No. 03-1027
In the Supreme Court of the United States
DONALD RUMSFELD, PETITIONER
v.
JOSE PADILLA AND DONNA R. NEWMAN,
AS NEXT FRIEND OF JOSE PADILLA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
THEODORE B. OLSON
Solicitor General
Counsel of Record
PAUL D. CLEMENT
Deputy Solicitor General
DAVID B. SALMONS
SRI SRINIVASAN
Assistants to the Solicitor
General
JONATHAN L. MARCUS
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
1. Whether the President has authority as Commander in Chief and in light of Congress's Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224, to seize and detain a United States citizen in the United States based on a determination by the President that he is an enemy combatant who is closely associated with al Qaeda and has engaged in hostile and war-like acts, or whether 18 U.S.C. 4001(a) precludes that exercise of Presidential authority.
2. Whether the district court has jurisdiction over the proper respondent to the amended habeas petition.
In the Supreme Court of the United States
No. 03-1027
DONALD RUMSFELD, PETITIONER
v.
JOSE PADILLA AND DONNA R. NEWMAN,
AS NEXT FRIEND OF JOSE PADILLA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of Donald Rumsfeld, Secretary of Defense, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Second Circuit in this case.
OPINION BELOW
The opinion of the court of appeals (App., infra, 1a-75a) is not yet reported, but is available at 2003 WL 22965085.
JURISDICTION
The judgment of the court of appeals was entered on December 18, 2003. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. On September 11, 2001, the al Qaeda terrorist network launched a massive, coordinated attack on the United States, killing approximately 3000 persons. The President, acting pursuant to his constitutional authority as Commander in Chief, took immediate steps to prevent future attacks. Congress promptly enacted a resolution expressing its support of the President's use of "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (App., infra, 59a-60a). Congress emphasized that those forces "continue to pose an unusual and extraordinary threat to the national security," and that it is necessary "to protect United States citizens both at home and abroad." Congress further recognized that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." App., infra, 59a-60a.
The President ordered the armed forces of the United States to Afghanistan to subdue the al Qaeda terrorist network and the Taliban regime that supported it. In the course of that military campaign, which remains ongoing, the United States-consistent with its settled historical practice in times of war-has captured and detained numerous individuals fighting for and associated with the enemy. The detention of enemy combatants serves the vital wartime objectives of preventing captured combatants from continuing to aid the enemy and of yielding critical intelligence in advancement of the war effort. The al Qaeda network remains a serious threat to the national security in the course of the continuing conflict. That threat, regrettably, is not limited to the United States' interests abroad. Rather, there is a continuing risk of future terrorist attacks against United States citizens and interests carried out-as were the attacks of September 11-by enemy combatants who infiltrate the United States.
2. On May 8, 2002, Jose Padilla flew from Pakistan to Chicago, with an intermediate stop in Switzerland. Upon his arrival in Chicago, he was arrested pursuant to a material witness warrant issued by the United States District Court for the Southern District of New York in connection with grand jury proceedings investigating the September 11 attacks. On May 15, 2002, following Padilla's transfer to New York City, the district court appointed respondent Donna R. Newman, Esq., as Padilla's counsel. App., infra, 4a-5a.
On June 9, 2002, the President, invoking both his constitutional authority as Commander in Chief and Congress's Authorization for Use of Military Force, determined that Padilla "is, and at the time he entered the United States in May 2002 was, an enemy combatant." App., infra, 57a. The President found, in particular: that Padilla is "closely associated with al Qaeda, an international terrorist organization with which the United States is at war"; that Padilla has "engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism that had the aim to cause injury to or adverse effects on the United States"; that he "possesses intelligence, including intelligence about personnel and activities of al Qaeda that, if communicated to the U.S., would aid U.S. efforts to prevent attacks by al Qaeda"; that he "represents a continuing, present and grave danger to the national security of the United States"; and that his detention as an enemy combatant "is necessary to prevent him from aiding al Qaeda in its efforts to attack the United States or its armed forces, other governmental personnel, or citizens." Id. at 57a-58a.
The President's determination was based on information from sources directly connected with al Qaeda that Padilla is closely associated with al Qaeda and came to the United States to advance the conduct of terrorist operations on al Qaeda's behalf. See Declaration of Michael H. Mobbs, Special Advisor to the Under Secretary of Defense for Policy (Aug. 27, 2002) (Mobbs Declaration) (App., infra, 167a-172a).1 The information considered by the President evidenced that Padilla moved to Egypt in 1998 after his release from prison in the United States, and he subsequently became known as Abdullah Al Muhajir. Over the next three years, Padilla traveled to Pakistan, Saudi Arabia, and Afghanistan. During his time in the Middle East, Padilla was closely associated with the al Qaeda network and its leaders. Id. at 168a-169a.
While in Afghanistan and Pakistan in 2001 and 2002, Padilla had extended discussions with senior al Qaeda operatives concerning his conduct of terrorist operations within the United States. In Afghanistan in 2001, Padilla met with senior Usama Bin Laden lieutenant Abu Zubaydah to discuss his plans, including a plan to detonate a radiological dispersal device (or "dirty bomb") in the United States. Zubaydah directed Padilla to travel to Pakistan to receive training on the wiring of explosives, and Padilla researched explosive devices at an al Qaeda safehouse in Lahore. While in Pakistan in 2002, Padilla met on several occasions with senior al Qaeda operatives to discuss further his plans for conducting terrorist operations within the United States, including the dirty bomb plan as well as other operations involving the detonation of explosives in hotel rooms and gas stations. At the direction of al Qaeda operatives, Padilla returned to the United States in May 2002 to advance the conduct of additional al Qaeda attacks against the United States. App., infra, 169a-171a.
Acting on that information, the President directed the Department of Defense "to receive Mr. Padilla from the Department of Justice and to detain him as an enemy combatant." App., infra, 58a. On June 9, 2002, upon issuance of the President's determination, the Department of Justice immediately requested the district court to vacate the material witness warrant. The district court vacated the warrant that day, and Padilla was transferred to military control and transported to the Naval Consolidated Brig, Charleston, South Carolina, for detention as an enemy combatant. Id. at 83a.
3. a. On June 11, 2002, Padilla's counsel, respondent Newman, filed a habeas petition in the United States District Court for the Southern District of New York challenging the legality of Padilla's detention. C.A. App. 21-25. On June 19, 2002, Ms. Newman, styling herself as Padilla's next friend, filed an amended habeas petition on Padilla's behalf. Id. at 26-35. The amended petition names as respondents the President, the Secretary of Defense, the Attorney General, and Commander Melanie A. Marr, commanding officer of the Naval Consolidated Brig, Charleston, South Carolina, where Padilla is being held. Id. at 28. The amended petition alleges that Padilla's detention violates the Fourth, Fifth, and Sixth Amendments to the Constitution, as well as the Posse Comitatus Act, 18 U.S.C. 1385. C.A. App. 32-33. As relief, the amended petition seeks, inter alia, Padilla's release from military confinement. Id. at 34.
On June 26, 2002, the government filed a motion to dismiss the amended petition for lack of jurisdiction, arguing: (i) that attorney Newman lacks standing as a next friend to file the amended petition on Padilla's behalf; and (ii) that the district court for the Southern District of New York lacks territorial jurisdiction over the only proper respondent to the amended petition-Commander Marr, Padilla's immediate custodian at the Naval Consolidated Brig, Charleston-such that the petition should have been filed in the District of South Carolina. App., infra, 7a, 13a. On August 27, 2002, in response to the district court's direction to address the merits, the government filed a response to and motion to dismiss the amended petition on the merits. In connection with that motion, the government submitted the Mobbs Declaration setting forth the factual underpinnings of the President's determination that Padilla is an enemy combatant. Id. at 167a-172a.
b. On December 4, 2002, the district court issued an opinion and order resolving the jurisdictional claims and several of the issues on the merits. App., infra, 76a-166a. On the jurisdictional issues, the court first ruled that attorney Newman had a sufficient relationship with Padilla to qualify as his next friend for standing purposes. Id. at 91a-97a. The court next addressed whether it has jurisdiction over the proper respondent to the amended petition. The court acknowledged that, "in the usual habeas corpus case * * * courts have held consistently that the proper respondent is the warden of the prison where the prisoner is held." Id. at 98a. The court nevertheless held that Secretary Rumsfeld rather than Commander Marr is the proper respondent in this case, and further held that Secretary Rumsfeld is subject to the court's habeas jurisdiction pursuant to the New York long-arm statute. Id. at 98a-108a, 116a-117a.
On the merits, the district court agreed with the government that the settled wartime authority of the Commander in Chief to capture and detain enemy combatants is fully applicable in the circumstances of this case. Id. at 119a-135a. The court relied principally on Ex parte Quirin, 317 U.S. 1 (1942) (Quirin), which upheld the exercise of military jurisdiction over German saboteurs (including one presumed to be an American citizen) who were captured within the United States's borders during World War II before they could carry out plans to destroy United States war facilities.
The district court rejected Padilla's reliance on 18 U.S.C. 4001(a), which states that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." The court explained that Padilla's detention is "pursuant to an Act of Congress," because Congress's Authorization for Use of Military Force broadly supports the application of military force to prevent future acts of terrorism by al Qaeda. App., infra, 140a-142a. Accordingly, the court ruled, the "President * * * has both constitutional and statutory authority to exercise the powers of Commander in Chief, including the power to detain unlawful combatants, and it matters not that Padilla is a United States citizen captured on United States soil." Id. at 158a.
While upholding the President's legal authority to detain Padilla, the court determined that Padilla was entitled to raise a factual challenge to the determination that he is an enemy combatant. App., infra, 142a-144a. The court granted Padilla access to counsel pursuant to the All Writs Act, 28 U.S.C. 1651(a), in order to facilitate such a factual challenge. Id. at 144a-155a.
c. On January 9, 2003, the government moved for reconsideration of that part of the district court's order directing that Padilla be afforded access to counsel. App., infra, 8a; C.A. App. 154. The government submitted a sworn declaration of Vice Admiral Lowell E. Jacoby, Director of the Defense Intelligence Agency (Jan. 9, 2003), which explains the significant national security concerns raised by interposing counsel into the military's efforts to obtain vital intelligence from detained enemy combatants. C.A. App. 55-63. On March 11, 2003, the district court issued an opinion and order granting reconsideration but adhering to its previous disposition. App., infra, 9a; C.A. App. 153-164.
d. On March 31, 2003, the government moved the district court to certify its orders for interlocutory appeal pursuant to 28 U.S.C. 1292(b). On April 9, 2003, the district court granted the government's motion. App., infra, 9a-10a; C.A. App. 165-168. On June 10, 2003, the court of appeals granted the parties' application for an interlocutory appeal. Id. at 10a.
4. A divided panel of the court of appeals affirmed in part and reversed in part. App., infra, 1a-75a.
a. The court first sustained the district court's assertion of habeas jurisdiction over the amended petition. App., infra, 13a-26a.2 In the court's view, although the general rule in habeas cases calls for naming the "immediate physical custodian as respondent," that rule need not apply in the case of a person "detained for reasons other than federal criminal violations." Id. at 15a. The court found Secretary Rumsfeld to be a proper respondent in this case based on the "unique role [he] plays in this matter." Id. at 20a. The court reasoned that, while Commander Marr is Padilla's immediate physical custodian, "the legal reality of control is vested with Secretary Rumsfeld" because he "could inform the President that further restraint of Padilla as an enemy combatant is no longer necessary." Id. at 20a.
The court rejected the government's contention that a district court's habeas jurisdiction is confined to respondents located within the district's territorial boundaries. The court determined that a district court can exercise habeas jurisdiction over any respondent subject to suit under the long-arm statute of the state in which the court sits. App., infra, 21a-26a. Here, the court concluded, Secretary Rumsfeld was subject to service of process under the New York long-arm statute. Id. at 25a.
b. On the merits, the panel majority concluded that the President lacks legal authority to detain Padilla as an enemy combatant. App., infra, 26a-55a. The court first addressed the scope of the President's constitutional powers as Commander in Chief, concluding that "the President lacks inherent constitutional authority * * * to detain American citizens on American soil outside a zone of combat." Id. at 29a. The court rejected the district court's reliance on Ex parte Quirin, reasoning that Quirin involved congressional authorization absent in this case. Id. at 37a-38a. The court of appeals thus held that, "while Congress * * * may have the power to authorize the detention of United States citizens under the circumstances of Padilla's case, the President, acting alone, does not." Id. at 36a (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 631-632 (1952) (Douglas, J., concurring)).
