553 U.S. 723 (2008), 06-1195, Boumediene v. Bush

Docket Nº:06-1195, 06-1196.
Citation:553 U.S. 723, 128 S.Ct. 2229
Opinion Judge:Kennedy, Justice.
Party Name:Lakhdar BOUMEDIENE, et al., Petitioners, v. George W. BUSH, President of The United States, et al. v. Khaled A.F. Al Odah, next friend of Fawzi Khalid Abdullah Fahad Al Odah, et al., Petitioners, v. United States et al.
Attorney:Seth P. Waxman argued the cause for petitioners in both cases. With him on the briefs for petitioner Lakhdar Boumediene et al. in No. 06-1195 were Paul R. Q. Wolf son, Jonathan G. Cedarbaum, Douglas F. Curtis, Paul M. Winke, Stephen H. Oleskey, Robert C. Kirsch, Mark C. Fleming, and Pratik A. Sha...
Judge Panel:Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, GnsrSBUEG, and Bbeyee, JJ., joined. Souter, J., filed a concurring opinion, in which Ginsburg and Breyer, JJ., joined, post, p. 798. Roberts, C. J., filed a dissenting opinion, in which Scalia, Thomas, and Altto, JJ., join...
Case Date:June 12, 2008
Court:United States Supreme Court

Page 723

553 U.S. 723 (2008)

128 S.Ct. 2229

Lakhdar BOUMEDIENE, et al., Petitioners,


George W. BUSH, President of The United States, et al.

Khaled A.F. Al Odah, next friend of Fawzi Khalid Abdullah Fahad Al Odah, et al., Petitioners,


United States et al.

Nos. 06-1195, 06-1196.

United States Supreme Court

June 12, 2008 [*]

Argued December 5, 2007.


[128 S.Ct. 2233] Syllabus [*]

In the Authorization for Use of Military Force (AUMF), Congress empowered the President "to use all necessary and appropriate force against those ... he determines planned, authorized, committed, or aided the terrorist attacks ... on September 11, 2001." In Hamdi v. Rumsfeld, 542 U.S. 507, 518, 588-589, 124 S.Ct. 2633, 159 L.Ed.2d 578, five Justices recognized that detaining individuals captured while fighting against the United States in Afghanistan for the duration of that conflict was a fundamental and accepted incident to war. Thereafter, the Defense Department established Combatant Status Review Tribunals (CSRTs) to determine whether individuals detained at the U.S. Naval Station at Guantanamo Bay, Cuba, were "enemy combatants."

Petitioners are aliens detained at Guantanamo after being captured in Afghanistan or elsewhere abroad and designated enemy combatants by CSRTs. Denying membership in the al Qaeda terrorist network that carried out the September 11 attacks and the Taliban regime that supported al Qaeda, each petitioner sought a writ of habeas corpus in the District Court, which ordered the cases dismissed for lack of jurisdiction because Guantanamo is outside sovereign U.S. territory. The D. C. Circuit affirmed, but this Court reversed, holding [128 S.Ct. 2234] that 28 U.S.C. §2241 extended statutory habeas jurisdiction to Guantanamo. See Rasul v. Bush, 542 U.S. 466, 473, 124 S.Ct. 2686, 159 L.Ed.2d 548. Petitioners' cases were then consolidated into two proceedings. In the first, the District Judge granted the Government's motion to dismiss, holding that the detainees had no rights that could be vindicated in a habeas action. In the second, the judge held that the detainees had due process rights.

While appeals were pending, Congress passed the Detainee Treatment Act of 2005(DTA), §1005(e) of which amended 28 U.S.C. §2241 to provide that "no court, justice, or judge shall have jurisdiction to . . . consider ... an application for . . . habeas corpus filed by or on behalf of an alien detained ... at Guantanamo," and gave the D. C. Circuit "exclusive" jurisdiction to review CSRT decisions. In Hamdan v. Rumsfeld, 548 U.S. 557, 576-577, 126 S.Ct. 2749, 165 L.Ed.2d 723, the Court held this provision inapplicable to

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cases (like petitioners') pending when the DTA was enacted. Congress responded with the Military Commissions Act of 2006 (MCA), §7(a) of which amended §2241 (e)(1) to deny jurisdiction with respect to habeas actions by detained aliens determined to be enemy combatants, while §2241(e)(2) denies jurisdiction as to "any other action against the United States . . . relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of a detained alien determined to be an enemy combatant. MCA §7(b) provides that the 2241(e) amendments "shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after [that] date . . . which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained . . . since September 11, 2001."

