+ The Honorable Milton I. Shadur, Senior United States District Judge for the Northern District of Illinois, sitting by designation.

1 For convenience, we sometimes refer to Guantanamo Naval Base as “Guantanamo” and sometimes simply as “the Base.”

2 Although there is a dearth of official reports as to the conditions at Guantanamo, there have been a number of newspaper stories reporting on the subject, including interviews with Afghani and Pakistani citizens released without the filing of charges. Some of the prisoners released have said that the uncertainty of their fate, combined with linguistic isolation from others with whom they could communicate, confinement in very small cells, little protection from the elements, and being allowed only one one-minute shower per week led a number of detainees to attempt suicide multiple times. See Carlotta Gall & Neil A. Lewis, Threats arid- Responses: Captives; Tales of Despair from Guantanamo, N.Y. Times, June 17, 2003, at Al; see also Neil A. Lewis, Red Cross Criticizes Indefinite Detention in Guantanamo, N.Y. Times, Oct. 10, 2003, at Al (reporting that in 18 months, 21 detainees have made 32 suicide attempts, a high incidence which human rights groups attribute to the uncertainty of their situation).

3 See Neil A. Lewis, U.S. Erecting a Solid Prison at Guantanamo for Long Term, N.Y. TIMES, Oct. 23, 2003, at A20 (discussing the building of a hard-walled traditional prison as an acknowledgment that detainees from Afghanistan will be kept for years).

4 From here on, “Gherebi” refers to the detainee, Faren Gherebi, rather than to his brother and next friend, Belaid.

5 The Petition read, in relevant part:

• 2

  2 Beginning on or about January 11, 2002, and continuing to date, respondents under force of arms and involuntary brought to U.S. Naval Station, Guantanamo Bay, Cuba (hereinafter “Gitmo”), under the exclusive and complete jurisdiction of respondents in the nation of Cuba, Gheredi, whom respondents captured in the nation of Afghantisan.

• 3

  3 Gherebi continues to be held against his will, illegally, under force of arms, incommunicado, and in violation of the United States Constitution and the Third Geneva Convention, and he has been denied access to legal representatives.

• 4

  4 Respondents have characterized Gherebi as an “unlawful combatant,” and have denied him status as a prisoner of war, have denied him rights under the United States Constitution, and have denied him access to the United States Courts.

• 5

  5 Gherebi is unlawfully detained.

• 6

  6 Respondents are the persons who have illegal and exclusive custody of Gherebi.

6 In a memorandum filed with this Court, Gherebi stated:

7 Gherebi argues that the government's policy of“ indefinite detention” is violati ve of international law. While we recognize the gravity of Gherebi's argument, we need not resolve that question in this proceeding. We note, however, that the government's position here is at odds with the United States’ longtime role as a leader in international efforts to codify and safeguard the rights of prisoners in wartime. It is also at odds with one of the most important achievements of these efforts — the 1949 Geneva Conventions, which require that a competent tribunal determine the status of captured prisoners. Article 5 of the Third Geneva Convention provides:

Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12,1949, art. 5, 6 U.S.T. 3316,75 U.N.T.S. 135. In Johnson v. Eisen trager, itself, the Court discussed the United States’ international obligations under the predecessor Convention, which did not even contain the due process rights afforded prisoners of war in the 1949 Treaty. The Court explained:

339 U.S. at 789 n. 14. The government's own regulations have adopted this same requirement. See Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, U.S. Army Regulation 190-8, ch. 1-5, f a, Applicable to the Departments of the Army, the Navy, the Air Force, and the Marine Corps, Washington D.C. (Oct. 1, 1997) (“All persons taken into custody by U.S. forces will be provided with the protections of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War (“GPW”) until some legal status is determined by competent authority.”). The requirement of judicial review of executive detention is also reflected in the International Covenant on Civil and Political Rights, to which the United States is a party. See International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, art. 9,1 4 (“Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that a court may decide without delay on the lawfulness of his detention ….”). Here, however, the government has maintained that the Guantanamo detainees do not enjoy any substantive protections as a matter of right pursuant to our international obligations; instead, it has asserted only that it will apply ”the principles” of the Third Geneva Convention “to the extent appropriate and consistent with military necessity.” Office of the Press Secretary, Fact Sheet, Status of Detainees at Guantanamo, Feb. 7, 2002, at I, at<http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html.>

8 Although the Court discussed the question whether certain Fifth Amendment rights were available to enemy soldiers (and stated that they were not), the essence of its holding is as set forth above. Certainly, the government construes Johnson as foreclosing the right of enemy aliens to file habeas petitions in cases in which there is no relevant connection with U.S. territorial jurisdiction or sovereignty, as the case may be. We accept that construction for purposes of this appeal. We also believe it to be the most reasonable construction of the Court's decision. Whether that decision should stand is, of course, a matter for the Supreme Court and not for us.

