OPINION OF THE COURT RASUL V. BUSH 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NOS. 03-334 AND 03-343 SHAFIQ RASUL, et al., PETITIONERS

															03–334 v. GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES,
et al. FAWZI KHALID ABDULLAH FAHAD AL ODAH, et
al ., PETITIONERS

															03–343 v. UNITED STATES et al. on writs of certiorari to the united states
court of appeals for the district of columbia circuit [June 28, 2004] Justice Stevens delivered the opinion of the Court.

															   These two cases present the
narrow but important question whether United States courts lack
jurisdiction to consider challenges to the legality of the
detention of foreign nationals captured abroad in connection with
hostilities and incarcerated at the Guantanamo Bay Naval Base,
Cuba.

															I

															   On September 11, 2001, agents of
the al Qaeda terrorist network hijacked four commercial airliners
and used them as missiles to attack American targets. While one of
the four attacks was foiled by the heroism of the plane’s
passengers, the other three killed approximately 3,000 innocent
civilians, destroyed hundreds of millions of dollars of property,
and severely damaged the U. S. economy. In response to the attacks,
Congress passed a joint resolution authorizing the President to use
“all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks … or harbored such
organizations or persons.” Authorization for Use of Military Force,
Pub. L. 107–40, §§1–2, 115 Stat. 224. Acting pursuant to that
authorization, the President sent U. S. Armed Forces into
Afghanistan to wage a military campaign against al Qaeda and the
Taliban regime that had supported it.

															   Petitioners in these cases are 2
Australian citizens and 12 Kuwaiti citizens who were captured
abroad during hostilities between the United States and the
Taliban.[ Footnote 1 ] 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.”[ Footnote 2 ] 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.”[ Footnote 3 ]

															   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.[ Footnote 4 ] 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.[ Footnote 5 ]

															   The two Australians, Mamdouh Habib and David
Hicks, each filed a petition for writ of habeas corpus, seeking
release from custody, access to counsel, freedom from
interrogations, and other relief. Id., at 98–99, 124–126.
Fawzi Khalid Abdullah Fahad Al Odah and the 11 other Kuwaiti
detainees filed a complaint seeking to be informed of the charges
against them, to be allowed to meet with their families and with
counsel, and to have access to the courts or some other impartial
tribunal. Id., at 34. They claimed that denial of these
rights violates the Constitution, international law, and treaties
of the United States. Invoking the court’s jurisdiction under 28 U.
S. C. §§1331 and 1350, among other statutory bases, they
asserted causes of action under the Administrative Procedure Act, 5
U. S. C. §§555, 702, 706; the Alien Tort Statute, 28 U.
S. C. §1350; and the general federal habeas corpus statute,
§§2241–2243. App. 19.

															   Construing all three actions as petitions for
writs of habeas corpus, the District Court dismissed them for want
of jurisdiction. The court held, in reliance on our opinion in Johnson v. Eisentrager, 339 U. S. 763 (1950),
that “aliens detained outside the sovereign territory of the United
States [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.

															II

															   Congress has granted federal
district courts, “within their respective jurisdictions,” the
authority to hear applications for habeas corpus by any person who
claims to be held “in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U. S. C. §§2241(a),
(c)(3). The statute traces its ancestry to the first grant of
federal court jurisdiction: Section 14 of the Judiciary Act of 1789
authorized federal courts to issue the writ of habeas corpus to
prisoners “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).

															   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.

															   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:

															“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).

															   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).

															   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.”[ Footnote
6 ]

															III

															   Respondents’ primary submission
is that the answer to the jurisdictional question is controlled by
our decision in Eisentrager . In that case, we held that a
Federal District Court lacked authority to issue a writ of habeas
corpus to 21 German citizens who had been captured by U. S. forces
in China, tried and convicted of war crimes by an American military
commission headquartered in Nanking, and incarcerated in the
Landsberg Prison in occupied Germany. The Court of Appeals in Eisentrager had found jurisdiction, reasoning that “any
person who is deprived of his liberty by officials of the United
States, acting under purported authority of that Government, and
who can show that his confinement is in violation of a prohibition
of the Constitution, has a right to the writ.” Eisentrager v. Forrestal, 174 F. 2d 961, 963 (CADC 1949). In
reversing that determination, this Court summarized the six
critical facts in the case:

															“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.

															On this set of facts, the Court concluded, “no
right to the writ of habeas corpus appears.” Id., at 781.

															   Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not
nationals of countries at war with the United States, and they deny
that they have engaged in or plotted acts of aggression against the
United States; they have never been afforded access to any
tribunal, much less charged with and convicted of wrongdoing; and
for more than two years they have been imprisoned in territory over
which the United States exercises exclusive jurisdiction and
control.

															   Not only are petitioners differently situated
from the Eisentrager detainees, but the Court in Eisentrager made quite clear that all six of the facts
critical to its disposition were relevant only to the question of
the prisoners’ constitutional entitlement to habeas
corpus. Id. , at 777. The Court had far less to say on the
question of the petitioners’ statutory entitlement to
habeas review. Its only statement on the subject was a passing
reference to the absence of statutory authorization: “Nothing in
the text of the Constitution extends such a right, nor does
anything in our statutes.” Id., at 768.

															   Reference to the historical context in which Eisentrager was decided explains why the opinion devoted
so little attention to 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.).[ Footnote 7 ]

															   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.[ Footnote 8 ]

															   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.

															   Because Braden overruled
the statutory predicate to Eisentrager ’s holding, Eisentrager plainly does not preclude the exercise of
§2241 jurisdiction over petitioners’ claims.[ Footnote 9 ]

															IV

															   Putting Eisentrager and Ahrens to one side, respondents contend that we can
discern a limit on §2241 through application of the “longstanding
principle of American law” that congressional legislation is
presumed not to have extraterritorial application unless such
intent is clearly manifested. EEOC v. Arabian American
Oil Co., 499 U. S. 244 , 248
(1991). Whatever traction the presumption against
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.[ Footnote 10 ]
Aliens held at the base, no less than American citizens, are
entitled to invoke the federal courts’ authority under §2241.

