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Law School Case Brief

Boumediene v. Bush - 553 U.S. 723, 128 S. Ct. 2229 (2008)


The Detainee Treatment Act, § 1005(e), 109 Pub. L. No. 148, 119 Stat. 2680, 2742, amended 28 U.S.C.S. § 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 United States Department of Defense at Guantanamo Bay, Cuba. Section 1005 further provides that the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to review decisions of the Combatant Status Review Tribunals.


Petitioners are aliens detained at Guantanamo Bay after being captured in Afghanistan or elsewhere abroad and designated enemy combatants by a Combatant Status Review Tribunal (CSRT). Denying membership in the al Qaeda terrorist network that carried out the September 11 attacks and the Taliban regime that supported al Qaeda, each petitioner sought a writ of habeas corpus in the District Court, which ordered the cases dismissed for lack of jurisdiction because Guantanamo is outside sovereign U. S. territory. The D. C. Circuit affirmed. On further review, the Supreme Court reversed, holding that 28 U.S.C. § 2241 extended statutory habeas jurisdiction to Guantanamo. While appeals were pending, Congress passed the Detainee Treatment Act of 2005 (DTA), § 1005(e) of which amended 28 U.S.C. § 2241 to provide that "no court, justice, or judge shall have jurisdiction to consider an application for habeas corpus filed by or on behalf of an alien detained at Guantanamo," and gave the D. C. Court of Appeals "exclusive" jurisdiction to review CSRT decisions. Congress responded with the Military Commissions Act of 2006 (MCA), § 7(a) of which amended § 2241(e)(1) to deny jurisdiction with respect to habeas actions by detained aliens determined to be enemy combatants, while § 2241(e)(2) denies jurisdiction as to "any other action against the United States relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of a detained alien determined to be an enemy combatant. The D. C. Court of Appeals concluded that MCA § 7 must be read to strip from it, and all federal courts, jurisdiction to consider petitioners' habeas applications; that petitioners are not entitled to habeas or the protections of the Suspension Clause, U.S. Const., Art. I, § 9, cl. 2, which provides that "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"; and that it was therefore unnecessary to consider whether the DTA provided an adequate and effective substitute for habeas.


In light of the statutes passed by Congress, do the petitioners, aliens detained at Guantanamo, have the constitutional privilege of habeas corpus?




The Court held that petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension Clause's protections because they have been designated as enemy combatants or because of their presence at Guantanamo. According to the Court,  a brief account of the writ's history and origins shows that protection for the habeas privilege was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights; in the system the Framers conceived, the writ has a centrality that must inform proper interpretation of the Suspension Clause. That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken in the Suspension Clause to specify the limited grounds for its suspension: The writ may be suspended only when public safety requires it in times of rebellion or invasion. The Clause is designed to protect against cyclical abuses of the writ by the Executive and Legislative Branches. It protects detainee rights by a means consistent with the Constitution's essential design, ensuring that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the "delicate balance of governance.”

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