RUMSFELD, SECRETARY OF DEFENSE v. PADILLA ET AL.
No. 03-1027
Supreme Court of the United States
Argued April 28, 2004—Decided June 28, 2004
542 U.S. 426
Jennifer S. Martinez argued the cause for respondents. With her on the brief were Donna R. Newman, Andrew G. Patel, Jonathan M. Freiman, David W. DeBruin, William M. Hohengarten, and Matthew Hersh.*
*Briefs of amici curiae urging reversal were filed for the Commonwealth of Virginia by Jerry W. Kilgore, Attorney General of Virginia, William H. Hurd, State Solicitor, Maureen Riley Matsen and William E. Thro, Deputy State Solicitors, Alison P. Landry, Senior Assistant Attorney General, and Courtney M. Malveaux and Russell E. McGuire, Assistant Attorneys General; for the American Center for Law & Justice by Jay Alan Sekulow, Thomas P. Monaghan, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., Joel H. Thornton, and Robert W. Ash; for the Cato Institute by Timothy Lynch; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Steven R. Shapiro, Sharon M. McGowan, Lucas Guttentag, Robin L. Goldfaden, Arthur N. Eisenberg, Arthur H. Bryant, and Rebecca E. Epstein; for the Association of the Bar of the City of New York et al. by Joseph Gerard Davis; for the Beverly Hills Bar Association et al. by Bridget Arimond, Stephen F. Rohde, and Marc J. Poster; for the Center for National Security Studies et al. by John Payton, Seth P. Waxman, Paul R. Q. Wolfson, Kate Martin, and Joseph Onek; for Global Rights by James F. Fitzpatrick, Kathleen A. Behan, and Gay J. McDougall; for Others Are Us et al. by Jonathan D. Wallace; for the Rutherford Institute et al. by Carter G. Phillips, Mark E. Haddad, Joseph R. Guerra, and Elliot M. Mincberg; for the Spartacist League et al. by Rachel H. Wolkenstein; for Bruce A. Ackerman et al. by Jules Lobel, Bar-
Briefs of amici curiae were filed for the National Association of Criminal Defense Lawyers et al. by Donald G. Rehkopf, Jr., and Lisa B. Kemler; for the Public Defender Service for the District of Columbia by Catharine F. Easterly, Giovanna Shay, and Timothy P. O‘Toole; for William J. Aceves et al. by Linda A. Malone and Jordan J. Paust; for Payam Akhavan et al. by Allison Marston Danner; for the Honorable Shirley M. Hufstedler et al. by Robert P. LoBue; and for David J. Scheffer et al. by Mr. Scheffer, pro se.
A brief of amici curiae urging affirmance in No. 03-6696, Hamdi et al. v. Rumsfeld, Secretary of Defense, et al., post, p. 507, and reversal in No. 03-1027 was filed for Senator John Cornyn et al. by Senator Cornyn, pro se.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Respondent Jose Padilla is a United States citizen detained by the Department of Defense pursuant to the President‘s determination that he is an “enemy combatant” who conspired with al Qaeda to carry out terrorist attacks in the United States. We confront two questions: First, did Padilla properly file his habeas petition in the Southern District of New York; and second, did the President possess authority to detain Padilla militarily. We answer the threshold question in the negative and thus do not reach the second question presented.
