Khaled A. F. A Lodah v. United States of America

Notice: This opinion is subject to formal revision before publication in the
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 2, 2002 Decided March 11, 2003
No. 02-5251
KHALED A. F. A L ODAH, ET AL.,
APPELLANTS
v.
U NITED S TATES OF AMERICA, ET AL.,
A PPELLEES
Consolidated with
Nos. 02-5284, 02-5288
Appeals from the United States District Court
for the District of Columbia
(02cv00299)
(02cv00828)
(02cv01130)
–————
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.

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Thomas B. Wilner and Joseph Margulies argued the cause
for appellants. With them on the briefs were Neil H. Kos-
lowe, Michael Ratner, Beth Stephens, and L. Barrett Boss.
William J. Aceves was on the briefs of amici curiae The
International Centre for the Legal Protection of Human
Rights and International Human Rights Organizations and
Law Scholars in support of appellants.
David P. Sheldon was on the brief of amicus curiae
National Association of Criminal Defense Lawyers in support
of appellants.
Paul D. Clement, Deputy Solicitor General, U.S. Depart-
ment of Justice, argued the cause for appellees. With him on
the brief were Roscoe C. Howard, Jr., U.S. Attorney, Gregory
G. Katsas, Deputy Assistant Attorney General, U.S. Depart-
ment of Justice, Gregory G. Garre and David B. Salmons,
Assistants to the Solicitor General, Douglas N. Letter, Robert
M. Loeb and Katherine S. Dawson, Attorneys.
Daniel J. Popeo, Richard A. Samp and Paul D. Kamenar
were on the brief for amici curiae Washington Legal Foun-
dation, et al., in support of appellees.
Before: R ANDOLPH and G ARLAND, Circuit Judges, and
W ILLIAMS , Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge R ANDOLPH .
Concurring opinion filed by Circuit Judge RANDOLPH .
RANDOLPH, Circuit Judge: Through their ‘‘next friends,’’
aliens captured abroad during hostilities in Afghanistan and
held abroad in United States military custody at the Guanta-
namo Bay Naval Base in Cuba brought three actions contest-
ing the legality and conditions of their confinement. The
ultimate question presented in each case is whether the
district court had jurisdiction to adjudicate their actions.
I.
The Constitution, as its preamble also declares, empowers
Congress to ‘‘provide for the common Defence.’’ U.S. C ONST.

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art. I, § 8. To that end, the Constitution gives Congress the
power ‘‘To raise and support Armies,’’ ‘‘To provide and main-
tain a Navy,’’ ‘‘To declare War, grant Letters of Marque and
Reprisal, and make Rules concerning Captures on Land and
Water.’’ Id. To that end as well, the Constitution invests
the President with the ‘‘executive Power,’’ and makes him
‘‘Commander in Chief’’ of the country’s military. Art. II,
§§ 1 & 2; see Ex parte Quirin, 317 U.S. 1, 25-26 (1942).
In response to the attacks of September 11, 2001, and in
the exercise of its constitutional powers, Congress authorized
the President ‘‘to use all necessary and appropriate force
against those nations, organizations, or persons he determines
planned, authorized, committed, or aided’’ the attacks and
recognized the President’s ‘‘authority under the Constitution
to take action to deter and prevent acts of international
terrorism against the United States.’’ Authorization for Use
of Military Force, Pub. L. No. 107-40, 115 Stat. 224, 224
(2001). The President declared a national emergency, Procla-
mation No. 7453, Declaration of a National Emergency by
Reason of Certain Terrorist Attacks, 66 Fed. Reg. 48,199
(Sept. 14, 2001), and, as Commander in Chief, dispatched
armed forces to Afghanistan to seek out and subdue the al
Qaeda terrorist network and the Taliban regime that had
supported and protected it. During the course of the Afghan-
istan campaign, the United States and its allies captured the
aliens whose next friends bring these actions.
In one of the cases (Al Odah v. United States, No. 02-5251),
fathers and brothers of twelve Kuwaiti nationals detained at
Camp X-Ray in Guantanamo Bay brought an action in the
form of a complaint against the United States, President
George W. Bush, Secretary of Defense Donald H. Rumsfeld,
Chairman of the Joint Chiefs of Staff Gen. Richard B. Myers,
Brig. Gen. Rick Baccus, whom they allege is the Commander
of Joint Task Force 160, and Col. Terry Carrico, the Com-
mandant of Camp X-Ray/Camp Delta. None of the plaintiffs’
attorneys have communicated with the Kuwaiti detainees.
The complaint alleges that the detainees were in Afghanistan
and Pakistan as volunteers providing humanitarian aid; that
local villagers seeking bounties seized them and handed them

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over to United States forces; and that they were transferred
to Guantanamo Bay sometime between January and March
2002. A representative of the United States Embassy in
Kuwait informed the Kuwaiti government of their where-
abouts. Invoking the Great Writ, 28 U.S.C. §§ 2241-2242;
the Alien Tort Act, 28 U.S.C. § 1350; and the Administrative
Procedure Act, the Al Odah plaintiffs claim a denial of due
process under the Fifth Amendment, tortious conduct in
violation of the law of nations and a treaty of the United
States, and arbitrary and unlawful governmental conduct.
They seek a declaratory judgment and an injunction ordering
that they be informed of any charges against them and
requiring that they be permitted to consult with counsel and
meet with their families.
Rasul v. Bush (No. 02-5288) is styled a petition for a writ of
habeas corpus on behalf of three detainees, although it seeks
other relief as well. The next friends bringing the petition
are the father of an Australian detainee, the father of a
British detainee, and the mother of another British detainee.
Respondents are President Bush, Secretary Rumsfeld, Col.
Carrico, and Brig. Gen. Michael Lehnert, who is alleged to be
the Commander of Joint Task Force 160. The petition claims
that the Australian detainee was living in Afghanistan when
the Northern Alliance captured him in early December 2001;
that one of the British detainees traveled to Pakistan for an
arranged marriage after September 11, 2001; and that the
other British detainee went to Pakistan after that date to visit
relatives and continue his computer education. The next
friends learned of their sons’ detention at Guantanamo Bay
from their respective governments. The Rasul petitioners
claim violations of due process under the Fifth and Four-
teenth Amendments, international law, and military regula-
tions; a violation of the War Powers Clause; and a violation
of Article I of the Constitution because of the President’s
alleged suspension of the writ of habeas corpus. They seek a
writ of habeas corpus, release from unlawful custody, access
to counsel, an end to interrogations, and other relief.
Habib v. Bush (No. 02-5284) is also in the form of a petition
for writ of habeas corpus and is brought by the wife of an

