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PADILLA v. BUSH

December 4, 2002

JOSE PADILLA, BY DONNA R. NEWMAN, AS NEXT FRIEND, PETITIONER,
V.
GEORGE W. BUSH, DONALD RUMSFELD, AND COMMANDER M.A. MARR, RESPONDENTS



The opinion of the court was delivered by: Michael B. Mukasey, United States District Judge

      OPINION AND ORDER

Through his attorney, Donna R. Newman, acting as next friend, Padilla has petitioned pursuant to 28 U.S.C. § 2241, seeking relief in the nature of habeas corpus, challenging the lawfulness of his detention, and seeking an order directing that he be permitted to consult with counsel. He has named as respondents President George W. Bush, Secretary of Defense Donald Rumsfeld, and Commander M.A. Marr, the officer in charge of the brig where he is detained.*fn1 The government has moved to dismiss the petition on several grounds, including that Newman lacks standing necessary to establish next friend status, and that this court lacks personal jurisdiction over any proper respondent, and over all of those named as respondents. Alternatively, the government moves to transfer the case to the District of South Carolina, where Padilla is held.

As to the merits, the government argues that the lawfulness of Padilla's custody is established by documents already before this court. Padilla argues that the President lacks the authority to detain him under the circumstances present here, including that he is a United States citizen arrested in the United States, and that in any event he must be permitted to consult with counsel.*fn2 The government has submitted a classified document in camera to be used, if necessary, in aid of deciding whether there exists evidence to justify the order directing that Padilla be detained.

For the reasons set forth below, the parties' applications and motions are resolved as follows: (i) Newman may pursue this petition as next friend to Padilla, and the government's motion to dismiss for lack of standing therefore is denied; (ii) Secretary Rumsfeld is the proper respondent in this case, and this court has jurisdiction over him, as well as jurisdiction to hear this case, and the government's motion to dismiss for lack of jurisdiction, or to transfer to South Carolina, is denied; (iii) the President is authorized under the Constitution and by law to direct the military to detain enemy combatants in the circumstances present here, such that Padilla's detention is not per se unlawful; (iv) Padilla may consult with counsel in aid of pursuing this petition, under conditions that will minimize the likelihood that he can use his lawyers as unwilling intermediaries for the transmission of information to others and may, if he chooses, submit facts and argument to the court in aid of his petition; (v) to resolve the issue of whether Padilla was lawfully detained on the facts present here, the court will 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; the court will not at this time use the document submitted in camera to determine whether the government has met that standard.

I. FACTUAL BACKGROUND

The immediate factual and legal predicate for this case lies in the September 11, 2001 attacks on this country, and the government's response. On that date, as is well known, 19 terrorists associated with an organization called al Qaeda hijacked four airplanes, and succeeded in crashing three of them into public buildings they had targeted — one into each of the two towers of the World Trade Center in New York, and one into the Pentagon near Washington, D.C. The World Trade Center towers were destroyed and the Pentagon was seriously damaged. Passengers on the fourth airplane sought to overpower the hijackers, and in so doing prevented that airplane from being similarly used, although it too crashed, in a field in Pennsylvania, and all aboard were killed. In all, more than 3,000 people were killed in that day's coordinated attacks.

On September 14, 2001, by reason of those attacks, the President declared a state of national emergency. On September 18, 2001, Congress passed Public Law 107-40, in the form of a joint resolution that took note of "acts of treacherous violence committed against the United States and its citizens," of the danger such acts posed to the nation's security and foreign policy, and of the President's authority to deter and prevent "acts of international terrorism against the United States." The resolution, entitled "Authorization for Use of Military Force," (the "Joint Resolution") then provided as follows:

That the President is authorized to use 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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.

Authorization for Use of Military Force, Pub. Law No. 107-40, § 2(a), 115 Stat. 224, 224 (2001).*fn3 As the term "Public Law" connotes, the President signed the Joint Resolution.

