Boumediene v. Bush (2008)

Facts

The Court describes the petitioners as foreign nationals, “some were apprehended on the battlefield in Afghanistan, others in places as far away from there as Bosnia and Gambia.” Notably, the Court asserts that none is a citizen of a nation now at war with the United States. Boumediene v. Bush, 128 S.Ct. 2229, 2233, 2237 (2008).

The named plaintiff in the case, Lakhdar Boumediene, was 43 years old and a citizen of Algeria.  He was arrested at the end of 2001 while working for the Red Cross in Bosnia, along with 5 other Algerians in the area, and was accused of conspiring to attack the American embassy in Sarajevo.  He was determined innocent by Bosnian authorities, but the U.S. government proceeded to remove him and the other petitioners to Guantanamo Bay.

Procedural Background

In Hamdi v. Rumsfeld, the Court held that detaining individuals who fought against the United States in Afghanistan for the duration of the conflict in which they were captured, was so fundamental and an accepted incident to war as to be an exercise of the necessary and appropriate force Congress authorized the President to use. 

After Hamdi, which challenged the meaning of “enemy combatant” as applied to an American citizen, the Department of Defense established Combatant Status Review Tribunals (CSRTs) to determine whether individuals detained at Guantanamo were “enemy combatants.”  These tribunals differ from the military commissions discussed in Hamdan, for they only deal with the question of enemy combatant status.  The military commissions, on the other hand, were designed to be the mechanism by which defendants are tried.  A later memo issued by the government articulated procedures to implement the CSRTs.  The Government maintains that these procedures comply with the due process requirements in Hamdi.

Each petitioner in this case appeared before a separate CSRT and was determined to be an enemy combatant.  As a result, in February 2002, they sought a writ of habeas corpus in the United States District Court for the District of Columbia.  The District Court ordered the cases dismissed for lack of jurisdiction holding that Guantanamo Bay was outside the sovereign territory of the United States.  Rasul v. Bush, 215 F. Supp. 2d 55, 57 (D.D.C. 2002).  The Court of Appeals for the District of Columbia affirmed.  Al Odah v. United States, 321 F.3d 1134, 1145 (D.C. Cir. 2003).  The Supreme Court granted certiorari and reversed, holding that 28 U.S.C. §2241 extends habeas jurisdiction to Guantanamo Bay.  Rasul v. Bush, 542 U.S. 466, 484 (2004).

After Rasul, the petitioners’ cases were consolidated and entertained in two separate proceedings.  In the first set of proceedings, Judge Leon granted the Government’s motion to dismiss holding that the detainees had no rights that could be vindicated in a habeas corpus action.  In the second proceeding, Judge Green held that detainees had rights under the Due Process Clause.

While appeals were pending from the District Court, Congress passed the Detainee Treatment Act of 2005, Pub. L. No. 109-148, Sec. 1001-06, 119 Stat. 2680 (2005) (DTA), providing that “no court, justice, or judge shall have jurisdiction to hear or consider…an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay” and that the Court of Appeals for the District of Columbia shall have exclusive jurisdiction to review decisions of the CSRTs.  DTA § 1005(e).

In Hamdan v. Rumsfeld, the Court held that the DTA does not apply to cases that were pending when the statute was enacted.  Hamdan v. Rumsfeld, 546 U.S. 1166 (2006).  Congress responded by passing the Military Commissions Act of 2006 (MCA), maintaining the President’s authority to use military commissions to try unlawful enemy combatants.  10 U.S.C.A. Sec. 948a

Petitioners’ cases were consolidated on appeal, and the Court of Appeals held that MCA strips from all federal courts the jurisdiction to consider these petitioners’ habeas petitions; that the petitioners are not entitled to the privilege of the writ or the protections of the Suspension Clause; and that as a result it was unnecessary to consider whether Congress provided an adequate substitute for habeas corpus in the DTA. 

The Supreme Court granted certiorari.

Holdings

1.The Military Commissions Act denied federal courts jurisdiction to hear habeas corpus actions that were pending at the time of its enactment;

2.The Suspension Clause has full effect at Guantanamo Bay;

3.The aliens detained as enemy combatants at Guantanamo Bay are entitled to the privilege of habeas corpus to challenge the legality of their detention;

4.The provision of the MCA denying federal courts jurisdiction to hear habeas corpus actions that were pending at the time of its enactment effected unconstitutional the suspension of the writ of habeas corpus; and

5.Detainees were entitled to prompt habeas corpus hearing, and could not be required to first exhaust internal review procedures.

