Supreme Court Holds that Noncitizens Detained at Guantanamo Have a Constitutional Right to Habeas Corpus Review by Federal Civilian Courts
On June 12, 2008, the Supreme Court ruled against the U.S. government in cases brought by foreign nationals challenging their detention at the Guantanamo Bay, Cuba military facility. A five-justice majority in Boumediene v. Bush held that the Military Commissions Act of 2006 (MCA) violated the U.S. constitutional right of the detainees to meaningful habeas corpus review by federal civilian judges. According to the Court, the Constitution prevents the government from barring detainees from rigorous habeas review and instead substituting military fact-finding followed only by a limited right of review in the U.S. Court of Appeals for the District of Columbia Circuit. Notably, the Supreme Court did not decide which specific habeas review procedures are required by the Constitution, but instead sent the cases back to the federal district court to litigate that and related issues. The four dissenting justices would have upheld the constitutionality of the MCA's withdrawal of habeas jurisdiction.
Beginning in early 2002, detainees captured during the post-9/11 conflict in Afghanistan and detainees taken into custody in other countries were sent by the U.S. to Guantanamo. They were held there in U.S. military custody under a November 2001 presidential order authorizing the Secretary of Defense to detain and try by military tribunals any person who was, among other things, "not a United States citizen" and found by the President to be a member of al Qaeda or someone who engaged in or plotted terrorism against the U.S.
Since 2002, dozens of Guantanamo detainees have filed habeas corpus petitions in federal courts denying that they are enemy combatants against the U.S. and challenging the legality of their detentions as violations of the Constitution, federal statutes and international law. The government moved to dismiss the cases, relying on Johnson v. Eisentrager (1950), a Supreme Court decision barring federal civilian courts from hearing habeas petitions filed by German citizen combatants convicted of war crimes and imprisoned overseas by the U.S. military in U.S.-occupied territory. The government asserted that the Guantanamo detainees, like the Eisentrager petitioners, were aliens and combatants imprisoned by the military overseas and that, under the terms of its lease from Cuba, Guantanamo "is in the sovereign territory of the Republic of Cuba," and the U.S. merely "uses and occupies" it.
The Supreme Court Rules for the Detainees in Rasul
In March 2003, the D.C. Circuit agreed with the government's reading of Eisentrager and the lease: the combination of their lack of presence in the U.S. and alienage barred their use of U.S. courts to challenge their detentions. But in Rasul v. Bush (2004), the Supreme Court reversed, albeit on narrow grounds, holding that U.S. courts have jurisdiction under a federal habeas statute to hear the detainees' lawsuits. "Considering that the [habeas] statute draws no distinction between Americans and aliens held in federal custody," the Court found "little reason to think that Congress intended the geographical coverage of the statute to vary depending on the detainee's citizenship." Constitutional questions about access to courts or substantive rights of aliens outside the sovereign territory of the United States were left for another day. (Rasul was thereafter released by the government, and the detainee Al Odah's name used to denominate those consolidated cases. The lawsuits of the Al Odah detainees and another group led by detainee Boumediene would be decided together, in February 2007, by the D.C. Circuit, under the name Boumediene v. Bush. This grouping of suits on behalf of 58 detainees would then be decided under the Boumediene name by the Supreme Court in June 2008.)
In 2004, at the same time as Rasul, the Supreme Court decided in Hamdi v. Rumsfeld that a U.S. citizen in military custody inside the U.S. had a constitutional right under the Due Process Clause to "receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker." Though this holding did not by its terms apply to the noncitizens at Guantanamo, it did suggest that the Court was skeptical of the military detention process and willing, at least in some circumstances, to use the Constitution to supervise it.