The panel majority next concluded that Congress had prohibited Padilla's detention in 18 U.S.C. 4001(a). App., infra, 43a-55a. The court read Section 4001(a) to prohibit all detentions of United States citizens, including the wartime detention of enemy combatants, except if pursuant to specific statutory authorization. Id. at 43a-44a. The court rejected the conclusion of the district court that Congress's Authorization for Use of Military Force supplies a statutory basis for Padilla's detention. In the court of appeals' view, Congress's Authorization does not encompass the detention of "American citizens seized on American soil and not actively engaged in combat." Id. at 51a. The court likewise found that 10 U.S.C. 956(5), which authorizes the military to use appropriated funds to detain prisoners of war and persons "similar to prisoners of war," fails to support the detention of American citizens "seized off the battlefield." Id. at 54a.
The court therefore remanded the case to the district court with instructions to issue a writ of habeas corpus directing Padilla's release from military control within 30 days. App., infra, 55a. The court explained that its holding that the President lacks authority to detain Padilla "effectively moots arguments raised by both parties concerning access to counsel, standard of review, and burden of proof." Id. at 4a n.1.3
c. Judge Wesley dissented from the majority's conclusion that the President lacks legal authority to detain Padilla as an enemy combatant. App., infra, 61a-75a. In Judge Wesley's view, "the President, as Commander in Chief, has inherent authority to thwart acts of belligerency on U.S. soil that would cause harm to U.S. citizens, and, in this case, Congress through the Joint Resolution specifically and directly authorized the President to take the actions herein contested." Id. at 62a.
Judge Wesley disagreed with the majority's assumptions that the Commander-in-Chief authority is confined to "zones of combat" and that the President is without power to define a "zone of combat." The majority's reasoning, Judge Wesley observed, entails the "startling conclusion" that the "President would be without any authority to detain a terrorist citizen dangerously close to a violent or destructive act on U.S. soil unless Congress declared the area in question a zone of combat or authorized the detention." App., infra, 66a. In addition, Judge Wesley explained, Congress's Authorization "was not limited in geographic scope" and "did not limit the President's authority to foreign theaters." Id. at 73a. In Judge Wesley's view, Congress "clearly recognized that the events of 9-11 signaled a war with al Qaeda that could be waged on U.S. soil." Ibid.
REASONS FOR GRANTING THE PETITION
The court of appeals has issued an unprecedented decision ordering the release of an individual whom the President- acting as Commander in Chief in a time of war-has determined poses a grave danger to the national security of the United States and should be detained as an enemy combatant. The court of appeals' conclusion that the President categorically lacks the authority to detain Padilla as an enemy combatant is fundamentally at odds with this Court's decisions, e.g., Ex parte Quirin, 317 U.S. 1 (1942), and it undermines the President's vital authority as Commander in Chief to protect the United States against additional enemy attacks launched within the Nation's borders. Those concerns are particularly acute in the current conflict, waged against an enemy that operates in secret, has executed its most horrific attacks in the United States, and plots further surreptitious and large-scale attacks on civilian targets. The court of appeals' opinion, moreover, is premised on an overly broad interpretation of 18 U.S.C. 4001(a), and on a cramped and insupportably narrow reading of Congress's Authorization for Use of Military Force. In the face of Presidential actions and a congressional authorization prompted by attacks in the United States and motivated by an intent to, inter alia, prevent further attacks here, the court below found unique limitations on the President's ability to protect against attacks in the United States. Because the court of appeals' decision erroneously restricts the President's authority to prevent further attacks within the Nation's borders and resolves issues of extraordinary national significance, the decision self-evidently warrants this Court's review.
In addition, the court of appeals issued its unprecedented ruling in a case that should have proceeded in a different district court in a different circuit. The settled rule under the habeas statutes holds that the proper respondent in a challenge to physical confinement is the individual with day-to-day physical control over the detainee, i.e., the detainee's immediate custodian. The court of appeals nonetheless held that Secretary Rumsfeld is a proper respondent in this case, a holding irreconcilable with the decisions of a number of other courts of appeals adhering to the immediate custodian rule. The upshot of the court of appeals' opinion, moreover, is to vest virtually every district court in the country with habeas jurisdiction over the amended petition. That result is directly at odds with Congress's intent in the habeas statutes to circumscribe the reach of the district courts' habeas jurisdiction. The court of appeals' erroneous jurisdictional holding thus also merits this Court's review.
A. The Court Of Appeals' Holding That The President Lacks Authority To Detain Padilla As An Enemy Combatant Incorrectly Resolves An Issue Of Extraordinary National Significance
The court of appeals' decision eliminating a core wartime judgment of the Commander in Chief is unprecedented and warrants review. The President, acting as Commander in Chief in a time of war, determined that Padilla is "closely associated with al Qaeda" and has "engaged in * * * hostile and war-like acts," that Padilla possesses intelligence that "would aid U.S. efforts to prevent attacks by al Qaeda," and that his detention as an enemy combatant "is necessary to prevent him from aiding al Qaeda in its efforts to attack the United States." App., infra, 57a-58a. The court of appeals nonetheless ordered Padilla's release from military control, holding that the President lacks authority to order Padilla's detention as an enemy combatant. That ruling is flawed in a number of fundamental respects and self-evidently merits this Court's review.
1. The court of appeals' decision is inconsistent with this Court's opinion in Ex parte Quirin
In Ex parte Quirin, 317 U.S. at 1, this Court upheld the military detention and prosecution of a group of German saboteurs who were captured in the United States during World War II before they could carry out plans to destroy domestic war facilities. One of the captured combatants was presumed to be a United States citizen. Id. at 20. This Court explained that, "[f]rom the very beginning of its history," it "has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of * * * enemy individuals." Id. at 27-28. Under basic principles of the laws of war, the Court held, both lawful and unlawful enemy combatants "are subject to capture and detention * * * by opposing military forces," and unlawful combatants in addition are "subject to trial and punishment by military tribunals for acts which render their belligerency unlawful." Id. at 31.
The Court made clear that enemy combatants who are American citizens are fully subject to capture and detention by the military. As the Court explained, "[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of the * * * law of war." Quirin, 317 U.S. at 37-38; see id. at 31 (describing "enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property"); accord Colepaugh v. Looney, 235 F.2d 429, 432 (10th Cir. 1956), cert. denied, 352 U.S. 1014 (1957); In re Territo, 156 F.2d 142 (9th Cir. 1946). For that reason, the Quirin Court found it unnecessary to resolve definitively one saboteur's claim to citizenship. 317 U.S. at 20.
The President's determination in this case makes clear that Padilla is an enemy combatant within the meaning of this Court's opinion in Quirin. The President found that Padilla is "closely associated with al Qaeda" and "engaged in * * * hostile and war-like acts * * * that had the aim to cause injury to or adverse effects on the United States," and that his detention "is necessary to prevent him from aiding al Qaeda in its efforts to attack the United States." App., infra, 57a-58a.
In concluding that the President lacks authority to detain Padilla as an enemy combatant, the court of appeals reasoned that "the President's Commander-in-Chief powers do not encompass the detention of a United States citizen * * * taken into custody on United States soil outside a zone of combat." App., infra, 36a n.24. Quirin, however, likewise involved a presumed American citizen captured within the United States's borders. Moreover, the Court expressly found it insignificant that the captured saboteurs had "not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations." 317 U.S. at 38. The saboteurs were captured in Chicago and New York. Accordingly, the court of appeals' opinion cannot be squared with Quirin.
The court of appeals asserted that, notwithstanding the "factual parallels between the Quirin saboteurs and Padilla," this Court's decision "to uphold military jurisdiction" in Quirin "rested on express congressional authorization." App., infra, 37a, 38a n.26. The Articles of War discussed in Quirin and relied on by the court of appeals below provided for trial by military commission of offenses against the laws of war. See 317 U.S. at 26-27; id. at 36. The relevant provisions remain fully in effect today, and are codified in the Uniform Code of Military Justice. See 10 U.S.C. 821. And although Quirin addressed the pre-trial detention and trial of the saboteurs by military commission pursuant to those provisions, whereas no such charges have been brought against Padilla, the Court's opinion makes clear that the President's authority over enemy combatants encompasses not just the authority to prosecute them through military commissions, but also the more commonly practiced authority to detain enemy combatants in the course of an armed conflict without charging them with specific war crimes. 317 U.S. at 30-31. As the district court explained, consequently, this case "is a fortiori from Quirin." App., infra, 133a.4
2. The court of appeals' opinion rests on a fundamentally flawed interpretation of 18 U.S.C. 4001(a) and Congress's Authorization for Use of Military Force
The court of appeals found that Padilla's detention as an enemy combatant is barred by 18 U.S.C. 4001(a). That conclusion lacks merit.
a. Even if Section 4001(a) encompassed the military detention of enemy combatants in wartime (but see pages 17-18, infra), Padilla's detention, as the district court correctly found (App., infra, 139a-142a), is "pursuant to an Act of Congress" within the meaning of that provision. In ordering Padilla's detention as an enemy combatant, the President specifically invoked Congress's Authorization for Use of Military Force (App., infra, 57a), which broadly supports the President's use of "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 * * * in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons." 115 Stat. 224 (emphasis added). As the Fourth Circuit explained in Hamdi, the "'necessary and appropriate force' referenced in the congressional resolution necessarily includes the capture and detention of any and all hostile forces arrayed against our troops." Hamdi v. Rumsfeld, 316 F.3d 450, 467 (4th Cir. 2003), cert. granted, No. 03-6696 (Jan. 9, 2004).
The court of appeals below attempted to avoid creating an open conflict with the Fourth Circuit's reading in Hamdi of Congress's Authorization by concluding that the Authorization only contemplates "a power of detention * * * in the battlefield context." App., infra, 52a. That reading is legally and factually insupportable. Nothing in the terms of Congress's Authorization suggests a limitation to a foreign battlefield, and there is no legal basis for so narrowing Congress's broad authorization. In any event, the Authoriation was enacted in direct response to large-scale attacks against civilians that effectively turned parts of New York, Pennsylvania, and Virginia into battlefields.
Moreover, Congress specifically recognized the President's "authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States," and Congress emphasized the need "to protect United States citizens both at home and abroad." 115 Stat. 224 (emphasis added). And Congress acted against the backdrop of this Court's decision in Quirin, which made clear that the President's Commander-in-Chief authority fully applies to American citizens captured within the United States's borders whether or not they enter a zone of military operations or combat zone. Accordingly, as Judge Wesley correctly concluded in his dissent, Congress's Authorization "was not limited in geographic scope"; it "did not limit the President's authority to foreign theaters"; and "Congress clearly recognized that the events of 9-11 signaled a war with al Qaeda that could be waged on U.S. soil." App., infra, 73a.5
b. In any event, 18 U.S.C. 4001(a), properly construed, does not pertain to the wartime detention of enemy combatants. It was settled by the time of Quirin that "[c]itizenship in the United States of an enemy belligerent does not relieve him from the consequences of [his] belligerency." Quirin, 317 U.S. at 37. Consequently, as the Fourth Circuit explained in Hamdi, if Congress intended for Section 4001(a) to "override this well-established precedent * * * it surely would have made its intentions explicit." 316 F.3d at 468. Section 4001(a) instead pertains to-and was intended to address-the detention of civilians, not the detention of enemy combatants in wartime.6
The court of appeals' contrary interpretation of Section 4001(a) rejects the constitutional-avoidance approach of the Fourth Circuit and raises serious separation-of-powers concerns. The President's determination in a time of war that an individual is an enemy combatant represents a core exercise of the Commander-in-Chief power under Article II. See Quirin, 317 U.S. at 28-29; Hamdi, 316 F.3d at 467. The canon of constitutional avoidance thus forecloses any reading of Section 4001(a) that would interfere with the President's determination that Padilla should be detained as an enemy combatant. See Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 466 (1989) (avoidance canon applies with special force when the "constitutional issues * * * concern the relative powers of the coordinate branches of government"). See also App., infra, 74a (Wesley, J., dissenting) ("[I]f, as the majority asserts, § 4001(a) is an impenetrable barrier to the President detaining a U.S. citizen who is alleged to have ties to the belligerent and who is part of a plan for belligerency on U.S. soil, then § 4001(a), in my view, is unconstitutional.").
Despite the serious separation-of-powers concerns raised by its unprecedented decision, the court below declined two obvious options for interpreting congressional acts so as to avoid those serious concerns. The court could have avoided those difficulties through either a straightforward interpretation of Section 4001(a) to govern only detentions by civilian authorities or through an equally straightforward interpretation of Congress's Authorization to encompass necessary steps to protect against additional attacks "at home" (115 Stat. 224). Instead, the court interpreted Section 4001(a) unduly broadly and the Authorization unduly narrowly and pronounced severe and unprecedented limits on the President's authority. That decision plainly merits this Court's review.
