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Boumediene v. Bush (2008)

Habeas Corpus at Guantanamo Bay


On June 12th, 2008, the U.S. Supreme Court ruled 5-4 that enemy combatants held in U.S. territory are entitled to the Writ of Habeas Corpus as set out in Article I, Section 9 of the U.S. Constitution. This means that enemy combatants may not be detained indefinitely without receiving fair hearings under civilian courts.

Facts of the Case

In 2002, five young men were rounded up in Afghanistan, captured, and shipped off to join hundreds of other detainees at the U.S. military prison in Guantanamo Bay, Cuba. Six years later, they have still not been formally charged with a crime but remain in detention indefinitely, in violation of international human rights standards.

Relevant Constitutional and Legal Text

Article I, Section 9 of the U.S. Constitution includes a clause protecting habeas corpus rights:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
But the Bush administration's position, as summed up in Section 7 of the Military Commissions Act of 2006, reads:
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.

The Big Question

Does Section 7 of the Military Commissions Act, prohibiting detainees from seeking habeas corpus, amount to an unconstitutional suspension of habeas corpus under Article I, Section 9 of the U.S. Constitution?

Relevant Precedent: Johnson v. Eisentrager (1950)

The Bush administration has argued that Eisentrager, a 1950 ruling allowing the detention of German war criminals in U.S.-occupied postwar Germany without habeas corpus, is binding precedent. Under Eisentrager, the fact that the detainees were not citizens, were not captured in the United States, and were not detained in the United States were emphasized by the Bush administration.

Opponents of the Bush administration's policy point out that Eisentrager was concerned with the practical impossibility of flying the detainees back and forth to the United States for habeas petitions, an issue that is not relevant in the case of the Guantanamo Bay detainees.

Relevant Precedent: Rasul v. Bush (2004)

In Rasul, the U.S. Supreme Court ruled 6-3 that the U.S. court system has proper jurisdiction over Guantanamo detainees. Under this precedent, the clause in the Military Commissions Act stating that U.S. courts may not hear habeas petitions would appear to be obviously unconstitutional, but Rasul did not explicitly say so.

The Majority Ruling: Justice Anthony Kennedy

In a 5-4 ruling, Justice Anthony Kennedy wrote an opinion, joined by justices Breyer, Ginsburg, Souter, and Stevens, in which he upheld the Rasul standard and specifically stated that the Bush administration's suspension of habeas corpus under the Military Commissions Act violates Article I, Section 9 of the U.S. Constitution.

The majority was otherwise identical to the majority in Rasul; the retirement of Justice Sandra Day O'Connor, and her replacement by the more conservative Justice Samuel Alito, changed the majority from 6-3 to 5-4.

Dissent: Chief Justice John Roberts

In a fairly reasonable dissent, Chief Justice John Roberts, joined by justices Alito, Scalia, and Thomas, argues that the Bush administration's military tribunal system actually provides habeas corpus protection; it just does so through military rather than judiciary channels. Roberts argues that Boumediene amounts to an unconstitutional assertion of judicial authority over executive branch military decisions, and places the fate of detainees in the hands of civilian judges who are not privy, and cannot be made privy, to a comparable degree of national security data.

Dissent: Justice Antonin Scalia

In an emotionally charged dissent, Justice Antonin Scalia, joined by the chief justice and justices Alito and Thomas, refers to the past ten years of terrorist attacks: to the bombing of the USS Cole, the bombing of Marine barracks in Lebanon, the bombing of the Khobar Towers, the bombing of U.S. embassies in Tanzania and Kenya, the 9/11 attacks, and military casualties in Afghanistan and Iraq. "The Nation," Scalia writes, "will live to regret what the Court has done this day," as the ruling "will almost certainly cause more Americans to be killed."

Scalia also argues that the detainees' imprisonment at Guantanamo Bay, which is not technically part of the United States, renders them ineligible for habeas corpus under Eisentrager.

Concurrence with Majority Ruling: Justice David Souter

Justice David Souter's concurrence with the majority ruling, joined by justices Breyer and Ginsburg, is primarily a rebuttal to the Roberts and Scalia dissents. In particular, he argues that if habeas corpus means anything at all, it means that prisoners can't be locked up for six years without any judicial oversight. Souter describes the majority ruling as "an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation."


President Bush has agreed to honor the ruling.

Republican presidential nominee John McCain responded to the ruling at a June 2008 town hall meeting, when he described it as "one of the worst decisions in the history of this country" and went on to say:
These are people who are not citizens. They do not and never have been given the rights that citizens in this country have. Now, my friends, there are some bad people down there. There are some bad people.
Democratic presidential nominee Barack Obama described the ruling as "a rejection of the Bush administration's attempt to create a legal black hole at Guantanamo" and "an important step toward re-establishing our credibility as a nation committed to the rule of law."
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