9 The United States occupies Guantanamo under a lease entered into by President Theodore Roosevelt with the Cuban government in 1903, supplemented by a 1903 agreement, and continued in effect by a subsequent treaty executed by President Franklin Delano Roosevelt in 1934. The treaty is of indefinite duration and cannot be terminated without the United States’ agreement, or the abandonment of the base property by the United States. The 1903 Lease was meant to implement the provisions of Article VII of a 1901 Act of Congress (and of Article VII of the Appendix to the Constitution of Cuba) (the “Platt Amendment”) providing for the sale or lease of land to the U.S. for coaling or naval stations “to enable the United States to maintain the independence of Cuba, and to protect the people thereof, as well as for its own defense” following the Spanish-American War. See Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval Stations, Feb. 16-23, 1903, U.S.-Cuba, T.S. 418 (excerpting Article VII and explaining this purpose) [hereinafter “the 1903 Lease”]. Article III of the Lease reads, in pertinent part:

Id., art. Ill (emphasis added). Under a supplementary agreement, the United States was afforded the exclusive right to try citizens and non-citizens for crimes committed on the Base. Article IV reads, in relevant part:

10 There was no lease or treaty conveying total and exclusive U.S. jurisdiction and control over Landsberg. In fact, after Landsberg was taken over by U.S. forces following World War II, three flags flew over the town: the American, British, and French flags. See History of Landsberg Airbase, < http://www.furstytreemoverslandsbergbavarians.org/historyoflandsberg.htm>(last visited Nov. 10, 2003). Although the Johnson petitioners were held pursuant to conviction by proceedings conducted under U.S. auspices, the Landsberg criminal facility was formally designated with the purpose of serving as a prison where executions of war criminals convicted during theAllied trials at Nuremberg, Dachau and Shanghi would be carried out, and the arrangement was dissolved a little more than a decade thereafter, in May 1958.See Landsberg Prison for War Criminals, < http://www.buergervereinigunglandsberg.org/english/warcriminals/warcriminals.shtml>(last visited at Nov. 10, 2003).That the named respondents in Johnson — the Secretary of Defense, Secretary of the Army, Chief of Staff of the Army, and the Joint Chiefs of Staff — denied that petitioner's immediate custodian, the Commanding General of the European Command, “was subject to their direction,” is telling of the less than exclusive nature of U.S. control over the prison. Johnson, 339 U.S. at 766-68.

11 The Court spoke to the issue of the extraterritorial situs of petitioners in eight instances in the opinion; at only two of these points does the term “sovereign” or “sovereignty” appear. See, e.g., 339 U.S. at 768 (“We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction.“) (emphasis added); id. at 771 (“But in extending constitu-tional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act.“) (emphasis added). Moreover, the dissent never uses the word “sovereignty” and strongly criticizes the majority for making “territorial jurisdiction” the touchstone of the jurisdictional inquiry. See id. at 952 (Black, J., dissenting) (“Conceivably a majority may hereafter find citizenship a sufficient substitute for territorial jurisdiction and thus permit courts to protect Americans from illegal sentences. But the Court's opinion inescapably denies courts power to afford the least bit of protection for any alien who is subject to our occupation government abroad, even if he is neither enemy nor belligerent and even after peace is officially declared.“) (emphasis added).