															   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,[ Footnote 11 ] as well as the claims of persons detained in
the so-called “exempt jurisdictions,” where ordinary writs did not
run,[ Footnote 12 ] and all
other dominions under the sovereign’s control.[ Footnote 13 ] 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.).[ Footnote 14 ]

															   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.[ Footnote 15 ] 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.

															V

															   In addition to invoking the
District Court’s jurisdiction under §2241, the Al Odah petitioners’ complaint invoked the court’s jurisdiction under 28 U.
S. C. §1331, the federal question statute, as well as §1350,
the Alien Tort Statute. The Court of Appeals, again relying on Eisentrager , held that the District Court correctly
dismissed the claims founded on §1331 and §1350 for lack of
jurisdiction, even to the extent that these claims “deal only with
conditions of confinement and do not sound in habeas,” because
petitioners lack the “privilege of litigation” in U. S. courts. 321
F. 3d, at 1144 (internal quotation marks omitted).
Specifically, the court held that because petitioners’ §1331 and
§1350 claims “necessarily rest on alleged violations of the same
category of laws listed in the habeas corpus statute,” they, like
claims founded on the habeas statute itself, must be “beyond the
jurisdiction of the federal courts.” Id. , at
1144–1145.

															   As explained above, Eisentrager itself erects no bar to the exercise of
federal court jurisdiction over the petitioners’ habeas corpus
claims. It therefore certainly does not bar the exercise of
federal-court jurisdiction over claims that merely implicate the
“same category of laws listed in the habeas corpus statute.” But in
any event, nothing in Eisentrager or in any of our other
cases categorically excludes aliens detained in military custody
outside the United States from the “ ‘privilege of
litigation’ ” in U. S. courts. 321 F. 3d, at 1139. The
courts of the United States have traditionally been open to
nonresident aliens. Cf. Disconto Gesellschaft v. Umbreit, 208 U. S. 570 , 578
(1908) (“Alien citizens, by the policy and practice of the courts
of this country, are ordinarily permitted to resort to the courts
for the redress of wrongs and the 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.

															VI

															   Whether and what further
proceedings may become necessary after respondents make their
response to the merits of petitioners’ claims are matters that we
need not address now. What is presently at stake is only whether
the federal courts have jurisdiction to determine the legality of
the Executive’s potentially indefinite detention of individuals who
claim to be wholly innocent of wrongdoing. Answering that question
in the affirmative, we reverse the judgment of the Court of Appeals
and remand for the District Court to consider in the first instance
the merits of petitioners’ claims.

															It is so ordered. Footnote 1 When we granted certiorari, the petitioners
also included two British citizens, Shafiq Rasul and Asif Iqbal.
These petitioners have since been released from custody. Footnote 2 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. Footnote 3 Treaty Defining Relations with Cuba, May 29,
1934, U. S.-Cuba, Art. III, 48 Stat. 1683, T. S. No. 866
(hereinafter 1934 Treaty). Footnote 4 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. Footnote 5 David Hicks has since been permitted to meet
with counsel. Brief for United States 9. Footnote 6 1903 Lease Agreement, Art. III. Footnote 7 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. Footnote 8 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)). Footnote 9 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). Footnote 10 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 . Footnote 11 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). Footnote 12 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). Footnote 13 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”). Footnote 14 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. Footnote 15 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. KENNEDY, J., CONCURRING IN JUDGMENT RASUL V. BUSH 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NOS. 03-334 AND 03-343 SHAFIQ RASUL, et al., PETITIONERS

															03–334 v. GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES,
et al. FAWZI KHALID ABDULLAH FAHAD AL ODAH, et
al ., PETITIONERS

															03–343 v. UNITED STATES et al. on writs of certiorari to the united states
court of appeals for the district of columbia circuit [June 28, 2004] Justice Kennedy ,
concurring in the judgment.

															   The Court is correct, in my view,
to conclude that federal courts have jurisdiction to consider
challenges to the legality of the detention of foreign nationals
held at the Guantanamo Bay Naval Base in Cuba. While I reach the
same conclusion, my analysis follows a different course. Justice
Scalia exposes the weakness in the Court’s conclusion that Braden v. 30th Judicial Circuit Court of
Ky., 410
U. S. 484 (1973), “overruled the statutory predicate to Eisentrager ’s holding,” ante, at 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. 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.

															   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.

															   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).

															   The facts here are distinguishable from those
in Eisentrager in two critical ways, leading to the
conclusion that a federal court may entertain the petitions. First,
Guantanamo Bay is in every practical respect a United States
territory, and it is one far removed from any hostilities. The
opinion of the Court well explains the history of its possession by
the United States. In a formal sense, the United States leases the
Bay; the 1903 lease agreement states that Cuba retains “ultimate
sovereignty” over it. Lease of Lands for Coaling and Naval
Stations, Feb. 23, 1903, U. S.-Cuba, Art. III, T. S. No. 418. At
the same time, this lease is no ordinary lease. Its term is
indefinite and at the discretion of the United States. What matters
is the unchallenged and indefinite control that the United States
has long exercised over Guantanamo Bay. From a practical
perspective, the indefinite lease of Guantanamo Bay has produced a
place that belongs to the United States, extending the “implied
protection” of the United States to it. Eisentrager,
supra, at 777–778.

															   The second critical set of facts is that the
detainees at Guantanamo Bay are being held indefinitely, and
without 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.

