2008 June 12

“Boumediene v. Bush”: Habeas Corpus Extends to Foreign Nationals


Boumediene v. Bush, decided on this day, was one of four important Supreme Court decisions in which the Court rejected major arguments advanced by the administration of President George W. Bush in the war on terror. In this case, Lakhdar Boumediene, a citizen of Bosnia and Herzegovina, who was being held by the United States at Guantanamo Bay detention center as a terrorist suspect, filed a habeas corpus petition in a U.S. federal court challenging his detention. At issue was whether the right of habeas corpus extended to a foreign national held by the U.S. and also to a jurisdiction, Guantanamo Bay, that was formally a part of another country (Cuba, in this case).

By a 5–4 majority, the Court ruled that the privilege of habeas corpus did extend to Boumediene. The Court also ruled that Congressional suspension of that right in the 2005 Detainee Treatment Act was unconstitutional because it provided no reasonable alternative to allow a detainee the opportunity to contest his or her detention. The decision marked a historic reaffirmation of — and extension of — the historic writ of habeas corpus, one of the cornerstones of Anglo-American law.

The other three important Supreme Court decisions which rejected key part of the Bush administration’s war on terrorism were Hamdi v. Rumsfeld (June 28, 2004), in which the Court ruled that it was unconstitutional for the U.S. to hold Hamdi, an American citizen, indefinitely as an “enemy combatant” without granting him access to the federal courts to challenge his detention; Rasul v. Bush (June 28, 2004), in which the Court ruled that the federal courts did have jurisdiction over foreign nationals held at Guantanamo Bay; and Hamdan v. Rumsfeld (June 29, 2006), in which the Court ruled that the military commissions created by President George W. Bush to try enemy combatants being held at Guantanamo Bay were unconstitutional because they violated both the U.S. Uniform Code of Military Justice — and the four Geneva Conventions, specifically Common Article 3.

The four decisions stand in contrast to the Supreme Court’s posture during World War II with regard to the evacuation and internment of the Japanese-Americans. In both Hirabayashi v. United States (June 21, 1943, involving a curfew) and Korematsu v. United States (December 18, 1944, involving evacuation), the Court deferred to presidential wartime power. Only in Ex parte Endo (December 18, 1944) did the Court rule that the government could not detain people it conceded were loyal to the U.S.

The Court: “We do consider it uncontroversial … that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate he is being [unlawfully] held.” [35] The decision added: “The habeas court must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive’s power to detain.”

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