Because we do not decide the merits, we only briefly recount the relevant facts. On May 8, 2002, Padilla flew from Pakistan to Chicago‘s O‘Hare International Airport. As he stepped off the plane, Padilla was apprehended by federal agents executing a material witness warrant issued by the United States District Court for the Southern District of
Padilla‘s motion was still pending when, on June 9, the President issued an order to Secretary of Defense Donald H. Rumsfeld designating Padilla an “enemy combatant” and directing the Secretary to detain him in military custody. App. D to Brief for Petitioner 5a (June 9 Order). In support of this action, the President invoked his authority as “Commander in Chief of the U. S. armed forces” and the Authorization for Use of Military Force Joint Resolution,
On June 11, Padilla‘s counsel, claiming to act as his next friend, filed in the Southern District a habeas corpus petition under
The Government moved to dismiss, arguing that Commander Marr, as Padilla‘s immediate custodian, is the only proper respondent to his habeas petition, and that the District Court lacks jurisdiction over Commander Marr because she is located outside the Southern District. On the merits, the Government contended that the President has authority to detain Padilla militarily pursuant to the Commander in Chief Clause of the Constitution,
The District Court issued its decision in December 2002. Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564. The court held that the Secretary‘s “personal involvement” in Padilla‘s military custody renders him a proper respondent to Padilla‘s habeas petition, and that it can assert jurisdiction over the Secretary under New York‘s long-arm statute, not-
The Court of Appeals for the Second Circuit reversed. 352 F. 3d 695 (2003). The court agreed with the District Court that Secretary Rumsfeld is a proper respondent, reasoning that in cases where the habeas petitioner is detained for “other than federal criminal violations, the Supreme Court has recognized exceptions to the general practice of naming the immediate physical custodian as respondent.” Id., at 704-708. The Court of Appeals concluded that on these “unique” facts Secretary Rumsfeld is Padilla‘s custodian because he exercises “the legal reality of control” over Padilla and because he was personally involved in Padilla‘s military detention. Id., at 707-708. The Court of Appeals also affirmed the District Court‘s holding that it has jurisdiction over the Secretary under New York‘s long-arm statute. Id., at 708-710.
Reaching the merits, the Court of Appeals held that the President lacks authority to detain Padilla militarily. Id., at 710-724. The court concluded that neither the President‘s
We granted the Government‘s petition for certiorari to review the Court of Appeals’ rulings with respect to the jurisdictional and the merits issues, both of which raise important questions of federal law. 540 U. S. 1173 (2004).7
The question whether the Southern District has jurisdiction over Padilla‘s habeas petition breaks down into two related subquestions. First, who is the proper respondent to that petition? And second, does the Southern District have jurisdiction over him or her? We address these questions in turn.
I
The federal habeas statute straightforwardly provides that the proper respondent to a habeas petition is “the person who has custody over [the petitioner].”
In accord with the statutory language and Wales’ immediate custodian rule, longstanding practice confirms that in habeas challenges to present physical confinement—“core challenges“—the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official. See, e. g., Hogan v. Hanks, 97 F. 3d 189, 190 (CA7 1996); Brittingham v. United States, 982 F. 2d 378, 379 (CA9 1992); Blango v. Thornburgh, 942 F. 2d 1487, 1491-1492 (CA10 1991) (per curiam); Brennan v. Cunningham, 813 F. 2d 1, 12 (CA1 1987); Guerra v. Meese, 786 F. 2d 414, 416 (CADC 1986) (per curiam); Billiteri v. United States Bd. of Parole, 541 F. 2d 938, 948 (CA2 1976); Sanders v. Bennett, 148 F. 2d 19, 20 (CADC 1945); Jones v. Biddle, 131 F. 2d 853, 854 (CA8 1942).8 No exceptions to this rule, either recog-
If the Wales immediate custodian rule applies in this case, Commander Marr—the equivalent of the warden at the military brig—is the proper respondent, not Secretary Rumsfeld. See Al-Marri v. Rumsfeld, 360 F. 3d 707, 708-709 (CA7 2004) (holding in the case of an alleged enemy combatant detained at the Consolidated Naval Brig, the proper respondent is Commander Marr, not Secretary Rumsfeld); Monk v. Secretary of the Navy, 793 F. 2d 364, 369 (CADC 1986) (holding that the proper respondent in a habeas action brought by a military prisoner is the commandant of the military detention facility, not the Secretary of the Navy); cf.