Case Summary

The opinions in Boumediene total over 70 pages.  Justice Kennedy authored the opinion of the Court, in which Justice Stevens, Justice Souter, Justice Ginsburg and Justice Breyer joined.  Justice Souter filed a concurring opinion, in which Justice Ginsburg and Justice Breyer joined.  Chief Justice Roberts filed a dissenting opinion in which Justice Scalia, Justice Thomas and Justice Alito joined.  Justice Scalia also filed a dissenting opinion, in which Chief Justice Roberts, Justice Thomas and Justice Alito joined.

Boumediene is considered the most important federal jurisdiction decision of the 2008 term, striking down section 7 of the Military Commissions Act of 2006.  It is also important with regard to the relationship between Congress and the courts.  Namely, the decision in Boumediene is the first in American history (with the possible and debated exception of Klein v. United States) to strike down a congressional statute that attempted to control federal jurisdiction.

Unlike the other Gitmo decisions, Boumediene does not start with the invocation of September 11, 2001.  Rather, the decision provides a recent history of the Guantanamo litigation and the congressional statutes passed in furtherance of the War on Terror.  Above all, the decision focuses on habeas corpus--extending through the long history of habeas corpus doctrine, particularly as it applies to non-citizens.

In the decision, the Court determines that there are three key factors in resolving the reach of the Suspension Clause: 1) the citizenship and status of the detainee and the adequacy of the process through which that status determination is made; 2) the nature of the sites of apprehension and then detention; and 3) the practical obstacles inherent in resolving the prisoner’s entitlement to habeas corpus.  Boumediene, 128 S. Ct. at 2237.

Regarding the citizenship of the detainees, the Court makes clear that these individuals are all foreign nationals, not citizens of the United States, thereby maintaining a distinction between the rights afforded Americans and non-Americans in the courts.  Once again the Court finds relevant precedent in the Somerset case, which involved the habeas corpus rights of a runaway enslaved person in Great Britain.  See Rasul v. Bush, 215 F. Supp. 2d 55, 57 (D.D.C. 2002).  Unlike the other Gitmo decisions, this Court spends a significant amount of time attempting to resolve questions about the relationship of the Guantanamo territory to the United States.

First, the Court argues that it is not, in fact, improper for the courts to inquire into the degree of control the United States has over foreign territories.  This is one of the few times in American legal history where the courts explicitly articulate their role in American land acquisitions beyond the immediate and clear borders of the United States.  Much like the ambiguous status the Court affords Puerto Rico in Downes v. Bidwell, “foreign in a domestic sense”– here the Court constructs Guantanamo as similarly ambiguous, but more likely domestic in a foreign sense. See generally Amy Kaplan, The Anarchy of Empire in the Making of U.S. Culture (Harvard University Press 2002) (provides a discussion of Downes). 

“We accept the Government’s position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay.  As we did in Rasul, however, we take notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory.” Boumediene, 128 S. Ct. at 2252.

Later, the Court distinguishes between Landsberg Prison in Germany in the 1950s and the Guantanamo Bay of 2008, “the United States’ control over the prison in Germany was neither absolute nor indefinite… Guantanamo Bay, on the other hand, is no transient possession.  In every practical sense Guantanamo is not abroad, it is within the constant jurisdiction of the United States.”  Id. at 2260-61.  Thus, in the decision a necessary step to affording rights to individuals detained at Guantanamo Bay is the conceptual Americanization of the Guantanamo territory.

Where is Lakhdar Boumediene Now?

Lakhdar Boumediene was released in May 2009 and went to France where he was joined by his wife and two daughters.

Student Comment

Boumediene was imprisoned at Guantanamo for over 7 years and underwent torture during that time.  At one point in February 2003, he was interrogated for 16 days and 16 nights, “it began at midnight and lasted until 5 o’clock in the morning.  It stopped for a few hours and started again.After the third or fifth night, I was examined by a doctor of the army jailers who told them that everything was fine and that they could continue.”  At Guantanamo, Lakhdar Boumediene was only the 'number 10005,'Ennahor Online, May 26,2009, at http://www.ennaharonline.com/en/news/1299.html.

After 5 years at Guantanamo Bay without legal recourse, Boumediene went on a hunger strike, only to be force fed every day through a tube forcefully inserted into his nose.  In November 2008, only a few months after the instant Supreme Court decision came down, Boumediene became the first Guantanamo detainee to be acquitted in an American court, but he continued to be held in detention until May 2009. 

http://www.rfi.fr/actufr/articles/11...icle_81080.asp