3. The court of appeals' ruling compromises the ability of the President to preserve the national security in a time of war
The court of appeals' decision sets aside the determination of the Commander in Chief that "it is in the interests of the United States that the Secretary of Defense detain Mr. Padilla as an enemy combatant." App., infra, 58a. The court contemplated that Padilla would be released from military control and would be detained by civilian authorities pending the potential initiation of criminal charges against him. See id. at 55a-56a. The court's holding significantly undermines the ability of the President to protect the Nation from further enemy attacks in wartime.
The detention of enemy combatants, as indicated (page 11, supra), not only prevents combatants from continuing to aid the enemy, but also enables the collection of vital intelligence in furtherance of the war effort. See App., infra, 57a-58a. The latter function is particularly critical in the context of the current conflict, waged against an enemy that eschews conventional rules of open warfare and aims to launch large-scale, surprise attacks against the civilian population.
In this case, the President not only found that Padilla's detention is "necessary to prevent him from aiding al Qaeda in its efforts to attack the United States or its armed forces," but also determined that Padilla "possesses intelligence, including intelligence about personnel and activities of al Qaeda that, if communicated to the U.S., would aid U.S. efforts to prevent attacks by al Qaeda on the United States or its armed forces, other governmental personnel, or citizens." App., infra, 57a-58a. Consequently, as Judge Wesley explained in his dissenting opinion below, "Padilla was not only a threat with regard to a specific terrorist plot, but he allegedly possesses information that could assist the United States in thwarting other terrorist plots in the U.S. and abroad." Id. at 73a n.41 (citation omitted).
The President's decision to detain Padilla as an enemy combatant in lieu of detaining him in the criminal justice system reflects a sensitive determination at the core of the President's Article II powers concerning the best interests of the Nation in wartime. Cf. CIA v. Sims, 471 U.S. 159, 176 (1985) ("judges * * * have little or no background in the delicate business of intelligence gathering"). The court of appeals' invalidation of the President's determination should be reviewed by this Court.
4. The Court should grant the petition for a writ of certiorari in this case rather than hold the petition pending its disposition in Hamdi
Although both this case and Hamdi v. Rumsfeld, No. 03-6696 (cert. granted Jan. 9, 2004), broadly concern the President's authority to detain enemy combatants in the course of the current conflict, the Court should grant certiorari and schedule argument in this case as well as in Hamdi, rather than hold the petition pending its ultimate disposition of Hamdi. Both the court of appeals below and the Fourth Circuit in Hamdi expressed the view that the cases raise distinct questions. See, e.g., App., infra, 27a ("our review is limited to the case of an American citizen arrested in the United States, not on a foreign battlefield"); Hamdi, 316 F.3d at 465 (distinguishing Padilla). Those asserted distinctions warrant this Court's consideration; and this case is fully ripe for the Court's review and raises distinct questions of exceptional significance concerning the President's wartime authority as Commander in Chief.7
Nonetheless, because the questions in the two cases overlap in certain respects, the Court may wish to schedule argument in the two cases on the same day if it grants certiorari in this case. Accordingly, the government has filed with the Court a motion for expedited consideration in this case that proposes a schedule for consideration of the petition and briefing and argument on the merits such that oral argument could be heard in the April session of this Court, when the Hamdi case presumably will be heard.
B. The Court Of Appeals Erred In Concluding That The District Court Has Jurisdiction Over The Proper Respondent To The Amended Habeas Petition
The Second Circuit issued its unprecedented decision in a case that should have never proceeded in the Southern District of New York or the Second Circuit. The habeas statutes specify that the writ "shall be directed to the person having custody of the person detained," 28 U.S.C. 2243 (emphasis added), and also require that, in appropriate circumstances, "the person to whom the writ is directed shall * * * produce at the hearing the body of the person detained," 28 U.S.C. 2243. See also 28 U.S.C. 2242 (requiring that the petition "allege * * * the name of the person who has custody"). This Court explained long ago that "these provisions contemplate a proceeding against some person who has the immediate custody of the party detained, with the power to produce the body of such party before the court or judge." Wales v. Whitney, 114 U.S. 564, 574 (1885) (emphasis added).8 In addition, the habeas statutes confine district courts to issuing the writ only "within their respective jurisdictions," 28 U.S.C. 2241(a), a restriction intended to prevent district courts from asserting jurisdiction over habeas actions brought by individuals detained beyond the district's boundaries. See Carbo v. United States, 364 U.S. 611, 617 (1961).
Those principles establish that, in a traditional habeas action challenging physical detention, jurisdiction lies in the district court with territorial jurisdiction over the detainee's immediate custodian. E.g., Monk v. Secretary of the Navy, 793 F.2d 364, 369 (D.C. Cir. 1986). Accordingly, the only court with jurisdiction in this case is the United States District Court for the District of South Carolina, where Padilla's immediate custodian, Commander Marr, is located. The court of appeals, however, held that Secretary Rumsfeld is a proper respondent to the amended petition, and that the district court's habeas jurisdiction extends beyond the Southern District of New York to reach Secretary Rumsfeld. The court of appeals' ruling is incorrect and cannot be reconciled with opinions of other courts of appeals.9
1. The court of appeals' conclusion that Secretary Rumsfeld is a proper respondent is inconsistent with decisions of other courts of appeals
a. A long line of decisions in the courts of appeals holds that the proper respondent in a habeas action is the detainee's immediate custodian-typically the warden or commanding officer of the detention facility, who has day-to-day physical control over the detainee. See, e.g., Robledo-Gonzalez v. Ashcroft, 342 F.3d 667, 673 (7th Cir. 2003); Vasquez v. Reno, 233 F.3d 688, 690-691 (1st Cir. 2000), cert. denied, 534 U.S. 816 (2001); Guerra v. Meese, 786 F.2d 414, 416 (D.C. Cir. 1986); Jones v. Biddle, 131 F.2d 853, 854 (8th Cir. 1942). Of particular significance, a number of courts of appeals have rejected claims that the Attorney General can be a proper habeas respondent, holding that "the warden of the penitentiary not the Attorney General is the person who holds the prisoner in custody for habeas purposes." Vasquez, 233 F.3d at 693; see Robledo-Gonzalez, 342 F.3d at 673; Roman v. Ashcroft, 340 F.3d 314, 321-322 (6th Cir. 2003); In re Hanserd, 123 F.3d 922, 925 n.2 (6th Cir. 1997); Yi v. Maugans, 24 F.3d 500, 507 (3d Cir. 1994); Sanders v. Bennett, 148 F.2d 19, 20 (D.C. Cir. 1945); Jones, 131 F.2d at 854.
The rule that the proper respondent is the detainee's immediate custodian rather than a supervisory official has also been applied in the context of military detentions. In Monk v. Secretary of the Navy, 793 F.2d at 369, the D.C. Circuit held that the proper respondent in a habeas action brought by a military prisoner was the commanding officer of the detention facility rather than the Secretary of the Navy. The court explained that the "argument that the Secretary can be considered [the] custodian for purposes of habeas corpus is no different from the claim that the Attorney General is the custodian of all federal prisoners." Ibid.
b. The court of appeals in this case diverged from those decisions, ruling that Secretary Rumsfeld is a proper respondent to the amended petition. The court reasoned that the immediate custodian rule is inapplicable when the petitioner is "detained for reasons other than federal criminal violations." App., infra, 15a. The Ninth Circuit drew the same distinction in Armentero v. INS, 340 F.3d 1058 (9th Cir. 2003), holding that the Attorney General and Secretary of Homeland Security are proper habeas respondents when aliens seek relief from detention ordered under the immigration laws. See id. at 1061 (concluding that there are "exceptions to the general practice of naming an immediate physical custodian as respondent, especially with regard to habeas petitions brought by persons detained for reasons other than federal criminal violations"); App., infra, 18a n.13 (relying on Armentero).10
The distinction drawn by those courts between criminal and non-criminal detentions is unsound, and it has been rejected by other courts of appeals. The terms of the habeas statutes direct attention to the individual with day-to-day physical control over the detainee, without suggesting any pertinent distinction between criminal and non-criminal detentions. Accordingly, the First Circuit, in rejecting the argument that the Attorney General is a proper respondent in habeas challenges to detention under the immigration laws, explained that "there is no principled distinction between an alien held in a detention facility awaiting possible deportation and a prisoner held in a correctional facility awaiting trial or serving a sentence." Vasquez, 233 F.3d at 693. The Sixth Circuit likewise has applied the immediate custodian rule in the context of habeas claims challenging non-criminal detention under the immigration laws. Roman, 340 F.3d at 321 ("We see no reason to apply a different rule for identifying a petitioner's custodian depending on whether the petitioner is an alien or a prisoner.").
The court of appeals also grounded its departure from the immediate custodian rule in the "unique role Secretary Rumsfeld plays in this matter." App., infra, 20a. According to the court, "the legal reality of control is vested with Secretary Rumsfeld, since only he-not Commander Marr-could inform the President that further restraint of Padilla as an enemy combatant is no longer necessary." Ibid. No immediate custodian, however, has independent responsibility for determining the duration of a detainee's confinement. The court of appeals' focus on "legal reality of control" thus amounts to an outright rejection of the immediate custodian rule. As other courts have held, the immediate custodian is the proper respondent under the habeas laws not because of any "legal reality of control," but because of his day-to-day physical control over the detainee. See, e.g., Robledo-Gonzalez, 342 F.3d at 673 (detainee must name as respondent "the warden of the facility in which [he] was being held" rather than an official such as the Attorney General who has "power to control some aspect of the petitioner's legal process"). Accordingly, the fact that Commander Marr lacks authority unilaterally to determine the date of Padilla's release should afford no grounds for departing from the immediate custodian rule. See Al-Marri v. Bush, 274 F. Supp. 2d 1003 (C.D. Ill. 2003) (applying immediate custodian rule in habeas challenge brought on behalf of detained enemy combatant).
c. The court of appeals interpreted language in certain of this Court's decisions to sanction departing from the immediate custodian rule. See App., infra, 15a-20a (discussing Ex parte Endo, 323 U.S. 283 (1944), Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), and Strait v. Laird, 406 U.S. 341 (1972)).11 Those decisions address anomalous situations and afford no basis for avoiding the immediate custodian rule in a traditional habeas action challenging present physical confinement.12
Moreover, the court of appeals' reliance on those decisions underscores the disagreement among the courts of appeals. Other courts of appeals have examined precisely the same opinions and concluded that they do not support departing from the immediate custodian rule. See Vasquez, 233 F.3d at 695 (concluding that Endo has no application where, as here, "the petitioner file[s] for habeas relief in a jurisdiction where neither he nor his immediate custodian [is] physically located"); id. at 494-496 (explaining that Strait and Endo involved "highly unusual facts" and "cannot plausibly be read to * * * consign to the scrap heap the substantial body of well-reasoned authority holding that a detainee must name his immediate custodian"); Monk, 793 F.2d at 369 (holding that "[n]othing in Braden supports" deviating from the immediate custodian rule). Accordingly, the court of appeals' jurisdictional analysis is deeply flawed, in conflict with numerous appellate decisions, and merits this Court's review.
2. The court of appeals' conclusion that habeas jurisdiction is coextensive with state long-arm statutes conflicts with the terms of the habeas laws and decisions of other courts of appeals
The habeas statutes confine district courts to issuing the writ "within their respective jurisdictions," 28 U.S.C. 2241(a), a constraint intended by Congress to prevent district courts in habeas cases from reaching beyond the district's territorial boundaries. See Carbo v. United States, 364 U.S. at 617. Consequently, as the D.C. Circuit has explained, habeas "jurisdiction is proper only in the district in which the immediate * * * custodian is located." Monk, 793 F.2d at 369. Even if Secretary Rumsfeld were a proper respondent to the amended petition, therefore, he is located in the Eastern District of Virginia (see id. at 369 n.1) and is not subject to habeas jurisdiction in the Southern District of New York.
The court of appeals in this case declined to follow the rule set forth in the habeas statutes and adopted in the D.C. Circuit, holding instead that a district court's habeas jurisdiction extends far beyond the district's territorial boundaries to reach any person subject to service under the forum state's long-arm statute. App., infra, 21a-26a. Under the court of appeals' view that habeas jurisdiction is defined by state long-arm statutes and that Secretary Rumsfeld is a proper respondent, jurisdiction could lie in this case in virtually every federal district court. And while the court asserted that its ruling was limited to the facts of this case (id. at 20a-21a), the court's rationale in fact would sanction a comparable result in any case in which a Cabinet-level official is involved in detention decisions. That result, of broadly overlapping habeas jurisdiction among the district courts in a particular case, is incompatible with the statutory restriction confining district courts to "their respective jurisdictions." 28 U.S.C. 2241(a).
