RASUL v. BUSH

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RASUL v. BUSH ( Nos. 03-334 and 03-343 )
321 F. 3d 1134, reversed and remanded.

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

certiorari to the united states court of appeals for the district of columiba 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 Afghanistan to wage a military campaign against al Qaeda and the Taliban regime that had supported it. Petitioners, 2 Australians and 12 Kuwaitis captured abroad during the hostilities, are being held in military custody at the Guantanamo Bay, Cuba, Naval Base, which the United States occupies under a lease and treaty recognizing Cuba’s ultimate sovereignty, but giving this country complete jurisdiction and control for so long as it does not abandon the leased areas. Petitioners filed suits under federal law challenging the legality of their detention, alleging that they had never been combatants against the United States or engaged in terrorist acts, and that they have never been charged with wrongdoing, permitted to consult counsel, or provided access to courts or other tribunals. The District Court construed the suits as habeas petitions and dismissed them for want of jurisdiction, holding that, under Johnson v. Eisentrager, 339 U. S. 763, aliens detained outside United States sovereign territory may not invoke habeas relief. The Court of Appeals affirmed.

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

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

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

(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. 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. By the express terms of its agreements with Cuba, the United States exercises complete jurisdiction and control over the Guantanamo Base, and may continue to do so permanently if it chooses. Respondents concede that the habeas statute would create federal-court jurisdiction over the claims of an American citizen held at the base. Considering that §2241 draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the statute’s geographical coverage to vary depending on the detainee’s citizenship. Aliens held at the base, like American citizens, are entitled to invoke the federal courts’ §2241 authority. Pp. 12–15.

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

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

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

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 opinion concurring in the judgment. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined.


Notes

* Together with No. 03–343, Al Odah et al. v. United States et al., also on certiorari to the same court.


TOP

Concurrence

SHAFIQ RASUL, et al., PETITIONERS

03–334 v.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, et al.

FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al ., PETITIONERS

03–343 v.

UNITED STATES et al.

on writs of certiorari to the united states court of appeals for the district of columbia circuit


[June 28, 2004]

Justice Kennedy , concurring in the judgment.

The Court is correct, in my view, to conclude that federal courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals held at the Guantanamo Bay Naval Base in Cuba. While I reach the same conclusion, my analysis follows a different course. Justice Scalia exposes the weakness in the Court’s conclusion that Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973) , “overruled the statutory predicate to Eisentrager ’s holding,” ante, at 10–11. As he explains, the Court’s approach is not a plausible reading of Braden or Johnson v. Eisentrager, 339 U. S. 763 (1950) . In my view, the correct course is to follow the framework of Eisentrager.

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

The Court began by noting the “ascending scale of rights” that courts have recognized for individuals depending on their connection to the United States. Id ., at 770. Citizenship provides a longstanding basis for jurisdiction, the Court noted, and among aliens physical presence within the United States also “gave the Judiciary power to act.” Id ., at 769, 771. This contrasted with the “essential pattern for seasonable Executive constraint of enemy aliens.” Id ., at 773. The place of the detention was also important to the jurisdictional question, the Court noted. Physical presence in the United States “implied protection,” id ., at 777–778, whereas in Eisentrager “th[e] prisoners at no relevant time were within any territory over which the United States is sovereign,” id., at 778. The Court next noted that the prisoners in Eisentrager “were actual enemies” of the United States, proven to be so at trial, and thus could not justify “a limited opening of our courts” to distinguish the “many [aliens] of friendly personal disposition to whom the status of enemy” was unproven. Id ., at 778. Finally, the Court considered the extent to which jurisdiction would “hamper the war effort and bring aid and comfort to the enemy.” Id ., at 779. Because the prisoners in Eisentrager were proven enemy aliens found and detained outside the United States, and because the existence of jurisdiction would have had a clear harmful effect on the Nation’s military affairs, the matter was appropriately left to the Executive Branch and there was no jurisdiction for the courts to hear the prisoner’s claims.

