Boumediene v. Bush, 553 U.S. 723 (2008), was 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 in Cuba. Guantanamo Bay is not formally part of the United States, and under the terms of the 1903 lease between the United States and Cuba, Cuba retained ultimate sovereignty over the territory, while the United States exercises complete jurisdiction and control. The case was consolidated with habeas petition Al Odah v. United States and challenged the legality of Boumediene’s detention at the United States Naval Station military base in Guantanamo Bay, Cuba as well as the constitutionality of the Military Commissions Act (MCA) of 2006. Oral arguments on the combined case were heard by the Supreme Court on December 5, 2007.
On June 12, 2008, Justice Kennedy delivered the opinion for the 5-4 majority holding that the prisoners had a right to the habeas corpus under the United States Constitution and that the MCA was an unconstitutional suspension of that right. The Court applied the Insular Cases, by the fact that the United States, by virtue of its complete jurisdiction and control, maintains “de facto” sovereignty over this territory, while Cuba retained ultimate sovereignty over the territory, to hold that the aliens detained as enemy combatants on that territory were entitled to the writ of habeas corpus protected in Article I, Section 9 of the U.S. Constitution. The lower court expressly indicated that no constitutional rights (not merely the right to habeas) extend to the Guantanamo detainees rejecting petitioners’ arguments. This Court’s case precedent recognized that fundamental rights afforded by the Constitution extend to Guantanamo. Along with Rasul v. Bush, Hamdi v. Rumsfeld, and Hamdan v. Rumsfeld, this is a major case in the Court’s controversial detainee jurisprudence.
Justice Kennedy’s majority decision.
The majority found that the constitutionally guaranteed right of habeas corpus review applies to persons held in Guantanamo and to persons designated as enemy combatants on that territory. If Congress intends to suspend the right, an adequate substitute must offer the prisoner a meaningful opportunity to demonstrate he is held pursuant to an erroneous application or interpretation of relevant law, and the reviewing decision-making must have some ability to correct errors, to assess the sufficiency of the government’s evidence, and to consider relevant exculpating evidence. The court found that the petitioners had met their burden of establishing that Detainee Treatment Act of 2005 failed to provide an adequate substitute for habeas corpus.
Kennedy’s majority opinion begins with an over-twenty page review of the history of habeas corpus in England from its roots in the due process clause of Magna Carta of 1215 to the nineteenth century. Next, the opinion surveys American historical jurisprudence on the writ from 1789 until shortly after World War II, concentrating on the application of habeas corpus to aliens and territories outside of the borders of the United States that still fall under United States control, comparing these areas to the Channel Islands, where the writ did apply. While noting that habeas corpus did not apply in Scotland, a country under the control of the English crown (as the same monarch held the crown of Scotland), the Court distinguished that fact by stating that Scotland kept its unique system of laws even after union with England in 1707. The Court turned to Ireland for a more amenable historical example, pointing out that while it was nominally a sovereign country in the eighteenth century, English habeas corpus review did apply there since Ireland was under de facto English control and shared the English legal system.
The majority opinion rejected the government’s argument comparing the habeas corpus restriction under the MCA to those affected by the Antiterrorism and Effective Death Penalty Act of 1996, which were ruled constitutional after a suspension clause challenge. The Court explained the restrictions of AEDPA on habeas review were not a complete suspension on habeas corpus, but simply procedural limitations, such as limiting the number of successive habeas petitions a prisoner can file, or mandating a one-year time limit for the filing of federal habeas review that begins when the prisoner’s judgment and sentence become final.
The main distinction between the MCA and AEDPA, the Court went on to explain, was that AEDPA applies in practice to those prisoners serving a sentence after having been tried in open court and whose sentences have been upheld on direct appeal, whereas the MCA suspends the application of the writ to those detainees whose guilt has not yet been legally determined. In other words, the comparison to AEDPA was found by the majority to be misplaced in that AEDPA’s limitations on habeas review stemmed from cases that had already been to trial, whereas the cases involving MCA had not been to trial and therefore habeas review would have been appropriate.
The Court also concluded that the detainees are not required to exhaust review procedures in the court of appeals before pursuing habeas corpus actions in the district court. The majority distinguished between de jure and de facto sovereignty, finding that the United States had in effect de facto sovereignty over Guantanamo. Distinguishing Guantanamo base from historical precedents, this conclusion allowed the court to conclude that Constitutional protections of habeas corpus run to that to U.S. Military base at Guantanamo Bay, Cuba.
In the majority ruling, Justice Kennedy called section 7 “not adequate”. He explained, “to hold that the political branches may switch the constitution on or off at will would lead to a regime in which they, not this court, ‘say what the law is’.” The decision struck down section 7 of the MCA, but left intact the remainder of the MCA and the Detainee Treatment Act. In a concurring opinion, Justice Souter stressed the fact that the prisoners involved have been imprisoned for as many as six years. Chief Justice Roberts and Justice Scalia each wrote opinions for the four dissenters.