In fact, the habeas statutes otherwise make clear that only one district court has jurisdiction in any given case, providing that the "Supreme Court, any justice thereof, and any circuit judge may decline to entertain an application for a writ of habeas corpus and may transfer the application * * * to the district court having jurisdiction to entertain it." 28 U.S.C. 2241(b) (emphasis added); see 28 U.S.C. 2242 (application "addressed to the Supreme Court, a justice thereof or a circuit judge * * * shall state the reasons for not making application to the district court of the district in which the applicant is held"). When Congress intends to vest "concurrent jurisdiction to entertain [a habeas] application" in more than one district, Congress makes its intention explicit. 28 U.S.C. 2241(d). Accordingly, the terms of the habeas statutes foreclose the court of appeals' holding that district courts have overlapping habeas jurisdiction under state long-arm laws.13
3. The court of appeals' jurisdictional approach unduly complicates the administration of habeas proceedings
The rule that jurisdiction in a habeas challenge to present, physical confinement lies in the district court with territorial jurisdiction over the immediate custodian not only follows directly from the terms of the habeas statutes, but also is straightforward and easily administered. The court of appeals' approach in this case, by contrast, would give rise to duplicative and overlapping habeas jurisdiction among the district courts.
As the First Circuit has observed, "adopting a broad conception of who qualifies as a custodian will make the litigation of habeas claims more complex, forcing courts in many cases to undertake fact-intensive analyses of venue and forum non conveniens issues." Vasquez, 233 F.3d at 694. The Sixth Circuit likewise has explained that "adopting a broader definition of 'custodian' would complicate and extend the duration of habeas corpus proceedings." Roman, 340 F.3d at 322. For that reason, and because of the disagreement among the courts of appeals on the rules for determining habeas jurisdiction, this Court should review the court of appeals' holding that jurisdiction over the amended petition properly lies in the Southern District of New York.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
THEODORE B. OLSON
Solicitor General
PAUL D. CLEMENT
Deputy Solicitor General
DAVID B. SALMONS
SRI SRINIVASAN
Assistants to the Solicitor
General
JONATHAN L. MARCUS
Attorney
JANUARY 2004
1 A classified version of the Mobbs Declaration providing additional detail concerning the determination that Padilla is an enemy combatant was submitted to the district court under seal and ex parte. The government is making arrangements with the Clerk of this Court so that the classified declaration is available for this Court's review.
2 The court also found as a threshold matter that attorney Newman had established standing as a next friend to file the amended petition on Padilla's behalf.
3 The court observed, however, that "the government had ample cause to suspect Padilla of involvement in a terrorist plot." App., infra, 4a n.2.
4 Insofar as the court of appeals viewed its decision as supported by Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), the court was mistaken. Unlike the basic authority of the Commander in Chief to detain enemy combatants in wartime, Youngstown Sheet concerned the President's decision to seize steel mills to prevent labor disputes from slowing the production of steel. See App., infra, 64a (Wesley, J., dissenting) (observing that the "President's attempt to link the seizure to prosecuting the war in Korea was far too attenuated," whereas "[i]n this case the President's authority is directly tied to his responsibilities as Commander in Chief").
5 In addition, 10 U.S.C. 956(5) authorizes the expenditure of funds for "the maintenance, pay, and allowance of prisoners of war" and "other persons in the custody of the [military] whose status is determined by the Secretary to be similar to prisoners of war." As the Fourth Circuit concluded in Hamdi, it "is difficult if not impossible to understand how Congress could make appropriations for the detention of persons 'similar to prisoners of war' without also authorizing their detention in the first instance." 316 F.3d at 467-468. The court of appeals below suggested that Section 956(5) has no application "to American citizens seized off the battlefield." App., infra, 54a. But nothing in the terms of Section 956(5) suggests a distinction between capture on a traditional battlefield and capture elsewhere, and Quirin makes clear that the President's Commander-in-Chief authority fully applies in either context.
6 The legislative history relied on by the court of appeals (App., infra, 44a-47a) does not suggest otherwise. As the court explained, Section 4001(a) was intended to repeal the Emergency Detention Act, which had provided the Attorney General with statutory authority to detain citizens. Consistent with its placement in Title 18, Section 4001(a) was designed to repeal this unusual grant of authority to civilian officials to detain citizens. But there is no indication that Congress intended to negate the military's longstanding authority to capture and detain enemy combatants who are American citizens-indeed, there is no mention in the legislative history of this Court's decision in Quirin, which had specifically recognized the President's authority to detain such combatants.
7 This case also presents important issues concerning habeas jurisdiction that independently merit this Court's review. See pp. 20-28, infra.
8 A separate aspect of the Court's decision in Wales concerned the circumstances in which a person is in "custody" within the meaning of the habeas laws. The Court has since expanded its understanding of the "custody" requirement. See Hensley v. Municipal Court, 411 U.S. 345, 350 n.8 (1973).
9 Although Secretary Rumsfeld was named as a respondent in Hamdi, the petition also named the commanding officer of the facility where Hamdi was detained, and the petition was properly filed in the district in which that officer is located. Consequently, in Hamdi, unlike this case, the fact that Secretary Rumsfeld is named as a respondent has no jurisdictional significance.
10 The Ninth Circuit, relying on Armentero, later upheld certification of a nationwide habeas class action on the basis that the Attorney General and Secretary of Homeland Security are custodians of all immigration detainees nationwide. Ali Ali v. Ashcroft, 346 F.3d 873 (2003). The government has sought rehearing en banc in both of those cases.
11 In Ahrens v. Clark, 335 U.S. 188 (1948), overruled on other grounds by Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), the Court found it unnecessary to determine whether the Attorney General was the proper habeas respondent. See 335 U.S. at 193.
12 Strait involved an unattached military reservist who was not physically detained and who thus had only a "nominal custodian." 406 U.S. at 344. The petitioner in Braden was in the custody of two jurisdictions: he was confined in one State but sought to challenge a detainer lodged against him by another State. See 410 U.S. at 499-500. In Endo, the petitioner properly filed in the location of her immediate custodian but was subsequently relocated to a different jurisdiction. 323 U.S. at 306-307.
13 The court of appeals believed (App., infra, 22a-23a) that this Court's decisions in Braden and Strait support a district court's assertion of long-arm jurisdiction in habeas cases. Other courts of appeals have found, by contrast, that those decisions do not support the exercise of habeas jurisdiction beyond the district's territorial boundaries. See Vasquez, 233 F.3d at 695 n.6 (explaining that relevant passage in Strait "is not intended to be a rule of general application, but rather, to explain the fact-specific holding in the case itself"); Monk, 793 F.2d at 369 (ruling that "[n]othing in Braden supports" the exercise of habeas jurisdiction outside "the district in which the immediate * * * custodian is located"); Guerra, 786 F.2d at 417 ("The Braden decision in no way stands for the proposition * * * that federal courts may entertain a habeas corpus petition when the custodian is outside their territorial jurisdiction.").
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
No. 03-2235(L), 03-2438(CON.)
JOSE PADILLA, DONNA R. NEWMAN, AS NEXT FRIEND OF JOSE PADILLA, PETITIONER-APPELLEE-
CROSS-APPELLANT
v.
DONALD RUMSFELD, RESPONDENT-APPELLANT-
CROSS-APPELLEE
[Dec. 18, 2003]
OPINION
Before: POOLER, B.D. PARKER and WESLEY, Circuit Judges.
POOLER and B.D. PARKER, Circuit Judges.
INTRODUCTION
This habeas corpus appeal requires us to consider a series of questions raised by Secretary of Defense Donald Rumsfeld and by Donna R. Newman, Esq., on behalf of Jose Padilla, an American citizen held by military authorities as an enemy combatant. Padilla is suspected of being associated with al Qaeda and planning terrorist attacks in this country. The questions were certified by the United States District Court for the Southern District of New York (Michael B. Mukasey, C.J.) and involve, among others: whether the Secretary of Defense is Padilla's "custodian" for habeas purposes, whether the Southern District of New York had jurisdiction over the petition, and whether the President has the authority to detain Padilla as an enemy combatant. We conclude that the Secretary of Defense is a proper respondent and that the District Court had jurisdiction. We also conclude that Padilla's detention was not authorized by Congress, and absent such authorization, the President does not have the power under Article II of the Constitution to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat.
As this Court sits only a short distance from where the World Trade Center once stood, we are as keenly aware as anyone of the threat al Qaeda poses to our country and of the responsibilities the President and law enforcement officials bear for protecting the nation. But presidential authority does not exist in a vacuum, and this case involves not whether those responsibilities should be aggressively pursued, but whether the President is obligated, in the circumstances presented here, to share them with Congress.
Where, as here, the President's power as Commander-in-Chief of the armed forces and the domestic rule of law intersect, we conclude that clear congressional authorization is required for detentions of American citizens on American soil because 18 U.S.C. § 4001(a) (2000) (the "Non-Detention Act") prohibits such detentions absent specific congressional authorization. Congress's Authorization for Use of Military Force Joint Resolution, Pub.L. No. 107-40, 115 Stat. 224 (2001) ("Joint Resolution"), passed shortly after the attacks of September 11, 2001, is not such an authorization, and no exception to section 4001(a) otherwise exists. In light of this express prohibition, the government must undertake to show that Padilla's detention can nonetheless be grounded in the President's inherent constitutional powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38, 72 S. Ct. 863, 96 L.Ed. 1153 (Jackson, J., concurring). We conclude that it has not made this showing. In reaching this conclusion, we do not address the detention of an American citizen seized within a zone of combat in Afghanistan, such as the court confronted in Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003) ("Hamdi III"). Nor do we express any opinion as to the hypothetical situation of a congressionally authorized detention of an American citizen.
Accordingly, we remand to the District Court with instructions to issue a writ of habeas corpus directing Secretary Rumsfeld to release Padilla from military custody within 30 days, at which point the government can act within its legislatively conferred authority to take further action. For example, Padilla can be transferred to the appropriate civilian authorities who can bring criminal charges against him. If appropriate, he can also be held as a material witness in connection with grand jury proceedings. See United States v. Awadallah, 349 F.3d 42 (2d Cir. 2003). Under any scenario, Padilla will be entitled to the constitutional protections extended to other citizens.1
BACKGROUND
I. The Initial Detention
On May 8, 2002, Jose Padilla, an American citizen, flew on his American passport from Pakistan, via Switzerland, to Chicago's O'Hare International Airport. There he was arrested by FBI agents pursuant to a material witness warrant issued by the Chief Judge of the Southern District of New York in connection with a grand jury investigation of the terrorist attacks of September 11. Padilla carried no weapons or explosives.2
The agents brought Padilla to New York where he was held as a civilian material witness in the maximum security wing of the Metropolitan Correctional Center (MCC). At that point, Padilla was under the control of the Bureau of Prisons and the United States Marshal Service. Any immediate threat he posed to national security had effectively been neutralized. On May 15, 2002, he appeared before Chief Judge Mukasey, who appointed Donna R. Newman, Esq., to represent Padilla. Newman "conferred with [Padilla] over a period of weeks in . . . an effort to end [his] confinement." Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564, 576 (S.D.N.Y. 2002) ("Padilla I"). She also conferred with Padilla's relatives and with government representatives on Padilla's behalf.
On May 22, Newman moved to vacate the material witness warrant. By June 7, the motion had been submitted for decision. A conference on the motion was scheduled for June 11. However, on June 9, the government notified the court ex parte that (1) it wished to withdraw its subpoena and (2) the President had issued an Order (the "June 9 Order") designating Padilla as an enemy combatant and directing Secretary Rumsfeld to detain him. Chief Judge Mukasey vacated the warrant, and Padilla was taken into custody by Department of Defense (DOD) personnel and transported from New York to the high-security Consolidated Naval Brig in Charleston, South Carolina. At the scheduled June 11 conference, Newman, unable to secure Padilla's signature on a habeas corpus petition, nonetheless filed one on his behalf as "next friend."
For the past eighteen months, Padilla has been held in the Brig in Charleston. He has not been permitted any contact with his counsel, his family or any other non-military personnel. During this period he has been the subject of ongoing questioning regarding the al Qaeda network and its terrorist activities in an effort to obtain intelligence.