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

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

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

In light of the status of Guantanamo Bay and the indefinite pretrial detention of the detainees, I would hold that federal-court jurisdiction is permitted in these cases. This approach would avoid creating automatic statutory authority to adjudicate the claims of persons located outside the United States, and remains true to the reasoning of Eisentrager . For these reasons, I concur in the judgment of the Court.


TOP

Concurrence

SHAFIQ RASUL, et al., PETITIONERS

03–334 v.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, et al.

FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al ., PETITIONERS

03–343 v.

UNITED STATES et al.

on writs of certiorari to the united states court of appeals for the district of columbia circuit


[June 28, 2004]

Justice Kennedy , concurring in the judgment.

The Court is correct, in my view, to conclude that federal courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals held at the Guantanamo Bay Naval Base in Cuba. While I reach the same conclusion, my analysis follows a different course. Justice Scalia exposes the weakness in the Court’s conclusion that Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973) , “overruled the statutory predicate to Eisentrager ’s holding,” ante, at 10–11. As he explains, the Court’s approach is not a plausible reading of Braden or Johnson v. Eisentrager, 339 U. S. 763 (1950) . In my view, the correct course is to follow the framework of Eisentrager.

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

The Court began by noting the “ascending scale of rights” that courts have recognized for individuals depending on their connection to the United States. Id ., at 770. Citizenship provides a longstanding basis for jurisdiction, the Court noted, and among aliens physical presence within the United States also “gave the Judiciary power to act.” Id ., at 769, 771. This contrasted with the “essential pattern for seasonable Executive constraint of enemy aliens.” Id ., at 773. The place of the detention was also important to the jurisdictional question, the Court noted. Physical presence in the United States “implied protection,” id ., at 777–778, whereas in Eisentrager “th[e] prisoners at no relevant time were within any territory over which the United States is sovereign,” id., at 778. The Court next noted that the prisoners in Eisentrager “were actual enemies” of the United States, proven to be so at trial, and thus could not justify “a limited opening of our courts” to distinguish the “many [aliens] of friendly personal disposition to whom the status of enemy” was unproven. Id ., at 778. Finally, the Court considered the extent to which jurisdiction would “hamper the war effort and bring aid and comfort to the enemy.” Id ., at 779. Because the prisoners in Eisentrager were proven enemy aliens found and detained outside the United States, and because the existence of jurisdiction would have had a clear harmful effect on the Nation’s military affairs, the matter was appropriately left to the Executive Branch and there was no jurisdiction for the courts to hear the prisoner’s claims.

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

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

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

In light of the status of Guantanamo Bay and the indefinite pretrial detention of the detainees, I would hold that federal-court jurisdiction is permitted in these cases. This approach would avoid creating automatic statutory authority to adjudicate the claims of persons located outside the United States, and remains true to the reasoning of Eisentrager . For these reasons, I concur in the judgment of the Court.


TOP

Concurrence

SHAFIQ RASUL, et al., PETITIONERS

03–334 v.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, et al.

FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al ., PETITIONERS

03–343 v.

UNITED STATES et al.

on writs of certiorari to the united states court of appeals for the district of columbia circuit


[June 28, 2004]

Justice Kennedy , concurring in the judgment.

The Court is correct, in my view, to conclude that federal courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals held at the Guantanamo Bay Naval Base in Cuba. While I reach the same conclusion, my analysis follows a different course. Justice Scalia exposes the weakness in the Court’s conclusion that Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973) , “overruled the statutory predicate to Eisentrager ’s holding,” ante, at 10–11. As he explains, the Court’s approach is not a plausible reading of Braden or Johnson v. Eisentrager, 339 U. S. 763 (1950) . In my view, the correct course is to follow the framework of Eisentrager.