															   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. SCALIA, J., DISSENTING RASUL V. BUSH 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NOS. 03-334 AND 03-343 SHAFIQ RASUL, et al., PETITIONERS

															03–334 v. GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES,
et al. FAWZI KHALID ABDULLAH FAHAD AL ODAH, et
al ., PETITIONERS

															03–343 v. UNITED STATES et al. on writs of certiorari to the united states
court of appeals for the district of columbia circuit [June 28, 2004] Justice Scalia , with
whom The Chief Justice and Justice Thomas join, dissenting.

															   The Court today holds that the
habeas statute, 28 U. S. C. §2241, extends to aliens detained
by the United States military overseas, outside the sovereign
borders of the United States and beyond the territorial
jurisdictions of all its courts. This is not only a novel holding;
it contradicts a half-century-old precedent on which the military
undoubtedly relied, Johnson v. Eisentrager, 339 U. S. 763 (1950).
The Court’s contention that Eisentrager was somehow
negated by Braden v. 30th Judicial Circuit Court of
Ky., 410
U. S. 484 (1973)—a decision that dealt with a different issue
and did not so much as mention Eisentrager —is implausible
in the extreme. This is an irresponsible overturning of settled law
in a matter of extreme importance to our forces currently in the
field. I would leave it to Congress to change §2241, and dissent
from the Court’s unprecedented holding.

															I

															   As we have repeatedly said:
“Federal courts are courts of limited jurisdiction. They possess
only that power authorized by Constitution and statute, which is
not to be expanded by judicial decree. It is to be presumed that a
cause lies outside this limited jurisdiction . . . .” Kokkonen v. Guardian Life Ins. Co. of
America, 511 U. S. 375 , 377
(1994) (citations omitted). The petitioners do not argue that the
Constitution independently requires jurisdiction here.[ Footnote 1 ] Accordingly, this case turns on
the words of §2241, a text the Court today largely ignores. Even a
cursory reading of the habeas statute shows that it presupposes a
federal district court with territorial jurisdiction over the
detainee. Section 2241(a) states:

															“Writs of habeas corpus may be granted by the
Supreme Court, any justice thereof, the district courts and any
circuit judge within their respective jurisdictions .”
(Emphasis added).

															It further requires that “[t]he order of a circuit
judge shall be entered in the records of the district
court of the district wherein the restraint complained of is
had .” 28 U. S. C. §2241(a) (emphases added). And §2242
provides that a petition “addressed to the Supreme Court, a justice
thereof or a circuit judge . . . shall state the reasons for
not making application to the district court of the
district in which the applicant is held .” (Emphases
added). No matter to whom the writ is directed, custodian or
detainee, the statute could not be clearer that a necessary
requirement for issuing the writ is that some federal
district court have territorial jurisdiction over the detainee.
Here, as the Court allows, see ante , at 10, the Guantanamo
Bay detainees are not located within the territorial jurisdiction
of any federal district court. One would think that is the end of
this case.

															   The Court asserts, however, that the decisions
of this Court have placed a gloss on the phrase “within their
respective jurisdictions” in §2241 which allows jurisdiction in
this case. That is not so. In fact, the only case in point holds
just the opposite (and just what the statute plainly says). That
case is Eisentrager , but to fully understand its
implications for the present dispute, I must also discuss our
decisions in the earlier case of Ahrens v. Clark, 335 U. S. 188 (1948),
and the later case of Braden .

															   In Ahrens , the Court considered
“whether the presence within the territorial jurisdiction of the
District Court of the person detained is prerequisite to filing a
petition for a writ of habeas corpus.” 335 U. S., at 189
(construing 28 U. S. C. §452, the statutory precursor to
§2241). The Ahrens detainees were held at Ellis Island,
New York, but brought their petitions in the District Court for the
District of Columbia. Interpreting “within their respective
jurisdictions,” the Court held that a district court has
jurisdiction to issue the writ only on behalf of petitioners
detained within its territorial jurisdiction. It was “not
sufficient . . . that the jailer or custodian alone be found in the
jurisdiction.” 335 U. S., at 190. Ahrens explicitly reserved “the
question of what process, if any, a person confined in an area not
subject to the jurisdiction of any district court may employ to
assert federal rights.” Id. , at 192, n. 4. That
question, the same question presented to this Court today, was
shortly thereafter resolved in Eisentrager insofar as
noncitizens are concerned. Eisentrager involved petitions
for writs of habeas corpus filed in the District Court for the
District of Columbia by German nationals imprisoned in Landsberg
Prison, Germany. The District Court, relying on Ahrens ,
dismissed the petitions because the petitioners were not located
within its territorial jurisdiction. The Court of Appeals reversed.
According to the Court today, the Court of Appeals “implicitly
conceded that the District Court lacked jurisdiction under the
habeas statute as it had been interpreted in Ahrens ,” and
“[i]n essence . . . concluded that the habeas statute, as construed
in Ahrens , had created an unconstitutional gap that had to
be filled by reference to ‘fundamentals.’ ” Ante , at
9. That is not so. The Court of Appeals concluded that there was statutory jurisdiction. It arrived at that conclusion
by applying the canon of constitutional avoidance: “[I]f the
existing jurisdictional act be construed to deny the writ to a
person entitled to it as a substantive right, the act would be
unconstitutional. It should be construed, if possible, to avoid
that result.” Eisentrager v. Forrestal , 174
F. 2d 961, 966 (CADC 1949). In cases where there was no
territorial jurisdiction over the detainee, the Court of Appeals
held, the writ would lie at the place of a respondent with
directive power over the detainee. “It is not too violent an
interpretation of ‘custody’ to construe it as including those who
have directive custody, as well as those who have immediate
custody, where such interpretation is necessary to comply with
constitutional requirements. . . . The statute must be so
construed , lest it be invalid as constituting a suspension of
the writ in violation of the constitutional provision.” Id. , at 967 (emphasis added).[ Footnote 2 ]

