Boumediene v. Bush: Guantanamo Detainees' Right to Habeas Corpus

Boumediene v. Bush:
Guantanamo Detainees’ Right to Habeas Corpus
Updated September 8, 2008
Michael John Garcia
Legislative Attorney
American Law Division

Boumediene v. Bush:
Guantanamo Detainees’ Right to Habeas Corpus
In the consolidated cases of Boumediene v. Bush and Al Odah v. United States,
decided June 12, 2008, the Supreme Court held in a 5-4 opinion that aliens
designated as enemy combatants and detained at the U.S. Naval Station in
Guantanamo Bay, Cuba, have the constitutional privilege of habeas corpus. The
Court also found that § 7 of the Military Commissions Act (MCA), which limited
judicial review of executive determinations of the petitioners’ enemy combatant
status, did not provide an adequate habeas substitute and therefore acted as an
unconstitutional suspension of the writ of habeas. The immediate impact of the
Boumediene decision is that detainees at Guantanamo may petition a federal district
court for habeas review of the circumstances of their detention. This report
summarizes the Boumediene decision and analyzes several of its major implications
for the U.S. detention of alien enemy combatants and legislation that limits detainees’
access to judicial review. For discussion of litigation challenging detention policy,
see CRS Report RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges
in Federal Court, by Jennifer K. Elsea, Michael John Garcia, and Kenneth R.

Background ......................................................1
Application of MCA to Pending Habeas Actions.........................3
Constitutional Privilege to Habeas....................................3
Adequacy of Habeas Corpus Substitute................................6
Implications of Boumediene..........................................9

Boumediene v. Bush:
Guantanamo Detainees’
Right to Habeas Corpus
In the consolidated cases of Boumediene v. Bush and Al Odah v. United States,1
decided June 12, 2008, the Supreme Court held in a 5-4 opinion that aliens
designated as enemy combatants and detained at the U.S. Naval Station in
Guantanamo Bay, Cuba, have the constitutional privilege of habeas corpus. The
Court also found that § 7 of the Military Commissions Act (MCA),2 which limited
judicial review of executive determinations of the petitioners’ enemy combatant
status, did not provide an adequate habeas substitute and therefore acted as an
unconstitutional suspension of the writ of habeas. The immediate impact of the
Boumediene decision is that detainees at Guantanamo may petition a federal district
court for habeas review of the circumstances of their detention.
Following the terrorist attacks of 9/11, Congress passed the Authorization to
Use Military Force (AUMF), which authorized the President “to use all necessary and
appropriate force against those ... [who] planned, authorized, committed, or aided the
terrorist attacks” against the United States.”3 As part of the subsequent “war on
terror,” many persons captured during military operations in Afghanistan and
elsewhere were transferred to the U.S. Naval Station in Guantanamo Bay, Cuba, for
detention and possible prosecution for war crimes. In the 2004 case of Hamdi v.
Rumsfeld, a majority of the Supreme Court recognized that, as a necessary incident
to the AUMF, the President was authorized to detain persons captured while fighting
U.S. forces in Afghanistan for the duration of the conflict.4 The Department of
Defense thereafter established Combatant Status Review Tribunals (CSRTs) to assess
whether persons detained at Guantanamo constituted “enemy combatants” who could
be detained for the duration of the “war on terror” and prosecuted in military
commissions for any war crimes committed.

1 Boumediene v. Bush, 553 U.S. __, 128 S.Ct. 2229 (2008).
2 P.L. 109-366 (2006).
3 P.L. 107-40, 115 Stat. 224 (2001).
4 Hamdi v. Rumsfeld, 542 U. S. 507, 518 (plurality opinion of O’Connor, J.); id. at 588-589
(Thomas, J., dissenting) (2004).

