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On the Suspension Clause and the Rights of Detainees: Boumediene, et al., v Bush by Barath Nagarajan May 15, 2015 – 5:54am

In the case of Boumediene , et al., v. Bush v. United States et al., 128 S.Ct 2229(2008), the Supreme Court was faced with a challenge to the jurisdiction of U.S. federal courts to review the detention of alien detainees at the naval yard in Guantanamo Bay.  Congress had attempted to remove the jurisdiction of any federal court to conduct habeas corpus review of non- American citizens captured and held from different parts of the world and determined to be “enemy combatants” by military tribunals; held outside U.S. sovereign territory( the government contended) and on Cuban soil.

The Suspension Clause of Article I sec. 9, clause two states,

“The privilege of the Writ of Habeas Corpus shall not suspended, unless in cases of Rebellion or when invasion of the public Safety may require it”.

Justice Kennedy wrote the opinion for the majority.

Petitioners were aliens designated as enemy combatants and detained at the naval station at Guantanamo Bay, Cuba.  Military tribunals referred to as Combatant Status Review Tribunals (CSRT’s) were established to determine whether Gitmo detainees were enemy combatants. The first legal actions regarding these prisoners began in February of 2002. The District Court ordered the cases dismissed for lack of jurisdiction since the naval station was outside the sovereign territories of the United States. In Rasul v. Bush, 542 U.S. 466(2004), Id. at 2241, the Court granted certiorari and reversed holding 28 U.S.C. 2241 extended statutory Habeas corpus to Guantanamo. The petitioner’s cases were consolidated and entertained in two separate proceedings. The District Court’s reached two different conclusions. One rejecting habeas corpus rights and the other holding that detainees had rights under the due process clause of the Fifth Amendment.

While petitioner’s appeals were pending Congress revoked habeas corpus review over foreign detainees and passed the Detainee Treatment Act (DTA) in 2005. In Hamdan v Rumsfeld,548 U.S. 557(2006), Id. at 2242, the Court held the provision of the DTA restricting Habeas Corpus jurisdiction did not apply to cases already pending when the DTA was enacted. In response Congress passed MCA, 10 U.S.C.A. sec. 948a et. Seg. (Supp 2007):

The statute triggering the dispute was the Detainee Treatment Act of 2005(DTA),119 Stat. 2739, that provides for the review of detainees status and section 7 of the Military Commissions Act of 2006(MCA), 28 U.S.C.A. sec.2241(e) which restricted the federal jurisdictional statute for Habeas Corpus appeals for foreign prisoners held at Guantanamo Bay, Cuba.

The DTA states:

Subsection (e) of § 1005 of the DTA amended 28 U.S.C. § 2241 to provide 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, Cuba.” 119 Stat. 2742. Section 1005 further provides that the Court of Appeals for the District of Columbia Circuit shall have “exclusive” jurisdiction to review decisions of the CSRTs. Ibid.

The Circuit Court of Appeals could only hear decisions made by the CSRTs, but did not have habeas corpus jurisdiction over foreign detainees.

The Court of Appeals’ ruling of the revised statute which restored the restrictions on Habeas Corpus jurisdiction was as follows:

The Court of Appeals concluded that MCA § 7 must be read to strip from it, and all federal courts, jurisdiction to consider petitioners’ habeas corpus applications, id., at 987; that petitioners are not entitled to the privilege of the writ or the protections of the Suspension Clause, id., at 990-991; and, as a result, that it was unnecessary to consider whether Congress provided an adequate and effective substitute for habeas corpus in the DTA.

476 F.3d 981 (C.A.D.C.2007)

This ruling was the subject of the Supreme Court’s ruling in Boumediene on which certiorari was granted.

The questions to be answered by the decision were: Did foreign prisoners (alien detainees) at Guantanamo Bay have the privilege of Habeas Corpus?  Were the procedures in the DTA sufficient to provide a substitute for Habeas Corpus? Did Congress have the authority given the circumstances existing at that time enacted in the MCA to remove jurisdiction of the federal court’s to hear or consider application for a writ of Habeas corpus on behalf of a foreign prisoner detained at Guantanamo Bay, Cuba?


Before we see what the Court’s answer to these questions were, we should first deal with two important arguments articulated by Justice Kennedy for the decision in these cases for Habeas Corpus review by the federal judiciary and defense of the constitutional interpretation of the Suspension Clause.

  1. Separation of Powers.
  2. The physical location of the detention facility

  The Framers considered the writ as a vital instrument for the protection of individual liberty and from “unlawful restraint” (Id. at 2245). When issued by a magistrate it requires the jailer to “produce the body” and can be issued to test the constitutionality of a detention. The suspension clause only allows the writ to be suspended in cases of Rebellion or Invasion when the Public Safety may require it.

The writ was considered a necessary, if not an indispensable, protection of the separation of powers.

In our own system the Suspension Clause is designed to protect against these cyclical abuses. The Clause protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ; to maintain the “delicate balance of governance” that is itself the surest safeguard of liberty. (Id. at 2247)

Not only is the Great Writ indispensable to individual Liberty, but it protects the judicial branch from encroachment on its prerogative to interpret the Constitution in keeping with fairness and tradition, and without undue bias. Plainly, affording Habeas Corpus review to Guantanamo Bay prisoners would not have furthered any domestic rebellion or the Invasion of the Public Safety. Instead it would have made certain that the system did not make mistakes resulting in indeterminate detentions, torture and mistreatment

(“The important fact to be observed in regard to the mode of procedure upon this [habeas] writ is that it is directed to, and served upon, not the person confined, but his jailer”). The separation-of-powers doctrine, and the history that influenced its design, therefore must inform the reach and purpose of the Suspension Clause. (Id. at 2247).

