Supreme Court Guantanamo Decision
Steven C. Welsh
CDI Research Analyst
June 30, 2004
With a decision notably brief for the mountain of argument
leading up to it, the U.S. Supreme Court in Rasul v. Bush held on June
28, 2004, that foreign nationals imprisoned without charge at the Guantanamo Bay
interrogation camps were entitled to bring legal action challenging their
captivity in U.S. federal civilian courts.
Justice John Paul Stephens' majority opinion was joined by
Justices Sandra Day O'Conner, David Souter, Ruth Bader-Ginsburg, and Stephen
Breyer. Justice Anthony Kennedy joined in the decision but disagreed
sufficiently with the majority's analysis to issue a separate concurring
opinion. Justice Antonin Scalia authored a dissenting opinion, joined by Chief
Justice William Rehnquist and Justice Clarence Thomas.
The decision addressed the question of "whether United
States courts lacked jurisdiction to consider challenges to the legality of the
detention of foreign nationals captured abroad in connection with hostilities
and incarcerated at the Guantanamo Bay Naval Base, Cuba." Rasul v. Bush,
No. 03-334, al Odah v. United States, 542 U.S. __ (2004)(slip. op., at
The court reversed the U.S. District Court for the District
of Columbia and the Court of Appeals for the D.C. Circuit, which had held that
the Supreme Court's 1950 decision in Johnson v. Eisentrager barred
Guantanamo detainees from bringing actions challenging their detentions in U.S.
courts because they were foreign nationals outside U.S. sovereign territory.
Eisentrager involved German nationals who, in the
closing days of World War II, violated the terms of Germany's surrender by
continuing to wage war against the allies in the Pacific theater. The
Eisentrager plaintiffs had been tried and convicted by a military commission
(with some of their alleged confederates acquitted), and imprisoned at a U.S.
military base in Germany. Eisentrager was an arguably tangled opinion in
which the Supreme Court purportedly declined to recognize petitioners' right for
habeas corpus review, only in fact to review the facts of their case. It set out
elements detailing why the Eisentrager petitioners were not entitled to
further threshold procedural steps such as habeas corpus, finding among other
things that they were enemy aliens duly charged and convicted for violating the
laws of war by a lawfully constituted tribunal.
The Guantanamo Litigation
Following the terrorist attacks of Sept. 11, 2001, Congress
authorized the use of force against the perpetrators and those aiding or
harboring them. In the course of hostilities against al Qaeda and the Taliban
in Afghanistan, a number of individuals were detained by U.S. forces, of whom
approximately 640 foreign nationals would be held at the U.S. naval base at
Guantanamo Bay, Cuba.
Not mentioned by the court, one of the primary purposes of
the detentions has been to conduct interrogations, as opposed to simply remove
alleged combatants from battle or prosecute a particular individual for war
crimes. The circumstances of capture are in some cases disputed, and it appears
that at least some detainees may initially have been taken captive by third
parties. In some instances, it is alleged that detainees were turned over to
U.S. forces by third parties in exchange for bounties. In some cases, detainees
repatriated to their home countries have simply been released onto the streets,
implying that their home countries did not consider them a threat.
With the exception of three detainees, all have been held
without charge. Those three were held for more than two years without charge,
and at this point have not been indicted in civilian federal court but rather
have had charges brought against them for prosecution before military
commissions. The charges brought thus far do not allege direct involvement with
attacks against the United States, terrorist or otherwise.
The plaintiffs on whose behalf the Rasul v. Bush
litigation was brought (consolidated with al Odah v. United States)
originally included two British nationals, two Australians, and 12 Kuwaitis.
Ironically, as the Supreme Court pointed out in a footnote, the two British
detainees already have been released, including Rasul himself. Both Shafiq
Rasul and Asif Iqbal were repatriated to the United Kingdom in March 2004 along
with several other British nationals previously held at Guantanamo Bay, all of
whom the British authorities released without charge.
