Boumidiene v. Bush, 553 U.S. 723 (2008)
Boumidiene v. Bush represents the most recent chapter in the Enemy Combatant saga. Boumidiene’s story began in 2005, when the D.C. District Court issued conflicting holdings in two cases concerning the habeas petitions of sixty three Guantanamo Bay detainees.[1] In the first set of cases, Judge Richard J. Leon found for the government, dismissing the claims for lack of subject matter jurisdiction.[2] In the latter set, Judge Joyce Hens Green found in part for the detainees, recognizing their due process claim.[3]
On appeal, the D.C. Circuit Court consolidated the cases into Boumidiene v. Bush.[4] As a threshold question, the circuit court first considered the detainees’ contention that the Military Commissions Act of 2006 (MCA) did not prohibit federal courts from hearing the pending habeas petitions of Guantanamo detainees.[5] The Circuit Court rejected this arguments, concluding that the MCA clearly prohibited all habeas claims.[6] The Court then moved to the detainees’ second claim that “the jurisdiction-stripping provisions of the MCA” violated the Suspension Clause of the U.S. Constitution.[7] Unmoved by the detainees’ arguments, the court held that the Constitution did not reach the Guantanamo prisoners and that the Suspension Clause was therefore moot.[8]
The Boumidiene petitioners appealed to the Supreme Court. After initially refusing to hear the case, the Supreme Court granted certiorari in June 2007.[9] At this time, the Supreme Court had never before ruled on the constitutional rights of “enemy combatants” detained at Guantanamo.[10]
Writing for the Court, Justice Kennedy reversed the portion of the lower court’s ruling concerning the scope of the Constitution. Overall, Justice Kennedy made four significant rulings regarding the rights of Guantanamo detainees.
First, Justice Kennedy held that the MCA had effectively overruled Hamdan v. Rumsfeld,[11] specifically identifying the Supreme Court’s (now overruled) holding that the DTA did not remove federal court subject matter jurisdiction over the pending habeas petitions of Guantanamo detainees.[12] Justice Kennedy supported this finding by highlighting the text of MCA §7 and the litigation history that had prompted Congress to pass the MCA.[13] He acknowledged that Congress had again returned to amend the language of the DTA with the specific intention of overruling Hamdan.[14] This evidence led to the lone conclusion that unlike the DTA, the MCA successfully amended the federal habeas statute to deny federal courts subject matter jurisdiction over the habeas petitions of all Guantanamo detainees, even those petitions pending on the date of the MCA’s enactment.[15] So long as the MCA was valid, the Court would be compelled to dismiss the petitioners’ case.[16]
Following this initial holding, Justice Kennedy turned to the detainees’ claim that the Suspension Clause of the U.S. Constitution protected their right to habeas corpus. On this issue Justice Kennedy reversed the Circuit Court, holding that the constitutional protections embedded in the Suspension Clause extended to noncitizen “enemy combatants” imprisoned at Guantanamo Bay.[17] Contrary to the government’s claim, neither the detainees’ designation as “enemy combatants” nor their presence on Guantanamo barred them from invoking these constitutional protections.[18] Thus, if Congress wished to repeal the petitioners’ right to habeas review, they would have to do so in accordance with the Suspension Clause.[19] Justice Kennedy did not hide from the historical nature of this ruling, remarking “that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution.”[20] Furthermore, Boumidiene marked the first time in which the Supreme Court rejected the “collaborative judgment of the political branches in connection with military operations.”[21]
The constitutionally problematic jurisdiction-stripping sections of the MCA did not in itself foreclose the viability of those provisions. Rather, the provisions would survive judicial scrutiny so long as the MCA provided “adequate substitute procedures for habeas corpus.”[22] With no direct precedent to guide the Court, Justice Kennedy concluded that Congress had not provided an adequate substitute for habeas review. The CSRT process and the review scheme that granted exclusive subject matter jurisdiction to the D.C. Court of Appeals was deemed an insufficient substitute.[23] Justice Kennedy thus held that the MCA § 7 was unconstitutional and could not bar the detainees’ habeas claims.
As one additional holding in support of detainees’ habeas rights, Justice Kennedy maintained that detainees need not exhaust the review procedures available through the DTA prior to bringing a habeas claim.[24] Specifically, detainees may file habeas petitions without first seeking a review of their CSRT determination in the D.C. Circuit Court.[25]
Justice Kennedy outlined the boundaries of the Court’s holding in the final paragraph of his opinion. In closing, he remarked that,
[o]ur decision today holds only that the petitioners before us are entitled to seek the writ [of habeas corpus]; that the DTA review procedures are an inadequate substitute for habeas corpus’ and that the petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with their habeas actions in District Court. The only law we identify as unconstitutional is MCA § 7 . . . Accordingly, both the DTA and the CSRT process remain intact.[26]
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[1] See Brian D. Fahy, Given an Inch, the Detainee Effort to Take a Mile: The Detainee Legislation and the Dangers of the “Litigation Weapon in Unrestrained Enemy Hands,” 36 Pepp. L. Rev. 129, 173 (2008).
[2] Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005), aff’d sub nom. Boumidiene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), rev’d, 128 S. Ct 2229 (2008).
[3] In Re Guantanamo Cases, 355 F. Supp. 2d 443 (D.D.C. 2005), rev’d sub nom. Boumidiene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), rev’d, 128 S. Ct 2229 (2008).
[4] Boumidiene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), rev’d, 128 S. Ct 2229 (2008).
[5] Id. at 986.
[6] Id. at 986-87.
[7] 476 f3d 981, at 986
[8] 476 f3d 981, at 987, 990-91
[9] Boumidiene v. Bush, 127 S. Ct. 3078 (cert. granted).
[10] Boumidiene v. Bush, 128 S. Ct. 2229, 2240 (2008). The Supreme Court’s only previous constitutional holding in a case involving “enemy combatants” occurred in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), but concerned an American citizen being held on American soil.
[11] Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
[12] Boumidiene, 128 S. Ct. at 2242.
[13] Id. at 2243.
[14] Id.
[15] Id. at 2242-44.
[16] Id. at 2242.
[17] Id. at 2262.
[18] Id.
[19] Id.
[20] Id.
[21] Baher Azmy, Executive Detention, Boumediene, and the New Common Law of Habeas, 95 Iowa L. Rev. 445, 448 (2010)
[22] Boumidiene, 128 S. Ct. at 2262.
[23] Id. at 2265-74.
[24] Id. at 2272-75.
[25] Id. at 2275.
[26] Id.