Northern District of California had jurisdiction over Strait's "nominal" custodian -- the commanding officer of the Army records center -- even though he was physically located in Indiana. We reasoned that the custodian was "present" in California "through the officers in the hierarchy of the command who processed [Strait's] application for discharge." 406 U. S., at 345. The Strait Court contrasted its broad view of "presence" in the case of a nominal custodian with a " `commanding officer who is responsible for the day to day control of his subordinates,' " who would be subject to habeas jurisdiction only in the district where he physically resides. Ibid. (quoting Arlen v. Laird, 451 F. 2d 684, 687 (CA2 1971)).


[62] The Court of Appeals, much like Justice Stevens' dissent, reasoned that Secretary Rumsfeld, in the same way as Strait's commanding officer, was "present" in the Southern District through his subordinates who took Padilla into military custody. 352 F. 3d, at 709-710; post, at 8. We think not.


[63] Strait simply has no application to the present case. Strait predated Braden, so the then-applicable Ahrens rule required that both the petitioner and his custodian be present in California. Thus, the only question was whether Strait's commanding officer was present in California notwithstanding his physical absence from the district. Distinguishing Schlanger, supra, we held that it would "exalt fiction over reality" to require Strait to sue his "nominal custodian" in Indiana when Strait had always resided in California and had his only meaningful contacts with the Army there. 406 U. S., at 344-346. Only under these limited circumstances did we invoke concepts of personal jurisdiction to hold that the custodian was "present" in California through the actions of his agents. Id., at 345.


[64] Here, by contrast, Padilla seeks to challenge his present physical custody in South Carolina. Because the immediate-custodian rule applies to such habeas challenges, the proper respondent is Commander Marr, who is also present in South Carolina. There is thus no occasion to designate a "nominal" custodian and determine whether he or she is "present" in the same district as petitioner.*fn15 Under Braden and the district of confinement rule, as we have explained, Padilla must file his habeas action in South Carolina. Were we to extend Strait's limited exception to the territorial nature of habeas jurisdiction to the context of physical-custody challenges, we would undermine, if not negate, the purpose of Congress in amending the habeas statute in 1867.


[65] The proviso that district courts may issue the writ only "within their respective jurisdictions" forms an important corollary to the immediate custodian rule in challenges to present physical custody under §2241. Together they compose a simple rule that has been consistently applied in the lower courts, including in the context of military detentions: Whenever a §2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement. See Al-Marri, supra, at 710, 712 (alleged enemy combatant detained at Consolidated Naval Brig must file petition in the District of South Carolina; collecting cases dismissing §2241 petitions filed outside the district of confinement); Monk, 793 F. 2d, at 369 (court-martial convict must file in district of confinement).*fn16


[66] This rule, derived from the terms of the habeas statute, serves the important purpose of preventing forum shopping by habeas petitioners. Without it, a prisoner could name a high-level supervisory official as respondent and then sue that person wherever he is amenable to long-arm jurisdiction. The result would be rampant forum shopping, district courts with overlapping jurisdiction, and the very inconvenience, expense, and embarrassment Congress sought to avoid when it added the jurisdictional limitation 137 years ago.


[67] III.


[68] Justice Stevens' dissent, not unlike the Court of Appeals' decision, rests on the mistaken belief that we have made various exceptions to the immediate custodian and district of confinement rules whenever "exceptional," "special," or "unusual" cases have arisen. Post, at 1, 4, 8, n. 5. We have addressed most of his contentions in the foregoing discussion, but we briefly touch on a few additional points.


[69] Apparently drawing a loose analogy to Endo, Justice Stevens asks us to pretend that Padilla and his immediate custodian were present in the Southern District at the time counsel filed the instant habeas petition, thus rendering jurisdiction proper. Post, at 4-5. The dissent asserts that the Government "depart[ed] from the time-honored practice of giving one's adversary fair notice of an intent to present an important motion to the court," when on June 9 it moved ex parte to vacate the material witness warrant and allegedly failed to immediately inform counsel of its intent to transfer Padilla to military custody in South Carolina. Ibid.; cf. n. 3, supra. Constructing a hypothetical "scenario," the dissent contends that if counsel had been immediately informed, she "would have filed the habeas petition then and there," while Padilla remained in the Southern District, "rather than waiting two days." Post, at 4-5. Therefore, Justice Stevens concludes, the Government's alleged misconduct "justifies treating the habeas petition as the functional equivalent of one filed two days earlier." Post, at 5 ("[W]e should not permit the Government to obtain a tactical advantage as a consequence of an ex parte proceeding").