The Court of Appeals’ view that we have relaxed the immediate custodian rule in cases involving prisoners detained for “other than federal criminal violations,” and that in such cases the proper respondent is the person exercising the “legal reality of control” over the petitioner, suffers from the same logical flaw. 352 F. 3d, at 705, 707. Certainly the statute itself makes no such distinction based on the source of the physical detention. Nor does our case law support a deviation from the immediate custodian rule here. Rather,
In Braden, for example, an Alabama prisoner filed a habeas petition in the Western District of Kentucky. He did not contest the validity of the Alabama conviction for which he was confined, but instead challenged a detainer lodged against him in Kentucky state court. Noting that petitioner sought to challenge a “confinement that would be imposed in the future,” we held that petitioner was “in custody” in Kentucky by virtue of the detainer. 410 U. S., at 488-489. In these circumstances, the Court held that the proper respondent was not the prisoner‘s immediate physical custodian (the Alabama warden), but was instead the Kentucky court in which the detainer was lodged. This made sense because the Alabama warden was not “the person who [held] him in what [was] alleged to be unlawful custody.” Id., at 494-495 (citing Wales, 114 U. S., at 574); Hensley, supra, at 351, n. 9 (observing that the petitioner in Braden “was in the custody of Kentucky officials for purposes of his habeas corpus action“). Under Braden, then, a habeas petitioner who challenges a form of “custody” other than present physical confinement may name as respondent the entity or person who exercises legal control with respect to the challenged “custody.” But nothing in Braden supports departing from the immediate custodian rule in the traditional context of challenges to present physical confinement. See Al-Marri, supra, at 711-712; Monk, supra, at 369. To the contrary, Braden cited Wales favorably and reiterated the traditional rule that a prisoner seeking release from confinement must sue his “jailer.” 410 U. S., at 495 (internal quotation marks omitted).
For the same reason, Strait v. Laird, 406 U. S. 341 (1972), does not aid Padilla. Strait involved an inactive reservist domiciled in California who filed a
In Braden and Strait, the immediate custodian rule did not apply because there was no immediate physical custodian with respect to the “custody” being challenged. That is not the case here: Commander Marr exercises day-to-day control over Padilla‘s physical custody. We have never intimated that a habeas petitioner could name someone other than his immediate physical custodian as respondent simply because the challenged physical custody does not arise out of a criminal conviction. Nor can we do so here just because Padilla‘s physical confinement stems from a military order by the President.
It follows that neither Braden nor Strait supports the Court of Appeals’ conclusion that Secretary Rumsfeld is the proper respondent because he exercises the “legal reality of control” over Padilla.12 As we have explained, identification of the party exercising legal control only comes into play when there is no immediate physical custodian with respect to the challenged “custody.” In challenges to present physical confinement, we reaffirm that the immediate custodian, not a supervisory official who exercises legal control, is the proper respondent. If the “legal control” test applied to physical-custody challenges, a convicted prisoner would be able to name the State or the Attorney General as a respondent to a
At first blush Ex parte Endo, 323 U. S. 283 (1944), might seem to lend support to Padilla‘s “legal control” argument. There, a Japanese-American citizen interned in California by the War Relocation Authority (WRA) sought relief by filing a
While Endo did involve a petitioner challenging her present physical confinement, it did not, as Padilla and JUSTICE STEVENS contend, hold that such a petitioner may properly name as respondent someone other than the immediate physical custodian. Post, at 461-462 (citing Endo as supporting a “more functional approach” that allows habeas petitioners
Endo‘s holding does not help respondents here. Padilla was moved from New York to South Carolina before his lawyer filed a habeas petition on his behalf. Unlike the District Court in Endo, therefore, the Southern District never acquired jurisdiction over Padilla‘s petition.
Padilla‘s argument reduces to a request for a new exception to the immediate custodian rule based upon the “unique facts” of this case. While Padilla‘s detention is undeniably unique in many respects, it is at bottom a simple challenge to physical custody imposed by the Executive—the traditional core of the Great Writ. There is no indication that there was any attempt to manipulate behind Padilla‘s transfer—he was taken to the same facility where other al Qaeda members were already being held, and the Government did not attempt to hide from Padilla‘s lawyer where it had taken him. Infra, at 449-450, and n. 17; post, at 454 (KENNEDY,
II
We turn now to the second subquestion. District courts are limited to granting habeas relief “within their respective jurisdictions.”