As previously noted, on May 8, 2002, this court, acting on an application by the Justice Department pursuant to 18 U.S.C. § 3144,*fn4 based on facts set forth in the affidavit of Joseph Ennis, a special agent of the FBI, found that Padilla appeared to have knowledge of facts relevant to a grand jury investigation into the September 11 attacks. That investigation included an ongoing inquiry into the activities of al Qaeda, an organization believed to be responsible for the September 11 attacks, among others, and to be committed to and involved in planning further attacks. On May 15, 2002, following Padilla's removal from Chicago to New York, where he was detained in the custody of the Justice Department at the Metropolitan Correctional Center ("MCC"), he appeared before this court, and Donna R. Newman, Esq. was appointed to represent him. After Newman had conferred with Padilla at the MCC, and following another court appearance on May 22, 2002, Padilla, represented by Newman, moved to vacate the warrant. The motion to vacate the warrant included an affirmation from Padilla obviously drafted by Newman, albeit one that did not discuss any issue relating to the likelihood that he had information material to a grand jury investigation. (Padilla Affirmation) The motion was fully submitted for decision by June 7.

However, on June 9, 2002, the government notified the court ex parte that it was withdrawing the subpoena. Pursuant to the government's request, the court signed an order vacating the warrant. At that time, the government disclosed that the President had designated Padilla an enemy combatant, on grounds discussed more fully below, and directed the Secretary of Defense, respondent Donald Rumsfeld, to detain Padilla. The government disclosed to the court as well that the Department of Defense would take custody of Padilla forthwith, and transfer him to South Carolina, as in fact happened.

In addition to having submitted the above-mentioned affirmation from Padilla in connection with the motion to vacate the material witness warrant, according to the amended petition, it appears that Newman consulted not only with Padilla but also with his family. (Am. Pet. ¶ 20) No criminal charges have been filed against Padilla.

The President's order, dated June 9, 2002 (the "June 9 Order"), is attached, in redacted form, to the government's dismissal motion, and sets forth in summary fashion the President's findings with respect to Padilla. Attached as well is a declaration of Michael H. Mobbs ("Mobbs Declaration"), who is employed by the Department of Defense. The Mobbs Declaration sets forth a redacted version of facts provided to the President as the basis for the conclusions set forth in the June 9 Order. In addition to the redacted summary contained in the Mobbs Declaration, the government has submitted, under seal, an unredacted version of information provided to the President ("Sealed Mobbs Declaration"). As set forth more fully below, the government has argued that the Mobbs Declaration is sufficient to establish the correctness of the President's findings contained in the June 9 Order, although it has made the Sealed Mobbs Declaration available to the court to remedy any perceived insufficiency in the Mobbs Declaration. However, the government has maintained that the Sealed Mobbs Declaration must remain confidential. The government has taken the position that it would withdraw the Sealed Mobbs Declaration sooner than disclose its contents to defense counsel. (Respondents' Resp. to Petitioners' Supplemental Mem. at 11).

The June 9 Order is addressed to the Secretary of Defense, and includes seven numbered paragraphs setting forth the President's conclusion that Padilla is an enemy combatant, and, in summary form, the basis for that conclusion, including that Padilla: is "closely associated with al Qaeda," engaged in "hostile and war-like acts" including "preparation for acts of international terrorism" directed at this country possesses information that would be helpful in preventing al Qaeda attacks, and represents "a continuing, present and grave danger to the national security of the United States." (June 9 Order ¶¶ 2-5). In addition, the June 9 Order directs Secretary Rumsfeld to detain Padilla. (Id. ¶ 6).

The Mobbs Declaration states that Padilla was born in New York and convicted in Chicago, before he turned 18, of murder. Released from prison after he turned 18, Padilla was convicted in Florida in 1991 of a weapons charge. After his release from prison on that charge, Padilla moved to Egypt, took the name Abdullah al Muhajir, and is alleged to have traveled also to Saudi Arabia and Afghanistan. (Mobbs Decl. ¶ 4) In 2001, while in Afghanistan, Padilla is alleged to have approached "senior Usama Bin Laden lieutenant Abu Zubaydeh" (id. ¶ 6) and proposed, among other things, stealing radioactive material within the United States so as to build, and detonate a "radiological dispersal device (also known as a `dirty bomb') within the United States" (id. ¶ 8). Padilla is alleged to have done research on such a project at an al Qaeda safehouse in Lahore, Pakistan, and to have discussed that and other proposals for terrorist acts within the United States with al Qaeda officials he met in Karachi, Pakistan, on a trip he made at the behest of Abu Zubaydah. (See id. ¶¶ 7-9) One of the unnamed confidential sources referred to in the Mobbs Declaration said he did not believe Padilla was actually a member of al Qaeda, but Mobbs emphasizes that Padilla had "extended contacts with senior Al Qaeda members and operatives" and that he "acted under the direction of [Abu] Zubaydah and other senior Al Qaeda operatives, received training from Al Qaeda operatives in furtherance of terrorist activities, and was sent to the United States to conduct reconnaissance and/or conduct other attacks on their behalf." (Id. ¶ 10).