[70] The dissent cites no authority whatsoever for its extraordinary proposition that a district court can exercise statutory jurisdiction based on a series of events that did not occur, or that jurisdiction might be premised on "punishing" alleged Government misconduct. The lower courts -- unlike the dissent -- did not perceive any hint of Government misconduct or bad faith that would warrant extending Endo to a case where both the petitioner and his immediate custodian were outside of the district at the time of filing. Not surprisingly, then, neither Padilla nor the lower courts relied on the dissent's counterfactual theory to argue that habeas jurisdiction was proper. Finding it contrary to our well-established precedent, we are not persuaded either.*fn17


[71] The dissent contends that even if we do not indulge its hypothetical scenario, the Court has made "numerous exceptions" to the immediate custodian and district of confinement rules, rendering our bright-line rule "far from bright." Post, at 6. Yet the dissent cannot cite a single case in which we have deviated from the longstanding rule we reaffirm today -- that is, a case in which we allowed a habeas petitioner challenging his present physical custody within the United States to name as respondent someone other than the immediate custodian and to file somewhere other than the district of confinement.*fn18 If Justice Stevens' view were accepted, district courts would be consigned to making ad hoc determinations as to whether the circumstances of a given case are "exceptional," "special," or "unusual" enough to require departure from the jurisdictional rules this Court has consistently applied. We do not think Congress intended such a result.


[72] Finally, the dissent urges us to bend the jurisdictional rules because the merits of this case are indisputably of "profound importance," post, at 1, 7. But it is surely just as necessary in important cases as in unimportant ones that courts take care not to exceed their "respective jurisdictions" established by Congress.


[73] The District of South Carolina, not the Southern District of New York, was the district court in which Padilla should have brought his habeas petition. We therefore reverse the judgment of the Court of Appeals and remand the case for entry of an order of dismissal without prejudice.


[74] It is so ordered.


[75] Kennedy, J., concurring


[76] Justice Kennedy, with whom Justice O'Connor joins, concurring.


[77] Though I join the opinion of the Court, this separate opinion is added to state my understanding of how the statute should be interpreted in light of the Court's holding. The Court's analysis relies on two rules. First, the habeas action must be brought against the immediate custodian. Second, when an action is brought in the district court, it must be filed in the district court whose territorial jurisdiction includes the place where the custodian is located.


[78] These rules, however, are not jurisdictional in the sense of a limitation on subject-matter jurisdiction. Ante, at 5, n. 7. That much is clear from the many cases in which petitions have been heard on the merits despite their non-compliance with either one or both of the rules. See, e.g. Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 495 (1973); Strait v. Laird, 406 U. S. 341, 345 (1972); United States ex rel. Toth v. Quarles, 350 U. S. 11 (1955); Burns v. Wilson, 346 U. S. 137 (1953); Ex parte Endo, 323 U. S. 283 (1944).


[79] In my view, the question of the proper location for a habeas petition is best understood as a question of personal jurisdiction or venue. This view is more in keeping with the opinion in Braden, and its discussion explaining the rules for the proper forum for habeas petitions. 410 U. S., at 493, 500 (indicating that the analysis is guided by "traditional venue considerations" and "traditional principles of venue"); see also Moore v. Olson, 368 F. 3d 757, 759-760 (CA7 2004) (suggesting that the territorial-jurisdiction rule is a venue rule, and the immediate-custodian rule is a personal jurisdiction rule). This approach is consistent with the reference in the statute to the "respective jurisdictions" of the district court. 28 U. S. C. §2241. As we have noted twice this Term, the word "jurisdiction" is susceptible of different meanings, not all of which refer to the power of a federal court to hear a certain class of cases. Kontrick v. Ryan, 540 U. S. ___ (2004); Scarborough v. Principi, 541 U. S. ___ (2004). The phrase "respective jurisdictions" does establish a territorial restriction on the proper forum for habeas petitions, but does not of necessity establish that the limitation goes to the power of the court to hear the case.


[80] Because the immediate-custodian and territorial-jurisdiction rules are like personal jurisdiction or venue rules, objections to the filing of petitions based on those grounds can be waived by the Government. Moore, supra, at 759; cf. Endo, supra, at 305 ("The fact that no respondent was ever served with process or appeared in the proceedings is not important. The United States resists the issuance of a writ. A cause exists in that state of the proceedings and an appeal lies from denial of a writ without the appearance of a respondent"). For the same reason, the immediate-custodian and territorial rules are subject to exceptions, as acknowledged in the Court's opinion. Ante, at 7, n. 9, 9-13, 16-18. This does not mean that habeas petitions are governed by venue rules and venue considerations that apply to other sorts of civil lawsuits. Although habeas actions are civil cases, they are not automatically subject to all of the Federal Rules of Civil Procedure. See Fed. Rule Civ. Proc. 81(a)(2) ("These rules are applicable to proceedings for ... habeas corpus ... to the extent that the practice in such proceedings is not set forth in statutes of the United States, the Rules Governing Section 2254 Cases, or the Rules Governing Section 2255 Proceedings"). Instead, these forum-location rules for habeas petitions are based on the habeas statutes and the cases interpreting them. Furthermore, the fact that these habeas rules are subject to exceptions does not mean that, in the exceptional case, a petition may be properly filed in any one of the federal district courts. When an exception applies, see, e.g., Rasul v. Bush, post, p. ___, courts must still take into account the considerations that in the ordinary case are served by the immediate custodian rule, and, in a similar fashion, limit the available forum to the one with the most immediate connection to the named custodian.