															   This Court’s judgment in Eisentrager reversed the Court of Appeals. The opinion was largely devoted to
rejecting the lower court’s constitutional analysis, since the
doctrine of constitutional avoidance underlay its statutory
conclusion. But the opinion had to pass judgment on
whether the statute granted jurisdiction, since that was the basis
for the judgments of both lower courts. A conclusion of no
constitutionally conferred right would obviously not support
reversal of a judgment that rested upon a statutorily conferred
right.[ Footnote 3 ] And absence
of a right to the writ under the clear wording of the habeas
statute is what the Eisentrager opinion held: “Nothing in
the text of the Constitution extends such a right, nor does
anything in our statutes .” 339 U. S., at 768 (emphasis added).
“[T]hese prisoners at no relevant time were within any territory
over which the United States is sovereign, and the scenes of their
offense, their capture, their trial and their punishment were
all beyond the territorial jurisdiction of any court of the United
States .” Id. , at 777–778. See also id. , at
781 (concluding that “no right to the writ of habeas
corpus appears”); id. , at 790 (finding “no basis for
invoking federal judicial power in any district”). The brevity of
the Court’s statutory analysis signifies nothing more than that the
Court considered it obvious (as indeed it is) that, unaided by the
canon of constitutional avoidance, the statute did not confer
jurisdiction over an alien detained outside the territorial
jurisdiction of the courts of the United States. Eisentrager ’s directly-on-point
statutory holding makes it exceedingly difficult for the Court to
reach the result it desires today. To do so neatly and cleanly, it
must either argue that our decision in Braden overruled Eisentrager , or admit that it is overruling Eisentrager . The former course would not pass the laugh
test, inasmuch as Braden dealt with a detainee held within
the territorial jurisdiction of a district court, and never mentioned Eisentrager . And the latter course would require
the Court to explain why our almost categorical rule of stare
decisis in statutory cases should be set aside in order to
complicate the present war, and , having set it aside, to
explain why the habeas statute does not mean what it plainly says.
So instead the Court tries an oblique course: “ Braden ,” it
claims, “overruled the statutory predicate to Eisentrager ’s holding,” ante , at 11 (emphasis
added), by which it means the statutory analysis of Ahrens . Even assuming, for the moment, that Braden overruled some aspect of Ahrens , inasmuch
as Ahrens did not pass upon any of the statutory issues
decided by Eisentrager , it is hard to see how any of that
case’s “statutory predicate” could have been impaired.

															   But in fact Braden did not overrule Ahrens; it distinguished Ahrens . Braden dealt with a habeas petitioner incarcerated in Alabama. The
petitioner filed an application for a writ of habeas corpus in
Kentucky, challenging an indictment that had been filed against him
in that Commonwealth and naming as respondent the Kentucky court in
which the proceedings were pending. This Court held that Braden was
in custody because a detainer had been issued against him by
Kentucky, and was being executed by Alabama, serving as an agent
for Kentucky. We found that jurisdiction existed in Kentucky for
Braden’s petition challenging the Kentucky detainer,
notwithstanding his physical confinement in Alabama. Braden was careful to distinguish that situation
from the general rule established in Ahrens .

															“A further, critical development since our
decision in Ahrens is the emergence of new classes of
prisoners who are able to petition for habeas corpus because
of the adoption of a more expansive definition of the ‘custody’
requirement of the habeas statute. The overruling of McNally v. Hill, 293 U. S. 131 (1934),
made it possible for prisoners in custody under one sentence to
attack a sentence which they had not yet begun to serve. And it
also enabled a petitioner held in one State to attack a detainer
lodged against him by another State. In such a case, the State
holding the prisoner in immediate confinement acts as agent for the
demanding State, and the custodian State is presumably indifferent
to the resolution of the prisoner’s attack on the detainer. Here,
for example, the petitioner is confined in Alabama, but his dispute
is with the Commonwealth of Kentucky, not the State of Alabama. Under these circumstances , it would serve no useful
purpose to apply the Ahrens rule and require that the
action be brought in Alabama.” 410 U. S., at 498–499 (citations and
footnotes omitted; emphases added).

															This cannot conceivably be construed as an
overturning of the Ahrens rule in other
circumstances . See also Braden , supra , at
499–500 (noting that Ahrens does not establish “an
inflexible jurisdictional rule dictating the choice of an
inconvenient forum even in a class of cases which could not
have been foreseen at the time of that decision ” (emphasis
added)). Thus, Braden stands for the proposition, and only
the proposition, that where a petitioner is in custody in multiple
jurisdictions within the United States, he may seek a writ of
habeas corpus in a jurisdiction in which he suffers legal
confinement, though not physical confinement, if his challenge is
to that legal confinement. Outside that class of cases, Braden did not question the general rule of Ahrens (much less that of Eisentrager ). Where, as
here, present physical custody is at issue, Braden is
inapposite, and Eisentrager unquestionably
controls.[ Footnote 4 ]

															   The considerations of forum convenience that
drove the analysis in Braden do not call into question Eisentrager ’s holding. The Braden opinion is
littered with venue reasoning of the following sort: “The expense
and risk of transporting the petitioner to the Western District of
Kentucky, should his presence at a hearing prove necessary, would
in all likelihood be outweighed by the difficulties of transporting
records and witnesses from Kentucky to the district where
petitioner is confined.” 410 U. S., at 494. Of course nothing could
be more inconvenient than what the Court (on the alleged
authority of Braden ) prescribes today: a domestic hearing
for persons held abroad, dealing with events that transpired
abroad.