On the same day that Hamdi was decided, the Court issued an opinion in the
case of Rasul v. Bush,5 holding that the federal habeas statute, 28 U.S.C. § 2241,
extended statutory habeas jurisdiction with respect to persons held in Guantanamo.
Immediately thereafter, dozens of habeas petitions were filed on behalf of
Guantanamo detainees in the U.S. District Court for the District of Columbia
(District Court), where judges reached conflicting conclusions as to whether the
detainees had any enforceable rights to challenge their treatment and detention.
Shortly after the Supreme Court granted certiorari to hear a challenge by one of
the detainees to his trial by military tribunal, Congress passed the Detainee Treatment
Act of 2005 (DTA).6 The DTA divested the courts of jurisdiction to hear challenges
by Guantanamo detainees based on their treatment or living conditions, and
eliminated federal courts’ jurisdiction under 28 U.S.C. § 2241 to consider habeas
claims by aliens challenging their detention at Guantanamo. The DTA provided the
U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) with exclusive jurisdiction
to review detainee status determinations made by CSRTs or military commissions.
In the 2006 case of Hamdan v. Rumsfeld,7 the Court interpreted these provisions as
being inapplicable to habeas cases pending at the time the DTA was enacted. In
response, Congress passed the MCA, which amended the federal habeas statute to
expressly eliminate court jurisdiction over all pending and future causes of action,
other than pursuant to the limited review permitted under the DTA.
The petitioners in Boumediene are aliens detained at Guantanamo who sought
habeas review of their continued detention and designation as enemy combatants by
CSRTs in District Court. On appeal, the D.C. Circuit held that the MCA stripped it
and all other federal courts of jurisdiction to consider petitioners’ habeas
applications. Relying upon its earlier opinion in Al Odah v. United States and the
1950 Supreme Court case Johnson v. Eisentrager,8 in which the Supreme Court
found that the constitutional writ of habeas did not apply to enemy aliens detained
in post-WWII Germany, the D.C. Circuit held that the MCA’s “court-stripping”9
provision did not operate as an unconstitutional suspension of the writ, because aliens
held by the U.S. in foreign territory do not have a constitutional right to habeas.10
Although the Supreme Court initially denied the petitioners’ request for review,
it subsequently reversed itself and granted certiorari in June 2007 to consider the
consolidated cases of Boumediene and Al Odah. In an opinion by Justice Kennedy
that was joined by Justices Breyer, Ginsburg, Souter, and Stevens, the Court reversed
the D.C. Circuit and held that petitioners had a constitutional right to habeas that was

5 542 U.S. 466 (2004).
6 P.L. 109-148, Title X (2005).
7 321 F.3d 1134 (D.C. Cir 2003), rev’d sub nom Rasul v. Bush, 542 U.S. 466 (2004).
8 339 U.S. 763 (1950).
9 The practice of divesting courts of jurisdiction over particular issues is sometimes referred
to as “court-stripping.”
10 476 F.3d 981 (D.C. Cir. 2007).

