Boumediene v. Bush (No. 06-1195)

Summary: The case of Boumediene v. Bush, argued before the Supreme Court on December 5, 2007, marked the third time since 2004 that the Court addressed the legal status of "enemy combatants" held at Guantánamo Bay, Cuba, and the question of whether such prisoners were protected under the Constitution. The case involved a group of Algerian natives seized in Bosnia as enemy combatants and transported to the American prison at Guantánamo. They had filed a writ of habeas corpus challenging the U.S. government to bring charges or set them free. Twice before, the Court ruled that such prisoners had at least some rights under the Constitution, including habeas corpus. Boumediene v. Bush specifically marked a challenge to the Military Commissions Act of 2006, in which Congress explicitly tried to bar federal courts from considering writs of habeas corpus in the cases of accused terrorist suspects. The Court ruled for the plaintiffs in June 2008, striking down the Military Commissions Act and saying that prisoners held at Guantánamo had a Constitutional right to challenge their detention in federal courts.

The legal rights under the Constitution of prisoners held by the United States as "enemy combatants" in the declared "war on terrorism" generated a string of legal challenges to the government's contention that these prisoners, many of whom were held at Guantánamo Bay, Cuba, did not have the same rights as people held prisoner inside the United States. One of these cases, Boumediene v. Bush (No. 06-1195), involved six men, all born in Algeria, who had been seized in Bosnia on suspicion of plotting to bomb the U.S. embassy in Sarajevo. The case was named after one of the prisoners, Lakhdar Boumediene.

On December 5, 2007, the Supreme Court once again heard arguments in the case, in which the government took the position that procedures established by Congress to determine whether or not these prisoners should be held were a sufficient substitute for the right of habeas corpus guaranteed under the Constitution. Lawyers for prisoners argued that repeated attempts by Congress to strip the prisoners—and by extension, federal courts-- of their right to file writs of habeas corpus (i.e. to demand a federal court review of their cases) violated basic constitutional guarantees. At issue were two pieces of legislation: the Detainee Treatment Act of 2005, which explicitly denied federal court jurisdiction over accused enemy combatants, and the Military Commissions Act of 2006 which established procedures for military hearings intended to be a substitute for a writ of habeas corpus.

Boumediene v. Bush attracted extraordinary international attention. Along with legal briefs from the government and attorneys representing prisoners at Guantánamo, more than two dozen amicus curiae briefs were filed by parties that included a group of 383 European members of parliament, the United Nations High Commissioner for Human Rights, and retired federal judges and military officers.

On June 12, 2008, the Supreme Court ruled 5-4 that the Military Commissions Act of 2006 violated the Constitution by failing to provide an adequate substitute for the right of habeas corpus. The practical effect of the ruling was to give accused enemy combatants the right to file petitions in civilian federal courts challenging their detention, thereby requiring the government to justify their continued detention by filing formal charges against them. At the time of the ruling about 200 such petitions had already been filed and put on hold pending the outcome of Boumediene. Some prisoners at Guantánamo had been held as long as six years without charges or formal legal proceedings. The Court rejected the government's argument that the procedures established under the Military Commissions Act of 2006 and the Detainee Treatment Act of 2005 provided sufficient substitutes for the right of habeas corpus.

At the same time the Court made a similar ruling in a related case involving two Americans held prisoner in Iraq, Shawqui Omar and Mohammad Munaf [Al-Odah v. the United States], ruling that those prisoners were subject to Iraqi law.

Facts of the Case

Lakhdar Boumediene is one of six Algerian-born citizens of Bosnia—described as social workers—arrested in October 2001 by local officials on suspicion of plotting to bomb the U.S. Embassy in Sarajevo. After a prolonged investigation by Bosnian authorities, Bosnian courts ordered them released for lack of evidence. Instead of freeing them, Bosnian police handed them over to the U.S. military, which flew the six to Guantánamo and held them as enemy combatants. There is no accusation against the defendants of having fought in Afghanistan or Iraq, or of having carried out any specific attacks against the United States.