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

The Court began by noting the “ascending scale of rights” that courts have recognized for individuals depending on their connection to the United States. Id ., at 770. Citizenship provides a longstanding basis for jurisdiction, the Court noted, and among aliens physical presence within the United States also “gave the Judiciary power to act.” Id ., at 769, 771. This contrasted with the “essential pattern for seasonable Executive constraint of enemy aliens.” Id ., at 773. The place of the detention was also important to the jurisdictional question, the Court noted. Physical presence in the United States “implied protection,” id ., at 777–778, whereas in Eisentrager “th[e] prisoners at no relevant time were within any territory over which the United States is sovereign,” id., at 778. The Court next noted that the prisoners in Eisentrager “were actual enemies” of the United States, proven to be so at trial, and thus could not justify “a limited opening of our courts” to distinguish the “many [aliens] of friendly personal disposition to whom the status of enemy” was unproven. Id ., at 778. Finally, the Court considered the extent to which jurisdiction would “hamper the war effort and bring aid and comfort to the enemy.” Id ., at 779. Because the prisoners in Eisentrager were proven enemy aliens found and detained outside the United States, and because the existence of jurisdiction would have had a clear harmful effect on the Nation’s military affairs, the matter was appropriately left to the Executive Branch and there was no jurisdiction for the courts to hear the prisoner’s claims.

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

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

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

In light of the status of Guantanamo Bay and the indefinite pretrial detention of the detainees, I would hold that federal-court jurisdiction is permitted in these cases. This approach would avoid creating automatic statutory authority to adjudicate the claims of persons located outside the United States, and remains true to the reasoning of Eisentrager . For these reasons, I concur in the judgment of the Court.


TOP

Concurrence

SHAFIQ RASUL, et al., PETITIONERS

03–334 v.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, et al.

FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al ., PETITIONERS

03–343 v.

UNITED STATES et al.

on writs of certiorari to the united states court of appeals for the district of columbia circuit


[June 28, 2004]

Justice Kennedy , concurring in the judgment.

The Court is correct, in my view, to conclude that federal courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals held at the Guantanamo Bay Naval Base in Cuba. While I reach the same conclusion, my analysis follows a different course. Justice Scalia exposes the weakness in the Court’s conclusion that Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973) , “overruled the statutory predicate to Eisentrager ’s holding,” ante, at 10–11. As he explains, the Court’s approach is not a plausible reading of Braden or Johnson v. Eisentrager, 339 U. S. 763 (1950) . In my view, the correct course is to follow the framework of Eisentrager.

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

The Court began by noting the “ascending scale of rights” that courts have recognized for individuals depending on their connection to the United States. Id ., at 770. Citizenship provides a longstanding basis for jurisdiction, the Court noted, and among aliens physical presence within the United States also “gave the Judiciary power to act.” Id ., at 769, 771. This contrasted with the “essential pattern for seasonable Executive constraint of enemy aliens.” Id ., at 773. The place of the detention was also important to the jurisdictional question, the Court noted. Physical presence in the United States “implied protection,” id ., at 777–778, whereas in Eisentrager “th[e] prisoners at no relevant time were within any territory over which the United States is sovereign,” id., at 778. The Court next noted that the prisoners in Eisentrager “were actual enemies” of the United States, proven to be so at trial, and thus could not justify “a limited opening of our courts” to distinguish the “many [aliens] of friendly personal disposition to whom the status of enemy” was unproven. Id ., at 778. Finally, the Court considered the extent to which jurisdiction would “hamper the war effort and bring aid and comfort to the enemy.” Id ., at 779. Because the prisoners in Eisentrager were proven enemy aliens found and detained outside the United States, and because the existence of jurisdiction would have had a clear harmful effect on the Nation’s military affairs, the matter was appropriately left to the Executive Branch and there was no jurisdiction for the courts to hear the prisoner’s claims.

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

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

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

In light of the status of Guantanamo Bay and the indefinite pretrial detention of the detainees, I would hold that federal-court jurisdiction is permitted in these cases. This approach would avoid creating automatic statutory authority to adjudicate the claims of persons located outside the United States, and remains true to the reasoning of Eisentrager . For these reasons, I concur in the judgment of the Court.


TOP

Concurrence

SHAFIQ RASUL, et al., PETITIONERS

03–334 v.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, et al.

FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al ., PETITIONERS

03–343 v.