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Australian citizen, acting as his next friend. Naming Presi-
dent Bush, Secretary Rumsfeld, Brig. Gen. Baccus, and Lt.
Col. William Cline as defendants, the petition alleges that
Habib traveled to Pakistan to look for employment and a
school for his children; that after Pakistani authorities ar-
rested him in October 2001, they transferred him to Egyptian
authorities, who handed him over to the United States mili-
tary; and that the military moved him from Egypt to Afghan-
istan and ultimately to Guantanamo Bay in May 2002. Aus-
tralian authorities visited Guantanamo and issued a press
release confirming Habib’s presence there. The Habib peti-
tion, like the other two cases, invokes the Due Process Clause
of the Fifth Amendment and other constitutional provisions,
the Alien Tort Act, the Administrative Procedure Act, due
process under international law, and United States military
regulations. Habib seeks a writ of habeas corpus, legally
sufficient process to establish the legality of his detention,
access to counsel, an end to all interrogations of him, and
other relief.
The district court held that it lacked jurisdiction. Believing
no court would have jurisdiction, it dismissed the complaint
and the two habeas corpus petitions with prejudice. Rasul v.
Bush, 215 F. Supp. 2d 55, 56 (D.D.C. 2002). In the court’s
view all of the detainees’ claims went to the lawfulness of
their custody and thus were cognizable only in habeas corpus.
Id. at 62-64. Relying upon Johnson v. Eisentrager, 339 U.S.
763 (1950), the court ruled that it did not have jurisdiction to
issue writs of habeas corpus for aliens detained outside the
sovereign territory of the United States. Rasul, 215 F. Supp.
2d at 72-73.
II.
While these cases were pending, the Ninth Circuit affirmed
an order dismissing a habeas corpus petition for all Guantana-
mo detainees on the ground that those bringing the action –
clergy, lawyers, and law professors – were not proper ‘‘next
friends.’’ Coalition of Clergy, Lawyers & Law Professors v.
Bush, 310 F.3d 1153, 1165 (9th Cir. 2002). In the cases

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before us, the government does not question the ‘‘next friend’’
status of the individuals prosecuting the actions, at least
insofar as they seek writs of habeas corpus. There is a long
history, going back to the 1600s in England, of ‘‘next friends’’
invoking the Great Writ on behalf of prisoners who are
unable to do so because of their inaccessibility. Whitmore v.
Arkansas, 495 U.S. 149, 162 (1990). For the federal courts,
Congress codified the practice in 1948: a habeas corpus
petition now may be brought ‘‘by the person for whose relief
it is intended or by someone acting in his behalf.’’ 28 U.S.C.
§ 2242. The next friends in these cases have demonstrated
through affidavits that they are ‘‘truly dedicated to the best
interests of these individuals,’’ that they have a ‘‘significant
relationship’’ with the detainees, and that the named detain-
ees are inaccessible. Whitmore, 495 U.S. at 163-64. We shall
therefore treat the cases as if the detainees themselves were
prosecuting the actions. Id. at 163.
In each of the three cases, the detainees deny that they are
enemy combatants or enemy aliens. Typical of the denials is
this paragraph from the petition in Rasul:
The detained petitioners are not, and have never
been, members of Al Qaida or any other terrorist
group. Prior to their detention, they did not commit
any violent act against any American person, nor
espouse any violent act against any American person
or property. On information and belief, they had no
involvement, direct or indirect, in either the terrorist
attacks on the United States September 11, 2001, or
any act of international terrorism attributed by the
United States to al Qaida or any terrorist group.
(As the district court pointed out, an affidavit from the father
of the Australian detainee in Rasul admitted that his son had
joined the Taliban forces. Rasul, 215 F. Supp. 2d at 60 n.6.)
Although the government asked the district court to take
judicial notice that the detainees are ‘‘enemy combatants,’’ the
court declined and assumed the truth of their denials. Id. at
67 n.12.

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This brings us to the first issue: whether the Supreme
Court’s decision in Johnson v. Eisentrager, which the district
court found dispositive, is distinguishable on the ground that
the prisoners there were ‘‘enemy aliens.’’ In the two and a
half years leading up to the 1950 Eisentrager decision, ‘‘Ger-
man enemy aliens confined by American military authorities
abroad’’ filed more than 200 habeas corpus petitions invoking
the Supreme Court’s original jurisdiction. 339 U.S. at 768
n.1. The Court denied each petition, often with four Justices
announcing that they would dismiss for lack of jurisdiction.
Id.; see Charles Fairman, Some New Problems of the Consti-
tution Following the Flag, 1 STAN. L. R EV. 587, 593-600 (1949).
Justice Jackson, the author of the Eisentrager opinion, re-
cused himself from each of the cases, doubtless because of his
service (after his appointment to the Court) as Representa-
tive and Chief Counsel at the Nazi war crime trials in
Nuremberg from 1945 to 1946. See Telford Taylor, The
Nuremberg Trials, 55 C OLUM. L. R EV. 488 (1955).
Eisentrager differed from the earlier World War II habeas
petitions. The case started not in the Supreme Court, but in
a district court; and the Germans seeking the writ had not
been convicted at Nuremberg. After Germany’s surrender
on May 8, 1945, but before the surrender of Japan, twenty-
one German nationals in China assisted Japanese forces
fighting against the United States. The Germans were cap-
tured, tried by an American military commission headquar-
tered in Nanking, convicted of violating the laws of war, and
transferred to the Landsberg prison in Germany, which was
under the control of the United States Army. 339 U.S. at
765–66. One of the prisoners, on behalf of himself and the
twenty others, sought writs of habeas corpus in the United
States District Court for the District of Columbia, claiming
violations of the Constitution, other laws of the United States,
and the 1929 Geneva Convention. Id. at 767. The district
court dismissed for lack of jurisdiction, but the court of
appeals reversed. Eisentrager v. Forrestal, 174 F.2d 961
(D.C. Cir. 1949).
The Supreme Court, agreeing with the district court, held
that ‘‘the privilege of litigation’’ had not been extended to the