12 At least two Justices of the current Court appear to agree. See Zadvydas v. Davis, 533 U.S. 678,704 n.* (2001) (Scalia, J., dissenting) (stating, in a dissent joined by Justice Thomas, that Johnson involved the “military's detention of enemy aliens outside the territorial jurisdiction of the United States“) (emphasis added). That Johnson should not be read to foreclose jurisdiction where the United States exercises exclusive authority and control is bolstered by Justice Jackson's own dissent several years later in Shaughnessy v. U.S. ex. rel. Mezei, 345 U.S. 209, 218 (1953), in which the author of the Johnson majority opinion expressed strong views about the requisites of procedural due process where an alien was detained indefinitely on a unique parcel of U.S. territory, “in his temporary haven on Ellis Island.” Id. at 207. In Shaughnessy, an alien immigrant permanently excluded from the United States on security grounds, and functionally detained indefinitely on Ellis Island because other countries would not take him back, petitioned for habeas corpus asserting unlawful confinement. The majority treated his case like a regular exclusion proceeding, and denied Mezei's petition. In vigorous dissent, Justice Jackson wrote:

Id. at 632-37. Although the legal status of Guantanamo is not as clear-cut as that of Ellis Island, the eloquent words of Johnson's author carry a powerful message for the present case and caution strongly against a narrow reading of his earlier decision.

13 For example, in United States v. Rogers, 388 F. Supp. 298, 301 (E.D. Va. 1975), a U.S. civilian employee, working on the Naval Base at Guan tanamo Bay under a contract with the Navy, was prosecuted in the Eastern District of Virginia for drug offenses committed on the Base in violation of 21 U.S.C. §§ 841, 846. In considering Rogers’ motion to suppress and Fourth Amendment claim, the court reasoned:

Id. See also United States v. Lee, 906 F.2d 117, 117 & n.l (4th Cir. 1990) (per curiam) (appeal from dismissal of indictment of Jamaican national who had been charged with sexual abuse that allegedly occurred on Guantanamo. The government served subpoenas on all defense witnesses and transported them to Norfolk, Virginia, the site of the trial.); Haitian Ctrs. Council Inc. v. McNary, 969 F.2d 1326, 1342 (2d Cir. 1992), vacated as moot sub. nom. Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 918 (1993) (describing testimony, in the context of this Second Circuit trial, consistent with applying U.S. criminal law to citizens and non-citizens accused of crimes on the Base).

14 In Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003), cert, granted, 2003 WL 22070725 (Nov. 10, 2003), the only other Court of Appeals decision to consider the question presented here, the DC Circuit rejected petitioners’ arguments that Johnson “does not turn on technical definitions of sovereignty or territory,” and opined that the text of the leases shows that Cuba — not the United States — has sovereignty over Guantanamo. 321 F.3d at 1142-43. In so holding, the DC Circuit relied in part on Cuban Am. BarAss'n v. Christopher, 43 F.3d 1412 (1 lth Cir. 1995), in which the Eleventh Circuit rejected the argument that” ‘control and jurisdiction' is equivalent to sovereignty,” id. at 1425, to find that Cuban and Haitian migrants interdicted on the seas and detained outside the physical borders of the United States at Guantanamo were without constitutional and statutory rights cognizable in the courts of the United States.The Second Circuit, however, expressed a contrary view three years before Cuban American. In Haitian Ctrs., 969 F.2d at 1341-45, the Second Circuit affirmed a preliminary injunction prohibiting the government from returning to Haiti Haitian nationals interdicted at sea and detained at Guantanamo in the absence of a fair adjudication as to whether they were bonafide asylees. In its opinion, the court expressly distinguished Johnson, noting that Johnson, “which involved convicted, enemy aliens in occupied territories outside the United States,” does not resolve the question of whether “the fifth amendment applies to non-accused, non-hostile aliens held incommunicado on a military base within the exclusive control of the United States, namely Guantanamo Bay.” 969 F.2d at 1343. The Second Circuit further explained:

Id. Although Haitian Centers was subsequently vacated as moot pursuant to party settlement, see Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 918 (1993), we find the Second Circuit's views to be persuasive, see Edwards v. Madigan, 281 F.2d 73, 78 n.3 (9th Cir. 1960), and have, in fact, recently cited this case with approval. See Corey, 232 F.3d at 1172.

15 A former Commander of the Base has expressed the same view of U.S. sovereign authority in Guantanamo in his history of the Naval Base, posted on the U.S. Navy's official website. He writes:

Caricom The History of Guantanamo Bay, vol. I, ch. Ill, at <http://www.nsgtmo.navy.mil/gazette/History98-64/hischp3.htm> (last visited Nov. 10, 2003).