withdrawn by the MCA in violation of the Constitution’s Suspension Clause.11 Chief
Justice Roberts and Justice Scalia wrote separate dissenting opinions, which were
joined by the other and Justices Alito and Thomas. Justice Souter also wrote a brief
concurring opinion, joined by Justices Breyer and Ginsburg, briefly disputing the
dissenting opinions’ purported characterization of the majority’s decision.
Application of MCA to Pending Habeas Actions
Before assessing petitioners’ constitutional claims, the Court briefly addressed
petitioners’ argument that MCA § 7 did not deny federal courts jurisdiction to
consider habeas actions like those of petitioners, which were pending at the time that
the MCA was enacted. The Court rejected this argument, finding that the structure
of MCA § 7 and the act’s legislative history demonstrated that the MCA was
intended to deprive federal courts of jurisdiction to consider habeas cases pending
at the time of enactment.
Constitutional Privilege to Habeas
The Court next turned to the question of whether petitioners possess a
constitutional privilege to seek the writ of habeas corpus. Petitioners argued that
they possess a constitutional right to habeas, and that the MCA deprived them of this
right in contravention of the Suspension Clause, which prohibits the suspension of
the writ of habeas except “when in Cases of Rebellion or Invasion the public Safety
may require it.” The MCA did not expressly purport to be a formal suspension of the
writ of habeas, and the government did not make such a claim to the Court. Instead,
the government argued that aliens designated as enemy combatants and detained
outside the de jure territory of the United States have no constitutional rights,
including the constitutional privilege to habeas, and that therefore stripping the
courts of jurisdiction to hear petitioners’ habeas claims did not violate the
Suspension Clause.
The Court began its analysis by surveying the history and origins of the writ of
habeas, emphasizing the importance placed on the writ for the Framers. The Court
noted that protection of the habeas privilege was one of the few safeguards to
individual liberty contained in the Constitution prior to the addition of the Bill of
Rights, and the Suspension Clause permits suspension of the writ only in the rare
instance where public safety may require it as a result of invasion or rebellion. The
Court characterized the Suspension Clause as not only a “vital instrument” for
protecting individual liberty, but also a means to ensure that the judiciary branch
would have, except in cases of formal suspension, “a time-tested device, the writ, to
maintain the delicate balance of governance” between the branches and prevent
“cyclical abuses” of the writ by the executive and legislative branches.12 The Court
stated that the separation-of-powers doctrine and the history shaping the design of the

11 U.S. CONST. Art. 1, § 9, cl. 2.
12 Boumediene, 128 S.Ct. at 2247.

Suspension Clause informed its interpretation of the reach and purpose of the Clause
and the constitutional writ of habeas.
While the Court considered the history and function of the writ to be central to
its analysis of the writ’s application, it also sought guidance from founding-era
authorities as to whether the constitutional writ of habeas was understood to cover
foreign nationals apprehended and detained abroad during a time of serious threat to
the country’s security. While the Court cautioned that its jurisprudence had “been
careful not to foreclose the possibility that the protections of the Suspension Clause
have expanded along with post-1789 developments that define the present scope of
the writ,”13 at minimum the Clause would be deemed to protect the writ as it was
recognized at the time the Constitution was drafted and ratified. The Court found the
historical record to be inconclusive in resolving the issue before it, and suggested that
“given the unique status of Guantanamo Bay and the particular dangers of terrorism
in the modern age ... common-law courts simply may not have confronted cases with
close parallels to this one.”14
Nonetheless, the Court interpreted the Suspension Clause as having full effect
at Guantanamo, rejecting the government’s position that the Clause did not cover
petitioners because the United States did not assert legal sovereignty over the
territory where they were detained. While the Court did not question the
government’s position that Cuba maintains legal sovereignty over Guantanamo under
the terms of the 1903 lease giving the U.S. plenary control over the territory, it
disagreed with the government’s position that “at least when applied to non-citizens,
the Constitution necessarily stops where de jure sovereignty ends.”15
Instead, the Court characterized its prior jurisprudence as recognizing that the
Constitution’s extraterritorial application turns on “objective factors and practical
concerns.”16 Here, the Court emphasized the functional approach taken in the Insular
Cases, where it had assessed the availability of constitutional rights in incorporated
and unincorporated territories under the control of United States.17 Although the
government argued that the Court’s subsequent decision in Eisentrager stood for the
proposition that the constitutional writ of habeas does not extend to enemy aliens
captured and detained abroad, the Court found this reading to be overly constrained.
According to the Court, interpreting the Eisentrager ruling in this formalistic manner
would be inconsistent with the functional approach taken by the Court in other cases
concerning the Constitution’s extraterritorial application,18 and would disregard the

13 Id. at 2248 (citing INS v. St. Cyr, 533 U. S. 289, 300 — 301(2001)).
14 Id. at 2251.
15 Id. at 2253.
16 Id. at 2258.
17 See De Lima v. Bidwell, 182 U. S. 1 (1901); Dooley v. United States, 182 U. S. 222
(1901); Armstrong v. United States, 182 U. S. 243 (1901); Downes v. Bidwell, 182 U. S.