The Boumediene case centered on whether designated "enemy combatants" held at Guantánamo have a right to challenge their detention in federal courts by filing for a writ of habeas corpus. Since the American invasion of Afghanistan in 2003 began yielding prisoners—accused of being either fighters for the Taliban or for Al Qaeda—the Bush administration preferred to keep dealing with such detainees outside the federal court system, and instead to rely on military procedures to determine their fate. The issue was addressed by the Supreme Court at least twice before Boumediene; both times the Court ruled that enemy combatants had at least some of the same Constitutional rights as prisoners held in U.S. territory and/or rights accorded prisoners of war under the Geneva Conventions.

More specifically, the issues in Boumediene were:

  • Did the Military Commissions Act (MCA) of 2006, which laid out procedures for prisoners to challenge their imprisonment in federal court, but under specific limitations (such as not challenging any evidence presented before military commissions)—violate the Constitutional clause regarding habeas corpus? Lawyers for prisoners argued that the Supreme Court had already ruled that Guantánamo was, for the purposes of this argument, American territory, and that Congress could not pass legislation that violated the Constitution. The administration argued that the MCA of 2006 had appropriately abridged the writ of habeas corpus in a time of special danger from terrorism.
  • Are "combatant status review tribunals" (CSRTs), established by the Pentagon in 2004, a sufficient substitute for writs of habeas corpus? The CSRTs were designed to review the status of prisoners and determine whether they are, in fact, enemy combatants. The MCA of 2006 entitled prisoners at Guantánamo to appeal adverse CSRT rulings to the federal Court of Appeals for the District of Columbia—while requiring that the court assume the evidence presented to the CSRT was legitimate. Each CSRT is comprised of three "neutral commissioned officers" who were not involved in apprehending or interrogating the accused enemy combatants. Detainees are allowed a "personal representative" appointed by the military—but not an attorney and specifically not a defense attorney—and the right to review unclassified (but not classified) evidence against them. The rules of evidence are significantly relaxed compared to normal court procedures; for example, hearsay is admissible, as well as evidence gained by extraordinary interrogation techniques described by critics as "torture."
  • Does the Constitution apply to non-citizens held at Guantánamo? This issue particularly focused on an earlier finding of the Supreme Court (Rasul v. Bush, 2004; see below) that for all intents and purposes the United States holds complete control of the Guantánamo prison, and that for purposes of the law the base falls under the definition of U.S. territory, even if the 1903 lease of the base said that Cuba maintained sovereignty.

Arguments

During oral arguments on December 5, 2007, the justices appeared to regard the issue of whether the Constitution applies to prisoners held at Guantánamo as already having been determined by Rasul v. Bush, despite the fact that the Military Commissions Act of 2006 was specifically meant to strip federal courts of jurisdiction. Arguing for the government, Solicitor General Paul Clement told the Court that the combination of the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 gave detainees even better access to judicial review than the Constitution. However, in answer to questioning from the justices he conceded that the "personal representatives" afforded defendants were not attorneys, were appointed by the military (in effect, by the prosecution), and were under orders to report back any useful intelligence obtained while acting as a personal representative of a defendant. After asking whether the personal representatives were required to report useful intelligence, Justice David Souter observed that such "representatives" are "not in a position of counsel, as we understand the term."

Former U.S. Solicitor General Seth Waxman, arguing for the plaintiffs in Boumediene, said that restrictions placed on CSRTs made the tribunals inadequate substitutes for a court review of habeas corpus.

The Ruling

Writing for the majority Justice Anthony Kennedy, joined by Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens, rejected the argument that the war on terror justified suspending habeas corpus, saying: "The laws and Constitution are designed to survive, and remain in force, in extraordinary times." Kennedy in effect declared that prisoners held at Guantánamo had the same rights as any American citizen to have their cases heard by a judge. Kennedy said alternative procedure provided by the MCA of 2006 "falls short of being a constitutionally adequate substitute" by failing to offer "the fundamental procedural protections of habeas corpus."