As mentioned above, Padilla was taken into custody on the material witness warrant on May 8, in Chicago, where he landed after traveling, with one or more stops, from Pakistan. (Id. ¶ 11).

Dealing with the contents of the Sealed Mobbs Declaration is problematic. Padilla argues that I should not consider it at all, at least unless his lawyers have access to it and, he argues, he has an opportunity to respond to its contents. The government argues that I must not disclose it, but that I need not consider it because the redacted version of what the President was told, as set forth in the Mobbs Declaration, is enough to justify the June 9 Order, unless for some reason I think otherwise, in which case I am invited to examine it in camera. Although neither the government nor Padilla mentions the point, the contents of the Sealed Mobbs Declaration could relate to another issue — whether, as the government claims, there is a reasonably cognizable risk to national security that could result from permitting Padilla to consult with counsel.

Although Padilla had been under arrest pursuant to the material witness warrant since May 8, his arrest was announced on June 10, after he was taken into Defense Department custody, by the President and by Attorney General John Ashcroft, who made his announcement during a trip to Moscow. See James Risen & Philip Shenon, Traces of Terror: The Investigation; U.S. Says it Halted Qaeda Plot to Use Radioactive Bomb, N.Y. Times, June 11, 2002, at A1.

Secretary Rumsfeld was questioned at a press briefing on Wednesday, June 12, during a trip to Doha, Qatar, about how close he thought Padilla and others were to being able to build a "dirty bomb," and whether he thought Padilla would be "court martialled."*fn6 News Briefing, Department of Defense (June 12, 2002), 2002 WL 22026773. In response, Secretary Rumsfeld described Padilla as "an individual who unquestionably was involved in terrorist activities against the United States." Id. He said that Padilla "will be held by the United States government through the Department of Defense and be questioned." Id. He then added that in order to protect the United States and its allies, "one has to gather as much [] intelligence information as is humanly possible." Id. Secretary Rumsfeld then summarized as follows how Padilla would be dealt with:

Here is an individual who has intelligence information, and it is, in answer to the last part of your question — will be submitted to a military court, or something like that — our interest really in his case is not law enforcement, it is not punishment because he was a terrorist or working with the terrorists. Our interest at the moment is to try and find out everything he knows so that hopefully we can stop other terrorist acts.

Id.

Secretary Rumsfeld distinguished as follows the government's handling of Padilla from its handling of the usual case of one charged with breaking the law:

It seems to me that the problem in the United States is that we have — we are in a certain mode. Our normal procedure is that if somebody does something unlawful, illegal against our system of government, that the first thing we want to do is apprehend them, then try them in a court and then punish them. In this case that is not our first interest.
Our interest is to — we are not interested in trying him at the moment; we are not interested in punishing him at the moment. We are interested in finding out what he knows. Here is a person who unambiguously was interested in radiation weapons and terrorist activity, and was in league with al Qaeda. Now our job, as responsible government officials, is to do everything possible to find out what that person knows, and see if we can't help our country or other countries.

Id.

Secretary Rumsfeld offered anecdotal evidence to justify applying to Padilla procedures different from those applied to prisoners arrested in conventional cases:

If you think about it, we found some material in Kandahar that within a week was used — information, intelligence information — that was used to prevent a[t] least three terrorist attacks in Singapore — against a U.S. ship, against a U.S. facility and against a Singaporean facility.
Now if someone had said when we found that information or person, well now let's us arrest the person and let's start the process of punishing that person for having done what he had did, we never would have gotten that information. People would have died.
So I think what our country and other countries have to think of is, what is your priority today? And given the power of weapons and given the number of terrorists that exist in the world, our approach has to [be] to try to protect the American people, and provide information to friendly countries and allies, and protect deployed forces from those kind of attacks.
I think the American people understand that, and that notwithstanding the fact that some people are so locked into the other mode that they seem not able to understand it, I suspect that . . . the American people will.