244; Hawaii v. Mankichi, 190 U. S. 197 (1903); Dorr v. United States, 195 U. S. 138 (1904).

18 Boumediene, 128 S.Ct. at 2255-2258 (discussing plurality opinion in Reid v. Covert, 354

practical considerations that informed the Eisentrager Court’s decision that the
petitioners were precluded from seeking habeas.
The Court also found that accepting the government’s sovereignty-based
approach to the Constitution’s applicability would raise significant separation-of-
powers concerns, as the political branches would be free “to govern without legal
constraint” in a territory like Guantanamo, where the U.S. disclaimed legal
sovereignty but exercised plenary control:
The Constitution grants Congress and the President the power to acquire, dispose
of, and govern territory, not the power to decide when and where its terms may
apply. Even when the United States acts outside its borders, its powers are not
absolute and unlimited but are subject to such restrictions as are expressed in the
Constitution.... To hold that the political branches may switch the Constitution
on and off at will would lead to a regime where they, not this Court, say what the
law is.... These concerns have particular bearing upon the Suspension Clause ...
for the writ is itself an indispensable mechanism for monitoring the separation
of powers. The test for determining the scope of this provision must not be19
subject to manipulation by those whose power it is designed to restrain.
Based on the language found in the Eisentrager decision and other cases
concerning the extraterritorial application of the Constitution, the Court deemed at
least three factors to be relevant in assessing the extraterritorial scope of the
Suspension Clause: (1) the citizenship and status of the detainee and the adequacy
of the status determination process; (2) the nature of the site where the person is
seized and detained; and (3) practical obstacles inherent in resolving the prisoner’s
entitlement to the writ.
Applying this framework, the Court characterized petitioners’ circumstances in
the instant case as being significantly different from those of the detainees at issue
in Eisentrager. Among other things, the Court noted that unlike the detainees in
Eisentrager, the petitioners denied that they were enemy combatants, and the
government’s control of the post-WWII, occupied German territory in which the
Eisentrager detainees were held was not nearly as significant nor secure as its control
over the territory where the petitioners are located. The Court also found that the
procedural protections afforded to Guantanamo detainees in CSRT hearings are “far
more limited [than those afforded to the Eisentrager detainees tried by military
commission], and, we conclude, fall well short of the procedures and adversarial
mechanisms that would eliminate the need for habeas corpus review.”20

18 (...continued)
U. S. 1 (1957)). In his concurring opinion in Reid, Justice Harlan argued that whether a
constitutional provision has extraterritorial effect depends upon the “particular
circumstances, the practical necessities, and the possible alternatives which Congress had
before it” and, in particular, whether judicial enforcement of the provision would be
“impracticable and anomalous.” Reid, 354 U.S. at 74-75 (Harlan, J., concurring in result).
19 Boumediene, 128 S.Ct. at 2259 (internal quotations omitted).
20 Id. at 2260.