Congress added the limiting clause—“within their respective jurisdictions“—to the habeas statute in 1867 to avert the “inconvenient [and] potentially embarrassing” possibility that “every judge anywhere [could] issue the Great Writ on behalf of applicants far distantly removed from the courts whereon they sat.” Carbo v. United States, 364 U. S. 611, 617 (1961). Accordingly, with respect to habeas petitions “designed to relieve an individual from oppressive confinement,” the traditional rule has always been that the Great Writ is “issuable only in the district of confinement.” Id., at 618.
Other portions of the habeas statute support this common-sense reading of
Congress has also legislated against the background of the “district of confinement” rule by fashioning explicit exceptions to the rule in certain circumstances. For instance,
The plain language of the habeas statute thus confirms the general rule that for core habeas petitions challenging present physical confinement, jurisdiction lies in only one district: the district of confinement. Despite this ample statutory and historical pedigree, Padilla contends, and the Court of Appeals held, that the district of confinement rule no longer applies to core habeas challenges. Rather, Padilla, as well as today‘s dissenters, post, at 462-464, urge that our decisions in Braden and Strait stand for the proposition that jurisdiction will lie in any district in which the respondent is amenable to service of process. We disagree.
But we fail to see how Braden‘s requirement of jurisdiction over the respondent alters the district of confinement rule for challenges to present physical custody. Braden itself did not involve such a challenge; rather, Braden challenged his future confinement in Kentucky by suing his Kentucky custodian. We reasoned that “[u]nder these circumstances it would serve no useful purpose to apply the Ahrens rule and require that the action be brought in Alabama.” Id., at 499. In habeas challenges to present physical confinement, by contrast, the district of confinement is synonymous with the district court that has territorial jurisdiction over the proper respondent. This is because, as we have held, the immediate custodian rule applies to core habeas challenges to present physical custody. By definition, the immediate custodian and the prisoner reside in the same district.
Rather than focusing on the holding and historical context of Braden, JUSTICE STEVENS, post, at 462, like the Court of Appeals, seizes on dicta in which we referred to “service of process” to contend that the Southern District could assert jurisdiction over Secretary Rumsfeld under New York‘s long-arm statute. See Braden, 410 U. S., at 495 (“So long as the custodian can be reached by service of process, the court can issue a writ ‘within its jurisdiction’ . . . even if the prisoner himself is confined outside the court‘s territorial jurisdiction“). But that dicta did not indicate that a custodian may be served with process outside of the district court‘s territorial jurisdiction. To the contrary, the facts and hold-
The Court of Appeals also thought Strait supported its long-arm approach to habeas jurisdiction. But Strait offers even less help than Braden. In Strait, we held that the Northern District of California had jurisdiction over Strait‘s “nominal” custodian—the commanding officer of the Army records center—even though he was physically located in Indiana. We reasoned that the custodian was “present” in California “through the officers in the hierarchy of the command who processed [Strait‘s] application for discharge.” 406 U. S., at 345. The Strait Court contrasted its broad view of “presence” in the case of a nominal custodian with a “‘commanding officer who is responsible for the day to day control of his subordinates,‘” who would be subject to habeas jurisdiction only in the district where he physically resides. Ibid. (quoting Arlen v. Laird, 451 F. 2d 684, 687 (CA2 1971)).
The Court of Appeals, much like JUSTICE STEVENS’ dissent, reasoned that Secretary Rumsfeld, in the same way as
Strait simply has no application to the present case. Strait predated Braden, so the then-applicable Ahrens rule required that both the petitioner and his custodian be present in California. Thus, the only question was whether Strait‘s commanding officer was present in California notwithstanding his physical absence from the district. Distinguishing Schlanger, supra, we held that it would “exalt fiction over reality” to require Strait to sue his “nominal custodian” in Indiana when Strait had always resided in California and had his only meaningful contacts with the Army there. 406 U. S., at 344-346. Only under these limited circumstances did we invoke concepts of personal jurisdiction to hold that the custodian was “present” in California through the actions of his agents. Id., at 345.
