Boumediene v. Bush

PETITIONER: Lakhdar Boumediene et al.
RESPONDENT: George W. Bush, President of the United States, et al.
LOCATION: U.S. Naval Base at Guantanamo Bay

DOCKET NO.: 06-1195
DECIDED BY: Roberts Court (2006-2009)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 553 US 723 (2008)
GRANTED: Jun 29, 2007
ARGUED: Dec 05, 2007
DECIDED: Jun 12, 2008

Paul D. Clement - on behalf of the Respondents
Seth P. Waxman - on behalf of the Petitioners

Facts of the case

In 2002 Lakhdar Boumediene and five other Algerian natives were seized by Bosnian police when U.S. intelligence officers suspected their involvement in a plot to attack the U.S. embassy there. The U.S. government classified the men as enemy combatants in the war on terror and detained them at the Guantanamo Bay Naval Base, which is located on land that the U.S. leases from Cuba. Boumediene filed a petition for a writ of habeas corpus, alleging violations of the Constitution's Due Process Clause, various statutes and treaties, the common law, and international law. The District Court judge granted the government's motion to have all of the claims dismissed on the ground that Boumediene, as an alien detained at an overseas military base, had no right to a habeas petition. The U.S. Court of Appeals for the D.C. Circuit affirmed the dismissal but the Supreme Court reversed in Rasul v. Bush, which held that the habeas statute extends to non-citizen detainees at Guantanamo.

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.


  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?

  2. If so, is the Military Commissions Act of 2006 a violation of the Suspension Clause of the Constitution?

  3. Are the detainees at Guantanamo Bay entitled to the protection of the Fifth Amendment right not to be deprived of liberty without due process of law and of the Geneva Conventions?

  4. Can the detainees challenge the adequacy of judicial review provisions of the MCA before they have sought to invoke that review?

Media for Boumediene v. Bush

Audio Transcription for Oral Argument - December 05, 2007 in Boumediene v. Bush

Audio Transcription for Opinion Announcement - June 12, 2008 in Boumediene v. Bush

Anthony M. Kennedy:

Now the first case is 06-1195, Boumediene versus Bush.

In these cases the petitioners are aliens detained at the United States Naval Station at Guantanamo bay, Cuba.

Military tribunals held individual hearings and classified these petitioners as enemy combatants.

Those tribunals are known as Combatant Status Review Tribunals or CSRTs.

These cases began in United States District Court for the District of Columbia.

There the petitioners sought, and they now ask us to allow them to continue to seek, a writ of habeas corpus to test the legality of their detention.

They made this argument as well in the United States Court of Appeals for the Columbia Circuit.

That court held there is no statutory jurisdiction to issue a habeas corpus to these petitioners, that the constitutional privilege of habeas corpus was not available to them and that the applicable review procedures were those provided by Congress when it was assigned to the Court of Appeals, the authority to review determinations made by the CSRTs.

We granted certiorari to review the claim that the petitioners are entitled habeas corpus.

This Court decided the case Rasul versus Bush four terms ago.

The Court's opinion held that under the then controlling statute, the power of Federal Courts to issue habeas corpus did reach Guantanamo.

That was a statutory mandate.

Congress then twice amended the statute to eliminate the right of the detainees at Guantanamo to seek the writ.

The threshold issue in this case concerns the petitioners' argument that the latest amendment limiting habeas corpus jurisdiction does not apply to them, because their suits were pending on the date of the enactment.

The Court of Appeals held the amendments do withdraw jurisdiction to issue the writ in pending cases and we agreed.

Our opinion today next discusses two other arguments made by the petitioners.

First, despite the law attempting to repeal authority to issue the writ of habeas corpus, are they entitled to the writ, because under the Constitution, this right or privilege extends to Guantanamo and to them.

Second, if petitioners have this right, are the statutory review procedures in the Court of Appeals an adequate substitute for habeas corpus.

In addressing whether the opinion -- that the petitioners have the habeas corpus privilege under the Constitution, the opinion examines whether and in what circumstances the power to issue the writ can extend to aliens who are beyond the nation's borders and this discussion is somewhat lengthy.

We examined the history of habeas corpus in England as it must have informed the intended purposes of the framers of our own Constitution, and we note cases and authorities, discussing whether English courts could issue habeas corpus for persons held in India, Scotland, Ireland, exempt jurisdictions like the Channel Islands, and after 1789, Canada.

That history is not conclusive.

We point out, however, that this history most surely does not teach that a court's power or a jurisdiction to issue the writ would be barred in this instance.

We then looked the precedents concerning the reach of some constitutional protections to territories outside the nation's borders.

This requires us to consider other cases like Johnson versus Eisentrager.

There the Court considered whether there was authority to issue the writ when it was sought by prisoners of war held in Germany after World War II.

We conclude that cases like Eisentrager instruct that formalistic concepts like sovereignty do not control the matter at hand, rather objective factors and practical concerns are of primary relevance.

With regard to the habeas corpus provision, the Suspension Clause, we conclude that at least three factors are relevant in determining the writ's extraterritorial reach.

First, the citizenship and status of the detainees seeking the writ and the adequacy of the process through which that status determination was made.

Second, the nature of the sites where apprehension and then detention took place and three, the practical obstacles that might be inherent in resolving the prisoners' entitlement to the writ.

Applying the whole analysis, we conclude that the writ does run to the naval station and to these detainees.