One of the Australian plaintiffs, David Hicks, remains at
Guantanamo Bay and on June 10, 2004, had formal charges brought against him for
prosecution before a U.S. military commission. The charges essentially allege
that Hicks joined a terrorist group focusing on the dispute over Kashmir; that,
with that group's recommendation, Hicks received training from al Qaeda in
Afghanistan; that he started translating the al Qaeda training manual into
English; and that, during the U.S.-led attack on Afghanistan, Hicks took up an
AK-47 to help guard a Taliban tank at the Kandahar airport. The charges also
indicate that previously Hicks had fought in the Balkans and against India in
While other arguments were raised in the course of the
Guantanamo Bay detainee litigation, the bulk of attention before the Supreme
Court has been on the question of the right to a writ of habeas corpus, in which
a person held captive by the government may take action to challenge the
legality of his detention.
As the court has pointed out in the Rasul decision,
this is a very old right, referenced by the Constitution itself, enshrined in a
1789 U.S. statute predating the Bill of Rights, and before that dating back for
centuries in the common law tradition the United States shares with Britain (the
common law generally having formed a part of U.S. law unless and until it has
been displaced in whole or in part by the Constitution or by statute).
The court quoted a 1953 opinion by Justice Robert Jackson:
|Executive imprisonment has been
considered oppressive and lawless since John, at Runneymede, pledged
that no free man should be imprisoned, dispossessed, outlawed, or
exiled save by the judgment of his peers or by the law of the land …
Id. at 6, quoting Shaughnessy v. United States ex
rel. Mezei, 345 U.S. 206, 218-19 (1953)(Jackson, dissenting opinion).
Ironically, Jackson previously had delivered the decision in the earlier case
of Johnson v. Eisentrager, relied upon by the administration in the
The Modern Habeas Statute
The Supreme Court pointed out that in today's federal
habeas corpus statute:
|Congress has granted federal
district courts "within their respective jurisdictions," the
authority to hear applications for habeas corpus by any person who
claims to be held "in custody in violation of the Constitution or
laws or treaties of the United States."
Id. At 4, quoting 28 U.S.C. §§2241(a),(c)(3).
The right to a writ of habeas corpus having arisen
centuries earlier in the common law tradition, and recognized by the
Constitution, Congress enacted the original U.S. federal habeas corpus statute
in the Judiciary Act of 1789, granting the right to persons "in custody, under
or by color of the authority of the United States, or committed for trial before
some court of the same." Id. At 5. In 1867, Congress extended the right
to "all cases where any person may be restrained of his or her liberty in
violation of the constitution, or of any treaty or law of the United States."
The Supreme Court observed that it has been within the
power of the federal courts to review habeas corpus petitions even during
wartime, and that the question before it was whether such jurisdiction extended
to the idiosyncratic legal realm of Guantanamo Bay, which the U.S. essentially
rules as its own sovereign territory as long as it wishes, but which is under a
lease reserving, "ultimate" sovereignty to Cuba:
|… this Court has recognized the
federal courts' power to review applications for habeas relief in a
wide variety of case involving Executive detention, in wartime as
well as in times of peace.… The question now before us is
whether the habeas statute confers a right to judicial review of the
legality of Executive detention of aliens in a territory over which
the United States exercises plenary and exclusive jurisdiction, but
not "ultimate sovereignty."
Id. at 6 (emphasis added).
Before tackling the issue of Guantanamo Bay's legal status,
the court first addressed the government's reading of the 1950 decision in
Eisentrager and the government's suggestion that Eisentrager should
bar civilian U.S. federal court jurisdiction over the Guantanamo detainees.
Without fully dissecting the tangled legal thicket explored
by the briefs and oral argument, the court's decision highlighted the peculiar
circumstances in Eisentrager, which the court had deemed important and
distinguished the present case on that basis. It went on to pick up on an
indirect analysis which Stephens, the author of the Rasul decision, had
begun laying out in oral argument, explaining the Eisentrager decision
by assessing the decision's context with respect to the legal landscape of that
time, and how that legal landscape influenced the nature of the Eisentrager
litigation as it unfolded.