Here, by contrast, Padilla seeks to challenge his present physical custody in South Carolina. Because the immediate custodian rule applies to such habeas challenges, the proper respondent is Commander Marr, who is also present in South Carolina. There is thus no occasion to designate a “nominal” custodian and determine whether he or she is “present” in the same district as petitioner.15 Under Braden and the district of confinement rule, as we have explained, Padilla must file his habeas action in South Carolina. Were we to extend Strait‘s limited exception to the territorial nature of habeas jurisdiction to the context of physical-custody challenges, we would undermine, if not negate, the purpose of Congress in amending the habeas statute in 1867.
The proviso that district courts may issue the writ only “within their respective jurisdictions” forms an important
This rule, derived from the terms of the habeas statute, serves the important purpose of preventing forum shopping by habeas petitioners. Without it, a prisoner could name a high-level supervisory official as respondent and then sue that person wherever he is amenable to long-arm jurisdiction. The result would be rampant forum shopping, district courts with overlapping jurisdiction, and the very inconvenience, expense, and embarrassment Congress sought to avoid when it added the jurisdictional limitation 137 years ago.
III
JUSTICE STEVENS’ dissent, not unlike the Court of Appeals’ decision, rests on the mistaken belief that we have
Apparently drawing a loose analogy to Endo, JUSTICE STEVENS asks us to pretend that Padilla and his immediate custodian were present in the Southern District at the time counsel filed the instant habeas petition, thus rendering jurisdiction proper. Post, at 458-459. The dissent asserts that the Government “depart[ed] from the time-honored practice of giving one‘s adversary fair notice of an intent to present an important motion to the court,” when on June 9 it moved ex parte to vacate the material witness warrant and allegedly failed to immediately inform counsel of its intent to transfer Padilla to military custody in South Carolina. Post, at 459; cf. n. 3, supra. Constructing a hypothetical “scenario,” the dissent contends that if counsel had been immediately informed, she “would have filed the habeas application then and there,” while Padilla remained in the Southern District, “rather than waiting two days.” Post, at 458. Therefore, JUSTICE STEVENS concludes, the Government‘s alleged misconduct “justifies treating the habeas application as the functional equivalent of one filed two days earlier.” Post, at 459 (“[W]e should not permit the Government to obtain a tactical advantage as a consequence of an ex parte proceeding“).
The dissent cites no authority whatsoever for its extraordinary proposition that a district court can exercise statutory jurisdiction based on a series of events that did not occur, or that jurisdiction might be premised on “punishing” alleged Government misconduct. The lower courts—unlike the dissent—did not perceive any hint of Government misconduct or bad faith that would warrant extending Endo to a case where both the petitioner and his immediate custodian were
The dissent contends that even if we do not indulge its hypothetical scenario, the Court has made “numerous exceptions” to the immediate custodian and district of confinement rules, rendering our bright-line rule “far from bright.” Post, at 460. Yet the dissent cannot cite a single case in which we have deviated from the longstanding rule we reaffirm today—that is, a case in which we allowed a habeas petitioner challenging his present physical custody within the United States to name as respondent someone other than
Finally, the dissent urges us to bend the jurisdictional rules because the merits of this case are indisputably of “profound importance,” post, at 455, 460-461. But it is surely
The District of South Carolina, not the Southern District of New York, was the district court in which Padilla should have brought his habeas petition. We therefore reverse the judgment of the Court of Appeals and remand the case for entry of an order of dismissal without prejudice.
It is so ordered.
JUSTICE KENNEDY, with whom JUSTICE O‘CONNOR joins, concurring.
Though I join the opinion of the Court, this separate opinion is added to state my understanding of how the statute should be interpreted in light of the Court‘s holding. The Court‘s analysis relies on two rules. First, the habeas action must be brought against the immediate custodian. Second, when an action is brought in the district court, it must be filed in the district court whose territorial jurisdiction includes the place where the custodian is located.