II. The Order Authorizing the Detention
In his June 9 Order, the President directed Secretary Rumsfeld to detain Padilla based on findings that Padilla was an enemy combatant who (1) was "closely associated with al Qaeda, an international terrorist organization with which the United States is at war"; (2) had engaged in "war-like acts, including conduct in preparation for acts of international terrorism" against the United States; (3) had intelligence that could assist the United States to ward off future terrorist attacks; and (4) was a continuing threat to United States security. As authority for the detention, the President relied on "the Constitution and . . . the laws of the United States, including the [Joint Resolution]."3
In an unsealed declaration submitted to the District Court, Michael H. Mobbs, a special advisor to the Under Secretary of Defense for Policy (who claims no direct knowledge of Padilla's actions or of the interrogations that produced the information discussed in his declaration), set forth the information the President received before he designated Padilla as an enemy combatant. According to the declaration, Padilla was born in New York, was convicted of murder in 1983, and remained incarcerated until his eighteenth birthday. In 1991, he was convicted on a handgun charge and again sent to prison. He moved to Egypt in 1998 and traveled to several countries in the Middle East and Southwest Asia between 1999 and 2000. During this period, he was closely associated with known members and leaders of al Qaeda. While in Afghanistan in 2001, Padilla became involved with a plan to build and detonate a "dirty bomb" within the United States, and went to Pakistan to receive training on explosives from al Qaeda operatives. There he was instructed by senior al Qaeda officials to return to the United States to conduct reconnaissance and/or other attacks on behalf of al Qaeda. He then traveled to Chicago, where he was arrested upon arrival into the United States on May 8, 2002. Notwithstanding Padilla's extensive contacts with al Qaeda members and his actions under their direction, the government does not allege that Padilla was a member of al Qaeda.
The government also offered for the District Court's review Mobbs' sealed declaration, which the District Court characterized as "identifying one or more of the sources referred to only in cryptic terms in the [unsealed] Mobbs Declaration" and "set[ting] forth objective circumstantial evidence that corroborates the factual allegations in the [unsealed] Mobbs Declaration." Padilla I, 233 F. Supp. 2d at 609.4
III. District Court Proceedings on the Habeas Petition
On June 26, 2002, the government moved to dismiss Padilla's habeas petition on the grounds that Newman lacked standing to act as Padilla's next friend, that Secretary Rumsfeld was not a proper respondent, and that, in any event, the District Court lacked personal jurisdiction over him. On the merits, the government contended that each Mobbs declaration contained sufficient evidence of Padilla's association with al Qaeda and his intention to engage in terrorist acts in this country on behalf of al Qaeda to establish the legality of holding Padilla in military custody as an enemy combatant. Padilla contended that the President lacked authority to detain an American citizen taken into custody in the United States. At a minimum, he sought access to counsel.
In a comprehensive and thorough opinion, the District Court determined that (1) Newman could bring the habeas petition as Padilla's next friend; (2) Secretary Rumsfeld was a proper respondent and the District Court had jurisdiction over him; (3) the Constitution and statutory law give the President authority to detain American citizens as enemy combatants; (4) Padilla was entitled to consult with counsel to pursue his habeas petition "under conditions that will minimize the likelihood that he [could] use his lawyers as unwilling intermediaries for the transmission of information to others"; (5) Padilla could present facts and argument to the court to rebut the government's showing that he was an enemy combatant; and (6) the court would "examine only whether the President had some evidence to support his finding that Padilla was an enemy combatant, and whether that evidence has been mooted by events subsequent to his detention." Padilla I, 233 F. Supp. 2d at 569-70 (S.D.N.Y. 2002). The court did not rely on the sealed Mobbs declaration in making its rulings. Id. at 610.
The District Court's order directed the parties to set conditions under which Padilla could meet with his counsel, but Secretary Rumsfeld declined to do so. Instead, more than a month after the Padilla I decision, the government moved for reconsideration of the portion of Padilla I that allowed him access to counsel, on the ground that no conditions could be set that would protect the national security. Padilla ex rel. Newman v. Rumsfeld, 243 F. Supp. 2d 42, 43-46 (S.D.N.Y. 2003) ("Padilla II"). Although Chief Judge Mukasey expressed doubts as to the procedural regularity of the motion, he nonetheless entertained it on the merits and denied it. Id. at 48-49, 57.
The government then moved for certification of the issues which it had lost. Chief Judge Mukasey certified the following questions as "involv[ing] . . . controlling question[s] of law as to which there is substantial ground for difference of opinion" and the resolution of which "may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b) (2000); Padilla ex rel. Newman v. Rumsfeld, 256 F. Supp. 2d 218, 222-23 (S.D.N.Y. 2003) ("Padilla III"):
(1) Is the Secretary of Defense, Donald Rumsfeld, a proper respondent in this case?
(2) Does this court have personal jurisdiction over Secretary Rumsfeld?
(3) Does the President have the authority to designate as an enemy combatant an American citizen captured within the United States, and, through the Secretary of Defense, to detain him for the duration of armed conflict with al Qaeda?
(4) What burden must the government meet to detain petitioner as an enemy combatant?
(5) Does petitioner have the right to present facts in support of his habeas corpus petition?
(6) Was it a proper exercise of this court's discretion and its authority under the All Writs Act to direct that petitioner be afforded access to counsel for the purpose of presenting facts in support of his petition?
Id. at 223.
On June 10, 2003, this Court granted the parties' application for an interlocutory appeal.5
DISCUSSION
I. Preliminary Issues
A. Next Friend Status 6
The first of several issues in this appeal concerns attorney Newman's standing to proceed as "next friend" on Padilla's behalf. The government contends that Newman lacks standing because next friend status is restricted to counsel with a "longstanding" connection to a detainee, and that Newman's relationship with Padilla is not sufficient. Newman, on the other hand, contends that the established attorney-client relationship, under which she represented Padilla after his arrival in New York, is adequate for next friend standing because the nature of the relationship, not simply its duration, controls.
Next friend standing is authorized by 28 U.S.C. § 2242 (2000), which declares that a habeas petition may be brought "by the person for whose relief it is intended or by someone acting in his behalf." Id. (emphasis added). In Whitmore v. Arkansas, 495 U.S. 149, 110 S. Ct. 1717, 109 L.Ed.2d 135 (1990), the Supreme Court noted that next friend standing "has long been an accepted basis for jurisdiction in certain circumstances," and has most often been invoked "on behalf of detained prisoners who are unable, usually because of mental incompetence or inaccessibility, to seek relief themselves." Id. at 162. "A 'next friend' does not himself become a party to the habeas corpus action in which he participates, but simply pursues the cause on behalf of the detained person, who remains the real party in interest." Id. at 163. A next friend "resembles an attorney, or a guardian ad litem, by whom a suit is brought or defended in behalf of another." Morgan v. Potter, 157 U.S. 195, 198, 15 S. Ct. 590, 39 L.Ed. 670 (1895). The availability of next friend status is, however, subject to significant limitations:
Decisions applying the habeas corpus statute have adhered to at least two firmly rooted prerequisites for "next friend" standing. First, a "next friend" must provide an adequate explanation-such as inaccessibility, mental incompetence, or other disability-why the real party in interest cannot appear on his own behalf to prosecute the action. Second, the "next friend" must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate, and it has been further suggested that a "next friend" must have some significant relationship with the real party in interest. The burden is on the "next friend" clearly to establish the propriety of his status and thereby justify the jurisdiction of the court.
Whitmore, 495 U.S. at 163-64 (internal citations omitted). These "limitations on the 'next friend' doctrine are driven by the recognition that '[i]t was not intended that the writ of habeas corpus should be availed of, as matter of course, by intruders or uninvited meddlers, styling themselves next friends.'" Id. at 164 (quoting United States ex rel. Bryant v. Houston, 273 F. 915, 916 (2d Cir. 1921)).7
There is no dispute that Padilla is unable to file a petition on his own behalf-he is being held incommunicado. Similarly, there is no issue as to Newman's professional relationship with Padilla. As a member of the bar, she is, of course, duty-bound to represent Padilla and to protect his interests zealously and within the bounds of the law. See N.Y. Code Prof. Resp. DR 7-101. Newman was assigned to represent Padilla when he was first brought into the Southern District and, before his transfer to military custody, she had begun to advise Padilla about the legal implications of his apprehension and confinement. From May 15 to June 9, 2002, she met with him in an effort to vacate the material witness warrant and to secure his release. She filed motions on his behalf that attacked the legal basis of his confinement, met with his family and appeared in court with him. Moreover, she was perhaps the only person aware of his wishes when he was taken into custody by the DOD, and nothing in the record before us has called into question her suitability to pursue those wishes. Finally, she has continued ably to represent him and indeed she, with others, argued this appeal on his behalf. We find this relationship to be a significant one, notwithstanding its duration. We also find it one in which Newman is neither an "intruder" nor an "uninvited meddler," Whitmore, 495 U.S. at 164, and, consequently, we conclude that the District Court properly approved Newman as Padilla's next friend.8
B. Jurisdictional Issues
The government argues that because the proper respondent is Padilla's immediate custodian-Commander Melanie A. Marr, the commander of the brig in South Carolina, not Secretary Rumsfeld-the petition must be dismissed or transferred to the District of South Carolina because the Southern District of New York does not have jurisdiction. The government bases this contention on 28 U.S.C. §§ 2242 and 2243, which require a petitioner to "allege . . . the name of the person who has custody over him," instruct that the writ "be directed to the person having custody of the person detained," and provide that "the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained."9 The government asserts this language "indicates . . . there is only one proper respondent to a habeas petition," Commander Marr, who is not within the jurisdiction of the Southern District of New York. Vasquez v. Reno, 233 F.3d 688, 693 (1st Cir. 2000). The government's jurisdictional argument thus raises two issues: who is the proper respondent and whether the Southern District of New York has jurisdiction over that individual.
i. Is Secretary Rumsfeld a Proper Respondent?
The government contends that in the usual habeas corpus case brought by a federal prisoner, courts have consistently held that the proper respondent is the warden of the facility, not the Attorney General. See, e.g., Sanders v. Bennett, 148 F.2d 19, 20 (D.C. Cir. 1945). Similarly, it argues the proper respondent to a petition brought by a military prisoner challenging his confinement is the warden of the facility holding the soldier, not the Secretary of Defense. See, e.g., Monk v. Sec'y of the Navy, 793 F.2d 364, 369 (D.C. Cir. 1986).10 This traditional rule has been described as "a practical one based on common sense administration of justice." Sanders, 148 F.2d at 20. Relying on these principles, the government argues that the petition must be brought against Commander Marr, not Secretary Rumsfeld.
But this is not the usual situation. "[W]hat makes the usual case usual is that the petitioner is serving a sentence, and the list of those other than the warden who are responsible for his confinement includes only people who have played particular and discrete roles in confining him, notably the prosecuting attorney and the sentencing judge, and who no longer have a substantial and ongoing role in his continued confinement." Padilla I, 233 F. Supp. 2d at 579. Thus, "[t]he warden becomes the respondent of choice almost by default." Id.
When habeas petitions are brought by persons detained for reasons other than federal criminal violations, the Supreme Court has recognized exceptions to the general practice of naming the immediate physical custodian as respondent. "The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected." Harris v. Nelson, 394 U.S. 286, 291, 89 S. Ct. 1082, 22 L.Ed.2d 281 (1969). Moreover, the courts "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." Lee v. United States, 501 F.2d 494, 503 n.9 (8th Cir. 1974) (Webster, J., concurring) (quoting Hensley v. Municipal Court, 411 U.S. 345, 350, 93 S. Ct. 1571, 36 L.Ed.2d 294 (1973)).
Ex parte Endo, 323 U.S. 283, 65 S. Ct. 208, 89 L.Ed. 243 (1944), for example, involved a Japanese-American woman originally interned at Tulelake, California but later transferred to an internment camp in Utah. The Court held that her transfer did not destroy the California district court's jurisdiction over the habeas petition, because there were potential respondents- the Secretary of the Interior or national officials of the War Relocation Authority-still within the court's jurisdictional reach. Id. at 304-06. Rather than formalistically require that Endo's immediate physical custodian be designated as the respondent, the Court recognized the flexibility of the Writ and concluded that the petition could properly be directed against national- level officials who have power to "produce[]" the petitioner even though they were not the immediate custodians. Id. at 305. 11
Similarly, in Strait v. Laird, 406 U.S. 341, 92 S. Ct. 1693, 32 L.Ed.2d 141 (1972), the Court held that Strait, a California-domiciled inactive Army reservist under the command of an Indiana-based officer, could file a habeas action against that officer in California district court.12 Although Strait's military records were kept with his commanding officer at Fort Benjamin Harrison, Indiana, Strait was at all times domiciled in California and was never in or assigned to Indiana. When ordered to report to active duty at Fort Gordon, Georgia, he filed an application for discharge as a conscientious objector. His application was processed at Fort Ord, California and his superiors in California recommended discharge, but on review, the application was denied. Thereafter, Strait filed a petition for a writ of habeas corpus in California naming his commander in Indiana as the respondent. The Supreme Court held that jurisdiction was proper in California. It concluded that "virtually every face-to-face contact between [Strait] and the military occurred in California" at the direction of the Indiana officer. Id. at 344. Accordingly, the Court held that because the Indiana commander had the responsibility to decide whether to release Strait, he was an appropriate respondent despite the intervening level of military personnel that dealt with Strait directly.
