Rasul v. Bush, 542 U.S. 466 (2004)
In Rasul v. Bush, the Supreme Court ruled on the habeas petitions of two Australian and twelve Kuwaiti citizens who had been captured while fighting with the Taliban in Afghanistan.[1] During their imprisonment at the U.S. Naval base at Guantanamo Bay, the fourteen detainees filed habeas corpus petitions in the D.C. District Court challenging the legality of their detention.[2] The district court dismissed the petition for lack of subject matter jurisdiction, citing the World War II case Johnson v. Eisentrager.[3] The D.C. Court of Appeals affirmed.[4]
On the same day it issued its holdings in Hamdi and Padilla, the Supreme Court handed down a 6-3 decision in Rasul, finding for the petitioners. The Court, per Justice Stevens, held that the federal habeas corpus statute, 28 U.S.C. § 2241, permitted non-citizen “enemy combatant” detainees at Guantanamo to file habeas petitions.[5]
Under the federal habeas statute, “[w]rits of habeas corpus may be granted by the Supreme Court . . . the district courts and any circuit judge within their respective jurisdictions . . . [to any individual claiming to be] in custody in violation of the Constitution or laws or treaties of the United States.”[6] The government argued that because the petitioners were imprisoned at Guantanamo, a territory over which the United States does not exercise formal sovereignty, the statute did not extend federal courts jurisdiction over the detainees’ habeas petitions.[7] The Court discarded this argument, rejecting any applicability of the “extraterritorial doctrine” and concluding that the statute did grant jurisdiction to the federal courts because Guantanamo is “functionally” a part of U.S. territory.[8]
This holding necessitated that Justice Stevens distinguish Rasul from Johnson v. Eisentrager,[9] a 1950 World War II case in which the Supreme Court had held “that federal courts lacked constitutional habeas corpus jurisdiction over aliens who had been convicted of war crimes by a military commission overseas and incarcerated in Germany.”[10] Justice Stevens relied on two main points of distinction. First, unlike the Eisentrager petitioners, the fourteen detainees in Rasul were not nationals of countries at war with the United States, had denied committing acts of aggression against the United States, had never had the opportunity to be heard at trial and were being held in a territory over which the U.S. exercised complete control.[11] Second, the Eisentrager Court focused their reasoning on the petitioners right to habeas as protected by the United States Constitution, only making a cursory ruling on any statutes protecting such a right.[12]
In the end, Justice Stevens’ opinion made clear that the federal habeas statute permitted federal courts to hear the habeas petitions of non-citizen detainees at Guantanamo. The Court thus affirmed the statutory right of a non-citizen detainee imprisoned at Guantanamo to habeas review. It is unclear whether the ruling did anything more. The opinion remains ambiguous as to whether it “was limited to the arguably unique territorial status of Guantanamo . . . or . . . could extend to all locations where U.S. forces hold foreign prisoners.[13] Further, because the case did not decide the merits of a habeas petition, it left no guidance regarding the procedure that the statute requires.
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[1] 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, 157 (2008).
[2] Rasul v. Bush, 542 U.S. 462, 471 (2004).
[3] Id. at 472-73; Fahy, supra note 1, at 157-58.
[4] Rasul, 542 U.S. at 473.
[5] Id.; Robert J. Pushaw, Justifying Wartime Limits on Civil Rights and Liberties, 12 Chap. L. Rev. 675, 692 (2009); Fahy, supra note 1, at 158.
[6] 28 U.S.C. § 2241(a),(c)(3) (2000); Robert J. Pushaw, Creating Legal Rights for Suspected Terrorists: Is the Court Being Courageous or Politically Pragmatic? 84 Notre Dame L. Rev. 1975, 2005 (2009)
[7] Rasul, 542 U.S. at 480; Baher Azmy, Executive Detention, Boumediene, and the New Common Law of Habeas, 95 Iowa L. Rev. 445, 455 (2010).
[8] Rasul, 542 U.S. at 480-82; Azmy, supra note 7, at 455.
[9] Johnson v. Eisentrager, 339 U.S. 763.
[10] Rasul, 542 U.S. at 475-79; Robert J. Pushaw, The ‘Enemy Combatant’ Cases in Historical Context: The Inevitability of Pragmatic Judicial Review, 82 Notre Dame L. Rev. 1006, 1052 (2007).
[11] Rasul, 542 U.S. at 476; Pushaw, supra note 9, at 1052; Pushaw, supra note 6, at 2005.
[12] Rasul, 542 U.S. at 475-478; Pushaw, supra note 6, at 2005; Pushaw, supra note 9, at 1052.
[13] Azmy, supra note 7, at 455.