[81] I would not decide today whether these habeas rules function more like rules of personal jurisdiction or rules of venue. It is difficult to describe the precise nature of these restrictions on the filing of habeas petitions, as an examination of the Court's own opinions in this area makes clear. Compare, e.g., Ahrens v. Clark, 335 U. S. 188 (1948), with Schlanger v. Seamans, 401 U. S. 487, 491 (1971), and Braden, supra, at 495. The precise question of how best to characterize the statutory direction respecting where the action must be filed need not be resolved with finality in this case. Here there has been no waiver by the Government; there is no established exception to the immediate-custodian rule or to the rule that the action must be brought in the district court with authority over the territory in question; and there is no need to consider some further exception to protect the integrity of the writ or the rights of the person detained.


[82] For the purposes of this case, it is enough to note that, even under the most permissive interpretation of the habeas statute as a venue provision, the Southern District of New York was not the proper place for this petition. As the Court concludes, in the ordinary case of a single physical custody within the borders of the United States, where the objection has not been waived by the Government, the immediate-custodian and territorial-jurisdiction rules must apply. Ante, at 23. I also agree with the arguments from statutory text and case law that the Court marshals in support of these two rules. Ante, at 5-6, 13-14. Only in an exceptional case may a court deviate from those basic rules to hear a habeas petition filed against some person other than the immediate custodian of the prisoner, or in some court other than the one in whose territory the custodian may be found.


[83] The Court has made exceptions in the cases of nonphysical custody, see, e.g, Strait, 406 U. S., at 345, of dual custody, see, e.g., Braden, 410 U. S., at 500, and of removal of the prisoner from the territory of a district after a petition has been filed, see, e.g., Endo, 323 U. S., at 306; see also ante, at 11-12, 15-16. In addition, I would acknowledge an exception if there is an indication that the Government's purpose in removing a prisoner were to make it difficult for his lawyer to know where the habeas petition should be filed, or where the Government was not forthcoming with respect to the identity of the custodian and the place of detention. In cases of that sort, habeas jurisdiction would be in the district court from whose territory the petitioner had been removed. In this case, if the Government had removed Padilla from the Southern District of New York but refused to tell his lawyer where he had been taken, the District Court would have had jurisdiction over the petition. Or, if the Government did inform the lawyer where a prisoner was being taken but kept moving him so a filing could not catch up to the prisoner, again, in my view, habeas jurisdiction would lie in the district or districts from which he had been removed.


[84] None of the exceptions apply here. There is no indication that the Government refused to tell Padilla's lawyer where he had been taken. The original petition demonstrates that the lawyer knew where Padilla was being held at that time. Ante, at 21, n. 17. In these circumstances, the basic rules apply, and the District of South Carolina was the proper forum. The present case demonstrates the wisdom of those rules.


[85] Both Padilla's change in location and his change of custodian reflected a change in the Government's rationale for detaining him. He ceased to be held under the authority of the criminal justice system, see 18 U. S. C. §3144, and began to be held under that of the military detention system. Rather than being designed to play games with forums, the Government's removal of Padilla reflected the change in the theory on which it was holding him. Whether that theory is a permissible one, of course, is a question the Court does not reach today.


[86] The change in custody, and the underlying change in rationale, should be challenged in the place the Government has brought them to bear and against the person who is the immediate representative of the military authority that is detaining him. That place is the District of South Carolina, and that person is Commander Marr. The Second Circuit erred in holding that the Southern District of New York was a proper forum for Padilla's petition. With these further observations, I join the opinion and judgment of the Court.


[87] Stevens, J., dissenting


[88] Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.


[89] The petition for a writ of habeas corpus filed in this case raises questions of profound importance to the Nation. The arguments set forth by the Court do not justify avoidance of our duty to answer those questions. It is quite wrong to characterize the proceeding as a "simple challenge to physical custody," ante, at 13, that should be resolved by slavish application of a "bright-line rule," ante, at 21, designed to prevent "rampant forum shopping" by litigious prison inmates, ante, at 19. As the Court's opinion itself demonstrates, that rule is riddled with exceptions fashioned to protect the high office of the Great Writ. This is an exceptional case that we clearly have jurisdiction to decide.


[90] I.


[91] In May 2002, a grand jury convened in the Southern District of New York was conducting an investigation into the September 11, 2001, terrorist attacks. In response to an application by the Department of Justice, the Chief Judge of the District issued a material witness warrant authorizing Padilla's arrest when his plane landed in Chicago on May 8.*fn19 Pursuant to that warrant, agents of the Department of Justice took Padilla (hereinafter respondent) into custody and transported him to New York City, where he was detained at the Metropolitan Correctional Center. On May 15, the court appointed Donna R. Newman, a member of the New York bar, to represent him. She conferred with respondent in person and filed motions on his behalf, seeking his release on the ground that his incarceration was unauthorized and unconstitutional. The District Court scheduled a hearing on those motions for Tuesday, June 11, 2002.