Justice Souter’s concurrence
Justice Souter’s concurrence was joined by Justices Ginsburg and Breyer. According to Justice Souter, “subsequent legislation eliminated the statutory habeas jurisdiction” over the claims brought by Guantanamo Bay detainees, “so that now there must be constitutionally based jurisdiction or none at all.” Citing the Supreme Court’s decision in Rasul v. Bush, he added that the “”[a]pplication of the habeas statute to persons detained at [Guantanamo] is consistent with the historical reach of the writ of habeas corpus.” Justice Souter pointed to the lengthy imprisonments, some of which have exceeded six years, as “a factor insufficiently appreciated by the dissents.” He thus denied the charge of the dissenters that the Court’s majority “is precipitating the judiciary into reviewing claims that the military (subject to appeal to the Court of Appeals for the District of Columbia Circuit) could handle within some reasonable period of time.”
Justice Scalia’s dissent
Justice Scalia’s dissent was joined by Chief Justice Roberts and Justices Alito and Thomas. Justice Scalia argued that “the procedures prescribed by Congress in the Detainee Treatment Act provide the essential protections that habeas corpus guarantees; there has thus been no suspension of the writ, and no basis exists for judicial intervention beyond what the Act allows.” The commission of terrorist acts by former prisoners at Guantanamo Bay after their release “illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection.” A consequence of the Court’s majority decision will be that “how to handle enemy prisoners in this war will ultimately lie with the branch [the judiciary] that knows least about the national security concerns that the subject entails.” A conflict between the Military Commissions Act and the Suspension Clause “arises only if the Suspension Clause preserves the privilege of the writ for aliens held by the United States military as enemy combatants at the base in Guantanamo Bay, located within the sovereign territory of Cuba.”
Justice Scalia added that the Court’s majority “admits that it cannot determine whether the writ historically extended to aliens held abroad, and it concedes (necessarily) that Guantanamo Bay lies outside the sovereign territory of the United States.” Justice Scalia pointed out that Johnson v. Eisentrager (where the Supreme Court decided that U.S. courts had no jurisdiction over German war criminals held in a U.S.-administered German prison) “thus held—held beyond any doubt—that the Constitution does not ensure habeas for aliens held by the United States in areas over which our Government is not sovereign.”
According to Justice Scalia, the Court’s majority’s “analysis produces a crazy result: Whereas those convicted and sentenced to death for war crimes are without judicial remedy, all enemy combatants detained during a war, at least insofar as they are confined in an area away from the battlefield over which the United States exercises ‘absolute and indefinite’ control, may seek a writ of habeas corpus in federal court.” Justice Scalia added that the Constitution allows suspension of the writ of habeas corpus only in cases of rebellion or invasion, both domestic disturbances; he asked “[i]f the extraterritorial scope of habeas turned on flexible, ‘functional’ considerations, as the [Court’s majority] holds, why would the Constitution limit its suspension almost entirely to instances of domestic crisis?”
Chief Justice Roberts’ dissent
Chief Justice Roberts’ dissent focused on whether the process afforded the Guantanamo detainees in the Detainee Treatment Act were an adequate substitute for the Habeas protections the Constitution guaranteed. By arguing in the affirmative, he implied that the issue of whether the detainees had any Suspension Clause rights was moot (since, if they did, he found that those rights were not violated anyway). This line of reasoning was arguably more in line with the plain reading of Johnson v. Eisentrager (which denied German prisoners of war Habeas rights primarily due to both practical logistical concerns and the determination that they had been afforded an adequate substitute: traditional military war crimes trials, which complied with the Geneva Conventions) than that of Justice Scalia, and also avoided the more controversial and complicated issue of whether the detainees were entitled to file Habeas petitions in the first place.
Amicus briefs
The Supreme Court received over two dozen briefs of amicus curiae on the case, including some written strictly on the history and application of Habeas Corpus in England, Scotland, Hanover, Ireland, Canada, British-controlled territories, India, and the United States. Twenty-two amicus briefs were filed in support of the petitioners, Boumediene and Al Odah, and four were filed in support of the respondents, the Bush Administration.
Reception of the ruling
Conservative commentator Ellis Washington has criticized the ruling, asserting that it “wantonly overruled the will of the people and Congress to suspend the habeas corpus rights of this dangerous and irredeemable class of criminal defendants”.
Liberal legal theorist Ronald Dworkin disagreed with conservative criticism and praised the Court’s decision, advocating that it was “a great victory”.
Aftermath
On November 20, 2008, five Guantánamo detainees, including Boumediene, were ordered freed by Judge Richard J. Leon of Federal District Court in Washington. The Court ordered the continued detention of a sixth, Belkacem Bensayah. The Court ruled: “To allow enemy combatancy to rest on so thin a reed would be inconsistent with this court’s obligation; the court must and will grant their petitions and order their release. This is a unique case. Few if any others will be factually like it. Nobody should be lulled into a false sense that all of the … cases will look like this one.”
On October 28, 2009, President Obama signed into law the Military Commissions Act of 2009, which amended the Military Commissions Act of 2006 and provided new rules for the handling of commission trials and commission defendants’ rights.
Release to France
On May 15, 2009, Boumediene was transferred to France, where he has relatives. His wife and children moved from Bosnia to Algeria, following his arrest, but would join him in France.