Id. Secretary Rumsfeld's quoted statements appear to show both his familiarity with the circumstances of Padilla's detention, and his personal involvement in the handling of Padilla's case.

It is not disputed that Padilla is held incommunicado, and specifically that he has not been permitted to consult with Newman or any other counsel.

Although the immediate predicate for this case lies in the events of September 11 and their consequences, that date did not mark the first violent act by al Qaeda directed against the United States. An indictment styled United States v. Bin Laden, No. 98 Cr. 1023, charged defendants allegedly affiliated with that organization in connection with the August 1998 bombing of United States embassies in Nairobi, Kenya and Dar-Es-Salaam, Tanzania. According to that indictment, which was tried to a guilty verdict in the summer of 2001, al Qaeda emerged in 1989, under the leadership of Usama Bin Laden. See United States v. Bin Laden, 92 F. Supp.2d 225, 228-29 (S.D.N.Y. 2000). As summarized by Judge Sand, who presided at that trial, the indictment portrayed al Qaeda as a "vast, international terrorist network" that functioned on its own and in cooperation with likeminded groups to oppose the United States through the use of "violent, terrorist tactics." Id. "From time to time, according to the Indictment, Bin Laden would issue rulings on Islamic law, called `fatwahs,' which purported to justify al Qaeda's violent activities." Id. at 229. Bin Laden has declared a "jihad" or holy war against the United States. Id. at 230.

In addition to the September 11 attack and the 1998 bombings in Kenya and Tanzania, al Qaeda is believed, at a minimum, to be responsible for the October 2000 bombing of the U.S.S. Cole that killed 17 U.S. sailors, and to have participated in the October 1993 attack on U.S. military personnel serving in Somalia that killed 18 soldiers. (Id.)

On October 8, 1999, al Qaeda was designated by the Secretary of State as a foreign terrorist organization, pursuant to section 219 of the Immigration and Nationality Act. See Designation of Foreign Terrorist Organizations, 64 Fed. Reg. 55, 112 (1999). It has also been similarly designated by the Secretary of State under the International Emergency Economic Powers Act. See Additional Designations of Terrorism-Related Blocked Persons, 66 Fed. Reg. 54,404 (2001).

II. NEWMAN'S STANDING AS NEXT FRIEND

The first of the several issues presented by this petition concerns Newman's standing to assert a claim as next friend. The statute, 28 U.S.C. § 2242 (2000), provides that an application for relief thereunder "shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf." The Supreme Court has explained that this provision was intended to permit a third party to sue as next friend when a prisoner is unable to seek relief himself. See Whitmore v. Arkansas, 495 U.S. 149, 162 (1990) ("Most frequently, `next friends' appear in court on behalf of detained prisoners who are unable, usually because of mental incompetence or inaccessibility, to seek relief themselves."). In Whitmore, the Court described as follows the requirements for next friend standing:

"[N]ext friend" standing is by no means granted automatically to whomever seeks to pursue an action on behalf of another. 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.

Id. at 163-64 (citations omitted).

The Court placed the burden on the next friend "clearly to establish the propriety of his status and thereby justify the jurisdiction of the court." Id. at 164. The Court explained that the limitations on next friend status "are driven by the recognition that `[i]t was not intended that the writ of habeas corpus should be availed of, as a matter of course, by intruders or uninvited meddlers, styling themselves next friends.'" Id. (quoting United States ex rel. Bryant v. Houston, 173 F. 915, 916 (2d Cir. 1921)). The Court added that "if there were no restriction on `next friend' standing in federal courts, the litigant asserting only a generalized interest in constitutional governance could circumvent the jurisdictional limits of Art. III simply by assuming the mantle of `next friend.'" Id.