The D. C. Circuit concluded that MCA §7 must be read to strip from it, and all federal courts, jurisdiction to consider petitioners' habeas applications; that petitioners are not entitled to habeas or the protections of the Suspension Clause, U.S. Const., Art. I, §9, cl. 2, which provides that "[t]he 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"; and that it was therefore unnecessary to consider whether the DTA provided an adequate and effective substitute for habeas.


1. MCA §7 denies the federal courts jurisdiction to hear habeas actions, like the instant cases, that were pending at the time of its enactment. Section §7(b)'s effective date provision undoubtedly applies to habeas actions, which, by definition, "relate to . . . detention" within that section's meaning. Petitioners argue to no avail that §7(b) does not apply to a §2241(e)(1) habeas action, but only to "any other action" under §2241(e)(2), because it largely repeats that section's language. The phrase "other action" in §2241(e)(2) cannot be understood without referring back to §2241(e)(1), which explicitly mentions the "writ of habeas corpus." Because the two paragraphs' structure implies that habeas is a type of action "relating to any aspect of . . . detention," etc., pending habeas actions are in the category of cases subject to the statute's jurisdictional bar. This is confirmed by the MCA's legislative history. Thus, if MCA §7 is valid, petitioners' cases must be dismissed. Pp. 736-739.

2. Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension Clause's protections because they have been designated as enemy [128 S.Ct. 2235] combatants or because of their presence at Guantanamo. Pp. 739-771.

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(a) A brief account of the writ's history and origins shows that protection for the habeas privilege was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights; in the system the Framers conceived, the writ has a centrality that must inform proper interpretation of the Suspension Clause. That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken in the Suspension Clause to specify the limited grounds for its suspension: The writ may be suspended only when public safety requires it in times of rebellion or invasion. The Clause is designed to protect against cyclical abuses of the writ by the Executive and Legislative Branches. It protects detainee rights by a means consistent with the Constitution's essential design, ensuring that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the "delicate balance of governance." Hamdi, supra, at 536, 124 S.Ct. 2633. Separation-of-powers principles, and the history that influenced their design, inform the Clause's reach and purpose. Pp. 739-746.

(b) A diligent search of founding-era precedents and legal commentaries reveals no certain conclusions. None of the cases the parties cite reveal whether a common-law court would have granted, or refused to hear for lack of jurisdiction, a habeas petition by a prisoner deemed an enemy combatant, under a standard like the Defense Department's in these cases, and when held in a territory, like Guantanamo, over which the Government has total military and civil control. The evidence as to the writ's geographic scope at common law is informative, but, again, not dispositive. Petitioners argue that the site of their detention is analogous to two territories outside England to which the common-law writ ran, the exempt jurisdictions and India, but critical differences between these places and Guantanamo render these claims unpersuasive. The Government argues that Guantanamo is more closely analogous to Scotland and Hanover, where the writ did not run, but it is unclear whether the common-law courts lacked the power to issue the writ there, or whether they refrained from doing so for prudential reasons. The parties' arguments that the very lack of a precedent on point supports their respective positions are premised upon the doubtful assumptions that the historical record is complete and that the common law, if properly understood, yields a definite answer to the questions before the Court. Pp. 746-752.

(c) The Suspension Clause has full effect at Guantanamo. The Government's argument that the Clause affords petitioners no rights because the United States does not claim sovereignty over the naval station is rejected. Pp. 753-771.

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(i) The Court does not question the Government's position that Cuba maintains sovereignty, in the legal and technical sense, over Guantanamo, but it does not accept the Government's premise that de jure sovereignty is the touchstone of habeas jurisdiction. Common-law habeas' history provides scant support for this proposition, and it is inconsistent with the Court's precedents and contrary to fundamental separation-of-powers principles. Pp. 753-755.

(ii) Discussions of the Constitution's extraterritorial application in cases involving provisions other than the Suspension Clause undermine the Government's argument. Fundamental questions regarding the Constitution's geographic scope first arose when the Nation acquired Hawaii and the noncontiguous Territories ceded [128 S.Ct. 2236] by Spain after the Spanish-American War, and Congress discontinued its prior practice of extending constitutional rights to territories by statute. In the so-called Insular Cases, the Court held that the Constitution had independent force in the territories that was not contingent upon acts of legislative grace. See, e.g., Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128. Yet because of the difficulties and disruption inherent in transforming the former Spanish colonies' civil-law system into an Anglo-American system, the Court adopted the doctrine of territorial incorporation, under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories. ...

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