UNITED STATES et al.

on writs of certiorari to the united states court of appeals for the district of columbia circuit


[June 28, 2004]

Justice Kennedy , concurring in the judgment.

The Court is correct, in my view, to conclude that federal courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals held at the Guantanamo Bay Naval Base in Cuba. While I reach the same conclusion, my analysis follows a different course. Justice Scalia exposes the weakness in the Court’s conclusion that Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973) , “overruled the statutory predicate to Eisentrager ’s holding,” ante, at 10–11. As he explains, the Court’s approach is not a plausible reading of Braden or Johnson v. Eisentrager, 339 U. S. 763 (1950) . In my view, the correct course is to follow the framework of Eisentrager.

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

The Court began by noting the “ascending scale of rights” that courts have recognized for individuals depending on their connection to the United States. Id ., at 770. Citizenship provides a longstanding basis for jurisdiction, the Court noted, and among aliens physical presence within the United States also “gave the Judiciary power to act.” Id ., at 769, 771. This contrasted with the “essential pattern for seasonable Executive constraint of enemy aliens.” Id ., at 773. The place of the detention was also important to the jurisdictional question, the Court noted. Physical presence in the United States “implied protection,” id ., at 777–778, whereas in Eisentrager “th[e] prisoners at no relevant time were within any territory over which the United States is sovereign,” id., at 778. The Court next noted that the prisoners in Eisentrager “were actual enemies” of the United States, proven to be so at trial, and thus could not justify “a limited opening of our courts” to distinguish the “many [aliens] of friendly personal disposition to whom the status of enemy” was unproven. Id ., at 778. Finally, the Court considered the extent to which jurisdiction would “hamper the war effort and bring aid and comfort to the enemy.” Id ., at 779. Because the prisoners in Eisentrager were proven enemy aliens found and detained outside the United States, and because the existence of jurisdiction would have had a clear harmful effect on the Nation’s military affairs, the matter was appropriately left to the Executive Branch and there was no jurisdiction for the courts to hear the prisoner’s claims.

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

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

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

In light of the status of Guantanamo Bay and the indefinite pretrial detention of the detainees, I would hold that federal-court jurisdiction is permitted in these cases. This approach would avoid creating automatic statutory authority to adjudicate the claims of persons located outside the United States, and remains true to the reasoning of Eisentrager . For these reasons, I concur in the judgment of the Court.


TOP

Concurrence

SHAFIQ RASUL, et al., PETITIONERS

03–334 v.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, et al.

FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al ., PETITIONERS

03–343 v.

UNITED STATES et al.

on writs of certiorari to the united states court of appeals for the district of columbia circuit


[June 28, 2004]

Justice Kennedy , concurring in the judgment.

The Court is correct, in my view, to conclude that federal courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals held at the Guantanamo Bay Naval Base in Cuba. While I reach the same conclusion, my analysis follows a different course. Justice Scalia exposes the weakness in the Court’s conclusion that Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973) , “overruled the statutory predicate to Eisentrager ’s holding,” ante, at 10–11. As he explains, the Court’s approach is not a plausible reading of Braden or Johnson v. Eisentrager, 339 U. S. 763 (1950) . In my view, the correct course is to follow the framework of Eisentrager.

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

The Court began by noting the “ascending scale of rights” that courts have recognized for individuals depending on their connection to the United States. Id ., at 770. Citizenship provides a longstanding basis for jurisdiction, the Court noted, and among aliens physical presence within the United States also “gave the Judiciary power to act.” Id ., at 769, 771. This contrasted with the “essential pattern for seasonable Executive constraint of enemy aliens.” Id ., at 773. The place of the detention was also important to the jurisdictional question, the Court noted. Physical presence in the United States “implied protection,” id ., at 777–778, whereas in Eisentrager “th[e] prisoners at no relevant time were within any territory over which the United States is sovereign,” id., at 778. The Court next noted that the prisoners in Eisentrager “were actual enemies” of the United States, proven to be so at trial, and thus could not justify “a limited opening of our courts” to distinguish the “many [aliens] of friendly personal disposition to whom the status of enemy” was unproven. Id ., at 778. Finally, the Court considered the extent to which jurisdiction would “hamper the war effort and bring aid and comfort to the enemy.” Id ., at 779. Because the prisoners in Eisentrager were proven enemy aliens found and detained outside the United States, and because the existence of jurisdiction would have had a clear harmful effect on the Nation’s military affairs, the matter was appropriately left to the Executive Branch and there was no jurisdiction for the courts to hear the prisoner’s claims.

