RASUL et al. v. BUSH, PRESIDENT OF THE UNITED STATES, et al.

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466 OCTOBER TERM, 2003
Syllabus
RASUL et al. v. BUSH, PRESIDENT OF THE
UNITED STATES, et al.
certiorari to the united states court of appeals for
the district of columbia circuit
No. 03–334. Argued April 20, 2004—Decided June 28, 2004*
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 Afghani-
stan to wage a military campaign against al Qaeda and the Taliban re-
gime 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 sover-
eignty, 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 en-
gaged 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.
Held: United States courts have jurisdiction to consider challenges to the
legality of the detention of foreign nationals captured abroad in connec-
tion with hostilities and incarcerated at Guantanamo Bay. Pp. 473–485.
(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. 473–484.
(1) The Court rejects respondents’ primary submission that these
cases are controlled by Eisentrager’s holding that a District Court
*Together with No. 03–343, Al Odah et al. v. United States et al., also
on certiorari to the same court.

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Syllabus
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 oc-
cupied Germany. Reversing a Court of Appeals judgment finding juris-
diction, the Eisentrager Court found six critical facts: The German pris-
oners 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 jurisdic-
tion and control. The Eisentrager Court also made clear that all six of
the noted critical facts were relevant only to the question of the prison-
ers’ 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 juris-
diction to entertain the habeas claims of aliens detained at Ellis Island
because the habeas statute’s phrase “within their respective jurisdic-
tions” 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. Be-
cause Braden overruled the statutory predicate to Eisentrager’s hold-
ing, Eisentrager does not preclude the exercise of § 2241 jurisdiction
over petitioners’ claims. Pp. 475–479.
(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 juris-
diction and control over the Guantanamo Base, and may continue to

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468 RASUL v. BUSH
Syllabus
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 geographi-
cal coverage to vary depending on the detainee’s citizenship. Aliens
held at the base, like American citizens, are entitled to invoke the fed-
eral courts’ § 2241 authority. Pp. 480–482.
(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. 483–484.
(b) The District Court also has jurisdiction to hear the Al Odah peti-
tioners’ complaint invoking 28 U. S. C. § 1331, the federal-question stat-
ute, 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 mili-
tary 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 mili-
tary custody is immaterial. Pp. 484–485.
(c) Whether and what further proceedings may become necessary
after respondents respond to the merits of petitioners’ claims are not
here addressed. P. 485.
321 F. 3d 1134, reversed and remanded.
Stevens, J., delivered the opinion of the Court, in which O’Connor,
Souter, Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed an opin-
ion concurring in the judgment, post, p. 485. Scalia, J., filed a dissenting
opinion, in which Rehnquist, C. J., and Thomas, J., joined, post, p. 488.
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.

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Counsel
Solicitor General Olson argued the cause for respondents
in both cases. With him on the brief were Assistant Attor-
ney 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.†
†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 Ron-
ald 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 Feld-
man; 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. Brad-
ford; for Omar Ahmed Khadr by John A. E. Pottow; and for Fred Kore-
matsu by Stephen J. Schulhofer, Evan R. Chesler, Dale Minami, and Eric
K. Yamamoto.
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 Ameri-
can Center for Law & Justice et al. by Jay Alan Sekulow, Thomas P.
Monaghan, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., Joel
H. Thornton, and Robert W. Ash; for Citizens for the Common Defence by
Carter G. Phillips; for the Washington Legal Foundation et al. by Daniel
J. Popeo and Richard A. Samp; for Professor Kenneth Anderson et al. by
David B. Rivkin, Jr., Lee A. Casey, Darin R. Bartram, Ruth Wedgwood,
Charles Fried, and Max Kampelman; and for the Honorable William P.
Barr et al. by Andrew G. McBride.
Briefs of amici curiae were filed in both cases for the Bipartisan Coali-
tion 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 Common-
wealth Lawyers Association by Stephen J. Pollak and John Townsend
Rich; for the Human Rights Institute of the International Bar Association