Congress and the Executive Respond to Rasul
In response to Rasul and Hamdi, the Defense Department, in July 2004, created a Combatant Status Review Tribunal (CSRT) process at Guantanamo in which U.S. military officers, including one legal officer on each tribunal, reviewed whether alien detainees were properly classified as enemy combatants, defined as "an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners." The CSRT procedures do not allow detainees to see classified evidence or have a lawyer, but do permit the government to use hearsay evidence and evidence derived from physical mistreatment. Between July 2004 and June 2007, CSRTs reviewed 572 detainees, including Khalid Sheikh Mohammed and the other 13 "high-value detainees" who were transferred to Guantanamo in fall 2006 from secret prisons abroad. The tribunals determined that 534 of these detainees were enemy combatants subject to continued military detention. According to the U.S. military, over 500 detainees have been released from Guantanamo since 2002, including many released before the CSRTs were created. There are approximately 270 detainees currently there, of whom approximately 60 have been cleared for release or transfer to another country but who remain in U.S. custody for practical (e.g., lack of any country willing to accept custody) or legal (e.g., the ban on transferring a person to a country where he or she would likely be tortured) reasons.
The detainees' habeas cases-many now challenging also the procedures employed in and decisions reached by the CSRTs-worked their way through lower federal courts and were then consolidated for a second appeal. But before the D.C. Circuit could decide, Congress enacted two important statutes and the Supreme Court issued another decision. The Detainee Treatment Act (DTA) of 2005 amended the habeas statute to provide that "no court, justice, or judge" may exercise jurisdiction over any suits filed by aliens at Guantanamo, except that the D.C. Circuit would have exclusive jurisdiction to review certain aspects of final determinations of CSRTs and trials by military commissions. Because a federal civilian court would only review a case after the record was closed, the DTA required that all factual development take place under the control of the military. In June 2006, in Hamdan v. Rumsfeld, the Supreme Court held that the DTA withdrew jurisdiction of federal courts only over future, not pending, cases. The Boumediene and Al Odah detainees' cases would therefore proceed.
The Military Commissions Act of 2006
The MCA of 2006 was Congress's response to Hamdan. The MCA made clear that Congress truly did intend to bar all detainee suits in federal courts, even currently pending ones, with the exception of the limited review in the D.C. Circuit provided by the DTA. By its terms, the Constitution prohibits Congress from suspending habeas corpus except "when in Cases of Rebellion or Invasion the public Safety may require it." The MCA did not purport to suspend habeas corpus. Rather, it removed permanently, and without regard to any "Rebellion or Invasion" or "Public Safety," the jurisdiction of federal courts to hear habeas petitions by foreign national held as enemy combatants. By intentionally dispensing with the formalities of the Suspension Clause, Congress in effect stated that the Constitution did not protect habeas for these detainees.
After all these developments, the D.C. Circuit was able to rule on the dozens of detainees' habeas cases consolidated under Boumediene. In February 2007, a 2-1 majority upheld the constitutionality of the MCA's withdrawal of habeas jurisdiction and dismissed the detainees' habeas suits. The primary battleground was English and American history from the seventeenth through early nineteenth centuries; pre-existing Supreme Court precedent holds that the Constitution guarantees habeas review at least as extensive as that existing at common law in 1789, when the Constitution was adopted and the first Judiciary Act created the federal courts and gave them authority to issue the writ. The majority found that persons in the Guantanamo detainees' circumstances would not have had the benefit of the writ in 1789 and, furthermore, "[p]recedent in this court and the Supreme Court holds that the Constitution does not confer rights on aliens without property or presence within the United States."
The Supreme Court in Boumediene Finds a Constitutional Right to Habeas Review for the Guantanamo Detainees
Now before the Supreme Court, the government maintained its position that the MCA's withdrawal of jurisdiction over the detainees' habeas suits was constitutional because, (1) noncitizens held as enemy combatants outside the sovereign territory of the U.S. lack individual rights under the Constitution, including the right to the writ of habeas corpus; and (2) even if the detainees had a constitutional entitlement to habeas, Supreme Court case law allowing the government to substitute an "adequate" alternative procedure was satisfied by the DTA-MCA process of fact-finding and review by the military's CSRTs followed by further review by the D.C. Circuit. The detainees asserted that the common law habeas writ circa 1789 was indeed available to aliens outside of the formal borders of the country: anywhere the government exercised de facto sovereignty and control, jailers could be forced by the writ to justify the legality of detentions. Therefore, the detainees continued, the government cannot deny access to the writ-since there has been no formal suspension-without providing an adequate substitute. The CSRTs and D.C. Circuit review are inadequate, claimed the detainees, because the circuit can only review the incomplete and skewed factual record of the CSRTs which, among other problems, deny the detainees access to counsel and to the classified evidence used against them.
