BOUMEDIENE V. BUSH

Boumediene v. Bush

Boumediene v. Bush

Issues

In Boumediene v. Bush, decided June 12, 2008, the U.S. Supreme Court held by a 5-4 vote that noncitizens detained by the U.S. military at Guantanamo Bay may invoke the U.S. Constitution's Suspension Clause2 and that the Military Commissions Act of 20063 violates that clause by replacing federal habeas corpus jurisdiction with a more limited mechanism for judicial review of "enemy combatant" status determinations. As a result, the approximately 255 individuals who remain in military custody at Guantanamo may pursue habeas corpus relief in U.S. federal courts.

Boumediene addressed the aftermath of a series of judicial decisions, legislative enactments, and policy developments relating to military detention at Guantanamo. In 2004, the Supreme Court had held in Rasul v. Bush that the federal habeas corpus statute authorized federal courts to entertain petitions from Guantanamo detainees.4 Faced with the prospect of judicial review of its detention decisions, the Department of Defense soon thereafter adopted the Combatant Status Review Tribunal (CSRT) system in an effort to place those decisions on firmer procedural grounds (Moss, 2009).

CSRTs aim to determine whether a given detainee constitutes an "enemy combatant," defined as a member or supporter of Al Qaeda, the Taliban, or any associated entity engaged in armed hostilities against the United States or its allies.5 CSRT rules permit the detainee to participate in the proceedings as a default matter, but the tribunal may exclude the detainee during the presentation of classified information. The detainee, in theory, may summon witnesses and offer other evidence, but only subject to the tribunal's determination that such persons or items are reasonably available. The detainee may not have the assistance of counsel. Though CSRT proceedings have, in fact, resulted in the release of a number of detainees, the majority of CSRTs have affirmed the detainees' categorization as enemy combatants.

Rule

In the government's reading Eisentrager mandated a formalist approach to the extra territoriality question in which citizenship and location would be dispositive. The opinion in that case had, after all, made much of the fact that the detainees were not U.S. citizens and were at no point physically present within "territory over which the United States is sovereign." The majority in Boumediene rejected that interpretation, however, reasoning that Eisentrager placed greater emphasis on the impracticality of extending constitutional protections to a location where U.S. control "was neither absolute nor indefinite" and that U.S. forces "faced potential security threats from a defeated enemy" (Barker, 2010, 89).

Far from prioritizing formal categories, the Court concluded, Eisentrager instead required consideration of "(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ" (p. 2259).

As applied to Guantanamo, the majority argued, these factors favored application of the Suspension Clause. For example, whereas the detainees in Eisentrager had not disputed their status as ...