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

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

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

In light of the status of Guantanamo Bay and the indefinite pretrial detention of the detainees, I would hold that federal-court jurisdiction is permitted in these cases. This approach would avoid creating automatic statutory authority to adjudicate the claims of persons located outside the United States, and remains true to the reasoning of Eisentrager . For these reasons, I concur in the judgment of the Court.


TOP

Concurrence

SHAFIQ RASUL, et al., PETITIONERS

03–334 v.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, et al.

FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al ., PETITIONERS

03–343 v.

UNITED STATES et al.

on writs of certiorari to the united states court of appeals for the district of columbia circuit


[June 28, 2004]

Justice Kennedy , concurring in the judgment.

The Court is correct, in my view, to conclude that federal courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals held at the Guantanamo Bay Naval Base in Cuba. While I reach the same conclusion, my analysis follows a different course. Justice Scalia exposes the weakness in the Court’s conclusion that Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973) , “overruled the statutory predicate to Eisentrager ’s holding,” ante, at 10–11. As he explains, the Court’s approach is not a plausible reading of Braden or Johnson v. Eisentrager, 339 U. S. 763 (1950) . In my view, the correct course is to follow the framework of Eisentrager.

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

The Court began by noting the “ascending scale of rights” that courts have recognized for individuals depending on their connection to the United States. Id ., at 770. Citizenship provides a longstanding basis for jurisdiction, the Court noted, and among aliens physical presence within the United States also “gave the Judiciary power to act.” Id ., at 769, 771. This contrasted with the “essential pattern for seasonable Executive constraint of enemy aliens.” Id ., at 773. The place of the detention was also important to the jurisdictional question, the Court noted. Physical presence in the United States “implied protection,” id ., at 777–778, whereas in Eisentrager “th[e] prisoners at no relevant time were within any territory over which the United States is sovereign,” id., at 778. The Court next noted that the prisoners in Eisentrager “were actual enemies” of the United States, proven to be so at trial, and thus could not justify “a limited opening of our courts” to distinguish the “many [aliens] of friendly personal disposition to whom the status of enemy” was unproven. Id ., at 778. Finally, the Court considered the extent to which jurisdiction would “hamper the war effort and bring aid and comfort to the enemy.” Id ., at 779. Because the prisoners in Eisentrager were proven enemy aliens found and detained outside the United States, and because the existence of jurisdiction would have had a clear harmful effect on the Nation’s military affairs, the matter was appropriately left to the Executive Branch and there was no jurisdiction for the courts to hear the prisoner’s claims.

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

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

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

In light of the status of Guantanamo Bay and the indefinite pretrial detention of the detainees, I would hold that federal-court jurisdiction is permitted in these cases. This approach would avoid creating automatic statutory authority to adjudicate the claims of persons located outside the United States, and remains true to the reasoning of Eisentrager . For these reasons, I concur in the judgment of the Court.


TOP

Concurrence

SHAFIQ RASUL, et al., PETITIONERS

03–334 v.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, et al.

FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al ., PETITIONERS

03–343 v.

UNITED STATES et al.

on writs of certiorari to the united states court of appeals for the district of columbia circuit


[June 28, 2004]

Justice Kennedy , concurring in the judgment.