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470 RASUL v. BUSH
Opinion of the Court
Justice Stevens delivered the opinion of the Court.
These two cases present the narrow but important ques-
tion whether United States courts lack jurisdiction to con-
sider 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 passen-
gers, the other three killed approximately 3,000 innocent ci-
vilians, 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 at-
tacks . . . or harbored such organizations or persons.” Au-
thorization 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
by Pamela Rogers Chepiga; for International Law Expert by James R.
Klimaski; for Sir J. H. Baker et al. by James Oldham and Michael J.
Wishnie; for Professor John H. Barton et al. by Mr. Barton, pro se, and
Barry E. Carter; and for 175 Members of Both Houses of the Parliament
of the United Kingdom of Great Britain and Northern Ireland by Edwin
S. Matthews, Jr., and Edward H. Tillinghast III.
A brief of amicus curiae was filed in No. 03–343 for Military Attorneys
Assigned to the Defense in the Office of Military Commissions by Neal
Katyal, Sharon A. Shaffer, Philip Sundel, Mark A. Bridges, and Michael
D. Mori.

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between the United States and the Taliban.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 Guanta-
namo Bay. Brief for Respondents 6. The United States oc-
cupies 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 Re-
public 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.” 2 In
1934, the parties entered into a treaty providing that, ab-
sent 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.” 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 de-
tention at the base. All alleged that none of the petitioners
has ever been a combatant against the United States or has
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.
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.
3 Treaty Defining Relations with Cuba, May 29, 1934, U. S.-Cuba,
Art. III, 48 Stat. 1683, T. S. No. 866 (hereinafter 1934 Treaty).

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ever engaged in any terrorist acts.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, 108.5
The two Australians, Mamdouh Habib and David Hicks,
each filed a petition for writ of habeas corpus, seeking re-
lease from custody, access to counsel, freedom from interro-
gations, 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 fami-
lies 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, interna-
tional 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 ha-
beas 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 de-
tained outside the sovereign territory of the United States
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 Paki-
stani authorities and turned over to Egyptian authorities, who in turn
transferred him to U. S. custody. Id., at 110–111.
5 David Hicks has since been permitted to meet with counsel. Brief for
Respondents 9.

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[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’ ha-
beas 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 stat-
ute traces its ancestry to the first grant of federal-court ju-
risdiction: Section 14 of the Judiciary Act of 1789 authorized
federal courts to issue the writ of habeas corpus to prisoners
who are “in custody, under or by colour of the authority of
the United States, or are committed for trial before some
court of the same.” Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat.
82. In 1867, Congress extended the protections of the writ
to “all cases where any person may be restrained of his or
her liberty in violation of the constitution, or of any treaty
or law of the United States.” Act of Feb. 5, 1867, ch. 28, 14
Stat. 385. See Felker v. Turpin, 518 U. S. 651, 659–660
(1996).
Habeas corpus is, however, “a writ antecedent to
statute, . . . throwing its root deep into the genius of our
common law.” Williams v. Kaiser, 323 U. S. 471, 484, n. 2
(1945) (internal quotation marks omitted). The writ ap-
peared in English law several centuries ago, became “an
integral part of our common-law heritage” by the time the

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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 Re-
bellion 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 lim-
its 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 avail-
ability of habeas corpus to aliens held in U. S. custody:
“Executive imprisonment has been considered oppres-
sive and lawless since John, at Runnymede, pledged that
no free man should be imprisoned, dispossessed, out-
lawed, 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 im-
munities 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 in-
volving executive detention, in wartime as well as in times
of peace. The Court has, for example, entertained the ha-
beas petitions of an American citizen who plotted an attack
on military installations during the Civil War, Ex parte

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Milligan, 4 Wall. 2 (1866), and of admitted enemy aliens con-
victed 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.” 6
III
Respondents’ primary submission is that the answer to the
jurisdictional question is controlled by our decision in Eisen-
trager. In that case, we held that a Federal District Court
lacked authority to issue a writ of habeas corpus to 21 Ger-
man 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 consti-
tutional right, to sue in some court of the United States
for a writ of habeas corpus. To support that assump-
tion we must hold that a prisoner of our military author-
ities 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 ter-
6 1903 Lease Agreement, Art. III.