[92] On Sunday, June 9, 2002, before that hearing could occur, the President issued a written command to the Secretary of Defense concerning respondent. "Based on the information available to [him] from all sources," the President determined that respondent is an "enemy combatant," that he is "closely associated with al Qaeda, an international terrorist organization with which the United States is at war," and that he possesses intelligence that, "if communicated to the U. S., would aid U. S. efforts to prevent attacks by al Qaeda" on U. S. targets. App. A to Pet. for Cert. 57a. The command stated that "it is in the interest of the United States" and "consistent with U. S. law and the laws of war for the Secretary of Defense to detain Mr. Padilla as an enemy combatant." Id., at 58a. The President's order concluded: "Accordingly, you are directed to receive Mr. Padilla from the Department of Justice and to detain him as an enemy combatant." Ibid.


[93] On the same Sunday that the President issued his order, the Government notified the District Court in an ex parte proceeding that it was withdrawing its grand jury subpoena, and it asked the court to enter an order vacating the material witness warrant. Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564, 571 (SDNY 2002). In that proceeding, in which respondent was not represented, the Government informed the court that the President had designated respondent an enemy combatant and had directed the Secretary of Defense, petitioner Donald Rumsfeld, to detain respondent. Ibid. The Government also disclosed that the Department of Defense would take custody of respondent and immediately transfer him to South Carolina. The District Court complied with the Government's request and vacated the warrant.*fn20


[94] On Monday, June 10, 2002, the Attorney General publicly announced respondent's detention and transfer "to the custody of the Defense Department," which he called "a significant step forward in the War on Terrorism." Amended Pet. for Writ of Habeas Corpus, Exh. A, p. 1, Record, Doc. 4. On June 11, 2002, presumably in response to that announcement, Newman commenced this proceeding by filing a petition for a writ of habeas corpus in the Southern District of New York. 233 F. Supp. 2d, at 571. At a conference on that date, which had been originally scheduled to address Newman's motion to vacate the material witness warrant, the Government conceded that Defense Department personnel had taken custody of respondent in the Southern District of New York. Id., at 571-572.


[95] II.


[96] All Members of this Court agree that the immediate custodian rule should control in the ordinary case and that habeas petitioners should not be permitted to engage in forum shopping. But we also all agree with Judge Bork that "special circumstances" can justify exceptions from the general rule. Demjanjuk v. Meese, 784 F.2d 1114, 1116 (CADC 1986). See ante, at 22, n. 18. Cf. ante, at 2 (Kennedy, J., concurring). More narrowly, we agree that if jurisdiction was proper when the petition was filed, it cannot be defeated by a later transfer of the prisoner to another district. Ex parte Endo, 323 U. S. 283, 306 (1944). See ante, at 12-13.


[97] It is reasonable to assume that if the Government had given Newman, who was then representing respondent in an adversary proceeding, notice of its intent to ask the District Court to vacate the outstanding material witness warrant and transfer custody to the Department of Defense, Newman would have filed the habeas petition then and there, rather than waiting two days.*fn21 Under that scenario, respondent's immediate custodian would then have been physically present in the Southern District of New York carrying out orders of the Secretary of Defense. Surely at that time Secretary Rumsfeld, rather than the lesser official who placed the handcuffs on petitioner, would have been the proper person to name as a respondent to that petition.


[98] The difference between that scenario and the secret transfer that actually occurred should not affect our decision, for we should not permit the Government to obtain a tactical advantage as a consequence of an ex parte proceeding. The departure from the time-honored practice of giving one's adversary fair notice of an intent to present an important motion to the court justifies treating the habeas application as the functional equivalent of one filed two days earlier. See Baldwin v. Hale, 1 Wall. 223, 233 (1864) ("Common justice requires that no man shall be condemned in his person or property without notice and an opportunity to make his defence"). "The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected." Harris v. Nelson, 394 U. S. 286, 291 (1969). But even if we treat respondent's habeas petition as having been filed in the Southern District after the Government removed him to South Carolina, there is ample precedent for affording special treatment to this exceptional case, both by recognizing Secretary Rumsfeld as the proper respondent and by treating the Southern District as the most appropriate venue.


[99] Although the Court purports to be enforcing a "bright-line rule" governing district courts' jurisdiction, ante, at 21, an examination of its opinion reveals that the line is far from bright. Faced with a series of precedents emphasizing the writ's "scope and flexibility," Harris, 394 U. S., at 291, the Court is forced to acknowledge the numerous exceptions we have made to the immediate custodian rule. The rule does not apply, the Court admits, when physical custody is not at issue, ante, at 8, or when American citizens are confined overseas, ante, at 19, n. 16, or when the petitioner has been transferred after filing, ante, at 12-13, or when the custodian is " `present' " in the district through his agents' conduct, ante, at 17. In recognizing exception upon exception and corollaries to corollaries, the Court itself persuasively demonstrates that the rule is not ironclad. It is, instead, a workable general rule that frequently gives way outside the context of " `core challenges' " to Executive confinement. Ante, at 6.


[100] In the Court's view, respondent's detention falls within the category of " `core challenges' " because it is "not unique in any way that would provide arguable basis for a departure from the immediate custodian rule." Ante, at 13. It is, however, disingenuous at best to classify respondent's petition with run-of-the-mill collateral attacks on federal criminal convictions. On the contrary, this case is singular not only because it calls into question decisions made by the Secretary himself, but also because those decisions have created a unique and unprecedented threat to the freedom of every American citizen.