Under Strait's "broad concept" of custodian, the appropriate focus was whether the respondent, through his agent, was responsible for Strait's detention.13 Strait, however, did not calibrate the distance in the chain of command sufficient for designation as a "custodian" for habeas purposes. Although Strait named the Secretary of Defense as a respondent in addition to Strait's Indiana commanding officer, the Court did not discuss whether the Secretary was a proper respondent. In any event, it was clear there, unlike here, that the Secretary had no direct responsibility for the denial of Strait's application for conscientious objector status.
Finally, in Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S. Ct. 1123, 35 L.Ed.2d 443 (1973), Kentucky filed a detainer against Braden while he was imprisoned in Alabama on unrelated charges. The Court held that, notwithstanding his confinement in Alabama, he could file a habeas petition against Kentucky authorities in Kentucky federal district court to challenge Kentucky's alleged failure to grant him a speedy trial on that state's charges.14 Id. at 500. The Court determined that 28 U.S.C. § 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian of the prisoner. The fact that "the prisoner himself [was] confined outside the court's territorial jurisdiction" was immaterial; what was dispositive was the court's jurisdiction over the "custodian." Id. at 495.15 Importantly, the proper respondent was the entity with the power to limit the petitioner's freedom: the Kentucky authorities that filed the detainer. Simply put, Braden could not seek relief from the detainer without making the Kentucky court a party to the proceeding.16
The unique role Secretary Rumsfeld plays in this matter leads us to conclude that he is a proper respondent. Secretary Rumsfeld was charged by the President in the June 9 Order with detaining Padilla. In following that Order, the Secretary sent DOD personnel into the Southern District of New York to take custody of Padilla. Secretary Rumsfeld, or his designees, determined that Padilla would be sent to the brig in South Carolina. Although Commander Marr is the commander of the Brig, the legal reality of control is vested with Secretary Rumsfeld, since only he-not Commander Marr-could inform the President that further restraint of Padilla as an enemy combatant is no longer necessary. In this respect, "the extraordinary and pervasive role that [Secretary Rumsfeld] played in [this] matter[ ] is virtually unique." Henderson v. INS, 157 F.3d 106, 126 (2d Cir. 1998).17 In fact, this degree of Cabinet-level involvement is unprecedented as far as we have been able to determine. Accordingly, we do not undertake to articulate a rule defining the proper respondent in a habeas case other than one involving a petitioner designated as an enemy combatant under circumstances congruent with Padilla's designation and detention. We only hold that, here, Secretary Rumsfeld is the proper respondent.
ii. Whether the Court has Jurisdiction over Secretary Rumsfeld
The government argues that even if Secretary Rumsfeld were a proper respondent, he is located in the Eastern District of Virginia beyond the District Court's habeas jurisdiction, because 28 U.S.C. § 2241(a) limits district courts to issuing writs "within their respective jurisdictions," 28 U.S.C. § 2241(a), and this means that "habeas corpus jurisdiction does not extend to officials outside the court's territorial limits." Malone v. Calderon, 165 F.3d 1234, 1237 (9th Cir. 1999). Under this analysis, long-arm jurisdiction is not applicable to habeas petitions. Newman, on the other hand, maintains that a federal district court sitting in New York has habeas jurisdiction over a non-resident "custodian" if he can be reached under the state's process-here, New York's long-arm statute. See N.Y. C.P.L.R. § 302 (McKinney 2003).
The Supreme Court in Ahrens v. Clark, 335 U.S. 188, 68 S. Ct. 1443, 92 L.Ed. 1898 (1948), had construed section 2241(a)'s language of "within their respective jurisdictions" to require a habeas petitioner to be physically present within the district. See id. at 190. But Braden overruled Ahrens and dispensed with this requirement:
Read literally, the language of § 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian. 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, or requiring that he be released outright from custody, even if the prisoner himself is confined outside the court's territorial jurisdiction.
Braden, 410 U.S. at 495.
Moreover, Supreme Court law predating Braden supports the conclusion that habeas jurisdiction requires only that the district court have personal jurisdiction over the respondent-long-arm or otherwise. In Strait, the Court held that the reservist located in California could bring a habeas petition in that state against his Indiana-based commanding officer, rejecting the contention that long-arm jurisdiction does not apply in the habeas context:
Strait's commanding officer is "present" in California through the officers in the hierarchy of the command who processed this serviceman's application for discharge. To require him to go to Indiana where he never has been or assigned to be would entail needless expense and inconvenience.
406 U.S. at 345 (footnote omitted). The Court added:
That such "presence" may suffice for personal jurisdiction is well settled, McGee v. Int'l Life Ins. Co., 355 U.S. 220, 78 S. Ct. 199, 2 L.Ed.2d 223; Int'l Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L.Ed. 95, and the concept is also not a novel one as regards habeas corpus jurisdiction. In Ex parte Endo, 323 U.S. 283, 307, 65 S. Ct. 208, 89 L.Ed. 243, we said that habeas corpus may issue "if a respondent who has custody of the prisoner is within reach of the court's process."
Id. n.2. The issue, then, is whether Secretary Rumsfeld is subject to the personal jurisdiction of the Southern District of New York. See, e.g., United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1128-29 (2d Cir. 1974) (interpreting Braden to require only that the custodian be reachable by the state's long-arm statute).
The breadth of a federal court's personal jurisdiction is determined by the law of the state in which the district court is located. See Fed.R.Civ.P. 4(k)(1)(A); United States v. First Nat'l Bank, 379 U.S. 378, 381, 85 S. Ct. 528, 13 L.Ed.2d 365 (1965); Henderson, 157 F.3d at 123. New York's long-arm statute provides that personal jurisdiction may be asserted over any non-domiciliary if, "in person or through an agent," he "transacts any business within the state" or "commits a tortious act within the state," as long as the particular cause of action asserted is one "arising from" any of those acts. N.Y. C.P.L.R. § 302(a)(1), (2) (McKinney 2003).18 Its purpose was to extend the jurisdiction of New York courts over nonresidents who have "engaged in some purposeful activity [here] in connection with the matter in suit." Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 457, 261 N.Y.S.2d 8, 209 N.E.2d 68 (1965). Section 302 is a single-act statute; jurisdiction attaches if the defendant engages in a single purposeful activity that has a substantial relationship or articulable nexus to the claim asserted. See Parke-Bernet Galleries, Inc. v. Franklyn, 26 N.Y.2d 13, 16-17, 308 N.Y.S.2d 337, 256 N.E.2d 506 (1969); see also Henderson, 157 F.3d at 123. Moreover, the statute's jurisprudential gloss and its legislative history suggest that its "transacts business" clause is not restricted to commercial activity.19 In fact, the advisory committee which drafted the section decided to follow the broad, inclusive language of the Illinois long-arm statute then in effect, adopting as the criterion the "[transaction of] any business within the state." N.Y. C.P.L.R. § 302(a)(1); Ill. Stat. Ann., ch. 110 § 17 (Smith-Hurd 1956). Its legislative history indicates that it was designed to take advantage of the "new [jurisdictional] enclave" opened up by International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L.Ed. 95 (1945), where the nonresident defendant has engaged in some purposeful activity in this State in connection with the suit. See N.Y. Advisory Comm. Rep. (N.Y. Legis. Doc., 1958, No. 13), at 39-40.20
We have little difficulty concluding that Secretary Rumsfeld is amenable to process under New York's long-arm statute. Although the Department of Justice ("DOJ") was responsible for bringing Padilla into the Southern District as a material witness and for detaining him at the MCC-a DOJ facility-all of the activities salient to Padilla's claim were completed or initiated by Secretary Rumsfeld or his agents in the Southern District of New York. Secretary Rumsfeld was charged by the President in the June 9 Order with detaining Padilla.21 Pursuant to that Order, the material witness warrant was withdrawn and Secretary Rumsfeld was instructed to take custody of Padilla. Secretary Rumsfeld then sent DOD personnel into the Southern District of New York to (1) remove Padilla from the MCC, (2) detain Padilla, and (3) transfer him to South Carolina. Most importantly, Padilla's status was transformed in the Southern District-he arrived in New York a material witness in a grand jury investigation related to the September 11 attacks and departed an enemy combatant. In our opinion, these purposeful contacts of Secretary Rumsfeld with the Southern District of New York, whether personal or through agents, were substantially related to the claims asserted by Padilla and are therefore sufficient to confer personal jurisdiction over the Secretary by the District Court. See N.Y. C.P.L.R. § 302 (McKinney 2003); see also Longines, 15 N.Y.2d at 457, 261 N.Y.S.2d 8, 209 N.E.2d 68.22
II. Power to Detain
A. Introduction
The District Court concluded, and the government maintains here, that the indefinite detention of Padilla was a proper exercise of the President's power as Commander-in-Chief. The power to detain Padilla is said to derive from the President's authority, settled by Ex parte Quirin, 317 U.S. 1 (1942), to detain enemy combatants in wartime-authority that is argued to encompass the detention of United States citizens seized on United States soil. This power, the court below reasoned, may be exercised without a formal declaration of war by Congress and "even if Congressional authorization were deemed necessary, the Joint Resolution, passed by both houses of Congress, . . . engages the President's full powers as Commander in Chief." Padilla I, 233 F. Supp. 2d at 590. Specifically, the District Court found that the Joint Resolution acted as express congressional authorization under 18 U.S.C. § 4001(a), which prohibits the detention of American citizens absent such authorization. Id. at 598-99. In addition, the government claims that 10 U.S.C. § 956(5), a statute that allows the military to use authorized funds for certain detentions, grants authority to detain American citizens.
These alternative arguments require us to examine the scope of the President's inherent power and, if this is found insufficient to support Padilla's detention, whether Congress has authorized such detentions of American citizens. We reemphasize, however, that our review is limited to the case of an American citizen arrested in the United States, not on a foreign battlefield or while actively engaged in armed conflict against the United States. As the Fourth Circuit recently- and accurately-noted in Hamdi v. Rumsfeld, "[t]o compare this battlefield capture [of Hamdi] to the domestic arrest in Padilla v. Rumsfeld is to compare apples and oranges." 337 F.3d 335, 344 (4th Cir. 2003) ("Hamdi IV") (Wilkinson, J., concurring).
B. The Youngstown Analysis
Our review of the exercise by the President of war powers in the domestic sphere starts with the template the Supreme Court constructed in Youngstown, 343 U.S. at 635-38 (Jackson, J., concurring). Youngstown involved the validity of President Truman's efforts during the Korean War to seize the country's steel mills on the eve of a nationwide strike by steelworkers. Id. at 582-85. Writing for the majority, Justice Black explained that the President's power "must stem either from an act of Congress or from the Constitution itself." Id. at 585. The Court held that the seizure could not be justified as a function of the President's Commander-in-Chief powers and that it had not been authorized by Congress. Id. at 587-88. Justice Jackson's concurrence, which provides the framework for reviewing the validity of executive action, posits three categories for evaluating the exercise of emergency powers by the President. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 668-69, 101 S. Ct. 2972, 69 L.Ed.2d 918 (1981); Hamdi v. Rumsfeld, 296 F.3d 278, 281 (4th Cir. 2002) ("Hamdi II").
First, when the President acts pursuant to an express or implied authorization from Congress, "his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate." Youngstown, 343 U.S. at 635 (Jackson, J., concurring). This category is exemplified by the power exercised by the President in Quirin and in United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S. Ct. 216, 81 L.Ed. 255 (1936). Second, when the President acts in the absence of either a congressional grant or denial of authority, "he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain." Youngstown, 343 U.S. at 637. Finally, the third category includes those situations where the President takes measures incompatible with the express or implied will of Congress. In such cases, "his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter." Id. The "[c]ourts can sustain exclusive presidential control [in this situation] only by disabling the Congress from acting upon the subject." Id. at 637-38.