Of the factors listed in Whitmore to support a finding of next friend status — inaccessibility of the party in interest, the proposed next friend's dedication to the welfare of that party, and a "significant relationship" between the proposed next friend and that party — the government disputes Newman only as to the last. It argues that Newman's relationship with Padilla is not sufficiently significant to warrant recognizing her as next friend in this case (Mot. to Dismiss Am. Pet. at 8-10), and suggests instead that a member of Padilla's immediate family, if so inclined, might serve in that capacity (id. at 10; Respondents' Reply in Supp. of Mot. to Dismiss Am. Pet. at 7-8). Here, the government relies principally on Hamdi v. Rumsfeld, 294 F.3d 598 (4th Cir. 2002), a case involving a petitioner who is also detained as an enemy combatant, in whose behalf a federal public defender sought to file a habeas corpus petition as next friend. The federal defender in that case had no preexisting relationship with Hamdi, id. at 604, and there existed a person known to the federal defender — Hamdi's father — who did have such a relationship. Id. at 606. Indeed, Hamdi's father petitioned for next friend status. Id. The Court said, "[w]e need not decide just how significant the relationship between the would-be next friend and the real party in interest must be in order to satisfy the requirements for next friend standing'. It suffices here to conclude that no preexisting relationship whatever is insufficient." Id. at 604. The Court reasoned, "[A]bsent a requirement of some significant relationship with the detainee, there is no principled way to distinguish a Public Defender from someone who seeks simply to gain attention by injecting himself into a high-profile case, and who could substantiate alleged dedication to the best interests of the real party in interest by attempting to contact him and his family." Id. at 605. Notably, the Court in Hamdi explicitly declined to say "that an attorney can never possess next friend standing, or that only the closest relative can serve as next friend." Id. at 607.

This case is easily distinguished from Hamdi. Here, Newman had a preexisting relationship with Padilla that involved directly his apprehension and confinement. She had conferred with him over a period of weeks in aid of an effort to end that confinement. She submitted at least one affidavit that he signed, and was engaged in attacking the legal basis of his confinement when he was taken into custody by the Defense Department. She is at once the person most aware of his wishes in this case and the person best suited to try to achieve them. It is of no significance whatever that when she and Padilla formed their relationship he was in the custody of the Justice Department and now he is in the custody of a different executive department. The legal issues may have changed, but the nature of the relationship between Newman and her client has not.

Not only does Newman have a significant and relevant relationship with Padilla, but she appears also to have conferred with Padilla's relatives. (See Am. Pet. ¶ 20 ("As an additional part of her representation of Mr. Padilla, Petitioner Donna R. Newman . . . consulted with both members of Mr. Padilla's family and representatives of the Government. She continues to consult with the Government and Mr. Padilla's family in her role as his attorney.")) She is certainly neither an "intruder" nor an "uninvited meddler." Whitmore, 495 U.S. at 164.

Despite the government's casual suggestion that some other member of Padilla's family might serve as a next friend in this case (Mot. to Dismiss Am. Pet. at 10; Respondents' Reply in Supp. of Mot. to Dismiss Am. Pet. at 7-8), there is no indication here that any other member of Padilla's family, unlike the detainee's father in Hamdi, wishes to assume that role in place of Newman. The government cites several cases in which family members have been granted next friend status, and argues, extravagantly, that those cases show that "[n]ext friend" standing is typically reserved for those who have a close, personal relationship with a detainee — like a parent, spouse, or sibling. (Mot. to Dismiss Am. Pet. at 9) Those cases stand for no such principle. Rather, they involve for the most part capital defendants who have elected to forgo appeals and whose competence is in question. In such cases, courts have permitted family members to intervene as next friends to seek stays of execution. See, e.g., Vargas v. Lambert, 159 F.3d 1161, 1168 (9th Cir. 1998) (mother had standing to seek stay of execution to allow for hearing on son's competency); In re Heidnik, 112 F.3d 105, 112 (3d Cir. 1997) (per curiam) (daughter could serve as next friend to stop father's execution upon showing he suffered from paranoid schizophrenia). However, when incompetence has not been shown, courts have denied next friend status even to close relatives. See Brewer v. Lewis, 989 F.2d 1021, 1026 (9th Cir. 1993) (mother did not have next friend standing because she failed to show defendant was incompetent).

The government quotes selectively from T.W. by Enk v. Brophy, 124 F.3d 893 (7th Cir. 1997), in an effort to show that a next friend ordinarily should be a relative. However, the Court was concerned in that case specifically with who should serve as a next friend when the real party in interest was a minor child. In such a case, it is obvious that:

ordinarily the eligibles will be confined to the plaintiff's parents, older siblings (if there are no parents), or a conservator or other guardian, akin to a trustee; that persons having only an ideological stake in the child's case are never eligible; but that if a close relative is unavailable and the child has no conflict-free general representative the court may appoint a personal friend of the plaintiff or his family, a professional who has worked with the child, or, in desperate circumstances, a stranger whom the court finds to be especially suitable to represent the child's interests in the litigation.