[101] "[W]e have consistently rejected interpretations of the habeas corpus statute that would suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements." Hensley v. Municipal Court, San Jose&nbhyph;Milpitas Judicial Dist., Santa Clara Cty., 411 U. S. 345, 350 (1973). With respect to the custody requirement, we have declined to adopt a strict reading of Wales v. Whitney, 114 U. S. 564 (1885), see Hensley, 411 U. S., at 350, n. 8, and instead have favored a more functional approach that focuses on the person with the power to produce the body. See Endo, 323 U. S., at 306-307.*fn22 In this case, the President entrusted the Secretary of Defense with control over respondent. To that end, the Secretary deployed Defense Department personnel to the Southern District with instructions to transfer respondent to South Carolina. Under the President's order, only the Secretary -- not a judge, not a prosecutor, not a warden -- has had a say in determining respondent's location. As the District Court observed, Secretary Rumsfeld has publicly shown "both his familiarity with the circumstances of Padilla's detention, and his personal involvement in the handling of Padilla's case." 233 F. Supp. 2d, at 574. Having "emphasized and jealously guarded" the Great Writ's "ability to cut through barriers of form and procedural mazes," Harris, 394 U. S., at 291, surely we should acknowledge that the writ reaches the Secretary as the relevant custodian in this case.


[102] Since the Secretary is a proper custodian, the question whether the petition was appropriately filed in the Southern District is easily answered. "So long as the custodian can be reached by service of process, the court can issue a writ `within its jurisdiction' requiring that the prisoner be brought before the court for a hearing on his claim . . . even if the prisoner himself is confined outside the court's territorial jurisdiction." Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 495 (1973).*fn23 See also Endo, 323 U. S., at 306 ("[T]he court may act if there is a respondent within reach of its process who has custody of the petitioner"). In this case, Secretary Rumsfeld no doubt has sufficient contacts with the Southern District properly to be served with process there. The Secretary, after all, ordered military personnel to that forum to seize and remove respondent.


[103] It bears emphasis that the question of the proper forum to determine the legality of Padilla's incarceration is not one of federal subject-matter jurisdiction. See ante, at 5, n. 7; ante, at 1 (Kennedy, J., concurring). Federal courts undoubtedly have the authority to issue writs of habeas corpus to custodians who can be reached by service of process "within their respective jurisdictions." 28 U. S. C. §2241(a). Rather, the question is one of venue, i.e., in which federal court the habeas inquiry may proceed.*fn24 The Government purports to exercise complete control, free from judicial surveillance, over that placement. Venue principles, however, center on the most convenient and efficient forum for resolution of a case, see Braden, 410 U. S., at 493-494, 499-500 (considering those factors in allowing Alabama prisoner to sue in Kentucky), and on the placement most likely to minimize forum shopping by either party, see Eisel v. Secretary of the Army, 477 F. 2d 1251, 1254 (CADC 1973) (preferring such functional considerations to "blind incantation of words with implied magical properties, such as `immediate custodian' ").*fn25 Cf. Ex parte Bollman, 4 Cranch 75, 136 (1807) ("It would ... be extremely dangerous to say, that because the prisoners were apprehended, not by a civil magistrate, but by the military power, there could be given by law a right to try the persons so seized in any place which the general might select, and to which he might direct them to be carried").


[104] When this case is analyzed under those traditional venue principles, it is evident that the Southern District of New York, not South Carolina, is the more appropriate place to litigate respondent's petition. The Government sought a material witness warrant for respondent's detention in the Southern District, indicating that it would be convenient for its attorneys to litigate in that forum. As a result of the Government's initial forum selection, the District Judge and counsel in the Southern District were familiar with the legal and factual issues surrounding respondent's detention both before and after he was transferred to the Defense Department's custody. Accordingly, fairness and efficiency counsel in favor of preserving venue in the Southern District. In sum, respondent properly filed his petition against Secretary Rumsfeld in the Southern District of New York.


[105] III.


[106] Whether respondent is entitled to immediate release is a question that reasonable jurists may answer in different ways.*fn26 There is, however, only one possible answer to the question whether he is entitled to a hearing on the justification for his detention.*fn27


[107] At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber.*fn28 Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process.


[108] Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.


[109] I respectfully dissent.



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Opinion Footnotes

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[110] *fn1 The AUMF provides in relevant part: "[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." 115 Stat. 224.


[111] *fn2 In short, the President "[d]etermine[d]" that Padilla (1) "is closely associated with al Qaeda, an international terrorist organization with which the United States is at war;" (2) that he "engaged in ... hostile and war-like acts, including ... preparation for acts of international terrorism" against the United States; (3) that he "possesses intelligence" about al Qaeda that "would aid U. S. efforts to prevent attacks by al Qaeda on the United States"; and finally, (4) that he "represents a continuing, present and grave danger to the national security of the United States," such that his military detention "is necessary to prevent him from aiding al Qaeda in its efforts to attack the United States." June 9 Order 5a-6a.


[112] *fn3 Also on June 9, the Government notified the District Court ex parte of the President's Order; informed the court that it was transferring Padilla into military custody in South Carolina and that it was consequently withdrawing its grand jury subpoena of Padilla; and asked the court to vacate the material witness warrant. Padilla ex rel Newman v. Rumsfeld, 233 F. Supp. 2d 564, 671 (SDNY 2002). The court vacated the warrant. Ibid.