While acknowledging that it had never before held that noncitizens detained in
another country’s territory have any rights under the U.S. Constitution, the Court
concluded that the case before it “lack[ed] any precise historical parallel.”21 In
particular, the Court noted that the Guantanamo detainees have been held for the
duration of a conflict that is already one of the longest in U.S. history, in territory
that, while not technically part of the United States, is subject to complete U.S.
control. Based on these factors, the Court concluded that the Suspension Clause has
full effect at Guantanamo.
In a dissenting opinion joined by Chief Justice Roberts and Justices Alito and
Thomas, Justice Scalia argued that the constitutional writ of habeas “does not, and
never has, run in favor of aliens abroad; the Suspension Clause thus has no
application, and the Court’s intervention in this military matter is entirely ultra
vires.”22 Justice Scalia further argued that the judiciary is ill-equipped to address the
national security concerns raised by the detention of enemy combatants. According
to the dissent, the procedural and evidentiary rules likely to be employed by the
judiciary in reviewing a detainee’s status would increase the likelihood that enemy
combatants would mistakenly be released back into hostilities.
In a concurring opinion joined by Justices Breyer and Ginsburg, Justice Souter
claimed that the Court’s interpretation of the extraterritorial scope of the
constitutional writ of habeas was not nearly as surprising as Justice Scalia’s dissent
suggested, given Court dictum in Rasul v. Bush stating that “[a]pplication of the
habeas statute to persons detained at [Guantanamo] is consistent with the historical
reach of the writ of habeas corpus.”23
Adequacy of Habeas Corpus Substitute
Having decided that petitioners possessed a constitutional privilege to habeas
corpus, the Court next assessed whether the court-stripping measure of MCA § 7 was
impermissible under the Suspension Clause. Because the MCA did not purport to
be a formal suspension of the writ, the question before the Court was whether
Congress had provided an adequate substitute for habeas corpus. The government
argued that the MCA complied with the Suspension Clause because it applied the
DTA’s review process to petitioners, which the government claimed was a
constitutionally adequate habeas substitute.
Because the D.C. Circuit had found that the constitutional writ of habeas did not
run to petitioners, it did not consider whether an adequate substitute was provided.
While the Court noted that it generally remands cases back to the lower court for
consideration of issues not addressed in the first instance, it found that the
“exceptional” circumstances of the present case — including the separation-of-
powers issues it raised and the fact that petitioners had been denied meaningful

21 Id. at 2262.
22 Boumediene, 128 S.Ct. at 2294 (Scalia, J., dissenting).
23 Boumediene, 128 S.Ct. at 2278 (Souter, J., concurring)(citing Rasul, 542 U.S. at 481).

access to a judicial forum for a number of years — warranted a departure from
ordinary practice. The Court also noted that an interim order by a three-judge D.C.
Circuit panel in the case of Bismullah v. Gates24 provided it with guidance as to the
appellate court’s construction of key DTA provisions.
The Court found its prior rulings addressing the adequacy of habeas substitutes
enacted by Congress provided little guidance in assessing the adequacy of the
jurisdiction-stripping provisions of the MCA and DTA. Prior congressional
enactments typically attempted to streamline rather than circumscribe habeas review.
In contrast, the intent of the MCA and DTA was to establish a more limited review
procedure than habeas, as evidenced by, inter alia, the MCA’s unequivocal
jurisdiction-stripping language; the legislative history of both enactments; a
comparison of the review permitted by the DTA and the unamended federal habeas
statute; and the lack of a savings provision under either the DTA or MCA preserving
habeas review as an avenue of last resort.
Though the Court declined to “offer a comprehensive summary of the requisites
for an adequate substitute for habeas corpus,” it nonetheless deemed the habeas
privilege, at minimum, as entitling a prisoner “to a meaningful opportunity to
demonstrate that he is being held pursuant to ‘the erroneous application or
interpretation’ of relevant law,” and empowering a court “to order the conditional
release of an individual unlawfully detained,” though release need not be the
exclusive remedy or appropriate in every instance where the writ is granted.25
Additionally, the necessary scope of habeas review may be broader, depending upon
“the rigor of any earlier proceedings.”26
The Court noted that petitioners identified numerous alleged deficiencies in the
CSRT process which limited a detainee’s ability to present evidence rebutting the
government’s claim that he is an enemy combatant. Among other things, cited
deficiencies include constraints upon the detainee’s ability to find and present
evidence at the CSRT stage to challenge the government’s case; the failure to provide
a detainee with assistance of counsel; limiting the detainee’s access to government
records other than those that are unclassified, potentially resulting in a detainee being
unaware of critical allegations relied upon by the government to order his detention;
and the fact that the detainee’s ability to confront witnesses may be “more theoretical
than real,”27 given the minimal limitations placed upon the admission of hearsay

24 501 F.3d 178 (D.C. Cir. 2007) (Bismullah I), reh’g denied, 503 F.3d 137 (D.C. Cir.

