On June 12, 2008, in one of the most important human rights cases of the decade, the Supreme Court of the United States in Boumediene v. Bush/Al Odah v. United States held, in a 5-4 decision, that the people imprisoned at Guantánamo Bay have the constitutional right to habeas corpus.

Habeas Corpus, or the Great Writ, protects individuals from arbitrary detention by the executive and gives prisoners the right to bring their case before a judge. The judge must determine if the detention has a factual and legal basis and, if it does not, the prisoner must be released. The U.S. Constitution states that the writ of habeas corpus may only be suspended in cases of rebellion or invasion. 

CCR co-counsel—from www.ccrjustice.org

Since the first habeas corpus petition on behalf of the Guantánamo Bay detainees was filed on February 19, 2002, the Center for Constitutional Rights (CCR) has helped coordinate a movement of over 500 pro bono attorneys to file habeas petitions for more than 300 detainees, challenging their unlawful detention. While these cases presented a major challenge to the Bush administration’s policies in the "war on terror," none of the detainees had their petition heard on the merits in a U.S. court. Virtually all of the cases were stayed pending the outcome of the consolidated cases of Boumediene v. Bush and Al Odah v. United States—which was finally argued in the Supreme Court on December 5, 2007.

During CCR’s sustained legal efforts, the government argued that the detainees did not have the right to challenge their detention in U.S. court. Nonetheless, the Supreme Court ruled that they did have a right to habeas corpus in its June 2004 decision in Rasul v. Bush. Following this victory, hundreds of habeas petitions for detainees were filed in the DC District Court. However, the government took several steps to circumvent the Rasul decision. The Pentagon set up Combatant Status Review Tribunals (CSRTs), a flawed proceeding that permits the use of secret evidence and evidence obtained under torture to designate detainees as "enemy combatants."

Then Congress passed the Detainee Treatment Act of 2005 (DTA), which purports to strip the federal courts of jurisdiction over claims by "enemy combatants" held in Guantanamo Bay. In 2006, shortly after another Supreme Court victory for detainees in Hamdan v. Rumsfeld, which held in part that the DTA did not strip the federal courts of jurisdiction over pending habeas cases, Congress passed the Military Commissions Act of 2006 (MCA). The MCA attempts to erode habeas corpus even further by proclaiming that all non-citizens designated or awaiting designation as enemy combatants, including legal immigrants detained in the U.S., do not have a legal basis to challenge any aspect of their detention, treatment, or transfer, through habeas petitions or other legal vehicles. The MCA’s jurisdiction-stripping provision purports to apply to both pending and future cases.

Regarding the June 12 decision, CCR Executive Director Vincent Warrant said, "The Supreme Court has finally brought an end to one of our nation’s most egregious injustices…. This six-year-long nightmare serves as a lesson in how fragile our constitutional protections truly are in the hands of an overzealous executive."

In his majority opinion, Associate Justice Anthony Kennedy wrote, "Within the constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person…. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law."

Justice Kennedy’s opinion for the Court rejected the argument that Guantánamo lies outside the reach of the federal courts because it is not within the 50 states, stating that, "[i]n every practical sense, Guantánamo is not abroad…. questions of extraterritoriality turn on objective factors and practical concerns, not formalism."

Two dissenting opinions written by Chief Justice Roberts and Justice Scalia captured the viewpoints of the conservative wing of the Court that the prisoners at Guantánamo are not entitled to the writ of habeas corpus and that the rights to which they are entitled are fully satisfied by the review mechanism Congress established in the DTA. Repeating one of the military’s favorite (and inaccurate) talking points, the Chief Justice began his dissent by saying, "[t]oday the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."

Going a step beyond the Chief Justice’s dissent, Justice Scalia contended that the Suspension Clause has no relevance for the prisoners at Guantánamo and thus the majority’s intervention cannot be justified. Notably, Scalia began his dissent with a rare exploration of what he perceived to be the "disastrous consequences" of the majority’s decision, including the astonishing assertion that, "It [the majority opinion] will almost certainly cause more Americans to be killed."

The Boumediene v. Bush decision marks the third time the Court has rebuked the Bush administration’s lawless actions at Guantánamo. The government has repeatedly delayed in applying previous rulings and this decision shows that the judiciary will not just lie down while the Administration further harms the health and sanity of its prisoners.

"This decision ensures that the executive does not falsely claim credit for detaining and incapacitating terrorists, when in many documented cases they have just swept up innocent men and hidden them from scrutiny," said CCR President Michael Ratner.

Following the decision, it is hoped that the lower courts will move to hold hearings in the 200-odd pending individual habeas corpus cases where detainees are challenging their indefinite detention without charges. Already, the chief judge of the District Court for the District of Columbia has called for a meeting of judges to determine how to proceed. Numerous lawyers have filed notices and motions in pending habeas cases to move them forward immediately. CCR anticipates that many of these cases will be decided swiftly because the government lacks any factual or legal basis for imprisoning the men.

The decision’s impact on the pending military commission cases is indirect. It is likely those trials will continue to progress at their current halting pace. The decision means that the defendants in those commissions proceedings—less than 20 men—may begin parallel proceedings, arguing that they should not have ever been detained in the first place. Other significant issues may be litigated as well: most detainees are being held in solitary confinement, including dozens who are cleared for release. Most are losing their minds as a result. Many detainees are also now cleared for release to countries where they may face torture. These men are basically in the position of refugees and countries that can offer them asylum will have to be found before they can be released.

A significant issue for the habeas cases will also be challenges to the government’s reliance on information obtained through torture or unlawful coercion to justify the detentions. Major General Jay Hood, former commander at Guantánamo, admitted to the Wall Street Journal that, "[s]ometimes we just didn’t get the right folks," but innocents remain at the base because "[n]obody wants to be the one to sign the release papers …there’s no muscle in the system."

Ultimately, the Administration’s strategy with Guantánamo was to run out the clock and leave its mess—much like the war in Iraq—to the next president to clean up. The historic victory for executive accountability will, hopefully, prevent the Bush administration from doing so.

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