[113] *fn4 The court dismissed Commander Marr, Padilla's immediate custodian, reasoning that she would be obliged to obey any order the court directed to the Secretary. 233 F. Supp. 2d, at 583 The court also dismissed President Bush as a respondent, a ruling Padilla does not challenge. Id., at 582-583.


[114] *fn5 Although the District Court upheld the President's authority to detain domestically captured enemy combatants, it rejected the Government's contentions that Padilla has no right to challenge the factual basis for his detention and that he should be denied access to counsel. Instead, the court held that the habeas statute affords Padilla the right to controvert alleged facts, and granted him monitored access to counsel to effectuate that right. Id., at 599-605. Finally, the court announced that after it received Padilla's factual proffer, it would apply a deferential "some evidence" standard to determine whether the record supports the President's designation of Padilla as an enemy combatant. Id., at 605-608.


[115] *fn6 Section 4001(a) provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."


[116] *fn7 The word "jurisdiction," of course, is capable of different interpretations. We use it in the sense that it is used in the habeas statute, 28 U. S. C. §2241(a), and not in the sense of subject-matter jurisdiction of the District Court.


[117] *fn8 In Ahrens v. Clark, 335 U. S. 188 (1948), we left open the question whether the Attorney General is a proper respondent to a habeas petition filed by an alien detained pending deportation. Id., at 189, 193. The lower courts have divided on this question, with the majority applying the immediate custodian rule and holding that the Attorney General is not a proper respondent. Compare Robledo-Gonzales v. Ashcroft, 342 F. 3d 667 (CA7 2003) (Attorney General is not proper respondent); Roman v. Ashcroft, 340 F. 3d 314 (CA6 2003) (same); Vasquez v. Reno, 233 F. 3d 688 (CA1 2000) (same); Yi v. Maugans, 24 F. 3d 500 (CA3 1994) (same), with Armentero v. INS, 340 F. 3d 1058 (CA9 2003) (Attorney General is proper respondent). The Second Circuit discussed the question at some length, but ultimately reserved judgment in Henderson v. INS, 157 F. 3d 106 (1998). Because the issue is not before us today, we again decline to resolve it.


[118] *fn9 We have long implicitly recognized an exception to the immediate custodian rule in the military context where an American citizen is detained outside the territorial jurisdiction of any district court. Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 498 (1973) (discussing the exception); United States ex rel. Toth v. Quarles, 350 U. S. 11 (1955) (court-martial convict detained in Korea named Secretary of the Air Force as respondent); Burns v. Wilson, 346 U. S. 137 (1953) (court-martial convicts detained in Guam named Secretary of Defense as respondent).


[119] *fn10 For other landmark cases addressing the meaning of "in custody" under the habeas statute, see Garlotte v. Fordice, 515 U. S. 39 (1995); Carafas v. LaVallee, 391 U. S. 234 (1968); Peyton v. Rowe, 391 U. S. 54 (1968); Jones v. Cunningham, 371 U. S. 236 (1963).


[120] *fn11 Furthermore, Congress has not substantively amended in more than 130 years the relevant portions of the habeas statute on which Wales based its immediate custodian rule, despite uniform case law embracing the Wales rule in challenges to physical custody.


[121] *fn12 The Court of Appeals reasoned that "only [the Secretary] -- not Commander Marr -- could inform the President that further restraint of Padilla as an enemy combatant is no longer necessary." 352 F. 3d 695, 707 (CA2 2003). Justice Stevens' dissent echoes this argument. Post, at 7-8.


[122] *fn13 Even less persuasive is the Court of Appeals' and the dissent's belief that Secretary Rumsfeld's "unique" and "pervasive" personal involvement in authorizing Padilla's detention justifies naming him as the respondent. 352 F. 3d, at 707-708 (noting that the Secretary "was charged by the President in the June 9 Order with detaining Padilla" and that the Secretary "determined that Padilla would be sent to the brig in South Carolina"); post, at 8. If personal involvement were the standard, "then the prosecutor, the trial judge, or the governor would be named as respondents" in criminal habeas cases. Al-Marri v. Rumsfeld, 360 F. 3d 707, 711 (CA7 2004). As the Seventh Circuit correctly held, the proper respondent is the person responsible for maintaining -- not authorizing -- the custody of the prisoner. Ibid.


[123] *fn14 As we explained: "Th[e] objective [of habeas relief] may be in no way impaired or defeated by the removal of the prisoner from the territorial jurisdiction of the District Court. That end may be served and the decree of the court made effective if a respondent who has custody of the [petitioner] is within reach of the court's process." 323 U. S., at 307.


[124] *fn15 In other words, Commander Marr is the equivalent of the "commanding officer with day to day control" that we distinguished in Strait. 406 U. S., at 345 (internal quotation marks omitted).