2007) (Bismullah II); reh’g denied 514 F.3d 1291 (D.C. Cir. 2008)(en banc). On June 23,

2008, the Supreme Court granted certiorari and vacated the Bismullah decision, remanding
the case back to the D.C. Circuit for reconsideration in light of the Boumediene decision.
Gates v. Bismullah, 128 S.Ct. 2960 (2008). On August 22, 2008, the D.C. Circuit reinstated
its decisions in Bismullah I and Bismullah II. Bismullah v. Gates, Case No. 06-1197, Order
(D.C. Cir. August 22, 2008) (per curium), available at [
content/uploads/2008/08/bi smullah-order-8-22-08.pdf].
25 Boumediene, 128 S.Ct. at 2265-2266.
26 Id. at 2268.
27 Id. at 2269.

While the Court did not determine whether the CSRTs, as presently constituted,
satisfy due process standards, it agreed with petitioners that there was “considerable
risk of error in the tribunal’s findings of fact.”28 “[G]iven that the consequence of
error may be detention for the duration of hostilities that may last a generation or
more, this is a risk too serious to ignore.”29 The Court held that for either the writ of
habeas or an adequate substitute to function as an effective remedy for petitioners,
a court conducting a collateral proceeding must have the ability to (1) correct errors
in the CSRT process; (2) assess the sufficiency of the evidence against the detainee;
and (3) admit and consider relevant exculpatory evidence that was not introduced in
the prior proceeding.
The Court held that the DTA review process is a facially inadequate substitute
for habeas review. It listed a number of potential constitutional infirmities in the
review process, including the absence of provisions (1) empowering the D.C. Circuit
to order release from detention; (2) permitting petitioners to challenge the President’s
authority to detain them indefinitely; (3) enabling the appellate court to review or
correct the CSRT’s findings of fact; and (4) permitting the detainee to present
exculpatory evidence discovered after the conclusion of CSRT proceedings. The
Court declined to read into the DTA each of the necessary procedures identified. As
a result, the Court deemed MCA §7’s application of the DTA review process to
petitioners as failing to provide an adequate substitute for habeas, therefore effecting
an unconstitutional suspension of the writ.
In light of this conclusion, the Court held that petitioners could immediately
pursue habeas review in federal district court, without first obtaining review of their
CSRT designations from the D.C. Circuit as would otherwise be required under the
DTA review process. While prior jurisprudence recognized that prisoners are
generally required to exhaust alternative remedies before seeking federal habeas
relief, the Court found that petitioners in the instant case were entitled to a prompt
habeas hearing, given the fact that they had been detained for years without access
to judicial oversight to which they were constitutionally privileged. The Court
stressed, however, that except in cases of undue delay, federal courts should generally
refrain from considering habeas petitions of detainees being held as enemy
combatants until after the CSRT had an opportunity to review their status.
Acknowledging that the government possesses a “legitimate interest in protecting
sources and methods of intelligence gathering,” the Court announced that it expected
courts reviewing Guantanamo detainees habeas claims to use “discretion to
accommodate this interest to the greatest extent possible,” so as to avoid “widespread
dissemination of classified information.”30
In a dissenting opinion, Chief Justice Roberts — joined by Justices Alito,
Thomas, and Scalia — argued that the DTA review process adequately protects any
constitutional rights that aliens detained abroad as enemy combatants may enjoy, and
criticized the majority for replacing the DTA review system with “a set of shapeless