Never more uncertain are people’s freedoms and the protection against tyranny and perfidy of malevolent rulers than during a time of national crisis. As Edmund Burke might have noted the nation is based not just on necessity, but on the rule of law, the ideals we were founded under, and the traditions and conscience of our people. Never is it more tempting to throw out the fundamental character of the principles of a free nation than when crisis hits unexpectedly. To protect against arbitrary arrest and detention and the cruelty that awaits one who sits at the mercy of his captors habeas Corpus stands as an indispensable protection and it is the Independent judiciary whose role it is to protect the people from the government.

This history was known to the Framers. It no doubt confirmed their view that pendular swings to and away from individual liberty were endemic to undivided, uncontrolled power. The Framers’ inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches… (Id. at.2247).


The jurisdiction issue presented the Court with the problem that no other Court, and no other laws, but the laws of the United States applied to the Naval station. Under the terms of the 1934 Treaty Cuba has no rights as sovereign over Guantanamo Bay Navy Base. The question revolves around the degree of control the United States asserts over the military base on foreign territory. (Id. at 2252). Cuba retains “ultimate sovereignty” while the United States exercises “complete jurisdiction and control”. Sovereignty “implies a state’s lawful control over its territory, generally to the exclusion of other states, authority to govern in that territory, and authority to apply law there” (Id. at 2252).

  In short the United States maintains de facto control over the Guantanamo Base rather than de jure sovereignty. Because the U.S. maintains indefinite de facto sovereignty over the naval facility the U.S. courts have jurisdiction over it. To evidence the fact that the U.S. has de facto control for an indefinite time period the U.S. Government has maintained “uninterrupted control over the Bay for 100 years” (id. at 2259). If Courts of the United States did not entertain jurisdiction over the Base the political branches could, “govern without restraint” (Id. at 2259).

Habeas Corpus and the DTA:

In the present cases though the petitioners are not American citizens and were captured from places all over the world, they deny that they were enemy combatants. The procedural protections of the rights of the detainees by the CSRT fall well below the procedures and adversarial “mechanisms” that would eliminate the need for habeas corpus review. (Id. at 2259).

The Government presents no credible argument that the military endeavor at the Guantanamo Bay would be compromised if Habeas Corpus courts had jurisdiction over the prisoners’ claims. In these cases detention was by Executive order thus the need for collateral review is most pressing No reasonable substitute for Habeas Corpus was instituted and there is no indication of what an adequate substitute would be. Thus there is a judicial necessity to review both the cause for detention and the Executives power to detain. (Id. at 2269).

There are many procedural shortcomings in the form of fact-finding of the military tribunals under the DTA. A list would include that the CSRTs deny the prisoners the ability to effectively rebut the government’s assertion that he is an enemy combatant. He does not have the right to assistance of counsel at this stage and limited means to challenge the government’s case against him. He may not know many of the critical allegations against him used for his detention. There are no limits to hearsay evidence admitted against him and a presumption in the trustworthiness of the government’s evidence. No magistrate has the power to release a detainee under the DTA nor is there the ability for the defendant to present exculpatory evidence not made part of the record in earlier proceedings. The DTA does not allow the Court of Appeals to consider new exculpatory evidence. The DTA is an inadequate substitute for Habeas Corpus review.

Decision: The alien detainees at Guantanamo Bay did have the right of Habeas Corpus review beginning with review by federal District Courts. The procedures in the DTA were not sufficient as a substitute for Habeas Corpus. Section 7 of the MCA was declared unconstitutional in relation to amendment of the habeas corpus jurisdiction statute 28 U.S.C. 2241(e.)(Supp. 2007) since it did not give federal courts an opportunity to review the detentions, and the DTA did not provide a suitable alternative to Habeas Corpus. The DTA and CSRT remained intact, but the denial of Habeas Corpus was struck down.

Legal Doctrine:

  For the first time he Court held that non-citizens detained by the United States Government in which another country has de jure control, but the U.S. Government has an absolute de facto control over the territory, have rights under the constitution. The Court held Petitioners were due the privilege of Habeas Corpus to challenge the constitutionality of their detentions.


  In the back and forth struggle between the Supreme Court and the popular branches of government we can see the Court trying to maintain the tradition of protection of fundamental fairness and the rule of law. Congress attempted to override the Supreme Court’s rulings, and to remove  jurisdiction of federal courts to hear cases involving foreign detainees at Guantanamo Bay, or grant Habeas Corpus, endangering the separation of powers.

When all other rights are infringed upon, issuance of writs of Habeas Corpus act as the last defense of all other rights and liberties, and along with judicial review is the judiciary’s most powerful tool for the protection of the role of an independent judiciary; to protect liberty, to prevent the aggrandizement of the other branches of government, to adjust the powers of the other branches accordingly, and prevent the weakening of the judicial function to interpret the Constitution. The Court exercises its power to decide when the other branches; executive and/or legislative, have over stepped their constitutional limitations. It was the design of the Framers of our Constitution to create a government of limited powers and to insure the protection of fundamental rights through a constitutional design of separation of powers and checks and balances. If the Court were to allow suspension of its jurisdiction to hear cases brought under appeal and issue writs of habeas corpus it would be an abdication of one of its most important constitutional powers.

 A national crisis can set about the ultimate desire for victory at all costs. In the long run one must question if throwing out moral and legal traditions founded in the history and conscience of our people, that protect the interests of liberty and fair proceedings, as well as prohibiting unwarranted imprisonment for indefinite periods is in the nations long term best interests. At least for now, the Court has provided some protection for detainees who otherwise would have no laws or civil courts of jurisdiction to hear their appeals. The prisoner would have no protections against his jailers; and no protection against wrongful detention and accusation, torture and no way of being released.

 I conclude the Court decided this case according to the best traditions American history and of justice and fairness under the rule of law.

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