[125] *fn16 As a corollary to the previously referenced exception to the immediate custodian rule, n. 8, supra, we have similarly relaxed the district of confinement rule when "Americans citizens confined overseas (and thus outside the territory of any district court) have sought relief in habeas corpus." Braden, 410 U. S., at 498 (citing cases). In such cases, we have allowed the petitioner to name as respondent a supervisory official and file the petition in the district where the respondent resides. Burns v. Wilson, 346 U. S. 137 (1953) (court-martial convicts held in Guam sued Secretary of Defense in the District of Columbia); United States ex rel. Toth v. Quarles, 350 U. S. 11 (1955) (court-martial convict held in Korea sued Secretary of the Air Force in the District of Columbia).


[126] *fn17 On a related note, the dissent argues that the facts as they actually existed at the time of filing should not matter, because "what matters for present purposes are the facts available to [counsel] at the time of filing." Post, at 4-5, n. 3. According to the dissent, because the Government "shrouded . . . in secrecy" the location of Padilla's military custody, counsel was entitled to file in the district where Padilla's presence was "last officially confirmed." Ibid. As with the argument addressed above, neither Padilla nor the District Court -- which was much closer to the facts of the case than we are -- or the Court of Appeals ever suggested that the Government concealed Padilla's whereabouts from counsel, much less contended that such concealment was the basis for habeas jurisdiction in the Southern District. And even if this were a valid legal argument, the record simply does not support the dissent's inference of Government secrecy. The dissent relies solely on a letter written by Padilla's counsel. In that same letter, however, counsel states that she "was informed [on June 10]" that her client had been taken into custody by the Department of Defense and "detain[ed] at a naval military prison." App. 66. When counsel filed Padilla's habeas petition on June 11, she averred that "Padilla is being held in segregation at the high-security Consolidated Naval Brig in Charleston, South Carolina." Pet. for Writ of Habeas Corpus, June 11, 2002, p. 2. The only reasonable inference, particularly in light of Padilla's failure to argue to the contrary, is that counsel was well aware of Padilla's presence in South Carolina when she filed the habeas petition, not that the Government "shrouded" Padilla's whereabouts in secrecy.


[127] *fn18 Instead, Justice Stevens, like the Court of Appeals, relies heavily on Braden, Strait, and other cases involving challenges to something other than present physical custody. Post, at 7-10; post, at 7-8, n. 4 (citing Garlotte v. Fordice, 515 U. S. 39 (1995) (habeas petitioner challenging expired sentence named Governor as respondent; immediate custodian issue not addressed); Middendorf v. Henry, 425 U. S. 25 (1976) (putative habeas class action challenging court-martial procedures throughout the military; immediate custodian issue not addressed)); post, at 9-10 (citing Eisel v. Secretary of the Army, 477 F. 2d 1251 (CADC 1973) (allowing an inactive reservist challenging his military status to name the Secretary of the Army as respondent)). Demjanjuk v. Meese, 784 F. 2d 1114 (CADC 1986), on which the dissent relies, post, at 4, is similarly unhelpful: When, as in that case, a prisoner is held in an undisclosed location by an unknown custodian, it is impossible to apply the immediate custodian and district of confinement rules. That is not the case here, where the identity of the immediate custodian and the location of the appropriate district court are clear. The dissent also cites two cases in which a state prisoner proceeding under 28 U. S. C. §2254 named as respondent the State's officer in charge of penal institutions. Post, at 7, n. 4 (citing California Dept. of Corrections v. Morales, 514 U. S. 499 (1995); Wainwright v. Greenfield, 474 U. S. 284 (1986)). But such cases do not support Padilla's cause. First of all, the respondents did not challenge their designation as inconsistent with the immediate custodian rule. More to the point, Congress has authorized §2254 petitioners challenging present physical custody to name either the warden or the chief state penal officer as a respondent. Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts; Advisory Committee Note to Rule 2(a), 28 U. S. C. pp. 469-470 (adopted in 1976). Congress has made no such provision for §2241 petitioners like Padilla.


[128] *fn19 As its authority for detaining respondent as a material witness, the Government relied on a federal statute that provides: "If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 ... . Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure." 18 U. S. C. §3144.


[129] *fn20 The order vacating the material witness warrant that the District Court entered in the ex parte proceeding on June 9 terminated the Government's lawful custody of respondent. After that order was entered, Secretary Rumsfeld's agents took custody of respondent. The authority for that action was based entirely on the President's command to the Secretary -- a document that, needless to say, would not even arguably qualify as a valid warrant. Thus, whereas respondent's custody during the period between May 8 and June 9, 2002, was pursuant to a judicially authorized seizure, he has been held ever since -- for two years -- pursuant to a warrantless arrest.


