Title 28 — Judiciary and Judicial Procedure
Part VI · Chapter 153 — Habeas Corpus
§ 2241. Power to grant writ
Statutory text
Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had.
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 for hearing and determination to the district court having jurisdiction to entertain it.
The writ of habeas corpus shall not extend to a prisoner unless—
He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or
He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or
He is in custody in violation of the Constitution or laws or treaties of the United States; or
He, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or
It is necessary to bring him into court to testify or for trial.
Where an application for a writ of habeas corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judicial districts, the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent jurisdiction to entertain the application. The district court for the district wherein such an application is filed in the exercise of its discretion and in furtherance of justice may transfer the application to the other district court for hearing and determination.
No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
Legislative history
Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.
Title 28, United States Code, section —
Pub. L. 80–646 · 62 Stat. 869
Enacted · 28 U.S.C. § 2241
June 25, 1948, ch. 646, 62 Stat. 964
Source evidence
Code source credit
June 25, 1948, ch. 646, 62 Stat. 964Public Law not identified
Inserted · 28 U.S.C. § 2241(b)
Subsec. (b). Act May 24, 1949, inserted commas after “Supreme Court” and “any justice thereof”
Unresolved: No Public Law or Statutes at Large citation in the Code source.
Source evidence
Code amendment note
Subsec. (b). Act May 24, 1949, inserted commas after “Supreme Court” and “any justice thereof”.Pub. L. 89–590 · 80 Stat. 811
Added · 28 U.S.C. § 2241(d)
Pub. L. 89–590 added subsec. (d)
Source evidence
Code amendment note
Subsec. (d). Pub. L. 89–590 added subsec. (d).Detainee Treatment Act of 2005
Pub. L. 109–148 div. A title X § 1005(e)(1) · 119 Stat. 2680
Added · 28 U.S.C. § 2241(e)
Pub. L. 109–148 added subsec. (e), relating to section 1005 of the Detainee Treatment Act of 2005
Source evidence
Code amendment note
Subsec. (e). Pub. L. 109–148 added subsec. (e), relating to section 1005 of the Detainee Treatment Act of 2005.Enacted provision · exact public law section
(1) In general.— Section 2241 of title 28, United States Code, is amended by adding at the end the following: “(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider— “(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or “(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who— “(A) is currently in military custody; or “(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.” .Detainee Treatment Act of 2005
Pub. L. 109–163 div. A title XIV § 1405(e)(1) · 119 Stat. 3136
Added · 28 U.S.C. § 2241(e)
Pub. L. 109–163 added subsec. (e), relating to section 1405 of the Detainee Treatment Act of 2005
Source evidence
Code amendment note
Subsec. (e). Pub. L. 109–163 added subsec. (e), relating to section 1405 of the Detainee Treatment Act of 2005.Enacted provision · exact public law section
(1) In general.— Section 2241 of title 28, United States Code, is amended by adding at the end the following: “(e) Except as provided in section 1405 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider— “(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or “(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who— “(A) is currently in military custody; or “(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1405(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.” .Military Commissions Act of 2006
Pub. L. 109–366 § 7(a) · 120 Stat. 2600
Amended · 28 U.S.C. § 2241(e)
Pub. L. 109–366, § 7(a), as amended by Pub. L. 110–181
Added · 28 U.S.C. § 2241(e)
Pub. L. 109–366, § 7(a), as added subsec. (e)
Struck · 28 U.S.C. § 2241(e)
Pub. L. 109–366, § 7(a), as struck out both former subsecs. (e) relating to jurisdiction to hear or consider action against United States or its agents relating to detention of alien by Department of Defense at Guantanamo Bay, Cuba
Source evidence
Code amendment note
Subsec. (e). Pub. L. 109–366, § 7(a), as amended by Pub. L. 110–181, added subsec. (e) and struck out both former subsecs. (e) relating to jurisdiction to hear or consider action against United States or its agents relating to detention of alien by Department of Defense at Guantanamo Bay, Cuba.Enacted provision · exact public law section
(a) In General.— Section 2241 of title 28, United States Code, is amended by striking both the subsection (e) added by section 1005(e)(1) of Public Law 109–148 (119 Stat. 2742) and the subsection (e) added by added by section 1405(e)(1) of Public Law 109–163 (119 Stat. 3477) and inserting the following new subsection (e): “(e) (1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. “(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” .Effective date note
Pub. L. 109–366, § 7(b), Oct. 17, 2006, 120 Stat. 2636, provided that: “The amendment made by subsection (a) [amending this section] shall take effect on the date of the enactment of this Act [Oct. 17, 2006], and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.”National Defense Authorization Act for Fiscal Year 2008
Pub. L. 110–181 div. A title X § 1063(f) · 122 Stat. 3
Amended · 28 U.S.C. § 2241(e)
Pub. L. 110–181 amended directory language of Pub. L. 109–366, § 7(a). See 2006 Amendment note below
Source evidence
Code amendment note
Subsec. (e). Pub. L. 110–181 amended directory language of Pub. L. 109–366, § 7(a). See 2006 Amendment note below.Enacted provision · exact public law section
(f) Military Commissions Act of 2006.— Section 7 of the Military Commissions Act of 2006 120 Stat. 2635. (Public Law 109–366) is amended by striking “added by added by” and inserting “added by”.