															   Attempting to paint Braden as a
refutation of Ahrens (and thereby, it is suggested, Eisentrager ), today’s Court imprecisely describes Braden as citing with approval post- Ahrens cases
in which “habeas petitioners” located overseas were allowed to
proceed (without consideration of the jurisdictional issue) in the
District Court for the District of Columbia. Ante , at 10.
In fact, what Braden said is that “[w]here American
citizens confined overseas (and thus outside the territory of
any district court) have sought relief in habeas corpus, we have
held, if only implicitly, that the petitioners’ absence from the
district does not present a jurisdictional obstacle to
consideration of the claim.” 410 U. S., at 498 (emphasis added). Of
course “the existence of unaddressed jurisdictional defects has no
precedential effect,” Lewis v. Casey, 518 U. S. 343 , 352,
n. 2 (1996) (citing cases), but we need not “overrule” those
implicit holdings to decide this case. Since Eisentrager itself made an exception for such cases, they in no way
impugn its holding. “With the citizen,” Eisentrager said,
“we are now little concerned, except to set his case apart as
untouched by this decision and to take measure of the
difference between his status and that of all categories of
aliens.” 339 U. S., at 769. The constitutional doubt that the Court
of Appeals in Eisentrager had erroneously attributed to
the lack of habeas for an alien abroad might indeed exist with
regard to a citizen abroad—justifying a strained
construction of the habeas statute, or (more honestly) a
determination of constitutional right to habeas. Neither party to
the present case challenges the atextual extension of the habeas
statute to United States citizens held beyond the territorial
jurisdictions of the United States courts; but the possibility of
one atextual exception thought to be required by the Constitution
is no justification for abandoning the clear application of the
text to a situation in which it raises no constitutional doubt.

															   The reality is this: Today’s opinion, and
today’s opinion alone, overrules Eisentrager; today’s
opinion, and today’s opinion alone, extends the habeas statute, for
the first time, to aliens held beyond the sovereign territory of
the United States and beyond the territorial jurisdiction of its
courts. No reasons are given for this result; no acknowledgment of
its consequences made. By spurious reliance on Braden the
Court evades explaining why stare decisis can be
disregarded, and why Eisentrager was wrong . Normally, we
consider the interests of those who have relied on our decisions.
Today, the Court springs a trap on the Executive, subjecting
Guantanamo Bay to the oversight of the federal courts even though
it has never before been thought to be within their
jurisdiction—and thus making it a foolish place to have housed
alien wartime detainees.

															II

															   In abandoning the venerable
statutory line drawn in Eisentrager , the Court boldly
extends the scope of the habeas statute to the four corners of the
earth. Part III of its opinion asserts that Braden stands
for the proposition that “a district court acts ‘within [its]
respective jurisdiction’ within the meaning of §2241 as long as
‘the custodian can be reached by service of process.’ ” Ante , at 10. Endorsement of that proposition is repeated
in Part IV. Ante , at 16 (“Section 2241, by its terms,
requires nothing more [than the District Court’s jurisdiction over
petitioners’ custodians]”).

															   The consequence of this holding,
as applied to aliens outside the country, is breathtaking. It
permits an alien captured in a foreign theater of active combat to
bring a §2241 petition against the Secretary of Defense. Over the
course of the last century, the United States has held millions of
alien prisoners abroad. See, e.g. , Department of Army, G.
Lewis & J. Mewha, History of Prisoner of War Utilization by the
United States Army 1776–1945, Pamphlet No. 20–213, p. 244 (1955)
(noting that, “[b]y the end of hostilities [in World War II], U. S.
forces had in custody approximately two million enemy soldiers”). A
great many of these prisoners would no doubt have complained about
the circumstances of their capture and the terms of their
confinement. The military is currently detaining over 600 prisoners
at Guantanamo Bay alone; each detainee undoubtedly has
complaints—real or contrived—about those terms and circumstances.
The Court’s unheralded expansion of federal-court jurisdiction is
not even mitigated by a comforting assurance that the legion of
ensuing claims will be easily resolved on the merits. To the
contrary, the Court says that the “[p]etitioners’ allegations . . .
unquestionably describe ‘custody in violation of the Constitution
or laws or treaties of the United States.’ ” Ante , at
15, n. 15 (citing United States v. Verdugo-Urquidez, 494 U. S. 259 , 277–278
(1990) (Kennedy, J., concurring)). From this point forward, federal
courts will entertain petitions from these prisoners, and others
like them around the world, challenging actions and events far
away, and forcing the courts to oversee one aspect of the
Executive’s conduct of a foreign war.

															   Today’s carefree Court disregards, without a
word of acknowledgment, the dire warning of a more circumspect
Court in Eisentrager: “To grant the writ to these prisoners might
mean that our army must transport them across the seas for hearing.
This would require allocation for shipping space, guarding
personnel, billeting and rations. It might also require
transportation for whatever witnesses the prisoners desired to call
as well as transportation for those necessary to defend legality of
the sentence. The writ, since it is held to be a matter of right,
would be equally available to enemies during active hostilities as
in the present twilight between war and peace. Such trials would
hamper the war effort and bring aid and comfort to the enemy. They
would diminish the prestige of our commanders, not only with
enemies but with wavering neutrals. It would be difficult to devise
more effective fettering of a field commander than to allow the
very enemies he is ordered to reduce to submission to call him to
account in his own civil courts and divert his efforts and
attention from the military offensive abroad to the legal defensive
at home. Nor is it unlikely that the result of such enemy
litigiousness would be conflict between judicial and military
opinion highly comforting to enemies of the United States.” 339 U.
S., at 778–779. These results should not be brought about
lightly, and certainly not without a textual basis in the statute
and on the strength of nothing more than a decision dealing with an
Alabama prisoner’s ability to seek habeas in Kentucky. III Part IV of the Court’s
opinion, dealing with the status of Guantanamo Bay, is a
puzzlement.    The Court might have made an effort
(a vain one, as I shall discuss) to distinguish Eisentrager on
the basis of a difference between the status of Landsberg Prison in
Germany and Guantanamo Bay Naval Base. But Part III flatly rejected
such an approach, holding that the place of detention of an alien
has no bearing on the statutory availability of habeas relief, but
“is strictly relevant only to the question of the appropriate
forum.” Ante , at 11. That rejection is repeated at the end
of Part IV: “In the end, the answer to the question presented is
clear. . . . No party questions the District Court’s jurisdiction
over petitioners’ custodians. . . . Section 2241, by
its terms, requires nothing more.” Ante , at 15–16. Once
that has been said, the status of Guantanamo Bay is entirely
irrelevant to the issue here. The habeas statute is (according to
the Court) being applied domestically , to “petitioners’
custodians,” and the doctrine that statutes are presumed to have no
extraterritorial effect simply has no application.