In its June 2008 decision in Boumediene, the Supreme Court reversed, 5-4, holding that the MCA's withdrawal of jurisdiction violated the constitutional right to meaningful habeas corpus review by federal civilian judges. Justice Anthony Kennedy wrote the Court's opinion for himself and Justices Stevens, Souter, Ginsburg and Breyer. Dissents by Chief Justice Roberts and Justice Scalia were joined by Justices Thomas and Alito.
Although it found the historical evidence was inconclusive as to whether habeas would have been available in 1789 to persons in the detainees' circumstances, the Court found history at a more general level to be quite relevant. According to the Court, the framers of the Constitution were motivated by an "inherent distrust of governmental power" and therefore wrote the Suspension Clause to protect the "separation of powers" by "ensur[ing ] 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." The dissenting justices maintained that habeas would clearly not have been available in 1789 to persons such as these detainees, and that separation of powers is vindicated by the branches respecting the Constitution's limitations on their powers, not by the judiciary improperly involving itself in military policy regarding noncitizens detained outside of the country.
Reviewing its own case law about application of the Constitution to aliens and citizens outside of the U.S., the Court found that its disparate precedents displayed a "functional approach to questions of extraterritoriality" at odds with the government's "formalistic, sovereignty-based test" which would have constitutional protections unavailable to foreign nationals if outside of U.S. borders "in the legal and technical sense." The government's claim that the Guantanamo lease's technical reservation of ultimate sovereignty in Cuba makes the base foreign territory for constitutional purposes, despite 100 years of "complete and uninterrupted control" by the U.S., subverts the Constitution's mandate that the federal judiciary have the power to say "what the law is" (Marbury v. Madison).
The Court's synthesis of its precedents found "at least three factors" relevant to whether the Constitution protects habeas for persons outside of the formal borders of the United States: "(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." The Court did not assign weights to these factors. Applying this principle, the Court held that the Constitution's writ "has full effect at Guantanamo." The Guantanamo detainees are foreign nationals, but vigorously deny that they are "enemy combatants" and, to date, have not been afforded adequate process to rebut the government's case. On the second factor, their apprehension abroad militates against entitlement to the writ, but their detention at a place which "[i]n every practical sense . . . is not abroad" supports it. Finally, while there could be costs created by a constitutional entitlement for foreign nationals in U.S. military custody to use the federal courts to seek release, "[t]he Government presents no credible arguments" to support such a conclusion in regard to the Guantanamo base.
The final hurdle for the detainees was to show that the U.S. has not "provided adequate substitute procedures for habeas corpus" through CSRTs reviewed by the D.C. Circuit. Although the Boumediene detainees had litigated habeas petitions rather than seeking DTA review in the D.C. Circuit of their designation by CSRTs as enemy combatants; and although the Circuit had not ruled on the facial constitutionality of the substitute procedures in its opinion below, the majority rejected Chief Justice Roberts' view that it was premature for the Court to address the questions at this time. The Court found it unnecessary to state which procedures an "adequate substitute" must possess or "whether the CSRTs, as currently constituted, satisfy due process standards." Those questions would be decided in the first instance by the federal district court on remand. The Court held that the CSRTs subjected detainees to "considerable risk of error in the tribunal's findings of fact" and the DTA's provision for limited judicial review "is, on its face, an inadequate substitute for habeas corpus." From the Court's discussion of defects in both the CSRTs and the judicial review allowed by the DTA, it appears that their constitutional infirmity is attributable to the sum of the following defects. The CSRTs significantly impede "the detainee's ability to rebut the factual basis for the Governments assertion that he is an enemy combatant" because the detainee (1) lacks counsel and may be detained based on (2) undisclosed evidence, if it is deemed classified by the military, and (3) hearsay, depriving the detainee of an ability to confront his accusers. This deficient fact-finding process is not cured by judicial review because the D.C. Circuit is denied authority by the DTA to (4) make an independent finding about the sufficiency of the government's evidence and (5) "admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding." Providing context for all of this, the Court several times emphasized the uncertain duration of detention where "hostilities . . . may last a generation or more."
