* 124 S. Ct. 534; 157 L. Ed. 2d 407

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

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

3 Treaty Defining Relations with Cuba, May 29, 1934, U.S.-Cuba, Art. Ill, 48 Stat. 1683, T. S. No. 866 (hereinafter 1934 Treaty).

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

5 David Hicks has since been permitted to meet with counsel. Brief for United States 9.

6 1903 Lease Agreement, Art. III.

7 Justice Rutledge wrote: ” [I]f absence of the body detained from the territorial jurisdiction of the court having jurisdiction of the jailer creates a total and irremediable void in the court's capacity to act,… then it is hard to see how that gap can be filled by such extraneous considerations as whether there is no other court in the place of detention from which remedy might be had ….” 335 U.S., at 209.

8 Although Justice Scalia disputes the basis for the Court of Appeals’ holding, post, at 4, what is most pertinent for present purposes is that this Court clearly understood the Court of Appeals’ decision to rest on constitutional and not statutory grounds. Eisentrager, 339 U.S., at 767 (“[The Court of Appeals] concluded that any person, including an enemy alien, deprived of his liberty anywhere under any purported authority of the United States is entitled to the writ if he can show that extension to his case of any constitutional rights or limitations would show his imprisonment illegal; [and] that, although no statutory jurisdiction of such cases is given, courts must be held to possess it as part of the judicial power of the United States…” ((emphasis added)).

9 The dissent argues that Braden did not overrule Ahrens’ jurisdictional holding, but simply distinguished it. Post, at 7. Of course, Braden itself indicated otherwise, 410 U.S., at 495 — 500, and a long line of judicial and scholarly interpretations, beginning with then-Justice Rehnquist'S dissenting opinion, have so understood the decision. See, e.g., id. , at 502 (“Today the Court overrules Ahrens“); Moore v. Olson, 368 F. 3d 757,758 (CA7 2004) (“[A]fter Braden.., which overruled Ahrens, the location of a collateral attack is best understood as a matter of venue“); Armentero v. INS, 340 F. 3d 1058, 1063 (CA9 2003) (“[T]he Court in [Braden] declared that Ahrens was overruled” (citations omitted)); Henderson v. INS, 157 F. 3d 106, 126, n. 20 (CA2 1998) (“On the issue of territorial jurisdiction, Ahrens was subsequently overruled by Braden“); Chatman-Bey v. Thornburgh, 864 F. 2d 804,811 (CADC 1988) (en bane) (” [I]n Braden, the Court cut back substantially on Ahrens (and indeed overruled its territorially-based jurisdictional holding)“). See also, e.g., Patterson v. McLean Credit Union, 485 U.S. 617,618 (1988) (percuriam); Eskridge, Overruling Statutory Precedents, 76 Geo. L. J. 1361, App. A (1988). The dissent also disingenuously contends that the continuing vitality of Ahrens’ jurisdictional holding is irrelevant to the question presented in these cases, “inasmuch as Ahrens did not pass upon any of the statutory issues decided by Eisentrager.” Post, at 7. But what Justice Scalia describes as Eisentrager“s statutory holding — “that, unaided by the canon of constitutional avoidance, the statute did not confer jurisdiction over an alien detained outside the territorial jurisdiction of the courts of the United States,” post, at 6 — is little more than the rule of Ahrens cloaked in the garb of Eisentrager 's facts. To contend plausibly that this holding survived Braden, Justice Scalia at a minimum must find a textual basis for the rule other than the phrase “within their respective jurisdictions” — a phrase which, after Braden, can no longer be read to require the habeas petitioner's physical presence within the territorial jurisdiction of a federal district court. Two references to the district of confinement in provisions relating to recordkeeping and pleading requirements in proceedings before circuit judges hardly suffice in that regard. See post, at 2 (citing 28 U.S.C. §§2241(a), 2242).