These rules, however, are not jurisdictional in the sense of a limitation on subject-matter jurisdiction. Ante, at 434, n. 7. That much is clear from the many cases in which petitions have been heard on the merits despite their noncompliance with either one or both of the rules. See, e. g., Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 495 (1973); Strait v. Laird, 406 U. S. 341, 345 (1972); United States ex rel. Toth v. Quarles, 350 U. S. 11 (1955); Burns v. Wilson, 346 U. S. 137 (1953); Ex parte Endo, 323 U. S. 283 (1944).
In my view, the question of the proper location for a habeas petition is best understood as a question of personal jurisdiction or venue. This view is more in keeping with the opinion in Braden, and its discussion explaining the rules for the proper forum for habeas petitions. 410 U. S., at 493, 500 (indicating that the analysis is guided by “traditional
Because the immediate-custodian and territorial-jurisdiction rules are like personal-jurisdiction or venue rules, objections to the filing of petitions based on those grounds can be waived by the Government. Moore, supra, at 759; cf. Endo, supra, at 305 (“The fact that no respondent was ever served with process or appeared in the proceedings is not important. The United States resists the issuance of a writ. A cause exists in that state of the proceedings and an appeal lies from denial of a writ without the appearance of a respondent“). For the same reason, the immediate-custodian and territorial rules are subject to exceptions, as acknowledged in the Court‘s opinion. Ante, at 436, n. 9, 438-442, 444-446. This does not mean that habeas petitions are governed by venue rules and venue considerations that apply to other sorts of civil lawsuits. Although habeas actions are civil cases, they are not automatically subject to all of the Federal Rules of Civil Procedure. See
I would not decide today whether these habeas rules function more like rules of personal jurisdiction or rules of venue. It is difficult to describe the precise nature of these restrictions on the filing of habeas petitions, as an examination of the Court‘s own opinions in this area makes clear. Compare, e. g., Ahrens v. Clark, 335 U. S. 188 (1948), with Schlanger v. Seamans, 401 U. S. 487, 491 (1971), and Braden, supra, at 495. The precise question of how best to characterize the statutory direction respecting where the action must be filed need not be resolved with finality in this case. Here there has been no waiver by the Government; there is no established exception to the immediate-custodian rule or to the rule that the action must be brought in the district court with authority over the territory in question; and there is no need to consider some further exception to protect the integrity of the writ or the rights of the person detained.
For the purposes of this case, it is enough to note that, even under the most permissive interpretation of the habeas statute as a venue provision, the Southern District of New York was not the proper place for this petition. As the Court concludes, in the ordinary case of a single physical custody within the borders of the United States, where the objection has not been waived by the Government, the immediate-custodian and territorial-jurisdiction rules must
The Court has made exceptions in the cases of nonphysical custody, see, e. g., Strait, 406 U. S., at 345, of dual custody, see, e. g., Braden, 410 U. S., at 500, and of removal of the prisoner from the territory of a district after a petition has been filed, see, e. g., Endo, 323 U. S., at 306; see also ante, at 440-441, 444. In addition, I would acknowledge an exception if there is an indication that the Government‘s purpose in removing a prisoner were to make it difficult for his lawyer to know where the habeas petition should be filed, or where the Government was not forthcoming with respect to the identity of the custodian and the place of detention. In cases of that sort, habeas jurisdiction would be in the district court from whose territory the petitioner had been removed. In this case, if the Government had removed Padilla from the Southern District of New York but refused to tell his lawyer where he had been taken, the District Court would have had jurisdiction over the petition. Or, if the Government did inform the lawyer where a prisoner was being taken but kept moving him so a filing could not catch up to the prisoner, again, in my view, habeas jurisdiction would lie in the district or districts from which he had been removed.