Id. at 897. That case does not support the government's position here.

The government has informed me that the Ninth Circuit recently decided Coalition of Clergy v. Bush, No. 02-55367, 2002 WL 31545359 (9th Cir. Nov. 18, 2002), but that case, involving a group of self-appointed "clergy, lawyers and law professors," id. at *1, presents the classic "intruder" and "uninvited meddler" scenario that Whitmore found insufficient to confer standing. See Whitmore, 495 U.S. at 164. Coalition of Clergy does not read on this case.

Both sides refer to Lenhard v. Wolff, 443 U.S. 1306 (1979) (Rehnquist, Circuit Justice, in chambers). There, Justice Rehnquist found it telling that a capital defendant's family declined to join in the effort to secure further judicial review of his sentence, and drew the inference that they felt the defendant was competent to waive further proceedings and therefore that the predicate showing of incompetence necessary to permit a next friend petition when the detainee is accessible and can act for himself had not been made. Id. at 1310. However, he also stated his view "that from a purely technical standpoint a public defender may appear as `next friend' with as much justification as the mother of [one or another capital defendant]." Id. As noted above, there is no issue of competence in this case; the reason for seeking next friend standing is inaccessibility, and the government has conceded that.

There being no "technical" impediment to appointing a lawyer to serve as next friend, it is not surprising that courts have done so in appropriate cases. See, e.g., Miller ex rel. Jones v. Stewart, 231 F.3d 1248 (9th Cir. 2000) (granting next friend status to lawyer seeking to stay execution and remanding for hearing on defendant's competence); Ford v. Haley, 195 F.3d 603, 624 (11th Cir. 1999) (recognizing that lawyer who had represented petitioner for years was as fit as a relative to serve as next friend); In re Cockrum, 867 F. Supp. 494, 495 (E.D. Tex. 1994) (condemned prisoner was incompetent; lawyer who had represented him earlier could serve as next friend). Although Newman does not have the years-long relationship with Padilla that the lawyer in Ford had with her client, she has a sufficient relationship to overcome any suggestion that she is a mere intermeddler pursuing her own agenda.

Newman may act as next friend to Padilla here.

III. THIS COURT'S JURISDICTION

The government argues as well that this action must be dismissed, or transferred to the District of South Carolina because the only proper respondent in a case such as this is Padilla's custodian; Padilla's only custodian is Marr, the commander of the brig in South Carolina where Padilla is housed; and she is not within this court's jurisdiction. The government has moved to dismiss the petition against respondents other than Marr. For the reasons set forth below, that motion is granted with respect to the President and, mea sponte, as to Commander Marr, but is denied as to Secretary Rumsfeld.

The government's jurisdictional argument raises subsidiary issues: who is the proper respondent in a case such as this, whether this court has jurisdiction over that respondent, and whether this case should be transferred to South Carolina.

A. Who Is A Proper Respondent?

As the government would have it, there is only one proper respondent to a habeas corpus petition, and that is the detainee's "immediate, not ultimate, custodian." (Mot. to Dismiss Am. Pet. at 11) The government points to language in 28 U.S.C. § 2242 directing that a petitioner "shall allege . . . the name of the person who has custody over him," as well as language in 28 U.S.C. § 2243, requiring that a writ or order to show cause "shall be directed to the person having custody of the person detained," and providing that, "the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained," and argues, citing Vascruez v. Reno, 233 F.3d 688 (1st Cir. 2000), that this language "indicates that there is only one proper respondent to a habeas petition," id. at 693.

However, what 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. The warden becomes the respondent of choice almost by default. As discussed below, this is not the usual case.

The hint of a more flexible approach in other than usual cases may be found even in authority cited by the government, involving prisoners who file § 2241 petitions challenging parole determinations. In Billiteri v. United States Bd. of Parole, 541 F.2d 938 (2d Cir. 1976), although the Court held that a prisoner denied parole should sue the prison warden, not the Board of Parole, it added that a different ...


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