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German prisoners. 339 U.S. at 777-78. (Although Eisentrag-
er discussed only the jurisdiction of federal courts, state
courts do not have jurisdiction to issue writs of habeas corpus
for the discharge of a person held under the authority of the
United States. Tarble’s Case, 80 U.S. (13 Wall.) 397 (1872).)
The prisoners therefore had no right to petition for a writ of
habeas corpus: ‘‘these prisoners at no relevant time were
within any territory over which the United States is sover-
eign, and the scenes of their offense, their capture, their trial
and their punishment were all beyond the territorial jurisdic-
tion of any court of the United States.’’ 339 U.S. at 778.
Moreover, ‘‘trials would hamper the war effort and bring aid
and comfort to the enemy.’’ Id. at 779. Witnesses, including
military officials, might have to travel to the United States
from overseas. Judicial proceedings would engender a ‘‘con-
flict between judicial and military opinion’’ and ‘‘would dimin-
ish the prestige of’’ any field commander as he was called ‘‘to
account in his own civil courts’’ and would ‘‘divert his efforts
and attention from the military offensive abroad to the legal
defensive at home.’’ Id.
The detainees here are quite right that throughout its
opinion, the Supreme Court referred to the Eisentrager
prisoners as ‘‘enemy aliens.’’ The petitioners in Habib and
Rasul distinguish themselves from the German prisoners on
the ground that they have not been charged and that the
charges in Eisentrager are what rendered the prisoners
‘‘enemies.’’ For this they rely on Justice Brennan’s dissent-
ing opinion in United States v. Verdugo-Urquidez, 494 U.S.
259, 290-91 (1990). Brief for Appellants at 29 (No. 02-5284 et
al.). Eisentrager, Justice Brennan wrote, ‘‘rejected the Ger-
man nationals’ efforts to obtain writs of habeas corpus not
because they were foreign nationals, but because they were
enemy soldiers.’’ 494 U.S. at 291 (Brennan, J., dissenting).
This seems to us doubly mistaken. In the first place, the
German prisoners were not alleged to be ‘‘soldiers.’’ They
were civilian employees of the German government convicted
of furnishing intelligence to the Japanese about the move-
ment of American forces in China. Eisentrager, 339 U.S. at
765-66; Eisentrager, 174 F.2d at 962. In the second place, it

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was not their convictions – which they contested – that
rendered them ‘‘enemy aliens.’’ The Supreme Court made
this explicit: ‘‘It is not for us to say whether these prisoners
were or were not guilty of a war crime,’’ 339 U.S. at 786; ‘‘the
petition of these prisoners admits[ ] that they are really alien
enemies,’’ id. at 784. The Court’s description of the prisoners
as ‘‘enemy aliens’’ rested instead on their status as nationals
of a country at war with the United States. Id. at 769 n.2
(quoting Techt v. Hughes, 229 N.Y. 222, 229 (1920) (Cardozo,
J.)). (Although Germany surrendered in 1945, the state of
war with Germany did not end until October 19, 1951. Pub.
L. No. 82-181, 65 Stat. 451; see United States ex rel. Jaegeler
v. Carusi, 342 U.S. 347, 348 (1952) (per curiam).) This is the
time-honored meaning of the term. ‘‘Every individual of the
one nation must acknowledge every individual of the other
nation as his own enemy – because the enemy of his country.’’
The Rapid, 12 U.S. (8 Cranch) 155, 161 (1814); see Guesse-
feldt v. McGrath, 342 U.S. 308 (1952); Lamar v. Browne, 92
U.S. 187, 194 (1875); J. Gregory Sidak, War, Liberty, and
Enemy Aliens, 67 N.Y.U. L. R EV. 1402, 1406 (1992); see also
The Alien Enemy Act of 1798, 50 U.S.C. §§ 21-24. Despite
the government’s argument to the contrary, it follows that
none of the Guantanamo detainees are within the category of
‘‘enemy aliens,’’ at least as Eisentrager used the term. They
are nationals of Kuwait, Australia, or the United Kingdom.
Our war in response to the attacks of September 11, 2001,
obviously is not against these countries. It is against a
network of terrorists operating in secret throughout the
world and often hiding among civilian populations. An ‘‘alien
friend’’ may become an ‘‘alien enemy’’ by taking up arms
against the United States, but the cases before us were
decided on the pleadings, each of which denied that the
detainees had engaged in hostilities against America.
Nonetheless the Guantanamo detainees have much in com-
mon with the German prisoners in Eisentrager. They too are
aliens, they too were captured during military operations,
they were in a foreign country when captured, they are now
abroad, they are in the custody of the American military, and
they have never had any presence in the United States. For

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the reasons that follow we believe that under Eisentrager
these factors preclude the detainees from seeking habeas
relief in the courts of the United States.
The court of appeals in Eisentrager had ruled that ‘‘any
person who is deprived of his liberty by officials of the United
States, acting under the purported authority of that Govern-
ment,’’ and who can establish a violation of the Constitution,
‘‘has a right to the writ.’’ 174 F.2d at 963. This statement of
law, unconstrained by the petitioner’s citizenship or residence,
by where he is confined, by whom or for what, ‘‘necessarily’’
followed – thought the court of appeals – from the Fifth
Amendment’s application to ‘‘any person’’ and from the
court’s view that no distinction could be made between ‘‘citi-
zens and aliens.’’ Id. at 963-65. As the Supreme Court
described it, the court of appeals thus treated the right to a
writ of habeas corpus as a ‘‘subsidiary procedural right that
follows from the possession of substantive constitutional
rights.’’ 339 U.S. at 781.
In answer the Supreme Court rejected the proposition
‘‘that the Fifth Amendment confers rights upon all persons,
whatever their nationality, wherever they are located and
whatever their offenses,’’ id. at 783. The Court continued:
‘‘If the Fifth Amendment confers its rights on all the world
TTT [it] would mean that during military occupation irreconcil-
able enemy elements, guerrilla fighters, and ‘werewolves’
could require the American Judiciary to assure them free-
doms of speech, press, and assembly as in our First Amend-
ment, right to bear arms as in the Second, security against
‘unreasonable’ searches and seizures as in the Fourth, as well
as rights to jury trial as in the Fifth and Sixth Amendments.’’
Id. at 784. (Shortly before Germany’s surrender, the Nazis
began training covert forces called ‘‘werewolves’’ to conduct
terrorist activities during the Allied occupation. See, e.g.,
http://www.archives.gov/iwg/declassified records/oss records
263 wilhelm hoettl.html.) The passage of the opinion just
quoted may be read to mean that the constitutional rights
mentioned are not held by aliens outside the sovereign terri-
tory of the United States, regardless of whether they are