What the Future Holds
In the short term, the many Guantanamo cases decided under the Boumediene name will now be sent to the federal district court in the District of Columbia. There the parties will likely litigate the many difficult issues left open by Boumediene, including whether detainees or their counsel will be able to see classified evidence introduced by the government or require the government to produce live witnesses rather than rely on hearsay; and the legality of the criteria used by the government to decide whether a given person at Guantanamo should be subject to ongoing military detention.
Over the medium term, it seems almost certain that the breadth of Boumediene's holding about the constitutional entitlement to habeas for foreign nationals detained by the U.S. military will be litigated. For example, cases involving Iraqis detained by the U.S. in Iraq and Afghans detained by the U.S. in Afghanistan could test the reach of Boumediene. And the U.S. government seems concerned that, in the longer term, future armed conflicts may feature enemy prisoners invoking the jurisdiction of the federal courts to harass the U.S. government. In a passage seemingly designed to allay such fears, Boumediene suggested that habeas might not be constitutionally required if there were "suitable alternative processes in place to protect against the arbitrary exercise of governmental power" "perhaps a reference to the comprehensive protective regime for prisoners of war supplied by the Third Geneva Convention, which the U.S. has decided is inapplicable to members or affiliates of al Qaeda or the Taliban but which would be applicable in almost any conceivable future armed conflict against another nation-state.
Andrew Kent, an ASIL Member, is an Associate Professor at Fordham University School of Law, where he teaches national security law and constitutional law.
 Boumediene v. Bush, Nos. 06-1195 & 06-1196, 553 U.S. __ , 2008 WL 2369628 (June 12, 2008), available at http://www.scotusblog.com/wp/wp-content/uploads/2008/06/06-1195.pdf. The Court's decision will be cited as "Boumediene, slip op. at __."
 Pub. L. No. 109-366, 120 Stat. 2600 (2006).
 Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57833, § 2 (Nov. 13, 2001), issued under the President's authority as Commander-in-Chief and Congress's September 18, 2001 Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224 (2001).
 Respondents' Motion to Dismiss Petitioners? First Amended Petition for Writ of Habeas Corpus, at 2, Rasul v. Bush, 215 F. Supp. 2d 55 (D.D.C. 2002) (No. 02-0299).
 Id. at 4.
 Al Odah v. United States, 321 F.3d 1134, 1140-43 (D.C. Cir. 2003).
 Rasul v. Bush, 542 U.S. 466 (2004).
 Id. at 481.
 542 U.S. 507, 533 (2004) (plurality).
 http://www.defenselink.mil/news/Aug2006/d20060809CSRTProcedures.pdf; http://www.defenselink.mil/news/Sep2005/d20050908process.pdf. In contrast to the CSRT procedures, the MCA distinguishes between a "lawful" and "unlawful enemy combatant." MCA § 3; see also DoD Directive 2310.01E, Enclosure 2 (Sept. 2006). The sufficiency of the definition used by the CSRTs is an open question.
 http://www.defenselink.mil/news/Nov2007/CSRTUpdate-Nov2-07.pdf . For those found by the CSRTs to be enemy combatants, a second review is conducted annually by Administrative Review Boards (ARBs), made up of U.S. military officers including one intelligence officer. The ARBs weigh the intelligence value, law enforcement value, if any, and the threat posed by the detainees if released to determine whether detention should be continued. http://www.defenselink.mil/news/Aug2006/d20060809ARBProceduresMemo.pdf.
 See Foreign Affairs Reform and Restructuring Act of 1998, 112 Stat. 2681-822, § 2242(a); United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Dec.10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85, art. 3 para. 1 (entered into force June 26, 1987).
 Pub. L. No. 109-148, 119 Stat. 2680 (2005), at § 1005(e).
 Note that Bismullah v. Gates, 501 F.3d 178, 180 (D.C. Cir. 2007), found that the record on review of CSRT determinations must include information submitted by the detainee to the CSRT and "reasonably available information in the possession of the U.S. Government bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant."
