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Note particularly the way Stevens glossed over a very specific point at the heart of the Ahrens decision. In Braden the court said:

“But respondent insists that however the balance of convenience might be struck with reference to the question of venue, the choice of forum is rigidly and jurisdictionally controlled by the provision of 2241 (a) that "[w]rits of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions." 28 U.S.C. 2241 (a) (emphasis supplied). Relying on our decision in Ahrens v. Clark, 335 U.S. 188 (1948), respondent contends - and the Court of Appeals held - that the italicized words limit a District Court's habeas corpus jurisdiction to cases where the prisoner seeking relief is confined within its territorial jurisdiction. Since that interpretation is not compelled either by the language of the statute or by the decision in Ahrens, and since it is fundamentally at odds with the purposes of the statutory scheme, we cannot agree. “

Look at that last sentence, but “since that interpretation is not compelled by either the language of the statute or the decision in Ahrens…”

B***s***.

Look at what they said in Ahrens:

“The history of the statute supports this view. It came into the law as the Act of February 5, 1867, 14 Stat. 385. And see Act of August 29, 1842, 5 Stat. 539. Prior to that date it was the accepted view that a prisoner must be within the territorial jurisdiction of the District Court in order to obtain from it a writ of habeas corpus. See Ex parte Graham, Fed.Cas. No. 5,657, 4 Wash.C.C. 211;2 In re Bickley, [335 U.S. 188 , 192] 3 Fed. Cas. page 332, No. 1,387. Cf. United States v. Davis, Fed.Cas. No. 14,926, 5 Cranch C.C. 622. The bill as introduced in the Senate was thought to contain an infirmity. The objection was made on the floor that it would permit 'a district judge in Florida to bring before him some men convicted and sentenced and held under imprisonment in the State of Vermont or in any of the further States.' Cong. Globe, 39th Cong., 2d Sess. 730. As a result of that objection Senator Trumbull, who had charge of the bill, offered an amendment which added the words 'within their respective jurisdictions.' Ibid. at 790. That amendment was adopted as a satisfactory solution of the imagined difficulty. 3 Id. Thus the view that the jurisdiction of the District Court to issue the writ in cases such as this 4 is restricted to those petitioners who are confined or detained within the territorial jurisdiction of the court is supported by the language of the statute, by considerations of policy, and by the legislative history of the enactment. We therefore do not feel free to weigh the policy considerations which are advanced for giving dis- [335 U.S. 188 , 193] trict courts discretion in cases like this. If that concept is to be imported into this statute, Congress must do so."

What you had was the Braden court blithely said the Ahrens decision didn’t apply and gave as its reason that they didn’t want the Ahrens decision applied. Self-definition at its worst. And wrong. The Ahrens court based its ruling expressly on the language of the statute AND public policy AND legislative history. For the present court to use Braden to undermine Eisentrager is…..ahhh, you fill in the blank.

Oh, and note this quote:

“Under Braden, then, a habeas petitioner who challenges a form of “custody” other than present physical confinement may name as respondent the entity or person who exercises legal control with respect to the challenged “custody.” But nothing in Braden supports departing from the immediate custodian rule in the traditional context of challenges to present physical confinement.”

Know where that’s from?

Rumsfeld v Padilla.

There is absolutely nothing wrong with these decisions. The majority was right on. You cannot lock people up and throw away the key without some sort of procedure to estabslish their status. All that was decided in rasul v Bush was that you have to have a process somewhere, which the government is now doing.

Even under the Geneva Convention - and even in Army regs - an illegal combattant must be given a hearing at a tribunal to establish his status as an illegal combattant. The idiots in DOJ thought that you could just lock folks up on Guantanamo and throw away the key and not bother to establish a minimal sort of procedure to ensure that they were not teenage American kids in the wrong place.

Once they are found by a military tribunal to have been illegal combattants all bets are off.