Some lawyers representing enemy combatants said the ruling in Boumediene was unlikely to result in the rapid release of any prisoners. For one thing, the ruling did not address the issue of whether classified evidence must be revealed to defense attorneys. President George Bush expressed unhappiness with the ruling, as did Attorney General Michael Mukasey, who said that scheduled military trials of 19 accused terrorists, including the alleged planner of 9/11, Khalid Sheikh Mohammed, would proceed as planned.

Afterwards

In May 2009 Lakhdar Boumediene was flown from Guantanamo, where he had been held prisoner for seven years, to Paris, where he underwent 10 days of observation and treatment in an army clinic prior to being set free. Boumediene's release had been delayed because no country was willing to admit him until France did so at the request of the administration of President Barack Obama. In an interview with the New York Times after his release Boumediene insisted that he had been simply a worker for the Red Crescent aid organization when he was arrested by Bosnian authorities as a suspect in a plot to bomb the U.S. embassy and then set free before he was again seized, by the United States, and taken to Guantanamo. He said his arrest was the result of a series of coincidences, including an acquaintance with another Algerian suspected of ties to Al Qaeda in Bosnia, a trip to Pakistan on behalf of the Red Crescent, and his acceptance of an "amnesty" by the president of Algeria. The amnesty related to his name having been on an Algerian "watch list" as a result of his having renewed his passport while in Islamabad. When he returned on a family visit to Algeria, his passport was confiscated by authorities who were curious about his time spent in Pakistan, where other Algerians had gone to join Al Qaeda. The amnesty was simply a convenience to retrieve his passport, he told The Times, not an admission of terrorist activities. Boumediene insisted he was simply a worker for Red Crescent and had never had any ties to Islamist extremists in Pakistan or elsewhere.

Relevant precedents

Rasul v. Bush (2004): Supreme Court ruled that despite formalities of the 1903 lease on Guantánamo (which stated that Cuba retained sovereignty over Guantánamo, even though the lease was ad infinitum), in practice the United States asserted sufficient control to constitute sovereignty, and therefore the Constitution applied to government activities on the base, including the right to file a writ of habeas corpus. (The Bush administration argued that the Constitution did not apply to non-citizens arrested and held outside the United States—which arguably had been the rationale for using Guantánamo to hold enemy combatants in the first place.) The Court ruled that habeas corpus rights extend to "all … dominions under the sovereign's control," and does not depend on the citizenship status of the filer. After the Court's ruling, Congress passed the Detainee Treatment Act of 2005 which explicitly stated that no U.S. court has jurisdiction over habeas petitions filed by Guantánamo detainees.

Hamdi v. Rumsfeld (2004): Supreme Court ruled that an American citizen captured in Afghanistan was entitled to file a writ of habeas corpus. The administration had argued that because he was captured in a combat zone (Afghanistan), Hamdi's detention fell under the Authorization for Use of Military Force (in Afghanistan), which gave President Bush, acting as commander-in-chief, the right to detain combatants.

Rumsfeld v. Padilla (2004). Jose Padilla, a U.S. citizen arrested in the airport in Chicago upon his return to the U.S. from a prolonged visit to the Middle East, was accused of being an "enemy combatant" who had conspired with Al Qaeda to launch a new terrorist attack. He was held in a Navy brig for 3-1/2 years without charges, until the Supreme Court ruled he had a right to a writ of habeas corpus, whereupon the administration immediately dropped the "enemy combatant" designation and charged him in Florida on other conspiracy charges; he was convicted in 2007.

Hamdan v. Rumsfeld (June 2006). Supreme Court ruled 5-3 (Chief Justice John Roberts recused himself) that special military tribunals established by President George W. Bush to try suspected members of Al Qaeda were not legally constituted since they had not been specifically authorized by Congress; that accused enemy combatants, i.e. accused members of Al Qaeda or the Taliban, were entitled to protection under the Geneva Conventions (contrary to the Bush administration's position that had argued that since the detainees in question were not members of a nation's military force, they did not fall under the jurisdiction of a treaty covering prisoners of war); and that conspiracy is not a violation of the law of war and therefore could not be the basis for a trial before a military panel. In direct response to this ruling Congress passed the Military Commissions Act of 2006 which authorized a new set of procedures for determining whether Guantánamo prisoners were properly held. The law stated that any non-U.S. citizen seized anywhere—including inside the United States—and charged with being an enemy combatant would be denied the right to petition for habeas corpus. The term "enemy combatant" was redefined to include not only people who took up arms, but also people who provided financial support to terrorists.