															   Nevertheless, the Court spends
most of Part IV rejecting respondents’ invocation of that doctrine
on the peculiar ground that it has no application to Guantanamo
Bay. Of course if the Court is right about that, not only §2241 but
presumably all United States law applies there—including,
for example, the federal cause of action recognized in Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U. S. 388 (1971),
which would allow prisoners to sue their captors for damages.
Fortunately, however, the Court’s irrelevant discussion also
happens to be wrong.

															   The Court gives only two reasons why the
presumption against extraterritorial effect does not apply to
Guantanamo Bay. First, the Court says (without any further
elaboration) that “the United States exercises ‘complete
jurisdiction and control’ over the Guantanamo Bay Naval Base [under
the terms of a 1903 lease agreement], and may continue to exercise
such control permanently if it so chooses [under the terms of a
1934 Treaty].” Ante , at 12; see ante , at 2–3. But
that lease agreement explicitly recognized “the continuance of the
ultimate sovereignty of the Republic of Cuba over the [leased
areas],” Lease of Lands for Coaling and Naval Stations, Feb. 23,
1903, U. S.-Cuba, Art. III, T. S. No. 418, and the Executive
Branch—whose head is “exclusively responsible” for the “conduct of
diplomatic and foreign affairs,” Eisentrager , supra , at 789—affirms that the lease and treaty do not
render Guantanamo Bay the sovereign territory of the United States,
see Brief for Respondents 21.

															   The Court does not explain how “complete
jurisdiction and control” without sovereignty causes an enclave to
be part of the United States for purposes of its domestic laws.
Since “jurisdiction and control” obtained through a lease is no
different in effect from “jurisdiction and control” acquired by
lawful force of arms, parts of Afghanistan and Iraq should
logically be regarded as subject to our domestic laws. Indeed, if
“jurisdiction and control” rather than sovereignty were the test,
so should the Landsberg Prison in Germany, where the United States
held the Eisentrager detainees.

															   The second and last reason the Court gives for
the proposition that domestic law applies to Guantanamo Bay is the
Solicitor General’s concession that there would be habeas
jurisdiction over a United States citizen in Guantanamo Bay.
“Considering that the statute draws no distinction between
Americans and aliens held in federal custody, there is little
reason to think that Congress intended the geographical coverage of
the statute to vary depending on the detainee’s citizenship.” Ante , at 12–13. But the reason the Solicitor General
conceded there would be jurisdiction over a detainee who was a
United States citizen had nothing to do with the special
status of Guantanamo Bay: “Our answer to that question, Justice
Souter, is that citizens of the United States, because of their
constitutional circumstances, may have greater rights with respect
to the scope and reach of the Habeas Statute as the Court has or
would interpret it.” Tr. of Oral Arg. 40. See also id. , at
27–28. And that position—the position that United States
citizens throughout the world may be entitled to habeas corpus
rights—is precisely the position that this Court adopted in Eisentrager , see 339 U. S., at 769–770, even while holding
that aliens abroad did not have habeas corpus rights.
Quite obviously, the Court’s second reason has no force
whatever.

															   The last part of the Court’s Part IV analysis
digresses from the point that the presumption against
extraterritorial application does not apply to Guantanamo Bay.
Rather, it is directed to the contention that the Court’s approach
to habeas jurisdiction—applying it to aliens abroad—is “consistent
with the historical reach of the writ.” Ante , at 13. None
of the authorities it cites comes close to supporting that claim.
Its first set of authorities involves claims by aliens detained in
what is indisputably domestic territory. Ante , at 13,
n. 11. Those cases are irrelevant because they do not purport
to address the territorial reach of the writ. The remaining cases
involve issuance of the writ to “ ‘exempt
jurisdictions’ ” and “other dominions under the sovereign’s
control.” Ante , at 13–14, and nn. 12–13. These cases are
inapposite for two reasons: Guantanamo Bay is not a sovereign
dominion, and even if it were, jurisdiction would be limited to
subjects.

															   “Exempt jurisdictions”—the Cinque Ports and
Counties Palatine (located in modern-day England)—were local
franchises granted by the Crown. See 1 W. Holdsworth, History of
English Law 108, 532 (7th ed. rev. 1956); 3 W. Blackstone,
Commentaries *78–*79 (hereinafter Blackstone). These jurisdictions
were “exempt” in the sense that the Crown had ceded management of
municipal affairs to local authorities, whose courts had exclusive
jurisdiction over private disputes among residents (although review
was still available in the royal courts by writ of error). See id. , at *79. Habeas jurisdiction nevertheless extended to
those regions on the theory that the delegation of the King’s
authority did not include his own prerogative writs. Ibid.; R. Sharpe, Law of Habeas Corpus 188–189 (2d
ed. 1989) (hereinafter Sharpe). Guantanamo Bay involves no
comparable local delegation of pre-existing sovereign
authority.