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enemy aliens. That is how later Supreme Court cases have
viewed Eisentrager.
In 1990, for instance, the Court stated that Eisentrager
‘‘rejected the claim that aliens are entitled to Fifth Amend-
ment rights outside the sovereign territory of the United
States.’’ Verdugo-Urquidez, 494 U.S. at 269. After describ-
ing the facts of Eisentrager and quoting from the opinion, the
Court concluded that with respect to aliens ‘‘our rejection of
the extraterritorial application of the Fifth Amendment was
emphatic.’’ Id. By analogy, the Court held that the Fourth
Amendment did not protect nonresident aliens against unrea-
sonable searches or seizures conducted outside the sovereign
territory of the United States. Citing Eisentrager again, the
Court explained that to extend the Fourth Amendment to
aliens abroad ‘‘would have serious and deleterious conse-
quences for the United States in conducting activities beyond
its borders,’’ particularly since the government ‘‘frequently
employs Armed Forces outside this country,’’ id. at 273. A
decade after Verdugo-Urquidez, the Court – again citing
Eisentrager – found it ‘‘well established that certain constitu-
tional protections available to persons inside the United
States are unavailable to aliens outside of our geographic
borders.’’ Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
Although the Supreme Court’s statement in Verdugo-
Urquidez about the Fifth Amendment was dictum, our court
has followed it. In Harbury v. Deutch, 233 F.3d 596, 604
(D.C. Cir. 2000), rev’d on other grounds sub nom. Christopher
v. Harbury, 536 U.S. 403 (2002), we quoted extensively from
Verdugo-Urquidez and held that the Court’s description of
Eisentrager was ‘‘firm and considered dicta that binds this
court.’’ Other decisions of this court are firmer still. Citing
Eisentrager, we held in Pauling v. McElroy, 278 F.2d 252,
254 n.3 (D.C. Cir. 1960), that ‘‘non-resident aliens TTT plainly
cannot appeal to the protection of the Constitution or laws of
the United States.’’ The law of the circuit now is that a
‘‘foreign entity without property or presence in this country
has no constitutional rights, under the due process clause or
otherwise.’’ People’s Mojahedin Org. v. Dep’t of State, 182

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F.3d 17, 22 (D.C. Cir. 1999); see also 32 County Sovereignty
Comm. v. Dep’t of State, 292 F.3d 797, 799 (D.C. Cir. 2002).
The consequence is that no court in this country has
jurisdiction to grant habeas relief, under 28 U.S.C. § 2241, to
the Guantanamo detainees, even if they have not been adjudi-
cated enemies of the United States. We cannot see why, or
how, the writ may be made available to aliens abroad when
basic constitutional protections are not. This much is at the
heart of Eisentrager. If the Constitution does not entitle the
detainees to due process, and it does not, they cannot invoke
the jurisdiction of our courts to test the constitutionality or
the legality of restraints on their liberty. Eisentrager itself
directly tied jurisdiction to the extension of constitutional
provisions: ‘‘in extending constitutional protections beyond
the citizenry, the Court has been at pains to point out that it
was the alien’s presence within its territorial jurisdiction that
gave the Judiciary power to act.’’ 339 U.S. at 771. Thus, the
‘‘privilege of litigation has been extended to aliens, whether
friendly or enemy, only because permitting their presence in
the country implied protection.’’ Id. at 777-78 (emphasis
added). In arguing that Eisentrager turned on the status of
the prisoners as enemies, the detainees do not deny that if
they are in fact in that category, if they engaged in interna-
tional terrorism or were affiliated with al Qaeda, the courts
would not be open to them. Their position is that the district
court should have made these factual determinations at the
threshold, before dismissing for lack of jurisdiction. But the
Court in Eisentrager did not decide to avoid all the problems
exercising jurisdiction would have caused, only to confront the
same problems in determining whether jurisdiction exists in
the first place.
It is true that after deciding jurisdiction did not exist, the
Supreme Court, in part IV of its Eisentrager opinion, went on
to consider and reject the merits of the prisoners’ claims.
From this the detainees reason that the Court’s holding must
have been merely that the military courts, rather than the
civilian courts, had jurisdiction to try charges of war crimes,
not that the district court lacked jurisdiction to adjudicate the
habeas petition. We find it impossible to read the Court’s

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statements – many of which we have already quoted – about
the courts not being open to the prisoners as so limited. The
discussion in part IV of the Court’s opinion was extraneous.
The dissenting Justices viewed it as such, calling part IV
‘‘gratuitous,’’ ‘‘wholly irrelevant,’’ lending ‘‘no support whatev-
er to the Court’s holding that the District Court was without
jurisdiction.’’ 339 U.S. at 792, 794 (Black, J., joined by
Douglas and Burton, JJ., dissenting). There is a ready
explanation for the Eisentrager Court’s method. Before Steel
Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998),
the Supreme Court (and the lower federal courts) were not
always punctilious in treating jurisdiction as an antecedent
question to the merits. The Court in Steel Co. acknowledged
as much. See 523 U.S. at 101. Part IV of Eisentrager,
whether an advisory opinion (see 523 U.S. at 101) or an
alternative holding, does not detract from the central mean-
ing of the decision that the district court did not have
jurisdiction to issue writs of habeas corpus.
We have thus far assumed that the detainees are not
‘‘within any territory over which the United States is sover-
eign,’’ Eisentrager, 339 U.S. at 778. The detainees dispute
the assumption. They say the military controls Guantanamo
Bay, that it is in essence a territory of the United States, that
the government exercises sovereignty over it, and that in any
event Eisentrager does not turn on technical definitions of
sovereignty or territory.
The United States has occupied the Guantanamo Bay Na-
val Base under a lease with Cuba since 1903, as modified in
1934. Lease of Lands for Coaling and Naval Stations, Feb.
23, 1903, U.S.-Cuba, T.S. No. 418 (6 Bevans 1113) (‘‘1903
Lease’’); Relations With Cuba, May 9, 1934, U.S.-Cuba, T.S.
No. 866 (6 Bevans 1161) (‘‘1934 Lease’’). In the 1903 Lease,
‘‘the United States recognizes the continuance of the ultimate
sovereignty of the Republic of Cuba’’ over the naval base.
1903 Lease, art. III. The term of the lease is indefinite.
1903 Lease, art. I; 1934 Lease, art. III (‘‘So long as the
United States of America shall not abandon the said naval
station at Guantanamo or the two Governments shall not

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agree to a modification of its present limits, the station shall
continue to have the territorial area that it now hasTTT.’’).
The detainees think criminal cases involving aliens and
United States citizens for activities at Guantanamo Bay sup-
port their position. But those cases arose under the special
maritime and territorial jurisdiction, see 18 U.S.C. § 7. In
United States v. Lee, 906 F.2d 117 (4th Cir. 1990) (per
curiam), a Jamaican national was charged with committing a
crime at Guantanamo. The indictment invoked the special
maritime and territorial jurisdiction of the United States
pursuant to 18 U.S.C. § 7 and 18 U.S.C. § 3238. Id. at 117
n.1. Extension of federal criminal law pursuant to these
provisions does not give the United States sovereignty over
Guantanamo Bay any more than it gives the United States
sovereignty over foreign vessels destined for this country
because crimes committed onboard are also covered. See 18
U.S.C. § 7(8).
The text of the leases, quoted above, shows that Cuba – not
the United States – has sovereignty over Guantanamo Bay.
This is the conclusion of Cuban Am. Bar Ass’n v. Christo-
pher, 43 F.3d 1412 (11th Cir. 1995). The Eleventh Circuit
there rejected the argument – which the detainees make in
this case – that with respect to Guantanamo Bay ‘‘ ‘control
and jurisdiction’ is equivalent to sovereignty.’’ Id. at 1425.
The Supreme Court reached the same conclusion in Vermil-
ya-Brown Co. v. Connell, 335 U.S. 377, 381 (1948). In
holding that a naval base in Bermuda, controlled by the
United States under a lease with Great Britain, was outside
United States sovereignty, the Court took notice of the lease
with Cuba for the Guantanamo Bay Naval Base and the fact
that it granted the United States ‘‘substantially the same
rights as it has in the Bermuda lease.’’ Id. at 383. The
‘‘determination of sovereignty over an area,’’ the Court held,
‘‘is for the legislative and executive departments.’’ Id. at 380.
The contrary decision of the Second Circuit, on which the
detainees rely – Haitian Centers Council, Inc. v. McNary,
969 F.2d 1326 (2d Cir. 1992), vacated as moot, Sale v. Haitian
Centers Council, Inc., 509 U.S. 918 (1993) – has no prece-
dential value because the Supreme Court vacated it. The