16 The government also argues that the definition of this pivotal term in the Spanish version of the Treaty (soberania “definitiva“) lends support for a qualitative construction of “ultimate.” The government defines “definitiva” as “que no admite cambios” or “not subject to change,” and then contends, relying on U.S. v. Percheman, 32 U.S.(7 Pet.) 51, 88 (1833), that” ‘ultimate’ itself is more naturally defined in this context as ‘basic, fundamental, original, primitive.'” It is this definition, the government argues, that best comports with Percheman's doctrine that “if the English and Spanish parts can, without violence, be made to agree, that construction which establishes this conformity ought to prevail.” 32 U.S. at 88.The government's construction inverts the conclusion that the Perche-man doctrine compels. In fact, the Spanish definition of this pivotal term offers further support for a temporal construction of “ultimate.” “Definitiva” can mean either 1) final; that which concludes (“temporal”) or 2) decisive (“qualitative“), but even where “definitiva” is defined in qualitative terms, it always has a temporal element. For example, the authoritative dictionary of the Spanish language defines “definitiva” in both temporal and qualitative terms as “que decide, resuelve o concluye,” or “that which decides, resolves, or concludes” (emphasis added). See Real Caricom Academia Espanola, at<http://www.rae.es/> (last visited Nov. 10, 2003). To illustrate a common usage of the term, this dictionary then offers the oft-cited mixed “temporal“/ “qualitative” example of “sentencia deflnitiva” or “final judgment of conviction” — a judgment that is both final and decisive; a judgment that is both last in time and that constitutes the dispositive order. Id.; see also Gran Diccionario Larousse 214 (2002) (giving as an example for “definitiva” another mixed “temporal“/“qualitative” example, “El proyecto definitivo” translated as “the final plan.“). Other Spanish dictionaries confirm that “definitiva” is subject to both temporal and qualitative meanings, see, e.g., Diccionario VOX, at <http://www.diccionarios.com> (last visited Nov. 10, 2003) (defining “definitiva” as “que decide o concluye,” or, “that which decides or concludes“), and Spanish-English dictionaries also support a dual temporal/qualitative definition.See Larousse Caricom Dictionary 84 (1989) (defining “definitiva” in English as “definitive; final“); American Heritage Spanish Dlctionary, af <http://education.yahoo.com/reference/dictenes/('to«v«(ferfA'ov.> 10,2003) (same).Thus,under Percheman's doctrine, the analysis is formulaic and the answer evident: because the English word “ultimate” is principally defined in temporal terms, and the Spanish term “definitiva” is susceptible to either temporal or qualitative definitions, or a mixed definition, it is the temporal definition that prevails.

17 The division or sharing of sovereignty is commonplace. Sovereignty “is not an indivisible whole[.]” Caricom Webster's Third New International 2179 (defining “sovereignty“). See also Jones v. U.S., 137 U.S. 202, 212 (1890) (recognizing a distinction between dejure and de facto sovereignty).

18 To the extent that the Lease purported to limit the types of activities the U.S. may conduct, that particular aspect of the agreement lost any and all practical and legal significance when the U.S. ceased to recognize Cuba diplomatically in 1961, and began thereafter to act in direct contravention of the terms of the agreement, up to and including the present use of Guantanamo as a prisoner of war camp for suspected Taliban fighters. See infra Part II(A)(3). In any event, even while effective, the limitation did not curtail the United States’ exclusive authority and control over the Base, serve to reserve qualitative sovereignty to Cuba during the period of U.S. occupation, or afford any rights to Cuba to exercise any jurisdiction during the unlimited period of U.S. dominion and control. See, e.g., 29 Op. Att'y Gen. 269, 270-71 (1911) (“[W]hen property is acquired by one state in another state by virtue of a treaty, any sovereignty which may attach to the property so acquired is limited by the terms on which, and the purposes for which, the property was acquired .. . There seems to be nothing in reason or in law which prohibits such a situation.“).

19 In a January 11, 2002 statement issued to the international community as the detainees were arriving at Guantanamo, the Cuban government lamented the unfair conditions imposed by the Treaty and its powerlessness to stop U.S. transgressions. The Statement reads, in part:

Statement by the Government of Cuba to the National and International Public Opinion, at <http://ciponline.org/cuba/cubaproject/cubanstatement.htm.>

20 The U.S. Navy's official website explains:

Guantanamo Bay, A Brief History, at<http://www.nsgtmo.navy.mil/Default.htm>(last visited Nov. 10, 2003).

21 Black's Law Dictionary defines sovereignty, in pertinent part, as:

Black'S Law Dictionary 1396 (emphasis added).