28 Id. at 2270.
29 Id. at 2266.
30 Id. at 2276.

procedures to be defined by federal courts at some future date.”31 Chief Justice
Roberts argued that the Court should not have granted certiorari to review
petitioners’ claims until the D.C. Circuit had the opportunity to assess whether the
remedies available under the DTA review process vindicated whatever constitutional
and statutory rights petitioners’ may possess. In a concurring opinion, Justice Souter
argued that the dissenting justices’ criticism of the majority’s decision to permit
detainees to immediate petition for habeas failed to sufficiently consider the duration
that petitioners’ had been denied meaningful judicial review of their claims.
Implications of Boumediene
As a result of the Boumediene decision, detainees currently held at Guantanamo
may petition a federal district court for habeas review of status determinations made
by a CSRT. However, the full consequences of the Boumediene decision are likely
to be significantly broader. While the petitioners in Boumediene sought habeas
review of their designation as enemy combatants, the Court’s ruling that the
constitutional writ of habeas extends to Guantanamo suggests that detainees may
also seek judicial review of claims concerning unlawful conditions of treatment or32
confinement or to protest a planned transfer to the custody of another country.
Some 250 habeas petitions have been filed on behalf of Guantanamo detainees
in the U.S. District Court for the District of Columbia. In the aftermath of the
Boumediene ruling, the District Court adopted a resolution for the coordination and
management of Guantanamo cases. The resolution calls for all current and future
Guantanamo cases to be transferred by the judge to whom they have been assigned
to Senior Judge Thomas F. Hogan, who has been designated to coordinate and
manage all Guantanamo cases so that they could be “addressed as expeditiously as
possible as required by the Supreme Court in Boumediene v. Bush....”33 Judge Hogan
is responsible for identifying and ruling on procedural issues common to the cases.
The transferring judge will retain the case for all other purposes, though Judge Hogan
is to confer with those judges whose cases raise common substantive issues, and he
may address those issues with the consent of the transferring judge. District Court
Judges Richard J. Leon and Emmet G. Sullivan have declined to transfer their cases
for coordination, and it is possible that the three judges may reach differing opinions
regarding issues common to their respective cases.
The conduct of trials before military commissions at Guantanamo may also be
affected by Boumediene, as enemy combatants may now potentially raise
constitutional arguments against their trial and conviction. Aliens convicted of war
crimes before military commissions may also potentially seek habeas review of their

31 Boumediene, 128 S.Ct. at 2279 (Roberts, C.J., dissenting).
32 See Boumediene, 128 S.Ct. at 2264 (“In view of our holding we need not discuss the reach
of the writ with respect to claims of unlawful conditions of treatment or confinement.”).
33 U.S. Dist. Court for the District of Columbia, Resolution of the Executive Session, July

1, 2008, available at [


designation as an enemy combatant by the CSRT, a designation that served as a legal
requisite for their subsequent prosecution before a military commission.
Although the Boumediene Court held that DTA review procedures were an
inadequate substitute for habeas, it expressly declined to assess “the content of the
law that governs” the detention of aliens at Guantanamo.34 The majority opinion
noted that it made “no judgment as to whether the CSRTs, as currently constituted,
satisfy due process standards,” and emphasized that “both the DTA and the CSRT
process remain intact.”35 Whether these procedures violate due process standards,
facially or as applied in a given case, and whether a particular detainee is being
unlawfully held, are issues to be addressed by the District Court when reviewing the
habeas claims of Guantanamo detainees. Prior to the DTA and MCA’s elimination
of statutory jurisdiction over Guantanamo detainees’ habeas claims, District Court
judges reached inconsistent conclusions regarding the degree to which detainees
could challenge their treatment and detention. In the aftermath of Boumediene, it is
possible that continued disagreement between lower court judges concerning the
scope of rights and remedies owed to Guantanamo detainees will eventually lead to
a more definitive pronouncement by the Supreme Court.
Another question left unresolved in the Court’s discussion of the extraterritorial
application of the Constitution is the degree to which the writ of habeas and other
constitutional protections apply to aliens detained in foreign locations other than
Guantanamo (e.g., at military facilities in Afghanistan and elsewhere, or at any
undisclosed U.S. detention sites overseas). The Boumediene Court indicated that it
would take a functional approach in resolving such issues, taking into account
“objective factors and practical concerns” in deciding whether the writ extended to
aliens detained outside U.S. territory. Practical concerns mentioned in the majority’s
opinion as relevant to an assessment of the writ’s extraterritorial application include
the degree and likely duration of U.S. control over the location where the alien is
held; the costs of holding the Suspension Clause applicable in a given situation,
including the expenditure of funds to permit habeas proceedings and the likelihood
that the proceedings would compromise or divert attention from a military mission;
and the possibility that adjudicating a habeas petition would cause friction with the
host government.36 Interestingly, the Boumediene did not overrule the Court’s prior
decision in Eisentrager, in which it found that enemy detainees held in post-WWII
Germany were precluded from seeking habeas relief. Whether enemy aliens are held
in conditions that more closely resemble those of the detainees at issue in Eisentrager
or Boumediene may influence a reviewing court’s assessment of whether they are
owed the constitutional writ of habeas, as well as its assessment of the merits of any
habeas claim deemed cognizable.
Although Boumediene deemed the limitations on judicial review imposed by the
DTA and MCA to be an unconstitutional suspension of the writ of habeas, the Court
did not foreclose all legislation altering the scope of review available in cases