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15
decision was, in any event, at odds with the Supreme Court’s
reasoning not only in Vermilya-Brown, but also in Spelar v.
United States, 338 U.S. 217 (1949). The Second Circuit’s
result rested in very large measure on its extraterritorial
application of the Fifth Amendment to non-resident aliens,
see 969 F.2d at 1342-43, a position we rejected in People’s
Mojahedin Org. v. Dep’t of State, 182 F.3d at 22, and in
Harbury v. Deutch, 233 F.3d at 604, and a position we reject
again today. And the Second Circuit thought it important
that the United States controlled Guantanamo Bay. 969 F.2d
at 1342-44. But under Eisentrager, control is surely not the
test. Our military forces may have control over the naval
base at Guantanamo, but our military forces also had control
over the Landsberg prison in Germany.
We also disagree with the detainees that the Eisentrager
opinion interchanged ‘‘territorial jurisdiction’’ with ‘‘sover-
eignty,’’ without attaching any particular significance to either
term. When the Court referred to ‘‘territorial jurisdiction,’’ it
meant the territorial jurisdiction of the United States courts,
as for example in these passages quoted earlier: ‘‘in extend-
ing constitutional protections beyond the citizenry, the Court
has been at pains to point out that it was the alien’s presence
within its territorial jurisdiction that gave the Judiciary pow-
er to act’’ (339 U.S. at 771); and ‘‘the scenes of their offense,
their capture, their trial and their punishment were all be-
yond the territorial jurisdiction of United States courts’’ (id.
at 778). Sovereignty, on the other hand, meant then – and
means now – supreme dominion exercised by a nation. The
United States has sovereignty over the geographic area of the
States and, as the Eisentrager Court recognized, over insular
possessions, id. at 780. Guantanamo Bay fits within neither
category.
As against this the detainees point to Ralpho v. Bell, 569
F.2d 607 (D.C. Cir. 1977). After World War II, the United
Nations designated the United States as administrator of the
Trust Territory of Micronesia. Id. at 612. No country had
sovereignty over the region, but the court treated Micronesia
as if it were a territory of the United States, over which
Congress could and did exercise its power under Article IV of

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the Constitution. (The United States did not hold the Trust
Territory ‘‘in fee simple TTT but rather as trustee,’’ a differ-
ence the court considered irrelevant. Id. at 619.) The court
therefore described the residents of Micronesia as being ‘‘as
much American subjects as those in other American territo-
ries.’’ Id. In the Micronesian Claims Act, Congress estab-
lished a commission to distribute a fund for claims against the
United States for damages suffered during World War II.
Because Congress intended the Micronesia Trust Territory to
be treated as if it were a territory of the United States, the
court held that the right of due process applied to the
commission’s actions. Id. at 629-30. Given the premises on
which the court acted, its holding is hardly surprising. ‘‘Fun-
damental personal rights’’ found in the Constitution apply in
territories. See, e.g., Balzac v. Porto Rico, 258 U.S. 298, 312-
13 (1922); see also Dorr v. United States, 195 U.S. 138, 148
(1904) (considering the law applicable in the Philippines); 48
U.S.C. § 1421b (Guam). Ralpho thus establishes nothing
about the sort of de facto sovereignty the detainees say exists
at Guantanamo. And its reasoning does not justify this court,
or any other, to assert habeas corpus jurisdiction at the
behest of an alien held at a military base leased from another
nation, a military base outside the sovereignty of the United
States.
III.
In addition to seeking relief explicitly in the nature of a
habeas corpus, the detainees sued for injunctions and declara-
tory judgments under the Alien Tort Act, 28 U.S.C. § 1350,
alleging that the United States is confining them in violation
of treaties and international law. The holding in Eisentrag-
er – that ‘‘the privilege of litigation’’ does not extend to aliens
in military custody who have no presence in ‘‘any territory
over which the United States is sovereign’’ (339 U.S. at 777-
78) – dooms these additional causes of action, even if they
deal only with conditions of confinement and do not sound in
habeas. See Wolff v. McDonnell, 418 U.S. 539, 554-55 (1974);
Brown v. Plaut, 131 F.3d 163, 167 (D.C. Cir. 1997).

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At the time of Eisentrager, the writ of habeas corpus
extended to prisoners ‘‘in custody in violation of the Constitu-
tion or of a law or treaty of the United States,’’ 28 U.S.C.
§ 453 (1946). The current habeas statute, 28 U.S.C.
§ 2241(c)(3), is very much the same. The prisoners in Eisen-
trager alleged violations of the Constitution, federal laws, and
a treaty. So here. Each of the detainees alleges violations of
the Constitution, treaties, and laws of the United States. The
Alien Tort Act is a ‘‘law of the United States’’ and, the
detainees believe, so is some international law. As to the
latter, the theories are that federal common law incorporates
‘‘customary international law’’ and that the Alien Tort Act not
only provides jurisdiction but also creates a cause of action –
theories the Second Circuit promulgated in Filartiga v. Pena-
Irala, 630 F.2d 876, 885-87 (2d Cir. 1980). But as we have
decided, the detainees are in all relevant respects in the same
position as the prisoners in Eisentrager. They cannot seek
release based on violations of the Constitution or treaties or
federal law; the courts are not open to them. Whatever
other relief the detainees seek, their claims necessarily rest
on alleged violations of the same category of laws listed in the
habeas corpus statute, and are therefore beyond the jurisdic-
tion of the federal courts. Nothing in Eisentrager turned on
the particular jurisdictional language of any statute; every-
thing turned on the circumstances of those seeking relief, on
the authority under which they were held, and on the conse-
quences of opening the courts to them. With respect to the
detainees, those circumstances, that authority, and those con-
sequences differ in no material respect from Eisentrager.
IV.
We have considered and rejected the other arguments the
detainees have made to the court. The judgment of the
district court dismissing the complaint in No. 02-5251 and the

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petitions for writs of habeas corpus in Nos. 02-5284 and 02-
5288 for lack of jurisdiction is
Affirmed.*
* Although Judges Garland and Williams have not joined Judge
Randolph’s concurring opinion, they do not intend thereby to ex-
press any view about its reasoning. They believe the issues ad-
dressed need not be reached.

