Boumediene, et al. v. Bush et al.

Court	Supreme Court, United States
Case number	06-1195
Decision title	Certiorari to the United States Court of Appeals for the District of Columbia Circuit
Decision date	12 June 2008
Parties	Boumediene, et al. Bush, et al.
Categories	Terrorism
Keywords	Detainee Treatment Act, enemy combatants, Guantanamo Bay, Habeas corpus, Military Commissions Act, Terrorism, unconstitutional
Links	Certiorari to the United States Court of Appeals for the District of Columbia Circuit
Other countries involved	Bosnia and Herzegovina

Summary

In October 2001, six men were arrested in Bosnia and Herzegovina for their alleged involvement in the bombing of the US Embassy in Sarajevo (Bosnia and Herzegovina). Later, they were handed over to the US and transferred to the US Naval Base at Guantanamo Bay (Cuba).

In 2004, the men filed a petition for a writ of habeas corpus (a legal action in which the petitioners challenge the legality of their detention). In 2005, the US District Court ruled that Guantanamo detainees do not have habeas corpus rights. The detainees appealed the decision. In the aftermath of the adoption of the Military Commissions Act in 2006, the US government requested the dismissal of the case, arguing that the federal court no longer had jurisdiction to hear the case.

The Court of Appeals found that the Military Commissions Act indeed removed the jurisdiction of federal courts to hear habeas corpus petitions from Guantanamo detainees. Accordingly, the Court of Appeals dismissed the detainee’s petitions on the grounds of lack of jurisdiction.

In June 2008, the Supreme Court reversed this decision, finding that Guantanamo detainees have a right to file habeas corpus petitions. The legal provisions which suspended this right were found to be unconstitutional. Also, all previous Guantanamo detainees' corpus petitions were found to be eligible for reinstatement. The Supreme Court reached its decision on the grounds that the United States has unilateral control over Guantanamo Bay and, therefore, the prison is within the statutory jurisdiction of the US federal courts.

Procedural history

On 8 July 2004, Lakhdar Boumediene, Al Odah and others filed a petition for a writ of habeas corpus after the Supreme Court’s ruling in Rasul v. Bush, in which the Supreme Court affirmed the detainee’s rights to challenge the legality of their detention.

In January 2005, the District Court ruled in Al Odah that the Guantanamo Detainees have a “fundamental right” to due process under the Fifth Amendment and they are protected under also under the Geneva Conventions. In Boumediene, the District Court ruled in the opposite way, finding that Guantanamo detainees have no habeas corpus rights.

The cases were consolidated and appealed. In the wake of the adoption of the Military Commissions Act, the US Government moved to dismiss the petition of the Guantanamo detainees arguing that the federal courts no longer had jurisdiction.

On 20 February 2007, the Court of Appeals found in Boumediene that the Military Commissions Act of 2006 removed the jurisdiction of federal courts to hear habeas corpus petitions, and dismissed the detainee’s request accordingly.

The detainees appealed the decision of the Court of Appeals. In June 2007, the Supreme Court announced that it would hear the consolidated cases (Al Odah and Boumediene). Oral arguments were heard on 5 December 2007.

See J. Shawl, 'Supreme Court Weighs Guantanamo Habeas Cases', Jurist, 5 December 2007.

Related developments

This judgment has been very important for the legal status of Guantanamo Bay detainees: prior to it, the US regarded all Al Qaeda and Taliban militants to be "enemy combatants" in the sense of unlawful combatants, therefore excluding them from the Third Geneva Convention's protection for prisoners of war. As such, they could be tried in court for taking part in hostilities (whereas the Convention normally prohibits states to prosecute combatants from an opposing faction just for taking part in hostilities), but at the same time the 2006 Military Commissions Act deprived them from access to the US civil justice system (including the right to request a writ of habeas corpus).

On 27 October 2008, the US District Court held that in order for a foreign national to be lawfully held as an “enemy combatant”, there must be a direct support for the hostilities against the US or its allies (see also D. Montgomery, Federal Judge Rules on Meaning of ‘Enemy Combatant’, Jurist, 28 October 2008).

On 20 November 2008, the District Court for the District of Columbia ordered the release of five of the six petitioners.

On 13 March 2009 US Attorney General Eric Holder declared that the US would abandon the use of the term "enemy combatant".

On 15 May 2009, the US transferred Lakhdar Boumediene to France.

Legally relevant facts

In October 2001, six men were arrested in Bosnia and Herzegovina for their alleged involvement in a plot to bomb the U.S. Embassy in Sarajevo (Bosnia and Herzegovina). Five of the men were Algerian-Bosnian dual nationals, while the sixth held a permanent residency in Bosnia and Herzegovina.

On 20 January 2002, the Bosnian Supreme Court ordered their release from prison. Shortly after that, they were detained by the US forces and transferred to the US. Naval Base at Guantanamo Bay (Cuba).

Core legal questions

Did the Military Commissions Act (2006) lawfully strip the US federal courts of jurisdiction to hear habeas corpus petitions from the Guantanamo detainees?
Does the Detainee Treatment Act provide with an effective substitute for habeas writs?

Specific legal rules and provisions

Section 7 of the Military Commissions Act of 2006.
Section 1005(e) of the Detainee Treatment Act.

Court's holding and analysis

On 12 June 2008, the United States Supreme Court held that Guantánamo detainees have certain legal rights, including the right to challenge their detention. The Court held that detainees have the right to habeas corpus and that the Military Commissions Act (MCA) is an unconstitutional suspension of that right.

The petitioners originally sought a writ of habeas corpus in the US District Court. The Court concluded that the MCA removed the jurisdiction of Federal Courts to consider habeas corpus applications, and that it was therefore unnecessary to consider whether the Detainee Treatment Act (DTA) provided an adequate and effective substitute for habeas corpus.

The Supreme Court reversed this decision, holding that habeas corpus extends to Guantánamo. The Court held that because the United States has unilateral control over Guantánamo Bay (the United States has a long term lease with Cuba, which has de jure sovereignty over the territory), the prison is within the statutory jurisdiction of the US federal courts (pp. 22-25). The detainees are therefore entitled to the constitutional right of habeas corpus, and this right cannot be suspended by designating a detainee an ‘enemy combatant’ or because of their presence at Guantánamo (pp. 25-34).

The Supreme Court reviewed whether the DTA provides for an adequate substitute for habeas corpus. The petitioners argued that there were a number of deficiencies, including a constraint on the detainee’s ability to rebut the Government’s assertions on enemy combatant status. Justice Kennedy wrote that the review procedure provided “falls short of being a constitutionally adequate substitute” because it failed to offer “the fundamental procedural protections of habeas corpus.” The procedure was held to have major flaws. Therefore, § 7 of the MCA was held to operate as an unconstitutional suspension of the writ (pp. 42-64).