None of the exceptions apply here. There is no indication that the Government refused to tell Padilla‘s lawyer where he had been taken. The original petition demonstrates that the lawyer knew where Padilla was being held at that time. Ante, at 449, n. 17. In these circumstances, the basic rules apply, and the District of South Carolina was the proper
Both Padilla‘s change in location and his change of custodian reflected a change in the Government‘s rationale for detaining him. He ceased to be held under the authority of the criminal justice system, see
The change in custody, and the underlying change in rationale, should be challenged in the place the Government has brought them to bear and against the person who is the immediate representative of the military authority that is detaining him. That place is the District of South Carolina, and that person is Commander Marr. The Second Circuit erred in holding that the Southern District of New York was a proper forum for Padilla‘s petition. With these further observations, I join the opinion and judgment of the Court.
JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.
The petition for a writ of habeas corpus filed in this case raises questions of profound importance to the Nation. The arguments set forth by the Court do not justify avoidance of our duty to answer those questions. It is quite wrong to characterize the proceeding as a “simple challenge to physical custody,” ante, at 441, that should be resolved by slavish application of a “bright-line rule,” ante, at 449, designed to prevent “rampant forum shopping” by litigious prison inmates, ante, at 447. As the Court‘s opinion itself demonstrates, that rule is riddled with exceptions fashioned to protect the high office of the Great Writ. This is an exceptional case that we clearly have jurisdiction to decide.
In May 2002, a grand jury convened in the Southern District of New York was conducting an investigation into the September 11, 2001, terrorist attacks. In response to an application by the Department of Justice, the Chief Judge of the District issued a material witness warrant authorizing Padilla‘s arrest when his plane landed in Chicago on May 8.1 Pursuant to that warrant, agents of the Department of Justice took Padilla (hereinafter respondent) into custody and transported him to New York City, where he was detained at the Metropolitan Correctional Center. On May 15, the court appointed Donna R. Newman, a member of the New York bar, to represent him. She conferred with respondent in person and filed motions on his behalf, seeking his release on the ground that his incarceration was unauthorized and unconstitutional. The District Court scheduled a hearing on those motions for Tuesday, June 11, 2002.
On Sunday, June 9, 2002, before that hearing could occur, the President issued a written command to the Secretary of Defense concerning respondent. “Based on the information available to [him] from all sources,” the President determined that respondent is an “enemy combatant,” that he is “closely associated with al Qaeda, an international terrorist organization with which the United States is at war,” and that he possesses intelligence that, “if communicated to the U. S., would aid U. S. efforts to prevent attacks by al Qaeda”
On the same Sunday that the President issued his order, the Government notified the District Court in an ex parte proceeding that it was withdrawing its grand jury subpoena, and it asked the court to enter an order vacating the material witness warrant. Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564, 571 (SDNY 2002). In that proceeding, in which respondent was not represented, the Government informed the court that the President had designated respondent an enemy combatant and had directed the Secretary of Defense, petitioner Donald Rumsfeld, to detain respondent. Ibid. The Government also disclosed that the Department of Defense would take custody of respondent and immediately transfer him to South Carolina. The District Court complied with the Government‘s request and vacated the warrant.2
On Monday, June 10, 2002, the Attorney General publicly announced respondent‘s detention and transfer “to the custody of the Defense Department,” which he called “a significant step forward in the War on Terrorism.” Amended Pet.
II
All Members of this Court agree that the immediate custodian rule should control in the ordinary case and that habeas petitioners should not be permitted to engage in forum shopping. But we also all agree with Judge Bork that “special circumstances” can justify exceptions from the general rule. Demjanjuk v. Meese, 784 F. 2d 1114, 1116 (CADC 1986). See ante, at 450, n. 18. Cf. ante, at 452 (KENNEDY, J., concurring). More narrowly, we agree that if jurisdiction was proper when the petition was filed, it cannot be defeated by a later transfer of the prisoner to another district. Ex parte Endo, 323 U. S. 283, 306 (1944). See ante, at 441.
It is reasonable to assume that if the Government had given Newman, who was then representing respondent in an adversary proceeding, notice of its intent to ask the District Court to vacate the outstanding material witness warrant and transfer custody to the Department of Defense, Newman would have filed the habeas petition then and there, rather than waiting two days.3 Under that scenario, respondent‘s
immediate custodian would then have been physically present in the Southern District of New York carrying out orders of the Secretary of Defense. Surely at that time Secretary Rumsfeld, rather than the lesser official who placed the handcuffs on petitioner, would have been the proper person to name as a respondent to that petition.