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1
RANDOLPH, Circuit Judge, concurring: I write separately to
add two other grounds for rejecting the detainees’ non-habeas
claims. But first some words are in order regarding the
Alien Tort Act, 28 U.S.C. § 1350:
The district courts shall have original jurisdiction of
any civil action by an alien for a tort only, committed
in violation of the law of nations or a treaty of the
United States.
Three courts of appeals have decided that § 1350 not only
provides a federal forum but also creates a cause of action for
violations of the ‘‘law of nations.’’ The Second Circuit, in the
decision launching this development, held first, that § 1350
conferred jurisdiction over an action by citizens of Paraguay
against another citizen of that country for torts allegedly
committed in Paraguay; and second, that ‘‘customary interna-
tional law’’ is part of federal common law. Filartiga v. Pena-
Irala, 630 F.2d 876 (2d Cir. 1980). The same court of appeals
later reiterated that § 1350 provided jurisdiction and gave
aliens – in this instance, Muslim and Croat citizens of Bosnia-
Herzegovina – a cause of action against the leader of the
Bosnia Serbs for violations of ‘‘the law of nations’’ and
treaties. Kadic v. Karadzic, 70 F.3d 232, 241–44 (2d Cir.
1995); see Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88,
92–93 (2d Cir. 2000). The Ninth Circuit followed suit, holding
that § 1350 gave a district court jurisdiction over the estate
of the former Philippine President Marcos although all plain-
tiffs and defendants were Philippine nationals and although
the torts, alleged to violate international law, occurred entire-
ly in the Philippines. Trajano v. Marcos (In re Estate of
Ferdinand E. Marcos Human Rights Litigation), 978 F.2d
493, 499 (9th Cir. 1992); see also Hilao v. Estate of Marcos
(In re Estate of Ferdinand E. Marcos, Human Rights Litiga-
tion), 25 F.3d 1467, 1473 (9th Cir. 1994); Martinez v. City of
Los Angeles, 141 F.3d 1373, 1383-84 (9th Cir. 1998). The
Eleventh Circuit joined these courts of appeals in holding that
§ 1350 not only confers jurisdiction, but also gives federal
courts the power to ‘‘fashion domestic common law remedies
to give effect to violations of customary international law.’’
Abebe-Jira v. Negewo, 72 F.3d 844, 847 (11th Cir. 1996).

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2
The meaning of § 1350 has been an open question in our
court. See Tel-Oren v. Libyan Arab Republic, 726 F.2d 774,
777 (D.C. Cir. 1984) (Edwards, J., concurring); id. at 800
(Bork, J., concurring); Sanchez-Espinoza v. Reagan, 770
F.2d 202, 20-07 (D.C. Cir. 1985). But what § 1350 does not
mean has been decided. In the Tel-Oren case both Judge
Bork and Judge Robb, in their separate concurring opinions,
rejected the Second Circuit’s Filartiga decision, Judge Bork
on the ground that § 1350 does not create a cause of action,
Judge Robb on the ground that Filartiga is ‘‘fundamentally
at odds with the reality of the international structure and
with the role of United States courts within that structure.’’
See 726 F.2d at 801 (Bork, J.); id. at 826 n.5 (Robb, J.).
Since then some of the opinions following Filartiga maintain
that Congress ratified its interpretation of § 1350. See, e.g.,
Kadic, 70 F.3d at 241; Hilao, 25 F.3d at 1475; Abebe-Jira, 72
F.3d at 848; see also William S. Dodge, The Historical
Origins of the Alien Tort Statute: A Response to the ‘‘Origi-
nalists,’’ 19 H ASTINGS I NT’L & C OMP. L. R EV. 221, 224, 256
(1996). The ratification argument rests on enactment of the
Torture Victim Protection Act of 1991, which provides a cause
of action for damages to anyone – aliens and citizens alike –
who suffered torture anywhere in the world at the hands of
any individual acting under the law of any foreign nation. 28
U.S.C. § 1350 note. The Torture Victim Act does not contain
its own jurisdictional provision. But it is clear that any case
brought pursuant to that statute would arise under federal
law and thus come within 28 U.S.C. § 1331, the grant of
general federal question jurisdiction. (I mean to imply noth-
ing about the constitutionality of the statute.) The Alien Tort
Act is thus beside the point: it confers jurisdiction only over
suits by aliens and only for violations of treaties and the law
of nations. The House Report on the torture victim bill did
state that § 1350 ‘‘should remain intact to permit suits based
on other norms that already exist or may ripen in the future
into the rules of customary international law.’’ Torture Vic-
tim Protection Act of 1991, H.R. R EP. N O. 102-367, pt. 1, at 4
(1991). But the statement of one congressional committee is
by no means a statement of ‘‘Congress,’’ as some have

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3
supposed; the wish expressed in the committee’s statement is
reflected in no language Congress enacted; it does not pur-
port to rest on an interpretation of § 1350; and the statement
itself is legislative dictum.
The detainees, or at least some of them, nevertheless have
urged us to follow the Filartiga line of cases. I see a number
of problems in doing so, in addition to those mentioned by
Judges Bork and Robb in Tel-Oren. To hold that the Alien
Tort Act creates a cause of action for treaty violations, as the
Filartiga decisions indicate, would be to grant aliens greater
rights in the nation’s courts than American citizens enjoy.
Treaties do not generally create rights privately enforceable
in the courts. Without authorizing legislation, individuals
may sue for treaty violations only if the treaty is self-
executing. See, e.g., Foster v. Neilson, 27 U.S. (2 Pet.) 253,
314 (1829) (Marshall, C.J.); McKesson HBOC, Inc. v. Islamic
Republic of Iran, 271 F.3d 1101, 1107 (D.C. Cir. 2001);
Princz v. Federal Republic of Germany, 26 F.3d 1166, 1174
n.1 (D.C. Cir. 1994); Holmes v. Laird, 459 F.2d 1211, 1220
(D.C. Cir. 1972); Tel-Oren, 726 F.2d at 808-10 (Bork, J.,
concurring). To illustrate, the detainees in this case claim
that the military is confining them in violation of the Geneva
Convention of 1949. But the second Geneva Convention, like
the first, see Eisentrager, 339 U.S. at 789 n.14, is not self-
executing for the reasons stated by Judge Bork in Tel-Oren,
726 F.2d at 808-09, and by the Fourth Circuit in Hamdi v.
Rumsfeld, 316 F.3d 450, 468-69 (4th Cir. 2003). No American
citizen, therefore, has a cause of action under this treaty.
Yet on the basis of Filartiga, and the theory that the Alien
Tort Act itself creates a cause of action, aliens could bring
suit for its violation. Martinez, 141 F.3d at 1383-84, illus-
trates the point. The Ninth Circuit, relying on § 1350,
sustained such a suit, brought by an alien against the City of
Los Angeles for actions occurring in Mexico in violation of the
‘‘customary international law.’’ The court of appeals derived
this ‘‘customary international law’’ partly from the Interna-
tional Covenant on Civil and Political Rights. But the court
neglected to mention that this multilateral agreement creates
no judicially enforceable rights and that the Senate ratified