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ritory and there held in military custody as a prisoner
of war; (d) was tried and convicted by a Military Com-
mission 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 de-
tainees 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 wrong-
doing; and for more than two years they have been im-
prisoned in territory over which the United States exercises
exclusive jurisdiction and control.
Not only are petitioners differently situated from the Ei-
sentrager 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’ consti-
tutional 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 stat-
utory 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 atten-
tion to the question of statutory jurisdiction. In 1948, just
two months after the Eisentrager petitioners filed their peti-
tion 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

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then being detained at Ellis Island, New York, for deporta-
tion 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’ pres-
ence within the district court’s territorial jurisdiction, the
Court held that the District of Columbia court lacked ju-
risdiction 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 jurisdic-
tion of any district court may employ to assert federal
rights.” Id., at 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 require-
ment, there could be only one response to that question.
Id., at 209 (opinion of Rutledge, J.).7
When the District Court for the District of Columbia re-
viewed the German prisoners’ habeas application in Eisen-
trager, 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 implic-
itly 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 fed-
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.

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eral 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 768.8
Because subsequent decisions of this Court have filled the
statutory gap that had occasioned Eisentrager’s resort to
“fundamentals,” persons detained outside the territorial ju-
risdiction 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 jurisdic-
tion 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 cus-
tody,” a district court acts “within [its] respective jurisdic-
tion” within the meaning of § 2241 as long as “the custodian
8 Although Justice Scalia disputes the basis for the Court of Appeals’
holding, post, at 491 (dissenting opinion), what is most pertinent for pres-
ent 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, in-
cluding an enemy alien, deprived of his liberty anywhere under any pur-
ported 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 jurisdic-
tion of such cases is given, courts must be held to possess it as part of
the judicial power of the United States . . .” (emphasis added)).

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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, deci-
sions of this Court in cases involving habeas petitioners “con-
fined 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 ju-
risdictional 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 (1949))). Braden thus established that Ahrens
can no longer be viewed as establishing “an inflexible juris-
dictional 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 Ei-
sentrager’s holding, Eisentrager plainly does not preclude
the exercise of § 2241 jurisdiction over petitioners’ claims.9
9 The dissent argues that Braden did not overrule Ahrens’ jurisdictional
holding, but simply distinguished it. Post, at 494–495. 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”); Henderson v. INS, 157 F. 3d 106, 126, n. 20
(CA2 1998) (“On the issue of territorial jurisdiction, Ahrens was subse-
quently overruled by Braden”); Chatman-Bey v. Thornburgh, 864 F. 2d
804, 811 (CADC 1988) (en banc) (“[I]n Braden, the Court cut back substan-
tially on Ahrens (and indeed overruled its territorially-based jurisdictional

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480 RASUL v. BUSH
Opinion of the Court
IV
Putting Eisentrager and Ahrens to one side, respondents
contend that we can discern a limit on § 2241 through applica-
tion of the “longstanding principle of American law” that
congressional legislation is presumed not to have extraterri-
torial application unless such intent is clearly manifested.
EEOC v. Arabian American Oil Co., 499 U. S. 244, 248
(1991). Whatever traction the presumption against extra-
territoriality might have in other contexts, it certainly has
no application to the operation of the habeas statute with
respect to persons detained within “the territorial jurisdic-
tion” of the United States. Foley Bros., Inc. v. Filardo, 336
U. S. 281, 285 (1949). By the express terms of its agree-
ments with Cuba, the United States exercises “complete ju-
risdiction 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
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 494. But what Justice Scalia
describes as Eisentrager’s statutory holding—“that, unaided by the canon
of constitutional avoidance, the statute did not confer jurisdiction over an
alien detained outside the territorial jurisdiction of the courts of the
United States,” post, at 493—is little more than the rule of Ahrens cloaked
in the garb of Eisentrager’s facts. To contend plausibly that this holding
survived Braden, Justice Scalia at a minimum must find a textual basis
for the rule other than the phrase “within their respective jurisdictions”—
a phrase which, after Braden, can no longer be read to require the habeas
petitioner’s physical presence within the territorial jurisdiction of a fed-
eral district court. Two references to the district of confinement in provi-
sions relating to recordkeeping and pleading requirements in proceedings
before circuit judges hardly suffice in that regard. See post, at 489–490
(citing 28 U. S. C. §§ 2241(a), 2242).