Similarly, Webster's Third International defines sovereignty, in relevant part, as:

22 The Guantanamo Lease was signed by the President of Cuba on February 16, 1903 and President Theodore Roosevelt on February 23, 1903. The Canal Zone Treaty was concluded on November 18, 1903, and was subsequently signed by President Roosevelt and ratified by the Senate in February 1904 before being proclaimed on February 25, 1904.

23 Like the 1903 Lease agreements and continuing Treaty governing the terms of U.S. control over Guantanamo, supra note 9, Article II of the Convention for the Construction of a Ship Canal (Hay-Bunau-Varilla Treaty) cedes to the U.S. without temporal limitation all power and authority over the Zone. In the case of the Canal Zone, the purpose was “for the construction, maintenance, operation, sanitation and protection of said Canal.” Convention for the Construction of a Ship Canal to Connect the Waters of the Atlantic and Pacific Oceans, Nov. 18,1903, U.S.-Panama, art. II, 33 Stat. 2234, T.S. 431. Article XIV provides for, inter alia, the annual payment during the life of the Convention of two hundred and fifty thousand dollars. Id., art. XIV. Cf. 1903 Supplemental Agreement, supra note 9, art. I (providing for the lease payment to Cuba). Similar to Article III of the 1903 Guantanamo Lease, Article III of the Canal Zone Convention further provides:

Id., art. III. Moreover, like Article III of the 1903 Guantanamo Lease, supra note 9, Article VII goes on to provide the U.S. with “the right to acquire by purchase or by the exercise of the right of eminent domain, any lands, buildings, water rights or other properties necessary and convenient for the construction, maintenance, operation and protection of the Canal and of any works of sanitation^]” Id., art. VII. Under a subsequent treaty executed in 1939 by the same President that signed the 1934 continuing Treaty with Cuba, President Franklin Delano Roosevelt, the U.S. agreed to additional terms that, inter alia, limited business enterprises in the Canal Zone to those directly connected with the canal (and a limited number of truck farmers who had established their farms prior to the treaty). General Treaty of Friendship and Cooperation Between the United States of America and Panama, March 2, 1939, U.S.-Panama, 53 Stat. 1807, T.S. No. 945. Cf 1903 Supplemental Agreement, supra note 9, art. Ill (limiting commercial and industrial enterprises on the Guantanamo Base). At the same time, Article XI of the 1939 Treaty preserved the respective rights and obligations of the parties under the original 1903 agreement including, in the case of the U.S., all the rights that ordinarily pertain to sovereignty. Cf. Treaty Defining Relations with Cuba, supra note 9, art. Ill (continuing the 1903 lease agreements governing the Guantanamo Base).

24 The U.S. did, in fact, return the Canal Zone to Panama in December 1999, after years of protests by Panamanians over the unfairness of the 1903 Treaty and its cession of Panamanian territory to the United States. See Panama Canal Treaty, Sept. 7, 1977, U.S. — Panama, 33 U.S.T. 47 (establishing the basis for the 1999 re-transfer).

25 The government places much reliance on comments volunteered in the Court's opinion in Vermilya-Brown v. Connell, 335 U.S. 377 (1948), a case in which the Court held that the Fair Labor Standards Act applies to work performed on territory in Bermuda leased for use as a military base for a finite term of 99 years. See Agreement and Exchanges of Notes Between the United States of America and Great Britain Respecting Leased Naval and Air Bases, Mar. 27, 1941, U.S. — Great Britain, 55 Stat. 1560, E.A.S. No. 235. In Vermilya-Brown, after accepting, for purposes of the opinion, the Secretary of State's view that the U.S. did not obtain sovereignty over the territory in Bermuda, the Court likened the Bermuda lease to the agreements entered into with Cuba and Panama. The Court in Vermilya-Brown had no occasion to rule on the legal status of either the Cuban or Panamanian agreements, and its comments regarding their similarity to, the Bermuda lease were not material to its discussion. The Court was construing the term “territory or possession of the United States” as used in the Act, and afforded it a broad sweep covering territory over which the U.S. exercised sovereign jurisdiction as well as territory over which it did not. Its holding was that the FLSA applied in Bermuda, as it did in Guantanamo and the Canal Zone. Viewed in this light, we do not believe that the Court would consider its observations regarding the similarity of the various agreements to constitute a determination of a fundamental issue of law dispositive of important constitutional rights. Nor do we believe that it would expect the lower courts to treat them as such.