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4
the treaty on the basis that it ‘‘will not create a private cause
of action in U.S. courts.’’ S. E XEC. R EP. N O. 102–23, at 9, 19,
23 (1992). I find it hard to believe the First Congress, which
enacted the Alien Tort Act in 1789, intended to extend to
aliens rights of actions withheld from the citizens of this
country.
Filartiga’s theory that federal common law incorporates
customary international law also raises many issues. The
theory was necessary to sustain the constitutionality of
§ 1350 as the Second Circuit interpreted and applied it.
Early in our history the Supreme Court held unconstitutional,
in violation of Article III, the conferring of federal jurisdic-
tion over suits by an alien against an alien. Hodgson v.
Bowerbank, 9 U.S. (5 Cranch) 303, 304 (1809). In holding
that federal common law somehow incorporates customary
international law, the Filartiga court placed the case before it
on the ‘‘arising under’’ head of jurisdiction without mentioning
Hodgson. See Illinois v. City of Milwaukee, 406 U.S. 91, 100
(1972). This avoided the difficulty the Supreme Court’s
decision posed, but it created quite a few difficulties of its
own.
For one thing, Article I, section 8, clause 10 of the Consti-
tution gives Congress the power to ‘‘define and punish TTT
Offenses against the Law of Nations.’’ The Framers’ original
draft merely stated that Congress had the power to punish
offenses against the law of nations, but when Gouverneur
Morris of Pennsylvania objected that the law of nations was
‘‘often too vague and deficient to be a rule,’’ the clause was
amended to its present form. III E LLIOT ’S DEBATES IN THE
FEDERAL C ONVENTION OF 1787 AS R EPORTED BY J AMES M ADISON
604 (James McClellan & M.E. Bradford eds., rev. ed. 1989).
I believe this clause in Article I, section 8, particularly in light
of the history just recounted, makes it abundantly clear that
Congress – not the Judiciary – is to determine, through
legislation, what international law is and what violations of it
ought to be cognizable in the courts. Yet under Filartiga, it
is the courts, not Congress who decide both questions. It is
no answer to say that early Supreme Court cases looked to
the ‘‘law of nations.’’ The ‘‘law of nations’’ may have been
part of the general federal common law in the days before
Erie R.R. v. Tompkins, 304 U.S. 64 (1938), but even then ‘‘the

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5
law of nations’’ did not present ‘‘any Federal question.’’ N.Y.
Life Ins. Co. v. Hendren, 92 U.S. 286, 286-87 (1875); see
Oliver Am. Trading Co. v. Mexico, 264 U.S. 440, 442-43
(1924). And for good reason. The political branches of our
government may influence but they by no means control the
development of customary international law. To have federal
courts discover it among the writings of those considered
experts in international law and in treaties the Senate may or
may not have ratified is anti-democratic and at odds with
principles of separation of powers. As Judge Robb put it, the
courts ‘‘ought not serve as debating clubs for professors
willing to argue over what is or what is not an accepted
violation of the law of nations.’’ Tel-Oren, 726 F.2d at 827
(Robb, J., concurring). Nothing in the Constitution expressly
authorizes such free-wheeling judicial power. After Erie
brought an end to ‘‘general federal common law,’’ federal
common law has been mostly interstitial or generated by the
need for uniformity throughout the States. See generally
H ENRY J. F RIENDLY, B ENCHMARKS 155-95 (1967). A federal
common law of customary international law is justified by
neither consideration. Congress, when it ratifies treaties,
often does so with reservations in order to avoid altering
domestic law. Yet treating customary international law as
federal law would alter domestic law because of the Suprema-
cy Clause. All of these problems, and more, including the
lack of historical support for the Filartiga theory, are spelled
out in Curtis A. Bradley & Jack L. Goldsmith, Customary
International Law as Federal Common Law: A Critique of
the Modern Position, 110 H ARV. L. R EV. 815 (1997), and in a
later article by the same authors, Federal Courts and the
Incorporation of International Law, 111 HARV. L. R EV. 2260
(1998). But see Harold Hongju Koh, Is International Law
Really State Law?, 111 HARV. L. R EV. 1824 (1998).
As to the history of the Alien Tort Act, Judge Friendly
wrote: this ‘‘old but little used section is a kind of legal
Lohengrin; although it has been with us since the first
Judiciary Act, § 9, 1 Stat. 73, 77 (1789), no one seems to know
whence it came.’’ IIT v. Vencap, Ltd., 519 F.2d 1001, 1015
(2d Cir. 1975). The original version read:

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6
the district courts TTT shall also have cognizance,
concurrent with the courts of the several States, or
the circuit courts, as the case may be, of all causes
where an alien sues for a tort only in violation of the
law of nations or a treaty of the United States.
1 Stat. 73, 76-77 (1789). Two former members of our court
thought that § 1350 might have been meant to cover only
private, nongovernmental acts taken against aliens such as
piracy. Sanchez-Espinoza, 770 F.2d at 206 (Scalia, J.); Tel-
Oren, 726 F.2d at 813-14, 822 (Bork, J., concurring). ‘‘[M]ore
recent research of a competent scholar’’ (Erie R.R., 304 U.S.
at 72) has shed new light on the origin of § 1350 and the
purpose of the First Congress in enacting it. See Joseph
Modeste Sweeney, A Tort Only in Violation of the Law of
Nations, 18 H ASTINGS I NT’L & C OMP. L. R EV. 445 (1995).
Professor Sweeney marshals a vast amount of historical re-
search on eighteenth century ‘‘prize law,’’ which allowed
private vessels having a marque to capture enemy ships.
When the Articles of Confederation were in effect, state
courts adjudicated claims by alien shipowners seeking the
return of their captured vessels and reparations for the
damages caused by the seizure. Adoption of the Constitution
and the passage of the First Judiciary Act gave the federal
courts exclusive jurisdiction in admiralty and thus exclusive
jurisdiction over suits brought to recover ships captured in
prize. There was still a question whether state courts had
jurisdiction over cases in which the alien sued not for return
of the ship, but only for reparations. It was only these cases,
Professor Sweeney postulates, that the Alien Tort Act’s au-
thor, Oliver Ellsworth, and his congressional colleagues, in-
tended to cover by making clear that if the alien shipowner’s
suit sought only reparations, the state courts would have
jurisdiction concurrent with the federal courts. Hence the
words in the statute ‘‘for a tort only.’’ If Professor Sweeney
is correct, the Alien Tort Act today is moribund, as in fact it
had been for nearly two hundred years until the Second
Circuit resuscitated it.
In view of my doubts about Filartiga, and the Tel-Oren
majority’s rejection of it, we might go ahead in this case and

