Boumediene v. Bush

The case of Boumediene v. Bush, 553 U.S. 723 ( 2008 ), held that nonresident aliens, detained as enemy combatants in the United States Naval Station in Guantanamo Bay, Cuba, had a constitutional right, under Article I, Section 9, of the US Constitution, to petition for a writ of habeas corpus. This implied that the common view that nonresident aliens have no rights under the US Constitution is too simple. Under at least some circumstances, nonresident aliens do have constitutional rights. The extent of these rights remains to be determined.


In response to al-Qaeda's September 11, 2001, attack, the United States started detaining in Guantanamo non– US citizens who were captured abroad and suspected of being affiliated with al-Qaeda. Their status as “enemy combatants” was established by combatant status review tribunals (CSRTs) and reviewed annually by administrative review boards (ARBs).

US military police guard suspected Taliban and al-Qaeda detainees at Camp X-Ray at Guantanamo Bay Naval Base, Guantanamo Bay, Cuba, January 11, 2002.

US military police guard suspected Taliban and al-Qaeda detainees at Camp X-Ray at Guantanamo Bay Naval Base, Guantanamo Bay, Cuba, January 11, 2002.
2006 ), the Court held that the DTA's amendment of habeas jurisdiction did not apply to habeas petitions pending when it was passed. Congress then passed, in 2006, the Military Commissions Act, Section 7 of which unequivocally stripped the federal courts of jurisdiction to hear all habeas petitions from the detainees in Guantanamo.

Boumediene continued to press forward, arguing that the petitioners had a constitutional right to habeas. The District of Columbia (DC) Circuit Court ruled against them, and the Supreme Court initially refused to hear the case. Justices John Paul Stevens and Anthony M. Kennedy explained their refusal, writing that the petitioners should first exhaust the remedy available to them under the DTA: appeal to the DC Circuit. Less than three months later, Lieutenant Colonel Stephen Abraham submitted an affidavit to the Court, declaring that he had served in the CSRT process and detailing ways in which the process used unreliable information and reflected command influence. Petitioners used this to argue that the CSRT process was a sham and that habeas was needed. A week later, the Court reversed itself and agreed to hear the case.


The issues in this case were decided by a 5–4 majority. The majority opinion, written by Justice Kennedy, held that the Guantanamo detainees had a constitutional right to petition for habeas, and that the appeal process prescribed by the DTA was a constitutionally inadequate substitute. There were two dissenting opinions, both attracting four votes. One, written by Justice Antonin Scalia, argued that “[t]he writ of habeas corpus does not, and never has, run in favor of aliens abroad” (553 U.S. at 827). The other, written by Chief Justice John Roberts Jr., argued that the procedures provided the detainees by the DTA were an adequate substitute for habeas.

The Right to Habeas. The majority started its positive argument by appealing to prior cases that held that “even in unincorporated Territories the Government of the United States was bound to provide to noncitizen inhabitants guaranties of certain fundamental personal rights declared in the Constitution” (553 U.S. at 758, internal quotation omitted). The Court acknowledged that Cuba retained “ultimate sovereignty” over Guantanamo, but noted that the United States “exercises ‘complete jurisdiction and control” (553 U.S. at 753). Moreover, it found that it could not allow “[o]ur basic charter [to] be contracted away” by leases (553 U.S. at 765).

The most difficult case for the Court in Boumediene was Johnson v. Eisentrager, 339 U.S. 763 ( 1950 ). That case held that German prisoners of war (POWs), convicted of war crimes and detained on an American military base in Germany, had no constitutional right to habeas. But the Boumediene Court concluded that the Eisentrager Court never adopted a “formalistic, sovereignty-based test” for determining the reach of the writ (553 U.S. at 762). Rather, the Court read Eisentrager to contain a functional test for determining whether the writ applies. Noting in particular that the process afforded detainees in Guantanamo was substantially less than that provided the POWs convicted of war crimes in Germany, and that the practical obstacles to providing habeas review were lower in Guantanamo than they would have been in Germany shortly after the end of World War II, the Court found that, on balance, the Guantanamo detainees have the right to habeas.

Justice Scalia objected that the Court was extending the writ further than it had ever extended before, that Eisentrager conclusively established that the writ would not run to aliens who had never been on US territory, and that the case cannot be reconciled with the fact that the United States had detained “more than 400,000 prisoners of war detained in the United States alone during World War II” (553 U.S. at 841), without granting any of them habeas rights.

Adequacy of Process. If appeal to the DC Circuit could cure any defects in the CSRTs as well as habeas, then there would be no need for habeas. But the Court held that the DTA restricted the DC Circuit's review so that it was not adequate. Curiously, the only defect the Court identified was the fact that new evidence, discovered after the CSRT hearing, could not be admitted.

Justice Roberts objected that the DTA permits the appeals court “to remand a detainee's case for a new CSRT determination” (553 U.S. at 819). Moreover, ARBs can hear new evidence and determine that a detainee should be released. And given that the CSRTs were modeled on the process that the Court said in an earlier case ( Hamdi v. Rumsfeld, 542 U.S. 507 [2004] ) was due a US citizen, he could find no reason why the total procedural protection for detainees under the DTA was inadequate.


The immediate impact of the decision was to double the number of detainees released from Guantanamo because they were found not to be enemy combatants. While the CSRTs led to the release of “[s]ome 38 detainees” (553 U.S. at 825), the addition of habeas review led to the release of another thirty-eight detainees, including Boumediene (Worthington).

The decision has not been extended beyond Guantanamo. In al Maqaleh v. Gates, 605 F.3d 84 ( DC Cir. 2012 ), the court reasoned that even granting that detainees were captured outside of Afghanistan and were sent to an American military base in Afghanistan rather than Guantanamo, the fact that the base is in a “theater of war” (605 F.3d at 97) means that the detainees cannot petition for habeas.

Nonetheless, Boumediene stands for the proposition that nonresident aliens who are affected by the actions of the United States are not per se barred from invoking the protections of the US Constitution. Whether those protections will apply in their particular circumstances will depend on “whether judicial enforcement of the provision would be ‘impracticable and anomalous” ( 553 U.S. at 659, quoting Justice John M. Harlan, concurring in Reid v. Covert, 354 U.S. 1, 74 [1957] ).

SEE ALSO Extraterritoriality ; Habeas Corpus ; Hamdi v. Rumsfeld ; Kennedy, Anthony M. ; Roberts, John ; Scalia, Antonin .


Affidavit of Stephen Abraham, in Reply to Opposition to Petition for Rehearing, Al Odah v. United States, No. 06-1196 (June 22, 2007).

Worthington, Andy. “Guantánamo Habeas Results: The Definitive List.” .

Alec Walen
Rutgers University