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Shafiq Rasul et al v. George W. Bush, President of the United States/Fawzi Khalid Abdullah Fahad Al Odah et al v. George W. Bush

Court Supreme Court, United States
Case number 03-334/03-343
Decision title Opinion
Decision date 28 June 2004
  • Shafiq Rasul
  • Asif Iqbal
  • Mamdouh Habib
  • David Hicks
  • Fawzi Khalid Abdullah Fahad Al Odah
  • And others
  • George W. Bush
Categories Terrorism
Keywords enemy combatants, Guantanamo Bay, Habeas corpus
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In this landmark case, fourteen Guantanamo detainees petitioned for habeas corpus, requesting judicial review of their indefinite detention without charges. 

Revisiting the holding in Johnson v. Eisentrager (1950), the Supreme Court decided 6-3 that US courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in the course of armed conflict and subsequently detained outside the sovereign territory of the United States at Guantanamo Bay in Cuba. Rasul was found to differ from Eisentrager in the “plenary and exclusive jurisdiction” held by the US over Guantanamo; the Court ruled that US courts have jurisdiction to hear habeas challenges from Guantanamo detainees under the terms of the general federal habeas statute.

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Procedural history

The US District Court for the District of Columbia construed all petitioners’ suits as petitions for habeas corpus and dismissed them for want of jurisdiction. Relying on Johnson v. Eisentrager, the Court reiterated that “aliens detained outside the sovereign territory of the United States [may not] invok[e] a petition for a writ of habeas corpus”. This decision was affirmed in appeal.

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Related developments

US Treatment of Guantanamo Detainees’ Procedural Rights

The Supreme Court's ruling in Rasul marked the start of heavy litigation on the lawfulness of the detention (and treatment) of Guantanamo Bay's detainees. This was mostly due to the efforts of the Center for Constitutional Rights (CCR) and co-counsels, which had filed the Rasul case. After the current decision, the CCR filed the case Al Odah v. United States challenging the legality of the continued detention of Guantanamo detainees (classified as “enemy combatants”). The case incorporated sixteen habeas corpus petitions, and was renamed Boumediene v. Bush after consolidation with the 2008 case with the same name.

Nine days after the Rasul decision, on 7 July 2004, the Department of Defense established military Combatant Status Review Tribunals (CSRTs) to replace US courts in reviewing charges and determining whether detainees were to be classified as “enemy combatants”. On 30 December 2005, Congress passed the Detainee Treatment Act (DTA), explicitly transferring jurisdiction over Guantanamo detainees’ habeas corpus writs from the US Circuit Court for the District of Columbia to the CSRT/military commission system. Government lawyers moved for retroactive application of the Act, in order to have all pending habeas corpus cases dismissed.

Nevertheless, the Supreme Court ruled on 29 June 2006 in Hamdan that retroactive application of the DTA would violate the Constitution, and that the CSRTs violate both military law under the Uniform Code of Military Justice and the Geneva Conventions (the US are bound by these because they acceded to them and implemented them in domestic law). The Executive (the executive branch of the government) was found to lack authority to set up a separate judicial system. Therefore, Boumediene and Al Odah could continue before the regular US courts.

In response to this decision, Congress passed the Military Commissions Act of 2006 (MCA) to authorise a new form of military commissions. The MCA constituted a new review process as substitute for habeas proceedings before US courts and barred judicial review of claims challenging detention by non-US citizens who were (awaiting to be) classified as “enemy combatants” by CSRTs. On 20 February 2007 the US Court of Appeals for the District of Columbia ruled, in conformity with the MCA, that Boumediene and Al Odah their plaintiffs were not entitled to habeas review since they were no US citizens.

The CCR and co-counsel appealed these consolidated cases to the Supreme Court. By this time, it was speculated that there was much internal pressure on the issue; for example, Lt Col Stephen Abraham, a CSRT panellist, strongly criticised the review procedures as being flawed, saying that evidence was insufficient and that panellists had been pressured to classify detainees as enemy combatants: regarding Al Odah, he stated inter alia that "[w]hat were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence".

On 12 June 2008 the Supreme Court ruled in Boumediene v. Bush that the MCA could not deprive Guantanamo detainees of access to the US Federal Court system, and stated that all their previous habeas petitions were eligible for reinstatement.

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Legally relevant facts

The petitioners, two British, two Australians and twelve Kuwaitis, were captured in Afghanistan and Pakistan by American military forces during hostilities between the United States and the Taliban. They were transported to the Guantanamo Bay Naval Base and held in military custody. Consequently, their families challenged the legality of their detention under the Administrative Procedure Act, the Alien Tort Statute, and the general federal habeas corpus statute (Sections 2241-2243 of Title 28 of the US Code), alleging the detainees had never been combatants against the United States, had not been charged with any wrongdoing, and were deprived of any possibility to consult an attorney or to access any court or tribunal.

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Core legal questions

The main question the Supreme Court had to answer, was whether the habeas statute permitted judicial review of the legality of the detention of aliens in a territory over which the United States exercises "plenary and exclusive jurisdiction", but no "ultimate sovereignty". 

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Specific legal rules and provisions

  • Administrative Procedure Act.
  • Alien Tort Statute.
  • Habeas corpus statute.

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Court's holding and analysis

In their treatment of Guantanamo detainees, the Bush administration relied heavily on the Supreme Court’s prior decision in Eisentrager, which held that foreign enemy nationals, not resident in the United States, have no right to a writ of habeas corpus. However, in his majority opinion, Justice Stevens believed the facts of Rasul to be substantially different. Also, he found that more recent Supreme Court rulings had already overruled some of Eisentrager's holdings.

These differences manifested themselves inter alia in that Eisentrager identified six critical facts as relevant to whether petitioners were entitled to habeas review. Rasul's petitioners differed substantially: they were not nationals of states at war with the US; they denied that they were engaged in acts of aggression against the US; they had neither been given access to any tribunal nor charged with or convicted of any wrongdoing; and they had been imprisoned in territory under US exclusive control.

Moreover, Justice Stevens made clear that Eisentrager was relevant only to petitioners’ constitutional entitlement to habeas review, but it had not addressed the statutory entitlement. Stevens established that Section 2241 did not require the physical presence within a court’s territorial jurisdiction; all that is required is that "the custodian [the US] can be reached by service of process".

Furthermore, the government’s argument that the habeas statute should be presumed not to have extraterritorial effect in this context, was rejected. In the Guantanamo Bay lease agreement between the US and Cuba it was agreed that the US exercise “complete jurisdiction and control” over Guantanamo and may continue to do so indefinitely. And, dismissing the government's claim to the contrary, the Court found that the habeas statute is not dependent upon detainees' citizenship status. 

In conclusion, foreign nationals at Guantanamo Bay were “entitled to invoke the federal courts’ authority under § 2241” (p. 7, under IV).

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Further analysis

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Instruments cited