Case Summary: Boumediene v. Bush

Boumediene v. Bush, 553 U.S. 723 (2008) arose out of the United States's Global War on Terror.  Boumediene sought a writ of habeas corpus seeking to challenge his detention and the military commissions used to determine his status as an enemy combatant.  The Court split 5-4.

[Disclosure: I worked to co-author an amicus brief on the applicability of the Geneva Conventions to these prisoners in this case - AM-T].

Factual Background:  Boumediene and others were aliens designated as enemy combatants and held by the United States at the Naval Station in Guantanamo Bay, Cuba.  They sought a writ of habeas corpus, alleging that aspects of Military Commissions Act, which sought to strip the courts of jurisdiction, were unconstitutional violations of the Suspension Clause.

Although all the petitioners were foreign nationals, none were citizens of countries then at war with the United States.  All denied that they were members of al Qaeda or the Taliban regime.  Each had appeared before a Combatant Status Review Tribunal (CSRT) and had had been determined to be enemy combatants, a designation they wished to challenge.  While their challenges were pending, Congress passed the Detainee Treatment Act (DTA), which purported to foreclose their appeals.  The Supreme Court ruled that the DTA did not apply to pending petitions in Hamdan v. Rumsfeld, 548 U.S. 557 (2006).  Congress then passed the Military Commissions Act (MCA), seeking again to strip the courts of jurisdiction over the petitioners' habeas actions.

The Majority:  The majority opinion began by acknowledging that the language of the MCA denied federal courts of jurisdiction to hear writs of habeas corpus from detainees held at Guantanamo Bay.  Having determined that the statute denied the Court jurisdiction, it was then forced to confront the question of whether or not the MCA violated the Suspension Clause of the Constitution and whether the petitioners were protected by that clause.

The Court first asked whether petitioners' status, i.e their designation as enemy combatants, or their location, i.e. Guantanamo Bay, Cuba, would bar them from seeking the writ.  In order to answer these questions, the majority conducted a survey of the historical application of the writ.  Based on this history, and the Constitutional design, the Court concluded that "foreign nationals who have the privilege of litigating in our courts can seek to enforce separation-of-powers principles."  548 U.S. at 743.  Given this conclusion, the Court next looked to whether foreign nationals, detained abroad, could assert the writ.  It noted that at common law, status as an alien was not a categorical bar to habeas relief and that common law courts at least heard cases by enemy aliens in England, to determine if they were entitled to the writ.  The Court concluded its historical analysis by noting that a categorical or formal conception of sovereignty did not provide a comprehensive or "altogether satisfactory explanation" for when the writ can be claimed.  Id. at 751.

Assuming that the writ only applied where the crown was sovereign, and that the same would be true here, the Court then turned to the question of who was sovereign over Guantanamo Bay.  While acknowledging that Cuba maintained de jure sovereignty under the terms of the lease of the base, it noted that the United States maintained de facto sovereignty through its "complete jurisdiction and control" of the area.  Id. at 755.

The majority then ran through a history of the extraterritoriality cases, noting that they all relied on practical considerations, elevating the "impracticable and anomalous" test from Justice Harlan's Reid concurrence to the majority's holding.  

When it got to Eisentrager, the majority rejected the formalistic, sovereignty-based approach for three reasons: 1) the language about the aliens never being in U.S. territory was not the only operative language in the opinion, and the practical considerations ran throughout that part of the opinion; 2) the United States lacked both de jure AND de facto sovereignty over Landsberg prison, thus making it unclear if the Court addressed the degree of control the U.S. had; and 3) such a reading would have meant a complete repudiation of the Insular Cases and Reid v. Covert, and their functional approach to extraterritoriality.

Furthermore, the Court believed that the Government's strict sovereignty-based argument raised separation-of-powers concerns, allowing the political branches to surrender formal sovereignty over property, while retaining absolute practical control, thus allowing the political branches to operate without legal constraint.  The majority refused to allow the Constitution to be contracted away in that manner.

The Court then determined that, based on the factors identified in Eisentrager and other opinions, there were three factors relevant in determining the reach of the Supremacy Clause: 1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; 2) the nature of the sites where apprehension and detention took place; and 3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ.  Id. at 766.

Here, unlike in Eisentrager, the petitioners disputed their status as enemy combatants.  Additionally, unlike the war crimes trials the Eisentrager petitioners were subjected to, CSRTs provide far less process and fall short of what the majority felt habeas required.  As for the second factor, again, there were key differences in the two cases: namely, the United States's absolute control over Guantanamo Bay.  As for the third factor, while the Court recognized the costs of extending the Suspension Clause, it did not find them to be dispositive.  The situation in Cuba was far different than post-war Germany.  Being far from the field of battle, there were fewer practical concerns with extending the writ to Cuba.

Having determined that the Suspension Clause applies to Guantanamo Bay and the detainees held there, the Court then addressed whether the jurisdiction-stripping provisions of the MCA violated the clause and held that they did.  Contrary to the Government's assertion, the Court found that the alternative process provided by the DTA did not adequately address the concerns protected by habeas.  Therefore, given the lack of an adequate alternative, as well as a lack of prudential barriers to habeas review, the Court struck down the jurisdiction-stripping provisions at issue.

Souter's Concurrence:  Justice Souter joined the majority opinion in its entirety and wrote separately to note two facts that the dissent overlooked: 1) that the answer here must be answered the same way as the jurisdictional question the Court addressed in Rasul v. Bush, 542 U.S. 466 (2004), which addressed the same historical questions; and 2) the length of the imprisonments were extensive, at the time of Boumediene over six years for some.

Chief Justice Roberts's Dissent:  Chief Justice Roberts dissented, calling the procedures mandated by the DTA the most generous set of procedural protections ever afforded to enemy aliens.  The Chief argued that the question of the reach of the writ need not be answered until the threshold question of whether the detainees' rights were protected by the procedures crafted by the political branches.  He believed they were.  He noted that the Court of Appeals had not yet had a chance to weigh in on this question and believed that any habeas remedy fashioned by the Court would be nearly identical to the DTA process it just scrapped.  He argued that whatever rights the detainees had were adequately protected by the DTA process and the case should have been dismissed on those grounds.  At the very least, it was premature to hear the case until the D.C. Circuit had a chance to review them.

Justice Scalia's Dissent:  Justice Scalia dissented on the grounds that the history of the writ of habeas corpus did not support extending it to aliens held outside the United States.  He argued that Eisentrager foreclosed any consideration of practicality and relied entirely on a territorial determination - there is no habeas right for aliens held by the United States in areas over which the United States is not sovereign.  While he acknowledged Eisentrager discussed practical concerns, it did so in support of its holding that habeas did not apply to aliens abroad in any circumstances.  Because Justice Scalia did not read any of the Court's prior cases, nor the history of habeas, to apply where the Government was not exercising sovereign power, he dissented.