[130] *fn21 The record indicates that the Government had not officially informed Newman of her client's whereabouts at the time she filed the habeas petition on June 11. Pet. for Writ of Habeas Corpus 2, ¶ ;4 ("On information and belief, Padilla is being held in segregation at the high-security Consolidated Naval Brig in Charleston, South Carolina"); Letter from Donna R. Newman to General Counsel of the Department of Defense, June 17, 2002 ("I understand from the media that my client is being held in Charleston, South Carolina in the military brig" (emphasis added)), Amended Pet. for Writ of Habeas Corpus, Exh. A, p. 4, Record, Doc. 4. Thus, while it is true, as the Court observes, that "Padilla was moved from New York to South Carolina before his lawyer filed a habeas petition on his behalf," ante, at 13, what matters for present purposes are the facts available to Newman at the time of filing. When the Government shrouded those facts in secrecy, Newman had no option but to file immediately in the district where respondent's presence was last officially confirmed. Moreover, Newman was appointed to represent respondent by the District Court for the Southern District of New York. Once the Government removed her client, it did not permit her to counsel him until February 11, 2004. Consultation thereafter has been allowed as a matter of the Government's grace, not as a matter of right stemming from the Southern District of New York appointment. Cf. ante, at 4-5 (Kennedy, J., concurring). Further, it is not apparent why the District of South Carolina, rather than the Southern District of New York, should be regarded as the proper forum to determine the validity of the "change in the Government's rationale for detaining" respondent. Ante, at 5. If the Government's theory is not "a permissible one," ibid., then the New York federal court would remain the proper forum in this case. Why should the New York court not have the authority to determine the legitimacy of the Government's removal of respondent beyond that court's borders?


[131] *fn22 For other cases in which the immediate custodian rule has not been strictly applied, see Garlotte v. Fordice, 515 U. S. 39 (1995) (prisoner named Governor of Mississippi, not warden, as respondent); California Dept. of Corrections v. Morales, 514 U. S. 499 (1995) (prisoner named Department of Corrections, not warden, as respondent); Wainwright v. Greenfield, 474 U. S. 284 (1986) (prisoner named Secretary of Florida Department of Corrections, not warden, as respondent); Middendorf v. Henry, 425 U. S. 25 (1976) (persons convicted or ordered to stand trial at summary courts-martial named Secretary of the Navy as respondent); Strait v. Laird, 406 U. S. 341, 345-346 (1972) ("The concepts of `custody' and `custodian' are sufficiently broad to allow us to say that the commanding officer in Indiana, operating through officers in California in processing petitioner's claim, is in California for the limited purposes of habeas corpus jurisdiction"); Burns v. Wilson, 346 U. S. 137 (1953) (service members convicted and held in military custody in Guam named Secretary of Defense as respondent); United States ex rel. Toth v. Quarles, 350 U. S. 11 (1955) (next friend of ex-service member in military custody in Korea named Secretary of the Air Force as respondent); Ex parte Endo, 323 U. S. 283, 304 (1944) (California District Court retained jurisdiction over Japanese-American's habeas challenge to her internment, despite her transfer to Utah, noting absence of any "suggestion that there is no one within the jurisdiction of the District Court who is responsible for the detention of appellant and who would be an appropriate respondent").


[132] *fn23 Although, as the Court points out, ante, at 16, the custodian in Braden was served within the territorial jurisdiction of the District Court, the salient point is that Endo and Braden decoupled the District Court's jurisdiction from the detainee's place of confinement and adopted for unusual cases a functional analysis that does not depend on the physical location of any single party.


[133] *fn24 Although the Court makes no reference to venue principles, it is clear that those principles, not rigid jurisdictional rules, govern the forum determination. In overruling Ahrens v. Clark, 335 U. S. 188 (1948), the Court in Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973), clarified that the place of detention pertains only to the question of venue. See id., at 493-495 (applying "traditional venue considerations" and rejecting a stricter jurisdictional approach); id., at 502 (Rehnquist, J., dissenting) ("Today the Court overrules Ahrens"); Moore v. Olson, 368 F. 3d 757, 758 (CA7 2004) ("[A]fter Braden ... , which overruled Ahrens, the location of a collateral attack is best understood as a matter of venue"); Armentero v. INS, 340 F. 3d 1058, 1070 (CA9 2003) ("District courts may use traditional venue considerations to control where detainees bring habeas petitions" (citing Braden, 410 U. S., at 493-494)).


[134] *fn25 If, upon consideration of traditional venue principles, the district court in which a habeas petition is filed determines that venue is inconvenient or improper, it of course has the authority to transfer the petition. See 28 U. S. C. §§1404(a), 1406(a).


[135] *fn26 Consistent with the judgment of the Court of Appeals, I believe that the Non-Detention Act, 18 U. S. C. §4001(a), prohibits -- and the Authorization for Use of Military Force Joint Resolution, 115 Stat. 224, adopted on September 18, 2001, does not authorize -- the protracted, incommunicado detention of American citizens arrested in the United States.


[136] *fn27 Respondent's custodian has been remarkably candid about the Government's motive in detaining respondent: " `[O]ur interest really in his case is not law enforcement, it is not punishment because he was a terrorist or working with the terrorists. Our interest at the moment is to try and find out everything he knows so that hopefully we can stop other terrorist acts.' " 233 F. Supp. 2d 564, 573-574 (SDNY 2002) (quoting News Briefing, Dept. of Defense (June 12, 2002), 2002 WL 22026773).


[137] *fn28 See Watts v. Indiana, 338 U. S. 49, 54 (1949) (opinion of Frankfurter, J.). "There is torture of mind as well as body; the will is as much affected by fear as by force. And there comes a point where this Court should not be ignorant as judges of what we know as men." Id., at 52.