The Court is correct, in my view, to conclude that federal courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals held at the Guantanamo Bay Naval Base in Cuba. While I reach the same conclusion, my analysis follows a different course. Justice Scalia exposes the weakness in the Court’s conclusion that Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973) , “overruled the statutory predicate to Eisentrager ’s holding,” ante, at 10–11. As he explains, the Court’s approach is not a plausible reading of Braden or Johnson v. Eisentrager, 339 U. S. 763 (1950) . In my view, the correct course is to follow the framework of Eisentrager.

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

The Court began by noting the “ascending scale of rights” that courts have recognized for individuals depending on their connection to the United States. Id ., at 770. Citizenship provides a longstanding basis for jurisdiction, the Court noted, and among aliens physical presence within the United States also “gave the Judiciary power to act.” Id ., at 769, 771. This contrasted with the “essential pattern for seasonable Executive constraint of enemy aliens.” Id ., at 773. The place of the detention was also important to the jurisdictional question, the Court noted. Physical presence in the United States “implied protection,” id ., at 777–778, whereas in Eisentrager “th[e] prisoners at no relevant time were within any territory over which the United States is sovereign,” id., at 778. The Court next noted that the prisoners in Eisentrager “were actual enemies” of the United States, proven to be so at trial, and thus could not justify “a limited opening of our courts” to distinguish the “many [aliens] of friendly personal disposition to whom the status of enemy” was unproven. Id ., at 778. Finally, the Court considered the extent to which jurisdiction would “hamper the war effort and bring aid and comfort to the enemy.” Id ., at 779. Because the prisoners in Eisentrager were proven enemy aliens found and detained outside the United States, and because the existence of jurisdiction would have had a clear harmful effect on the Nation’s military affairs, the matter was appropriately left to the Executive Branch and there was no jurisdiction for the courts to hear the prisoner’s claims.

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

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

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

In light of the status of Guantanamo Bay and the indefinite pretrial detention of the detainees, I would hold that federal-court jurisdiction is permitted in these cases. This approach would avoid creating automatic statutory authority to adjudicate the claims of persons located outside the United States, and remains true to the reasoning of Eisentrager . For these reasons, I concur in the judgment of the Court.


TOP

Concurrence

SHAFIQ RASUL, et al., PETITIONERS

03–334 v.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, et al.

FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al ., PETITIONERS

03–343 v.

UNITED STATES et al.

on writs of certiorari to the united states court of appeals for the district of columbia circuit


[June 28, 2004]

Justice Kennedy , concurring in the judgment.

The Court is correct, in my view, to conclude that federal courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals held at the Guantanamo Bay Naval Base in Cuba. While I reach the same conclusion, my analysis follows a different course. Justice Scalia exposes the weakness in the Court’s conclusion that Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973) , “overruled the statutory predicate to Eisentrager ’s holding,” ante, at 10–11. As he explains, the Court’s approach is not a plausible reading of Braden or Johnson v. Eisentrager, 339 U. S. 763 (1950) . In my view, the correct course is to follow the framework of Eisentrager.

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

The Court began by noting the “ascending scale of rights” that courts have recognized for individuals depending on their connection to the United States. Id ., at 770. Citizenship provides a longstanding basis for jurisdiction, the Court noted, and among aliens physical presence within the United States also “gave the Judiciary power to act.” Id ., at 769, 771. This contrasted with the “essential pattern for seasonable Executive constraint of enemy aliens.” Id ., at 773. The place of the detention was also important to the jurisdictional question, the Court noted. Physical presence in the United States “implied protection,” id ., at 777–778, whereas in Eisentrager “th[e] prisoners at no relevant time were within any territory over which the United States is sovereign,” id., at 778. The Court next noted that the prisoners in Eisentrager “were actual enemies” of the United States, proven to be so at trial, and thus could not justify “a limited opening of our courts” to distinguish the “many [aliens] of friendly personal disposition to whom the status of enemy” was unproven. Id ., at 778. Finally, the Court considered the extent to which jurisdiction would “hamper the war effort and bring aid and comfort to the enemy.” Id ., at 779. Because the prisoners in Eisentrager were proven enemy aliens found and detained outside the United States, and because the existence of jurisdiction would have had a clear harmful effect on the Nation’s military affairs, the matter was appropriately left to the Executive Branch and there was no jurisdiction for the courts to hear the prisoner’s claims.