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

11 See, e.g., King v. Schiever, 2 Burr. 765, 97 Eng. Rep. 551 (K. B. 1759) (reviewing the habeas petition of a neutral alien deemed a prisoner of war because he was captured aboard an enemy French privateer during a war between England and France); Sommersett v. Stewart, 20 How. St. Tr. 1, 79 — 82 (K. B. 1772) (releasing on habeas an African slave purchased in Virginia and detained on a ship docked in England and bound for Jamaica); Case of the Hottentot Venus, 13 East 195, 104 Eng. Rep. 344 (K. B. 1810) (reviewing the habeas petition of a “native of South Africa” allegedly held in private custody)). American courts followed a similar practice in the early years of the Republic. See, e.g., United States v. Villato, 2 Dall. 370 (CC Pa. 1797) (granting habeas relief to Spanish-born prisoner charged with treason on the ground that he had never become a citizen of the United States); Ex parte D'Olivera, 7 F. Cas. 853 (No, 3, 967) (CC Mass. 1813) (Story, J., on circuit) (ordering the release of Portuguese sailors arrested for deserting their ship); Wilson v. hard, 30 F. Cas. 131 (No. 17, 810) (CC NY 1815) (Livingston, J., on circuit) (reviewing the habeas petition of enlistees who claimed that they were entitled to discharge because of their status as enemy aliens).

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

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

14 Ex parte Mwenya held that the writ ran to a territory described as a “foreign country within which [the Crown] ha[d] power and jurisdiction by treaty, grant, usage, sufferance, and other lawful means.” Ex parte Mwenya, 1 Q. B., at 265 (internal quotation marks omitted). See also King v. The Earl of Crewe ex parte Sekgome, [1910] 2 K. B. 576, 606 (C. A.) (Williams, L. J.) (concluding that the writ would ran to such a territory); id. , at 618 (Farwell, L. J.) (same). As Lord Justice Sellers explained: “Lord Mansfield gave the writ the greatest breadth of application which in the then circumstances could well be conceived…. ‘Subjection’ is fully appropriate to the powers exercised or exercisable by this country irrespective of territorial sovereignty or dominion, and it embraces in outlook the power of the Crown in the place concerned.¹” 1 Q. B., at 310. Justice Scalia cites In re Ning Yi-Ching, 56 T. L. R. 3 (Vacation Ct. 1939), for the broad proposition that habeas corpus has been categorically unavailable to aliens held outside sovereign territory. Post, at 18. Ex pane Mwenya, however, casts considerable doubt on this narrow view of the territorial reach of the writ. See Exparte Mwenya, 1 Q. B., at 295 (Lord Evershed, M. R.) (noting that In re Ning Yi-Ching relied on Lord Justice Kennedy's opinion in Exparte Sekgome concerning the territorial reach of the writ, despite the opinions of two members of the court who “took a different view upon this matter“). And In re Ning Yi-Ching itself made quite clear that “the remedy of habeas corpus was not confined to British subjects,” but would extend to “any person … detained” within reach of the writ. 56 T. L. R., at 5 (citing Exparte Sekgome, 2 K. B., at 620 (Kennedy, L. J.)). Moreover, the result in that case can be explained by the peculiar nature of British control over the area where the petitioners, four Chinese nationals accused of various criminal offenses, were being held pending transfer to the local district court. Although the treaties governing the British Concession at Tientsin did confer on Britain “certain rights of administration and control,” “the right to administer justice” to Chinese nationals was not among them. 56 T. L. R., at 4 — 6.

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

1 See Tr. of Oral Arg. 5 (“Question: And you don't raise the issue of any potential jurisdiction on the basis of the Constitution alone. We are here debating the jurisdiction under the Habeas Statute, is that right?[Answer]: That's correct…”).

2 The parties’ submissions to the Court in Eisentrager construed the Court of Appeals’ decision as I do. See Pet. for Cert., O. T. 1949, No. 306, pp. 8 — 9 (” [T]he court felt constrained to construe the habeas corpus jurisdictional statute — despite its reference to the 'respective jurisdictions’ of the various courts and the gloss put on that terminology in the Ahrens and previous decisions — to permit a petition to be filed in the district court with territorial jurisdiction over the officials who have directive authority over the immediate jailer in Germany“); Brief for Respondent, O. T. 1949, No. 306, p. 9 (“Respondent contends that the U.S. Court of Appeals … was correct in its holding that the statute, 28 U.S.C. 2241, provides that the U.S. District Court for the District of Columbia has jurisdiction to entertain the petition for a writ of habeas corpus in the case at bar“). Indeed, the briefing in Eisentrager was mainly devoted to the question of whether there was statutory jurisdiction. See, e.g. , Brief for Petitioner, O. T. 1949, No. 306, pp. 15 — 59; Brief for Respondent, O. T. 1949, No. 306, pp. 9 — 27, 38 — 49.