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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 distinc-
tion 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.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 sover-
eign territory of the realm,11 as well as the claims of persons
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 497. But resisting the
practical consequences of his position, he suggests that he might never-
theless recognize an “atextual exception” to his statutory rule for citi-
zens held beyond the territorial jurisdiction of the federal district courts.
Ibid.
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 desert-
ing their ship); Wilson v. Izard, 30 F. Cas. 131 (No. 17,810) (CC NY 1815)

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482 RASUL v. BUSH
Opinion of the Court
detained in the so-called “exempt jurisdictions,” where ordi-
nary writs did not run,12 and all other dominions under the
sovereign’s control.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.).14
(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).
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 Freem.
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, Commen-
taries 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) (de-
scribing the “extraordinary territorial ambit” of the writ at common law).
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 Keb. 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” (footnote 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”).
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.” 1 Q. B., at 265

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In the end, the answer to the question presented is clear.
Petitioners contend that they are being held in federal cus-
tody in violation of the laws of the United States.15 No
party questions the District Court’s jurisdiction over peti-
tioners’ custodians. Cf. Braden, 410 U. S., at 495. Section
(Parker, C. J.) (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 irre-
spective of territorial sovereignty or dominion, and it embraces in outlook
the power of the Crown in the place concerned.” 1 Q. B., at 310.
Justice Scalia cites In re Ning Yi-Ching, 56 T. L. R. 3 (K. B. Vac. Ct.
1939), for the broad proposition that habeas corpus has been categorically
unavailable to aliens held outside sovereign territory. Post, at 504.
Ex parte Mwenya, however, casts considerable doubt on this narrow view
of the territorial reach of the writ. 1 Q. B., at 295 (Lord Evershed, M. R.)
(noting that In re Ning Yi-Ching relied on Lord Justice Kennedy’s opinion
in Ex parte Sekgome concerning the territorial reach of the writ, despite
the opinions of two members of the court who “took a different view upon
this matter”). And In re Ning Yi-Ching itself made quite clear that “the
remedy of habeas corpus was not confined to British subjects,” but would
extend to “any person . . . detained” within reach of the writ. 56 T. L. R.,
at 5 (citing Ex parte Sekgome, 2 K. B., at 620 (Kennedy, L. J.)). Moreover,
the result in that case can be explained by the peculiar nature of British
control over the area where the petitioners, four Chinese nationals accused
of various criminal offenses, were being held pending transfer to the local
district court. Although the treaties governing the British Concession at
Tientsin did confer on Britain “certain rights of administration and con-
trol,” “the right to administer justice” to Chinese nationals was not among
them. 56 T. L. R., at 4–6.
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 wrong-
doing—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.