 Hamdan v. Rumsfeld, 548 U.S. 557 (2006). Hamdan is one of the 20 Guantanamo detainees whom the government has slated for trial before a military commission. http://www.defenselink.mil/news/commissions.html. The Court's ruling in Hamdan on the DTA applied equally to the Boumediene detainees who, at this point, are subject to long-term detention instead of trial.
 MCA §§ 7(a)(1) & (b).
 U.S. Const. art. I, § 9, cl. 2.
 See the March 2007 Insight "D.C. Circuit Upholds Constitutionality of Military Commissions Act Withdrawal of Federal Habeas Jurisdiction for Guantanamo Detainees," discussing Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007).
 Id. at 988.
 Id. at 988-91.
 E.g., Brief for Respondents George W. Bush et al., Boumediene v. Bush, 553 U.S. __ (2008) (No. 06-1195). This and other briefs are available at http://www.mayerbrown.com/probono/news/article.asp?id=3706&nid=291.
 The detainees also noted that, in the currently-pending Guantanamo case Bismullah v. Gates, the government had proved unable to assemble for the D.C. Circuit the CSRT's factual record required for DTA review, meaning that detainees would likely face the months or years of delay of a new CSRT hearing and new D.C. Circuit review. Supplemental Brief for the Boumediene Petitioners at 7-8, Boumediene v. Bush, 553 U.S. __ (2008) (No. 06-1195).
 Boumediene, slip op. at 16-22.
 Id. at 15. This passage echoed the invocation of "separation of powers" in Justice O'Connor's plurality opinion in Hamdi, which stated that the Constitution "assuredly envisions a role for all three branches"-meaning that the judiciary must have its say-"when individual liberties are at stake." Hamdi, 542 U.S. at 536.
 Boumediene, slip op. at 7-9, 17-23 (Scalia, J., dissenting).
 As the dissenting justices suggested, besides Eisentrager, many of the precedents relied upon by the majority did not involve the military custody of noncitizen combatants. For instance, In re Ross, 140 U.S. 453 (1891), concerned the jury rights of a U.S. seaman tried in a U.S. consular court in Japan in the 1880s. The Insular Cases, including Dorr v. United States, 195 U.S. 138 (1904), and Downes v. Bidwell, 182 U.S. 24 (1901), addressed the constitutional rights of noncombatant, civilian residents of the Philippines and Puerto Rico, soon after they were formally annexed to the United States by an 1898 treaty with Spain. And Reid v. Covert, 354 U.S. 1 (1957), concerned the courts-martial, held on U.S. military bases in England and Japan, of U.S. citizens for murdering their husbands, American servicemembers.
 Boumediene, slip op. at 23, 32-34.
 Id. at 34-36.
 Id. at 36-37 (arguably listing five or six factors, not three).
 This open-ended, multi-factor approach was foreshadowed by Justice Kennedy's concurrence in Rasul. See Rasul, 542 U.S. at 486 (resolving the statutory entitlement to habeas of Guantanamo detainees based on a weighing of citizenship, with an "ascending scale of rights" as a person's connection to the U.S. increased; physical presence in the United States, which "implie[s] protection" of a detainee; the quality of process already granted to the detainee; the detainee's status, as an enemy, a combatant, etc.; and the extent to which jurisdiction would "hamper the war effort and bring aid and comfort to the enemy").
 Boumediene, slip op. at 41.
 Id. at 39.
 Id. at 42.
 Id. at 42-43; id. at 4-8 (Roberts, C.J., dissenting).
 Id. at 49-50, 56, 69.
 Id. at 56, 63-64.
 Id. at 50, 54-55.
 Id. at 54, 57-61. The DTA is also defective because, on its face, the statute does not allow the D.C. Circuit to order the detainee to be released or to rule independently on the legality of the "the Executive's power to detain;" but at oral argument the Solicitor General suggested that the DTA's language could and should be construed to grant this necessary authority to the D.C. Circuit. Id. at 48, 50, 59.
 Id. at 56-57.
 Id. at 65.
 See Executive Order, Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency (July 20, 2007), § 1(a) ("On February 7, 2002, I determined for the United States that members of al Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war. I hereby reaffirm that determination.").