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7
decide what § 1350 does mean. But it is unnecessary to do
so, not only because Eisentrager disposes of the cases, but
also because the detainees’ treaty and international law
claims are barred by sovereign immunity. Before explaining
why, I need to add a disclaimer. At oral argument, the
question arose whether next friend status may be recognized
for suits under § 1350. ‘‘Some courts have permitted ‘next
friends’ to prosecute actions outside the habeas corpus con-
text on behalf of infants, other minors, and adult mental
incompetents.’’ Whitmore v. Arkansas, 495 U.S. 149, 162 n.4
(1990). Here, the argument for the next friend device is that
the detainees are allegedly barred from talking with anyone
about bringing lawsuits on their behalf. The parties have not
briefed the questions this argument raises and I express no
opinion on its validity.
The United States or its officers may be sued only if there
is a waiver of sovereign immunity. See, e.g., Dep’t of Army v.
Blue Fox, Inc., 525 U.S. 255, 260 (1999). We have held that
the Alien Tort Act, whatever its meaning, does not itself
waive sovereign immunity. Industria Panificadora, S.A. v.
United States, 957 F.2d 886, 886 (D.C. Cir. 1992) (per cu-
riam); Sanchez-Espinoza, 770 F.2d at 207; see Canadian
Transp. Co. v. United States, 663 F.2d 1081, 1092 (D.C. Cir.
1980). The detainees therefore rely on the waiver provision
in the Administrative Procedure Act, 5 U.S.C. § 702, which
states: ‘‘An action in a court of the United States seeking
relief other than money damages and stating a claim that an
agency or an officer or employee thereof acted or failed to act
in an official capacity TTT shall not be dismissed TTT on the
ground that it is against the United StatesTTT.’’
Although relying on the APA’s waiver for agencies, the
detainees do not identify which ‘‘agency’’ of the United States
they have in mind. They have sued the President in each
case, but the President is not an ‘‘agency’’ under the APA and
the waiver of sovereign immunity thus does not apply to him.
See Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992);
Armstrong v. Bush, 924 F.2d 282, 289 (D.C. Cir. 1991). This
leaves the military. The APA specifically excludes from its
definition of ‘‘agency’’ certain functions, among which is ‘‘mili-

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8
tary authority exercised in the field in time of war or in
occupied territory.’’ 5 U.S.C. §§ 551(1)(G), 701(b)(1)(G); see
id. §§ 553(a)(1) & 554(a)(4), exempting military ‘‘functions’’
from the APA’s requirements for rulemaking and adjudica-
tion; United States ex rel. Schonbrun v. Commanding Offi-
cer, 403 F.2d 371, 375 n.2 (2d Cir. 1968) (Friendly, J.). The
district court ruled, in an alternative holding, that because of
the military function exclusion, the APA does not waive
sovereign immunity. Rasul v. Bush, 215 F. Supp. 2d 55, 64
n.10 (D.D.C. 2002). I believe this is correct.
Each of the detainees, according to their pleadings, was
taken into custody by American armed forces ‘‘in the field in
time of war.’’ I believe they remain in custody ‘‘in the field in
time of war.’’ It is of no moment that they are now thou-
sands of miles from Afghanistan. Their detention is for a
purpose relating to ongoing military operations and they are
being held at a military base outside the sovereign territory
of the United States. The historical meaning of ‘‘in the field’’
was not restricted to the field of battle. It applied as well to
‘‘organized camps stationed in remote places where civil
courts did not exist,’’ Kinsella v. United States ex rel. Single-
ton, 361 U.S. 234, 274 (1960) (Whittaker, J., joined by Stew-
art, J., concurring in part and dissenting in part). To allow
judicial inquiry into military decisions after those captured
have been moved to a ‘‘safe’’ location would interfere with
military functions in a manner the APA’s exclusion meant to
forbid. We acknowledged as much in Doe v. Sullivan, 938
F.2d 1370, 1380 (D.C. Cir. 1991), when then-Judge Ruth
Bader Ginsburg stated for the court that the APA’s military
function exclusion applied to cases in which a court was asked
to ‘‘review military commands made TTT in the aftermath of
[ ] battle.’’ It is also of no moment that the detainees were
captured without Congress having declared war against any
foreign state. ‘‘Time of war,’’ as the APA uses it, is not so
confined. The military actions ordered by the President, with
the approval of Congress, are continuing; those military
actions are part of the war against the al Qaeda terrorist
network; and those actions constitute ‘‘war,’’ not necessarily
as the Constitution uses the word, but as the APA uses it.

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9
See Campbell v. Clinton, 203 F.3d 19, 29-30 (D.C. Cir. 2000)
(Randolph, J., concurring in the judgment); Mitchell v.
Laird, 488 F.2d 611, 613 (D.C. Cir. 1973). The detainees are
right not to contest this point. To hold that it is not ‘‘war’’ in
the APA sense when the United States commits its armed
forces into combat without a formal congressional declaration
of war would potentially thrust the judiciary into reviewing
military decision-making in places and times the APA exclud-
ed from its coverage.
I would therefore hold that the detainees cannot invoke the
APA’s waiver of sovereign immunity and that the district
court correctly dismissed their claims under the Alien Tort
Act for this additional reason.
I would also hold that the judicial review provisions of the
APA, including the waiver of sovereign immunity, do not
apply because the military decisions challenged here are
‘‘committed to agency discretion by law.’’ 5 U.S.C.
§ 701(a)(2). This exclusion applies when ‘‘a court would have
no meaningful standard against which to judge the agency’s
exercise of discretion.’’ Heckler v. Chaney, 470 U.S. 821, 830
(1985). The military’s judgment about how to confine the
detainees necessarily depends upon ‘‘ ‘a complicated balancing
of a number of factors which are particularly within its
expertise.’ ’’ Lincoln v. Vigil, 508 U.S. 182, 193 (1993) (quot-
ing Heckler, 470 U.S. at 831). The level of threat a detainee
poses to United States interests, the amount of intelligence a
detainee might be able to provide, the conditions under which
the detainee may be willing to cooperate, the disruption visits
from family members and lawyers might cause – these types
of judgments have traditionally been left to the exclusive
discretion of the Executive Branch, and there they should
remain. See Nat’l Fed’n of Fed. Employees v. United States,
905 F.2d 400, 406 (D.C. Cir. 1990); Schonbrun, 403 F.2d at
375 n.2.

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