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484 RASUL v. BUSH
Opinion of the Court
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’ ha-
beas 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 de-
tained 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 permit-
ted to resort to the courts for the redress of wrongs and the

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Kennedy, J., concurring in judgment
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 jurisdic-
tion over their nonhabeas statutory claims.
VI
Whether and what further proceedings may become neces-
sary after respondents make their response to the merits of
petitioners’ claims are matters that we need not address now.
What is presently at stake is only whether the federal courts
have jurisdiction to determine the legality of the Executive’s
potentially indefinite detention of individuals who claim to
be wholly innocent of wrongdoing. Answering that question
in the affirmative, we reverse the judgment of the Court of
Appeals and remand these cases for the District Court to
consider in the first instance the merits of petitioners’ claims.
It is so ordered.
Justice Kennedy, concurring in the judgment.
The Court is correct, in my view, to conclude that federal
courts have jurisdiction to consider challenges to the legality
of the detention of foreign nationals held at the Guantanamo
Bay Naval Base in Cuba. While I reach the same con-
clusion, my analysis follows a different course. Justice
Scalia exposes the weakness in the Court’s conclusion that
Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484
(1973), “overruled the statutory predicate to Eisentrager’s
holding,” ante, at 479. As he explains, the Court’s ap-
proach 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 con-

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486 RASUL v. BUSH
Kennedy, J., concurring in judgment
stitutional 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 hos-
tilities 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. Citizen-
ship 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 season-
able Executive constraint of enemy aliens.” Id., at 773.
The place of the detention was also important to the jurisdic-
tional 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 sover-
eign,” id., at 778. The Court next noted that the prisoners
in Eisentrager “were actual enemies” of the United States,
proven to be so at trial, and thus could not justify “a limited
opening of our courts” to distinguish the “many [aliens] of
friendly personal disposition to whom the status of enemy”
was unproven. Ibid. Finally, the Court considered the ex-
tent 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 appro-
priately left to the Executive Branch and there was no juris-
diction for the courts to hear the prisoner’s claims.

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Kennedy, J., concurring in judgment
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 acknowl-
edges 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 Eisen-
trager, then, requires an initial inquiry into the general cir-
cumstances 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 mili-
tary affairs are implicated. See also Ex parte Milligan,
4 Wall. 2 (1866).
The facts here are distinguishable from those in Eisen-
trager in two critical ways, leading to the conclusion that a
federal court may entertain the petitions. First, Guantan-
amo Bay is in every practical respect a United States terri-
tory, and it is one far removed from any hostilities. The
opinion of the Court well explains the history of its posses-
sion 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 discre-
tion of the United States. What matters is the unchallenged
and indefinite control that the United States has long exer-
cised 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

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488 RASUL v. BUSH
Scalia, J., dissenting
benefit of any legal proceeding to determine their status. In
Eisentrager, the prisoners were tried and convicted by a mil-
itary commission of violating the laws of war and were sen-
tenced 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 pro-
ceeding presents altogether different considerations. It
allows friends and foes alike to remain in detention. It sug-
gests 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.
Justice Scalia, with whom The Chief Justice and Jus-
tice Thomas join, dissenting.
The Court today holds that the habeas statute, 28 U. S. C.
§ 2241, extends to aliens detained by the United States mili-
tary 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 undoubt-
edly relied, Johnson v. Eisentrager, 339 U. S. 763 (1950).
The Court’s contention that Eisentrager was somehow ne-

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Scalia, J., dissenting
gated 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 set-
tled 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 author-
ized 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. Guard-
ian Life Ins. Co. of America, 511 U. S. 375, 377 (1994) (ci-
tations omitted). The petitioners do not argue that the
Constitution independently requires jurisdiction here.1 Ac-
cordingly, these cases turn 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. Sec-
tion 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.” (Emphases
added.) And § 2242 provides that a petition “addressed to
the Supreme Court, a justice thereof or a circuit judge . . .
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? [An-
swer]: That’s correct . . .”).