26 Crimes on the base involving military personnel are typically handled by a U.S. Navy-Marine Corps Court. See, e.g., U.S. v. Elmore, 56 MJ 533 (2001) (Court of Criminal Appeals); U.S. v. Bobroff, 23 MJ 872 (1987) (Court of Military Review). Base commanders are required to hold for civil authorities any person not subject to the Uniform Code of Military Justice who is suspected of criminal activity. See Rogers, 388 F. Supp. at 301 (discussing Navy Regulations (1973, Section 0713)).

27 See, e.g., American College of Trial Lawyers, CaricomReport On Military Commissions For The Trial Of Terrorists 8 (Mar. 2003)(“[T]he placement of the detainees at Guantanamo, w[as] carefully designed to evade judicial scrutiny and to test the limits of the President's constitutional authority.“).

28 Gherebi names Secretary Rumsfeld, as well as President Bush and other military and civilian officials, as respondents. The government asserts that the proper respondents in the instant case are at the Pentagon, and therefore that the only court that has territorial jurisdiction over the appropriate custodians is the U.S. District Court for the Eastern District of Virginia. The government has not, however, moved to dismiss the petition against respondents other than Secretary Rumsfeld. Nor do they contend that the appropriate respondent is the “immediate custodian” rather than the “ultimate custodian.” See, e.g., Sanders v. Bennett, 148 F.2d 19, 20 (D.C. Cir. 1945); Monk v. Sec'y of the Navy, 793 F.2d 364 (D.C. Cir. 1986). We agree that the proper custodian is Secretary Rumsfeld. See, e.g., Armentero v. INS, 340 F.3d 1058, 1063 (9th Cir. 2003) (holding that the “most appropriate respondent to petitions brought by immigration detainees is the individual in charge of the national government agency under whose auspices the alien is detained“). While it was the President who directed the Department of Defense to conduct the military operations in Afghanistan, it is the Defense Department rather than the White House that will decide (at least in form) whether Gherebi is released from Guantanamo. It is also the Defense Department that maintains the Base and has custody over all prisoners. Because the appropriate individual respondent is the head of the national government agency under whose auspices the alien is detained, Donald Rumsfeld is the appropriate respondent in this proceeding. We also note that this Court's power to direct the President to perform an official act raises constitutional questions easily avoided by naming the Secretary alone. See Franklin v. Massachusetts, 505 U.S. 788 (1992). Accordingly, we conduct our analysis as if the Secretary were the single named respondent in this case.

29 For an analysis of personal jurisdiction under California law, see generally Doe v. Unocal Corp., 248 F.3d 915 (9th Cir. 2001), reh'g en bane granted and opinion vacated by Doe v. Unocal Corp., 2003 WL 359787 (9th Cir. 2003).

30 In fact, it was only in a footnote that the government urged that the case be transferred, and then only for want of jurisdiction under 28 U.S.C. § 1631. While we reject that argument on the basis of our holding that jurisdiction lies in the Central District, the question of transfer pursuant to 28 U.S.C. § 1404(a) presents a distinct issue. Neither party has addressed this question, nor has the government filed a motion to transfer in connection therewith. Thus, it is only because of the unique circumstances surrounding this appeal that we mention the issue, although we do not resolve it here.

31 Under 28 U.S.C. § 1406(a), if a case is filed in the wrong district, a district court “shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” See King v. Russell, 963 F.2d 1301, 1303-04 (9th Cir. 1992).

32 For example, both the habeas movant and his counsel are located in California, see Gulf Oil, 330 U.S. at 509 (location of movant a factor to consider); Padilla v. Rumsfeld, 233 F. Supp.2d 564, 587 (S.D.N.Y. 2002) (location of counsel a factor to consider), and because the Central District court is already familiar with the case, transfer may lead to delay. CFTC v. Savage, 611 F.2d 270, 279 (9th Cir. 1979). Further, neither of the two “particularly important” factors bearing on convenience and venue in alien habeas cases appear to weigh in favor of transfer in this case: on the one hand, there is a legitimate concern that transfer of Guantanamo detainees' individual petitions to the Eastern District of Virginia could flood the jurisdiction “beyond the capability of the district court to process in a timely fashion,” see Henderson, 157 F.3d at 127; Strait, 406 U.S. at 345; conversely, the danger of forum-shopping may not pose a significant risk here because traditional venue doctrine would insure that these next-friend suits are brought in the district of residence of the habeas movant, see Henderson, 157 F.3d at 127. See also Armentero, 340 F.3d at 1069-70.

