The Federalist Society

Optional Login

Have an account?

Sign in

Email

Password


Forgot password?

Proceed as Guest

Continue

Boumediene v. Bush

Facts of the Case

Provided by Oyez

In 2002 Lakhdar Boumediene and five other Algerian natives were seized by Bosnian police when U.S. intelligence officers suspected their involvement in a plot to attack the U.S. embassy there. The U.S. government classified the men as enemy combatants in the war on terror and detained them at the Guantanamo Bay Naval Base, which is located on land that the U.S. leases from Cuba. Boumediene filed a petition for a writ of habeas corpus, alleging violations of the Constitution's Due Process Clause, various statutes and treaties, the common law, and international law. The District Court judge granted the government's motion to have all of the claims dismissed on the ground that Boumediene, as an alien detained at an overseas military base, had no right to a habeas petition. The U.S. Court of Appeals for the D.C. Circuit affirmed the dismissal but the Supreme Court reversed in Rasul v. Bush, which held that the habeas statute extends to non-citizen detainees at Guantanamo.

 

In 2006, Congress passed the Military Commissions Act of 2006 (MCA). The Act eliminates federal courts' jurisdiction to hear habeas applications from detainees who have been designated (according to procedures established in the Detainee Treatment Act of 2005) as enemy combatants. When the case was appealed to the D.C. Circuit for the second time, the detainees argued that the MCA did not apply to their petitions, and that if it did, it was unconstitutional under the Suspension Clause. The Suspension Clause reads: "The 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."

 

The D.C. Circuit ruled in favor of the government on both points. It cited language in the MCA applying the law to "all cases, without exception" that pertain to aspects of detention. One of the purposes of the MCA, according to the Circuit Court, was to overrule the Supreme Court's opinion in Hamdan v. Rumsfeld, which had allowed petitions like Boumediene's to go forward. The D.C. Circuit held that the Suspension Clause only protects the writ of habeas corpus as it existed in 1789, and that the writ would not have been understood in 1789 to apply to an overseas military base leased from a foreign government. Constitutional rights do not apply to aliens outside of the United States, the court held, and the leased military base in Cuba does not qualify as inside the geographic borders of the U.S. In a rare reversal, the Supreme Court granted certiorari after initially denying review three months earlier.

 

Questions

  1. Should the Military Commissions Act of 2006 be interpreted to strip federal courts of jurisdiction over habeas petitions filed by foreign citizens detained at the U.S. Naval Base at Guantanamo Bay, Cuba?

  2. If so, is the Military Commissions Act of 2006 a violation of the Suspension Clause of the Constitution?

  3. Are the detainees at Guantanamo Bay entitled to the protection of the Fifth Amendment right not to be deprived of liberty without due process of law and of the Geneva Conventions?

Conclusions

  1. A five-justice majority answered yes to each of these questions. The opinion, written by Justice Anthony Kennedy, stated that if the MCA is considered valid its legislative history requires that the detainees' cases be dismissed. However, the Court went on to state that because the procedures laid out in the Detainee Treatment Act are not adequate substitutes for the habeas writ, the MCA operates as an unconstitutional suspension of that writ. The detainees were not barred from seeking habeas or invoking the Suspension Clause merely because they had been designated as enemy combatants or held at Guantanamo Bay. The Court reversed the D.C. Circuit's ruling and found in favor of the detainees. Justice David H. Souter concurred in the judgment. Chief Justice John G. Roberts and Justice Antonin Scalia filed separate dissenting opinions.

Click to play: International & National Security Law: Justice Scalia’s Jurisprudence and National Security
Event Videos

International & National Security Law: Justice Scalia’s Jurisprudence and National Security

Bradford R. Clark, Elizabeth Goitein, Jerry E. Smith, Stephen I. Vladeck, Adam I. Klein

2016 National Lawyers Convention

This panel will consider Justice Scalia's legacy in national security law, revisiting his opinions in...

Countdown to the National Lawyers Convention: What's "Conservative" about the "Roberts" Court?
News

Countdown to the National Lawyers Convention: What's "Conservative" about the "Roberts" Court?

Michael Stokes Paulsen

Next week, I will participate in the Federalist Society’s National Lawyers Convention, in Washington, D.C.,...

Countdown to the National Lawyers Convention: What's "Conservative" about the "Roberts" Court?
News

Countdown to the National Lawyers Convention: What's "Conservative" about the "Roberts" Court?

Michael Stokes Paulsen

Next week, I will participate in the Federalist Society’s National Lawyers Convention, in Washington, D.C.,...

Engage Volume 11, Issue 3, December 2010
Federalist Society Review

Engage Volume 11, Issue 3, December 2010

The Journal of the Federalist Society Practice Groups

*Online-Only Issue* Special Edition: Templeton Debates Eminent Domain after Kelo Ilya Somin & Saul Levmore...

Engage Volume 11, Issue 3, December 2010
Federalist Society Review

Engage Volume 11, Issue 3, December 2010

The Journal of the Federalist Society Practice Groups

*Online-Only Issue* Special Edition: Templeton Debates Eminent Domain after Kelo Ilya Somin & Saul Levmore...

Bar Watch Bulletin August 9 & 10, 2008

Bar Watch Bulletin August 9 & 10, 2008

SCOTUS Review, American Press & War, the 14th Amendment, Human Rights, Climate Change, Women in Law, and Immigration

The American Bar Association's Annual Meeting will be taking place from August 7-12 in New...

Barwatch Bulletin February 13, 2008

Barwatch Bulletin February 13, 2008

House of Delegate Action

CENTER FOR HUMAN RIGHTS LUNCHEONThe Center for Human Rights' House of Delegates Luncheon featured Albert...

Engage Volume 8, Issue 3, June 2007
Federalist Society Review

Engage Volume 8, Issue 3, June 2007

ADMINISTRATIVE LAW & REGULATION Gasoline, Markets, and Regulators by Andrew Morriss CIVIL RIGHTS The Legal...

Engage Volume 8, Issue 3, June 2007
Federalist Society Review

Engage Volume 8, Issue 3, June 2007

ADMINISTRATIVE LAW & REGULATION Gasoline, Markets, and Regulators by Andrew Morriss CIVIL RIGHTS The Legal...

View more