															   The cases involving “other dominions under the
sovereign’s control” fare no better. These cases stand only for the
proposition that the writ extended to dominions of the Crown
outside England proper. The authorities relating to Jersey and the
other Channel Islands, for example, see ante , at 14,
n. 13, involve territories that are “dominions of the crown of
Great Britain” even though not “part of the kingdom of England,” 1
Blackstone *102–*105, much as were the colonies in America, id. , at *104–*105, and Scotland, Ireland, and Wales, id. , at *93. See also King v. Cowle , 2
Burr. 834, 853–854, 97 Eng. Rep. 587, 598 (K. B. 1759) (even if
Berwick was “no part of the realm of England,” it was still a
“dominion of the Crown”). All of the dominions in the cases the
Court cites—and all of the territories Blackstone lists as
dominions, see 1 Blackstone *93–*106—are the sovereign territory of
the Crown: colonies, acquisitions and conquests, and so on. It is
an enormous extension of the term to apply it to installations
merely leased for a particular use from another nation that still
retains ultimate sovereignty.

															   The Court’s historical analysis fails for yet
another reason: To the extent the writ’s “extraordinary territorial
ambit” did extend to exempt jurisdictions, outlying dominions, and
the like, that extension applied only to British subjects .
The very sources the majority relies on say so: Sharpe explains the
“broader ambit” of the writ on the ground that it is “said to
depend not on the ordinary jurisdiction of the court for its
effectiveness, but upon the authority of the sovereign over all her subjects .” Sharpe, supra , at 188 (emphasis
added). Likewise, Blackstone explained that the writ “run[s] into
all parts of the king’s dominions” because “the king is at all
times entitled to have an account why the liberty of any of his subjects is restrained.” 3 Blackstone *131 (emphasis
added). Ex parte Mwenya , [1960] 1 Q. B. 241 (C. A.),
which can hardly be viewed as evidence of the historic scope of the writ, only confirms the ongoing relevance of the
sovereign-subject relationship to the scope of the writ. There, the
question was whether “the Court of Queen’s Bench can be debarred
from making an order in favour of a British citizen unlawfully or
arbitrarily detained” in Northern Rhodesia, which was at the time a
protectorate of the Crown. Id. , at 300 (Lord Evershed
M. R.). Each judge made clear that the detainee’s status as a
subject was material to the resolution of the case. See id. , at 300, 302 (Lord Evershed, M. R.); id. , at 305 (Romer, L. J.) (“[I]t is difficult to see
why the sovereign should be deprived of her right to be informed
through her High Court as to the validity of the detention of her
subjects in that territory”); id. , at 311 (Sellers,
L. J.) (“I am not prepared to say, as we are solely asked to
say on this appeal, that the English courts have no jurisdiction in
any circumstances to entertain an application for a writ of habeas
corpus ad subjiciendum in respect of an unlawful detention of a
British subject in a British protectorate”). None of the
exempt-jurisdiction or dominion cases the Court cites involves
someone not a subject of the Crown.

															   The rule against issuing the writ to aliens in
foreign lands was still the law when, in In re Ning
Yi-Ching , 56 T. L. R. 3 (Vacation Ct. 1939), an English
court considered the habeas claims of four Chinese subjects
detained on criminal charges in Tientsin, China, an area over which
Britain had by treaty acquired a lease and “therewith exercised
certain rights of administration and control.” Id. , at 4.
The court held that Tientsin was a foreign territory, and that the
writ would not issue to a foreigner detained there. The
Solicitor-General had argued that “[t]here was no case on record in
which a writ of habeas corpus had been obtained
on behalf of a foreign subject on foreign territory,” id. ,
at 5, and the court “listened in vain for a case in which the writ
of habeas corpus had issued in respect of a foreigner
detained in a part of the world which was not a part of the King’s
dominions or realm,” id. , at 6.[ Footnote 5 ]

															   In sum, the Court’s treatment of Guantanamo
Bay, like its treatment of §2241, is a wrenching departure from
precedent.[ Footnote 6 ]

