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Supreme Court Guantanamo Decision

Steven C. Welsh

CDI Research Analyst

June 30, 2004

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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 1), www.cdi.org/news/law/rasul-decision.pdf

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 Parties

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 Kashmir.

Habeas Corpus

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 Guantanamo cases.

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." Id.

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).

Distinguishing Eisentrager

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 detainees:

  • are not nationals of countries at war with the United States
  • 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 wrongdoing
  • for more than two years have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control

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., at 494-495.

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 tribunal.

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 therein.

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.), www.cdi.org/news/law/rasul-decision.pdf.

Rasul v. Bush, No. 03-334, al Odah v. United States, No. 03-343, 542 U.S. __ (2004)(oral argument), http://www.supremecourtus.gov/oral_arguments/

"Timeline: Guantanamo Bay Britons," BBC, March 11, 2004, http://news.bbc.co.uk/1/hi/uk/3545709.stm

United States v. David Matthew Hicks, Charges, U.S. military commission proceedings, June 10, 2004, http://www.cdi.org/news/law/hicks-charges.pdf.

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