3 The Court does not seriously dispute my analysis of the Court of Appeals’ holding in Eisentrager. Instead, it argues that this Court in Eisentrager “ understood the Court of Appeals’ decision to rest on constitutional and not statutory grounds.” Ante, at 10, n. 8. That is inherently implausible, given that the Court of Appeals’ opinion clearly reached a statutory holding, and that both parties argued the case to this Court on that basis, see n. 2, supra. The only evidence of misunderstanding the Court adduces today is the Eisentrager Court's description of the Court of Appeals’ reasoning as “that, although no statutory jurisdiction of such cases is given, courts must be held to possess it as part of the judicial power of the United States ….” 339 U.S., at 767. That is no misunderstanding, but an entirely accurate description of the Court of Appeals’ reasoning — the penultimate step of that reasoning rather than its conclusion. The Court of Appeals went on to hold that, in light of the constitutional imperative, the statute should be interpreted as supplying jurisdiction. See Eisentrager v. Forrestal, 174 F. 2d 961, 965 — 967 (CADC 1949). This Court in Eisentrager undoubtedly understood that, which is why it immediately followed the foregoing description with a description of the Court of Appeals' conclusion tied to the language of the habeas statute: “[w]here deprivation of liberty by an official act occurs outside the territorial jurisdiction of any District Court, the petition will lie in the District Court which has territorial jurisdiction over officials who have directive power over the immediate jailer.“

4 The Court points to Court of Appeals cases that have described Braden as “overruling” Ahrens. See ante, at 11, n. 9. Even if that description (rather than what I think the correct one, “distinguishing“) is accepted, it would not support the Court's view that Ahrens was overruled with regard to the point on which Eisentrager relied. The ratio decidendi of Braden does not call into question the principle of Ahrens applied in Eisentrager. that habeas challenge to present physical confinement must be made in the district where the physical confinement exists. The Court is unable to produce a single authority that agrees with its conclusion that Braden overruled Eisentrager. Justice Kennedy recognizes that Eisentrager controls, ante, at 1 (opinion concurring in judgment), but misconstrues that opinion. He thinks it makes jurisdiction under the habeas statute turn on the circumstances of the detainees’ confinement — including, apparently, the availability of legal proceedings and the length of detention, see ante, at 3 — 4. The Eisentrager Court mentioned those circumstances, however, only in the course of its constitutional analysis, and not in its application of the statute. It is quite impossible to read §2241 as conditioning its geographic scope upon them. Among the consequences of making jurisdiction turn upon circumstances of confinement are (1) that courts would always have authority to inquire into circumstances of confinement, and (2) that the Executive would be unable to know with certainty that any given prisoner-of-war camp is immune from writs of habeas corpus. And among the questions this approach raises: When does definite detention become indefinite? How much process will suffice to stave off jurisdiction? If there is a terrorist attack at Guantanamo Bay, will the area suddenly fall outside the habeas statute because it is no longer “far removed from any hostilities,” ante, at 3 ? Justice Kennedy'S approach provides enticing law-school-exam imponderables in an area where certainty is called for.

5 The Court argues at some length that Ex parte Mwenya, [1960] 1 Q. B. 241 (C. A.), calls into question my reliance on In re Ning Yi-Ching. See ante, at 15, n. 14. But as I have explained, see supra, at 17 — 18, Mwenya dealt with a British subject and the court went out of its way to explain that its expansive description of the scope of the writ was premised on that fact. The Court cites not a single case holding that aliens held outside the territory of the sovereign were within reach of the writ.

6 The Court grasps at two other bases for jurisdiction: the Alien Tort Statute (ATS), 28 U.S.C. § 1350, and the federal-question statute, 28 U.S.C. §1331. The former is not presented to us. The ATS, while invoked below, was repudiated as a basis for jurisdiction by all petitioners, either in their petition for certiorari, in their briefing before this Court, or at oral argument. See Pet. for Cert, in No. 03 — 334, p. 2, n. 1 (“Petitioners withdraw any reliance on the Alien Tort Claims Act…“);Brief for Petitioners in No. 03 — 343,p. 13; Tr. of Oral Arg.6. With respect to §1331, petitioners assert a variety of claims arising under the Constitution, treaties, and laws of the United States. In Eisentrager, though the Court's holding focused on §2241, its analysis spoke more broadly: “We have pointed out that the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.” 339 U.S., at 777 — 778. That reasoning dooms petitioners’ claims under §1331, at least where Congress has erected a jurisdictional bar to their raising such claims in habeas.

7 It could, for example, provide for jurisdiction by placing Guantanamo Bay within the territory of an existing district court; or by creating a district court for Guantanamo Bay, as it did for the Panama Canal Zone, see 22 U.S.C. §3841(a) (repealed 1979).