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shall state the reasons for not making application to the dis-
trict 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 fed-
eral district court have territorial jurisdiction over the de-
tainee. Here, as the Court allows, see ante, at 478, the
Guantanamo Bay detainees are not located within the terri-
torial jurisdiction of any federal district court. One would
think that is the end of these cases.
The Court asserts, however, that the decisions of this
Court have placed a gloss on the phrase “within their respec-
tive jurisdictions” in § 2241 which allows jurisdiction in these
cases. That is not so. In fact, the only case in point holds
just the opposite (and just what the statute plainly says).
That case is Eisentrager, but to fully understand its implica-
tions for the present dispute, I must also discuss our deci-
sions 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 de-
tainees were held at Ellis Island, New York, but brought
their petitions in the District Court for the District of
Columbia. Interpreting “within their respective jurisdic-
tions,” 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 jurisdic-
tion of any district court may employ to assert federal
rights.” Id., at 192, n. 4. That question, the same question

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presented to this Court today, was shortly thereafter re-
solved 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, Ger-
many. 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 “implic-
itly conceded that the District Court lacked jurisdiction
under the habeas statute as it had been interpreted in Ah-
rens,” and “[i]n essence . . . concluded that the habeas stat-
ute, as construed in Ahrens, had created an unconstitutional
gap that had to be filled by reference to ‘fundamentals.’ ”
Ante, at 477, 478. That is not so. The Court of Appeals con-
cluded that there was statutory jurisdiction. It arrived at
that conclusion by applying the canon of constitutional avoid-
ance: “[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 possi-
ble, 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 Ap-
peals held, the writ would lie at the place of a respondent
with directive power over the detainee. “It is not too vio-
lent 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 sus-
pension of the writ in violation of the constitutional provi-
sion.” Id., at 967 (emphasis added).2
2 The parties’ submissions to the Court in Johnson v. Eisentrager, 339
U. S. 763 (1950), 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

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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 judg-
ments of both lower courts. A conclusion of no constitution-
ally conferred right would obviously not support reversal of
a judgment that rested upon a statutorily conferred right.3
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 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, at 9–27, 38–49.
3 The Court does not seriously dispute my analysis of the Court of Ap-
peals’ holding in Eisentrager. Instead, it argues that this Court in Eisen-
trager “understood the Court of Appeals’ decision to rest on constitutional
and not statutory grounds.” Ante, at 478, n. 8. That is inherently implau-
sible, 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 ad-
duces 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 impera-
tive, 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 im-
mediately followed the foregoing description with a description of the
Court of Appeals’ conclusion tied to the language of the habeas statute:

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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 (em-
phasis added). “[T]hese prisoners at no relevant time were
within any territory over which the United States is sover-
eign, and the scenes of their offense, their capture, their trial
and their punishment were all beyond the territorial juris-
diction 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 brev-
ity 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 out-
side 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 de-
sires 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 predi-
“[W]here deprivation of liberty by an official act occurs outside the territo-
rial 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.

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cate to Eisentrager’s holding,” ante, at 479 (emphasis added),
by which it means the statutory analysis of Ahrens. Even
assuming, for the moment, that Braden overruled some as-
pect 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 distin-
guished Ahrens. Braden dealt with a habeas petitioner in-
carcerated in Alabama. The petitioner filed an application
for a writ of habeas corpus in Kentucky, challenging an in-
dictment that had been filed against him in that Common-
wealth 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 Ala-
bama, serving as an agent for Kentucky. We found that ju-
risdiction existed in Kentucky for Braden’s petition challeng-
ing 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 con-
finement acts as agent for the demanding State, and the
custodian State is presumably indifferent to the resolu-
tion of the prisoner’s attack on the detainer. Here, for
example, the petitioner is confined in Alabama, but his

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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; em-
phases 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 incon-
venient 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 propo-
sition, that where a petitioner is in custody in multiple juris-
dictions within the United States, he may seek a writ of ha-
beas corpus in a jurisdiction in which he suffers legal
confinement, though not physical confinement, if his chal-
lenge 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 Eisen-
trager unquestionably controls.4
4 The Court points to Court of Appeals cases that have described Braden
as “overruling” Ahrens. See ante, at 479–480, n. 9. Even if that descrip-
tion (rather than what I think the correct one, “distinguishing”) is ac-
cepted, it would not support the Court’s view that Ahrens was overruled
with regard to the point on which Eisentrager relied. The ratio deci-
dendi 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 conclu-
sion that Braden overruled Eisentrager.
Justice Kennedy recognizes that Eisentrager controls, ante, at 485
(opinion concurring in judgment), but misconstrues that opinion. He
thinks it makes jurisdiction under the habeas statute turn on the circum-
stances of the detainees’ confinement—including, apparently, the avail-
ability of legal proceedings and the length of detention, see ante, at 487–