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

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

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

In light of the status of Guantanamo Bay and the indefinite pretrial detention of the detainees, I would hold that federal-court jurisdiction is permitted in these cases. This approach would avoid creating automatic statutory authority to adjudicate the claims of persons located outside the United States, and remains true to the reasoning of Eisentrager . For these reasons, I concur in the judgment of the Court.


TOP

Concurrence

SHAFIQ RASUL, et al., PETITIONERS

03–334 v.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, et al.

FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al ., PETITIONERS

03–343 v.

UNITED STATES et al.

on writs of certiorari to the united states court of appeals for the district of columbia circuit


[June 28, 2004]

Justice Kennedy , concurring in the judgment.

The Court is correct, in my view, to conclude that federal courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals held at the Guantanamo Bay Naval Base in Cuba. While I reach the same conclusion, my analysis follows a different course. Justice Scalia exposes the weakness in the Court’s conclusion that Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973) , “overruled the statutory predicate to Eisentrager ’s holding,” ante, at 10–11. As he explains, the Court’s approach is not a plausible reading of Braden or Johnson v. Eisentrager, 339 U. S. 763 (1950) . In my view, the correct course is to follow the framework of Eisentrager.

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

The Court began by noting the “ascending scale of rights” that courts have recognized for individuals depending on their connection to the United States. Id ., at 770. Citizenship provides a longstanding basis for jurisdiction, the Court noted, and among aliens physical presence within the United States also “gave the Judiciary power to act.” Id ., at 769, 771. This contrasted with the “essential pattern for seasonable Executive constraint of enemy aliens.” Id ., at 773. The place of the detention was also important to the jurisdictional question, the Court noted. Physical presence in the United States “implied protection,” id ., at 777–778, whereas in Eisentrager “th[e] prisoners at no relevant time were within any territory over which the United States is sovereign,” id., at 778. The Court next noted that the prisoners in Eisentrager “were actual enemies” of the United States, proven to be so at trial, and thus could not justify “a limited opening of our courts” to distinguish the “many [aliens] of friendly personal disposition to whom the status of enemy” was unproven. Id ., at 778. Finally, the Court considered the extent to which jurisdiction would “hamper the war effort and bring aid and comfort to the enemy.” Id ., at 779. Because the prisoners in Eisentrager were proven enemy aliens found and detained outside the United States, and because the existence of jurisdiction would have had a clear harmful effect on the Nation’s military affairs, the matter was appropriately left to the Executive Branch and there was no jurisdiction for the courts to hear the prisoner’s claims.

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

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

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

In light of the status of Guantanamo Bay and the indefinite pretrial detention of the detainees, I would hold that federal-court jurisdiction is permitted in these cases. This approach would avoid creating automatic statutory authority to adjudicate the claims of persons located outside the United States, and remains true to the reasoning of Eisentrager . For these reasons, I concur in the judgment of the Court.


TOP

Concurrence

SHAFIQ RASUL, et al., PETITIONERS

03–334 v.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, et al.

FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al ., PETITIONERS

03–343 v.

UNITED STATES et al.

on writs of certiorari to the united states court of appeals for the district of columbia circuit


[June 28, 2004]

Justice Kennedy , concurring in the judgment.

The Court is correct, in my view, to conclude that federal courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals held at the Guantanamo Bay Naval Base in Cuba. While I reach the same conclusion, my analysis follows a different course. Justice Scalia exposes the weakness in the Court’s conclusion that Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973) , “overruled the statutory predicate to Eisentrager ’s holding,” ante, at 10–11. As he explains, the Court’s approach is not a plausible reading of Braden or Johnson v. Eisentrager, 339 U. S. 763 (1950) . In my view, the correct course is to follow the framework of Eisentrager.