Relevant Background Information Summaries

"Hamdan v. Rumsfeld." Background Information Summaries. http://search.ebscohost.com/login.aspx?direct=true&db=tsh&AN=21595506&site=isc-live

"Interrogation and Torture." Background Information Summaries. http://search.ebscohost.com/login.aspx?direct=true&db=tsh&AN=26249481&site=isc-live

Habeas Corpus and Terrorism. Background Information Summaries. http://search.ebscohost.com/login.aspx?direct=true&db=tsh&AN=27753272&site=isc-live

Military Commissions Act of 2006. Background Information Summaries. http://search.ebscohost.com/login.aspx?direct=true&db=tsh&AN=27901983&site=isc-live

Other

Bush, George W. "Statement on Senate Action on the "Military Commissions Act of 2006." Weekly Compilation of Presidential Documents. 42:39 (October 2, 2006) 1/4p. http://search.ebscohost.com/login.aspx?direct=true&db=tsh&AN=22927349&site=isc-live

Elsea, Jennifer K. "The Military Commissions Act of 2006: Analysis of Procedural Rules and Comparison with Previous DOD Rules and the Uniform Code of Military Justice: RL33688." Congressional Research Service: Report. (September 27, 2007) 70p. http://search.ebscohost.com/login.aspx?direct=true&db=tsh&AN=27002177&site=isc-live

Elsea, Jennifer K. "Treatment of "Battlefield Detainees" in the War on Terrorism: RL31367." Congressional Research Service Report. (January 23, 2007) 59p. http://search.ebscohost.com/login.aspx?direct=true&db=tsh&AN=25233473&site=isc-live

Elsea, Jennifer K. and Kenneth R. Thomas. "Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court: RL33180." Congressional Research Service: Report. July 25, 2007. 47p. http://search.ebscohost.com/login.aspx?direct=true&db=tsh&AN=26314151&site=isc-live

Erlanger, Steven. "Ex-Detainee Describes His 7 Years at Guantánamo." New York Times. May 26, 2009. Online at http://www.nytimes.com/2009/05/27/world/europe/27paris.html?scp=1&sq=boumediene&st=cse

Osborn, Meredith B. "Rasul v. Bush: Federal Courts Have Jurisdiction over Habeas Challenges and Other Claims Brought by Guantánamo Detainees." Harvard Civil Rights-Civil Liberties Law Review. 40:1 (Winter 2005) 12p. http://search.ebscohost.com/login.aspx?direct=true&db=tsh&AN=16772366&site=isc-live

Perkins, Jared. "Habeas Corpus in the War Against Terrorism: Hamdi v. Rumsfeld and Citizen Enemy Combatants." BYU Journal of Public Law. 19:2 (2005) 35p. http://search.ebscohost.com/login.aspx?direct=true&db=tsh&AN=19861308&site=isc-live

Pfiffner, James P. "The Contemporary Presidency Constraining Executive Power: George W. Bush and the Constitution." Presidential Studies Quarterly 38:1 (March 2008) 21p. http://search.ebscohost.com/login.aspx?direct=true&db=tsh&AN=28599418&site=isc-live

Toobin, Jeffrey. "Killing Habeas Corpus." New Yorker. 82:40 (December 4, 2006) 7p. http://search.ebscohost.com/login.aspx?direct=true&db=tsh&AN=23349295&site=isc-live

Youngner, Larry D., Patrick Keane, and Andrew McKendrick. "The Influence of International Law on the Military Commissions Act 2006: The Glass Half Full or Half Empty? " Army Lawyer Issue 410 (July 2007) 7p. http://search.ebscohost.com/login.aspx?direct=true&db=tsh&AN=27130213&site=isc-live