28 USC 2241 - Power to grant writ

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; Fespan. 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 (span) 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 (span) 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 Puspan. 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 Puspan. L. 109–148 and section 7(a) of Puspan. 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.

Amendments

2008—Subsec. (e). Puspan. L. 110–181 amended directory language of Puspan. L. 109–366, § 7(a). See 2006 Amendment note below.

2006—Subsec. (e). Puspan. L. 109–366, § 7(a), as amended by Puspan. 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). Puspan. L. 109–163 added subsec. (e), relating to section 1405 of the Detainee Treatment Act of 2005.

2005—Subsec. (e). Puspan. L. 109–148 added subsec. (e), relating to section 1005 of the Detainee Treatment Act of 2005.

1966—Subsec. (d). Puspan. L. 89–590 added subsec. (d).

1949—Subsec. (span). Act May 24, 1949, inserted commas after “Supreme Court” and “any justice thereof”.

Statutory Notes and Related Subsidiaries

Effective Date of 2006 Amendment

Puspan. L. 109–366, § 7(span), 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.”

Treaty Obligations Not Establishing Grounds for Certain Claims

Puspan. L. 109–366, § 5, Oct. 17, 2006, 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.

“(span)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 August 12, 1949 (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 August 12, 1949 (6 UST 3217);

“(3) the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316); and

“(4) the Convention Relative to the Protection of Civilian Persons in Time of War, done at Geneva August 12, 1949 (6 UST 3516).”