The court highlighted certain elements of the
Eisentrager findings, namely the petitioners' status as:
- enemy aliens
- never residing in the United States
- captured outside U.S. territory and held there in
military custody as a prisoner of war
- tried and convicted by a military commission sitting
outside the United States
- tried and convicted for offenses against the laws of
war, committed outside the United States
- at all times imprisoned outside the United States
In contrast, the court pointed out, the Guantanamo Bay
- are not nationals of countries at war with the United
- deny they have engaged in or plotted acts of
aggression against the United States (keep in mind the question before the
court is one of initial jurisdiction, not the ultimate merits of each case
but whether petitioners get their case "past the door")
- have never been afforded access to any tribunal
- therefore have never been tried and convicted of
- for more than two years have been imprisoned in
territory over which the United States exercises exclusive jurisdiction and
Next, the court examined the legal landscape that formed
the backdrop of Eisentrager.
The court pointed out that two years previous, at the time
the Eisentrager petitioners first filed their action with the district court,
the Supreme Court had just filed its decision in Ahrens v. Clark denying
habeas jurisdiction under the habeas corpus statute under circumstances in which
detainees were not being held within the territorial jurisdiction of the
relevant district court; according to Rasul, the Ahrens decision
did leave open the question of what to do in cases of detention in an area not
subject to the jurisdiction of any district court.
The District Court in Eisentrager, however,
nevertheless dismissed the Eisentrager petitions based on Ahrens,
and the Court of Appeals reversed. Likewise believing Ahrens barred
jurisdiction under the habeas statute, the Court of Appeals found that justice
still required that habeas review be granted, and looked to the Constitution and
underlying fundamental principles as a basis for jurisdiction. As a result,
when the case reached the Supreme Court, while making passing reference to the
habeas statute, the Supreme Court in Eisentrager was reviewing those
particular aspects of the Court of Appeals decision.
As assessed by the Supreme Court in Rasul v. Bush,
the Eistentrager decision, while making passing reference to the
inapplicability of the habeas statute, essentially (1) assessed the facts
peculiar to Eisentrager (2) solely in the light of the Court of Appeals'
analysis regarding fundamental principles, not the habeas statute. Later, the
Supreme Court would overrule Ahrens, in Braden v. 30th Judicial
Circuit Court of Ky., 410 U.S. 484, 495 (1973), holding:
|… contrary to Ahrens … the
prisoner's presence within the territorial jurisdiction of the
district court is not "an invariable prerequisite" to the exercise
of district court jurisdiction under the federal habeas statute.
Rather, because the "writ of habeas corpus does not act upon the
prisoner who seeks relief but upon the person who holds him in what
is alleged to be unlawful custody," a district court acts "within
[its] respective jurisdiction" within the meaning of §2241 as long
as "the custodian can be reached by service of process." 410 U.S.,
Rasul at 10.
The court in Rasul held that Braden overruled
the "statutory predicate" for Eisentrager, as a result of which
Eisentrager did not bar habeas corpus jurisdiction over the claims of the
Guantanamo Bay detainees. As explained first by Stephens during oral argument,
the way in which Eisentrager unfolded was in part due to the Ahrens
decision impacting on how the habeas statute would have been applied, which
prompted the Court of Appeals to engage in analytical gymnastics over
fundamental principles, which then became the focal point of reviewed for the
Supreme Court. Ahrens therefore was an integral part of the legal
landscape driving the outcome of the Eisentrager litigation; but as seen
above, Ahrens was later overruled.
Even so, as Rasul points out, the Supreme Court in
Eisentrager actually did go ahead and provide a review of the
petitioners' claims, finding among other things that the petitioners were enemy
aliens and, in fact, had received a trial and conviction by a competent
Habeas Corpus Jurisdiction and
Guantanamo Bay -- Government Concession at Oral Argument
In response to arguments by the government against the
extraterritorial application of the habeas statute, the Supreme Court held that,
without addressing other contexts, concerns over extraterritoriality were not of
great relevance to Guantanamo Bay. While the government had made an issue over
the fact that the original lease agreement for Guantanamo Bay reserved "ultimate
sovereignty" to Cuba, the court pointed out that the agreements between the
United States and Cuba grant the United States "complete jurisdiction and
control" over Guantanamo Bay, and that if it chooses to do so the United States
may continue that exclusive control of Guantanamo Bay permanently.