Here, we find that the President lacks inherent constitutional authority as Commander-in-Chief to detain American citizens on American soil outside a zone of combat. We also conclude that the Non-Detention Act serves as an explicit congressional "denial of authority" within the meaning of Youngstown, thus placing us in Youngstown's third category. Finally, we conclude that because the Joint Resolution does not authorize the President to detain American citizens seized on American soil, we remain within Youngstown's third category.
i. Inherent Power
The government contends that the President has the inherent authority to detain those who take up arms against this country pursuant to Article II, Section 2, of the Constitution, which makes him the Commander-in-Chief, and that the exercise of these powers domestically does not require congressional authorization. Moreover, the argument goes, it was settled by Quirin that the military's authority to detain enemy combatants in wartime applies to American citizens as well as to foreign combatants. There the Supreme Court explained that "universal agreement and practice" under "the law of war" holds that "[l]awful combatants are subject to capture and detention as prisoners of war by opposing military forces" and "[u]nlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful." 317 U.S. at 30-31. Finally, since the designation of an enemy combatant bears the closest imaginable connection to the President's constitutional responsibilities, principles of judicial deference are said by the government to assume heightened significance.
We agree that great deference is afforded the President's exercise of his authority as Commander-in-Chief. See Dep't of the Navy v. Egan, 484 U.S. 518, 530, 108 S. Ct. 818, 98 L.Ed.2d 918 (1988). We also agree that whether a state of armed conflict exists against an enemy to which the laws of war apply is a political question for the President, not the courts. See Johnson v. Eisentrager, 339 U.S. 763, 789, 70 S. Ct. 936, 94 L.Ed. 1255 (1950) ("Certainly it is not the function of the Judiciary to entertain private litigation-even by a citizen-which challenges the legality, the wisdom, or the propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region."); The Prize Cases, 67 U.S. (2 Black) 635, 670, 17 L.Ed. 459 (1862). Because we have no authority to do so, we do not address the government's underlying assumption that an undeclared war exists between al Qaeda and the United States. We have no quarrel with the former chief of the Justice Department's Criminal Division, who said:
For [al Qaeda] chose not to violate the law but to attack the law and its institutions directly. Their proclaimed goal, however unrealistic, was to destroy the United States. They used powerful weapons of destructive force and openly declared their willingness to employ even more powerful weapons of mass destruction if they could lay hold of them. They were as serious a threat to the national security of the United States as one could envision.
Michael Chertoff, Law, Loyalty, and Terror: Our Legal Response to the Post-9-11 World, Wkly. Standard, Dec. 1, 2003, at 15.
However, it is a different proposition entirely to argue that the President even in times of grave national security threats or war, whether declared or undeclared, can lay claim to any of the powers, express or implied, allocated to Congress. The deference due to the Executive in its exercise of its war powers therefore only starts the inquiry; it does not end it. Where the exercise of Commander-in-Chief powers, no matter how well intentioned, is challenged on the ground that it collides with the powers assigned by the Constitution to Congress, a fundamental role exists for the courts. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). To be sure, when Congress and the President act together in the conduct of war, "it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs." Hirabayashi v. United States, 320 U.S. 81, 93, 63 S. Ct. 1375, 87 L.Ed. 1774 (1943). But when the Executive acts, even in the conduct of war, in the face of apparent congressional disapproval, challenges to his authority must be examined and resolved by the Article III courts. See Youngstown, 343 U.S. at 638 (Jackson, J., concurring).
These separation of powers concerns are heightened when the Commander-in-Chief's powers are exercised in the domestic sphere. The Supreme Court has long counseled that while the Executive should be "indulge[d] the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society," he enjoys "no such indulgence" when "it is turned inward." Youngstown, 343 U.S. at 645 (Jackson, J., concurring). This is because "the federal power over external affairs [is] in origin and essential character different from that over internal affairs," and "congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved." Curtiss-Wright, 299 U.S. at 319, 320. But, "Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy." Youngstown, 343 U.S. at 644 (Jackson, J., concurring). Thus, we do not concern ourselves with the Executive's inherent wartime power, generally, to detain enemy combatants on the battlefield. Rather, we are called on to decide whether the Constitution gives the President the power to detain an American citizen seized in this country until the war with al Qaeda ends.
The government contends that the Constitution authorizes the President to detain Padilla as an enemy combatant as an exercise of inherent executive authority. Padilla contends that, in the absence of express congressional authorization, the President, by his June 9 Order denominating Padilla an enemy combatant, has engaged in the "lawmaking" function entrusted by the Constitution to Congress in violation of the separation of powers. In response, no argument is made that the Constitution expressly grants the President the power to name United States citizens as enemy combatants and order their detention. Rather, the government contends that the Commander-in-Chief Clause implicitly grants the President the power to detain enemy combatants domestically during times of national security crises such as the current conflict with al Qaeda. U.S. Const. art. II, § 2.
As an initial matter, we note that in its explicit vesting of powers in Articles I and II, the Constitution circumscribes and defines the respective functions of the political branches. INS v. Chadha, 462 U.S. 919, 946, 103 S. Ct. 2764, 77 L.Ed.2d 317 (1983) ("The very structure of the Articles delegating and separating powers under Arts. I, II, and III exemplifies the concept of separation of powers . . . ."). The Constitution gives Congress the full legislative powers of government and at the same time, gives the President full executive authority and responsibility to "take care" that the laws enacted are faithfully executed. U.S. Const. art I, § 1, art. II, §§ 1, 3; Loving v. United States, 517 U.S. 748, 758, 116 S. Ct. 1737, 135 L.Ed.2d 36 (1996) ("[T]he lawmaking function belongs to Congress . . . and may not be conveyed to another branch or entity"); Field v. Clark, 143 U.S. 649, 692, 12 S. Ct. 495, 36 L.Ed. 294 (1892). Thus, while the President has the obligation to enforce laws passed by Congress, he does not have the power to legislate.
The propriety of a given branch's conduct does not turn on the labeling of activity as "legislative" or "executive." See Mistretta v. United States, 488 U.S. 361, 393, 109 S. Ct. 647, 102 L.Ed.2d 714 (1989). Legislative action depends "not on form but upon whether [it] contain[s] matter which is properly to be regarded as legislative in its character and effect." Chadha, 462 U.S. at 952 (internal quotation marks omitted). Thus, we must look to whether the exercise of power in question has been "subject to the carefully crafted restraints spelled out in the Constitution," id. at 959, to ensure that authority is exercised only by the branch to which it has been allocated. See Youngstown, 343 U.S. at 587-88.
The Constitution entrusts the ability to define and punish offenses against the law of nations to the Congress, not the Executive. U.S. Const. art. II, § 8, cl. 10; United States v. Arjona, 120 U.S. 479, 483, 7 S. Ct. 628, 30 L.Ed. 728 (1887). Padilla contends that the June 9 Order mandating his detention as an "enemy combatant" was not the result of congressional action defining the category of "enemy combatant." He also argues that there has been no other legislative articulation of what constitutes an "enemy combatant," what circumstances trigger the designation, or when it ends. As in Youngstown, Padilla maintains that "[t]he President's order does not direct that a congressional policy be executed in a manner prescribed by Congress -it directs that a presidential policy be executed in a manner prescribed by the President." Youngstown, 343 U.S. at 588.
The Constitution envisions grave national emergencies and contemplates significant domestic abridgements of individual liberties during such times. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159-60, 83 S. Ct. 554, 9 L.Ed.2d 644 (1963). Here, the Executive lays claim to the inherent emergency powers necessary to effect such abridgements, but we agree with Padilla that the Constitution lodges these powers with Congress, not the President. See Youngstown, 343 U.S. at 649-50 (Jackson, J., concurring).
First, the Constitution explicitly provides for the suspension of the writ of habeas corpus "when in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const. art. I, § 9, cl. 2. This power, however, lies only with Congress. Ex parte Bollman, 8 U.S. (4 Cranch) 75, 101, 2 L.Ed. 554 (1807). Further, determinations about the scope of the writ are for Congress. Lonchar v. Thomas, 517 U.S. 314, 323, 116 S. Ct. 1293, 134 L.Ed.2d 440 (1996).
Moreover, the Third Amendment's prohibition on the quartering of troops during times of peace reflected the Framers' deep-seated beliefs about the sanctity of the home and the need to prevent military intrusion into civilian life.23 See, e.g., Laird v. Tatum, 408 U.S. 1, 15, 92 S. Ct. 2318, 33 L.Ed.2d 154 (1972); Katz v. United States, 389 U.S. 347, 350 n.5, 88 S. Ct. 507, 19 L.Ed.2d 576 (1967). At the same time they understood that in times of war-of serious national crisis-military concerns prevailed and such intrusions could occur. But significantly, decisions as to the nature and scope of these intrusions were to be made "in a manner to be prescribed by law." U.S. Const. amend. III. The only valid process for making "law" under the Constitution is, of course, via bicameral passage and presentment to the President, whose possible veto is subject to congressional override, provided in Article I, Section 7. See Chadha, 462 U.S. at 946-51.
The Constitution's explicit grant of the powers authorized in the Offenses Clause, the Suspension Clause, and the Third Amendment, to Congress is a powerful indication that, absent express congressional authorization, the President's Commander-in-Chief powers do not support Padilla's confinement. See id. at 946. The level of specificity with which the Framers allocated these domestic powers to Congress and the lack of any even near-equivalent grant of authority in Article II's catalogue of executive powers compels us to decline to read any such power into the Commander-in- Chief Clause. In sum, while Congress-otherwise acting consistently with the Constitution-may have the power to authorize the detention of United States citizens under the circumstances of Padilla's case, the President, acting alone, does not.24 See Youngstown, 343 U.S. at 631-32 (Douglas, J., concurring).
The government argues that Quirin established the President's inherent authority to detain Padilla. In Quirin, the Supreme Court reviewed the habeas petitions of German soldiers captured on United States soil during World War II. All of the petitioners had lived in the United States at some point in their lives and had been trained in the German Army in the use of explosives. See 317 U.S. at 20-21. These soldiers, one of whom would later claim American citizenship, landed in the United States and shed their uniforms intending to engage in acts of military sabotage. They were arrested in New York and Chicago, tried by a military commission as "unlawful combatants," and sentenced to death. The Court denied the soldiers' petitions for habeas corpus, holding that the alleged American citizenship of one of the saboteurs was immaterial to its judgment: "Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war." Id. at 37. The government contends that Quirin conclusively establishes the President's authority to exercise military jurisdiction over American citizens.
We do not agree that Quirin controls. First, and most importantly, the Quirin Court's decision to uphold military jurisdiction rested on express congressional authorization of the use of military tribunals to try combatants who violated the laws of war. Id. at 26-28. Specifically, the Court found it "unnecessary for present purposes to determine to what extent the President as Commander in Chief has constitutional power to create military commissions without the support of Congressional legislation." Id. at 29.25 Accordingly, Quirin does not speak to whether, or to what degree, the President may impose military authority upon United States citizens domestically without clear congressional authorization. We are reluctant to read into Quirin a principle that the Quirin Court itself specifically declined to promulgate.26
Moreover, there are other important distinctions between Quirin and this case. First, when Quirin was decided in 1942, section 4001(a) had not yet been enacted. The Quirin Court consequently had no occasion to consider the effects of legislation prohibiting the detention of American citizens absent statutory authorization. As a result, Quirin was premised on the conclusion-indisputable at the time-that the Executive's domestic projection of military authority had been authorized by Congress. Because the Quirin Court did not have to contend with section 4001(a), its usefulness is now sharply attenuated.
Second, the petitioners in Quirin admitted that they were soldiers in the armed forces of a nation against whom the United States had formally declared war. The Quirin Court deemed it unnecessary to consider the dispositive issue here-the boundaries of the Executive's military jurisdiction-because the Quirin petitioners "upon the conceded facts, were plainly within those boundaries." Id. at 46. Padilla makes no such concession. To the contrary, he, from all indications, intends to dispute his designation as an enemy combatant, and points to the fact that the civilian accomplices of the Quirin saboteurs-citizens who advanced the sabotage plots but who were not members of the German armed forces-were charged and tried as civilians in civilian courts, not as enemy combatants subject to military authority. Haupt v. United States, 330 U.S. 631, 67 S. Ct. 874, 91 L.Ed. 1145 (1947); Cramer v. United States, 325 U.S. 1, 65 S. Ct. 918, 89 L.Ed. 1441 (1945).
