Law School Resources
Boumediene v. Bush, 553 U.S. (2008)
Procedural History:
A writ of habeas corpus
submission made in a civilian court of the United
States on behalf of Lakhdar Boumediene, a
naturalized citizen of Bosnia and Herzegovina, held
in military detention by the United States at the
Guantanamo Bay detention camps
Facts:
In the Authorization for Use of
Military Force Congress empowered the President “to
use all necessary and appropriate force against
those . . . he determines planned, authorized,
committed, or aided the terrorist attacks . . . on
September 11, 2001.” In Hamdi v. Rumsfeld, five
Justices recognized that detaining individuals
captured while fighting against the United States in
Afghanistan for the duration of that conflict was a
fundamental and accepted incident to war.
Thereafter, the Defense Department established
Combatant Status Review Tribunals (CSRTs) to
determine whether individuals detained at the U. S.
Naval Station at Guantanamo Bay, Cuba, were “enemy
combatants.” Petitioners are aliens detained at
Guantanamo after being captured in Afghanistan or
elsewhere abroad and designated enemy combatants by
CSRTs. Denying membership in the al Qaeda terrorist
network that carried out the September 11 attacks
and the Taliban regime that supported al Qaeda, each
petitioner sought a writ of habeas corpus in the
District Court, which ordered the cases dismissed
for lack of jurisdiction because Guantanamo is
outside sovereign U. S. territory. The D. C. Circuit
affirmed, but this Court reversed, holding that 28
U. S. C. §2241 extended statutory habeas
jurisdiction to Guantanamo. Petitioners’ cases were
then consolidated into two proceedings. In the
first, the district judge granted the Government’s
motion to dismiss, holding that the detainees had no
rights that could be vindicated in a habeas action.
In the second, the judge held that the detainees had
due process rights.
In 2006, Congress passed the
Military Commissions Act of 2006 (MCA). The Act
eliminates federal courts' jurisdiction to hear
habeas applications from detainees who have been
designated (according to procedures established in
the Detainee Treatment Act of 2005) as enemy
combatants. When the case was appealed to the D.C.
Circuit for the second time, the detainees argued
that the MCA did not apply to their petitions, and
that if it did, it was unconstitutional under the
Suspension Clause. The Suspension Clause reads: "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."
The D.C. Circuit ruled in
favor of the government on both points. It cited
language in the MCA applying the law to "all cases,
without exception" that pertain to aspects of
detention. One of the purposes of the MCA, according
to the Circuit Court, was to overrule the Supreme
Court's opinion in Hamdan v. Rumsfeld, which had
allowed petitions like Boumediene's to go forward.
The D.C. Circuit held that the Suspension Clause
only protects the writ of habeas corpus as it
existed in 1789, and that the writ would not have
been understood in 1789 to apply to an overseas
military base leased from a foreign government.
Constitutional rights do not apply to aliens outside
of the United States, the court held, and the leased
military base in Cuba does not qualify as inside the
geographic borders of the U.S. In a rare reversal,
the Supreme Court granted certiorari after initially
denying review three months earlier.
Issue:
1.
Should the Military Commissions Act of 2006
be interpreted to strip federal courts of
jurisdiction over habeas petitions filed by foreign
citizens detained at the U.S. Naval Base at
Guantanamo Bay, Cuba, and if so, is the Military
Commissions Act of 2006 a violation of the
Suspension Clause of the Constitution?
2.
Are the detainees at Guantanamo Bay entitled
to the protection of the 5th Amendment
right not to be deprived of liberty without due
process of law and of the Geneva Conventions, and
can the detainees challenge the adequacy of judicial
review provisions of the MCA before they have sought
to invoke that review?
Holding:
A 5 to 4 majority answered yes
to each of these questions. The opinion stated that
if the MCA is considered valid its legislative
history requires that the detainees' cases be
dismissed. However, the Court went on to state that
because the procedures laid out in the Detainee
Treatment Act are not adequate substitutes for the
habeas writ, the MCA operates as an unconstitutional
suspension of that writ. The detainees were not
barred from seeking habeas or invoking the
Suspension Clause merely because they had been
designated as enemy combatants or held at Guantanamo
Bay. The Court reversed the D.C. Circuit's ruling
and found in favor of the detainees. Justice David
H. Souter concurred in the judgment. Chief Justice
John G. Roberts and Justice Antonin Scalia filed
separate dissenting opinions.
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