The difference between that scenario and the secret transfer that actually occurred should not affect our decision, for we should not permit the Government to obtain a tactical advantage as a consequence of an ex parte proceeding. The departure from the time-honored practice of giving one‘s adversary fair notice of an intent to present an important motion to the court justifies treating the habeas application as the functional equivalent of one filed two days earlier. See Baldwin v. Hale, 1 Wall. 223, 233 (1864) (“Common justice
Although the Court purports to be enforcing a “bright-line rule” governing district courts’ jurisdiction, ante, at 449, an examination of its opinion reveals that the line is far from bright. Faced with a series of precedents emphasizing the writ‘s “scope and flexibility,” Harris, 394 U. S., at 291, the Court is forced to acknowledge the numerous exceptions we have made to the immediate custodian rule. The rule does not apply, the Court admits, when physical custody is not at issue, ante, at 437-438, or when American citizens are confined overseas, ante, at 447, n. 16, or when the petitioner has been transferred after filing, ante, at 441, or when the custodian is “present” in the district through his agents’ conduct, ante, at 445. In recognizing exception upon exception and corollaries to corollaries, the Court itself persuasively demonstrates that the rule is not ironclad. It is, instead, a workable general rule that frequently gives way outside the context of “core challenges” to executive confinement. Ante, at 435.
In the Court‘s view, respondent‘s detention falls within the category of “core challenges” because it is “not unique in any way that would provide arguable basis for a departure from the immediate custodian rule.” Ante, at 442. It is, however, disingenuous at best to classify respondent‘s petition with run-of-the-mill collateral attacks on federal crimi-
“[W]e have consistently rejected interpretations of the habeas corpus statute that would suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements.” Hensley v. Municipal Court, San Jose-Milpitas Judicial Dist., Santa Clara Cty., 411 U. S. 345, 350 (1973). With respect to the custody requirement, we have declined to adopt a strict reading of Wales v. Whitney, 114 U. S. 564 (1885), see Hensley, 411 U. S., at 350, n. 8, and instead have favored a more functional approach that focuses on the person with the power to produce the body, see Endo, 323 U. S., at 306-307.4 In this case, the President entrusted the Secretary of De-
Since the Secretary is a proper custodian, the question whether the petition was appropriately filed in the Southern District is easily answered. “So long as the custodian can be reached by service of process, the court can issue a writ ‘within its jurisdiction’ requiring that the prisoner be brought before the court for a hearing on his claim . . . even if the prisoner himself is confined outside the court‘s territorial jurisdiction.” Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 495 (1973).5 See also Endo, 323 U. S., at 306 (“[T]he court may act if there is a respondent within reach of its process who has custody of the petitioner“). In this case, Secretary Rumsfeld no doubt has sufficient contacts with the Southern District properly to be served with process there. The Secretary, after all, ordered military personnel to that forum to seize and remove respondent.
When this case is analyzed under those traditional venue principles, it is evident that the Southern District of New York, not South Carolina, is the more appropriate place to litigate respondent‘s petition. The Government sought a material witness warrant for respondent‘s detention in the Southern District, indicating that it would be convenient for its attorneys to litigate in that forum. As a result of the Government‘s initial forum selection, the District Judge and counsel in the Southern District were familiar with the legal and factual issues surrounding respondent‘s detention both before and after he was transferred to the Defense Department‘s custody. Accordingly, fairness and efficiency counsel in favor of preserving venue in the Southern District. In sum, respondent properly filed his petition against Secretary Rumsfeld in the Southern District of New York.
III
Whether respondent is entitled to immediate release is a question that reasonable jurists may answer in different ways.8 There is, however, only one possible answer to the question whether he is entitled to a hearing on the justification for his detention.9
At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people‘s rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber.10 Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process.
Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.
I respectfully dissent.