Political Science

Factual Background and Procedural History

The questions presented arise from Americas self-styled War on Terror and involve the capture, transfer, and detention of five aliens or non-citizens in a secure facility at Guantanamo Bay in Cuba.  The aliens were arrested overseas, in Bosnia, they were subsequently designated as Enemy Combatants, and they were imprisoned on land not belonging to the United States but which was leased from Cuba by the United States.  Procedurally, Boumediene prepared and timely filed a standard petition of habeas corpus this petition requested relief based on a number of alleged constitutional, treaty, and statutory violations.  The Federal District Court rejected the petition on the basis that a non-citizen being held in an overseas facility possessed no right to habeas corpus.  The Court of Appeals affirmed and the United States Supreme Court, in a previous consideration of the issue, reversed by holding that the statutory framework providing for habeas corpus did in fact apply to certain detainees being held at the Guantanamo Bay facility despite non-citizen status and the physical location of the facility overseas.  This, however, was not the end of the case.  This is because, in response to the United State Supreme Courts initial holding, Congress enacted federal legislation designed to explicitly strip the federal courts of jurisdictional power with respect to habeas corpus petitions involving these types of detainees that are designated or otherwise classified as enemy combatants.  What emerges in this case, therefore, is a sort of separation of powers dispute in which the aforementioned Congressional legislation must be weighed against certain minimum Constitutional guarantees.   Once again, the lower courts ruled in favor of the government.  These rulings were based on the new Congressional legislation and the finding that the Suspension Clause of the United States Constitution did not function to invalidate the Congressional legislation.  Again, the United States Supreme Court granted certiorari in order to address a series of very specific legal issues. 

Issues Presented
The United States Supreme Court considered four issues.  The first issue presented was whether the Military Commissions Act of 2006 functioned to deprive federal courts of jurisdictional power with respect to habeas corpus petitions submitted by non-citizens being held at the Guantanamo Bay facility in Cuba.  The majority held that this federal legislation, if it could withstand subsequent Constitutional scrutiny, did in fact deprive federal courts of jurisdiction over habeas corpus in these circumstances.  The second issue presented was whether the Military Commissions Act of 2006 violated the American Constitutions Suspension Clause.  Significantly, the majority found that this Congressional enactment was a violation of the Suspension Clause. 

Rules
This case was controlled by a combination of Constitutional principles and the application of those principles to the aforementioned Congressional legislation and the particular facts of this case.  Prior to hearing this case, the Supreme Court ruled in Rasul v. Bush that the habeas corpus statute, 28 U.S.C. section 2241 could be invoked by the petitioners in the instant case as a result of this holding, Congress enacted the Detainee Treatment Act of 2005 (DTA) in an effort to amend the habeas corpus statute and to effectively reverse the Supreme Courts holding in the Rasul case.  Specifically, the relevant portion of the DTA provided 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 (Boumediene v. Bush, 2008, p. 4).  Because, in an intervening decision the Supreme Court held that the DTA amendments were inapplicable to pending cases like the petitioners in the instant case, Congress once again enacted legislation in order to reverse a Supreme Court decision more particularly the Military Commissions Act of 2006 was enacted and it essentially stated that habeas corpus protection would no longer extend to enemy combatants and, significantly, that the 2241(e) amendments shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after that date . . . which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained . . . since September 11, 2001 (Boumediene v. Bush, 2008, p. 2).  Congressional intent, pursuant to these legislative enactments was to therefore eliminate habeas corpus for enemy combatants being held at Guantanamo Bay, Cuba, by reversing previous Supreme Court holdings, and by creating a quasi-habeas corpus type of substitute via the DTA.  Finally, these Congressional enactments to be valid needed to satisfy the minimum standards of the Suspension Clause of the United States Constitution.  The Suspension Clause, located in Article 2, section 9, clause 2 of the American Constitution 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 (Boumediene v. Bush, 2008, pp. 12-13).  A resolution of the aforementioned issues presented thus required an interpretation of these federal statutes and a determination as to whether these federal statutes violated the Suspension Clause.

Application
Justice Kennedy, writing for the majority, began his analysis by accepting the fact that the President had the authority to seize and detain certain types of people as a result of the War on Terror.  He then proceeded to what he characterized as a threshold consideration in the larger case more specifically, he stated that section 7 of the Military Commissions Act did in fact deprive the federal courts of jurisdiction over habeas corpus filings except in the very limited and specific ways set forth in the DTAs substitution scheme.  This finding was based on the fact that the statute was explicit, it addressed the retroactive dates necessary to make it applicable in the instant case, and that there was sufficient intent of legislative intent.   This was a threshold instance because this holding would require the Supreme Court to dismiss the petitioners case unless the Congressional legislation violated the Suspension Clause of the United States Constitution.  The main substance of the majority opinion, and the main bases for the dissents filed by Justices Scalia and Roberts, related to an examination of the Congressional legislation against the Constitutional prohibitions.  Justice Kennedy, after engaging in an exhaustive historical and legal precedent analysis relating to the Writ of Habeas Corpus and the Suspension Clause, concluded that the DTA provided inadequate protections as demanded by the Suspension Clause and that both the Military Commissions Act of 2006 and the DTA were unconstitutional to the extant that these pieces of legislation sought to deny federal habeas corpus rights or to otherwise substitute an inadequate process.  The majority was not persuaded that this was a political question or that the overseas nature of the facility required different interpretations of the Suspension Clause.  Addressing a specific objection, Kennedy noted that The Court has discussed the issue of the Constitutions extraterritorial application on many occasions. These decisions undermine the Governments argument that, at least as applied to noncitizens, the Constitution necessarily stops where de jure sovereignty ends (Boumediene v. Bush, 2008, p. 25).  Constitutional rights have therefore been extended in an extraterritorial manner many times before and the majority finds the arbitrary sovereignty arguments unpersuasive.  Citing legal precedent, the majority articulated and applied a three-part test in order to determine whether the Suspension Clause applied in the instant case this three part-test examined whether

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 prisoners entitlement to the writ (Boumediene v. Bush, 2008, pp. 36-37)

The majority, weighing these factors, found the DTA process inadequate, that Guantanamo Bay, Cuba was effectively under American control, and that there were no compelling obstacles that should prevent the petitioners use of the writ of habeas corpus.  Justice Souter concurred, along with Breyer and Ginsburg, and added that he agreed with the result but would have gone further and rested the habeas corpus right on the American Constitution rather than merely the federal habeas corpus statute because this statute was effectively amended.  Four justices dissented, although only two wrote dissenting opinions.  Justice Scalia essential argued that the substitute procedures set forth in the DTA were adequate and that this should have resulted in a holding to the effect that the Suspension Clauses three-part test did not require extending habeas corpus rights to the detainees at Guantanamo Bay.  Justice Roberts made a similar argument but added that the Suspension Clause analysis should have been treated as irrelevant because the DTA was an adequate substitute.

Conclusion
In conclusion, there seems to be little certainty to be derived from this deeply divided opinion except for the proposition that detainees at Guantanamo Bay are entitled to habeas corpus protections even the majority seemed to struggle over whether these rights should be sourced to the federal habeas corpus legislation or to the American Constitution.  The durability of this decision as legal precedent may depend on the Congressional mood and whether it believes that it can design and enact an effective substitute procedure that will tip the balance of the three-part test.