6 of 9 references resolved to an enrolled provision · 2 partial · 1 unresolved
Notes
Historical and Revision Notes
1948 Act
Based on title 28, U.S.C., 1940 ed., §§ 451, 452, 453 (R.S. §§ 751, 752, 753; Mar. 3, 1911, ch. 231, § 291, 36 Stat. 1167; Feb. 13, 1925, ch. 229, § 6, 43 Stat. 940).
Section consolidates sections 451, 452 and 453 of title 28, U.S.C., 1940 ed., with changes in phraseology necessary to effect the consolidation.
Words “for the purpose of an inquiry into the cause of restraint of liberty” in section 452 of title 28, U.S.C., 1940 ed., were omitted as merely descriptive of the writ.
Subsection (b) was added to give statutory sanction to orderly and appropriate procedure. A circuit judge who unnecessarily entertains applications which should be addressed to the district court, thereby disqualifies himself to hear such matters on appeal and to that extent limits his usefulness as a judge of the court of appeals. The Supreme Court and Supreme Court Justices should not be burdened with applications for writs cognizable in the district courts.
1949 Act
This section inserts commas in certain parts of the text of subsection (b) of section 2241 of title 28, U.S.C., for the purpose of proper punctuation.
Editorial Notes
References in Text
Section 1005(e) of the Detainee Treatment Act of 2005, referred to in subsec. (e)(2), is section 1005(e) of title X of div. A of Pub. L. 109–148, which is set out as a note under section 801 of Title 10, Armed Forces.
Constitutionality
For information regarding the constitutionality of certain provisions of this section, as added and amended by section 1005(e)(1) of Pub. L. 109–148 and section 7(a) of Pub. L. 109–366, see the Table of Laws Held Unconstitutional in Whole or in Part by the Supreme Court on the Constitution Annotated website, constitution.congress.gov.
Amendments1949–2008 · 5 rounds
2008
Subsec. (e). Pub. L. 110–181 amended directory language of Pub. L. 109–366, § 7(a). See 2006 Amendment note below.
2006
Subsec. (e). Pub. L. 109–366, § 7(a), as amended by Pub. L. 110–181, added subsec. (e) and struck out both former subsecs. (e) relating to jurisdiction to hear or consider action against United States or its agents relating to detention of alien by Department of Defense at Guantanamo Bay, Cuba.
Subsec. (e). Pub. L. 109–163 added subsec. (e), relating to section 1405 of the Detainee Treatment Act of 2005.
2005
Subsec. (e). Pub. L. 109–148 added subsec. (e), relating to section 1005 of the Detainee Treatment Act of 2005.
1966
Subsec. (d). Pub. L. 89–590 added subsec. (d).
1949
Subsec. (b). Act , inserted commas after “Supreme Court” and “any justice thereof”.
Statutory Notes and Related Subsidiaries
Effective Date of 2006 Amendment
Pub. L. 109–366, § 7(b), , 120 Stat. 2636, provided that: “The amendment made by subsection (a) [amending this section] shall take effect on the date of the enactment of this Act [], and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since .”
Treaty Obligations Not Establishing Grounds for Certain Claims
Pub. L. 109–366, § 5, , 120 Stat. 2631, provided that:
“(a) In General.—
No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.
“(b) Geneva Conventions Defined.—
In this section, the term ‘Geneva Conventions’ means—
“(1) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, done at Geneva (6 UST 3114);
“(2) the Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, done at Geneva (6 UST 3217);
“(3) the Convention Relative to the Treatment of Prisoners of War, done at Geneva (6 UST 3316); and
“(4) the Convention Relative to the Protection of Civilian Persons in Time of War, done at Geneva (6 UST 3516).”
Credits
1948–2008 · 7 acts
- 1948June 25, 1948, ch. 646, 62 Stat. 964
- 1949May 24, 1949, ch. 139, § 112, 63 Stat. 105
- 1966Pub. L. 89–590, , 80 Stat. 811
- 2005Pub. L. 109–148, div. A, title X, § 1005(e)(1), , 119 Stat. 2741
- 2006Pub. L. 109–163, div. A, title XIV, § 1405(e)(1), , 119 Stat. 3477
- 2006Pub. L. 109–366, § 7(a), , 120 Stat. 2635
- 2008Pub. L. 110–181, div. A, title X, § 1063(f), , 122 Stat. 323.
Show as published
(June 25, 1948, ch. 646, 62 Stat. 964; May 24, 1949, ch. 139, § 112, 63 Stat. 105; Pub. L. 89–590, , 80 Stat. 811; Pub. L. 109–148, div. A, title X, § 1005(e)(1), , 119 Stat. 2741; Pub. L. 109–163, div. A, title XIV, § 1405(e)(1), , 119 Stat. 3477; Pub. L. 109–366, § 7(a), , 120 Stat. 2635; Pub. L. 110–181, div. A, title X, § 1063(f), , 122 Stat. 323.)