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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 reason-
ing of the following sort: “The expense and risk of transport-
ing 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 transport-
ing 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 impre-
cisely describes Braden as citing with approval post-Ahrens
cases in which “habeas petitioners” located overseas were
allowed to proceed (without consideration of the jurisdic-
tional issue) in the District Court for the District of Co-
lumbia. Ante, at 479. In fact, what Braden said is that
“[w]here American citizens confined overseas (and thus out-
side the territory of any district court) have sought relief
in habeas corpus, we have held, if only implicitly, that the
488. The Eisentrager Court mentioned those circumstances, however,
only in the course of its constitutional analysis, and not in its application
of the statute. It is quite impossible to read § 2241 as conditioning its
geographic scope upon them. Among the consequences of making juris-
diction 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 jurisdic-
tion? If there is a terrorist attack at Guantanamo Bay, will the area sud-
denly fall outside the habeas statute because it is no longer “far removed
from any hostilities,” ante, at 487? Justice Kennedy’s approach pro-
vides enticing law-school-exam imponderables in an area where certainty
is called for.

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petitioners’ absence from the district does not present a ju-
risdictional obstacle to the consideration of the claim.” 410
U. S., at 498 (emphasis added). Of course “the existence of
unaddressed jurisdictional defects has no precedential ef-
fect,” Lewis v. Casey, 518 U. S. 343, 352, n. 2 (1996) (citing
cases), but we need not “overrule” those implicit holdings to
decide these cases. Since Eisentrager itself made an excep-
tion for such cases, they in no way impugn its holding.
“With the citizen,” Eisentrager said, “we are now little con-
cerned, 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 Eisen-
trager 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 chal-
lenges 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 ex-
ception thought to be required by the Constitution is no jus-
tification 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 disre-
garded, and why Eisentrager was wrong. Normally, we
consider the interests of those who have relied on our deci-
sions. Today, the Court springs a trap on the Executive,
subjecting Guantanamo Bay to the oversight of the federal

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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 Ei-
sentrager, the Court boldly extends the scope of the habeas
statute to the four corners of the earth. Part III of its opin-
ion asserts that Braden stands for the proposition that “a
district court acts ‘within [its] respective jurisdiction’ within
the meaning of § 2241 as long as ‘the custodian can be
reached by service of process.’ ” Ante, at 478–479. En-
dorsement of that proposition is repeated in Part IV. Ante,
at 483–484 (“Section 2241, by its terms, requires nothing
more [than the District Court’s jurisdiction over petition-
ers’ custodians]”).
The consequence of this holding, as applied to aliens out-
side the country, is breathtaking. It permits an alien cap-
tured 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 mili-
tary 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 le-
gion 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

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of the Constitution or laws or treaties of the United States.’ ”
Ante, at 483, 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 peti-
tions 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 ac-
knowledgment, 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 hear-
ing. This would require allocation for shipping space,
guarding personnel, billeting and rations. It might also
require transportation for whatever witnesses the pris-
oners 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 a 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 cer-
tainly not without a textual basis in the statute and on the

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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 479. That rejection is repeated at the end of Part
IV: “In the end, the answer to the question presented is
clear. . . . No party questions the District Court’s jurisdiction
over petitioners’ custodians. . . . Section 2241, by its terms,
requires nothing more.” Ante, at 483–484. Once that has
been said, the status of Guantanamo Bay is entirely irrele-
vant to the issue here. The habeas statute is (according to
the Court) being applied domestically, to “petitioners’ custo-
dians,” 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 dam-
ages. Fortunately, however, the Court’s irrelevant discus-
sion 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)