In Ex parte Milligan, 71 U.S. (4 Wall.) 2, 18 L.Ed. 281 (1866), the government unsuccessfully attempted to prosecute before a military tribunal a citizen who, never having belonged to or received training from the Confederate Army, "conspired with bad men" to engage in acts of war and sabotage against the United States. 71 U.S. at 131. Although Quirin distinguished Milligan on the ground that "Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, [and] not subject to the law of war," 317 U.S. at 45, a more germane distinction rests on the different statutes involved in Milligan and Quirin. During the Civil War, Congress authorized the President to suspend the writ of habeas corpus. Milligan, 71 U.S. at 4. However, it also limited his power to detain indefinitely "citizens of States in which the administration of the laws had continued unimpaired in the Federal courts, who were then held, or might thereafter be held, as prisoners of the United States, under the authority of the President, otherwise than as prisoners of war." Id. at 5.
This limitation was embodied in a requirement that the Executive furnish a list of such prisoners to the district and circuit courts and, upon request by a prisoner, release him if the grand jury failed to return an indictment. Id. The grand jury sitting when Milligan was detained failed to indict him. Id. at 7. The Court concluded that because "Congress could grant no . . . power" to authorize the military trial of a civilian in a state where the courts remained open and functioning, Milligan could not be tried by a military tribunal. Id. at 121-22. Thus, both Quirin and Milligan are consistent with the principle that primary authority for imposing military jurisdiction upon American citizens lies with Congress. Even though Quirin limits to a certain extent the broader holding in Milligan that citizens cannot be subjected to military jurisdiction while the courts continue to function, Quirin and Milligan both teach that-at a minimum-an Act of Congress is required to expand military jurisdiction.
The government's argument for the legality of Padilla's detention also relies heavily on the Fourth Circuit's decisions in Hamdi II and Hamdi III. These decisions are inapposite. The Fourth Circuit directly predicated its holdings on the undisputed fact that Hamdi was captured in a zone of active combat in Afghanistan. Hamdi III, 316 F.3d at 459 ("Because it is undisputed that Hamdi was captured in a zone of active combat in a foreign theater of conflict, we hold that . . . [n]o further factual inquiry is necessary or proper."). The court said:
We have no occasion . . . to address the designation as an enemy combatant of an American citizen captured on American soil or the role that counsel might play in such a proceeding. We shall, in fact, go no further in this case than the specific context before us-that of the undisputed detention of a citizen during a combat operation undertaken in a foreign country.
Hamdi III, at 465 (internal citation omitted).
The dissent also relies on The Prize Cases, which, like Milligan, arose out of the Civil War, to conclude that the President has the inherent constitutional authority to protect the nation when met with belligerency and to determine what degree of responsive force is necessary. We believe that neither the facts of The Prize Cases nor their holding support such a broad construction.
First, The Prize Cases dealt with the capture of enemy property-not the detention of persons. The Court had no occasion to address the strong constitutional arguments against deprivations of personal liberty, or the question of whether the President could infringe upon individual liberty rights through the exercise of his wartime powers outside a zone of combat.
Second, the dissent would have us read The Prize Cases as resolving any question as to whether the President may detain Padilla as an enemy combatant without congressional authorization. The Court did not, however, rest its decision upholding the exercise of
the President's military authority solely on his constitutional powers without regard to congressional authorization. Rather, it noted that the President's authority to "call[ ] out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government" stemmed from "the Acts of Congress of February 28th, 1795, and 3d of March, 1807." Id. at 668. In any event, Congress's subsequent ratification of the President's wartime orders mooted any questions of presidential authority. Id. at 670. Finally, the Court in The Prize Cases was not faced with the Non-Detention Act specifically limiting the President's authority to detain American citizens absent express congressional authorization.
Based on the text of the Constitution and the cases interpreting it, we reject the government's contention that the President has inherent constitutional power to detain Padilla under the circumstances presented here.27 Therefore, under Youngstown, we must now consider whether Congress has authorized such detentions.
ii. Congressional Acts
a. The Non-Detention Act
As we have seen, the Non-Detention Act provides: "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." 18 U.S.C. § 4001(a). The District Court held that this language "encompasses all detentions of United States citizens." Padilla I, 233 F. Supp. 2d at 597.
We review this interpretation de novo. United States v. Lucien, 347 F.3d 45, 50 (2d Cir. 2003). In conducting our review, we must first examine the language of the statute and assume that its "ordinary meaning . . . accurately expresses the legislative purpose." Id. at 51 (internal quotation marks omitted). If the plain language is unambiguous, "judicial inquiry ends, except in 'rare and exceptional circumstances,' and legislative history is instructive only upon 'the most extraordinary showing of contrary intentions.'" Id. (quoting Garcia v. United States, 469 U.S. 70, 75, 105 S. Ct. 479, 83 L.Ed.2d 472 (1984)).
We read the plain language of section 4001(a) to prohibit all detentions of citizens-a conclusion first reached by the Supreme Court. Howe v. Smith, 452 U.S. 473, 479 n.3, 101 S. Ct. 2468, 69 L.Ed.2d 171 (1981) (characterizing the Non-Detention Act as "proscribing detention of any kind by the United States" (emphasis in original)). Not only has the government not made an extraordinary showing of contrary intentions, but the legislative history of the Non-Detention Act is fully consistent with our reading of it. Both the sponsor of the Act and its primary opponent repeatedly confirmed that the Act applies to detentions by the President during war and other times of national crisis. The legislative history is replete with references to the detentions of American citizens of Japanese descent during World War II, detentions that were authorized both by congressional acts and by orders issued pursuant to the President's war power. This context convinces us that military detentions were intended to be covered. Finally, the legislative history indicates that Congress understood that exceptions to the Non-Detention Act must specifically authorize detentions.
Section 4001(a) was enacted in 1971 and originated as an amendment to legislation repealing the Emergency Detention Act of 1950, former 50 U.S.C §§ 811-26 (1970), which authorized the detention by the Attorney General during an invasion, a declared war, or "an insurrection within the United States in aid of a foreign enemy" of "each person as to whom there is reasonable ground to believe that such person probably will engage in, or probably will conspire with others to engage in, acts of espionage or of sabotage." 50 U.S.C. §§ 812(a), 813(a) (1970). Congress referred to section 4001(a) as the Railsback amendment for its drafter, Representative Railsback. The Railsback amendment emerged from the House Judiciary Committee and was opposed by the House Internal Security Committee, which offered other alternatives.
Congressman Ichord, the chair of the House Internal Security Committee and the primary opponent of the Railsback amendment, argued that it would tie the President's hands in times of national emergency or war. He characterized the amendment as "this most dangerous committee amendment" and as "depriv[ing] the President of his emergency powers and his most effective means of coping with sabotage and espionage agents in war-related crises." 117 Cong. Rec. H31542 (daily ed. Sept. 13, 1971). Representative Ichord's alarm stemmed from his belief that Youngstown "teaches that where the Congress has acted on a subject within its jurisdiction, sets forth its policy, and asserts its authority, the President might not thereafter act in a contrary manner." Id. at H31544; see id. at H31549 ("I do feel that the language of the amendment drafted by [Representative Railsback] under the Youngstown Steel case would prohibit even the picking up, at the time of a declared war, at a time of an invasion of the United States, a man whom we would have reasonable cause to believe would commit espionage or sabotage.").
No proponent of the Railsback amendment challenged Representative Ichord's interpretation. In fact, in a striking exchange between Representatives Ichord and Railsback, he ratified Representative Ichord's interpretation. Representative Ichord asked: "Does [Representative Railsback] believe that in this country today there are people who are skilled in espionage and sabotage that might pose a possible threat to this Nation in the event of a war with nations of which those people are nationals or citizens?" Id. at H31551. Representative Railsback responded, "Yes." Id. Representative Ichord then asked: "Does the gentleman believe then that if we were to become engaged in a war with the country of those nationals, that we would permit those people to run at large without apprehending them, and wait until after the sabotage is committed?" Id. Railsback answered:
I think what would happen is what J. Edgar Hoover thought could have happened when he opposed the actions that were taken in 1942. He suggested the FBI would have under surveillance those people in question and those persons they had probable cause to think would commit such actions. Does the gentleman know that J. Edgar Hoover was opposed to detention camps, because be thought he had sufficient personnel to keep all these potential saboteurs under surveillance, and that they could prosecute the guilty in accordance with due process?
Id. at H31551-52. Railsback also suggested to Congress that the President could seize citizens only pursuant to an Act of Congress or during a time of martial law when the courts are not open. Id. at 31755.28
Congress's passage of the Railsback amendment by a vote of 257 to 49 after ample warning that both the sponsor of the amendment and its primary opponent believed it would limit detentions in times of war and peace alike is strong evidence that the amendment means what it says, that is that no American citizen can be detained without a congressional act authorizing the detention.
In addition, almost every representative who spoke in favor of repeal of the Emergency Detention Act or adoption of the Railsback amendment or in opposition to other amendments, described the detention of Japanese-American citizens during World War II as the primary motivation for their positions. See, e.g., id. at H31537 (Rep. Railsback); id. at H31541 (Rep. Poff); id. at H31549 (Rep. Giaimo); id. at H31555 (Rep. Eckhardt); id. at H31556 (Rep. Mikva); id. at H31560 (Rep. Lloyd); id. at H31565 (Rep. Edwards); id. at H31568 (Rep. Wyatt); id. at H31571-72 (Rep. Matsunaga); id. at H31573 (Rep. Johnson); id. at H31757 (Rep. Wright); id. at H31760 (Rep. Holifield); id. at H31770-71(Rep. Hansen); id. at H31772-73 (Rep. Anderson); id. at H31779 (Reps. Drinan and Pepper). Because the World War II detentions were authorized pursuant to the President's war making powers as well as by a congressional declaration of war and by additional congressional acts, see Endo, 323 U.S. at 285-90, the manifest congressional concern about these detentions also suggests that section 4001(a) limits military as well as civilian detentions.
Finally, a statement by Representative Eckhardt demonstrates that Congress intended to require its express authorization before the President could detain citizens. He said: "You have got to have an act of Congress to detain, and the act of Congress must authorize detention." Id. at H31555 (emphasis added). Based primarily on the plain language of the Non-Detention Act but also on its legislative history and the Supreme Court's interpretation, we conclude that the Act applies to all detentions and that precise and specific language authorizing the detention of American citizens is required to override its prohibition.
Despite its plain language, the government argues that section 4001(a) is intended to preclude only detentions by the Attorney General, not by the military. Its first argument is a constitutional one: to construe section 4001(a) to include military detentions would, in the government's view, risk construing it as an unconstitutional abridgement of the President's war powers. Its second argument is a statutory "placement" argument, which the government claims is supported in two ways. First, it contends that because section 4001(a) appears in a section governing the management of prisons, it does not constrain the President's war power. Second, it maintains that because section 4001(a) immediately precedes section 4001(b)(1), which vests authority to manage prisons in the Attorney General but specifically excludes military prisons from his purview, section 4001(a) must be read to exclude military detentions.
The District Court correctly declined to construe section 4001(a) to apply only to civilian detentions in order to avoid a construction of the statute that would unconstitutionally limit the President's war power. It held that the "doctrine of constitutional avoidance 'has no application in the absence of statutory ambiguity.'" Padilla I, 233 F. Supp. 2d at 597 (quoting HUD v. Rucker, 535 U.S. 125, 134, 122 S. Ct. 1230, 152 L.Ed.2d 258 (2002)). We agree. For the reasons discussed above, we have found that the statute is unambiguous. Moreover, this interpretation poses no risk of unconstitutionally abridging the President's war powers because, as we have also discussed above, the President, acting alone, possesses no inherent constitutional authority to detain American citizens seized within the United States, away from a zone of combat, as enemy combatants.29
Nor are we persuaded by the government's statutory placement argument. No accepted canon of statutory interpretation permits "placement" to trump text, especially where, as here, the text is clear and our reading of it is fully supported by the legislative history. While we, of course, as the government argues, read statutes as a whole to determine the most likely meaning of particular provisions or terms, this principle has no application here. Greater New York Metro. Food Council, Inc. v. Giuliani, 195 F.3d 100, 105 (2d Cir. 1999). Section 4001(b)(1) was enacted many decades prior to the Emergency Detention Act as part of entirely different legislation. The government points to nothing suggesting the two subsections share a common origin or meaning, rather than simply a common code designation. In any event, reliance on subsection (b)(1) suggests a conclusion opposite to the one the government proposes. Subsection (b)(1) provides:
The control and management of Federal penal and correctional institutions, except military or naval institutions, shall be vested in the Attorney General, who shall promulgate rules for the government thereof, and appoint all necessary officers and employees in accordance with