Moreover, the court seized upon the government's admission
at oral argument that if a U.S. citizen were held at Guantanamo Bay the habeas
statute would confer jurisdiction. The court coupled this concession with the
fact that the habeas statute did not distinguish between U.S. citizens and
foreign nationals, and held that there was little reason to believe that
Congress had intended to vary geographic coverage of the statute based upon
citizenship. It held that, therefore, foreign nationals held at the base were
just as entitled to invoke the authority of the federal courts under the habeas
statute as American citizens.
Conclusion on Habeas Corpus
The Supreme Court concluded:
|In the end, the answer to the
question presented is clear. Petitioners contend that they are being
held in federal custody in violation of the laws of the United
States. No party questions the District Court’s jurisdiction over
petitioners’ custodians. Section 2241, by its terms, requires
nothing more. We therefore hold that §2241 confers on the District
Court jurisdiction to hear petitioners’ habeas corpus challenges to
the legality of their detention at the Guantanamo Bay Naval Base.
Id. at 17 (footnote and citations omitted).
Other Bases for Claims
The court also briefly addressed other bases for
jurisdiction invoked on behalf of one set of petitioners, such as the federal
question statute and the Alien Tort Statute. The Court of Appeals had affirmed
the district court's dismissal of those claims because of its belief that
Eisentrager denied petitioners the privilege of litigation for habeas
claims, and that because those other claims also related to their detention,
they should be dismissed as well. The Supreme Court held that since
Eisentrager in fact did not bar jurisdiction over the petitioners' habeas
claims, it certainly did not bar jurisdiction for the other claims simply
because they related to the same detentions, and that "in any event, nothing in
Eisentrager or in any of our other cases categorically excludes aliens detained
in military custody outside the United States from '" the privilege of
litigation"' in U.S. courts." Id. at 16 (citation omitted).
In a footnote, the Supreme Court hints that if
hypothetically petitioners' allegations proved true, the Guantanamo Bay
detentions indeed were unlawful:
|Petitioners’ allegations — that,
although they have engaged neither in combat nor in acts of
terrorism against the United States they have been held in Executive
detention for more than two years in territory subject to the
long-term, exclusive jurisdiction and control of the United States,
without access to counsel and without being charged with any
wrongdoing — unquestionably describe “custody in violation of the
Constitution or laws or treaties of the United States.” 28 U. S. C.
§2241(c)(3). Cf. United States v. Verdugo-Urquidez, 494 U. S.
259, 277– 278 (1990) (KENNEDY, J., concurring), and cases cited
Id. at 15, n. 15 (to avoid confusion from the
citations at the end of the quote: note that this passage itself is from the
majority opinion; at the end of the excerpt the majority opinion is citing the
federal habeas statute and provides a cross-referencing citation to a Kennedy
concurrence in another decision.)
With respect to the present decision, the court
nevertheless pointed out what had been clear all along, that the question before
it was one of jurisdiction, not an examination of the detainees' claims or
whether any particular detainee could or should be freed:
|Whether and what further
proceedings may become necessary after respondents make their
response to the merits of petitioners’ claims are matters that we
need not address now. What is presently at stake is only whether the
federal courts have jurisdiction to determine the legality of the
Executive’s potentially indefinite detention of individuals who
claim to be wholly innocent of wrongdoing. Answering that question
in the affirmative, we reverse the judgment of the Court of Appeals
and remand for the District Court to consider in the first instance
the merits of petitioners’ claims.
It is so ordered.
Id. at 17.
Sources and Further Reading:
Rasul v. Bush, No. 03-334, al Odah v. United
States, No. 03-343, 542 U.S. __ (2004)(slip. op.),
Rasul v. Bush, No. 03-334, al Odah v. United
States, No. 03-343, 542 U.S. __ (2004)(oral argument),
"Timeline: Guantanamo Bay Britons," BBC, March 11, 2004,
United States v. David Matthew Hicks, Charges, U.S.
military commission proceedings, June 10, 2004,
[Content available on this site is for informational purposes only and not for the purpose of providing legal advice. Use of this site does not create an attorney-client relationship.]