1 Two of our sister circuits have reached the identical conclusion. SeeAl Odah v. United States, 321 F.3d 1134,1143 (D.C. Cir. 2003), cert, granted, 72 U.S.L.W. 3323 (U.S. Nov. 10, 2003) (No. 03-334) (“Rasul“), and 72 U.S.L.W. 3327 (U.S. Nov. 10, 2003) (No. 03-343) (“Al Odah“) (consolidated); Cuban Am. BarAss'n v. Christopher, 43 F.3d 1412, 1425 (11th Cir. 1995).

2 In addition to the Guantanamo Lease, other agreements between the United States and Cuba are relevant. The two governments agreed on July 2, 1903, to the so-called “Parallel Treaty,” which “conclude[d] the conditions of the lease” signed in February 1903. Lease of Certain Areas for Naval or Coaling Stations, July 2, 1903, T.S. No. 426 (“Parallel Treaty“), pmbl. The Parallel Treaty also set additional terms (such as the amount of annual rent) affecting the Guantanamo Lease. Additionally, the 1934 U.S.-Cuba Treaty maintained that the “supplementary agreement in regard to naval or coaling stations signed between the two Governments on July 2, 1903, also shall continue in effect in the same form and on the same conditions with respect to the naval station at Guantanamo.“ Treaty Between the United States of America and Cuba Defining Their Relations, May 29,1934, U.S. — Cuba, art. Ill, 48 Stat. 1682, 1683.

3 Under Article 31.1 of the Vienna Convention,” [a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose!.” Vienna Convention on the Law of Treaties, May 23,1969, art. 31.1,1155 U.N.T.S. 331 (Jan. 27,1980) (emphasis added). Although the United States is not a signatory to the Vienna Convention, it is the policy of the United States to apply Articles 31 and 32 as customary international law. Gonzalez v. Gutierrez, 311 F.3d 942, 949 n.15 (9th Cir. 2002).

4 To the extent that the Lease is better seen as a contract, similar rules require us to give each word meaning. See Cree v. Waterbury, 78 F.3d 1400, 1405 (9th Cir. 1996) (explaining the rule of contract construction that “a court must give effect to every word or term employed by the parties and reject none as meaningless or surplusage in arriving at the intention of the contracting parties” (internal quotation marks omitted)). Sovereignty is not always an all-or-nothing concept. “Partial sovereignty” and the concurrent existence of “joint sovereigns” are well- established concepts in American law. For example, this concept of less-than- complete sovereignty is at the heart of our federal system: the States are “sovereign” but subject to requirements imposed by the Federal Constitution. Thus, the Supreme Court has explained the purpose of the Eleventh Amendment as being “rooted in a recognition that the States, although a union, maintain certain attributes of sovereignty, including sovereign immunity.” P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139,146 (1993); see also Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 765 (2002) (explaining that the central purpose of the sovereign immunity doctrine is to “accord the States the respect owed them as joint sovereigns” (internal quotation marks omitted)). Thus, in theory, Cuba could have ceded some, but not all, of its sovereignty over Guantanamo to the United States.

5 Guantanamo Lease, art. II (“The grant… shall include the right… to do any and all things necessary to fit the premises for use as coaling or naval stations only, and for no other purpose.” (emphasis added)).

6 Parallel Treaty, art. I (“The United States of America agrees and cove-nants to pay to the Republic of Cuba the annual sum of two thousand dollars, in cold coin of the United States, as long as the former shall occupy and use said areas of land by virtue of said agreement.“).

7 Guantanamo Lease, art. II.

8 Although the United States may have violated the Lease in a number of ways, holding prisoners at Guantanamo does not appear to be one of them. Under the Lease, the United States is entitled to maintain a Navy base at Guantanamo. Navy bases commonly contain brigs to hold prisoners. See, e.g., The Brig: A Two Hundred Year Tradition, at <http://www.brigpuget.navy.mil/history.htm> (last visited Dec. 11, 2003). Using the Guantanamo brig to hold prisoners thus seems at first blush not to violate the Lease's provisions.

9 The Government of Cuba apparently adheres to my view on this point. See Maj. op. at 18072 n. 19.

10 For the same reason, I would not reach the issue of venue.