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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 exer-
cise such control permanently if it so chooses [under the
terms of a 1934 Treaty].” Ante, at 480; see ante, at 471.
But that lease agreement explicitly recognized “the continu-
ance 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 “exclu-
sively 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 ter-
ritory 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 dif-
ferent 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. In-
deed, 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 proposi-
tion that domestic law applies to Guantanamo Bay is the So-
licitor General’s concession that there would be habeas juris-
diction 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 cov-
erage of the statute to vary depending on the detainee’s citi-
zenship.” Ante, at 481. But the reason the Solicitor Gen-
eral 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 ques-

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tion, Justice Souter, is that citizens of the United States, be-
cause 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 po-
sition 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 “con-
sistent with the historical reach of the writ.” Ante, at 481.
None of the authorities it cites comes close to supporting that
claim. Its first set of authorities involves claims by aliens
detained in what is indisputably domestic territory. Ante,
at 481–482, n. 11. Those cases are irrelevant because they
do not purport to address the territorial reach of the writ.
The remaining cases involve issuance of the writ to “ ‘exempt
jurisdictions’ ” and “other dominions under the sovereign’s
control.” Ante, at 482, and nn. 12–13. These cases are in-
apposite 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 fran-
chises granted by the Crown. See 1 W. Holdsworth, History
of English Law 108, 532 (7th ed. rev. 1956); 3 W. Blackstone,
Commentaries on the Laws of England 78–79 (1768) (herein-
after Blackstone). These jurisdictions were “exempt” in the
sense that the Crown had ceded management of municipal
affairs to local authorities, whose courts had exclusive juris-

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diction over private disputes among residents (although re-
view 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 sover-
eign’s control” fare no better. These cases stand only for
the proposition that the writ extended to dominions of the
Crown outside England proper. The authorities relating to
Jersey and the other Channel Islands, for example, see ante,
at 482, n. 13, involve territories that are “dominions of the
crown of Great Britain” even though not “part of the king-
dom of England,” 1 Blackstone 102–105 (1765), much as were
the colonies in America, id., at 104–105, and Scotland, Ire-
land, 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 Ber-
wick 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

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all her subjects.” Sharpe 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 sover-
eign 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 in-
volves 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
(K. B. Vac. Ct. 1939), an English court considered the habeas
claims of four Chinese subjects detained on criminal charges
in Tientsin, China, an area over which Britain had by treaty
acquired a lease and “therewith exercised certain rights of
administration and control.” Id., at 4. The court held that
Tientsin was a foreign territory, and that the writ would not

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505 Cite as: 542 U. S. 466 (2004)
Scalia, J., dissenting
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 for-
eign subject on foreign territory,” id., at 5, and the court
“listened in vain for a case in which the writ of habeas cor-
pus 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 6.5
In sum, the Court’s treatment of Guantanamo Bay, like
its treatment of § 2241, is a wrenching departure from
precedent.6
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 504, 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 out-
side the territory of the sovereign were within reach of the writ.
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, § 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 argu-
ment. 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 Eisen-
trager, 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 permit-
ting their presence in the country implied protection. No such basis can
be invoked here, for these prisoners at no relevant time were within any
territory over which the United States is sovereign, and the scenes of their
offense, their capture, their trial and their punishment were all beyond the
territorial jurisdiction of any court of the United States.” 339 U. S., at
777–778. That reasoning dooms petitioners’ claims under § 1331, at least
where Congress has erected a jurisdictional bar to their raising such
claims in habeas.

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506 RASUL v. BUSH
Scalia, J., dissenting
* * *
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 subordi-
nates had every reason to expect that the internment of com-
batants 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,7 instead of by today’s clumsy, countertex-
tual reinterpretation that confers upon wartime prisoners
greater habeas rights than domestic detainees. The latter
must challenge their present physical confinement in the dis-
trict of their confinement, see Rumsfeld v. Padilla, ante,
p. 426, 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.
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).