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

The Court began by noting the “ascending scale of rights” that courts have recognized for individuals depending on their connection to the United States. Id ., at 770. Citizenship provides a longstanding basis for jurisdiction, the Court noted, and among aliens physical presence within the United States also “gave the Judiciary power to act.” Id ., at 769, 771. This contrasted with the “essential pattern for seasonable Executive constraint of enemy aliens.” Id ., at 773. The place of the detention was also important to the jurisdictional question, the Court noted. Physical presence in the United States “implied protection,” id ., at 777–778, whereas in Eisentrager “th[e] prisoners at no relevant time were within any territory over which the United States is sovereign,” id., at 778. The Court next noted that the prisoners in Eisentrager “were actual enemies” of the United States, proven to be so at trial, and thus could not justify “a limited opening of our courts” to distinguish the “many [aliens] of friendly personal disposition to whom the status of enemy” was unproven. Id ., at 778. Finally, the Court considered the extent to which jurisdiction would “hamper the war effort and bring aid and comfort to the enemy.” Id ., at 779. Because the prisoners in Eisentrager were proven enemy aliens found and detained outside the United States, and because the existence of jurisdiction would have had a clear harmful effect on the Nation’s military affairs, the matter was appropriately left to the Executive Branch and there was no jurisdiction for the courts to hear the prisoner’s claims.

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

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

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

In light of the status of Guantanamo Bay and the indefinite pretrial detention of the detainees, I would hold that federal-court jurisdiction is permitted in these cases. This approach would avoid creating automatic statutory authority to adjudicate the claims of persons located outside the United States, and remains true to the reasoning of Eisentrager . For these reasons, I concur in the judgment of the Court.


TOP

Concurrence

SHAFIQ RASUL, et al., PETITIONERS

03–334 v.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, et al.

FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al ., PETITIONERS

03–343 v.

UNITED STATES et al.

on writs of certiorari to the united states court of appeals for the district of columbia circuit


[June 28, 2004]

Justice Kennedy , concurring in the judgment.

The Court is correct, in my view, to conclude that federal courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals held at the Guantanamo Bay Naval Base in Cuba. While I reach the same conclusion, my analysis follows a different course. Justice Scalia exposes the weakness in the Court’s conclusion that Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973) , “overruled the statutory predicate to Eisentrager ’s holding,” ante, at 10–11. As he explains, the Court’s approach is not a plausible reading of Braden or Johnson v. Eisentrager, 339 U. S. 763 (1950) . In my view, the correct course is to follow the framework of Eisentrager.

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

The Court began by noting the “ascending scale of rights” that courts have recognized for individuals depending on their connection to the United States. Id ., at 770. Citizenship provides a longstanding basis for jurisdiction, the Court noted, and among aliens physical presence within the United States also “gave the Judiciary power to act.” Id ., at 769, 771. This contrasted with the “essential pattern for seasonable Executive constraint of enemy aliens.” Id ., at 773. The place of the detention was also important to the jurisdictional question, the Court noted. Physical presence in the United States “implied protection,” id ., at 777–778, whereas in Eisentrager “th[e] prisoners at no relevant time were within any territory over which the United States is sovereign,” id., at 778. The Court next noted that the prisoners in Eisentrager “were actual enemies” of the United States, proven to be so at trial, and thus could not justify “a limited opening of our courts” to distinguish the “many [aliens] of friendly personal disposition to whom the status of enemy” was unproven. Id ., at 778. Finally, the Court considered the extent to which jurisdiction would “hamper the war effort and bring aid and comfort to the enemy.” Id ., at 779. Because the prisoners in Eisentrager were proven enemy aliens found and detained outside the United States, and because the existence of jurisdiction would have had a clear harmful effect on the Nation’s military affairs, the matter was appropriately left to the Executive Branch and there was no jurisdiction for the courts to hear the prisoner’s claims.

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

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

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

In light of the status of Guantanamo Bay and the indefinite pretrial detention of the detainees, I would hold that federal-court jurisdiction is permitted in these cases. This approach would avoid creating automatic statutory authority to adjudicate the claims of persons located outside the United States, and remains true to the reasoning of Eisentrager . For these reasons, I concur in the judgment of the Court.