34 Boumediene, 128 S.Ct. at 2277.
35 Id. at 2275.
36 Id. at 2259-2262.

involving Guantanamo detainees. For example, the Court suggested that it would be
a “legitimate objective” to channel all future cases involving Guantanamo detainees
to one district court so as to reduce the administrative burdens upon the
government.37 The Court further acknowledged the government as having a
legitimate interest in limiting the dissemination of classified intelligence-gathering
information during the course of judicial hearings involving Guantanamo detainees.
While the Court urged reviewing courts to use their discretion to protect this interest
“to the greatest extent possible,”38 some in Congress may want to consider legislation
to provide a statutory framework for the dissemination of classified information in
cases involving Guantanamo detainees.
The Court’s ruling in Boumediene did not necessarily bar all legislation that
would limit judicial review of Guantanamo detainees’ claims. Such legislation
limiting judicial review a similar degree as the DTA or MCA might be deemed
permissible if Congress also formally suspended the writ of habeas from being
applied to Guantanamo detainees. It is far from certain, however, that a reviewing
court would deem such legislation as compatible with Suspension Clause
requirements. Assuming that the requirements of the Suspension Clause constituted
a justiciable question, a reviewing court’s assessment of the constitutionality of
habeas-suspending legislation would likely turn on whether Al Qaeda’s terrorist
attacks upon the United States qualified as a “rebellion or invasion,” and whether the
court found that “the public safety” was therefore deemed to require the suspension
of the writ in Guantanamo, where a number of suspected Al Qaeda members and
supporters are being detained.
Congress may still be able to impose some limitations upon judicial review of
CSRT determinations if it strengthens the procedural protections afforded to
detainees in CSRT status hearings. The Supreme Court identified a number of
potential deficiencies in the status review process that necessitated habeas review of
CSRT determinations, including the detainee’s lack of counsel during the hearings;
the presumption of validity accorded to the government’s evidence; procedural and
practical limitations upon the detainee’s ability to present evidence rebutting the
government’s charges against him and to confront witnesses; potential limitations on
the detainee’s ability to introduce exculpatory evidence; and limitations on the
detainee’s ability to learn about the nature of the government’s case against him to
the extent that it is based upon classified evidence.39 Legislation addressing some or
all of these potential procedural inadequacies in the CSRT process might permit
judicial review of CSRT determinations to be further streamlined.
For discussion of litigation challenging detention policy, see CRS Report
RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal
Court, by Jennifer K. Elsea, Michael John Garcia, and Kenneth R. Thomas.

37 Id. at 2276. Indeed, the Court suggested that legislation that amended the federal habeas
statute might not be necessary to effectuate this measure; if a detainee files a habeas petition
in another judicial district, the government can move for change of venue to the U.S. District
Court for D.C. Id.
38 Id.
39 See Boumediene, 128 S.Ct. at 2260, 2269-2271.