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Boumediene v. Bush

Citation. 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008).
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Citation. 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008).

Brief Fact Summary.

Guantanamo Bay detainees were denied the constitutional privilege of habeas corpus by the MCA.  The DTA provided for limited review of the military tribunal’s decisions, but it denied the detainees the right to present evidence discovered after their initial hearing.

Synopsis of Rule of Law.

The Suspension Clause’s protections extend the privilege of habeas corpus to detainees located within areas where the United States has complete jurisdiction and control.


Boumediene and other Guantanamo Bay detainees sought writs of habeas corpus to review their status as enemy combatants.  Some detainees had been held at Guantanamo Bay for years without the benefit of legitimate review of their detainment status.  Section 7 of the MCA prohibited federal courts from hearing habeas cases from Guantanamo detainees.  Their only means of appealing the military tribunal’s decision was through the process prescribed by the DTA.  The DTA review process confined appellate courts to deciding whether the military tribunal followed “the standards and procedures” issued by the Department of Defense.  However, the process would not allow a detainee the opportunity to present evidence discovered after the initial hearing.


(1) Whether Guantanamo Bay detainees designated as enemy combatants have the constitutional privilege of habeas corpus.

(2) If so, whether the DTA provided an adequate substitute for habeas corpus.


JUSTICE KENNEDY holding: (1) Yes.  The Suspension Clause extends to those detained in Guantanamo Bay because the United States has “de facto sovereignty” over the base through its complete jurisdiction and control over it.

(2) No, the military tribunal denied the detainees the assistance of counsel and granted them merely a limited opportunity to question witnesses.  The DTA procedure did not remedy the tribunal’s deficiencies because, on appeal, the detainees were denied the right to present relevant evidence that was not made part of the record before the tribunal.


Justice Roberts

The Chief Justice dissented, reasoning that the procedures in place were more than adequate.  Further, the Court replaced these “generous” procedures with amorphous ones to be defined later.

Justice Scalia

Justice Scalia’s dissent reasoned that the President reasonably relied on the Court’s earlier decisions in his determination that the privilege of habeas corpus did not extend to Guantanamo Bay.  Had this not been apparent, the military would have simply left the prisoners in Afghanistan or turned them over to our allies.  In either case, the detainees would have been worse off.  Focusing on the threat of terrorism, Scalia lamented the devastating effect of the Court’s opinion, arguing that some prisoners who were released from Guantanamo Bay continued to commit atrocities after their release.


In holding that the Suspension Clause applies to prisoners detained at Guantanamo Bay, the Court found three factors relevant to its analysis:  (1) “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 prisoner’s entitlement to the writ.”  Although located in Cuba, the United States maintained “complete jurisdiction and control over the base,” and was thus the “de facto” sovereign of the territory.  Because the United States maintains sovereignty over Guantanamo Bay, the Constitution applies to those detained there.  Thus, Congress could not suspend the privilege of habeas corpus without following the requirements of the Suspension Clause.

The Court next addressed whether Congress, in enacting the DTA, had provided for an adequate substitute for habeas corpus.  The Court reasoned that, at bottom, the privilege of habeas corpus guarantees detainees “an opportunity . . . to present relevant exculpatory evidence that was not made part of the record in the earlier proceedings.”  This was a particularly high burden because of the military tribunal’s procedural deficiencies.  In the initial hearing to decide the detainee’s combatant status, the detainee was denied the assistance of counsel, and the witnesses against him were not limited by hearsay.  Thus, the opportunity to question witnesses was “more theoretical than real.”  Had the initial hearing provided detainees a full and fair opportunity to present their case, the procedures in the DTA may have been sufficient.  However, because it did not, the DTA did not provide an adequate substitute for habeas corpus.

Finally, the Court addressed whether there were any prudential concerns that would bar the Court from invalidating the MCA.  In holding that there was not, the Court reasoned that “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.”

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