															* * *

															   Departure from our rule of stare decisis in statutory cases is always extraordinary;
it ought to be unthinkable when the departure has a potentially
harmful effect upon the Nation’s conduct of a war. The Commander in
Chief and his subordinates had every reason to expect that the
internment of combatants at Guantanamo Bay would not have the
consequence of bringing the cumbersome machinery of our domestic
courts into military affairs. Congress is in session. If it wished
to change federal judges’ habeas jurisdiction from what this Court
had previously held that to be, it could have done so. And it could
have done so by intelligent revision of the statute,[ Footnote 7 ] instead of by today’s clumsy,
countertextual reinterpretation that confers upon wartime prisoners
greater habeas rights than domestic detainees. The latter must
challenge their present physical confinement in the district of
their confinement, see Rumsfeld v. Padilla , ante , whereas under today’s strange holding Guantanamo Bay
detainees can petition in any of the 94 federal judicial districts.
The fact that extraterritorially located detainees lack the
district of detention that the statute requires has been converted
from a factor that precludes their ability to bring a petition at
all into a factor that frees them to petition wherever they
wish—and, as a result, to forum shop. For this Court to create such
a monstrous scheme in time of war, and in frustration of our
military commanders’ reliance upon clearly stated prior law, is
judicial adventurism of the worst sort. I dissent. Footnote 1 See Tr. of Oral Arg. 5 (“Question: And you
don’t raise the issue of any potential jurisdiction on the basis of
the Constitution alone. We are here debating the jurisdiction under
the Habeas Statute, is that right? [Answer]: That’s correct. .
.”). Footnote 2 The parties’ submissions to the Court in Eisentrager construed the Court of Appeals’ decision as I
do. See Pet. for Cert., O. T. 1949, No. 306, pp. 8–9 (“[T]he court
felt constrained to construe the habeas corpus jurisdictional
statute—despite its reference to the ‘respective jurisdictions’ of
the various courts and the gloss put on that terminology in the Ahrens and previous decisions—to permit a petition to be
filed in the district court with territorial jurisdiction over the
officials who have directive authority over the immediate jailer in
Germany”); Brief for Respondent, O. T. 1949, No. 306, p. 9
(“Respondent contends that the U. S. Court of Appeals . . . was
correct in its holding that the statute, 28 U. S. C. 2241,
provides that the U. S. District Court for the District of Columbia
has jurisdiction to entertain the petition for a writ of habeas
corpus in the case at bar”). Indeed, the briefing in Eisentrager was mainly devoted to the question of whether
there was statutory jurisdiction. See, e.g. , Brief for
Petitioner, O. T. 1949, No. 306, pp. 15–59; Brief for Respondent,
O. T. 1949, No. 306, pp. 9–27, 38–49. Footnote 3 The Court does not seriously dispute my
analysis of the Court of Appeals’ holding in Eisentrager .
Instead, it argues that this Court in Eisentrager “understood the Court of Appeals’ decision to rest on
constitutional and not statutory grounds.” Ante , at 10,
n. 8. That is inherently implausible, given that the Court of
Appeals’ opinion clearly reached a statutory holding, and that both
parties argued the case to this Court on that basis, see n. 2, supra . The only evidence of misunderstanding the Court
adduces today is the Eisentrager Court’s description of
the Court of Appeals’ reasoning as “that, although no statutory
jurisdiction of such cases is given, courts must be held to possess
it as part of the judicial power of the United States . . . .” 339
U. S., at 767. That is no misunderstanding, but an entirely
accurate description of the Court of Appeals’ reasoning—the
penultimate step of that reasoning rather than its conclusion. The
Court of Appeals went on to hold that, in light of the
constitutional imperative, the statute should be interpreted as
supplying jurisdiction. See Eisentrager v. Forrestal , 174 F. 2d 961, 965–967 (CADC 1949). This
Court in Eisentrager undoubtedly understood that, which is
why it immediately followed the foregoing description with a
description of the Court of Appeals’ conclusion tied to
the language of the habeas statute: “[w]here deprivation of liberty
by an official act occurs outside the territorial jurisdiction of
any District Court, the petition will lie in the District Court
which has territorial jurisdiction over officials who have
directive power over the immediate jailer.” 339 U. S., at 767. Footnote 4 The Court points to Court of Appeals cases
that have described Braden as “overruling” Ahrens . See ante , at 11, n. 9. Even if that
description (rather than what I think the correct one,
“distinguishing”) is accepted, it would not support the Court’s
view that Ahrens was overruled with regard to the
point on which Eisentrager relied . The ratio
decidendi of Braden does not call into question the
principle of Ahrens applied in Eisentrager : that
habeas challenge to present physical confinement must be made in
the district where the physical confinement exists. The Court is
unable to produce a single authority that agrees with its
conclusion that Braden overruled Eisentrager .

															Justice Kennedy recognizes that Eisentrager controls, ante , at 1 (opinion concurring in judgment), but
misconstrues that opinion. He thinks it makes jurisdiction under
the habeas statute turn on the circumstances of the detainees’
confinement—including, apparently, the availability of legal
proceedings and the length of detention, see ante , at 3–4.
The Eisentrager Court mentioned those circumstances,
however, only in the course of its constitutional analysis, and not in its application of the statute. It is quite
impossible to read §2241 as conditioning its geographic scope upon
them. Among the consequences of making jurisdiction turn upon
circumstances of confinement are (1) that courts would always have authority to inquire into circumstances of
confinement, and (2) that the Executive would be unable to know
with certainty that any given prisoner-of-war camp is immune from
writs of habeas corpus. And among the questions this approach
raises: When does definite detention become indefinite? How much
process will suffice to stave off jurisdiction? If there is a
terrorist attack at Guantanamo Bay, will the area suddenly fall
outside the habeas statute because it is no longer “far removed
from any hostilities,” ante , at 3? Justice Kennedy’s
approach provides enticing law-school-exam imponderables in an area
where certainty is called for. Footnote 5 The Court argues at some length that Ex
parte Mwenya , [1960] 1 Q. B. 241 (C. A.), calls into
question my reliance on In re Ning Yi-Ching . See ante , at 15, n. 14. But as I have explained, see supra , at 17–18, Mwenya dealt with a British
subject and the court went out of its way to explain that its
expansive description of the scope of the writ was premised on that
fact. The Court cites not a single case holding that aliens held
outside the territory of the sovereign were within reach of the
writ. Footnote 6 The Court grasps at two other bases for
jurisdiction: the Alien Tort Statute (ATS), 28 U. S. C. §1350,
and the federal-question statute, 28 U. S. C. §1331. The
former is not presented to us. The ATS, while invoked below, was
repudiated as a basis for jurisdiction by all petitioners, either
in their petition for certiorari, in their briefing before this
Court, or at oral argument. See Pet. for Cert. in No. 03–334, p. 2,
n. 1 (“Petitioners withdraw any reliance on the Alien Tort
Claims Act …”); Brief for Petitioners in No. 03–343, p. 13;
Tr. of Oral Arg. 6.

															With respect to §1331, petitioners assert a variety of claims
arising under the Constitution, treaties, and laws of the United
States. In Eisentrager , though the Court’s holding focused
on §2241, its analysis spoke more broadly: “We have pointed out
that the privilege of litigation has been extended to aliens,
whether friendly or enemy, only because permitting their presence
in the country implied protection. No such basis can be invoked
here, for these prisoners at no relevant time were within any
territory over which the United States is sovereign, and the scenes
of their offense, their capture, their trial and their punishment
were all beyond the territorial jurisdiction of any court of the
United States.” 339 U. S., at 777–778. That reasoning dooms
petitioners’ claims under §1331, at least where Congress has
erected a jurisdictional bar to their raising such claims in
habeas. Footnote 7 It could, for example, provide for
jurisdiction by placing Guantanamo Bay within the territory of an
existing district court; or by creating a district court for
Guantanamo Bay, as it did for the Panama Canal Zone, see 22 U.
S. C. §3841(a) (repealed 1979).